Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59657 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Commandant Instruction M16475.1D, 

which guides the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA)(42 U.S.C. 4321–4370f), and 

have concluded that there are no factors 

in this case that would limit the use of 

a categorical exclusion under section 

2.B.2 of the Instruction. Therefore, this 

rule is categorically excluded, under 

figure 2–1, paragraph (32)(e) of the 

Instruction, from further environmental 

documentation. This rule involves 

modifying or establishing drawbridge 

operation regulations to reflect standard 

practices for drawbridge operating 

schedules during winter months on the 

Great Lakes, and will not have any 

impact on the environment. 

List of Subjects in 33 CFR Part 117 

Bridges. 

Regulations 

■ For the reasons set out in the 

preamble, the Coast Guard amends 33 

CFR part 117 as follows: 

PART 117—DRAWBRIDGE 

OPERATION REGULATIONS 

■ 1. The authority citation for part 117 

continues to read as follows: 

Authority: 33 U.S.C. 499; Department of 

Homeland Security Delegation No. 0170.1; 33 

CFR 1.05–1(g); section 117.255 also issued 

under the authority of Pub. L. 102–587, 106 

Stat. 5039. 

■ 2. Section 117.1087 is amended by 

revising paragraphs (a) and (b) to read 

as follows: 

§ 117.1087 Fox River. 

(a) The draws of the Canadian 

National Bridge, mile 1.03, Main Street 

Bridge, mile 1.58, Walnut Street Bridge, 

mile 1.81, Mason Street (Tilleman 

Memorial) Bridge, mile 2.27, and 

Canadian National Bridge, mile 3.31, all 

at Green Bay, shall open as follows: 

(1) From April 1 through November 

30, the draws shall open on signal for 

recreational vessels; except the draws 

need not open from 7 a.m. to 8 a.m., 12 

noon to 1 p.m., and 4 p.m. to 5 p.m., 

Monday through Saturday except 

Federal holidays. Public vessels, tugs, 

and commercial vessels with a cargo 

capacity of 300 short tons or greater 

shall be passed at all times. 

(2) From December 1 through March 

31, the draws shall open on signal if 

notice is given at least 12 hours in 

advance of a vessels time of intended 

passage. 

(3) The opening signal for the Main 

Street Bridge is two short blasts 

followed by one prolonged blast, for the 

Walnut Street Bridge one prolonged 

blast followed by two short blasts, and 

for the Mason Street Bridge one 

prolonged blast, followed by one short 

blast, followed by one prolonged blast. 

(b) The draw of the George Street 

Bridge, mile 7.27 at DePere, shall open 

on signal from April 1 to November 30; 

except that, from 6 p.m. to 8 a.m., the 

draw shall open on signal if notice is 

given at least 2 hours in advance of a 

vessels time of intended passage. From 

December 1 to March 31, the draw shall 

open on signal if notice is given at least 

12 hours in advance of a vessels time of 

intended passage. 

* * * * * 

Dated: September 30, 2005. 

R.J. Papp, Jr., 

Rear Admiral, U.S. Coast Guard, Commander, 

Ninth Coast Guard District. 

[FR Doc. 05–20468 Filed 10–12–05; 8:45 am] 

BILLING CODE 4910–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[R01–OAR–2005–CT–0003; 

A–1–FRL–7979–8] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Connecticut; Redesignation of City of 

New Haven PM10 Nonattainment Area 

to Attainment and Approval of the 

Limited Maintenance Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: The EPA is approving a State 

Implementation Plan (SIP) revision 

submitted by the State of Connecticut. 

This revision approves the Limited 

Maintenance Plan (LMP) for the New 

Haven PM10 nonattainment area (New 

Haven NAA) in the State of Connecticut 

and grants a request by the State to 

redesignate the New Haven NAA to 

attainment for the National Ambient Air 

Quality Standards (NAAQS) for 

particulate matter with an aerodynamic 

diameter less than or equal to a nominal 

10 micrometers (PM10). EPA is 

approving this redesignation and LMP 

because Connecticut has met the 

applicable requirements of the Clean Air 

Act (CAA). 

DATES: This direct final rule will be 

effective December 12, 2005, unless EPA 

receives adverse comments by 

November 14, 2005. If adverse 

comments are received, EPA will 

publish a timely withdrawal of the 

direct final rule in the Federal Register 

informing the public that the rule will 

not take effect. 

ADDRESSES: Submit your comments, 

identified by Regional Material in 

EDocket (RME) ID Number R01–OAR–

2005–CT–0003 by one of the following 

methods: 

1. Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

2. Agency Web site: http:// 

docket.epa.gov/rmepub/ Regional 

Material in EDocket (RME), EPA’s 

electronic public docket and comment 

system, is EPA’s preferred method for 

receiving comments. Once in the 

system, select ‘‘quick search,’’ then key 

in the appropriate RME Docket 

identification number. Follow the online instructions for submitting 

comments. 

3. E-mail: conroy.dave@epa.gov. 

4. Fax: (617) 918–1661. 

5. Mail: ‘‘RME ID Number R01–OAR–

2005–CT–0003’’, David Conroy, U.S. 

Environmental Protection Agency, EPA 

New England Regional Office, One 

Congress Street, Suite 1100 (mail code 

CAQ), Boston, MA 02114–2023. 

6. Hand Delivery or Courier. Deliver 

your comments to: David Conroy, Air 

Programs Branch Chief, Office of 

Ecosystem Protection, U.S. 

Environmental Protection Agency, EPA 

New England Regional Office, One 

Congress Street, 11th floor, (CAQ), 

Boston, MA 02114–2023. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 to 4:30 excluding Federal 

holidays. 

Instructions: Direct your comments to 

Regional Material in EDocket (RME) ID 

Number R01–OAR–2005–CT–0003. 

EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

docket.epa.gov/rmepub/, including any 

59658 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through Regional 

Material in EDocket (RME), 

regulations.gov, or e-mail, information 

that you consider to be CBI or otherwise 

protected. The EPA RME Web site and 

the federal regulations.gov Web site are 

‘‘anonymous access’’ systems, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through RME or 

regulations.gov, your e-mail address 

will be automatically captured and 

included as part of the comment that is 

placed in the public docket and made 

available on the Internet. If you submit 

an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the 

electronic docket are listed in the 

Regional Material in EDocket (RME) 

index at http://docket.epa.gov/rmepub/. 

Although listed in the index, some 

information is not publicly available, 

i.e., 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 in RME or 

in hard copy at the Office of Ecosystem 

Protection, U.S. Environmental 

Protection Agency, EPA New England 

Regional Office, One Congress Street, 

Suite 1100, Boston, MA. EPA requests 

that if at all possible, you contact the 

contact listed in the FOR FURTHER

INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30 

excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Alison C. Simcox, Air Quality Planning 

Unit, U.S. Environmental Protection 

Agency, EPA New England Regional 

Office, One Congress Street, Suite 1100 

(CAQ), Boston, MA 02114–2023, 

telephone number (617) 918–1684, fax 

number (617) 918–0684, e-mail 

simcox.alison@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. How Can I Get Copies of This 

Document and Other Related 

Information? 

In addition to the publicly available 

docket materials available for inspection 

electronically in Regional Material in 

EDocket, and the hard copy available at 

the Regional Office, which are identified 

in the ADDRESSES section above, copies 

of the State submittal and EPA’s 

technical support document are also 

available for public inspection during 

normal business hours, by appointment 

at the Bureau of Air Management, 

Department of Environmental 

Protection, State Office Building, 79 Elm 

Street, Hartford, CT 06106–1630. 

II. Rulemaking Information 

Organization of this document. The 

following outline is provided to aid in 

locating information in this preamble. 

A. Background and Purpose 

B. Summary of Redesignation Request and 

Maintenance Plan 

C. Review of the Connecticut Submittal 

Addressing the Requirements for 

Redesignation and Limited Maintenance 

Plans 

A. Background and Purpose 

On the date of enactment of the CAA 

Amendments of 1990, PM10 areas 

meeting the qualifications of Section 

107(d)(4)(B) of the CAA were designated 

nonattainment by operation of law. [See 

generally, 42 U.S.C. 7407(d)(4)(B).] 

These areas included all former Group 

I areas and any other areas violating the 

PM10 standards prior to January 1, 

1989. On October 31, 1990 (55 FR 

45799), EPA redefined a Group I area for 

Connecticut as the City of New Haven; 

the remainder of the State was 

designated as Group III (areas with a 

strong likelihood of attaining the PM10

NAAQS). Subsequently, after enactment 

of the CAA on November 15, 1990, New 

Haven was designated moderate 

nonattainment for PM10 in 56 FR 11101 

(March 15, 1991). 

The air quality in attainment or 

unclassifiable areas (Groups II and III) 

are regulated under the prevention of 

significant deterioration (PSD) program, 

under which an area’s air quality is not 

allowed to deteriorate beyond 

prescribed maximum allowable 

increases in pollutant concentrations 

(i.e., increments). On February 27, 2003, 

EPA approved revisions to 

Connecticut’s SIP that implement CAA 

requirements regarding the PSD 

program. See 68 FR 9009. 

The PSD program, however, does not 

apply to nonattainment areas. During 

the period that New Haven has been 

classified as nonattainment for PM10, 

new major sources or major 

modifications proposing to locate in 

New Haven have been required to 

comply with the nonattainment 

provisions of Subsection 22a–174–3(l) 

(Permits Requirements for Nonattainment Areas) of the Regulations of 

Connecticut State Agencies. 

On June 23, 2005, the State of 

Connecticut formally submitted a 

redesignation request entitled 

‘‘Redesignation to Attainment and 

Limited Maintenance Plan for the City 

of New Haven PM10 Nonattainment 

Area’’ as a SIP revision. Upon the 

effective date of today’s action, the PM10

designation status for the City of New 

Haven under 40 CFR part 81 will be 

revised to attainment, and Connecticut’s 

PSD program will become applicable in 

the New Haven maintenance area. 

Sections below describe how 

Connecticut has adequately addressed 

all of the requirements of the CAA for 

redesignation of New Haven to 

attainment, and has qualified for use of 

a LMP for the first 10-year period (2006 

to 2015). 

B. Summary of Redesignation Request 

and Maintenance Plan 

(1) How Can a Nonattainment Area Be 

Redesignated to Attainment? 

Nonattainment areas can be 

redesignated to attainment after the area 

has measured air quality data showing 

it has attained the NAAQS and when 

certain planning requirements are met. 

Section 107(d)(3)(E) of the CAA 

provides the criteria for redesignation. 

These criteria are further clarified in a 

policy and guidance memorandum from 

John Calcagni, Director, Air Quality 

Management Division, EPA Office of Air 

Quality Planning and Standards dated 

September 4, 1992, Procedures for 

Processing Requests to Redesignate 

Areas to Attainment. The criteria for 

redesignation are: 

(a) The Administrator determines that the 

area has attained the applicable NAAQS; 

(b) The Administrator has fully approved 

the applicable SIP for the area under section 

110(k) of the CAA; 

(c) The State containing the area has met 

all requirements applicable to the area under 

Section 110 and part D of the CAA; 

(d) The Administrator determines that the 

improvement in air quality is due to 

permanent and enforceable reductions in 

emissions resulting from implementation of 

the applicable implementation plan, 

applicable Federal air pollution control 

regulations, and other permanent and 

enforceable reductions; and 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59659 

(e) The Administrator has fully approved a 

maintenance plan for the area as meeting the 

requirements of section 175A of the CAA. 

(2) What Is the LMP Option for PM10

Nonattainment Areas Seeking 

Redesignation to Attainment, and How 

Can an Area Qualify for This Option? 

On August 9, 2001, EPA issued 

guidance on streamlined maintenance 

plan provisions for certain moderate 

PM10 nonattainment areas seeking 

redesignation to attainment (Memo from 

Lydia Wegman, Director, Air Quality 

Standards and Strategies Division, 

entitled ‘‘Limited Maintenance Plan 

Option for Moderate PM10

Nonattainment Areas’’, hereafter called 

‘‘the Wegman memo’’). The policy 

described in this guidance includes a 

statistical demonstration that areas 

meeting certain air quality criteria will, 

with a high degree of probability, 

maintain the standard 10 years into the 

future. Thus, EPA has already provided 

the maintenance demonstration for 

areas that meet the air quality criteria 

outlined in the policy. It follows that 

future-year emission inventories for 

these areas and some of the standard 

analyses to determine transportation 

conformity with the SIP are no longer 

necessary. 

To qualify for the LMP option, the 

area should have attained the PM10

NAAQS and the average PM10 design 

values for the area, based upon the most 

recent five years of air quality data at all 

monitors in the area, should be at or 

below the LMP requirement of 98 μg/m3

for the 24-hour PM10 NAAQS and 40 μg/ 

m3 for the annual PM10 NAAQS. If an 

area cannot meet this test, it still 

qualifies for the LMP option if the 

average design values (ADVs) of a site 

are less than their respective sitespecific critical design value (CDV). A 

CDV is the highest possible ADV at 

which there is a less than 10 percent 

risk of future violation of the PM10

NAAQS. At least five years of data from 

a monitoring site are required to 

calculate the site’s CDV. Given 

sufficient site data, a CDV can be found 

by using a mathematical relationship 

between the NAAQS, ADV, standard 

deviation of past design values (a 

measure of their variability over time), 

and a selected risk factor (in this case, 

a 10 percent risk of violation of the PM10

NAAQS). For further details about the 

CDV calculation method, see 

Attachment A of the Wegman memo. 

Section 2.2 of the Connecticut SIP 

submittal shows calculations used to 

derive the CDV for the Stiles Street 

monitoring site in New Haven, which is 

the site currently used to assess whether 

the city is in attainment with the PM10

NAAQS. 

The CDV test was used to determine 

whether the New Haven NAA qualifies 

for the LMP option because the 2003 24- 

hour ADVs for the PM10 Federal 

Equivalent Method (FEM) monitor at the 

Stiles Street site in New Haven 

exceeded 98 μg/m3 for the 24-hour PM10

NAAQS. A CDV of 124 μg/m3 for the 24- 

hour standard was calculated for the 

Stiles Street site using over five years of 

data from the FEM monitor and over 10 

years of data from a Federal Reference 

Method (FRM) monitor. All 24-hour 

ADVs for the Stiles Street site, including 

the ADV for 2003, have remained below 

this CDV, indicating a very low 

probability (less than 1 in 10 chance) of 

exceeding the 24-hour PM10 NAAQS in 

the future. Therefore, this site passes the 

CDV test and qualifies for the LMP 

option. 

In addition to meeting design value 

criteria, an area qualifying for the LMP 

option should expect only limited 

growth in on-road motor vehicle PM10

emissions (including fugitive dust) and 

should pass a motor vehicle regional 

emissions analysis test designed to 

show that expected growth in vehicle 

miles traveled will not cause the area to 

exceed the margin of safety for the 

relevant PM10 standard for a given area 

(in this case, the CDV for the 24-hour 

PM10 NAAQS at the Stiles Street site). 

In addition to meeting these 

requirements, the LMP must include an 

attainment-year emission inventory, 

assurance of continued operation of an 

EPA-approved air quality monitoring 

network, and contingency provisions 

(See pages A–6 and A–7 of the Wegman 

memo). Sections below describe how 

the Connecticut LMP meets each of 

these requirements. 

(3) How Is Conformity Treated Under 

the LMP Option? 

The transportation conformity rule 

(40 CFR parts 51 and 93) and the general 

conformity rule (40 CFR parts 51 and 

93) apply to nonattainment areas and 

maintenance areas covered by an 

approved maintenance plan. Under 

either conformity rule, an acceptable 

method of demonstrating that a federal 

action conforms to the applicable SIP is 

to demonstrate that expected emissions 

from planned actions are consistent 

with the emissions budget for the area. 

While EPA’s LMP policy does not 

exempt an area from the need to affirm 

conformity, it explains that the area may 

demonstrate conformity without 

submitting an emissions budget. 

Emissions budgets in LMP areas are 

treated as essentially not constraining 

for the length of the maintenance period 

because it is unreasonable to expect that 

an area satisfying the LMP criteria will 

experience so much growth during that 

period of time that a violation of the 

PM10 NAAQS would result. 

For transportation conformity 

purposes, EPA concludes that, as long 

as the area qualifies for the LMP option, 

emissions in New Haven need not be 

capped for the maintenance period and, 

therefore, a regional emissions analysis 

is not required. Similarly, Federal 

actions subject to the general conformity 

rule could be considered to satisfy the 

‘‘budget test’’ specified in § 93.158 

(a)(5)(i)(A) of the rule for the same 

reasons that the budgets are essentially 

considered to be unlimited. 

C. Review of the Connecticut Submittal 

Addressing the Requirements for 

Redesignation and Limited Maintenance 

Plans 

(1) Has the State Demonstrated That the 

New Haven NAA Has Attained the 

Applicable NAAQS? 

States must demonstrate that an area 

has attained the PM10 NAAQS through 

analysis of ambient air quality data from 

an ambient air monitoring network 

representing peak PM10 concentrations. 

The data should be stored in the EPA 

Air Quality System (AQS) database. 

The 24-hour PM10 NAAQS is 150 μg/ 

m3. An area has attained the 24-hour 

standard when the average number of 

expected exceedances per year is less 

than or equal to one when averaged over 

a three-year period (40 CFR 50.6). To 

make this determination, three 

consecutive years of complete ambient 

air quality data must be collected in 

accordance with federal requirements 

(40 CFR part 58, including appendices). 

Table 1 in the Connecticut SIP submittal 

lists 24-hour design values for 1999 

through 2003. The 24-hour design value 

is below 150 μg/m3 for each of these 

years at all PM10 monitoring sites in 

Connecticut (range: 31–107 μg/m3). 

There have been no exceedances of the 

24-hour PM10 NAAQS in the New 

Haven NAA during the past five years. 

Thus, currently, the expected number of 

days exceeding the 24-hour standard is 

zero, and the New Haven NAA has 

attained the 24-hour PM10 NAAQS. 

The annual PM10 NAAQS is 50 μg/m3. 

To determine attainment at a monitoring 

site, the standard is compared to the 

expected annual average, which is 

calculated by averaging the arithmetic 

average from the previous three years. 

Table 2 in the Connecticut SIP submittal 

lists annual average design values for 

1999 through 2003. These values are 

below 50 μg/m3 for each of these years 

at all PM10 monitoring sites in 

59660 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

Connecticut (range: 11–37 μg/m3). Thus, 

the three year annual average is below 

50 μg/m3, and the New Haven NAA has 

attained the annual PM10 NAAQS. 

(2) Does the New Haven NAA Have a 

Fully Approved SIP Under Section 

110(k) of the Clean Air Act? 

To qualify for redesignation, the SIP 

for the area must be fully approved 

under section 110(k) of the CAA, and 

must satisfy all requirements that apply 

to the area. EPA approved Connecticut’s 

PM10 Attainment Plan for New Haven 

on September 11, 1995 (60 FR 47076). 

Connecticut’s PM10 attainment plan 

demonstrated that the implementation 

of reasonably available control 

technology and reasonably available 

control measures (RACT/RACM), as 

embodied in seven consent orders, is 

sufficient to attain and maintain the 

PM10 NAAQS. Thus, the area has a fully 

approved nonattainment area SIP under 

section 110(k) of the CAA. 

(3) Has the State Met All Applicable 

Requirements Under Section 110 and 

Part D of the Clean Air Act? 

Section 107(d)(3)(E)(v) of the CAA 

requires that a state containing a 

nonattainment area must meet all 

applicable requirements under section 

110 and Part D of the CAA. EPA 

interprets this to mean the state must 

meet all requirements that applied to 

the area prior to, and at the time of, the 

submission of a complete redesignation 

request. The following is a summary of 

how Connecticut meets these 

requirements. 

(a) Clean Air Act Section 110 

Requirements 

Section 110(a)(2) of the CAA contains 

general requirements for state 

implementation plans. These 

requirements include, but are not 

limited to, submittal of a SIP that has 

been adopted by the state after 

reasonable notice and public hearing; 

provisions for establishment and 

operation of appropriate apparatus, 

methods, systems and procedures 

necessary to monitor ambient air 

quality; implementation of a permit 

program; provisions for Part C—

Prevention of Significant Deterioration 

(PSD) and Part D—New Source Review 

(NSR) permit programs; criteria for 

stationary source emission control 

measures, monitoring and reporting, 

provisions for modeling; and provisions 

for public and local agency 

participation. For purposes of 

redesignation, EPA’s review of the 

Connecticut SIP shows that the State 

has satisfied all requirements under 

section 110(a)(2) of the CAA. 

(b) Part D Requirements 

Part D contains general requirements 

applicable to all areas designated 

nonattainment. The general 

requirements are followed by a series of 

subparts specific to each pollutant. All 

PM10 nonattainment areas must meet 

the general provisions of Subpart 1 and 

the specific PM10 provisions in Subpart 

4, ‘‘Additional Provisions for Particulate 

Matter Nonattainment Areas.’’ The 

following paragraphs discuss these 

requirements as they apply to the New 

Haven area. 

(c) Subpart 1, Section 172(c) 

Subpart 1, section 172(c) contains 

general requirements for nonattainment 

area plans. A thorough discussion of 

these requirements may be found in the 

General Preamble. See 57 FR 13538 

(April 16, 1992). The requirements for 

reasonable further progress and other 

measures needed for attainment were 

satisfied with the approved PM10 

Attainment Plan for New Haven. See 60 

FR 47076 (September 11, 1995). 

(d) Section 172(c)(3)—Emissions 

Inventory 

Section 172(c)(3) of the CAA requires 

a comprehensive, accurate, current 

inventory of actual emissions from all 

sources in the New Haven PM10 NAA. 

The PM10 Attainment Plan for New 

Haven that was approved by EPA in 

1995 (60 FR 47076) included an 

emissions inventory for base year 1990. 

As described in the Attainment Plan, CT 

DEP determined that the PM10

nonattainment problem in New Haven 

was a local problem in the area around 

the Stiles Street and Yankee Gas 

monitoring sites, primarily due to reentrainment of mud and dirt from the 

unpaved areas by local traffic. To 

estimate PM10 emissions from all source 

sectors, CT DEP used the 1999 National 

Emissions Inventory (NEI). This 

inventory represents the level of 

emissions in the New Haven area during 

the five-year time period (1999–2003) 

used to demonstrate that the area 

qualifies for the LMP option. This 

inventory shows that fugitive dust 

sources were the primary contributor to 

PM10 in New Haven County, with lesser 

contributions from on-road, non-road, 

area (other than fugitive dust), and point 

sources. EPA is satisfied that the 

inventory contained in the Attainment 

Plan and in the NEI is sufficiently 

accurate and comprehensive to meet the 

requirement for an emission inventory. 

(e) Section 172(c)(5)—New Source 

Review (NSR) 

The CAA Amendments of 1990 

contained revisions to the new source 

review (NSR) program requirements for 

the construction and operation of new 

and modified major stationary sources 

located in nonattainment areas. The 

CAA requires states to amend their SIPs 

to reflect these revisions, but does not 

require submittal of this element along 

with the other SIP elements. The CAA 

established June 30, 1992 as the 

submittal date for the revised NSR 

programs (Section 189 of the CAA). In 

the New Haven Area, the requirements 

of the Part D NSR program will be 

replaced by the Prevention of 

Significant Deterioration (PSD) program 

and the maintenance area NSR program 

upon the effective date of redesignation. 

Revisions to the Part D NSR rules for 

nonattainment areas and to PSD rules 

for attainment areas in Connecticut were 

approved by EPA on February 27, 2003 

(68 FR 9009) and can be found in 

Subsection 22a–174 of the Regulations 

of Connecticut State Agencies. 

(f) Section 172(c)(7) Compliance With 

CAA Section 110(a)(2): Air Quality 

Monitoring Requirements. 

Once an area is redesignated, the state 

must continue to operate an appropriate 

air monitoring network in accordance 

with 40 CFR part 58 to verify attainment 

status of the area. Connecticut currently 

(as of December 2004) maintains seven 

PM10 monitoring sites. Monitors at these 

sites are operating in accordance with 

40 CFR part 58. The State has 

committed to continue operating a PM10

monitoring network, and has agreed (in 

Hearing Report in Connecticut SIP 

submittal, DEP Response to Comment 3, 

p. 4) to maintain a continuous PM10

FEM or FRM monitor at the Criscuolo 

Park site, which will replace the Stiles 

Street site about October 2005 due to 

highway construction. If Crisuolo Park 

site becomes unsuitable, a monitor will 

be maintained at an alternate site 

agreeable to EPA and CT DEP. This 

monitor must be maintained over the 

maintenance period to verify 

compliance with the PM10 NAAQS in 

the New Haven area. 

To continue to qualify for the LMP 

option, Connecticut must ensure that 

the ADV of the Criscuolo Park PM10

monitor remains below the monitor’s 

CDV. Connecticut has agreed (in 

Hearing Report in Connecticut SIP 

submittal, DEP Response to Comment 4, 

p. 4) to calculate the ADV for this 

monitor on an annual basis and to 

report this value to EPA. When five 

years of data are available, Connecticut 

will calculate the CDV for the 

monitoring site and compare this to the 

five-year ADV; CDV and ADV values 

will be reported to EPA annually over 

the maintenance period. 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59661 

(g) Section 172(c)(9) Contingency 

Measures 

The CAA requires that contingency 

measures take effect if the area fails to 

meet reasonable further progress (RFP) 

requirements or fails to attain the 

NAAQS by the applicable attainment 

date. EPA approved Connecticut’s PM10

Attainment Plan and Contingency 

Measures for New Haven on September 

11, 1995 (60 FR 47076). Contingency 

provisions are also required for 

maintenance plans under Section 

175(a)(d). Connecticut provided 

contingency measures in their LMP. 

These measures are described below. 

(h) Part D Subpart 4 

Part D Subpart 4, Section 189(a), (c) 

and (e) requirements apply to any 

moderate nonattainment area before the 

area can be redesignated to attainment. 

The requirements which were 

applicable prior to the submission of the 

request to redesignate the area must be 

fully approved into the SIP before 

redesignating the area to attainment. 

These requirements include: (i) 

Provisions to assure that RACM was 

implemented by December 10, 1993; (ii) 

Either a demonstration that the plan 

provided for attainment as 

expeditiously as practicable but not 

later than December 31, 1994, or a 

demonstration that attainment by that 

date was impracticable; 

(iii) Quantitative milestones which 

were achieved every 3 years and which 

demonstrate reasonable further progress 

(RFP) toward attainment by December 

31, 1994; and 

(iv) Provisions to assure that the 

control requirements applicable to 

major stationary sources of PM10 also 

apply to major stationary sources of 

PM10 precursors except where the 

Administrator determined that such 

sources do not contribute significantly 

to PM10 levels which exceed the 

NAAQS in the area. These provisions 

were fully approved into the SIP upon 

EPA approval of the PM10 Attainment 

Plan for New Haven on September 11, 

1995 (60 FR 47076). 

(4) Has the State Demonstrated That the 

Air Quality Improvement Is Due to 

Permanent and Enforceable Reductions? 

The state must be able to reasonably 

attribute the improvement in air quality 

to permanent and enforceable emission 

reductions. In making this showing, the 

state must demonstrate that air quality 

improvements are the result of actual 

enforceable emission reductions. This 

showing should consider emission rates, 

production capacities, and other related 

information. The analysis should 

assume that sources are operating at 

permitted levels (or historic peak levels) 

unless evidence is presented that such 

an assumption is unrealistic. EPA 

believes that areas that qualify for the 

LMP will meet the NAAQS even under 

worst case meteorological conditions. 

The maintenance demonstration is 

considered satisfied for New Haven 

because the area meets the air-quality 

criteria in the Wegman memo (pages A–

4 and A–5 of the memo) and, thus, has 

a very low probability (1 in 10) of 

exceeding the NAAQS in the future. 

These criteria are met when ADVs for 

monitoring sites are less than CDVs for 

those sites with little variability in data 

over the years, the area expects only 

limited growth in on-road motor vehicle 

PM10 emissions (including fugitive 

dust), and the area passes a motor 

vehicle regional emissions analysis test. 

A more detailed description of the LMP 

qualifying criteria and how the New 

Haven area meets these criteria is 

provided in Section (6). 

(5) Does the Area Have a Fully 

Approved Maintenance Plan Pursuant 

to Section 175A of the Clean Air Act? 

In this action, EPA is proposing to 

fully approve the maintenance plan as 

allowed by the LMP guidance described 

in Section 6 below. 

(6) Has the State Demonstrated That the 

New Haven NAA Qualifies for the LMP 

Option? 

The Wegman memo explains the 

requirements for an area to qualify for 

the LMP option. First, the area should 

be attaining the NAAQS. Section 2.0 of 

the Connecticut SIP submittal 

summarizes quality-assured ambient 

monitoring data showing that the New 

Haven area met both the 24-hour and 

annual PM10 NAAQS for the period 

1999–2003 and continues to do so. As 

stated above in Section C(1), EPA has 

determined that the New Haven area is 

in attainment with the PM10 NAAQS. 

Second, the design value at each PM10

monitor for the past five years must be 

either (1) at or below the margin of 

safety levels of 98 μg/m3 for the 24-hour 

PM10 NAAQS and 40 μg/m3 for the 

annual PM10 NAAQS, or (2) be less than 

the site-specific CDV, indicating that the 

site has a very low probability (1 in 10) 

of exceeding the NAAQS in the future. 

EPA’s review of AQS data for 1999–

2003 shows that New Haven qualifies 

for the LMP option using the second 

option. The CDV test is appropriate 

because, in 2003, one PM10 monitor (of 

two) at the New Haven Stiles Street site 

had a 24-hour design value above 98 μg/ 

m3 (107 μg/m3). Section B (2) above 

describes how this site passes the CDV 

test and qualifies for the LMP option. 

Third, the area must meet the motor 

vehicle regional emissions analysis test. 

This test determines whether increased 

emissions from on-road mobile sources 

could, in the next 10 years, increase 

concentrations in the area and threaten 

the assumption of maintenance under 

the LMP option. Section 3.0 of the 

Connecticut SIP submittal demonstrates 

that when adjusted for future on-road 

mobile emissions, New Haven passes a 

motor vehicle emissions analysis test 

with a design value of 102 μg/m3, which 

is less than the (Stiles Street) CDV of 

124 μg/m3 for the 24-hour NAAQS. 

Thus Connecticut has shown that New 

Haven qualifies for the LMP option as 

described in the Wegman memo. 

(7) Does the State Have an Approved 

Attainment Plan That Includes an 

Emissions Inventory Which Can Be 

Used To Demonstrate Attainment of the 

NAAQS? 

The PM10 Attainment Plan for New 

Haven that was approved in 1995 (60 FR 

47076) includes an emissions inventory 

which was used to demonstrate 

attainment of the NAAQS. As described 

in the Attainment Plan, CT DEP 

determined that the PM10 nonattainment 

problem in New Haven was a local 

problem in the area around the Stiles 

Street and Yankee Gas monitoring sites, 

primarily due to re-entrainment of mud 

and dirt from the unpaved areas by local 

traffic. These areas have since been 

paved. 

To estimate PM10 emissions from all 

source sectors, CT DEP used the 1999 

National Emissions Inventory (NEI). 

This inventory represents the level of 

emissions in the New Haven area during 

the five-year time period (1999–2003) 

used to demonstrate that the area 

qualifies for the LMP option. This 

inventory shows that fugitive dust 

sources were the primary contributor to 

PM10 in New Haven County, with lesser 

contributions from on-road, non-road, 

area (other than fugitive dust), and point 

sources. EPA is satisfied that the 

inventory contained in the Attainment 

Plan and in the NEI is sufficiently 

accurate and comprehensive to meet the 

requirement for an emission inventory 

that can be used to demonstrate 

attainment of the NAAQS 

(8) Does the LMP Include an Assurance 

of Continued Operation of an 

Appropriate EPA-Approved Air Quality 

Monitoring Network in Accordance 

With 40 CFR Part 58? 

In Section 5.0 of the Connecticut SIP 

submittal, the CT DEP states that it will 

continue to maintain a PM10 network to 

59662 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

verify continued compliance with the 

PM10 NAAQS in the New Haven 

maintenance area. Connecticut has 

specifically committed to maintaining a 

FEM monitor for PM10 at Criscuolo Park 

(Hearing Report in Connecticut SIP 

submittal, DEP Response to Comment 3, 

p. 4). This site will replace the Stiles 

Street site about October 2005 due to 

highway construction. 

(9) Does the Plan Meet the Clean Air Act 

Requirements for Contingency 

Provisions? 

Section 175A of the CAA states that 

a maintenance plan must include 

contingency measures, as necessary, to 

promptly correct any violation of the 

NAAQS which may occur after 

redesignation of the area to attainment. 

As explained in the Wegman memo, 

these contingency measures do not have 

to be fully adopted at the time of 

redesignation. The New Haven PM10

LMP contains a Contingency Plan 

(Section 6.0 of the Connecticut SIP 

submittal). This plan incorporates 

contingency measures in the approved 

Attainment Plan (60 FR 47076) plus 

procedures that CT DEP will follow if a 

measured violation of the PM10 NAAQS 

occurs after redesignation. 

The contingency plan would be 

activated in the event of a potential 

violation of the PM10 NAAQS, which 

under the LMP option is 40 μg/m3 for 

the annual PM10 NAAQS and 98 μg/m3

for the 24-hour PM10 NAAQS. These 

limits will be effective until five years 

of PM10 FEM monitoring data are 

available for the Criscuolo Park site, 

which is scheduled to replace the Stiles 

Street site about October 2005. When 

five years of data are available, CDVs 

can be calculated for the PM10 annual 

and 24-hour NAAQS for Criscuolo Park. 

If ADVs exceed these new CDV, the 

New Haven PM10 maintenance area 

would no longer qualify for the LMP 

option, and a full maintenance would be 

required. 

If a measured violation of the PM10

NAAQS occurs, CT DEP will 

‘‘immediately’’ (defined as within 

several working days in Hearing Report 

in Connecticut SIP submittal, DEP 

Response to Comment 5, p. 5) determine 

the validity of data by verifying all 

monitor operating parameters and 

quality assurance procedures. Once the 

violation is confirmed, the CT DEP will 

examine all activities in the vicinity of 

the site, such as traffic patterns and 

meteorological conditions, and 

determine the likely cause of the 

violation. CT DEP will then consult 

with the appropriate local, regional or 

state agency to design and implement a 

control remedy. 

If the control remedy is ineffectual 

(i.e., another verified exceedance of the 

PM10 NAAQS occurs), CT DEP will 

undertake a full emission inventory of 

the area and do modeling studies to 

identify additional control measures, 

and to estimate future PM10 reductions 

and expected air quality at the violating 

monitor. 

EPA concludes that these measures 

and commitments meet the requirement 

for contingency provisions of CAA 

Section 175A(d). 

(10) Has the State Met Conformity 

Requirements? 

(a) Transportation Conformity 

Under the LMP policy, emissions 

budgets are treated as essentially not 

constraining for the maintenance period 

because it is unreasonable to expect that 

qualifying areas would experience so 

much growth in that period that a 

NAAQS violation would result. While 

areas with maintenance plans approved 

under the LMP option are not subject to 

the budget test, the areas remain subject 

to other transportation conformity 

requirements of 40 CFR part 93, subpart 

A. Thus, the metropolitan planning 

organization (MPO) in the area or the 

state will still need to document and 

ensure that: (a) Transportation plans 

and projects provide for timely 

implementation of SIP transportation 

control measures (TCMs) in accordance 

with 40 CFR 93.113; (b) transportation 

plans and projects comply with the 

fiscal constraint element per 40 CFR 

93.108; (c) the MPO’s interagency 

consultation procedures meet applicable 

requirements of 40 CFR 93.105; (d) 

conformity of transportation plans is 

determined no less frequently than 

every three years, and conformity of 

plan amendments and transportation 

projects is demonstrated in accordance 

with the timing requirements specified 

in 40 CFR 93.104; (e) the latest planning 

assumptions and emissions model are 

used as set forth in 40 CFR 93.110 and 

40 CFR 93.111; (6) projects do not cause 

or contribute to any new localized 

carbon monoxide or particulate matter 

violations, in accordance with 

procedures specified in 40 CFR 93.123; 

and (7) project sponsors and/or 

operators provide written commitments 

as specified in 40 CFR 93.125. 

(b) General Conformity 

As noted above, under the LMP 

policy, emissions budgets are treated as 

essentially not constraining for the 

maintenance period because it is 

unreasonable to expect that qualifying 

areas would experience so much growth 

in that period that a NAAQS violation 

would result. As long as the New Haven 

area qualifies for the LMP option, 

federal actions subject to the general 

conformity rule are considered to satisfy 

the ‘‘budget test’’ specified in 

§ 93.158(a)(5)(i)(A) of the rule. 

III. Final Action 

EPA is approving the LMP for the 

New Haven PM10 nonattainment area 

(New Haven NAA) in the State of 

Connecticut, and is granting a request 

by the State to redesignate the New 

Haven NAA to attainment for the 

NAAQS for particulate matter with an 

aerodynamic diameter less than or equal 

to a nominal 10 micrometers (PM10). 

The EPA is publishing this action 

without prior proposal because the 

Agency views this as a noncontroversial 

amendment and anticipates no adverse 

comments. However, in the proposed 

rules section of this Federal Register 

publication, EPA is publishing a 

separate document that will serve as the 

proposal to approve the SIP revision 

should relevant adverse comments be 

filed. This rule will be effective 

December 12, 2005 without further 

notice unless the Agency receives 

relevant adverse comments by 

November 14, 2005. 

If the EPA receives such comments, 

then EPA will publish a notice 

withdrawing the final rule and 

informing the public that the rule will 

not take effect. All public comments 

received will then be addressed in a 

subsequent final rule based on the 

proposed rule. The EPA will not 

institute a second comment period on 

the proposed rule. Any parties 

interested in commenting on the 

proposed rule should do so at this time. 

If no such comments are received, the 

public is advised that this rule will be 

effective on December 12, 2005 and no 

further action will be taken on the 

proposed rule. Please note that if EPA 

receives adverse comment on an 

amendment, paragraph, or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

EPA may adopt as final those provisions 

of the rule that are not the subject of an 

adverse comment. 

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, 

Distribution, or Use’’ (66 FR 28355, May 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59663 

22, 2001). This action merely approves 

state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

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

rule approves pre-existing requirements 

under state law and does not impose 

any additional enforceable duty beyond 

that required by state law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4). 

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have federalism 

implications because it does not have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999), because it 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. This rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the 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. 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 December 12, 

2005. Interested parties should 

comment in response to the proposed 

rule rather than petition for judicial 

review, unless the objection arises after 

the comment period allowed for in the 

proposal. 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 

40 CFR Part 52 

Environmental protection, Air 

pollution control, PM10, 

Intergovernmental relations, Particulate 

matter, Reporting and recordkeeping 

requirements. 

40 CFR Part 81 

Air pollution control, National parks, 

Wilderness areas. 

Dated: September 26, 2005. 

Robert W. Varney, 

Regional Administrator, EPA New England. 

■ Parts 52 and 81 of chapter I, title 40 

of the Code of Federal Regulations are 

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. 

■ 2. A new § 52.378 is added to subpart 

H to read as follows: 

§ 52.378 Control strategy: PM10

(a) Approval—On June 23, 2005, the 

Connecticut Department of 

Environmental Protection submitted a 

request to redesignate the City of New 

Haven PM10 nonattainment area to 

attainment for PM10. The redesignation 

request and the initial ten-year 

maintenance plan (2006–2015) meet the 

redesignation requirements in sections 

107(d)(3)(E) and 175A of the Act as 

amended in 1990, respectively. 

(b) Approval—On June 23, 2005, the 

Connecticut Department of 

Environmental Protection (CT DEP) 

submitted a request to establish a 

Limited Maintenance Plan (LMP) for the 

City of New Haven PM10 attainment area 

for the area’s initial ten-year 

maintenance plan (2006–2015). The 

State of Connecticut has committed to: 

maintain a PM10 monitoring network in 

the New Haven PM10 maintenance area; 

implement contingency measures in the 

event of an exceedance of the PM10

National Ambient Air Quality Standards 

(NAAQS) in the maintenance area; 

coordinate with EPA in the event the 

PM10 design value in the maintenance 

area exceeds 98 μg/m3 for the 24-hour 

PM10 NAAQS or 40 μg/m3 for the annual 

PM10 NAAQS; and to verify the validity 

of the data and, if warranted based on 

the data review, develop a full 

maintenance plan for the maintenance 

area. The LMP satisfies all applicable 

requirements of section 175A of the 

Clean Air Act. Approval of the LMP is 

conditioned on maintaining levels of 

ambient PM10 below a PM10 design 

value criteria of 98 μg/m3 for the 24- 

hour PM10 NAAQS and 40 μg/m3 for the 

annual PM10 NAAQS. For the Criscuolo 

Park site, Connecticut still qualifies for 

the LMP option if, based on five years 

of site data, the average design values 

(ADVs) of the continuous PM10 monitor 

are less than the site-specific critical 

design value (CDV). If the LMP criteria 

are no longer satisfied, Connecticut 

must develop a full maintenance plan to 

meet Clean Air Act requirements. 

PART 81—[AMENDED] 

■ 1. The authority citation for part 81 

continues to read as follows: 

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

■ 2. In § 81.307, the ‘‘Connecticut–PM–

10’’ table is amended by revising the 

entry for ‘‘New Haven County City of 

New Haven’’ to read as follows: 

§ 81.307 Connecticut. 

* * * * * 

59664 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

CONNECTICUT—PM–10 

Designated area 

Designation Classification 

Date Type Date Type 

New Haven County City of New Haven ......... 12/12/05 Attainment.

* * * * * * * 

* * * * * 

[FR Doc. 05–20418 Filed 10–12–05; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 64 

[ET Docket No. 04–295; RM–10865; FCC 05–

153] 

Communications Assistance for Law 

Enforcement Act and Broadband 

Access and Services 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) adopts a rule establishing 

that providers of facilities-based 

broadband Internet access services and 

providers of interconnected voice over 

Internet Protocol (VoIP) services—

meaning VoIP service that allows a user 

generally to receive calls originating 

from and to terminate calls to the public 

switched telephone network (PSTN)—

must comply with the Communications 

Assistance for Law Enforcement Act 

(CALEA). This new rule will enhance 

public safety and ensure that the 

surveillance needs of law enforcement 

agencies continue to be met as Internetbased communications technologies 

proliferate. 

DATES: Effective Date: This rule is 

effective November 14, 2005. 

Compliance Date: Newly covered 

entities and providers of newly covered 

services must comply with CALEA 

within 18 months of November 14, 

2005. 

ADDRESSES: Federal Communications 

Commission, 445 12th Street, SW., 

Washington, DC 20554. 

FOR FURTHER INFORMATION CONTACT: 

Carol Simpson, Attorney-Advisor, 

Competition Policy Division, Wireline 

Competition Bureau, at (202) 418–2391. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s First 

Report and Order (1st R&O) in ET 

Docket No. 04–295, FCC 05–153, 

adopted August 5, 2005, and released 

September 23, 2005. The complete text 

of this document is available for 

inspection and copying during normal 

business hours in the FCC Reference 

Information Center, Portals II, 445 12th 

Street, SW., Room CY–A257, 

Washington, DC 20554. This document 

may also be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554, telephone (800) 

378–3160 or (202) 863–2893, facsimile 

(202) 863–2898, or via e-mail at http:// 

www.bcpiweb.com. It is also available 

on the Commission’s Web site at http:// 

www.fcc.gov. 

Synopsis of the First Report and Order 

1. Background. In response to 

concerns that emerging technologies 

such as digital and wireless 

communications were making it 

increasingly difficult for law 

enforcement agencies to execute 

authorized surveillance, Congress 

enacted CALEA on October 25, 1994. 

CALEA was intended to preserve the 

ability of law enforcement agencies to 

conduct electronic surveillance by 

requiring that telecommunications 

carriers and manufacturers of 

telecommunications equipment modify 

and design their equipment, facilities, 

and services to ensure that they have the 

necessary surveillance capabilities. The 

Commission began its implementation 

of CALEA with the release of a Notice 

of Proposed Rulemaking in 1997 (62 FR 

63302, November 27, 1997). Since that 

time, the Commission has taken several 

actions and released numerous orders 

implementing CALEA’s requirements. 

2. On March 10, 2004, the Department 

of Justice, the Federal Bureau of 

Investigation, and the Drug Enforcement 

Administration (collectively, DOJ) filed 

a petition asking the Commission to 

declare that broadband Internet access 

services and VoIP services are covered 

by CALEA. The Petition also requested 

that the Commission initiate a 

rulemaking proceeding to resolve, on an 

expedited basis, various outstanding 

issues associated with the 

implementation of CALEA. The 

Commission declined to issue a 

declaratory ruling, finding instead that 

it was necessary to compile a more 

complete record on the factual and legal 

issues surrounding the applicability of 

CALEA to broadband Internet access 

services and VoIP services, and thus 

issued a Notice of Proposed Rulemaking 

(NPRM) (69 FR 56976, September 23, 

2004). 

3. The Commission initiated this 

proceeding both to undertake a 

comprehensive and thorough 

examination of the appropriate legal and 

policy framework of CALEA, and to 

respond to DOJ’s Petition asking the 

Commission to seek comment on the 

various outstanding issues associated 

with the implementation of CALEA, 

including the potential applicability of 

CALEA to broadband Internet access 

services and VoIP services. The NPRM 

indicated that the Commission would 

analyze the applicability of CALEA to 

broadband Internet access services and 

VoIP services under section 

102(8)(B)(ii), a provision of CALEA 

upon which the Commission had never 

before relied. That provision—the 

Substantial Replacement Provision 

(SRP)—requires the Commission to 

deem certain service providers to be 

telecommunications carriers for CALEA 

purposes even when those providers are 

not telecommunications carriers under 

the Communications Act of 1934, as 

amended (Communications Act). The 

NPRM indicated that the Commission 

had never before exercised its section 

102(8)(B)(ii) authority to identify 

additional entities that fall within 

CALEA’s definition of 

‘‘telecommunications carrier,’’ and had 

never before solicited comment on the 

discrete components of that subsection. 

4. The NPRM sought comment, among 

other things, on the Commission’s 

tentative conclusions that: (1) Congress 

intended the scope of CALEA’s 

definition of ‘‘telecommunications 

carrier’’ to be more inclusive than that 

of the Communications Act; (2) 

facilities-based providers of any type of 

broadband Internet access service are 

subject to CALEA; (3) ‘‘managed’’ VoIP 

services are subject to CALEA; and (4) 

the phrase ‘‘a replacement for a 

substantial portion of the local 

telephone exchange service’’ in section