The Civil Aviation Authority—The Netherlands (CAA-NL), which is the airworthiness authority for the Netherlands, notified the FAA that an unsafe condition may exist on certain Fokker Model F.28 Mark 0070 and 0100 series airplanes. The CAA-NL advises that it has received reports of two incidents of separation of ice impact panels from the engine fan case during flight. One incident involved a Model F.28 Mark 0070 airplane and the other incident involved a Model F.28 Mark 0100 airplane. The affected airplanes were operating in severe icing conditions; ice released from the engine inlet or wing and ingested into the engine has not been excluded as a factor contributing to the separation of the ice impact panels. The CAA-NL has determined that such incidents warrant temporary measures and that the applicable airplane flight manual (AFM) should be revised to provide the flightcrew with the procedures they must follow to prevent ice from contacting the ice impact panels on the engine fan case. Such contact could result in a panel coming loose during flight and blocking the bypass flow through the engine outlet guide vanes, and consequent reduction of the engine thrust, resulting in insufficient thrust to maintain flight.

The CAA-NL issued Dutch airworthiness directive 2004-004, dated January 15, 2004, to ensure the continued airworthiness of these airplanes in the Netherlands.

These airplane models are manufactured in the Netherlands 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, the CAA-NL has kept the FAA informed of the situation described above. The FAA has examined the findings of the CAA-NL, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD is being issued to ensure that the flightcrew is aware of the actions they must take to prevent ice from contacting the ice impact panels on the engine fan case. Such contact could result in a panel coming loose during flight and blocking the bypass flow through the engine outlet guide vanes, and consequent reduction of the engine thrust, resulting in insufficient thrust to maintain flight. This AD requires revising the Normal Procedures Section, “Operation in Icing Conditions,” and the Limitations Section, “Weather Limitations,” of the applicable airplane flight manual to provide the flightcrew with more restrictive procedures for operating in icing conditions.

We consider this AD interim action. If final action is later identified, we may consider further rulemaking at that time.

The Dutch airworthiness directive mandates doing the AFM revision before the next flight of the airplane. This AD allows operators 7 days after the effective date of this AD to complete the required AFM revision. In developing an appropriate compliance time for this AD, we considered the CAA-NL's recommendation, as well as the degree of urgency associated with the subject unsafe condition. In light of these factors, we find that a 7-day compliance time represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety.

The Dutch airworthiness directive also specifies that the AFM revision be placed in the Normal Procedures Section of the applicable AFM. This AD requires placement of the AFM revision in both the Normal Procedures Section and the Limitations Section of the applicable AFM. It is our intention that operators be required to follow the procedures specified in the AFM revision and the Limitations Section is the only section of the AFM that is mandatory, per section 91.9 of the Code of Federal Regulations (14 CFR part 91.9).

Since a situation exists that requires the immediate adoption of this regulation, it is found 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.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES . All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2004-NM-10-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein 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. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

The Direction Ge ne rale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on all Airbus Model A321 series airplanes. The DGAC advises that pilots of two separate Model A321 series airplanes encountered some lateral handling difficulties, which led to roll oscillations. These difficulties occurred when the pilots were performing manual approaches using flaps full in moderate icing conditions. External inspections of the affected airplanes revealed ice on the parts of the wing and horizontal stabilizer that do not have thermal anti-ice capability. The DGAC also advises that some operators reported roll oscillations during manual approach in crosswind or in moderate to severe turbulence. Roll oscillations during approach and landing in certain icing, crosswind, and turbulent conditions, could result in reduced controllability of the airplane.

The DGAC issued French airworthiness directive 2003-388(B), dated October 15, 2003, to ensure the continued airworthiness of these airplanes in France.

This airplane model is manufactured in France and is type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept us informed of the situation described above. We have examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD is being issued to prevent roll oscillations, which could result in reduced controllability of the airplane. This AD requires revising the Limitations section of the airplane flight manual (AFM) to include an instruction to use Flap 3 for landing when performing a manual approach in conditions of moderate to severe icing, significant crosswind ( i.e. , crosswinds greater than 20 knots, gust included), or moderate to severe turbulence.

Since a situation exists that requires the immediate adoption of this regulation, it is found 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.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES . All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-257-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein 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. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

We have determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

Federal Register Document 03-31743, Docket No. FAA-2003-16359; Airspace Docket 03-ASO-18, published on December 24, 2003 (68 FR 74471), establishes Class D airspace at Hilton Head Airport, Hilton Head Island, SC. An error was discovered in the Summary paragraph, describing the Class D airspace area. The description of the Class D airspace should be changed from airspace extending upward from the surface to and including 2,800 feet MSL within a 4.1-mile radius of the airport to airspace extending upward from the surface to and including 2,000 feet MSL within a 3.9-mile radius of the airport. This action corrects the error.

Designations for Class D airspace are published in Paragraph 5000 of FAA Order 7400.9L, dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designation listed in this document will be published subsequently in the Order.

As published, the final rule contains an error that incorrectly describes the size of the Class D airspace area. Accordingly, pursuant to the authority delegated to me, the Summary paragraph for the Class D airspace at Hilton Head Island, SC, incorporated by reference at § 71.1, 14 CFR 71.1, and published in the Federal Register on December 24, 2003, (68 FR 74471), is corrected by correcting the summary.

On December 9, 2003, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class D and E4 airspace at Olive Branch, MS, and amending Class E5 airspace at Memphis, TN (68 FR 68573). This action provides adequate Class D and E4 airspace for IFR operations at Olive Branch Airport and adequate Class E5 airspace at Memphis, TN to contain SIAPs. Class D airspace designations for airspace areas extending upward from the surface of the earth, Class E4 airspace areas designated as an extension to a Class D surface area, and Class E5 airspace designations for airspace extending upward from 700 feet or more above the surface of the earth are published in Paragraphs 5000, 6004, and 6005 respectively, of FAA Order 7400.9L, dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class D, E4, and E5 designations listed in this document will be published subsequently in the Order.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) establishes Class D and E4 airspace at Olive Branch, MS, and amends Class E5 at Memphis, TN.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

History

On November 26, 2003, the FAA proposed to amend Federal Aviation Regulations 14 CFR part 71 to modify Class E airspace at Polson, MT, (68 FR pages 66387-66388). This proposal was to modify Class E airspace extending upward from 700 or more above the surface of the earth to contain IFR operations within controlled airspace during the terminal phase and when transitioning to/from the en route environments.

Interested parties were invited to participate in this rule making proceeding by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9L dated September 02, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in that order.

This amendment to 14 CFR part 71 will modify Class E airspace at Polson, MT, to accommodate aircraft executing newly developed RNAV GPS SIAPs. The new procedures make it necessary to increase the area of controlled airspace. Additional Class E airspace extending upward from 700 feet or more above the surface of the earth is necessary to provide adequate controlled airspace for the safety of IFR aircraft executing these new RNAV GPS SIAPs and during transition to/from the en route environment.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA published this direct final rule with a request for comments in the Federal Register on December 2, 2003 (68 FR 67359). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on April 15, 2004. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on December 2, 2003 (68 FR 67361). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on April 15, 2004. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

Federal Register Document 04-485, published on Monday, January 12, 2004 (69 FR 1663), modified Class E airspace at Marysville, KS. The modification enlarged the controlled airspace area around Marysville Municipal Airport to provide proper protection of diverse departures, corrected discrepancies in the Marysville Municipal Airport airport reference point, redefined the extension of controlled airspace and brought the Marysville, KS Class E airspace area legal description into compliance with FAA Order 7400.2E, Procedures for Handling Airspace Matters. However, the Marysville, KS Class E airspace area legal description was published incorrectly.

Federal Register document 03-30456, published on Tuesday, December 9, 2003 (68 FR 68507), modified Class E airspace at Greenfield, IA. The modification enlarged the controlled airspace area around Greenfield Municipal Airport to provide proper protection of diverse departures, corrected a discrepancy in the extension of controlled airspace and brought the Greenfield, IA Class E airspace area legal description into compliance with FAA Order 7400.2E, Procedures for Handling Airspace Matters. However, the Greenfield, IA Class E airspace area legal description was published incorrectly.

The FAA published this direct final rule with a request for comments in the Federal Register on December 9, 2003 (68 FR 68506). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on April 15, 2004. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

Federal Register Document 04-483, published on Monday, January 12, 2004 (69 FR 1661) modified Class E airspace at Beloit, KS. The modification was to change the name of the airport at Beloit, KS from Beloit Municipal Airport to Moritz Memorial Airport, to enlarge the controlled airspace area around Moritz Memorial Airport for proper protection of diverse departures and to bring the Beloit, KS Class E airspace area legal description into compliance with FAA Order 7400.2E, Procedures for Handling Airspace Matters. However, the Beloit, KS Class E airspace area legal description was published incorrectly.

The FAA published this direct final rule with a request for comments in the Federal Register on December 9, 2003 (68 FR 68505). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on April 15, 2004. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

On April 23, 1998, the Global Positioning System (GPS) Runway (RWY) 8 SIAP for Tampa Bay Executive Airport was canceled.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) removes Class E5 airspace at New Port Richey, FL, as the SIAP to Tampa Bay Executive Airport was canceled. Therefore, the Class E5 airspace areas must be removed. The rule will become effective on the date specified in the DATE section. Since this action eliminates the impact of controlled airspace on users of the airspace in the vicinity of the Tampa Bay Executive Airport, notice and public procedure under 5 U.S.C. 553(b) are unnecessary. Class E airspace designations for airspace areas extending upward from 700 feet or more above the surface of the earth are published in Paragraph 6005 of FAA Order 7400.9L, dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class E designation listed in this document will be published subsequently in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On December 19, 2003, a notice proposing to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class E airspace extending upward from 700 feet above the surface within a 6-mile radius of Lawrenceville/Brunswick Municipal Airport, Lawrenceville, VA was published in the Federal Register (68 FR 70746-70747). Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before January 20, 2004. No comments to the proposal were received. The rule is adopted as proposed.

The coordinates for this airspace docket are based on North American Datum 83. Class E airspace area designations for airspace extending upward from the surface of the earth are published in paragraph 6005 of FAA Order 7400.9L, dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published in the Order.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) provides controlled Class E airspace extending upward from 700 feet above the surface for aircraft conducting IFR operations within a 6-mile radius of Lawrenceville/Brunswick Municipal Airport, Lawrenceville, VA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On December 22, 2003, a notice proposing to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class E airspace extending upward from 700 feet above the surface within an area overlying the spitfire Aerodrome, Pedricktown, NJ was published in the Federal Register (68 FR 71053-71054). Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before January 21, 2004. No comments to the proposal were received. The rule is adopted as proposed.

The coordinates for this airspace docket are based on North American Datum 83. Class E airspace area designations for airspace extending upward from the surface of the earth are published in paragraph 6005 of FAA Order 7400.9L, dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published in the Order.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR part 71) provides controlled Class E airspace extending upward from 700 feet above the surface for aircraft conducting IFR operations into Spitfire Aerodrome, Pedricktown, NJ.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On October 8, 2003, the Office of Management and Budget (OMB) issued policy directive: “Use of Grants.Gov FIND”, requiring Federal agencies to use the Grants.gov FIND module of the Grants.gov program to electronically post synopses of grant and cooperative agreement funding opportunities. This policy directive includes a government-wide standard set of data elements to be used by Federal agencies when posting synopses to http://www.Grants.gov . The purpose of the Grants.gov FIND module is to provide potential applicants with (1) enough information about any opportunity to decide whether they are interested in viewing the full announcement; (2) information on one or more ways to obtain the full announcements; and (3) one common Web site for all Federal grant opportunities searchable by key word, date, Catalog of Federal Domestic Assistance (CFDA) number or specific agency name. This final rule implements the synopses requirements of the OMB policy directive.

This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

NASA certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , because the changes do not impose requirements on these entities. The changes only apply to field personnel within NASA.

The Paperwork Reduction Act does not apply because this final rule does not impose any new recordkeeping or information collection requirements, or collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et. seq.

The Office of Management and Budget has required NASA to complete its annual financial statements sooner. Since recipients maintain NASA's official records for its assets in their possession, NASA uses the data contained in recipients' reports for annual financial statements and property management. As a result, NASA is changing the date for submission of annual Inventory Reports from October 31st to October 15th of each year.

NASA certifies that this interim rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , because it requires no additional work.

The Paperwork Reduction Act does not apply because this interim rule does not impose any new recordkeeping or information collection requirements, or collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management (OMB) and Budget under 44 U.S.C. 3501, et. seq.

In accordance with 41 U.S.C. 418(d), NASA has determined that urgent and compelling reasons exist to promulgate this interim rule. The basis for this determination is that this change incorporates into the Handbook NASA's class deviation issued on September 4, 2003, in NASA's Grant Information Circular (GIC) 03-01 for accelerated property reporting. Public comments received in response to this interim rule will be considered in the formation of the final rule.

The final regulations that are subject to these corrections are under section 170A of the Internal Revenue Code.

As published, final regulation (TD 9100), contains errors that may prove to be misleading and are in need of clarification.

The Burlington Northern Railway Company has requested a temporary deviation in order to repair and replace damaged rails on the lift span of the bridge across Berwick Bay, mile 17.5, at Morgan City, St. Mary Parish, Louisiana. This maintenance is essential for the continued safe operation of the railroad bridge. This temporary deviation will allow the bridge to remain in the closed-to-navigation position from 8 a.m. until 2 p.m., Wednesday through Friday from February 18, 2004 through February 20, 2004.

The vertical lift span bridge has a vertical clearance of 4 feet above National Geodetic Vertical Datum (NGVD) in the closed-to-navigation position and 73 feet above NGVD in the open-to-navigation position. Navigation at the site of the bridge consists of tugs with tows transporting petroleum products, chemicals and construction equipment, commercial fishing vessels, oil industry related work boats and crew boats and some recreational craft. Since the lift span of the bridge will only be closed to navigation six hours per day for three days, ample time will be allowed for commercial and recreational vessels to schedule transits. Accordingly, it has been determined that this closure will not have a significant effect on vessel traffic. The bridge normally remains in the open-to-navigation position until a train enters the signal block, requiring it to close. An average number of openings for the passage of vessels is, therefore, not available. During the repair period, the bridge may open for emergencies; however, delays should be expected to remove all equipment from the bridge. The Intracoastal Waterway—Morgan City to Port Allen Landside Route is an alternate route for vessels with less than a 12-foot draft.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.

Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126) requires that the Secretary of the Interior and the Secretary of Agriculture (Secretaries) implement a joint program to grant a preference for subsistence uses of fish and wildlife resources on public lands, unless the State of Alaska enacts and implements laws of general applicability that are consistent with ANILCA and that provide for the subsistence definition, preference, and participation specified in Sections 803, 804, and 805 of ANILCA. The State implemented a program that the Department of the Interior previously found to be consistent with ANILCA. However, in December 1989, the Alaska Supreme Court ruled in McDowell v. State of Alaska that the rural preference in the State subsistence statute violated the Alaska Constitution. The Court's ruling in McDowell required the State to delete the rural preference from the subsistence statute and, therefore, negated State compliance with ANILCA. The Court stayed the effect of the decision until July 1, 1990.

As a result of the McDowell decision, the Department of the Interior and the Department of Agriculture (Departments) assumed, on July 1, 1990, responsibility for implementation of Title VIII of ANILCA on public lands. On June 29, 1990, the Temporary Subsistence Management Regulations for Public Lands in Alaska were published in the Federal Register (55 FR 27114). On January 8, 1999 (64 FR 1276), the Departments extended jurisdiction to include waters in which there exists a Federal reserved water right. This amended rule conformed the Federal Subsistence Management Program to the Ninth Circuit's ruling in Alaska v. Babbitt. Consistent with Subparts A, B, and C of these regulations as revised May 7, 2002 (67 FR 30559), the Departments established a Federal Subsistence Board to administer the Federal Subsistence Management Program. The Board's composition includes a Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture; the Alaska Regional Director, U.S. Fish and Wildlife Service; the Alaska Regional Director, U.S. National Park Service; the Alaska State Director, U.S. Bureau of Land Management; the Alaska Regional Director, U.S. Bureau of Indian Affairs; and the Alaska Regional Forester, USDA Forest Service. Through the Board, these agencies participated in the development of regulations for Subparts A, B, and C, and the annual Subpart D regulations.

All Board members have reviewed this rule and agree with its substance. Because this rule relates to public lands managed by an agency or agencies in both the Departments of Agriculture and the Interior, identical text would be incorporated into 36 CFR part 242 and 50 CFR part 100.

Subparts A, B, and C (unless otherwise amended) of the Subsistence Management Regulations for Public Lands in Alaska, 50 CFR 100.1 to 100.23 and 36 CFR 242.1 to 242.23, remain effective and apply to this rule. Therefore, all definitions located at 50 CFR 100.4 and 36 CFR 242.4 apply to regulations found in this subpart.

Pursuant to the Record of Decision, Subsistence Management Regulations for Federal Public Lands in Alaska, April 6, 1992, and the Subsistence Management Regulations for Federal Public Lands in Alaska, 36 CFR 242.11 and 242.22 (2002) and 50 CFR 100.11 and 100.22 (2002), and for the purposes identified therein, we divide Alaska into 10 subsistence resource regions, each of which is represented by a Federal Subsistence Regional Advisory Council (Regional Council). The Regional Councils provide a forum for rural residents, with personal knowledge of local conditions and resource requirements, to have a meaningful role in the subsistence management of fish and wildlife on Alaska public lands. The Regional Council members represent varied geographical, cultural, and user diversity within each region.

The Regional Councils had a substantial role in reviewing the proposed rule and making recommendations for the final rule. Moreover, the Council Chairs, or their designated representatives, presented their Council's recommendations at the Board meeting of December 9-11, 2003.

Section ___ .24 (Customary and traditional use determinations) was originally published in the Federal Register (57 FR 22940) on May 29, 1992. Since that time, the Board has made a number of Customary and Traditional Use Determinations at the request of impacted subsistence users. Those modifications, along with some administrative corrections, were last published in the Federal Register on February 12, 2003 (68 FR 7276). During its December 9-11, 2003, meeting, the Board made additional determinations in addition to various annual season and harvest limit changes. The public has had extensive opportunity to review and comment on all changes. Additional details on the recent Board modifications are contained below in Analysis of Proposals Adopted by the Board.

Subpart D regulations are subject to an annual cycle and require development of an entire new rule each year. Customary and traditional use determinations are also subject to an annual review process providing for modification each year. We published proposed Subpart D regulations for the 2004-05 seasons, harvest limits, and methods and means on February 12, 2003, in the Federal Register (68 FR 7294). A 45-day comment period providing for public review of the proposed rule and calling for proposals was advertised by mail, radio, and newspaper. During that period, the Regional Councils met and, in addition to other Regional Council business, received suggestions for proposals from the public. The Board received a total of 45 proposals for changes to Customary and Traditional Use Determinations or to Subpart D. This number included some proposals deferred from previous years. Subsequent to the review period, the Board prepared a booklet describing the proposals and distributed it to the public. The public had an additional 30 days in which to comment on the proposals for changes to the regulations. The 10 Regional Councils met again, received public comments, and formulated their recommendations to the Board on proposals for their respective regions. Six of the proposals were not considered, being withdrawn before Board consideration. Two proposals were deferred pending resolution of jurisdictional issues or completion of research studies relative to the specific proposal. These final regulations reflect Board review and consideration of Regional Council recommendations and public comments on the remaining proposals.

The Board rejected or took no action on 20 proposals. All of these actions were based on recommendations from at least one Regional Council.

The Board rejected three proposals requesting significant restrictions on the exercise of customary trade. The Board rejected these proposals as unnecessary restrictions on subsistence users.

One proposal requested expanding the use of gillnets in the Yukon River, and one proposal wanted us to allow larger nets on the Kuskokwim River. These proposals were rejected because of conservation concerns for salmon in the Yukon and Kuskokwim Rivers.

The Board rejected two proposals requesting closure of commercial fishing in Federal waters on the Yukon River. The Board rejected these proposals as unnecessary restrictions on nonsubsistence users.

The Board rejected two proposals requesting revisions to the subsistence fishing schedule for the Yukon River. The Board rejected these proposals because the current fishing schedules are a result of a coordinated effort by users and government bodies to rebuild depressed salmon stocks and are for the long-term benefit of all users.

The Board took no action on four proposals that would have revised the customary and traditional use determination for the Prince of Wales archipelago because of their positive action on another proposal addressing similar issues.

The Board deferred action on two proposals in order to resolve jurisdictional issues or to assemble additional fisheries data, harvest information, or to allow communities or Regional Councils additional time to review the issues and provide additional information.

Two proposals, rejected by the Board, related to the description of a “spear.” These were rejected because evidence was presented that subsistence users traditionally utilized an additional spear-like object that would have been excluded with the new definition.

The Board rejected six proposals that would have placed additional harvest restrictions or additional reporting or marking requirements on steelhead, trout, or char in southeast Alaska. These proposals were rejected because there is no immediate conservation concern and they would have placed unnecessary restrictions or regulatory burdens on subsistence users.

The Board adopted 13 proposals. A number of proposals dealing with the same issue were dealt with as a package. Some proposals were adopted as submitted and others were adopted with modifications suggested by the respective Regional Council or developed during the Board's public deliberations.

All of the adopted proposals were recommended for adoption by at least one of the Regional Councils and were based on meeting customary and traditional uses, harvest practices, or protecting fish populations. Detailed information relating to justification for the action on each proposal may be found in the Board meeting transcripts, available for review at the Office of Subsistence Management, 3601 C Street, Suite 1030, Anchorage, Alaska, or on the Office of Subsistence Management Web site ( http://alaska.fws.gov/asm/home.html ). Additional technical clarifications and removal of excess or duplicative text have been made, which result in a more readable document.

In the final rule we clarified that limited entry and crew permit holders are not prohibited from participating in customary trade. We also deleted text that pertained to waters not under Federal jurisdiction. In addition, we revised the regulations pertaining to specific management areas as follows:

The Board adopted two proposals affecting residents of the Yukon-Northern Fishery Management Area resulting in the following changes to the regulations found in § ___.27.

• Revised the regulations to allow the use of red colored buoys and kegs for marking subsistence fishing gear.

• Allowed the use of gillnets larger than 3-inch mesh in Birch Creek for a portion of the year.

The Board adopted one proposal affecting residents of the Kuskokwim Fishery Management Area resulting in the following changes to the regulations found in § ___.27.

• Revised the regulations to allow the use of red colored buoys and kegs for marking subsistence fishing gear.

The Board adopted two proposals affecting residents of the Bristol Bay Fishery Management Area resulting in the following changes to the regulations found in §§ ___.24 and ___.27.

• Revised the customary and traditional use determination for the Egegik and Ugashik Districts.

• Set dollar limits on sale of salmon in customary trade in the Bristol Bay Area.

The Board adopted four proposals affecting residents of the Prince William Sound Fishery Management Area resulting in the following changes to the regulations found in §§ ___.24 and ___.27.

• Revised the customary and traditional use determinations for salmon and for freshwater fish in a portion of the fishery management area.

• Allowed the accumulation of salmon subsistence harvest limits with sport harvest limits in the upper Copper River.

• Removed the requirement for the submission of a harvest management plan for community fish wheels.

The Board adopted five proposals affecting residents of the Southeastern Alaska Fishery Management Area resulting in the following changes to the regulations found in §§ ___.24 and ___.27

• Revised the customary and traditional use determinations in the Prince of Wales Island area.

• Included Kosciusko Island in regulations for the Prince of Wales steelhead fishery.

• Revised the customary and traditional use determinations for Districts 6, 7, and 8.

• Established a salmon fishery on the Stikine River with implementation delayed pending coordination with the Pacific Salmon Commission.

Additionally, these regulations will be effective for 13 months, from March 1, 2004, through March 31, 2005. This will allow the annual fishery regulations to become effective on April 1 in future years. This change was recommended after a thorough review of the overall regulatory cycles for both fish and wildlife. The additional month following the winter Regional Council meetings will allow the production of necessary materials for the Board meeting and then production of the public booklets in a timely manner.

The Board finds that additional public notice under the Administrative Procedure Act (APA) for this final rule is unnecessary, and contrary to the public interest. The Board has provided extensive opportunity for public input and involvement in excess of standard APA requirements, including participation in multiple Regional Council meetings, additional public review and comment on all proposals for regulatory change, and opportunity for additional public comment during the Board meeting prior to deliberation. Additionally, an administrative mechanism exists (and has been used by the public) to request reconsideration of the Board's decision on any particular proposal for regulatory change. Over the 12 years the Program has been operating, no benefit to the public has been demonstrated by delaying the effective date of regulations. A lapse in regulatory control could seriously affect the continued viability of fish and shellfish populations, adversely impact future subsistence opportunities for rural Alaskans, and would generally fail to serve the overall public interest. Therefore, the Board finds good cause pursuant to 5 U.S.C. 553 (d) to make this rule effective less than 30 days after publication.

A Draft Environmental Impact Statement (DEIS) for developing a Federal Subsistence Management Program was distributed for public comment on October 7, 1991. That document described the major issues associated with Federal subsistence management as identified through public meetings, written comments, and staff analysis and examined the environmental consequences of four alternatives. Proposed regulations (Subparts A, B, and C) that would implement the preferred alternative were included in the DEIS as an appendix. The DEIS and the proposed administrative regulations presented a framework for an annual regulatory cycle regarding subsistence hunting and fishing regulations (Subpart D). The Final Environmental Impact Statement (FEIS) was published on February 28, 1992.

Based on the public comment received, the analysis contained in the FEIS, and the recommendations of the Federal Subsistence Board and the Department of the Interior's Subsistence Policy Group, the Secretary of the Interior, with the concurrence of the Secretary of Agriculture, through the U.S. Department of Agriculture-Forest Service, implemented Alternative IV as identified in the DEIS and FEIS (Record of Decision on Subsistence Management for Federal Public Lands in Alaska (ROD), signed April 6, 1992). The DEIS and the selected alternative in the FEIS defined the administrative framework of an annual regulatory cycle for subsistence hunting and fishing regulations. The final rule for Subsistence Management Regulations for Public Lands in Alaska, Subparts A, B, and C (57 FR 22940, published May 29, 1992; amended January 8, 1999, 64 FR 1276; June 12, 2001, 66 FR 31533; and May 7, 2002, 67 FR 30559) implemented the Federal Subsistence Management Program and included a framework for an annual cycle for subsistence hunting and fishing regulations.

An environmental assessment was prepared in 1997 on the expansion of Federal jurisdiction over fisheries and is available by contacting the office listed under FOR FURTHER INFORMATION CONTACT . The Secretary of the Interior with the concurrence of the Secretary of Agriculture determined that the expansion of Federal jurisdiction did not constitute a major Federal action, significantly affecting the human environment and has, therefore, signed a Finding of No Significant Impact.

The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. A Section 810 analysis was completed as part of the FEIS process. The final Section 810 analysis determination appeared in the April 6, 1992, ROD, which concluded that the Federal Subsistence Management Program may have some local impacts on subsistence uses, but the program is not likely to significantly restrict subsistence uses.

The information collection requirements contained in this rule have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995(44 U.S.C. 3501 et seq. ) and assigned OMB control number 1018-0075, which expires August 31, 2006. We may not conduct or sponsor, and you are not required to respond to, a collection of information request unless it displays a currently valid OMB control number.

Regulatory Planning and Review (Executive Order 12866)—In accordance with the criteria in Executive Order 12866 this rule is not a significant regulatory action subject to OMB review. OMB makes this determination. This action will not have an annual economic effect of $100 million or adversely affect any economic sector, productivity, competition, jobs, the environment, or other units of government. Therefore, a cost-benefit and economic analysis is not required. This action will not create inconsistencies with other agencies' actions or otherwise interfere with an action taken or planned by another agency. This action will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This action will not raise novel legal or policy issues.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires preparation of flexibility analyses for rules that will have a significant economic effect on a substantial number of small entities, which include small businesses, organizations, or governmental jurisdictions. The Departments have determined that this rulemaking will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.

This rulemaking will impose no significant costs on small entities; the exact number of businesses and the amount of trade that will result from this Federal land-related activity is unknown. The aggregate effect is an insignificant positive economic effect on a number of small entities, such as tackle, boat, and gasoline dealers. The number of small entities affected is unknown; however, the fact that the positive effects will be seasonal in nature and will, in most cases, merely continue preexisting uses of public lands indicates that the effects will not be significant.

In general, the resources harvested under this rule will be consumed by the local harvester and do not result in a dollar benefit to the economy. However, we estimate that 24 million pounds of fish (including 8.3 million pounds of salmon) are harvested by the local subsistence users annually and, if given a dollar value of $3.00 per pound for salmon [Note: $3.00 per pound is much higher than the current commercial value for salmon] and $ 0.58 per pound for other fish, would equate to about $34 million in food value Statewide.

Title VIII of ANILCA requires the Secretaries to administer a subsistence preference on public lands. The scope of this program is limited by definition to certain public lands. Likewise, these regulations have no potential takings of private property implications as defined by Executive Order 12630.

The Service has determined and certifies pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq. , that this rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities. The implementation of this rule is by Federal agencies, and no cost is involved to any State or local entities or Tribal governments.

The Service has determined that these final regulations meet the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order 12988 on Civil Justice Reform.

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Title VIII of ANILCA precludes the State from exercising management authority over wildlife resources on Federal lands.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), 512 DM 2, and E.O. 13175, we have evaluated possible effects on Federally recognized Indian tribes and have determined that there are no effects. The Bureau of Indian Affairs is a participating agency in this rulemaking.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, or use. This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. As this rule is not a significant regulatory action under Executive Order 13211, affecting energy supply, distribution, or use, this action is not a significant action and no Statement of Energy Effects is required.

William Knauer drafted these regulations under the guidance of Thomas H. Boyd, of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Taylor Brelsford, Alaska State Office, Bureau of Land Management; Rod Simmons, Alaska Regional Office, U.S. Fish and Wildlife Service; Bob Gerhard, Alaska Regional Office, National Park Service; Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian Affairs; and Steve Kessler, USDA-Forest Service, provided additional guidance.

(2) You may take fish for subsistence uses at any time by any method unless you are restricted by the subsistence fishing regulations found in this section. The harvest limit specified in this section for a subsistence season for a species and the State harvest limit set for a State season for the same species are not cumulative, except as modified by regulations in § ___.27(i). This means that if you have taken the harvest limit for a particular species under a subsistence season specified in this section, you may not, after that, take any additional fish of that species under any other harvest limit specified for a State season.

(b) [ Reserved ]

(c) Methods, means, and general restrictions. (1) Unless otherwise specified in this section or under terms of a required subsistence fishing permit (as may be modified by this section), you may use the following legal types of gear for subsistence fishing:

(i) A set gillnet;

(ii) A drift gillnet;

(iii) A purse seine;

(iv) A hand purse seine;

(v) A beach seine;

(vi) Troll gear;

(vii) A fish wheel;

(viii) A trawl;

(ix) A pot;

(x) A longline;

(xi) A fyke net;

(xii) A lead;

(xiii) A herring pound;

(xiv) A dip net;

(xv) Jigging gear;

(xvi) A mechanical jigging machine;

(xvii) A handline;

(xviii) A cast net;

(xix) A rod and reel; and

(xx) A spear.

(2) You must include an escape mechanism on all pots used to take fish or shellfish. The escape mechanisms are as follows:

(i) A sidewall, which may include the tunnel, of all shellfish and bottomfish pots must contain an opening equal to or exceeding 18 inches in length, except that in shrimp pots the opening must be a minimum of 6 inches in length. The opening must be laced, sewn, or secured together by a single length of untreated, 100 percent cotton twine, no larger than 30 thread. The cotton twine may be knotted at each end only. The opening must be within 6 inches of the bottom of the pot and must be parallel with it. The cotton twine may not be tied or looped around the web bars. Dungeness crab pots may have the pot lid tie-down straps secured to the pot at one end by a single loop of untreated, 100 percent cotton twine no larger than 60 thread, or the pot lid must be secured so that, when the twine degrades, the lid will no longer be securely closed;

(ii) All king crab, Tanner crab, shrimp, miscellaneous shellfish and bottomfish pots may, instead of complying with paragraph (c)(2)(i) of this section, satisfy the following: a sidewall, which may include the tunnel, must contain an opening at least 18 inches in length, except that shrimp pots must contain an opening at least 6 inches in length. The opening must be laced, sewn, or secured together by a single length of treated or untreated twine, no larger than 36 thread. A galvanic timed-release device, designed to release in no more than 30 days in saltwater, must be integral to the length of twine so that, when the device releases, the twine will no longer secure or obstruct the opening of the pot. The twine may be knotted only at each end and at the attachment points on the galvanic timed-release device. The opening must be within 6 inches of the bottom of the pot and must be parallel with it. The twine may not be tied or looped around the web bars.

(3) For subsistence fishing for salmon, you may not use a gillnet exceeding 50 fathoms in length, unless otherwise specified in this section. The gillnet web must contain at least 30 filaments of equal diameter or at least 6 filaments, each of which must be at least 0.20 millimeter in diameter.

(4) Except as otherwise provided for in this section, you may not obstruct more than one-half the width of any stream with any gear used to take fish for subsistence uses.

(5) You may not use live nonindigenous fish as bait.

(6) You must have your first initial, last name, and address plainly and legibly inscribed on the side of your fishwheel facing midstream of the river.

(7) You may use kegs or buoys of any color but red on any permitted gear, except in the following areas where kegs or buoys of any color, including red, may be used:

(i) Yukon-Northern Area; and

(ii) Kuskokwim Area.

(8) You must have your first initial, last name, and address plainly and legibly inscribed on each keg, buoy, stakes attached to gillnets, stakes identifying gear fished under the ice, and any other unattended fishing gear which you use to take fish for subsistence uses.

(9) You may not use explosives or chemicals to take fish for subsistence uses.

(10) You may not take fish for subsistence uses within 300 feet of any dam, fish ladder, weir, culvert or other artificial obstruction, unless otherwise indicated.

(11) Transactions between rural residents. Rural residents may exchange in customary trade subsistence-harvested fish, their parts, or their eggs, legally taken under the regulations in this part, for cash from other rural residents. The Board may recognize regional differences and define customary trade differently for separate regions of the State.

(i) Bristol Bay Fishery Management Area—The total cash value per household of salmon taken within Federal jurisdiction in the Bristol Bay Fishery Management Area and exchanged in customary trade to rural residents may not exceed $500.00 annually.

(ii) [Reserved]

(12) Transactions between a rural resident and others. In customary trade, a rural resident may trade fish, their parts, or their eggs, legally taken under the regulations in this part, for cash from individuals other than rural residents if the individual who purchases the fish, their parts, or their eggs uses them for personal or family consumption. If you are not a rural resident, you may not sell fish, their parts, or their eggs taken under the regulations in this part. The Board may recognize regional differences and define customary trade differently for separate regions of the State.

(i) Bristol Bay Fishery Management Area—The total cash value per household of salmon taken within Federal jurisdiction in the Bristol Bay Fishery Management Area and exchanged in customary trade between rural residents and individuals other than rural residents may not exceed $400.00 annually. These customary trade sales must be immediately recorded on a customary trade recordkeeping form. The recording requirement and the responsibility to ensure the household limit is not exceeded rests with the seller.

(ii) [Reserved]

(13) No sale to, nor purchase by, fisheries businesses.

(i) You may not sell fish, their parts, or their eggs taken under the regulations in this part to any individual, business, or organization required to be licensed as a fisheries business under Alaska Statute AS 43.75.011 (commercial limited-entry permit or crew license holders excluded) or to any other business as defined under Alaska Statute 43.70.110(1) as part of its business transactions.

(ii) If you are required to be licensed as a fisheries business under Alaska Statute AS 43.75.011 (commercial limited-entry permit or crew license holders excluded) or are a business as defined under Alaska Statute 43.70.110(1), you may not purchase, receive, or sell fish, their parts, or their eggs taken under the regulations in this part as part of your business transactions.

(14) Except as provided elsewhere in this section, you may not take rainbow/steelhead trout.

(15) You may not use fish taken for subsistence use or under subsistence regulations in this part as bait for commercial or sport fishing purposes.

(16) [Reserved]

(17) Unless specified otherwise in this section, you may use a rod and reel to take fish without a subsistence fishing permit. Harvest limits applicable to the use of a rod and reel to take fish for subsistence uses shall be as follows:

(i) If you are required to obtain a subsistence fishing permit for an area, that permit is required to take fish for subsistence uses with rod and reel in that area. The harvest and possession limits for taking fish with a rod and reel in those areas are the same as indicated on the permit issued for subsistence fishing with other gear types;

(ii) Except as otherwise provided for in this section, if you are not required to obtain a subsistence fishing permit for an area, the harvest and possession limits for taking fish for subsistence uses with a rod and reel are the same as for taking fish under State of Alaska subsistence fishing regulations in those same areas. If the State does not have a specific subsistence season and/or harvest limit for that particular species, the limit shall be the same as for taking fish under State of Alaska sport fishing regulations.

(18) Unless restricted in this section, or unless restricted under the terms of a subsistence fishing permit, you may take fish for subsistence uses at any time.

(19) Provisions on ADF&G subsistence fishing permits that are more restrictive or in conflict with the provisions contained in this section do not apply to Federal subsistence users.

(20) You may not intentionally waste or destroy any subsistence-caught fish or shellfish; however, you may use for bait or other purposes, whitefish, herring, and species for which harvest limits, seasons, or other regulatory methods and means are not provided in this section, as well as the head, tail, fins, and viscera of legally-taken subsistence fish.

(21) The taking of fish from waters within Federal jurisdiction is authorized outside of published open seasons or harvest limits if the harvested fish will be used for food in traditional or religious ceremonies that are part of funerary or mortuary cycles, including memorial potlatches, provided that:

(i) Prior to attempting to take fish, the person (or designee) or Tribal Government organizing the ceremony contacts the appropriate Federal fisheries manager to provide the nature of the ceremony, the parties and/or clans involved, the species and the number of fish to be taken, and the Federal waters from which the harvest will occur;

(ii) The taking does not violate recognized principles of fisheries conservation, and uses the methods and means allowable for the particular species published in the applicable Federal regulations (the Federal fisheries manager will establish the number, species, or place of taking if necessary for conservation purposes);

(iii) Each person who takes fish under this section must, as soon as practical, and not more than 15 days after the harvest, submit a written report to the appropriate Federal fisheries manager, specifying the harvester's name and address, the number and species of fish taken, and the date and locations of the taking; and

(iv) No permit is required for taking under this section; however, the harvester must be eligible to harvest the resource under Federal regulations.

(d) [ Reserved ]

(e) Fishing permits and reports. (1) You may take salmon only under the authority of a subsistence fishing permit, unless a permit is specifically not required in a particular area by the subsistence regulations in this part, or unless you are retaining salmon from your commercial catch consistent with paragraph (f) of this section.

(2) The U.S. Fish and Wildlife Service, Office of Subsistence Management may issue a permit to harvest fish for a qualifying cultural/educational program to an organization that has been granted a Federal subsistence permit for a similar event within the previous 5 years. A qualifying program must have instructors, enrolled students, minimum attendance requirements, and standards for successful completion of the course. Applications must be submitted to the Office of Subsistence Management 60 days prior to the earliest desired date of harvest. Permits will be issued for no more than 25 fish per culture/education camp. Appeal of a rejected request can be made to the Federal Subsistence Board. Application for an initial permit for a qualifying cultural/educational program, for a permit when the circumstances have changed significantly, when no permit has been issued within the previous 5 years, or when there is a request for harvest in excess of that provided in this paragraph (e)(2), will be considered by the Federal Subsistence Board.

(3) If a subsistence fishing permit is required by this section, the following permit conditions apply unless otherwise specified in this section:

(i) You may not take more fish for subsistence use than the limits set out in the permit;

(ii) You must obtain the permit prior to fishing;

(iii) You must have the permit in your possession and readily available for inspection while fishing or transporting subsistence-taken fish;

(iv) If specified on the permit, you must record, prior to leaving the harvest site, daily records of the catch, showing the number of fish taken by species, location and date of catch, and other such information as may be required for management or conservation purposes; and

(v) If the return of catch information necessary for management and conservation purposes is required by a fishing permit and you fail to comply with such reporting requirements, you are ineligible to receive a subsistence permit for that activity during the following calendar year, unless you demonstrate that failure to report was due to loss in the mail, accident, sickness, or other unavoidable circumstances. You must also return any tags or transmitters that have been attached to fish for management and conservation purposes.

(f) Relation to commercial fishing activities. (1) If you are a Federally-qualified subsistence user who also commercial fishes, you may retain fish for subsistence purposes from your lawfully-taken commercial catch.

(2) When participating in a commercial and subsistence fishery at the same time, you may not use an amount of combined fishing gear in excess of that allowed under the appropriate commercial fishing regulations.

(g) You may not possess, transport, give, receive, or barter subsistence-taken fish or their parts which have been taken contrary to Federal law or regulation or State law or regulation (unless superseded by regulations in this part).

(h) [ Reserved ]

(i) Fishery management area restrictions. (1) Kotzebue Area. The Kotzebue Area includes all waters of Alaska between the latitude of the westernmost tip of Point Hope and the latitude of the westernmost tip of Cape Prince of Wales, including those waters draining into the Chukchi Sea.

(i) You may take fish for subsistence purposes without a permit.

(ii) You may take salmon only by gillnets, beach seines, or a rod and reel.

(iii) In the Kotzebue District, you may take sheefish with gillnets that are not more than 50 fathoms in length, nor more than 12 meshes in depth, nor have a stretched-mesh size larger than 7 inches.

(iv) You may not obstruct more than one-half the width of a stream, creek, or slough with any gear used to take fish for subsistence uses, except from May 15 to July 15 and August 15 to October 31 when taking whitefish or pike in streams, creeks, or sloughs within the Kobuk River drainage and from May 15 to October 31 in the Selawik River drainage. Only one gillnet 100 feet or less in length with a stretched-mesh size from 2 1/2 to 4 1/2 inches may be used per site. You must check your net at least once in every 24-hour period.

(2) Norton Sound-Port Clarence Area. The Norton Sound-Port Clarence Area includes all waters of Alaska between the latitude of the westernmost tip of Cape Prince of Wales and the latitude of Point Romanof, including those waters of Alaska surrounding St. Lawrence Island and those waters draining into the Bering Sea.

(i) Unless otherwise restricted in this section, you may take fish at any time in the Port Clarence District.

(ii) In the Norton Sound District, you may take fish at any time except as follows:

(A) In Subdistricts 2 through 6, if you are a commercial fisherman, you may not fish for subsistence purposes during the weekly closures of the State commercial salmon fishing season, except that from July 15 through August 1, you may take salmon for subsistence purposes 7 days per week in the Unalakleet and Shaktoolik River drainages with gillnets which have a stretched-mesh size that does not exceed 4 1/2 inches, and with beach seines;

(B) In the Unalakleet River from June 1 through July 15, you may take salmon only from 8 a.m. Monday until 8 p.m. Saturday.

(iii) You may take salmon only by gillnets, beach seines, fishwheel, or a rod and reel.

(iv) You may take fish other than salmon by set gillnet, drift gillnet, beach seine, fish wheel, pot, long line, fyke net, jigging gear, spear, lead, or a rod and reel.

(v) In the Unalakleet River from June 1 through July 15, you may not operate more than 25 fathoms of gillnet in the aggregate nor may you operate an unanchored gillnet.

(vi) You must have a subsistence fishing permit for net fishing in all waters from Cape Douglas to Rocky Point.

(vii) Only one subsistence fishing permit will be issued to each household per year.

(3) Yukon-Northern Area. The Yukon-Northern Area includes all waters of Alaska between the latitude of Point Romanof and the latitude of the westernmost point of the Naskonat Peninsula, including those waters draining into the Bering Sea, and all waters of Alaska north of the latitude of the westernmost tip of Point Hope and west of 141° West longitude, including those waters draining into the Arctic Ocean and the Chukchi Sea.

(i) Unless otherwise restricted in this section, you may take fish in the Yukon-Northern Area at any time. You may subsistence fish for salmon with rod and reel in the Yukon River drainage 24 hours per day, 7 days per week, unless rod and reel are specifically restricted by this paragraph (i)(3) of this section.

(ii) For the Yukon River drainage, Federal subsistence fishing schedules, openings, closings, and fishing methods are the same as those issued for the subsistence taking of fish under Alaska Statutes (AS 16.05.060), unless superseded by a Federal Special Action.

(iii) In the following locations, you may take salmon during the open weekly fishing periods of the State commercial salmon fishing season and may not take them for 24 hours before the opening of the State commercial salmon fishing season:

(A) In District 4, excluding the Koyukuk River drainage;

(B) In Subdistricts 4-B and 4-C from June 15 through September 30, salmon may be taken from 6 p.m. Sunday until 6 p.m. Tuesday and from 6 p.m. Wednesday until 6 p.m. Friday;

(C) In District 6, excluding the Kantishna River drainage, salmon may be taken from 6 p.m. Friday until 6 p.m. Wednesday.

(iv) During any State commercial salmon fishing season closure of greater than five days in duration, you may not take salmon during the following periods in the following districts:

(A) In District 4, excluding the Koyukuk River drainage, salmon may not be taken from 6 p.m. Friday until 6 p.m. Sunday;

(B) In District 5, excluding the Tozitna River drainage and Subdistrict 5-D, salmon may not be taken from 6 p.m. Sunday until 6 p.m. Tuesday.

(v) Except as provided in this section, and except as may be provided by the terms of a subsistence fishing permit, you may take fish other than salmon at any time.

(vi) In Districts 1, 2, 3, and Subdistrict 4-A, excluding the Koyukuk and Innoko River drainages, you may not take salmon for subsistence purposes during the 24 hours immediately before the opening of the State commercial salmon fishing season.

(vii) In Districts 1, 2, and 3:

(A) After the opening of the State commercial salmon fishing season through July 15, you may not take salmon for subsistence for 18 hours immediately before, during, and for 12 hours after each State commercial salmon fishing period;

(B) After July 15, you may not take salmon for subsistence for 12 hours immediately before, during, and for 12 hours after each State commercial salmon fishing period.

(viii) In Subdistrict 4-A after the opening of the State commercial salmon fishing season, you may not take salmon for subsistence for 12 hours immediately before, during, and for 12 hours after each State commercial salmon fishing period; however, you may take king salmon during the State commercial fishing season, with drift gillnet gear only, from 6 p.m. Sunday until 6 p.m. Tuesday and from 6 p.m. Wednesday until 6 p.m. Friday.

(ix) You may not subsistence fish in the following drainages located north of the main Yukon River:

(A) Kanuti River upstream from a point 5 miles downstream of the State highway crossing;

(B) Bonanza Creek;

(C) Jim River including Prospect and Douglas Creeks.

(x) You may not subsistence fish in the Delta River.

(xi) In Beaver Creek downstream from the confluence of Moose Creek, a gillnet with mesh size not to exceed 3-inches stretch-measure may be used from June 15 to September 15. You may subsistence fish for all non-salmon species but may not target salmon during this time period (retention of salmon taken incidentally to non-salmon directed fisheries is allowed). From the mouth of Nome Creek downstream to the confluence of Moose Creek, only rod and reel may be used. From the mouth of Nome Creek downstream to the confluence of O'Brien Creek, the daily harvest and possession limit is 5 grayling; from the mouth of O'Brien Creek downstream to the confluence of Moose Creek, the daily harvest and possession limit is 10 grayling. The Nome Creek drainage of Beaver Creek is closed to subsistence fishing for grayling.

(xii) You may not subsistence fish in the Toklat River drainage from August 15 through May 15.

(xiii) You may take salmon only by gillnet, beach seine, fish wheel, or rod and reel, subject to the restrictions set forth in this section.

(xiv) In District 4, if you are a commercial fisherman, you may not take salmon for subsistence purposes during the State commercial salmon fishing season using gillnets with stretched-mesh larger than 6-inches after a date specified by ADF&G emergency order issued between July 10 and July 31.

(xv) In Districts 4, 5, and 6, you may not take salmon for subsistence purposes by drift gillnets, except as follows:

(A) In Subdistrict 4-A upstream from the mouth of Stink Creek, you may take king salmon by drift gillnets less than 150 feet in length from June 10 through July 14, and chum salmon by drift gillnets after August 2;

(B) In Subdistrict 4-A downstream from the mouth of Stink Creek, you may take king salmon by drift gillnets less than 150 feet in length from June 10 through July 14.

(xvi) Unless otherwise specified in this section, you may take fish other than salmon and halibut by set gillnet, drift gillnet, beach seine, fish wheel, long line, fyke net, dip net, jigging gear, spear, lead, or rod and reel, subject to the following restrictions, which also apply to subsistence salmon fishing:

(A) During the open weekly fishing periods of the State commercial salmon fishing season, if you are a commercial fisherman, you may not operate more than one type of gear at a time, for commercial, personal use, and subsistence purposes;

(B) You may not use an aggregate length of set gillnet in excess of 150 fathoms and each drift gillnet may not exceed 50 fathoms in length;

(C) In Districts 4, 5, and 6, you may not set subsistence fishing gear within 200 feet of other operating commercial, personal use, or subsistence fishing gear except that, at the site approximately 1 mile upstream from Ruby on the south bank of the Yukon River between ADF&G regulatory markers containing the area known locally as the “Slide,” you may set subsistence fishing gear within 200 feet of other operating commercial or subsistence fishing gear and in District 4, from Old Paradise Village upstream to a point 4 miles upstream from Anvik, there is no minimum distance requirement between fish wheels;

(D) During the State commercial salmon fishing season, within the Yukon River and the Tanana River below the confluence of the Wood River, you may use drift gillnets and fish wheels only during open subsistence salmon fishing periods;

(E) In Birch Creek, gillnet mesh size may not exceed 3-inches stretch-measure from June 15 through September 15.

(xvii) In District 4, from September 21 through May 15, you may use jigging gear from shore ice.

(xviii) You must possess a subsistence fishing permit for the following locations:

(A) For the Yukon River drainage from the mouth of Hess Creek to the mouth of the Dall River;

(B) For the Yukon River drainage from the upstream mouth of 22 Mile Slough to the U.S.-Canada border;

(C) Only for salmon in the Tanana River drainage above the mouth of the Wood River.

(xix) Only one subsistence fishing permit will be issued to each household per year.

(xx) In Districts 1, 2, and 3, you may not possess king salmon taken for subsistence purposes unless the dorsal fin has been removed immediately after landing.

(xxi) In the Yukon River drainage, chinook (king) salmon must be used primarily for human consumption and may not be targeted for dog food. Dried chinook salmon may not be used for dogfood anywhere in the Yukon River drainage. Whole fish unfit for human consumption (due to disease, deterioration, deformities), scraps, and small fish (16 inches or less) may be fed to dogs. Also, whole chinook salmon caught incidentally during a subsistence chum salmon fishery in the following time periods and locations may be fed to dogs:

(A) After July 10 in the Koyukuk River drainage;

(B) After August 10, in Subdistrict 5-D, upstream of Circle City.

(4) Kuskokwim Area. The Kuskokwim Area consists of all waters of Alaska between the latitude of the westernmost point of Naskonat Peninsula and the latitude of the southernmost tip of Cape Newenham, including the waters of Alaska surrounding Nunivak and St. Matthew Islands and those waters draining into the Bering Sea.

(i) Unless otherwise restricted in this section, you may take fish in the Kuskokwim Area at any time without a subsistence fishing permit.

(ii) For the Kuskokwim area, Federal subsistence fishing schedules, openings, closings, and fishing methods are the same as those issued for the subsistence taking of fish under Alaska Statutes (AS 16.05.060), unless superseded by a Federal Special Action.

(iii) In District 1 and in those waters of the Kuskokwim River between Districts 1 and 2, excluding the Kuskokuak Slough, you may not take salmon for 16 hours before, during, and for 6 hours after, each State open commercial salmon fishing period for District 1.

(iv) In District 1, Kuskokuak Slough, from June 1 through July 31 only, you may not take salmon for 16 hours before and during each State open commercial salmon fishing period in the district.

(v) In Districts 4 and 5, from June 1 through September 8, you may not take salmon for 16 hours before, during, and 6 hours after each State open commercial salmon fishing period in each district.

(vi) In District 2, and anywhere in tributaries that flow into the Kuskokwim River within that district, from June 1 through September 8 you may not take salmon by net gear or fishwheel for 16 hours before, during, and 6 hours after each open commercial salmon fishing period in the district. You may subsistence fish for salmon with rod and reel 24 hours per day, 7 days per week, unless rod and reel are specifically restricted by this paragraph (i)(4) of this section.

(vii) You may not take subsistence fish by nets in the Goodnews River east of a line between ADF&G regulatory markers placed near the mouth of the Ufigag River and an ADF&G regulatory marker placed near the mouth of the Tunulik River 16 hours before, during, and 6 hours after each State open commercial salmon fishing period.

(viii) You may not take subsistence fish by nets in the Kanektok River upstream of ADF&G regulatory markers placed near the mouth 16 hours before, during, and 6 hours after each State open commercial salmon fishing period.

(ix) You may not take subsistence fish by nets in the Arolik River upstream of ADF&G regulatory markers placed near the mouth 16 hours before, during, and 6 hours after each State open commercial salmon fishing period.

(x) You may only take salmon by gillnet, beach seine, fish wheel, or rod and reel subject to the restrictions set out in this section, except that you may also take salmon by spear in the Holitna, Kanektok, and Arolik River drainages, and in the drainage of Goodnews Bay.

(xi) You may not use an aggregate length of set gillnets or drift gillnets in excess of 50 fathoms for taking salmon.

(xii) You may take fish other than salmon by set gillnet, drift gillnet, beach seine, fish wheel, pot, long line, fyke net, dip net, jigging gear, spear, lead, handline, or rod and reel.

(xiii) You must attach to the bank each subsistence gillnet operated in tributaries of the Kuskokwim River and fish it substantially perpendicular to the bank and in a substantially straight line.

(xiv) Within a tributary to the Kuskokwim River in that portion of the Kuskokwim River drainage from the north end of Eek Island upstream to the mouth of the Kolmakoff River, you may not set or operate any part of a set gillnet within 150 feet of any part of another set gillnet.

(xv) The maximum depth of gillnets is as follows:

(A) Gillnets with 6-inch or smaller stretched-mesh may not be more than 45 meshes in depth;

(B) Gillnets with greater than 6-inch stretched-mesh may not be more than 35 meshes in depth.

(xvi) You may take halibut only by a single hand-held line with no more than two hooks attached to it.

(xvii) You may not use subsistence set and drift gillnets exceeding 15 fathoms in length in Whitefish Lake in the Ophir Creek drainage. You may not operate more than one subsistence set or drift gillnet at a time in Whitefish Lake in the Ophir Creek drainage. You must check the net at least once every 24 hours.

(xviii) Rainbow trout may be taken by only residents of Goodnews Bay, Platinum, Quinhagak, Eek, Kwethluk, Akiachak, and Akiak. The following restrictions apply:

(A) You may take rainbow trout only by the use of gillnets, dip nets, fyke nets, handline, spear, rod and reel, or jigging through the ice;

(B) You may not use gillnets, dip nets, or fyke nets for targeting rainbow trout from March 15 through June 15;

(C) If you take rainbow trout incidentally in other subsistence net fisheries and through the ice, you may retain them for subsistence purposes;

(D) There are no harvest limits with handline, spear, rod and reel, or jigging.

(5) Bristol Bay Area. The Bristol Bay Area includes all waters of Bristol Bay, including drainages enclosed by a line from Cape Newenham to Cape Menshikof.

(i) Unless restricted in this section, or unless under the terms of a subsistence fishing permit, you may take fish at any time in the Bristol Bay area.

(ii) In all State commercial salmon districts, from May 1 through May 31 and October 1 through October 31, you may subsistence fish for salmon only from 9 a.m. Monday until 9 a.m. Friday. From June 1 through September 30, within the waters of a commercial salmon district, you may take salmon only during State open commercial salmon fishing periods.

(iii) In the Egegik River from 9 a.m. June 23 through 9 a.m. July 17, you may take salmon only from 9 a.m. Tuesday to 9 a.m. Wednesday and 9 a.m. Saturday to 9 a.m. Sunday.

(iv) You may not take fish from waters within 300 feet of a stream mouth used by salmon.

(v) You may not subsistence fish with nets in the Tazimina River and within one-fourth mile of the terminus of those waters during the period from September 1 through June 14.

(vi) Within any district, you may take salmon, herring, and capelin only by drift and set gillnets.

(vii) Outside the boundaries of any district, you may take salmon only by set gillnet, except that you may also take salmon by spear in the Togiak River, excluding its tributaries.

(viii) The maximum lengths for set gillnets used to take salmon are as follows:

(A) You may not use set gillnets exceeding 10 fathoms in length in the Egegik River;

(B) In the remaining waters of the area, you may not use set gillnets exceeding 25 fathoms in length.

(ix) You may not operate any part of a set gillnet within 300 feet of any part of another set gillnet.

(x) You must stake and buoy each set gillnet. Instead of having the identifying information on a keg or buoy attached to the gillnet, you may plainly and legibly inscribe your first initial, last name, and subsistence permit number on a sign at or near the set gillnet.

(xi) You may not operate or assist in operating subsistence salmon net gear while simultaneously operating or assisting in operating commercial salmon net gear.

(xii) During State closed commercial herring fishing periods, you may not use gillnets exceeding 25 fathoms in length for the subsistence taking of herring or capelin.

(xiii) You may take fish other than salmon, rainbow trout, herring, capelin, and halibut by gear listed in this part unless restricted under the terms of a subsistence fishing permit.

(xiv) You may take salmon and char only under authority of a subsistence fishing permit. You may take rainbow trout only under authority of a Federal subsistence fishing permit; permit conditions and systems to receive special protection will be determined by the local Federal fisheries manager in consultation with ADF&G and local users.

(xv) Only one subsistence fishing permit for salmon, one for char, and one for rainbow trout may be issued to each household per year.

(xvi) In the Togiak River section and the Togiak River drainage, you may not possess coho salmon taken under the authority of a subsistence fishing permit unless both lobes of the caudal fin (tail) or the dorsal fin have been removed.

(xvii) You may take rainbow trout only by rod and reel or jigging gear. Rainbow trout daily harvest and possession limits are 2 per day/2 in possession with no size limit from April 10 through October 31 and 5 per day/5 in possession with no size limit from November 1 through April 9.

(xviii) If you take rainbow trout incidentally in other subsistence net fisheries, or through the ice, you may retain them for subsistence purposes.

(6) Aleutian Islands Area. The Aleutian Islands Area includes all waters of Alaska west of the longitude of the tip of Cape Sarichef, east of 172° East longitude, and south of 54°36′ North latitude.

(i) You may take fish other than salmon, rainbow/steelhead trout, or char at any time unless restricted under the terms of a subsistence fishing permit. If you take rainbow/steelhead trout incidentally in other subsistence net fisheries, you may retain them for subsistence purposes.

(ii) In the Unalaska District, you may take salmon for subsistence purposes from 6 a.m. until 9 p.m. from January 1 through December 31, except as may be specified on a subsistence fishing permit.

(iii) In the Adak, Akutan, Atka-Amlia, and Umnak Districts, you may take salmon at any time.

(iv) You may not subsistence fish for salmon in the following waters:

(A) The waters of Unalaska Lake, its tributaries and outlet stream;

(B) The waters of Summers and Morris Lakes and their tributaries and outlet streams;

(C) All streams supporting anadromous fish runs that flow into Unalaska Bay south of a line from the northern tip of Cape Cheerful to the northern tip of Kalekta Point;

(D) Waters of McLees Lake and its tributaries and outlet stream;

(E) All freshwater on Adak Island and Kagalaska Island in the Adak District.

(v) You may take salmon by seine and gillnet, or with gear specified on a subsistence fishing permit.

(vi) In the Unalaska District, if you fish with a net, you must be physically present at the net at all times when the net is being used.

(vii) You may take fish other than salmon by gear listed in this part unless restricted under the terms of a subsistence fishing permit.

(viii) You may take salmon, trout, and char only under the terms of a subsistence fishing permit, except that you do not need a permit in the Akutan, Umnak, and Atka-Amlia Islands Districts.

(ix) You may take no more than 250 salmon for subsistence purposes unless otherwise specified on the subsistence fishing permit, except that in the Unalaska and Adak Districts, you may take no more than 25 salmon plus an additional 25 salmon for each member of your household listed on the permit. You may obtain an additional permit.

(x) You must keep a record on the reverse side of the permit of subsistence-caught fish. You must complete the record immediately upon taking subsistence-caught fish and must return it no later than October 31.

(xi) The daily harvest limit for halibut is two fish, and the possession limit is two daily harvest limits. You may not possess sport-taken and subsistence-taken halibut on the same day.

(7) Alaska Peninsula Area. The Alaska Peninsula Area includes all Pacific Ocean waters of Alaska between a line extending southeast (135°) from the tip of Kupreanof Point and the longitude of the tip of Cape Sarichef, and all Bering Sea waters of Alaska east of the longitude of the tip of Cape Sarichef and south of the latitude of the tip of Cape Menshikof.

(i) You may take fish, other than salmon, rainbow/steelhead trout, or char, at any time unless restricted under the terms of a subsistence fishing permit. If you take rainbow/steelhead trout incidentally in other subsistence net fisheries or through the ice, you may retain them for subsistence purposes.

(ii) You may take salmon, trout, and char only under the authority of a subsistence fishing permit.

(iii) You must keep a record on the reverse side of the permit of subsistence-caught fish. You must complete the record immediately upon taking subsistence-caught fish and must return it no later than October 31.

(iv) You may take salmon at any time except within 24 hours before and within 12 hours following each State open weekly commercial salmon fishing period within a 50-mile radius of the area open to commercial salmon fishing, or as may be specified on a subsistence fishing permit.

(v) You may not subsistence fish for salmon in the following waters:

(A) Russell Creek and Nurse Lagoon and within 500 yards outside the mouth of Nurse Lagoon;

(B) Trout Creek and within 500 yards outside its mouth.

(vi) You may take salmon by seine, gillnet, rod and reel, or with gear specified on a subsistence fishing permit.

(vii) You may take fish other than salmon by gear listed in this part unless restricted under the terms of a subsistence fishing permit.

(viii) You may not use a set gillnet exceeding 100 fathoms in length.

(ix) You may take halibut for subsistence purposes only by a single handheld line with no more than two hooks attached.

(x) You may take no more than 250 salmon for subsistence purposes unless otherwise specified on your subsistence fishing permit.

(xi) The daily harvest limit for halibut is two fish and the possession limit is two daily harvest limits. You may not possess sport-taken and subsistence-taken halibut on the same day.

(8) Chignik Area. The Chignik Area includes all waters of Alaska on the south side of the Alaska Peninsula enclosed by 156°20.22′ West longitude (the longitude of the southern entrance to Imuya Bay near Kilokak Rocks) and a line extending southeast (135°) from the tip of Kupreanof Point.

(i) You may take fish other than salmon, rainbow/steelhead trout, or char at any time, except as may be specified by a subsistence fishing permit. If you take rainbow/steelhead trout incidentally in other subsistence net fisheries, you may retain them for subsistence purposes.

(ii) You may not take salmon in the Chignik River, upstream from the ADF&G weir site or counting tower, in Black Lake, or any tributary to Black and Chignik Lakes.

(iii) You may take salmon, trout, and char only under the authority of a subsistence fishing permit.

(iv) You must keep a record on your permit of subsistence-caught fish. You must complete the record immediately upon taking subsistence-caught fish and must return it no later than October 31.

(v) If you hold a commercial fishing license, you may not subsistence fish for salmon from 48 hours before the first State commercial salmon fishing opening in the Chignik Area through September 30.

(vi) You may take salmon by seines, gillnets, rod and reel, or with gear specified on a subsistence fishing permit, except that in Chignik Lake you may not use purse seines.

(vii) You may take fish other than salmon by gear listed in this part unless restricted under the terms of a subsistence fishing permit.

(viii) You may take halibut for subsistence purposes only by a single handheld line with no more than two hooks attached.

(ix) You may take no more than 250 salmon for subsistence purposes unless otherwise specified on the subsistence fishing permit.

(x) The daily harvest limit for halibut is two fish, and the possession limit is two daily harvest limits. You may not possess sport-taken and subsistence-taken halibut on the same day.

(9) Kodiak Area. The Kodiak Area includes all waters of Alaska south of a line extending east from Cape Douglas (58°51.10′ North latitude), west of 150° West longitude, north of 55°30.00′ North latitude; and east of the longitude of the southern entrance of Imuya Bay near Kilokak Rocks (156°20.22′ West longitude).

(i) You may take fish other than salmon, rainbow/steelhead trout, char, bottomfish, or herring at any time unless restricted by the terms of a subsistence fishing permit. If you take rainbow/steelhead trout incidentally in other subsistence net fisheries, you may retain them for subsistence purposes.

(ii) You may take salmon for subsistence purposes 24 hours a day from January 1 through December 31, with the following exceptions:

(A) From June 1 through September 15, you may not use salmon seine vessels to take subsistence salmon for 24 hours before, during, and for 24 hours after any State open commercial salmon fishing period. The use of skiffs from any type of vessel is allowed;

(B) From June 1 through September 15, you may use purse seine vessels to take salmon only with gillnets, and you may have no other type of salmon gear on board the vessel.

(iii) You may not subsistence fish for salmon in the following locations:

(A) Womens Bay closed waters—all waters inside a line from the tip of the Nyman Peninsula (57°43.23′ North latitude, 152°31.51′ West longitude), to the northeastern tip of Mary's Island (57°42.40′ North latitude, 152°32.00′ West longitude), to the southeastern shore of Womens Bay at 57°41.95′ North latitude, 152°31.50′ West longitude;

(B) Buskin River closed waters—all waters inside of a line running from a marker on the bluff north of the mouth of the Buskin River at approximately 57°45.80′ North latitude, 152°28.38′ West longitude, to a point offshore at 57°45.35′ North latitude, 152°28.15′ West longitude, to a marker located onshore south of the river mouth at approximately 57°45.15′ North latitude, 152°28.65′ West longitude;

(C) All waters closed to commercial salmon fishing within 100 yards of the terminus of Selief Bay Creek;

(D) In Afognak Bay north and west of a line from the tip of Last Point to the tip of River Mouth Point;

(E) From August 15 through September 30, all waters 500 yards seaward of the terminus of Little Kitoi Creek;

(F) All freshwater systems of Afognak Island.

(iv) You must have a subsistence fishing permit for taking salmon, trout, and char for subsistence purposes. You must have a subsistence fishing permit for taking herring and bottomfish for subsistence purposes during the State commercial herring sac roe season from April 15 through June 30.

(v) With a subsistence salmon fishing permit you may take 25 salmon plus an additional 25 salmon for each member of your household whose names are listed on the permit. You may obtain an additional permit if you can show that more fish are needed.

(vi) You must record on your subsistence permit the number of subsistence fish taken. You must complete the record immediately upon landing subsistence-caught fish, and must return it by February 1 of the year following the year the permit was issued.

(vii) You may take fish other than salmon and halibut by gear listed in this part unless restricted under the terms of a subsistence fishing permit.

(viii) You may take salmon only by gillnet, rod and reel, or seine.

(ix) You must be physically present at the net when the net is being fished.

(x) You may take halibut only by a single hand-held line with not more than two hooks attached to it.

(xi) The daily harvest limit for halibut is two fish, and the possession limit is two daily harvest limits. You may not possess sport-taken and subsistence-taken halibut on the same day.

(10) Cook Inlet Area. The Cook Inlet Area includes all waters of Alaska enclosed by a line extending east from Cape Douglas (58°51′06″ North latitude) and a line extending south from Cape Fairfield (148°50′15″ West longitude).

(i) Unless restricted in this section, or unless restricted under the terms of a subsistence fishing permit, you may take fish at any time in the Cook Inlet Area. If you take rainbow/steelhead trout incidentally in other subsistence net fisheries, you may retain them for subsistence purposes.

(ii) You may not take grayling or burbot for subsistence purposes.

(iii) You may take fish by gear listed in this part unless restricted in this section or under the terms of a subsistence fishing permit (as may be modified by this section).

(iv) You may only take salmon, Dolly Varden, trout, and char under authority of a Federal subsistence fishing permit. Seasons, harvest and possession limits, and methods and means for take are the same as for the taking of those species under Alaska sport fishing regulations (5 AAC 56).

(v) You may only take smelt with dip nets or gillnets in fresh water from April 1 through June 15. You may not use a gillnet exceeding 20 feet in length and 2 inch stretched-mesh. You must attend the net at all times when it is being used. There are no harvest or possession limits for smelt.

(vi) Gillnets may not be used in freshwater, except for the taking of whitefish in the Tyone River drainage or for the taking of smelt.

(11) Prince William Sound Area. The Prince William Sound Area includes all waters and drainages of Alaska between the longitude of Cape Fairfield and the longitude of Cape Suckling.

(i) You may take fish, other than rainbow/steelhead trout, in the Prince William Sound Area only under authority of a subsistence fishing permit, except that a permit is not required to take eulachon.

(ii) You may take fish by gear listed in paragraph (c)(1) of this part unless restricted in this section or under the terms of a subsistence fishing permit.

(iii) If you catch rainbow/steelhead trout incidentally in other subsistence net fisheries, you may retain them for subsistence purposes, unless restricted in this section.

(iv) In the Copper River drainage upstream from Haley Creek, you may take salmon only in the waters of the Upper Copper River District, or in the vicinity of the Native Village of Batzulnetas. You may accumulate harvest limits of salmon authorized for the Copper River drainage upstream from Haley Creek with harvest limits for salmon authorized under State of Alaska sport fishing regulations.

(v) In the Upper Copper River District, you may take salmon only by fish wheels, rod and reel, or dip nets.

(vi) Rainbow/steelhead trout and other freshwater fish caught incidentally to salmon by fish wheel in the Upper Copper River District may be retained.

(vii) Freshwater fish other than rainbow/steelhead trout caught incidentally to salmon by dip net in the Upper Copper River District may be retained. Rainbow/steelhead trout caught incidentally to salmon by dip net in the Upper Copper River District must be released unharmed to the water.

(viii) You may not possess salmon taken under the authority of an Upper Copper River District subsistence fishing permit, or rainbow/steelhead trout caught incidentally to salmon by fishwheel, unless the anal (ventral) fin has been immediately removed from the fish. You must immediately record all retained fish on the subsistence permit. Immediately means prior to concealing the fish from plain view or transporting the fish more than 50 feet from where the fish was removed from the water.

(ix) You may take salmon in the Upper Copper River District only from May 15 through September 30.

(x) The total annual harvest limit for subsistence salmon fishing permits in combination for the Glennallen Subdistrict and the Chitina Subdistrict is as follows:

(A) For a household with 1 person, 30 salmon, of which no more than 5 may be chinook salmon taken by dip net and no more than 5 chinook taken by rod and reel;

(B) For a household with 2 persons, 60 salmon, of which no more than 5 may be chinook salmon taken by dip net and no more than 5 chinook taken by rod and reel, plus 10 salmon for each additional person in a household over 2 persons, except that the household's limit for chinook salmon taken by dip net or rod and reel does not increase;

(C) Upon request, permits for additional salmon will be issued for no more than a total of 200 salmon for a permit issued to a household with 1 person, of which no more than 5 may be chinook salmon taken by dip net and no more than 5 chinook taken by rod and reel, or no more than a total of 500 salmon for a permit issued to a household with 2 or more persons, of which no more than 5 may be chinook salmon taken by dip net and no more than 5 chinook taken by rod and reel.

(xi) The following apply to Upper Copper River District subsistence salmon fishing permits:

(A) Only one subsistence fishing permit per subdistrict will be issued to each household per year. If a household has been issued permits for both subdistricts in the same year, both permits must be in your possession and readily available for inspection while fishing or transporting subsistence-taken fish in either subdistrict. A qualified household may also be issued a Batzulnetas salmon fishery permit in the same year;

(B) Multiple types of gear may be specified on a permit, although only one unit of gear may be operated at any one time;

(C) You must return your permit no later than October 31 of the year in which the permit is issued, or you may be denied a permit for the following year;

(D) A fish wheel may be operated only by one permit holder at one time; that permit holder must have the fish wheel marked as required by Section—.27(i)(11) and during fishing operations;

(E) Only the permit holder and the authorized member of the household listed on the subsistence permit may take salmon;

(F) You must personally operate your fish wheel or dip net;

(G) You may not loan or transfer a subsistence fish wheel or dip net permit except as permitted.

(xii) If you are a fishwheel owner:

(A) You must register your fish wheel with ADF&G or the Federal Subsistence Board;

(B) Your registration number and a wood, metal, or plastic plate at least 12 inches high by 12 inches wide bearing either your name and address, or your Alaska driver's license number, or your Alaska State identification card number in letters and numerals at least 1 inch high, must be permanently affixed and plainly visible on the fish wheel when the fish wheel is in the water;

(C) Only the current year's registration number may be affixed to the fish wheel; you must remove any other registration number from the fish wheel;

(D) You are responsible for the fish wheel; you must remove the fish wheel from the water at the end of the permit period;

(E) You may not rent, lease, or otherwise use your fish wheel used for subsistence fishing for personal gain. (xiii) If you are operating a fishwheel:

(A) You may operate only one fish wheel at any one time;

(B) You may not set or operate a fish wheel within 75 feet of another fish wheel;

(C) No fish wheel may have more than two baskets;

(D) If you are a permittee other than the owner, you must attach an additional wood, metal, or plastic plate at least 12 inches high by 12 inches wide, bearing your name and address in letters and numerals at least 1 inch high, to the fish wheel so that the name and address are plainly visible.

(xiv) A subsistence fishing permit may be issued to a village council, or other similarly qualified organization whose members operate fish wheels for subsistence purposes in the Upper Copper River District, to operate fish wheels on behalf of members of its village or organization. The following additional provisions apply to subsistence fishing permits issued under this paragraph (i)(11)(xiv):

(A) The permit will list all households and household members for whom the fish wheel is being operated. The permit will identify a person who will be responsible for each fish wheel in a similar manner to a fish wheel owner as described in paragraph (i)(11)(xii) of this section;

(B) The allowable harvest may not exceed the combined seasonal limits for the households listed on the permit; the permittee will notify the ADF&G or Federal Subsistence Board when households are added to the list, and the seasonal limit may be adjusted accordingly;

(C) Members of households listed on a permit issued to a village council or other similarly qualified organization are not eligible for a separate household subsistence fishing permit for the Upper Copper River District;

(D) The permit will include provisions for recording daily catches for each fish wheel; location and number of fish wheels; full legal name of the individual responsible for the lawful operation of each fish wheel as described in paragraph (i)(11)(xii) of this section; and other information determined to be necessary for effective resource management.

(xv) You may take salmon in the vicinity of the former Native village of Batzulnetas only under the authority of a Batzulnetas subsistence salmon fishing permit available from the National Park Service under the following conditions:

(A) You may take salmon only in those waters of the Copper River between National Park Service regulatory markers located near the mouth of Tanada Creek and approximately one-half mile downstream from that mouth and in Tanada Creek between National Park Service regulatory markers identifying the open waters of the creek;

(B) You may use only fish wheels, dip nets, and rod and reel on the Copper River and only dip nets, spears, and rod and reel in Tanada Creek;

(C) You may take salmon only from May 15 through September 30 or until the season is closed by special action;

(D) You may retain chinook salmon taken in a fishwheel in the Copper River. You may not take chinook salmon in Tanada Creek;

(E) You must return the permit to the National Park Service no later than October 15.

(xvi) You may take pink salmon for subsistence purposes from freshwater with a dip net from May 15 until September 30, 7 days per week, with no harvest or possession limits in the following areas:

(A) Green Island, Knight Island, Chenega Island, Bainbridge Island, Evans Island, Elrington Island, Latouche Island, and adjacent islands, and the mainland waters from the outer point of Granite Bay located in Knight Island Passage to Cape Fairfield;

(B) Waters north of a line from Porcupine Point to Granite Point, and south of a line from Point Lowe to Tongue Point.

(12) Yakutat Area. The Yakutat Area includes all waters and drainages of Alaska between the longitude of Cape Suckling and the longitude of Cape Fairweather.

(i) Unless restricted in this section or unless restricted under the terms of a subsistence fishing permit, you may take fish at any time in the Yakutat Area.

(ii) You may not take salmon during the period commencing 48 hours before a State opening of commercial salmon net fishing season until 48 hours after the closure. This applies to each river or bay fishery individually.

(iii) When the length of the weekly State commercial salmon net fishing period exceeds two days in any Yakutat Area salmon net fishery, the subsistence fishing period is from 6 a.m. to 6 p.m. on Saturday in that location.

(iv) You may take salmon, trout (other than steelhead), and char only under authority of a subsistence fishing permit. You may only take steelhead trout in the Situk and Ahrnklin Rivers and only under authority of a Federal subsistence fishing permit.

(v) If you take salmon, trout, or char incidentally by gear operated under the terms of a subsistence permit for salmon, you may retain them for subsistence purposes. You must report any salmon, trout, or char taken in this manner on your permit calendar.

(vi) You may take fish by gear listed in this part unless restricted in this section or under the terms of a subsistence fishing permit.

(vii) In the Situk River, each subsistence salmon fishing permit holder shall attend his or her gill net at all times when it is being used to take salmon.

(viii) You may block up to two-thirds of a stream with a gillnet or seine used for subsistence fishing.

(ix) You must remove the dorsal fin from subsistence-caught salmon when taken.

(x) You may not possess subsistence-taken and sport-taken salmon on the same day.

(xi) You must possess a subsistence fishing permit to take Dolly Varden. The daily harvest and possession limit is 10 Dolly Varden of any size.

(13) Southeastern Alaska Area. The Southeastern Alaska Area includes all waters between a line projecting southwest from the westernmost tip of Cape Fairweather and Dixon Entrance.

(i) Unless restricted in this section or under the terms of a subsistence fishing permit, you may take fish other than salmon, rainbow/steelhead trout, and char in the Southeastern Alaska Area at any time.

(ii) From July 7 through July 31, you may take sockeye salmon in the waters of the Klawock River and Klawock Lake only from 8 a.m. Monday until 5 p.m. Friday.

(iii) You must possess a subsistence fishing permit to take salmon, trout, or char. You must possess a subsistence fishing permit to take steelhead in Hamilton Bay and Kadake Bay Rivers. You must possess a subsistence fishing permit to take eulachon from any freshwater stream flowing into fishing sections 1-C or 1-D.

(iv) You may take steelhead trout on Prince of Wales and Kosciusko Islands under the terms of Federal subsistence fishing permits. You must obtain a separate permit for the winter and spring seasons.

(A) The winter season is December 1 through the last day of February, with a harvest limit of 2 fish per household. You may use only a dip net, spear, or rod and reel with artificial lure or fly. You may not use bait. The winter season may be closed when the harvest level cap of 100 steelhead for Prince of Wales/Kosciusko Islands has been reached. You must return your winter season permit within 15 days of the close of the season and before receiving another permit for a Prince of Wales/Kosciusko steelhead subsistence fishery. The permit conditions and systems to receive special protection will be determined by the local Federal fisheries manager in consultation with ADF&G.

(B) The spring season is March 1 through May 31, with a harvest limit of 5 fish per household. You may use only a dip net, spear, or rod and reel with artificial lure or fly. You may not use bait. The spring season may be closed prior to May 31 if the harvest quota of 600 fish minus the number of steelhead harvested in the winter subsistence steelhead fishery is reached. You must return your spring season permit within 15 days of the close of the season and before receiving another permit for a Prince of Wales/Kosciusko steelhead subsistence fishery. The permit conditions and systems to receive special protection will be determined by the local Federal fisheries manager in consultation with ADF&G.

(v) In the Southeastern Alaska Area, except for sections 3A, 3B, and 3C and the Stikine and Taku Rivers, you may take coho salmon under the terms of a subsistence fishing permit. There is no closed season. The daily harvest limit is 20 coho salmon per household, and the annual limit is 40 coho salmon per household. Only dipnets, spears, gaffs, and rod and reel may be used. Bait may only be used from September 15 through November 15. You may not retain incidentally caught trout and sockeye salmon unless taken by gaff or spear.

(vi) You may take coho salmon in Subdistricts 3(A), (B), and (C) only under the terms of a Federal subsistence fishing permit. There is no closed season. The daily harvest limit is 20 fish per household. Only spears, dip net, and rod and reel may be used. Bait may be used only from September 15 through November 15.

(vii) If you take salmon, trout, or char incidentally with gear operated under terms of a subsistence permit for other salmon, they may be kept for subsistence purposes. You must report any salmon, trout, or char taken in this manner on your permit calendar.

(viii) No permits for the use of nets will be issued for the salmon streams flowing across or adjacent to the road systems within the city limits of Petersburg, Wrangell, and Sitka.

(ix) You shall immediately remove the pelvic fins of all salmon when taken.

(x) You may not possess subsistence-taken and sport-taken salmon on the same day.

(xi) For the Salmon Bay Lake system, the daily harvest and season limit per household is 30 sockeye salmon.

(xii) For Virginia Lake (Mill Creek), the daily harvest limit per household is 20 sockeye salmon, and the season limit per household is 40 sockeye salmon.

(xiii) For Thoms Creek, the daily harvest limit per household is 20 sockeye salmon, and the season limit per household is 40 sockeye salmon.

(xiv) The Sarkar River system above the bridge is closed to the use of all nets by both Federally-qualified and non-Federally qualified users.

(xv) Only Federally-qualified subsistence users may harvest sockeye salmon in streams draining into Falls Lake Bay, Gut Bay, or Pillar Bay. In the Falls Lake Bay and Gut Bay drainages, the possession limit is 10 sockeye salmon per household. In the Pillar Bay drainage, the individual possession limit is 15 sockeye salmon with a household possession limit of 25 sockeye salmon.

(xvi) In Baranof Lake, Florence Lake, Hasselborg Lake and River, Mirror Lake, Virginia Lake, and Wilson Lake, in addition to the requirement for a Federal subsistence fishing permit, the following restrictions for the harvest of Dolly Varden, cutthroat, and rainbow trout apply:

(A) The daily harvest and possession limit is 10 Dolly Varden of any size;

(B) The daily harvest and possession limit is six cutthroat or rainbow trout in combination. You may only retain fish between 11″ and 22″. You may only use a rod and reel without bait.

(xvii) In all waters, other than those identified in paragraph (i)(13)(xvi) of this section, in addition to the requirement for a subsistence fishing permit, you may harvest Dolly Varden and cutthroat and rainbow trout in accordance with the seasons and harvest limits delineated in the Alaska Administrative Code, 5 AAC 47. You may only use a rod and reel without bait unless the use of bait is specifically permitted in 5 AAC 47.

Regulated Entities. Categories and entities potentially regulated by this action include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine the applicability criteria in § 63.2334 of the final rule. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Docket. We have established an official public docket for this action under Docket ID Nos. A-98-13 and OAR-2003-0138. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. All items may not be listed under both docket numbers, so interested parties should inspect both docket numbers to ensure that they have received all materials relevant to the final rule. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Office of Air and Radiation Docket and Information Center (Air Docket) in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Avenue NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744. The telephone number for the Air Docket is (202) 566-1742. A reasonable fee may be charged for copying docket materials.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, to access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket identification number. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility in the above paragraph entitled Docket.

WorldWide Web (WWW). In addition to being available in the docket, an electronic copy of today's final NESHAP will also be available on the WWW through the Technology Transfer Network (TTN). Following the Administrator's signature, a copy of the NESHAP will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN HELP line at (919) 541-5384.

Judicial Review. Under section 307(b)(1) of the CAA, judicial review of the final NESHAP is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by April 5, 2004. Under section 307(d)(7)(B) of the CAA, only an objection to a rule or procedure raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements established by the final rule may not be challenged separately in any civil or criminal proceeding brought to enforce these requirements.

Outline. The information presented in this preamble is organized as follows:

The purpose of the final NESHAP is to protect the public health and the environment by reducing emissions of HAP from operations that distribute organic liquids.

Section 112 of the CAA requires us to list categories and subcategories of major sources and area sources of HAP and to establish NESHAP for the listed source categories and subcategories. Organic liquids distribution (non-gasoline) (major sources only) was included on the initial list of source categories published on July 16, 1992 (57 FR 31576). Major sources of HAP are those that have the potential to emit 10 tpy or more of any one HAP or 25 tpy or more of any combination of HAP.

Section 112 (d)(2) of the CAA requires NESHAP to reflect the maximum degree of reduction in emissions of HAP that is achievable. This level of control is commonly referred to as the MACT.

The MACT floor is the minimum control level allowed for NESHAP. This concept appears in section 112(d)(3) of the CAA. For new sources, the MACT floor cannot be less stringent than the HAP emissions control that is achieved in practice by the best-controlled similar source. The MACT standards for existing sources can be less stringent than standards for new sources, but they cannot be less stringent than the average HAP emissions limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or by the best-performing five sources for categories or subcategories with fewer than 30 sources).

In developing MACT, we also consider control options that are more stringent than the floor. We may establish standards more stringent than the floor based on the consideration of cost of achieving the HAP emissions reductions, any nonair quality health and environmental impacts, and energy requirements, under CAA section 112(d)(2).

The NESHAP for organic liquids distribution were proposed on April 2, 2002 (67 FR 15674). This action announces EPA's final decisions on the NESHAP.

The OLD (non-gasoline) source category involves the distribution of organic liquids into, out of, or within a plant site. The distribution activities include the storage of organic liquids in storage tanks not subject to other 40 CFR part 63 standards and transfers into or out of the tanks from or to cargo tanks, containers, and pipelines. Organic liquids are those non-crude oil liquids that contain at least 5 percent by weight of any combination of the 98 HAP listed in Table 1 to subpart EEEE of part 63, and have a total liquid vapor pressure of 0.7 kilopascals (0.1 pound per square inch absolute (psia)) or greater, and all crude oils downstream of the first point of custody transfer. For the purposes of the OLD NESHAP, organic liquids do not include gasoline, fuels that are consumed or dispensed on the plant site, kerosene (No. 1 distillate oil), diesel (No. 2 distillate oil), asphalt, and heavier distillate oils and fuel oils, hazardous waste, wastewater, or ballast water. Emission sources controlled by the OLD NESHAP are storage tanks, transfer operations, transport vehicles while being loaded, and equipment leak components (valves, pumps, and sampling connections) that have the potential to leak.

The types of organic liquids and emission sources covered by the OLD NESHAP are frequently found at many types of facilities that are already subject to other NESHAP. If an emission source is in organic liquid distribution service and is already subject to an existing 40 CFR part 63 NESHAP, then that emission source is not subject to the OLD NESHAP.

Today's final rule applies to the OLD source category. We did not develop any subcategories. However, OLD operations that do not meet the specified applicability criteria for relevant emission limitations and work practice standards contained in the final rule are not required to apply emission reduction measures:

The primary sources of HAP emissions from the OLD source category are the loss of HAP during the filling of storage tanks with organic liquids, storage of organic liquid in storage tanks, vapor displacement during the loading of organic liquids into transport vehicles and containers, and vapor leakage from transport vehicles at transfer racks during loadings of these vehicles. The HAP emissions are also the result of leaks from equipment such as valves, pumps, and sampling connection systems. Total baseline HAP emissions from the OLD source category are approximately 5,900 tpy.

We have defined the affected source broadly to be the collection of activities and equipment used to distribute organic liquids into, out of, or within a major source plant site. This affected source is termed the “organic liquids distribution (OLD) operation.” Four types of emission sources are included in the affected source: storage tanks storing organic liquids; transfer racks at which organic liquids are loaded into or unloaded out of transport vehicles and/or containers; the transport vehicles themselves while they are loading or unloading organic liquids at transfer racks; and equipment leak components in organic liquids service that are associated with pipelines and with storage tanks and transfer racks storing, loading, or unloading organic liquids.

Applicability of the final standards is not restricted to any specific industries, but to each OLD operation that meets the applicability criteria of the final rule. The final standards do not apply to any emission source that is subject to another 40 CFR part 63 rule.

The liquids regulated by the final rule consist of non-crude oil organic liquids that contain at least 5 percent by weight of any combination of the organic HAP compounds listed in Table 1 to subpart EEEE of part 63 and have a total liquid vapor pressure of 0.1 psia or greater, plus all crude oils downstream of the first point of custody transfer. Gasoline is specifically excluded from coverage by the final rule as are fuels consumed or dispensed on the plant site as well as kerosene (No. 1 distillate oil), diesel (No. 2 distillate oil), asphalt, and heavier distillate oils and fuel oils.

Regulatory overlaps are specifically addressed in the final rule. Many of the facilities potentially affected by the final OLD NESHAP contain activities and equipment ( i.e. , certain storage tanks, transfer racks, and equipment components) that are already subject to other Federal air standards (such as 40 CFR part 60, subpart Kb, for storage tanks, or subpart GGG or FFFF of 40 CFR part 63). The final rule clarifies that emission sources subject to other 40 CFR part 63 NESHAP are not subject to the OLD NESHAP. The final rule also clarifies that sources subject to other non-MACT rules must comply with the requirements of the OLD NESHAP as well as the other rules.

We are promulgating the requirements of the final NESHAP in the form of HAP emission limits ( i.e. , percent reduction or exhaust concentration), operating limits, and work practice standards. The work practice standards are a combination of design, equipment, and operational standards.

The final NESHAP contain emission standards for storage tanks, transfer racks, transport vehicles, and equipment components at existing and new OLD operations.

The standards for storage tanks apply to tanks storing organic liquids and meeting the tank capacity and liquid HAP vapor pressure applicability criteria given in Table 2 to subpart EEEE of part 63. You have three options for control. First, you may install a closed vent system and control device with at least 95 percent control efficiency for the organic HAP listed in Table 1 to subpart EEEE of part 63. You may also choose to demonstrate that the measurement of total organic compounds (TOC) is an appropriate surrogate for organic HAP. As an alternative option to the 95 percent standard, combustion devices may meet an exhaust concentration limit of 20 parts per million by volume (ppmv) of organic HAP or TOC. Second, you may capture and route emissions to a fuel gas system or back into a process. Third, you may meet a work practice standard by using a compliant internal or external floating roof in the affected storage tank. The tank size and liquid vapor pressure applicability criteria defining tanks subject to emission reduction requirements are different for tanks at existing or new affected sources.

The owner or operator will have to install a continuous monitoring system (CMS) and establish operating limits for each control device used to control storage tanks. The CMS may be of a type to measure either organic concentration in the gas stream or an operating parameter (such as fire box temperature) of the control device. A site-specific monitoring plan must be developed and submitted by the owner or operator for each emission source.

The emission limit for transfer racks is a closed vent system and control device achieving a control efficiency of at least 98 percent for the organic HAP listed in Table 1 to subpart EEEE of part 63. You may also utilize a vapor balancing system to achieve the required control efficiency. You may also choose to demonstrate that the measurement of TOC is an appropriate surrogate for organic HAP. As an alternative option to the 98 percent standard, combustion devices may meet an exhaust concentration limit of 20 ppmv of organic HAP or TOC. Only transfer racks meeting the specified applicability criteria in the final rule are required to implement emission reduction measures. The same emission limit applies to affected transfer racks at both existing and new affected sources.

The same requirements for installing a CMS and establishing operating limits for the control device applicable to storage tanks also apply to the control systems installed on transfer racks.

A work practice standard applies to pumps, valves, and sampling connection systems. These equipment leak components in organic liquids service must be included in a leak detection and repair (LDAR) program which requires the use of a detection instrument. The term “in organic liquid service” is defined in the final rule to mean an equipment leak component that contains or contacts organic liquids having 5 percent by weight or greater of the organic HAP listed in Table 1 to subpart EEEE of part 63. Owners and operators have the option of applying the provisions from 40 CFR part 63, subpart TT, subpart UU, or subpart H for their LDAR program. The LDAR standard applies to equipment leak components at both existing and new affected sources.

A work practice standard applies to transport vehicles (cargo tanks and tank cars) loading at affected transfer racks. Each of these vehicles must have current vapor tightness certification indicating that it has been properly tested for vapor tightness. If the vehicle is equipped with vapor collection equipment, the vehicle must be tested using EPA Method 27 on an annual basis. For vehicles not so equipped, the Department of Transportation (DOT) leak tightness standards apply, and current certification indicating that these standards have been met must be retained by the owner or operator for each vehicle that loads at affected transfer racks whether the source owns the vehicle or not. The owner or operator is not required to test transport vehicles he or she does not own, but must take adequate steps to ensure that uncertified vehicles are not loaded at affected racks. These work practice standards are the same for both existing and new affected sources.

We are requiring that all existing affected sources comply by February 5, 2007, except for floating roof storage tanks that do not initially meet the equipment standard for storage tanks in the final rule. These tanks must be in compliance following their next degassing and cleaning, or by February 3, 2014, whichever is sooner. If the first degassing and cleaning activity occurs during the 3 years following February 3, 2004, the compliance date is February 5, 2007. Existing area sources that increase their HAP emissions or their potential to emit such that they become major sources of HAP, and thus affected sources, must be in compliance within 3 years after the date they become major sources.

Any affected source that commenced construction after April 2, 2002, at a site where there were no existing OLD operations, is a new affected source. Any affected source that commenced reconstruction after April 2, 2002, at a site that was an existing OLD source, is a reconstructed source. Emissions sources at new and reconstructed affected sources that are now in operation must be in compliance on February 3, 2004, with certain exceptions. These exceptions are due to the fact that the final rule applies to some affected sources and emission sources that would not have been covered by the proposed rule, and that in some cases the final emission standards are more stringent than were proposed. In cases where an emission source at a now-operating new or reconstructed affected source would not have been required to be controlled under the proposed rule but is required to be controlled under the final rule, the emission source must be in compliance by February 5, 2007. Where an emission source at such a new or reconstructed affected source would have been subject to a less stringent control requirement under the proposed rule than applies under the final rule, the emission source must be in compliance with the final rule's requirement by February 5, 2007, and in the interim must comply with the less stringent control requirement as proposed.

New or reconstructed sources that commence construction or reconstruction after February 3, 2004 must comply upon startup.

To determine the applicability of the final standards to individual operations, each OLD operation must evaluate whether any of their distributed liquids contain less than 5 percent HAP by weight and, thus, do not meet the definition of an organic liquid under the final rule. The specified test method for this is EPA Method 311 of 40 CFR part 63, appendix A, or other methods approved by the Administrator. An owner or operator may use other means (such as voluntary consensus standard methods, material safety data sheets (MSDS), or certified product data sheets) for determining the HAP content. However, if the results of an analysis by EPA Method 311 (or other approved test method) are different from the HAP content determined by another means, the EPA Method 311 (or other approved test method) results will govern compliance determinations.

Control devices used to comply with the final standards are subject to a performance test to demonstrate initial compliance with the emission limits, except that a design evaluation, conducted according to 40 CFR part 63 subpart SS, may be used for nonflare control devices.

The test methods applicable to control devices include EPA Methods 18, 25, and 25A of 40 CFR part 60, appendix A, and EPA Method 316 of 40 CFR part 63, appendix A, depending on the constituents of the gas stream being controlled and the format of the standard (organic HAP or TOC) the facility selects for its compliance demonstration. Floating roof tanks are subject to visual and seal gap inspections to determine initial compliance with the tank work practice standards. For the LDAR program for equipment components, EPA Method 21 of 40 CFR part 60, appendix A, is applicable.

Initial compliance with the emission limits for storage tanks and transfer racks consists of demonstrating that the control device achieves the required 95 or 98 percent control efficiency for organic HAP (or TOC, if used as a documented surrogate) or 20 ppmv exhaust concentration for combustion devices. The required percentage control efficiency must be applied to the Table 1 to subpart EEEE of part 63 HAP concentration found at the inlet to the control device.

Work practice standards apply to storage tanks, transfer racks, transport vehicles, and equipment components. You must perform a visual inspection before filling internal floating roof tanks. You must also conduct a measurement of seal gaps for external floating roof tanks within 90 days after filling. For transfer racks, you must ensure that vapor balancing systems or equipment for routing emissions to a fuel gas system or back to a process are properly designed and operated. For transport vehicles, you must perform vapor tightness testing for vehicles that you own and maintain documentation for all affected vehicles certifying that they are vapor-tight. Finally, for the equipment LDAR program, you must identify which 40 CFR part 63 subpart you are complying with and keep a record identifying the selected subpart.

If you use a control device, we are requiring that you monitor and record the operating parameters established during the initial performance test and calculate operating parameter values averaged on a daily basis. Continuous compliance is demonstrated if you collect CMS data as specified and maintain the operating limits established during the design evaluation or performance test.

If you are subject to work practice standards, we are requiring that you demonstrate continuous compliance by performing the required work practices and by keeping the records required to show that you are in compliance. For storage tanks, you must continue to perform the applicable inspections and seal gap measurement to ensure that the floating roofs continue to provide the proper control. For transport vehicles, you must continue performing the required vapor tightness testing on vehicles that you own and take steps to ensure that all transport vehicles loading at the OLD operation have the required certification. For equipment components, you must perform the required monitoring, keep the required records, and file the required reports consistent with the LDAR program you selected for the equipment components in the affected source.

The notifications, records, and reports required by the final rule are generally consistent with the requirements of the General Provisions of subpart A of 40 CFR part 63. Two basic types of reports are required: notifications (such as the Initial Notification and the Notification of Compliance Status) and semiannual compliance, or periodic, reports. The Initial Notification apprises the permitting authority of applicability for existing sources or of construction for new sources.

The Notification of Compliance Status must be submitted within 60 days after the compliance demonstration activity has been completed. This report contains the results of the initial performance test, as well as all calculations and analyses used to show that the affected source has achieved and will continue to achieve compliance.

You are required to describe in your semiannual compliance reports any deviations of monitored parameters from reference values; failures to comply with the startup, shutdown, and malfunction (SSM) plan for control devices; and results of LDAR monitoring and storage tank inspections. These reports are also used to notify the permitting authority of any changes in CMS, processes, or controls since the last reporting period.

You are required to keep a copy of each notification and report, along with supporting documentation, for 5 years. Of these 5 years, the 2 most recent years must be kept on-site. The final rule allows electronic recordkeeping; however, you must be able to access all required records in a timely manner. You must keep records related to SSM, records of performance tests, and records for each continuous monitoring system. If you must comply with work practice standards, you also need to keep records for 5 years (the 2 most recent years must be kept on-site) certifying that you are in compliance with the work practices.

Facilities affected by the final OLD NESHAP are those facilities that carry out organic liquid distribution activities. Most of these facilities can be grouped under three general categories: stand-alone (usually for-hire) storage terminals; OLD operations collocated with a petroleum refinery, a chemical manufacturing plant site, or other manufacturing plant site; and crude oil pipeline pumping or breakout stations (containing crude oil tankage).

We estimate that in 1997, the baseline year for the final standards, there were approximately 279 collocated OLD operations, 86 stand-alone storage terminals, and 16 crude oil pipeline stations, for a total of approximately 381 existing major source plant sites with OLD operations.

The 1997 baseline HAP emissions from OLD operations are approximately 5,900 tpy. The final OLD NESHAP will reduce HAP from existing major sources by 3,500 tpy, a reduction of 60 percent. Such emission reductions are likely to reduce the risk of adverse effects of HAP.

Although the final OLD NESHAP do not specifically require the control of volatile organic compounds (VOC), the organic HAP emission control technologies upon which the standards are based will also significantly reduce VOC emissions from the source category. We estimate that the final OLD NESHAP will reduce nationwide VOC emissions emitted by the source category by approximately 9,900 tpy, or 70 percent, from baseline. This will have the effect of reducing adverse ozone-related health and welfare impacts.

The final OLD NESHAP will result in small increases in other air pollution emissions from combustion devices that will be installed in the next 5 years to comply with today's final rule. These increases result both from the combustion device directly and from the electrical generating plants used to generate the electricity necessary to operate the add-on controls and associated air handling equipment.

We estimate that the final OLD NESHAP will not significantly impact water quality. The final standards do not contain requirements related to water discharges, wastewater collection, or spill containment, and no additional organic liquids are expected to enter these areas as a result of the OLD NESHAP. A few facilities may select a scrubber (depending on the specific emissions they are controlling) to control emissions from transfer racks or fixed-roof storage tanks. The impact on water quality from the use of scrubbers is not expected to be significant.

We project that there will be no significant solid or hazardous waste impact. Flares, thermal oxidizers, scrubbers, and condensers do not generate solid waste as a by-product of their operation. When adsorption systems are used, the spent activated carbon or other adsorbent that cannot be further regenerated may be disposed of in a landfill, which would contribute a small amount of solid waste.

The control devices used for transfer rack and storage tank control use electric motor-driven blowers, dampers, or pumps, depending on the type of system, in addition to electronic control and monitoring systems. The installation of these devices would have a small negative energy impact. To the extent that some of the controlled organic liquids are non-gasoline fuels, the applied control measures would keep these liquids in the distribution system and thus have a positive impact on this form of energy.

We have estimated the industrywide capital costs for HAP emissions control equipment to be $49.3 million for the 381 existing sources. The capital costs include the costs to purchase and install the control equipment.

We have estimated the industrywide annual costs of the final rule are $25.1 million per year for the 381 existing sources. Annual costs include fixed annual costs, such as reporting, recordkeeping and capital amortization, and variable annual costs such as natural gas. The estimated average cost of the final rule is $7,100 per ton of HAP emissions reductions for existing sources.

The increases in price for petroleum and chemical products affected by the final OLD rule are less than 0.003 percent, and the price increase for distribution service covered by the final rule is 0.1 percent. Reductions in output for petroleum and chemical products are also less than 0.003 percent, and the output reduction of distribution services is less than 0.002 percent.

None of the facilities affected are expected to close as a result of incurring costs associated with the final rule. Therefore, it is likely that there is no adverse impact expected to occur for the industries affected by the final rule, such as chemical manufacturing, petroleum refineries, pipeline operators, and petroleum bulk terminal operators.

We made several clarifications to our intent as to the composition of the OLD source category and the affected source and the overall applicability of various requirements of the final rule. We have removed the facilitywide 7.29 million gallon throughput cutoff. We found, after reanalyzing our database, that we could not support such a cutoff, since our data reanalysis indicated that MACT floor levels of control applied to facilities below the proposed facility throughput cutoff. For the final rule, we have adopted a set of applicability criteria to be applied to each type of emission source to determine whether emission reductions are required for each specific emission source. These applicability criteria were developed from our MACT floor analysis of our database.

We have written the definition of the term “organic liquid” to include any non-crude oil liquid that contains at least 5 percent by weight of any combination of the HAP listed in Table 1 to subpart EEEE of part 63 and also has a total liquid vapor pressure of at least 0.1 psia, plus all crude oil downstream of the first point of custody transfer. This reflects our reanalysis of our database, which revealed that MACT floor levels of control apply to liquids with these HAP concentrations and vapor pressures. The definition also reflects our decision to eliminate the “black oil” exemption as proposed because we identified MACT floor controls for storage of crude oil.

In response to several comments, we clarified that the OLD final rule will not regulate any emission sources that are part of another 40 CFR part 63 MACT rule's affected source, whether those sources are actually controlled or not. We also included a new section in the final rule on how owners and operators should treat regulatory overlaps ( i.e. , two Federal rules with applicability to the same emission source).

The final rule also corrects several of the proposed citations to 40 CFR part 63, subparts PP, SS, TT, UU, and WW and adds new ones to make the use of the referenced provisions easier for regulated sources to understand.

The proposed rule was unclear as to how a source could use a design evaluation as an alternative to a performance test when demonstrating initial compliance for a control device. The final rule clarifies that the design evaluation (per 40 CFR part 63 subpart SS) may only be applied to nonflare control devices. Flares are subject to specific design criteria contained in the General Provisions (40 CFR 63.11(b)).

We have changed the principal test method to be used for analyzing the organic HAP content of liquids from EPA Method 18 of 40 CFR part 60, appendix A, to EPA Method 311 of 40 CFR part 63, appendix A. The EPA Method 18 is not an appropriate method for liquid analysis of the type that will be performed under the OLD NESHAP. Method 18 is appropriate for determining the HAP content in air streams, not the HAP content in liquids. We are now specifying EPA Method 311 of appendix A of 40 CFR part 63, which is titled “Analysis of Hazardous Air Pollutant Compounds in Paints and Coatings by Direct Injection into a Gas Chromatograph.” Sources may also use alternative analytical methods with EPA's approval, or rely on supplier information, MSDS, and similar analyses that do not require the source to perform any testing. If an MSDS, or similar documentation, presents the HAP content of components of a liquid as a range, then you must use the upper end of the range of values in determining the total HAP content of the liquid. If the results of an analysis by EPA Method 311 are different from the HAP content determined by another means, the EPA Method 311 results will govern compliance determinations.

The final rule allows up to 180 days after the compliance date to conduct the initial performance tests, rather than having to conduct them by the compliance date, and, thus, makes the final rule consistent with the amended General Provisions and other MACT rules.

At proposal, we specified liquid vapor pressure cutoffs to determine applicability of the storage tank control requirements in terms of the annual average true vapor pressure of the stored liquid. This format was compatible with the liquid property data in our OLD database as we had received the data from industry. For the final rule, we have determined, in response to comments and after our re-analysis of our database, that the vapor pressure basis should be consistent with other NESHAP that also specify storage tank vapor pressure cutoff levels. Therefore, we have written the basis for the applicability criteria in the final OLD NESHAP to be the annual average true vapor pressure of the total organic HAP in the stored liquid.

We have also increased the time period over which an owner or operator may achieve compliance with the work practice standards for floating roof storage tanks. For any floating roof tanks that do not currently meet the equipment requirements specified in 40 CFR part 63 subpart WW, full compliance may be achieved within 10 years after the effective date of the final OLD NESHAP, or at the next degassing or cleaning of the tank, whichever occurs first. If the first degassing and cleaning activity occurs during the 3 years following the effective date of the final OLD NESHAP, the compliance date is 3 years from the effective date of the final OLD NESHAP. Fixed-roof tanks are still required to achieve compliance within 3 years after the effective date of the final OLD NESHAP.

At proposal, the emission limit and applicability throughput cutoff for transfer racks was based on each rack loading position. In re-analyzing the database since proposal, we have determined that the information for transfer racks could not be verified on the basis of individual rack loading position. We have written the final rule based on the entire transfer rack to be consistent with many other MACT rules.

In response to requests by commenters and after re-analyzing our database, we added 40 CFR part 63 subpart H as one of the LDAR programs that may be used to comply with the work practice standard for equipment. We also clarified that only equipment leak components associated with the affected source need to be included in a source's LDAR program.

The proposed rule contained detailed procedures for performing monitoring and for carrying out quality assurance checks on the monitors. The final rule incorporates the monitoring provisions of 40 CFR part 63, subpart SS, and requires owners and operators to submit their own monitoring plan for approval by the applicable title V permitting authority. In accordance with subpart SS, the final rule allows the use of organic monitors in addition to monitors that measure an operating parameter of the control device (such as temperature). This will provide more flexibility in the way a source determines operating limits and monitors operation of control systems. In response to several comments, the averaging time for the monitored data is daily, which is consistent with 40 CFR part 63 subpart SS.

Following proposal, we reviewed the proposed requirements to file reports and keep records and determined that these requirements could be streamlined by reorganizing the pertinent rule sections and deleting certain records and reports that were duplicative or unnecessary for ensuring that sources were maintaining compliance with the standards. We also responded to comments requesting flexibility in the way a source generates and submits reports by allowing a source to combine the reports required by different MACT rules or to send the periodic reports required under the final OLD NESHAP along with those required by title V of the CAA. We have incorporated provisions to allow these forms of combined reporting, as well as an allowance for multiple Notifications of Compliance Status for the same affected source to be submitted together. We have included specific references to the periodic reporting requirements in 40 CFR part 63, subparts SS, TT, UU, and WW, which had been inadvertently omitted from the proposal.

Comment: Several commenters stated that the Agency should revise the definition of “OLD operation” to be the combination or group of emission units used to transfer organic liquids into or out of a plant site in order to provide a clear definition of the OLD source category. Two of the commenters stated that EPA's definition of “OLD operation” is inconsistent with its source category listing. The proposed definition captures facilities that receive organic liquids but do not serve as distribution points, and from which such liquids are not obtained for further use and processing. These commenters urged EPA to limit the source category so that facilities and activities that do not serve as distribution points, or are merely managing organic liquids without distribution, are not captured in the final rule. Other commenters urged EPA to clarify that the final rule will not apply to end-users of organic liquid products, but rather only to manufacturers and distributors of those organic liquid products in the SIC/NAICS codes listed at proposal.

Response: The commenter's suggested definition for “OLD operation” is more appropriate for the affected source definition to clearly establish the limits of the affected source, but is not appropriate for describing the source category as a whole.

Further, we disagree with the commenters that our definition of OLD operation and, thus, the OLD source category is inconsistent with the source category listing by including facilities that receive organic liquids without further distributing them to end users. We consider the distribution network to include both outgoing and incoming transfers and storage of organic liquids, whether offsite or onsite. Thus, while the types of facilities identified by the commenters may never distribute the liquids offsite, the activities, equipment, and emissions that occur at such receiving and end-use facilities are part of the overall organic liquid distribution network.

The final rule is clear that the source category includes OLD operations that are collocated with other (such as manufacturing) activities at major source plant sites. Since the source category includes distribution operations in many industrial categories, we have not included any reference to SIC or NAICS codes in the final rule.

Comment: One commenter noted that the Technical Support Document (TSD) indicates that “tanks and other liquid handling equipment involved solely in activities within the plant site would not be considered to be OLD emission sources * * *,” but the provisions of the proposed rule and the definition of “OLD operation” do not support this position.

Similarly, commenters recommended that the affected source not include dedicated equipment used to transfer and store organic liquids between on-site process units.

Response: Our intent for the final rule is to reduce HAP emissions from the storage and transfer of organic liquids within a distribution network. It is our judgment that the distribution network ends only when the organic liquids reach a final destination where they are consumed or are introduced into an operation included in another source category. Therefore, the OLD network includes the transfer and storage of organic liquids involving any equipment identified in the affected source for OLD and that are not subject to another MACT rule. Further, in our judgement, there is no practical difference in the types of equipment in use and the types of available emission controls are identical for both inter- and intra-plant site transfers.

Based on these considerations, it is our intent that equipment used to store or transfer organic liquids that occur “within” a plant site are considered part of the OLD distribution network and part of the OLD affected source unless such equipment is subject to another MACT standard. Therefore, we have not excluded from the final rule “tanks and other liquid handling equipment involved solely in activities within the plant site,” and we have written the definition of OLD operation to include transfers and storage of organic liquids “into, out of, or within a plant site.” Thus, if an emission source meets the relevant HAP content, vapor pressure, and capacity or throughput criteria, the emission reduction requirements of the final rule apply to that emission source even if it transfers or stores organic liquids wholly within a plant site.

Comment: Several commenters requested that EPA clarify the relationship between applicability and affected source. These commenters felt that restricting the affected source to only those emission points that are subject to controls could result in a very narrow definition of the affected source. It could also result in triggering the MACT new source requirements by the addition of a relatively small component to an OLD operation, if the rest of the OLD operation were exempt from controls. This does not appear to be EPA's intent, but rather an inadvertent consequence of the manner in which the proposed rule addresses emission points that are exempt from controls.

Another commenter stated that EPA's proposed affected source definition is unlawful because EPA chose a broad definition that allows equipment to be replaced without the replacement becoming a new source.

Response: We agree with the commenters that the proposed rule did not contain a clear definition of the affected source, primarily because of confusion that occurred as the result of the two different definitions of “affected source” that were inadvertently created in the proposed rule.

While the intent of proposed § 63.2338(b)(2) was to provide additional detail to supplement the definition in § 63.2338(b)(1), we understand the confusion that this created by appearing to present a different and conflicting affected source definition. In the final rule, we have defined “affected source” as “* * * the collection of activities and equipment used to distribute organic liquids into, out of, or within a facility that is a major source of HAP.”

We also agree with the commenters that the affected source should include all of the pertinent emission sources without regard to the applicability criteria that cause certain equipment to be subject to different requirements of the final rule. Therefore, the final rule, in § 63.2338(b), presents a description of the affected source in which all of the pertinent emission sources are listed, without regard to their control requirements under the final rule. We have also written § 63.2338(b)(1) to define the affected source as “the collection of activities and equipment.” This clarifies our intention to have a broad interpretation of affected source.

We acknowledge that a broad definition in many circumstances allows individual emission points (such as a single storage tank, pump, etc.) to be replaced without the new source standards being applied to that new piece of equipment. Using a broad definition of affected source is, however, within our discretion in selecting the best approach for the standards for a particular source category. The term “affected source” refers to the collection of processes, activities, or equipment to which a MACT standard applies. In other MACT rules, we have adopted either a broader or narrower definition of affected source for given categories depending on the nature of particular MACT requirements and the strategies available for meeting them. A broader definition permits emission reduction requirements to apply to a larger group of processes, activities, and equipment. This approach encourages owners or operators to develop and utilize more innovative and economically efficient control strategies. Using a narrower definition of affected source frequently leads to difficulties for facilities in managing differing requirements for individual pieces of equipment without achieving substantive emission reduction.

For the purpose of determining MACT, however, we chose to utilize the approach of examining the emission sources individually. In our industry survey, we requested data for each emission source rather than from the entire OLD operation. By evaluating the data on an emission source basis, we were able to establish MACT floors for each type of emission source without having to consider how each facility controlled emissions on a facilitywide basis. For example, we established MACT floors for storage tanks based on facilities with the best controlled storage tanks, even if those facilities did not utilize the best controlled transfer racks.

Our selected approach for the final OLD NESHAP is consistent with the 40 CFR part 63 General Provisions, as amended (67 FR 16582, April 5, 2002), which adopt a broader definition of affected source such that future MACT standards will generally adopt a definition of affected source which consists of all existing HAP-emitting equipment and activities that are at a single contiguous site and are within a specific category or subcategory.

Comment: Several commenters recommended that compounding, blending, and packaging operations be included in the affected source, but with no control requirements. According to the commenters, this would result in a more accurate investment basis for OLD operations at a site, would clarify which MACT affected source these operations are associated with, and would avoid the potential for future regulatory overlap.

One commenter supported the inclusion of small containers (pails, drums, portable tanks, and isotainers) as part of the OLD affected source but urged that small containers be excluded from controls in the final rule.

Response: We have written the definition of affected source in the final rule to include storage tanks and transfer racks used to store or transfer organic liquids regardless of the particular operation or activity such tanks and transfer racks were supporting, including such operations and activities as packaging, blending, and compounding.

We have not defined the affected source to single out the operations identified by the commenter because the changes that were made to the definition provide the necessary clarity. The final rule makes it clear that equipment used in operations such as these would be part of the affected source if they meet the general criteria of storing or transferring organic liquids and they are not subject to another MACT rule. Equipment meeting the affected source criteria in § 63.2338 of the final rule are to be included as emission sources in the initial Notifications and Reports required under §§ 63.2382 and 63.2386 of the final rule.

Finally, we have included containers in the definition of affected source. This is consistent with how we have re-defined the affected source to include equipment even if control is not required under the final rule. The re-analysis of our data after reviewing the public comments resulted in a finding that the floor level of control for existing container filling operations is no emission reduction. We did, however, identify a MACT floor level of control for new source container filling. As discussed in more detail later in this preamble, we have determined that there are no feasible or cost-effective beyond-the-floor alternatives for the filling of containers at existing sources. Therefore, the final rule includes control requirements only for container filling operations that are new sources.

Comment: A number of commenters stated that the inclusion of cargo tanks as part of the affected source is inappropriate. These commenters pointed out that third parties typically provide cargo tanks and they are not generally under the common control of the OLD facilities. The commenters also stated that, if the OLD operation owner purchases either new cargo tanks or a fleet of existing cargo tanks, they should not be included in the reconstruction cost evaluation and potentially trigger new source MACT requirements at the OLD operation.

Response: As discussed in the proposal preamble and the TSD, and in previous rulemakings including the Gasoline Distribution MACT NESHAP (40 CFR part 63, subpart R), cargo tanks (consisting of tank trucks and tank cars, and renamed as “transport vehicles” in the final rule) can be a significant source of emissions while being loaded at transfer racks. Transport vehicles (whether owned/leased by the facility or operated by other firms) must be included in the affected source to ensure that MACT control will extend to these sources. As the final rule makes clear in Table 4 to subpart EEEE of part 63, the owner or operator must have vapor tightness documentation for each transport vehicle loading at an affected transfer rack. Third parties in many cases will be responsible for getting periodic testing (EPA Method 27 or DOT test) performed and for providing the certification papers to the facilities.

The acquisition of additional transport vehicles, whether by the source owner or by third parties, would not be included in the reconstruction cost evaluation and would not trigger any different control requirements for the liquid transfer operation. The items that define the affected source are the stationary infrastructure of the facility; that is, the combination of tanks, transfer racks, and equipment leak components. The primary mission of transport vehicles is transporting the liquids on roadways. Thus, they are not part of the stationary infrastructure of the facility. The objective of the “reconstruction” provisions of the CAA is to prevent an existing source from avoiding more stringent new source standards by perpetually rebuilding existing equipment rather than installing new equipment. The purchase of transport vehicles should have no impact on the triggering of more stringent standards for the storage tanks or transfer racks at an affected source. Also, at an OLD operation, facilitywide emission rates are impacted by the size, throughput capacity, and number of storage tanks and transfer racks. From the standpoint of overall emissions, it makes no difference if one vehicle is loaded ten times or if ten identical vehicles are loaded once. Therefore, the number of individual transport vehicles or the acquisition of additional transport vehicles should not be included as part of the infrastructure of the facility that is considered in determining “reconstruction” cost. The acquisition of additional containers by an owner or operator of an OLD facility would also not be considered in the determination of “reconstruction” costs.

Comment: Three commenters stated that EPA needed to clarify that only pipelines with equipment leak components ( i.e. , pumps, valves, or sampling connection systems) associated with a storage tank or transfer rack included in the affected source will be subject to the LDAR requirements. Commenters requested that a pipeline that transfers organic liquids directly to or from a process unit that does not pass through a transfer rack or storage vessel subject to the rule is not to be included in the affected source or in the calculation of throughput used in applicability determinations.

Commenters also stated that the exclusions from the OLD rule should include pipeline equipment leak components used to directly transfer organic liquids across plant site boundaries into or out of storage tanks not subject to another MACT standard or process equipment that are not storage tanks, and unloading facilities and pipeline equipment used to transfer organic liquids from ships, barges, tank trucks, or tank cars into a storage tank covered by other MACT standards or process equipment that are not storage tanks.

Response: Pipelines themselves are not and never were part of the affected source definition. Only equipment leak components that are part of a pipeline were considered part of the affected source at proposal. We know of no reason as to why equipment leak components associated with a pipeline that transfers organic liquids should not be part of the affected source for the final rule, regardless of whether the organic liquid being transferred is deposited in a storage tank subject to the final rule or to another MACT standard. If the pipeline's equipment leak components are subject to another MACT standard, then they are not subject to the final OLD NESHAP. If the pipeline's equipment leak components are not subject to another MACT standard and the pipeline is in organic liquids service, then the equipment leak components are subject to the requirements of the final OLD NESHAP.

Finally, the final rule does not include a facility-level throughput calculation to determine whether or not a facility is subject to the final rule. Therefore, there is no longer a need to clarify the relationship of pipelines to the throughput applicability determination.

Comment: We received a large number of comments concerning the proposed applicability criteria of 7.29 million gallons per year, which would have excluded facilities from the OLD rule if their facility throughput was less than 7.29 million gallons of organic liquids. Several commenters supported the cutoff and requested clarification on the procedures for determining throughput. Other commenters questioned the appropriateness of excluding from control those facilities that are in the source category and have emission sources that could be controlled by the final OLD rule.

Response: We proposed a facility-level throughput cutoff believing it was a useful criterion to identify smaller facilities at which controls would not be required based on our understanding that such facilities were not typically required to be controlled under other rules. We re-analyzed the database to determine if MACT floors existed for facilities with throughputs less than 7.29 million gallons of organic liquids, and determined that MACT floors exist for facilities with throughputs of less than 7.29 million gallons. Therefore, we can not support the proposed 7.29 million gallon cutoff.

However, as a result of our re-analysis of the database, we determined that throughput cutoffs for certain emission points were justified. The throughput cutoffs are now a part of the applicability criteria used to determine which transfer racks are subject to control.

Comment: Several commenters requested clarification of the relationship between the OLD rule and other existing rules and future rules.

Response: We agree with the commenters that the final OLD NESHAP must be explicit in describing the specific applicability of other 40 CFR part 63 NESHAP for sources that potentially may be drawn into more than one subpart. Section 63.2338(c)(1) of the final rule states that storage tanks, transfer racks, and equipment leak components that are part of an affected source under another 40 CFR part 63 NESHAP are excluded from the definition of affected source, even in cases where the other rule does not require a reduction in emissions from the emission source.

Comment: Several commenters stated that EPA needs to address overlap between the OLD NESHAP and other non-40 CFR part 63 existing rules, such as the Storage Tank New Source Performance Standard (40 CFR part 60, subpart Kb), the Benzene Storage Tank and Benzene Transfer Operations NESHAP (40 CFR part 61, subparts Y and BB, respectively), and Resource Conservation and Recovery Act (RCRA) regulations.

Response: We have written 40 CFR 63.2396 to address the overlap between the final OLD NESHAP and those rules cited by the commenters. If meeting the requirements of another rule does not result in an owner or operator fully meeting the requirements of the OLD NESHAP, then the owner or operator must modify the compliance methods to come into full compliance with the OLD NESHAP while remaining in compliance with the other rule.

Comment: One commenter, whose facility is subject to 40 CFR part 63, subpart Y (Marine Loading), pointed out that 40 CFR part 63, subpart SS, § 63.983(b) and (c), imposes an initial leak detection standard for closed vent systems that is more stringent than the detection standard contained in subpart Y; § 63.983(c)(1)(v) specifies only the use of methane for calibration of the instrument used to conduct the initial EPA Method 21 sweeps in subpart SS, while subpart Y is more flexible; subpart Y and subpart SS conflict on the response required if a leak is found; and, for closed vent systems that contain bypass lines, subpart Y contains an exemption on closure requirements for maintenance vents, but subpart SS does not allow that exemption. The commenter stated that this is appropriate for subpart Y due to the “batch” nature of tank vessel loading, and that it would be inappropriate to impose the subpart SS requirement on part of their facility.

Response: If an OLD emission source is required to be controlled under the final OLD NESHAP and that emission source is already controlled in a “shared” control device, then the owner or operator is required to be in compliance with both NESHAP or the NESHAP that impose the more stringent emission standard and/or work practices.

If an OLD emission source is in OLD operation part of the year and “in service” for another NESHAP for the rest of the year, then that OLD emission source is required to be in compliance with the final OLD NESHAP when that emission source is in OLD operation, even if the requirements between the two NESHAP rules are different. The owner or operator still has the option to permanently comply with whichever NESHAP provides the most stringent emission standard and/or work practices.

Comment: One commenter noted several conflicts between 40 CFR part 63, subparts SS and Y, and the proposed OLD NESHAP; specifically, performance tests on incinerators using specified test methods and conflicting language regarding the temperature monitoring location. The commenter claimed that the proposed control device evaluation in 40 CFR 63.2362(g) that would be submitted according to the requirements of 40 CFR 63.985(b)(1)(i) is an unnecessarily burdensome requirement for a facility that has source test data less than 5 years old showing that the control device more than adequately controls emissions. For such facilities, the commenter requested that existing data be allowed to be used in lieu of a design evaluation.

Response: We have written the performance test and design evaluation requirements in § 63.2362 of the final rule and Table 5 to subpart EEEE of part 63 to more clearly specify the use of the 40 CFR part 63, subpart SS, procedures and also to clarify that prior test results may be used, in many cases, to demonstrate compliance with the final OLD NESHAP. The final rule also allows owners or operators the flexibility of applying for approval to use alternative test methods.

Comment: Two commenters recommended that EPA clarify the OLD boundary by incorporating the concept of “intervening storage tanks,” which has been used in several other MACT standards such as the Hazardous Organic NESHAP (HON) and the Polymers and Resins rules. Under this concept, if a bulk tank in a centralized tank farm area has received organic liquids from outside the plant site and feeds that material to another storage tank at the process unit (an “intervening storage tank”), the bulk tank is assigned to the organic liquid distribution operation and the intervening storage tank to the process unit.

Response: We have evaluated the comment concerning the concept of “intervening storage tanks” and have determined that such a concept is neither appropriate nor needed for the final OLD NESHAP. The “intervening storage tank” concept is specifically to help facilities identify which storage tanks are part of the affected source of a particular MACT source category. The intent of the final OLD NESHAP is to supplement other NESHAP and apply to all remaining unregulated storage tanks that are in OLD operation. To incorporate similar “intervening storage tank” language in the final OLD rule is at best unnecessary and at worst could lead to excluding tanks that should be covered by the final OLD NESHAP.

Comment: Several commenters recommended that EPA clarify that the emission limitations and work practice standards identified in § 63.2346 apply whenever an emission source is in OLD operation, but not when the emission source is not in OLD operation. Commenters pointed out that the proposal stated that affected facilities must be in compliance with the emission limitations at all times except for periods of startup, shutdown, or malfunction. They felt that periods of “non-operation of the affected source” should be included on this list.

Commenters recommended that § 63.2374(c) be clarified such that for demonstrating continuous compliance data averages should only include data collected when vapors from OLD operations are being routed to the control device.

Response: It was our intent in the proposed rule that the emission limitations and work practice standards apply only when an emission source is transferring or storing an organic liquid or when an equipment leak component is in organic liquids service. Because there are no emissions from storage tanks or transfer racks during periods of “non-operation of the affected source,” there is no need for the emission limitations to apply during these times. In addition to periods when the entire affected source is not in operation, there may be periods when any one of the emissions sources within the affected source is not in operation or is not in OLD operation. During these periods, the emission limitations for all other emission sources would still apply, but the emission limitations would not apply to the emission source not in OLD operation. This intention has been clarified in § 63.2350 of the final rule.

We agree with the comment that only data collected during times when emissions are being routed to the control device should be used in demonstrating continuous compliance and have written § 63.2374(c) of the final rule to the effect that data are not to be used when collected during “periods when emissions from organic liquids are not routed to the control device.”

Comment: One commenter felt that the proposed rule should be modified to allow pilot flames to be turned off during flare shutdowns and when all the sources serviced by the flare are shut down.

A second commenter thought EPA should reconsider the continuous compliance requirements for thermal incinerators that utilize “bladder tanks,” which collect emissions in a bladder until a sufficient quantity is collected to use the incinerator, so that the oxidizer does not have to be operated continuously. The commenter suggested changing the rule language to require sites to maintain the average fire box temperature only during times that vapors are introduced to the control device.

Response: The requirement to continuously maintain a flare pilot flame is part of the 40 CFR part 63 General Provisions, which state that a pilot flame is required for an open flare during periods when emissions may be vented to the flare. If the flare is shutdown (out of service), there is no need to require a pilot flame because no emissions will be vented to the flare. Where the emissions sources serviced by the flare are shutdown, we agree that operating a pilot flame during such periods would be nonproductive because there are no emissions to be vented to the flare. We have written Table 9 to subpart EEEE of part 63 to allow an owner or operator not to maintain the pilot flame when all emission sources serviced by the flare are shutdown (out of service). However, we are requiring in the final rule that owners and operators make a demonstration to the permitting authority that it will not experience a deviation and to keep records of each time the pilot flame is extinguished and relit.

We also agree with the commenter that it is unnecessary to maintain the average fire box temperature in thermal incinerators during periods when emissions are not vented to the incinerator. Therefore, we have written Table 9 to subpart EEEE of part 63 to clarify that the average fire box temperature in thermal incinerators need only be maintained while emissions are being vented to the control device. The final rule requires the owner or operator to monitor both this temperature and the time periods when vapors are flowing to the device. We also note that an owner or operator may have to increase the firebox temperature some time before emissions are vented back into the incinerator in order to comply with the average fire box temperature requirement.

Comment: We received several comments concerning the definition of “organic liquid” that affects the applicability of the proposed standards. One commenter asserted that the exemption of most organic liquids containing less than 5 percent HAP by weight is in violation of the requirements of the CAA. Another commenter claimed that the 5 percent HAP cutoff is legally permissible on “ de minimis ” grounds.

Two commenters recommended that EPA revise its definition of “organic liquid” to exclude liquids that are not predominantly organic in order to exclude from regulation those liquids that contain very small amounts of organic material such as predominantly aqueous or inorganic liquids. The commenters felt that these liquids should not be included in the final OLD NESHAP because they do not emit significant amounts of organics to the environment and controlling them will not provide the intended emission reductions.

Finally, several commenters added that EPA should provide a list of common materials within the petroleum industry that will not be regulated, such as kerosene (No. 1 distillate oil), diesel (No. 2 distillate oil), asphalt, and heavier distillate oils and fuel oils.

Response: The EPA disagrees that the proposed exemption of organic liquids containing less than 5 percent HAP-by-weight can be justified by de minimis principles. The EPA's de minimis authority exists to help avoid excessive regulation of tiny amounts of pollutants, where regulation would yield a result contrary to a primary legislative goal. It is unavailable “where the regulatory function does provide benefits, in the sense of furthering the regulatory objectives, but the agency concludes that the acknowledged benefits are exceeded by the costs.” EDF v. EPA, 82 F.3d 451, 466 (D.C. Cir. 1996); Public Citizen v. Young, 831 F.2d 1108, 1112-13 (D.C. Cir. 1987); Alabama Power v. EPA, 636 F.2d 323, 360-61 & n.89 (D.C. Cir. 1979). Accordingly, a de minimis exemption to section 112(d)(3) is unavailable, because it would frustrate a primary legislative goal by carving out tons of HAP emissions from regulation. The EPA's rejection of the de minimis concept has already been affirmed by the U.S. Court of Appeals for the District of Columbia Circuit, in National Lime Ass'n v. EPA, 233 F.3d 625, 640 (D.C. Cir. 2000) (“ NLA ”), in which the court rejected the petitioner's claim that in light of both the high costs and low quantities of HAP at issue in that case, EPA should read a de minimis exception into the requirement that it regulate all HAP emitted by major sources. In that case, the Court found that “EPA reasonably rejected this argument on the ground that the statute ‘does not provide for exceptions from emissions standards based on de minimis principles where a MACT floor exists.’ ” NLA at 640.

Contrary to the commenter's request, EPA sees no reason to revisit this fundamental issue, and rejects the assertion that both EPA and the court decided this issue incorrectly in NLA. Section 112 of the CAA is replete with careful definitions of volume-or effect-based limitation on regulation, indicating that Congress has already defined what amounts of HAP emissions are too small to warrant MACT standards. The requirement to adopt MACT emission limitations, for example, applies without exception to “each category or subcategory of major sources * * * of [HAP].” CAA section 112(d)(1). For sources below the major source threshold, however, EPA has discretion to require “generally available control technologies or management practices.” CAA section 112(d)(5). Congress has thus itself defined volumetrically which sources' emissions are small enough not to warrant mandatory MACT standards.

Congress likewise defined several MACT exceptions applicable where emissions have de minimis health effects. Section 112(d)(4) of the CAA allows EPA to establish standards less stringent than MACT for HAP with an established health threshold, so long as it sets a standard below the health threshold with “an ample margin of safety.” Section 112(b)(3)(C) of the CAA directs EPA to de-list HAP—precluding section 112(d) MACT standards—if EPA determines that “there is adequate data on the health and environmental effects of the substance to determine that emissions, ambient concentrations, bioaccumulation or deposition of the substance may not reasonably be anticipated to cause any adverse effects to the [sic] human health or adverse environmental effects.” Section 112(c)(9)(B)(i) of the CAA lets EPA delete source categories from the category list—the consequence again being no MACT control—if it determines that, for emissions of carcinogenic HAP, “no source in the category * * * emits such [HAP] in quantities which may cause a lifetime risk of cancer greater than one in one million to the individual in the population who is most exposed to emissions of such pollutant from the source.” For noncarcinogens, EPA may delete source categories if it determines that “emissions from no source in the category or subcategory * * * exceed a level which is adequate to protect public health with an ample margin of safety and no adverse environmental effect will result from emissions from any source.” CAA section 112(c)(9)(B)(ii). Moreover, in defining which source modifications trigger additional regulatory standards, CAA section 112(g)(1)(A) mentions a “greater than de minimis increase in actual emission of a [HAP].” This shows that Congress knew how to use the de minimis concept when it considered such was appropriate in section 112, and the fact that it did not use it in section 112(d)(3) supports EPA's—and the D.C. Circuit's—conclusion that it is unavailable to support an exception to a MACT floor.

The EPA does not find persuasive the commenter's reliance on CMA v. EPA, 217 F.3d 861, 866 (D.C. Cir. 2000) for the proposition that the overall purpose of section 112 is protecting human health and the environment, and that, therefore, as long as this general purpose is met, EPA may fashion de minimis exceptions from MACT. First, this position appears to assume that the issue is to be drawn on a clean slate, while in fact the same court has affirmed EPA's view that section 112(d)(3) provides no discretion to use a de minimis rationale to avoid MACT, and the CMA case was not faced with it. Second, the commenter appears to give prominence to an over-arching statutory goal over the specific language of the statutory provisions themselves, in assessing whether those provisions are “extraordinarily rigid” regarding EPA's otherwise-inherent de minimis authority; the logical extension of such an approach would be to find that no single provision in the CAA could restrict EPA's de minimis authority, in light of the CAA's over-arching purpose “to promote the public health and welfare.” CAA section 101(b)(1). Third, the commenter does not present any statutory arguments to overcome those that EPA presented to the court—and which the court affirmed—in NLA, beyond noting that CAA section 112(d)(8) is even more extraordinarily rigid in requiring regulation of coke ovens than is otherwise the case for MACT standards. Finally, EPA is unable to discern the basis for the commenter's suggestion that EPA has in fact “been relying on” de minimis authority in the MACT program “for years,” and is not aware of any instance in which EPA has explicitly created such an exception from an identified MACT floor. Therefore, and for the additional reasons discussed below, EPA does not believe it is appropriate or necessary to revisit the Agency's and the D.C. Circuit's prior conclusions regarding the availability of the de minimis principle in the final OLD NESHAP.

However, for the final rule, we are promulgating a 5 percent HAP by weight threshold for non-crude oil liquids in the definition of an organic liquid. No such cutoff is being adopted for crude oil. There are several reasons why we believe such a cutoff is appropriate for the final OLD NESHAP, which EPA believes support the use of a non-crude oil 5 percent cutoff without having to rely upon a legally unavailable de minimis theory. During the planning and development of the proposed rule, we intended to reduce HAP emissions from the distribution of organic liquid products that were either pure HAP liquids, mixtures of HAP and non-HAP liquids, or crude oils. As stated, our intent was to focus on products (including crude oil, which is a naturally occurring product) “intended for further use or processing.” Therefore, we focused our data gathering efforts on five 2-digit Standard Industrial Classification (SIC) codes that we believed represented the vast majority of the facilities nationwide engaged in the distribution of what we considered to be organic liquid products.

We surveyed facilities in these five 2-digit SIC codes asking broad questions about the liquids that they distributed that contained organic HAP. In evaluating and analyzing the data, we discovered that the types of liquids containing organic HAP, including some non-product liquids and liquids with very low organic HAP contents, were more diverse than we had expected. In addition, the types of facilities engaged in distribution of such liquids, were greater than we had assumed in developing the proposed rule, as was the degree to which unforseen facility types were distributing and controlling emissions from such liquids.

As stated above, such low HAP content non-crude oil liquids were not initially anticipated to be covered by the OLD rule, and may in many cases be the result of impurities or contaminants and not the result of an intended formulation of a product. These types of non-crude oil liquids (those with small HAP contents) can be found at many facilities outside the five 2-digit SIC that we targeted. At this point, based on the data collected for the OLD rule, we cannot ascertain the representativeness of our data for those industries in other 2-digit SIC codes that we did not survey. Nor can we ascertain how many additional emission sources (controlled or uncontrolled) might need to be added to the database to adequately assess the MACT floor for these facilities and non-crude oil liquids and make final, enforceable regulatory decisions. We believe that our current data are insufficient for this purpose and do not provide enough information about the emissions, emission controls in use, or potential to reduce emissions to complete the MACT floor analyses that we believe are appropriate to address the unexpected non-crude oil liquids and facility types that we did not foresee as being subject to the OLD rule when we developed the proposal. As a result, we do not have sufficient data to develop regulatory requirements, including those regarding emissions control and reduction, and monitoring, recordkeeping and reporting, for low HAP-content non-crude oil liquids. We also do not currently have the flexibility in our schedule to allow us to gather the necessary additional data to assess requirements for these low HAP-content non-crude oil liquids prior to the consent decree date for promulgation of the final OLD rule. Section 112(d)(3)(A) and (B) of the CAA directs EPA to base existing source MACT floor determinations on “emissions information” which EPA “has” or “could reasonably obtain.” Rather than adopt requirements for low-HAP non-crude oil liquids based on insufficient data, EPA is proceeding with the final OLD NESHAP as initially envisioned and supported.

We are also concerned that if we were to lower or eliminate the 5 percent HAP content cutoff level for non-crude oil liquids, the final OLD NESHAP would have previously unforeseen impacts on a significant number of Department of Defense (DoD) facilities, at a time when the Federal government as a whole is re-assessing the extent to which it is appropriate to subject DoD facilities to regulatory requirements. There was a consensus among representatives of the DoD that the OLD rule as proposed (a 5 percent HAP content cutoff) would not impact the storage and distribution of many types of fuels and other liquids in use at military installations. However, if non-crude oil liquids with less than 5 percent HAP were included in the definition of organic liquids as written in the final OLD rule, many DoD facilities would be subject to the final rule and impacted in ways that DoD representatives have informed EPA may seriously compromise the military function. The potential impacts of facilities such as these becoming subject to the final OLD rule were not considered at proposal. No information was provided by commenters, including DoD or others, during the public comment period that would be useful in quantifying the potential impacts of lowering or eliminating the cutoff for these facilities. In light of the sensitivity of this issue, EPA believes it would be inappropriate to proceed with the final rule in a form that might cause unforeseen and as-yet un-analyzed impacts on DoD facilities.

After evaluating the issues discussed above, we have concluded that the most appropriate approach for the final OLD NESHAP, and the one that is most consistent with the CAA's directives, is to adopt a definition of organic liquid that includes a HAP content cutoff level for non-crude oil liquids. We have also concluded that the proposed level of 5 percent is a reasonable separation between our intended scope of products and those non-crude oil liquids that contain low amounts of HAP, often as impurities and contaminants.

For vapor pressure, we have only a small amount of data for non-crude oil liquids with true vapor pressures less than 0.1 psia. The data we do have are not representative of the universe of such low vapor pressure non-crude oil liquids and are not sufficient to enable us to support a MACT floor or emission standard requiring controls. We conclude that for a non-crude oil organic liquid to be subject to the final OLD rule, the organic liquid must have a total vapor pressure of at least 0.1 psia and must also contain at least 5 percent HAP by weight.

With regard to the comments about excluding organic liquids that are not predominantly HAP and including primarily aqueous or inorganic liquids, we investigated the HAP emission potential for solutions of HAP in organic liquids, inorganic liquids, and water (or mostly water). Based on consideration of the volatilization properties of organic compounds in various types of liquid media, we cannot support the suggestion for limiting the scope of the organic liquid definition. More detail on our analysis of this issue can be found in a memorandum in the docket.

Lastly, we have included a list of exempt liquids in the definition because the liquids are well defined and would exhibit such low vapor pressure that they would not exceed the 0.1 psia vapor pressure threshold.

Comment: One commenter requested that EPA clarify that the evaluation of crude oil as an organic liquid is only applicable after custody transfer.

Several commenters felt that “black oil” should be redefined based on whether it has the potential for flash emissions rather than in terms of the gas-to-oil ratio (GOR) and API gravity because petroleum transporters, petroleum marketers, and major petroleum product testing laboratories do not commonly use the gas-to-oil ratio. One commenter suggested that, for OLD MACT applicability, “black oil” should be determined solely on the basis of API gravity. This commenter also noted that for the purpose of “black oil” determination, the point of entry to the distribution system should be defined as the point of entry to the affected facility. Two other commenters felt that the determination should be made at a point that is representative of the combined crude oil stream.

One commenter provided data on crude oils handled throughout the country, including the Alaskan oil pipeline and the Valdez Marine Terminal (VMT). These data indicated that the API gravities for all of these crude oils average less than 40 degrees. For example, the blended North Slope crude oil loaded at the VMT ranges from 23 degrees to about 28 degrees, with most of it averaging 26 degrees API. The commenter concluded that if the OLD NESHAP are finalized with an exemption for crude oils having an API gravity less than 40 degrees, the effect will be to exclude virtually all crude oil from the final OLD rule.

Response: We have clarified in the final rule that only crude oil after the first point of custody transfer is subject to the final rule.

As discussed in the proposal preamble, the exclusion of black oil from the definition of crude oil (and hence from the family of regulated “organic liquids”) was based on a similar exemption in the Oil and Gas Production NESHAP, 40 CFR part 63, subpart HH. Based on the comments received and additional data ( e.g. , typical API gravities of crude oil distributed), we have discovered that most crude oil being distributed at OLD facilities would have been excluded from the final rule, even though our impacts analyses assumed most crude oil was subject to control. Moreover, in the reevaluation of our data, we determined that there are emission reduction floors for crude oil. Furthermore, the emission potential of crude oil is the same as for other organic liquids with similar HAP and HAP contents, and the total HAP emissions can actually be much larger due to the significant volumes of crude oil being distributed.

We have revised the definition of organic liquid to include all crude oil (after the first point of custody transfer) and have deleted the “black oil” exemption, the exclusion for heavier crude oils ( i.e. , those with an API gravity less than 40 degrees), and the parameter “gas-to-oil-ratio” as a measure of applicability for crude oil. Under the final rule, crude oil will be subject to the same storage tank capacity and HAP vapor pressure criteria used to determine control requirements for other organic liquids.

Comment: We received comments stating that EPA Method 18 is not an appropriate method for determining the organic composition of liquid streams, and that only the analytical requirements of EPA Method 18 should be made applicable in the final rule.

The commenters stated that testing should not be required if a material is already known to be a regulated organic liquid through process knowledge, an approach EPA has used in other rules, or if the material transferred is a commercial product with established specifications and is accompanied by an MSDS based on prior analysis.

Response: After reviewing the EPA's analytical test methods, we are in agreement with these commenters that EPA Method 18 is not an appropriate method for liquid analysis of the type that will be performed under the final OLD NESHAP. The EPA Method 18 is appropriate for determining the HAP content in air streams, not the HAP content in liquids. We are now specifying EPA Method 311 of appendix A of 40 CFR part 63, which is titled “Analysis of Hazardous Air Pollutant Compounds in Paints and Coatings by Direct Injection into a Gas Chromatograph.”

The final rule includes provisions that allow the owner or operator of an affected OLD operation to use a variety of information available to them to determine whether a given liquid meets the HAP content criteria in the definition of “organic liquids.” Information such as product data sheets or MSDS, as well as knowledge of commonly accepted formulations for certain products, may be used to designate materials as above or below the HAP content criteria.

While the owner or operator will not be required to test each liquid, EPA may require a test using EPA Method 311 (or an approved alternative) to confirm the reported content of organic HAP (from Table 1 to subpart EEEE of part 63) in the liquid. In the event of any inconsistency between information provided by the owner or operator and the values obtained using the test methods, the results obtained through the use of an approved test method ( e.g. , EPA Method 311) will govern compliance determinations.

Comment: One commenter felt there is an issue of the reliability of determining vapor pressures at 0.1 psia and lower. Since true vapor pressure is uncertain for low volatility stocks (such as distillate oils), EPA should allow the use of a surrogate property. The commenter suggested allowing the use of a flash point of 100°F as a surrogate for the 0.1 psia vapor pressure cutoff.

Response: We agree that measured values of liquid vapor pressure become increasingly uncertain as the vapor pressure decreases. In order to avoid the difficulties of these measurements for liquids with very low volatilities, and also to be consistent with other rules such as the HON, we have changed the basis for determining the vapor pressure of an organic liquid. Under the final rule, the vapor pressure may be determined by using the specified test methods or by using a calculated value based on knowledge of the organic HAP content of the liquid. As vapor pressure may now be a calculated value, it is not necessary to use a surrogate approach. Also, we have included a list of exempt liquids in the definition of organic liquids because the liquids exempted are well defined and would exhibit such low vapor pressure that they would not exceed the 0.1 psia vapor pressure threshold. Therefore, the final rule does not incorporate the flash point approach.

Comment: Two commenters stated that the storage tank capacity and vapor pressure criteria need to be reevaluated. The commenters noted that the proposed cutoffs in Table 2 to subpart EEEE of part 63 for applicability of storage tank controls are the same as those in the HON, and stated that the HON criteria should not set a precedent for any other source category. The commenters pointed out that other MACT rules that have followed the statutory procedure for MACT floor determination, such as the Refinery MACT, have concluded that the values for these criteria should be much higher. One commenter stated that the storage tank capacity and vapor pressure applicability criteria should, in fact, be consistent with 40 CFR part 63, subpart CC (Refinery MACT I). According to the commenter, these differences lead to confusion about applicability for facilities that must comply with several MACT rules.

Response: Applicability criteria are established based on the MACT floor and beyond-the-floor determinations and are made independently for each source category. This determination depends on the data available for each category. Since the data reflect different tank sizes and liquids stored, the applicability criteria may, and do, vary from one rule to the next. Therefore, it is not necessary or appropriate that the OLD applicability criteria be the same as for the Refinery MACT. Further, based on the re-analysis of the database, the applicability criteria for the final OLD rule have been written to better reflect our OLD database and no longer matches the HON applicability criteria.

One commenter was concerned about the potential confusion differences in applicability criteria may create for facilities that must meet several MACT rules. There should be no confusion at such facilities. The OLD NESHAP will not conflict with other storage tank applicability requirements, as storage tanks that are already subject to an existing 40 CFR part 63 subpart rule will continue to be subject to that subpart. The fact that an owner or operator must comply with different NESHAP for different storage tanks simply means that the owner or operator will have to implement an accurate and more exact accounting of which NESHAP apply to which tanks. This needs to be done only once, provided storage tanks do not change source categories.

Comment: Several commenters stated that the final OLD NESHAP should include a vapor pressure threshold for transfer rack control. The commenters suggested that a 1.5 psia threshold ( i.e. , no control for a rack if all transferred liquids are below the threshold), which was used in the HON and in the Marine Tank Vessel Loading NESHAP, be adopted. These commenters did not believe that cost-effective controls could be implemented for these low vapor pressure materials because of the low level of emissions. They also felt that mandating controls for these low volatility liquids could result in greater emissions from the control device than from the loading activities.

Response: In response to these comments, we re-examined the OLD database to determine the relationship between the current level of transfer rack control and the organic HAP vapor pressures. We determined that MACT floors consisting of the use of a control device existed for transfer racks handling liquids with vapor pressures greater than 0.1 psia at both new and existing sources. Since the MACT floor for loading activities down to this level is a closed vent and control system, we did not include a vapor pressure criterion for transfer racks in the final rule. We note, however, that transfer racks transferring non-crude oil liquids with total vapor pressures less than 0.1 psia ( i.e. , liquids that are not “organic liquids” for purposes of the OLD NESHAP) are not subject to the final OLD rule.

Comment: One commenter suggested that EPA's proposed exemption from control for the following emission sources: (a) storage tanks below 10,000 gallon capacity, (b) transfer racks with annual throughput less than 3.12 million gallons, and (c) pumps and valves in organic liquids service for less than 300 hours per year is unlawful because it allows unregulated HAP emissions.

Response: Based on a reevaluation of our database, we have revised the emission source criteria approach for storage tanks and transfer racks in the final rule. We are, however, retaining the 300 hour per year requirement for pumps and valves. Each of these items is discussed below.

Storage tanks below 10,000 gallons capacity. At proposal, we proposed to exclude from control new tanks with capacities of less than 10,000 gallons and existing tanks with capacities of less than 20,000 gallons. This exclusion was based on other MACT rules with storage tank standards that exclude such tanks from control. We have revised the database to include only those tanks likely to be subject to the final OLD rule and re-calculated MACT floors based on the remaining tanks in the database. We retained the basic analysis methodology of examining tanks by capacity and vapor pressure ranges, using common capacity and vapor pressure ranges ( i.e. , those frequently found in other rules) and by examining the cumulative level of control across these ranges.

Based on the revised analysis, the only MACT floors requiring emission reduction that were identified for existing tanks with less than 10,000 gallons capacity were for those tanks with capacities between 5,000 and 10,000 gallons capacities that are included in the 5,000 to 50,000 gallons capacity range containing non-crude oil liquids with a HAP partial vapor pressure equal to or greater than 4.0 psia or crude oil.

For new sources, a MACT floor requiring emission reduction was identified for tanks with 5,000 to 10,000 gallons capacities containing non-crude oil liquids with a HAP partial vapor pressure equal to or greater than 4.0 psia or crude oil. A MACT floor was also identified for tanks with capacities of 10,000 gallons or more and containing non-crude oil liquids with a HAP partial vapor pressure equal to or greater than 0.1 psia or crude oil. We have used these findings to determine the applicability criteria (tank capacity and HAP partial vapor pressure) to determine which tanks will be subject to control.

For those tanks for which the MACT floor was found to be “no emission reduction,” we conducted a beyond-the-floor analysis, and we have determined that there are no feasible or cost effective beyond-the-floor alternatives for these storage tanks. Therefore, the final rule does not include control requirements for tanks for which the MACT floor was determined to be “no emission reduction.”

In conclusion, the final rule is driven by the data for the OLD source category and includes capacity and vapor pressure criteria based on those data to determine which OLD storage tanks are required to be controlled and those that are not required to be controlled. Requiring no additional emission reduction from certain tanks is justified by the available data, meets the mandates of the CAA, and is not unlawful.

Transfer rack loading positions below 3.12 million gallons per year. As for storage tanks, we proposed to exclude relatively smaller transfer rack positions from control based on the requirements of other 40 CFR part 63 subparts ( e.g. , subparts SS and YY define a low throughput transfer rack as one that transfers less than a total of 11.8 million liters/yr (3.12 million gallons per year) of liquid containing regulated HAP). This throughput is equivalent to about 9,000 gallons per day, or the filling of approximately one tank truck.

Based on a re-analysis of the data (as described for storage tanks above), we determined that this applicability criterion is not appropriate for the OLD source category. Our data re-assessment indicates that there are emission reduction MACT floors for existing and new transfer racks above and below the 3.12 million gallons per year threshold. Therefore, the final rule does not adopt the 3.12 million gallons per year exemption for transfer racks.

Equipment in organic liquids service less than 300 hours per year. The stringency of a LDAR program is based on a number of factors. These factors include the definition of “in organic HAP service” ( e.g. , 5 percent HAP, 10 percent HAP), the leak definition ( e.g. , 500 ppmv, 10,000 ppmv), the frequency of monitoring ( e.g. , monthly, quarterly, annually), and exemptions for monitoring requirements ( e.g. , difficult to monitor components, in service less than 300 hours per year). The smaller the values associated with the definition of “in organic HAP service” and the leak definition, and the more frequent the monitoring, the more effective the LDAR program (better emission reduction). The more exemptions, the less effective the LDAR program.

In examining the LDAR programs in place at OLD facilities, we evaluated the overall effectiveness of the programs, including each of the aforementioned items. In general, the majority of the LDAR programs in place at OLD facilities use a 10 percent HAP in organic HAP service definition and do not contain a 300-hour per year in service exemption because the LDAR programs tend to be State or local rules or older New Source Performance Standard-type rules. The proposed rule allowed an affected source to comply with either of two NESHAP (40 CFR part 63, subpart TT or UU) for equipment leaks. While both of these NESHAP contain an exemption for components in service less than 300 hours per year, they have an “in organic HAP service” definition of 5 percent (not 10 percent). When compared to a 10 percent “in organic HAP service” definition without a 300-hour per year exemption, a LDAR program with a 5 percent “in organic HAP service” definition with a 300-hour per year exemption is more effective in reducing emissions ( i.e. , is more stringent). This occurs, in part, because there are more components caught by lowering the “in organic HAP service” definition than are “lost” due to the 300-hour per year in service exemption and, in part, because there are less emissions associated with components operating only 300 hours per year than from components in the 5 to 10 percent organic HAP range.

The 300-hour per year in service exemption has been provided in previous rules primarily to address equipment that has only occasional use in HAP service. Examples of such equipment are pumps and compressors used only during startup and shutdown of a process unit. Equipment in use less than 300 hours per year would be difficult to monitor within a regularly scheduled LDAR program, and very little emission reduction would be realized by including them.

The analysis of equipment LDAR programs in place within the OLD industry indicated that the 300-hour service exemption with monthly instrument-based inspections results in a level of control at least as stringent as the MACT floor level of control. Our investigation of the available control approaches for controlling equipment leaks did not identify any control approaches that would be beyond-the-floor level and also cost effective.

Therefore, for the reasons stated above, we are not removing the 300 hours per year exemption from the LDAR programs specified in the final rule.

Comment: One commenter stated that the CAA requires EPA to promulgate standards for all emission points at all major sources, and that exemptions based on capacity, throughput, and hours of service violate that requirement. The commenter noted that EPA attempts to justify the exemptions by arguing that the exempted facilities do not have a volume of emissions that warrants control, but the Agency does not claim that these emissions are de minimis .

Response: The EPA disagrees with the commenter's suggestion that every emission point at an affected source must be required to reduce emissions. Section 112(a) of the CAA does not state, or imply, that all emission points must be subjected to control requirements in standards promulgated under section 112. Section 112(d)(1) allows the Administrator to distinguish among classes, types, and sizes of sources within a category or subcategory in establishing such standards. We interpret this provision for the final OLD rule, as we have for previous NESHAP, as allowing emission limitations to be established for subcategories of sources based on size or volume of materials processed at the affected source. Under the discretion allowed by the CAA to consider sizes of sources, we made the determination that certain small-capacity and low-use operations can be analyzed separately for purposes of identifying the MACT floor and determining whether beyond-the-floor requirements are reasonable. With regard to whether emissions from certain groups of sources are “ de minimis ,” the commenter did not elaborate on its interpretation of this term or how it might apply in discussing the OLD applicability criteria for emission limitations.

Comment: One commenter stated that the EPA has no discretion to exempt certain OLD emission sources such as container filling, wastewater collection, and semi-aqueous waste. Several other commenters stated that the final rule should explicitly state that wastewater operations, including the treatment, storage, transfer, or discharge of wastewater, are exempt from the final OLD NESHAP. Some commenters were concerned that the rule as proposed would regulate hazardous waste transfer and conveyance systems that are collocated at manufacturing facilities that are major sources for HAP and requested that EPA allow such sites to utilize alternate LDAR programs established under 40 CFR part 265, subpart BB, and 40 CFR part 63, subpart GGG.

Response: As previously discussed, the proposed rule would reduce HAP emissions from the distribution of organic liquid products that were either pure HAP liquids, mixtures of HAP and non-HAP liquids, or crude oils, focusing on products (including crude oil, which is a naturally occurring product) intended for further use or processing. The handling of wastewater and semi-aqueous waste is not part of the distribution of organic liquid products. The definition of “organic liquid” in the final rule excludes hazardous waste, wastewater, and ballast water. In addition, the final rule clearly states that emission sources that are part of the affected source under another 40 CFR part 63 rule (such as oil and natural gas production) are not included in the affected source for the final OLD rule.

However, based on a review of data on container filling operations, we have determined that the only MACT floor for either existing or new sources is a new source floor for container filling operations. We identified one container filling operation that controls emissions by performing the operation in a total enclosure that is vented to a thermal oxidizer. This level of control meets the level 3 control for container filling found in 40 CFR part 63, subpart PP, the National Emission Standards for Containers. We have not, however, identified any technology that would achieve cost-effective beyond-the-floor control for new source container filling operations. The final rule requires owners or operators of new container filling operations to comply with the level 3 control requirements found in § 63.924 of subpart PP.

Comment: A commenter claimed that EPA set the floor for new storage tanks the same as the floor for existing tanks without demonstrating that the floors reflect the best performing source, and claimed that EPA set the floor for existing transfer racks as the use of a control device with 95 percent control efficiency based on a “cursory analysis.”

The commenter states that EPA's proposed emission standards do not reflect the maximum achievable degree of reduction in emissions, and that EPA failed to adequately consider beyond-the-floor standards for each of the three regulated emission sources.

Response: As a clarification, the averaging process (for either the arithmetic average or the median) is applied to the top 12 percent of sources and not to the whole data set. This approach, consisting of more than one possible way of determining floors, is a practical necessity when working with the results of an averaging process. In examining our database and evaluating it based on comments, we have used the median source of the top performing 12 percent of existing sources where there are at least 30 sources, or the median source of the top performing five sources where there are fewer than 30 sources to determine MACT floors for the final OLD rule. Our methodology for determining MACT floors for existing sources is reasonable and conforms to the legal requirements of the CAA.

In developing the proposal and performing the MACT floor analysis for storage tanks, we evaluated each of the three primary types of tanks used for storage of organic liquids. These tank types are characterized by their basic construction and are referred to as fixed roof, internal floating roof, and external floating roof tanks. The selection of which type to use in a given situation is based on factors including capacity, types of liquids to be stored, climate, throughput, and cost. The emission control approach utilized for storage tanks differs depending on the tank type. The most common emission control approach for organic liquids storage tanks is floating roof technology, installed as either an internal or external floating roof. Floating roofs with properly designed seals and gaskets have been determined to perform at the highest level of emission control in use for storage tanks. External floating roof tanks achieve a somewhat lower control efficiency, because the vapor space above the floating roof is open to the atmosphere. However, the application of floating roof technology is the best demonstrated technology for this type of tank construction. For these reasons the Agency has developed storage tank equipment standards that specify in detail the design features that must be incorporated into a compliant floating roof design.

The emission reductions that can be achieved by add-on control devices on fixed roof tanks are equivalent to the reductions that can be achieved by floating roof technology. As with floating roof technology, the performance of the various types of add-on controls are somewhat variable depending on operational factors such as the types of liquids being stored and the tank filling rate. Properly designed and operated add-on control systems have been demonstrated to achieve emission reductions of 95 percent or greater from fixed roof storage tanks.

We developed MACT floor levels of control for the range of tank capacities and HAP vapor pressure of liquids stored based on the OLD storage tank database. The MACT floor level of control that was determined from the database is the use of properly designed floating roof technology or an add-on control device achieving a 95 percent reduction in HAP emissions. The MACT floor for storage tanks at new sources is not the same as the floor for tanks at existing sources. The new source storage tank floor is more stringent because the control requirements extend to tanks storing liquids with lower vapor pressures ( i.e. , more tanks will undergo control than at existing sources). New storage tanks in the 10,000 to 50,000 gallons capacity range will be subject to control under the final OLD rule at HAP vapor pressures as low as 0.1 psia (versus 4.0 psia for existing tanks in this same capacity range).

Based on our review of the types of control devices in use (primarily incinerators, adsorbers, and scrubbers) and the range of control efficiencies reported (approximately 20 percent to over 99 percent), we proposed that 95 percent was the most appropriate control efficiency for transfer operations. We selected this value based on the known capabilities of these control devices and on regulatory limits specified in other rules.

Following proposal, we re-analyzed our OLD database and determined that the MACT floor for transfer racks at existing and new sources is a control efficiency of 98 percent, based on the best performing sources. The 98 percent level of control has been shown to be achievable by well-designed and operated combustion devices. The choice of control options is not limited to combustion devices, however, as vapor balancing systems also achieve the required 98 percent control level where they are technically feasible.

In evaluating beyond-the-floor alternatives, we examined the ability to switch products, the ability to switch fuels, the potential for improved performance of add-on controls at already controlled sources, and the use of add-on control devices to reduce emissions from sources for which we determined the floors were “no additional emission reductions.”

The emission sources subject to the OLD rule are storage tanks, transfer racks, and equipment leak components (pumps, valves, and sampling connections). The liquids that are stored in storage tanks are those liquids required by a facility or its customers. It is not feasible for a facility to switch to a lower vapor pressure liquid when its customer requires a specific liquid. Therefore, product switching is not a feasible beyond-the-floor alternative for storage tanks. For the same basic reason, product switching is not a feasible beyond-the-floor alternative for transfer racks. Finally, equipment leak components can only leak what is in the process stream that they contact. Those process streams come from OLD storage tanks and transfer racks. As product switching is not feasible for tanks and racks, it is not feasible for equipment leaks.

With regards to fuel switching, the emissions that occur from tanks, racks, and equipment leak components have no fuel sources associated with them. The emissions occur as the result of displaced vapors when loading, breathing losses, and leaks. There are no fuel sources to “switch.” Therefore, fuel switching is not feasible.

The use of add-on control devices, including vapor balancing, however, represents a feasible beyond-the-floor alternative for storage tanks and transfer racks. Our analyses of beyond-the-floor alternatives for those emission sources for which we determined the floors are “no emission reduction,” showed cost-effectiveness values greater than $10,000 per ton for storage tanks and greater than $50,000 per ton for transfer racks. We have determined that these values are not reasonable. Further, because add-on controls were determined to be “not cost effective,” we did not evaluate the associated impacts of add-on controls for energy and other non-air quality environmental impacts. We note here that we have included in the final rule the option for transfer racks of using a vapor balancing system where technically feasible. These systems have demonstrated control efficiencies of 98 percent or greater ( i.e. , floor levels of control).

Our investigation of the available control approaches for controlling equipment leaks did not identify any control approaches that would be beyond-the-floor level and also cost effective. We are, therefore, promulgating equipment leak standards based on the floor level of control determined from the OLD database.

Comment: Commenters stated that the proposed rule text did not indicate whether the entire CAA section 112 HAP list or the proposed OLD Table 1 to subpart EEEE of part 63 HAP list is the appropriate chemical list to use for the various determinations and performance demonstrations, even though the proposal preamble notes that organic HAP listed on Table 1 to subpart EEEE of part 63 (and all crude oil except black oil) are the “regulated liquids.” One commenter noted that the proposal did not include emission standards for 24 of the 93 organic HAP that EPA claims are emitted from OLD operations, based on the Agency's claim that the HAP for which standards were not set are lower in volatility and have lower potential to be emitted.

Response: We have written Table 1 to subpart EEEE of part 63 to include all of the organic HAP identified as being present in OLD liquids. The control devices and work practice standards in the final OLD rule affect all of the HAP in an OLD liquid, even those that have lower emission potential due to their low vapor pressure. By including all of the known organic HAP in Table 1 to subpart EEEE of part 63, there is no longer any inconsistency between the HAP emitted by OLD operations, the HAP used to determine whether control is required, and the HAP used to demonstrate compliance. Therefore, while the initial determination of whether an entire facility meets the criteria for being a major source is based on all the HAP listed in the CAA, compliance with the final OLD rule is based only on the 98 HAP found in Table 1 to subpart EEEE of part 63.

Comment: One commenter pointed out that EPA has proposed allowing sources to meet a standard for TOC emissions rather than meeting any standard for HAP, stating that the Agency cannot credibly claim that TOC is a valid surrogate for all HAP that OLD facilities emit. In addition, the TOC option would result in control of even fewer HAP. For these reasons, the commenter believes this provision of the proposal is unlawful.

Response: The primary format for the emission limits in the final OLD rule is a control efficiency standard for organic HAP. At proposal, we offered the option of complying with the percent reduction standards using a TOC format. The use of “surrogate” pollutants is an accepted practice in environmental regulation, because it is often reasonable to infer similar behavior among members of a class of pollutants that share a common attribute. Dithiocarbamate Task Force v. EPA, 98 F.3d 1394, 1399 (D.C. Cir. 1996); NRDC v. EPA, 822 F.2d 104, 125 (D.C. Cir. 1987). Significant regulatory cost and time can be saved by relying on that relationship; monitoring, sampling, and recordkeeping can be reduced when a surrogate pollutant, rather than numerous individual pollutants, are tracked. Specifically, EPA's use of a surrogate pollutant in the MACT program has been upheld as reasonable in judicial review, where the court held that if control of the surrogate pollutant is the means by which sources achieve reductions in multiple HAP, EPA may require surrogate control without quantifying the reduction in HAP thus achieved. NLA v. EPA , 233 F.3d 625, 639 (D.C. Cir. 2000). After evaluating the comments, we have retained the optional TOC measurement format, but have added a requirement for a demonstration by the owner or operator that the HAP emission reduction achieved is at least as stringent as the TOC emission reduction for their affected sources. To make this demonstration, the owner or operator will have to show that the ratio of captured organic HAP-to-TOC is at least 1-to-1, such that it can thereafter be assured that capture of TOC will result in capture of organic HAP to at least as stringent a level as required. After the initial demonstration to establish the relationship between HAP and TOC emission reductions, use of the TOC format will be an acceptable alternative emission limit.

For the 20 ppmv outlet concentration standard, the use of TOC is an acceptable option without an equivalency determination. Because measured TOC in a gas stream includes all HAP, and may include some organic compounds that are not HAP, the concentration of HAP at the outlet of a control device will always be less than the measured TOC value. Thus, the limitation of TOC to a maximum concentration of 20 ppmv will always result in HAP emissions of 20 ppmv, or less.

We initially selected the TOC format as a possible alternative for the standards to provide flexibility for source owners and operators, while still requiring the MACT level of emission control to be achieved. The requirements of the final OLD rule will accomplish both objectives by allowing the use of a demonstrated surrogate, in appropriate cases. The approach adopted in the final rule will ensure that in all cases where the TOC surrogate is used, the correlation between the surrogate and organic HAP will have been demonstrated, and that control of the surrogate will achieve emission reductions of organic HAP at least as stringent as under the organic HAP limit.

Comment: Several commenters stated that the proposed rule fails to provide for the use of a number of proven emission reduction options and focuses primarily on closed vent systems and control devices. The commenters stated that EPA must allow the option of vapor balancing for storage tank and transfer rack emission reduction. Further, emission reduction options such as cooling the liquid in a storage tank to reduce vapor pressure, maintaining an inert gas blanket, or routing emissions to a fuel gas system or to a process should be specifically stated to be acceptable alternatives for compliance with the proposed rule.

Response: We have considered these comments and reviewed the provisions of the HON and other MACT rules that allow the alternative of vapor balancing, and we have added vapor balancing to the final rule as an alternative control approach for transfer racks ( i.e. , to control HAP vapors displaced during the loading of transport vehicles). Vapor balancing is a highly efficient (98 percent or greater) means of reducing the emissions of vapors displaced during the loading of transport vehicles. Vapor balancing to a fixed roof tank with an add-on control device may be a viable option for facilities that utilize this type of tank. However, vapor balancing is not technically feasible in all cases.

We recognize that, for the variety of liquids and equipment configurations that exist at OLD operations in many different industries, there may be numerous control approaches that would reduce HAP emissions to a degree equivalent to an end-of-pipe control system. Cooling a liquid may reduce its actual vapor pressure below the threshold for control in a storage tank, in which case the storage tank control requirements would not apply. The final rule addresses the routing of emissions to a fuel gas system or a process in §§ 63.2346(a) and (b) and 63.2378(d). We have not added the use of an inert gas blanket as an approved control measure because we have no evidence (and the commenters did not provide any) that this approach inherently provides the level of control required by the final standards. However, § 63.2346(g) of the final rule provides for requests for approval to use any other alternative approach. We have added a reference to § 63.177 of the HON to provide a more structured method for receiving approval of approaches that are not specifically listed in the final rule.

Comment: One commenter requested that the availability of the floating roof option be limited to those storage tanks storing stock with an annual average true vapor pressure of less than 11.1 psia. Proposed Table 4 allows compliance with 40 CFR part 63, subpart WW (floating roof control), as an alternative compliance measure for storage tanks, but without this vapor pressure restriction. Other EPA rules require controls on tanks storing stocks with vapor pressure greater than 11.1 psia (if the tank is in the capacity category that is subject to controls), but they do not allow the use of floating roofs as a control option for these higher volatility stocks. Several commenters also recommended that the storage tank definition should exclude pressure vessels designed to operate in excess of 204.9 kilopascals (29.7 psia) and without emissions to the atmosphere.

Response: We have written the final OLD rule to limit the application of floating roof technology to storage tanks containing organic liquids with an organic HAP annual average true vapor pressure less than 76.6 kilopascals (11.1 psia). For affected tanks with liquids ≥11.1 psia, only a closed-vent system and control device may be used. The OLD storage tank definition has also been written to exclude from OLD coverage pressure vessels designed to operate in excess of 204.9 kilopascals (29.7 psia) and without emissions to the atmosphere.

Comment: One commenter noted that EPA proposed to regulate equipment leaks through work practice standards, and EPA has not determined that it is not feasible to prescribe or enforce an emission standard. In fact, EPA notes in the TSD that leakless equipment, such as seal-less pumps, can “eliminate emissions entirely.”

Response: We have previously determined in the development of rules such as the HON that emission standards (in the format of a numerical emission limit) are not feasible for equipment leaks. Under section 112 of the Act, national emission standards must, whenever possible, take the format of a numerical emission standard. Typically, an emission standard is written in terms of an allowable emission rate (mass per unit of time), performance level ( e.g. , 90 percent control), or an allowable concentration. These types of standards require the direct measurement of emissions to determine compliance. For some source types, emission standards cannot be prescribed because it is not feasible to measure emissions. Section 112(h)(2) of the CAA recognizes this situation by defining two conditions under which it is not feasible to establish an emission standard. These conditions are: (1) If the pollutants cannot be emitted through a conveyance designed and constructed to emit or capture the pollutant; or (2) if the application of measurement methodology is not practicable due to technological and economic limitations. If an emission standard cannot be established, EPA may instead establish a design, equipment, work practice, or operational standard or combination thereof.

For equipment leak sources, such as pumps and valves, EPA has previously determined that it is not feasible to prescribe or enforce emission standards. Except for those items of equipment for which standards can be set at a specific concentration, the only method of measuring emissions is total enclosure of individual items of equipment, collection of emissions for a specified time period, and measurement of the emissions. This procedure, known as bagging, is a time-consuming and prohibitively expensive technique considering the great number of individual items of equipment in a typical process unit. Moreover, this procedure would not be useful for routine monitoring and identification of leaking equipment for repair.

While we did not include this rationale in the OLD proposal, emission standards in the form of numerical emission limits are not feasible for components subject to the OLD equipment leak regulations, and we have included the rationale in the final rule for establishing the equipment leak standards under CAA section 112(h).

The use of leakless equipment, as discussed in the TSD, may not be compatible with many of the liquids transferred at OLD sources. For example, seal-less pumps use the pumped liquid for lubrication and cooling, and some transferred liquids may not be adequate in this capacity. Also, this equipment can develop leaks after a period of time, which would require an LDAR program similar to the program in place for traditional equipment. For OLD operations, we have not developed enough experience and do not have data to indicate that equipment emissions at these operations justify this extreme type of reduction approach. The LDAR program represented in the final rule is being used successfully throughout industry to maintain low leakage rates from equipment.

Comment: Several commenters believe that EPA should not require instrument LDAR to control equipment leaks at OLD facilities. They said that instrument scanning for equipment leaks is impractical and not cost-effective, and they recommended that the OLD MACT rule specify a sensory (sight, sound, smell) leak detection and repair program similar to that in the Gasoline Distribution MACT rule, 40 CFR part 63, subpart R. One of the commenters felt that many OLD sources are already subject to regular Coast Guard inspection as well as EPA's SPCC plan requirements. The gains from additional LDAR requirements on the same piping must be quite limited but would come with a substantial burden.

Another commenter noted that the preamble states that the Agency found that an instrument-based LDAR program similar to the HON represents the MACT floor, but the OLD MACT rule generally applies to facilities similar to bulk gasoline terminals. Consequently, Table 4 Item 3 should state: “You must comply with the requirement of subpart R of this part.”

Response: In our MACT analysis, we determined that the MACT floor for existing sources is an instrument-based LDAR program. We further determined that this is the best system of emission reduction available, so we selected it as MACT for existing and new sources. Therefore, allowing a sensory program would not represent MACT because such programs have not been demonstrated to the Administrator's satisfaction to be equivalent to equipment-based programs for OLD operations. We specifically requested data to show that sensory programs would achieve the MACT level of control. In the development of 40 CFR part 63, subpart R, industry provided such data for gasoline and the final rule allows sensory programs. The Agency has received no data to support the claim that sensory programs would achieve equivalent control for OLD operations. Therefore, we have not written the equipment leak standards in the final rule as requested by the commenters. The final rule provides flexibility by allowing LDAR programs that are consistent with the provisions of 40 CFR part 63, subpart TT, UU, or H.

Comment: One commenter felt that proposed Table 5 to subpart EEEE of part 63 needs to be revised to allow for design evaluations in lieu of performance testing for non-flare control devices controlling emissions from storage tanks, as 40 CFR part 63, subpart SS specifies. In proposed § 63.2362, there is no language explaining specifically when a design evaluation may be done in lieu of a performance test. In addition, it appears that you must conduct a performance test to demonstrate compliance with emission limits in Table 2 to subpart EEEE of part 63 for both storage tanks and transfer racks. The commenter provided suggested revised language to clarify § 63.2362 through references to applicable provisions of subpart SS.

A second commenter noted that the text of proposed § 63.2354(a) pertaining to “other initial compliance demonstrations” was imprecise and confusing, since there is nothing other than performance testing requirements in 40 CFR 63.7(a)(2).

One commenter noted that a source that qualifies as an existing source may already be obligated to perform initial performance tests as a condition of a new source review construction permit. In the event of overlapping requirements to perform initial performance tests, there should be coordination of the schedule by which the testing is to be performed.

Two other commenters noted that proposed § 63.2358 would require performance testing of a control device used to comply with the OLD rule even if it is the same control device already tested and in use for compliance with another 40 CFR part 63 NESHAP standard. They felt that a facility that has already conducted performance testing to comply with a more stringent NESHAP should be able to use those test results in place of a new performance test.

Response: We have written § 63.2354 of the final rule and Table 5 to subpart EEEE of part 63 to clarify that design evaluations may be used in lieu of performance testing for demonstrating initial compliance for nonflare control devices. The requirements in 40 CFR 63.985(b)(1) were developed to ensure that design evaluations include adequate documentation to demonstrate that the control device being used achieves the required control efficiency. By specifically listing this alternative to performance testing in the final OLD rule, we have provided additional flexibility to owners or operators and increased uniformity among the other MACT rules that affect them.

We have also written the language in § 63.2370 of the final rule to clarify that the initial compliance demonstrations referred to in that section are those initial compliance requirements contained in Tables 6 and 7 to subpart EEEE of part 63. We have clarified that the General Provisions in § 63.7(a)(2) impose a schedule for the performance testing, while design evaluations are to be submitted in the Notification of Compliance Status per § 63.985(b)(1) of 40 CFR part 63, subpart SS.

Under 40 CFR 63.7(h), the owner or operator of an affected facility may request a waiver of the performance test requirements. Individual performance tests may be waived if, in the Administrator's judgment, the source is meeting the relevant standard(s) on a continuous basis. The provisions allowing for submission of a request for a waiver of the performance test, accompanied by supporting information such as a documented performance test previously conducted on the device, should avoid the situation of overlapping tests.

Comment: One commenter stated that EPA has failed to mandate adequate continuous monitoring requirements and that, at a minimum, EPA must establish requirements that provide a reasonable assurance of compliance. As an example, EPA did not propose the use of continuous emission monitoring systems (CEMS), but rejected them on cost grounds without indicating why the costs are too high. Another commenter noted that 40 CFR part 63, subpart SS (§ 63.990(c)), allows for use of organic monitoring device CEMS as an alternative to the continuous parameter monitoring systems (CPMS) for which operating limits are to be established. The final OLD rule should include the same allowance.

Response: Section 112 of the CAA does not require EPA to impose a CEMS requirement in MACT standards. Instead, EPA has substantial discretion in exercising its technical expertise to devise a monitoring system that assures compliance with applicable requirements. NLA v. EPA, 233 F.3d 625, 635 (D.C. Cir. 2000); Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 (1989). Particularly, the D.C. Circuit has already ruled that parameter monitoring requirements provide the necessary assurance of continuous compliance with applicable requirements and enhance the enforceability of emission standards, as required by the CAA. NRDC v. EPA, 194 F.3d 130, 134-37 (D.C. Cir. 1999). The commenters should note that the proposal included a requirement (in § 63.2366(a)) to install, operate, and maintain a CPMS on each control device installed under the final OLD rule. These CPMS continuously measure an operating parameter of the control device that influences emissions (such as temperature inside a thermal incinerator, vacuum achieved during the desorption cycle of a carbon adsorption system, etc.). They have been widely prescribed in several other MACT rules and are specified under the monitoring requirements of 40 CFR part 63, subpart SS. We consider properly selected CPMS to provide a reasonable assurance of compliance with the applicable requirements established in the final OLD rule. Deviations from the established values (operating limits) for these parameters must be reported by the facility in their periodic reports to EPA.

Because CPMS are judged to provide a reasonable assurance of compliance and are generally less expensive to install and operate, a requirement to use CEMS is not necessary. While we are not requiring the use of CEMS in the final OLD rule, facilities may request to utilize CEMS as an alternative monitoring method under § 63.8 of the General Provisions.

In addition, we have added an option for the use of organic monitoring devices (one type of CEMS) to Table 9 to subpart EEEE of part 63. In accordance with the 40 CFR part 63, subpart SS, requirements in § 63.990(c), an organic monitoring device may be used (as an alternative to CPMS) where absorbers (scrubbers), condensers, and carbon adsorbers are used to meet a weight percent emission reduction or a ppmv outlet concentration requirement. Organic monitors provide a reasonable assurance of compliance by quantifying exhausted total organic compounds (pollutants), which in turn provides an indication of the proper operation of the control device. A properly operating control device will continue to achieve the required control levels for organic HAP specified in the final OLD rule.

The alternative of installing and operating either CPMS or CEMS, in conjunction with effectively managed control devices, will provide a reasonable assurance of compliance with the final OLD rule's requirements.

Comment: Several commenters asserted that EPA has proposed installation, operation, and maintenance requirements for continuous parameter monitoring systems in § 63.2366 of the final rule that are wasteful, unnecessary, and in some cases infeasible and will have environmentally negative impacts. Due to the significant problems associated with the proposed continuous parameter monitoring system requirements, EPA should withdraw these requirements from the OLD final rule and use the existing subpart SS requirements for continuous monitoring systems.

Response: We have decided not to include the performance specifications for CPMS in the final OLD rule as they were proposed. We have clarified in the final rule that owners and operators must comply with the continuous monitoring provisions of subpart SS. Since owners and operators subject to the final OLD rule are required to comply with the requirements of subpart SS, they are already required to follow written performance specifications. We have concluded that the requirements in subpart SS are adequate to ensure that CPMS are properly operated and provide reasonable assurance of continuing compliance with the standards.

In a separate action, we are currently developing performance specifications for CPMS that we intend to propose to be followed by owners and operators of all sources subject to standards under 40 CFR part 63. We decided it would be premature to promulgate performance specifications for the final OLD rule when the performance specifications that would ultimately be promulgated in the General Provisions of 40 CFR part 63 may be significantly different as a result of possible public comments received on that rulemaking.

Comment: One commenter stated that a minimum or maximum parameter monitoring limit should be established based on the parameter values measured during the performance test and supplemented by engineering assessments and/or manufacturer's recommendations. Nowhere in the proposal preamble, 40 CFR part 63, subpart EEEE, or any of the referenced standards is there any indication of how operating limits are established. The final OLD rule should allow the facility to establish the operating limits necessary to achieve the requirements of Table 2 to subpart EEEE of part 63. This would be consistent with the HON. In addition, the conditions for conducting performance tests should be consistent between Table 12 to subpart EEEE of part 63 (§ 63.7(e)(1)) and § 63.997(e)(1) of 40 CFR part 63, subpart SS, to avoid confusion.

Response: We have included in the final OLD rule a requirement for the owner or operator to develop and submit a monitoring plan according to the requirements in § 63.985(c) of 40 CFR part 63, subpart SS. The monitoring plan must specify the parameters that an owner or operator proposes to monitor and the range of acceptable values for each parameter. The final OLD rule specifies parameters that must be monitored unless the owner or operator chooses to request permission to monitor an alternative parameter. The final OLD rule does not, however, provide specific ranges of acceptable values for the monitored parameters. Owners or operators must establish monitored parameter limits based on performance testing or design evaluation information. Thus, the owner or operator now has the flexibility to establish monitoring parameter limits that are most appropriate for assuring that their particular equipment complies with the emission limitations.

Comment: Two commenters stated that, in Tables 3 and 9 to subpart EEEE of part 63, compliance with the operating limits should be based on a daily average value instead of an hourly average. They claim that using an hourly average as the basis for compliance with the operating limit is a very stringent requirement and is in direct conflict with numerous 40 CFR part 63 standards. They also claim that the use of daily averages instead of hourly averages supports every legitimate need of EPA's Enforcement Office, while still making compliance with the final OLD rule possible.

Response: We have evaluated the changes recommended by the commenters and have modified Tables 3 and 9 to require that daily average values of recorded parameters be used to determine compliance. Daily average values have been considered by EPA in other MACT rules to be sufficient to demonstrate compliance for the types of control devices in use within this industry. We concluded, after further evaluation, that an hourly average may not be sufficient to account for normal, short-term fluctuations of operating parameter values. Also, the parameter monitoring limits are normally established during performance testing that covers a span of three, 1-hour runs. This testing period helps ensure that short-term variations in operating conditions (temperature, flow rate, concentration, etc.) do not inappropriately bias the overall average. It is consistent with EPA policy developed in other MACT rules and with good engineering judgement to allow daily average values to be used to determine compliance. It should also be noted that in cases where an emission source operates for a total of less than 24 hours at a time, the average recorded values must comply over the total operating period.

Comment: One commenter stated that the non-applicability of the emission limits during periods of SSM is unclear and needs to be addressed, and recommended that specific language in § 63.2378, patterned on 40 CFR §§ 63.102-103 or 63.480(j) regarding operation during SSM, be included in the final OLD rule.

Response: We have written the language in § 63.2378 to clarify the applicability of the emission limitations during periods of SSM. While the emission limitations still apply during periods of SSM, deviations from the emission limitations during these periods are not automatically considered to be violations if the owner or operator demonstrates that they have followed the requirements of their SSM plan. Paragraphs (b)(2) of § 63.2378 require that control devices be operated during periods of SSM if possible without damaging the devices and paragraphs (b)(3) require that appropriate measures be taken to minimize emissions during periods of SSM. The final OLD rule does require, in § 63.2386(d), that deviations from the emission limitation that occur during periods of SSM be reported in the semiannual compliance report.

Comment: The same commenter stated that proposed § 63.2378(d) is unnecessary and confusing and should be deleted, stating that SSM requirements are adequately addressed in the recently amended General Provisions and no argument has been made to justify deviating from those provisions.

Response: As discussed in the previous response pertaining to SSM requirements, we have clarified in the final rule that deviations occurring during periods of SSM must be reported in the semiannual compliance report even though they are not automatically considered to be violations of the emission limitation. The result is more consistency between the final OLD rule and other recently promulgated rules and also provides the EPA with information necessary to decide on a case by case basis if further documentation should be requested from a facility.

Comment: Several commenters felt that EPA should allow storage tanks with nonconforming seals to upgrade the seals up until the next time the tank is out of service, but no more than 10 years after rule promulgation. For an existing affected source, the proposed OLD rule would have required compliance with the emission limitations and work practice standards for existing sources no later than 3 years after the effective date of the final rule. Other MACT rules with storage tank provisions recognize that a 3-year compliance schedule would typically result in an increase in emissions because the emissions associated with emptying and degassing the tanks for performing the required alterations can be greater than the emission reductions that those alterations would achieve.

Response: In response to these comments, we reviewed the allowances made in other MACT rules regulating storage tanks, and also the Generic MACT standards for storage vessels, 40 CFR part 63, subpart WW, which are an allowable alternative (in Table 4 of the proposed rule) to the 95 percent emission limit.

The Gasoline Distribution MACT rule (40 CFR part 63, subpart R) allows a 3-year compliance period for upgrading external floating deck rim seals and for applying controls (gaskets, etc.) to deck fittings. However, if only the fitting controls are needed for a particular external floating roof tank to achieve compliance, the facility may wait until the next scheduled degassing and cleaning of the tank (or up to 10 years) to install the fitting controls. Subpart WW of 40 CFR 63.1063(a)(2)(ix) is similar to the Gasoline Distribution rule in that fitting controls may be installed up to 10 years after promulgation.

The Petroleum Refinery MACT rule (40 CFR part 63, subpart CC) allows up to 10 years to achieve compliance for existing floating roof storage tanks, but gives fixed-roof tanks only 3 years to comply due to the much greater emission reduction achieved for fixed-roof tanks.

Analysis of the emissions created by a tank degassing and cleaning event were performed under both the Gasoline Distribution and Refinery rules. We agree that for OLD storage tanks, the net cumulative emissions from performing a special cleaning and degassing to bring a floating roof tank into compliance would be greater than from allowing an OLD operation to wait until a scheduled cleaning event to make these modifications. Therefore, the final OLD rule includes a provision to allow a facility up to 10 years to convert the rim seals or deck fittings on existing floating roof tanks. However, the analysis for the Refinery rule showed that the emissions from degassing and cleaning fixed-roof tanks can be balanced within 1 year by the reductions achieved by applying the subpart WW controls (specific floating roofs and seals) or a 95 percent efficient control device. Therefore, existing fixed-roof tanks are required in the final rule to achieve compliance within 3 years after the effective date.

The final OLD rule is written to be consistent with the overall CAA goal of reducing HAP emissions. In a situation such as the control of this type of storage tanks, strictly adhering to the 3-year compliance timeframe to implement the MACT floor level of control actually results in increased emissions. Thus, if our goal is to reduce HAP emissions, we are faced with a choice of allowing facilities more time to comply with the MACT level of control or not require that they comply at all. The approach taken achieves more HAP emission reductions than would be achieved by not requiring facilities to meet the MACT level of control.

Comment: One commenter stated that the provisions of proposed § 63.2386(c)(4) and (d) (information to be included in semiannual Compliance reports) are too broad and EPA has not indicated why such broad applicability is needed and what useful purpose repeated submittal of information will serve.

Similarly, another commenter requested that EPA revise § 63.2386(d) concerning the first Compliance report because the records requested in § 63.2386(d)(1), (4), and (5) will literally require the submission of reams of paper with each Compliance report.

Response: We have reviewed the proposed requirements related to the content of the initial notification of compliance status (NOCS) and subsequent compliance reports. We agree that, to the extent that the initial NOCS includes the information necessary to understand the OLD activities at the site, this information need not be reported again in subsequent compliance reports unless there are substantive changes affecting applicability or organic HAP emissions. Therefore, we have streamlined the referenced paragraphs to eliminate duplicated information (but also to require the initial Compliance report to contain any updated or final facility information that was not reported in the NOCS).

Comment: One commenter stated that language added April 5, 2002, to 40 CFR 63.10(d)(5)(i) of the General Provisions concerning reporting the number, duration, and a brief description of each SSM is unnecessarily burdensome for OLD-type operations, where there are many individual components, any of which can be undergoing SSM activities independent of the other components. The commenter suggested that the approach used in the HON offers reasonable relief and that it be used. Specifically, the commenter recommended that requirements for recordkeeping and reporting be for “startups, shutdowns, and malfunctions during which excess emissions occur.”

Two other commenters expressed concern with the immediate SSM reporting requirement in Table 11 to subpart EEEE of part 63, item 2. They stated that this requirement should be made consistent with the HON, which allows these events to be reported in the next semiannual Compliance report.

Response: The amount of information required in the amended General Provisions for the SSM reports does not represent an undue burden for OLD operations. We believe that the additional information required under the amended General Provisions is useful to the EPA in gaining an understanding of the frequency, duration, and types of SSM activities at an affected source. Because sources are required to minimize emissions to the extent which is consistent with safety and good air pollution control practices during periods of SSM, gaining an understanding of the overall operation of an affected source is important. Therefore, we have retained the requirement in § 63.2386(c)(5), which references the General Provisions. We have also retained the requirement in Table 11 to subpart EEEE of part 63, item 2, which specifies that an immediate SSM report must be submitted if the owner or operator takes an action that is not consistent with their SSM plan. We concluded that a failure to follow an approved SSM plan should not go unreported for a period of time that could be almost 6 months. In those cases where the owner or operator follows their SSM plan, reporting in the next scheduled compliance report is allowed under Table 11 to subpart EEEE of part 63.

Comment: Two commenters expressed concern with proposed § 63.2378(b), which implies that if the operator starts up or shuts down a control device and it does not meet the 1-hour average temperature because it only ran for 15 minutes of a given hour, then the operator has to report that they did not meet the required temperature even though the temperature during the actual loading operation may have met the requirements. One of the commenters stated that this results in much more recordkeeping and reporting than the HON, Polymers & Resins MACT rules, or 40 CFR part 63, subpart SS, for no environmental or compliance benefits.

Response: We have written the language in § 63.2378 to clarify the applicability of the emission limitations during periods of SSM. While the emission limitations still apply during periods of SSM, deviations from the emission limitations during these periods are not automatically considered to be violations if the owner or operator demonstrates that they have followed the requirements of their approved SSM plan. Paragraphs (b)(2) require that control devices be operated during periods of SSM if possible without damaging the devices and paragraph (b)(3) require that appropriate measures be taken to minimize emissions during periods of SSM. The final OLD rule does require, in § 63.2386(d), that deviations from the emission limitations that occur during periods of SSM be reported in the semiannual compliance report, even though they are not automatically considered to be violations of the emission limitations. It should be noted that the averaging period has been written as daily averages of monitored parameters and, also, that monitoring is only required during periods of operation of the emission source. In the commenters example of a source operating for only 15 minutes, if the monitored parameter meets the operating limitation during that period of operation, it would not be considered a deviation.

Comment: Several commenters felt that EPA should revise the definition of annual average true vapor pressure in proposed § 63.2406, as there is no good reason to require annual recalculation of the average ambient temperature. The referenced method for determining true vapor pressure (API 2517) uses the normal average annual temperature. This is published by the National Climatic Data Center as a cumulative average over many years, and thus may be considered a constant for a given location.

Commenters stated that the temperature basis used for vapor pressure determination should be related to the actual facility emission potential and consistent with the regulatory basis. Two of the commenters stated that the vapor pressure determination for storage tank applicability should be based on the annual average temperature of the stored organic liquid.

Response: We agree that the average annual temperature for a given location is not likely to vary from year to year to the extent that, if all other factors are unchanged, it will have a noticeable effect on emissions. Thus, annual recalculation of this temperature is unnecessary and we have written the definition in the final OLD rule to reflect this. As suggested by one of the commenters, we have also added the term “actual annual average temperature” to clarify that the actual liquid temperature should be used in determinations of vapor pressure.

We have also written the definition of “annual average true vapor pressure” so that it is based on the actual annual average temperature of the liquid, and annual recalculation of the vapor pressure value is not needed.

Comment: One commenter suggested that in the definition of black oil, EPA should delete the word “hydrocarbon” and the parentheses around “petroleum” to ensure clarity of intent. It is possible for a chemical plant to bring onto or ship out from a plant an oily, black hydrocarbon liquid that could meet the other criteria of this definition. The commenter believes that EPA intends that black oil be a technical term related only to petroleum liquids.

Response: We have deleted the term “black oil” from the final rule. All crude oil will now be subject to the requirements under the final OLD rule.

Comment: One commenter recommended that EPA use the proposed § 63.2334(b) definition of “organic liquid” in § 63.2406 (Definitions) to specifically exclude “black oil” and gasoline. Another commenter recommended that EPA revise the organic liquid definition to make clear the intent that the HAP content cutoff (5 percent by weight) applies to liquids other than crude oil.

Response: We have written the definition of “organic liquid” to clarify the intended meaning of this term in the final OLD rule and have removed the description of organic liquids from § 63.2334(b). We have included a 5 percent cutoff level for defining non-crude oil liquids as “organic liquids.”

Comment: Many commenters suggested changes to the definition of storage tank. One commenter stated that EPA should clarify that the rule only applies to stationary tanks. The proposed definition stated that the term means a stationary unit, and then cited several examples of non-stationary units. If these examples were to be interpreted as constituting the only non-stationary units that are not subject to the rule, then other portable tanks and containers could be improperly construed as being subject to the rule. Several commenters recommended that the storage tank definition should exclude pressure vessels designed to operate in excess of 204.9 kilopascals and without emissions to the atmosphere. Three commenters recommended that the storage tank definition be changed to clearly include blending tanks in the affected source and that, therefore, storage tanks and transport vessels used for “incidental mixing and blending” are a part of the OLD affected source. The commenters maintained that it must be clear that the OLD rule does not exclude from the affected source those storage tanks that have the ability to practice “incidental blending and mixing to maintain product specifications.”

A final commenter recommended that vessels permanently attached to motor vehicles such as trucks, tank cars, barges, or ships be excluded from this definition (per the definition in the HON).

Response: We are in agreement with the commenters concerning the types of tanks intended to be covered by the term “storage tank.” We have written the definition to make it more consistent with other rules (such as the HON and the Miscellaneous Organic NESHAP) and to reflect suggestions of the commenters.

Comment: Two commenters suggested that the definition of transfer rack be amended by deleting the “physically separate” criterion because the 11.8 million liter (3.12 million gallon) throughput cutoff in the OLD rule is based on each transfer rack loading position and not the transfer rack as a whole. The last sentence in the transfer rack definition was also included in the HON subparts F and G definitions for loading rack, in §§ 63.101 and 63.111. Under the HON, this sentence was important to enable one to distinguish between the terms “transfer rack” and “loading rack” when making the Group 1/Group 2 determination. This Group status was based on throughput of the entire transfer rack and not each transfer rack loading position.

Response: We are retaining the definition as proposed for “transfer rack,” including the “physically separate” criterion, because we have written the description of the transfer rack emission source subject to emission standards from each loading position to the entire transfer rack, consistent with other air emission control regulations for volatile organic and petroleum liquid transfer operations. In the data reassessment we performed after proposal, we also found that the reported transfer rack data were sufficient to develop a MACT floor level of control for transfer racks but not for individual loading positions.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA must determine whether a regulation is “significant” and, therefore, subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal government communities;

(2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) raise novel or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Pursuant to the terms of Executive Order 12866, it has been determined that today's final rule is not a “significant regulatory action” because it will not have an annual effect on the economy of $100 million or more and is therefore not subject to OMB review.

The information collection requirements in the final rule have been submitted for approval to the Office of Management and Budget under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. (ICR No. 1963.02) The information requirements are not effective until OMB approves them.

The information requirements are based on notification, recordkeeping, and reporting requirements in the NESHAP General Provisions (40 CFR part 63, subpart A), which are mandatory for all operators subject to national emission standards. These recordkeeping and reporting requirements are specifically authorized by section 114 of the CAA (42 U.S.C. 7414). All information submitted to the EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to EPA policies set forth in 40 CFR part 2, subpart B.

The final rule will require maintenance inspections of the control devices but will not require any notifications or reports beyond those required by the General Provisions. The recordkeeping requirements require only the specific information needed to determine compliance.

The annual monitoring, reporting, and recordkeeping burden to affected sources for this collection (averaged over the first 3 years after the effective date of the promulgated rule) is estimated to be 137,170 labor-hours per year, with a total annual cost of $7.5 million per year. These estimates include a one-time performance test and report (with repeat tests where needed), one-time submission of an SSMP with semiannual reports for any event when the procedures in the plan were not followed, semiannual compliance reports, maintenance inspections, notifications, and recordkeeping.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations are listed in 40 CFR part 9. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the Federal Register to display the OMB control number for the approved information collection requirements contained in the final rule.

The EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with the final rule. The EPA has also determined that the final rule will not have a significant economic impact on a substantial number of small entities.

For purposes of assessing the impacts of today's final rule on small entities, small entity is defined as: (1) A small business whose parent company has fewer than 100 or 1,500 employees, or a maximum of $5 million to $18.5 million in revenues, depending on the size definition for the affected North American Industry Classification System (NAICS) code; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. It should be noted that companies in 42 NAICS codes are affected by the final rule, and the small business definition applied to each industry by NAICS code is that listed in the Small Business Administration (SBA) size standards (13 CFR 121). For more information on size standards for particular industries, please refer to the economic impact analysis in the docket.

After considering the economic impacts of today's final rule on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities. We have determined that six small firms in the industries affected by the final rule may be affected. Out of the six affected small firms, none are estimated to have compliance costs that exceed one percent of their revenues.

In addition, the final rule is likely to increase profits at the many small firms not adversely affected by the final rule due to the very slight increase in market prices. The median compliance cost to sales estimates for the affected small and large firms is virtually identical (0.02 percent compared to less than 0.01 percent for the large firms) and no small firms are expected to close in response to incurring the compliance costs associated with the final rule.

Although the final rule will not have a significant economic impact on a substantial number of small entities, the final rule includes provisions that will minimize the impact on small entities in several ways. We chose to set the control requirements at the MACT floor control level and not at a control level more stringent. The transfer rack cutoff, based on facilitywide throughput, and tank size cutoffs in the final rule will reduce the effects on small businesses. We have identified a list of 98 HAP from the list of 188 in the CAA to be considered for regulation. Regulated liquids are non-crude oil organic liquids that contain at least 5 percent by weight of the 98 HAP listed in Table 1 to subpart EEEE of part 63 and a vapor pressure of at least 0.1 psia, and all crude oil after the first point of custody transfer after the production field. In addition, we worked with various trade associations during the development of the rulemaking. These actions have reduced the economic impact on small entities from the final rule.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The EPA has determined that today's final rule does not include a Federal mandate that may result in estimated costs of $100 million or more to State, local, or tribal governments in the aggregate, or to the private sector. Therefore, the requirements of the UMRA do not apply to this action.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

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. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless EPA consults with State and local officials early in the process of developing the regulation.

The final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Furthermore, the final OLD NESHAP do not require these governments to take on any new responsibilities. Therefore, the requirements of section 6 of Executive Order 13132 does not apply to the final rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

The final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. No affected plant sites are known to be owned or operated by Indian tribal governments. Thus, Executive Order 13175 does not apply to the final rule.

Executive Order 13045 (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, EPA 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 EPA.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. The final rule is not subject to Executive Order 13045 because it is based on technology performance and not on health or safety risks. No children's risk analysis was performed because no alternative technologies exist that would provide greater stringency at a reasonable cost; therefore, the results of any such analysis would have no impact on the stringency decision.

The final rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001). The rule is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution, and use of energy. The reduction in petroleum product output, which includes reductions in fuel production, is estimated at only 0.006 percent, or about 311 barrels per day (about 15,500 metric tons per year). The reduction in coal, natural gas, and electricity output is expected to be negligible. The increase in price of petroleum products is estimated to be only 0.001 percent nationwide. While energy distribution services such as pipeline operations will be directly affected by the final rule, energy distribution costs are expected to increase by only 0.1 percent. We estimate that there will be a slight increase of only 0.001 percent of net imports (imports — exports), and no other adverse outcomes are expected to occur with regard to energy supplies. Given the minimal impacts on energy supply, distribution, and use as a whole nationally, all of which are under the threshold screening criteria for compliance with this Executive Order established by the Office of Management and Budget, no significant adverse energy effects are expected to occur.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Public Law No. 104-113; 15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in their regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA directs EPA to provide Congress, through annual reports to OMB, with explanations when an agency does not use available and applicable voluntary consensus standards.

The final rule involves technical standards. The EPA cites the following standards in the final rule: EPA Methods 1, 1A, 2, 2A, 2C, 2D, 2F, 2G, 3, 3B, 4, 18, 21, 25, 25A, 27, 311, 316 (formaldehyde). Consistent with the NTTAA, EPA conducted searches to identify voluntary consensus standards in addition to these EPA methods. No applicable voluntary consensus standards were identified for EPA Methods 1A, 2A, 2D, 2F, 2G, 21, 27, 311, and 316. The search and review results have been documented and are placed in the docket (docket numbers A-98-13 and OAR-2003-0138) for the final rule.

Three voluntary consensus standards were identified as appropriate to the final rule. The voluntary consensus standard ASTM D6420-99, “Standard Test Method for Determination of Gaseous Organic Compounds by Direct Interface Gas Chromatography-Mass Spectrometry (GC/MS),” is appropriate in the cases described below for inclusion in the final rule in addition to EPA Method 18 codified at 40 CFR part 60, Appendix A, for measurement of organic HAP or total organic compounds. Therefore, the standard ASTM D6420-99 is cited in today's final rule.

Similar to EPA's performance-based Method 18, ASTM D6420-99 is also a performance-based method for measurement of gaseous organic compounds. However, ASTM D6420-99 was written to support the specific use of highly portable and automated GC/MS. While offering advantages over the traditional EPA Method 18, the ASTM method does allow some less stringent criteria for accepting GC/MS results than required by EPA Method 18. Therefore, ASTM D6420-99 is a suitable alternative to EPA Method 18 only where: the target compound(s) are those listed in Section 1.1 of ASTM D6420-99; and the target concentration is between 150 ppbv and 100 ppmv.

For target compound(s) not listed in Section 1.1 of ASTM D6420-99, but potentially detected by mass spectrometry, the regulation specifies that the additional system continuing calibration check after each run, as detailed in Section 10.5.3 of the ASTM method, must be followed, met, documented, and submitted with the data report even if there is no moisture condenser used or the compound is not considered water soluble. For target compound(s) not listed in Section 1.1 of ASTM D6420-99, and not amenable to detection by mass spectrometry, ASTM D6420-99 does not apply.

As a result, EPA included ASTM D6420-99 in the final rule, and EPA Method 18 as a gas chromatography (GC) option in addition to ASTM D6420-99. This will allow the continued use of GC configurations other than GC/MS.

Two additional voluntary consensus standards, ASTM D2879-83 “Standard Test Method for Vapor Pressure-Temperature Relationship and Initial Decomposition Temperature of Liquids by Isoteniscope,” and API Publication 2517 “Evaporative Loss from External Floating-Roof Tanks, Third Edition, February 1989,” were already incorporated by reference in 40 CFR § 63.14 and are also being cited in the final rule for measurement of vapor pressure.

Five voluntary consensus standards: ASTM D1979-91, ASTM D3432-89, ASTM D4747-87, ASTM D4827-93, and ASTM PS9-94 are incorporated by reference in EPA Method 311.

The search for emissions measurement procedures identified nine other voluntary consensus standards. The EPA determined that seven of these nine standards identified for measuring emissions of the HAP or surrogates subject to emission standards in the final rule were impractical alternatives to EPA test methods for the purposes of the final rule. Therefore, EPA does not intend to adopt these standards for this purpose. The reasons for this determination for the seven methods are discussed in the docket.

Two of the nine voluntary consensus standards identified in this search were not available at the time the review was conducted for the purposes of the final rule because they are under development by a voluntary consensus body: ASME/BSR MFC 13M, “Flow Measurement by Velocity Traverse,” for EPA Method 2 (and possibly 1); and ASME/BSR MFC 12M, “Flow in Closed Conduits Using Multiport Averaging Pitot Primary Flowmeters,” for EPA Method 2.

Section 63.2362 and Table 5 to subpart EEEE of part 63 list the EPA testing methods included in the regulation. Under § 63.7(f) and § 63.8(f) of subpart A of the General Provisions, a source may apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any of the EPA testing methods, performance specifications, or procedures.

The Congressional Review Act, 5 U.S.C. § 801 et seq. , as added by the SBREFA, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this final 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 final 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). The final rule will be effective on February 3, 2004.

Item I of FAC 2001-16 revised the FAR to require registration of contractors in the Central Contractor Registration (CCR) database prior to award of any contract, basic agreement, basic ordering agreement, or blanket purchase agreement. As a result, NASA's specific coverage of CCR is no longer required. This final rule removes Subpart 1804.74—Central Contractor Registration and its associated clause at 1852.204-74.

This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This final rule is not a major rule under 5 U.S.C. 804.

This final rule does not constitute a significant revision within the meaning of FAR 1.501 and Public Law 98-577, and publication for public comment is not required. However, NASA will consider comments from small entities concerning the affected NFS Parts 1804 and 1852 in accordance with 5 U.S.C. 610.

The Paperwork Reduction Act does not apply because the changes do not impose recordkeeping or information collection requirements which require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.