This rule is issued under Marketing Agreement No. 110 and Marketing Order No. 993, both as amended (7 CFR part 993), regulating the handling of dried prunes grown in California, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California dried prune handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable dried prunes beginning August 1, 2005, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule continues in effect the action that decreased the assessment rate established for the committee for the 2005-06 and subsequent crop years from $6.00 to $0.65 per ton of salable dried prunes handled.

The California dried prune marketing order provides authority for the committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the committee are producers and handlers of California dried prunes. They are familiar with the committee's needs and with the costs for goods and services in their local area; and are, thus, in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in at least one public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2004-05 and subsequent crop years the committee recommended, and USDA approved, an assessment rate that would continue in effect from crop year to crop year unless modified, suspended, or terminate by USDA upon recommendation and information submitted by the committee or other information available to USDA.

The committee met on June 30, 2005, and unanimously recommended a decreased assessment rate of $0.65 per ton of salable dried prunes and a decreased level of expenses for the 2005-06 crop year. The committee recommended a total budget of $89,090. The assessment rate of $0.65 per ton of salable dried prunes is $5.35 lower than the rate in effect prior to implementation of the interim final rule.

The committee recommended a lower assessment rate based on an estimated production of 104,500 tons of salable dried prunes. The committee's expenses are being reduced significantly from the 2004-05 budget as the result of the August 1, 2005, suspension of the reporting and handling requirements under the order. The assessment rate of $0.65 per ton of salable dried prunes plus excess funds from the 2004-2005 crop year are expected to provide sufficient funds for the committee's reduced activities.

In comparison, the actual expenditures for the 2004-05 crop year were $284,000 and the assessment rate was $6.00 per ton of salable prunes, based upon 47,203 salable tons.

The following table compares the major budget expenditures recommended by the committee on June 30, 2005, and major budget expenditures in the 2004-05 budget.

The assessment rate recommended by the committee was derived by dividing anticipated expenses by the estimated salable tons of California dried prunes. Production of dried prunes for the year is estimated to be 104,500 salable tons, which should provide $67,925 in assessment income. Income derived from handler assessments plus excess funds from the 2004-2005 crop year should be adequate to cover budgeted expenses. The committee is authorized to use excess assessment funds from the 2004-05 crop year (currently estimated at $13,000) for up to 5 months beyond the end of the crop year to meet 2005-06 crop year expenses. At the end of the 5 months, the committee either refunds or credits excess funds to handlers (§ 993.81(c)).

The assessment rate will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the committee or other available information.

Although this assessment rate is effective for an indefinite period, the committee will continue to meet prior to or during each crop year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of committee meetings are available from the committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The committee's 2005-06 budget and those for subsequent crop years will be reviewed and, as appropriate, approved by USDA.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 1,100 producers of dried prunes in the production area and approximately 22 handlers subject to regulation under the marketing order. The Small Business Administration (13 CFR 121.201) defines small agricultural producers as those whose annual receipts are less than $750,000, and small agricultural service firms as those whose annual receipts are less than $6,000,000.

Eight of the 22 handlers (36.4 percent) shipped over $6,000,000 of dried prunes and could be considered large handlers by the Small Business Administration. Fourteen of the 22 handlers (63.6 percent) shipped under $6,000,000 of dried prunes and could be considered small handlers. An estimated 32 producers, or less than 3 percent of the 1,100 total producers, would be considered large producers with annual incomes over $750,000. The majority of handlers and producers of California dried prunes may be classified as small entities.

The producer price for the 2005-06 crop year is expected to average between $1,500 and $1,600 per ton of salable dried prunes. Based on an estimated 104,500 salable tons of dried prunes, assessment revenue as a percentage of producer prices during the 2005-06 crop year is expected to be between .041 and .043 percent.

This rule continues in effect the action that decreased the assessment rate established for the committee and collected from handlers for the 2005-06 and subsequent crop years from $6.00 to $0.65 per ton of salable dried prunes. The committee unanimously recommended a 2005-06 total budget of $89,090 and a decreased assessment rate of $0.65 per ton of salable dried prunes at the meeting on June 30, 2005. The recommended budget of $89,090 is significantly reduced for the 2005-06 crop year as compared to previous crop years. The assessment rate of $0.65 per ton of salable dried prunes is $5.35 lower than the previous rate. The quantity of salable dried prunes for the 2005-06 crop year is now estimated at 104,500 salable tons.

The following table compares the major budget expenditures recommended by the committee on June 30, 2005, and major budget expenditures in the 2004-05 budget.

Prior to arriving at its budget of $89,090, the committee considered information from various sources, such as the committee's Executive Subcommittee. An alternative to this action would be to continue with the $6.00 per ton assessment rate. However, an assessment rate of $0.65 per ton of salable dried prunes and excess funds from the 2004-2005 crop year will provide enough income is to fund the committee's reduced activities after the August 1, 2005, suspension of the handling and reporting requirements.

Therefore, the Executive Subcommittee and committee agreed that $0.65 per ton of salable dried prunes is an acceptable assessment rate. The committee is authorized to use excess assessment funds from the 2004-05 crop year (currently estimated at $13,000) for up to 5 months beyond the end of the crop year to meet 2003-04 crop year expenses. At the end of the 5 months, the committee either refunds or credits excess funds to handlers (§ 993.81(c)).

This action continues in effect the action that decreased the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the committee's meeting was widely publicized throughout the California dried prune industry and all interested persons were invited to attend the meeting and participate in committee deliberations on all issues. Like all committee meetings, the June 30, 2005, meeting was a public meeting and all entities, both large and small, were encouraged to express views on this issue.

This action imposes no additional reporting or recordkeeping requirements on either small or large California dried prune handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

An interim final rule concerning this action was published in the Federal Register on September 15, 2005. The committee staff mailed copies of the rule to all committee members, alternates, and prune handlers. In addition, the rule was made available through the Internet by the Office of the Federal Register and USDA. That rule provided for a 60-day comment period which ended November 14, 2005. Three comments were received. Two comments were not relevant to the rulemaking action, and one comment supported the reduced assessment rate for prunes.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab/html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

On October 20, 2005, the Federal Aviation Administration (FAA) issued AD 2005-22-10, amendment 39-14354 (70 FR 62232, October 31, 2005), which applies to certain Airbus Model A320-111 airplanes, and Model A320-200 series airplanes. That AD requires a detailed inspection of the tail cone triangle to determine its position, and corrective actions if necessary. That AD was prompted by a report that the tail cone triangles were not installed properly on certain airplanes during production, resulting in possible mis-rigged elevator servo-controls. The actions required by that AD are intended to prevent excessive vibrations of the elevators, which could result in reduced structural integrity and reduced controllability of the airplane.

Information obtained recently by the FAA indicates that we inadvertently changed the applicability from that specified in the Notice of Proposed Rulemaking by omitting from the statement of applicability of AD 2005-22-10 that airplanes affected by the AD are those identified in Airbus Service Bulletin A320-27-1132, Revision 01, dated June 19, 2002.

The FAA has determined that a correction to AD 2005-22-10 is necessary. The correction will revise the applicability to include a reference to Airbus Service Bulletin A320-27-1132, Revision 01, dated June 19, 2002.

This document corrects the error and correctly adds the AD as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13).

The AD is reprinted in its entirety for the convenience of affected operators. The effective date of the AD remains December 5, 2005.

Since this action reduces the number of airplanes affected by revising the applicability, it has no adverse economic impact and imposes no additional burden on any person. Therefore, the FAA has determined that notice and public procedures are unnecessary.

You can get an electronic copy of rulemaking documents using the Internet by—

(1) Searching the Department of Transportation's electronic Docket Management System (DMS) Web site (http://dms.dot.gov/search);

(2) Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/; or

(3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.

You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.

Using the search function of the Web site, anyone can find and read the comments received into any of our dockets, including the name of the individual submitting the comment (or signing the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://dms.dot.gov.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. If you are a small entity and you have a question regarding this document, you may contact the local FAA official, or the person listed under FOR FURTHER INFORMATION CONTACT. You can find out more about SBREFA on the Internet at http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

Title 49, section 44701 of the United States Code, authorizes the FAA Administrator to prescribe regulations for practices the Administrator finds necessary for safety in air commerce [49 U.S.C. 44701(a)(5)]. Under that statutory authority, the Administrator prescribed regulations for certificate holders on the reporting of failures, malfunctions, and defects of aircraft, aircraft engines, systems, and components (commonly called Service Difficulty Reports). These regulations are found at 14 CFR 121.703, 121.704, 121.705, 125.409, 125.410, 135.415, 135.416, and 145.221. This rulemaking action amends these regulations.

On September 15, 2000, the FAA published a final rule entitled, “Service Difficulty Reports,” Amendment Numbers 121-279, 125-35, 135-77, and 145-22 (65 FR 56191). That final rule, applicable to air carriers and repair station operators, would have amended the requirements for reporting failures, malfunctions, and defects of aircraft, aircraft engines, systems, and components. In the final rule, the FAA also sought comments on the impact of paperwork and other information collection burdens imposed on the public. The final rule effective date was scheduled for January 16, 2001.

The FAA received written comments raising concerns with many of the provisions of the new SDR requirements. In response, the FAA held a public meeting about the final rule on December 11, 2000. Participants at that public meeting raised significant issues concerning the implementation of the final rule.

As a result of the concerns raised during the comment period and at the public meeting, the FAA delayed the effective date of the final rule to January 31, 2006. The purpose of this delay was to provide us more time to consider industry's concerns.

Since the delayed final rule publication, the FAA amended the SDR requirements for repair stations (66 FR 41117, August 6, 2001). This amendment addressed one of the public meeting commenters' concerns about duplicate reporting by a part 145 certificate holder. Under § 145.221(d), a repair station no longer has an independent SDR reporting provision when performing work for a part 121, 125, or 135 certificate holder.

We received five comments on the proposal to withdraw the delayed final rule and make amendments to the existing SDR rule (70 FR 54454, September 14, 2005).

Comment: Four of the comments support the FAA's proposal to withdraw the delayed final rule. The other commenter suggests an amendment to part 145 be included in this rulemaking.

FAA Response: The comments to the delayed final rule, the comments at the public meeting, and the comments to the proposal to withdraw the delayed final rule request that the agency make revisions to the delayed final rule before we proceed with implementation. The FAA agrees and is withdrawing the delayed final rule.

Comment: The Regional Airline Association (RAA), representing the views of a segment of the affected aviation industry, supports adopting the proposed changes to the existing SDR rules that:

• Extend the reporting time to submit SDRs from 72 hours to 96 hours.

• Require certificate holders to submit SDRs directly to the FAA's Oklahoma City, Oklahoma Office.

• Allow electronic submission of SDR reports.

FAA Response: The FAA is adopting these amendments as proposed. The increase in reporting time will result in fewer supplemental reports, the centralized reporting will result in greater internal efficiencies, and the electronic submitting option will benefit the majority of the current submitters.

Comment: The Aeronautical Repair Station Association (ARSA), which represents repair stations certificated under 14 CFR part 145, supports the proposed changes to the existing SDR system and requests an additional correcting change.

Section 145.221(d) allows a repair station to submit a SDR on behalf of a part 121, 125, or 135 certificate holder, provided the report meets the requirements of the applicable operational rule. Paragraph (d) states in a parenthetical that such a report may be “operational or structural.” This “operational or structural” reference reflects the language in the SDR rule the FAA is withdrawing, which the FAA had issued as a final rule for part 121, 125, and 135 certificate holders before § 145.221 became effective in January 2004. For example, the delayed SDR final rule would have changed the titles of §§ 121.703 and 121.704 to read “Service difficulty reports (operational)” and “Service difficulty reports (structural),” respectively. This distinction was the subject of much controversy. Many commenters, including ARSA, voiced their concerns with the operational and structural categories. The operational and structural distinction is not present in the existing SDR regulatory language. Leaving such language in § 145.221(d) serves no purpose, and can only create confusion for repair stations who prepare SDRs on behalf of part 121, 125, or 135 certificate holders. Therefore, ARSA requests that the FAA remove the parenthetical language, “(operational or structural),” in § 145.221(d) to conform the language in part 145 with the language in parts 121, 125, and 135.

FAA Response: The FAA is adopting the change to § 145.221(d) as suggested by ARSA. The change corrects the language of § 145.221 to bring it into conformity with the existing SDR requirements of 14 CFR parts 121, 125, and 135. The correcting change, which is a logical outgrowth of the proposal, would not impose any additional burdens on the regulated public.

Comment: An individual commenter asks that the proposed changes to the existing SDR rule be included in 14 CFR 145.221, Reports of failures, malfunctions, or defects.

FAA Response: Only one of the proposed changes, the requirement for the certificate holder to submit SDRs directly to the FAA's Oklahoma Office, is not already incorporated into § 145.221. The FAA has decided not to add the centralized reporting requirement to § 145.221 in this rulemaking action. A repair station, operating under part 145, will continue to submit their SDRs to their assigned Principal Inspector using the existing procedures. The FAA would want to receive comments on a change in the reporting procedure for part 145 certificate holders before implementing such a change. The FAA does not want to delay the remainder of this rulemaking while we solicit and review comments on this one change. As part of the FAA's review of the SDR program discussed later in this document we will consider a change to the part 145 reporting procedure as the commenter suggested. Future SDR rulemaking may propose such a requirement.

Comment: One individual commenter does not agree with the proposed changes to the existing reporting rule that specifically requires all SDRs be reported to Oklahoma City. The same reasons that are driving the withdrawal of the delayed final rule (software capability, the need for greater FAA efficiency in processing SDRs, etc.) have not been resolved. The commenter claims requiring a person to submit SDRs directly to Oklahoma City will be fraught with error and difficulty.

From the commenter's experience, an SDR submitted electronically creates more work for the individual or air carrier. When submitted electronically, the submitter must continually check the SDR database to insure that the SDR has not been sent back for correction, to make sure that it has been processed. The commenter recently stopped using the electronic submission method because he had a severe back log of unprocessed submitted SDRs. The return to paper submissions has reduced the number of man-hours per week from eight to around one.

The commenter suggests that the FAA fix their internal SDR processing problems before any new SDR requirement of any kind is introduced and made mandatory. Secondly, if the assigned Principal Inspector still has the requirement to review the submissions, then those submissions should go to the inspector first. It would be up to the FAA how to enforce and insure that the principal sends these on to Oklahoma City in a timely manner, not industry.

FAA response: The FAA disagrees with the commenter's conclusion about the problems with electronic reporting. Many air carriers, repair stations, and individuals are submitting SDRs electronically without problem. The FAA did experience technical difficulties with electronic reporting prior to 2004. In April 2004, we developed improved SDR web site instructions with the help of a FAA PMI for a major U.S. air carrier. These instructions resulted in new web procedures, which enabled the FAA certificate management office (CMO) to electronically conduct the same SDR reviews and approvals that they performed with the hardcopy SDRs, but in a shorter period of time. As result, the instructions helped to improve the air carrier's, the CMO's, and FAA's Oklahoma City Office efficiency of operation. These new instructions are in wider use today and are available on the Flight Standards Internet Service Difficulty Reporting (iSDR) web site, which is located at http://av-info.faa.gov/isdr/. We have found that once the operator and FAA personnel become familiar with these new procedures we have received only enthusiastic and favorable feedback. These instructions are also available upon request to the Aviation Data Systems Branch (AFS-620) 6500 South MacArthur Blvd., Oklahoma City, Oklahoma 73169 (hand delivered), or P.O. Box 25082, Oklahoma City, Oklahoma 73125 (U.S. Mail), Telephone: (405) 954-4391. A copy has also been placed in the Rules Docket.

The FAA concedes that the SDR system still needs improvements, but with the new instructions the system has been enhanced to the point where electronic submission of SDRs to Oklahoma City benefit the majority of submitters. The electronic submission method continues to be optional.

Comment: An individual commenter said the FAA is taking positive steps in the direction developed by the Commercial Airplane Certification Process (CPS) group. The commenter requests the recommendations of the CPS committee group be used as a framework to develop new reporting requirements. The commenter emphasized the members of the CPS represented a good cross section of the industry and FAA.

FAA response: The FAA agrees, and as described below, is studying the recommendations of the CPS for future rulemaking action.

The FAA's intent in the delayed final rule was to improve the SDR program without having an adverse impact on industry recordkeeping practices. The SDR requirements were adopted to correct known deficiencies in the SDR program and to improve the quality of the data in the SDR database. Based on the comments received and information gathered at the public meeting, we now realize the delayed final rule does not meet this intent. The industry concerns highlight the need to resolve problems with the SDR program before increasing the amount and type of data recorded.

The topic that received the most comments following publication of the delayed final rule was the FAA's economic analysis. The commenters were uniform in their contention that the additional reporting requirements would greatly increase the costs of compliance under the SDR program. The FAA received cost estimates from industry that considerably exceeded our own estimates based, in part, on the wide disparity between the industry's and the FAA's evaluation of the number of SDRs resulting from the rulemaking.

While not completely agreeing with the industry's estimate of the increase in the number of reports or the significant increase in costs, we have determined that varying interpretations of the number of additional reports required by the rule could have led industry to overestimate the costs of compliance with the delayed final rule. We have reevaluated the delayed final rule in light of the data provided in the comments and have determined that the costs of this rulemaking may be higher than projected. We further acknowledge that populating data collection systems with inappropriate data could have a negative impact on our ability to identify and collect meaningful safety data on the operation of aircraft.

Since the public meeting, we have considered how to address industry concerns about the delayed final rule and, at the same time, maintain its original intent to correct deficiencies in the program and improve the quality of data collected. The FAA is also obligated to review and consider the findings about the SDR program noted in the CPS study. The CPS identified certain underlying deficiencies in the SDR program that should be corrected so data collected may provide the maximum safety benefit. A copy of the CPS report has been placed in the docket for this rulemaking.

Based on the comments received and the CPS findings, the FAA has determined there is a need to enhance the SDR program so it meets the needs of the FAA and industry more efficiently and effectively. Rather than continuing to delay the effective date of the final rule while we address this issue, we determined it is prudent to withdraw the delayed final rule. This approach will eliminate uncertainty about the final rule's status and allow us time to thoroughly evaluate and improve the SDR program. The effect of this withdrawal is the retention of the regulations currently in effect.

The FAA is still pursuing changes to the SDR system that will address the CPS findings and the feedback we received from this withdrawn final rule. We plan to evaluate the present SDR system and issues related to its associated Management Information System (MIS) database. We will also reexamine the economic impact of any new changes to the SDR system. All amendments to the SDR regulations will be preceded by an NPRM.

The FAA is making several changes to the existing SDR program regulations. Most of these changes were already incorporated in the final rule we are now withdrawing. We are proceeding with these changes because they will improve the SDR program.

The FAA is renaming §§ 121.703, 125.409, 135.415, and 145.221 as “Service Difficulty Reports.” The existing titles reflect the varying names these reports have been called over the years by different parties, which resulted in some confusion. This amendment uses the most common industry term for SDRs and will result in the use of only one consistent term when referring to these reports.

The FAA adopts three changes to improve the process of submitting SDRs to the FAA under these sections:

(1) Replacing the terms “send,” “mailed,” or “delivered” with the term “submit.” This change allows for the use of other means, such as electronic transmission, to submit SDRs to the FAA.

(2) Increasing the time for submitting an SDR from 72 hours to 96 hours after an event occurs that requires an SDR. The increased reporting time gives certificate holders additional time to prepare the SDR and should reduce the number of supplemental SDRs that need to be filed. A reduction of supplemental SDRs should reduce the administrative burden on both the FAA and industry.

(3) Changing the location to which the certificate holder must send SDRs. The existing rule required SDRs to be sent directly to the Certificate Holding District Office (CHDO). There, the SDRs are reviewed by the assigned Principal Maintenance Inspector (PMI) and then forwarded to the FAA offices in Oklahoma City, Oklahoma, where all SDRs are entered into the SDR database. The revised rule requires the certificate holder to send SDRs directly to our Oklahoma City office. The PMI would be instructed by internal agency procedures to review the individual SDR for their assigned certificate holder through an internal FAA computer system that would access the SDR database. This revised procedure removes the intermediate step of processing SDRs through the PMI, but does not relieve the PMI of the responsibility for reviewing them. The change would also facilitate electronic reporting by eliminating the necessity of delivering a copy to the PMI. The certificate holder would retain the option of submitting paper SDRs should it so choose, although the FAA strongly encourages electronic reporting. In this final rule, we made editorial changes to §§ 125.409(b) and 135.415(d) to make them consistent with § 121.703(d). The centralized collection point is the FAA office in Oklahoma City, Oklahoma.

Finally, for only § 135.415, the FAA is removing the provision for aircraft operated where mail is not collected. This was an outdated provision that was rarely used by the industry. Mail service is available now in most locations and various alternatives to the U.S. Mail exist.

The amended rule requires certificate holders to submit SDRs in a form or format acceptable to the Administrator. Many operators have voluntarily adopted reporting formats compatible with the FAA's electronic systems to simplify their reporting under the existing rule. Electronic submission of SDRs through the FAA Web site is an acceptable format. This provision is intended to assure that, regardless of the method and format chosen for use, the information we receive is readable. However, when using electronic technology, the electronic language used must be one the FAA is capable of reading.

The amended rule would delete the parenthetical (operational or structural) to bring the SDR requirements in part 145 into conformity with the language of the existing SDR rules.

Information collection requirements associated with this final rule have been approved previously by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), and have been assigned OMB Control Number 2120-0008 (part 121), 2120-0085 (part 125), 2120-0039 (part 135), and 2120-0003 (part 145). In the NPRM, we incorrectly referenced a single OMB Control Number 2120-0663 for all four parts cited above.

This final rule contains several changes to the existing SDR rule. We changed the mailing address for SDR reports; we replaced the words “send,” “mailed,” and “delivered” with “submit”; and we lengthened the submittal period for the SDR to reduce the number of supplementary reports from certificate holders.

An agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs each Federal agency to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act also requires agencies to consider international standards and, where appropriate, use them as the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation.)

In conducting these analyses, FAA has determined this rule: (1) Has benefits that justify its costs, is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866 and is not “significant” as defined in Department of Transportation Regulatory Policies and Procedures; (2) will not have a significant economic impact on a substantial number of small entities; (3) would have only a domestic impact and therefore no affect on any trade-sensitive activity; and (4) does not impose an unfunded mandate on state, local, or tribal governments, or on the private sector. These analyses, available in the rulemaking docket, are summarized below.

This final rule imposes minimal new costs on industry, and results in cost-savings ranging from $16.13 million ($11.33 million, discounted) to $38.96 million ($27.36 million, discounted). This results in a net cost savings to industry ranging from $15.98 million ($11.23 million, discounted) to $38.97 million ($27.37 million, discounted). The impacts to the FAA are additional costs of $145,200 ($102,000, discounted) and savings of $9,300 ($6,500, discounted). The FAA has determined this rule to be cost beneficial.

A significant effort is underway to improve the quality of aviation safety data identification and collection. This rulemaking is a component of this effort and proposes changes to improve the existing SDR program. These changes include:

• Extending the reporting time to submit SDRs from 72 hours to 96 hours.

• Requiring part 121, 125, and 135 certificate holders to submit SDRs directly to a centralized collection point, thus allowing the reports to be entered into the SDR database quicker and reducing the administrative workload of the certificate-holding district office (CHDO).

• Allowing electronic submission of SDR reports.

The Regulatory Flexibility Act of 1980 (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the Act.

However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the 1980 RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

For this rule, the small entity group is considered to be 14 CFR part 121, 125, and 135 certificate holders (North American Industry Classification System [NAICS] 481111). For this analysis, the FAA considers each part 125 and 135 certificate holder to be a small entity, and some of the part 121 and 121/135 certificate holders are also small entities.

These regulations result in cost savings for all 121, 125, and 135 certificate holders of between $16.13 million ($11.33 million, discounted) to $38.96 million ($27.36 million, discounted) over the next ten years or, on average, between $1.61 million to $3.90 million per year. Assuming that the cost savings is spread among the types of 121, 125, and 135 certificate holders in proportion to the number of SDRs each type generated from January 1, 2002, through August 31, 2004, the average part 121 certificate holder will save between $13,010 and $31,424 a year, the average part 121/135 certificate holder will save between $3,511 and $8,479 a year, the average part 125 certificate holder will save between $16 and $39 a year, and the average part 135 certificate holder will save between $68 and $165 a year. Thus, the economic impact is minimal. Therefore, I certify that this action would not have a significant economic impact on a substantial number of small entities.

The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and has determined that it will have only a domestic impact and therefore no affect on any trade-sensitive activity.

The Unfunded Mandates Reform Act of 1995 (the Act) is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $120.7 million in lieu of $100 million.

This final rule does not contain such a mandate. The requirements of Title II do not apply.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government, and therefore does not have federalism implications.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in Appendix 4, paragraph 4(j) of the FAA Order, and involves no extraordinary circumstances.

The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because it is not a “significant regulatory action” under Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

The Agency uses direct final rulemaking when it expects that a rule will not be controversial. Examples of such rules include minor substantive revisions to regulations, incorporation by reference of the latest edition of a technical or industry consensus standard, and direct incorporations of mandates from new legislation. In direct final rulemaking, OSHA publishes a final rule in the Federal Register with a statement that, unless it receives a significant adverse comment by a specified date, the rule will become effective on a designated date thereafter.

OSHA believes that the subject of this rulemaking is suitable for a direct final rule. The Agency bases this decision on substantive differences found between the original OSHA standards on roll-over protective structures (“ROPS”) for the construction and agriculture industries and the national consensus standards issued by the Agency under a 1996 technical amendment to replace the original standards. By replacing the original ROPs testing provisions through a technical amendment, OSHA denied the regulated community an opportunity for notice-and-comment on these substantive differences as required under the Administrative Procedures Act (5 U.S.C. 553(b)) and the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)(2) and (b)(3)). Therefore, the Agency has concluded that it has a legal obligation to the regulated community to reinstate the original OSHA standards through this direct final rule. (See section II.A below (“Basis for the Rulemaking”) for a detailed discussion of the Agency's legal analysis of this issue.)

Having concluded that this reinstatement action constitutes a binding legal obligation, the Agency will consider as significant adverse comments only those comments that address: (1) The lawfulness of the procedures used to promulgate the 1996 technical amendment as these procedures relate to the ROPs testing provisions; and (2) whether the minor revisions made to the original ROPS standards in this direct final rule (see a description of these revisions under section II.C of this preamble) are reasonable or appropriate.

The Agency often publishes an identical proposed rule simultaneously with a direct final rule. In this instance, however, OSHA is not publishing a companion proposed rule. Should OSHA receive any significant adverse comments to this direct final rule, it will withdraw the rule and determine, based on the comments submitted to the record, whether to issue a proposed rule in the future. Accordingly, if OSHA receives timely significant adverse comments on the two issues described in the previous paragraph, it will publish notice of the significant adverse comments in the Federal Register and withdraw this direct final rule no later than February 27, 2006.

On March 7, 1996, OSHA published a technical amendment in the Federal Register that revised a number of its standards. Section II.G of the amendment revised the construction and agriculture standards that regulate testing of roll-over protective structures (“ROPS”); employers use these structures to protect employees who operate wheel-type tractors. (See 61 FR 9228.) ROPS testing determines the capacity of ROPS components to absorb energy (i.e., withstand fracturing) during loadings administered under field and/or laboratory conditions, and under different temperature conditions. The revision removed the original, detailed ROPS-testing standards and referred instead to national consensus standards for substantive ROPS-testing requirements. The 1996 technical amendment was part of an OSHA initiative to “undertake a line-by-line review of * * * regulations to determine where they could be simplified or clarified” (61 FR 9228).

The Administrative Procedures Act (APA) (5 U.S.C. 553(b)), the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 655(b)(2) and (b)(3)), and OSHA's procedural regulations (29 CFR 1911.5) require that OSHA provide notice and an opportunity for comment during substantive rulemaking. However, in the preamble to the 1996 technical amendment, the Agency noted that the technical amendment did not revise the original ROPS standards in any material fashion, and that “[t]he substantive requirements are unchanged” between the original ROPS standards and the consensus standards that replaced them (61 FR 9229). For this reason, OSHA determined that the technical amendment did not require notice and an opportunity for comment because it satisfied the “unnecessary” exemption specified by the APA (5 U.S.C. 553(b). 1 Relying on the “unnecessary” exemption to notice and comment, the Agency stated:

Several years after issuing the 1996 technical amendment, the Agency was informed that several of the original OSHA ROPS provisions differed substantively from the national consensus standards for the construction and agriculture industries (Ex. 4-7). In response to this information, the Agency conducted a thorough evaluation of its original ROPS standards and the ROPS testing requirements contained in the national consensus standards referenced in its current construction and agriculture ROPS standards. OSHA has included in the docket for this rulemaking four side-by-side comparisons of the differences found between the original OSHA standards and the referenced national consensus standards (Exs. 4-1 to 4-4).

Based on the findings of this evaluation, which are described in detail in the following section, the Agency has concluded that differences do exist between its original construction and agriculture ROPS standards and the ROPS standards implemented under the 1996 technical amendment, that these differences have a substantial impact on the regulated community, and that OSHA incorrectly applied the APA's “unnecessary” exemption to the ROPs testing procedures. This conclusion is consistent with existing case law. For example, in Utility Solid Waste Activities Group v. Environmental Protection Agency , 236 F.3d 749 (D.C. Cir. 2001), the court found that an EPA technical amendment had a significant impact on the regulated community and, most importantly, that it did not meet any of the three exemptions to notice-and-comment rulemaking specified by the APA i.e., 5 U.S.C. 553(b)(B) ( Id . at 754)). In vacating the technical amendment, the court stated, “The amendment * * * constituted agency action ‘without observance of [the] procedure required by law’ and, as such, it is ‘unlawful and set aside.’ 5 U.S.C. 706(2)(D).”

The substantive differences found between the standards and the legal analysis described in the preceding paragraphs support the Agency's conclusion that reinstating the original OSHA standards through this direct final rule is necessary and appropriate. Specifically, the Agency is revoking the references to the national consensus standards for ROPS testing located in paragraphs 29 CFR 1926.1002(a)(i), 1926.1003(a)(i), and 1928.51(b)(1) and reinstating in the construction and agriculture standards the original OSHA ROPS testing provisions. For both the reinstated construction and agriculture ROPS standards, the Agency also has made a number of minor revisions to its original ROPS standards. OSHA believes that these minor revisions will improve comprehension of, and compliance with, the reinstated standards without making substantive revisions.

The following section highlights the substantive differences between its original ROPS testing requirements and the testing provisions of the consensus standards referenced in its current ROPS construction and agriculture standards. The Agency describes in section II.C below the minor revisions it is making to the original OSHA ROPS standards under this direct final rule.

Construction standards. In revising the ROPS standards for construction in the 1996 technical amendment, the Agency deleted paragraphs (c) through (i) and (k) from 29 CFR 1926.1002, which addressed testing of protective frames for wheel-type tractors used in construction, and replaced them with a reference to Society of Automotive Engineers (“SAE”) consensus standard J334a-1970 in paragraph (a)(1) of revised 29 CFR 1926.1002. The Agency also revised 29 CFR 1926.1003, specifying testing requirements for overhead protection used with tractors, by removing paragraphs (c) through (g) and substituting a reference to SAE consensus standard J167-1970 in paragraph (a)(1) of the revised standard.

While most of the revisions to the construction ROPS standards made in the 1996 technical amendment were nonsubstantive, the Agency identified two substantive revisions. The first revision involved paragraph (c)(1) of original 29 CFR 1926.1002, which allowed the regulated community to use either a laboratory test or a field test for impact testing, while the SAE standard requires both tests. Accordingly, this direct final rule reinstates the impact-testing option provided by paragraph (c)(1) of original 29 CFR 1926.1002, and which is not available in the SAE standard. (See Ex. 4-1.)

The second revision addressed paragraphs (i)(ii) of original 29 CFR 1926.1002 and (f)(1) of original 29 CFR 1926.1003, in combination with paragraph (f)(2)(iv) of 29 CFR 1926.1001. These paragraphs permitted manufacturers to conduct the required performance tests using either zero-degree Fahrenheit (0 °F) testing or Charpy V-notch testing, while the SAE standard specifies that performance tests must be conducted only at 0 °F. 2 Therefore, reinstating the original OSHA standards will provide an additional cold-temperature testing option not available in the SAE standard. (See Exs. 4-1 and 4-2.)

Agriculture standards. In revising the ROPS standards for the agriculture industry, the Agency deleted entirely original 29 CFR 1928.52 and 1928.53, as well as Appendix B to subpart C of 29 CFR part 1928. The deleted standards specified procedures for testing, respectively, protective frames and enclosures for wheel-type tractors used in agriculture, while Appendix B provided diagrams depicting these testing procedures. In place of these requirements, OSHA referenced SAE consensus standard J334a-1970 and American Society of Agricultural Engineers (“ASAE”) consensus standard S306.3-1974 for protective frames, and SAE consensus standard J168-1970 and ASAE consensus standard S336.1-1974 for protective enclosures, in paragraph (b)(1) of revised 29 CFR 1928.51.

For both protective frames and protective enclosures, the testing conducted under the ASAE and SAE standards generally is consistent with the testing requirements of the original OSHA standards. However, the Agency found several substantive differences between the original OSHA standards and the consensus standards (for testing both protective frames and protective enclosures) that replaced them. First, both the original OSHA standards and the ASAE standards differ substantively from the SAE standards by providing an exemption from field-upset testing based on results for either the static or dynamic versions of the laboratory energy-absorption test, 3 while the SAE standards require field-upset testing only under dynamic test conditions. Consequently, this direct final rule will reinstate the testing exemption found in the original OSHA ROPS standards. (See Exs. 4-3 and 4-4.) Second, the original OSHA and the SAE standards allow either static or dynamic testing at 0 °F, while the ASAE standards limit testing at 0 °F to dynamic testing. Therefore, reinstating the original OSHA standards under this direct final rule restores the testing option found in the original OSHA standards, but which is not in the ASAE standards. (See Exs. 4-3 and 4-4.) Finally, as an alternative to 0 °F testing, the original OSHA and ASAE standards offer the Charpy V-notch test, while the SAE standards do not. Accordingly, reinstating the original OSHA standard will provide an additional cold-temperature testing option not available in the SAE standards. (See Exs. 4-3 and 4-4.)

Paragraph (c)(1) of OSHA's original 29 CFR 1926.1002 contains an editorial error. The original paragraph states that laboratory or field tests “determine the performance requirements set forth in paragraph (c)(1) of this [standard].” However, paragraph (i) of the standard, not paragraph (c)(1), provides the performance requirements that the tests must determine. Therefore, OSHA is correcting the reference accordingly.

The Agency also is making two additional revisions related to the original construction standards for ROPS. First, as noted in Ex. 4-1, paragraph 5.3.2 of SAE consensus standard J334a-1970 defines the term “P u ” as the “[u]ltimate force capacity of mounting connection, lb (kg).” However, paragraph (j)(3) of original 29 CFR 1926.1002 lists no definition for this term. Since the original OSHA standard duplicates the remaining terminology of the SAE consensus standard, this rulemaking will add this term and the SAE consensus standard definition to reinstated 29 CFR 1926.1002(j)(3). Second, in reinstating the original 29 CFR 1926.1002 and 1926.1003 standards, OSHA is removing the following sentence from paragraphs (k) and (g) of these respective standards: “The SAE standard shall be used in the event that questions of interpretation arise.” The Agency is removing this sentence because the referenced SAE standard provides no additional information on which to base such interpretations.

Finally, the Agency is making a number of plain-language revisions to the regulatory text of the original OSHA ROPS standards for the construction and agriculture industries. The Agency finds that using plain language will improve the comprehensibility of these provisions. These improvements will, in turn, enhance employer compliance with the revised provisions and, concomitantly, increase the protection afforded to employees. OSHA believes that rewriting these provisions in plain language did not alter the substantive requirements of the existing provisions.

The purpose of the Occupational Safety and Health Act of 1970 (“OSH Act”), 29 U.S.C. 651 et seq., is “to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources.” (29 U.S.C. 651(b).) To achieve this goal, Congress authorized the Secretary of Labor to promulgate and enforce occupational safety and health standards. (29 U.S.C. 655(b) and 654(b).) A safety or health standard is a standard “which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment or places of employment.” (29 U.S.C. 652(8).) A standard is reasonably necessary or appropriate within the meaning of Section 652(8) when a significant risk of material harm exists in the workplace and the standard will reduce substantially or eliminate that workplace risk.

OSHA based its original ROPS standards on evidence that these structures are necessary to ensure proper employee protection should wheel-type tractors become unstable and roll backwards or to the side. For this direct final rule, the Agency has determined that the original OSHA construction and agriculture ROPS standards meet the statutory requirements of Section 652(8) of the OSH Act. In addition, OSHA finds that this direct final rule does not increase employers' compliance burdens (see section B (“Economic Analysis and Regulatory Flexibility Certification”) below). Consequently, it is unnecessary to determine significant risk, or the extent to which the direct final rule would reduce that risk, as would typically be required by Industrial Union Department, AFL-CIO v. American Petroleum Institute , 448 U.S. 607 (1980).

Because OSHA replaced its original ROPs testing provisions through a technical amendment, the regulated community did not have an opportunity for notice and comment on the substantive differences between the original ROPs testing provisions and the consensus standards that replaced them. Such notice and comment are required by the Administrative Procedures Act (5 U.S.C. 553(b)), the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)(2) and (b)(3)), and OSHA's procedural regulations (29 CFR 1911.5). Therefore, the Agency has concluded that it has a legal obligation to the regulated community to reinstate the original OSHA standards through this direct final rule.

OSHA's Economic Analysis and Regulatory Flexibility Analysis address issues related to the costs, benefits, technological feasibility, and economic impacts (including small business impacts) of this direct final rule reinstating the Agency's original ROPS standards.

Executive Order (“E.O.”) 12866 requires regulatory agencies to conduct an economic analysis for rules that meet certain criteria. The most frequently used criterion under E.O. 12866 is that the rule will have an annual cost impact on the economy of $100 million or more. Neither the benefits nor the costs of this direct final rule exceed $100 million. Nevertheless, the Agency has prepared this economic analysis to summarize this direct final rule's impact, and has concluded that it is not an economically significant regulatory action under E.O. 12866.

Although this direct final rule applies to employers in construction and agriculture so that their employees may operate safe equipment (i.e., wheel-type tractors), it more directly affects equipment manufacturers. Equipment manufacturers design and build machines that have ROPS to meet the testing criteria specified in OSHA's ROPS standards. Fewer than 10 original equipment manufacturers are directly affected by this direct final rule (see Ex. 4-5). Employers in the construction and agriculture industries who purchase and use wheel-type tractors are in violation of OSHA's ROPS standards and are subject to penalty when the tractors do not have protective structures meeting these standards. Therefore, employers in the construction and agriculture industries would be affected indirectly if changing the ROPS testing procedures were to change the price of equipment.

For the purposes of its economic analyses, OSHA generally defines small firms as firms with fewer than 1,000 employees (using the Small Business Administration's definition); however, the Agency may use smaller size categories as well. None of the original equipment manufacturers affected by this direct final rule is a small employer under any of these definitions. However, some small manufacturing firms (e.g., with fewer than 20 employees) may retrofit older, existing equipment with custom-made ROPS, and these firms may be affected by this direct final rule.

As explained in the preamble above, this direct final rule provides equipment manufacturers with more options for testing ROPS than the current OSHA ROPS standards. Therefore, none of the provisions in the direct final rule impose conditions that would generate new costs for equipment manufacturers, including small manufacturing firms. Cost savings under the direct final rule, if any, depend on the extent that equipment manufacturers choose to avail themselves of its alternative provisions. The Agency has not quantified the benefit of the increased testing options to manufacturers. The reinstated standards are both technologically and economically feasible and do not impose new compliance costs on equipment manufacturers or on the construction and agriculture industries. The Agency concludes that the economic impact of the direct final rule will be negligible on any of the potentially affected industries, including potentially affected small employers.

The Regulatory Flexibility Act of 1980 (“RFA”), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 601 et seq.), requires regulatory agencies to determine whether regulatory actions will adversely affect small entities. OSHA's threshold criteria for identifying a significant impact include costs exceeding one percent of revenues or five percent of profits. When costs exceed either threshold, then the Agency considers the impact on small entities to be significant for purposes of complying with the RFA. Employers will incur no significant costs of complying with this direct final rule. Accordingly, OSHA certifies that this regulation will not have a significant impact on a substantial number of small entities. In addition, the direct final rule is not a major rule as defined by Section 804 of the Congressional Review Act (5 U.S.C. 801 et seq. ).

After analyzing the provisions of this direct final rule in terms of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. and 5 CFR part 1320), OSHA has determined that these provisions do not impose any collection-of-information (i.e., “paperwork”) requirements on employers in the construction and agriculture industries who use ROPS to protect employees who operate wheel-type tractors. While several of the provisions reinstated by this direct final rule require that test data be recorded or verified (i.e., 29 CFR 1926.1002(d)(3), (d)(6), (g)(2)(i), (g)(2)(ii), and (g)(2)(iii); 1928.52(d)(2)(iii)(A) and (d)(2)(iii)(F); and 1928.53(d)(1)(iii) and (d)(2)(iii)(B)), these information-collection requirements apply only to ROPS manufacturers, not to the employers who use ROPS on wheel-type tractors. OSHA also concludes that, as a matter of usual and customary business practice, manufacturers record and verify ROPS testing information to ensure the integrity of protective frames and enclosures, and notes that the current SAE and ASAE consensus standards for ROPS require that manufacturers record and verify ROPS test data.

Members of the public may send comments on this paperwork determination to: Office of Information and Regulatory Affairs (Attention: Desk Officer for OSHA), OMB, Room 10235, 726 Jackson Place, NW., Washington, DC 20503. However, no comment received on this paperwork determination will be considered by the Agency to be a “significant adverse comment” as specified above under section I (“Direct Final Rulemaking”).

The Agency reviewed the direct final rule according to the most recent Executive Order (“E.O.”) on Federalism (Executive Order 13132, 64 FR 43225, August 10, 1999). This E.O. requires that Federal agencies, to the extent possible, refrain from limiting State policy options, consult with States before taking actions that restrict their policy options, and take such actions only when clear constitutional authority exists and the problem is national in scope. The E.O. allows Federal agencies to preempt State law only with the expressed consent of Congress. In such cases, Federal agencies must limit preemption of State law to the extent possible.

Under Section 18 of the Occupational Safety and Health Act of 1970 (“OSH Act”; 29 U.S.C. 651 et seq. ), Congress expressly provides OSHA with authority to preempt State occupational safety and health standards. Under the OSH Act, a State can avoid preemption under Section 18 only when it submits, and obtains Federal approval of, a plan for the development and enforcement of safety and health standards (i.e., “State-Plan State”; see 29 U.S.C. 667). Occupational safety and health standards developed by a State-Plan State must be at least as effective in providing safe and healthful employment and places of employment as the Federal standards. Subject to these requirements, a State-Plan State is free to develop and enforce under State law its own requirements for safety and health standards.

The Agency concludes that this direct final rule complies with E.O. 13132. In States without OSHA-approved State Plans, Congress expressly provides for OSHA standards to preempt State job safety and health rules in areas addressed by Agency standards; in these States, the direct final rule limits State policy options in the same manner as every Agency standard. In States with OSHA-approved State Plans, this action does not significantly limit State policy options.

When Federal OSHA promulgates a new standard or imposes additional or more stringent requirements than an existing standard, the 26 States and U.S. Territories with their own OSHA-approved occupational safety and health plans must revise their standards to reflect the new standard or amendment, or show the Agency why such action is unnecessary, e.g., because an existing State standard covering this area already is at least as effective as the new Federal standard or amendment (29 U.S.C. 553.5(a)). The State standard must be at least as effective as the final Federal rule, must be applicable to both the private and public (i.e., State and local government employees) sectors, and must be completed within six months of the publication date of the final Federal rule. When OSHA promulgates a new standard or amendment that does not impose additional or more stringent requirements than an existing standard, States are not required to revise their standards, although the Agency may encourage them to do so. The 26 States and Territories with OSHA-approved State plans are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. Connecticut, New Jersey, New York, and the Virgin Islands have OSHA-approved State plans that apply to State and local government employees only. Although this direct final rule does not impose any additional or more stringent requirements on employers compared to the existing standard, the Agency strongly encourages the States and Territories with their own State Plans that currently do not include the original OSHA ROPS testing standards in their construction and agriculture standards to adopt the revisions promulgated under this direct final rule within six months of the date of this Federal Register notice, unless OSHA withdraws the Direct Final Rule following the end of the comment period.

OSHA has reviewed this direct final rule according to the Unfunded Mandates Reform Act of 1995 (“UMRA”; 2 U.S.C. 1501 et seq. ) and Executive Order 12875. As discussed above in section III.B (“Final Economic Analysis and Regulatory Flexibility Certification”) of this preamble, the Agency has determined that this direct final rule imposes no additional costs on any private-or public-sector entity. Accordingly, this direct final rule requires no additional expenditures by either public or private employers.

As noted earlier, the Agency's standards do not apply to State and local governments, except in States that have voluntarily elected to adopt a State plan approved by the Agency. Consequently, this direct final rule does not meet the definition of a “Federal intergovernmental mandate” (see Section 421(5) of the UMRA (2 U.S.C. 658(5)). In conclusion, this direct final rule does not mandate that State, local, and tribal governments adopt new, unfunded regulatory obligations.

The Agency requests that interested members of the public who submit written comments concerning this direct final rule do so using any of the methods listed above in the section titled Addresses . Note, however, that the Agency has defined a significant adverse comment as only those comments that address: (1) The lawfulness of the procedures used to promulgate the 1996 technical amendment as these procedures relate to the ROPs testing provisions; or (2) whether the minor revisions made to the original ROPS standards in this direct final rule are reasonable or appropriate.

OSHA will post all comments received, without revision, to http://dockets.osha.gov , including any personal information provided. The Agency cautions commenters about submitting personal information such as social security numbers and birth dates. For access to materials in the docket, including background documents and comments received, go to http://dockets.osha.gov. Contact the OSHA Docket Office for information about materials not available through the OSHA webpage, and for assistance in using the webpage to locate docket submissions.

If the Agency receives no significant adverse comment regarding this direct final rule, it will publish a Federal Register notice confirming the effective date of this direct final rule. For the purpose of judicial review, OSHA views the date that it confirms the effective date of the direct final rule to be the date of issuance. Additionally, such confirmation may include minor stylistic or technical changes to the regulatory language provided by this notice. If OSHA receives significant adverse comment on this direct final rule, it will withdraw the direct final rule and determine, based on the comments submitted to the record, whether to issue a proposed rule in the future.

In the following, whenever “we,” “us,” or “our” are used, we mean the United States Environmental Protection Agency.

EPA has determined that ground-level ozone is detrimental to human health. On July 18, 1997, the EPA promulgated an 8-hour ozone NAAQS (62 FR 38856) of 0.08 parts per million parts of air (0.08 ppm). This standard is violated in an area when any ozone monitor in the area records an average of the annual fourth-highest daily maximum 8-hour ozone concentrations equaling or exceeding 0.085 ppm over a three-year period. Ground-level ozone is not emitted directly by sources. Rather, emitted VOC and NO X react in the presence of sunlight to form ground-level ozone along with other secondary compounds. VOC and NO X are referred to as “ozone precursors.”

In accordance with section 107(d) of the CAA as amended in 1977, EPA designated the Evansville area (Vanderburgh and Warrick Counties) as an ozone nonattainment area for the 8-hour ozone NAAQS based on ozone data collected in this area during the 2001-2003 period. The Federal Register notice making this designation was signed on April 15, 2004, and was published on April 30, 2004 (69 FR 23857).

The Clean Air Act contains two sets of provisions—subpart 1 and subpart 2—that address planning and emission control requirements for nonattainment areas (both subparts are found in title I, part D of the CAA). Subpart 1 contains general, less prescriptive requirements for nonattainment areas governed by any NAAQS, and applies to all nonattainment areas. Subpart 2 contains more specific requirements for certain ozone nonattainment areas, and applies to ozone nonattainment areas classified under section 181 of the CAA.

In the April 30, 2004 ozone designation rulemaking, EPA divided 8-hour ozone nonattainment areas into the categories of subpart 1 nonattainment and subpart 2 nonattainment based on their 8-hour ozone design values ( i.e. , the three-year average annual fourth-highest daily maximum 8-hour ozone concentrations at the worst-case ozone monitoring sites in the designated areas) and their 1-hour ozone design values ( i.e. , the fourth-highest daily maximum 1-hour ozone concentrations over the three-year period at the worst-case monitoring sites in the designated areas). 1 8-hour ozone nonattainment areas with 1-hour ozone design values equaling or exceeding 0.121 ppm were designated as classified nonattainment areas (as nonattainment areas required to meet the requirements of subpart 2 of the CAA). All other 8-hour nonattainment areas were designated as “basic” nonattainment areas subject only to the requirements of subpart 1 of the CAA.

In the April 30, 2004 designation rulemaking, the Evansville area was designated as nonattainment for the 8-hour ozone standard, and was identified as a subpart 1 basic nonattainment area. This designation was based on ozone data collected in the Evansville area during the period of 2001-2003.

On June 2, 2005, the State of Indiana requested redesignation of the Evansville area to attainment of the 8-hour ozone NAAQS based on ozone data collected during the period of 2002-2004. This redesignation request also included a 10-year ozone maintenance plan for the Evansville area and VOC and NO X MVEBs for the Evansville area based on emission projections in the ozone maintenance plan.

On September 9, 2005, EPA published a proposed rule (70 FR 53605), proposing to: (1) Determine that the Evansville area has attained the 8-hour ozone NAAQS and to approve Indiana's request to redesignate the Evansville area to attainment of the 8-hour ozone NAAQS; (2) approve Indiana's ozone maintenance plan for the Evansville area; and (3) approve the 2015 VOC and NO X MVEBs for the Evansville area and notify the public that these MVEBs are adequate for purposes of transportation conformity. This proposed rule established a 30-day public comment period. EPA received several requests for a hearing and for extension of the comment period on the proposed rule. EPA denied the requests for the hearing, stating it believed that the opportunity to submit written comments provided an adequate opportunity for public input. EPA did, however, grant a seven-day extension to the public comment period. See 70 FR 58167 (October 5, 2005).

After consideration of the comments received in response to the September 9, 2005 proposed rule, as described in section V below, and the State's final adopted SIP revision and supporting material (reviewed in detail in the September 9, 2005 proposed rule), we are taking the following actions:

In the September 9, 2005 proposed rule (70 FR 53605), EPA proposed to determine that the Evansville area had attained the 8-hour ozone NAAQS and to approve Indiana's request to redesignate this area to attainment of the 8-hour ozone NAAQS. These proposed actions were based on ozone data from the period of 2002-2004 and on the State's demonstration that the criteria for redesignation to attainment, as specified in section 107 of the Clean Air Act, had been satisfied. EPA has reviewed the ambient monitoring data for ozone consistent with the requirements contained in 40 CFR part 58 and recorded in EPA's Aerometric Information Retrieval System (AIRS) for the Evansville area for both the 2002-2004 ozone seasons and the 2003-2005  2 ozone seasons. On the basis of this review, EPA has determined that the area has attained the 8-hour ozone standard. Review of the ozone data, the State's submissions, and the public comments for and against the redesignation (see section V below) lead us to the conclusion that: (1) The Evansville ozone nonattainment area has attained the 8-hour ozone standard; and (2) the State of Indiana has met the criteria for redesignation of the Evansville area to attainment of the 8-hour ozone NAAQS. Therefore, in this final rule, we are finalizing our determination of attainment, and we are approving Indiana's request for redesignation of the Evansville area to attainment of the 8-hour ozone NAAQS.

The State must continue to operate an appropriate ozone monitoring network, in accordance with 40 CFR part 58, to verify the attainment status of the Evansville area. The air quality data relied on to determine that the area continues to attain the ozone NAAQS must be consistent with 40 CFR part 58 requirements and other relevant EPA guidance and must be recorded in EPA's AIRS.

EPA is approving Indiana's plan for maintaining the 8-hour ozone NAAQS in the Evansville area through 2015 as a revision to the Indiana SIP. The maintenance plan meets the requirements of sections 175A and 107(d) of the Clean Air Act. The adopted maintenance plan contains triggering mechanisms and contingency measures designed to promptly correct (or prevent) a violation of the 8-hour ozone NAAQS occurring after redesignation of the Evansville area to attainment of the NAAQS. Section 175A of the Clean Air Act requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the State will promptly correct a violation of the NAAQS that occurs after redesignation.

The contingency measures listed in the adopted maintenance plan include, but are not limited to, the following:

1. Lower Reid vapor pressure gasoline requirements;  3

2. Broader geographic applicability of existing emission control measures;

3. Tightened Reasonably Available Control Technology (RACT) requirements on existing sources covered by EPA Control Technique Guidelines (CTGs) issued in response to the 1990 Clean Air Act amendments;

4. Application of RACT to smaller existing sources;

5. Vehicle Inspection and Maintenance (I/M);

6. One or more Transportation Control Measures (TCM) sufficient to achieve at least a 0.5 percent reduction in actual area-wide VOC emissions;

7. Alternative fuel and diesel retrofit programs for fleet vehicle operations;

8. Controls on consumer products consistent with those adopted elsewhere in the United States;

9. VOC and NO X emission offsets for new or modified sources;

10. Increased ratio of the emission offset required for new sources; and,

11. VOC and NO X emission controls on new minor sources (with VOC or NO X emissions less than 100 tons per year).

Consideration and selection of one or more of the contingency measures will take place when a two-year average annual fourth-high monitored daily peak 8-hour ozone concentration of 0.085 ppm or a violation of the 8-hour ozone NAAQS  4 is recorded at any monitor in the Evansville area after the redesignation of the Evansville area to attainment of the ozone NAAQS. The selected contingency measures will be adopted and implemented within 18 months after the close of the ozone season with the ozone data that trigger the need for the implementation of the contingency measure(s).

The maintenance plan estimates emissions through 2015, ten years after the year in which the State anticipated that EPA would complete rulemaking on the State's ozone redesignation request, as required by section 175A of the Clean Air Act. These VOC and NO X emission estimates are for point, area, and mobile sources in the Evansville area. The emissions estimates demonstrate continued maintenance of the 8-hour ozone standard through 2015. The latest available emissions information was used to project the emissions. The mobile source emissions estimates were developed using the MOBILE6 emission factor model. The State has committed to update the maintenance plan and maintenance demonstration eight years after the redesignation of the Evansville area to attainment of the 8-hour ozone NAAQS to demonstrate maintenance of the standard for an additional ten years, through 2025.

EPA finds as adequate and approves the 2015 MVEBs of 4.20 tons per day for VOC and 5.40 tons per day for NO X for the Evansville area in the State-adopted ozone maintenance plan. These MVEBs have been addressed through the appropriate public involvement and review process without receiving adverse comment. These MVEBs meet the adequacy criteria, 40 CFR 93.118(e)(4), and are approvable as part of the 8-hour ozone maintenance plan. The approved 2015 MVEBs will replace the MVEBs currently used for transportation conformity analyses and demonstrations, as detailed in our September 9, 2005 proposed rule, upon the effective date of this rule. The newer MVEBs, which are being approved as part of the 8-hour ozone maintenance plan, are consistent with the goals of section 110(l) of the Clean Air Act because they set a tighter cap on mobile source VOC and NO X emissions for transportation conformity purposes, thereby limiting growth in mobile source emissions allowed in the area's transportation plan.

Subsequent to the effective date of this rule, the State of Indiana and local planning agencies in the Evansville area will have to use the 2015 MVEBs in all transportation conformity analyses and demonstrations.

These actions will become effective 30 days after today's publication of this final rule in the Federal Register .

EPA has determined that the Evansville area has attained the 8-hour ozone standard. EPA has determined that the State of Indiana has demonstrated that all other criteria for the redesignation of the Evansville area from nonattainment to attainment of the 8-hour ozone NAAQS have been met. EPA is fully approving the ozone maintenance plan for the Evansville area as meeting the requirements of sections 175A and 107(d) of the Clean Air Act.

In the September 9, 2005 proposed rule at 70 FR 53606, EPA described the applicable criteria for redesignation to attainment. Specifically, section 107(d)(3)(E) of the Clean Air Act allows for redesignation provided that: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k) of the Clean Air Act; (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from the implementation of the applicable state implementation plan, applicable Federal air pollution control regulations, and other permanent and enforceable emission reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A of the Clean Air Act; and, (5) the state containing such area has met all requirements applicable to the area under section 110 and part D of the Clean Air Act.

EPA has determined that the Evansville area has attained the 8-hour ozone NAAQS. EPA has approved all requirements in the Indiana SIP applicable to the Evansville area under section 110(k) of the Clean Air Act for purposes of redesignation. EPA has determined that the improvement in ozone air quality in the Evansville area is due to permanent and enforceable emission reductions resulting from the implementation of the Indiana SIP, applicable Federal air pollution control regulations, and other permanent and enforceable emission reductions. EPA is fully approving an ozone maintenance plan for the Evansville area meeting the requirements of section 175A of the Clean Air Act. Finally, EPA concludes that the State of Indiana has met all requirements applicable to the Evansville area under section 110 and part D of the Clean Air Act for purposes of redesignation. Therefore, EPA concludes that the State of Indiana and the Evansville area have met all requirements applicable to the Evansville area for purposes of redesignation to attainment of the 8-hour ozone NAAQS under section 107 of the Clean Air Act.

By finding that the ozone maintenance plan provides for maintenance of the 8-hour ozone NAAQS through 2015, EPA is hereby finding adequate and approving the 2015 VOC and NO X MVEBs contained in the maintenance plan. The MVEB for VOC in the Evansville area is 4.20 tons per day, and the MVEB for NO X in the Evansville area is 5.40 tons per day.

The rationale for these findings and actions is stated in this rulemaking and in more detail in the September 9, 2005 proposed rule, found at 70 FR 53605.

Approval of the Indiana redesignation request changes the official designation for the 8-hour ozone NAAQS found at 40 CFR part 81 for Vanderburgh and Warrick Counties, Indiana from nonattainment to attainment. It also incorporates into the Indiana SIP a plan for maintaining the 8-hour ozone NAAQS through 2015. The maintenance plan includes contingency measures to remedy any future violation or threatened violation of the 8-hour ozone NAAQS in the Evansville area, and includes VOC and NO X MVEBs for 2015 for the Evansville area.

We received comments from eight individuals and organizations responding to the September 9, 2005 proposed rule. Six of the commenters submitted comments critical of various portions of the proposed rule. One of the critical commenters included a petition signed by 125 individuals asserting that the Evansville area has an air quality problem requiring cleanup by the State and opposing a State lawsuit against the EPA. 5 One commenter, the Vanderburgh County Ozone Officer, supported the proposed rule, and provided additional data and analyses to support the proposed rule. Another commenter supported the proposed rule. A summary of the comments and EPA's responses to them are provided below.

A number of commenters have expressed the concern that the current air quality in the Evansville area does not warrant redesignation to attainment of the 8-hour ozone standard. These commenters focused primarily on the following: (1) A number of ozone alerts  6 were issued for southwestern Indiana during the summer of 2005; (2) certain days in 2005 had high ozone concentrations but lacked ozone alerts; (3) high levels of fine particulates (PM  2.5   7 ) occurred on a number of days in 2005; and (4) the presence of haze and gray skies in southern Indiana during 2005 indicated an ongoing air quality problem. The commenters questioned whether air quality had improved enough to justify redesignation and expressed a further concern that a redesignation to attainment would result in the removal of air quality monitoring equipment from the area.

In addition, one commenter, Joanne M. Alexandrovich, Ph.D., Vanderburgh County Department of Public Health's Ozone Officer, expressed support for EPA's redesignation proposal. In so doing, she provided 2005 ozone data for Posey, Vanderburgh, and Warrick Counties showing that the Evansville area continues to meet the 8-hour ozone standard. This includes data containing peak 8-hour ozone concentrations for each monitoring site in the area for 2005 and three-year ozone design values for each monitoring site for the period of 2003-2005. Dr. Alexandrovich also presented ozone concentration trends data for each of the monitoring sites for the period of 1995-2005 to demonstrate a robust downward trend in ozone design values at all monitoring sites in the area, including at the Yankeetown site (the site on the property of Alcoa, Incorporated (Alcoa), see Comment/Response 2 below) and at other sites in Warrick County, where the worst-case ozone monitors in the area are located.

Dr. Alexandrovich notes that there were four exceedance days in the vicinity of the Evansville area in 2005 (three in the Evansville area and one in Posey County) and that the exceedances were recorded at several sites, with only one site (Boonville High School in Warrick County) recording exceedances on two days, and with no sites recording exceedances on three or more days. This shows that the fourth-high daily peak 8-hour ozone concentrations at all monitors in the area in 2005 were below 0.085 ppm (a monitored exceedance level cutoff). Finally, Dr. Alexandrovich provided information regarding the dates of ozone alerts and high ozone concentrations in 2005. These data show that ozone alerts were issued on eight days in 2005, with only two of the alert days actually having exceedances of the 8-hour ozone standard. Two days without ozone alerts also had ozone standard exceedances, one in the Evansville area and the other in Posey County. Most ozone alert days had relatively high peak ozone concentrations, but had peak ozone concentrations which failed to reach ozone standard-exceedance levels.

In determining whether the 8-hour ozone standard is met, the 8-hour ozone standard requires the use of the three most recent, consecutive calendar years of monitoring data. 40 CFR 50.10, appendix I, parts 2.2 and 2.3. Thus, EPA has determined that the Evansville area has attained the 8-hour ozone standard based on the data for the period of 2002-2004. EPA has also reviewed quality assured data for 2005 provided by the Indiana Department of Environmental Management (IDEM), and has determined that they show that the Evansville area continued to attain the 8-hour ozone standard through 2005. The quality assured peak ozone concentrations for 2005 are summarized in Table 1 by monitoring site as submitted by the State.

Although a number of ozone alerts were issued for Southwestern Indiana during the summer of 2005, quality assured data supplied by the State show that no monitors recorded fourth-high ozone concentrations above the 8-hour ozone standard. In addition, the 2003-2005 ozone design values for all monitors in the Evansville area were below the ozone standard violation cut-off level (below 0.085 ppm). Table 2 documents the 2003-2005 ozone design values by monitoring site in the vicinity of Evansville.

These data show that no violations of the 8-hour ozone standard were monitored in the Evansville area even when 2005 ozone data are considered. This is true despite the commenters' observation that a number of ozone alerts were issued in 2005 for this area. In addition, as noted by one of the commenters, ozone alerts were issued on eight days, but only two of these alert days had monitored exceedances of the ozone standard. On only two days lacking ozone alerts were ozone standard exceedances monitored (only one of these was in the Evansville area, with the other in Posey County, outside of the ozone nonattainment area  8 ). Only one monitoring site, Boonville High School, recorded multiple days of ozone standard exceedances in 2005, but did not record a violation of the 8-hour ozone standard during the period of 2003-2005. No monitors in the Evansville area have recorded violations of the 8-hour ozone NAAQS based on the three most recent years of quality assured monitoring data. 9

A number of states and local area governments, including Indiana and Evansville, have chosen to activate ozone alerts when ozone concentrations are thought to be approaching the ozone standard and meteorological conditions are forecasted to be favorable for the formation of high ozone levels. Besides alerting the public to the potential for high ozone concentrations and to the potential for the need to change outdoor activities to avoid exposure to these high ozone levels, the ozone alerts also inform owners of ozone precursor emitting sources and the public that operations and activities should be altered if possible to mitigate the ozone precursor emissions. This reduces the potential for high ozone concentrations, and helps avoid violations of the ozone NAAQS. Therefore, even though ozone action alerts were issued on a number of days in 2005, this is not an indication of a violation of the ozone standard, as demonstrated by the 2003-2005 ozone data for the Evansville area. The quality assured monitoring data for 2002-2004 show that the Evansville area attained the 8-hour ozone standard, and the quality assured 2003-2005 ozone data show that the area continues to attain the ozone standard. EPA is correct in determining that the Evansville area has attained the ozone standard, thus satisfying the criterion for redesignation pursuant to section 107(d)(3)(E)(i) of the Clean Air Act.

The 8-hour ozone design values submitted by Dr. Alexandrovich also show that ozone air quality has improved in the Evansville area. Ozone design values for all sites for the period of 1995-2005 show a significant downward trend, as noted by the commenter. The areawide ozone design value for 2002-2004 was 0.083 ppm and the areawide ozone design value for 2003-2005, based on the average of the fourth-highest daily maximum 8-hour ozone concentrations for this period, was 0.077 ppm. The data show several aspects of special note. All sites in the Evansville area exhibit essentially the same downward trend in ozone design values. This shows that an ozone problem has not simply shifted from one monitor site/area to another. In addition, the similar trends in ozone design values show that the peak ozone concentrations are reacting to common effects, including long-term downward trends in regional ozone precursor emissions. An increase in the downward trend of the ozone design values in the period of 2003-2005 at all monitoring sites implies that the decrease in regional NO X emissions resulting from EPA's NO X SIP call and other regional emission reductions are having a beneficial impact on ozone levels on a regional basis. See the response to Comment 10 below. As this commenter notes and we agree, the trend toward decreasing ozone design values is not expected to reverse in the near future as additional reductions in regional emissions are expected to result through the implementation of federally enforceable emission controls on vehicles, fuels, electric utilities, and other major combustion sources.

To demonstrate the downward trend in ozone design values, Table 3 summarizes ozone design values by monitoring site for the most recent three three-year periods taken from the quality assured ozone data supplied by the State.

With regard to the claims of high PM 2.5 levels, it is noted that this rulemaking addresses only the ozone designation of the Evansville area. This rule does not address or affect the PM 2.5 designation for this area, and, thus, the PM 2.5 concentrations in this area have no bearing on EPA's determinations regarding the attainment status of this area for the 8-hour ozone NAAQS.

The comment concerned with the ending of monitoring in the Evansville area upon redesignation to attainment of the ozone NAAQS is wrong for several reasons. First, and most importantly, the State of Indiana has committed to continuing ozone monitoring in this area. See 70 FR 53613 (September 9, 2005). Second, the ozone maintenance plan requires and depends on continued ozone monitoring during the lifetime of the maintenance plan. Note that the ozone maintenance plan contains action triggers directly tied to ozone monitoring. Under the approved maintenance plan, ozone levels will be tracked and certain corrective actions or further analyses will be triggered if monitored ozone concentrations reach specified levels. To implement the ozone maintenance plan, the State must continue ozone monitoring in the Evansville area.

With regard to haze and gray skies in southern Indiana, this issue also is not relevant to a redesignation of the area for the ozone standard, where the area has been shown to be attaining the 8-hour ozone standard. A number of pollutant sources lead to the formation of fine particulates, which can contribute to haze levels. Since the Evansville area is a nonattainment area for fine particulates, the State of Indiana is expected to assess the sources of the emissions leading to these fine particulates and to develop strategies and emission control regulations leading to attainment of the fine particulates standards. In doing so, the State's actions should also lead to reductions in haze levels and to cleaner skies. In addition, regional emission reductions achieved through EPA's NO X SIP call and Clean Air Interstate Rule (CAIR) will further lower haze levels and clear the skies of this area.

With regard to the claim that the State and the City of Evansville failed to issue an ozone alert when it would have been warranted, the record of ozone alerts provided by Dr. Alexandrovich shows more overpredictions of high ozone levels than underpredictions (more issued ozone alerts on days with no ozone standard exceedances than failures to issue ozone alerts on days with ozone standard exceedances). This claim is also irrelevant to a redesignation action, which is based on demonstrated attainment of the standard. There is no evidence to support the claim that actions with respect to prior ozone alerts call the maintenance plan into question. The maintenance plan contains corrective actions that will occur if high ozone levels are monitored, and does not conflict with or depend upon the State's plans for issuing ozone alerts in the future. The fact that there were ozone alerts also does not indicate that the area violated the ozone standard. The ozone maintenance plan is designed to provide corrective actions if high ozone levels or violation of the standard occur after redesignation of the area to attainment of the NAAQS. The maintenance plan's contingency measures are triggered by monitored ozone levels. The triggering of the contingency measures in no way depends on the forecasting of high ozone concentrations. Therefore, the issuing of ozone alerts is in no way connected to the implementation of the ozone maintenance plan. The maintenance plan relies on monitored ozone data and not on forecasted concentrations. Regardless of the status of the ozone alert efforts, the relevant issue for redesignation is that the Evansville area has attained the 8-hour ozone NAAQS and has an approved plan for maintaining the ozone standard.

A commenter notes that Alcoa, Incorporated (Alcoa) had sought the ozone redesignation while, at the same time, asking that the ozone monitor on its property be terminated and/or relocated to another site. This is a particular concern to the commenter since the Alcoa monitor (which was shut down in October 2004) was the monitor that had recorded the ozone standard violation on which the 2004 Evansville area ozone nonattainment designation had been based. The commenter believes that, had the monitor been left on the Alcoa property, it would likely have continued to show a violation of the ozone NAAQS during the summer of 2005. This commenter also suggests that this redesignation request was originated by Alcoa. Finally, the commenter believes that EPA and the State are taking the approach of “no data, no problem.”

The Alcoa (Yankeetown) monitor operated through the end of the 2004 ozone season. Data from the Alcoa monitor were considered both in designating the Evansville area as nonattainment based on 2001-2003 data and in EPA's determination that the area attained the 8-hour ozone standard based on 2002-2004 data. The State considered this monitor to represent ambient air and requested Alcoa to quality assure the data from this site, meeting State monitoring standards, so that these data could be considered to be on par with the ozone data from other monitors in the Evansville area and in the State. Alcoa disagreed with the State, arguing that this monitor does not represent ambient air. Alcoa objected to and challenged the designation of the Evansville area as an 8-hour ozone nonattainment area based on the ozone monitoring at the Alcoa site. Alcoa terminated the monitor at the end of the 2004 ozone season and the State located a new ozone monitor very close to the Alcoa site, but off the premises of Alcoa. This new monitor, the Dayville site, was operated in 2005.

Prior to the establishment of the Dayville ozone monitoring site, EPA was given the opportunity to review the characteristics of the Dayville site relative to the characteristics of the Alcoa site. The proximity of the two monitoring sites and the similarity of the emissions near the monitoring sites (particularly the similarity and spatial distribution of NO X emissions close to the monitoring sites) led us to the conclusion that the two monitoring sites were equivalent. We have seen no data to the contrary.

The ozone trends data provided by Dr. Alexandrovich, as discussed in Comment/Response 1, indicate that the Dayville monitoring data may be generally considered in conjunction with the Alcoa data to assess the long-term trend in the 8-hour ozone data for this area. The Alcoa/Dayville ozone data show an ozone trend very similar to the ozone trends for other monitors in the Evansville region. The 2005 data for Dayville fit well with the prior data for the Alcoa site to produce an ozone trend that matches those from other long-term sites in the area. If the Dayville site was significantly different in local emission characteristics and ozone response relative to the Alcoa site, one might expect the short-term ozone trend (2004-2005) for this site pair to be significantly different from the ozone trends for the long-term sites. This is not the case. Based on this observation and considering the close proximity and similarities of the Alcoa and Dayville monitoring sites and the fact that the Dayville monitor recorded a fourth-high daily maximum 8-hour ozone concentration of 0.077 ppm in 2005, we see no basis to assume or to speculate that the Alcoa site would have recorded a violation of the 8-hour ozone standard based on 2003-2005 ozone data. Therefore, we disagree with the commenters on this point.

EPA can base its determination on whether the standard has been met only on available ozone monitoring data and not on speculation. There is no evidence that air quality at the Alcoa monitor would have violated the 8-hour ozone standard in 2005. On the contrary, the data show no violation of the ozone standard during the period of 2002-2004 for the Alcoa monitor, and no exceedances of the 8-hour ozone standard at the replacement Dayville monitor in 2005. If anything, the available data indicate that the Alcoa site would not have violated the 8-hour ozone standard in 2005. At minimum, we cannot conclude that a violation of the 8-hour ozone standard would have been recorded at the Alcoa monitor in 2005. The termination of the Alcoa monitor and its replacement by the Dayville monitor do not affect the eligibility of the Evansville area to qualify for redesignation. The available ozone data support this redesignation, and the State has demonstrated that the area has attained the 8-hour ozone NAAQS.

While EPA acknowledges that Alcoa chose to discontinue monitoring on its property, it is the State of Indiana—and not Alcoa—that developed, adopted, and submitted the ozone redesignation request. As discussed above, EPA believes that the new, nearby ozone monitor at Dayville provides ozone data equivalent those produced by the Alcoa-Yankeetown monitor.

The State is not exhibiting an attitude of “no data, no problem,” and has replaced the terminated Alcoa monitoring site with the Dayville monitoring site. The State has supported the original 8-hour ozone nonattainment designation for Warrick County (the county in which the Alcoa site was located), and has supported maintaining an ozone monitor in this area, recognizing that this area has a potential for relatively high ozone concentrations. This is why the Dayville ozone monitoring site was selected and implemented.

EPA is not taking the approach of “no data, no problem.” First, EPA (along with the State) considered the data from the Alcoa site in both its original ozone designation of the area and in determining that the area subsequently attained the 8-hour ozone standard. Second, EPA has routinely required states to operate and maintain adequate ozone monitoring networks to record ozone concentrations and to maintain such networks after redesignation to assure maintenance of the standard. EPA's guidance provides that an area's maintenance plan should contain provisions for continued operation of air quality monitors to verify continued attainment, and that the state should continue to operate an appropriate air quality monitoring network in accordance with 40 CFR part 58. Memorandum of John Calcagni, “Procedures for Processing Requests to Redesignate Areas to Attainment,” September 4, 1992. The State has committed to continue operating an appropriate monitoring network in the Evansville area. IDEM has committed to continue operating and maintaining an approved ozone monitoring network in accordance with 40 CFR part 58 through the 10-year maintenance period.

Several commenters expressed concerns about high ozone concentrations monitored at the Leopold monitor in Perry County. The commenters believe that during the first two years that the Leopold monitor was operated, it showed exceedances of the 1-hour ozone standard. Because the monitor was removed before it collected three years of ozone data, the data for this monitoring site were not used to designate Perry County as nonattainment for the 1-hour ozone standard. The monitor has been replaced, although at a different site, and the new monitor has recorded exceedances of the 8-hour ozone standard, but has not collected three years of data showing a violation of the 8-hour ozone NAAQS. The commenters believe that the Leopold monitoring site should be considered to be part of the Evansville area, and that the Leopold data should be considered in EPA's determination of the ozone attainment status for the Evansville area. One of these commenters wants a commitment from the EPA that the Leopold monitor will become part of the Evansville ozone monitoring network, and that such action will be considered as part of the ozone maintenance plan addressed in EPA's final rule on Indiana's ozone redesignation request.

Dr. Alexandrovich, the Vanderburgh County Ozone Officer, notes that an ozone monitor was operated in Perry County from 1998 through 2001, Aerometric Information Retrieval System (AIRS) site 18-123-0008. Although ozone levels were elevated at this site, no exceedances of the 1-hour ozone standard were monitored at this site through the 2001 ozone season. After the 2001 ozone season (April-September in Indiana), this monitoring site was shut down. In 2004, a new monitoring site was established at Leopold, AIRS site 18-123-0009. In 2005, this monitor recorded exceedances of the 8-hour ozone standard on four days. 10 Analyses of wind speeds and directions by hour (transport analyses) for the high ozone days in 2005 show that the Evansville area was not a likely source area for the ozone standard exceedances on three of the four days.

The Leopold monitoring site should not be considered to be part of the Evansville area. The boundary of the Evansville nonattainment area was set in EPA's designation rulemaking of April 30, 2004, and EPA is not re-visiting that rulemaking in this final rule. In its designation rulemaking, EPA evaluated the boundary of the Evansville nonattainment area in accordance with the statute, EPA guidance, and the criteria that EPA applied nationally, and we considered all relevant factors. See 69 FR 23858. Perry County, located to the east and separated from the Evansville area by Spencer County, is designated as attainment for the 8-hour ozone standard. See 40 CFR 81.315. There is no showing that Perry County is monitoring a violation of the 8-hour ozone standard. There is, thus, no possibility of showing that the Evansville area is contributing to a violation of the ozone standard in Perry County.

As noted by Dr. Alexandrovich, wind speed and direction analyses for high ozone days in 2005 indicate that the Evansville area emissions may be impacting the Leopold monitoring site on only one out of four exceedance days during 2005 at this site. Areas south and east of the Leopold monitor (and not west in the direction of the Evansville area) appear to be the primary emission source areas that may be affecting Perry County on three of the four exceedance days. These data show that the Evansville area cannot be held responsible for the majority of the days on which there are high levels of ozone at the Leopold monitoring site. It appears that a number of other ozone precursor source areas in Indiana, Kentucky, and other upwind areas may be affecting ozone concentrations in Perry County.

For all of these reasons, we disagree with the commenters' assertions that Perry County should be part of the Evansville area and that the Leopold monitoring data should change EPA's decisions on the attainment and maintenance status of the Evansville area.

The 1-hour ozone concentrations monitored in Perry County have no bearing on our decision regarding the attainment status of the Evansville area for the 8-hour ozone NAAQS. We are not considering 1-hour ozone concentrations in any decision regarding 8-hour ozone redesignations. In addition, as of June 15, 2005, the 1- hour ozone NAAQS was revoked and no longer exists.

There is no showing that Perry County and the other Counties cited by the commenters are monitoring violations of the 8-hour ozone standard. Therefore, neither EPA nor the State is failing to disclose a current violation of the standard in this area. Monitored air quality data for Perry County are available to the public through AIRS or through the State's data system and air quality data summaries. In addition, it should be noted that the adequacy of monitoring in areas which are outside of the Evansville area, and which have not been shown to affect the determination of attainment in the Evansville area, is not relevant to this rulemaking.

Several commenters have asserted that the Evansville area experienced unusually cool weather in 2003 and 2004, and that EPA should consequently reject the State's redesignation request. A commenter further states that redesignation guidance issued by the EPA in September 1992 is clear in requiring that a redesignation to attainment must not be a result of “unusual meteorology.” On the other hand, 2002 data show clear exceedances of the 8-hour ozone standard. This commenter also believes that the summer of 2005 clearly shows that, under the right conditions, the Evansville Metropolitan Statistical Area (MSA) will continue to exceed the 8-hour ozone standard.

Another commenter, Dr. Alexandrovich, notes that meteorological statistics indicate that over the last 10 years, with a few exceptions, the weather in the Evansville area was within normal ranges. The commenter presents data on the departure of daily average temperatures from normal daily temperature averages, the departure of monthly average temperatures from normal monthly average temperatures, and the departure of monthly precipitation levels from normal monthly precipitation levels for the April through September periods of 1995 through 2005 to support conclusions regarding whether 2003 and 2004 were atypical years unusually favorable to lower peak ozone concentrations. The commenter also documents the ozone standard exceedance days with respect to departures of daily average temperatures from normal daily average temperatures. The data, in the accumulative, indicate that: (1) The weather in 2003 and 2004 was not atypically colder or drier/wetter than the weather during the ozone seasons in other years during the period of 1995-2005; (2) ozone standard exceedance days were not limited to days with atypically high temperatures; and (3) ozone exceedance trends (in number of exceedance days per year) were not associated with year-to-year trends in peak daily temperatures or precipitation. In other words, meteorological trends or deviations from normal meteorological conditions cannot explain the observed trends in peak ozone concentrations. This leaves one to conclude that the downward trend in peak ozone concentrations in the Evansville area is due to emission decreases in this area or in the surrounding region.

As part of the State's ozone redesignation request, the State documented a temperature analysis conducted to show that unusually favorable meteorology was not responsible for the observed air quality improvement. In this analysis, the State considered temperatures during the ozone-conducive months of May through September for the period of 1971-2000 versus the same months during the attainment period, 2002-2004. Temperature data were reviewed for a number of weather stations, including Indiana weather stations at: Bloomfield; Boonville; Dubois; Freelandville; Huntingburg; Mount Vernon; Shoals; Saint Meinrad; and Washington, along with temperature data supplied by the Evansville National Weather Service office. The temperature data were used to calculate the monthly average number of 90 degree days  11 during the period of 1995-1999. Temperature data were also used to determine the monthly normal maximum temperatures for the summer months for the period of 1971-2004. Monthly maximum temperatures were compared by month for various years for 1996 through 2004. Based on these analyses, it was concluded that the temperatures during the 2002 summer months of May, June, July, August, and September, were 1 to 2 percent higher than the long-term monthly norms, while the monthly maximum temperatures during the 1996, 1997, 2000, 2001, 2003, and 2004 summer months were 1 to 5 percent lower than the long-term averages. On average, the monthly maximum temperatures in the summer months of 2003 and 2004 were 3 percent and 2 percent below the long-term averages, respectively, whereas, on average, the monthly maximum temperatures in 2002 were 2 percent higher than the long-term averages. It should be noted that monthly maximum temperature ranges (when compared to the long-term monthly average maximum temperatures) were essentially identical between the 2001-2003 period used to designate the Evansville area as nonattainment for the 8-hour ozone NAAQS and the 2002-2004 attainment period. This is one indicator that temperature differences between various years were not the key factor in the observed air quality improvement.

The State also compared the number of 90 degree days during the summer months for each year during the period of 1995-2004 to the “normal” number of such days (the average for all years in this period) for the Evansville Regional Airport. The State compared these data to the number of 8-hour ozone standard exceedance days for each year. These data point to 2002 as being an abnormally warm summer, having a higher than average number of ozone standard exceedance days, whereas 2003 and 2004 were below average in warm summer days, but with numbers of ozone standard exceedance days more indicative of the averages during the period of 2000-2004, excluding 2002. The State concludes from these data that a greater number of ozone exceedance days per year correlates with a greater number of 90 degree days per year. This analysis supports a connection between meteorology and the number of ozone standard exceedance days per year, but does not support or address the case that 2003 and 2004 were atypically cool years. The State does conclude that, based on long-term trends, the annual number of 8-hour ozone standard exceedance days shows a greater downward trend than the annual number of 90 degree days. That is, the local summer climate is cooling, but the ozone air quality is improving at a faster rate, implying that emission decreases are responsible for the air quality improvement rather than the long-term change in meteorology.

To further consider this issue, we refer to the temperature and precipitation analyses documented by Dr. Alexandrovich (other commenters made assertions without providing supporting data). This commenter analyzed the ozone season departure of daily average temperatures from normal and the long-term daily average temperatures for each year during the period of 1996-2005. This analysis also indicated the departures of daily average temperatures on 8-hour ozone standard exceedance days during this period. Considering temperature variations throughout the ozone seasons, the commenter concluded that 2003, 2004, and 2005 were not atypically colder during the ozone season than other years in the 1996-2005 period. No years showed departures of daily average temperatures outside of the typical meteorological variability range. Additionally, the commenter concluded that ozone standard exceedances occurred on days with both above and below average daily peak temperatures, but do preferentially occur over periods of increasing temperatures, reflecting the influence of warming air masses on increasing ozone levels.

Dr. Alexandrovich also analyzed the departures of average monthly temperatures and precipitation levels from normal levels during the ozone seasons for the period of 1995-2005 along with the annual number of 8-hour ozone standard exceedance days for this period. This analysis failed to show any connection between monthly average temperatures and monthly precipitation and the annual number of ozone standard exceedance days. This commenter concludes that the weather over the last 10 years in the Evansville area was within normal ranges and no “unusually favorable meteorology” influenced the downward trend in peak ozone levels (towards cleaner air).

Given the data supplied by the State and Dr. Alexandrovich and the lack of data countering their conclusions, we see no support for the commenter's claim that the improvement in ozone air quality was due to unusually favorable meteorology. See the John Calcagni memorandum at 4. We agree that meteorology does influence peak ozone concentrations, but we see greater evidence in this case that emission reductions, both local and, more significantly, regional, were responsible for the reduction in peak ozone concentrations leading to attainment of the 8-hour ozone NAAQS. See our response to Comment 10 below. Therefore, we disagree with the commenters that unusually favorable meteorology led to attainment of the ozone NAAQS.

A commenter questions why the maintenance plan did not include the surrounding counties in the Evansville MSA and why the surrounding counties were not included in the original ozone nonattainment area.

A commenter asserts that, if EPA allows this redesignation, this will allow increases in pollution levels instead of reducing emissions as required by the Clean Air Act.

A commenter notes that there is nothing in the State's maintenance plan that deals with counties besides Warrick and Vanderburgh Counties. The commenter contends that additional counties should have been included in the original Evansville nonattainment area as required by EPA's designation guidance. The commenter claims that EPA's guidance required all of the counties in the MSA to be treated equally and to be included in the nonattainment area, and that EPA failed to follow its own guidance, excluding counties in Indiana and Kentucky from the nonattainment area that are part of the Evansville MSA. As a result of this, the commenter argues that nothing in the maintenance plan will apply to the “other” counties, whose emissions impact the ozone levels in the entire region.

A commenter asserts that the failure to include the other counties will bode poorly for the health of citizens in this region since new coal-fired power plants are proposed for Henderson County, Kentucky, just a few miles from the current ozone nonattainment area. The commenter claims that, had EPA followed its own guidance in establishing the original nonattainment area, the prospect of new coal-fired power plants for the region would have been different, if not impossible.

Several commenters demand that all counties in the Evansville MSA comply with the Indiana maintenance plan. The commenters believe that to let these counties “off the hook” when they have emission sources that are larger than anything in Vanderburgh County is outside of the spirit, legal guidance, and rules of the Clean Air Act. A commenter contends that Gibson and Posey Counties in Indiana and Henderson County in Kentucky should also be included in the maintenance plan for the Evansville area.

A commenter questions whether EPA and IDEM considered the impact of several new power plants proposed for the region, including a “giant” 1500 megawatt old technology plant just upwind of the ozone nonattainment area in Kentucky that has already received an operating permit from the Kentucky Division of Air Quality. This commenter additionally notes that proposals for at least three additional large power plants are pending, one just northwest of the ozone nonattainment area, one to the north of the nonattainment area, and one just south of the nonattainment area in Henderson County, Kentucky. The commenter claims that these power plants, together with those already permitted, will likely make it impossible to maintain the attainment of the 8-hour ozone standard in the future.

A commenter contends that there are at least 15 coal-fired power plants in the Evansville region, and that these plants emit sulfur dioxide, nitrogen oxide, fine and course particulates, mercury, and hydrochloric acid. The commenter claims that it stands to reason, especially since the Evansville area is not in attainment according to EPA standards, that the Evansville area needs to have a monitor in place to ensure that the area's air quality is at safe levels needed for healthy, productive lives.

Another commenter expressed the hope that, if new coal-fired power plants are brought on line in the future, the older coal-fired plants will be phased out and clean coal technologies will be used.

One of the commenters raising concerns about the growth of new power plants in the area attached a copy of a “Clean Air Petition to Governor Daniels.” This document was signed by a number of citizens of Newburgh, Indiana, and expresses opposition to “the state's lawsuit against the E.P.A.” The nature of the State lawsuit against EPA is not specified in the petition, nor in the commenter's cover letter.

Finally, a commenter states that, aside from the potential for new power plants, an attainment designation would tell companies that they have done enough toward reducing their emissions. The commenter argues that companies will do no more than is necessary, and that power plants will not make any improvements to decrease emissions of carcinogens. The commenter asserts that people are beginning to see the problem in the Evansville area, that government agencies are failing the people.

Regarding the issue of whether other counties should have been included in the Evansville ozone nonattainment area, as indicated above in the response to Comment 3, the appropriateness of the designation of the area, which was promulgated on April 30, 2004, is not the subject of this rulemaking. EPA evaluated the designation of the Evansville area in accordance with the statute, EPA guidance, and criteria that EPA applied in designations nationally. EPA considered all appropriate factors and concluded that Vanderburgh and Warrrick Counties were the appropriate area for the nonattainment area. See 69 FR 23858.

Regarding the issue of whether additional counties should be included in the maintenance plan, section 107(d)(3)(E)(iv) of the Clean Air Act provides that, in approving a redesignation request, the Administrator must have a “fully approved a maintenance plan for the area” as meeting the requirements of section 175A. Thus, EPA need only approve a plan adequate to cover the nonattainment area that is being redesignated. Nevertheless, EPA and the State also reviewed the emission levels in other southwestern Indiana counties and determined that further declines in emissions are projected there as well. In our proposed rulemaking, we considered the attainment year and projected year NO X emissions for five other counties in southwestern Indiana, and determined that emissions totals in these counties were projected to decrease during the Evansville area's ozone maintenance period (through 2015). See 70 FR 53612 (September 9, 2005). In addition, we note that ozone modeling conducted by the EPA and by the Lake Michigan Air Directors Consortium (LADCO) to support the Clean Air Interstate Rule (CAIR) for 2010 and 2015 shows that regional NO X emission reductions at electric generating units (power plants) in the eastern states will result in peak ozone reductions throughout the eastern states, and most importantly for the purposes of this rulemaking, throughout southwestern Indiana. CAIR will result in NO X emission reductions throughout southwestern Indiana that will contribute to the maintenance of the ozone standard in the Evansville area. See also response to Comment 10.

Other counties outside the maintenance area are not “being let off the hook,” as one commenter alleges, since they remain subject to the Clean Air Act requirements applicable to them and must demonstrate attainment of the 8-hour ozone standard. The fact that the counties are not included in the Evansville area ozone maintenance plan does not exempt these counties from the applicable requirements of the Clean Air Act with respect to attainment and maintenance of the 8-hour ozone standard. Thus, there is no requirement or need to extend the maintenance plan beyond the Evansville area.

Redesignation of the Evansville area is not expected to result in overall emissions increases. Redesignation does not relax any pollution control measures on existing sources in place at the time of the redesignation. Indiana has committed to maintaining all existing emission control measures that affect the Evansville area after redesignation. If the area were not redesignated, the only difference would be that the area would be subject to New Source Review (NSR) requirements under part D of title I for nonattainment areas, rather than the NSR requirements under part C of title I for attainment areas. This difference, however, does not mean that redesignation itself would result in increased emissions from the area. Note that the State demonstrated that overall emissions will decrease in the ten years following redesignation, even with part C NSR requirements. The maintenance plan also provides for contingency measures to be activated in the event that ozone levels increase to exceedance levels, so that, if increased emissions cause ozone air quality problems, implementation of new emission controls would be required.

With regard to power plants in the areas surrounding the Evansville area, several points are relevant to this set of comments. First, the existence of a number of power plants in the area has not prevented the Evansville area from achieving attainment of the 8-hour ozone standard. Despite the emissions from these power plants, the air quality in the Evansville area has improved to the point of attaining the 8-hour ozone standard. In fact, the reduction of regional NO X emissions at these power plants, as a result of EPA's NO X SIP call, is believed to be a significant contributor to the air quality improvement in the Evansville area. Second, the redesignation of the Evansville area to attainment will have no bearing on the implementation of the state NO X emission control rules resulting from the NO X SIP call and on the State's adoption and implementation of emission control rules resulting from CAIR. NO X emissions at the power plants will continue to be capped on statewide bases and states will have to account for new power plant emissions within these statewide emission caps. Finally, the designation of the Evansville area has little or no bearing on the permitting of new power plant emissions, particularly those in areas outside of Indiana. The impact of any new power plant on the area should be considered in the permitting process. Section 165(a)(3) of the Clean Air Act provides that there must be an air quality analysis to demonstrate that a proposed project will not cause or contribute to a violation of a NAAQS. Indiana has demonstrated that emissions inside of the Evansville area will remain at or below the attainment year levels through 2015, which indicates that the 8-hour ozone standard will be maintained during this period. As for the impact of emissions outside of the Evansville area, the commenters provided no analysis indicating that any such emissions would be likely to cause or contribute to violations of the ozone NAAQS in the future. In fact, NO X emissions projections for other counties within southwestern Indiana show that they are expected to decrease. See 70 FR 53612 (September 9, 2005). Furthermore, EPA notes that NO X emissions from proposed power plants will be subject to the regional NO X emission reduction requirements of the NO X SIP call and, in the future, CAIR. See 70 FR 25162 (May 12, 2005). Since Kentucky and Indiana are subject to these programs, sources subject to these programs and to the state rules that result from these programs will remain subject to NO X emissions budgets for the States that will not increase as a result of a possible new power plant. Consequently, new power plants will have to obtain NO X emission allowances from other existing sources subject to the NO X SIP call and/or CAIR, maintaining statewide NO X emissions from power plants at or below the statewide NO X emission budgets. Therefore, permitting of new power plants subject to these rules is not expected to result in increases in regional NO X emissions. In addition, this rulemaking concerns only the 8-hour ozone standard and does not address emissions for other pollutants. Sources remain subject to the statutory and regulatory requirements governing those pollutants.

In addition, as noted by a commenter, if new power plants are built in the future, they may utilize lower-emitting technologies as they replace older, less-controlled power plants. To the extent this occurs, regional emissions could be further reduced and not necessarily increased.

Finally, with regard to the petition to Governor Daniels, we believe that the referenced lawsuit against EPA is Catawba County, North Carolina v. EPA, Case No. 05-1064, and consolidated cases (D.C. Cir.). In that action, a number of parties (including State of Indiana) have challenged EPA's January and April 2005 designation of certain areas as nonattainment for the PM 2.5 NAAQS. As that matter deals solely with EPA's PM 2.5 designations, it is not relevant to the subject matter of this rulemaking, which concerns a redesignation for the 8-hour ozone standard.

Several commenters expressed their belief that serious health problems from ozone exposure occur at levels below the 0.08 ppm standard established by the EPA, noting that the State of California has adopted a 70 parts per billion (ppb) (0.07 ppm) ozone standard. One commenter added that EPA should adopt this tighter ozone standard, and should not redesignate the Evansville area to attainment until it has attained this more stringent standard. Another commenter stated his belief that EPA is considering the promulgation of a tighter ozone standard, and that it made no sense to redesignate the Evansville area to attainment only to shortly thereafter designate the Evansville area as nonattainment for the tighter ozone standard.

The issue of whether EPA should adopt a tighter ozone standard is not part of this rulemaking. In this rulemaking, EPA is addressing the attainment status of the Evansville area for the 0.08 ppm ozone standard currently in effect. Under the Clean Air Act, EPA can determine the attainment status of areas based only on currently adopted air quality standards. The Clean Air Act does not provide for nonattainment designations based on air quality standards that have not been promulgated. See section 107(d)(3)(E) of the Clean Air Act.

If, after a future review of the available health data, the EPA revises the ozone standard, the Evansville area and other areas would be judged against that new standard. Redesignating the Evansville area to attainment of the current standard now would not prevent designating the Evansville area as a nonattainment area under the new standard if the available ozone monitoring data warrant such a designation. Until then, EPA can only judge the Evansville area under the current ozone standard.

A number of commenters asserted that the redesignation process was politically motivated, and that the State and EPA were more concerned about the area's economic status than about public health. Referring in part to comments made by local officials during a 2003 public hearing, they argued that political and industrial pressures have preempted public health and environmental concerns with little or no input from the affected public. One commenter questioned EPA's delegation of programs to Indiana. Another commenter asserted that EPA's action was inconsistent with EPA's mission to protect human health and the environment.

The comments as to the motivation of State and Federal regulators are irrelevant to the issue of whether the Evansville area qualifies for redesignation under the Clean Air Act. The pertinent issue is whether the redesignation meets the applicable requirements and procedures. As discussed in greater detail in response to Comment 9, the State has complied with all of the substantive and procedural requirements established by Congress for redesignation pursuant to section 107(d)(3) of the Clean Air Act. This includes a determination that the area has attained the 8-hour ozone NAAQS, as evidenced by quality-assured monitoring data which show no NAAQS violations. It also includes a 10-year maintenance plan to ensure that the area continues to attain the NAAQS.

The State also complied with all applicable notice and hearing requirements prior to submitting the redesignation request and ozone maintenance plan to the EPA. Similarly, EPA followed the applicable procedures when it proposed action on September 9, 2005, and provided for the submission of written comments. Thus, the State and EPA have followed all statutory procedures for notice and public participation.

EPA has evaluated the State's submission in light of the applicable statutory criteria. After notice and consideration of the State's submission, the data, and all comments, EPA has determined that the area has attained the 8-hour ozone standard and that it meets the other criteria for redesignation to attainment set forth in the Clean Air Act. Contrary to a commenter's allegation, EPA is not working to “mask the true state of nonattainment” in the area, and is not “conspiring” to “doctor” or “deny” the scientific data on record. EPA has carried out its obligation to review the redesignation request in conformance with the statute and with all prescribed procedures. Contrary to a commenter's contention, EPA, in redesignating the area, is not giving “deference to big polluters.” Nor has EPA ignored or concealed monitored violations in the Evansville area. When the Evansville area monitored a violation of the 8-hour ozone standard, EPA took action to designate the area as nonattainment, as evidenced by the nonattainment designation promulgated for the area on April 30, 2004. As stated in the response to Comment 5, the redesignation action is not expected to cause overall emissions increases in the area.

Statements made during a state hearing in 2003 regarding the prospective designation of the area are irrelevant as to whether the area qualifies for redesignation to attainment based on subsequent air quality data, plan submissions, and rulemaking proceedings. In redesignating the area, EPA is acting in good faith and in accordance with the statute and applicable regulations and with all prescribed procedures, and in keeping with its obligations to administer the law in the public interest

To the extent that the comments reflect concern about new industrial growth in the area, EPA notes that statutory and regulatory requirements remain in place to ensure that such growth occurs in a manner consistent with today's action. In addition to the State's maintenance plan, this includes the State and Federal requirements for the Prevention of Significant Deterioration (PSD) at 326 IAC 2-2 and 40 CFR part 52.21, respectively. Under PSD, major new sources cannot be constructed unless the source owners/operators install the Best Available Control Technology (BACT), can demonstrate that the applicable air quality increments will be protected, and meet additional requirements to ensure that the area remains in attainment.

Several commenters have noted that the 2002-2004 ozone design value at the Yankeetown monitor (Alcoa monitor in Warrick County) was 83 ppb. The commenters argue that this ozone design value is above the 80 ppb ozone standard, and, therefore, should be considered to be a violation of the ozone standard. They also assert that the 83 ppb ozone design value is closer to the 85 ppb ozone exceedance cutoff level than to the 80 ppb standard, and that EPA should err on the side of caution to protect public health and the environment and not redesignate the Evansville area to attainment of the ozone NAAQS with this monitored ozone design value. A commenter believes that the rounding protocol (rounding of monitored ozone concentrations to the digital accuracy reflected in the ozone standard itself) should not be allowed in the redesignation of nonattainment areas, and that following it indicates that EPA's decision is more based on politics than on science or common sense.

In assessing an area's ozone air quality data in the review of an ozone redesignation request, EPA must determine whether the area has attained the 8-hour ozone NAAQS based on the definition of the NAAQS contained in 40 CFR 50.10, as interpreted in appendix I. The definition of the standard and its interpretation in appendix I establish specific criteria for the review of air quality data.

The definition of the ozone standard (primary and secondary  12 ) in 40 CFR 50.10 specifies that the level of the standard is 0.08 ppm, daily maximum 8-hour average. Note that the ozone standard level is not specified in units of ppb. We sometimes refer to the standard in units of ppb only for purposes of readability, avoiding the use of fractional numbers; but this is not a precise reference to the standard. Therefore, the commenters err in asserting that the 8-hour ozone standard level is 80 ppb.

The definition of the ozone standard in 40 CFR part 50.10 states that “the 8-hour primary and secondary ozone standards are met at an ambient air quality monitoring site when the average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm, as determined in accordance with appendix I to this part.” Ozone data from air quality monitors are reported with decimal levels of three digits, although the 8-hour standard itself contains just two decimal digits. 40 CFR part 50, appendix I, parts 2.1, 2.1.2, and 2.2. Appendix I, part 2.1.1 requires that hourly average ozone concentrations shall be reported in parts per million to the third decimal place. EPA applies an established rounding convention, set forth in regulations, to determine whether a monitoring result expressed to the third decimal place complies with the two-decimal-place standard. Specifically, section 2.3 of 40 CFR part 50, appendix I, “Comparisons with the Primary and Secondary Standards” states:

Previously, under the 1-hour ozone standard, EPA followed a rounding convention similar to that in appendix I. EPA's application of the rounding convention under the 1-hour standard to determinations of attainment has been upheld by the Ninth Circuit Court of Appeals in Our Children's Earth Foundation v. EPA , No. 04-73032, Memorandum Opinion at 2 (June 28, 2005).

Based on the above, we conclude that we have not erred in determining that the Evansville area has attained the 8-hour ozone standard. EPA based its determination of attainment in this case squarely on the interpretation of the ozone NAAQS set forth in its regulations. We disagree with the commenters on this point.

While several commenters acknowledge that public hearings have been held by the State regarding the requested ozone redesignation and the ozone maintenance plan, they assert that they did not realize until the summer of 2005 how serious the pollution problem is in southern Indiana. As a result, the commenters request that EPA conduct a public hearing prior to acting on the State's ozone redesignation request. One commenter asserted that the Evansville area is well above the national average in many major diseases, thus further justifying the need for a public hearing.

Several other commenters have registered complaints regarding EPA's denial of requests for a public hearing on the proposed redesignation of the Evansville area to attainment of the 8-hour ozone NAAQS. One of these commenters acknowledges that the State held a public hearing on the redesignation request in April 2005, but this commenter believes that the State was anything but objective in preparing the redesignation request and in conducting this public hearing, giving deference to large polluters in the area. A commenter also questioned the State of Indiana's objectivity on the basis of IDEM's testimony supporting a new power plant over the objections of local residents.

One commenter stated that EPA should address the issue of environmental justice, noting that the EPA had recently proposed a broader definition of environmental justice to encompass criteria beyond those related to race and minority populations.

The EPA believes that interested parties were given ample opportunities to comment on Indiana's ozone redesignation request and associated SIP revision request. Section 553(c) of the Administrative Procedure Act (APA), which governs informal rulemaking actions, such as redesignation rulemakings, does not require EPA to provide for a hearing. Section 553(c) states that:

The State has provided evidence that it notified the public of its intent to hold a public hearing on the redesignation request. The State held a public hearing and received feedback on its plans and draft submittals. EPA finds that the State met the public participation requirements of the Clean Air Act. Section 110(a). There was no change in circumstances that would have required the State to hold additional hearings, and commenters did not indicate that they requested additional hearings at the state level. The State submissions were adequate to support the redesignation request and the requested SIP revision. Claims that the State lacked objectivity are irrelevant to EPA's finding that the quality-assured monitoring data and other documentation submitted by the State are sufficient to support the request for redesignation of the area to attainment.

The incidence of cancer and other diseases noted by a commenter is not relevant to the issue of whether the area should be redesignated to attainment based on recent air quality in the Evansville area that meets the 8-hour ozone NAAQS, and the fulfillment of other statutory criteria for redesignation as described elsewhere in this notice.

With regard to the comment on environmental justice, based on its commitment to environmental justice, EPA seeks to ensure that its actions do not have disproportionately high and adverse environmental effects on communities, including minority and low-income communities. As explained elsewhere in this document (see the response to Comment 5), today's action is designed to prevent violations of the health-based national ambient air quality standard. It does not result in the relaxation of control measures on existing sources and therefore will not cause emissions increases from those sources. Overall, as discussed in response to Comment 5, emissions in the area are projected to decline following the redesignation. Thus, today's action will not have disproportionately high and adverse effects on any communities in the area, including minority or low-income communities.

A commenter notes that the Clean Air Act requires that areas seeking redesignation to attainment must undertake actions that are “federally enforceable” to improve air quality. The commenter claims that the State has not done so. The commenter argues that the State is, instead, relying entirely on the Federal NO X SIP call, which was promulgated in 2001—three years before EPA made the decision to make the Evansville area nonattainment for the ozone NAAQS. The commenter also claims that there has been no action by any level of government to reduce ozone forming conditions since the Evansville area was designated nonattainment.

Another commenter contends that, while there were some reductions in ozone precursor emissions in the immediate nonattainment area as a result of EPA's NO X SIP call, it is unclear, at this time, whether these emission reductions will have a positive or negative impact on the local air quality as the result of “NO X scavenging” of ozone. The commenter claims that this phenomenon appears to be the case in the summer of 2005, when the ozone monitor in Inglefield recorded low levels of ozone compared to the other monitors in the area.

Dr. Alexandrovich states that the ozone trends at monitors in the Evansville area, particularly in the most recent years, are explained by regional emission reductions achieved through the Federal Motor Vehicle Emissions Control Program, acid rain control program, and NO X SIP call supplemented by local emissions reductions in Vanderburgh and Warrick Counties. Further emissions reductions will be achieved through additional Federal emission reductions from vehicles, fuels, and electric utilities. This commenter goes on to state that ozone formation in the Evansville area is NO X -limited and ozone reduction through NO X scavenging is not an issue. Ozone levels have declined as regional NO X emissions have decreased. The ozone decrease is most evident at the Inglefield monitor, AIRS 18-163-0013 (Vanderburgh County). The ozone decrease in this area is consistently greater than at other monitoring sites in the Evansville area, probably due to regional NO X emission reductions in an area that is NO X -limited.

Although the NO X SIP call was issued by the EPA in 2001, the State of Indiana can claim credit for the regional NO X emission reductions that have resulted from the implementation of the NO X emission control rules adopted by the State to comply with the NO X SIP call. The State of Indiana adopted NO X emission control regulations which were implemented beginning in the period of 2003-2004, and which will result in additional reductions in regional NO X emissions through 2007 or later. The State can take credit for these federally enforceable emission reductions when considering the emission reductions that led to the air quality improvement in the Evansville area. The State may also consider these emission reductions in its maintenance demonstration, to the extent that such emission reductions are permanent, enforceable, and will continue to occur after the attainment period (after 2002-2004).

The EPA and the Clean Air Act do not require the State to consider only emission reductions resulting from rules adopted after designation of areas as nonattainment of the NAAQS. The State may consider emission reductions resulting from “existing” regulations as long as the emission reductions themselves occur subsequent to the period of NAAQS violation upon which a nonattainment designation is based. Since the nonattainment designation for the Evansville area was based on ozone data for the period of 2001-2003, the State can consider the emission reductions that occurred subsequent to any year in this period. The State is correct in taking credit for the NO X emission reductions that resulted from the implementation of the State's emission control regulations under the NO X SIP call. In addition, EPA has implemented several programs that have resulted in reduced emissions in recent years. For cars and light trucks, EPA has instituted the National Low Emissions Vehicle (NLEV) program, which went into effect nationally in 2001, and EPA's Tier 2 rules, which went into effect in 2004. In addition, Tier 2 standards for nonroad diesel engines were phased in between 2001 and 2004. Over time, the phase-in of these programs has resulted in reductions in emissions as new vehicles have replaced older, higher-polluting vehicles. Further emission reductions have occurred as a result of implementation of EPA standards for small spark-ignited engines (e.g., lawnmowers) and locomotives. The heavy duty highway truck engine rule also implemented emission reductions beginning in 2004. See also the discussion in our September 9, 2005 proposed rule, 70 FR 53610-53611 and the responses to Comments 1 and 4 above.

As noted in the State's June 2, 2005 submittal, significant NO X emission reductions have occurred in the southwestern Indiana area as a result of the implementation of State NO X emission control rules for electric generating units. The State NO X emission control rules were adopted and implemented to comply with EPA's acid rain control requirements and EPA's NO X SIP call. On December 6, 2005 and December 7, 2005, IDEM submitted to the EPA more detailed information to document the NO X emission reductions resulting from the implementation of these NO X emission control regulations. Based on ozone season-specific, facility-specific NO X emissions data, IDEM has determined that electric generating unit NO X emissions have steadily declined between 1998 and 2005. Table 4 documents the change in ozone season NO X emissions for these facilities.

These data clearly show the reduction in regional NO X emissions that resulted between 2001-2003, the ozone nonattainment period, and 2002-2004, the attainment period. These data also show continued reduction of regional NO X emissions through 2005. Note that the NO X emissions from electric generating units in southwestern Indiana declined by 47.5 percent between 2001 (a year during the 2001-2003 nonattainment period) and 2004 (a year during the 2002-2004 attainment period). These emissions decreased an additional 26.7 percent between 2004 and 2005 as a result of the implementation of Indiana's NO X emission control regulations in compliance with EPA's NO X SIP call. These emission reductions have resulted from the implementation of permanent and enforceable emission reduction requirements, and have contributed to the attainment of the 8-hour ozone standard in the Evansville area and to maintenance of this standard in this area. Emission reductions from these sources will continue through 2007 and beyond, and will be supplemented by CAIR through 2015 and beyond.

Besides the Federal and State emission control programs mentioned above, permanent and enforceable emission reductions have been achieved through other means, such as enforcement of existing regulations. A prime example of such emission reductions resulted from an enforcement action against the Southern Gas and Electric Company, Incorporated (SIGECO). In June 2003, the United States and SIGECO entered into a consent decree in which, among other things, SIGECO agreed to implement certain NO X control measures at its F.B. Culley Station in Warrick County. U.S. v. SIGECO , No. IP99-1692 (S.D. Ind.). More specifically, by no later than September 1, 2003, the Company was required to continuously operate Selective Catalytic Reduction (SCR) emission controls at the Culley Station Unit 3 to reduce NO X emissions. In addition, by December 31, 2006, SIGECO is required to undertake additional, substantial NO X emission reduction measures at Culley Station Unit 1, which will help to maintain the 8-hour ozone standard in the Evansville area. These measures collectively should result in a total NO X emission reduction of 4,000 tons per year at this facility.

We agree with Dr. Alexandrovich, the Vanderburgh County Ozone Officer, that the Evansville area appears to be NO X -limited. This explains why peak ozone concentrations in the area have decreased as state NO X rules controlling emissions from electric generating units (power plants) and other major combustion sources have been implemented. We also agree with this commenter that other federally enforceable emission controls on regional emissions from mobile sources and fuels, and through CAIR, will be implemented in the future and that these emission controls will further lower ozone concentrations in the Evansville area.

It should be noted that the EPA and other organizations and institutions conducted considerable ozone modeling analyses to support the NO X SIP call. These analyses supported the conclusion that the NO X SIP call, and the state regulations resulting from the NO X SIP call, would result in regional NO X emission reductions and significantly lower ozone levels east of the Mississippi River. We disagree with the commenter's claim that the benefits of the NO X SIP call are dubious. The commenter has presented no data or evidence to support this claim. We, along with the State, believe that the NO X SIP call was instrumental in the attainment of the ozone NAAQS in the Evansville area. The State's NO X emission control regulations helped to attain the ozone NAAQS in the Evansville area, and will help to maintain the ozone NAAQS in this area.

To demonstrate that regional VOC and NO X emission reductions have contributed to attainment of the 8-hour ozone standard in the Evansville area and will contribute to maintenance of the 8-hour ozone standard, IDEM used ozone modeling results from various studies to assess ozone impacts resulting from the implementation of regional emission controls. In the State's June 2, 2005 ozone redesignation request for the Evansville area, IDEM draws the following conclusions from the various ozone modeling analyses that have addressed the Midwest:

EPA modeling analysis for the Heavy Duty Engine rule. EPA conducted modeling for Tier II vehicle and low-sulfur fuels to support the final rulemaking for the Heavy Duty Engine (HDE) and Vehicle Standards and Highway Diesel Fuel Rule. This modeling, in part, addressed ozone levels in Indiana, including the Evansville area. A base year of 1996 was modeled, and the impacts of fuel changes and the NO X SIP call were addressed for high ozone episodes in 1995. The modeling supports the conclusion that fuel improvements and the NO X SIP call result in significant ozone improvements (lower projected peak ozone concentrations) in the Evansville area. Using the modeling results to determine Relative Reduction Factors (RRFs)  13 and considering the 2001-2003 ozone design values for each monitor in the Evansville area, IDEM projected the 2007 ozone design values for the monitoring sites. The worst-case monitoring site (based on the 2001-2003 ozone design values), the Alcoa-Yankeetown monitoring site, was projected to have a 2007 ozone design value of 0.071 ppm, down from a 2001-2003 ozone design value of 0.085 ppm. All monitoring sites in the Evansville area were projected to experience significant decreases in peak ozone concentrations between 2001-2003 and 2007. The highest peak ozone concentration in 2007 was projected to be 0.073 ppm at the Evansville-Mill Road monitoring site, with a projected 2007 ozone design value of 0.073 ppm. All monitoring sites were projected to experience 12 to 17 percent decreases in peak 8-hour ozone concentrations between 2001-2003 and 2007. Therefore, the NO X SIP call and the fuel modifications considered in the ozone modeling were found to significantly improve the ozone levels in the Evansville area.

LADCO modeling analysis for the 8-hour ozone standard assessment. LADCO has performed ozone modeling to evaluate the effect of the NO X SIP call and Tier II/Low Sulfur Fuel Rule on 2007 ozone levels in the Lake Michigan area, which includes the Evansville area. Like the EPA modeling discussed above, this modeling indicates that the 2001-2003 ozone design values for the ozone monitoring sites in the Evansville area would be significantly reduced to below-standard levels in 2007 as the result of the implementation of the NO X SIP call and the Tier II/Low Sulfur Fuel Rule.

EPA and LADCO modeling analysis for CAIR. EPA conducted modeling in support of the CAIR rulemaking. IDEM used the EPA modeling results and 2000-2002 monitored ozone design values for Posey, Vanderburgh, and Warrick Counties to project 2010 ozone design values with and without the implementation of CAIR. The implementation of CAIR was projected to slightly decrease the 2010 ozone design values in these counties. Similar to EPA, LADCO modeled base period and future ozone levels to assess the impact of CAIR in the Lake Michigan area. IDEM used the LADCO ozone modeling results along with the 2001-2003 ozone design values for the ozone monitors in the Evansville area to derive RRFs and to project 2010 ozone design values. All projected 2010 ozone design values were significantly below the 8-hour ozone standard, with the worst-case 2010 ozone design value projected to be 0.075 ppm at the Alcoa-Yankeetown monitoring site. These modeling results show that CAIR will further reduce peak ozone levels in the Evansville area and that, with the implementation of the NO X SIP call (also factored into EPA's and LADCO's ozone modeling) and CAIR, the Evansville area will continue to maintain the 8-hour ozone standard.

The modeling analyses and demonstrations discussed above provide further support for our determination that the area will maintain the 8-hour ozone standard. See the response to Comment 5.

With regard to the negative comment regarding NO X scavenging, it is noted that NO X scavenging refers to a decrease in local ozone concentrations associated with significant local NO X emissions or with increases in local NO X emissions (some ozone is converted to oxygen and nitrogen dioxide due to reaction with NO X ). Similarly, there can be an increase in local ozone concentrations associated with a decrease in local NO X emissions. NO X scavenging is always a possibility near large NO X sources. This does not appear to be a factor in this case. Please note that any such NO X scavenging, if a factor, was likely to have been present in the area when the 8-hour ozone NAAQS was originally violated in 2001-2003, when the EPA designated the Evansville area as nonattainment for the 8-hour ozone NAAQS. In the period of 2001-2003, the pre-NO X SIP call emissions would have been relatively high and could have decreased local ozone concentrations to some degree; yet the area violated the ozone standard. Beginning in 2003-2004 and later, NO X emissions from power plants would have been lower due to implementation of NO X emission control regulations resulting from the NO X SIP call. If NO X scavenging were a factor, local ozone concentrations should have increased, yet the Evansville area attained the ozone standard. Thus, it is unlikely that NO X scavenging due to power plant emissions is an explanation for why the Evansville area ozone monitors are now recording attainment of the 8-hour ozone standard. (In addition, as pointed out by Dr. Alexandrovich, the area appears to be NO X -limited; as such, future regional NO X emission reductions will further lower ozone concentrations in this area.) Finally, the commenter concerned about NO X scavenging has provided no data showing that such has occurred.

For all of the above reasons, and for the reasons stated in our September 9, 2005 proposed rule, we believe that the criterion set forth in section 107(d)(3)(E)(iii) of the Clean Air Act is satisfied, and that “the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions.” EPA, thus, is not acting illegally in approving the State's ozone redesignation request for the Evansville area.

EPA is making a determination that Vanderburgh and Warrick Counties have attained the 8-hour ozone NAAQS, and EPA is approving the redesignation of Vanderburgh and Warrick Counties from nonattainment to attainment for the 8-hour ozone NAAQS. After evaluating Indiana's redesignation request, EPA has determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. The final approval of this redesignation request changes the official designation for Vanderburgh and Warrick Counties from nonattainment to attainment for the 8-hour ozone standard.

EPA is also approving the maintenance plan SIP revision for Vanderburgh and Warrick Counties. Approval of the maintenance plan is based on Indiana's demonstration that the plan meets the requirements of section 175A of the CAA, as described more fully above. Additionally, EPA is finding adequate and approving the 2015 MVEBs submitted by Indiana in conjunction with the redesignation request.

We have reviewed comments on our September 9, 2005 proposed rule, and have found no comments that would cause us to reverse the actions we documented in the proposed rule. Therefore, all proposed actions are being finalized here.

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

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

This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Redesignation of an area to attainment under section 107(d)(3)(E) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

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

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

This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). Redesignation is an action that merely affects the status of a geographical area, and does not impose any new requirements on sources, or allows a state to avoid adopting or implementing additional requirements, and does not alter the relationship or distribution of power and responsibilities established in the Clean Air Act.

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

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

Executive Order 12898 establishes a Federal policy for incorporating environmental justice into Federal agency actions by directing agencies to identify and address, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority and low-income populations. As explained elsewhere in this document (see responses to Comments 5 and 9), today's action is designed to prevent violations of the health-based national ambient air quality standard. It does not result in the relaxation of control measures on existing sources and therefore will not cause emissions increases from those sources. Overall, as discussed in response to Comments 5 and 9, emissions in the area are projected to decline following the redesignation. Thus, today's action will not have disproportionately high and adverse effects on any communities in the area, including minority and low-income communities.

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 27, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See Section 307(b)(2).)

This action establishes a new Article 5 allowance baseline for specified Class I substances, establishes a schedule for phased reductions in such production, and extends the time allowed for Article 5 production for methyl bromide. Article 5 allowances are solely for production to meet the basic domestic needs of developing countries referred to in the Protocol as “Article V” parties.

Section 533(d) of the Administrative Procedure Act (APA), 5 U.S.C., Chapter 5, generally provides that rules may not take effect earlier than 30 days after they are published in the Federal Register . This final rule is issued under section 307(d) of the CAA, which states: “The provisions of section 553 through 557 * * * of Title 5 shall not, except as expressly provided in this subsection, apply to actions to which this subsection applies.” CAA section 307(d)(1). Thus, section 553(d) of the APA does not apply to this rule. EPA nevertheless is acting consistently with the policies underlying APA section 553(d) in making this rule effective on December 29, 2005. APA section 553(d) provides an exception for any action that grants or recognizes an exemption or relieves a restriction. This final rule extends the grant of an exemption from the phaseout of methyl bromide to producers of this Class I ozone depleting substance (ODS) for the manufacture of methyl bromide to meet the basic domestic needs of developing countries. In addition, EPA finds that there is good cause to make the new Article 5 allowances baselines and phased reduction schedules effective without 30 days' prior notice. These new baselines and phased reduction schedules will make EPA regulations consistent with the adjustments to the Montreal Protocol agreed to at the Meeting of the Parties in Beijing in 1999. Those adjustments are already in effect. In addition, the new baselines and allowance allocations conform to current industry levels of production for export. Therefore, producers do not require advance notice to comply with today's regulatory amendment.

The current regulatory requirements of the Stratospheric Ozone Protection Program that limit production and consumption of ozone-depleting substances can be found at 40 CFR part 82, subpart A. The regulatory program was originally published in the Federal Register on August 12, 1988 (53 FR 30566), in response to the 1987 signing and subsequent ratification of the Montreal Protocol on Substances that Deplete the Ozone Layer (Protocol). The U.S. was one of the original signatories to the 1987 Montreal Protocol and the U.S. ratified the Protocol on April 21, 1988. Congress then enacted, and President Bush signed into law, the Clean Air Act Amendments of 1990 (CAAA of 1990), which included Title VI on Stratospheric Ozone Protection, codified as 42 U.S.C. Chapter 85, Subchapter VI, to ensure that the United States could satisfy its obligations under the Protocol. EPA issued regulations to implement this legislation and has made several amendments to the regulations since.

The requirements contained in the final rules published in the Federal Register on December 20, 1994 (59 FR 65478) and May 10, 1995 (60 FR 24970) establish an Allowance Program. The Allowance Program and its history are described in the notice of proposed rulemaking published in the Federal Register on November 10, 1994 (59 FR 56276). The control and the phaseout of the production and consumption of Class I ODSs as required under the Protocol and the CAA are accomplished through the Allowance Program.

In developing the Allowance Program, we collected information on the amounts of ODSs produced, imported, exported, transformed and destroyed within the U.S. for specific baseline years for specific chemicals. This information was used to establish the U.S. production and consumption ceilings for these chemicals. The data were also used to assign company-specific production and import rights to companies that were in most cases producing or importing during the specific year of data collection. These production or import rights are called “allowances.” During the complete phaseout of many ODSs, the quantities of allowances granted to companies for those chemicals were gradually reduced and eventually eliminated. Production allowances and consumption allowances no longer exist for any Class I ODSs. All production and consumption of Class I controlled substances is prohibited under the Protocol and the CAA, except for a few narrow exemptions.

In the context of the regulatory program, the use of the term “consumption” may be misleading. Consumption does not mean the “use” of a controlled substance, but rather is defined as the formula: production + imports − exports, of controlled substances (Article 1 of the Protocol and Section 601 of the CAA). Class I controlled substances that were produced or imported through the expenditure of allowances prior to their phaseout date may continue to be used by industry and the public after that specific chemical's phaseout except where the regulations include explicit use restrictions. Use of such substances may be subject to other regulatory limitations.

The specific names and chemical formulas for the Class I ODSs are in Appendix A and Appendix F in Subpart A of 40 CFR part 82. The specific names and chemical formulas for the Class II ODSs are in Appendix B and Appendix F in Subpart A.

Although the regulations phased out the production and consumption of Class I controlled substances, a very limited number of exemptions exist, consistent with U.S. obligations under the Protocol. The regulations allow for the production of phased-out Class I controlled substances provided the substances are either transformed or destroyed. They also allow limited production if the substances are (1) exported to countries operating under Article 5 of the Protocol or (2) produced for essential or critical uses as authorized by the Protocol and the regulations. Limited exceptions to the ban on the import of phased-out Class I controlled substances exist if the substances are: (1) Previously used, (2) imported for essential or critical uses as authorized by the Protocol and the regulations, (3) imported for destruction or transformation only, or (4) a transhipment or a heel (a small amount of controlled substance remaining in a container after discharge) (40 CFR 82.4).

Under the Montreal Protocol, industrialized countries and developing countries have different schedules for phasing out the production and import of ODSs. Developing countries operating under Article 5, paragraph 1 of the Protocol in most cases have additional time in which to phase out ODSs. The Parties to the Protocol recognized that it would be inadvisable for developing countries to spend their scarce resources to build new ODS manufacturing facilities to meet their basic domestic needs as industrialized countries phase out. The Parties therefore decided to permit a small amount of production in industrialized countries, above and beyond the amounts permitted under those countries' phaseout schedules, to meet the basic domestic needs of developing countries.

The original Montreal Protocol schedule for industrialized country production of ODSs to meet the basic domestic needs of developing countries was based on a percentage of each producing country's baseline. The initial level was set at 10 percent of the baseline and this level changed to 15 percent upon phaseout of each specific ODS or group of chemicals. EPA regulations prior to today's action reflect this approach.

The adjustments to the Montreal Protocol adopted by the Parties at their 11th meeting in Beijing change the basis for calculating production by industrialized countries to meet the basic domestic needs of developing countries for specific ODSs or groups of ODSs. Instead of being calculated as a percentage of total production of the ODS in a given year, the new baselines for basic domestic need production are calculated based on the average quantity of the ODS exported to Article 5 countries over a specified range of years. The new baseline calculation agreed to in Beijing reflects the Parties' concern, which EPA shares, that global oversupply of certain Class I ODSs is interfering with the transition to alternatives. The oversupply of these ODSs results in low prices that make it difficult for non-ozone-depleting alternatives to compete in the marketplace. Businesses and individuals thus lack an economic incentive to transition to alternatives. The new baseline calculation is designed to overcome this problem with respect to Article 5 countries by reducing supply to those countries. The price of these ODSs should rise to reflect the decrease in supply.

The adjustments agreed to in Beijing also establish reduction schedules for the manufacture of ODSs by industrialized countries to meet the basic domestic needs of developing countries. Article 5 countries are subject to periodic step-downs in the amount of ODSs they may consume. If industrialized countries' production for export to Article 5 countries were not adjusted to take into account these step-downs, the problem of oversupply likely would recur. Therefore, the Parties agreed at Beijing to reduction schedules that would mirror each step-down in Article 5 consumption. The schedules also reflect the complete consumption phaseouts in Article 5 countries. Under these schedules, industrialized countries must cease production for export to developing countries of CFCs by January 1, 2010, and of methyl bromide by January 1, 2015.

To ensure consistency with the Montreal Protocol, EPA proposed to adopt new baselines and reduction schedules at 40 CFR part 82, subpart A (70 FR 55480). Under that proposed rule, the amount of ODSs that could be produced to meet the basic domestic needs of developing countries would be reduced by a certain percentage of the baseline in accordance with the step-down schedule for Article 5 developing countries for those chemicals until they are completely phased out. In today's action, EPA is finalizing the proposed provisions described in this paragraph.

EPA published a proposed rule on September 21, 2005 in the Federal Register (70 FR 55480) to amend regulations found at 40 CFR part 82 by establishing new baselines for companies that manufacture Class I ODS to meet the basic domestic needs of so-called “Article 5” developing countries, issuing Article 5 allowances in accordance with the revised baselines, and creating a phasedown schedule for these allowances to reflect the phasedown schedules of developing countries as specified in the Montreal Protocol and the Adjustment adopted at the 11th Meeting of the Parties in Beijing.

Specifically, EPA proposed new baselines for the CFCs subject to the earliest controls on production and import, other halogenated CFCs, and methyl bromide to reflect changes to the Montreal Protocol. As a result of the Beijing Adjustments to the Protocol, Article 2A, paragraphs 4-7 state that an industrialized Party's allowable production of CFCs 11, 12, 113, 114, and 115, referred to under the Clean Air Act as Class I, Group I substances, to meet the basic domestic needs of Article 5 Parties shall be measured against “the annual average of its production of [these substances] for basic domestic needs for the period 1995 to 1997 inclusive.”

In regard to other halogenated CFCs, referred to in the Clean Air Act as Class I, Group III ODS, the Beijing Adjustments state that the new baseline for Article 5 production should be “the annual average of its production of [these substances] for basic domestic needs for the period 1998-2000 inclusive.”

EPA proposed using more recent export data from the years 2000-2003 to establish the baselines for these two groups of chemicals. The Agency believes that the use of more recent export data represents a truer picture of the actual basic domestic needs for these chemicals in developing countries and addresses the concerns regarding oversupply of CFCs as discussed in section I of this preamble.

EPA would like to note that for Class I, Group III substances the new baseline years provide the U.S. with a baseline that is nearly zero. Since the baseline for Class I, Group III substances is negligible, EPA proposed a baseline of zero for these substances.

In addition to proposing new baselines, EPA also proposed phasedown schedules for Article 5 allowances consistent with the schedule set forth in the Beijing adjustments to the Montreal Protocol. While the baseline proposed by EPA was different, and more stringent, than the baselines agreed to in the Beijing adjustment for CFCs, the phasedown schedule proposed by the Agency followed the Beijing adjustment exactly. Hence, the proposed Article 5 allowance reduction schedule for production of the Class I, Group I controlled substances was as follows: 50% of the Article 5 allowance baseline for the 2006 control period; 15% of baseline for each of the control periods from January 1, 2007, to December 31, 2009; and 0% (complete phaseout) for the control periods beginning January 1, 2010, and thereafter.

The proposed Article 5 allowance reduction schedule for production of the Class I, Group III controlled substances was 80% of baseline for the 2006 control period; 15% of baseline for each of the control periods from January 1, 2007 to December 31, 2009; and 0% (complete phaseout) for the control periods beginning January 1, 2010 and thereafter. However, under EPA's preferred option of a zero baseline based on 2000-2003 data, this reduction schedule would be unnecessary.

In regard to methyl bromide production for the basic domestic needs of developing countries, EPA proposed establishing the same baseline and the same phasedown schedule as that agreed to under the Beijing adjustments. The Beijing adjustments state that a country's baseline for Article 5 production of methyl bromide is “the annual average of its production of [methyl bromide] for basic domestic needs for the period 1995 to 1998 inclusive.” The reduction schedule for the production of methyl bromide (Class I, Group VI controlled substances) proposed by EPA is 80% of the Article 5 allowance baseline for each of the control periods from January 1, 2006 to December 31, 2014; 0% (complete phaseout) starting January 1, 2015 and thereafter.

As noted in the proposal, Article 5 production for Class I Group IV and Group V chemicals was not altered under the Beijing Amendments and EPA did not propose to take any action to change the baselines or reduction schedules for these substances.

EPA did not receive any comments on the proposed revisions to the baselines or reduction schedules for Article 5 allowances. Nor did EPA receive any comments on extending the availability of Article V allowances for methyl bromide. Therefore, with today's action, EPA is finalizing the amendments to the Agency's regulations as proposed. The revised baseline and the percentage of baseline allocated in each control period beginning with 2006 are located in section 82.11 of the regulations.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether this regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines a “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 governments or 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 legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. It has been determined by OMB and EPA that this final action is not a “significant regulatory action” under the terms of Executive Order 12866, and is therefore not subject to OMB review under the Executive Order.

This final action does not add any information collection requirements or increase burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The OMB has previously approved the information collection requirements contained in the existing regulations, 40 CFR part 82, under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0170, EPA ICR number 1432. A copy of the OMB-approved Information Collection Request (ICR) may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-1672.

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 EPA's regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this final rule. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business that is identified by the North American Industry Classification System (NAICS) Code in the Table below; (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.

After considering the economic impacts of today's rule on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities, as it regulates large corporations that produce Class I ODSs. There are no small entities in this regulated industry.

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 to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before EPA may promulgate a 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 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.

EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA. Further, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments because it does not impose any requirements on any State, local, or tribal government.

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.”

This 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. Today's rule is expected to primarily affect producers and exporters of CFCs and methyl bromide. Thus, Executive Order 13132 does not apply to this rule.

Executive Order No. 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order No. 13175. Today's final rule does not significantly or uniquely affect the communities of Indian tribal governments. The final rule does not impose any enforceable duties on communities of Indian tribal governments. Thus, Executive Order No. 13175 does not apply to this final rule.

Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” under E.O. 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

While this final rule is not subject to the Executive Order because it is not economically significant as defined in E.O. 12866, we nonetheless have reason to believe that the environmental health or safety risk addressed by this action may have a disproportionate effect on children. Depletion of stratospheric ozone results in greater transmission of the sun's ultraviolet (UV) radiation to the earth's surface. The following studies describe the effects on children of excessive exposure to UV radiation: (1) Westerdahl J, Olsson H, Ingvar C. “At what age do sunburn episodes play a crucial role for the development of malignant melanoma,” Eur J Cancer 1994; 30A: 1647-54; (2) Elwood JM, Jopson J. “Melanoma and sun exposure: an overview of published studies,” Int J Cancer 1997; 73:198-203; (3) Armstrong BK. “Melanoma: childhood or lifelong sun exposure,” In: Grobb JJ, Stern RS, Mackie RM, Weinstock WA, eds. “Epidemiology, causes and prevention of skin diseases,” 1st ed. London, England: Blackwell Science, 1997: 63-6; (4) Whiteman D., Green A. “Melanoma and Sunburn,” Cancer Causes Control, 1994: 5:564-72; (5) Kricker A, Armstrong, BK, English, DR, Heenan, PJ. “Does intermittent sun exposure cause basal cell carcinoma? A case control study in Western Australia,” Int J Cancer 1995; 60: 489-94; (6) Gallagher, RP, Hill, GB, Bajdik, CD, et. al. “Sunlight exposure, pigmentary factors, and risk of nonmelanocytic skin cancer I, Basal cell carcinoma,” Arch Dermatol 1995; 131: 157-63; (7) Armstrong, BK. “How sun exposure causes skin cancer: an epidemiological perspective,” Prevention of Skin Cancer. 2004. 89-116.

The methyl bromide phaseout date for Article 5 countries is 2015 and allowing continuing U.S. production to meet such countries' basic domestic needs avoids the need for those countries to install new ODS manufacturing facilities. The effect of extending the availability of Article 5 allowances for methyl bromide should be that methyl bromide that would otherwise be produced at new facilities in developing countries will instead be produced in the U.S. for export to those countries. The amount of methyl bromide that will be released to the atmosphere should remain the same regardless of the manufacturing location. In addition, avoiding the installation of new capacity is one means of ensuring that production levels continue to decline. Thus, this rule is not expected to increase the impacts on children's health from stratospheric ozone depletion.

This final rule is not a “significant energy action” as defined in Executive Order No. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

As noted in the proposed rule, section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A Major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective on December 29, 2005.

This final rule concerns the exemption for laboratory and analytical uses from CAA restrictions on the consumption and production of class I controlled substances. In May 2005, EPA proposed extending this exemption program from December 31, 2005, to December 31, 2007, consistent with action taken by the Parties to the Montreal Protocol (70 FR 25726, May 13, 2005). Today's action finalizes the proposed extension. In addition, the Agency solicited comment on clarifying the status of methyl bromide, a class I controlled substance, under the laboratory and analytical use exemption program. EPA is deferring final action on that aspect of the proposed rule.

Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C., Chapter 5, generally provides that rules may not take effect earlier than 30 days after they are published in the Federal Register . Today's final rule is issued under section 307(d) of the CAA, which states: “The provisions of section 553 through 557 * * * of Title 5 shall not, except as expressly provided in this subsection, apply to actions to which this subsection applies.” CAA section 307(d)(1). Thus, section 553(d) of the APA does not apply to this rule. EPA nevertheless is acting consistently with the policies underlying APA section 553(d) in making this rule effective on January 1, 2006 APA section 553(d) provides an exception for any action that grants or recognizes an exemption or relieves a restriction. Today's final rule extends an exemption from the phaseout of class I ozone-depleting substances. Because the current exemption expires at the end of 2005, EPA is making this rule effective immediately to ensure that the exemption will not lapse.

The Montreal Protocol on Substances that Deplete the Ozone Layer (Protocol) is the international agreement to reduce and eventually eliminate the production and consumption  1 of all stratospheric ozone-depleting substances (ODSs). The elimination of production and consumption of ODSs is accomplished through adherence to phaseout schedules for specific class I ODSs, 2 including: chlorofluorocarbons (CFCs), halons, carbon tetrachloride, and methyl chloroform. The Clean Air Act, as amended in 1990 and 1998, requires EPA to promulgate regulations implementing the Protocol's phaseout schedules in the United States. Those regulations are codified at 40 CFR part 82. As of January 1, 1996, production and import of most class I ODSs were phased out in developed countries, including the United States.

However, the Protocol provides exemptions that allow for the continued import and/or production of ODSs for specific uses. Under the Protocol, for most class I ODSs, the Parties may collectively grant exemptions to the ban on production and import of ODSs for uses that they determine to be “essential.” For example, with respect to CFCs, Article 2A(4) provides that the phaseout will apply “save to the extent that the Parties decide to permit the level of production or consumption that is necessary to satisfy uses agreed by them to be essential.” Similar language appears in the control provisions for halons (Art. 2B), carbon tetrachloride (Art. 2D), methyl chloroform (Art. 2E), hydrobromochlorofluorocarbons (Art. 2G), and bromochloromethane (Art. 2I). As defined by Decision IV/25 of the Parties, use of a controlled substance is essential only if (1) it is necessary for the health, safety or is critical for the functioning of society (encompassing cultural and intellectual aspects), and (2) there are no available technically and economically feasible alternatives or substitutes that are acceptable from the standpoint of environment and health.

Decision X/19 under the Protocol (taken in 1998) allowed a general exemption for essential laboratory and analytical uses through December 31, 2005. EPA included this exemption in our regulations at 40 CFR part 82, subpart A. While the Clean Air Act does not specifically provide for this exemption, EPA determined that an exemption for essential laboratory and analytical uses was allowable under the Act as a de minimis exemption. EPA addressed the de minimis exemption in the final rule of March 13, 2001 (66 FR 14760-14770).

Decision X/19 also asked the Protocol's Technology and Economic Assessment Panel (TEAP), a group of technical experts from member countries, to report annually on procedures that could be performed without the use of controlled substances and stated that at future meetings the Parties would decide whether such procedures should no longer be eligible for exemptions. Based on the TEAP's recommendation, the Parties to the Protocol decided in 1999 (Decision XI/15) that the general exemption no longer applied to the following uses: Testing of oil and grease, and total petroleum hydrocarbons in water; testing of tar in road-paving materials; and forensic finger-printing. EPA incorporated this exclusion at Appendix G to Subpart A of 40 CFR part 82 on February 11, 2002 (67 FR 6352).

Subsequently, in its May 2003 progress report the TEAP noted, “No new non-ODS methods have been forthcoming which would enable the TEAP to recommend the elimination of further uses of controlled substances for analytical and laboratory uses” (p. 106, see Air Docket OAR-2004-0064). Based on this statement, and in consideration of the pending cessation of the laboratory use exemption in 2005, the European Community proposed an extension of the exemption that would allow further time for development of non-ODS methods. At their fifteenth Meeting in November 2003, the Parties adopted the proposal in Decision XV/8, which extended the global exemption for laboratory and analytical uses to December 31, 2007.

EPA's regulations regarding this exemption at 40 CFR 82.8(b) currently state, “A global exemption for class I controlled substances for essential laboratory and analytical uses shall be in effect through December 31, 2005 subject to the restrictions in appendix G of this subpart, and subject to the record-keeping and reporting requirements at § 82.13(u) though (x). There is no amount specified for this exemption.” Because certain laboratory procedures continue to require the use of class I substances in the United States, and because non-ODS replacements for the class I substances have not been identified for all uses, EPA is revising 40 CFR 82.8(b) to reflect the extension of the exemption to 2007 consistent with Decision XV/8. For a more detailed discussion of the reasons for the exemption, refer to the March 13, 2001, Federal Register notice.

With today's action, EPA is extending the laboratory and analytical use exemption from December 31, 2005, to December 31, 2007. This exemption allows for production and import of certain ODSs to meet laboratory and analytical needs.

EPA received three sets of comments on the proposed rule (70 FR 25726), two of which did not support extending the exemption and one late comment which did support extending the exemption. One commenter indicated that as long as there is an exemption program, industry will not have an incentive to seek alternatives. EPA believes that the time-limited nature of the exemption program, first through 2005 and now through 2007, does provide industry with an incentive to continue to explore alternatives. The Agency notes that many of the exempted uses are for niche applications or for experimental work of importance to society. For example, some federal and state laws, including regulations issued under the Clean Air Act and the Clean Water Act, require testing of the water, soil, or air to measure compliance with environmental standards. A pure sample of an ODS may be necessary to properly calibrate the testing equipment and effectively monitor the presence of chemicals of interest in the environment. A fuller description of laboratory and analytical uses may be found in EPA's 2001 rulemaking on the topic (66 FR 14760) and in the comments in the accompanying paper docket #A-93-39.

Furthermore, EPA notes that total consumption (defined as production plus imports minus exports) for laboratory uses is small relative to baseline and has declined over time. The amount of phased-out class I substances being supplied to laboratories under this exemption decreased each year since 1997 to reach the level of eight metric tons in 2001 (approximately one-quarter the amount supplied in 1997), according to EPA's tracking system for ODSs.

Another commenter expressed concern that the exemption would be phased out “eventually” as described in the proposal and suggested that the exemption should last only another two years. In today's action, EPA is extending the laboratory and analytical use exemption by two years recognizing, however, that after December 2007 there still may be a need for this exemption. Should the Parties to the Montreal Protocol take a decision to further extend the exemption beyond 2007, EPA will seek comment on a new timeframe for the exemption.

The commenter continues to express concern that the exemption benefits companies at the expense of children and other members of the public. As described above, this exemption services the research and analytical community who are often engaged in work to protect the public. The laboratory and analytical exemption was agreed to by the Parties to the Montreal Protocol in Decisions X/19 and XV/8 as part of the careful balancing intrinsic in any public policy discussion. As discussed in the March 2001 notice, the controls in place for laboratory and analytical uses provide adequate assurance that very little, if any, environmental damage will result from the handling and disposal of the small amounts of class I ODSs used in such applications. Therefore, EPA does not anticipate significant environmental impacts on the ozone layer as a result of today's action.

As of January 1, 2005, production and import of methyl bromide is no longer allowed in the United States, except for limited exemptions (40 CFR 82.4(d)). Methyl bromide is a class I controlled substance used chiefly as a fumigant for soil treatment and pest control. In the proposed rule, EPA sought comment on whether the global laboratory exemption should include methyl bromide and also sought information on laboratory and analytical processes that involve the use of small quantities of methyl bromide. EPA only received one comment and it was general in nature. The commenter indicated that she did not support any exemptions for methyl bromide. Recognizing that further discussion of whether the global laboratory exemption should include methyl bromide may occur at a future meeting of the Parties to the Montreal Protocol, EPA is deferring final action on this aspect of the proposed rule.

Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the Agency must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The 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 governments or 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 legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

It has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

This action does not impose any new information collection burden because EPA is not creating new information or reporting requirements. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations, as part of the final rule promulgated by the Agency on May 10, 1995, under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0170 (EPA ICR number 1432). A copy of the OMB approved Information Collection Request (ICR) may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-1672.

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 EPA's regulations in 40 CFR are listed in 40 CFR part 9.

EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this final rule.

For purposes of assessing the impact of today's rule on small entities, the term small entities is defined as: (1) A Pharmaceutical preparations manufacturing business (NAICS code 325412); (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.

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. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may conclude that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.”

This rule provides an otherwise unavailable benefit to those companies that obtain ozone depleting substances under the essential laboratory and analytical use exemption. Today's action will extend the Global Laboratory and Analytical Use Exemption (The Lab Exemption) from its current expiration date of December 31, 2005 to December 31, 2007. The Lab Exemption allows companies to produce CFCs and other Class I ozone depleting substances (ODS), that are otherwise phased out, for use of very small quantities of ODS in laboratory settings. We have therefore concluded that today's final rule will relieve regulatory burden for all small entities.

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 to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one 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 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.

Today's rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector, since it merely extends the availability of an already available exemption to the ban on production and import of class I ODSs. For the same reason, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments.

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.”

This 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. Today's rule affects only the companies that produce or import class I ozone-depleting substances for laboratory or analytical uses. Thus, Executive Order 13132 does not apply to this rule.

Executive Order No. 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order No. 13175. Today's final rule does not significantly or uniquely affect the communities of Indian tribal governments. The final rule does not impose any enforceable duties on communities of Indian tribal governments. Thus, Executive Order No. 13175 does not apply to this final rule.

Executive Order No. 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

While this proposed rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, we nonetheless have reason to believe that the environmental health or safety risk addressed by this action may have a disproportionate effect on children. Depletion of stratospheric ozone results in greater transmission of the sun's ultraviolet (UV) radiation to the earth's surface. The following studies describe the effects on children of excessive exposure to UV radiation: (1) Westerdahl J, Olsson H, Ingvar C. “At what age do sunburn episodes play a crucial role for the development of malignant melanoma,” Eur J Cancer 1994; 30A: 1647-54; (2) Elwood JM, Jopson J. “Melanoma and sun exposure: an overview of published studies,” Int J Cancer 1997; 73:198-203; (3) Armstrong BK. “Melanoma: childhood or lifelong sun exposure” In: Grobb JJ, Stern RS, Mackie RM, Weinstock WA, eds. “Epidemiology, causes and prevention of skin diseases,” 1st ed. London, England: Blackwell Science, 1997: 63-6; (4) Whiteman D., Green A. “Melanoma and Sunburn,” Cancer Causes Control, 1994: 5:564-72; (5) Kricker A, Armstrong, BK, English, DR, Heenan, PJ. “Does intermittent sun exposure cause basal cell carcinoma? A case control study in Western Australia,” Int J Cancer 1995; 60: 489-94; (6) Gallagher, RP, Hill, GB, Bajdik, CD, et. al. “Sunlight exposure, pigmentary factors, and risk of nonmelanocytic skin cancer I, Basal cell carcinoma,” Arch Dermatol 1995; 131: 157-63; (7) Armstrong, BK. “How sun exposure causes skin cancer: an epidemiological perspective,” Prevention of Skin Cancer. 2004. 89-116. The public is invited to submit or identify peer-reviewed studies and data, of which EPA may not be aware, that assessed results of early life sun exposure.

However, as discussed in the March 13, 2001, Federal Register notice, the laboratory and analytical applications addressed in today's proposed rule involve extremely controlled use and disposal of all chemicals, including any ODS. As a result, emissions of ODS into the atmosphere are negligible. In light of the conditions already applied to the global exemption by appendix G to subpart A of 40 CFR part 82, EPA believes that any additional controls on laboratory uses would provide little, if any, benefit.

This rule is not a “significant energy action” as defined in Executive Order No. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

As noted in the proposed rule, section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law. No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A Major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective on January 1, 2006.

On July 19, 2005, the Commission released Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, Order ( Two-Line Captioned Telephone Order ), CG Docket No. 03-123, FCC 05-141, which was published in the Federal Register on September 14, 2005 (70 FR 54294), concluding that two-line captioned telephone service is a type of TRS eligible for compensation from the Interstate TRS Fund, effective October 14, 2005. On August 2, 2005, NECA submitted a proposed interstate allocation factor of 11 percent for inbound two-line captioned telephone minutes. This is a summary of the Commission's Order , DA 05-3138, adopted December 1, 2005, released December 2, 2005 in CG Docket 03-123, adopting NECA's proposed interstate allocation factor of 11 percent and directing NECA to compensate providers of inbound two-line captioned telephone calls from the Interstate TRS Fund pursuant to the 11 percent interstate allocation factor retroactively for the period October 14, 2005 through June 30, 2006. The Order does not contain new or modified information collections requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506 (c)(4). The full text of the Order and copies of any subsequently filed documents in this matter will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The Order and copies of subsequently filed documents in this matter may also be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact the Commission duplicating contractor at their Web site http://www.bcpiweb.com or call 1-800-378-3160. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). The Order can also be downloaded in Word or Portable Document Format (PDF) at: http://www.fcc.gov/cgb/dro.

In the Two-line Captioned Telephone Order , the Commission concluded that two-line captioned telephone service is a form of TRS eligible for compensation from the Fund. Two-line Captioned Telephone Order , 20 FCC Rcd at 13199, paragraph 10. See generally Telecommunications Relay Services, and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities , CC Docket No. 98-67, Declaratory Ruling, 18 FCC Rcd 16121 (August 1, 2003), published at 68 FR 55898, September 29, 2003 (recognizing captioned telephone service as a form of TRS). The Commission also adopted NECA's proposed methodology for determining the number of inbound two-line captioned telephone call minutes compensable from the Fund. The Commission noted that for such calls there is currently no way for a provider to determine if a particular call is interstate or intrastate. As a result, the Commission instructed NECA to calculate an allocation factor for such calls that is based on the relationship between interstate and international traditional TRS calls and all intrastate, interstate, and international traditional TRS calls.

On August 2, 2005, NECA proposed an interstate allocation factor of 11 percent for inbound two-line captioned telephone minutes. NECA Letter at 2. The remaining 89 percent of such calls would be allocated to the intrastate jurisdiction. As NECA explains, it calculated the factor based on the providers' projections of traditional TRS minutes for 2005 and 2006. Interstate and international minutes for both years totaled 24,459,907; local, intrastate, interstate and international minutes totaled 213,957,866. Dividing interstate and international minutes by total minutes results in a proposed interstate factor of 11 percent for interstate inbound two-line captioned telephone minutes. On August 24, 2005, the Commission released a Public Notice requesting comment on NECA's proposed allocation factor. National Exchange Carrier Association (NECA) Submits Proposed Allocation Factor for Inbound Two-Line Captioned Telephone Calls for Compensation from the Interstate Telecommunications Relay Services (TRS) Fund for July 2005 though June 2006 , CG Docket No. 03-123, Public Notice, DA 05-2346 (August 24, 2005) ( NECA Proposed Factor PN ); published at 70 FR 53191, September 7, 2005.

Three comments were filed. Comments were filed by Hamilton Relay, Inc. (Hamilton) (September 22, 2005); Ultratec, Inc. (Ultratec) (September 13, 2005), and New Jersey Protection and Advocacy, Inc. (NJP&A) (September 22, 2005). Hamilton and Ultratec support NECA's proposed 11 percent allocation factor as consistent with the Commission's methodology for allocating 800 and 900 number call minutes. Hamilton Comments at 2-3; Ultratec Comments at 2; see also Two-line Captioned Telephone Order , 20 FCC Rcd at 13200, paragraph 12 (discussing allocation methodology used for 800 and 900 number call minutes). Ultratec also seeks clarification of the effective date of the allocation factor. Ultratec Comments at 2-3. NJP&A, however, recommends that the Commission set allocation rates on a statewide basis because in some states a significantly greater percentage of TRS calls are interstate. NJP&A Comments at 2. NJP&A asserts that because New Jersey is located between the two large urban centers of New York and Philadelphia, New Jersey residents are more likely to make interstate calls, and therefore the proposed 11 percent factor would shortchange New Jersey and similar states.

The Commission adopts NECA's proposed allocation factor of 11 percent for determining the number of inbound two-line captioned telephone minutes compensable from the Interstate TRS Fund. The remaining 89 percent of such minutes shall be compensated by the intrastate jurisdictions. Upon reviewing NECA's filing, the Commission concludes that it correctly calculated the factor as directed by the Two-line Captioned Telephone Order.

NJP&A's assertion—that allocation rates be set on a statewide, rather than nationwide, basis—is not directed to NECA's proposed allocation factor, but rather to the allocation methodology itself. Therefore, this is not the appropriate proceeding in which to reconsider the allocation methodology, which the Commission adopted in the Two-line Captioned Telephone Order. Two-line Captioned Telephone Order , 20 FCC Rcd at 13200, paragraph 12. A party dissatisfied with the allocation methodology could have challenged that order by filing a petition for reconsideration or a petition for review. Nonetheless, the Commission notes that the allocation factor adopted in this Order will benefit the states because presently the states are compensating providers of inbound two-line captioned telephone calls for all such calls. See The National Exchange Carrier Association, Inc., CC Docket No. 98-67, CG Docket No. 03-123, Petition for Declaratory Ruling at 2 (filed December 10, 2004); Two-line Captioned Telephone Order , 20 FCC Rcd at 13195, paragraph 1, note 3. Further, the Commission notes that this methodology is the same methodology used for the jurisdictional allocation 800 and 900 number call minutes. Two-line Captioned Telephone Order , 20 FCC Rcd at 13198-13199, paragraph 9.

The Two-line Captioned Telephone Order became effective October 14, 2005. Two-line Captioned Telephone Order , 20 FCC Rcd at 13198-13199, paragraph 23 (order is effective 30 days after publication in the Federal Register , which was September 14. 2005). Accordingly, the allocation factor adopted in this Order shall apply to the provision of inbound two-line captioned telephone calls for the period of October 14, 2005 through June 30, 2006. Under the Commission's rules, the TRS Fund year runs from July 1 to June 30. 47 CFR 64.604(c)(5)(iii)(H). A new allocation factor will be adopted each year at the same time the TRS compensation rates are adopted. The Commission recognizes that the NECA Proposed Factor PN sought comment on the proposed allocation factor for the annual period of July 1, 2005 through June 30, 2006. NECA Proposed Factor PN at 1. Because, however, the effective date of the Two-line Captioned Telephone Order's conclusion that two-line captioned telephone service is a form of TRS compensation from the Interstate TRS Fund was October 14, 1005, no two-line captioned telephone calls could be compensated from the Fund prior to that date. Therefore, the allocation factor for inbound two-line captioned telephone calls cannot be applicable prior to that date.

The Commission therefore directs NECA to compensate providers of inbound two-line captioned telephone calls from the Interstate TRS Fund pursuant to the 11 percent interstate allocation factor retroactively to October 14, 2005.

The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an initial regulatory flexibility analysis be prepared for notice-and-comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law Number 104-121, Title II, 110 Statute 857 (1996). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 5 U.S.C. 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register .” A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). 15 U.S.C. 632. Nationwide, there are approximately 1.6 million small organizations. Independent Sector, The New Nonprofit Almanac & Desk Reference (2002).

The Order adopts the interstate allocation factor for inbound two-line captioned telephone calls. As noted above, in August 2003 the Commission concluded that captioned telephone service is a form of TRS, and that eligible providers of such services are eligible to recover their costs in accordance with section 225 of the Communications Act. See paragraph 2, supra; see also Captioned Telephone Declaratory Ruling, 18 FCC Rcd at 16121, paragraph 1. In the July 2005 Two-line Captioned Telephone Order, the Commission concluded that two-line captioned telephone service is also a form of TRS eligible for compensation from the Fund. That order also recognized that there is no way to determine if a particular inbound two-line captioned telephone call is interstate or intrastate, and therefore adopted an allocation methodology and directed the Interstate TRS Fund administrator to propose an interstate allocation factor. The Order adopts the TRS Fund administrator's proposed allocation factor.

The Commission does not believe that the adoption of the interstate allocation factor will have a significant economic impact; however, in the event that it does, it also notes that there are not a substantial number of small entities that will be affected by our action. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such firms having 1,500 or fewer employees. 13 CFR 121.201, NAICS code 517110 (changed from 513310 in October 2002). According to Census Bureau data for 1997, there were 2,225 firms in this category which operated for the entire year. U.S. Census Bureau, 1997 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 5, NAICS code 513310 (issued Oct. 2000). Of this total, 2,201 firms had employment of 999 or fewer employees, and an additional 24 firms had employment of 1,000 employees or more. Thus, under this size standard, the majority of firms can be considered small. (The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is “Firms with 1,000 employees or more.”). Currently, only three providers are providing captioned telephone service and being compensated from the Interstate TRS Fund: CapTel, Inc., Hamilton and Sprint. The Commission expects that only one of these providers may be a small entity under the SBA's small business size standard. In addition, the Interstate Fund Administrator is the only entity that will be required to pay to eligible providers of two-line captioned telephone service the costs of providing interstate service.

The Commission will send a copy of the Order, including a copy of this Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the SBA. 5 U.S.C. 605(b).

In a Memorandum Opinion and Order, released on March 3, 2005, FCC 05-45 , and published in the Federal Register on May 25, 2005, 70 FR 29985, the Commission revised its Allocations and Service Rules for the 71-76 GHz, 81-86 GHz, and 92-95 GHz Bands , requiring licensees, as part of the link registration process, to submit to the database manager an analysis under the interference protection criteria. This interference analysis requirement is a new and modified information collection, previously approved by OMB (OMB Control No. 3060-1070), and implements the revised § 101.1523(b) of the Commission's rules as published in the Federal Register on May 25, 2005.

All sea turtles that occur in U.S. waters are listed as either endangered or threatened under the Endangered Species Act of 1973 (ESA). The Kemp's ridley ( Lepidochelys kempii ), leatherback ( Dermochelys coriacea ), and hawksbill ( Eretmochelys imbricata ) turtles are listed as endangered. The loggerhead ( Caretta caretta ) and green ( Chelonia mydas ) turtles are listed as threatened, except for breeding populations of green turtles in Florida and on the Pacific coast of Mexico, which are listed as endangered.

Sea turtles are incidentally taken, and some are killed, as a result of numerous activities, including fishery-related trawling activities in the Gulf of Mexico and along the Atlantic seaboard. Under the ESA and its implementing regulations, the taking of sea turtles is prohibited, with exceptions identified in 50 CFR 223.206(d), or according to the terms and conditions of a biological opinion issued under section 7 of the ESA, or according to an incidental take permit issued under section 10 of the ESA. The incidental taking of turtles during shrimp or summer flounder trawling is exempted from the taking prohibition of section 9 of the ESA if the conservation measures specified in the sea turtle conservation regulations (50 CFR part 223) are followed. The regulations require most shrimp trawlers and summer flounder trawlers operating in the southeastern United States (Atlantic area, Gulf area, and summer flounder sea turtle protection area, see 50 CFR 223.206) to have a NMFS-approved TED installed in each net that is rigged for fishing to allow sea turtles to escape. TEDs currently approved by NMFS include single-grid hard TEDs and hooped hard TEDs conforming to a generic description, the flounder TED, and one type of soft TED B the Parker soft TED (see 50 CFR 223.207).

TEDs incorporate an escape opening, usually covered by a webbing flap, which allows sea turtles to escape from trawl nets. To be approved by NMFS, a TED design must be shown to be 97 percent effective in excluding sea turtles during testing based upon specific testing protocols (50 CFR 223.207(e)(1)). Most approved hard TEDs are described in the regulations (50 CFR 223.207(a)) according to generic criteria based upon certain parameters of TED design, configuration, and installation, including height and width dimensions of the TED opening through which the turtles escape.

The regulations governing sea turtle take prohibitions and exemptions provide for the use of limited tow times as an alternative to the use of TEDs for vessels with certain specified characteristics or under certain special circumstances. The provisions of 50 CFR 223.206(d)(3)(ii) specify that the NOAA Assistant Administrator for Fisheries (AA) may authorize compliance with tow time restrictions as an alternative to the TED requirement if the AA determines that the presence of algae, seaweed, debris, or other special environmental conditions in a particular area makes trawling with TED-equipped nets impracticable. The provisions of 50 CFR 223.206(d)(3)(i) specify the maximum tow times that may be used when tow time limits are authorized as an alternative to the use of TEDs. Each tow may be no more than 55 minutes from April 1 through October 31 and no more than 75 minutes from November 1 through March 31, as measured from the time that the trawl doors enter the water until they are removed from the water. These tow time limits are designed to minimize the level of mortality of sea turtles that are captured by trawl nets not equipped with TEDs.

On September 12, 2005, the NMFS Southeast Regional Administrator received requests from the Marine Fisheries Division of the Alabama Department of Conservation and Natural Resources (ALDCNR) and the Louisiana Department of Wildlife and Fisheries (LADWF) to allow the use of tow times as an alternative to TEDs in inshore and offshore waters because of excessive storm related debris on the fishing grounds as a result of Hurricane Katrina. NMFS received a similar request from the Mississippi Department of Marine Resources (MDMR) on September 13. On September 27, 2005, the NMFS Southeast Regional Administrator received requests from the LADWF and the Texas Parks and Wildlife Department (TPWD) to allow the use of tow times as an alternative to TEDs in inshore and offshore waters because of excessive storm related debris on the fishing grounds as a result of Hurricane Rita. Subsequent to these requests, NMFS issued 30-day exemptions to the TED requirements from September 23 through October 23, 2005, and October 11 through November 10, 2005, for waters affected by Hurricanes Katrina and Rita, respectively (70 FR 56593 and 70 FR 60013, respectively).

On October 11, 2005, the NMFS Southeast Regional Administrator received requests from the ALDCNR, MDMR, LADWF, and the TPWD for an additional 30-day period allowing the use of restricted tow times as an alternative to TEDs in inshore and offshore waters because of excessive storm-related debris that was still present on the fishing grounds as a result of Hurricanes Katrina and Rita. Subsequent to these requests, NMFS issued a 30-day extension encompassing both previous exemptions to the TED requirements, from October 23, 2005, through November 23, 2005 (70 FR 61911).

On November 15, 2005, the NMFS Southeast Regional Administrator received requests from the Marine Fisheries Division of the ALDCNR, MDMR, LADWF, and TPWD for an additional 30-day period allowing the use of restricted tow times as an alternative to TEDs in state and federal waters because of excessive storm-related debris on the fishing grounds as a result of Hurricanes Katrina and Rita. Subsequent to these requests, NMFS issued a 30-day extension encompassing both previous exemptions to the TED requirements, from November 23, 2005, through December 23, 2005 (70 FR 71406).

On December 7, 2005, the NMFS Southeast Regional Administrator received a request from the Marine Fisheries ALDCNR to allow the use of tow times as an alternative to TEDs in inshore and offshore waters because of excessive storm related debris on the fishing grounds as a result of Hurricane Katrina. NMFS received similar requests on December 19, 2005, from MDMR and LADWF due to the cumulative effects of Hurricanes Katrina and Rita. The area cumulatively affected by the two hurricanes currently extends from the Florida/Alabama border, westward to the Louisiana/Texas border, and offshore 20 nautical miles. ALDCNR interviewed shrimp fishermen who indicated there are still serious debris problems out to 20 nautical miles, while MDMR's investigation indicates debris problems are still very serious nearshore, with continuing problems into the exclusive economic zone. LADWF's investigation and interviews with shrimp fishermen indicates there are still significant debris problems in state and federal waters. Interviews between these state agencies and NMFS indicated some shrimp fishermen continue to use TEDs in these areas as the TED is able to exclude debris from the trawl; however, these interviews also indicated there are still significant amounts of large debris that can render TEDs ineffective at releasing turtles. When a TED is clogged with debris it neither catches shrimp nor excludes turtles effectively.

The AA finds that debris washed into inshore and offshore waters by Hurricanes Katrina and Rita off Alabama, westward to the Louisiana/Texas border, and extending offshore 20 nautical miles, has created ongoing special environmental conditions that make trawling with TED-equipped nets impracticable. Therefore, the AA issues this notification to extend the current authorization for the use of restricted tow times as an alternative to the use of TEDs in inshore and offshore waters off Alabama, westward to the Louisiana/Texas border, and extending offshore 20 nautical miles, through 11:59 p.m., local time, January 23, 2006. Tow times must be limited to no more than 75 minutes measured from the time trawl doors enter the water until they are retrieved from the water.

NMFS encourages shrimp trawlers in the affected areas to continue to use TEDs if possible, even though they are authorized under this action to use restricted tow times.

NMFS' gear experts have provided several general operational recommendations to fishermen to maximize the debris exclusion ability of TEDs that may allow some fishermen to continue using TEDs without resorting to restricted tow times. To exclude debris, NMFS recommends the use of hard TEDs made of either solid rod or of hollow pipe that incorporate a bent angle at the escape opening, in a bottom-opening configuration. In addition, the installation angle of a hard TED in the trawl extension is an important performance element in excluding debris from the trawl. High installation angles can trap debris either on or in front of the bars of the TED; NMFS recommends an installation angle of 45°, relative to the normal horizontal flow of water through the trawl, to optimize the TED's ability to exclude turtles and debris. Furthermore, the use of accelerator funnels, which are allowable modifications to hard TEDs, is not recommended in areas with heavy amounts of debris or vegetation. Lastly, the webbing flap that is usually installed to cover the turtle escape opening may be modified to help exclude debris quickly: the webbing flap can either be cut horizontally to shorten it so that it does not overlap the frame of the TED or be slit in a fore-and-aft direction to facilitate the exclusion of debris. The use of the double cover flap TED will also aid in debris exclusion.

All of these recommendations represent legal configurations of TEDs for shrimpers fishing in the affected areas. This action does not authorize any other departure from the TED requirements, including any illegal modifications to TEDs. In particular, if TEDs are installed in trawl nets, they may not be sewn shut.

The authorization provided by this temporary rule applies to all shrimp trawlers that would otherwise be required to use TEDs in accordance with the requirements of 50 CFR 223.206(d)(2) who are operating in inshore and offshore waters affected by Hurricanes Katrina and Rita off Alabama, westward to the Louisiana/Texas border, and extending offshore 20 nautical miles, through January 23, 2006. Through this temporary rule, shrimp trawlers may choose either restricted tow times or TEDs to comply with the sea turtle conservation regulations, as prescribed above.

The AA, at any time, may withdraw or modify this temporary authorization to use tow time restrictions in lieu of TEDs through publication of a notice in the Federal Register , if necessary to ensure adequate protection of endangered and threatened sea turtles. Under this procedure, the AA may modify the affected area or impose any necessary additional or more stringent measures, including more restrictive tow times, synchronized tow times, or withdrawal of the authorization if the AA determines that the alternative authorized by this temporary rule is not sufficiently protecting turtles or no longer needed. The AA may also terminate this authorization if information from enforcement, state authorities, or NMFS indicates compliance cannot be monitored effectively. This authorization will expire automatically at 11:59 p.m., local time, January 23, 2006, unless it is explicitly extended through another notification published in the Federal Register .

This action has been determined to be not significant for purposes of Executive Order 12866.

The AA has determined that this action is necessary to respond to special environmental conditions to allow effective fishing for shrimp, while providing adequate protection for endangered and threatened sea turtles pursuant to the ESA and applicable regulations.

Pursuant to 5 U.S.C. 553(b)(B), the AA finds that there is good cause to waive prior notice and opportunity to comment on this rule. The AA finds that unusually high amounts of debris has created ongoing special environmental conditions that make trawling with TED-equipped nets impracticable. Prior notice and opportunity to comment are impracticable and contrary to the public interest in this instance because providing notice and comment would prevent the agency from providing the affected industry relief from the effects of Hurricanes Katrina and Rita in a timely manner.

The AA finds that there is good cause to waive the 30-day delay in effective date pursuant to 5 U.S.C. 553(d)(3) to provide alternatives to comply with the sea turtle regulations in a timely manner. Many fishermen may be unable to operate under the special environmental conditions created by Hurricanes Katrina and Rita without an alternative to using TEDs. Providing a 30-day delay in effective date would prevent the agency from providing the affected industry relief from the effects of Hurricanes Katrina and Rita in a timely manner. For the reasons stated above, the AA finds that this temporary rule should not be subject to a 30-day delay in effective date, pursuant to 5 U.S.C. 553(d)(1).

Since prior notice and an opportunity for public comment are not required to be provided for this action by 5 U.S.C. 553, or by any other law, the analytical requirements of 5 U.S.C. 601 et seq. are inapplicable.

The reef fish fishery of the Gulf of Mexico is managed under the FMP. The FMP was prepared by the Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

In accordance with the FMP's framework procedure, the Council recommended, and NMFS published, a proposed rule (70 FR 70575, November 22, 2005) to establish a 6,000-lb (2,722-kg) commercial trip limit for shallow-water and deep-water grouper, combined, in the exclusive economic zone of the Gulf of Mexico. Public comments on the proposed rule were requested through December 7, 2005. A summary of the comments and NMFS' responses are provided below. The rationale for this trip limit is provided in the regulatory amendment and in the preamble to the proposed rule and is not repeated here.

Following is a summary of the comments received on the proposed rule and NMFS' responses.

Comment 1: One commenter supported the 6,000-lb (2,722-kg) commercial trip limit, but recommended reducing the trip limit once 50 and 75 percent of the quota was reached.

Response: Six trip limit alternatives were considered, including no action and the preferred 6,000-lb (2,722-kg) gutted weight grouper trip limit. Several other stepped trip limit alternatives were also considered, which would have reduced the trip limit during the fishing year when a certain percentage of either the shallow-water grouper or red grouper quota was reached. These stepped trip limit alternatives were not selected because the lower trip limits were estimated to generate excessive negative economic impacts, particularly for longline vessels and vessels operating off the west-central coast of Florida.

Comment 2: One commenter supported the trip limit, but recommended longer closures or a 10-day open season at the beginning of each month.

Response: The intent of the 6,000-lb (2,722-kg) gutted weight commercial grouper trip limit is to prolong the fishing season and reduce the effects of derby fishing. Longer closures or 10-day open seasons are contrary to the action's objective of reducing the effects of derby fishing and extending the commercial grouper fishing season.

Comment 3: One commenter opposed the trip limit and believed the trip limit was too large and should be less.

Response: Several alternatives with lower trip limits than the preferred 6,000-lb (2,722-kg) gutted weight trip limit were considered. These more restrictive trip limit alternatives were not selected because the lower trip limits were estimated to generate excessive negative economic impacts, particularly for longline vessels and vessels operating off the west-central coast of Florida.

Comment 4: One commenter supported the trip limit, but questioned the effectiveness of the trip limit if it resulted in additional fishing trips.

Response: An environmental assessment (EA) was conducted for this action, which evaluated the effects of the trip limit on the physical, biological, social, and economic environment. As part of the EA, an economic simulation analysis was conducted, which allowed for extra fishing trips to be taken in response to lower trip limits. Extra trips were only allowed to occur if revenues were sufficient to cover trip costs. Based on the results of this simulation analysis, the shallow-water grouper fishery was projected to close 2-14 days earlier than if extra trips were not allowed to be taken.

Comment 5: One commenter suggested longline fishing gear should be eliminated.

Response: The regulatory amendment only proposed trip limits for reducing the effects of derby fishing and moderating the rate of commercial grouper harvest. The regulatory amendment did not provide notice or seek comment on elimination of any type of gear from the fishery. Therefore, this comment is beyond the scope of the regulatory amendment and this rule.

Comment 6: The Southern Offshore Fishing Association (SOFA) indicated they were in favor of trip limits, but believed the 6,000-lb (2,722-kg) trip limit would have adverse economic effects on larger vessels. They suggested two alternative trip limit proposals be considered. The first proposal is to implement a tiered trip limit with a 7,500-lb (3,402-kg) limit for longline vessels and 2,500-lb (1,134-kg) trip limit for vertical-line vessels. The second proposal is to implement a 7,500-lb (3,402-kg) trip limit for vessels with a documented length over 45 ft (13.7 m), a 5,500-lb (2,495-kg) trip limit for vessels with a documented length under 45 ft (13.7 m), and a 1-month closure of the shallow-water grouper fishery from May 20 to June 20.

Response: At its October 3-6, 2005 meeting, the Council reviewed a proposal by SOFA for a 7,500-lb (3,402-kg) trip limit and additional closed season. In response to this proposal, which is outlined in the regulatory amendment, the initial trip limit was increased from 5,500-lb (2,495-kg) to 6,000 lb (2,722-kg) to help defray increasing costs occurring in the fishery and larger vessels' higher operating costs. The Council also considered seasonal closures in conjunction with trip limits. SOFA suggested a 1-month closure (May 15-June 15) at the Council's October meeting, and this proposal was analyzed as a variant of Alternative 3 in the regulatory amendment. However, Alternative 3 was rejected in favor of the preferred alternative in seeking a compromise between limiting net revenue losses while allowing for a longer season.

The concept of setting grouper trip limits by fishing gear was not examined in the regulatory amendment, but was considered in Secretarial Amendment 1 to the Reef Fish FMP. The Council concluded gear-based trip limits would increase the complexity of the regulations and, thus, decrease compliance and enforceability. Further, gear-based trip limits could encourage fishermen to convert their vessels to the gear with the highest trip limit and ultimately increase rather than decrease harvest rates. Finally, SOFA's gear-based proposal does not address other gear types used in the fishery such as fish traps and spearguns.

The Administrator, Southeast Region, NMFS, determined the regulatory amendment, which this proposed rule would implement, is necessary for the conservation and management of the commercial grouper fishery in the Gulf of Mexico and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

The Assistant Administrator for Fisheries, NOAA (AA) finds there is good cause under 5 U.S.C. 553(d)(3) to waive the required 30-day delay in effective date. After evaluating nearly a full year of the fishery's performance under the existing trip limit structure, NMFS has determined that those trip limits were not sufficiently restrictive to achieve the regulatory objectives of minimizing the adverse socioeconomic effects of derby fishing and extending the length of the fishing season, i.e., avoiding rapid harvest of the quota and an early closure of the fishery. The more restrictive trip limit in this final rule is required to meet these objectives. Delaying the implementation of this final rule beyond January 1, 2006, would result in excessive harvests while the ineffective emergency trip limits are in place. Given the substantial harvesting capacity of the commercial grouper fishery, any delay in implementing the limits specified by this final rule would result in depressed ex-vessel prices while the higher trip limit is in place and a reduction in the length of the fishing season relative to that expected to be achieved by implementation of the final rule effective January 1, 2006. Numerous vessels in the fishery have the capacity to harvest up to and in excess of 10,000 pounds. Forty-nine trips in excess of 6,000 pounds were reported in January 2005. Further, the fishery has been closed since October 10, 2005, and participants are poised to fish upon opening of the fishery. Given the extended closure of the fishery, if allowed to harvest the higher limit, participants have the capacity and incentive to do so. Any reduction in ex-vessel prices and shortening of the season will result in failure to meet the goals of this action. There are no fishing gear changes or other significant compliance issues that would necessitate a delay in effectiveness of this rule. NMFS will provide timely notification of the more restrictive trip limit in this final rule directly to participants in the fishery via a fishery bulletin mailed to each permitee and via broadcast on NOAA weather radio. The Council intended to take final action on the proposed rule at their September 2005 meeting in New Orleans, Louisiana, which would have accommodated the 30-day delay in the effective date. However, as a consequence of Hurricane Katrina, the Council was prevented from taking final action until their October meeting, delaying submission for Secretarial review until October 12. The 30-day delay would have required publication of the final rule on or before December 1. However, the available time between Council submission and December 1 was insufficient to allow the required and necessary review and approval of the final rule.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS prepared an FRFA. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, NMFS responses to those comments, and a summary of the analyses completed to support the action.

This final rule establishes a 6000-lb (2,722-kg) trip limit for the commercial grouper fishery in the Gulf of Mexico. The purpose of this final rule is to reduce the adverse socioeconomic effects of derby fishing in the commercial sector expected to result if management action is not taken. The Magnuson-Stevens Act provides the statutory basis for the rule.

Six comments that proposed alternative trip limits, longer closures or 10-day seasons, the elimination of one gear sector, or questioned the effectiveness of the action were raised by public comments in response to the proposed rule. A detailed summary of these comments and NMFS' responses is provided in the Comments and Responses section of this final rule. These alternatives were either previously considered or determined to be outside the scope of the objectives for this rule. Where considered, it was determined that either the adverse impacts of these alternatives were greater than those of the rule, or the rule was determined to be a reasonable compromise between limiting net revenue losses while allowing for a longer season. No changes were made to the final rule in response to these comments.

No duplicative, overlapping, or conflicting Federal rules have been identified.

An estimated 1,129 vessels were permitted to engage in commercial fishing for Gulf reef fish (which include grouper) in early 2004, down from 1,718 vessels in 1993. Although a permit moratorium has limited access in this fishery since 1992, transfer of permits is not restricted. Those seeking to enter the fishery can purchase a permit from those seeking to exit the fishery, provided income and other requirements are met for participation in the fishery. Total participation, however, in terms of both the number of permits and the number of vessels landing Gulf reef fish has consistently declined since 1993.

An estimated 1,157 vessels had permits to fish commercially for Gulf reef fish from 2002-2004, and 1,021 vessels had historical, logbook-reported landings of Gulf reef fish. This total includes 928 vessels with landings of Gulf grouper, for which the median estimated gross revenue for all reported landings of fish was approximately $20,000 per vessel per year. Maximum revenue ranged from $478,000-$543,000. The bottom longline and vertical line sectors are the dominant fleets in the fishery. For the bottom longline fleet (162 vessels per year, on average), the median annual gross revenue ranged from $96,000-$102,000 (84-90 percent from grouper). The vertical line fleet (765 vessels per year, on average) had median annual gross revenue of under $17,000 (44-48 percent from grouper). Some vessels use both gears so the numbers of vessels cannot be added across gear types.

For the 928 vessels with reported landings of Gulf grouper, historical fishery performance resulted in estimated annual average gross revenue of $46 million for all logbook-reported fish in 2002-2004. This includes gross revenue of $39 million for all fish on trips with grouper landings ($25 million from red grouper). The net revenue for these trips was approximately $29 million (annual averages per vessel for 928 vessels are $41,000 for gross revenue, and $31,000 for net revenue). Net revenue for the commercial fishing sector (computed as trip revenue minus trip costs) includes returns to all labor and capital.

Simulation of fishery performance under status quo conditions produced estimates which are slightly lower than historical fishery performance: Gross revenue of approximately $37 million for all fish on trips with grouper landings, and $27 million for net revenue (annual averages per vessel for 922 vessels are $40,000 for gross revenue, and $29,000 for net revenue). Projected net revenue is approximately $10.7 million for the bottom longline fleet (average, $66,000 per vessel per year for 161 vessels), and $14.5 million for the vertical line fleet (average, $19,000 per vessel per year for 748 vessels).

Between 1997 and 2000, there were an average of 123 reef fish dealers actively buying and selling in the grouper market. Of these dealers, 101 dealers (82 percent) sold more than $30,000 per year of domestic grouper on a regular basis. These dealers may hold multiple types of permits. Because the extent of business operation for these dealers is unknown, it is not possible to determine what percentage of their business comes from grouper. Average employment information per reef fish dealer is not known, but total employment in 1997 for reef fish processors in the entire Southeast was estimated at approximately 700 individuals, both part and full time. It is assumed that all processors must be dealers, yet a dealer need not be a processor. Therefore, total dealer employment is expected to be slightly more than 700 individuals.

This final rule will not change current reporting, recordkeeping and other compliance requirements under the FMP. These requirements include qualification criteria for the commercial permits, landing reporting requirements for vessels with commercial permits, and participation in additional data collection programs if selected by NMFS. All of the information elements required for these requirements are standard elements essential to the successful operation of a fishing business and should, therefore, already be collected and maintained as standard operating practice by the business. The requirements do not require professional skills, and, therefore, are deemed not to be onerous.

The Small Business Administration defines a small business in the commercial fishery sector as a firm that is independently owned and operated, is not dominant in its field of operation, and has annual receipts up to $3.5 million per year. For support industries, the appropriate thresholds are a firm with fewer than 500 employees in the case of fish processors, or fewer than 100 employees in the case of fish dealers. Since none of the reef fish processors meet the SBA employment threshold, it is unlikely that any of the dealers will meet that threshold. Given the profiles presented above, it is determined that all commercial fishing entities and dealers that will be affected by this rule are small business entities. Since all said entities will be potentially affected, it is determined that this rule will affect a substantial number of small entities.

The outcome of “significant economic impact” can be ascertained by examining two issues: disproportionality and profitability. The disproportionality question is do the regulations place a substantial number of small entities at a significant competitive disadvantage to large entities? All the commercial fishing, or dealer entities affected by this final rule are considered small entities so the issue of disproportionality does not arise in the present case. The profitability question is do the regulations significantly reduce profit for a substantial number of small entities? This final rule is projected to reduce net revenues by $760,000 to $1.09 million for the bottom longline sector. Compared with projected annual net revenue of $10.7 million for this sector under the status quo ($66,000 per vessel per year for 161 vessels), the projected net revenue reduction equates to approximately $4,700-$6,700, or approximately 7-10 percent, per vessel per year, on average if 2001-2003 costs prevail. If recent cost hikes stimulated by 2005 gas price conditions continue, the projected net revenue reduction is $729,000 to $1.02 million, relative to total annual net revenues of $6.4 million ($39,800 per vessel). This equates to a reduction of approximately $4,500-$6,300, or approximately 11-16 percent, per vessel per year on average.

For the vertical line sector, this final rule is projected to increase net revenues by $81,000-$112,000 per year. Compared with projected annual net revenue of $14.5 million for this sector under the status quo ($19,000 per vessel per year for 748 vessels), the projected increase in net revenue equates to approximately $100-$150 per vessel, or less than a 1-percent increase if 2001-2003 costs prevail. If 2005 cost conditions continue, the vertical line sector is projected to experience a $30,000-$36,000 increase in net revenues per year, or still less than 1 percent per vessel.

The trip limit is expected to reduce the adverse, but unquantifiable, economic effects of derby fishing that are expected to develop under the status quo. Although the direct impacts of derby fishing cannot be quantified using current data and models, they are expected to be substantial and are expected to mitigate any losses in fishery net revenue attributed to the rule.

Five alternatives, including the status quo, were considered relative to the rule. The status quo alternative would eliminate the short-term adverse impacts of the rule, but would not address the potential development of a derby fishery and would not, therefore, achieve the Council's objectives.

The second alternative would establish a step-down trip limit consisting of trip limits of 10,000, 7,500 and 5,500-lb (4,536, 3,402, and 2,495 kg) gutted weight based on target dates and accumulated landing totals. This alternative, while resulting in lower short-term reductions in net revenues than the rule, does not appear to sufficiently constrain commercial landings, as evidenced by 2005 fishery performance and, hence, is not sufficient to lessen derby conditions and reduce the length of the quota closure.

The third alternative would start the commercial trip limit at 7,500-lb (3,402-kg) with step-down to 5,000-lb (2,268-kg). This alternative would potentially reduce the short-term reduction in net revenues of the rule. However, based on preliminary 2005 fishery performance, the starting limit is higher than necessary to counter derby pressure.

The fourth alternative would also start with an initial trip limit of 7,500-lb (3,402-kg) with a step-down to 3,500-lb (1,588-kg). The short-term adverse impacts of this alternative, however, exceed those of the rule.

The fifth alternative would begin the fishery with a 4,000-lb (1,814-kg) trip limit and allow the trip limit to either be increased, decreased, or remain the same depending upon fishery performance. Although this scenario cannot be fully analyzed due to the absence of a clearly specified variable step decision rule, the initial limit is so low that it is expected to generate excessive negative impacts, particularly on the bottom longline sector.

Copies of the FRFA are available (see ADDRESSES ).

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

The summer flounder, scup, and black sea bass fisheries are managed cooperatively by the Atlantic States Marine Fisheries Commission (Commission) and the Mid-Atlantic Fishery Management Council (Council), in consultation with the New England and South Atlantic Fishery Management Councils. The management units specified in the FMP include summer flounder ( Paralichthys dentatus ) in U.S. waters of the Atlantic Ocean from the southern border of North Carolina (NC) northward to the U.S./Canada border, and scup ( Stenotomus chrysops ) and black sea bass ( Centropristis striata ) in U.S. waters of the Atlantic Ocean from 35°13.3′ N. lat. (the latitude of Cape Hatteras Lighthouse, Buxton, NC) northward to the U.S./Canada border. Implementing regulations for these fisheries are found at 50 CFR part 648, subpart A (general provisions), subpart G (summer flounder), subpart H (scup), and subpart I (black sea bass).

The regulations outline the process for specifying the annual catch limits for the summer flounder, scup, and black sea bass commercial and recreational fisheries, as well as other management measures (e.g., mesh requirements, minimum fish sizes, gear restrictions, possession restrictions, and area restrictions) for these fisheries. The measures are intended to achieve the annual targets set forth for each species in the FMP, specified either as an F or an exploitation rate (the proportion of fish available at the beginning of the year that may be removed by fishing during the year). Once the catch limits are established, they are divided into quotas based on formulas contained in the FMP. Detailed background information regarding the status of the summer flounder, scup, and black sea bass stocks and the development of the 2006 specifications for these fisheries was provided in the proposed specifications (70 FR 69722, November 17, 2005). That information is not repeated here.

NMFS will establish the 2006 recreational management measures for summer flounder, scup, and black sea bass by publishing a proposed and final rule in the Federal Register at a later date, following receipt of the Council's recommendations as specified in the FMP.

The FMP specifies a target F of F max, that is, the level of fishing that produces maximum yield per recruit. The best available scientific information indicates that, for 2006, F max for summer flounder is 0.276 (equal to an exploitation rate of about 22 percent from fishing). The Total Allowable Landings (TAL) associated with the target F is allocated 60 percent to the commercial sector and 40 percent to the recreational sector. The commercial quota is allocated to the coastal states based upon percentage shares specified in the FMP. The recreational harvest limit is specified on a coastwide basis. Recreational measures will be the subject of a separate rulemaking early in 2006.

This final rule implements the specifications contained in the November 17, 2005, proposed rule—a summer flounder TAL of 23.59 million lb (10,700 mt) for 2006. The TAL for 2006 is allocated 14,154,000 lb (6,420 mt) to the commercial sector and 9,436,000 lb (4,280 mt) to the recreational sector. This TAL has at least a 50-percent probability of achieving the target F of 0.276 in 2006, if the 2005 TAL and assumed discard levels are not exceeded. Three research projects that would utilize the full summer flounder research set-aside (RSA) of 355,762 lb (161 mt) have been conditionally approved by NMFS and are currently awaiting notice of award. After deducting this RSA, the TAL is divided into a commercial quota of 13,940,543 lb (6,303 mt) and a recreational harvest limit of 9,293,695 lb (4,216 mt). If a project is not approved by the NOAA Grants Office, the research quota associated with the disapproved proposal will be restored to the summer flounder TAL through publication in the Federal Register .

Consistent with the revised quota setting procedures for the FMP (67 FR 6877, February 14, 2002), summer flounder overages are determined based upon landings for the period January-October 2005, plus any previously unaccounted for landings from January-December 2004. Table 1 summarizes, for each state, the commercial summer flounder percent share, the 2006 commercial quota (both initial and less the RSA), the 2005 quota overages as described above, and the resulting final adjusted 2006 commercial quota less the RSA.

The Commission has established a system whereby 15 percent of each state's quota may be voluntarily set aside each year to enable vessels to land an incidental catch allowance after the directed fishery in a state has been closed. The intent of the incidental catch set-aside is to reduce discards by allowing fishermen to land summer flounder caught incidentally in other fisheries during the year, while ensuring that the state's overall quota is not exceeded. These Commission set-asides are not included in these 2006 final summer flounder specifications because NMFS does not have authority to establish such subcategories.

Table 1 (above) indicates that, for Delaware, the amount of the 2005 summer flounder quota overage (inclusive of overharvest from 2004) is greater than the amount of commercial quota allocated to Delaware for 2006. As a result, there is no quota available for 2006 in Delaware. The regulations at § 648.4(b) provide that Federal permit holders, as a condition of their permit, must not land summer flounder in any state that the Regional Administrator has determined no longer has commercial quota available for harvest. Therefore, effective January 1, 2006, landings of summer flounder in Delaware by vessels holding commercial Federal summer flounder fisheries permits are prohibited for the 2006 calendar year, unless additional quota becomes available through a quota transfer and is announced in the Federal Register . Federally permitted dealers are advised that they may not purchase summer flounder from federally permitted vessels that land in Delaware for the 2006 calendar year, unless additional quota becomes available through a transfer, as mentioned above.

The target exploitation rate for scup for 2006 is 21 percent. The FMP specifies that the Total Allowable Catch (TAC) associated with a given exploitation rate be allocated 78 percent to the commercial sector and 22 percent to the recreational sector. Scup discard estimates are deducted from both sectors' TACs to establish TALs for each sector, i.e., TAC minus discards equals TAL. The commercial TAC, discards, and TAL (commercial quota) are then allocated on a percentage basis to three quota periods, as specified in the FMP: Winter I (January-April)—45.11 percent; Summer (May-October)—38.95 percent; and Winter II (November-December)—15.94 percent. The recreational harvest limit is allocated on a coastwide basis. Recreational measures will be the subject of a separate rulemaking early in 2006.

This final rule implements the specifications contained in the November 17, 2005, proposed rule, i.e., a 19.79-million-lb (8,977-mt) scup TAC and a 16.27-million-lb (7,380-mt) scup TAL. After deducting 184,690 (84 mt) of RSA for the three approved research projects, the TAL is divided into a commercial quota of 11,932,142 lb (5,412 mt) and a recreational harvest limit of 4,153,168 lb (1,884 mt). If a project is not approved by the NOAA Grants Office, the research quota associated with the disapproved proposal will be restored to the scup TAL through publication in the Federal Register .

Consistent with the revised quota setting procedures established for the FMP (67 FR 6877, February 14, 2002), scup overages are determined based upon landings for the Winter I and Summer 2005 periods, plus any previously unaccounted for landings from January-December 2004. Table 2 presents the final 2005 commercial scup quota for each period and the reported 2005 landings for the 2005 Winter I and Summer periods; there was no overage of the Winter I or Summer quota. On August 2, 2005 (70 FR 44291), and as corrected on October 4, 2005 (70 FR 57802), NMFS announced a transfer of quota from Winter I to Winter II 2005. Per the quota counting procedures, after June 30, 2006, NMFS will compile all available landings data for Winter II 2005 and compare the landings to the Winter II 2005 allocation, as adjusted. Any overages will be determined and required deductions will be made to the Winter II 2006 allocation.

Table 3 presents the commercial scup percent share, 2006 TAC, projected discards, 2006 initial quota (with and without the RSA deduction), and initial possession limits, by quota period. To achieve the commercial quotas, this final rule implements a Winter I period (January-April) per-trip possession limit of 30,000 lb (13.6 mt), and a Winter II period (November-December) initial per-trip possession limit of 2,000 lb (907 kg). The Winter I per-trip possession limit will be reduced to 1,000 lb (454 kg) when 80 percent of the commercial quota allocated to that period is projected to be harvested.

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

The Administrator, Alaska Region, NMFS, has determined that the 2005 initial TACs established in the 2005 and 2006 final harvest specifications for groundfish in the BSAI (70 FR 8979, February 24, 2005) for arrowtooth flounder, yellowfin sole, “other flatfish”, squid and rock sole in the BSAI need to be supplemented from the non-specified reserve in order to account for prior harvest.

Therefore, in accordance with § 679.20(b)(3), NMFS apportions amounts from the non-specified reserve to the TACs for the following species or species groups in the BSAI: 429 mt to arrowtooth flounder, 401 mt to yellowfin sole, 193 mt to “other flatfish”, 100 mt to squid and 227 to rock sole. This apportionment is consistent with § 679.20(b)(1)(ii) and does not result in overfishing of a target species because the revised initial TAC is equal to or less than the specification of the acceptable biological catch (70 FR 8979, February 24, 2005).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and § 679.20(b)(3)(iii)(A) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the apportionment of the non-specified reserves of groundfish. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of December 22, 2005.

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

Under § 679.20(b)(3)(iii), interested persons are invited to submit written comments on this action (see ADDRESSES ) until January 12, 2006.