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Fedetal Register/.Vol. 72, No. 61 /Fridiy, March 30, 2007/Rttlbs anid Regulatisn&

Indian tribes, on the relationship

between the Federal Government and,

Indian tribes, or on the distribution of

power and responsibilities between the

Federal Government and Indian tribes,

as specified by Executive Order 13175

(65 FR 67249, November 9, 2000).

Executive Order 13132: Federalism

This action also does not have

Federalism implications because it does

not have substantial direct effects on the

states, on the relationship between the

national government and the states, or

on the distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999). This action merely

approves a state rule implementing a

federal standard, and does not alter the

relationship or the distribution of power

and responsibilities established in the

Clean Air Act.

Executive Order 13045: Protection of

Children From Environmental Health

and Safety Risks

This rule also is not subject to

Executive Order 13045 "Protection of

Children from Environmental Health

Risks and Safety Risks" (62 FR 19885,

April 23, 1997), because it is not

economically significant.

National Technology Transfer

Advancement Act

In reviewing SIP submissions, EPA's

role is to approve state choices,

provided thaf they meet the criteria of

the Clean Air Act. In this context, in the

absence of a prior existing requirement

for the state to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP submission

that otherwise satisfies the provigions of

the Clean Air Act. Thus, the

requirements of section 12(d) of the

National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply.

Paperwork Reduction Act

This rule does not impose an

information collection burden under the

provisions of the Paperwork Reduction

Act of 1995 (44 U.S.C. 3501 et seq.).

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 to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

defined by 5 U.S.C. 804(2).

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

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by May 29, 2007.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See Section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Intergovernmental

relations, Incorporation by reference,

Nitrogen dioxide, Ozone, Reporting and

recordkeeping requirements, Volatile

organic compounds.

Dated: March 6, 2007.

Mary A. Gade,

Regional Administrator, Region 5.

m For the reasons stated in the preamble,

part 52, chapter I, of title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52--[AMENDED]

a 1. The authority citation for part 52

continues to read as follows:

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

Subpart KK-Ohio

* 2. Section 52.1870'is amended by

adding paragraph (c)(135) to read as

follows:

§52.1870 Identification of plan.

(c) * * *

(135) On May 9, 2006, the Ohio

Environmental Protection Agency

submitted several volatile organic

compound rules for approval into the

Ohio State Implementation Plan.

(i) Incorporation by reference.

(A) Ohio Administrative Code

Chapter 3745-21-01 Definitions:

Paragraphs (D)Ind (Z), adopted 1/31/

2006, effective 2/10/2006.. •

.(B) Ohio Administrative Code Chapter

3745-21-04 Attainunent dates and

compliance time schedules: Paragraph

(C)(16)(c), adopted 1/31/2006, effective

2/10/2006.

(C) Ohio Administrative Code Chapter

3745-21-09 Control of emissions of

volatile organic compounds from

stationary sources and

perchloroethylene from dry cleaning

facilities: Paragraphs

(O)(2)(e),(O)(6)(b),(T)(4),(Y), (HH), (RR),

and (VV), adopted 3/2/2006, effective 3/

12/2006.

(D) Ohio Administrative Code Chapter

3745-21-17: Portable Fuel Containers,

ado pted 1/31/2006, effective 2/10/2006.

(E) Ohio Administrative Code Chapter

3745-21-18: Commercial Motor-Vehicle

and Mobile Equipment Refinishing

Operations, adopted 1/31/2006,

effective 2/10/2006.

[FR Doc. E7-5800 Filed 3-29-07; 8:45 am]

BILUNG CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-R09-OAR-2005-AZ-0009; FRL-8284-

2]

Approval and Promulgation of

Implementation Plans; Arizona; Motor

Vehicle Inspection and Maintenance

Programs

AGENCY: Environmental Protection

Agency (EPP4.

ACTION: Final rule.

SUMMARY: EPA is approving two

revisions to the Arizona State

Implementation Plan submitted by the

Arizona Department of Environmental

Quality. These revisions consist of:

changes to Arizona's Basic and

Enhanced Vehicle Emissions Inspection

Programs to exempt collectible vehicles

in the Phoenix metropolitan area, and

collectible vehicles and motorcycles in

the Tucson metropolitan area, from

emissions testing requirements; an

updated performance standard

evaluation for the vehicle emissions

inspection program in the Phoenix area;

and new contingency measures. EPA is

approving these two state

implementation plan revisions -because

they meet all applicable requirements of

the Clean Air Act and EPA's regulations

and because the exemptions will not

interfere with attainment or

maintenance of the national ambient air

quality standards in the two affected

areas. EPA is finalizing this action

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under the Clean Air Actobligation to

take action on State submittals of

revisions to state implementation plans.

The intended-effect is to exempt these

vehicle categories from the emissions

testing requirements of the State's

vehicle emissions inspection Orograms

as approved for the Phoenix and Tucson

areas but also to provide a mechanism

to reinstate the requirements in the

event of a violation of the carbon

monoxide national ambient air quality

standard in the Phoenix or Tucson area.

DATES: Effective Date: This rule is

effective on April 30, 2007.

ADDRESSES: Copies of the documents

relevant to this action are available for

public inspection during normal

business hours at EPA Region 9's Air

Planning Office (AIR-2), 75 Hawthorne

Street, San Francisco, CA, 94105-3901.

Due to increased security, we suggest

that you call at least 24 hours prior to

visiting the Regional Office so that we

can make arrangements to have

someone meet you.

Electronic Availability.

This document and our proposed rule

which was published in the Federal

Register on December 28, 2006 are also

available as electronic files on EPA's

Region 9 webpage at http://

www.epa.gov/regionO9/air/actions/

az.html.

FOR FURTHER INFORMATION CONTACT:

Wienke Tax, Office of Air Planning, U.S.

Environmental Protection Agency,

Region 9, (520) 622-1622, e-mail:

tax.wienke@epa.gov, or refer to http://

www.epa.gov/regionO9/airlactions/

az.html.

SUPPLEMENTARY INFORMATION:

Throughout this document, the terms

"we", "us", and "our" refer to EPA.

Table of Contents

I. Background

1I. Response to Comments

III. EPA's Final Action

IV. Statutory and Executive Order Reviews

I. Background

On December 28, 2006 (71 FR 78115),

we proposed to approve, under the

Clean Air Act (CAA or "Act"), two

revisions submitted by the Arizona

Department of Environmental Quality

(ADEQ) of the Arizona State

Implementation Plan (SIP). Both SIP

revisions relate to Arizona's Basic and -

Enhanced Vehicle Emissions

Inspection/Maintenance (VEI) Programs

implemented in the Tucson and

Phoenix areas, respectively.

ADEQ submitted the first VEI SIP

revision on December 23, 2005 ("VEI

SIP Revision"). The VEI SIP Revision

submittal includes the SIP revision

itself, divided into a non-regulatory

portion, "Final Arizona State

Implementation Plan Revision, Basic

and Enhanced Vehicle Emissions

Inspection/Maintenance Programs"

(December 2005), and a regulatory

portion, House Bill (HB) 2357, as well

as supporting materials related to legal

authority, adoption, public process and

technical analysis.

HB 2357 amends Arizona Revised

Statutes (ARS) Section 49-542 by

exempting vehicles that are at least 15

years old or are of a unique and rare

design and that carry collectible vehicle

insurance that restricts th'mileage and/

or use of the vehicle ("collectible

vehicles") from emission testing in both

Area A (i.e., the Phoenix area) and Area

B (i.e., the Tucson area). In addition, HB

2357 exempts motorcycles in the

Tucson area from emissions testing.

Specifically, the amendments to ARS

49-542 are found in paragraphs or

subparagraphs (J)(2)(k), (J)(2)(1), (Y), and

(Z) of that section of code. The changes "

to ARS Section 49-542 are selfimplementing, which means that they

become effective upon EPA approval ai

a revision to the Arizona SIP.

Among the technical materials

included in the VEI SIP Revision

submittal package is a report 1 prepared

by ADEQ that evaluates the impacts of

exempting three vehicle categories

(vehicles 25 model years old and older,

motorcycles, and collectible vehicles)

from the emissions testing requirements

on ambient air quality and on the ability

of Areas A and B (i.e., Phoenix and

Tucson, respectively) to maintain or

attain the national ambient air quality

standards (NAAQS). The report

concluded that the testing and repair of

these vehicle categories as a whole does

provide a significant air quality benefit.

The analysis, however, also identified a

subset of vehicle categories (collectible

vehicles in Phoenix and Tucson plus

motorcycles in Tucson) for which the

emissions testing requirement does not

provide a significant air quality benefit

and for which exemption would not

interfere with continued maintenance of

the CO NAAQS or progress towards the

8-hour ozone NAAQS. HB 2357 was a

Legislative response to the findings in

this report.

In consultation with EPA concerning

the VEI SIP Revision, ADEQ prepared

an updated performance standard

evaluation for the VEI program in the

Phoenix area to reflect the new

l"Report on Potential Exemptions from Vehicle

Emissions Testing for Motorcycles, Collectible

Vehicles, and Vehicles 25 Model Years Old and

Older" (December 2004).

exemption for collectible vehicles, and

developed new contingency measures

that are intended to provide for

reinstatement of emissions testing for

the newly exempt vehicle categories in

the event that a violation of the carbonmonoxide NAAQS were to be recorded

in the Phoenix or Tucson area. On

October 3, 2006, ADEQ adopted and

submitted the updated performance

standard evaluation and new

contingency measures in a second SIP

revision, entitled, "Supplement to Final

Arizona State Implemeptation Plan

Revision, Basic and Enhanced Vehicle

Emissions Inspection/Maintenance ,

*Programs, December 2005" (September

2006) ("VEI SIP Supplement"). As part

of the submittal of-the VEI SIP

Supplement, ADEQ documented the

public participation process that was

conducted by ADEQ prior to adoption

and submittal to EPA.

Our December 28, 2006 proposed rule

provides our evaluation of these two SIP

submittals and our rationale for

concluding that the submittals meet all

relevant CAA requirements including

SIP revision procedural requirements,

vehicle inspection and maintenance

program requirements, requirements

under CAA section 110(1) related to

non-interference with attainment and

maintenance of the NAAQS, and

contingency provision requirements

under CAA section 175A(d). Please see

our December 28, 2006 proposed rule

for more information concerning the SIP

revision submittals, our evaluation of

them, and our rationale for proposing

approval.

11. Response to Comments

Our December 28, 2006 proposed rule

provided a 30-day public comment

period. We received comments from 40

commenters on our proposed rule

during the public comment period. Most

were supportive of our proposed action.

We are responding to the five

commenters who disagreed with our

action.

Comment. One commenter agrees

with the proposal but states that

vehicles 25 years old or older should

also be exempt. " Response. Arizona House Bill (HB)

2501, as amended by HB 2294, required

ADEQ to evaluate whether vehicles 25

years old and older in combination with

collectible vehicles or motorcycles

could be exempt from emissions testing,

The report concluded that the testing

and repair of these vehicle categories as

a whole does provide sigificant air

quality benefit. The analysis, however,

also identified a subset of vehicle

categories (collectible vehicles in

Phoenix and Tucson and motorcycles in

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Federal'Register/Vol. 72, No. 61/Friday, March 30, 2007/Rules and Regulations

Tucson) for which the emissions testing

requirement does not provide a

significant air quality benefit and for

which exemption would not interfere

with continued maintenance of the CO

NAAQS or progress towards the 8-hour

ozone NAAQS. HB 2357 (i.e., the

regulatory portion of the VEI SIP

Revision) was a Legislative response to

the findings in this report.

Comment. One commenter suggests

various changes to the new statutory

exemption for collectible vehicles that

would make the exemption less

restrictive and thereby allow a greater

number of collectors to fall within. the

exemption.

Response. In reviewing SIP

submissions, EPA's role is to approve

state choices, provided that they meet

minimum criteria set by the Clean Air

Act or any applicable EPA regulations.

Any changes to Arizona law expanding

the exemption for collectible vehicles

would need first to be introduced as a

new bill in the Arizona Legislature. If

passed and approved by the Governor,

such a statutory change would then

need to be submitted by ADEQ to EPA

for approval with documentation

showing continued compliance with all

relevant CAA and EPA requirements

including a demonstration of noninterference with the ambient air quality

standards under section 110(1) of the

CAA.

Comment. One commenter states that

motorcycles should not be exempt from

the vehicle emissions inspection

program in Tucson, unless EPA has

solid evidence that very few, if any,

motorcycles pose a pollution problem,

or that the Tucson inspection program

passes essentially all motorcycles, so

providing little environmental benefit.

Response. ADEQ's statistics about the

VEI program indicate that between 2003

*and 2006, from 91.3 to 94.9 percent of

motorcycles in the Tucson area passed

the vehicle emissions test on their

initial pass on an annual basis :These

statistics provide further support for our

conclusion that exemption of

motorcycles from emissions testing

requirements of the VEI program would

not interfere with attainment or

maintenance of the NAAQS in the

Tucson area.

Comment. The fourth commenter

states that heopposes this type of

"reverse regulation" (removing of

grandfathering) of old, collectible cars.

He states that making people retrofit

emissions equipment on older vehicles

is infeasible, costly, and that owners are

unlikely to comply.

Response. This commenter appears to

have misunderstood EPA's action. We

are approving an exemption to

Arizona's vehicle inspection program

for owners of collectible vehicles which

meet certain requirements, including

collectible insurance which limits the

use or annual mileage of the collectible

vehicle. We are not requiring existing

older vehicles to be retrofit with

emissions control technology.

Comment. The fifth commenter states

that the law establishing the new

exemption for collectible vehicles is

poorly crafted in that the requirements

of the law, as written by the Arizona

legislature, are both vague and do not

have sufficient enforcement methods to

insure that the net result falls within the

assumptions tkat were made by the

ADEQ to validate this exemption.

Specifically, the commenter questions

the estimate of the number of collectible

vehicles used by ADEQ in estimating

the emissions impact of the exemption

and also questions the methods that will

be relied upon to limit the exemption

only to qualifying vehicles.

Furthermore, the commenter requests

additional requirements in the law to

limit the possible abuse of the

exemption.

Response. As noted above, EPA's role

in reviewing SIP submissions is to

approve state choices, provided that

they meet minimum criteria of the Clean

Air Act and EPA's regulations. EPA is

not responsible for drafting changes to

state laws. Nonetheless, this comment

raises questions about the validity of the

assumptions underlying the emissions

impact analysis and the enforcement

methods that will be relied upon to

limit the exemptions to qualifying

vehicles.

ADEQ estimates that collectible

vehicles represent 0.4% to 0.5% of the

total tested fleet of vehicles in the

Tucson and Phoenix areas, respectively.

ADEQ developed these estimates on the

basis of a survey conducted by ADEQ in

coordination with car clubs in Arizona

and information received from two of

the four major insurance companies

specializing in selling collectible car

insurance in Arizona, taking into

account the number of such vehicles

that are already exempt (i.e., pre-1967

model year vehicles) from emission

testing requirements. See appendix 2b

("Technical Support Document,

Evaluating Emissions Impacts of

Exempting Collectible Vehicles from

Vehicle Emissions Inspections") of

Appendix B ("Report on Potential

Exemptions from Vehicle Emissions

Testing for Motorcycles, Collectible

Vehicles and Vehicles 25 Model Years

Old and Older") of the VEI SIP revision.

We believe that ADEQ's methods

provide a reasonable basis for estimating

the number of vehicles that would be

newly exempt as "collectible vehicles"

under HB 2357 and the corresponding

emissions impact from exemption of

those vehicles from VEI emissions

testing requirements.

We also continue to believe that the

compliance enforcement methods,

including the collectible vehicle

insurance and registration procedures,

that will be relied upon to limit the

exemption to qualifying vehicles are

reasonably calculated to do so. See

pages 4-5 and appendix C ("Collectible

Vehicle Insurance and Registration

Procedures") of the VEI SIP Revision

and our discussion of the compliance

enforcement issue in our proposed rule

at 71 FR at 78118.

M. EPA's Final Action

No comments were submitted that

change our assessment of the VEI SIP

revisions as set forth in our proposed

rule. Therefore, pursuant to section

110(k)(3) of the CAA and for the reasons

set forth in the proposed rule, EPA is

approving the revisions to the Arizona

SIP submitted by the Statq, of Arizona on

December 23, 2005 and October 3, 2006

concerning the Arizona VEI programs

implemented in the Phoenix and

Tucson areas because we find that the

revisions are consistent with the

requirements of the CAA and EPA's

regulations.

Specifically, we are approving

exemptions from emissions testing

requirements for collectible vehicles in

the Phoenix area and collectible

vehicles and motorcycles in the Tucson

area as set forth in the "Arizona State

Implementation Plan Revision, Basic

and Enhanced Vehicle Emissions

Inspection/Maintenance Programs"

(December 2005) and ARS Section 49-

542 as amended in section 1 of Arizona

House Bill 2357,-47th Legislature, 1st

Regular Session (2005) and approved by

the Governor on April 13, 2005; and the

updated performance standard

evaluation for the Phoenix area and new

contingency measures as set forth in the

"Supplement to Final Arizona State

Implementation Plan Revision, Basic

and Enhanced Vehicle Emissions

Inspection/Maintenance Programs,

December 2005" (September 2006).

IV. Statutory and Executive Order

Reviews

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a "significant regulatory action" and

therefore is not subject to review by the

Office of Management and Budget. For

this reason, this action is also not

subject to Executive Order 13211,

"Actions Concerning Regulations That

Significantly Affect Energy Supply,

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Federal Register / Vol. 72; No. 61 / Friday, March 30, 2007 / Rules and Regulations

Distribution, or Use" (66 FR 28355 (May

22, 2001)). This action merely approves

changes to state law as meeting Federal

requirements and imposes no additional

requirements beyond those imposed by

state law. Accordingly, the

Administrator certifies that this rule

will not have a significant economic

impact on a substantial number of small

entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.). Because this

rule approves changes to state law and

does not impose any additional

enforceable duty beyond that required

by state law, it does not contain any

unfunded mandate or significantly or

uniquely affect small governments, as

described in the Unfunded.Mandates

Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have a

substantial direct effect on one or more

Indian tribes, on the relationship

between the Federal Government and

Indian tribes, or on the distribution of

power and responsibilities between the

Federal Government and Indian tribes,

as specified by Executive Order 13175

(59 FR 22951, November 9, 2000), nor

will it have substantial direct effects on

the States, on the relationship between

the national government and the States,

or on the distribution of power and

'responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999), because it merely

approves changes to state law

implementing a Federal requirement,

and does not alter the relationship or

the distribution of power and

responsibilities established in the Clean

Air Act. This rule also is not subject to

Executive Order 13045 "Protection of

Children from Environmental Health

and Safety Risks" (62 FR 19885, April

23, 1997), because it finalizes approval

of a state rule implementing a Federal

Standard.

In reviewing SIP submissions, EPA's

role is to approve state choices,

provided that they meet the criteria of

the Clean Air Act. In this context, in the

absence of a prior existing requirement

for the State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP submission

that otherwise satisfies the provisions of

the Clean Air Act. Thus, the

requirements of section 12(d) of the

National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply. This rule does

not impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.). " The Congressional Review Act, 5

U.S.C. section 801 et seq., as added by

the Small Business Regulatory

Enforcement Fairness Act of 1996,

generally provides that before a rule

may take effect, the agency

promulgating the rule must submit a

rule report, which includes a copy of

the rule, to each House of the Congress

and to the Comptroller General of the

United States. EPA will submit a report

containing this rule and other required

information to the U.S. Senate, the U.S.

House of Representatives, and the

Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a (major rule( as

defined by 5 U.S.C. section 804(2).

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

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by May 29, 2007.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Carbon monoxide,

Incorporation by reference,

Intergovernmental relations, Nitrogen

oxides, Ozone, Reporting and

recordkeeping requirements, Volatile

organic compounds.

Dated: March 20, 2007.

Wayne Nastri,

Regional Administrator, Region 9.

m Part 52, chapter I, title 40 of the Code

of Federal Regulations are amended as

follows:

PART 52-[AMENDED]

m1. The authority citation for part 52

continues to read as follows:

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

Subpart D-Arizona

m 2. Section 52.120 is amended by

adding paragraphs (c)(133) and (c)(134)

to read as follows:

§ 52.120 Identification of plan.

C) * * *

(133) The following statute and plan

were submitted on December 23, 2005

by the Governor's designee.

(i) Incorporation by reference.

(A) Arizona Revised Statutes.

(1) Section 49-542 as amended in

section 1 of the Arizona House Bill

2357, 47th Legislature, 1st Regular

Session (2005) and approved by the

Governor on April 13, 2005.

(ii) Additional material.

(A) Arizona Department of'

Environmental Quality.

(1) Final Arizona State

Implementation Plan Revision, Basic

and Enhanced Vehicle Emissions

Inspection/Maintenance Programs

(December 2005), adopted by the

Arizona Department of Environmental

Quality on December 23, 2005,

excluding appendices.

(134) The following plan was

submitted on October 3, 2006 by the

Governor's designee.

(i) Incorporation by reference.

(A) Arizona Department of

Environmental Quality. . (1) September 2006 Supplement to

Final Arizona State Implementation

Plan Revision, Basic and Enhanced

Vehicle Emissions Inspection/

Maintenance Programs, December 2005,

adopted by the Arizona Department of

Environmental Quality on October 3,

2006, excluding appendices.

[FR Doc. E7-5558 Filed 3-29-07; 8:45 am]

BILLING CODE 6560-50-P

DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 624

[Docket No. FTA-2006-24708]

RIN 2132-AA91

Clean Fuels Grant Program

AGENCY: Federal Transit Administration

(FTA), DOT.

AClON: Final rule.

SUMMARY: On June 9, 1998, the

Transportation Equity Act for the 21st

Century (TEA-21) was enacted

requiring the Federal Transit

Administration (FTA) to establish the

Clean Fuels Formula Grant Program (the

program). The program was developed

to assist non-attainment and

maintenance areas in achieving or

maintaining the National Ambient Air

Quality Standards for ozone and carbon

monoxide (CO). Additionally, the

program supports emerging clean fuel

and advanced propulsion technologies

15049

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i rfl~n Fedr1alR Reinster/Vol. 72. No. 61/Friday. March 30, 2007/Rules and.Regulations

Fadeal 0---erV-l-72 No - 1FiaMrh3,20/ue neuain

for transit buses and markets for those

technologies. Although the program was

authorized as a formula grant program

from its inception, Congress did not

fund the program. The Safe,

Accountable, Flexible, Efficient

Transportation Equity Act: A Legacy for

Users (SAFETEA-LU) changed the grant

program from a formula-based to a

discretionary grant program. The

program, however, retains its initial

purpose. FTA is publishing this final

rule to revise the existing regulations to

reflect the amendments made by

SAFETEA-LU.

DATES: This rule is effective April 30,

2007.

FOR FURTHER INFORMATION CONTACT: For

program issues, Kimberly Sledge, Office

of Program Management, (202) 366-

2053 (telephone); (202) 366-7951 (fax);

or Kimberly.Sledge@dot.gov (e-mail).

For legal issues, Scheryl Portee, Office

of the Chief Counsel, (202) 366-4011

(telephone); (202) 366-3809 (fax); or

Scheryl.Portee@dot.gov (e-mail).

SUPPLEMENTARY INFORMATION:

Availability of the Final Rule

You may download this rule from the

Department's Docket Management

System (https://dms.dot.gov) by entering

docket number 24708 in the search field

or from the Government Printing

Office's Federal Register Main Page at

http://www.gpoaccess.gov/frl

index.htm. Users may also download

an electronic copy of this document

using a modem and suitable

communications software from the GPO

Electronic Bulletin Board Service at

(202) 512-1661.

I. Background

The Clean Fuels Formula Grant

Program is a transit grant program

established pursuant to Section 3008 of

the Transportation Equity Act for the

21st Century (TEA-21) as amended,

Public Law 105-178, and codified at 49

U.S.C. 5308. This legislation established

the basic parameters of the program.

Section 3010 of SAFTEA-LU, Public

Law 109-59, (2005) changed the grant

program from a formula-based to a

discretionary grant program.

In SAFETEA-LU, Congress earmarked

approximately $18 million in FY 2006

graduating to approximately $22 million

in FY 2009 for specific projects.

However, during the FY 2006 and FY

2007 appropriations process, Congress

transferred the remaining clean fuels

program funds not earmarked pursuant

to SAFETEA-LU to the Bus and Bus

Facilities Program. Thus, there are no

discretionary funds available for the

Clean Fuels Program to date. The focus

of this rulemaking is to revise 49 CFR

Part 624 to reflect the amendments

made by SAFETEA-LU establishing a

discretionary program and ensuring

procedures are in place when funding is

provided for the program. This final rule

also addresses criteria for the allocation

of discretionary program fumds, issues

raised in the NPRM and the comments

made in response to the NPRM.

II. Discussion of Comments

FTA received a total of two comments

to this rulemaking. We discuss the .

comments received and explain any

changes made to the regulations in the

following paragraphs. FTA considered

all comments filed. Each commenter

expressed support for the rulemaking

while offering recommendations to

improve this statutory program. A

written copy of each comment is

available at the DOT Docket Manager's

Web site: http://www.dms.dot.gov.

1. American Public Transportation

Association (APTA) indicates that it

agrees with FTA's approach to flexible

eligibility and selection criteria for

implementation of the regulation. APTA

suggested that FTA publish proposed

annual criteria in conjunction with the

annual "apportionment and allowances

notice," which includes FTA

programmatic changes. APTA believed

that such a procedure would allow

public comment on the criteria prior to

the Federal Register Notice of Funding

Availability, thus permitting the latter

announcement to be limited to

solicitation of grant applications based

on already publicly vetted criteria..

2. Metro Regional Transit Authority of

Akron, Ohio (Metro) expresses support

for the majority of the proposed changes

to the Clean Fuels Grant Program as an

improvement to the overall initiative.

Metro recommends that the total project

cost should be an eligible federal

expense for those projects that have an

evaluation and dissemination

component, in order to encourage

additional research and development of

alternative fuels. Metro recommends

that FTA only fund truly alternative

energy sources such as hydrogen fuel

cells stating that other projects will

continue dependence on fossil fuel and

foreign oil.

Metro believes that "clean diesel

buses" are not an appropriate

expenditure for this program and that

these buses should be purchased with

Congestion Mitigation Air Quality or

section 5307 funds. The Clean Fuels

program should focus its limited

resources on. projects that can be

replicated or advance the technology for

buses. Another recommendation by

Metro is that FTA consider the reporting

evaluation proposal as part of the grant

process, including a pure science

component for each funded project.

II. Section by Section Analysis

In this section, FTA provides a

section by section analysis and

comments in response where

applicable.

A. Eligible Recipients

-As noted in the NPRM, SAFETEA-LU

amended the term "recipient" to now

include smaller urbanized areas with

populations of less than 200,000.

Accordingly, we are amending section

624.1 to define eligible applicants as (1)

designated recipients, as defined in 49

U.S.C. 5307(a)(2); and (2) recipients in

urbanized areas with populations of less

than 200,000.

A "designated recipient" is-an entity

designated to receive Federal urbanized

formula funds under 49 U.S.C. 5307, in

accordance with the applicable

metropolitan and statewide

transportation planning processes, by

the chief executive officer of a State,

responsible local officials, and publicly

owned operators of public

transportation. For an urbanized area

with a population of less than 200,000,

however, SAFETEA-LU requires the

smaller urbanized area's respective State

to act as the recipient.

Further, all recipients must meet one

of the following criteria: (1) Be

designated as an ozone or carbon

monoxide (CO) nonattainment area as

established by section 107(d) of the

Clean Air Act (42 U.S.C. 7407(d)); or (2)

be designated as a maintenance area for

ozone or CO. A maintenance area is a

previously designated nonattainment

area that has been redesignated to

attainment status by the U.S.

Environmental Protection Agency

(EPA).

B. Eligible Activity

A commenter indicated that

additional criteria not found in the

statute should also be considered. FTA

is not permitted to expand the selection

criteria beyond that found in the statute.

For similar reasons, FTA may not

restrict vehicles that use clean diesel as

an eligible activity as recommended by

the commenter. Further, a commenter

suggested that an experimental project

should receive Federal funds at the

100% level. FTA has no statutory

authority to support 100% funding of

total project costs of eligible activities.

The final rule contains the funding

share for eligible projects-that complies

with the requirements of 49 U.S.C. 5308

and the Clean Air Act.

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FTA is amending section 624.3 in ., :

paragraph (a) and removeiparagraphs

(c)(4) and (c)(5) to exclude repowering

and retrofitting of pre-1993 buses. Both

activities were specifically authorized as

eligible projects under TEA-21;

however, SAFETEA-LU repealed those

provisions. Accordingly, we have

determined that such activities cannot

be authorized under this program. In

addition, we amend paragraph (c) by

renumbering the current paragraph

(c)(6) as a new (c)(3), and adding new

paragraphs (c)(4), (5), and (6) to reflect

SAFETEA-LU amendments applicable

to eligible projects.

a. We are amending paragraph (a) to

reflect the provisions in 49 U.S.C.

5323(i), which SAFETEA-LU amended

to include facilities as well as vehicles.

Accordingly, the Federal share for

eligible projects cannot exceed 90

percent of the net cost to comply with

or maintain compliance with the Clean

Air Act. Further, the Administrator is

authorized to administratively

determine the net cost of such

equipment or facilities attributable t

compliance with the Clean Air Act. FTA

has administratively determined that

the composite Federal share for vehicles

and vehicle related equipment shall be

83 percent. For facilities, however, the

90 percent share would apply to the

actual incremental costs of

improvements for compliance with the

Clean Air Act and recipients would be

requested to provide supporting

documentation.

We noted in the NPRM that the -

President's Budget for Fiscal Year 2007

proposed that FTA grants awarded

during Fiscal Years 2007 and 2008

should reflect 100 percent of the net

capital costs of factory-installed or

retrofitted hybrid-electric propulsion

systems and any equipment related to

such systems. This budget proposal

provided for administrative discretion

to determine costs attributable to such

systems and related-equipment. This

provision was not included in the FY

2007 appropriations legislation, and

therefore not authorized.

Paragraph (c)(5) of section 624.3 is

amended to reflect the statutory

mandate under section 5308(c) that not

more than 25 percent of the funds

available to carry out the clean fuels

program each fiscal year may be made

available to fund clean diesel buses. On

January 18, 2001, EPA published a final

rule establishing a comprehensive

national control program to regulate

heavy-duty vehicles and its fuel as a

single system. As part of this program,

new emission standards will- start to

take effect in model year 2007, and will

apply to heavy-duty highway engines.

and vehicles. These standards ae based

on the use of high-efficiency catalytic

exhaust emission control devices or

comparably effective advanced

technologies. The EPA standards are

codified at 40 CFR Parts 69, 80, and 86.

(See 66 FR 5001 (January 18, 2001).).

Accordingly, FTA interprets "clean

diesel" to mean diesel engines certified

to meet EPA's heavy-duty engine

emissions standards for model-years

2007 and later.

The final rule amends paragraph

(c)(6) of section 624.3 to reflect that

funds designated for eligible projects

will remain available for obligation for

three fiscal years, which includes the

year of appropriation plus two

additional fiscal years.

C. Application Process

Since the program is now a

discretionary grant program, the preapplication included in Appendix A no

longer applies. Accordingly, we ares

removing Appendix A from Part 624

and revising sebtion 624.5 to reflect that

applications will be requested in a G"-

Federal Register notice each fiscal yorn'

that discretionary funds are provided by

Congress for the program. FTA

considered a comment to change the

procedures but determined that since

technological innovations continue to

evolve, we believe the criteria for

selecting eligible projects should be

flexible. Accordingly, we are revising

section 624.5 to reflect general criteria

for selection of eligible profects. More

specific selection criteria may be

published in the Federal Register with

a Notice of Funding Availability each

fiscal year that discretionary funding is

provided by Congress for the program.

D. Certifications

We retain the current certification

process in section 624.7. Each vehicle

purchased with a grant under this

program will be operated by the grantee

using only clean fuels. The certification

will be included with the Federal

Register notice announcing our annual

certifications and assurances. This is

consistent with our policy of one-stop

filing for all required certifications and

assurances. Transit operators planning

to apply for the Clean Fuels Grant

Program would indicate compliance

with this ceitification when .submitting

the annual certifications and assurances.

Additionally, grantees purchasing or

leasing "clean diesel" buses must certify

that the buses would be operated using

only ultra-low-sulfur diesel fuel.

E. Statutory Cross-Cutting Requirements

Since the program is now a

discretionary grant program, we are

amending section 624.9 by removing the.

grant formula because it no longer

applies. Section 5308, as amended by

SAFETEA-LU, requires that a grant

under this program be subject to the

applicable requirements of 49 U.S.C.

•5307. Accordingly, we are amending

section 624.9 by inserting the applicable

statutory requirements from 49 U.S.C.

5307. Many of these requirements are

also contained in FTA Circular 9030.1C,

which is available on the FTA website

at (htip://www.fta.dot.gov).

Further, all FTA grants provided

under chapter 53 of title 49 of the

United States Code are subject to

applicable requirements of the FTA

Master Agreement (MA), which is

incorporated by reference in the grant

agreement. Additional projeCt

management guidelines and

requirements may also be found in FTA

Circular 5010.1C. This Circular and the

MA:*die also available on the FTA Web

site dt,(http://www.fta.dot.gov).

F. Reporting

With respect to the comment on

reporting as part of the grant process,

FTA is interested in program level

evaluation. We will use these reporting

components to analyze national

programmatic effects. However, we

encourage local areas to use criteria that

best suits their local needs.

As FTA supports the development

and deployment of clean fuel and

advanced propulsion technologies for

transit buses, we remain interested in

collecting relevant information on the

operations and performance of these

clean fuel technology buses to help

assess the reliability, benefits, and costs

of certain technologies compared to

conventional vehicle technologies.

Accordingly, FTA retains the reporting

requirements in section 624.11, which

require grantees receiving program

funds for hybrid electric, battery

electric, and fuel cell vehicles to

provide information to us on the

operations, performance, and

maintenance of those vehicles

purchased or leased with program

funds.

We have determined, however, that

semiannual instead of quarterly

reporting for the first three years of the

useful life of the vehicle is sufficient for

this objective; thus, we are providing

administrative relief by extending the

reporting requirements in section 624.11

from quarterly to semiannually.

Submission of data on the operation of

the vehicle beyond the three-year period

would continue to be voluntary.

Likewise, we encourage transit

agencies acquiring other types of

alternative fuel buses (e.g., compressed

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natural gas (CNG), liquefied natural gas

(LNG), liquefied petroleum gas (LPG),

etc.) to voluntarily report similar

information. However, recipients

acquiring clean diesel vehicles are not

required to report the data requested

under section 624.11 because we believe

that sufficient information about this

technology has been compiled.

FTA will be requesting from the

Office of Management and Budget

(OMB) under the Paperwork Reduction

Act approval to collect information from

recipients receiving Federal financial

assistance under the Clean Fuels

program. We intend to collect

information such as vehicle miles

traveled, fuel costs, vehicle fuel/energy

consumption and oil consumption, road

calls or breakdowns resulting from clean

fuel and advanced propulsion

technology systems, and maintenance

costs associated with these systems.

Data collected will be used to provide

more accurate information to transit

agencies for future clean fuel and

advanced propulsion vehicle

acquisitions.

IV. Regulatory Analyses and Notices

Executive Order 12866

Under Executive Order 12866, the

Department of Transportation (DOT)

must examine whether this rule is a "significant regulatory action." A

significant regulatory action is subject to

OMB review and the requirements of

the Executive Order (E.O.). E.O. 12866

defines "significant regulatory action"

as one that is likely to result in a rule

that may: (1) Have an annual effect on

the economy of $120 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities; (2) create a serious

inconsistency or otherwise interfere

with an action taken or planned by

another agency; (3) materially alter the

budgetary impact of entitlements,

grants, user fees, or loan programs or the

rights and obligations of recipients

thereof; or (4) raise novel legal or policy

issues arising out of legal mandates, the

President's priorities, or the principles

set forth in the E.O. . This rule amends an existing grant

program and is not expected to impose

any new compliance costs. Specifically,

we are amending the existing program

from a formula program to a

discretionary grant program in

accordance with section 3010 of

SAFETEA-LU. We believe that the

industry costs and benefits of the Clean

Fuels Grant Program do not warrant

designating this as a significant rule

under E.O. 12866 because it involves

grant application procedures and will

not cost more than $120 million

annually. Additionally, we provide

administrative relief in the reporting

criteria by decreasing the reporting

period from quarterly to semiannually.

For these reasons, we have determined

that this rule is a no significant

regulatory action under section 3(f) of

E.O. 12866. Accordingly, it has not been

reviewed by OMB.

Executive Order 13132

This rule has been analyzed in

accordance with the principles and

criteria contained in E.O. 13132

(Federalism). This rule does not include

any provisions that have substantial

direct effect on the States, the

relationship between the national

government and the States, or the

-distribution of power and

responsibilities among the various

levels of government. Therefore, the

consultation and funding requirements

of E.O. 13132 do not apply because this

rule only sets forth application

procedures for an -existing formula grant

program that has been statutorily

amended to a discretionary grant

program.

Executive Order 13175

This rule has been analyzed in

accordance with the principles and

criteria of E.O. 13175 (Consultation and

Coordination with Indian Tribal

Governments). Because the proposal

does not have tribal implications and

does not impose direct compliance

costs, the funding and consultation

requirements of E.O. 13175 do not

apply.

Executive Order 13272 and the

Regulatory Flexibility Act

The Regulatory Flexibility Act (5

U.S.C. 601-612), requires each agency to

analyze regulations and proposals to

assess their impact on small businesses

and other small entities to determine

whether the rule or proposal will have

a significant economic impact on a

substantial number of small entities.

We evaluated the effects of this rule

on small ejitities and determined that it

will not have a significant effect on a

substantial number of small entities.

'This rule imposes no new costs because

it merely modifies the application

procedures for an existing grant

program.

Paperwork Reduction Act

This rule includes information

collection requirements subject to the

Paperwork Reduction Act. OMB

previously approved our information

collection'request under the Clean Fuels

Formula Grant Program, 2132-0560.

However, that approval expired on

August 31, 2003, because funding was

not allocated for tlhe program.

Since Congress may provide funding

in future fiscal years, we will submit a

new information collection request to

OMB. The affected public under this

rulemaking remains public

transportation providers who apply for

Federal funds under this program. Our

new information collection request will

not include any new reporting

requirements. In fact, the rule decreases

reporting because we modify the

reporting period from quarterly to

semiannually.

Unfunded Mandates Reform Act of 1,995

This rule does not propose unfunded

mandates under the Unfunded

MandatesReform Act of 1995. The rule

will not result in costs of $100 million

or more (adjusted for inflation), in the

aggregate, to any of the following: State,

local, or Native American tribal

governments, or the private sector.

National Environmental Policy Act

. The National Environmental Policy

Act of 1969, (42 U.S.C. 4321-4347),

requires Federal agencies to consider

the consequences of major federal

actions and prepare a detailed statement

on actions significantly affecting the

quality of the human environment.

Since this rule promotes the use of clean

fuels in vehicles used for public

transportation, it potentially may have a

positive impact on the environment.

Alternatively, there are no significant

environmental impacts associated with

this proposed rule.

List of Subjects in 49 CFR Part 624

Grant Programs-Transportation,

Public transportation, Reporting and

record keeping requirements.

m For the reasons set forth in the

preamble, FTA amends 49 CFR part 624

as follows:.

PART 624-CLEAN FUELS GRANT

PROGRAM

n 1. The authority citation for part 624

is revised to read as follows:

Authority: 49 U.S.C. 5308; 49 U.S.C.

5334(a); 49 CFR 1.51.

m 2. The heading to part 624 is revised

to read as set forth above.

a 3. Revise § 624.1 to read as follows:

§ 624.1 Eligible applicant.

(a) An eligible applicant is:

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(1) A designated recipient (designated

recipient has the same meaning as in 49

U.S.C. 5307(a)(2)); or (2) A recipient for an urbanized area

with a population of less than 200,000

(smaller urbanized area). The State in

which the smaller urbanized area is

located shall act as the recipient. -

(b) An eligible applicant, as defined in

paragraph (a) of this section, shall

operate in an area that is either:

(1) An ozone or carbon monoxide

nonattainment area as specified under

section 107(d) of the Clean Air Act (42

U.S.C. 7407(d)); or (2) A maintenance area for ozone or

carbon monoxide.

E 4. Amend § 624.3 by revising

paragraph (a) and (c) (3) through (6) to

read as follows:

§624.3 Eligible activities.

(a) Eligible activities include

purchasing or leasing clean fuel buses

and constructing new or improving

existing public transportation facilities

to accommodate clean fuel buses. "- t * * * * *TT

(c) * * *

(3) At the discretion of the

Administrator, projects relating to clean

fuel, biodiesel, hybrid electric, or zero

emissions technology buses that exhibit

equivalent or superior emissions

reductions to existing clean fuel or

hybrid" electric technologies.

(4) The Federal share for eligible

activities undertaken for the purpose of

complying with or maintaining

compliance with the Clean Air Act

under this program shall be limited to

90 percent of the net (incremental) cost

of the activity.

(i) The Administrator may exercise

discretion and determine the percentage

of the Federal share for eligible

activities to be less than 90 percent.

(ii) An administrative determination

per this subsection will be published in

accordance with § 624.5(a).

(5) Funding for clean diesel buses

shall be limited to not more than 25

percent of the amount made available

each fiscal year to carry out the

program.

(6) Any amount made available for

this section shall remain available to an

eligible activity for two years after the

fiscal year for which the amount is

provided. Any amount that remains

unobligated at the end of the three-yearperiod shall be added to the amount

made available to carry out the program

in the following fiscal year.

0 5. Revise § 624.5 to read as follows:

§ 624.5 Application process.

(a) FTA shall publish a Notice of

Funding Availability in the Federal

Register each fiscal year that funding is

made available for the Clean Fuels

program. The notice shall provide the

criteria by which the eligible projects

will be evaluated for selection and the

Administrator's determination of the net

Federal share for projects funded under

this Part.

(b) The Administrator shall determine

the criteria for selecting proposed

projects for funding, which may

include, but are not limited to the

following factors:

(1) Whether the proposed project is a

transportation control measure in an

approved State Implementation Plan;

(2) The benefits of the proposed

project in reducing transportationrelated pollutants;

(3) Consistency with the recipient's

fleet management plan;

(4) The applicant's ability to

implement the project and facilities to

maintain and fuel the proposed

vehicles;

(5) The applicant's coordination of the

proposed project with other public

transportation entities or other related

projects within the applicant's

Metropolitan Planning Organization or

the geographic region within which the

proposed project will operate.

(6) The proposed project's ability to

support emerging clean fuels

technologies or advanced technologies

for transit buses.

N 6. Revise § 624.9 to read as follows:

§624.9 Grant requirements.

A grant under this section shall be

subject to the following requirements of

49 U.S.C. 5307(d):

(a) General. All recipients shall

maintain and report financial and

operating information on an annual

basis, as prescribed in 49 CFR part 630,

and the most recent National Transit

Database Reporting Manual.

(b) Labor standards. As a condition of

financial assistance under 49 U.S.C.

5308, the interests of employees affected

by thu assistance shall be protected

under arrangements that the Secretary of

Labor concludes are fair and equitable.

(c) Satisfactory continuing control. An

FTA grantee shall:

(1) Maintain control over federally

funded property;

(i) Ensure that it is used in transit

service; and

(ii) Dispose of it in accordance with

Federal requirements.

a (2) Under this paragraph (c), if the

.grantee leases federally funded property

to another party, the lease must provide

the grantee satisfactory continuing

control over the use of that property as

determined in two areas: real property

(land) and facilities; and personal

property (equipment and rolling stock,

both revenue and non-revenue).

(d) Maintenance. The grant applicant

shall certify annually that pursuant to

49 U.S.C. 5307(d)(1)(C), it will maintain

(federally funded) facilities and

equipment. In addition, the grantee

shall keep equipment and facilities

acquired with Federal assistance in

good operating order, which includes

maintenance of rolling stock (revenue

and non-revenue), machinery and

equipment, and facilities.

(e) Rates charged elderly and persons

with disabilities during nonpeak hours.

In accordance with 49 U.S.C.

5307(d)(1)(D), the grant applicant shall

certify that the rates charged the elderly

and persons with disabilities during

nonpeak hours for fixed-route

transportation using facilities and

equipment financed with Federal

assistance from FTA will not exceed

oneThalf of the rates generally applicable

to other persons at peak hours, whether

the operation is by the applicant or by

another entity under lease or otherwise.

(f) Use of competitive procurements.

Pursuant to 49 U.S.C. 5307(d)(1)(E), the

grant applicant shall certify that it will

use competitive procurements and will

not use procurements employing

exclusionary or discriminatory

specifications.

(g) Compliance with Buy America

provisions. The grant applicant shall

certify that in carrying out a

procurement authorized for this

program, the applicant will comply with

applicable Buy America laws.

(h) Certification that local funds are

available for the project. The grant

applicant shall certify that the local

funds are or will be available to carry

out the project.

(i) Compliance with national policy

concerning elderly persons and

individuals with disabilities. The grant

applicant shall certify that it will

comply with the requirements of 49

U.S.C. 5301(d) concerning the rights of

elderly persons and persons with

disabilities.

(j) FTA Master Agreement. The grant

applicant shall comply with applicable

provisions of the FTA Master

Agreement which is incorporated by

reference in the grant agreement.

* 7. Amend § 624.11 by revising

paragraph (a) introductory text and

paragraph (c) to read as -follows:

§624.11 Reporting.

(a) Recipients of financial assistance

under 49 U.S.C. 5308 who purchase or

lease hybrid electric, battery electric and

fuel cell vehicles shall report

semiannually the following information

to the appropriate FTA Regional Office

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for the first three years of the useful life

of the vehicle:

(c) Recipients of financial assistance

under 49 U.S.C. 5308 that purchase or

lease clean diesel vehicles are not

required to report information beyond

FTA grant reporting requirements for

capital projects.

Appendix A to Part 624 [Removed]

m 8. Remove Appendix A to Part 624.

Issued in Washington, DC, this 26th day of

March 2007.

James S. Simpson,

Administrator.

[FR Doc. E7-5879 Filed 3-29-07; 8:45 amn]

BILLING CODE 4910-57-P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[Docket No. 070213032-7032-01; I.D.

032607F]

Fisheries of the Exclusive Economic

Zone Off Alaska; Pollock in Statistical

Area 620 of the Gulf of Alaska

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NQAA),

Commerce.

ACTION: Temporary rule; closure.

SUMMARY: NMFS is prohibiting directed

fishing for pollock in Statistical Area

620 of the Gulf of Alaska (GOA). This

action is necessary to prevent exceeding

the B season allowance of the 2007 fotal

allowable catch (TAC) of pollock for

Statistical Area 620 of the GOA.

DATES: Effective 1200 hrs, Alaska local

time (A.l.t.), March 27, 2007, through

1200 hrs, A.l.t., August 25, 2007.

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 B season allowance of the 2007

TAC of pollock in Statistical Area 620

of the GOA is 8,924 metric tons (mt) as

established by the 2007 and 2008

harvest specifications for groundfish of

the GOA (72 FR 9676, March 5, 2007).

In accordance with § 679.20(a)(5)(iv)(B)

the Administrator, Alaska Region,

NMFS (Regional Administrator), hereby

increases the B season pollock

allowance by 1,785 mt, the remaining

amount of the A season allowance for

pollock in Statistical Area 620.

Therefore, the revised B season

allowance of the pollock TAC in

Statistical Area 620 is therefore 10,709

mt (8,924 mt plus 1,785 mt).

In accordance with § 679.20(d)(1)(i),

the Regional Administrator has

determined that the B season allowance

of the 2007 TAC of pollock in Statistical

Area 620 of the GOA will soon be

reached. Therefore, the Regional

Administrator is establishing a directed

fishing allowance of 10,659 mt, and is

setting aside the remaining 50 mt as

bycatch to support other anticipated

groundfish fisheries. In accordance with

§ 679.20(d)(1)(iii), the Regional

Administrator finds that this directed

fishing allowance has been reached.

Consequently, NMFS is prohibiting

directed fishing for pollock in Statistical

Area 620 of the GOA.

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 pollock in

Statistical Area 620 of the GOA. NMFS

was unable to publish a notice

providing time for public comment

because the most recent, relevant data

only became available as of March 26,

2007.

The AA also finds good cause to

waive the 30 day delay in the effective

date of this action under 5 U.S.C.

553(d)(3). This finding is based upon

the reasons provided above for waiver of

prior notice and opportunity for public

comment.

This action is required by § 679.20

and is exempt from review under

Executive Order 12866.

Authority: 16 U.S.C. 1801 et seq.

Dated: March 26, 2007.

James P. Burgess,

Acting Director, Office of Sustainable

Fisheries, National Marine Fisheries Service.

[FR Doc. 07-1579 Filed 3-27-07; 3:07 pm]

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HeinOnline -- 72 Fed. Reg. 15054 2007