Background

The emerald ash borer (EAB) ( Agrilus planipennis ) is a destructive woodboring insect that attacks ash trees ( Fraxinus spp., including green ash, white ash, black ash, and several horticultural varieties of ash). The insect, which is indigenous to Asia and known to occur in China, Korea, Japan, Mongolia, the Russian Far East, Taiwan, and Canada, eventually kills healthy ash trees after it bores beneath their bark and disrupts their vascular tissues.

The EAB regulations in 7 CFR 301.53-1 through 301.53-9 (referred to below as the regulations) restrict the interstate movement of regulated articles from quarantined areas to prevent the artificial spread of EAB to noninfested areas of the United States.

In an interim rule  1 effective and published in the Federal Register on June 1, 2007 (72 FR 30458-30460, Docket No. APHIS-2007-0028), we amended the EAB regulations in § 301.53-3(c) by adding Prince George's County, MD, to the list of quarantined areas.

Comments on the interim rule were required to be received on or before July 31, 2007. We received one comment by that date. The comment was from a State insect pest prevention and management program supervisor who supported the interim rule. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule.

This action also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act. Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.

On September 21, 2007 (72 FR 53937), we published a final rule AD, FR Doc. E7-18484, in the Federal Register . That AD applies to Turbomeca S.A. Artouste III B, Artouste III B1, and Artouste III D turboshaft engines. We need to make the following corrections:

On page 53937, in the second column, in the Supplementary Information paragraph, in the third line, “2005-04-15” is corrected to read “2006-04-15”.

On page 53938, in the first column, in the second line, “2005-04-15” is corrected to read “2006-04-15”.

In 1996, the FAA granted an exemption from various requirements of part 91 and part 119 to an aviation museum/foundation allowing the exemption holder to operate a large, crew-served, piston-powered, multiengine, World War II (WWII) bomber carrying passengers for the purpose of preserving U.S. military aviation history. In return for donations, the contributors would receive a local flight in the restored bomber.

The petitioner noted that WWII combat aircraft are unique in that only a limited number remain in flyable condition, and that number is declining with the passage of time. In addition, the petitioner noted replacement parts and the specific gasoline used by these airplanes will eventually be in short supply, and may substantially reduce the aircraft performance capability or require the airplanes to be grounded.

The petitioner indicated that compensation would be collected to help cover expenses associated with maintaining and operating the WWII airplane. Without these contributions, the petitioner asserted that the cost of operating and maintaining the airplane would be prohibitive.

The FAA determined that these airplanes were operated under a limited category airworthiness certificate. Without type certification under Title 14 Code of Federal Regulations (14 CFR) § 21.27, they are not eligible for standard airworthiness certificates. The high cost of type certification under § 21.27 makes this avenue impractical for operators providing living history flights. Comparable airplanes manufactured under a standard airworthiness certificate did not exist. As a result, the FAA determined that an exemption was an appropriate way to preserve aviation history and keep the airplanes operational. In granting the exemption, the FAA found that there was an overwhelming public interest in preserving U.S. aviation history, just as the preservation of historic buildings, historic landmarks, and historic neighborhoods have been determined to be in the public interest. While aviation history can be represented in static displays in museums, in the same way historic landmarks could be represented in a museum, the public has shown support for and a desire to have these historic aircraft maintained and operated to allow them to experience a flight.

Since the issuance of that exemption, the FAA has received many exemption requests seeking the same or similar relief, even though the particular circumstances were different. These subsequent petitions raised significant concerns within the FAA and led it to reexamine and refine its criteria for issuing exemptions.

For example, petitioners have requested exemptions to operate certain large turbojet-powered aircraft, which included a foreign-manufactured and operated, surplus military turbojet aircraft. Some turbojet-powered aircraft (L-29, L-39, TS-11, Alfa Jet, etc.) remain in active military service or are readily available in the current international market. The availability of these aircraft is indicative of an increasing market and thus undermines any argument that this aircraft meets the public interest goal of preserving unique, historical aircraft. Additionally, the FAA was concerned that petitioners could not demonstrate that these aircraft had been adequately maintained. Unlike foreign manufactured military surplus aircraft, operators of U.S.-manufactured surplus military aircraft certificated in an airworthiness category (experimental, limited, and restricted category under § 21.25(a)(2)) for which no common standards exist, were required to avoid potential safety issues through (1) the continued operation and maintenance requirements imposed on them, and (2) a requirement to provide adequate documentation of previous operational maintenance history.

As a result of these requests, the FAA published a draft policy notice in the Federal Register on March 27, 2006 (71 FR 15087) (Docket number FAA-2006-24260) clarifying its position regarding the issuance of exemptions for passenger carrying operations conducted for compensation and hire in other than standard category aircraft. Two comments were forwarded to the docket for consideration. The first was submitted by individuals who serve as volunteers at the Wright B Flyer Museum. These individuals generally supported the proposal, but asked that it be expanded to include experimental amateur built aircraft, such as their Wright B Flyer replica. Item 1 below (under FAA Policy section) states, “Aircraft holding any category of airworthiness certificate issued under 14 CFR part 21 may be considered for an exemption to provide living history flight experiences.” This would include the Wright B Replica.

The other comment, submitted by the Experimental Aircraft Association, addressed several issues. The first issue addressed typographical errors in the numbering sequence of the paragraphs that appeared in the draft notice. The errors were numbering errors and not missing information. They have been corrected. Second, EAA spoke to concerns regarding the revision of operating limitations. EAA states that the current wording of proposed paragraph 10 could lead to the possibility of revised operating limitations exceeding the scope of this proposed policy. This was not the FAA's intention. Instead, the FAA simply wished to convey the possibility that any exemption may contain operational restrictions beyond what appears in the aircraft's operating limitations. The third recommends adding a paragraph to state that operators with existing exemptions may continue to conduct passenger-carrying operations per those conditions and limitations and that all requirements of this policy would be complied with at their next exemption renewal period. The addition is not necessary. Existing exemptions comply with the policy. Also, we must always reserve the right to revise any existing exemption and its conditions and limitations should a safety need arise.

As a result of ongoing communication with the stakeholder community, the following establishes the FAA's policy regarding the issuance of exemptions for passenger-carrying operations conducted for compensation and hire in other than standard category aircraft.

The FAA recognizes the need for and seeks to promote an exposure to and appreciation of aviation history. By enabling non-profit organizations, identified as such by the U.S. Department of Treasury, to offer living history flights for compensation used to preserve and maintain these aircraft, the public will be assured access to this important part of history.

The regulations in 14 CFR establish appropriate safety standards for aircraft operators and crewmembers. Therefore, an exemption from aviation safety regulations is not routinely granted if the proposed operation can be performed in full compliance with the rules. In addition, the FAA must be persuaded that operation of the affected aircraft will not pose an undue risk to the flying public or to bystanders. The use of former military turbine-engine powered aircraft, in particular, raises several concerns with respect to the type and quality of training available for the flightcrews and maintenance and inspection personnel. Some of the aircraft are complex in nature and some require special skills to operate safely. In addition, there is risk to aircraft occupants, ground personnel, and spectators when military equipment like ejection seat systems, which use armed, explosive pyrotechnic devices, are installed and operational.

The FAA notes that in order to ensure that adequate consideration is given to petitioners intending to operate experimental exhibition, surplus foreign or domestic, turbojet or turbine-powered aircraft, the FAA will closely examine the proposed operation with respect to safety of flight, passenger safety considerations, and safety of the non-participating public during the operational period and within the operational area. Passenger/flightcrew egress, emergency egress systems such as ejection seats, documentation or statistical make and model operational history, significance of the particular aircraft with respect to the operational history maintenance history, operational failure modes, and aging aircraft factors of individual aircraft will be taken into consideration in the analysis of an exemption request.

The FAA will not automatically exclude any request for exemption for non-standard category aircraft from consideration unless the aircraft was acquired through an Act of Congress and Congress has specified that the aircraft may not be operated for compensation or hire. 1 Rather, the FAA will evaluate each exemption request on a case-by-case basis. Those requesting an exemption from a particular standard or set of standards must demonstrate the following: (1) That there is an overriding public interest in providing a financial means for a non-profit organization to continue to preserve and operate these historic aircraft, and (2) that adequate measures will be taken to ensure safety.

In order to allow the FAA to thoroughly evaluate and provide consideration to each request, petitioners should allow at least 120 days for processing and review of any exemption requests.

The FAA will use the following criteria in deciding whether granting an exemption is in the public interest and does not compromise safety:

1. Aircraft holding any category of airworthiness certificate issued under 14 CFR part 21 may be considered for an exemption to provide living history flight experiences.

2. Exemptions will not be limited to a particular category of aircraft or based on a type of engine; fixed wing or rotorcraft may apply as well as piston or turbine powered aircraft.

3. An aircraft that was not made by a U.S. manufacturer may be considered for an exemption if the operational and maintenance history is adequately documented.

4. Aircraft with crew egress systems will be considered, provided that flightcrew, ground personnel, and passengers have completed a training program approved by the FAA. Passenger training programs must be at least as thorough as what is provided by the manufacturer or military service user when preparing an individual for a “familiarization” flight.

5. Aircraft of the same or similar make/model/series cannot be in current production or in significant commercial use for the carriage of passengers. Exceptions may be considered where a particular airframe has documented historical significance.

6. All passenger seats and their installation must:

a. Take into consideration passenger egress in the event of an emergency; and be FAA-approved if installed on type-certificated aircraft; or

b. Meet the military seat and installation standards or equivalent standards in existence at the time the aircraft was manufactured as outlined in 14 CFR 21.27 if installed on experimental aircraft The Flight Standards District Office (FSDO) having oversight for that aircraft will then ensure the approved maintenance program is modified to incorporate the specific seat inspection procedures.

7. Exemptions will be issued for the sole purpose of providing living history flights to promote aviation and preserve historic aircraft. The operations authorized under these exemptions are specifically not air tour, sightseeing, or air carrier operations. The FAA may stipulate conditions and limitations to the operation to preserve commonality and standardization.

8. The FAA, in determining the public interest derived in any grant of exemption of this nature, will take into consideration the number of existing operational aircraft and petitioners available to provide the historic service to the public.

9. The FAA must be provided with proof that the petitioner is a tax-exempt museum or foundation, recognized as such by the U.S. Department of Treasury, which uses the funds received from exhibitions to enable the continued display of the featured aircraft. The aircraft must be under the operational control of the petitioner.

10. Applicants may be required to submit an operational history of the make/model/type aircraft, or justification with respect to aviation history in order for the FAA to determine the public interest basis for granting an exemption.

11. If a petition for exemption is granted, the conditions and limitations may include revised operating limitations as part of the aircraft's airworthiness certificate. These operating limitations may be more restrictive than those originally issued to the aircraft.

12. Passengers must obtain a complete briefing prior to departure that adequately describes the differences between aircraft with a standard airworthiness certificate and aircraft holding either an experimental or limited airworthiness certificate (i.e., the FAA has not participated in or accepted the design standards, performance standards, handling qualities, or provided approval or operational acceptance of experimental aircraft, the adequacy of previous maintenance and inspection programs and accomplishment may be in doubt, that the aircraft may not comply with FAA passenger regulations and may be operated under separate maintenance standards). The briefing must also advise that the FAA considers flights in these aircraft to pose a greater public risk than similar activities conducted in standard category aircraft and has approved this exemption on the condition that the passengers taking this flight be apprised of the risks involved in flying in such aircraft and be properly trained in emergency exiting, including proper use of the ejection seat. Petitioners must prepare a “notice” for signature by the potential passenger. While a notice does not absolve the operator of liability in the event of an accident, the document will provide proof that the passenger has been advised of the risks inherent in the type of operation to be conducted.

13. Crew Qualification and Training.

a. Pilots must possess a minimum of a commercial pilot certificate with instrument rating appropriate to the category and class of aircraft to be flown. They must also hold a type rating if required by the type of aircraft flown along with a current second class medical certificate.

b. Initial and recurrent training must be performed to current ATP Practical Test Standards for aircraft requiring a special authorization or type rating to operate.

c. An initial ground and flight-training program must be developed by the organization and completed by all pilots.

d. Recurrent ground training must be developed and completed by all pilots on an annual cycle.

e. An annual proficiency check must be conducted and if necessary, recurrent flight training will be required. A minimum activity level and satisfactory flight proficiency check may allow the requirement for recurrent flight training to be waived.

f. The minimum flight experience required for each pilot position may be recommended by the petitioner but must be approved by the FAA.

g. Pilots will maintain takeoff and landing currency in each make and model.

h. A system for documenting and recording all crew qualifications, required training, checking and currency must be developed and maintained.

i. All training and checking programs must be approved by the FAA.

14. Maintenance/Inspection of Aircraft.

a. The maintenance history of each individual aircraft must be provided.

b. The petitioner must provide an FAA-approved maintenance/inspection program that may be a program based on military and/or original manufacturer's manuals and must be in accordance with the type certification data sheet and the aircraft's operating limitations.

c. All maintenance and inspections will be documented and recorded.

d. Applicants may be required to submit an operational history of the make/model/type in order for the FAA to verify that the submitted maintenance/inspection program is adequate.

15. All maintenance or operational incidents will be reported to the FSDO in whose district the organization's principal base of operations is located.

16. Passenger Safety and Training.

a. An FAA-approved passenger briefing must be conducted appropriate to the scope of operations. Passengers must be fully informed of the risks associated with the proposed rides, and that occupying a seat in these aircraft may subject the rider to a high level of risk. Some operations may require passenger-briefing cards.

b. The passenger briefing must include emergency egress procedures and passenger seating and safety restraint systems.

c. Passenger training equivalent to that provided for Department of Defense familiarization flights must be approved by the FAA and conducted for all flights involving any of the following:

i. Ejection seats, if the aircraft is so equipped;

ii. High altitude operations, if flight will be conducted above 10,000 feet mean sea level (MSL);

iii. Oxygen system, for flights above 10,000 feet MSL or if use of the system is required by type of operation.

Petitioners who have not previously conducted operations of this type may be required to demonstrate their ability to safely perform the operations requested and to meet all operating and maintenance requirements. The extent of this demonstration will be dependent on the scope of the operation requested. Petitioners who have conducted this type of operation must provide a summary of their operating history.

Additionally, all petitioners will be required to submit documentation sufficient to allow the FAA to determine the number of passenger seats to be utilized during compensated operations and the FAA approval status of those seats. Petitioners will also be required to provide the U.S. registration number and make/model/serial number of the aircraft to be used.

Those submitting petitions for exemption or additional information should submit the required information to the following: (1) For paper submissions, send the original signed copy of your submission to the U.S. Department of Transportation, Docket Management System, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590 or (2) for electronic submissions, submit your information to the FAA through the Internet using the Federal Docket Management System Web site at this Internet address: http://www.regulations.gov. Follow the online instructions for accessing the dockets. If you already have received a docket number, you must reference that docket number in your request.

This rule revises and replaces Department of Commerce debt collection regulations found at 15 CFR Parts 19, 21 and 22 to conform to the Debt Collection Improvement Act of 1996 (DCIA), Public Law 104-134, 110 Stat. 1321, 1358 (Apr. 26, 1996), the revised Federal Claims Collection Standards, 31 CFR Chapter IX (Parts 900 through 904), and other laws applicable to the collection of non-tax debt owed to the Government. The Department of Commerce made additions and revisions to 15 CFR Part 19, and deleted 15 CFR Parts 21 and 22 to consolidate and streamline the debt collection regulations.

This regulation provides procedures for the collection of non-tax debts owed to Commerce Department entities. Commerce adopts the Government-wide debt collection standards promulgated by the Departments of the Treasury and Justice, known as the Federal Claims Collection Standards (FCCS), as revised on November 22, 2000 (65 FR 70390), and supplements the FCCS by prescribing procedures consistent with the FCCS, as necessary and appropriate for Commerce operations. This regulation also provides the procedures for the collection of debts owed to other Federal agencies when a request for offset is received by Commerce.

This regulation does not contain a section regarding the delegation of debt collection authority within the Commerce Department. The delegation is contained in the Department of Commerce Credit and Debt Management Operating Procedures Handbook (currently available at http://www.osec.doc.gov/ofm/credit/cover.htm ), and does not need to be included in the regulation.

Nothing in this regulation precludes the use of collection remedies not contained in this regulation. For example, Commerce entities may collect unused travel advances through offset of an employee's pay under 5 U.S.C. 5705. Commerce entities and other Federal agencies may simultaneously use multiple collection remedies to collect a debt, except as prohibited by law.

Commerce entities may, but are not required to, promulgate additional policies and procedures consistent with this regulation, the FCCS, and other applicable Federal laws, policies, and procedures, subject to the approval of the Deputy Chief Financial Officer.

The Department of Commerce published the Interim final rule with request for comments on April 16, 2007 at 72 FR 18869. No comments were received. For section analysis of this final rule, see 72 FR 18869 on April 16, 2007.

This rule is not a significant regulatory action as defined in Executive Order 12866.

Because notice of proposed rulemaking and opportunity for comment are not required pursuant to 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility act (5 U.S.C. 601, et seq. ) are inapplicable. Therefore, a regulatory flexibility analysis is not required and has not been prepared.

Schering-Plough Animal Health Corp., 556 Morris Ave., Summit, NJ 07901, filed an application for conditional approval (141-259) that provides for the use of AQUAFLOR-CA1 (florfenicol), a Type A medicated article, by veterinary feed directive to formulate Type C medicated feed for the control of mortality in catfish due to columnaris disease associated with Flavobacterium columnare . In accordance with the Federal Food, Drug, and Cosmetic Act (the act), as amended by the Minor Use and Minor Species Animal Health Act of 2004 (MUMS Act), this drug is conditionally approved as of April 13, 2007, and the regulations are amended by adding 21 CFR 516.1215 and by revising 21 CFR 556.283 to reflect the conditional approval of this application. The effect of this final rule is delayed until October 9, 2007, pending establishment of part 516 (72 FR 41010, July 26, 2007).

In accordance with the freedom of information provisions of 21 CFR part 20, a summary of safety and effectiveness data and information submitted to support conditional approval of this application for conditional approval may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

AQUAFLOR-CA1 in the dosage form and for the intended uses conditionally approved by FDA under application number 141-259 qualifies for 7 years of exclusive marketing rights beginning on the date of approval. This new animal drug qualifies for exclusive marketing rights under section 573(c) of the act (21 U.S.C. 360ccc-2(c)) because it has been declared a designated new animal drug by FDA under section 573(a) of the act.

FDA has determined under 21 CFR 25.33(d)(4) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

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

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Notice of these events was not provided to the Coast Guard with sufficient time to publish an NPRM and receive public comment before the event dates. This temporary rule is necessary to ensure the safety of participants, spectators, and the general public from the hazards associated with a boat race.

For the same reasons, the Coast Guard also finds, under 5 U.S.C. (d)(3), that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

The Biscayne Bay Yacht Racing Association is sponsoring the Monthly BBYRA Cruising Races, and approximately 35 sailboats, 20 to 54 feet in the length, are expected to participate. The event will be held each day from 11 a.m. until 4 p.m. on September 8, 2007 and October 14, 2007. The public is invited to attend. The high concentration of event participants, spectators, and the general boating public presents an extra hazard to the safety of life on the navigable waters of the United States. A temporary safety zone encompassing the waters in Biscayne Bay & the Intracoastal Waterway is necessary to protect participants as well as spectators from hazards associated with the event.

This rule establishes a temporary safety zone for the Monthly BBYRA Cruising Races in Biscayne Bay near Miami, FL. The safety zone is 100 yards around all race participants as they transit the waters of Biscayne Bay south of the Rickenbaucker Causeway to Latitude 25°32′00″. Vessels are prohibited from anchoring, mooring, or transiting within these zones, unless authorized by the Captain of the Port, Miami, Florida, or his designated representative. If the Coast Guard Patrol Commander determines that it is safe for vessels to transit the regulated area, vessels may proceed through the regulated area between scheduled racing events. A succession of not fewer that 5 short whistle or horn blasts from a Coast Guard patrol vessel will be the signal for any and all vessels within the regulated area to take immediate steps to avoid collision. Traffic may resume normal operations at the completion of the scheduled races and exhibitions as determined by the Coast Guard Patrol Commander. The temporary safety zone will protect the participants and the public from the dangers associated with the event. This regulation is effective each day from 11 a.m. until 4 p.m. on September 8, 2007 and October 14, 2007.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. Entry into the regulated area is prohibited for only limited time periods, and all vessels should be able to safety transit around the regulated area at all times. If the Coast Guard Patrol Commander determines that it is safe for vessels to transit the regulated area, vessels may proceed through the regulated area between scheduled racing events. Traffic may resume normal operations at the completion of scheduled races and exhibitions as determined by the Coast Guard Patrol Commander. Finally, advance notifications to the maritime community through marine information broadcasts will allow mariners to adjust their plans accordingly.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in the waters of Biscayne Bay during the effective period. This temporary safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for only 5.0 hours during the day, vessel traffic may safely pass around the safety zone, and vessels may pass through the regulated area with the permission of the Coast Guard Patrol Commander.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order, because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES .

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

EPA is taking final action to approve a revision to Georgia's SIP submitted on March 28, 2007. In its SIP revision, Georgia has met the CAIR requirements by requiring certain electric generating units (EGUs) to participate in the EPA-administered State CAIR cap-and-trade programs addressing SO 2 , and NO X annual emissions. Georgia's regulations adopt by reference most of the provisions of EPA's SO 2 , and NO X annual model trading rules, with certain changes discussed below. EPA has determined that the SIP as revised will meet the applicable requirements of CAIR. As a result of this action, the Administrator of EPA will also issue a final rule to withdraw the FIPs concerning SO 2 , and NO X annual emissions for Georgia. The Administrator's action will delete and reserve 40 CFR 52.584 and 40 CFR 52.585, relating to the CAIR FIP obligations for Georgia. The withdrawal of the CAIR FIPs for Georgia is a conforming amendment that must be made once the SIP is approved because EPA's authority to issue the FIPs was premised on a deficiency in the SIP for Georgia. Once a SIP is fully approved, EPA no longer has authority for the FIPs. Thus, EPA does not have the option of maintaining the FIPs following full SIP approval. Accordingly, EPA does not intend to offer an opportunity for a public hearing or an additional opportunity for written public comment on the withdrawal of the FIPs.

EPA proposed to approve Georgia's request to amend the SIP on August 2, 2007 (72 FR 42349). In that proposal, EPA also stated its intent to withdraw the FIP, as described above. The comment period closed on September 4, 2007. One comment was received and is addressed in Section V below. EPA is finalizing the approval as proposed based on the rationale stated in the proposal and in this final action.

CAIR was published by EPA on May 12, 2005 (70 FR 25162). In this rule, EPA determined that 28 States and the District of Columbia contribute significantly to nonattainment and interfere with maintenance of the NAAQS for PM 2.5 and/or 8-hour ozone in downwind States in the eastern part of the country. As a result, EPA required those upwind States to revise their SIPs to include control measures that reduce emissions of SO 2 , which is a precursor to PM 2.5 formation, and/or NO X , which is a precursor to both ozone and PM 2.5 formation. For jurisdictions that contribute significantly to downwind PM 2.5 nonattainment, CAIR sets annual State-wide emission reduction requirements (i.e., budgets) for SO 2 and annual State-wide emission reduction requirements for NO X . Similarly, for jurisdictions that contribute significantly to 8-hour ozone nonattainment, CAIR sets State-wide emission reduction requirements for NO X for the ozone season (May 1 to September 30). Under CAIR, States may implement these reduction requirements by participating in the EPA-administered cap-and-trade programs or by adopting any other control measures.

CAIR explains to subject States what must be included in SIPs to address the requirements of section 110(a)(2)(D) of the Clean Air Act (CAA) with regard to interstate transport with respect to the 8-hour ozone and PM 2.5 NAAQS. EPA made national findings, effective on May 25, 2005, that the States had failed to submit SIPs meeting the requirements of section 110(a)(2)(D). The SIPs were due in July 2000, 3 years after the promulgation of the 8-hour ozone and PM 2.5 NAAQS.

CAIR establishes State-wide emission budgets for SO 2 and NO X and is to be implemented in two phases. The first phase of NO X reductions starts in 2009 and continues through 2014, while the first phase of SO 2 reductions starts in 2010 and continues through 2014. The second phase of reductions for both NO X and SO 2 starts in 2015 and continues thereafter. CAIR requires States to implement the budgets by either: (1) Requiring EGUs to participate in the EPA-administered cap-and-trade programs; or (2) adopting other control measures of the State's choosing and demonstrating that such control measures will result in compliance with the applicable State SO 2 and NO X budgets.

The May 12, 2005, and April 28, 2006, CAIR rules provide model rules that States must adopt (with certain limited changes, if desired) if they want to participate in the EPA-administered trading programs.

With two exceptions, only States that choose to meet the requirements of CAIR through methods that exclusively regulate EGUs are allowed to participate in the EPA-administered trading programs. One exception is for States that adopt the opt-in provisions of the model rules to allow non-EGUs individually to opt into the EPA-administered trading programs. The other exception is for States that include all non-EGUs from their NO X SIP Call trading programs in their CAIR NO X ozone season trading programs.

In this action, EPA is taking final action to approve Georgia's SIP revision that adopts the budgets established for the State in CAIR, i.e. , 66,321 (2009-2014) and 55,268 (2015-thereafter) tons for NO X annual emissions, and 213,057 (2010-2014) and 149,140 (2015-thereafter) tons for SO 2 emissions. Georgia's SIP revision sets these budgets as the total amounts of allowances available for allocation for each year under the EPA-administered cap-and-trade programs.

The CAIR NO X annual and ozone season model trading rules both largely mirror the structure of the NO X SIP Call model trading rule in 40 CFR part 96, subparts A through I. While the provisions of the NO X annual and ozone season model rules are similar, there are some differences. For example, the NO X annual model rule (but not the NO X ozone season model rule) provides for a compliance supplement pool (CSP), which is discussed below and under which allowances may be awarded for early reductions of NO X annual emissions. As a further example, the NO X ozone season model rule reflects the fact that the CAIR NO X ozone season trading program replaces the NO X SIP Call trading program after the 2008 ozone season and is coordinated with the NO X SIP Call program. The NO X ozone season model rule provides incentives for early emissions reductions by allowing banked, pre-2009 NO X SIP Call allowances to be used for compliance in the CAIR NO X ozone season trading program. In addition, States have the option of continuing to meet their NO X SIP Call requirement by participating in the CAIR NO X ozone season trading program and including all their NO X SIP Call trading sources in that program.

The provisions of the CAIR SO 2 model rule are also similar to the provisions of the NO X annual and ozone season model rules. However, the SO 2 model rule is coordinated with the ongoing Acid Rain SO 2 cap-and-trade program under CAA title IV. The SO 2 model rule uses the title IV allowances for compliance, with each allowance allocated for 2010-2014 authorizing only 0.50 ton of emissions and each allowance allocated for 2015 and thereafter authorizing only 0.35 ton of emissions. Banked title IV allowances allocated for years before 2010 can be used at any time in the CAIR SO 2 cap-and-trade program, with each such allowance authorizing one ton of emissions. Title IV allowances are to be freely transferable among sources covered by the Acid Rain Program and sources covered by the CAIR SO 2 cap-and-trade program.

EPA also used the CAIR model trading rules as the basis for the trading programs in the CAIR FIPs. The CAIR FIP trading rules are virtually identical to the CAIR model trading rules, with changes made to account for Federal rather than State implementation. The CAIR model SO 2 , NO X annual, and NO X ozone season trading rules and the respective CAIR FIP trading rules are designed to work together as integrated SO 2 , NO X annual, and NO X ozone season trading programs.

In the SIP revision, Georgia has chosen to implement its CAIR budgets by requiring EGUs to participate in EPA-administered cap-and-trade programs for SO 2 and NO X annual emissions. Georgia has adopted a full SIP revision that adopts, with certain allowed changes discussed below, the CAIR model cap-and-trade rules for SO 2 and NO X annual emissions.

Under the NO X allowance allocation methodology in the CAIR model trading rules and in the CAIR FIPs, NO X annual and ozone season allowances are allocated to units that have operated for five years, based on heat input data from a three-year period that are adjusted for fuel type by using fuel factors of 1.0 for coal, 0.6 for oil, and 0.4 for other fuels. The CAIR model trading rules and the CAIR FIPs also provide a new unit set-aside from which units without five years of operation are allocated allowances based on the units' prior year emissions.

States may establish in their SIP submissions a different NO X allowance allocation methodology that will be used to allocate allowances to sources in the States if certain requirements are met concerning the timing of submission of units' allocations to the Administrator for recordation and the total amount of allowances allocated for each control period. In adopting alternative NO X allowance allocation methodologies, States have flexibility with regard to: (1) The cost to recipients of the allowances, which may be distributed for free or auctioned; (2) the frequency of allocations; (3) the basis for allocating allowances, which may be distributed, for example, based on historical heat input or electric and thermal output; and (4) the use of allowance set-asides and, if used, their size.

Georgia has chosen to replace the provisions of the CAIR NO X annual model trading rule concerning the allocation of NO X annual allowances with its own methodology. Georgia has chosen to distribute NO X annual allowances based upon allocation methods for both existing and new units. Georgia defines an existing unit as one that commences operation prior to January 1, 2006, rather than 2001 as in EPA's model rule. Georgia defines new sources as those that have commenced operation on or after January 1, 2006, and do not yet have a baseline heat input. Under Georgia's cap and trade program, allowances will be allocated to EGUs in an amount no greater than the NO X budget established in EPA's model rule. Allocations are based on the highest annual amount of heat input during a baseline period, using heat input figures that are fuel-adjusted as set forth in EPA's model rule. Allowances are initially allocated for 2010 through 2011 and are allocated on a year-by-year basis, about three years in advance, for 2012 and each subsequent year. The baseline period for initial allocations is 2001-2005, and will be updated annually for subsequent allocations. For years 2010 and thereafter, 97 percent of the budget will be allocated to existing sources, with the remaining three percent allocated to new sources. A new-unit set aside will be established for each control period, and will be allocated CAIR NO X allowances equal to 1,990 for control period 2009-2014. For control period 2015 and thereafter, the new-unit set aside will be allocated 1,658 CAIR NO X allowances. EPA is taking final action to approve these variations from the model rule provisions because the changes are consistent with the flexibility that CAIR provides States with regard to allocation methodologies.

CAIR establishes a compliance supplement pool to provide an incentive for early reductions in NO X annual emissions. The CSP consists of 200,000 CAIR NO X annual allowances of vintage 2009 for the entire CAIR region, and a State's share of the CSP is based upon the projected magnitude of the emission reductions required by CAIR in that State. States may distribute CSP allowances, one allowance for each ton of early reduction, to sources that make NO X reductions during 2007 or 2008 beyond what is required by any applicable State or Federal emission limitation. States also may distribute CSP allowances based upon a demonstration of need for an extension of the 2009 deadline for implementing emission controls.

The CAIR annual NO X model trading rule establishes specific methodologies for allocations of CSP allowances. States may choose an allowed, alternative CSP allocation methodology to be used to allocate CSP allowances to sources in the States.

Georgia has not chosen to modify the provisions from the CAIR NO X annual model trading rule concerning the allocation of allowances from the CSP. Georgia has chosen to distribute CSP allowances using the allocation methodology provided in 40 CFR 96.143 and has adopted this section by reference.

The opt-in provisions of the CAIR SIP model trading rules allow certain non-EGUs (i.e., boilers, combustion turbines, and other stationary fossil-fuel-fired devices) that do not meet the applicability criteria for a CAIR trading program to participate voluntarily in (i.e., opt into) the CAIR trading program. A non-EGU may opt into one or more of the CAIR trading programs. In order to qualify to opt into a CAIR trading program, a unit must vent all emissions through a stack and be able to meet monitoring, recordkeeping, and recording requirements of 40 CFR part 75. The owners and operators seeking to opt a unit into a CAIR trading program must apply for a CAIR opt-in permit. If the unit is issued a CAIR opt-in permit, the unit becomes a CAIR unit, is allocated allowances, and must meet the same allowance-holding and emissions monitoring and reporting requirements as other units subject to the CAIR trading program. The opt-in provisions provide for two methodologies for allocating allowances for opt-in units, one methodology that applies to opt-in units in general and a second methodology that allocates allowances only to opt-in units that the owners and operators intend to repower before January 1, 2015.

States have several options concerning the opt-in provisions. States may adopt the CAIR opt-in provisions entirely or may adopt them but exclude one of the methodologies for allocating allowances. States may also decline to adopt the opt-in provisions at all.

Georgia has chosen not to allow non-EGUs meeting certain requirements to opt into the CAIR SO 2 and CAIR NO X annual trading programs.

EPA received one comment letter from Summit Energy Partners, LLC (SEP-LLC). The following is a summary of the adverse comment received on the proposed rule published August 2, 2007, (72 FR 42349), and EPA's response to the comment.

Comment: SEP-LLC objected to Georgia's CAIR NO X annual trading program new unit allocation provisions. SEP-LLC commented that Georgia's rule is inadequate and unfairly biases against new renewable resources in the State. It objects to a new source NO X allocation methodology based on emission levels—a methodology it argues will not give renewable new sources a meaningful NO X allocation. SEP-LLC asks EPA to remand Georgia's rule back to the Georgia Environmental Protection Division and seek new unit allocation provisions which do not favor large coal-fired units over the smaller-scale renewable sources.

Response: Under CAIR, EPA allows States participating in the CAIR NO X trading programs to determine the methodology for allocating allowances to individual sources in that State, provided that certain specified requirements concerning the State NO X budgets and allocation timing are met. See 70 FR 25160, 25279 (May 12, 2005.) When reviewing CAIR SIP submissions, therefore, EPA does not review issues relating to the equity of, or other general public policy concerns (e.g., environmental impacts other than the effect on NO X emissions) that might be raised concerning, the State NO X allocation methodology. Instead, EPA reviews the State allocation methodology for compliance with the requirements of CAIR.

Under CAIR, EPA establishes emission budgets for each State, and States have the option of participating in trading programs to satisfy their NO X emission reduction requirements. Section 51.123(o) of CAIR provides that a State will be found to have demonstrated compliance with the State's annual NO X budget if it adopts regulations substantively identical to the CAIR NO X annual trading program model rule, or adopting regulations that differ substantively from that model rule in only a few specifically defined ways. One of the ways in which a State's annual NO X trading program rule may differ from the CAIR model rule relates to the methodology used to allocate CAIR NO X allowances. States participating in the CAIR annual NO X trading program are given the flexibility to select the methodology for allocating allowances to units in their State, including the flexibility to decide whether any allowances should be reserved for new units and, if they are reserved, how they should be allocated. There are some limitations on the flexibility to select an allocation methodology. In particular, the allocation methodology cannot result in total allocations for a year exceeding the applicable State budget. In addition, each State must include in its rules provisions requiring it to meet certain deadlines for determining the allocations for units and submitting the allocation determinations to the EPA Administrator, who will record the allocations in the allowance tracking system. See 40 CFR 51.123(o)(2)(ii).

In this case, EPA has determined that the NO X allocation methodology Georgia used to distribute its NO X allowances meets the above-described requirements of CAIR. The commenter does not assert that Georgia's methodology fails to meet these requirements. Because Georgia's revised SIP meet these, and the other, requirements of CAIR, EPA is approving Georgia's revised SIP.

EPA is taking final action to approve Georgia's full CAIR SIP revision submitted on March 28, 2007. Under this SIP revision, Georgia is choosing to participate in the EPA-administered cap-and-trade programs for SO 2 and NO X annual emissions. EPA has determined that the SIP revision meets the applicable requirements in 40 CFR 51.123(o) and (aa), with regard to NO X annual emissions, and 40 CFR 51.124(o), with regard to SO 2 emissions. EPA has determined that the SIP as revised will meet the requirements of CAIR. The Administrator of EPA will also issue, without providing an opportunity for a public hearing or an additional opportunity for written public comment, a final rule to withdraw the CAIR FIPs concerning SO 2 , NO X annual, and NO X ozone season emissions for CFR 52.584 and 40 CFR 52.585. EPA will take final action to withdraw the CAIR FIPs for Georgia in a separate rulemaking.

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit December 10, 2007. 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)).

On July 25, 2007 (72 FR 40776), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval of Pennsylvania's redesignation request, a SIP revision that establishes a maintenance plan for the Erie Area that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after redesignation, and a 2002 base year emissions inventory. The formal SIP revisions were submitted by PADEP on April 24, 2007. Other specific requirements of Pennsylvania's redesignation request SIP revision for the maintenance plan and the rationales for EPA's proposed actions are explained in the NPR and will not be restated here. No public comments were received on the NPR.

However, on December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard. (69 FR 23951, April 30, 2004). South Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). On June 8, 2007, in South Coast Air Quality Management Dist. v. EPA, Docket No. 04-1201, in response to several petitions for rehearing, the D.C. Circuit clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. Therefore, the Phase 1 Rule provisions related to classifications for areas currently classified under subpart 2 of Title I, part D of the CAA as 8-hour nonattainment areas, the 8-hour attainment dates and the timing for emissions reductions needed for attainment of the 8-hour ozone NAAQS remain effective. The June 8 decision left intact the Court's rejection of EPA's reasons for implementing the 8-hour standard in certain nonattainment areas under subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let stand EPA's revocation of the 1-hour standard and those anti-backsliding provisions of the Phase 1 Rule that had not been successfully challenged. The June 8 decision reaffirmed the December 22, 2006 decision that EPA had improperly failed to retain measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations: (1) Nonattainment area New Source Review (NSR) requirements based on an area's 1-hour nonattainment classification; (2) Section 185 penalty fees for 1-hour severe or extreme nonattainment areas; and (3) measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS. In addition the June 8 decision clarified that the Court's reference to conformity requirements for anti-backsliding purposes was limited to requiring the continued use of 1-hour MVEBs until 8-hour budgets were available for 8-hour conformity determinations, which is already required under EPA's conformity regulations. The Court thus clarified that 1-hour conformity determinations are not required for anti-backsliding purposes.

For the reasons set forth in the proposal, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation, and do not prevent EPA from finalizing this redesignation. EPA believes that the Court's December 22, 2006 and June 8, 2007 decisions impose no impediment to moving forward with redesignation of this area to attainment, because even in light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the CAA and longstanding policies regarding redesignation requests.

In its proposal, EPA proposed to find that the area had satisfied the requirements under the 1-hour standard whether the 1-hour standard was deemed to be reinstated or whether the Court's decision on the petition for rehearing were modified to require something less than compliance with all applicable 1-hour requirements. Because EPA proposed to find that the area satisfied the requirements under either scenario, EPA is proceeding to finalize the redesignation and to conclude that the area met the requirements under the 1-hour standard applicable for purposes of redesignation under the 8-hour standard. These include the provisions of EPA's anti-backsliding rules, as well as the additional anti-backsliding provisions identified by the Court in its rulings. In its June 8, 2007 decision the Court limited its vacatur so as to uphold those provisions of the anti-backsliding requirements that were not successfully challenged. Therefore, EPA finds that the area has met the anti-backsliding requirements, see 40 CFR 51.900 et seq; 70 FR 30592, 30604 (May 26, 2005) which apply by virtue of the area's classification for the 1-hour ozone NAAQS, as well as the four additional anti-backsliding provisions identified by the Court, or that such requirements are not applicable for purposes of redesignation. In addition, with respect to the requirement for transportation conformity under the 1-hour standard, the Court in its June 8 decision clarified that for those areas with 1-hour MVEBs, anti-backsliding requires only that those 1-hour budgets must be used for 8-hour conformity determinations until replaced by 8-hour budgets. To meet this requirement, conformity determinations in such areas must continue to comply with the applicable requirements of EPA's conformity regulations at 40 CFR Part 93. The court clarified that 1-hour conformity determinations are not required for anti-backsliding purposes.

EPA is approving the Commonwealth of Pennsylvania's redesignation request, maintenance plan, and the 2002 base year emissions inventory because the requirements for approval have been satisfied. EPA has evaluated Pennsylvania's redesignation request that was submitted on April 24, 2007 and determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes that the redesignation request and monitoring data demonstrate that the Erie Area has attained the 8-hour ozone standard. The final approval of this redesignation request will change the designation of the Erie Area from nonattainment to attainment for the 8-hour ozone standard. EPA is approving the maintenance plan for the Erie Area submitted on April 24, 2007 as a revision to the Pennsylvania SIP. EPA is also approving the MVEBs submitted by PADEP in conjunction with its redesignation request. In addition, EPA is approving the 2002 base year emissions inventory submitted by PADEP on April 24, 2007 as a revision to the Pennsylvania SIP. In this final rulemaking, EPA is notifying the public that we have found that the MVEBs for volatile organic compounds (VOC) and nitrogen oxides (NO X ) in the Erie Area for the 8-hour ozone maintenance plan are adequate and approved for conformity purposes. As a result of our finding, the Erie Area must use the MVEBs from the submitted 8-hour ozone maintenance plan for future conformity determinations. The adequate and approved MVEBs are provided in the following table:

The Erie Area is subject to the CAA's requirement for the basic nonattainment areas until and unless it is redesignated to attainment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 (“Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

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

The Congressional Review Act, 5 U.S.C. 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 . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 2007. 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, approving the redesignation of the Erie Area to attainment for the 8-hour ozone NAAQS, the associated maintenance plan, the 2002 base year emission inventory, and the MVEBs identified in the maintenance plan, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

EPA is approving revisions to the South Carolina SIP, submitted on August 14, 2007, and revised on September 19, 2007, that would modify the application of certain provisions of the CAIR FIPs concerning SO 2 , NO X annual, and NO X ozone season emissions. (As discussed below, this less comprehensive CAIR SIP is termed an abbreviated SIP.) South Carolina is subject to the CAIR FIPs that implement the CAIR requirements by requiring certain EGUs to participate in the EPA-administered Federal CAIR SO 2 , NO X annual, and NO X ozone season cap-and-trade programs. The SIP revision provides a methodology for allocating NO X allowances for the NO X annual and NO X ozone season trading programs. The CAIR FIPs provide that this methodology, if approved by EPA, will be used to allocate NO X allowances to sources in South Carolina, instead of the Federal allocation methodology otherwise provided in the FIP. The SIP revision also provides a methodology for allocating the compliance supplement pool in the CAIR NO X annual trading program, and allows for individual units not otherwise subject to the CAIR trading programs to opt into such trading programs. Specifically, EPA is approving South Carolina's SIP submission that includes the allocation methodologies for the CAIR NO X annual and NO X ozone season trading programs and CAIR FIP opt-in provisions. The SIP revision also addresses South Carolina's CSP provisions in the CAIR NO X annual trading program. Consistent with the flexibility provided in the FIPs, these provisions will also be used to replace or supplement, as appropriate, the corresponding provisions in the CAIR FIPs for South Carolina. EPA is not making any changes to the CAIR FIPs, but is amending the appropriate appendices in the CAIR FIP trading rules simply to note this approval.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed.

CAIR was published by EPA on May 12, 2005 (70 FR 25162). In this rule, EPA determined that 28 States and the District of Columbia contribute significantly to nonattainment and interfere with maintenance of the national ambient air quality standards (NAAQS) for fine particulates (PM 2.5 ) and/or 8-hour ozone in downwind States in the eastern part of the country. As a result, EPA required those upwind States to revise their SIPs to include control measures that reduce emissions of SO 2 , which is a precursor to PM 2.5 formation, and/or NO X , which is a precursor to both ozone and PM 2.5 formation. For jurisdictions that contribute significantly to downwind PM 2.5 nonattainment, CAIR sets annual State-wide emission reduction requirements ( i.e. , budgets) for SO 2 and annual State-wide emission reduction requirements for NO X . Similarly, for jurisdictions that contribute significantly to 8-hour ozone nonattainment, CAIR sets State-wide emission reduction requirements for NO X for the ozone season (May 1st to September 30th). Under CAIR, States may implement these emission budgets by participating in the EPA-administered cap-and-trade programs or by adopting any other control measures.

CAIR explains to subject States what must be included in SIPs to address the requirements of section 110(a)(2)(D) of the Clean Air Act (CAA) with regard to interstate transport with respect to the 8-hour ozone and PM 2.5 NAAQS. EPA made national findings, effective May 25, 2005, that the States had failed to submit SIPs meeting the requirements of section 110(a)(2)(D). The SIPs were due in July 2000, 3 years after the promulgation of the 8-hour ozone and PM 2.5 NAAQS. These findings started a 2-year clock for EPA to promulgate a FIP to address the requirements of section 110(a)(2)(D). Under CAA section 110(c)(1), EPA may issue a FIP anytime after such findings are made and must do so within two years, unless a SIP revision correcting the deficiency is approved by EPA before the FIP is promulgated.

On April 28, 2006, EPA promulgated FIPs for all States covered by CAIR in order to ensure the emissions reductions required by CAIR are achieved on schedule. Each CAIR State is subject to the FIPs until the State fully adopts, and EPA approves, a SIP revision meeting the requirements of CAIR. The CAIR FIPs require certain EGUs to participate in the EPA-administered CAIR SO 2 , NO X annual, and NO X ozone-season model trading programs, as appropriate. The CAIR FIP SO 2 , NO X annual, and NO X ozone season trading programs impose essentially the same requirements as, and are integrated with, the respective CAIR SIP trading programs. The integration of the CAIR FIP and SIP trading programs means that these trading programs will work together to create effectively a single trading program for each regulated pollutant (SO 2 , NO X annual, and NO X ozone season) in all States covered by a CAIR FIP or SIP trading program for that pollutant. The CAIR FIPs also allow States to submit abbreviated SIP revisions that, if approved by EPA, will automatically replace or supplement the corresponding CAIR FIP provisions (e.g., the methodology for allocating NO X allowances to sources in the state), while the CAIR FIP remains in place for all other provisions.

On April 28, 2006, EPA published two more CAIR-related final rules that added the States of Delaware and New Jersey to the list of States subject to CAIR for PM 2.5 and announced EPA's final decisions on reconsideration of five issues without making any substantive changes to the CAIR requirements.

CAIR establishes State-wide emission budgets for SO 2 and NO X and is to be implemented in two phases. The first phase of NO X reductions starts in 2009 and continues through 2014, while the first phase of SO 2 reductions starts in 2010 and continues through 2014. The second phase of reductions for both NO X and SO 2 starts in 2015 and continues thereafter. CAIR requires States to implement the budgets by either: (1) Requiring EGUs to participate in the EPA-administered cap-and-trade programs; or, (2) adopting other control measures of the State's choosing and demonstrating that such control measures will result in compliance with the applicable State SO 2 and NO X budgets.

The May 12, 2005 and April 28, 2006 CAIR rules provide model rules that States must adopt (with certain limited changes, if desired) if they want to participate in the EPA-administered trading programs.

With two exceptions, only States that choose to meet the requirements of CAIR through methods that exclusively regulate EGUs are allowed to participate in the EPA-administered trading programs. One exception is for States that adopt the opt-in provisions of the model rules to allow non-EGUs individually to opt into the EPA-administered trading programs. The other exception is for States that include all non-EGUs from their NO X SIP Call trading programs in their CAIR NO X ozone season trading programs.

States have the flexibility to choose the type of control measures they will use to meet the requirements of CAIR. EPA anticipates that most States will choose to meet the CAIR requirements by selecting an option that requires EGUs to participate in the EPA-administered CAIR cap-and-trade programs. For such States, EPA has provided two approaches for submitting and obtaining approval for CAIR SIP revisions. States may submit full SIP revisions that adopt the model CAIR cap-and-trade rules. If approved, these SIP revisions will fully replace the CAIR FIPs. Alternatively, States may submit abbreviated SIP revisions. These SIP revisions will not replace the CAIR FIPs; however, the CAIR FIPs provide that, when approved, the provisions in these abbreviated SIP revisions will be used instead of or in conjunction with, as appropriate, the corresponding provisions of the CAIR FIPs (e.g., the NO X allowance allocation methodology).

A State submitting an abbreviated SIP revision, may submit limited SIP revisions to tailor the CAIR FIP cap-and-trade programs to the State submitting the revision. Specifically, an abbreviated SIP revision may establish certain applicability and allowance allocation provisions that, the CAIR FIPs provide, will be used instead of or in conjunction with the corresponding provisions in the CAIR FIP rules in that State. Specifically, the abbreviated SIP revisions may:

1. Include NO X SIP Call trading sources that are not EGUs under CAIR in the CAIR FIP NO X ozone season trading program;

2. Provide for allocation of NO X annual or ozone season allowances by the State, rather than the Administrator of the EPA or the Administrator's duly authorized representative (Administrator), and using a methodology chosen by the State;

3. Provide for allocation of NO X annual allowances from the CSP by the State, rather than by the Administrator, and using the State's choice of allowed, alternative methodologies; or

4. Allow units that are not otherwise CAIR units to opt individually into the CAIR FIP cap-and-trade programs under the opt-in provisions in the CAIR FIP rules.

Abbreviated SIP revisions can be submitted in lieu of, or as part of, CAIR full SIP revisions. States may want to designate part of their full SIP as an abbreviated SIP for EPA to act on first when the timing of the State's submission might not provide EPA with sufficient time to approve the full SIP prior to the deadline for recording NO X allocations. This will help ensure that the elements of the trading programs where flexibility is allowed are implemented according to the State's decisions. Submission of an abbreviated SIP revision does not preclude future submission of a CAIR full SIP revision. In this case, the September 19, 2007, submittal from South Carolina has been submitted as an abbreviated SIP revision.

The CAIR NO X annual and ozone season budgets were developed from historical heat input data for EGUs. Using these data, EPA calculated annual and ozone season regional heat input values, which were multiplied by 0.15 pounds per million British thermal units (lb/mmBtu), for phase 1, and 0.125 lb/mmBtu, for phase 2, to obtain regional NO X budgets for 2009-2014 and for 2015 and thereafter, respectively. EPA derived the State NO X annual and ozone season budgets from the regional budgets using State heat input data adjusted by fuel factors.

The CAIR State SO 2 budgets were derived by discounting the tonnage of emissions authorized by annual allowance allocations under the Acid Rain Program under title IV of the CAA. Under CAIR, each allowance allocated under the Acid Rain Program for the years in phase 1 of CAIR (2010 through 2014) authorizes 0.50 ton of SO 2 emissions in the CAIR trading program, and each Acid Rain Program allowance allocated for the years in phase 2 of CAIR (2015 and thereafter) authorizes 0.35 ton of SO 2 emissions in the CAIR trading program.

The CAIR FIPs established the budgets for South Carolina as 32,662 tons for NO X annual emissions for 2009-2014 and 27,219 tons for NO X annual emissions for 2015 and thereafter, 15,249 tons for NO X ozone season emissions for 2009-2014 and 12,707 tons for NO X ozone season emissions for 2015 and thereafter, and 57,271 tons for SO 2 emissions for 2009-2014 and 40,089 tons for SO 2 emissions for 2015 and thereafter. South Carolina's SIP revision, being approved in this action, does not affect these budgets, which are total amounts of allowances available for allocation for each year under the EPA-administered cap-and-trade programs under the CAIR FIPs. In short, the abbreviated SIP revision only affects allocations of allowances under the established budgets.

The CAIR NO X annual and ozone-season FIPs both largely mirror the structure of the NO X SIP Call model trading rule in 40 CFR part 96, subparts A through I. While the provisions of the NO X annual and ozone-season FIPs are similar, there are some differences. For example, the NO X annual FIP (but not the NO X ozone season FIP) provides for a CSP, which is discussed below and under which allowances may be awarded for early reductions of NO X annual emissions. As a further example, the NO X ozone season FIP reflects the fact that the CAIR NO X ozone season trading program replaces the NO X SIP Call trading program after the 2008 ozone season and is coordinated with the NO X SIP Call program. The NO X ozone season FIP provides incentives for early emissions reductions by allowing banked, pre-2009 NO X SIP Call allowances to be used for compliance in the CAIR NO X ozone-season trading program. In addition, States have the option of continuing to meet their NO X SIP Call requirement by participating in the CAIR NO X ozone season trading program and including all their NO X SIP Call trading sources in that program.

The provisions of the CAIR SO 2 FIP are also similar to the provisions of the NO X annual and ozone season FIPs. However, the SO 2 FIP is coordinated with the ongoing Acid Rain SO 2 cap-and-trade program under CAA title IV. The SO 2 FIP uses the title IV allowances for compliance, with each allowance allocated for 2010-2014 authorizing only 0.50 ton of emissions and each allowance allocated for 2015 and thereafter authorizing only 0.35 ton of emissions. Banked title IV allowances allocated for years before 2010 can be used at any time in the CAIR SO 2 cap-and-trade program, with each such allowance authorizing 1 ton of emissions. Title IV allowances are to be freely transferable among sources covered by the Acid Rain Program and sources covered by the CAIR SO 2 cap-and-trade program.

EPA used the CAIR model trading rules as the basis for the trading programs in the CAIR FIPs. The CAIR FIP trading rules are virtually identical to the CAIR model trading rules, with changes made to account for federal rather than state implementation. The CAIR model SO 2 , NO X annual, and NO X ozone season trading rules and the respective CAIR FIP trading rules are designed to work together as integrated SO 2 , NO X annual, and NO X ozone season trading programs.

South Carolina is subject to the CAIR FIPs for ozone and PM 2.5 and the CAIR FIP trading programs for SO 2 , NO X annual, and NO X ozone season which apply to sources in South Carolina. Consistent with the flexibility they give to States, the CAIR FIPs provide that States may submit abbreviated SIP revisions that will replace or supplement, as appropriate, certain provisions of the CAIR FIP trading programs. The August 14, 2007, submission of South Carolina is such an abbreviated SIP revision.

In general, the CAIR FIP trading programs apply to any stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine serving at any time, since the later of November 15, 1990, or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 megawatt electrical (MWe) producing electricity for sale.

States have the option of bringing in, for the CAIR NO X ozone season program only, those units in the State's NO X SIP Call trading program that are not EGUs as defined under CAIR. EPA advises States exercising this option to use provisions for applicability that are substantively identical to the provisions in 40 CFR 96.304 and add the applicability provisions in the State's NO X SIP Call trading rule for non-EGUs to the applicability provisions in 40 CFR 96.304 in order to include in the CAIR NO X ozone season trading program all units required to be in the State's NO X SIP Call trading program that are not already included under 40 CFR 96.304. Under this option, the CAIR NO X ozone season program must cover all large industrial boilers and combustion turbines, as well as any small EGUs (i.e., units serving a generator with a nameplate capacity of 25 MWe or less), that the State currently requires to be in the NO X SIP Call trading program.

Consistent with the flexibility given to States in the CAIR FIPs, in the abbreviated SIP revision being approved in today's action, South Carolina has not chosen to expand the applicability provisions of the CAIR NO X ozone season trading program to include all non-EGUs in the State's NO X SIP Call trading program. EPA notes that South Carolina has indicated that it intends to submit subsequently a full SIP revision that expands the applicability provisions of the CAIR NO X ozone season trading program in this manner.

Under the NO X allowance allocation methodology in the CAIR model trading rules and in the CAIR FIPs, NO X annual and ozone season allowances are allocated to units that have operated for five years, based on heat input data from a three-year period that are adjusted for fuel type by using fuel factors of 1.0 for coal, 0.6 for oil, and 0.4 for other fuels. The CAIR model trading rules and the CAIR FIPs also provide a new unit set-aside from which units without five years of operation are allocated allowances based on the units' prior year emissions.

The CAIR FIPs provide States the flexibility to establish a different NO X allowance allocation methodology that will be used to allocate allowances to sources in the States if certain requirements are met concerning the timing of submission of units' allocations to the Administrator for recordation and the total amount of allowances allocated for each control period. In adopting alternative NO X allowance allocation methodologies, States have flexibility with regard to:

1. The cost to recipients of the allowances, which may be distributed for free or auctioned;

2. The frequency of allocations;

3. The basis for allocating allowances, which may be distributed, for example, based on historical heat input or electric and thermal output; and

4. The use of allowance set-asides and, if used, their size.

Consistent with the flexibility given to States in the CAIR FIPs, South Carolina has chosen to replace the provisions of the CAIR NO X annual FIP concerning the allocation of NO X annual allowances with its own methodology. South Carolina has chosen to distribute NO X annual allowances by adopting, with certain revisions, the CAIR NO X annual trading program model rule at 40 CFR 96.141 and 96.142.

Consistent with the flexibility given to States in the CAIR FIPs, South Carolina has chosen to replace the provisions of the CAIR NO X ozone season FIP concerning allowance allocations with their own methodology. South Carolina has chosen to distribute NO X ozone season allowances by adopting, with certain revisions, the CAIR NO X ozone season trading program model rule at 40 CFR 96.341 and 96.342.

The CSP provides an incentive for early reductions in NO X annual emissions. The CSP consists of 200,000 CAIR NO X annual allowances of vintage 2009 for the entire CAIR region, and a State's share of the CSP is based upon the State's share of the projected emission reductions under CAIR. States may distribute CSP allowances, one allowance for each ton of early reduction, to sources that make NO X reductions during 2007 or 2008 beyond what is required by any applicable State or Federal emission limitation. States also may distribute CSP allowances based upon a demonstration of need for an extension of the 2009 deadline for implementing emission controls.

The CAIR NO X annual FIP establishes specific methodologies for allocations of CSP allowances. States may choose an allowed, alternative CSP allocation methodology to be used to allocate CSP allowances to sources in those States.

Consistent with the flexibility given to States in the FIP, South Carolina has chosen to modify the provisions of the CAIR NO X annual FIP concerning the allocation of allowances from the CSP. South Carolina has chosen to distribute CSP allowances by adopting, with certain revisions, the CAIR NO X annual CSP provisions in the model rule at 40 CFR 96.143.

The opt-in provisions allow for certain non-EGUs (i.e., boilers, combustion turbines, and other stationary fossil-fuel-fired devices) that do not meet the applicability criteria for a CAIR trading program to participate voluntarily in (i.e., opt into) the CAIR trading program. A non-EGU may opt into one or more of the CAIR trading programs. In order to qualify to opt into a CAIR trading program, a unit must vent all emissions through a stack and be able to meet monitoring, recordkeeping, and recording requirements of 40 CFR part 75. The owners and operators seeking to opt a unit into a CAIR trading program must apply for a CAIR opt-in permit. If the unit is issued a CAIR opt-in permit, the unit becomes a CAIR unit, is allocated allowances, and must meet the same allowance-holding and emissions monitoring and reporting requirements as other units subject to the CAIR trading program. The opt-in provisions provide for two methodologies for allocating allowances for opt-in units, one methodology that applies to opt-in units in general and a second methodology that allocates allowances only to opt-in units that the owners and operators intend to repower before January 1, 2015.

States have several options concerning the opt-in provisions. The rules for each of the CAIR FIP trading programs include opt-in provisions that are essentially the same as those in the respective CAIR SIP model rules, except that the CAIR FIP opt-in provisions become effective in a State only if the State's abbreviated SIP revision adopts the opt-in provisions. The State may adopt the opt-in provisions entirely or may adopt them but exclude one of the allowance allocation methodologies. The State also has the option of not adopting any opt-in provisions in the abbreviated SIP revision and thereby providing for the CAIR FIPs trading program to be implemented in the State without the ability for units to opt into the program.

Consistent with the flexibility given to States in the FIPs, South Carolina has chosen to allow non-EGUs meeting certain requirements to participate in the CAIR NO X annual trading program. The South Carolina rule allows for both of the opt-in allocation methods as specified in 40 CFR part 97 Subpart II of the CAIR NO X annual trading program.

Consistent with the flexibility given to States in the FIPs, South Carolina has chosen to permit non-EGUs meeting certain requirements to participate in the CAIR NO X ozone season trading program. The South Carolina rule allows for both of the opt-in allocation methods as specified in 40 CFR part 97 Subpart IIII of the CAIR NO X ozone season trading program.

Consistent with the flexibility given to States in the FIPs, South Carolina has chosen to allow certain non-EGUs to opt into the CAIR SO 2 trading program. The South Carolina rule allows for both of the opt-in allocation methods as specified in 40 CFR part 97 Subpart III of the CAIR SO 2 trading program.

EPA is approving South Carolina's abbreviated CAIR SIP revisions submitted on September 19, 2007. South Carolina is covered by the CAIR FIPs, which requires participation in the EPA-administered CAIR FIP cap-and-trade programs for SO 2 , NO X annual, and NO X ozone season emissions. Under these abbreviated SIP revisions and consistent with the flexibility given to States in the FIPs, South Carolina adopts provisions for allocating allowances under the CAIR FIP NO X annual and ozone season trading programs. EPA is approving South Carolina's CAIR NO X annual and ozone season allocation provisions for units subject to the CAIR trading programs under the current CAIR FIP NO X annual and ozone season applicability provisions. In addition, South Carolina adopts in the abbreviated SIP revision provisions that establish a methodology for allocating allowances in the CSP and allow for individual non-EGUs to opt into the CAIR FIP SO 2 , NO X annual, and NO X ozone season cap-and-trade programs. EPA is approving South Carolina's allowing for opt-in units and therefore the application of the opt-in provisions in these CAIR FIP trading programs to units in South Carolina.

As provided for in the CAIR FIPs, these provisions in the abbreviated SIP revision will replace or supplement the corresponding provisions of the CAIR FIPs in South Carolina. The abbreviated SIP revision meets the applicable requirements in 40 CFR 51.123(p) and (ee), with regard to NO X annual and NO X ozone season emissions, and 40 CFR 51.124(r), with regard to SO 2 emissions. EPA is not making any changes to the CAIR FIPs, but is amending the appropriate appendices in the CAIR FIP trading rules simply to note this approval.

EPA is approving the aforementioned changes to the SIP. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective December 10, 2007 without further notice unless the Agency receives adverse comments by November 8, 2007.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on December 10, 2007 and no further action will be taken on the proposed rule.

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 2007. 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)).

Entities Potentially Affected by this Action. The entities potentially affected by this action include industrial facilities that use the respective consumer and commercial products covered in this action as follows:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the appropriate EPA contact listed in the FOR FURTHER INFORMATION CONTACT section of this notice.

In addition to being available in the docket, an electronic copy of this final action will also be available on the Worldwide Web (WWW) through the Technology Transfer Network (TTN). Following signature, a copy of the final action will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address: http://www.epa.gov/ttn/oarpg/. The TTN provides information and technology exchange in various areas of air pollution control.

Under section 307(b)(1) of the CAA, judicial review of EPA's listing and final determination is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by December 10, 2007. Under section 307(d)(7)(B) of the CAA, only an objection to the final determination that was raised with reasonable specificity during the period for public comment can be raised during judicial review.

The information presented in this document is organized as follows:

Ground-level ozone, a major component of smog, is formed in the atmosphere by reactions of volatile organic compounds (VOC) and oxides of nitrogen in the presence of sunlight. The formation of ground-level ozone is a complex process that is affected by many variables.

Exposure to ground-level ozone is associated with a wide variety of human health effects, as well as agricultural crop loss, and damage to forests and ecosystems. Controlled human exposure studies show that acute health effects are induced by short-term (1 to 2 hour) exposures (observed at concentrations as low as 0.12 parts per million (ppm)), generally while individuals are engaged in moderate or heavy exertion, and by prolonged (6 to 8 hour) exposures to ozone (observed at concentrations as low as 0.08 ppm and possibly lower), typically while individuals are engaged in moderate exertion. Transient effects from acute exposures include pulmonary inflammation, respiratory symptoms, effects on exercise performance, and increased airway responsiveness. Epidemiological studies have shown associations between ambient ozone levels and increased susceptibility to respiratory infection, increased hospital admissions and emergency room visits. Groups at increased risk of experiencing elevated exposures include active children, outdoor workers, and others who regularly engage in outdoor activities. Those most susceptible to the effects of ozone include those with preexisting respiratory disease, children, and older adults. The literature suggests the possibility that long-term exposures to ozone may cause chronic health effects (e.g., structural damage to lung tissue and accelerated decline in baseline lung function).

Under section 183(e) of the CAA, EPA conducted a study of VOC emissions from the use of consumer and commercial products to assess their potential to contribute to levels of ozone that violate the National Ambient Air Quality Standards (NAAQS) for ozone, and to establish criteria for regulating VOC emissions from these products. Section 183(e) of the CAA directs EPA to list for regulation those categories of products that account for at least 80 percent of the VOC emissions, on a reactivity-adjusted basis, from consumer and commercial products in areas that violate the NAAQS for ozone (i.e., ozone nonattainment areas), and to divide the list of categories to be regulated into four groups. EPA published the initial list in the Federal Register on March 23, 1995 (60 FR 15264). In that notice, EPA stated that it may amend the list of products for regulation, and the groups of product categories, in order to achieve an effective regulatory program in accordance with the Agency's discretion under CAA section 183(e).

EPA has revised the list several times. See 70 FR 69759 (November 17, 2005); 64 FR 13422 (March 18, 1999). Most recently, in May 2006, EPA revised the list to add one product category, portable fuel containers, and to remove one product category, petroleum dry cleaning solvents. See 71 FR 28320 (May 16, 2006). As a result of these revisions, Group III of the list comprises five product categories: portable fuel containers; aerosol spray paints; paper, film, and foil coatings; metal furniture coatings; and large appliance coatings. Pursuant to the court's order in Sierra Club v. EPA, 1:01-cv-01597-PLF (D.C. Cir., March 31, 2006), EPA must take final action on the product categories in Group III by September 30, 2007. The portable fuel containers and aerosol spray paints categories are addressed in separate rulemaking actions. 1 The remaining three categories in Group III are the subject of this action. On July 10, 2007, EPA published its proposed determination that a CTG is substantially as effective as a regulation for each of these three categories and announced availability of draft CTGs for paper, film, and foil coatings; metal furniture coating; and large appliance coatings. See 72 FR 37582.

Any regulations issued under CAA section 183(e) must be based on “best available controls (BAC).” CAA section 183(e)(1)(A) defines BAC as “the degree of emissions reduction that the Administrator determines, on the basis of technological and economic feasibility, health, environmental, and energy impacts, is achievable through the application of the most effective equipment, measures, processes, methods, systems or techniques, including chemical reformulation, product or feedstock substitution, repackaging, and directions for use, consumption, storage, or disposal.” CAA section 183(e) also provides EPA with authority to use any system or systems of regulation that EPA determines is the most appropriate for the product category. Under these provisions, EPA has previously issued “national” regulations for autobody refinishing coatings, consumer products, architectural coatings, and portable fuel containers. 2

CAA section 183(e)(3)(C) further provides that EPA may issue a CTG in lieu of a national regulation for a product category where EPA determines that the CTG will be “substantially as effective as regulations” in reducing emissions of VOC in ozone nonattainment areas. The statute does not specify how EPA is to make this determination, but does provide a fundamental distinction between national regulations and CTGs.

Specifically, for national regulations, CAA section 183(e) defines regulated entities as:

Thus, under CAA section 183(e), a regulation for consumer or commercial products is limited to measures applicable to manufacturers, processors, distributors, or importers of consumer and commercial products supplied to the consumer or industry. CAA section 183(e) does not authorize EPA to issue national regulations that would directly regulate end-users of these products. By contrast, CTGs are guidance documents that recommend reasonably available control technology (RACT) measures that States can adopt and apply to the end users of products. This dichotomy (i.e., that EPA cannot directly regulate end-users under CAA section 183(e), but can address end-users through a CTG) created by Congress is relevant to EPA's evaluation of the relative merits of a national regulation versus a CTG.

CAA section 172(c)(1) provides that state implementation plans (SIPs) for nonattainment areas must include “reasonably available control measures (RACM),” including RACT, for sources of emissions. CAA section 182(b)(2)(A) provides that for certain nonattainment areas, States must revise their SIPs to include RACT for each category of VOC sources covered by a CTG document issued between November 15, 1990, and the date of attainment. States subject only to the RACT requirements in CAA section 172(c)(1) may take action in response to this guidance, as necessary to achieve attainment of the national primary ambient air quality standards.

EPA defines RACT as “the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility, 44 FR 53761 (September 17, 1979).” In subsequent notices, EPA has addressed how States can meet the RACT requirements of the Act. Significantly, RACT for a particular industry is determined on a case-by-case basis, considering issues of technological and economic feasibility.

EPA provides States with guidance concerning what types of controls could constitute RACT for a given source category through issuance of a CTG. The recommendations in the CTG are based on available data and information and may not apply to a particular situation based upon the circumstances of a specific source. States can follow the CTG and adopt State regulations to implement the recommendations contained therein, or they can adopt alternative approaches. In either event, States must submit their RACT rules to EPA for review and approval as part of the SIP process. EPA will evaluate the rules and determine, through notice and comment rulemaking in the SIP approval process, whether the submitted rules meet the RACT requirements of the CAA and EPA's regulations. To the extent a State adopts any of the recommendations in a CTG into its State RACT rules, interested parties can raise questions and objections about the substance of the guidance and the appropriateness of the application of the guidance to a particular situation during the development of the State rules and EPA's SIP approval process.

We encourage States in developing their RACT rules to consider carefully the facts and circumstances of the particular sources in their States because, as noted above, RACT is determined on a case-by-case basis, considering issues of technological and economic feasibility. For example, a State may decide not to require 90 percent control efficiency at facilities that are already well controlled, if the additional emission reductions would not be cost-effective. States may also want to consider reactivity-based approaches, as appropriate, in developing their RACT regulations. 3 Finally, if States consider requiring more stringent VOC content limits than those recommended in the CTGs, States may also wish to consider averaging, as appropriate. In general, the RACT requirement is applied on a short-term basis up to 24 hours. 4 However, EPA guidance addresses averaging times longer than 24 hours under certain conditions. 5 The EPA's “Economic Incentive Policy”  6 provides guidance on use of long-term averages with regard to RACT and generally provides for averaging times of no greater than 30 days. Thus, if the appropriate conditions are present, States may wish to consider the use of averaging in conjunction with more stringent limits. Because of the nature of averaging, however, we would expect that any State RACT Rules that allow for averaging also include appropriate recordkeeping and reporting requirements.

By this action, we are issuing final CTGs that cover three product categories in Group III of the CAA section 183(e) list. These CTGs are guidance to the States and provide recommendations only. A State can determine what constitutes RACT for these three product categories, and EPA will review the State's rules reflecting RACT in the context of the SIP process and determine whether those rules meet the RACT requirements of the Act and its implementing regulations.

Finally, CAA section 182(b)(2) provides that a CTG issued after 1990 specify the date by which a State must submit a SIP revision in response to the CTG. In the CTGs at issue here, EPA provides that States should submit their SIP revisions within 1 year of the date that the CTGs are finalized.

The final CTG has been revised to provide separate applicability recommendations for coating operations and cleaning operations. For coating operations, we have changed the applicability recommendation to apply to individual coating lines. Specifically, we recommend that the control measures recommended in the final CTG apply to any coating line with the potential to emit 25 tons or more per year (tpy) of VOC, before consideration of control. This applicability level for coating operations is the same applicability level that we recommended for coatings, inks and adhesives in the final CTG for flexible package printing and for heatset dryers in the final CTG for offset lithographic printing and letterpress printing.

We made this change in response to a comment that the cost of using add-on controls to control coating emissions from an individual coating line with potential to emit of 3 tpy would be unreasonable compared to the emission reduction that would be achieved and that it would be even more costly to control multiple coating lines with total potential to emit of 3 tpy. The commenter provided information on the cost of controlling an individual coating line with the potential to emit 3 tpy. The commenter also provided information on the cost of controlling an individual coating line with the potential to emit 25 tpy. We agree with the commenter that, for purposes of recommending an applicability threshold for add-on controls, it is more appropriate to examine the cost of add-on control for a single coating line than the cost of add-on control for all of the coating lines at a facility because the number of coating lines at a facility varies. Based on the information provided by the commenter and similar cost analyses we performed during the development of the CTG for flexible package printing and the CTG for offset lithographic printing and letterpress printing, we conclude that add-on control for a coating line with the potential to emit 25 or more tpy will generally be cost effective and that add-on control for a coating line with the potential to emit below 25 tpy will generally be too costly for the emission reduction that would be achieved.

We continue to recommend that the final CTG work practice recommendations for cleaning apply to paper, film and foil coating facilities with actual emissions of 6.8 kg/day (15 lb/day) or more, before consideration of controls, from all covered paper, film and foil coating operations and related cleaning activities at the facility. Since work practices are carried out on a facility-wide basis, we believe it is most appropriate for the applicability of work practices to be determined on a facility-wide basis.

We expect the change to our applicability recommendation, as reflected in the final CTGs, to have little, if any, effect on VOC emission reductions from this category. Because the majority of emissions from paper, film, and foil coating come from coating lines emitting more than 25 tpy VOC before consideration of control, we anticipate that the change to our applicability recommendation in the final CTG will have a negligible impact on the VOC emission reduction estimates presented at proposal. Therefore, our determination that the CTG will be substantially as effective as a national regulation for this category is not affected by this change.

We have also clarified in the final CTG that (1) daily within-line averaging, and (2) using low VOC coatings in conjunction with capture and control devices are viable options for achieving the recommended limits for coating operations in the final CTG. These types of compliance options were available in the 1977 CTG and are present in most existing RACT regulations.

EPA has changed the low VOC content coatings recommendation in both the final metal furniture coatings CTG and the final large appliance coatings CTG. The draft CTGs for these product categories recommended an emissions limit of 0.275 kg VOC/l (2.3 lbs/gal) of coating, excluding water and exempt compounds, as applied. This recommendation was based on the California South Coast Air Quality Management District (South Coast) regulations limiting VOC emissions from general purpose baked coatings used in metal products coating operations. Based on the public comments, we determined that the recommendation in the draft CTG may inadvertently exclude certain coatings that are needed in the metal furniture and large appliance industries. Therefore, in the final CTGs, we have added to our recommendations other provisions of the South Coast regulation, which is the regulation that formed the basis of our recommendations in the draft CTGs. The additional provisions of the South Coast regulation that we are now recommending include separate VOC limits for certain specialty coatings and exemptions for certain specialty coating operations. We believe that these other provisions of the South Coast regulation are necessary to accommodate the range of coatings that are needed in the metal furniture and large appliance industries.

Specifically, consistent with the South Coast regulation, the final CTGs for metal furniture coatings and large appliance coatings include separate recommended limits for baked coatings and air-dried coatings in the following categories: general, one component; general, multi-component; extreme high gloss; extreme performance; heat resistant; metallic; pretreatment; and solar absorbent. Also, consistent with the South Coast regulation, EPA recommends that the following types of specialty coatings and coating operations be exempt from VOC content limits: stencil coatings; safety-indicating coatings; solid-film lubricants; electric-insulating and thermal-conducting coatings; touch-up and repair coatings; and coating application utilizing hand-held aerosol cans. Further details of these recommendations can be found in the CTGs.

Because the majority of liquid coatings used in metal furniture and large appliance coating operations fall into the “general, one component” coatings category, for which the recommended limits are unchanged from the limit recommended in the draft CTGs, we do not anticipate that the changes made in the final CTG will significantly alter the VOC emission reduction estimates presented at proposal. Therefore, the changes described above do not affect our determination that CTGs will be substantially as effective as national regulations for metal furniture coatings and large appliance coating.

We have also clarified in the final CTGs that (1) daily within-coating unit averaging, and (2) using low VOC coatings in conjunction with capture and control devices are viable options for achieving the recommended limits for coating operations in the final CTGs. These types of compliance options were available in the 1977 CTGs and are present in most existing RACT regulations.

With the exception of one commenter, all other commenters that addressed EPA's proposed CAA section 183(e)(3)(C) determination that CTGs will be substantially as effective as national regulations in reducing emissions of VOC in ozone nonattainment areas from the three product categories associated with this action agreed with the proposed determination.

In support of the proposed determination and use of CTGs, commenters remarked that the CTG approach would afford industry flexibility to achieve VOC emission reductions while not compromising their ability to meet customer needs. We also received specific comments agreeing with EPA's position that State regulation of facilities that apply the coatings covered by the CTGs will result in a greater volume of emission reductions than would limiting the VOC content of the products through a national regulation. Finally, we received comments noting that the use of CTGs allows States greater flexibility to tailor regulatory requirements to their specific circumstances. The commenter stated that site-specific factors necessitate the need for flexible controls. Because there can be great variation in the operations of facilities and the environmental conditions in which they operate, State regulators should be granted some latitude to fashion control strategies to address the variables that are inherent to the formation of ground-level ozone in their States. The commenter concluded that the CTG approach affords this flexibility by allowing the use of a variety of mechanisms to achieve emission reductions, including the use of low-VOC coatings, add-on control devices, work practice standards, restrictive permitting, averaging of materials, and vapor pressure and reactivity measures.

The only adverse comment on the determination that we received asserted that CTGs will not be effective because they are voluntary measures. We disagree with the commenter. CAA section 183(e)(3)(C) specifically authorizes EPA to issue CTGs, which are guidance, in lieu of national regulations if EPA determines that the CTGs will be as substantially as effective as regulations in reducing emissions of VOC in ozone nonattainment areas. In our proposal, we presented the rationale for our determination that a CTG is substantially as effective as a rule for each of the three categories here. The commenter raised no concerns or issues with that rationale. Furthermore, the commenter is incorrect in comparing CTGs to voluntary measures. As discussed in section I.B. of this notice, the CTGs contain recommendations. Certain States must revise their SIP to include RACT for paper film and foil coatings, metal furniture coatings, and large appliance coatings, as a result of EPA's issuance of the CTGs for these three categories. The CTGs provide States with guidance from EPA concerning the types of controls that could constitute RACT for these three product categories. Because the recommendations in the CTG are based on available data and information, they may not apply to a particular situation based upon the circumstances. States have the flexibility to either adopt EPA's recommendations in the CTGs as RACT or develop alternative approaches that are better suited for the sources within their States. In either event, States must submit their RACT rules to EPA for review and approval as part of the notice and comment SIP process. Finally, Congress was well aware of the nature and structure of CTGs when it included CAA section 183(e)(3)(C) in the statute, affording EPA the opportunity to issue CTGs in lieu of national regulations. EPA acted consistently with the CAA in issuing the determination, and the commenter has not challenged the rationale that EPA provided in support of that determination.

Under EO 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action,” since it is deemed to raise novel legal or policy issues. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under EO 12866, and any changes made in response to OMB recommendations have been documented in the docket for this action.

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

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.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (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 this final rule on small entities, I certify 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. EPA is taking final action to list the three Group III consumer and commercial product categories addressed in this notice for purposes of CAA section 183(e) of the Act. The listing action alone does not impose any regulatory requirements. EPA has also determined that, for each of the three product categories at issue, a CTG will be substantially as effective as a national regulation in achieving VOC emission reductions in ozone nonattainment areas. This final determination means that EPA has concluded that it is not appropriate to issue Federal regulations under CAA section 183(e) to regulate VOC emissions from these three product categories. Instead, EPA has concluded that it is appropriate to issue guidance in the form of CTGs that provide recommendations to States concerning potential methods to achieve needed VOC emission reductions from these product categories. In addition to the final determination, EPA is also announcing availability of the final CTGs for these three product categories. These CTGs are guidance documents. EPA does not directly regulate any small entities through the issuance of a CTG. Instead, EPA issues CTG to provide States with guidance on developing appropriate regulations to obtain VOC emission reductions from the affected sources within certain nonattainment areas. EPA's issuance of a CTG does trigger an obligation on the part of certain States to issue State regulations, but States are not obligated to issue regulations identical to the Agency's CTG. States may follow the guidance in the CTG or deviate from it, and the ultimate determination of whether a State regulation meets the RACT requirements of the CAA would be determined through notice and comment rulemaking in the Agency's action on each State's State Implementation Plan. Thus, States retain discretion in determining to what degree to follow the CTGs.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 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 to 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.

This 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 because they impose no enforceable duty on any State, local, or tribal governments or the private sector. ( Note : The term “enforceable duty” does not include duties and conditions in voluntary Federal contracts for goods and services.) Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA. In addition, we have determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments because they contain no regulatory requirements that apply to such governments or impose obligations upon them. Therefore, this action is not subject to the requirements of section 203 of UMRA.

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 EO 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. The CAA establishes the relationship between the Federal Government and the States, and this action does not impact that relationship. Thus, Executive Order 13132 does not apply to this rule. However, in the spirit of EO 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA solicited comments from State and local officials. EPA received no adverse comments from State or local governments on these issues.

Executive Order 13175, entitled “Consultation and Coordination With Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.”

This final rule does not have Tribal implications, as specified in Executive Order 13175. They do not have a substantial direct effect on one or more Indian Tribes, in that the listing action and the final determination impose no regulatory burdens on tribes. Furthermore, the listing action and the final determination do not affect the relationship or distribution of power and responsibilities between the Federal government and Indian Tribes. The CAA and the Tribal Authority Rule (TAR) establish the relationship of the Federal government and Tribes in implementing the Clean Air Act. Thus, Executive Order 13175 does not apply to this rule.

Executive Order 13045, “Protection of Children from Environmental Health and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that (1) is determined to be “economically significant” as defined under EO 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.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health and safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulations. This rule is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

This rule is not a “significant energy action” as defined in Executive Order 13211, “Action Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. These actions impose no regulatory requirements and are therefore not likely to have any adverse energy effects.

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 their 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, business practices, etc.) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, with explanations when the Agency does not 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.

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that the listing action and the final determination will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection to populations in affected ozone nonattainment areas without having any disproportionately high and adverse human health or environmental effects on any populations, including any minority or low-income populations. The purpose of section 183(e) is to obtain VOC emission reductions to assist in the attainment of the ozone NAAQS. The health and environmental risks associated with ozone were considered in the establishment of the ozone NAAQS. The level is designed to be protective of the public with an adequate margin of safety. EPA's listing of the products and its determination that CTGs are substantially as effective as regulations are actions intended to help States achieve the NAAQS in the most appropriate fashion.

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 notice 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 notice 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 October 9, 2007.

You may be potentially affected by this action if you manufacture or import any of the chemical substances that are listed in Table 3 of the regulatory text. This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Persons who import any chemical substance governed by a final SNUR are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements and the corresponding regulations at 19 CFR 12.118 through 12.127 and 127.28. Those persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of this rule are subject to the export notification provisions of TSCA section 12(b)(15 U.S.C. 2611(b))(see 40 CFR 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D. Potentially affected entities may include, but are not limited to:

• Manufacturers (defined by statute to include importers) or chemical exporters of one or more of the subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.

• Establishments (NAICS code 332813), e.g., primarily engaged in electroplating, plating, anodizing, coloring, buffing, polishing, cleaning, and sandblasting metals and metal products.

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in 40 CFR 721.5 and 40 CFR 721.9582 as described herein. Also consult Unit II. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

In the Federal Register of March 10, 2006 (71 FR 12311) (FRL-7740-6), EPA proposed to add 183 PFAS chemicals to the SNUR at 40 CFR 721.9582. The 183 chemicals being added to the SNUR are listed in Table 3 in the regulatory text of this document. The chemicals listed in Table 3 are on the public TSCA Inventory and have the characteristic PFAS chemical structure of a perfluorinated carbon chain (Rf) greater than, or equal to, C5 attached to an SO2 group connected to the rest of the molecule. In addition, the proposal also included those chemicals with Rf ranges of perfluorinated carbon chains shorter than C5, and greater than C5, for example, C4-C12 and C6-C12. In this SNUR, this PFAS chemical structure is referred to as the Rf moiety. EPA believed the action was warranted given the similarity of these chemicals to those currently included in 40 CFR 721.9582 and the strong likelihood of similar health and environmental concerns, as discussed in Unit III. of the March 10, 2006 document. EPA also proposed to make the excepted uses described in 40 CFR 721.9582(a)(3) applicable to the chemicals listed in Table 3 of the proposed regulatory text.

The Agency is designating as a “significant new use” the manufacture, including import, of the chemical substances listed in Table 3 of the regulatory text, for any use, except for the excluded uses described in this unit. Based on comments received during the public comment period and related communications, EPA learned of an ongoing use of seven PFAS chemicals as a component of an etchant used in the plating process to produce electronic devices. Consequently, that use has been excluded from this SNUR for those seven chemicals. See § 721.9582(a)(5) or the discussion in this unit of the significant new uses for a list of those chemicals.

In addition, the public comments described the ongoing use of PFAS chemicals as a fume/mist suppressant in metal finishing and plating baths. However, based on searches of the Internet which generated information on PFAS from the Organization for Economic Cooperation and Development (OECD), industry, and information from the California Air Resources Board (Refs. 1 and 2), EPA has concluded that only one chemical in Table 3, tetraethylammonium perfluorooctanesulfonate (CAS No. 56773-42-3), is used in this application. Therefore, EPA has excluded that use of this chemical from this SNUR. However, EPA remains concerned about this use, because at least two commenters to this SNUR noted that small quantities of this PFAS surfactant are released in the routine renewal of the plating baths. In addition, since the close of the public comment period, EPA has learned from a 2007 survey by Minnesota of over 30 wastewater treatment plants that PFOS, which is the anionic counterion of this PFAS surfactant, is appearing in wastewater treatment plant influent, effluent, and sludge associated with the fume/mist suppressant use in metal finishing and plating baths. As a result of these concerns, although outside the scope of this rule, EPA will continue to work with state agencies and industry to identify best management practices for minimizing the release of this PFAS surfactant.

A chemical fume (or mist) suppressant refers to any chemical agent that reduces or suppresses fumes or mists at the surface of an electroplating bath or solution. Chemical fume suppressants are “surface-active” compounds that can be added directly to a chrome plate acid bath to reduce or control misting (Ref. 3). PFAS chemicals are effective fume suppressants because of their surfactant properties. Fume suppressants act by reducing the plating bath surface tension which then inhibits misting. Misting occurs when bubbles break free of a liquid bath's surface and burst in the air. When the surface tension of a bath is lowered, as occurs with the use of PFAS fume suppressants, gases escape at the surface of the plating bath solution with less of a “bursting” effect, forming less mist (Ref. 4). Such fume suppressants, as opposed to other chemical surfactants, are used in the plating industry because the PFAS fume suppressant is able to withstand the harsh conditions of plating baths while lowering the plating bath surface tension to levels specified by current regulatory standards (Ref. 5). While several of these PFAS chemicals were developed for this use, only one is being used currently.

The plating fume suppressant that contains tetraethylammonium perfluorooctanesulfonate (CAS No. 56773-42-3) to reduce surface tension is different than the types of fume suppressants used in the plating industry that produce a foam blanket, and which can be used alone or in conjunction with PFAS fume suppressants.

This rule requires persons to notify EPA at least 90 days before commencing the manufacture (including import) of the chemical substances identified in Table 3 of the regulatory text for any use, except:

• Use as an anti-erosion additive in fire-resistant phosphate ester aviation hydraulic fluids.

• Use as a component of a photoresist substance, including a photo acid generator or surfactant, or as a component of an anti-reflective coating, used in a photomicrolithography process to produce semiconductors or similar components of electronic or other miniaturized devices.

• Use in coating for surface tension, static discharge, and adhesion control for analog and digital imaging films, papers, and printing plates, or as a surfactant in mixtures used to process imaging films.

• Use of: 1-Pentanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,5-undecafluoro-, potassium salt (CAS No. 3872-25-1); Glycine, N-ethyl-N-[(tridecafluorohexyl)sulfonyl]-, potassium salt (CAS No. 67584-53-6); Glycine, N-ethyl-N-[(pentadecafluoroheptyl)sulfonyl]-, potassium salt (CAS No. 67584-62-7); 1-Heptanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,6,6,7,7,7-pentadecafluoro-, ammonium salt (CAS No. 68259-07-4); 1-Heptanesulfonamide, N-ethyl-1,1,2,2,3,3,4,4,5,5,6,6,7,7,7-pentadecafluoro- (CAS No. 68957-62-0); Poly(oxy-1,2-ethanediyl), .alpha.-[2-[ethyl[(pentadecafluoroheptyl)sulfonyl]amino]ethyl]-.omega.-methoxy- (CAS No. 68958-60-1); or 1-Hexanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,6,6,6-tridecafluoro-, compd. with 2,2′- iminobis[ethanol] (1:1) (CAS No. 70225-16-0) as a component of an etchant, including a surfactant or fume suppressant, used in the plating process to produce electronic devices.

• Use of tetraethylammonium perfluorooctanesulfonate (CAS No. 56773-42-3) as a fume/mist suppressant in metal finishing and plating baths. Examples of such metal finishing and plating baths include: Hard chrome plating; decorative chromium plating; chromic acid anodizing; nickel, cadmium, or lead plating; metal plating on plastics; and alkaline zinc plating.

• Use as an intermediate only to produce other chemical substances to be used solely for the uses listed in bullets 1, 2, or 3 of this unit.

Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including those listed in TSCA section 5(a)(2). Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a Significant New Use Notice (SNUN) to EPA at least 90 days before they manufacture, import, or process the chemical substance for that use (15 U.S.C. 2604(a)(1)(B)). The mechanism for reporting under this requirement is established under 40 CFR 721.5.

General provisions for SNURs appear under 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the final rule. Provisions relating to user fees appear at 40 CFR part 700. According to 40 CFR 721.1(c), persons subject to this SNUR must comply with the same notice requirements and EPA regulatory procedures as submitters of Premanufacture Notices (PMNs) under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA section 5(b) and 5(d)(1), the exemptions authorized by TSCA section 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA may take regulatory action under TSCA section 5(e), 5(f), 6 or 7 to control the activities for which it has received the SNUN. If EPA does not take action, EPA is required under TSCA section 5(g) to explain in the Federal Register its reasons for not taking action.

Persons who export or intend to export a chemical substance identified in a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b). The regulations that implement TSCA section 12(b) appear at 40 CFR part 707, subpart D. Persons who import a chemical substance identified in a final SNUR are subject to the TSCA section 13 import certification requirements, which appear at 19 CFR 12.118 through 12.127 and 127.28. Such persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B.

Based on the considerations in Unit III. of the preamble to the proposed SNUR and in Unit III.B. and Unit IV. of this preamble, by issuing this SNUR, EPA will achieve the following objectives with regard to the significant new uses that are designated in this rule:

• EPA will receive notice of any person's intent to manufacture or import any chemical listed in Table 3 of the regulatory text for the described significant new use before that activity begins.

• EPA will have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins to manufacture or import any chemicals listed in Table 3 of the regulatory text for a significant new use.

• EPA will have an opportunity to regulate prospective manufacturers or importers of any chemical listed in Table 3 of the regulatory text before a significant new use of the chemical substance occurs, provided that regulation is warranted pursuant to TSCA sections 5(e), 5(f), 6 or 7.

EPA has concerns regarding adverse human health and environmental effects of PFAS. It is highly persistent in the environment, it tends to bioaccumulate, and it is toxic. In its voluntary phase-out of perfluorooctane sulfonate (PFOS) and PFOS-related products, the 3M Company, which had been the sole U.S. manufacturer of the chemicals, committed to stop production of all perfluoroalkyl sulfonic acid products with alkyl chain lengths of C8 or greater. 3M completed its phase-out of PFOS production in 2002, which led to a significant reduction in the use of all PFAS-related substances.

Production of the 183 PFAS chemicals in Table 3 is limited to the excluded uses described in 40 CFR 721.9582(a)(3) and in Unit II.A. of this document. Production volumes and exposures have been decreasing. Any manufacture or import for a significant new use is expected to significantly increase exposures beyond levels that now occur. EPA is concerned that manufacture or import of the PFAS chemicals listed in Table 3 of the regulatory text for any uses not excluded by this SNUR could be reinitiated in the future. The notice required by this SNUR will provide EPA with additional information to evaluate activities associated with a significant new use and to protect against unreasonable risks, if any, from exposure to the substances.

Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors including:

• The projected volume of manufacturing and processing of a chemical substance.

• The extent to which the use changes the type or form of exposure of humans or the environment to a chemical substance.

• The extent to which the use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.

• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

TSCA section 5(a)(2) authorizes EPA to consider any other relevant factors in addition to the factors enumerated in the bulleted items.

To determine what would constitute a significant new use of a chemical listed in Table 3 of the regulatory text, EPA considered relevant information about the toxicity of the PFAS substances, likely human exposures and environmental releases associated with possible uses, and the four factors listed in this unit.

As described in Unit III. of the proposed SNUR, EPA has concerns regarding the reproductive and subchronic toxicity, persistence, and bioaccumulative potential of the chemical substances that are included in this SNUR. These concerns lead the Agency to believe that humans and the environment could suffer adverse effects from their use. Any use of these PFAS chemicals would continue to add to the reservoir of perfluoroalkyl sulfonic acids (PFASA) in the environment, resulting in additional human/environmental exposure. There is evidence that PFAS-containing chemicals degrade to perfluoroalkyl sulfonic acids (PFASA), which exist in the anionic form in the environment, or to PFASA precursors.

The latest information available to EPA indicates that the chemicals listed in Table 3 of the regulatory text are no longer being manufactured for any uses other than the excluded uses described in Unit II. of this SNUR. EPA believes that reintroduction of PFAS for any use other than the listed uses EPA has identified could significantly increase the production volume, and the magnitude and duration of exposure to humans and the environment to these chemical substances over that which would otherwise exist. Consequently, EPA wants the opportunity to evaluate and control, if appropriate, exposures associated with those activities before they occur. Based upon the relevant factors discussed in this unit, EPA has determined that the manufacture, including import, of any of the chemicals listed in Table 3 of the regulatory text for any use other than those described in Unit II., is a significant new use.

EPA will continue to evaluate the excluded uses and may pursue additional regulatory action under TSCA, if necessary in the future.

TSCA section 5 does not require the development of any particular test data before submission of a SNUN. Persons are required to submit only test data in their possession or under their control and to describe any other data known to or reasonably ascertainable by them (15 U.S.C. 2604(d); 40 CFR 721.25).

In view of the Agency's concerns regarding activities associated with the significant new use(s) of any chemical listed in Table 3 of the regulatory text, EPA recommends that SNUN submitters include data that would permit a reasoned evaluation of risks posed by the chemical substance during its manufacture, import, processing, use, distribution in commerce, or disposal. EPA encourages persons to consult with the Agency before submitting a SNUN. As part of this optional pre-notice consultation, EPA would discuss specific data it believes may be useful in evaluating a significant new use. SNUNs submitted for significant new uses without any test data may increase the likelihood that EPA will take action under TSCA section 5(e) to prohibit or limit activities associated with the chemical.

SNUN submitters should be aware that EPA will be better able to evaluate SNUNs that provide detailed information on:

• Human exposures and environmental releases that may result from the significant new uses of the chemical substance.

• Potential benefits of the chemical substance.

• Information on risks posed by the chemical substance compared to risks posed by potential substitutes.

SNUNs must be mailed to the Environmental Protection Agency, OPPT Document Control Office (7407M), 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. Information must be submitted in the form and manner set forth in EPA Form No. 7710-25. This form is available from the Environmental Assistance Division (7408M), 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001 (see 40 CFR 721.25 and 720.40). Forms and information are also available electronically at http://www.epa.gov/opptintr/newchems/pubs/pmnforms.htm .

As discussed in Unit V., EPA recommends that submitters consult with the Agency prior to submitting a SNUN to discuss what data may be useful in evaluating a significant new use. Discussions with the Agency prior to submission can afford submitters ample time to conduct any tests that might be helpful in evaluating the risks posed by the substance.

As discussed in the Federal Register of April 24, 1990 (55 FR 17376), EPA has decided that the intent of section 5(a)(1)(B) of TSCA is best served by designating a use as a significant new use as of the date of publication of the proposed rule rather than as of the effective date of the final rule. If uses begun after publication of the proposed rule were considered ongoing rather than new, it would be difficult for EPA to establish SNUR notice requirements, because a person could defeat the SNUR by initiating the proposed significant new use before the rule became final, and then argue that the use was ongoing as of the effective date of the final rule. Thus, persons who may have begun commercial manufacture or import of the chemical substances listed in Table 3 of the regulatory text for the significant new uses listed in this final SNUR after the proposal was published on March 10, 2006, must stop that activity before the effective date of this final rule. To resume their activities, these persons would have to comply with all applicable SNUR notice requirements and wait until the notice review period, including all extensions, expires. EPA has promulgated provisions to allow persons to comply with this SNUR before the effective date. If a person were to meet the conditions of advance compliance under § 721.45(h), that person would be considered to have met the requirements of the final SNUR for those activities.

This action finalizes the SNUR proposed in the Federal Register on March 10, 2006 (71 FR 12311). On April 10, 2006 (71 FR 18055) (FRL-7779-7), EPA extended the closing date of the public comment period from April 10, 2006 to May 10, 2006. On May 10, 2006 (71 FR 27217) (FRL-8068-8), EPA further extended the closing date of the comment period from May 10, 2006 to August 8, 2006.

This final rule requires persons who intend to manufacture or import any of the chemical substances listed in Table 3 of the regulatory text for any use other than those excluded uses described in Unit II.A. to submit a SNUN at least 90 days before commencing the manufacture or importation of any of these chemicals.

It should be noted that, in Table 3, some of the chemical names are different from those in the previous proposed SNUR of March 10, 2006. This is due to enhancement of the nomenclature or nomenclature changes adopted by the Chemical Abstracts Service (CAS). CAS is now using the 16th Collective Index (known as the ACI). EPA has updated the previously used 9th Collective Index names to reflect the latest changes by CAS. The CAS numbers and chemicals, however, remain the same. In some cases, the extremely long ACI names have been truncated to save space. Each complete ACI name is available at the EPA website in the TSCA Substance Registry System (SRS) at http://www.epa.gov/srs . Also, to be consistent with the other tables already in the SNUR, the order of the listing has been reversed from the descending order used in the proposed SNUR to ascending order used in this final SNUR.

The Agency reviewed and considered all comments received related to the proposed rule. Copies of all non-CBI comments are available at http://www.regulations.gov in the public docket for this action, EPA-HQ-OPPT-2005-0015. A discussion of the comments germane to the rulemaking, and the Agency's responses, follows.

1. Comment summary . Metal plating and finishing industries that currently use specific PFAS chemicals to meet regulatory standards for hexavalent chromium (Cr(VI)) emissions established by Federal and State regulations need to be excluded from the SNUR as a current use (similar to the exclusions for semiconductors and imaging products in previously promulgated SNURs). The releases and exposures to PFAS associated with the industry are comparably of much less concern than those related to nickel (Ni) and hexavalent chromium (Cr(VI)) which result when PFAS fume suppressants are not used. In addition, the economic and competitive liabilities will cripple this domestic industry if these chemicals are no longer permitted to be used. Commenters described their continuing efforts to find greener, safer substitutes, but explained that for many uses there are no viable alternatives. Commenters said that the metal finishing industry continues to support research and development efforts to identify commercially viable alternatives to hexavalent chromium plating chemistries. To date, alternative technologies show some promise for niche applications, but have not gained widespread commercial application due to: 1) The superior coating performance in decorative, functional, and corrosion protection applications for hexavalent chromium plating; 2) cost effective applications; 3) broad and flexible ranges of use; and 4) strong customer/market preferences for hexavalent chromium plating.

Response . EPA now recognizes that the metal plating and finishing industries currently use a specific PFAS chemical, tetraethylammonium perfluorooctanesulfonate (CAS No. 56773-42-3), to meet regulatory standards for hexavalent chromium (Cr(VI)) emissions. Thus, EPA has included this ongoing use of tetraethylammonium perfluorooctanesulfonate, as described in Unit II.A., as an exclusion in this SNUR, but encourages the continued exploration for possible substitutes.

2. Comment summary . Several specific uses of PFAS chemicals within the semiconductor, integrated circuit, and microelectronics industries were excluded from the previous two PFAS SNURs. The proposed SNUR includes an additional 183 chemicals that would affect those same uses in the same industry sectors, so the exclusions in the previous two SNURs should apply to the 183 chemicals listed in this SNUR. Also, these uses constitute ongoing uses, not significant new uses. The semiconductor industry has supported reduction initiatives and dialogue through trade associations in other regions around the world. One primary locus for reduction initiatives and dialogue has been the World Semiconductor Council.

Response . EPA recognizes that these are ongoing uses, and is therefore not designating the uses as significant new uses of the chemicals listed in Table 3. EPA is applying the exclusions described in Unit II.A. to the list of 183 PFAS chemicals in Table 3 of the regulatory text. EPA appreciates the efforts the semiconductor, integrated circuit, and microelectronics industries have made in their commitment to limit PFAS usage, to search for alternatives, and to limit exposures and releases.

3. Comment summary . Several specific uses of PFAS chemicals within the photographic film, paper, and imaging industries were excluded from the previous two PFAS SNURs. The proposed SNUR targets a broader list of 183 chemicals for these applications in the same industry sector. The exclusion in the previous SNURs should be applied to the 183 chemicals as well. Also, these uses constitute ongoing uses, not significant new uses. Comments also stated that since concerns were first raised in 2000, the photographic film, paper, and imaging industries have aggressively pursued a voluntary risk reduction strategy by investing heavily in research to find alternative substances that possess the performance features described earlier for PFAS.

Response . EPA recognizes that these are ongoing uses, and is therefore not designating the uses as significant new uses of the chemicals listed in Table 3. EPA is applying the current exclusion described in Unit II.A. to the list of 183 PFAS chemicals in Table 3 of the regulatory text. EPA appreciates the efforts the photographic film, paper, and imaging industries have made in their commitment to limit PFAS usage, to search for alternatives, and to limit exposures and releases.

4. Comment summary . Commenter requested an explanation of how the 183 chemicals in this SNUR were chosen, and pointed out that some of the alkyl ranges covered by the SNUR include chemicals with the PFAS chemical structure (Rf moiety) with a C4 chain length.

Response . EPA proposed that any PFAS chemical listed on the public TSCA Inventory that contained the Rf moiety with a chain length of C5 or larger as part of the chemical identity would be subject to the rulemaking process for this PFAS SNUR based on the similarity of these chemicals to those currently included in 40 CFR 721.9582. That decision addresses all PFAS chemicals on the public inventory that still remain after the previous two SNURs and the evidence that manufacturers have been moving to use the lower chain length PFAS chemicals. EPA also included all ranges that contained > C4 constituents, even when that lower end of the alkyl chain length included C4 composition, in order to capture the higher homologues, including C8, as discussed in the proposed rule.

5. Comment summary . This comment summary is based on the sanitized version of a Confidential Business Information (CBI) comment submitted to docket ID number EPA-HQ-OPPT-2005-0015, DCN # 63070000019, as well as additional information later provided by the commenter. The commenter originally indicated that it uses 13 of the 183 chemicals in/as various specified applications. The commenter stated: 1) PFAS substances are not directly or indirectly introduced into consumer products; 2) the exclusions should be applied to the 183 chemicals in Table 3 of the proposed SNUR; and 3) it uses these chemicals for a specific use that is different from those uses that were excluded in previous SNURs, i.e., as a component of an etchant, including a surfactant or fume suppressant, used in the plating process to produce electronic devices. The commenter also provided information for the low risk applications of PFAS in these uses; e.g., low volume, low exposure to workers, and low PFAS content, and product stewardship accomplishments. The commenter requested an exclusion based on the activities being ongoing for use as a component of an etchant, including a surfactant or mist/fume suppressant, in plating processes to produce electronic devices. The commenter also reduced the number of chemicals involved in this ongoing etchant use from thirteen to seven chemicals.

Response . The Agency now recognizes the use of the seven chemicals identified by the commenter as a component of an etchant used in the plating process to produce electronic devices is an ongoing use. Consequently, the Agency has included this use of any of the seven chemicals as an exclusion in the final SNUR.

EPA evaluated the potential costs of establishing SNUR reporting requirements for potential manufacturers and importers of the chemical substances included in Table 3 of the regulatory text. While most businesses are subject to a $2,500 user fee required by 40 CFR 700.45(b)(2)(iii), small businesses with annual sales of less than $40 million when combined with those of the parent company (if any) are subject to a reduced user fee of $100 (40 CFR 700.45(b)(1)). The cost of submitting a SNUN, estimated in EPA's Economic Analysis at $7,991, including the user fee (Ref. 6), will be incurred only if a company decides to pursue a significant new use as defined in this final SNUR. Furthermore, while the expense of a SNUN and the uncertainties of possible EPA regulation may discourage certain innovations, that impact would be limited because such factors are unlikely to discourage an innovation that has high potential value. EPA's complete economic analysis is available in the public docket for this rule (See docket ID number EPA-HQ-OPPT-2005-0015).

Under section 12(b) of TSCA and implementing regulations at 40 CFR part 707, subpart D, exporters must notify EPA if they export or intend to export a chemical substance or mixture for which, among other things, a rule has been proposed or promulgated under TSCA section 5. On November 14, 2006, EPA revised the export notification requirement from an annual to a one-time requirement per each destination country for each exporter of a chemical substance subject to TSCA sections 5(a)(2), 5(b), 5(e)(1), and 5(e)(2) (November 14, 2006, 71 FR 66234) (FRL-8101-3). Previous to this amendment, exporters were required to submit a notice the first time in the calendar year they exported a particular chemical to a particular country. Notifications must include the exporter's name and address, the chemical name, the date(s) of export or intended export, the importing country (or countries), and the section of TSCA under which EPA has taken action. The total costs of export notification will vary by chemical, depending on the number of required notifications (i.e., the number of countries to which the chemical is exported).

In the report, Final Economic Analysis of the Amendments to TSCA Section 12(b) Export Notification Requirements (Ref. 7), it estimated the one-time export notification cost for an exporter making 25 submissions in a year to be $1,076. For a single notification, the cost would be $43.04 ($1,076/25). This supersedes an earlier 1992 EPA estimate that the one-time cost of preparing and submitting an export notification was $62.60, and the subsequent update of that figure for inflation which was included in the economic analysis for the proposed SNUR.

The total costs of export notification will vary per chemical, depending on the number of required notifications (i.e., number of countries to which the chemical is exported). EPA is unable to make any estimate of the likely number of export notifications for chemicals covered in this SNUR.

1. California Air Resources Board, Barrera, Robert. E-mail dated May 1, 2006, 03:58 p.m. to Amy Breedlove, EPA/OPPT.

2. EPA/OPPT. Internet Sources on tetraethylammonium perfluoroalkylsulfonate: Selective results of internet searches done by Amy Breedlove, March 9, 2007 and March 19, 2007.

3. EPA. Capsule Report: Hard Chrome Fume Suppressants and Control Technologies. EPA/625/R-98/002, December 1998.

4. EPA. National Emission Standards for Hazardous Air Pollutants; Proposed Standards for Chromium Emissions From Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks. Federal Register (58 FR 65768, December 16, 1993), p. 65779.

5. Comments submitted to EPA from the Surface Finishing Industry Council on proposed SNUR for PFAS, August 8, 2006 (see document EPA-HQ-OPPT-2005-0015-0024.1 available on-line at http://www.regulations.gov ).

6. EPA 2007. Economic Analysis of the Final Significant New Use Rule for 183 Perfluoroalkyl Sulfonates , August 20, 2007.

7. EPA 2005. Final Economic Analysis of the Amendments to TSCA Section 12(b) Export Notification Requirements , August 2006 (see document EPA-HQ-OPPT-2005-0058-0017 available on-line at http://www.regulations.gov ).

Under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), the Office of Management and Budget (OMB) has determined that this SNUR is not a “significant regulatory action” subject to review by OMB, because it does not meet the criteria in section 3(f) of the Executive Order.

According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq ., an Agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under the PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations codified in chapter 40 of the CFR, after appearing in the preamble of the final rule, are listed in 40 CFR part 9, are displayed either by publication in the Federal Register or by other appropriate means, such as on the related collection instrument or form, if applicable. The display of OMB control numbers in certain EPA regulations is consolidated in 40 CFR part 9. For the ICR activity contained in this final rule, in addition to displaying the applicable OMB control number in this unit, the OMB control number assigned to this ICR activity is already included in the table in 40 CFR 9.1.

The information collection requirements related to this action have already been approved by OMB pursuant to the PRA under OMB control number 2070-0038 (EPA ICR No. 1188). This action does not impose any burden requiring additional OMB approval. The burden for submitting a SNUN is estimated to average 107 hours per submission, at an estimated cost of $5,491. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN. This burden estimate does not include the $2,500 user fee for submission of a SNUN ($100 for businesses with less than $40 million in annual sales).

Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.

Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .), the Agency hereby certifies that promulgation of this SNUR would not have a significant adverse economic impact on a substantial number of small entities. The factual basis for the Agency's determination is presented in the small entity impact analysis prepared as part of the economic analysis for this rule (Ref. 6), which is summarized in Unit IX., and a copy of which is available in the docket for this rulemaking. The following is a brief summary of the factual basis for this certification.

Under the RFA, small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined in accordance with the RFA as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (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.

A SNUR applies to any person (including small or large entities) who intends to engage in any activity described in the rule as a “significant new use.” By definition of the word “new,” and based on all information currently available to EPA, it appears that no small or large entities presently engage in such activity. Because a SNUR requires only that any person who intends to engage in such activity in the future first notify EPA by submitting a SNUN, no economic impact would even occur until someone decides to engage in those activities. Although some small entities may decide to conduct such activities in the future, EPA cannot presently determine how many, if any, there may be.

However, EPA's experience to date is that, in response to the promulgation of over 1,000 SNURs, the Agency receives on average only 10 SNUNs per year. Of those SNUNs submitted, none appear to be from small entities in response to any SNUR. In addition, the estimated reporting cost for submission of a SNUN (see Unit IX.), is minimal regardless of the size of the entity. Therefore, EPA believes that the potential economic impact of complying with this SNUR is not expected to be significant nor adversely impact a substantial number of small entities. In a SNUR that published on June 2, 1997 (62 FR 29684) (FRL-5597-1), the Agency presented its general determination that proposed and final SNURs are not expected to have a significant economic impact on a substantial number of small entities, which was provided to the Chief Counsel for Advocacy of the Small Business Administration.

Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reason to believe that any State, local, or Tribal government would be impacted by this rulemaking. As such, EPA has determined that this regulatory action would not impose any enforceable duty, contain any unfunded mandate, or otherwise have any affect on small governments subject to the requirements of sections 202, 203, 204, or 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4).

This action would not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999).

This rule would not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This rule would not significantly or uniquely affect the communities of Indian Tribal governments, nor would it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000), do not apply to this rule.

This action is not subject to Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.

This rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use.

In addition, since this action does not involve any technical standards, 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), does not apply to this action.

This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

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

You may be potentially affected by this action if you manufacture, process, distribute in commerce, use, cleanup, transport, store, or dispose of PCBs or materials containing PCBs. Potentially affected entities may include, but are not limited to:

• Oil and gas extraction (NAICS code 21111), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Electric power generation, transmission, and distribution (NAICS code 2211), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Construction (NAICS code 23), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Food manufacturing (NAICS code 311), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Paper manufacturing (NAICS code 322), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Petroleum and coal products manufacturing (NAICS code 324), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Chemical manufacturing (NAICS code 325), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Plastics and rubber manufacturing (NAICS code 326), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Primary metal manufacturing (NAICS code 331), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Machinery manufacturing (NAICS code 333), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Computer and electronics product manufacturing (NAICS code 334), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Electrical equipment, appliance, and component manufacturing (NAICS code 335), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Transportation equipment manufacturing (NAICS code 336), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Rail transportation (NAICS code 48211), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Lessors of real estate (NAICS code 5311), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Waste collection (NAICS code 5621), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Waste treatment and disposal (NAICS code 5622), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Remediation and other waste management services (NAICS code 5629), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Repair and maintenance (NAICS code 811), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

• Public administration (NAICS code 92), e.g., operating or closed facilities that use, contain, or dispose of PCBs or PCB wastes.

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in 40 CFR parts 750 and 761. If you have any questions regarding the applicability of this action to a particular entity, consult the technical persons listed under FOR FURTHER INFORMATION CONTACT .

This final rule is an agency organization, procedure, or practice rule which amends 40 CFR parts 750 and 761 to replace certain OPPTS contact information with OSWER contact information. This final rule will not make substantive changes to the PCB regulations under TSCA. Rather it will amend the regulations to provide the appropriate contact information so that required procedures for providing information and seeking approvals will be consistent with EPA’s new internal organization for managing the PCB program. In the regulatory text, “EPA” is identified as the entity with decisionmaking authority for certain approvals or determinations. Specific EPA officials will be authorized to exercise these authorities on behalf of the Agency pursuant to internal delegations. Instructions for the submission of materials required for approvals and determinations are specifically set forth in the regulatory text.

This rule is necessary because EPA is transferring the management of the PCB cleanup program and most of the PCB disposal program from OPPTS to OSWER. Given OSWER’s role in ensuring environmentally sound waste storage, treatment, cleanup, and disposal, the administrative transfer will consolidate the administration and implementation of cleanup and disposal programs within that office, which will maximize the use of the Agency’s limited resources. EPA believes that the transfer of the PCB cleanup and disposal program from OPPTS to OSWER is a natural fit. Further, the transfer is consistent with EPA’s goals pursuant to the One Cleanup Program, which operates to improve the coordination, speed, and effectiveness of cleanups at the nation's contaminated sites, as well as the Agency’s overall goal to protect human health and the environment.

After the administrative transfer is completed, OSWER will oversee issues pertaining to PCB cleanup and disposal, storage for disposal, processing related to disposal, distribution in commerce related to disposal or processing for disposal, and decontamination under TSCA, RCRA, and CERCLA, as appropriate. OPPTS will continue to oversee issues pertaining to PCB use, storage for use or reuse, manufacture, processing related to manufacture and use, and distribution in commerce related to use or processing for use under TSCA. OSWER will implement PCB cleanup and disposal under TSCA and its regulations as they currently exist. Thus, PCB cleanup and disposal under TSCA will continue to be a federally implemented program. Where cleanup and disposal approvals and renewals are concerned, current approvals will continue as currently written and renewals will be processed as scheduled. OSWER will receive any new applications for cleanup and disposal approvals, renewals, or approval modifications beginning October 9, 2007.

OSWER and OPPTS have formed a transition team to facilitate the administrative transfer. OSWER will identify staff to take over specific PCB issues and sections of the regulations. Once identified, OSWER will post contact information on the PCB website, available at http://www.epa.gov/pcb .

In addition to facilitating the administrative transfer of the PCB cleanup and disposal program, this final rule makes minor amendments to 40 CFR part 761, to correct certain typographical errors and outdated information in OPPTS mailing addresses.

This final rule is issued by OPPTS under its general rulemaking authority and TSCA, 15 U.S.C. 2601-2692. This final rule is not subject to the notice and comment requirements of the Administrative Procedure Act (APA) because this action falls under “rules of agency organization, procedure, or practice,” and the exception provided by 5 U.S.C. 553(b)(3)(A).

This final rule implements an administrative transfer of a portion of the PCB program from OPPTS to OSWER and amends 40 CFR parts 750 and 761. For those portions of the program remaining in OPPTS, this final rule also corrects certain OPPTS mailing addresses. This final rule does not otherwise impose or amend any requirements. As such, the Office of Management and Budget (OMB) has determined that this final rule is not a “significant regulatory action” subject to review by OMB under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993).

This final rule does not contain any information collection requirements that require review and approval by OMB pursuant to the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq .).

Since this action falls under “rules of agency organization, procedure, or practice,” and the exception provided by 5 U.S.C. 553(b)(3)(A), it is not subject to notice and comment requirements under the APA or any other statute (see Unit II.B.) and is not subject to provisions of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .).

This final rule is not subject to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4) and does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA.

This final rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999).

This action does not significantly or uniquely affect the communities of tribal governments as specified by Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000).

Because this action is not economically significant as defined by section 3(f) of Executive Order 12866, this action is not subject to Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997).

This final rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use.

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

This action will not result in environmental justice related issues and does not, therefore, require special consideration under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

The Congressional Review Act, 5 U.S.C. 801-808, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Environmental protection, Administrative practice and procedure, Chemicals, Hazardous substances.

Environmental protection, Hazardous substances, Labeling, Polychlorinated biphenyls (PCBs), Reporting and recordkeeping requirements.

The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.

Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.

The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by the other Federal, State, or regional entities. The changes BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This interim rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This interim rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This interim rule involves no policies that have federalism implications under Executive Order 13132, Federalism.

Executive Order 12988, Civil Justice Reform. This interim rule meets the applicable standards of Executive Order 12988.

The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of FEMA has resolved any appeals resulting from this notification.

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for flood-plain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.

The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This final rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This final rule meets the applicable standards of Executive Order 12988.

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

The 2007 TAC of Pacific ocean perch in the Western Regulatory Area of the GOA is 4,244 metric tons as established by the 2007 and 2008 harvest specifications for groundfish of the GOA (72 FR 9676, March 5, 2007).

In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS, has determined that the Pacific ocean perch TAC in the Western Regulatory Area of the GOA has been reached. Therefore, NMFS is requiring that Pacific ocean perch caught in the Western Regulatory Area of the GOA be treated as prohibited species in accordance with § 679.21(b).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the prohibition of retention of Pacific ocean perch in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 1, 2007.

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

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