Federal Register / Vol. 71, No. 113 / Tuesday, June 13, 2006 / Rules and Regulations 34015 

B. Submission to Congress and the 

Comptroller General 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. This rule is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

C. Petitions for Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this final rule to approve revisions that 

clarify the definition of ‘‘interruptible 

gas service’’ must be filed in the United 

States Court of Appeals for the 

appropriate circuit by August 14, 2006. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Particulate matter, 

Reporting and recordkeeping 

requirements. 

Dated: June 1, 2006. 

Donald S. Welsh, 

Regional Administrator, Region III. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart V—Maryland 

■ 2. In § 52.1070, the table in paragraph 

(c) is amended by revising the entry for 

COMAR 26.11.09.01 to read as follows: 

§ 52.1070 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED REGULATIONS IN THE MARYLAND SIP 

Code of Maryland administrative 

regulations (COMAR) citation Title/subject State effective date 

EPA approval 

date 

Additional explanation/citation at 

40 CFR 52.1100 

* * * * * * * 

COMAR 26.11.09 Control of Fuel Burning Equipment, Stationary Internal Combustion Engines, and Certain Fuel-Burning Installations

COMAR 26.11.09.01 ..................... Definitions ......... 9/12/05 6/13/06 [Insert page number 

where the document begins].

Revised definition of ‘‘interruptible 

gas service’’ in 26.11.09.01(4) 

* * * * * * * 

* * * * * 

[FR Doc. 06–5297 Filed 6–12–06; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 721 

[EPA–HQ–OPPT–2004–0085; FRL–7743–2] 

RIN 2070–AJ02 

Certain Polybrominated 

Diphenylethers; Significant New Use 

Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is promulgating a 

significant new use rule (SNUR) under 

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

Control Act (TSCA) for 

tetrabromodiphenyl ether (CAS No. 

40088–47–9; Benzene, 1,1′-oxybis-, 

tetrabromo deriv.), pentabromodiphenyl 

ether (CAS No. 32534–81–9; Benzene, 

1,1′-oxybis-, pentabromo deriv.), 

hexabromodiphenyl ether (CAS No. 

36483–60–0; Benzene, 1,1′-oxybis-, 

hexabromo deriv.), heptabromodiphenyl 

ether (CAS No. 68928–80–3; Benzene, 

1,1′-oxybis-, heptabromo deriv.), 

octabromodiphenyl ether (CAS No. 

32536–52–0; Benzene, 1,1′-oxybis-, 

octabromo deriv.), and 

nonabromodiphenyl ether (CAS No. 

63936–56–1; Benzene, 

pentabromo(tetrabromophenoxy)-), or 

any combination of these substances 

resulting from a chemical reaction. This 

rule requires manufacturers and 

importers to notify EPA at least 90 days 

before commencing the manufacture or 

import of any one or more of these 

chemical substances on or after January 

1, 2005 for any use. EPA believes that 

this action is necessary because these 

chemical substances may be hazardous 

to human health and the environment. 

The required notice will provide EPA 

with the opportunity to evaluate an 

intended new use and associated 

activities and, if necessary, to prohibit 

or limit that activity before it occurs. 

DATES: This final rule is effective on 

August 14, 2006. 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ–

OPPT–2004–0085. All documents in the 

docket are listed on the regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, i.e., Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically at http:// 

www.regulations.gov or in hard copy at 

the OPPT Docket, EPA Docket Center 

(EPA/DC), EPA West, Rm. B102, 1301 

Constitution Ave., NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744 

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34016 Federal Register / Vol. 71, No. 113 / Tuesday, June 13, 2006 / Rules and Regulations 

and the telephone number for the OPPT 

Docket is (202) 566–0280. 

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: 

Kenneth Moss, Chemical Control 

Division (7405M), Office of Pollution 

Prevention and Toxics, Environmental 

Protection Agency, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460–

0001; telephone number: (202) 564–

9232; e-mail address: 

moss.kenneth@epa.gov. 

SUPPLEMENTARY INFORMATION: EPA 

proposed this SNUR on certain 

polybrominated diphenylethers on 

December 6, 2004 (69 FR 70404) (FRL–

7688–1). The Agency’s responses to 

public comments received on the 

proposed rule are in Unit VI. Please 

consult the December 6, 2004 Federal 

Register document for further 

background information for this final 

rule. 

I. General Information 

A. Does this Action Apply to Me? 

You may be potentially affected by 

this action if you manufacture or import 

one or more of the following 

polybrominated diphenyl ethers 

(PBDEs): tetrabromodiphenyl ether 

(‘‘tetraBDE’’) (CAS No. 40088–47–9; 

Benzene, 1,1′-oxybis-, tetrabromo 

deriv.), pentabromodiphenyl ether 

(‘‘pentaBDE’’) (CAS No. 32534–81–9; 

Benzene, 1,1′-oxybis-, pentabromo 

deriv.), hexabromodiphenyl ether 

(‘‘hexaBDE’’) (CAS No. 36483–60–0; 

Benzene, 1,1′-oxybis-, hexabromo 

deriv.), heptabromodiphenyl ether 

(‘‘heptaBDE’’) (CAS No. 68928–80–3; 

Benzene, 1,1′-oxybis-, heptabromo 

deriv.), octabromodiphenyl ether 

(‘‘octaBDE’’) (CAS No. 32536–52–0; 

Benzene, 1,1′-oxybis-, octabromo 

deriv.), and nonabromodiphenyl ether 

(‘‘nonaBDE’’) (CAS No. 63936–56–1; 

Benzene, 

pentabromo(tetrabromophenoxy)-), or 

any combination of these substances 

resulting from a chemical reaction. 

Persons who intend to 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 to the regulations 

codified at 19 CFR 12.118 through 

12.127, and 127.28. Those persons must 

certify that they are in compliance with 

the 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 final rule are 

subject to the export notification 

provisions of TSCA section 12(b) (15 

U.S.C. 2611(b)), and must comply with 

the export notification requirements in 

40 CFR part 707, subpart D (see 40 CFR 

721.20). Potentially affected entities 

may include, but are not limited to: 

• Manufacturers (defined by statute to 

include importers) of PBDEs (NAICS 

325 and 324110), e.g., chemical 

manufacturing and petroleum refineries. 

This listing is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. The North American 

Industrial Classification System 

(NAICS) codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. To determine whether 

you or your business may be affected by 

this action, you should carefully 

examine the applicability provisions at 

40 CFR 721.5 for SNUR-related 

obligations. Note that for this action, 40 

CFR 721.5(a)(2) does not apply. 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. 

B. How Can I Access Electronic Copies 

of this Document? 

In addition to accessing an electronic 

copy of this Federal Register document 

through the electronic docket at http:// 

www.regulations.gov, you may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.epa.gov/fedrgstr. You may 

also access a frequently updated 

electronic version of 40 CFR part 721 

through the Government Printing 

Office’s pilot e-CFR site at http:// 

www.gpoaccess.gov/ecfr. 

II. Background 

A. What Action is the Agency Taking? 

This rule requires persons to notify 

EPA at least 90 days before commencing 

the manufacture (including importation) 

of tetrabromodiphenyl ether 

(‘‘tetraBDE’’) (CAS No. 40088–47–9; 

Benzene, 1,1′-oxybis-, tetrabromo 

deriv.), pentabromodiphenyl ether 

(‘‘pentaBDE’’) (CAS No. 32534–81–9; 

Benzene, 1,1′-oxybis-, pentabromo 

deriv.), hexabromodiphenyl ether 

(‘‘hexaBDE’’) (CAS No. 36483–60–0; 

Benzene, 1,1′-oxybis-, hexabromo 

deriv.), heptabromodiphenyl ether 

(‘‘heptaBDE’’) (CAS No. 68928–80–3; 

Benzene, 1,1′-oxybis-, heptabromo 

deriv.), octabromodiphenyl ether 

(‘‘octaBDE’’) (CAS No. 32536–52–0; 

Benzene, 1,1′-oxybis-, octabromo 

deriv.), and nonabromodiphenyl ether 

(‘‘nonaBDE’’) (CAS No. 63936–56–1; 

Benzene, 

pentabromo(tetrabromophenoxy)-), or 

any combination of these substances 

resulting from a chemical reaction, for 

any use on or after January 1, 2005. 

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 notice to 

EPA at least 90 days before they 

manufacture, import, or process the 

chemical substance for that use (15 

U.S.C. 2604(a)(1)(B)). 

C. Applicability of General Provisions 

General provisions for SNURs appear 

under subpart A of 40 CFR part 721. 

These provisions describe persons 

subject to the rule, recordkeeping 

requirements, and exemptions to 

reporting requirements. Note that for 

this action, 40 CFR 721.5(a)(2) does not 

apply. Provisions relating to user fees 

appear at 40 CFR part 700. Persons that 

are subject to this SNUR will need to 

comply with the same notice 

requirements and EPA regulatory 

procedures as submitters of 

premanufacture notices (PMNs) under 

section 5(a)(1)(A) of TSCA. 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 significant new use 

notice (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 intend to export a 

chemical substance identified in a 

proposed or final SNUR are subject to 

the export notification provisions of 

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Federal Register / Vol. 71, No. 113 / Tuesday, June 13, 2006 / Rules and Regulations 34017 

TSCA section 12(b). The regulations that 

implement TSCA section 12(b) appear at 

40 CFR part 707, subpart D. Persons 

who intend to import a chemical 

substance identified in a final SNUR are 

subject to the TSCA section 13 import 

certification requirements, which are 

codified at 19 CFR 12.118 through 

12.127 and 127.28. Such persons must 

certify that they are in compliance with 

SNUR requirements. The EPA policy in 

support of the import certification 

appears at 40 CFR part 707, subpart B. 

III. Objectives and Rationale of the Rule 

As summarized in Unit IV. of the 

proposed rule, EPA has concerns 

regarding the environmental fate and 

the exposure pathways that lead to 

PBDE presence in wildlife and people, 

and the persistence, bioaccumulation, 

and toxicity (PBT) potential of 

pentaBDE and octaBDE, and the other 

PBDE congeners that comprise these 

products and are also subject to this 

rule. Great Lakes Chemical Corporation, 

formerly the sole manufacturer of the 

commercial pentaBDE and octaBDE 

products in the United States, 

voluntarily discontinued their 

manufacture for all uses by December 

31, 2004. With Great Lakes Chemical 

Corporation’s exit from the market, EPA 

believes that all production in and 

import into the United States of these 

chemicals has ceased. However, EPA is 

concerned that manufacture or import 

could be reinitiated in the future, and 

wants the opportunity to evaluate and 

control, if appropriate, exposures 

associated with those activities. Based 

on the situation prior to January 1, 2005, 

including substantial production 

volume, number of uses, potential for 

widespread release and exposure, as 

well as the PBT nature of the chemical 

substances, any new manufacture or 

import after that date is expected to 

significantly increase exposures now 

that manufacture and import have been 

discontinued, over that which could 

otherwise exist. The notice required by 

this SNUR will 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 the substances. 

Based on these considerations, EPA 

wants to achieve the following 

objectives with regard to the significant 

new uses that are designated in this 

rule. The Agency wants to ensure that: 

• It will receive notice of any person’s 

intent to manufacture or import the 

chemical substances subject to this rule 

for a designated significant new use 

before that activity begins. 

• It will have an opportunity to 

review and evaluate data submitted in a 

SNUN before the notice submitter 

begins manufacturing or importing these 

chemical substances for a significant 

new use. 

• It will be able to regulate 

prospective manufacturers and 

importers of these chemical substances 

before a significant new use occurs, 

provided such regulation is warranted 

pursuant to TSCA sections 5(e), 5(f), 6 

or 7. 

The mechanisms or pathways by 

which the PBDEs move into and 

through the environment and humans 

are not fully understood, but are likely 

to include releases from manufacturing 

of the chemicals, manufacturing of 

products like plastics or textiles, aging 

and wear of products like sofas and 

electronics, and releases at the end of 

product life (disposal, recycling). EPA 

believes that information provided in 

SNUNs will help the Agency review any 

new uses and take action, as needed, to 

regulate releases of PBDEs into the 

environment. 

IV. Significant New Use Determination 

In making a determination that a use 

of a chemical substance is a significant 

new use, the Agency must consider all 

relevant factors, including those listed 

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

are: 

• The projected volume of 

manufacturing and processing of the 

chemical substance. 

• The extent to which the use 

changes the type or form of exposure to 

human beings or the environment to a 

chemical substance. 

• The extent to which the use 

changes the magnitude and duration of 

exposure to 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. 

Given that no companies are currently 

manufacturing or importing commercial 

pentaBDE or octaBDE in the United 

States, the negative commercial and 

regulatory environment associated with 

these chemicals (including the EU ban 

on marketing and use of pentaBDE and 

octaBDE (see Ref. 27 of the proposed 

rule) and similar restrictions enacted by 

certain states in the United States (see 

Ref. 28 of the proposed rule), and the 

expectation that viable substitutes will 

be available including those being 

considered in the Design for 

Environment Furniture Flame 

Retardancy Partnership (see Ref. 29 of 

the proposed rule), EPA believes it is 

unlikely that companies would incur 

the costs associated with establishing 

new manufacturing capacity for these 

chemicals in order to enter this market. 

With Great Lakes Chemical 

Corporation’s exit from the market, EPA 

believes that all United States 

manufacture and import of these 

chemicals have ceased and that any new 

manufacture or import, for any use, 

subsequent to Great Lakes Chemical 

Corporation’s December 31, 2004 phaseout date would result in a significant 

increase in the magnitude and duration 

of exposures to humans and the 

environment over that which would 

otherwise exist. Based on these 

considerations, EPA has determined 

that any manufacture or import of the 

chemical substances listed in Unit II.A. 

for any use on or after January 1, 2005 

is a significant new use. 

V. 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 

believes 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 proposal date of the SNUR, 

rather than as of the effective date of the 

final rule. If uses begun after publication 

of the proposed SNUR were considered 

to be ongoing, rather than new, it would 

be difficult for EPA to establish 

notification requirements, because any 

person could defeat the SNUR by 

initiating the proposed significant new 

use before the proposed rule became 

final, and then argue that the use was 

ongoing as of the effective date of the 

final rule. 

Any person who, after publication of 

the proposed SNUR, begins commercial 

manufacture or import of the chemical 

substances listed in Unit II.A. must stop 

such activity before the effective date of 

the final rule. Those persons will have 

to meet all SNUR notice requirements 

and wait until the end of the notice 

review period, including all extensions, 

before engaging in any activities 

designated as significant new uses. If, 

however, persons who begin 

commercial manufacture or import of 

the chemical substances listed in Unit 

II.A. between the proposal and the 

effective date of the final SNUR meet 

the conditions of advance compliance as 

codified at 40 CFR 721.45(h), those 

persons would be considered to have 

met the requirements of the final SNUR 

for those activities. 

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34018 Federal Register / Vol. 71, No. 113 / Tuesday, June 13, 2006 / Rules and Regulations 

VI. Discussion of the Final Significant 

New Use Rule and Response to 

Comments 

This action finalizes the SNUR 

proposed in the Federal Register of 

December 6, 2004 (69 FR 70404). This 

final rule requires persons who intend 

to manufacture or import the chemical 

substances listed in Unit II.A. to submit 

a SNUN at least 90 days before 

commencing the manufacture or 

importation of any of these chemicals, 

for any use, on or after January 1, 2005. 

The Agency reviewed and considered 

all comments received during the 

comment period (December 6, 2004 

through February 4, 2005) for the 

proposed rule. Copies of all comments 

received are available in the public 

docket for this action. A discussion of 

the comments germane to the 

rulemaking and the Agency’s response 

follows. 

A. TSCA Section 12(b) Applicability 

Comment 1—Clarify the TSCA section 

12(b) consequences of the proposed 

rule. One commenter requested 

clarification of TSCA section 12(b) 

export notification requirements, 

especially as they relate to decaBDE 

under the proposed rule, or that EPA 

issue a technical correction notice that 

explicitly excludes those requirements 

for exported decaBDE. 

Response. DecaBDE itself is not 

subject to TSCA section 12(b) export 

notification requirements as a result of 

this action as it is not covered by this 

rulemaking. However, anyone who 

exports one of the PBDEs subject to this 

rule, on or after 30 days after the 

December 6, 2004 date of publication of 

the proposed rule in the Federal 

Register (January 5, 2005), was and is 

subject to the export notification 

provisions of TSCA section 12(b). TSCA 

section 12(b) export notification 

requirements apply to chemical 

substances for which a proposed or final 

rule has been issued under TSCA 

section 5 (in this case, a TSCA section 

5(a)(2) SNUR). Chemical substances 

exported as impurities are not exempt 

from this requirement, and in addition 

there is no de minimis level below 

which TSCA section 12(b) notification 

is not required (See 45 FR 82844, 82845; 

December 16, 1980). Therefore, any 

amount of the PBDEs subject to this 

SNUR that are contained in exported 

decaBDE, other than when exported as 

part of an article, will trigger TSCA 

section 12(b) reporting for those subject 

PBDEs. A notice of export is required for 

the first export or intended export to a 

particular country in a calendar year. 

See 40 CFR part 707, subpart D (45 FR 

82850; December 16, 1980). 

B. Importation of PBDEs 

Comment 2—Import of a formulation 

containing subject PBDEs. One 

commenter asked if a company were to 

import a formulated liquid resin (such 

as an epoxy for use in engineering 

adhesives or molding compounds) 

containing one or more of the subject 

PBDEs, would that company be required 

to submit a notice under the SNUR? 

Response. Yes, a chemical substance 

that is manufactured or imported as part 

of a mixture is subject to SNUR 

notification requirements. See footnote 

for 40 CFR 720.30(b), which would be 

relevant per 40 CFR 721.1(c). 

Comment 3—Import of articles. 

Commenters questioned the Agency’s 

rationale for not having the SNUR apply 

to the import of articles containing the 

PBDEs subject to this rule, especially 

since they are both inexpensive and 

effective to use, and because the Agency 

acknowledged in the proposal that the 

quantity of imported articles containing 

these PBDEs is unknown. They 

suggested that with the cessation of 

octaBDE and pentaBDE production in 

the United States, suppliers outside of 

the United States, specifically in China 

or India, will seize the opportunity to 

continue supplying these chemicals to 

companies who will use them in articles 

that will then be shipped into the 

United States. This potential practice, 

the commenters continue, could have a 

negative impact on EPA’s ability to 

prevent these chemicals from being 

introduced in the United States without 

its knowledge or oversight. 

Furthermore, commenters argue, 

overseas manufacturers may increase 

export of such articles to the United 

States, either to unload existing stock of 

products no longer acceptable to the 

European Union as of August 15, 2004, 

or to avoid the need for conversion of 

existing production capacity away from 

these substances. That is, by failing to 

adopt a SNUR that captures the subject 

PBDEs when imported as part of 

articles, EPA could inadvertently make 

the United States the market of choice 

for producers of these articles. 

Response. In the proposed SNUR, 

EPA specifically asked for comment on 

whether the subject substances when 

imported as part of articles should be 

included in the SNUR. While the 

Agency acknowledged in the proposal 

that the quantity of imported articles 

containing these PBDEs is unknown, 

there were factors weighing in favor of 

continuing to exempt these articles. 

First, the only known manufacturer or 

importer of those chemical substances 

in the United States had announced its 

intention to discontinue production 

and/or import of the chemical 

substances themselves. Second, there is 

a clear negative commercial and 

regulatory environment associated with 

these chemicals, worldwide. Third, 

there is an expectation that viable 

substitutes will be available. Based on 

these reasons, EPA proposed exempting 

from the reporting requirements of the 

SNUR the subject substances when 

imported as a part of articles. 

In consideration of the public 

comments received, however, EPA has 

re-evaluated this exemption. EPA agrees 

with commenters that if the subject 

substances when imported as a part of 

articles are not subject to the SNUR, 

EPA could miss the opportunity to 

obtain notifications that would provide 

information of potential regulatory and 

assessment value. In particular, the 

Agency recognizes that the low cost and 

effectiveness of the subject PBDEs, 

combined with the negative commercial 

and regulatory environment in certain 

parts of the world, could actually lead 

to continued or increasing use of the 

subject PBDEs in those countries where 

these chemicals are not controlled, and 

subsequent export of articles containing 

those chemicals to the United States. 

However, EPA has decided to 

promulgate the PBDE SNUR as initially 

proposed, with an exemption for 

imported articles that may contain the 

subject PBDEs. EPA may not issue a 

SNUR covering as a significant new use 

import of the subject PBDEs as a part of 

articles for any use if that activity is 

ongoing. EPA received no comments on 

the proposed rule suggesting import of 

the subject PBDEs as a part of articles 

was ongoing. However, comments 

received from the Polyurethane Foam 

Association (PFA) after the close of the 

comment period for the proposed rule 

indicate the potential for presence of the 

subject PBDEs in imported articles. In 

particular, PFA referred to Department 

of Commerce trend data that ‘‘the U.S. 

imports a significant amount of 

products that contain flexible 

polyurethane foam, some of which are 

likely to contain pentaBDE.’’ (see the 

PFA comment in the public docket for 

this rule at EPA–HQ–OPPT–2004–

0085). While the Agency is not obligated 

to respond to a late comment, EPA 

intends to investigate this issue further 

and seeks further information on the 

presence of the subject PBDEs in 

imported articles. Such information can 

be submitted to the docket to this rule. 

C. DecaBDE 

Comment 4—Rulemaking or other 

action is needed on decaBDE. 

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Federal Register / Vol. 71, No. 113 / Tuesday, June 13, 2006 / Rules and Regulations 34019 

Comments dealt with the need for 

regulatory controls on decaBDE and 

concern about Federal inaction on 

decaBDE. 

Response. This SNUR follows up 

Great Lakes Chemical Corporation’s 

voluntary phase out of production of 

pentaBDE and octaBDE, which are 

comprised of the other PBDE congeners 

subject to this rule. DecaBDE remains in 

commerce and it is not subject to this 

rule. However, EPA recognizes that 

there is extensive, ongoing research on 

decaBDE. Under the Agency’s Voluntary 

Children’s Chemical Evaluation 

Program (VCCEP), industry sponsored 

an assessment and data needs analysis 

for decaBDE. Sponsorship includes an 

assessment of the potential hazards, 

exposures, and risks to children and 

prospective parents and a data needs 

analysis to evaluate the need for 

additional toxicity and exposure 

information. Further, EPA is developing 

a proposed SNUR for 16 chemical 

substances/categories, including 

decaBDE, which have been identified by 

the Consumer Product Safety 

Commission (CPSC) and evaluated by 

the National Academy of Sciences as 

candidates for use to meet the 

residential upholstered furniture (RUF) 

flammability standards under 

consideration by the state of California 

and the CPSC. 

Other comments were also submitted 

that related to research or potential 

environmental concerns associated with 

decaBDE. These comments were not 

considered germane to this rulemaking. 

D. Ensuring All Potential Manufacturers 

are Accounted For 

Comment 5—Sources to determine 

potential manufacturers. One 

commenter asked that EPA confirm the 

accuracy of the assumption that Great 

Lakes is the sole domestic manufacturer 

and importer of pentaBDE and octaBDE. 

Response. EPA’s conclusion that 

Great Lakes was the sole domestic 

manufacturer of both these chemical 

substances was based on the best 

available information. In order to 

identify current domestic manufacturers 

and importers of pentaBDE and 

octaBDE, EPA consulted several market 

buyers guides and proprietary reports, 

including Specialty Chemicals (SRI 

International, Specialty Chemicals: 

Flame Retardants, November 2002) and 

the Chemical Economics Handbook (SRI 

International: Bromine, 2003). The 

Agency reviewed each company’s 

online product list (where available) or 

directly contacted the companies to 

determine if they currently sold 

pentaBDE or octaBDE and if so where 

the chemicals were produced. EPA also 

consulted information submitted under 

the Agency’s TSCA section 8(a) 

Inventory Update Rule (IUR), which 

requires manufacturers and importers of 

certain chemical substances included on 

the TSCA Chemical Substances 

Inventory to report current data on the 

production volume, plant site, and sitelimited status of these substances. 

Reporting under the IUR began in 1986 

and takes place at four-year intervals. 

The most recent reporting year ended 

December 31, 2002. EPA reviewed IUR 

submissions for pentaBDE or octaBDE 

that were made up to the date of the 

proposed SNUR in order to help support 

the conclusion that there are no 

manufacturers or importers of the 

chemicals. Finally, the Agency received 

no public comments that suggested 

ongoing import or manufacture of the 

PBDEs subject to this rule. 

E. True Cost of Compliance with this 

Rule 

Comment 6—Taking all costs into 

account. One commenter suggested that 

certain costs were not taken into 

account when estimating the burden to 

industry of complying with the rule, 

including identifying alternatives, 

finding a supplier, developing new 

shipping procedures, and making 

potential equipment changes. 

Response. EPA did not include the 

additional cost items noted by the 

commenter in estimating the burden to 

industry of complying with the rule. 

The economic analysis for a SNUR 

estimates the cost of complying with the 

SNUR only. The SNUR requires that 

those companies intending to 

manufacture or import any of the 

subject chemicals for the specified new 

use submit a SNUN. A SNUR does not 

prevent persons from manufacturing or 

importing a substance, nor stipulate a 

switch to an alternative. 

VII. Economic Considerations 

EPA has evaluated the potential costs 

of establishing a SNUR for the chemical 

substances listed in Unit II.A. These 

potential costs are related to the 

submission of SNUNs and the export 

notification requirements of TSCA 

section 12(b). EPA notes that, with the 

possible exception of export notification 

requirements, the costs of submission of 

SNUNs will not be incurred by any 

company unless that company decides 

to pursue a significant new use as 

defined in this SNUR. The Agency’s 

economic analysis is available in the 

public docket for this rule. 

A. SNUNs 

The Agency has analyzed the 

potential costs of compliance with this 

rule. EPA’s complete economic analysis 

is available in the public docket. The 

Agency has estimated the average cost 

of compliance with the SNUR per 

chemical (e.g., cost of submitting a 

SNUN) to be $6,956 based on 105 

burden hours or a total cost of $13,912 

or 210 hours for both chemicals. These 

estimates do not include the costs of 

testing or submission of other 

information to permit a reasoned 

evaluation of potential risks. 

B. Export Notification 

As noted in Unit II.C. of this final 

rule, persons who 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) (15 U.S.C. 2611(b)). 

These provisions require that, for 

chemicals subject to a proposed or final 

SNUR, a company notify EPA of the first 

shipment to a particular country in a 

calendar year of an affected chemical 

substance. EPA estimated that the onetime cost of preparing and submitting an 

export notification to be $89.29. The 

total costs of export notification will 

vary per chemical, depending on the 

number of required notifications (i.e., 

number of countries to which the 

chemical is exported). 

EPA is unable to estimate the total 

number of TSCA section 12(b) 

notifications that will be received as a 

result of this SNUR, or the total number 

of companies that will file these notices. 

However, EPA expects that the total cost 

of complying with the export 

notification provisions of TSCA section 

12(b) will be limited based on historical 

experience with TSCA section 12(b) 

notifications and the fact that no 

companies have currently been 

identified that currently market any of 

the chemical substances that are the 

subject of this rule commercially. If 

companies were to manufacture for 

export only any of the chemical 

substances covered by this SNUR, such 

companies would incur the minimal 

costs associated with export notification 

despite the fact they would not be 

subject to the SNUR notification 

requirements. See TSCA section 12(a) 

and 40 CFR 721.45(g). EPA is not aware 

of any companies in this situation. 

VIII. 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 final 

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34020 Federal Register / Vol. 71, No. 113 / Tuesday, June 13, 2006 / Rules and Regulations 

SNUR is are not a ‘‘significant 

regulatory action’’ subject to review by 

OMB, because it does not meet the 

criteria in section 3(f) of the Executive 

Order. 

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 between 30 and 170 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, 

DC 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 

will 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 were 

engaged in such activity as of January 1, 

2005. Since a SNUR only requires that 

any person who intends to engage in a 

significant new use must first notify 

EPA by submitting a SNUN, no 

economic impact will even occur until 

someone decides to engage in those 

activities. Although some small entities 

may decide to conduct such activities in 

the future, EPA cannot presently 

determine how many, if any, there may 

be. However, EPA’s experience to date 

is that, in response to the promulgation 

of over 1,000 SNURs, the Agency 

receives on average only about 10 

notices per year. Of those SNUNs 

submitted, none appear to be from small 

entities in response to any SNUR. In 

addition, the estimated reporting cost 

for submission of a SNUN (see Unit X. 

of the proposed rule), are minimal 

regardless of the size of the firm. 

Therefore, EPA believes that the 

potential economic impact of complying 

with this SNUR are not expected to be 

significant or adversely impact a 

substantial number of small entities. In 

a SNUR that published on June 2, 1997 

(62 FR 29684) (FRL–5597–1), the 

Agency presented its general 

determination that proposed and final 

SNURs are not expected to have a 

significant economic impact on a 

substantial number of small entities, 

which was provided to the Chief 

Counsel for Advocacy of the Small 

Business Administration. 

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 reasons to 

believe that any State, local, or Tribal 

government will be impacted by this 

rulemaking. As such, EPA has 

determined that this regulatory action 

does not impose any enforceable duty, 

contain any unfunded mandate, or 

otherwise have any affect on small 

governments subject to the requirements 

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

Unfunded Mandates Reform Act of 1995 

(UMRA) (Public Law 104–4). 

E. Executive Order 13132: Federalism 

This action will 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 rule does not have Tribal 

implications because it is not expected 

to have substantial direct effects on 

Indian Tribes. This rule does not 

significantly or uniquely affect the 

communities of Indian Tribal 

governments, nor does it involve or 

impose any requirements that affect 

Indian Tribes. Accordingly, the 

requirements of Executive Order 13175, 

entitled Consultation and Coordination 

with Indian Tribal Governments (65 FR 

67249, November 6, 2000), do not apply 

to this rule. 

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. 

Although the chemicals that are 

addressed in this SNUR might present 

such risks to children, SNURs are 

administrative actions that require 

chemical manufacturers to submit a 

SNUN to EPA before a chemical may be 

made available for sale. Therefore, this 

action does not in and of itself affect 

children’s health. 

H. Executive Order 13211: Actions that 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, entitled Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use (66 FR 28355, May 

22, 2001), because this action is not 

expected to affect energy supply, 

distribution, or use. 

I. National Technology Transfer 

Advancement Act 

In addition, since this action does not 

involve any technical standards, section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

(NTTAA), Public Law 104–113, section 

12(d) (15 U.S.C. 272 note), does not 

apply to this action. 

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 

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Federal Register / Vol. 71, No. 113 / Tuesday, June 13, 2006 / Rules and Regulations 34021 

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). 

K. Executive Order 12988: Civil Justice 

Reform 

In issuing this rule, EPA has taken the 

necessary steps to eliminate drafting 

errors and ambiguity, minimize 

potential litigation, and provide a clear 

legal standard for affected conduct, as 

required by section 3 of Executive Order 

12988, entitled Civil Justice Reform (61 

FR 4729, February 7, 1996). 

IX. Congressional Review Act 

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 the Comptroller General of 

the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. This rule is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

List of Subjects in 40 CFR Part 721 

Environmental protection, Chemicals, 

Hazardous substances, Reporting and 

recordkeeping requirements. 

Dated: June 5, 2006. 

Charles M. Auer, 

Director, Office of Pollution Prevention and 

Toxics. 

■ Therefore, 40 CFR part 721 is 

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, and 

2625(c). 

■ 2. By adding new § 721.10000 to 

subpart E to read as follows: 

§ 721.10000 Certain polybrominated 

diphenylethers. 

(a) Chemical substances and 

significant new uses subject to reporting. 

(1) The chemical substances identified 

as tetrabromodiphenyl ether (CAS No. 

40088–47–9; Benzene, 1,1′-oxybis-, 

tetrabromo deriv.), pentabromodiphenyl 

ether (CAS No. 32534–81–9; Benzene, 

1,1′-oxybis-, pentabromo deriv.), 

hexabromodiphenyl ether (CAS No. 

36483–60–0; Benzene, 1,1′-oxybis-, 

hexabromo deriv.), heptabromodiphenyl 

ether (CAS No. 68928–80–3; Benzene, 

1,1′-oxybis-, heptabromo deriv.), 

octabromodiphenyl ether (CAS No. 

32536–52–0; Benzene, 1,1′-oxybis-, 

octabromo deriv.), and 

nonabromodiphenyl ether (CAS No. 

63936–56–1; Benzene, 

pentabromo(tetrabromophenoxy)-), or 

any combination of these substances 

resulting from a chemical reaction are 

subject to reporting under this section 

for the significant new uses described in 

paragraph (a)(2) of this section. 

(2) The significant new use is 

manufacture or import for any use on or 

after January 1, 2005. 

(b) Specific requirements. The 

provisions of subpart A of this part 

apply to this section except as modified 

by this paragraph. 

(1) Persons who must report. Section 

721.5 applies to this section except for 

§ 721.5(a)(2). A person who intends to 

manufacture or import for commercial 

purposes a substance identified in 

paragraph (a)(1) of this section and 

intends to distribute the substance in 

commerce must submit a significant 

new use notice. 

(2) [Reserved] 

[FR Doc. E6–9207 Filed 6–12–06; 8:45 am] 

BILLING CODE 6560–50–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 060216044–6044–01; I.D 

060806A] 

Fisheries of the Economic Exclusive 

Zone Off Alaska; Shallow-Water 

Species Fishery by Vessels Using 

Trawl Gear in the Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for species that comprise the 

shallow-water species fishery by vessels 

using trawl gear in the Gulf of Alaska 

(GOA). This action is necessary to 

prevent exceeding the second seasonal 

apportionment of the 2006 Pacific 

halibut bycatch allowance specified for 

the shallow-water species fishery in the 

GOA. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), June 10, 2006, through 

1200 hrs, A.l.t., July 1, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Hogan, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the MagnusonStevens 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 second seasonal apportionment 

of the 2006 Pacific halibut bycatch 

allowance specified for the shallowwater species fishery in the GOA is 100 

metric tons as established by the 2006 

and 2007 harvest specifications for 

groundfish of the GOA (71 FR 10870, 

March 3, 2006), for the period 1200 hrs, 

A.l.t., April 1, 2006, through 1200 hrs, 

A.l.t., July 1, 2006. 

In accordance with § 679.21(d)(7)(i), 

the Administrator, Alaska Region, 

NMFS, has determined that the second 

seasonal apportionment of the 2006 

Pacific halibut bycatch allowance 

specified for the trawl shallow-water 

species fishery in the GOA has been 

reached. Consequently, NMFS is 

prohibiting directed fishing for the 

shallow-water species fishery by vessels 

using trawl gear in the GOA. 

The species and species groups that 

comprise the shallow-water species 

fishery are pollock, Pacific cod, shallowwater flatfish, flathead sole, Atka 

mackerel, skates and ‘‘other species.’’

After the effective date of this closure 

the maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

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 closure of the shallow-water 

species fishery by vessels using trawl 

gear in the GOA. NMFS was unable to 

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