Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Proposed Rules 46707 

regulations in the Federal Register (see 

26 CFR part 301 revised as of April 1, 

2009). 

* * * * * 

Par. 5. Section 301.6112–1 is 

amended as follows: 

1. Paragraph (b)(1) is revised. 

2. Paragraphs (c)(3) and (c)(12) are 

amended by adding the language 

‘‘26.6011–4,’’ after ‘‘25.6011–4,’’. 

3. Paragraphs (f) and (g) are revised. 

The revisions read as follows: 

§ 301.6112–1 Material advisors of 

reportable transactions must keep lists of 

advisees, etc. 

* * * * * 

(b) * * * (1) In general. A separate list 

must be prepared and maintained for 

each reportable transaction. However, 

one list must be maintained for 

substantially similar transactions. A 

material advisor will have 30 calendar 

days from the date the list maintenance 

requirement first arises (see § 301.6111– 

3(b)(4) and paragraph (a) of this section) 

with respect to a reportable transaction 

to prepare the list that must be 

maintained under this section with 

respect to that transaction. The 

Commissioner in his discretion also 

may provide in published guidance 

designating a transaction as a reportable 

transaction a list preparation time 

period greater than 30 calendar days. If 

a list is requested under this section 

during the list preparation time period, 

the request for the list will be treated as 

having been made on the day after the 

list preparation time period ends. A list 

must be maintained in a form that 

enables the IRS to determine without 

undue delay or difficulty the 

information required in paragraph (b)(3) 

of this section. The Commissioner in his 

discretion may provide in published 

guidance a form or method for 

maintaining or furnishing the list. 

* * * * * 

(f) Designation agreements. If more 

than one material advisor is required to 

maintain a list of persons for a 

reportable transaction, in accordance 

with paragraph (b) of this section, the 

material advisors may designate by 

written agreement a single material 

advisor (the designated material 

advisor) to maintain the list or a portion 

of the list. A designation agreement does 

not relieve material advisors from their 

obligation to maintain the list in 

accordance with paragraph (b) of this 

section or to furnish the list to the IRS 

in accordance with paragraph (e)(1) of 

this section, but a designation 

agreement may allow one material 

advisor to maintain the list on behalf of 

the other material advisors who are a 

party to the designation agreement. A 

material advisor is not relieved from the 

requirement of this section because a 

material advisor is unable to obtain the 

list from any designated material 

advisor, any designated material advisor 

did not maintain a list, or the list 

maintained by any designated material 

advisor is not complete. The existence 

of a designation agreement does not 

affect the ability of the IRS to request 

the list from any party to the 

designation agreement. The IRS may 

request the list from any party to the 

designation agreement, and the party 

receiving the request must furnish the 

list to the IRS in accordance with 

paragraph (e)(1) of this section, 

regardless of whether the list was 

maintained by another party pursuant to 

the terms of a designation agreement. 

(g) Effective/applicability date. In 

general, this section applies to 

transactions with respect to which a 

material advisor makes a tax statement 

under § 301.6111–3 on or after August 3, 

2007. However, this section applies to 

transactions of interest entered into on 

or after November 2, 2006, with respect 

to which a material advisor makes a tax 

statement under § 301.6111–3 on or 

after November 2, 2006. Paragraphs 

(b)(1), (c)(3), (c)(12), and (f) of this 

section apply to transactions with 

respect to which a material advisor 

makes a tax statement under 

§ 301.6111–3 after the date these 

regulations are published as final 

regulations in the Federal Register. 

Otherwise, the rules that apply on or 

before the date these regulations are 

published as final regulations in the 

Federal Register are contained in this 

section in effect prior to the date these 

regulations are published as final 

regulations in the Federal Register (see 

26 CFR part 301 revised as of April 1, 

2009). 

Linda E. Stiff, 

Deputy Commissioner for Services and 

Enforcement. 

[FR Doc. E9–21665 Filed 9–10–09; 8:45 am] 

BILLING CODE 4830–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 721 

[EPA–HQ–OPPT–2008–0483; FRL–8432–3] 

RIN 2070–AJ36 

Elemental Mercury Used in Flow 

Meters, Natural Gas Manometers, and 

Pyrometers; Proposed Significant New 

Use Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing a significant 

new use rule (SNUR) under section 

5(a)(2) of the Toxic Substances Control 

Act (TSCA) for elemental mercury (CAS 

No. 7439–97–6) for use in flow meters, 

natural gas manometers, and 

pyrometers, except for use in these 

articles when they are in service as of 

the effective date of the final rule. This 

action would require persons who 

intend to manufacture (including 

import) or process elemental mercury 

for an activity that is designated as a 

significant new use by this proposed 

rule to notify EPA at least 90 days before 

commencing that activity. Persons 

subject to the provisions of this 

proposed rule would not be exempt 

from significant new use reporting if 

they import into the United States or 

process elemental mercury as part of an 

article. The required notification would 

provide EPA with the opportunity to 

evaluate the intended use and, if 

necessary, to prohibit or limit that 

activity before it occurs. 

DATES: Comments must be received on 

or before November 10, 2009. 

ADDRESSES: Submit your comments, 

identified by docket identification (ID) 

number EPA–HQ–OPPT–2008–0483, by 

one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on– 

line instructions for submitting 

comments. 

• Mail: Document Control Office 

(7407M), Office of Pollution Prevention 

and Toxics (OPPT), Environmental 

Protection Agency, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460– 

0001. 

• Hand Delivery: OPPT Document 

Control Office (DCO), EPA East Bldg., 

Rm. 6428, 1201 Constitution Ave., NW., 

Washington, DC. Attention: Docket ID 

Number EPA–HQ–OPPT–2008–0483. 

The DCO is open from 8 a.m. to 4 p.m., 

Monday through Friday, excluding legal 

holidays. The telephone number for the 

DCO is (202) 564–8930. Such deliveries 

are only accepted during the DCO’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

docket ID number EPA–HQ–OPPT– 

2008–0483. EPA’s policy is that all 

comments received will be included in 

the docket without change and may be 

made available on–line at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 


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Do not submit information that you 

consider to be CBI or otherwise 

protected through regulations.gov or email. The regulations.gov website is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

regulations.gov, your e-mail address 

will be automatically captured and 

included as part of the comment that is 

placed in the docket and made available 

on the Internet. If you submit an 

electronic comment, EPA recommends 

that you include your name and other 

contact information in the body of your 

comment and with any disk or CD-ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the docket 

are listed in the docket index available 

at http://www.regulations.gov. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available electronically at 

http://www.regulations.gov, or, if only 

available in hard copy, at the OPPT 

Docket. The OPPT Docket is located in 

the EPA Docket Center (EPA/DC) at Rm. 

3334, EPA West Bldg., 1301 

Constitution Ave., NW., Washington, 

DC. The EPA/DC Public Reading Room 

hours of operation are 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number of 

the EPA/DC Public Reading Room is 

(202) 566–1744, and the telephone 

number for the OPPT Docket is (202) 

566–0280. Docket visitors are required 

to show photographic identification, 

pass through a metal detector, and sign 

the EPA visitor log. All visitor bags are 

processed through an X-ray machine 

and subject to search. Visitors will be 

provided an EPA/DC badge that must be 

visible at all times in the building and 

returned upon departure. 

FOR FURTHER INFORMATION CONTACT: For 

general information contact: Colby 

Lintner, Regulatory Coordinator, 

Environmental Assistance Division 

(7408M), Office of Pollution Prevention 

and Toxics, Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460–0001; telephone 

number: (202) 554–1404; e-mail address: 

TSCA-Hotline@epa.gov. 

For technical information contact: 

Peter Gimlin, National Program 

Chemicals Division, Office of Pollution 

Prevention and Toxics, Office of 

Pollution Prevention and Toxics, 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001; telephone number: 

(202) 566–0515; e-mail address: 

gimlin.peter@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this Action Apply to Me? 

You may be potentially affected by 

this action if you manufacture (defined 

by statute to include import) or process 

elemental mercury used in flow meters, 

natural gas manometers, or pyrometers. 

Potentially affected entities may 

include, but are not limited to, 

manufacturers of instruments and 

related products for measuring, 

displaying, and controlling industrial 

process variables (North American 

Industrial Classification System 

(NAICS) code 334513). This listing is 

not intended to be exhaustive, but rather 

provides a guide for readers regarding 

entities likely to be affected by this 

action. Other types of entities not listed 

in this unit could also be affected. The 

NAICS codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. To determine whether 

you or your business may be affected by 

this action, you should carefully 

examine the applicability provisions in 

40 CFR 721.5 for SNUR-related 

obligations. If you have any questions 

regarding the applicability of this action 

to a particular entity, consult the 

technical person listed under FOR

FURTHER INFORMATION CONTACT. 

This action may also affect certain 

entities through pre-existing import 

certification and export notification 

rules under TSCA. Persons who import 

any chemical substance governed by a 

final SNUR are subject to the TSCA 

section 13 (15 U.S.C. 2612) import 

certification requirements and the 

corresponding regulations at 19 CFR 

12.118 through 12.127 and 19 CFR 

127.28. Those persons must certify that 

the shipment of the chemical substance 

complies with all applicable rules and 

orders under TSCA, including any 

SNUR requirements. The EPA policy in 

support of import certification appears 

at 40 CFR part 707, subpart B. In 

addition, any persons who export or 

intend to export a chemical substance 

that is the subject of this proposed rule 

on or after October 13, 2009 are subject 

to the export notification provisions of 

TSCA section 12(b) (15 U.S.C. 2611(b)), 

(see 40 CFR 721.20), and must comply 

with the export notification 

requirements in 40 CFR part 707, 

subpart D. 

B. What Should I Consider as I Prepare 

My Comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through 

regulations.gov or e-mail. Clearly mark 

the part or all of the information that 

you claim to be CBI. For CBI 

information in a disk or CD-ROM that 

you mail to EPA, mark the outside of the 

disk or CD-ROM that you mail to EPA, 

mark the outside of the disk or CD-ROM 

as CBI and then identify electronically 

within the disk or CD-ROM the specific 

information that is claimed as CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. 

Information so marked will not be 

disclosed except in accordance with 

procedures set forth in 40 CFR part 2. 

2. Tips for preparing your comments. 

When submitting comments, remember 

to: 

i. Identify the document by docket ID 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

ii. Follow directions. The Agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

iii. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

iv. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

v. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

vi. Provide specific examples to 

illustrate your concerns and suggest 

alternatives. 

vii. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

viii. Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Background 

A. What Action is the Agency Taking? 

This proposed SNUR would require 

persons to notify EPA at least 90 days 

before commencing the manufacture, 

import, or processing of elemental 


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Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Proposed Rules 46709 

mercury for any of the following 

significant new uses: Flow meters, 

natural gas manometers, or pyrometers. 

This proposed rule does not affect the 

manufacturing and processing of 

elemental mercury for use in these 

articles when they are in service as of 

the effective date of the final rule. EPA 

believes this proposed SNUR is 

necessary because manufacturing, 

processing, use, or disposal of mercury 

associated with these uses may produce 

significant changes in human and 

environmental exposures. The rationale 

and objectives for this proposed SNUR 

are explained in Unit IV. 

B. What is the Agency’s Authority for 

Taking this Action? 

Section 5(a)(2) of TSCA (15 U.S.C. 

2604(a)(2)) authorizes EPA to determine 

that a use of a chemical substance is a 

‘‘significant new use.’’ EPA must make 

this determination by rule after 

considering all relevant factors, 

including those listed in TSCA section 

5(a)(2). Once EPA determines that a use 

of a chemical substance is a significant 

new use, TSCA section 5(a)(1)(B) 

requires persons to submit a significant 

new use notice (SNUN) to EPA at least 

90 days before they manufacture or 

process the chemical substance for that 

use (15 U.S.C. 2604(a)(1)(B)). As 

described in Unit II.C., the general 

SNUR provisions are found at 40 CFR 

part 721, subpart A. 

C. Applicability of General Provisions 

General provisions for SNURs appear 

under 40 CFR part 721, subpart A. 

These provisions describe persons 

subject to the rule, recordkeeping 

requirements, exemptions to reporting 

requirements, and applicability of the 

rule to uses occurring before the 

effective date of the final rule. However, 

40 CFR 721.45(f) does not apply to this 

SNUR. As a result, persons subject to 

the provisions of this proposed rule 

would not be exempt from significant 

new use reporting if they import or 

process elemental mercury as part of an 

article (see 40 CFR 721.5). Conversely, 

the exemption from notification 

requirements for exported articles (see 

40 CFR 707.60(b)) remains in force. 

Thus, persons who export elemental 

mercury as part of an article are not 

required to provide export notification. 

Provisions relating to user fees appear 

at 40 CFR part 700. According to 40 CFR 

721.1(c), persons subject to SNURs must 

comply with the same notice 

requirements and EPA regulatory 

procedures as submitters of 

Premanufacture Notices (PMNs) under 

TSCA section 5(a)(1)(A). In particular, 

these requirements include the 

information submission requirements of 

TSCA section 5(b) and 5(d)(1), the 

exemptions authorized by TSCA section 

5(h)(1), (h)(2), (h)(3), and (h)(5), and the 

regulations at 40 CFR part 720. Once 

EPA receives a SNUN, EPA may take 

regulatory action under TSCA section 

5(e), 5(f), 6, or 7 to control the activities 

on which it has received the SNUN. If 

EPA does not take action, EPA is 

required under TSCA section 5(g) to 

explain in the Federal Register its 

reasons for not taking action. 

Persons who export or intend to 

export a chemical substance identified 

in a proposed or final SNUR are subject 

to the export notification provisions of 

TSCA section 12(b). The regulations that 

interpret TSCA section 12(b) appear at 

40 CFR part 707, subpart D. Persons 

who import a chemical substance 

identified in a final SNUR are subject to 

the TSCA section 13 import certification 

requirements, codified at 19 CFR 12.118 

through 12.127 and 19 CFR 127.28. 

Such persons must certify that the 

shipment of the chemical substance 

complies with all applicable rules and 

orders under TSCA, including any 

SNUR requirements. The EPA policy in 

support of import certification appears 

at 40 CFR part 707, subpart B. 

III. Summary of the Proposed Rule 

A. Overview of Mercury and Mercury 

Uses 

1. Mercury. This proposed rule 

applies to elemental mercury (CAS No. 

7439–97–6), which is a naturally 

occurring element. Because of its unique 

properties (e.g., exists as a liquid at 

room temperature and forms amalgams 

with many metals), elemental mercury 

has been used in many industrial 

processes and consumer products. In 

addition to its useful characteristics, 

mercury also is known to cause adverse 

health effects in humans and wildlife. 

These effects can vary depending on the 

form of mercury to which a person or 

animal is exposed, as well as the 

magnitude, length, and frequency of 

exposure. 

The most prevalent human and 

wildlife exposure to mercury results 

from ingesting fish contaminated with 

methylmercury. Methylmercury is an 

organo-metallic compound that is 

formed via the conversion of elemental 

or inorganic mercury compounds by 

certain microorganisms and other 

natural processes. For example, 

elemental mercury may evaporate and 

be emitted into the atmosphere. 

Atmospheric mercury can be deposited 

directly into water bodies or 

watersheds, where it can be washed into 

surface waters via overland run-off. 

Once deposited in sediments, certain 

microorganisms and other natural 

processes can convert elemental 

mercury into methylmercury. 

Methylmercury bioaccumulates, which 

means that it is taken up and 

concentrated in the tissues of aquatic, 

mammalian, avian, and other wildlife. 

Methylmercury is a highly toxic 

substance; a number of adverse health 

effects associated with exposure to it 

have been identified in humans and in 

animal studies. Most extensive are the 

data on neurotoxicity, particularly in 

developing organisms. Fetuses, infants, 

and young children generally are more 

sensitive to methylmercury’s 

neurological effects than adults. 

In 2004, EPA and the Food and Drug 

Administration (FDA) issued a national 

consumption advisory concerning 

mercury in fish. The advisory contains 

recommended limits on the amount of 

certain types of fish and shellfish that 

pregnant women and young children 

can safely consume. By 2005, all 50 

states had issued fish consumption 

advisories for fish from certain water 

bodies known to be contaminated by 

methylmercury, see http:// 

www.epa.gov/mercury/advisories.htm. 

In addition to methylmercury, 

exposure to elemental mercury can also 

pose health risks. Elemental mercury 

primarily causes health effects when it 

is breathed as a vapor that can be 

absorbed through the lungs. These 

exposures can occur when elemental 

mercury is spilled or products that 

contain elemental mercury break, 

resulting in release of mercury to the air, 

particularly in warm or poorlyventilated indoor spaces. 

For a more detailed summary of 

background information (e.g., chemistry, 

environmental fate, exposure pathways, 

and health and environmental effects), 

as well as references pertaining to 

elemental mercury that EPA considered 

before proposing this rule, please refer 

to EPA’s proposed SNUR for mercury 

switches in motor vehicles, issued in 

the Federal Register of July 11, 2006 (71 

FR 39035)(FRL–7733–9), or in the 

docket for the 2006 proposal under 

docket ID number EPA–HQ–OPPT– 

2005–0036. All documents in the docket 

are listed in the docket’s index which is 

available at http://www.regulations.gov. 

2. Mercury uses. Elemental mercury 

has been used in thousands of products 

and applications. Over the past two 

decades, there has been a dramatic drop 

in elemental mercury use by industries 

in the United States. In response to 

increased concerns about exposure to 

anthropogenic sources of mercury in the 

environment and also because of the 

availability of suitable mercury-free 


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products, Federal and State 

governments have made efforts to limit 

the use of elemental mercury in certain 

products. Various states have banned or 

restricted the manufacture or sale of 

products containing mercury, see http:// 

www.epa.gov/epawaste/hazard/tsd/ 

mercury/laws.htm. On October 7, 2007, 

EPA issued a final SNUR for elemental 

mercury used in convenience light 

switches, anti-lock braking system 

switches, and active ride control system 

switches in certain motor vehicles (72 

FR 56903). 

In the past, elemental mercury was 

used in the manufacture of flow meters, 

natural gas manometers, and 

pyrometers. The latest information 

available to EPA indicates that the 

manufacture of these mercurycontaining articles has ceased (Ref. 1). 

EPA requests comments on whether 

elemental mercury continues to be used 

in manufacturing (including importing 

into the United States) flow meters, 

natural gas manometers, or pyrometers. 

EPA also requests comment on whether 

elementary mercury is being used in the 

remanufacturing of any of these articles 

that remain in use. 

3. Flow meters containing elemental 

mercury. Flow meters are instruments 

which measure the flow rate of liquids 

or gases. Historically, they have been 

used in civil service applications, e.g., 

water treatment plants, sewage plants, 

and power stations. Flow meters 

contained up to 5 kilograms (kg) of 

elemental mercury. At present, the sale 

of mercury-containing flow meters is 

banned in six states: California, Maine, 

Massachusetts, New Hampshire, New 

York, and Vermont (Ref. 4). Many 

mercury-free alternatives exist, 

including differential pressure meters, 

positive displacement meters, velocity 

meters, and mass meters. EPA found 

sufficient information to conclude that 

mercury-containing flow meters are no 

longer manufactured in or imported into 

the United States (Ref. 1). 

4. Natural gas manometers containing 

elemental mercury. A manometer is an 

instrument used to measure the pressure 

of gases or liquids. For purposes of this 

proposed rule, a natural gas manometer 

means a mercury-containing instrument 

used in the natural gas industry to 

measure the pressure differential of 

natural gas in a pipeline. Mercury 

manometers have been used in the 

natural gas industry on individual 

wells, pipeline junctions, pipeline 

manifolds, compressor stations, and 

distribution points. The manometers 

contain between 3.2 and 54.5 kg of 

mercury. A common design for 

manometers is a U-shaped tube with 

one end opened to the atmosphere and 

the other connected to a process. 

Contained in the tube is a liquid 

(mercury, in the past). Pressure 

differential is measured by comparing 

the liquid levels in each of the two 

vertical sections of the tube. Seven 

states have enacted broad bans on the 

sale of mercury manometers (Ref. 4), 

and Louisiana prohibits the sale of 

mercury-containing natural gas 

manometers (Ref. 2). Available 

information indicates that bellows 

orifice meters have replaced mercury 

meters in the natural gas industry. EPA 

found sufficient information to 

conclude that mercury-containing 

manometers are no longer manufactured 

in or imported into the United States 

(Ref. 1). 

5. Pyrometers containing elemental 

mercury. A pyrometer is an instrument 

that is similar to a thermometer but is 

typically used to measure extremely 

high temperatures in industrial 

processes such as in foundries, for 

pottery and ceramic kiln work, and in 

automotive applications. Historically, 

pyrometers contained mercury in 

sensing units in amounts ranging 

between 5 and 10 grams of mercury. In 

recent years, California, Maine, 

Massachusetts, New Hampshire, New 

York, and Vermont have banned the sale 

of mercury-containing pyrometers (Ref. 

4). EPA found sufficient information to 

conclude that mercury-containing 

pyrometers are no longer manufactured, 

or imported into the U.S. (Ref. 1). 

6. Potential exposure and release. The 

typical lifecycle of flow meters, natural 

gas manometers, and pyrometers 

includes several stages: Manufacture, 

distribution in commerce, use, and 

waste management (landfilling or 

recycling). At any point in the lifecycle, 

there is potential for mercury to be 

released as liquid or vapor. Workers and 

others can be exposed to the mercury 

and it can be released into water, air, or 

onto land as the mercury is transported, 

stored, and handled during 

manufacturing. While the flow meters, 

manometers, and pyrometers are in use, 

the mercury can vaporize or spill due to 

breakage during transport, installation, 

maintenance, refilling, or repair. 

Beginning in the 1920s, mercurycontaining manometers were used in the 

Louisiana natural gas industry. Mercury 

from these manometers has been 

identified as a source of soil 

contamination. (Ref. 3). Other 

opportunities for release can occur at 

the end of the lifecycle of flow meters, 

manometers, and pyrometers, as the 

devices are removed from equipment 

and facilities, and handled during waste 

management. 

B. Proposed Action 

EPA is proposing to designate as 

significant new uses use of elemental 

mercury in flow meters, natural gas 

manometers, or pyrometers. However, 

use of elemental mercury in these 

articles when they are in service as of 

the effective date of the final rule would 

not be covered as a significant new use 

under this proposed SNUR. Proposed 

definitions of ‘‘flow meter,’’ ‘‘natural gas 

manometer,’’ and ‘‘pyrometer’’ can be 

found at 40 CFR 721.10068 of the 

regulatory text for this proposal. 

This action would amend 40 CFR 

721.10068 and require persons who 

intend to manufacture or process 

elemental mercury for a use designated 

by this proposed rule as a significant 

new use to notify EPA at least 90 days 

before commencing the manufacturing 

or processing of elemental mercury for 

such significant new use. The required 

notification would provide EPA with 

the opportunity to evaluate the intended 

use and, if necessary, to prohibit or limit 

that activity before it occurs. 

For this SNUR, EPA is proposing not 

to include the general ‘‘article’’ 

exemption at 40 CFR 721.45(f). Thus, 

persons importing or processing 

elemental mercury (including when part 

of an article) for a significant new use 

would be subject to the notification 

requirements of 40 CFR 721.25. EPA 

proposes not to include this exemption 

because flow meters, natural gas 

manometers, and pyrometers are 

articles, and a primary concern 

associated with this SNUR is potential 

exposures associated with the lifecycle 

of these uses. Further, it is possible to 

reclaim elemental mercury from certain 

articles, which could be used to produce 

flow meters, natural gas manometers, 

and pyrometers. EPA notes that, in 

accordance with TSCA section 12(a) and 

40 CFR 721.45(g), persons who 

manufacture or process elemental 

mercury solely for export would be 

exempt from the notification 

requirements of 40 CFR 721.25, if when 

distributing the substance in commerce, 

it is labeled in accordance with TSCA 

section 12(a)(1)(B). Further, EPA notes 

that the exemption from the TSCA 

section 12(b) notification requirements 

for exported articles (see 40 CFR 

707.60(b)) would remain in force. Thus, 

persons who export elemental mercury 

as part of an article would not be 

required to provide export notification. 

EPA believes elemental mercury is no 

longer used to manufacture flow meters, 

natural gas manometers, or pyrometers, 

but some of these articles may remain in 

service in the United States. EPA 

believes the ongoing use of such 


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articles, including some maintenance 

and servicing activities, falls outside the 

regulation of significant new uses, and 

EPA has clarified this in the proposed 

rule text. Thus, the manufacturing and 

processing of elemental mercury for use 

in these articles, provided they are in 

service as of the effective date of the 

final rule, would not be covered by the 

rule. For example, if an article that is in 

service as of the effective date of the 

final rule is removed from service for 

maintenance or servicing, including the 

addition of new mercury, and then 

placed back into service, any 

manufacturing or processing of mercury 

associated with that maintenance or 

servicing would not be covered by the 

rule. Otherwise, the addition of new 

mercury to these existing articles after 

the effective date of the final rule could 

potentially trigger a significant new use 

notice under this proposed rule (e.g., if 

it involved processing of the mercury), 

which is not EPA’s intent. 

IV. Rationale and Objectives 

A. Rationale 

As summarized in Unit III.A., EPA 

has concerns regarding the 

environmental fate and the exposure 

pathways that lead to the presence of 

methylmercury in fish and the 

consumption of mercury-contaminated 

fish by humans and wildlife. EPA is 

encouraged by the discontinuation of 

the use of elemental mercury in the 

manufacturing of flow meters, natural 

gas manometers, and pyrometers. 

However, EPA is concerned that the 

manufacturing or processing of 

elemental mercury for use in flow 

meters, natural gas manometers, or 

pyrometers could be reinitiated in the 

future. Accordingly, EPA wants the 

opportunity to evaluate and control, 

where appropriate, activities associated 

with those uses, if such manufacturing 

or remanufacturing were to occur again. 

The required notification provided by a 

SNUN would provide EPA with the 

opportunity to evaluate activities 

associated with a significant new use 

and an opportunity to protect against 

unreasonable risks, if any, from 

exposure to mercury. 

B. Objectives 

Based on the considerations in Unit 

IV.A., EPA has the following objectives 

with regard to the significant new uses 

that are designated in this proposed 

rule: 

1. EPA would receive notice of any 

person’s intent to manufacture or 

process elemental mercury for any of 

the described significant new uses 

before that activity begins. 

2. EPA would have an opportunity to 

review and evaluate data submitted in a 

SNUN before the notice submitter 

begins manufacturing or processing of 

elemental mercury for any of the 

described significant new uses. 

3. EPA would be able to regulate 

prospective manufacturers or processors 

of elemental mercury before the 

described significant new uses of the 

chemical substance occur, provided that 

regulation is warranted pursuant to 

TSCA sections 5(e), 5(f), 6 or 7. 

V. Significant New Use Determination 

Section 5(a)(2) of TSCA states that 

EPA’s determination that a use of a 

chemical substance is a significant new 

use must be made after consideration of 

all relevant factors including: 

• The projected volume of 

manufacturing and processing of a 

chemical substance. 

• The extent to which a use changes 

the type or form of exposure of human 

beings or the environment to a chemical 

substance. 

• The extent to which a use increases 

the magnitude and duration of exposure 

of human beings or the environment to 

a chemical substance. 

• The reasonably anticipated manner 

and methods of manufacturing, 

processing, distribution in commerce, 

and disposal of a chemical substance. 

In addition to these factors 

enumerated in TSCA section 5(a)(2), the 

statute authorizes EPA to consider any 

other relevant factors. 

To determine what would constitute a 

significant new use of elemental 

mercury, EPA considered the four 

factors listed in section 5(a)(2) of TSCA. 

The latest information available to EPA 

indicates that there is no ongoing use of 

elemental mercury in the manufacture 

or remanufacture of flow meters, natural 

gas manometers, or pyrometers. 

Resumption of these uses of elemental 

mercury could result in a significant 

increase in the magnitude and duration 

of exposure to workers and the 

surrounding environment at facilities of 

all types in the lifecycle, as well as an 

increase in releases which could 

contribute additional mercury to the 

atmosphere for long-range transport. 

Resumption of these uses could also 

result in exposures to workers who had 

not previously worked in these facilities 

when elemental mercury was commonly 

used, as well as exposures to workers 

who are not currently being exposed to 

mercury in the manufacture of flow 

meters, natural gas manometers, or 

pyrometers. Increases in mercury 

releases could lead to increases in 

mercury concentrations in the 

environment and reduction in overall 

ecosystem and human health from 

consumption of mercury-contaminated 

fish. 

EPA believes that any of these 

renewed uses of elemental mercury 

would increase the magnitude and 

duration of exposure to humans and the 

environment over that which would 

otherwise exist. Based upon the relevant 

factors as discussed in this Unit, EPA 

has determined that any manufacturing 

or processing of elemental mercury for 

use in flow meters, natural gas 

manometers, or pyrometers is a 

significant new use. 

VI. Alternatives 

Before proposing this SNUR, EPA 

considered the following alternative 

regulatory actions: 

A. Promulgate a TSCA Section 8(a) 

Reporting Rule 

Under a TSCA section 8(a) rule, EPA 

could, among other things, generally 

require persons to report information to 

the Agency when they intend to 

manufacture or process a listed 

chemical for a specific use or any use. 

However, for elemental mercury used in 

flow meters, natural gas manometers, 

and pyrometers, the use of TSCA 

section 8(a) rather than SNUR authority 

would have several limitations. First, if 

EPA were to require reporting under 

TSCA section 8(a) instead of TSCA 

section 5(a), EPA would not have the 

opportunity to review human and 

environmental hazards and exposures 

associated with the proposed significant 

new use and, if necessary, take 

immediate follow-up regulatory action 

under TSCA sections 5(e) or 5(f) to 

prohibit or limit the activity before it 

begins. In addition, EPA may not 

receive important information from 

small businesses, because such firms 

generally are exempt from TSCA section 

8(a) reporting requirements. In view of 

the level of health and environmental 

concerns about elemental mercury, if 

used for the proposed significant new 

use, EPA believes that a TSCA section 

8(a) rule for this substance would not 

meet EPA’s regulatory objectives. 

B. Regulate Elemental Mercury for Use 

in Flow Meters, Natural Gas 

Manometers, and Pyrometers Under 

TSCA Section 6 

EPA may regulate under TSCA 

section 6 if ‘‘the Administrator finds 

that there is a reasonable basis to 

conclude that the manufacture, 

processing, distribution in commerce, 

use or disposal of a chemical substance 

or mixture . . . presents or will present 

an unreasonable risk of injury to health 

or the environment.’’ (TSCA section 


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6(a)) Given that elemental mercury is no 

longer being used in the manufacture of 

flow meters, natural gas manometers, or 

pyrometers, EPA concluded that risk 

management action under TSCA section 

6 is not necessary at this time. This 

proposed SNUR would allow the 

Agency to address the potential risks 

associated with the proposed significant 

new use. 

C. Allow the Exemption for Persons Who 

Import or Process Elemental Mercury as 

Part of Articles That Could be Subject to 

the SNUR 

Under the SNUR exemption provision 

at 40 CFR 721.45(f), a person who 

imports or processes a substance 

covered by a SNUR identified in subpart 

E of part 721 as part of an article is not 

generally subject to the notification 

requirements of §721.25 for that 

substance. However, EPA is concerned 

that exempting articles would render 

the SNUR less effective because of the 

possibility that flow meters, natural gas 

manometers, or pyrometers containing 

elemental mercury could be imported or 

processed for uses subject to this 

proposed SNUR without the submission 

of a SNUN. Because mercury-containing 

flow meters, natural gas manometers 

and pyrometers are the primary 

concerns in this SNUR, EPA wishes to 

include not only bulk elemental 

mercury but also these and other articles 

when they contain elemental mercury 

imported or processed for a significant 

new use. Thus, EPA is proposing to 

promulgate this rule without the 

exemption generally provided for in 

§721.45(f). 

VII. Applicability of Rule to Uses 

Occurring Before Effective Date of the 

Final Rule 

As discussed in the Federal Register 

of April 24, 1990 (55 FR 17376), EPA 

has decided that the intent of section 

5(a)(1)(B) of TSCA is best served by 

designating a use as a significant new 

use as of the date of publication of the 

proposed rule rather than as of the 

effective date of the final rule. If uses 

begun after publication of the proposed 

rule were considered ongoing rather 

than new, it would be difficult for EPA 

to establish SNUR notice requirements, 

because a person could defeat the SNUR 

by initiating the proposed significant 

new use before the rule became final, 

and then argue that the use was ongoing 

as of the effective date of the final rule. 

Thus, persons who begin commercial 

manufacture or processing of the 

chemical substance that would be 

regulated through this proposed rule, if 

finalized, would have to cease any such 

activity before the effective date of the 

rule if and when finalized. To resume 

their activities, these persons would 

have to comply with all applicable 

SNUR notice requirements and wait 

until the notice review period, 

including all extensions, expires. EPA 

has promulgated provisions to allow 

persons to comply with this SNUR 

before the effective date. If a person 

were to meet the conditions of advance 

compliance under § 721.45(h), that 

person would be considered to have met 

the requirements of the final SNUR for 

those activities. 

VIII. Test Data and Other Information 

EPA recognizes that TSCA section 5 

does not require developing any 

particular test data before submission of 

a SNUN. Persons are required only to 

submit test data in their possession or 

control and to describe any other data 

known to or reasonably ascertainable by 

them (15 U.S.C. 2604(d); 40 CFR 

721.25). However, as a general matter, 

EPA recommends that SNUN submitters 

include data that would permit a 

reasoned evaluation of risks posed by 

the chemical substance during its 

manufacture, processing, use, 

distribution in commerce, or disposal. 

EPA encourages persons to consult with 

the Agency before submitting a SNUN. 

As part of this optional pre-notice 

consultation, EPA would discuss 

specific data it believes may be useful 

in evaluating a significant new use. 

SNUNs submitted for significant new 

uses without any test data may increase 

the likelihood that EPA will take action 

under TSCA section 5(e) to prohibit or 

limit activities associated with this 

chemical. 

SNUN submitters should be aware 

that EPA will be better able to evaluate 

SNUNs that provide detailed 

information on: 

1. Human exposure and 

environmental releases that may result 

from the significant new uses of the 

chemical substance. 

2. Potential benefits of the chemical 

substance. 

3. Information on risks posed by the 

chemical substances compared to risks 

posed by potential substitutes. 

IX. SNUN Submissions 

SNUNs must be mailed to the 

Environmental Protection Agency, 

OPPT Document Control Office 

(7407M), 1200 Pennsylvania Avenue, 

NW., Washington, D.C. 20460–0001. 

Information must be submitted in the 

form and manner set forth in EPA Form 

No. 7710-25. This form is available from 

the Environmental Assistance Division 

(7408M), 1200 Pennsylvania Avenue, 

NW., Washington, D.C. 20460–0001 (see 

40 CFR 721.25 and 720.40). Forms and 

information are also available 

electronically at http://www.epa.gov/ 

opptintr/newchems/pubs/ 

pmnforms.htm. 

X. Economic Analysis 

EPA has evaluated the potential costs 

of establishing SNUR reporting 

requirements for potential 

manufacturers and processors of the 

chemical substance included in this 

proposed rule (Ref. 1). EPA’s economic 

analysis (Ref. 1), which is briefly 

summarized here, is available in the 

docket for this proposed rule. 

The costs of submission of a SNUN 

will not be incurred by any company 

until a company decides to pursue a 

significant new use as defined in this 

proposed SNUR. In the event that a 

SNUN is submitted, costs are estimated 

at approximately $8,000 per SNUN 

submission, and includes the cost for 

preparing and submitting the SNUN, 

and the payment of a user fee. 

Businesses that submit a SNUN are 

either subject to a $2,500 user fee 

required by 40 CFR 700.45(b)(2)(iii), or, 

if they are a small business with annual 

sales of less than $40 million when 

combined with those of the parent 

company (if any), a reduced user fee of 

$100 (40 CFR 700.45(b)(1)). In its 

evaluation of this rule, EPA also 

considered the potential costs a 

company might incur by avoiding or 

delaying the significant new use in the 

future, but these costs have not been 

quantified. 

In addition to comments on all 

aspects of this proposal, the Agency is 

specifically interested in comments and 

supporting information on the following 

questions related to assumptions used 

in the Agency’s analysis: 

Do you know of any current domestic 

production of mercury flow meters for 

the uses defined as significant in this 

rule that EPA missed? If yes, please 

provide detailed information. 

Are mercury flow meters currently 

available in the market place for the 

uses defined as significant in this rule? 

If yes, please provide detailed 

information. 

Does the analysis capture the lost 

option value of mercury flow meters? If 

no, please provide specific information 

that you believe should be included. 

Are the costs for preparing and 

submitting a SNUN comparable to the 

costs for preparing and submitting a 

PMN? If not, in what ways is it 

different? 

Providing supporting and detailed 

information for comments on these 

points will be used by EPA to review 


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related assumptions in the economic 

analysis as it prepares the final rule. 

XI. References 

The following documents are 

specifically referenced in the preamble 

for this rulemaking. In addition to these 

documents, other materials may be 

available in the docket established for 

this rulemaking under Docket ID No. 

EPA–HQ–OPPT–2008–0483, which you 

can access through 

www.regulations.gov. Those interested 

in the information considered by EPA in 

developing this proposed rule, should 

also consult documents that are 

referenced in the documents that EPA 

has placed in the docket, regardless of 

whether the other documents are 

physically located in the docket. 

1. EPA, 2008b. Economic Analysis for 

the Proposed Significant New Use Rule 

for Mercury-Containing Flow Meters, 

Nanometers, and Pyrometers. 

Washington, D.C. OPPT/EETD/EPAB, 

July 21, 2009. 

2. La. Sess. Law Serv. Act 126 (S.B. 

615) 

3. State of Louisiana Mercury Risk 

Reduction Plan, prepared by the 

Louisiana Department of Environmental 

Quality, 2007. Available as of 

September 1, 2008 at http:// 

www.ldeq.org/portal/Portals/0/ 

organization/MercuryReportforweb.pdf 

4. Mercury Reduction & Education 

Legislation in the IMERC-Member 

States, prepared by Terri Goldberg and 

Adam Wienert, NEWMOA, June 2008. 

Available as of January 8, 2009 at http:// 

www.newmoa.org/prevention/mercury/ 

imerc/legislation-2008.htm 

XII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866, 

entitled Regulatory Planning and 

Review (58 FR 51735, October 4, 1993), 

the Office of Management and Budget 

(OMB) has determined that this 

proposed SNUR is a ‘‘significant 

regulatory action,’’ because it meets the 

criteria in section 3(f) of the Executive 

Order. Accordingly, this action was 

submitted to the OMB for review under 

Executive Order 12866 and any changes 

made based on OMB recommendations 

have been documented in the public 

docket for this rulemaking as required 

by section 6(a)(3)(E) of the Executive 

Order. 

B. Paperwork Reduction Act 

According to the Paperwork 

Reduction Act (PRA), 44 U.S.C. 3501 et 

seq., an Agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

that requires OMB approval under the 

PRA, unless it has been approved by 

OMB and displays a currently valid 

OMB control number. The OMB control 

numbers for EPA’s regulations in Title 

40 of the CFR, after appearing in the 

Federal Register, are listed in 40 CFR, 

part 9, and included on the related 

collection instrument, or form, if 

applicable. 

The information collection 

requirements related to this action have 

already been approved by OMB 

pursuant to the PRA under OMB control 

number 2070-0038 (EPA ICR No. 1188). 

This action does not impose any burden 

requiring additional OMB approval. If 

an entity were to submit a SNUN to the 

Agency, the annual burden is estimated 

to average 110 hours per response. This 

burden estimate includes the time 

needed to review instructions, search 

existing data sources, gather and 

maintain the data needed, and 

complete, review, and submit the 

required SNUN. 

Send any comments about the 

accuracy of the burden estimate, and 

any suggested methods for minimizing 

respondent burden, including through 

the use of automated collection 

techniques, to the Director, Collection 

Strategies Division, Office of 

Environmental Information (2822T), 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

D.C. 20460–0001. Please remember to 

include the OMB control number in any 

correspondence, but do not submit any 

completed forms to this address. 

C. Regulatory Flexibility Act 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act (RFA) (5 

U.S.C. 601 et seq.), the Agency hereby 

certifies that promulgation of this SNUR 

would not have a significant adverse 

economic impact on a substantial 

number of small entities. The rationale 

supporting this conclusion is as follows. 

A SNUR applies to any person 

(including small or large entities) who 

intends to engage in any activity 

described in the rule as a ‘‘significant 

new use.’’ By definition of the word 

‘‘new,’’ and based on all information 

currently available to EPA, it appears 

that no small or large entities presently 

engage in such activity. Since this 

proposed SNUR would require a person 

who intends to engage in such activity 

in the future to first notify EPA by 

submitting a SNUN, no economic 

impact will occur unless someone files 

a SNUN to pursue a significant new use 

in the future or forgoes profits by 

avoiding or delaying the significant new 

use. Although some small entities may 

decide to conduct such activities in the 

future, EPA cannot presently determine 

how many, if any, there may be. 

However, EPA’s experience to date is 

that, in response to the promulgation of 

over 1,000 SNURs, the Agency receives 

on average only 5 notices per year. Of 

those SNUNs submitted, only one 

appears to be from a small entity in 

response to any SNUR. Therefore, EPA 

believes that the potential economic 

impact of complying with this SNUR is 

not expected to be significant or 

adversely impact a substantial number 

of small entities. In a SNUR that 

published as a final rule on August 8, 

1997 (62 FR 42690)(FRL–5735–4), the 

Agency presented its general 

determination that proposed and final 

SNURs are not expected to have a 

significant economic impact on a 

substantial number of small entities, 

which was provided to the Chief 

Counsel for Advocacy of the Small 

Business Administration. 

D. Unfunded Mandates Reform Act 

Based on EPA’s experience with 

proposing and finalizing SNURs, State, 

local, and Tribal governments have not 

been impacted by these rulemakings, 

and EPA does not have any reason to 

believe that any State, local, or Tribal 

government would be impacted by this 

rulemaking. As such, EPA has 

determined that this regulatory action 

would not impose any enforceable duty, 

contain any unfunded mandate, or 

otherwise have any effect on small 

governments subject to the requirements 

of sections 202, 203, 204, or 205 of the 

Unfunded Mandates Reform Act of 1995 

(UMRA) (Public Law 104–4). 

E. Executive Order 13132: Federalism 

This action would not have a 

substantial direct effect on States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, entitled 

Federalism (64 FR 43255, August 10, 

1999). 

F. Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

This proposed rule would not have 

Tribal implications because it is not 

expected to have substantial direct 

effects on Indian Tribes. This proposed 

rule would not significantly or uniquely 

affect the communities of Indian Tribal 

governments, nor would it involve or 

impose any requirements that affect 

Indian Tribes. Accordingly, the 


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46714 Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Proposed Rules 

requirements of Executive Order 13175, 

entitled Consultation and Coordination 

with Indian Tribal Governments (65 FR 

67249, November 6, 2000), do not apply 

to this proposed rule. 

G. Executive Order 13045: Protection of 

Children from Environmental Health 

Risks and Safety Risks 

This action is not subject to Executive 

Order 13045, entitled Protection of 

Children from Environmental Health 

Risks and Safety Risks (62 FR 19885, 

April 23, 1997), because this is not an 

economically significant regulatory 

action as defined by Executive Order 

12866, and this action does not address 

environmental health or safety risks 

disproportionately affecting children. 

H. Executive Order 13211: Actions that 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule is not subject to 

Executive Order 13211, entitled Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use (66 FR 28355, May 

22, 2001), because this action is not 

expected to affect energy supply, 

distribution, or use. 

I. National Technology Transfer 

Advancement Act 

Since this action does not involve any 

technical standards; section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (NTTAA), 

Public Law 104–113, section 12(d) (15 

U.S.C. 272 note), does not apply to this 

action. 

J. Executive Order 12898: Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

This action does not entail special 

considerations of environmental justice 

related issues as delineated by 

Executive Order 12898, entitled Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations (59 FR 7629, 

February 16, 1994). 

List of Subjects in 40 CFR Part 721 

Environmental protection, Chemicals, 

Hazardous substances, Reporting and 

recordkeeping requirements 

Dated: August 25, 2009. 

Wendy C. Hamnett, 

Acting Director, Office of Pollution Prevention 

and Toxics. 

Therefore, it is proposed that 40 CFR 

chapter I be amended as follows: 

PART 721—[AMENDED] 

■ 1. The authority citation for part 721 

continues to read as follows: 

Authority: 15 U.S.C. 2604, 2607, 2625(c). 

■ 2. Section 721.10068 is amended by 

revising paragraph (a) and adding a new 

paragraph (b)(2)(vii) to read as follows: 

§ 721.10068 Elemental mercury. 

(a) Definitions. The definitions in 

§721.3 apply to this section. In addition, 

the following definition applies: 

(1) Motor vehicle has the meaning 

found at 40 CFR 85.1703. 

(2) Flow meter means an instrument 

used in various applications to measure 

the flow rate of liquids or gases. 

(3) Natural gas manometer means an 

instrument used in the natural gas 

industry to measure gas pressure. 

(4) Pyrometer means an instrument 

used in various applications to measure 

extremely high temperatures. 

(b)* * * 

(2)* * * 

(vii) Manufacturing or processing of 

elemental mercury for use in flow 

meters, natural gas manometers, and 

pyrometers except for use in these 

articles when they are in service as of 

September 11, 2009. 

* * * * * 

[FR Doc. E9–21894 Filed 9–10–09; 8:45 am] 

BILLING CODE 6560–50–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 0907301200–91202–01] 

RIN 0648–AY07 

Magnuson-Stevens Act Provisions; 

Fisheries off West Coast States; 

Pacific Coast Groundfish Fishery; 

2009–2010 Biennial Specifications and 

Management Measures for Canary 

Rockfish and Petrale Sole 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes a rule to 

revise the 2009 management measures 

for petrale sole and to revise the 2010 

harvest specifications and management 

measures for petrale sole and canary 

rockfish taken in the U.S. exclusive 

economic zone (EEZ) off the coasts of 

Washington, Oregon, and California. 

DATES: Comments on this proposed rule 

must be received no later than 5 p.m., 

local time on October 13, 2009. 

ADDRESSES: You may submit comments, 

identified by RIN 0648–AY07 by any 

one of the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

• Fax: 206–526–6736, Attn: Gretchen 

Arentzen 

• Mail: Barry A. Thom, Acting 

Regional Administrator, Northwest 

Region, NMFS, 7600 Sand Point Way 

NE, Seattle, WA 98115–0070, Attn: 

Gretchen Arentzen. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

Copies of the Draft Environmental 

Assessment (DEA) prepared for this 

action is available from the NMFS 

Northwest Region website at http:// 

www.nwr.noaa.gov or from the mailing 

and street addresses listed above. 

FOR FURTHER INFORMATION CONTACT: 

Gretchen Arentzen (Northwest Region, 

NMFS), phone: 206–526–6147, fax: 206– 

526–6736 and e-mail 

gretchen.arentzen@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

This proposed rule is accessible via 

the Internet at the Office of the Federal 

Register’s Website at http:// 

www.gpoaccess.gov/fr/index.html. 

Background information and documents 

are available at the Pacific Fishery 

Management Council’s website at http:// 

www.pcouncil.org/. 

Background 

The 2009 and 2010 ABCs, OYs and 

HGs for Pacific coast groundfish species 

were established in the final rule for the 

2009–2010 groundfish harvest 

specifications and management 

measures (74 FR 9874, March 6, 2009). 

This rule proposes interim measures for 

two species. For petrale sole this action 

would reduce catches in 2009 by 


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