The imported fire ant regulations (contained in 7 CFR 301.81 through 301.81-10 and referred to below as the regulations) quarantine infested States or infested areas within States and restrict the interstate movement of regulated articles to prevent the artificial spread of the imported fire ant.

The imported fire ant ( Solenopsis invicta Buren, Solenopsis richteri Forel, and hybrids of these species) is an aggressive, stinging insect that, in large numbers, can seriously injure and even kill livestock, pets, and humans. The imported fire ant, which is not native to the United States, feeds on crops and builds large, hard mounds that damage farm and field machinery. The regulations are intended to prevent the imported fire ant from spreading throughout its ecological range within the country.

The regulations in § 301.81-3 provide that the Administrator of the Animal and Plant Health Inspection Service (APHIS) will list as a quarantined area each State, or each portion of a State, that is infested with the imported fire ant. The Administrator will designate less than an entire State as a quarantined area only under the following conditions: (1) The State has adopted and is enforcing restrictions on the intrastate movement of the regulated articles listed in § 301.81-2 that are equivalent to the interstate movement restrictions imposed by the regulations; and (2) designating less than the entire State will prevent the spread of the imported fire ant. The Administrator may include uninfested acreage within a quarantined area due to its proximity to an infestation or its inseparability from an infested locality for quarantine purposes.

In § 301.81-3, paragraph (e) lists quarantined areas. We are amending § 301.81-3(e) by:

• Adding all of Lonoke and Yell Counties, AR, to the quarantined area;

• Expanding the quarantined area in Faulkner County, AR, to include the entirety of the county;

• Adding portions of Iredell, Lincoln, and Rutherford Counties, NC, to the list of quarantined areas;

• Expanding the quarantined areas in Cherokee, Greenville, and Spartanburg Counties, SC, to include the entirety of each county, with the result that the entire State of South Carolina is now designated as a quarantined area;

• Adding portions of Crockett, Morgan, and Warren Counties, TN, to the list of quarantined areas;

• Expanding the quarantined areas in Anderson, Coffee, Cumberland, Haywood, Knox, and Williamson Counties, TN; and

• Expanding the quarantined areas in Bedford, Benton, Bledsoe, Blount, Carroll, Grundy, Hickman, Rutherford, and Van Buren Counties, TN, to include the entirety of each county.

We are taking these actions because recent surveys conducted by APHIS and State and county agencies revealed that the imported fire ant has spread to these areas. See the regulatory text at the end of this document for specific descriptions of the new and revised quarantined areas.

This rulemaking is necessary on an emergency basis to prevent the spread of imported fire ant into noninfested areas of the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule.

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.

We are amending the imported fire ant regulations by designating as quarantined areas all or portions of 2 counties in Arkansas, 3 in North Carolina, and 3 in Tennessee, by expanding the quarantined area in 1 county in Arkansas and 15 in Tennessee, and by designating the entire State of South Carolina as a quarantined area. We are taking this action because surveys conducted by APHIS and State and county agencies revealed that imported fire ant has spread to these areas. Agricultural activities in these imported fire ant-infested areas are at risk due to the potential of imported fire ants to directly or indirectly damage crops and agricultural machinery and harm livestock.

This interim rule will affect businesses such as nurseries, landscaping operations, and timber companies that are located within the newly expanded quarantined areas and that transport regulated articles interstate.

Table 1 summarizes the 2002 Census of Agriculture data according to three commodity groups that will be affected by the interim rule. These commodity groups are: (1) Nursery, greenhouse, floriculture, and sod;  1 (2) other crops and hay;  2 and (3) cut Christmas trees and short rotation woody crops.

Since no clear-cut method exists to disaggregate these commodity groups to the specific imported fire ant-regulated articles, the entirety of these commodity groups is used to approximate the number and size of the entities that may be affected by the interim rule.

In 2002, there were 1,193 nurseries, greenhouses, floriculture producers, and sod producers, 4,098 producers of other crops and hay, and 98 producers of cut Christmas trees and short rotation woody crops in the affected counties. Sales  3 of all agricultural products sold in the counties were more than $1 billion in 2002, of which about $172 million can be attributed to the three commodity groups affected by the quarantine restrictions imposed by this rule.

Table 2 summarizes the percentage shares of sales and number of farms for those 3 commodity groups relative to the total agricultural product sales and number of farms in the 27 counties. Sales shares of nursery, greenhouse, floriculture, and sod in the newly quarantined counties of South Carolina and Tennessee are substantially higher (28 percent and 24 percent, respectively) than in the newly quarantined counties in Arkansas and North Carolina (less than 1 percent and 2 percent, respectively). An average of 16 percent of farms in the affected counties sell other crops and hay, but these products comprise less than 2 percent of all agricultural products sold in these counties. Overall, based on 2002 Census of Agriculture data, 21 percent of the farms (5,389 out of 25,253 farms) and 17 percent of agricultural product sales in the 27 counties may be affected by this interim rule.

Table 3 summarizes sales and number of farms in the 27 counties and their respective 4 States. The market value of all agricultural products sold in these counties was more than $1 billion, about 61 percent (or $615 million) of which were sales attributable to livestock, poultry, and animal products, with the remaining 39 percent (or $394 million) attributable to crop sales, including nursery and greenhouse crops. The market value of the 3 affected commodity groups sold in the 27 counties was about $172 million, or about 14 percent of the $1.2 billion in total sales for the 3 affected commodity groups in the 4 States. Within these States and in neighboring States, there is a large agricultural economy at risk due to the potential of imported fire ant to damage crops and injure livestock.

According to Small Business Administration criteria, a business engaged in crop production (North American Industry Classification System [NAICS] Subsector 111) is considered to be a small entity if its annual receipts are not more than $750,000. A business engaged in support activities for agriculture and forestry (NAICS Subsector 115) is considered small if its annual receipts are not more than $6 million. Agricultural entities in the newly quarantined areas are predominantly, if not entirely, small entities.

The aforementioned three commodity groups, as well as farm equipment dealers, construction companies, and those who sell, process, or move regulated articles from and through quarantined areas, may be affected by this rule. Such operations will now be required to treat restricted articles before moving them interstate. Only regulated articles moved interstate outside of the quarantined areas will be affected. However, adverse economic effects of the rule on affected entities that move regulated articles interstate are mitigated by the availability of various treatments. In most cases these treatments permit the movement of regulated articles with only a small additional cost. For example, the treatment cost of an average shipment of nursery plants on a standard trailer truck ranges between 0.04 percent and 1 percent  4 of the value of the plants transported, given a treatment cost per shipment of around $200. The estimated annual compliance costs for these entities is small in comparison to the benefit gained through reduced human-assisted spread of imported fire ant to noninfested areas of the United States.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Background

Citrus canker is a disease that affects citrus and is caused by the infectious bacterium Xanthomonas axonopodis pv. citri (also known as Xanthomonas campestris pv. citri and Xanthomonas citri ). Currently, the regulations in 7 CFR 319.28 (referred to below as the regulations) allow the importation of Unshu oranges ( Citrus reticulata var. unshu ) from certain areas in the Republic of Korea (South Korea) into certain areas of the United States under a permit and after the specified safeguards of a preclearance program have been met to prevent the introduction of citrus canker. However, the importation of Unshu oranges from South Korea was administratively suspended in 2002 due to the increased number of interceptions of the causal agent of citrus canker at various packinghouses in South Korea.

In 2005, the national plant protection organization (NPPO) of South Korea requested that the Animal and Plant Health Inspection Service (APHIS) allow the shipment of Unshu oranges into the State of Alaska until the pest risk of citrus canker from South Korea could be adequately mitigated for the rest of the United States.

On December 4, 2006, we published in the Federal Register (71 FR 70330-70335, Docket No. APHIS-2006-0133) a proposal  1 to allow the importation of fresh Unshu oranges from the Republic of Korea into the State of Alaska under certain conditions. As a condition of entry, we proposed that the oranges would have to be prepared for shipping using packinghouse procedures that include culling of damaged or diseased fruit and washing in a water bath. In addition, we proposed that the oranges would have to be accompanied by a phytosanitary certificate with an additional declaration stating that the oranges were inspected and found free from Xanthomonas axonopodis pv. citri and Unaspis yanonensis. The individual cartons or boxes in which the Unshu oranges are shipped would also have to be marked with a statement restricting their importation and distribution to the State of Alaska. This action was intended to allow for the importation of Unshu oranges from the Republic of Korea into Alaska while continuing to provide protection against the introduction of quarantine pests.

We solicited comments concerning our proposal for 60 days ending February 2, 2007. We received two comments by that date, both from domestic citrus industry groups. One of the commenters expressed concern that a pesticide not approved for use in the United States could be imported on fruit from South Korea. While the United States does not have direct control over pesticides that are used on food commodities such as Unshu oranges in other countries, there are regulations in the United States concerning the importation of food to ensure that commodities do not enter the United States containing illegal pesticide residues. Through section 408 of the Federal Food, Drug, and Cosmetic Act, the Environmental Protection Agency (EPA) has the authority to establish, change, or cancel tolerances for food commodities. These tolerances are the maximum levels of pesticide residues that have been determined, through comprehensive safety evaluations, to be safe for human consumption. Tolerances apply to both food commodities that are grown in the United States and food commodities that are grown in other countries and imported into the United States. While EPA has no authority in a foreign country, the tolerance levels are enforced once the commodity enters the United States. Chemicals such as DDT that are banned in the United States do not have tolerances on food commodities. Federal Government food inspectors are responsible for monitoring food commodities that enter the United States to confirm that tolerance levels are not exceeded and that residues of pesticide chemicals that are banned in the United States are not present on the commodities. Tolerance levels for all chemicals that are acceptable for use on Unshu oranges may be found in EPA's regulations in 40 CFR 180.101 through180.2020. Tolerance information can also be obtained at http://www.epa.gov/pesticides/food/viewtols.htm.

Both commenters expressed concern that the systems approach developed by South Korea was not stringent enough, given the difficulty of eradicating X. axonopodis pv. citri (citrus canker) and the potential risks from asymptomatic fruit. Concerns included the lack of requirements for worker training, equipment sanitation, and establishment of buffer zones. In particular, the commenters were concerned that the proposed rule did not mention inspection or sampling rates for citrus canker. As stated in the proposed rule, shipments of Unshu oranges to Alaska present minimal risk of introducing or disseminating citrus canker due to the lack of host material within Alaska and the lack of a suitable climate for establishment of the disease. For those reasons, and because visibly infected fruit will be culled at the packinghouse, we are not requiring a sampling regime for Unshu oranges within South Korea. In addition, fruit exposed to, but asymptomatic for, citrus canker is unlikely to have sufficient levels of viable bacteria to cause infection. However, a standard port of entry inspection rate of 2 percent would apply. APHIS has successfully operated similar programs of low risk for tropical fruit commodities imported into Alaska, such as sand pears and apples from Japan, avocados from Mexico, and sand pears from South Korea.

Both commenters also stated that, despite labeling restricting distribution of the fruit to Alaska, it may accidentally be redirected or sent through first-class mail to a citrus-producing State. As stated in the risk management document, in the past 10 years, over 24 million Unshu oranges from South Korea have been imported and only one air shipment of misdirected fruit ended up in a citrus-producing State. That shipment was immediately redirected to a non-citrus-producing State. In order for the fruit to leave Alaska by ground transport, it would have to travel by truck or car via highway, and all agricultural shipments are inspected at the U.S.-Canada border. As citrus fruit is not grown in Canada or Alaska, import restrictions for non-U.S. citrus fruit would apply. Further, we consider the volume of fruit shipped in first-class mail to be too small to present a potential pest risk. The probability of potentially infected citrus fruit reaching areas where any disease could spread is very low.

Both commenters further expressed concern regarding the lack of a requirement for sodium hypochlorite or sodium orthophenyl phenol in the required water bath and concern that the water bath could contribute to the spread of citrus canker. As stated above, we believe shipments of Unshu oranges to Alaska present a minimal risk of introducing or disseminating citrus canker due to the lack of host material and the lack of a suitable climate for establishment of the disease; therefore requiring the use of a disinfectant wash is not necessary. In addition, because the water bath requirement is actually a combination high-pressure water spray and brushing intended to remove external insect pests, there is no standing water that can serve as a medium for transmitting infection. Alternately, forced air cleaning and brushing may be used in place of the water spray. We have amended the regulatory text in § 319.28(c)(1) to make that clear.

Finally, both commenters stated that U.S. inspectors should be present to oversee all aspects of South Korea's citrus export program. In a preclearance program, U.S. inspectors are required to be onsite in the country of export to oversee shipments to the United States. However, the program for importing Unshu oranges to Alaska from South Korea is not a preclearance program. Therefore, the presence of U.S. inspectors to oversee the program is not required and, based on the reasons given in the proposed rule, is not necessary.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the change discussed in this document.

This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

The United States is not a commercial producer of Unshu oranges ( Citrus reticulata var. unshui ). The United States does produce other mandarin varieties of Citrus reticulata, such as tangerines and Satsuma mandarins. Effects of the final rule on U.S. entities will depend on (1) the substitutability in Alaska of Unshu oranges for these other mandarin varieties, and (2) Alaska's share of the U.S. supply of the other mandarin varieties. We address these overriding issues before discussing small entities that may be affected.

Unshu orange prices are higher than the prices of U.S.-grown mandarin varieties, indicating that they are not close substitutes. Retail prices of Unshu oranges are approximately $1.20 per pound, whereas other mandarin varieties, such as Satsuma, range from $0.60 to $1 per pound depending on the time of year. 2

Clearly, the effects of the final rule with respect to Alaska's broadly defined demand for all mandarin varieties are most likely to be very limited. Rather, we expect reestablished imports from South Korea to compete for a share of Alaska's Unshu orange market.

Prior to the administrative suspension in 2002, South Korea and Japan were principal suppliers of Unshu oranges to the United States. It is estimated that Alaska consumes approximately 30 percent of the Unshu oranges imported from Japan. Quantities of Unshu oranges imported from South Korea and Japan, 1995 to 2005, are shown in table 1.

This rule is issued under the Mango Promotion, Research, and Information Order [7 CFR Part 1206]. The Order is authorized under the Commodity Promotion, Research, and Information Act of 1996 (Act) [7 U.S.C. 7411-7425].

The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. The rule is not intended to have a retroactive effect and will not affect or preempt any other State or Federal law authorizing promotion or research relating to an agricultural commodity.

The Act provides that any person subject to an order may file a written petition with the Department of Agriculture (Department) if they believe that the order, any provision of the order, or any obligation imposed in connection with the order, is not established in accordance with law. In any petition, the person may request a modification of the order or an exemption from the order. The petitioner is afforded the opportunity for a hearing on the petition. After a hearing, the Department would rule on the petition. The Act provides that the district court of the United States in any district in which the petitioner resides or conducts business shall have the jurisdiction to review the Department's ruling on the petition, provided a complaint is filed not later than 20 days after the date of the entry of the ruling.

In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C. 601 et seq. ], the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities and has prepared this final regulatory impact analysis on a substantial number of small entities. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened.

The Small Business Administration defines, in 13 CFR Part 121, small agricultural producers as those having annual receipts of no more than $750,000 and small agricultural service firms as having receipts of no more than $6.5 million. First handlers, importers, wholesalers, and retailers would be considered agricultural service firms. There are approximately 5 first handlers and 55 importers subject to and assessed under the Order. The majority of these first handlers and importers would be considered small businesses while wholesalers and retailers would not.

First handlers and importers who market or import less than 500,000 pounds of mangos annually are exempt from the Order. Mangos that are exported out of the United States also are exempt from assessment. In addition, domestic producers, foreign producers, wholesalers, and retailers are not subject to or assessed under the Order, but such individuals are eligible to serve on the Board along with importers and first handlers.

The Mango Promotion, Research, and Information Order, which became effective November 4, 2004, is authorized under the Commodity Promotion, Research, and Information Act of 1996 (Act) [7 U.S.C. 7411-7425]. Pursuant to Section 515(b) of the Act, the Order provides for the establishment of a Board comprised of eight importers, one first handler, two domestic producers, seven foreign producers, and two non-voting wholesalers and/or retailers. The Board is responsible for carrying out promotion, research, and information activities intended to develop, maintain, and increase the demand of mangos in the United States. Appointments to the Board are made by the Secretary of Agriculture from a slate of nominated candidates.

Section 515(b)(5) of the Act provides that members and alternates of a board shall serve three-year terms of office and may serve a maximum of two consecutive three-year terms, except members and alternates appointed to the initial Board may serve terms of two, three, or four years. Currently, the Order states that the importer, first handler, domestic producers, and foreign producers each may serve a three-year term of office and may serve a maximum of two consecutive three-year terms, except members appointed to the initial Board serve staggered terms of two, three and four years. However, the Order provides one-year terms of office for wholesaler and/or retailer members, and such members may serve a maximum of three consecutive one-year terms.

At its February 2007 meeting, the Board reviewed the term of office for the two wholesaler and/or retailer positions. After considerable discussion and review of alternatives, the Board approved a proposal for recommendation to the Department to modify from a one year to a two year the term of office for the wholesaler and/or retailer positions. Upon review of the Board's proposal, the Department determined that the current term of office provision for the two wholesaler and/or retailer positions was not in conformance with the Act. Accordingly, this rule modifies the Order's term of office provision to provide for wholesaler and/or retailer positions terms of three years with a maximum of two consecutive three-year terms.

The amendment will bring the Order in conformance with the Act. Additionally, the overall impact of the amendment will be favorable for first handlers and importers because the amendment will provide greater Board continuity, align the wholesaler and/or retailer positions terms of office with other Board positions, and reduce the administrative burden of conducting nominations on an annual basis for these positions.

In accordance with the Office of Management and Budget (OMB) regulation [5 CFR Part 1320] which implements the Paperwork Reduction Act of 1995 [44 U.S.C. Chapter 35], the information collection requirements under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501 et seq. ], there are no new requirements contained in this rule. The information collection requirements have been previously approved by the Office of Management and Budget (OMB) under OMB control number 0581-0093.

There are no federal rules that duplicate, overlap, or conflict with this rule.

The Order became effective November 3, 2004, and is authorized under the Commodity Promotion, Research, and Information Act of 1996 [7 U.S.C. 7411-7425], and is administered by the Board. The Order provides for a 20-member Board consisting of eight importers, one first handler, two domestic producers, seven foreign producers, and two non-voting wholesalers and/or retailers.

Under the Order, the Board administers a nationally coordinated program of promotion, research, and information designed to strengthen the position of mangos in the market place and to develop, maintain, and expand the demand for mangos in the United States. The program is financed by an assessment of 1/2 cent per pound on first handlers and importers who market or import 500,000 pounds or more of mangos annually. Under the Order, first handlers remit assessments directly to the Board, and assessments paid by importers are collected and remitted by the United States Customs Service.

Section 515(b)(5) of the Act provides that members and alternates of a board shall serve three-year terms of office and may serve a maximum of two consecutive three-year terms, except members and alternates appointed to the initial board may serve terms of two, three, or four years. Currently, with the exception of the initial Board, the Order provides a three-year term of office for first handler, importer, domestic producer, and foreign producer members, and these members may serve a maximum of two consecutive three-year terms. First handlers, importers, domestic producers, and foreign producers who were appointed to the initial Board were assigned to serve staggered terms of office of two, three, and four years—ending December 31, 2007, 2008, 2009. Members serving an initial term of two or four years are eligible to serve a second term of three years. The terms of office for first handler, importer, domestic producer, and foreign producer positions are consistent with the Act.

For the two wholesaler and/or retailer Board positions, the Order currently provides a one-year term of office and members may serve a maximum of three consecutive one-year terms. Wholesaler and/or retailer members appointed to the initial Board were appointed to serve a term of office of one year with the term ending December 31, 2007. The term of office and the term limit for the wholesaler and/or retailer positions are not in conformance with the Act. Thus, this rule will modify the Order to bring it in conformance with the Act. Also, the amendment will be favorable for first handlers and importer because the amendment will provide greater Board continuity, align the wholesaler and/or retailer positions terms of office with other Board positions, and reduce the administrative burden of conducting nominations on an annual basis for these positions.

Nominations and appointments to the Board are conducted pursuant to § 1206.30 establishment and membership, § 1206.31 nominations and appointments, and § 1206.32 term of office. Appointments to the Board are made by the Secretary of Agriculture from a slate of nominated candidates. Nominations for the importer, first handler, domestic producer, and foreign producer positions are made by the respective industry organizations or individuals. Nominations for the wholesaler and/or retailer positions are made by the Board. Nominations for Board positions for terms ending December 31, 2007, will be based on the amendment contained in this rule. The term of office for such appointments will commence January 1, 2008.

An interim final rule concerning this action was published in the Federal Register (71 FR 41425) on July 30, 2007. Copies of the rule were made available through the Internet by USDA and the Office of the Federal Register . That rule provided a 30-day comment period which ended on August 29, 2007. One comment was received by the deadline.

The commenter opposed the government regulations placed on the American people. However, the comment concerned the marketing of onions.

After consideration of all relevant material presented, the Board's recommendation, and other information, it is hereby found that this rule is consistent with and will tend to effectuate the declared policy of the Act. The interim final rule as published in the Federal Register (71 FR 41425) on July 30, 2007, is adopted as a final rule, without change.

Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended (NWPA), requires that “[t]he Secretary [of the Department of Energy (DOE)] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 218(a) for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the NRC approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule in 10 CFR Part 72, which added a new Subpart K within 10 CFR Part 72, entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new Subpart L within 10 CFR Part 72, entitled “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on May 1, 2000 (65 FR 25241) that approved the HI-STORM 100 cask system design and added it to the list of NRC-approved cask designs in 10 CFR 72.214 as CoC No. 1014.

On June 23, 2006, the certificate holder, Holtec submitted an application to the NRC that requested an amendment to CoC No. 1014. Specifically, Holtec requested changes to add site-specific options to the CoC to permit use of a modified HI-STORM 100 cask system at the IP1 ISFSI. These options included the shortening of the HI-STORM 100S Version B, MPC-32 and MPC-32F and the HI-TRAC 100D Canister to accommodate site-specific restrictions. Additional changes addressed the TS definition of transport operations and associated language in the SAR; the soluble boron requirements for Array/Class 14x14E IP1 fuel; the helium gas backfill requirements for Array/Class 14x14E IP1 fuel; the addition of a fifth damaged fuel container design under the TS definition for damaged fuel container; addition of separate burnup, cooling time, and decay heat limits for Array/Class 14x14 IP1 fuel for loading in an MPC-32 and MPC-32F; addition of antimony-beryllium secondary sources as approved contents; the loading of all IP1 fuel assemblies in damaged fuel containers; the preclusion of loading of IP1 fuel debris in the MPC-32 or MPC-32F; the reduction of the maximum enrichment for Array/Class 14x14E IP1 fuel from 5.0 to 4.5 weight percent uranium-235; changes to licensing drawings to differentiate the IP1 MPC-32 and MPC-32F from the previously approved MPC-32 and MPC-32F; and other editorial changes, including replacing all references to U.S. Tool and Die with Holtec Manufacturing Division. No other changes to the Holtec HI-STORM 100 cask system were requested in this application. As documented in the SER, the NRC staff performed a detailed safety evaluation of the proposed CoC amendment request and found that an acceptable safety margin is maintained. In addition, the NRC staff has determined that there continues to be reasonable assurance that public health and safety and the environment will be adequately protected.

This direct final rule revises the HI-STORM 100 cask system listing in 10 CFR 72.214 by adding Amendment No. 4 to CoC No. 1014. The amendment consists of the changes described above as set forth in the revised CoC and TS. The particular TS which are changed are identified in the SER.

The amended HI-STORM 100 cask design, when used under the conditions specified in the CoC, the TS, and NRC regulations, will meet the requirements of Part 72; thus, adequate protection of public health and safety will continue to be ensured. After this direct final rule becomes effective, persons who hold a general license under 10 CFR 72.210 may load spent nuclear fuel into HI-STORM 100 casks that meet the criteria of Amendment No. 4 to CoC No. 1014, in accordance with 10 CFR 72.212.

Certificate No. 1014 is revised by adding the effective date of Amendment No. 4.

This rule is limited to the changes contained in Amendment No. 4 to CoC No. 1014 and does not include other aspects of the HI-STORM 100 dry storage cask system. The NRC is using the “direct final rule procedure” to issue this amendment because it represents a limited and routine change to an existing CoC that is expected to be noncontroversial. Adequate protection of public health and safety continues to be ensured. The amendment to the rule will become effective on January 8, 2008. However, if the NRC receives significant adverse comments on this direct final rule by November 26, 2007, then the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published elsewhere in this issue of the Federal Register . Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC staff to make a change (other than editorial) to the rule, CoC, or TS.

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC will revise the HI-STORM 100 cask design listed in § 72.214 (List of NRC-approved spent fuel storage cask designs). This action does not constitute the establishment of a standard that contains generally applicable requirements.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended (AEA), or the provisions of Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws but does not confer regulatory authority on the State.

The Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883), directed that the Government's documents be in clear and accessible language. The NRC requests comments on this direct final rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the address listed under the heading ADDRESSES , above.

Under the National Environmental Policy Act of 1969, as amended, and the NRC regulations in Subpart A of 10 CFR Part 51, the NRC has determined that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The NRC has prepared an environmental assessment and, on the basis of this environmental assessment, has made a finding of no significant impact. This rule will amend the CoC for the HI-STORM 100 cask design within the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites under a general license. The amendment will include changes to add site-specific options to the CoC to permit use of a modified HI-STORM 100 cask system at the IP1 ISFSI. These options include the shortening of the HI-STORM 100S Version B, MPC-32 and MPC-32F, and the HI-TRAC 100D Canister to accommodate site-specific restrictions. Additional changes address the TS definition of transport operations and associated language in the SAR; the soluble boron requirements for Array/Class 14×14E IP1 fuel; the helium gas backfill requirements for Array/Class 14×14E IP1 fuel; the addition of a fifth damaged fuel container design under the TS definition for damaged fuel container; addition of separate burnup, cooling time, and decay heat limits for Array/Class 14×14 IP1 fuel for loading in an MPC-32 and MPC-32F; addition of antimony-beryllium secondary sources as approved contents; the loading of all IP1 fuel assemblies in damaged fuel containers; the preclusion of loading of IP1 fuel debris in the MPC-32 or MPC-32F; the reduction of the maximum enrichment for Array/Class 14×14E IP1 fuel from 5.0 to 4.5 weight percent uranium-235; changes to licensing drawings to differentiate the IP1 MPC-32 and MPC-32F from the previously approved MPC-32 and MPC-32F; and other editorial changes, including replacing all references to U.S. Tool and Die with Holtec Manufacturing Division. The environmental assessment and finding of no significant impact on which this determination is based are available for inspection at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. Single copies of the environmental assessment and finding of no significant impact are available from Jayne M. McCausland, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-6219, e-mail jmm2@nrc.gov.

This direct final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing requirements were approved by the Office of Management and Budget (OMB), Approval Number 3150-0132, 10 CFR part 72.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR Part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in 10 CFR 72.214. On May 1, 2000 (65 FR 25241), the NRC issued an amendment to part 72 that approved the HI-STORM 100 cask design by adding it to the list of NRC-approved cask designs in 10 CFR 72.214. On June 23, 2006, the certificate holder, Holtec, submitted an application to the NRC to amend CoC No. 1014 to add site-specific options to the CoC to permit use of a modified HI-STORM 100 cask system at the IP1 ISFSI. These options included the shortening of the HI-STORM 100S Version B, MPC-32 and MPC-32F, and the HI-TRAC 100D Canister to accommodate site-specific restrictions. Additional changes addressed the TS definition of transport operations and associated language in the SAR; the soluble boron requirements for Array/Class 14×14E IP1 fuel; the helium gas backfill requirements for Array/Class 14×14E IP1 fuel; the addition of a fifth damaged fuel container design under the TS definition for damaged fuel container; addition of separate burnup, cooling time, and decay heat limits for Array/Class 14×14 IP1 fuel for loading in an MPC-32 and MPC-32F; addition of antimony-beryllium secondary sources as approved contents; the loading of all IP1 fuel assemblies in damaged fuel containers; the preclusion of loading of IP1 fuel debris in the MPC-32 or MPC-32F; the reduction of the maximum enrichment for Array/Class 14×14E IP1 fuel from 5.0 to 4.5 weight percent uranium-235; changes to licensing drawings to differentiate the IP1 MPC-32 and MPC-32F from the previously approved MPC-32 and MPC-32F; and other editorial changes, including replacing all references to U.S. Tool and Die with Holtec Manufacturing Division.

The alternative to this action is to withhold approval of Amendment No. 4 and to require any part 72 general licensee, seeking to load spent fuel into HI-STORM 100 casks under Amendment No. 4, to request an exemption from the requirements of 10 CFR 72.212 and 72.214. Under this alternative, each interested part 72 licensee would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee.

Approval of the direct final rule is consistent with previous NRC actions. Further, as documented in the SER and the environmental assessment, the direct final rule will have no adverse effect on public health and safety. This direct final rule has no significant identifiable impact or benefit on other Government agencies. Based on this regulatory analysis, the NRC concludes that the requirements of the direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and thus, this action is recommended.

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and Holtec. These entities do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).

The NRC has determined that the backfit rule (10 CFR 72.62) does not apply to this direct final rule because this amendment does not involve any provisions that would impose backfits as defined in 10 CFR Chapter I. Therefore, a backfit analysis is not required.

Under the Congressional Review Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs and OMB.

Section 344.9(a)(3) of Part 344 of the FDIC's recordkeeping and confirmation requirements for effecting securities transactions requires all bank officers of state nonmember banks and all employees who, in connection with their duties, make or participate in investment decisions for the accounts of customers (“certain employees”) to report to the bank all securities transactions made by them or on their behalf in which they have a beneficial interest within 10-business days after the end of the calendar quarter. 1 At the time it was adopted, this provision, among others, reflected the U.S. Securities and Exchange Commission's (“SEC”) recommendations contained in the Final Report of the Securities and Exchange Commission on Bank Securities Activities (June 30, 1977) and generally was patterned after SEC regulations. 2 Specifically, section 344.9(a)(3) was intended to be comparable to the SEC's Rule 17j-1 of the Investment Company Act of 1940, which required “access persons” to report personal securities transactions quarterly and originally mandated a 10-business day period for reporting. 3

The SEC, in July 2004, amended Rule 17j-1 to extend the reporting time period to 30-calendar days after the end of the calendar quarter. 4 The effective date of the SEC's amendments to Rule 17j-1 was August 31, 2004, with a compliance date of January 7, 2005.

On June 27, 2007, the FDIC published for comment a Notice of Proposed Rulemaking to amend section 344.9(a)(3) to extend the time period for reporting quarterly personal securities transactions to 30-calendar days after the end of the calendar quarter. 5 The comment period was 60 days, and expired on August 27, 2007. The FDIC received one comment on this proposal. The commenter supported the proposed amendment and agreed that the purpose of extending the reporting deadline was to align the FDIC's requirements with the SEC's, and to promote practical and uniform recordkeeping requirements.

As explained above, the FDIC received one industry comment on its proposal to extend the personal securities transactions reporting requirement to 30-calendar days after the end of the calendar quarter, which comment endorsed the FDIC's reasoning for its proposal. Accordingly, the FDIC is adopting the rule as proposed with no revisions.

Section 722 of the Gramm-Leach-Bliley Act (12 U.S.C. 4809) requires the FDIC to use “plain language” in all proposed and final rules published after January 1, 2000. The proposed rule requested comments on how the rule might be changed to reflect the requirements of GLBA. No comments were received.

Under section 605(b) of the Regulatory Flexibility Act (“RFA”) (5 U.S.C. 605(b)) the regulatory flexibility analysis otherwise required under section 603 of the RFA (5 U.S.C. 603) is not required if the head of the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and the agency publishes such certification and a statement explaining the factual basis for such a certification in the Federal Register along with its rule.

Pursuant to section 605(b) of the RFA, the FDIC certifies that this final rule will not have a significant impact on a substantial number of small entities. The FDIC does not expect that this rule will create any additional burden on small entities. In effect, the rule extends to 30-calendar days the reporting period within which officers and certain employees of state nonmember banks have to report their personal securities transactions and gives these individuals more latitude to report their quarterly securities transactions. Accordingly, a regulatory flexibility analysis is not required.

The recordkeeping and reporting requirements for securities transactions in Part 344 constitute a collection of information as defined by the Paperwork Reduction Act. The information collection has been approved by the Office of Management and Budget under control number 3064-0028. The reporting requirements and burden associated with that collection would not be affected by this rule.

TVA regularly receives subpoenas and other informal requests for documents and requests for TVA employees to provide testimony or evidence in cases in which TVA is not a party. Sometimes these subpoenas or requests are for TVA records that are not available to the public under the Freedom of Information Act. TVA also receives requests for TVA employees to appear as witnesses in litigation and to provide testimony relating to materials contained in TVA's official records or provide testimony or information acquired during the performance of the employees' official duties.

Although many other federal agencies currently have regulations in place to address these types of requests, and TVA itself has rules implementing the Freedom of Information Act that govern requests for information from the general public, TVA has not had official regulations governing subpoenas and other information requests for document production and testimony of TVA employees in legal proceedings. Issues about such requests that have arisen in recent years warrant adoption of regulations governing their submission, evaluation, and processing. Responding to these requests is not only burdensome, but may also result in a significant disruption of a TVA employee's work schedule and possibly involve TVA in issues unrelated to its responsibilities. In order to resolve these issues, many agencies have issued regulations, similar to this final regulation, governing the circumstances and manner in which an employee may respond to demands for testimony or for the production of documents. Establishing uniform procedures for legal processes will ensure timely notice and promote centralized decision making. The United States Supreme Court upheld this type of regulation in United States ex rel. Touhy v. Ragen , 340 U.S. 462 (1951).

On September 10, 2007, TVA published in the Federal Register its own proposed Touhy regulation, for codification in part 1301 of 18 CFR. See 72 FR 51572-51574, which provided for a 30 day comment period. TVA did not receive any comments on the proposed rule, and is issuing the final rule with no substantive changes from the proposed rule.

The final rule will formalize past practices already utilized by TVA in responding to requests for disclosure of official records or testimony by TVA employees when TVA is not a party to the litigation. Briefly summarized, the final rule will prohibit disclosure of official records or testimony by TVA's employees, as defined in section 1301.52, unless there is compliance with the rule. The final rule sets out the information that requesters must provide and the factors that TVA will consider in making determinations in response to requests for testimony or the production of documents. The final rule sets forth TVA's standard practice of providing employee testimony by affidavit only and clarifies those steps requesters must follow in order to obtain official TVA documents, including how to accomplish service of process on TVA. The final rule also establishes a new practice that service can now be accomplished by United States mail.

This final rule applies to a range of matters in any legal proceeding in which TVA is not a named party. Current and former TVA employees will not provide testimony about specific matters involving information which they acquired during the performance of their official duties unless permitted to testify as provided in the rule. They are not restricted from providing testimony on their own time about general matters unconnected with the specific TVA matters.

This final rule will ensure a more efficient use of TVA's resources, minimize the possibility of involving TVA in issues unrelated to its responsibilities, promote uniformity in responding to such subpoenas and like requests, and maintain the impartiality of TVA in matters that are in dispute between other parties. It will also serve TVA's interest in protecting sensitive, confidential, and privileged information and records that are generated in fulfillment of TVA's statutory responsibilities.

The final rule is internal and procedural rather than substantive. It does not create a right to obtain official records or the official testimony of a TVA employee nor does it create any additional right or privilege not already available to TVA to deny any demand or request for testimony or documents. Failure to comply with the procedures set out in these regulations would be a basis for denying a demand or request submitted to TVA.

Luitpold Pharmaceuticals, Inc., Animal Health Division, Shirley, NY 11967, filed a supplement to NADA 140-958 that provides for use of EQUIPHEN (phenylbutazone) Paste in horses for relief of inflammatory conditions associated with the musculoskeletal system. The supplemental NADA provides for a revised human food safety warning on product labeling. The supplemental NADA is approved as of September 26, 2007, and the regulations are amended in 21 CFR 520.1720c to reflect the approval.

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

FDA has determined under 21 CFR 25.33(a)(1) 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.

Elanco Animal Health, A Division of Eli Lilly & Co., Lilly Corporate Center, Indianapolis, IN 46285, filed NADA 141-277 that provides for veterinary prescription use of COMFORTIS (spinosad) Chewable Tablets to kill fleas and for the prevention and treatment of flea infestations ( Ctenocephalides felis ) on dogs for 1 month. The NADA is approved as of September 25, 2007, and the regulations in 21 CFR part 520 are amended by adding § 520.2130 to reflect the approval.

In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application 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.

Under section 512(c)(2)(F)(i) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(i)), this approval qualifies for 5 years of marketing exclusivity beginning on the date of approval.

FDA has determined under 21 CFR 25.33(d)(1) 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.

Merial Ltd., 3239 Satellite Blvd., Bldg. 500, Duluth, GA 30096-4640 has informed FDA that it has transferred ownership of, and all rights and interest in, the following five approved NADAs to Huvepharma AD, 33 James Boucher Blvd., Sophia 1407, Bulgaria:

Accordingly, the agency is amending the regulations in 21 CFR 520.100, 558.55, 558.58, and 558.175 to reflect the transfer of ownership.

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.

Schering-Plough Animal Health Corp., 556 Morris Ave., Summit NJ 07901, has informed FDA that it has transferred ownership of, and all rights and interest in, the following seven approved NADAs to Huvepharma AD, 33 James Boucher Blvd., Sophia 1407, Bulgaria:

Accordingly, the agency is amending the regulations in 21 CFR 558.198 to reflect the transfer of ownership.

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.

On August 18, 2004, the IRS and Treasury Department published a notice of proposed rulemaking (REG-130863-04) in the Federal Register (69 FR 51209) proposing regulations that would provide guidance regarding the effect of certain transfers of assets or stock on the qualification of a transaction as a reorganization under section 368(a) (the proposed regulations). The proposed regulations also included amendments to the continuity of business enterprise (COBE) regulations under § 1.368-1(d) and the definition of a “party to a reorganization” under § 1.368-2(f). The proposed regulations replaced an earlier proposal, dated March 2, 2004 (REG-165579-02) and published in the Federal Register (69 FR 9771), which was withdrawn. No public hearing regarding the proposed regulations was requested or held. However, a number of comments were received, the most significant of which are discussed in this preamble.

The theory underlying the tax-free treatment afforded reorganizations described in section 368 is that such transactions “effect only a readjustment of continuing interest in property under modified corporate forms.” See § 1.368-1(b). The continuity of interest and continuity of business enterprise requirements are expressions of this principle. Earlier cases also implemented this principle through a concept that later became known as the prohibition of “remote” continuity of interest. Commonly viewed as arising out of the Supreme Court decisions in Groman v. Commissioner , 302 U.S. 82 (1937), and Helvering v. Bashford , 302 U.S. 454 (1938), remote continuity of interest focuses on the link between the former target corporation (T) shareholders and the T business assets following the reorganization.

Since the Supreme Court's decisions in Groman and Bashford, it has been recognized that other transactions, including transactions involving the same level of “remoteness” as addressed in the Groman and Bashford decisions, adequately preserve the link between the former T shareholders and the T business assets and therefore constitute mere readjustments of continuing interests. Accordingly, legislative, regulatory, and administrative developments have provided significantly more flexibility regarding transfers of stock and assets following otherwise tax-free reorganizations where this link is adequately maintained. For example, Congress enacted section 368(a)(2)(D) to expressly allow a triangular reorganization by permitting a controlled subsidiary to use its parent's stock as consideration in a merger. Similarly, the term “party to a reorganization” was broadened to include the parent in such a case.

In addition, Congress enacted section 368(a)(2)(C), which provides that a transaction otherwise qualifying under section 368(a)(1)(A), (B), (C), or (G) (where the requirements of section 354(b) are met) is not disqualified where part or all of the acquired assets or stock is transferred to a corporation that is controlled (as defined in section 368(c)) by the acquiring corporation. Section 1.368-2(k), as in effect prior to these final regulations, expanded the scope of section 368(a)(2)(C) by permitting successive transfers of the acquired assets or stock to one or more corporations, provided that the transferee corporation was controlled in each transfer by the transferor corporation. Administratively, the IRS and Treasury Department have since interpreted section 368(a)(2)(C) and § 1.368-2(k) as permissive rather than exclusive or restrictive, concluding that certain transfers not specifically described in either of those provisions did not disqualify the reorganization. See Rev. Rul. 2001-24 (2001-1 CB 1290) permitting the transfer of acquiring subsidiary stock to a controlled subsidiary following a reorganization described in section 368(a)(1)(A) by reason of (a)(2)(D), and Rev. Rul. 2002-85 (2002-2 CB 986) permitting the transfer of acquired assets to a controlled subsidiary following a reorganization described in section 368(a)(1)(D).

The current regulations do not contain separate rules addressing remote continuity because the IRS and Treasury Department believe that these issues are adequately addressed by the rules adopted to implement the continuity of business enterprise requirement. See TD 8760 (63 FR 4174). Similarly, the rules relating to the continuity of business enterprise requirement have been broadened over the years to permit transactions that adequately preserve the link between the former T shareholders and the T business assets. Under § 1.368-1(d), as in effect prior to these final regulations, the COBE requirement generally is satisfied as long as a member of the qualified group (or, in certain cases, a partnership) either continues T's historic business or uses a significant portion of T's historic business assets in a business. A qualified group is defined in § 1.368-1(d)(4)(ii), as in effect prior to these final regulations, as one or more chains of corporations connected through stock ownership with the issuing corporation, but only if the issuing corporation owns directly stock meeting the requirements of section 368(c) in at least one of the corporations, and stock meeting the requirements of section 368(c) in each of the corporations (other than the issuing corporation) is owned directly by one of the other corporations.

These final regulations continue the trend of broadening the rules regarding transfers of assets or stock following an otherwise tax-free reorganization where the transaction adequately preserves the link between the former T shareholders and the T business assets. Accordingly, the definition of a “qualified group” in § 1.368-1(d)(4)(ii) and the rules regarding stock or asset transfers in § 1.368-2(k) have been expanded. Conforming changes to § 1.368-2(f), relating to the definition of “a party to a reorganization,” also have been made.

Several commentators urged that the definition of “qualified group” under § 1.368-1(d)(4)(ii) should not be restricted by the control requirement of section 368(c), but rather should be expanded to parallel the definition of an affiliated group under section 1504(a). The IRS and Treasury Department have declined to make this change, primarily because the section 368(c) definition of control is a major structural component underlying the statutory framework of the reorganization provisions. On the other hand, the IRS and Treasury Department have concluded that it is consistent with reorganization policy to expand the definition of a qualified group. Specifically, § 1.368-1(d)(4)(ii), as revised by this Treasury decision, permits qualified group members to aggregate their direct stock ownership of a corporation in determining whether they own the requisite section 368(c) control in such corporation (provided that the issuing corporation owns directly stock meeting such control requirement in at least one other corporation). This aggregation concept is similar to the one found in section 1504(a). The IRS and Treasury Department believe that aggregating stock ownership within the qualified group adequately preserves the link between the former T shareholders and the T business assets while further facilitating the post-acquisition relocation of assets and stock as necessary within the group.

Finally, as discussed in section B.3. of this preamble, and in response to comments, the COBE regulations have been expanded to provide that if members of the qualified group own interests in a partnership that meets requirements equivalent to the control definition in section 368(c), any stock owned by such partnership is treated as owned by members of the qualified group. Thus, for example, following a reorganization under section 368(a)(1)(B), T remains a member of the qualified group upon a transfer of the T stock to a partnership in which members of the qualified group own all the interests. See section B.3. of this preamble. Similarly, a wholly owned subsidiary of a partnership in which members of the qualified group own all the interests will be a member of the qualified group. Accordingly, following a reorganization under section 368(a)(1)(A), the acquiring corporation may transfer the T assets to the subsidiary (either directly or through the partnership) without violating the COBE requirement.

As provided in § 1.368-1(a), a transaction must be evaluated under all relevant provisions of law, including the step transaction doctrine, in determining whether it qualifies as a reorganization under section 368(a). Section 1.368-2 provides guidance regarding whether a transaction satisfies the explicit statutory requirements of a particular reorganization. Section 1.368-2(k) generally provides that a transaction otherwise qualifying as a reorganization will not be disqualified as a result of certain subsequent transfers of assets or stock. The fact that a subsequent transfer of assets or stock is not described in § 1.368-2(k) does not necessarily preclude reorganization qualification, but the overall transaction would then be subject to analysis under the step transaction doctrine.

These final regulations adopt the rules of the proposed regulations regarding subsequent transfers of assets or stock with certain modifications. Section 1.368-2(k), as revised by this Treasury decision, generally provides that a transaction otherwise qualifying as a reorganization under section 368(a) shall not be disqualified or recharacterized as a result of one or more subsequent transfers (or successive transfers) of assets or stock, provided that the COBE requirement is satisfied and the transfer(s) qualify as “distributions” or “other transfers” (as described in § 1.368-2(k)(1), and as discussed in section B.1. and B.2., respectively, of this preamble).

Proposed § 1.368-2(k) would permit the acquiring corporation to distribute to certain shareholders part or all of the stock or assets acquired in a transaction otherwise qualifying as a reorganization without affecting its characterization as such. The proposed regulations would generally permit distributions to certain shareholders provided that no distributee receives “substantially all” of the acquired assets, including the assets of a corporation whose stock is acquired in the reorganization, or stock constituting control of the acquired corporation. This limitation reflected the concern that such a transaction might be more properly characterized as a direct acquisition by the distributee. For example, Rev. Rul. 67-274 (1967-2 CB 141) held that an acquisition of T stock in a purported reorganization under section 368(a)(1)(B) followed by a prearranged liquidation of T is treated as a reorganization under section 368(a)(1)(C); Rev. Rul. 72-405 (1972-2 CB 217) held that an acquisition of T in a forward triangular merger followed by a prearranged liquidation of the acquiring corporation is treated as a reorganization under section 368(a)(1)(C); and Rev. Rul. 2004-83 (2004-2 CB 157) held that a purchase of T stock from the common shareholder followed by a prearranged liquidation of T is treated as a reorganization under section 368(a)(1)(D).

Commentators raised an administrative concern that the parameters of the “substantially all” standard are less than certain, at least under case law, and, thus, requested that a safe harbor test be adopted in the final regulations. The IRS and Treasury Department believe that this is a valid concern. Accordingly, these final regulations have adopted a different approach than the “substantially all” standard of the proposed regulations. The new approach in these final regulations focuses on whether the distribution consists of an amount of assets (disregarding any assets held by the acquiring corporation, or the merged corporation in the case of a reorganization under section 368(a)(1)(A) by reason of (a)(2)(E), prior to the transaction) that would result in the distributing corporation being treated as liquidated for Federal income tax purposes.

The IRS and Treasury Department believe that this approach will be easier for taxpayers to apply and the government to administer than the “substantially all” standard in the proposed regulations. In addition, this approach more fully preserves the analysis and conclusions set forth in Rev. Rul. 67-274, Rev. Rul. 72-405, and Rev. Rul. 2004-83, in the context of Congress having required the target corporation to liquidate in all asset reorganizations. Finally, this approach more consistently applies the principles of section 368(a)(2)(C) (which allows for transfers of all of the acquired assets or stock) to post-acquisition distributions.

Specifically, these final regulations provide that a transaction otherwise qualifying as a reorganization will not be disqualified or recharacterized as a result of one or more distributions of assets, stock of the acquired corporation, or both, provided the COBE requirement is satisfied and the distributions do not result in a liquidation of the distributing corporation for Federal income tax purposes (disregarding, for this purpose, assets held by the acquiring corporation, or the merged corporation in the case of a reorganization under section 368(a)(1)(A) by reason of (a)(2)(E), prior to the transaction). Additionally, in the case of distributions of stock of the acquired corporation, these final regulations only protect the transaction from disqualification or recharacterization if the distributions consist of less than all of the stock of the acquired corporation that was acquired in the transaction and do not cause the acquired corporation to cease to be a member of the qualified group.

These final regulations also clarify that certain indirect distributions of assets are treated under § 1.368-2(k) in the same manner as a direct distribution of those assets. For example, such an indirect distribution of assets can occur where, following a transaction that otherwise qualifies as a reorganization under section 368(a)(1)(A), the acquiring corporation transfers a portion of the T assets to a partnership (or a corporation) in exchange for an interest in the transferee partnership (or stock in the transferee corporation) in an “other transfer” described in § 1.368-2(k)(1)(ii), and then distributes that partnership interest (or stock) to a shareholder.

Finally, the IRS and Treasury Department believe that distributions of assets under these final regulations that involve the assumption of liabilities are distinguishable from the transaction analyzed in Rev. Rul. 70-107 (1970-1 CB 78). That ruling considered a transaction in which the acquiring corporation acquired all of the target corporation's assets in exchange for voting stock of the acquiring corporation's parent. In the transaction, the target corporation's liabilities were assumed in part by the acquiring corporation and in part by the acquiring corporation's parent. The ruling holds that the parent corporation's direct assumption of some of the target corporation's liabilities violates the solely for voting stock requirement of section 368(a)(1)(C). These final regulations do not implicate the fact pattern addressed in Rev. Rul. 70-107.

Proposed § 1.368-2(k) would provide, in part, that a transaction otherwise qualifying as a reorganization under section 368(a) would not be disqualified if any assets or stock of a party to the reorganization, other than the stock of the issuing corporation, is subsequently transferred to a member of the qualified group. Commentators asked that the reference to transfers of stock of the issuing corporation be removed, stating that the effect, if any, of a transfer of the stock of the issuing corporation is adequately addressed by the continuity of interest rules under § 1.368-1(e). The IRS and Treasury Department agree. In response to this comment (and comments regarding the interaction with the definition of a party to the reorganization in § 1.368-2(f)), this provision has been revised to refer to the assets or stock of the acquired corporation, the acquiring corporation, or the surviving corporation, as the case may be.

Accordingly, these final regulations provide that a transaction otherwise qualifying as a reorganization will not be disqualified or recharacterized as a result of one or more transfers (that do not constitute distributions) of assets or stock, or both, of the acquired corporation, the acquiring corporation, or the surviving corporation, as the case may be, provided the COBE requirement is satisfied, and the acquired corporation, the acquiring corporation, or the surviving corporation, as the case may be, does not terminate its corporate existence in connection with the transfer(s). In the case of transfers of stock of the acquired corporation, the acquiring corporation, or the surviving corporation, as the case may be, these final regulations only protect the transaction from disqualification or recharacterization if the transfers do not cause such corporation to cease to be a member of the qualified group.

Example 3 of former § 1.368-2(k), issued January 28, 1998 (63 FR 4174), involved a transfer of stock of the acquired corporation to a partnership. In the example, P acquired all the stock of T solely in exchange for P stock in a transaction that otherwise qualified as a reorganization under section 368(a)(1)(B). Immediately thereafter, P transferred the T stock to members of its qualified group, who then transferred the T stock to a partnership all of the interests in which were owned by such members. The example concludes that because the transfer of T stock to the partnership is not described in § 1.368-2(k), the characterization of the transaction must be determined under relevant provisions of law, including the step transaction doctrine. The example further concludes that the transaction fails to meet the control requirement of a reorganization described in section 368(a)(1)(B) because immediately after the transaction the acquiring corporation does not have control of T. The preamble to the proposed regulations indicated that the IRS and Treasury Department were reexamining the conclusion set forth in Example 3 and requested comments in this regard. Consequently, Example 3 was not included in the proposed regulations. Comments were received and considered in the course of studying this issue.

After further examination, the IRS and Treasury Department have concluded that transfers of stock of a corporation to a controlled partnership (that is, one in which members of the qualified group own interests meeting requirements equivalent to section 368(c)) adequately preserve the link between the former T shareholders and the T business assets. This section 368(c) equivalent control standard is applied to transfers of stock to a partnership in order to protect the section 368(c) control requirement applicable to triangular and stock acquisition reorganizations. Accordingly, these final regulations reverse the conclusion reached in Example 3 of former § 1.368-2(k).

To accommodate these policy considerations, the final regulations permit both distributions of stock of the acquired corporation and other transfers of stock of the acquired corporation, the acquiring corporation, or the surviving corporation, as the case may be, provided the transfer of stock does not cause the transferred corporation to cease to be a member of the COBE qualified group. To that end, as described in section A. of this preamble, the COBE regulations have been expanded to provide that if members of the qualified group own interests in a partnership that meet requirements equivalent to the control definition in section 368(c), any stock owned by such partnership is attributed to and treated as owned by members of the qualified group. Accordingly, this full stock attribution rule treats partnerships in a manner similar to members of the COBE qualified group.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations and, because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Internal Revenue Code, these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small businesses.

The principal author of these final regulations is Mary W. Lyons of the Office of Associate Chief Counsel (Corporate). However, other personnel from the IRS and Treasury Department participated in their development.

IRS revenue rulings, procedures, and notices cited in this preamble are made available by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.

The Coast Guard will enforce the special local regulations for the Eastport Yacht Club lighted boat parade on the waters of Spa Creek and the Severn River at Annapolis, Maryland in 33 CFR 100.511 on December 8, 2007 from 4:30 p.m. until 9 p.m. These regulations can be found in the May 24, 1989 issue of the Federal Register (54 FR 22438).

The Eastport Yacht Club will sponsor a lighted boat parade on the waters of Spa Creek and the Severn River at Annapolis, Maryland. The event will consist of approximately 50 boats traveling at slow speed along two separate parade routes in Annapolis Harbor. The participating boats will range in length from 10 to 60 feet, and each will be decorated with holiday lights.

In order to ensure the safety of participants, spectators and transiting vessels, 33 CFR 100.511 will be in effect for the duration of the event. Under provisions of 33 CFR 100.511, vessels may not enter the regulated area without permission from the Coast Guard Patrol Commander. Spectator vessels may anchor outside the regulated area but may not block a navigable channel. Because these restrictions will be in effect for a limited period, they should not result in a significant disruption of maritime traffic. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

This notice is issued under authority of 33 CFR 100.511 and 5 U.S.C. 552(a). In addition to this notice, the maritime community will be provided extensive advance notification via the Local Notice to Mariners, marine information broadcasts, local radio stations and area newspapers, so mariners can adjust their plans accordingly. If the Captain of the Port or Patrol Commander determines that the regulated area need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(8), the Coast Guard finds that good cause exists for not publishing an NPRM. Because the hazardous condition is expected to last for approximately four (4) hours of each day, and because general permission to enter the safety zone will be given during non-hazardous times, the impact of this rule on commercial and recreational traffic is expected to be minimal. Any delay encountered in this regulation's effective date would be contrary to public interest because immediate action is needed to protect human life and property from possible fallout from the rocket launch. The parameters of the zone will not unduly impair business and transits of vessels. The Coast Guard will announce via Broadcast Notice to Mariners the anticipated date and time of each launch and will grant general permission to enter the safety zone during those times in which the launch does not pose a hazard to mariners.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The process of scheduling a rocket launch is uncertain due to unforeseen delays such as weather that can cause cancellation of the launch. The Coast Guard attempts to publish a final rule as close to the expected launch date as possible; however, these attempts often prove futile due to frequent and unexpected re-scheduling. Any delay encountered in this regulation's effective date would be unnecessary and contrary to public interest since immediate action is needed to protect human life and property from possible fallout from the rocket launch. The parameters of the zone will not unduly impair business and transits of vessels. The Coast Guard will announce via Broadcast Notice to Mariners the anticipated date and time of each launch and will grant general permission to enter the safety zone during those times in which the launch does not pose a hazard to mariners.

The Alaska Aerospace Development Corporation will launch an unmanned rocket from their facility at Narrow Cape, Kodiak Island, Alaska sometime between 12 p.m. and 4 p.m. during a five-day period between September 28, 2007 and October 31, 2007. The safety zone is necessary to protect spectators and transiting vessels from the potential hazards associated with the launch. The duration of the safety zone period will allow time for proper surveillance to be conducted to ensure the public is clear of the hazard area prior to and immediately following the rocket launch. The Captain of the Port, Western Alaska will terminate the safety zone after rocket launch operations are complete.

The Coast Guard will announce via Broadcast Notice to Mariners the anticipated date and time of the launch and will grant general permission to enter the safety zone during those times in which a launch schedule does not pose a hazard to mariners. Because the hazardous situation is expected to last for approximately four (4) hours each day during the five-day launch window period, and because general permission to enter the safety zone will be given during non-hazardous times, the impact of this rule on commercial and recreational traffic is expected to be minimal.

From the latest information received from the Alaska Aerospace Development Corporation, the launch window is scheduled for four (4) hours during a five-day period between September 28, 2007 and October 31, 2007. The size and duration of the safety zone has been set to protect the public from potential hazards associated with the launch. The Pacific Range Support Team has identified a launch area exclusion zone from the area north of Narrow Cape to a point south of Ugak Island along the launch trajectory. The COTP will enforce a single safety zone in support of their exclusion zone. The established safety zone includes the navigable waters in the vicinity of Narrow Cape and Ugak Island, within the boundaries defined by a line drawn from a point located at 57°29.8′ North, 152° 17.0′ West, then southeast to a point located at 57° 21.1′ North, 152° 11.2′ West, then southwest to a point located at 57° 19.9′ North, 152° 14.2′ West, and then northwest to a point located at 57° 25.4′ North, 152° 28.2′ West, and then northeast to the point located at 57°29.8′ North, 152° 17.0′ West. All coordinates reference Datum: NAD 1983.

This safety zone is necessary to protect transiting vessels from the potential hazards associated with the Rocket launch. The Coast Guard will announce via Broadcast Notice to Mariners the anticipated date and time of the launch and will grant general permission to enter the safety zone during those times in which the launch does not pose a hazard to mariners.

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 cost and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Homeland Security (DHS) (44 FR 11040; February 26, 1979). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DHS is unnecessary. Because the hazardous situation is expected to last for approximately four (4) hours each day during the five-day launch window period, and because general permission to enter the safety zone will be given during non-hazardous times, the impact of this rule on commercial traffic should be minimal. Before the effective period, we will issue maritime advisories widely available to users of the affected portion of the Gulf of Alaska. We believe there will be minimal economic impact on commercial traffic.

Under the Regulatory Flexibility Act (5 U.S.C. 601—612), we have considered whether this rule would have significant economic impacts 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 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, anchor, or fish in a portion of the Gulf of Alaska from north of Narrow Cape to South of Ugak Island from 12 p.m. to 4 p.m. each day from September 28, 2007 until October 31, 2007 until rocket launch operations are complete. Because the hazardous situation is expected to last for approximately four (4) hours of each day during the five-day launch window period, and because general permission to enter the safety zone will be given during non-hazardous times, the impact of this rule on commercial and recreational traffic should be minimal. Before the effective period, we will issue maritime advisories widely available to users of the affected portion of the Gulf of Alaska. We believe there will be minimal impact to small entities.

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 this rule 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 effect 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 economically significant and does not cause 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 would 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 invite your comments on how this proposed rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the order.

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 made a preliminary determination 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, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction, from further environmental documentation because this rule establishes a safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES .

The supplementary information is organized in the following order:

The EPA is providing notice of an update to its delegable authority for implementation and enforcement of the Federal standards shown in the tables below to the states of Iowa, Kansas, Missouri, and Nebraska. This action updates the delegation tables previously published at 72 FR 1937 (January 17, 2007). The EPA has established procedures by which these agencies are automatically delegated the authority to implement the standards when they adopt regulations which are identical to the Federal standards. We then periodically provide notice of the new and revised standards for which delegation has been given. This notice does not affect or alter the status of the listed standards under state or Federal law.

1. Section 111(c)(1) of the Clean Air Act (CAA) authorizes EPA to delegate authority to any state agency which submits adequate regulatory procedures for implementation and enforcement of the NSPS program. The NSPS are codified at 40 CFR part 60.

2. Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorizes the EPA to delegate authority to any state or local agency which submits adequate regulatory procedures for implementation and enforcement of emission standards for hazardous air pollutants. The hazardous air pollutant standards are codified at 40 CFR parts 61 and 63, respectively.

Delegation confers primary responsibility for implementation and enforcement of the listed standards to the respective state and local air agencies. However, EPA also retains the concurrent authority to enforce the standards.

Tables I, II, and III below list the delegated standards. Each item listed in the Subpart column has two relevant dates listed in each column for each state. The first date in each block is the reference date to the CFR contained in the state rule. In general, the state or local agency has adopted the applicable standard through the date as noted in the table. The second date is the most recent effective date of the state agency rule for which the EPA has granted the delegation. This notice specifically addresses revisions to the columns for Iowa, Kansas, Missouri, and Nebraska.

1. The EPA regulations effective after the first date specified in each block have not been delegated, and authority for implementation of these regulations is retained solely by EPA.

2. In some cases, the standards themselves specify that specific provisions cannot be delegated. In such cases, a specific section of the standard details what authorities can and cannot be delegated. You should review the applicable standard in the CFR for this information.

3. In some cases, the state rules do not adopt the Federal standard in its entirety. Each state rule (available from the respective agency) should be consulted for specific information.

4. In some cases, existing delegation agreements between the EPA and the agencies limit the scope of the delegated standards. Copies of delegation agreements are available from the state agencies, or from this office.

5. With respect to 40 CFR part 63, subpart A, General Provisions (see Table III), the EPA has determined that sections 63.6(g), 63.6(h)(9), 63.7(e)(2)(ii) and (f), 63.8(f), and 63.10(f) cannot be delegated. Additional information is contained in an EPA memorandum titled “Delegation of 40 CFR Part 63 General Provisions Authorities to State and Local Air Pollution Control Agencies” from John Seitz, Director, Office of Air Quality Planning and Standards, dated July 10, 1998.

All sources subject to the requirements of 40 CFR parts 60, 61, and 63 are also subject to the equivalent requirements of the above-mentioned state or local agencies.

This notice informs the public of delegations to the above-mentioned agencies of the above-referenced Federal regulations.

Entities potentially affected by this action include those involved with the production and importation of conventional gasoline motor fuel. Regulated categories and entities affected by this action include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could be potentially regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria of Part 80, subparts D, E, F and J of title 40 of the Code of Federal Regulations. If you have any question regarding applicability of this action to a particular entity, consult the person in the preceding FOR FURTHER INFORMATION CONTACT section above.

Section 211(k) of the Clean Air Act (“CAA” or “Act”) requires EPA to establish standards for cleaner burning reformulated gasoline (RFG) to be used in specified ozone nonattainment areas. The Act also requires EPA to establish requirements for non-RFG, or conventional gasoline, designed to prevent refiners from “dumping” into conventional gasoline the dirty gasoline components that are removed when RFG is produced. The requirements for conventional gasoline are called “anti-dumping” requirements. To be in compliance with these requirements, the exhaust toxics and nitrogen oxides (NO X ) emissions performance of a refinery's or importer's conventional gasoline must be no dirtier than the refinery's or importer's 1990 exhaust toxics and NO X emissions performance, on an annual average basis.

The anti-dumping regulations require refiners to calculate the exhaust toxics and NO X emissions performance of gasoline using a predictive model, called the Complex Model. See 40 CFR 80.45. The Complex Model has a summer version and a winter version. 1 For the same fuel composition (based on those fuel parameters evaluated in the Complex Model), the winter Complex Model predicts significantly higher emissions of exhaust toxics and NO X than the summer Complex Model, on a mg/mile basis.

The anti-dumping regulations require refineries and importers of conventional gasoline to comply with an established baseline for exhaust toxics and NO X . The baseline is either an “individual baseline” or the “anti-dumping statutory baseline.” An individual baseline is based on the average performance of the gasoline that the individual refinery or importer produced or imported during the calendar year 1990. The anti-dumping statutory baseline is based on the average quality of gasoline sold throughout the United States during 1990. The anti-dumping statutory baseline applies to refineries and importers that are unable to calculate an individual baseline based on 1990 gasoline performance. If a refinery or importer has an individual baseline, gasoline production during a given annual averaging period, up to the refinery's or importer's 1990 production or import volume, must be no “dirtier” than the refinery's or importer's individual 1990 baseline for exhaust toxics and NO X . Gasoline produced or imported during the annual averaging period in excess of the refinery's or importer's 1990 gasoline production or import volume must be no dirtier than the anti-dumping statutory baseline for exhaust toxics and NO X . For refineries and importers that do not have an individual baseline, all gasoline produced or imported during the annual averaging period must meet the anti-dumping statutory baseline for exhaust toxics and NO X .

To comply with the anti-dumping requirements, each refinery and importer must evaluate the overall quality of the conventional gasoline that it produces or imports during each annual averaging period and compare it to the refinery's or importer's baseline (individual 1990 baseline or anti-dumping statutory baseline, as appropriate). So long as the conventional gasoline produced or imported has overall emissions, as calculated by the Complex Model, that are no worse than the performance reflected in the refinery's or importer's baseline, the refinery or importer is in compliance with EPA's anti-dumping requirements.

The anti-dumping statutory baseline includes both summertime and wintertime seasonal components. The anti-dumping statutory baseline, which approximates the average emissions of gasoline sold in the U.S. in 1990, is the volume-weighted average of the summertime and wintertime 1990 baseline gasoline emissions, as calculated using the appropriate seasonal version of the Complex Model. See 59 FR 7793 (February 16, 1994). 2

A refinery's or importer's individual 1990 baseline is calculated using the summer version of the Complex Model to assess the performance of the refinery's or importer's 1990 summer gasoline and the winter version of the Complex Model to assess the performance of the refinery's or importer's 1990 winter gasoline. For purposes of these calculations, the regulations consider summer gasoline to be gasoline that is subject to EPA's volatility requirements, and winter gasoline to be gasoline that is not subject to EPA's volatility requirements. 40 CFR 80.91(e)(2)(ii)(A). Gasoline sold in Alaska and Hawaii, and in the territories of Puerto Rico and the Virgin Islands, is not subject to the volatility requirements. See CAA Section 211(h)(5). 3 Thus, for purposes of calculating a refinery's or importer's individual 1990 baseline emissions, none of the gasoline produced or imported for use in these areas is summer gasoline under the current regulations. As a result, all of the gasoline produced or imported for use in these areas was evaluated using the winter Complex Model for purposes of calculating individual 1990 baseline emissions.

Similarly, to determine annual average emissions for compliance purposes, each year refineries and importers calculate emissions from their summer gasoline using the summer Complex Model and emissions from their winter gasoline using the winter Complex Model. For purposes of calculating annual average emissions, the regulations specify that summer gasoline is gasoline that meets the volatility requirements and winter gasoline is gasoline that does not meet the volatility requirements. 40 CFR 80.101(g)(5) and (g)(6). Because gasoline produced or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands is not subject to the volatility requirements, refineries and importers currently are required to evaluate all of their gasoline produced or imported for use in these areas during the annual averaging period using the winter Complex Model. 4

As discussed above, refiners and importers must provide gasoline that complies with their individual anti-dumping baseline up to their 1990 baseline volume, after which any excess volumes must comply with the anti-dumping statutory baseline. 5 Refiners and importers without an individual baseline must comply with the anti-dumping statutory baseline for all of the conventional gasoline they produce or import during each annual averaging period. 6 This general approach to compliance applies to both refiners and importers of gasoline sold in the continental U.S. and refiners and importers of gasoline produced or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands.

As discussed above, under the anti-dumping regulations, gasoline produced or imported in excess of a refinery's or importer's 1990 baseline volume during the annual averaging period must comply with the anti-dumping statutory baseline. All gasoline produced or imported during each annual averaging period by refineries and importers who are unable to establish an individual baseline also must comply with the anti-dumping statutory baseline. In most cases, use of the anti-dumping statutory baseline is an appropriate and necessary tool to ensure that conventional gasoline quality does not degrade in comparison to the average quality of gasoline sold in 1990. However, for gasoline produced or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands that is subject to the anti-dumping statutory baseline, the current anti-dumping requirements can result in an inconsistent application of EPA's seasonal Complex Models.

As discussed above, the anti-dumping statutory baseline is an estimate of the average quality of all 1990 gasoline. This estimate was calculated using the summer Complex Model to evaluate “summer” gasoline and the winter Complex Model for all other gasoline. Similarly, for compliance purposes, summer conventional gasoline sold in the continental United States is evaluated using the summer Complex Model, and all other conventional gasoline is evaluated using the winter Complex Model. Thus, for conventional gasoline subject to the anti-dumping statutory baseline that is sold in the continental U.S., we expect there to be general agreement between the seasonal models used to develop the baseline and the seasonal models used to evaluate annual compliance. Application of the anti-dumping statutory baseline for such gasoline provides reasonable assurance that the quality of the conventional gasoline will not degrade relative to the average quality of gasoline in 1990.

Like gasoline produced or imported for use in the continental United States, gasoline produced or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands in excess of the refinery's or importer's 1990 baseline volume of gasoline, and all gasoline produced or imported for use in these areas by a refiner or importer who does not have an individual baseline must comply with the anti-dumping statutory baseline. However, since the annual emissions performance of all gasoline produced or imported for use in these areas must be evaluated using only the winter Complex Model, for these areas there is not an agreement between the seasonal models reflected in the statutory baseline (which, as discussed above, was developed using both the summer and winter seasonal models) and the seasonal model used for calculating annual compliance. 7 Because the winter Complex Model predicts higher emissions than the summer Complex Model, in these situations, the refinery or importer is required to comply with a standard that, in effect, is more stringent than intended. That is, the refiner or importer must produce or import gasoline that is actually cleaner than the average gasoline produced or imported for use in 1990. 8 This unintended result can have a significant adverse economic effect on those refineries and importers whose baselines include gasoline produced or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands and who have increased the volume of gasoline that they produce or import for these areas above their 1990 baseline volumes of gasoline produced or imported for these areas, and those refineries and importers who are subject to the anti-dumping statutory baseline for all of their gasoline.

In the NPRM, EPA proposed to correct this inconsistency in the anti-dumping regulations by allowing gasoline produced or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands to be compared to a baseline that is seasonally consistent with the compliance model that is used for purposes of compliance evaluation. Specifically, EPA proposed the following changes for refiners and importers who produce or import conventional gasoline for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands.

First, EPA proposed to allow refiners and importers to petition EPA to change their baselines such that any gasoline produced or imported for use in these areas that is currently subject to the anti-dumping statutory baseline instead would be subject to the single seasonal component of the anti-dumping statutory baseline that agrees with the single seasonal model used for compliance. This approach alleviates the current inconsistency (as described above) by more accurately comparing the performance of the refiner's or importer's average 1990 gasoline with gasoline currently produced.

Second, EPA proposed that any refiner or importer for whom a petition to change its baseline has been approved must use the single seasonal statutory baseline that is most appropriate to the regional climate for any gasoline that is not subject to an individual 1990 baseline, and use the seasonal component of the Complex Model that is most appropriate to the regional climate for calculating both 1990 individual baseline emissions and annual average emissions. Thus, refiners and importers with an approved petition that produce or import gasoline for use in Hawaii, Puerto Rico and the Virgin Islands would use the summer statutory baseline component for any gasoline not subject to an individual baseline, and use the summer Complex Model for purposes of calculating 1990 individual baseline and annual average emissions. Refiners and importers with an approved petition that produce or import gasoline for use in Alaska would use the winter statutory baseline for any gasoline not subject to an individual baseline, and use the winter Complex Model for purposes of calculating 1990 individual baseline and annual average emissions. A discussion of the rationale for these seasonal determinations is contained in the preamble to the NPRM. See 70 FR 646 (January 4, 2005).

Under this approach, refiners and importers of gasoline produced or imported for use in Hawaii, Puerto Rico and the Virgin Islands would need to establish a separate individual 1990 baseline for gasoline produced or imported for use in these areas using only the summer Complex Model. Gasoline produced or imported for use in these areas would be required to comply with this new individual baseline for gasoline up to the refinery's or importer's 1990 baseline volume of gasoline produced or imported for these areas. Gasoline production or imports in excess of the refinery's or importer's 1990 baseline volume would be subject to only the summer component of the statutory baseline. In the case of refiners and importers with an individual 1990 baseline which does not include any gasoline produced or imported for use in these areas, any gasoline produced or imported for use in these areas during the annual averaging period would be subject to the refinery's or importer's individual summer 1990 baseline, and the summer Complex Model would be used for all compliance calculations. Such gasoline will not be considered in determining whether a refiner or importer has produced or imported any incremental gasoline volumes above the refinery's or importer's 1990 baseline volume.

Similarly, refiners and importers of gasoline produced or imported for use in Alaska would need to establish a separate individual 1990 baseline for gasoline produced or imported for use in Alaska using only the winter Complex Model. Gasoline produced or imported for use in Alaska would be required to comply with this individual baseline up to the refinery's or importer's 1990 baseline volume of Alaska gasoline. Gasoline produced or imported for use in Alaska in excess of the refinery's or importer's 1990 baseline volume of Alaska gasoline would be subject to only the winter component of the statutory baseline. Refiners and importers of gasoline produced or imported for use in Alaska would continue to use the winter Complex Model for all compliance calculations for Alaska gasoline. In the case of refineries and importers with an individual 1990 baseline that does not include any gasoline produced or imported for use in Alaska, any gasoline produced or imported for use in Alaska during the annual averaging period would be subject to the refinery's or importer's individual winter 1990 baseline, and the winter Complex Model would be used for all compliance calculations. Such gasoline will not be considered in determining whether a refiner or importer has produced or imported any incremental gasoline volumes above the refinery's or importer's 1990 baseline volume.

To implement the changes described above, EPA proposed to modify the individual baseline submission provisions at § 80.93(d) to allow refineries and importers that produce or import gasoline for use in Hawaii, Puerto Rico and the Virgin Islands the option to petition EPA to recalculate the emissions of their 1990 conventional gasoline produced or imported for use in these areas using the summer Complex Model. 9 For refiners and importers who produced or imported gasoline in 1990 for use in both the continental U.S. and an affected area, this would require the calculation of a separate 1990 individual baseline for gasoline produced or imported for use in these areas, and recalculation of the refiner's or importer's current anti-dumping baseline (which would continue to be used for compliance purposes for gasoline produced or imported for other areas) to reflect the subtraction of baseline gasoline produced or imported for use in Hawaii, Puerto Rico and the Virgin Islands. 10 As discussed above, under the current regulations, the winter Complex Model is required to be used to evaluate Alaska gasoline for purposes of establishing the individual 1990 baseline and for determining annual average compliance. Since the winter Complex Model is the appropriate seasonal model for Alaska, we did not propose to change this requirement, however, we did propose to clarify this requirement in the baseline submission provisions in § 80.93(d). Under the proposal, refiners and importers who produced or imported gasoline in 1990 for use in both the continental U.S. and Alaska would be required to calculate a separate baseline for Alaska gasoline and recalculate their current anti-dumping baseline for use with other gasoline to reflect the subtraction of 1990 baseline Alaska gasoline. EPA also proposed to revise the anti-dumping compliance baseline provisions at § 80.101(f)(3) and (f)(4)(iii). EPA proposed a new (f)(3) which establishes compliance baselines for refiners and importers with 1990 individual baselines that did not include any gasoline produced or imported for use in the affected areas. As discussed above, for these refiners and importers, any conventional gasoline produced or imported for use in the affected areas would be subject to the refiner's or importer's appropriate seasonal individual baseline. EPA proposed to revise § 80.101(f)(4)(iii) to provide equations for calculating a compliance baseline for refiners and importers with individual 1990 baselines that have approved petitions and that produce or import gasoline for use in one or more of the affected areas.

The proposed modifications of the baseline submission provisions at § 80.93(d) also would allow refiners and importers currently subject to the anti-dumping statutory baseline for all of their gasoline (i.e., parties without a 1990 individual baseline) the option to petition EPA to change their baseline to only the summer component of the statutory baseline for any conventional gasoline produced or imported for use in Hawaii, Puerto Rico and the Virgin Islands, and the winter component of the statutory baseline for any conventional gasoline produced or imported for use in Alaska. EPA proposed to modify § 80.101(f)(2) to require such refiners and importers to comply with the summer statutory baseline component for gasoline produced or imported for use in Hawaii, Puerto Rico and the Virgin Islands, and the winter statutory baseline component for gasoline produced or imported for use in Alaska. In addition, EPA proposed to modify § 80.101(g)(1) to require refiners and importers with approved petitions under § 80.93(d) to evaluate all of their gasoline produced or imported for use in Hawaii, Puerto Rico and the Virgin Islands during the annual averaging period using only the summer Complex Model, and clarify that gasoline produced or imported for use in Alaska during the annual averaging period must be evaluated using only the winter Complex Model.

A refiner or importer that produces or imports gasoline for Alaska and also for Hawaii and/or Puerto Rico and/or the Virgin Islands, and that wishes to change its baseline for all of these areas, would submit separate petitions, one for Alaska gasoline under § 80.93(d)(1) and one for Hawaii, Puerto Rico and the Virgin Islands gasoline under § 80.93(d)(2). In this case, the refiner or importer would have two separate baselines, one for gasoline produced or imported for Alaska, and one for gasoline produced or imported for Hawaii, Puerto Rico and the Virgin Islands. Such refiner or importer would also have another separate baseline for any gasoline produced or imported for the continental United States.

In addition to the proposed changes to the anti-dumping regulations discussed above, EPA proposed conforming changes to §§ 80.91(e)(2)(ii)(A), and 80.101(g)(2) and (g)(6) to clarify the summer/winter distinction with regard to gasoline produced or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands.

EPA proposed that the changes would be optional for any refiner or importer that produces or imports gasoline intended for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands, and would be limited to those refiners and importers that petition the Agency for these changes. However, EPA proposed that a refiner or importer that changes from the anti-dumping statutory baseline to a single statutory baseline component must use the appropriate seasonal statutory baseline component and must use it for all gasoline produced or imported for use in any of the areas subject to this rule. Such refiner or importer must use the appropriate seasonal Complex Model for all future calculations. For example, an importer of Puerto Rico gasoline that petitions EPA to change from the anti-dumping statutory baseline to a single seasonal statutory baseline component must change to the summer statutory baseline component and must use the summer Complex Model for all future calculations for Puerto Rico gasoline and also for any gasoline the importer imports into Hawaii and/or the Virgin Islands. Refiners and importers with approved petitions whose 1990 individual baselines include gasoline produced or imported for these areas would be required to recalculate their individual baselines, as described above, and submit the new baselines with their petition.

EPA proposed to require refiners and importers that change their baseline in accordance with the proposed rule to retain documents which substantiate that gasoline complying with the new baseline, in fact, was produced or imported for use in the affected area.

EPA proposed that refiners and importers of gasoline produced or imported for use in the affected areas who do not petition EPA to change their baselines would continue to be subject to their current baselines and would continue to use the Complex Model that is required for calculating emissions under the current regulations.

The Mobile Source Air Toxics (MSAT) rule published on March 29, 2001, contains provisions which require refiners and importers to determine a baseline and compliance value for air toxics. See 40 CFR part 80, subpart J. A refiner, for each refinery, and an importer must identify the appropriate toxics performance baseline for its conventional gasoline and its reformulated gasoline. The refiner or importer must then demonstrate compliance with each applicable baseline on an annual average basis using the Complex Model.

Under the MSAT toxics performance rule, refiners, for each refinery, and importers are required to produce or import gasoline that is no dirtier than the gasoline they produced or imported during the baseline period, 1998 through 2000. Accordingly, refiners and importers are required to establish an individual toxics baseline, separately for RFG and conventional gasoline, based on the average toxics performance of their gasoline during the baseline period. Refiners and importers are also required to establish a total baseline volume based on their volume of gasoline production during the baseline period. If a refinery or importer did not have sufficient production or imports during the baseline period to calculate an average toxics performance for their gasoline, they are subject to a default toxic baseline established by EPA. Refineries or importers subject to the default baseline do not have an MSAT baseline volume.

Compliance with the MSAT toxics performance requirements is determined on an annual average basis. The gasoline produced or imported during the annual averaging period can be no more polluting than the refiner's or importer's baseline level for that type of gasoline (RFG or conventional). For RFG, total toxics emissions are evaluated, and toxics performance is reported as a percent reduction from the statutory baseline. For conventional gasoline, only exhaust toxics emissions are evaluated, and toxics performance is reported in mg/mile. Any volume produced or imported in excess of a refiner's or importer's individual baseline volume can be no more polluting than the RFG toxics standard, or the refiner's or importer's conventional gasoline anti-dumping toxics baseline level, as applicable.

EPA proposed to modify the MSAT toxics performance requirements in a manner that is consistent with the changes that were proposed for the conventional gasoline anti-dumping program. The changes to the MSAT requirements are necessary because, generally, the MSAT toxics performance provisions applicable to conventional gasoline are of the same form as the anti-dumping provisions, and because such changes are needed to maintain agreement between methods used to establish baselines and those used to evaluate gasoline performance for purposes of compliance. Thus, we proposed to require a refiner or importer that submits a petition under the anti-dumping program as described in the NPRM to also petition for a separate or modified MSAT baseline applicable to gasoline produced or imported into Alaska and/or Hawaii, Puerto Rico, and the Virgin Islands.

EPA proposed the following MSAT baseline and compliance determinations for refiners and importers who submit petitions under this rule for gasoline produced or imported for use in Alaska and/or Hawaii, Puerto Rico and the Virgin Islands.

Affected parties who did not produce or import any gasoline during the baseline period (1998-2000), may petition EPA to have the appropriate seasonal MSAT conventional gasoline default baseline for gasoline produced or imported for use in Alaska and/or Hawaii, Puerto Rico, and the Virgin Islands, and use the appropriate seasonal version of the Complex Model for evaluating gasoline produced or imported for these areas. Such parties would be subject to the annual MSAT conventional gasoline default baseline for all other gasoline produced or imported (i.e., gasoline for use in the continental U.S.)

Affected parties who produced gasoline during the baseline period, but who did not produce or import gasoline for Alaska and/or Hawaii, Puerto Rico, or the Virgin Islands during the baseline period, may petition EPA to have the appropriate individual refinery or importer conventional gasoline seasonal MSAT baseline for these areas, and evaluate any gasoline produced or imported for use in these areas using the appropriate seasonal Complex Model. Such gasoline will not be considered in determining whether a refiner or importer has produced or imported any incremental gasoline volumes above the refiner's or importer's MSAT baseline volume.

Affected parties who only produced or imported gasoline for Alaska and/or Hawaii, Puerto Rico, or the Virgin Islands during the baseline period may petition EPA for a revised MSAT baseline using the appropriate seasonal version of the Complex Model, and use the appropriate seasonal version of the Complex Model for all compliance determinations for such gasoline. Gasoline produced or imported for use in these areas up to the refiner's or importer's MSAT baseline volume would be subject to the refiner's or importer's seasonally appropriate MSAT baseline. Any incremental volumes above the baseline volume would be subject to the refiner's or importer's appropriate seasonal anti-dumping baseline. Any gasoline produced or imported for use in the continental U.S. would be subject to the annual MSAT conventional gasoline default baseline.

Affected parties who produced or imported gasoline during the baseline period for use in the continental U.S. and for use in Alaska and/or Hawaii, Puerto Rico, or the Virgin Islands may petition EPA to have a separate, seasonally appropriate MSAT baseline and a separate MSAT baseline volume for gasoline produced or imported for use in Alaska and/or Hawaii, Puerto Rico, and the Virgin Islands. Such refiners or importers must then use the appropriate seasonal component of the Complex Model to evaluate gasoline sold in these areas. Additionally, such refiners must establish a separate annual baseline and baseline volume for all other gasoline, which must be evaluated using the annual Complex Model.

Under the current regulations, refiners and importers who produce or import gasoline for use in Alaska, and/or Hawaii, Puerto Rico or the Virgin Islands who are subject to the MSAT default baseline are, in fact, required to produce or import gasoline that is cleaner than the national annual average during the MSAT baseline period. This is because the MSAT default baseline was determined using both seasonal components of the Complex Model, while parties in the affected areas are required to evaluate their gasoline using only the winter Complex Model (which, as discussed above, gives higher emission values for the same gasoline than if the gasoline were evaluated using both seasonal components of the model). EPA proposed to correct this inconsistency while continuing to require such parties to produce or import gasoline that is no more polluting than the average gasoline during the MSAT baseline period, as required under the MSAT rule. Similarly, parties with individual MSAT baselines will continue to meet the requirements under the MSAT rule for gasoline produced or imported up to their baseline volume, without being required to produce or import gasoline that is cleaner than their average gasoline during the MSAT baseline period.

For parties with an individual MSAT baseline who produce or import gasoline in excess of their MSAT baseline volume, the MSAT regulations require the excess volume to meet the refiner's or importer's standard under the anti-dumping rule (i.e., excess volume may not be more polluting than the refiner's or importer's individual anti-dumping baseline level). Therefore, EPA proposed that gasoline produced or imported in excess of the MSAT baseline volume be subject to the anti-dumping baseline that is established for purposes of anti-dumping compliance under today's rule.

To implement the changes described above, EPA proposed appropriate modifications to §§ 80.825, 80.850, 80.855, 80.910 and 80.915 of subpart J.

Comments on the NPRM were generally very favorable. One commenter suggested that we clarify the regulations regarding the effective date for petitions granted under the rule, and that we clarify whether there is a deadline for submitting a petition. In the NPRM we proposed that the baseline and compliance method changes in today's rule would become effective beginning with the annual averaging period in which a refiner's or importer's petition is granted. As a result, a petition may be submitted at any time during an annual averaging period. Once a petition is granted, the new method for determining compliance with the anti-dumping and air toxics requirements will apply beginning with the annual averaging period in which the petition was granted, and will continue to apply in each annual averaging period thereafter. As discussed in the NPRM, once a petition has been granted, the refinery or importer will not be able to revert back to its original baseline. The new baseline will apply to the refinery regardless of ownership; i.e., if a refinery obtains a new baseline under today's rule, the new baseline will apply to the refinery even if the refinery is subsequently sold to another refiner. We have added language in the final rule to clarify when a petition may be submitted and the effective date of an approved petition.

Another commenter believes that the default toxics baselines in § 80.855(b)(2) (i.e., the seasonal default toxics baselines applicable to parties with approved petitions under § 80.93(d)) should apply only to refiners that submit petitions under § 80.93(d) after this rule is finalized. A refiner who previously received approval to use the summer Complex Model under § 80.93(d), and who was unable to establish an individual toxics baseline under the MSAT rule, currently is subject to the conventional gasoline MSAT default toxics baseline. The rule as proposed would apply a more stringent default toxics baseline (i.e., seasonal default baseline) to such a refiner, which, the commenter believes, would impose a burden on the refiner that was not anticipated at the time the refiner applied for use of the summer Complex Model under § 80.93(d).

The default baselines in § 80.855(b)(2) are the average seasonal toxics levels during the MSAT baseline years calculated using the appropriate seasonal Complex Model. As discussed above, where a refiner uses a seasonal Complex Model for annual average compliance calculations, we believe it is appropriate for the refiner to also be subject to the appropriate seasonal default baseline. A refiner with a previously approved baseline change under § 80.93(d) (which as noted above applies to refiners who produce gasoline for use in Puerto Rico) uses the summer Complex Model for calculating its annual average toxics emissions. Therefore, we believe it is appropriate for the summer MSAT default baseline in § 80.855(b)(2)(ii) to apply to such a refiner. However, since refiners with previously approved petitions under § 80.93(d) have been using the conventional gasoline default toxics baseline under the current regulations, we believe that the summer default baseline in § 80.855(b)(2)(ii) should only apply to such refiners prospectively, and that such refiners should be afforded the opportunity to withdraw their petitions under § 80.93(d). As a result, we have included provisions in the final rule which specify that the appropriate seasonal default toxics baseline would apply to any refiner with a previously approved petition under § 80.93(d) beginning with the 2008 annual averaging period, and that any such refiner may petition EPA to withdraw approval of its petition under § 80.93(d) beginning with the 2008 annual averaging period. Although these provisions were not included in the NPRM, we believe they are necessary in order to clarify the application of the provisions in § 80.855(b)(2) with regard to parties with previously approved petitions, and are a logical outgrowth of the proposal to apply the seasonal default toxics baselines in § 80.855(b)(2) to any refiner with a previously approved petition under § 80.93(d).

Another commenter suggested that we clarify that a refiner or importer that produces or imports gasoline for Alaska and also for Hawaii, and/or Puerto Rico and/or the Virgin Islands would have two separate baselines and baseline volumes under today's rule, one for gasoline produced or imported for Alaska, and one for gasoline produced or imported for Hawaii, Puerto Rico and the Virgin Islands. We have added language to clarify this in today's final rule.

One commenter suggested that we clarify the requirements for new refineries or importers in the final rule. As discussed above, the rule provides an alternative to the existing regulatory baseline and compliance requirements for gasoline produced or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands. Any new refinery or importer (which would not have an individual anti-dumping or MSAT baseline) would be subject to the anti-dumping statutory and MSAT default baselines, unless the refiner or importer petitions EPA under the provisions of today's rule to have the appropriate seasonal anti-dumping and MSAT baselines and seasonal Complex Model apply. We have added a provision to clarify the regulations in this regard.

One commenter requested that we make certain references to § 80.93(d) in the regulations more specific with regard to the subparagraphs being referenced. We have made these changes in today's final rule.

With the exceptions noted above and minor editorial changes, today's rule finalizes the provisions in the NPRM as proposed.

Although the current anti-dumping and MSAT toxics performance requirements will be superseded by more stringent mobile source emissions controls by 2011, we believe it is appropriate to provide this relief to the affected parties at this time in order to address the inequity caused by the inconsistencies in the current regulations and to avoid any gasoline supply problems that may result from this inequity.

As discussed in the NPRM, we believe that allowing refiners and importers to change their baselines in accordance with today's rule will not undermine the environmental goals of the anti-dumping program (i.e., to ensure that conventional gasoline will be no dirtier than 1990 gasoline), or the MSAT toxics performance rule (i.e., to ensure that gasoline, RFG and conventional, will be no dirtier than gasoline during the MSAT baseline years.) The changes in today's rule will not result in gasoline with exhaust toxics or NO X emissions that are greater than conventional gasoline in these areas, or nationwide, compared to 1990 levels, or toxics emissions that are greater than gasoline in these areas, or nationwide, compared to the MSAT baseline years. Today's rule provides an alternative compliance method for refiners and importers who, under the current regulations, are required to produce or import gasoline for use in the affected areas that is actually cleaner than that required under the anti-dumping and MSAT programs. As a result, even if all of these affected parties choose the new compliance method, the goals of the anti-dumping and MSAT programs would be met. To the extent that parties choose to retain their current compliance method, there would continue to be an added environmental benefit above and beyond that specifically required to meet the goals of these programs.

In the NPRM, we requested comment on the need to take this action and the proposed changes to the regulations. We have reviewed and considered all comments. The comments and EPA's responses to the comments are discussed above.

This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO.

The information collection requirements in this rule will be submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act , 44 U.S.C. 3501 et seq. The information collection requirements are not enforceable until OMB approves them.

This final rule addresses certain adverse impacts on refiners and importers of conventional gasoline under the current fuels regulations, and provides refiners and importers with additional flexibility to comply with the regulations. The flexibility afforded under this rule is optional. Modest information collection requirements in the form of a one-time only petition to EPA and minimal recordkeeping requirements are required of those refiners who wish to avail themselves of the flexibility provided in this rule.

The estimated hour burden for this rule is 20 hours per petition. The estimated number of petitions is 10. The estimated cost burden for the petition is $70 per hour. The total estimated cost for each respondent is $1,400. The total estimated cost for all respondents is $14,000. We do not anticipate that any burdens will be associated with the additional recordkeeping requirements, since the information required to be retained normally is included on business documents retained by refiners and importers.

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. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the Federal Register to display the OMB control number for the approved information collection requirements contained in this final rule.

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 today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's 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 today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities.” 5 U.S.C. Sections 603 and 604. Thus, an agency may conclude that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.

This final rule provides provisions intended to address existing adverse economic impacts of the current rule on certain refiners and importers while continuing to promote successful implementation of the requirements for conventional gasoline. Specifically, this rule provides all affected refiners and importers, including small refiners and importers, options for evaluating the emissions of conventional gasoline, which will have the effect of relieving regulatory burden. We have therefore concluded that today's final rule will relieve regulatory burden for all affected small entities.

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

Today's final 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. EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year that will result in expenditures of $100 million or more. This rule affects gasoline refiners and importers of conventional gasoline by providing optional provisions for evaluating the emissions of conventional gasoline in certain situations. This rule will have the effect of reducing the burden of the conventional gasoline regulations on these regulated parties. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the 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 Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule provides options for evaluating the emissions of conventional gasoline. The requirements of the rule will be enforced by the federal government at the national level. Thus, Executive Order 13132 does not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications. This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Today's action finalizes certain modifications to the federal requirements for conventional gasoline, and does not impose any enforceable duties on communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this rule.

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

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

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

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

This rulemaking does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A “major rule” cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(a). This rule will be effective on November 26, 2007.

This rule is subject to Section 307(d) of the CAA. Section 307(d)(7)(B) provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for the EPA to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to the EPA should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Director of the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20004.

The statutory authority for the actions finalized today comes from section 211(c) and (k) of the CAA (42 U.S.C. 7545(c) and (k)), which allows us to regulate fuels that either contribute to air pollution which endangers public health or welfare or which impairs emission control equipment. Additional support for the procedural aspects of the fuels controls in today's final rule, including the petition requirement, comes from sections 114(a) and 301(a) of the CAA (42 U.S.C. 7414(a) and 7601(a)). Today's action is a final rulemaking under section 307(d) of the CAA (42 U.S.C. 7607(d)).

Several of the background documents for the ALWTRP and the take reduction planning process can be downloaded from the ALWTRP web site at http://www.nero.noaa.gov/whaletrp/ .

The ALWTRP was developed pursuant to section 118 of the Marine Mammal Protection Act (MMPA) to reduce the incidental mortality and serious injury of three endangered species of whales (right, fin, and humpback) due to incidental interaction with commercial fishing activities. In addition, the measures identified in the ALWTRP would provide conservation benefits to a fourth species (minke), which are neither listed as endangered nor threatened under the Endangered Species Act (ESA). The ALWTRP, implemented through regulations codified at 50 CFR 229.32, relies on a combination of fishing gear modifications and time/area closures to reduce the risk of whales becoming entangled in commercial fishing gear (and potentially suffering serious injury or mortality as a result).

On January 9, 2002, NMFS published the final rule to implement the ALWTRP's DAM program (67 FR 1133). On August 26, 2003, NMFS amended the regulations by publishing a final rule, which specifically identified gear modifications that may be allowed in a DAM zone (68 FR 51195). The DAM program provides specific authority for NMFS to restrict temporarily on an expedited basis the use of lobster trap/pot and anchored gillnet fishing gear in areas north of 40° N. lat. to protect right whales. Under the DAM program, NMFS may: (1) require the removal of all lobster trap/pot and anchored gillnet fishing gear for a 15-day period; (2) allow lobster trap/pot and anchored gillnet fishing within a DAM zone with gear modifications determined by NMFS to sufficiently reduce the risk of entanglement; and/or (3) issue an alert to fishermen requesting the voluntary removal of all lobster trap/pot and anchored gillnet gear for a 15-day period and asking fishermen not to set any additional gear in the DAM zone during the 15-day period.

A DAM zone is triggered when NMFS receives a reliable report from a qualified individual of three or more right whales sighted within an area (75 nm 2 (139 km 2 )) such that right whale density is equal to or greater than 0.04 right whales per nm 2 (1.85 km 2 ). A qualified individual is an individual ascertained by NMFS to be reasonably able, through training or experience, to identify a right whale. Such individuals include, but are not limited to, NMFS staff, U.S. Coast Guard and Navy personnel trained in whale identification, scientific research survey personnel, whale watch operators and naturalists, and mariners trained in whale species identification through disentanglement training or some other training program deemed adequate by NMFS. A reliable report would be a credible right whale sighting.

On October 16, 2007, an aerial survey reported and aggregation of seven right whales in the proximity of 43°05′ N latitude and 69°56′ W longitude. The position lies approximately 50nm south of Portland, Maine. After conducting an investigation, NMFS ascertained that the report came from a qualified individual and determined that the report was reliable. Thus, NMFS has received a reliable report from a qualified individual of the requisite right whale density to trigger the DAM provisions of the ALWTRP.

Once a DAM zone is triggered, NMFS determines whether to impose restrictions on fishing and/or fishing gear in the zone. This determination is based on the following factors, including but not limited to: the location of the DAM zone with respect to other fishery closure areas, weather conditions as they relate to the safety of human life at sea, the type and amount of gear already present in the area, and a review of recent right whale entanglement and mortality data.

NMFS has reviewed the factors and management options noted above relative to the DAM under consideration. As a result of this review, NMFS prohibits lobster trap/pot and anchored gillnet gear in this area during the 15-day restricted period unless it is modified in the manner described in this temporary rule.

The DAM Zone is bound by the following coordinates:

43°25′ N., 70°23′ W (NW Corner)

43°25′ N., 69°29′ W

42°45′ N., 69°29′ W

42°45′ N., 69°38′ W

42°34′ N., 69°38′ W

42°34′ N., 70°34′ W

43°19′ N., 70°34′ W

43°19′ N., 70°23′ W

43°25′ N., 70°23′ W (NW Corner)

In addition to those gear modifications currently implemented under the ALWTRP at 50 CFR 229.32, the following gear modifications are required in the DAM zone. If the requirements and exceptions for gear modification in the DAM zone, as described below, differ from other ALWTRP requirements for any overlapping areas and times, then the more restrictive requirements will apply in the DAM zone.

Fishermen utilizing lobster trap/pot gear within the portions of Northern Nearshore Lobster Waters, Northern Inshore State Lobster Waters, and the Stellwagen Bank/Jeffrey's Ledge Restricted Area that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect:

1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;

2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;

3. Fishermen are allowed to use two buoy lines per trawl; and

4. A weak link with a maximum breaking strength of 600 lb (272.4 kg) must be placed at all buoys.

Fishermen utilizing lobster trap/pot gear within the portion of the Offshore Lobster Waters Area that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect:

1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;

2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;

3. Fishermen are allowed to use two buoy lines per trawl; and

4. A weak link with a maximum breaking strength of 1,500 lb (680.4 kg) must be placed at all buoys.

Fishermen utilizing anchored gillnet gear within the portions of Other Northeast Gillnet Waters and the Stellwagen Bank/Jeffrey's Ledge Restricted Area that overlap with the DAM zone are required to utilize all the following gear modifications while the DAM zone is in effect:

1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;

2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;

3. Fishermen are allowed to use two buoy lines per string;

4. Each net panel must have a total of five weak links with a maximum breaking strength of 1,100 lb (498.8 kg). Net panels are typically 50 fathoms (91.4 m) in length, but the weak link requirements would apply to all variations in panel size. These weak links must include three floatline weak links. The placement of the weak links on the floatline must be: one at the center of the net panel and one each as close as possible to each of the bridle ends of the net panel. The remaining two weak links must be placed in the center of each of the up and down lines at the panel ends;

5. A weak link with a maximum breaking strength of 1,100 lb (498.8 kg) must be placed at all buoys; and

6. All anchored gillnets, regardless of the number of net panels, must be securely anchored with the holding power of at least a 22 lb (10.0 kg) Danforth-style anchor at each end of the net string.

The restrictions will be in effect beginning at 0001 hours October 27, 2007, through 2400 hours November 10, 2007, unless terminated sooner or extended by NMFS through another notification in the Federal Register .

The restrictions will be announced to state officials, fishermen, ALWTRT members, and other interested parties through e-mail, phone contact, NOAA website, and other appropriate media immediately upon issuance of the rule by the AA.

In accordance with section 118(f)(9) of the MMPA, the Assistant Administrator (AA) for Fisheries has determined that this action is necessary to implement a take reduction plan to protect North Atlantic right whales.

Environmental Assessments for the DAM program were prepared on December 28, 2001, and August 6, 2003. This action falls within the scope of the analyses of these EAs, which are available from the agency upon request.

NMFS provided prior notice and an opportunity for public comment on the regulations establishing the criteria and procedures for implementing a DAM zone. Providing prior notice and opportunity for comment on this action, pursuant to those regulations, would be impracticable because it would prevent NMFS from executing its functions to protect and reduce serious injury and mortality of endangered right whales. The regulations establishing the DAM program are designed to enable the agency to help protect unexpected concentrations of right whales. In order to meet the goals of the DAM program, the agency needs to be able to create a DAM zone and implement restrictions on fishing gear as soon as possible once the criteria are triggered and NMFS determines that a DAM restricted zone is appropriate. If NMFS were to provide prior notice and an opportunity for public comment upon the creation of a DAM restricted zone, the aggregated right whales would be vulnerable to entanglement which could result in serious injury and mortality. Additionally, the right whales would most likely move on to another location before NMFS could implement the restrictions designed to protect them, thereby rendering the action obsolete. Therefore, pursuant to 5 U.S.C. 553(b)(B), the AA finds that good cause exists to waive prior notice and an opportunity to comment on this action to implement a DAM restricted zone to reduce the risk of entanglement of endangered right whales in commercial lobster trap/pot and anchored gillnet gear as such procedures would be impracticable.

For the same reasons, the AA finds that, under 5 U.S.C. 553(d)(3), good cause exists to waive the 30-day delay in effective date. If NMFS were to delay for 30 days the effective date of this action, the aggregated right whales would be vulnerable to entanglement, which could cause serious injury and mortality. Additionally, right whales would likely move to another location between the time NMFS approved the action creating the DAM restricted zone and the time it went into effect, thereby rendering the action obsolete and ineffective. Nevertheless, NMFS recognizes the need for fishermen to have time to either modify or remove (if not in compliance with the required restrictions) their gear from a DAM zone once one is approved. Thus, NMFS makes this action effective 2 days after the date of publication of this document in the Federal Register . NMFS will also endeavor to provide notice of this action to fishermen through other means upon issuance of the rule by the AA, thereby providing approximately 3 additional days of notice while the Office of the Federal Register processes the document for publication.

NMFS determined that the regulations establishing the DAM program and actions such as this one taken pursuant to those regulations are consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of the U.S. Atlantic coastal states. This determination was submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act. Following state review of the regulations creating the DAM program, no state disagreed with NMFS' conclusion that the DAM program is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program for that state.

The DAM program under which NMFS is taking this action contains policies with federalism implications warranting preparation of a federalism assessment under Executive Order 13132. Accordingly, in October 2001 and March 2003, the Assistant Secretary for Intergovernmental and Legislative Affairs, Department of Commerce, provided notice of the DAM program and its amendments to the appropriate elected officials in states to be affected by actions taken pursuant to the DAM program. Federalism issues raised by state officials were addressed in the final rules implementing the DAM program. A copy of the federalism Summary Impact Statement for the final rules is available upon request ( ADDRESSES ).

The rule implementing the DAM program has been determined to be not significant under Executive Order 12866.

Regulations governing the Atlantic herring fishery are found at 50 CFR part 648. The regulations require annual specification of optimum yield, domestic and foreign fishing, domestic and joint venture processing, and management area TACs. The 2007 TAC allocated to Area 1A (72 FR 17807, April 10, 2007) is 50,000 mt (1,10,231,000 lb).

The regulations at 50 CFR 648.202 require the Administrator, Northeast Region, NMFS (Regional Administrator) to monitor the Atlantic herring fishery in each of the four management areas designated in the Fishery Management Plan for the Atlantic Herring Fishery and, based upon dealer reports, state data, and other available information, to determine when the harvest of Atlantic herring is projected to reach 95 percent of the TAC allocated. When such a determination is made, NMFS is required to publish notification in the Federal Register of this determination. Effective upon a specific date, NMFS must notify vessel and dealer permit holders that vessels are prohibited from fishing for, catching, possessing, transferring or landing more than 2,000 lb (907.2 kg) of herring per trip or calendar day in or from the specified management area for the remainder of the closure period. Transiting of Area 1A with more than 2,000 lb of herring on board is allowed under the conditions specified below.

The Regional Administrator has determined, based upon dealer reports and other available information, that 95 percent of the total Atlantic herring TAC allocated to Area 1A for the 2007 fishing year is projected to be harvested by October 25, 2007. Therefore, effective 0001 hrs local time, October 27, 2007, federally permitted vessels may not fish for, catch, possess, transfer or land more than 2,000 lb (907.2 kg) of Atlantic herring in or from Area 1A per trip or calendar day through December 31, 2007; except a vessel may transit Area 1A with more than 2,000 lb (907.2 kg) of herring on board, or land more than 2,000 lb (907.2 kg) provided such herring were not caught in Area 1A, and provided all fishing gear is stowed and not available for immediate use as required by § 648.23(b). Effective October 25, 2007, federally permitted dealers are also advised that they may not purchase Atlantic herring from federally permitted Atlantic herring vessels that harvest more than 2,000 lb (907.2 kg) of Atlantic herring from Area 1A through December 31, 2007, 2400 hrs local time.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

The CPS FMP, which was implemented by publication of the final rule in the Federal Register on December 15, 1999 (64 FR 69888), divides management unit species into two categories: actively managed and monitored. The HG for actively managed species (Pacific sardine and Pacific mackerel) is based on formulas applied to current biomass estimates. Biomass estimates are not calculated for species that are only monitored (jack mackerel, northern anchovy, and market squid).

During public meetings each year, the biomass for each actively managed species within the CPS FMP is presented to the Pacific Fishery Management Council's (Council) CPS Management Team (Team) and the Council's CPS Advisory Subpanel (Subpanel). At that time, the biomass, the HG, and the status of the fisheries are reviewed and discussed. This information is then presented to the Council along with recommendations and comments from the Team and Subpanel. Following review by the Council and after hearing public comments, the Council makes its recommendation to NMFS.

Public meetings of the Team, Subpanel and CPS Subcommitee of the Scientific and Statistical Committee (SSC) were held in October 2006. During these meetings the current stock assessment update for Pacific sardine, which included a preliminary biomass estimate and HG, was presented and reviewed in accordance with the procedures of the FMP. In November, the Council held a public meeting in San Diego, California (71 FR 62998) during which time the Council reviewed the current stock assessment, biomass numbers and proposed HG. Following the Team and Subpanel reports and hearing public comments, the Council adopted the Team's recommended HG for the 2007 Pacific sardine fishing season (January 1, 2007 through December 31, 2007) of 152,564 metric tons (mt). Although this HG is 28 percent higher than the HG for 2006, it is over 50,000 mt greater than the largest recent harvest by U.S. west coast fisheries. The Council also adopted the Subpanel recommendation of an incidental catch allowance for Pacific sardine of up to 45 percent by weight in other CPS fisheries in the event that the coastwide harvest of Pacific sardine exceeds a seasonal allocation prior to the next scheduled reallocation.

The Pacific sardine HG is apportioned based on the following allocation scheme established by Amendment 11 (71 FR 36999) to the CPS FMP: 35 percent (53,397 mt) is allocated coastwide on January 1; 40 percent (61,025 mt), plus any portion not harvested from the initial allocation is reallocated coastwide on July 1; and on September 15 the remaining 25 percent (38,141 mt), plus any portion not harvested from earlier allocations is released.

If the total harvest guideline or these apportionment levels for Pacific sardine are reached at any time, the Pacific sardine fishery shall be closed until either it re-opens per the allocation scheme or the beginning of the next fishing season. The Regional Administrator shall publish in the Federal Register , through appropriate rulemaking procedures, the date of the closure of the directed fishery for Pacific sardine.

The Administrator, Southwest Region, NMFS, determined that this final rule is necessary for the conservation and management of the CPS fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

This final rule is exempt from OMB review under Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule (72 FR 35419) and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

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

The 2007 Pacific halibut bycatch allowance specified for trawl gear in the GOA is 2,000 metric tons (mt) as established by the 2007 and 2008 harvest specifications for groundfish of the GOA (72 FR 9676, March 5, 2007, as corrected by 72 FR 13217, March 21, 2007).

NMFS closed directed fishing for groundfish by vessels using trawl gear in the GOA under § 679.21(d)(7)(i) on October 15, 2007 (72 FR 59038, October 18, 2007). As of October 19, 2007, NMFS has determined that 59 metric tons of the 2007 Pacific halibut bycatch allowance for the fishery remains. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully use the 2007 Pacific halibut PSC limit specified for vessels using trawl gear in the GOA, NMFS is terminating the previous closure and is opening directed fishing for groundfish by vessels using trawl gear in the GOA, effective 1200 hrs, A.l.t., October 22, 2007.

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

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of the groundfish fishery by vessels using trawl gear in the GOA. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 19, 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.

Without this inseason adjustment, NMFS could not allow the fishery for groundfish by vessels using trawl gear in the GOA to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until November 6, 2007.

This action is required by § 679.25 and is exempt from review under Executive Order 12866.