Later in this preamble under the Additional Information section, we discuss how you can comment on this proposal and how we will handle your comments. Included in this discussion is related information about the docket, privacy, and the handling of proprietary or confidential business information. We also discuss how you can get a copy of related rulemaking documents.

The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing regulations and minimum standards for the design and performance of aircraft that the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority. It prescribes new safety standards for the design and operation of transport category airplanes.

Part 25 of Title 14, Code of Federal Regulations (14 CFR) prescribes airworthiness standards for type certification of transport category airplanes for products certified in the United States. The European Aviation Safety Agency (EASA) Certification Specifications for Large Aeroplanes (CS-25) prescribe the corresponding airworthiness standards for products certified in Europe. While part 25 and CS-25 are similar, they differ in several respects. Therefore, the FAA tasked the Aviation Rulemaking Advisory Committee (ARAC) through the Mechanical Systems Harmonization Working Group (MSHWG) to review existing regulations and recommend changes that would eliminate differences between the FAA and EASA airworthiness standards for landing gear retracting mechanisms and the pilot compartment view. This proposed rule is a result of this harmonization effort.

The FAA agrees with the ARAC recommendation to harmonize airworthiness standards for landing gear retracting mechanisms and the pilot compartment view with the corresponding EASA specifications, and we propose to amend part 25 accordingly. The proposals are not expected to be controversial and should reduce certification costs to industry without adversely affecting safety. In developing these proposals, ARAC and the FAA considered the following factors:

a. Underlying safety issues addressed by current standards;

b. Differences between part 25 and CS-25 standards;

c. Differences between part 25 and CS-25 means of compliance;

e. Effect of the proposed standard on current industry practice;

f. Whether FAA advisory material exists and/or needs amendment; and

g. The costs and benefits of each proposal.

1. Amendment 25-108 (67 FR 70811, November 26, 2002) to 14 CFR redefined the reference stall speed, V SR , for transport category airplanes, as the 1-g stall speed, instead of the minimum speed obtained in a stalling maneuver. This provides a higher level of safety in cases where current methods of determining stall speed may result in lower operating speeds. This change was established to provide a consistent, repeatable reference stall speed; ensure consistent and dependable maneuvering margins; to provide for adjusted multiplying factors to maintain the current stalling speeds where they are proven adequate; and to harmonize the applicable regulations with those adopted in EASA CS-25.

Under Amendment 25-108, several sections of part 25 were revised to adopt V SR . However, that change was inadvertently omitted from 14 CFR 25.729(a)(1)(ii). This proposed rule would update § 25.729(a)(1)(ii) with the new reference stall speed, V SR , and harmonize it with the more stringent EASA standard. CS 25.729(a)(1)(ii) refers to wheel rotation at a peripheral speed equal to 1.23 V SR (with the flaps in takeoff position at design takeoff weight), occurring during retraction and extension at any airspeed up to 1.5 V SR1 with the wing-flaps in the approach position at design landing weight. Whereas, § 25.729(a)(1)(ii) currently uses a peripheral speed equal to 1.3 V S during retraction and extension at any airspeed up to 1.6 V S1 , respectively. The difference in these factors (1.23 versus 1.3, and 1.5 versus 1.6) adjusts for the difference between the speeds used (V SR versus V S , and V SR1 versus V S1 ). In some cases, these factors make this proposed rule slightly more conservative than the existing rule.

2. For clarification and harmonization with the EASA terminology used in CS 25.729(a)(1)(iii), this proposed rule would add the word “wing” to “flaps” in § 25.729(a)(1)(iii).

3. For clarification and harmonization with the EASA terminology used in CS 25.729(a)(3), this proposed rule would replace the word “prescribed” with “presented.”

4. Section 25.729(b) does not currently require a positive means to keep the landing gear and doors in the correct retracted position in flight for any condition. The EASA standard requires each retractable landing gear and separately actuated door to have a positive uplock, or be able to extend or open into the air stream at any flight speed without causing a hazard. Compliance would be demonstrated by system description or stress analysis. This proposed rule would add that requirement to § 25.729(b) to harmonize with the more stringent EASA standard.

5. Section 25.729(e) requires a landing gear position indicator for retractable gear and provides design requirements for the indicator and warning system. CS 25.729(e) has additional design requirements that § 25.729(e) does not have. The EASA standard requires that each indicator be easily visible to the pilot or appropriate crewmembers and not be ambiguous regarding landing gear position. The EASA standard also requires the indicator to show the associated landing gear door position. This proposed rule would add these requirements to § 25.729(e) to harmonize with the more stringent EASA standard.

6. Section 25.729(e)(5) currently requires that the aural warning system be designed to “eliminate” false or inappropriate alerts, while CS 25.729(e)(5) requires that they be “minimized.” If taken literally, § 25.729(e)(5) is too stringent. While elimination of nuisance warnings is a worthy goal, it is impossible to eliminate all nuisance warnings. A requirement to “minimize” false or inappropriate alerts is a more subjective but attainable standard, and moreover embraces any improvements in warning system technology. The preamble to the final rule amending § 25.729, states “* * * the regulations on landing gear aural warning are being revised to state the performance objectives without stating how the requirements should be implemented (56 FR 63762, December 5, 1991). This allows the manufacturers to use their ingenuity in designing systems to minimize nuisance warnings.” Therefore, the intent of the requirement has always been to minimize false or inappropriate alerts. Compliance with § 25.729(e)(5) is currently demonstrated by failure mode and effects analysis with an understanding that “eliminate” means “very low probability.” This proposed rule would update § 25.729(e)(5) to reflect our original intent and to harmonize with the less stringent EASA standard.

7. Section 25.729(e) does not currently require an indication whenever the landing gear position does not agree with the selector lever position. However, such an indication is consistent with prudent design of landing gear indication. CS 25.729(e)(7) requires an indicator for this situation. Compliance is demonstrated by the landing gear system description and the failure modes and effects analysis (FMEA). This proposed rule would add a new paragraph (e)(7) containing this requirement, which would harmonize § 25.729(e) with the more stringent EASA standard.

8. Although § 25.729(f) requires protection of equipment in wheel wells from the damaging effects of a bursting tire or loose tire tread, it does not currently require the protection of equipment on the landing gear. Since equipment on the lower part of the landing gear is always near the tire, such equipment should be protected. CS 25.729(f) requires protection of equipment “* * * located on the landing gear and in the wheel wells * * *.” This proposed rule would harmonize § 25.729(f) with the more stringent EASA standard by requiring protection of equipment “* * * located on the landing gear or in the wheel wells * * *.” Note that we have used the word “or” instead of “and” to clarify that the proposed rule would apply to equipment located in either location.

Essential equipment on the landing gear could include any sensors such as “weight on wheels” sensors that, if damaged or destroyed by a tire burst, could have an effect on the safe operation of the airplane. An example is the Global Express Learjet that overran the runway during a rejected takeoff. The tire burst damaged the weight on wheel sensors, so when the pilot rejected the takeoff and retarded the thrust, the thrust reversers remained stowed.

9. Section 25.729(f)(1) contains a condition that excludes consideration of bursting tires if it can be shown that the tires cannot burst from overheat. CS 25.729(f)(1) does not contain this exception, and EASA's interpretative material in Acceptable Means of Compliance (AMC) 25.729 does not allow the use of wheel fuse plugs as a complete safeguard against tire burst damage. Instead, it requires additional means of compliance, such as separation analysis, robust design, or test. This proposed rule would harmonize § 25.729(f)(1) with the more stringent EASA standard.

10. Section 25.729 does not currently require protection of equipment in wheel wells from possible wheel brake temperatures. However, CS 25.729(f)(3) contains this requirement, and the interpretative material in AMC 25.729 suggests that the pilot should be provided an indication of brake temperature. This requirement results in an analysis of equipment that could be exposed to heat from the brake or installation of a brake heat indication system. Additional safety and cost factors to consider are the location of essential equipment away from possible brake heat, and the installation of an additional heat indication system that has its own failure mode and maintenance issues. Compliance is demonstrated by separation analysis, thermal analysis, or, as suggested in AMC 25.729, a brake temperature indication system. This proposed rule would add a new paragraph (f)(3) containing the requirement to protect equipment from the damaging effects of possible wheel brake temperatures, which would harmonize § 25.729(f) with the more stringent EASA standard.

Current FAA advisory material addresses only flight testing for compliance with the existing rule. To address the proposed requirements for § 25.729, the FAA proposes to incorporate the interpretative material found in EASA AMC 25.729 into new advisory circular (AC) 25.729-1A. The draft AC accompanies this proposed rule and is posted on the FAA's draft document Web site at http://www.faa.gov/aircraft/draft_docs/ for public comment.

1. Section 25.773(b) contains requirements for clear pilot view along the flight path during precipitation conditions, but does not address single failures of rain removal systems that can cause the loss of the pilot view through both windshields, which paragraph (b)(1) requires. Currently, compliance with part 25 can be demonstrated with only one wiper switch to control both the left and right wipers, but the EASA standard specifically requires provisions to preclude a single fault from causing the potential failure of both systems. As a result, system design is driven to have separate left and right wiper switches in addition to separate motors. In this case, the more stringent EASA standard provides for increased system reliability and an increased level of safety. This proposed rule would add this requirement to § 25.773(b)(2). This proposed rule would also move the existing requirements of § 25.773(b)(2) and (b)(2)(i) to new § 25.773(b)(3) and (b)(3)(i) through (b)(3)(iii), respectively. These proposed changes would harmonize § 25.773(b)(2) and (b)(3) with the EASA standard.

2. Section 25.773(b)(2)(ii) refers only to severe hail, while the corresponding CS 25.773(b)(4)(ii) refers to severe hail, birds, and insects. This proposed rule would remove § 25.773(b)(2)(ii) and add new § 25.773(b)(4)(ii), which would harmonize it with the EASA standard.

3. Section 25.773(b) does not currently allow for an alternative to the openable side window required by § 25.773(b)(2)(i). (Section 25.773(b)(2)(i) currently corresponds to CS 25.773(b)(3)(i).) However, CS 25.773(b)(4) does allow for an alternative to the openable side window. CS 25.773(b)(4) could be interpreted to be redundant with existing § 25.773(b)(2)(ii), but the EASA standard provides more detail. CS 25.773(b)(4) contains two subparagraphs:

• Paragraph (b)(4)(i) allows relief for the openable side window if it can be demonstrated that sufficient pilot view is still provided in the event of failure—or combination of failures—of the rain removal system, where the failure(s) is not extremely improbable. This provision implies that, for a dual windshield wiper system failure (which is typically not extremely improbable), the openable side window is not required if adequate vision can still be maintained through the windshield or side window.

• Paragraph (b)(4)(ii) also allows relief for the openable side window if it can be demonstrated that sufficient pilot view is still provided in the event of an encounter with severe hail, birds, or insects.

The reference in CS 25.773(b)(4)(ii) to severe hail, birds, and insects has not been specifically demonstrated in any manner differently from that of compliance with § 25.773(b)(2)(ii), which only specifies severe hail. Compliance with § 25.773(b)(2)(ii), and with CS (b)(4)(i) and (ii), has typically been demonstrated by compliance statement, system description, or analysis only. This proposed rule would add new § 25.773(b)(4), (b)(4)(i), and (b)(4)(ii) to harmonize with the EASA standard.

AC 25.773-1, Pilot Compartment View Design Considerations, dated January 8, 1983, provides extensive definition of what constitutes sufficient pilot visibility through the windshield, including suggested means of compliance for windshield wiper speed. The obsolete AMC 25.773(b)(1)(ii) was redundant to AC 25.773-1, and the MSHWG recommended eliminating the AMC. As a result, EASA eliminated this AMC material at Amendment 4 to CS-25. AC 25.773-1 would be retained without change in regard to this proposed rule.

On June 23, 2010, the FAA issued an NPRM, Notice No. 10-10, Airplane and Engine Certification Requirements in Supercooled Large Drop, Mixed Phase, and Ice Crystal Icing Conditions (75 FR 37311, June 29, 2010) (Docket No. FAA-2010-0636). That NPRM proposes that § 25.773 be modified to expand the icing conditions from those specified in § 25.1419 (i.e., appendix C icing conditions) to include certain supercooled large drop conditions defined in a proposed Appendix O. If that NPRM becomes a final rule prior to this proposed rule, we request comment on maintaining those changes when this proposed rule becomes final.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there would be no new requirement for information collection associated with this proposed rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with these proposed regulations.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impact of the proposed rule.

Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it be included in the preamble if a full regulatory evaluation of the costs and benefits is not prepared. Such a determination has been made for this proposed rule.

The reasoning for this determination follows: The proposed rule would amend the airworthiness standards for transport category airplanes for landing gear retracting mechanisms and pilot compartment view to harmonize with existing more stringent European Aviation Safety Agency (EASA) requirements. For landing gear retracting mechanisms, adoption of the EASA requirements would ensure the landing gear is in the appropriate configuration when necessary; that the landing gear and its supporting structure, doors, and mechanisms operate properly; that the flight crew would be aware of the landing gear position status; and that critical equipment would be protected from tire failure or brake temperatures. For the pilot compartment view, reliable and safe operation during precipitation would be ensured by adoption of the EASA design requirements for flight deck rain removal systems. The most significant of the pilot compartment view requirements is that no single failure of the rain removal system could lead to a loss of pilot view through both windshields. The effect of this proposed requirement is that, for newly certificated airplanes, manufacturers must provide a separate, mechanically and electrically independent method for clearing the windshield during precipitation. This method may include separate flight deck control switches for left and right windshield wipers. The FAA has determined that installation of the second wiper switch would require minimal additional costs when the system is initially designed to comply with the EASA requirement.

Currently, U.S. manufacturers of transport category airplanes meet both FAA and EASA requirements. The FAA expects these manufacturers would want to continue selling future transport category airplanes in Europe and thus would meet EASA requirements. Thus, for these manufacturers and for the majority of manufacturers already in compliance with the EASA requirements, there would be no additional costs. However, the proposed rule would provide benefits from reduced joint certification costs—in the requirements for data collection and analysis, paperwork, and time spent applying for and obtaining approval from the regulatory authorities. The FAA therefore has determined that this proposed rule is cost beneficial due to the overall reduction in compliance costs while maintaining the same level of safety. The FAA requests comments regarding this determination.

The FAA has also determined that this proposed rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule would have a significant economic impact on a substantial number of small entities. If the agency determines that it would, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

As noted above, this proposed rule would impose no or little additional costs on part 25 manufacturers. Moreover, all U.S. manufacturers of transport category airplanes exceed the Small Business Administration small-entity criteria of 1,500 employees. Therefore, the FAA certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. The FAA requests comments regarding this determination.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this proposed rule and determined that it would incorporate an international standard as the basis for a U.S. standard. Thus the proposed rule complies with the Trade Agreement Act of 1979 and does not create unnecessary obstacles to international trade.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $141.3 million.

This proposed rule does not contain such a mandate. The requirements of Title II do not apply.

The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action would not have a substantial direct effect 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, and therefore would not have federalism implications.

Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat. 3213) requires the Administrator, when modifying regulations in title 14 of the CFR in a manner affecting intrastate aviation in Alaska, to consider the extent to which Alaska is not served by transportation modes other than aviation, and to establish appropriate regulatory distinctions. Because this proposed rule would apply to the certification of future designs of transport category airplanes and their subsequent operation, it could, if adopted, affect intrastate aviation in Alaska. The FAA therefore specifically requests comments on whether there is justification for applying the proposed rule differently to intrastate operations in Alaska.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this proposed rulemaking action qualifies for the categorical exclusion identified in paragraph 312d and involves no extraordinary circumstances.

The FAA has analyzed this NPRM under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 12866 (58 FR 51735, Oct. 4, 1993) requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make these proposed regulations easier to understand, including answers to questions such as the following:

• Are the requirements in the proposed regulations clearly stated?

• Do the proposed regulations contain unnecessary technical language or jargon that interferes with their clarity?

• Would the regulations be easier to understand if they were divided into more (but shorter) sections?

• Is the description in the preamble helpful in understanding the proposed regulations?

Please send your comments to the address specified in the Addresses section of this preamble.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, please send only one copy of written comments, or if you are filing comments electronically, please submit your comments only one time.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

Do not file in the docket information that you consider to be proprietary or confidential business information. Send or deliver this information directly to the person identified in the FOR FURTHER INFORMATION CONTACT section of this document. You must mark the information that you consider proprietary or confidential. If you send the information on a disk or CD-ROM, mark the outside of the disk or CD-ROM and also identify electronically within the disk or CD-ROM the specific information that is proprietary or confidential.

Under 14 CFR 11.35(b), when we are aware of proprietary information filed with a comment, we do not place it in the docket. We hold it in a separate file to which the public does not have access, and we place a note in the docket that we have received it. If we receive a request to examine or copy this information, we treat it as any other request under the Freedom of Information Act (5 U.S.C. 552). We process such a request under the DOT procedures found in 49 CFR part 7.

You can get an electronic copy of rulemaking documents using the Internet by—

1. Searching the Federal eRulemaking Portal ( http://www.regulations.gov) ;

2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies or

3. Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html .

You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the docket or notice number of this rulemaking.

You may access all documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, from the internet through the Federal eRulemaking Portal referenced in paragraph (1).

In consideration of the foregoing, the Federal Aviation Administration proposes to amend part 25 of Title 14, Code of Federal Regulations, as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2010-1307; Directorate Identifier 2010-NM-049-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

Transport Canada Civil Aviation, which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2009-49R1, dated January 21, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Bombardier has issued the following service information:

• Challenger 601 Time Limits/Maintenance Checks, PSP 601-5, Revision 38, dated June 19, 2009.

• Challenger 601 Time Limits/Maintenance Checks, PSP 601A-5, Revision 34, dated June 19, 2009.

• Challenger 604 Time Limits/Maintenance Checks, CH 604 TLMC, Revision 13, dated August 12, 2009.

• Challenger 605 Time Limits/Maintenance Checks, CH 605 TLMC, Revision 1, dated August 12, 2009.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 103 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $8,755, or $85 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2010-1306; Directorate Identifier 2010-NM-112-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0033, dated March 3, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 21 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,785, or $85 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2010-1304; Directorate Identifier 2010-NM-254-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0156, dated August 3, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).

Among other actions, SFAR 88 requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.

In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.

The Joint Aviation Authorities (JAA) has issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference (ECAC) representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks.

We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

Fokker Services B.V. has issued Fokker Service Bulletin SBF28-57-097, Revision 1, dated June 10, 2010. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 2 products of U.S. registry. We also estimate that it would take about 6 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,020, or $510 per product.

In addition, we estimate that any necessary follow-on actions would take about 21 work-hours and require parts costing $0, for a cost of $1,785 per product. We have no way of determining the number of products that may need these actions.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2010-1305; Directorate Identifier 2010-NM-074-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).

Among other actions, SFAR 88 requires certain type design ( i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.

In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.

We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

On September 11, 2008, we issued AD 2008-20-01, amendment 39-15680 (73 FR 56464, September 29, 2008), for all Model 382, 382B, 382E, 382F, and 382G airplanes. That AD requires revising the maintenance program by incorporating new airworthiness limitations for fuel tank systems to satisfy Special Federal Aviation Regulation No. 88 requirements. That AD also requires the accomplishment of certain fuel system modifications, the initial inspections of certain repetitive fuel system limitations to phase in those inspections, and repair if necessary. That AD resulted from a design review of the fuel tank systems. We issued that AD to prevent the potential for ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.

Since we issued AD 2008-20-01, we received information from the manufacturer that Lockheed Service Bulletin 382-28-21, Revision 2, dated November 20, 2006 (referenced in AD 2008-20-01 as a source of additional guidance), contained an error in referencing certain part numbers for tube, fuel tank, and bulkhead joint jumpers. The part numbers as referenced in Revision 2 of that service bulletin do not exist. The manufacturer has published Lockheed Service Bulletin 382-28-21, Revision 4, dated January 6, 2010, to provide the correct part number references. We have revised Table 1 of this AD accordingly.

We have also received information from the manufacturer that the last two bulleted steps of paragraphs 2.C.(2)(b) 5 and 2.C.(2)(c) 3 of Lockheed Service Bulletin 382-28-22, Revision 3, dated March 28, 2008, contain an error. Those steps specify that the GFI FAILURE and GROUND FAULT DETECTED lights illuminate for 2 seconds. An alternate means of compliance (AMOC) for AD 2008-20-01 was issued to disregard those steps. The manufacturer has advised that it is planning to publish a revision to Lockheed Service Bulletin 382-28-22, Revision 3, dated March 28, 2008. However, we have determined that delaying this action until after the release of this planned revision is not warranted, since sufficient notice of the error in Lockheed Service Bulletin 382-28-22, Revision 3, dated March 28, 2008, exists.

We have also reviewed Lockheed Service Bulletin 382-28-19, Revision 4, dated September 18, 2008. That service bulletin describes procedures that are similar to those in Lockheed Service Bulletin 382-28-19, Revision 3, dated November 30, 2006 (which was referenced in AD 2008-20-01 as a source of additional guidance). However, Revision 4 of Lockheed Service Bulletin 382-28-19 specifies an additional inspection area (fuel probes) for the dry bay and other areas and revises actions. Revision 4 of that service bulletin also specifies that for airplanes on which the actions described in Revision 3 of Lockheed Service Bulletin 382-28-19 are done, it is necessary to do the additional action of inspecting the fuel probes when doing the zonal inspection of the dry bay areas and other areas and re-accomplish certain inspections of certain fuel system electrical wires (such as ensuring that generator wire bundles are separated from fuel tank boundaries, certain wire bundles are spot tied with certain lacing braid, and that the fuel quantity indication system (FQIS) wiring in certain locations is routed separately from AC power wires and is shielded using the correct standard).

We have also reviewed Lockheed Service Bulletin 382-28-20, Revision 11, dated April 20, 2010. That service bulletin describes procedures that are similar to Lockheed Service Bulletin 382-28-20, Revision 5, dated June 19, 2008 (which was referenced as a source of guidance in AD 2008-20-01), for installing ground fault interrupters (GFIs) and flame arrestors for protection of the fuel system.

We have evaluated all pertinent information and identified an unsafe condition that is likely to develop on other airplanes of the same type design. For this reason, we are proposing this AD, which would supersede AD 2008-20-01 and would retain the requirements of the existing AD. This proposed AD would also require certain actions to be re-accomplished according to revised service information described previously, except as discussed under “Difference Between the Proposed AD and the Service Information.”

Although Lockheed Service Bulletin 382-28-19, Revision 4, dated September 18, 2008, describes procedures for notifying Lockheed of any discrepancies found during inspection, this proposed AD would not require that action.

We have removed the “Service Bulletin Reference” paragraph from this NPRM. That paragraph was identified as paragraph (f) in AD 2008-20-01. Instead, we have provided the full service bulletin citations throughout this NPRM.

We have revised the NPRM to identify the legal name of the manufacturer as published in the most recent type certificate data sheet for the affected airplane models.

There are about 62 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. The average labor rate per hour is $85. The costs of the new requirements of this proposed AD are as follows:

The current costs for this proposed AD are repeated for the convenience of affected operators, as follows:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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.

For the reasons discussed above, I certify that the proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

(a) Doors open 30 minutes prior to the beginning of each meeting. The meetings will be informal in nature and will be conducted by one or more representatives of the FAA Central Service Center. A representative from the FAA will present an informal briefing on the planned modification to the Class B airspace at Minneapolis, MN. Following the briefing, each attendee will be given an opportunity to deliver comments or make a presentation, although a time limit may be imposed. Only comments concerning the plan to modify the Class B airspace area at Minneapolis, MN, will be accepted.

(b) The meetings will be open to all persons on a space-available basis. There will be no admission fee or other charge to attend and participate.

(c) Any person wishing to make a presentation to the FAA panel will be asked to sign in and estimate the amount of time needed for such presentation. This will permit the panel to allocate an appropriate amount of time for each presenter. These meetings will not be adjourned until everyone on the list has had an opportunity to address the panel.

(d) Position papers or other handout material relating to the substance of these meetings will be accepted. Participants wishing to submit handout material should present an original and two copies (3 copies total) to the presiding officer. There should be additional copies of each handout available for other attendees.

(e) These meetings will not be formally recorded. However, a summary of comments made at the meeting will be filed in the docket.

Title 49 of the United States Code (U.S.C.), section 40103(a)(1), provides that the “United States Government has exclusive sovereignty of airspace of the United States.” Paragraph (b) of this section directs the FAA to “develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of the airspace.”

In recognition of the threat tall structures can pose to aviation safety, 49 U.S.C. 44718 directed the FAA to promulgate regulations requiring notice of proposed structures or alterations of existing structures when the notice will promote safety in air commerce and the efficient use and preservation of the navigable airspace and of airport traffic capacity at public-use airports. (14 CFR part 77.) The agency was further directed to study such structures and determine the extent of any adverse impacts on the safe and efficient use of the airspace, facilities or equipment.

Consistent with the above statutory and regulatory framework, the FAA has adopted policy to establish the standards for which the FAA identifies “obstructions” and “hazards” in the navigable airspace in furtherance of its responsibilities to manage the navigable airspace safely and efficiently. See 14 CFR part 77, and FAA Order 7400.2, Procedures for Handling Airspace Matters. The FAA issues a determination advising whether the structure would be a hazard to air navigation. The FAA may condition its determination of no hazard with the structure appropriately being marked and lighted, as specified in the determination. FAA criteria for marking and lighting of tall structures are found in Advisory Circular No. 70/7460-1, Obstruction Marking and Lighting.

Unless within the vicinity of an airport, 1 proponents of new structures or alterations of existing structures must file notice with the FAA for “any construction or alteration of more than 200 feet in height above the ground level at its site.” 14 CFR 77.13(a)(1). Consequently, as the FAA does not study these structures there is no FAA determination that would specify the marking of these structures.

The emphasis to discover sources of renewable energy in the United States has prompted individuals and companies to explore all means of energy generation. Wind energy, converted into electrical energy by wind turbines, is widely pursued as a viable alternative. In order to determine if a site meets requirements to construct a wind turbine or wind farm, companies erect METs. These towers are used to gather wind data necessary for site evaluation and development of wind energy projects. The data generally is gathered over a year to ascertain if the targeted area represents a potential location for the installation of wind turbines.

Requirements to file notice under part 77 generally do not apply to structures at heights lower than 200 feet AGL unless close to an airport environment. Therefore, the FAA does not have a database of MET locations, nor does it conduct an aeronautical study to determine whether the particular structure would be hazardous to aviation. These towers are often installed in remote or rural areas, just under 200 feet above ground level (AGL), usually at 198 feet or less. These structures are portable, erected in a matter of hours, installed with guyed wires and constructed from a galvanized material often making them difficult to see in certain atmospheric conditions.

While the METs described above are not subject to the provisions of part 77 and therefore, the FAA does not conduct aeronautical studies to determine whether these structures are obstructions and adversely impact air navigation, the FAA does acknowledge that these towers under certain conditions may be difficult to see by low-level agricultural flights operating under visual flight rules. The color, portability of these towers, their placement in rural and remote areas, and their ability to be erected quickly are factors that pilots should be aware of when conducting operations in these areas.

The FAA has received complaints and inquiries from agricultural operations in remote or rural areas regarding the safety impacts of these towers on low-level agricultural operations. In addition, representatives from the National Agricultural Aviation Association (NAAA) met with the FAA on November 16, 2010 to discuss safety specific concerns of the aerial application industry. The NAAA suggested safety guidelines and marking and lighting criteria in order to reduce the risks for aerial applications. A copy of the material provided by NAAA has been placed in the docket.

The FAA is considering revising AC No. 70/7460-1, Obstruction Marking and Lighting, to include guidance for the voluntary marking of METs that are less than 200 feet AGL. The FAA recognizes the need to enhance the conspicuity of these METs, particularly for low-level agricultural operations and seeks public comment on the guidance provided below.

The FAA recommends that the towers be painted in accordance to the marking criteria contained in Chapter 3, paragraphs 30-33 of AC No. 70/7460-1. In particular, we reference paragraph 33(d), which discusses alternate bands of aviation orange and white paint for skeletal framework of storage tanks and similar structures, and towers that have cables attached. The FAA also recommends spherical and/or flag markers be used in addition to aviation orange and white paint when additional conspicuity is necessary. Markers should be installed and displayed according to the existing standards contained in Chapter 3, paragraph 34 of AC No. 70/70460-1.

The FAA is also considering recommending high visibility sleeves on the outer guy wires of these METs. While the current Obstruction Marking and Lighting Advisory Circular does not contain such guidance for high visibility sleeves, the FAA specifically seeks comments on this recommendation.

The FAA anticipates that a uniform and consistent scheme for voluntarily marking these METs would enhance safety by making these towers more readily identifiable for agricultural operations.

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

We are proposing to disapprove a portion of the SIP revision submitted by the State of New Mexico for the purpose of addressing the “good neighbor” provisions of the CAA section 110(a)(2)(D)(i) with respect to visibility for the 1997 8-hour ozone NAAQS and the PM 2.5 NAAQS. As a result of the proposed disapproval, we are also proposing a FIP to address the requirements of section 110(a)(2)(D)(i)(II) with respect to visibility to ensure that emissions from New Mexico sources do not interfere with the visibility programs of other states. We are proposing to find that New Mexico sources, other than one, are sufficiently controlled to eliminate interference with the visibility programs of other states, and for the one remaining source we are proposing to impose specific emissions limits that will eliminate such interstate interference. We are simultaneously evaluating whether the source at issue meets certain other related requirements under the Regional Haze (RH) program. As a result of this evaluation, we are likewise proposing to find that the proposed controls for the source at issue will address the NO X BART requirements of the RH program. In this action, we are not addressing whether the state has met other requirements of the RH program and will address those requirements in later actions.

Section 110(a)(2)(D)(i)(II) of the Act requires that states have a SIP, or submit a SIP revision, containing provisions “prohibiting any source or other type of emission activity within the state from emitting any air pollutant in amounts which will * * * interfere with measures required to be included in the applicable implementation plan for any other State under part C [of the CAA] to protect visibility.”

Because of the impacts on visibility from the interstate transport of pollutants, we interpret the “good neighbor” provisions of section 110 of the Act described above as requiring states to include in their SIPs measures to prohibit emissions that would interfere with the reasonable progress goals set to protect Class I areas in other states. New Mexico submitted a SIP to address these requirements in September 2007. In this action, we are proposing to disapprove the New Mexico SIP submission as not meeting the requirements of section 110(a)(2)(D)(i)(II) with respect to visibility. The SIP submission made by the state anticipated the timely submission of a substantive RH SIP submission as the means of meeting the requirements of section 110(a)(2)(D)(i)(II). New Mexico has yet to submit such a RH SIP. In addition, the state has not revised its submission to address the requirements of section 110(a)(2)(D)(i)(II) with respect to visibility by any alternative means.

By December 17, 2007, each State with one or more Class I Federal areas was also required to submit a RH SIP that included goals that provide for reasonable progress towards achieving natural visibility conditions. 40 CFR 51.308(d)(1). We previously found that New Mexico had failed to submit a complete RH SIP by December 17, 2007. 74 FR 2392 (January 15, 2009). This finding started a two year clock for the promulgation of a RH FIP by EPA or the approval of a complete RH SIP from New Mexico. CAA § 110(c)(1).

To address the above concerns, we are also proposing to promulgate a FIP that ensures that emissions from New Mexico sources do not interfere with other states' measures to protect visibility in accordance with section 110(a)(2)(D)(i)(II) for the 1997 8-hour ozone and 1997 PM 2.5 NAAQS, and also to address the requirements under the RH program for BART by imposing limits for NO X for the San Juan Generating Station (SJGS). 1 This FIP will limit the emissions of SO 2 and NO X from the SJGS. Together, the reduction in NO X from our proposed NO X BART determination, and the proposed SO 2 emission limits to establish federal enforceability of current SO 2 levels will serve to ensure there are enforceable mechanisms in place to prohibit New Mexico NO X and SO 2 emissions from interfering with efforts to protect visibility in other states pursuant to the requirements of section 110(a)(2)(D)(i)(II) of the CAA. NO X and SO 2 are significant contributors to visibility impairment in and around New Mexico. As the Four Corners Task Force notes, 2 “[r]eduction of NO X is particularly important to improve visibility at Mesa Verde National Park, which is 43 km away from SJGS. * * * [V]isibility has degraded at Mesa Verde over the past decade, and the portion of degradation due to nitrate has increased (while there has been no trend in degradation due to sulfate).” For NO X emissions, we are proposing to require the SJGS to meet an emission limit of 0.05 pounds per million British Thermal Units (lb/MMBtu) at Units 1, 2, 3, and 4, representing an approximately 83% reduction from the SJGS's baseline NO X emissions. This NO X limit is achievable by installing and operating Selective Catalytic Reduction (SCR). For SO 2 , we are proposing to require the SJGS to meet an emission limit of 0.15 lb/MMBtu. Both of these emission limits would be measured on the basis of a 30-day rolling average. We are also proposing hourly average emission limits for sulfuric acid (H 2 SO 4 ) and ammonia (NH 3 ) for the SJGS, to minimize the contribution of these compounds to visibility impairment of Class I areas.

Furthermore, we propose that compliance with the emission limits be within three (3) years of the effective date of our final rule. Additionally, we are proposing monitoring, recordkeeping, and reporting requirements to ensure compliance with emission limitations. Please see Section IV (Proposed Action) and the proposed regulation language at the end of this Federal Register action for more information.

The CAA requires each state to develop a plan that provides for the implementation, maintenance, and enforcement of the NAAQS. CAA section 110(a). We establish NAAQS under section 109 of the CAA. Currently, the NAAQS address six (6) criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. The plan developed by a state is referred to as the SIP. The content of the SIP is specified in section 110 of the CAA, other provisions of the CAA, and applicable regulations. A primary purpose of the SIP is to provide the air pollution regulations, control strategies, and other means or techniques developed by the state to ensure that the ambient air within that state meets the NAAQS. However, another important aspect of the SIP is to ensure that emissions from within the state do not have certain prohibited impacts upon the ambient air in other states through the interstate transport of pollutants. CAA section 110(a)(2)(D)(i). States are required to update or revise SIPs under certain circumstances. See CAA section 110(a)(1). One such circumstance is our promulgation of a new or revised NAAQS. Id. Each state must submit these revisions to us for approval and incorporation into the federally-enforceable SIP.

If a State fails to make a required SIP submittal or if we find that the State's submittal is incomplete or unapprovable, then we must promulgate a FIP to fill this regulatory gap. CAA section 110(c)(1). As discussed elsewhere in this notice, we have made findings related to New Mexico SIP revisions needed to address interstate transport and the requirement that emissions from New Mexico sources do not interfere with measures required in the SIP of any other state to protect visibility, pursuant to section 110(a)(2)(D)(i)(II) of the CAA. We are proposing a FIP to address the deficiencies in the New Mexico Interstate Transport SIP.

On July 18, 1997, we promulgated new NAAQS for 8-hour ozone and for PM 2.5 . 62 FR 38652. Section 110(a)(1) of the CAA requires states to submit SIPs to address a new or revised NAAQS within 3 years after promulgation of such standards, or within such shorter period as we may prescribe. Section 110(a)(2) of the CAA lists the elements that such new SIPs must address, as applicable, including section 110(a)(2)(D)(i), which pertains to the interstate transport of certain emissions.

On April 25, 2005, we published a “Finding of Failure to Submit SIPs for Interstate Transport for the 8-hour Ozone and PM 2.5 NAAQS.” 70 FR 21147. This included a finding that New Mexico and other states had failed to submit SIPs for interstate transport of air pollution affecting visibility, and started a 2-year clock for the promulgation of a FIP by us, unless a State made a submission to meet the requirements of section 110(a)(2)(D)(i) and we approved the submission. Id.

On August 15, 2006, we issued our “Guidance for State Implementation Plan (SIP) Submission to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM 2.5 National Ambient Air Quality Standards” (2006 Guidance). We developed the 2006 Guidance to make recommendations to states for making submissions to meet the requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone standards and the 1997 PM 2.5 standards.

As identified in the 2006 Guidance, the “good neighbor” provisions in section 110(a)(2)(D)(i) of the CAA require each state to submit a SIP that prohibits emissions that adversely affect another state in the ways contemplated in the statute. Section 110(a)(2)(D)(i) contains four distinct requirements related to the impacts of interstate transport. The SIP must prevent sources in the state from emitting pollutants in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in other states; (2) interfere with maintenance of the NAAQS in other states; (3) interfere with provisions to prevent significant deterioration of air quality in other states; or (4) interfere with efforts to protect visibility in other states.

The 2006 Guidance stated that states may make a simple SIP submission confirming that it was not possible at that time to assess whether there is any interference with measures in the applicable SIP for another state designed to “protect visibility” for the 8-hour ozone and PM 2.5 NAAQS until RH SIPs are submitted and approved. RH SIPs were required to be submitted by December 17, 2007. See 74 FR 2392 (January 15, 2009); see also discussion infra section II.B.2.

On September 17, 2007 we received a SIP from New Mexico to address the interstate transport provisions of CAA 110(a)(2)(D)(i) for the 1997 8-hour ozone and PM 2.5 NAAQS. In this submission, the state indicated that it intended to meet the requirements of section 110(a)(2)(D)(i)(II) with respect to visibility by submission of a timely RH SIP. To date, the state has not made a RH SIP submission. In addition, the state has not made a submission demonstrating noninterference with the visibility programs of other states in accordance with section 110(a)(2)(D)(i)(II) by any other means.

In prior actions, we approved the New Mexico SIP submittal for (1) the “significant contribution to nonattainment” prong of section 110(a)(2)(D)(i) (75 FR 33174, June 11, 2010) and (2) the “interfere with maintenance” and “interfere with measures to prevent significant deterioration” prongs of section 110(a)(2)(D)(i) (75 FR 72688, November 26, 2010). In this action, we are proposing to disapprove the New Mexico Interstate Transport SIP with respect to the requirement that emissions from New Mexico sources do not interfere with measures required in the SIP of any other state to protect visibility. See CAA section 110(a)(2)(D)(i)(II). We are proposing to promulgate a FIP in order to cure this defect in the New Mexico Interstate Transport SIP.

In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas  3 which impairment results from manmade air pollution.” CAA § 169A(a)(1). The terms “impairment of visibility” and “visibility impairment” are defined in the Act to include a reduction in visual range and atmospheric discoloration. Id. section 169A(g)(6). In 1980, we promulgated regulations to address visibility impairment in Class I areas that is “reasonably attributable” to a single source or small group of sources, i.e., “reasonably attributable visibility impairment” (RAVI). 45 FR 80084 (December 2, 1980). These regulations represented the first phase in addressing visibility impairment. We deferred action on RH that emanates from a variety of sources until monitoring, modeling and scientific knowledge about the relationships between pollutants and visibility impairment were improved. Id.

Congress added section 169B to the CAA in 1990 to address RH issues, and we promulgated regulations addressing RH in 1999. 64 FR 35714 (July 1, 1999), codified at 40 CFR part 51, subpart P (the regional haze rule or RHR). The RHR revised the existing visibility regulations to integrate provisions addressing RH impairment and established a comprehensive visibility protection program for Class I areas. The requirements for RH, found at 40 CFR 51.308 and 51.309, are included in our visibility protection regulations at 40 CFR 51.300-309. States were required to submit the first SIP addressing RH visibility impairment no later than December 17, 2007. 40 CFR 51.308(b).

On January 15, 2009, we published a “Finding of Failure to Submit State Implementation Plans Required by the 1999 regional haze rule.” 74 FR 2392. We found that New Mexico and other states had failed to submit for our review and approval complete SIPs for improving visibility in the nation's national parks and wilderness areas by the required date of December 17, 2007. We found that New Mexico failed to submit the plan elements required by 40 CFR 51.309(g), the reasonable progress requirements for areas other than the 16 Class I areas covered by the Grand Canyon Visibility Transport Commission Report. New Mexico also failed to submit the plan element required by 40 CFR 51.309(d)(4), which requires BART for stationary source emissions of NO x and PM under either 40 CFR 51.308(e)(1) or 51.308(e)(2). 4 This finding started a 2-year clock for the promulgation of a FIP by EPA, unless the State made a RH SIP submission and we approved it.

Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain major stationary sources with the potential to emit greater than 250 tons or more of any pollutant, in order to address visibility impacts from these sources. Specifically, it requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources built between 1962 and 1977 procure, install, and operate the “Best Available Retrofit Technology,” as determined by the State or us in the case of a plan promulgated under section 110(c) of the CAA. CAA section 169A(b)(2)(A). States are directed to conduct BART determinations for such sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area. The RHR required all states to submit implementation plans that, among other measures, contain either emission limits representing BART for certain sources constructed between 1962 and 1977, or alternative measures that provide for greater reasonable progress than BART. 40 CFR 51.308(e). On July 6, 2005, we published the Guidelines for BART Determinations Under the Regional Haze Rule (“BART Guidelines”) to assist states in determining which of their sources should be subject to the BART requirements and in determining appropriate emission limits for each applicable source. 70 FR 39104.

The process of establishing BART emission limitations can be logically broken down into three steps: first, states identify those sources which meet the definition of “BART-eligible source” set forth in 40 CFR 51.301  5 ; second, states determine whether each source “emits any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility in any such area” (a source which fits this description is “subject to BART”); and third, for each source subject to BART, states then identify the appropriate type and the level of control for reducing emissions.

States must consider the following factors in making BART determinations: (1) The costs of compliance; (2) the energy and nonair quality environmental impacts of compliance; (3) any existing pollution control technology in use at the source; (4) the remaining useful life of the source; and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. 40 CFR 51.308(e)(1)(ii)(A). Section 51.308(e)(1)(ii)(B) requires that BART determinations for fossil fuel-fired electric generating plants with a total generating capacity in excess of 750 megawatts, must be made according to the BART Guidelines. 6 A state is encouraged, but not required, to follow the BART Guidelines in making BART determinations for other types of sources.

States must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility impairing pollutants are SO 2 , NO X , and PM. We have stated that states should use their best judgment in determining whether volatile organic compounds (VOCs) or ammonia (NH 3 ) and ammonia compounds impair visibility in Class I areas.

The Regional Planning Organizations (RPOs) provided air quality modeling to the states to help them in determining whether potential BART sources can be reasonably expected to cause or contribute to visibility impairment in a Class I area. Under the BART Guidelines, states may select an exemption threshold value for their BART modeling, below which a BART-eligible source would not be expected to cause or contribute to visibility impairment in any Class I area. 70 FR 39104. The state must document this exemption threshold value in the SIP and must state the basis for its selection of that value. Id. Any source with emissions that model above the threshold value would be subject to a BART determination review. Id. The BART Guidelines acknowledge varying circumstances affecting different Class I areas. States should consider the number of emission sources affecting the Class I areas at issue and the magnitude of the individual sources' impacts. Id. Any exemption threshold set by the state should not be higher than 0.5 deciview. Id.

The RHR establishes the deciview (dv) as the principal metric for measuring visibility. Id. This visibility metric expresses uniform changes in haziness in terms of common increments across the entire range of visibility conditions, from pristine to extremely hazy conditions. Visibility is sometimes expressed in terms of the visual range which is the greatest distance, in kilometers or miles, at which a dark object can just be distinguished against the sky. The deciview is a more useful measure for tracking progress in improving visibility, because each deciview change is an equal incremental change in visibility perceived by the human eye. Most people can detect a change in visibility at one deciview.

A RH SIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. Once a state has made its BART determination, the BART controls must be installed and in operation as expeditiously as practicable, but no later than five (5) years after the date of our approval of the RH SIP. CAA section 169(g)(4); 40 CFR 51.308(e)(1)(iv). In addition to what is required by the RHR, general SIP requirements mandate that the SIP must also include all regulatory requirements related to monitoring, recordkeeping, and reporting for the BART controls on the source. See CAA section 110(a)(2).

The Western Regional Air Partnership (WRAP) is a voluntary partnership of state, tribal, federal, and local air agencies dealing with regional air quality issues in the West. Member states include Alaska, Arizona, California, Colorado, Idaho, Montana, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming. The WRAP established various committees to assist in managing and developing RH work products. New Mexico is a WRAP member. The WRAP evaluates air quality impacts, including RH impacts, associated with regionally significant emission sources. In so doing, the WRAP has conducted air quality modeling. The states in the West have used this modeling to establish their reasonable progress goals for RH. 7

The RH program, as reflected in the regulations, recognizes the importance of addressing the long-range transport of pollutants for visibility and encourage states to work together to develop plans to address haze. The regulations explicitly require each State to address its “share” of the emission reductions needed to meet the reasonable progress goals for surrounding Class I areas. States working together through a regional planning process are required to address an agreed upon share of their contribution to visibility impairment in the Class I areas of their neighbors. 40 CFR 51.308(d)(3)(ii). The States in the West worked together through the WRAP to determine their contribution to visibility impairment at the relevant federal Class I areas in the region and the emissions reductions from each State needed to attain the reasonable progress goals for each area. Regional planning organizations (RPOs) such as the WRAP provided much of the technical work necessary to develop RH SIPs, including the modeling used to establish reasonable progress goals. The WRAP evaluated air quality impacts, including RH impacts, associated with regionally significant emission sources. In so doing, the WRAP conducted air quality modeling. The modeling done by the RPOs relied on assumptions regarding emissions over the relevant planning period. Embedded in these assumptions were anticipated emissions reductions from each of the states in the RPO, including reductions from BART and other measures to be adopted as part of the states long-term strategy for addressing RH. The states in the West, in turn, have used this modeling to establish their reasonable progress goals for RH. The reasonable progress goals in the draft and final RH SIPs that have now been prepared by states in the West accordingly are based, in part, on the emissions reductions from nearby states that were agreed on through the WRAP process.

We received a SIP from New Mexico to address the interstate transport provisions of CAA 110(a)(2)(D)(i) for the 1997 8-hour ozone and PM 2.5 NAAQS on September 17, 2007. Concerning the provision preventing sources in the state from emitting pollutants in amounts which will interfere with efforts to protect visibility in other states, New Mexico stated that:

• New Mexico sources of emissions do not interfere with implementation of reasonably attributable visibility impairment;

• Its December 2003 RH SIP demonstrated reasonable progress in reducing impacts on Class I areas on the Colorado Plateau; 8 and

• The 2007 SIP update for RH will analyze any impacts from New Mexico that extend beyond the Colorado Plateau and determine appropriate long-term strategies for control measures. As mentioned previously, New Mexico has yet to provide this SIP revision.

New Mexico's submission addressed the requirement that it not interfere with the visibility programs of other states by stating that it would submit an approvable RH SIP by December 2007. The state did not otherwise establish that emissions from its sources would not interfere with the visibility programs of other states. After intervening events precluded the development of an approvable RH SIP, the state did not make any subsequent SIP submission to address the requirements of section 110(a)(2)(D)(i)(II) with respect to impacts on the visibility programs of other states. Consequently, because the State did not submit a RH SIP or an alternative means of demonstrating that emissions from its sources would not interfere with the visibility programs of other States, we are proposing disapproval of the SIP received September 17, 2007, with respect to 110(a)(2)(D)(i)(II) and visibility protection. Further, as described in subsequent sections, we are proposing that additional controls are necessary to prevent emissions from New Mexico from interfering with measures to protect visibility in other States.

As an initial matter, we note that section 110(a)(2)(D)(i)(II) does not explicitly specify how we should ascertain whether a state's SIP contains adequate provisions to prevent emissions from sources in that state from interfering with measures required in another state to protect visibility. Thus, the statute is ambiguous on its face, and we must interpret that provision.

Our 2006 Guidance recommended that a state could meet the visibility prong of the transport requirements of section 110(a)(2)(D)(i)(II) of the CAA by submission of the RH SIP, due in December 2007. Our reasoning was that the development of the RH SIPs was intended to occur in a collaborative environment among the states. In fact, in developing their respective reasonable progress goals, WRAP states consulted with each other through the WRAP's work groups. 9 As a result of this process, the common understanding was that each State would take action to achieve the emissions reductions relied upon by other states in their reasonable progress demonstrations under the RHR. This effort included all states in the WRAP region contributing information to a Technical Support System (TSS) which provides an analysis of the causes of haze, and the levels of contribution from all sources within each state to the visibility degradation of each Class I area. The WRAP states consulted in the development of reasonable progress goals, using the products of this technical consultation process to co-develop their reasonable progress goals for the Western Class I areas.

We believe that the analysis conducted by the WRAP provides an appropriate means for designing a FIP that will ensure that emissions from sources in New Mexico are not interfering with the visibility programs of other states, as contemplated in section 110(a)(2)(D)(i)(II). In developing their visibility projections using photochemical grid modeling, the WRAP states assumed a certain level of emissions from sources within New Mexico. Although we have not yet received all RH SIPs, we understand that the WRAP states used the visibility projection modeling to establish their own respective reasonable progress goals. Thus, we believe that an implementation plan that provides for emissions reductions consistent with the assumptions used in the WRAP modeling will ensure that emissions from New Mexico sources do not interfere with the measures designed to protect visibility in other states.

Accordingly, we have reviewed the WRAP photochemical modeling emission projections used in the demonstration of reasonable progress towards natural visibility conditions and compared them to current emission levels from sources in New Mexico. We have concluded that all of the sources in New Mexico are achieving the emission levels assumed by the WRAP in its modeling except for the SJGS. The WRAP modeling assumed the SJGS's NO X emissions would be 0.27 lbs/MMBtu for units 1 and 3, and 0.28 lbs/MMBtu for units 2 and 4, in 2018. The WRAP modeling also assumed SO 2 emissions would be 0.15 lbs/MMBtu in 2018 for the four SJGS units.

The SJGS consists of four (4) coal-fired generating units and associated support facilities. Each coal-fired unit burns pulverized coal and No. 2 diesel oil (for startup) in a boiler, and produces high-pressure steam which powers a steam turbine coupled with an electric generator. Electric power produced by the units is supplied to the electric power grid for sale. Coal for the units is supplied by the adjacent San Juan Mine and is delivered to the facility by conveyor. Units 1 and 2 have a unit capacity of 350 and 360 MW, respectively. Units 3 and 4 each have a unit capacity of 544 MW.

In 2005, the operator of the SJGS, Public Service Company of New Mexico (PNM), entered into a consent decree with the Grand Canyon Trust, Sierra Club, and the New Mexico Environment Department (NMED) to reduce emissions of NO X , SO 2 , particulate matter and mercury. 10 The consent decree imposed emissions restrictions, including the following:

• NO X : 0.30 lb/mmBtu on a 30-day rolling average.

• SO 2 : 90% annual average control, not to exceed 0.250 lb/mmBtu for a seven-day block average.

In a permit modification to the construction permit for SJGS, NMED issued a revised construction permit (NSR Air Quality Permit No. 0063-M6) on April 22, 2008 to incorporate some of the conditions from the consent decree. The construction permit was issued by the Air Quality Bureau of the NMED to SJGS pursuant to the New Mexico Air Quality Control Act and regulations and is considered a federally enforceable permit. We were not a party to the consent decree, but the inclusion of limits from the consent decree that have been included in the construction permit for the facility were issued pursuant to the federally approved construction permitting program of the New Mexico SIP. Specifically, the construction permit includes the NO X and SO 2 limits from the consent decree that are identified above. 11 Therefore, these NO X and SO 2 emissions restrictions are federally enforceable. This permit has since been superseded by a further construction permit modification that also includes the consent decree limits on NO X and SO 2 emissions and is federally enforceable. 12

Although the SJGS is subject to a federally enforceable permit, the permit's 30-day rolling average NO X emission limit of 0.30 lb/mmBtu for all units is less restrictive than the emission rates modeled by the WRAP of 0.27 lbs/MMBtu for units 1 and 3, and 0.28 lbs/MMBtu for units 2 and 4 in assessing the daily visibility impacts. We also note the WRAP photochemical modeling utilized an SO 2 emission rate of 0.15 lbs/MMBtu on a continuous basis for all four units. In previous communications to New Mexico and the WRAP, PNM indicated that the 90% annual average control specified in the permit would be expected to yield roughly an annual average emission rate of 0.195 lb/mmBtu of SO 2 , 13 which is much higher than the 0.15 lb/mmBtu emission rate utilized in the WRAP's photochemical modeling for assessing daily level impacts. Also, the 90% SO 2 control restriction specified in the permit is an annual average, which allows for short term fluctuations. It also is not directly translatable to an emission limit (e.g., lbs/MMBtu), and requires knowledge of the sulfur content of the coal being burned. Therefore, this limit can further fluctuate depending upon the annual average sulfur content of the coal. This presents an unnecessary enforcement complication. The permit also specifies a 0.250 lb/mmBtu on a 7-day block average for each unit, which is much less restrictive than the 0.15 lb/mmBtu emission rate that was used within the WRAP's photochemical modeling.

Therefore, the permit does not provide the necessary emission limits and enforceable mechanisms to ensure the NO X and SO 2 emissions used in the WRAP photochemical modeling for the SJGS units will be met. In the absence of an approvable RH SIP, we do not have an enforceable mechanism for ensuring that sources in New Mexico do not impact visibility in other states. Other WRAP states are relying on levels modeled for the SJGS units, developed in consultation, in their demonstration of reasonable progress towards natural visibility conditions. Therefore, any discrepancies between what was included in the WRAP photochemical modeling and what is presently enforceable, is a concern. We have evaluated these discrepancies and determined they are significant due to the changes in visibility projections in the modeling. We have concluded that it is appropriate to establish federally enforceable limits for pollutants that impact visibility projections within the WRAP photochemical modeling.

As discussed in II.A, we are proposing to disapprove New Mexico Interstate Transport SIP provisions that address the requirement of section 110(a)(2)(D)(i)(II) that emissions from New Mexico sources do not interfere with measures required in the SIP of any other state under part C of the CAA to protect visibility. In addition, since New Mexico has not submitted a complete RH SIP that should have, among other things, included a review of BART for NO X at the SJGS, and for both of these requirements we have made a finding of failure to submit, 14 giving us the authority and responsibility to issue a FIP to address the deficiencies in the State's plan, we are also proposing to find that New Mexico sources, except the SJGS, are sufficiently controlled to eliminate interference with the visibility programs of other states. For the SJGS we are proposing to impose specific emissions limits that will eliminate such interstate interference based on current emissions that satisfies the assumptions in the WRAP modeling.

The following sections outline our proposal for addressing the BART requirements for NO X at SJGS and for ensuring that the SJGS has the controls necessary to prevent emissions from New Mexico from interfering with the reasonable progress goals in other states.

As we discuss above, there are no federally enforceable limits that restrict the SJGS's SO 2 emissions at 0.15 lbs/MMBtu, the rate assumed by the WRAP in its modeling. Therefore, as part of this action, we are proposing to impose an SO 2 emission rate of 0.15 lbs/MMBtu on a 30 day rolling average for units 1, 2, 3, and 4 of the SJGS. By imposing this limit through this action, we will insure that SO 2 emissions from this source are not interfering with the visibility programs of other states. We note an examination of the SJGS's actual emission rates based on emissions reported by our Clean Air Markets Division  15 indicates units 1, 2, 3, and 4 of the SJGS are already meeting these SO 2 emission limits.

We are not making a finding that this SO 2 emission limit satisfies BART for SO 2 . NMED has indicated they will submit a RH SIP under 40 CFR 51.309, thus SO 2 BART for the SJGS will be addressed through New Mexico's participation in an SO 2 trading program, under 40 CFR 51.309(d)(4). Should NMED instead submit a RH SIP under 40 CFR 51.308, the SJGS would be subject to an SO 2 BART analysis under 40 CFR 51.308(e).

As we discuss above, the WRAP assumed in its modeling that the SJGS would achieve NO X emission rates of 0.27 lbs/MMBtu for units 1 and 3, and 0.28 lbs/MMBtu for units 2 and 4 in its evaluation of daily impacts in photochemical modeling. Based on our approach of relying on the assumptions in the WRAP modeling, additional control would, therefore, be necessary to ensure that emissions from New Mexico sources do not interfere with efforts to protect visibility in other states pursuant to the requirements of section 110(a)(2)(D)(i)(II) of the CAA.

Unlike the case for SO 2 , the SJGS will have to install controls and therefore make capital investments to achieve these additional NO X reductions. As we note above, on January 15, 2009, we published a “Finding of Failure to Submit State Implementation Plans Required by the 1999 regional haze rule.” 74 FR 2392. This finding included the plan element required by 40 CFR 51.309(d)(4), which requires BART for stationary source emissions of NO X and PM under either 40 CFR 51.308(e)(1) or 51.308(e)(2). Therefore, rather than making an initial determination to require the controls needed to prevent interference with the visibility programs of other states based on the assumptions in the WRAP photochemical modeling to meet section 110(a)(2)(D)(i)(II) requirements, followed soon thereafter by a separate NO X BART evaluation, we find it is appropriate to perform that BART evaluation at this time. Addressing both outstanding obligations at this time will be more efficient and will provide greater certainty to the source as to the appropriate NO X controls needed to meet these two separate but related requirements. Our evaluation of BART for NO X follows.

In June, 2007, PNM submitted its BART evaluation to NMED. That evaluation was revised multiple times to incorporate additional visibility modeling analyses, control technology considerations, and cost analyses. Although not officially submitted to us, NMED completed a NO X and PM BART determination for the SJGS (referred to herein as the “NMED BART evaluation”), which we have found to be thorough and comprehensive. 16 In making our NO X BART determination for the SJGS, we drew heavily upon the NO X BART portion of that document, and used it to help inform our NO X BART determination for the SJGS. We have incorporated it into our Technical Support Document (TSD) found in the electronic docket for this action. The electronic docket can be found at the Web site http://www.regulations.gov (docket number EPA-R06-OAR-2010-0846).

We have determined, as outlined below, that the SJGS is subject to BART and are proposing to require that units 1, 2, 3, and 4 meet an emission limit for NO X of 0.05 lbs/MMBtu. This limit is based on the installation of SCR on each of the units. The following steps outline how we came to this determination. For more detail, please see the TSD. Any BART determinations for other pollutants that may be warranted under the RHR will be addressed in future rulemakings.

The first step of a BART evaluation is to determine whether a source meets the definition of a “BART-eligible source” in 40 CFR 51.301. BART-eligible sources are those sources which have the potential to emit 250 tons or more of a visibility-impairing air pollutant, were put in place between August 7, 1962 and August 7, 1977, and whose operations fall within one or more of 26 specifically listed source categories. We find, based on emissions reported by our Clean Air Markets Division, 17 that units 1, 2, 3, and 4 of the SJGS each have historically emitted much more than 250 tons of NO X . Also, according to the NMED SJGS Title V Statement of Basis, units 1, 2, 3, and 4 of the SJGS meet the requirement of being “in existence” on August 7, 1977 but not “in operation” before August 7, 1962. Lastly, we find that units 1, 2, 3, and 4 of the SJGS fall under category 1 of the 26 listed BART categories, which is fossil-fuel fired steam electric plants of more than 250 million British thermal units (BTU) per hour heat input. Therefore, we propose to find that units 1, 2, 3, and 4 of the SJGS are BART-eligible.

Section III of the BART Guidelines outlines several approaches for identifying sources that are subject to BART. This entails making a determination of whether the units of the SJGS cause or contribute to visibility impairment in nearby Class I areas. Among the options we recommended was the use of dispersion modeling for assessing the impacts of a single source. As we note in the BART Guidelines, one of the first steps in this approach to determining whether a source causes or contributes to visibility impairment is to establish a threshold (measured in deciviews). A single source that is responsible for a 1.0 deciview change or more should be considered to “cause” visibility impairment; a source that causes less than a 1.0 deciview change may still contribute to visibility impairment and thus be subject to BART. We note in the BART Guidelines that states (and by extension EPA when promulgating a FIP) have flexibility in determining an appropriate threshold for determining whether a source “contributes to any visibility impairment” for the purposes of BART. However, this threshold should not be higher than 0.5 deciviews. 18 In the case of the SJGS, this establishment of a precise threshold for contribution is moot, since visibility modeling indicates that even using the upper bound contribution threshold of 0.5 deciviews, the SJGS contributes to visibility impairment at a number of Class I areas.

The WRAP performed the initial BART screening modeling for the state of New Mexico. The procedures used are outlined in the WRAP Regional Modeling Center (RMC) BART Modeling Protocol. 19 The WRAP screening modeling evaluated sources that were identified as BART-eligible and determined the only sources that did not screen out were the SJGS units. The results of this analysis indicated that SJGS, on a facility-wide basis, causes visibility impairment at all 16 Class I areas within 300 km of the facility. However, this modeling was based on the installed control technology at the time and does not reflect emission reductions due to the installation of consent decree controls. Revised modeling performed by NMED and by us, including controls required by the consent decree and currently installed, further confirmed that SJGS still “causes” visibility impairment at more than half of the Class I areas in the vicinity of the facility and contributes (above 0.5 deciviews) to visibility impairment at the remaining areas on a facility-wide basis. On an individual unit basis, all units “cause” visibility impairment at Mesa Verde National Park, and cause or contribute to visibility impairment at a number of other Class I areas. Our modeling indicates that the visibility impairment is primarily dominated by nitrate particulates. Therefore, as the WRAP screening modeling has previously concluded and further New Mexico and our modeling confirms that even with post-consent decree control levels on SJGS units, the SJGS units 1, 2, 3, and 4 still have a significant impact at surrounding Class I areas. Consequently, we propose to find that units 1, 2, 3, and 4 of the SJGS are subject to BART. More details on this determination can be found in the TSD.

Having established that units 1, 2, 3, and 4 of the SJGS are subject to BART, the next requirement is to perform the BART Analysis. 40 CFR 51.308(e)(1)(ii); see also BART Guidelines, Section IV. The BART analysis identifies the best system of continuous emission reduction and, as laid out in the BART Guidelines, consists of the following five basic steps:

• Step 1: Identify All Available Retrofit Control Technologies;

• Step 2: Eliminate Technically Infeasible Options;

• Step 3: Evaluate Control Effectiveness of Remaining Control Technologies;

• Step 4: Evaluate Impacts and Document the Results; and

• Step 5: Evaluate Visibility Impacts.

As we stated above, for our BART analysis we have heavily drawn upon the NMED BART Evaluation. Except for the following points, we agree with NMED's conclusions regarding Steps 1-5:

• PNM's cost estimate. NMED questioned PNM's cost estimate for the installation of SCR but accepted it as being cost effective. We too questioned PNM's cost estimate for SCR, and hired a consultant to undertake an accurate assessment of the cost of SCR and the emission limits that SCR is capable of attaining. (For more information, please see the TSD).

• BART for NO X . NMED evaluated the visibility benefits of SCR at the SJGS based on an emission limit of 0.07 lbs/MMBtu, but noted the potential for greater control at rates as low as 0.03 lbs/MMBtu. As discussed further below, we have concluded that a NO X emission limit of 0.05 lbs/MMBtu is BART for the SJGS, and performed our visibility modeling on that basis. (Additional information is provided in the TSD).

• SO 2 to SO 3 Conversion. NMED concluded BART for the SJGS was SCR plus sorbent injection to remove sulfur trioxide (SO 3 ) in the flue gas by reaction with an alkaline material. As discussed further below, we have concluded that sorbent injection is not necessary, as the SJGS burns a low sulfur coal, and catalysts are available with a low SO 2 to SO 3 conversion rate. (Please see the TSD for further information).

The following is a summary of our BART analysis. In general, our analysis is the same as NMED's analysis of Steps 1-5, as modified to incorporate the areas discussed above in which we differ with NMED.

To address step 1, NMED reviewed a number of potential retrofittable NO X control technologies, including: Selective Non Catalytic Reduction (SNCR), SCR, SNCR/SCR Hybrid, Natural Gas Reburn, Nalco Mobotec ROFA and Rotamix, NOxStar, ECOTUBE, PowerSpan ECO, Phenix Clean Combustion, and e-SCRUB. We drew upon PNM's June, 2007 BART submission to NMED and its subsequent revisions in our evaluation, and agree that the potential technologies for NO X controls that have been identified.

For step 2, again drawing upon the NMED analysis, we have determined the following potentially retrofittable NO X control technologies are not technically feasible, or have not been thoroughly demonstrated on similar size and type units: Natural Gas Reburn, NOxStar, ECOTUBE, PowerSpan ECO, Phenix Clean Combustion, and e-SCRUB. In determining BART, we have considered the remaining technologies, SCR, SNCR, SNCR/SCR Hybrid, and the Nalco Mobotec ROFA and Rotamix to be technically feasible.

Step 3 involves evaluating the control effectiveness of all the technically feasible control alternatives identified in Step 2. Two key issues in this process include: (1) Ensuring the degree of control is expressed using a metric that ensures a level comparison of emissions performance levels among options; and (2) giving appropriate treatment and consideration of control techniques that can operate over a wide range of emission performance levels. With the exception of SCR, Table 1 represents the control efficiencies and control emission rates PNM reported as part of its BART analyses  20 to NMED for the NO X controls that were found to be technically feasible. In our own SCR cost analysis, which we present later in this section, we have revised the control efficiency for SCR from 0.07 lbs/MMBtu to 0.05 lbs/MMBtu.

Throughout this document wherever “we”, “us” or “our” are used, we mean EPA. Information is organized as follows:

The purpose of this action is to propose approval of revisions to Idaho's SIP that were submitted to EPA by the State of Idaho IDEQ on April 16, 2007. The SIP submittals revise and amend IDEQ's Rules for the Control of Air Pollution in Idaho (IDAPA 58.01.01) currently in the Federally approved Idaho SIP (Code of Federal Regulations part 52, subpart N). This action will update the Federally approved SIP to reflect changes to IDAPA 58.01.01 that were made by IDEQ and reviewed and deemed approvable into the SIP. The proposed SIP revisions are explained in more detail below along with our evaluation of how these rules comply with the requirements for SIPs and the basis for our action.

Title I of the CAA, as amended by Congress in 1990, specifies the general requirements for states to submit SIPs to meet requirements of the Act and EPA's actions regarding approval of those SIPs. With this action we propose to approve the SIP submittal related to regional haze, and specifically, BART. We are taking no action on some of the provisions of the April 16, 2007, submittal because they were superseded in a May 28, 2008, submittal which was subsequently approved in a separate rulemaking on August 1, 2008. 73 FR 44915. We are also proposing to take no action in this rulemaking on other SIP revisions related to permitting because they were superseded by a May 12, 2008, submittal which was subsequently approved in a separate rulemaking on November 26, 2010. 75 FR 72719.

Idaho has made numerous revisions to its definition sections (Section 006 General Definitions and Section 007 Definitions for the Purposes of Sections 200 through 228 and 400 through 461). New definitions have been added for the new regional haze provisions, some existing definitions related to visibility permitting have been revised for use in the regional haze provisions and relocated from Section 007 to Section 006, and numerous editorial changes have been made to conform to renumbered definitions and correct internal cross-references. Specifically:

Idaho has added several new definitions for the purposes of the new regional haze rules, specifically: Section 006.14 Bart-Eligible Source; Section 006.16 Best Available Retrofit Technology (BART); Section 006.28 Deciview; Section 006.43 Federally Enforceable; Section 006.59 Least Impaired Days; Section 006.65 Most Impaired Days; Section 006.67 Natural Conditions; Section 006.91 Regional Haze; and Section 006.125 Visibility in Any Mandatory Class I Area. These new definitions are consistent with the EPA definitions in 40 CFR 51.301. EPA proposes to approve these new definitions.

The following currently-approved definitions have been revised, renumbered, and/or relocated to make them consistent with the new regional haze provisions: Section 006.04 Adverse Impact on Visibility (moved from 007.01 to 006.04 and clarified how it relates to integral vistas under 40 CFR 51.307); Section 006.41 Federal Class I Area (removed cross reference to Section 580); Section 006.42 Federal Land Manager (revised to make applicable only to Class I areas); Section 006.57 Integral Vista (moved from 007.07 to 006.57 and removed reference to 40 CFR 51.304(a)); Section 006.61 Mandatory Class I Federal Area (moved from 007.08 to 006.61 and replaced reference to 42 U.S.C. 7472(a) with a reference to 40 CFR 81.400 to 437); Section 006.81 Potential to Emit/Potential Emissions (removed language regarding capacity factor); and Section 006.124 Visibility Impairment (moved from 007.17 to 006.124 and added light extinction to the parenthetical list of examples of impairment).

Since Idaho has now adopted EPA's Prevention of Significant Deterioration (PSD) rules by reference in Section 205, including the definitions at 40 CFR 52.21(b), these definitions are no longer needed for the purposes of Sections 200 through 228. The revised definitions are consistent with the EPA definitions in 40 CFR 51.301. EPA proposes to approve these revised definitions.

The following currently-approved definitions have been renumbered and/or relocated without change or with changes only to internal cross-references: Section 006.62 Member of the Public (cross-reference correction); Section 006.63 Modification (cross-reference correction); Section 006.92 Regulated Air Pollutant (cross-reference correction); Section 006.99 Secondary Emissions (moved from 007.13 to 006.99 unchanged); Section 006.101 Significant (cross-reference correction); and Section 007.02 Baseline Actual Emissions (renumbered from 007.03 to 007.02 and cross-references in paragraphs a.iv and d corrected).

EPA proposes to approve the editorial changes to these existing approved definitions.

Idaho has adopted new sections 665 through 668 which provide the State with the authority to address regional haze in accordance with the requirements of the Act and EPA's regulations at 40 CFR 51.300 through 308. These include: Section 666 Reasonable Progress Goals, which is consistent with 40 CFR 51.308(d)(1); Section 667 Long-Term Strategy for Regional Haze, which is consistent with 40 CFR 51.308(d)(3); and Section 668 BART Requirement for Regional Haze, which is consistent with 40 CFR 51.308(e). EPA proposes to approve these new rules as providing authority for Idaho to adopt a regional haze plan. EPA is proposing action on the Idaho regional haze plan in a separate rulemaking.

In addition, Idaho has incorporated several Federal rules addressing visibility and Regional Haze at 58.01.01.107.03(a)(ii), and (c) Incorporation by Reference, specifically: 40 CFR part 51, subpart P, 40 CFR part 51, Appendix Y, and 40 CFR 51.301, 51.304(a), 51.307, and 51.308. This provision has been superseded by a more recent submittal (June 8, 2009) which was approved by EPA in a separate rulemaking on November 26, 2010. 75 FR 72719.

Section 204 Permit Requirements for New Major Facilities or Major Modifications in Nonattainment Areas: Idaho has revised subsection 02, Additional Requirements, paragraph d. Effect on Visibility which is a requirement of a permit applicant for a permit to satisfactorily demonstrate to the IDEQ the effect on visibility of any Federal Class I area or integral vista is consistent with making reasonable progress toward the national visibility goal in 40 CFR 51.300(a). This provision has been superseded by a more recent submittal (May 12, 2008) which was approved by EPA in a separate rulemaking on November 26, 2010. 75 FR 72719.

Section 205 Permit Requirements for New Major Facilities or Major Modifications in Attainment or Unclassifiable Areas: Idaho has revised subsection 02, Effects on Visibility. Effect on Visibility which is a requirement of a permit applicant for a permit to satisfactorily demonstrate to the IDEQ the effect on visibility of any Federal Class I area or integral vista is consistent with making reasonable progress toward the national visibility goal in 40 CFR 51.300(a). This provision has been superseded by a more recent submittal (May 12, 2008) which was approved by EPA in a separate rulemaking on November 26, 2010. 75 FR 72719.

58.01.01.600 Rules for Control of Open Burning: This revision adds language to indicate that the purpose of the open burning rules includes reducing the visibility impairment in mandatory Class I Federal Areas in accordance with the regional haze long-term strategy. This provision has been superseded by a subsequent revision and was addressed in a separate action. See 73 FR 44915 (August 1, 2008).

58.01.01.651 General Rules [for Control of Fugitive Dust]: This revision adds language requiring that proximity to a Class I area be considered when determining when reasonable precautions must be taken to prevent particulate matter from becoming airborne. We propose to approve this requirement as a SIP-strengthening rule change. This revision will allow Idaho to further control sources of fugitive dust when those sources impact air quality, including visibility, in Class I areas.

Idaho has not demonstrated authority to implement and enforce IDAPA chapter 58 within “Indian Country” as defined in 18 U.S.C. 1151. 1 Therefore, EPA proposes that this SIP approval not extend to “Indian Country” in Idaho. See CAA sections 110(a)(2)(A) (SIP shall include enforceable emission limits), 110(a)(2)(E)(i) (State must have adequate authority under State law to carry out SIP), and 172(c)(6) (nonattainment SIPs shall include enforceable emission limits). This is consistent with EPA's previous approval of Idaho's SIP revisions, in which EPA specifically disapproved the program for sources within Indian Reservations in Idaho because the State had not shown it had authority to regulate such sources. See 40 CFR 52.683(b). It is also consistent with EPA's approval of Idaho's title V air operating permits program. See 61 FR 64622, 64623 (December 6, 1996) (interim approval does not extend to Indian Country); 66 FR 50574, 50575 (October 4, 2001) (full approval does not extend to Indian Country).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• 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);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

Table of Contents I. Introduction II. NPL Deletion Criteria III. Deletion Procedures IV. Basis for Partial Site Deletion I. Introduction

EPA Region 6 is publishing this notice of intent to delete the soil and ground water associated with the northern 62-acre parcel of the AT&SF Albuquerque Superfund Site (Site) from the NPL and requests public comment on this proposed action. The NPL constitutes Appendix B of 40 CFR part 300, which is the NCP, which EPA promulgated pursuant to section 105 of CERCLA of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). This partial deletion of the 62-acre parcel of the AT&SF Albuquerque Superfund Site (EPA Site Identification number NMD980622864) is proposed in accordance with 40 CFR 300.425(e) and is consistent with the Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List. 60 FR 55466 (Nov. 1, 1995). As described in § 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.

EPA will accept comments concerning its proposal for partial deletion for thirty (30) days from the date of publication in the Federal Register .

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the AT&SF Albuquerque Superfund Site and demonstrates how the northern 62-acre parcel meets the partial deletion criteria.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the state, whether any of the following criteria have been met:

(i) Responsible parties or other persons have implemented all appropriate response actions required;

(ii) All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

(iii) The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of the northern 62-acre parcel of the Site:

(1) EPA consulted with the State of New Mexico, through the NMED, prior to developing this notice of intent for partial deletion.

(2) EPA has provided the state 30 working days for review of this notice prior to today's publication;

(3) In accordance with the criteria discussed above, EPA has determined that no further response is appropriate;

(4) The State of New Mexico, through the NMED, concurred with the intent for partial deletion of the northern 62-acre parcel of the AT&SF Albuquerque Superfund Site from the NPL by letter dated November 4, 2010;

(5) Concurrently with the publication of this Notice of Intent for Partial Deletion in the Federal Register , a notice is being published in the major local newspaper, Albuquerque Journal. The newspaper notice announces the 30-day public comment period concerning the notice of intent for partial deletion of the Site from the NPL.

(6) The EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

If comments are received on this document within the 30-day public comment period, EPA will evaluate and respond appropriately to the comments before making a final decision to partially delete the northern 62-acre parcel. If necessary, EPA will prepare a Responsiveness Summary to address any significant public comments received. After the public comment period, if EPA determines it is still appropriate to partially delete the northern 62-acre parcel of the AT&SF Albuquerque Superfund Site, the Regional Administrator will publish a final Notice of Partial Deletion in the Federal Register . Public notices, public submissions and copies of the Responsiveness Summary, if prepared, will be made available to interested parties and included in the Site information repositories listed above.

Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the northern 62-acre parcel of the AT&SF Albuquerque Superfund Site from the NPL.

The AT&SF Albuquerque Superfund Site (Site) is located at 3300 Second Street, SW., in the South Valley area of the City of Albuquerque, Bernalillo County, New Mexico. It is the location of the former The Atchison, Topeka and Santa Fe Railway Company Tie Treating Plant (facility) where creosote and other compounds were used in the wood preservation process. The Burlington Northern and Santa Fe Railway Company (BNSF Railway), a successor railroad corporation to the Atchison, Topeka and Santa Fe Railway Company (AT&SF) and a wholly owned subsidiary of the Burlington Northern Santa Fe Corp., is the owner of the Site. Although, the Site encompasses approximately 89 acres, the former treatment process area was primarily located on the southern 27-acre parcel, and the tie storage area was primarily located on the northern 62-acre parcel. A detailed map and coordinates of the northern 62-acre parcel (actual size is 62.6121 acres) is located in the deletion docket. The Site was proposed for inclusion on the EPA NPL October 14, 1992 [57 FR 47204] and made final on December 16, 1994 [59 FR 65212, 65221 (December 16, 1994)]. The EPA Site Identification number is NMD980622864.

The facility operated as a wood pressure treatment plant from March 1908 to January 1972. The facility primarily used creosote and creosote petroleum mixtures for the manufacture of pressure treated wood products, including railroad cross ties, bridge ties, switch ties, bridge timbers, road crossing materials, bridge piling materials, lumber, stock pen posts and fence posts. From 1914 through 1926, some materials were treated with zinc chloride, followed by a creosote-petroleum mixture. Additionally, documents from the 1950s and early 1960s refer to experiments and small scale projects performed using solutions containing 2% to 10% pentachlorophenol. In 1972, the plant was totally dismantled, and the only physical feature remaining on-site was the wastewater reservoir/wastewater sump.

The Site can be divided into five general areas of environmental impacts from the plant's former wood treating operations. The plant treatment process area covered approximately 27 acres of the facility and included four areas of environmental impact: The wood treatment area, the drip tracks, the wastewater reservoir, and the wastewater discharge ditch. The remaining area of environmental impact was the tie storage area which was located on the northern 62 acres. The northern 62 acres is the area proposed for partial deletion; therefore, the following discussion pertains to actions taken on the northern 62-acre parcel.

In 1996, three areas were excavated from the northern 62-acre tie storage area, and were backfilled with clean soil after confirmation testing.

In 1987, approximately 25 acres of the northern 62-acre tie storage area were redeveloped for industrial purposes by BNSF. This redevelopment occurred when an auto unloading facility, with an associated intermodal ramp for unloading and loading containers and trailers on railcars, was built. It is an active facility currently in operation. The northern 62-acre parcel also includes an estimated 17- to 20-acre parcel under consideration for purchase by an industrial concrete distribution company (company). BNSF and the company retain an open dialogue regarding the potential parcel sale and redevelopment.

The field investigation was considered a comprehensive approach that addressed the Site as one operable unit. From 1987 to 1999, five distinct phases of investigation were completed to define the extent of impact on soil and ground water. The field activities included sampling and characterization through geophysical surveys, hand auger, direct push, cone penetrometer, drill rig, ground water monitoring well installation (permanent and temporary), aquifer tests, and ground water modeling.

The CERCLA RI/FS for the Site was conducted under an Administrative Order on Consent entered between the EPA and AT&SF (now BNSF) in 1994. The RI/FS was completed by TRC Environmental Corporation in 2001 for BNSF and was approved by the EPA. Among the findings of the RI/FS was the fact that most of the organic contamination found at the Site occurs as a dense non-aqueous phase liquid (DNAPL) containing organic compounds that slowly dissolve into the ground water and preferentially adsorb to soil particles in the aquifer matrix. The RI report indicates that DNAPL is present in the subsurface as either “free phase” or “residual phase”. The free phase is that portion of the DNAPL that can continue to migrate and sink into the aquifer, whereas the residual phase is that portion of the DNAPL that is trapped in pore spaces by capillary forces and cannot generally migrate as a separate liquid. Both occurrences of the DNAPL act as continuing sources of contamination to ground water. The RI estimated that there are between 59,300 and 70,000 gallons of DNAPL associated with the southern 27-acre plant treatment process area and adjacent southern property. No identified DNAPL sources or related ground water contamination were identified in the three ground water zones underlying the northern 62-acre parcel. Ground water contamination associated with the southern 27-acre parcel is not expected to impact the ground water underlying the northern 62-acre parcel due to current ground water flow in the east-southeast direction and the placement of institutional controls restricting ground water extraction within the northern 62-acre parcel.

As expected, the nature of contamination across the Site is fairly typical of a wood treating operation. These contaminants consist of polynuclear aromatic hydrocarbons. In addition, zinc contamination of the soil was identified in the process area. The RI estimated that the volume of contaminated soil was 5,600 cubic yards. Although the plant used pentachlorophenol in the 1960s, its use is not believed to be as significant as the use of other preservatives at the plant, as there have not been significant levels of associated 2,3,7,8-tetrachloro-dibenzo-para-dioxin (TCDD or dioxin) detected in wastes present at the Site. As such, dioxin is not considered a contaminant of concern (COC) at this Site.

The northern 62-acre parcel was used as the tie storage area. This area was where the treated ties were stored and allowed to dry. Releases to this area would be restricted largely to drippings from treated products. Creosote drippings would accumulate at locations where ties were repeatedly stacked, but these accumulations may tend to dry out between loads. With the advent of vapor drying in 1953, the amount of drippings was reduced to some extent.

The tie storage area was investigated in two stages. However, prior to these stages, six shallow boreholes were hand augered to a depth of 18 inches and a composite sample was collected and analyzed for semivolatile organics and arsenic. This was followed by a grid investigation of this area in October 1994, which included an additional 24 locations.

Using a grid layout, 24 shallow hollow-stem auger boreholes were logged continuously to a depth of 5 feet. The first sample was collected from the first natural soil encountered below any fill material, usually at a depth of approximately 3 inches to 2 feet. If a clay or silt layer was encountered in the upper 2 feet of soil, a sample was collected from the top of this layer. Of the 24 sample locations, one sample was collected at each of 19 locations and two samples were collected at each of five locations. Results from the 24 sample locations were compared to the Agency for Toxic Substances and Disease Registry (ATSDR) health-based concentrations for creosote constituents considered by ATSDR to be a potential threat to public health if exceeded. Three locations were identified with concentrations of one or more creosote constituents above the ATSDR health-based concentration. These health-based concentrations were being used as the screening comparison criteria at the time of the 62-acre tie storage area investigation because the preliminary remediation goal (PRG) of 8 mg/kg benzo(a)pyrene (BAP) equivalent had not yet been derived. However, when the PRG was issued, the data from the 24 sample locations were reviewed and compared with the 8 mg/kg BAP equivalent PRG. This resulted in the identification of the same three areas of concern originally identified during the investigation. No additional sample locations exceeded the 8 mg/kg BAP equivalent PRG.

Based upon the results of this first stage, the three areas of concern underwent a second investigation in March 1995. Using the 8 mg/kg BAP equivalent PRG, the soil from areas with high concentrations of creosote constituents was excavated and stockpiled inside the southern 27-acre fenced area to be managed as part of the soil remediation in July 1996. Depths of excavation ranged from 2 to 7 feet, and confirmation samples did not identify exceedances of the PRG of 8 mg/kg BAP equivalent. The highest BAP equivalent reported for soil was 0.572 mg/kg, while the highest zinc concentration reported for soil was 55.6 mg/kg.

The removal of soil from the northern 62-acre tie storage area in 1996 was motivated by BNSF's plans to expand its auto unloading facility. The future land use for this area was anticipated to be industrial. BNSF expected that the available land would be developed into a railroad switching yard and an expansion to the intermodal facility used for unloading automobiles from railcars. However, these plans for construction are no longer considered viable by BNSF.

The Record of Decision (ROD) was signed on June 27, 2002. The principal threat and low-level threat wastes at the Site were to be addressed through in-situ solidification/stabilization and run-off/run-on management for soil; an aggressive performance-based approach for remediation of contaminated ground water consisting of ground water restoration through pump and treat and DNAPL source removal with hot spot treatment; and institutional controls. Based on RI data and subsequent ground water sampling, ground water contamination was not identified under the northern 62-acre parcel. Therefore, the only medium of concern for the northern 62-acre parcel was soil. As such, only the soil remedial action objectives and associated cleanup levels selected in the ROD are presented here. [The ROD was later amended through an Explanation of Significant Differences; however, these changes did not effect the northern 62-acre parcel and were specific to the southern 27-acre parcel.] The selected cleanup levels for soil are 7.8 mg/kg BAP equivalent based on an industrial/commercial use scenario and 200 mg/kg zinc based on an ecological scenario. The selected Remedial Action Objectives for soil included:

• Prevent the ground water from being impacted above the maximum contaminant levels through transport of COCs from the unsaturated zone.

• Prevent storm water runoff from areas that exceed any remediation goals.

• Prevent the inhalation, ingestion, and dermal contact of contaminated soils for future on-site commercial/industrial/utility workers exposed to the soil.

• Prevent contaminated soils from becoming airborne and leaving the Site as dust.

• Prevent ecological receptors from being adversely impacted by on-site contamination.

The selected remedial action (RA) would not result in the Site being available for unlimited use and unrestricted exposure because Site contaminants in the soil will only be addressed to levels protective of future industrial or commercial use. As specified in the ROD, five-year reviews as well as operation and maintenance and institutional controls (ICs) will be necessary for this RA, and will include both the 62- and 27-acre parcels.

On February 27, 2008, an Environmental Protection Easement and Declaration of Restrictive Covenants was filed by BNSF, after approval by EPA and NMED, and recorded by the County Clerk of Bernalillo County, New Mexico. These ICs run with the land and restrict the use or development of the Site property and the use or development of ground water on or underlying the property. Specifically, the ICs prevent any use or development that would threaten or damage remedial components on the Site, which would include potential damage to the cap or underlying in-situ solidified/stabilized contaminated soil. Further, at least 30 days prior to any development or property conveyance, the EPA and NMED shall be notified in writing. Further, any development within the 27-acre southern parcel of the Site requires prior EPA review and written approval of development, along with certification that remediation goals have been met. Regardless of any development or property conveyance, BNSF's obligations under the Consent Decree for Site cleanup remain in effect, and the Site, including both the 27- and 62-acre parcels, remains subject to inspections and five-year reviews.

In addition to the Environmental Protection Easement and Declaration of Restrictive Covenants, the New Mexico Office of the State Engineer instituted a temporary IC in the form of a moratorium on new permits for ground water wells within a 200-ft buffer zone of the currently identified ground water plume surface area while remedial action is being performed. This moratorium was filed on January 29, 2009, to protect human health and minimize interference with the ground water remediation activities taking place on the adjacent 27-acre parcel until all ground water remediation goals have been met. This moratorium will remain enforceable until ground water remedial action goals associated with the southern 27-acre parcel are met.

Data collected during the RI, in conjunction with the excavation of soil from the three areas of concern within the northern 62-acre tie storage treatment area, indicate that the soil and ground water meet the cleanup levels established in the ROD. Although a PRG of 8 mg/kg BAP equivalent was used during the RI soil excavation, the RI data and subsequent confirmation sample results were compared with the ROD soil cleanup levels of 7.8 mg/kg BAP equivalent and 200 mg/kg zinc to ensure that the RI soil excavation met the soil cleanup levels in the ROD. The highest BAP equivalent reported for soil was 0.572 mg/kg, while the highest zinc concentration reported for soil was 55.6 mg/kg. These confirmation soil data results meet the ROD cleanup levels. No ground water contamination exceeding the ROD ground water cleanup levels for the northern 62-acre parcel was identified.

Due to its proximity to the adjacent rail line, an estimated 17- to 20-acre parcel of the northern 62-acre parcel is being considered for purchase from BNSF by an industrial concrete distribution company (company). In support of the redevelopment potential and ongoing sales negotiations, the company completed a characterization study of the parcel of interest in 2006 that included both ground water and soil sampling. Ground water data collected from four monitoring wells did not identify ground water contamination areas of concern; however, soil data did identify areas of concern.

In response to the study's finding, BNSF conducted additional soil sampling and remediation activities in 2007. Soil data collected from the 17- to 20-acre parcel exceeded the soil cleanup levels identified in the ROD, and resulted in the excavation of soil and asphalt waste from the northern 62-acre parcel. The excavated material was stockpiled on the southern 27-acre fenced area for inclusion in the soil remediation action. Subsequent confirmation samples from excavated areas indicated that ROD soil cleanup levels were met. The highest BAP equivalent reported for soil was 7.4 mg/kg, and the highest zinc concentration reported for soil was 179 mg/kg.

The quality assurance/quality control (QA/QC) program for the Site was conducted in accordance with the work plans prepared to implement the RI and the RA construction activities. The EPA, in conjunction with NMED, conducted regular oversight throughout the implementation of the RI and remedial activities. Also, EPA and NMED reviewed and commented on all project plans and reports for the Site.

The quality assurance project plan incorporated EPA and State comments and requirements. The EPA and NMED reviewed the RI excavation work, confirmation sample collection, and data analysis completed in 1996. The EPA and NMED reviewed RA construction work completed on the 62-acre parcel in 2007 for compliance with QA/QC protocols. The RI excavation activities at the Site were determined to be consistent with the RI work plans and construction practices, while the 2007 RA construction activities were determined to be consistent with the ROD, and remedial design and RA work plans and specifications. No deviations or non-adherence to QA/QC protocols or specifications were identified.

All sampling equipment was properly maintained, inspected, and decontaminated as necessary during sampling events in accordance with instructions and protocols established in the field sampling plans and quality assurance project plans. The EPA analytical methods and contract laboratory program-like procedures and protocols were used for all confirmation and monitoring samples for soil using a private laboratory contracted by the potentially responsible party (PRP).

Based on remedial, third party, and supplemental Site investigation results, soil excavation on the northern 62-acre parcel addressed all identified soil areas that exceeded the ROD soil cleanup levels of 7.8 mg/kg BAP equivalent and 200 mg/kg zinc. All confirmation sampling results are below the established cleanup level of 7.8 mg/kg BAP equivalent and 200 mg/kg zinc indicating that all soil remedial action objectives have been met. The excavated areas were backfilled with suitable materials meeting Site-specific cleanup levels and graded for proper drainage. In addition, ground water data have not identified areas of ground water contamination beneath the northern 62-acre parcel. The required ICs for protection of human health and the environment were filed on the subject property restricting land and ground water use.

Operation and maintenance actions for the northern 62-acre parcel of the Site proposed for partial deletion are limited. No treated soil repositories are located on this portion of the property and no ground water contamination plumes have been identified there. This portion of the property is currently fenced and partially reused as an auto unloading facility. The 62-acre parcel is under restricted land use (industrial only), and is under restricted ground water use controls which support ongoing remedial actions associated with the southern 27-acre parcel. Site inspections to determine whether land and ground water use restrictions are being met and to confirm that the ICs remain in place will be conducted at a minimum of once per year.

Since hazardous substances remain on-site at levels which do not allow unrestricted use and exposure, the Site's land and ground water use is restricted. The Site is subject to five-year reviews to ensure the continued protectiveness of the remedy consistent with section 121(c) of CERCLA, 42 U.S.C. 9621(c), 40 CFR 300.430(f)(4)(ii), and the current guidance on Five-Year Reviews (EPA 540-R-01-007, OSWER No. 9355.7-03B-P, Comprehensive Five-Year Review Guidance, June 2001). The NCP requires EPA to conduct statutory five-year reviews at sites where, upon attainment of ROD cleanup levels, hazardous substances remain on-site at concentrations which do not allow for unlimited use and unrestricted exposure. Based on the five-year review results, EPA will determine whether human health and the environment continue to be adequately protected by the implemented remedy. The first five-year review will be completed no later than September 29, 2013.

Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Throughout the Site's history, the community has been interested and involved with Site activity. The EPA has kept the community and other interested parties updated on Site activities through informational meetings, fact sheets, and public meetings. Documents in the deletion docket which EPA relied on for recommendation of the deletion from the NPL are available to the public in the information repositories.

In support of the partial deletion proposal, the EPA and NMED held an open house on October 14, 2010. The purpose of the meeting was to present and discuss the partial deletion proposal. A fact sheet on the proposal was also mailed to the community.

The NCP [40 CFR 300.425(e)] states that a site may be deleted from the NPL when no further response action is appropriate. EPA, in consultation with the State of New Mexico, has determined that all appropriate response actions under CERCLA for the northern 62-acre parcel of the AT&SF Albuquerque Superfund Site, other than operation, maintenance, and five-year reviews, have been implemented, and no further response action by the PRP is appropriate.

Background

On March 18, 2010, we listed the southern DPS of Pacific eulachon as threatened under the ESA (75 FR 13012). During the public comment period on the proposed rule to list the southern DPS of eulachon, we requested and received some information on the quality and extent of eulachon freshwater and estuarine habitat (73 FR 13185; March 12, 2008). However, at the time of listing, we concluded that critical habitat was not determinable because sufficient information was not available to: (1) Determine the geographical area occupied by the species; (2) identify the physical and biological features essential to conservation; and (3) assess the impacts of a designation. During promulgation of the final rule to list eulachon, we were working to compile the best available information necessary to consider a critical habitat designation. We have now researched, reviewed and summarized this best available information on eulachon, including recent biological surveys and reports, peer-reviewed literature, the NMFS status report for eulachon (NMFS 2010a), the proposed rule to list eulachon (74 FR 10857; March 13, 2009), and the final listing determination for eulachon (75 FR 13012; March 18, 2010) and had discussions with and considered recommendations by State, Federal, and tribal biologists familiar with eulachon. We used this information to identify the geographical area occupied, specific areas that may qualify as critical habitat for the southern DPS, as well as potential impacts associated with the designation and proposed exclusions.

We considered various alternatives to the critical habitat designation for southern DPS eulachon. The alternative of not designating critical habitat for southern DPS eulachon would impose no economic, national security, or other relevant impacts, but would not provide any conservation benefit to the species. This alternative was considered and rejected because such an approach does not meet the legal requirements of the ESA and would not provide for the conservation of southern DPS eulachon. The alternative of designating all of the areas considered for designation ( i.e., no areas excluded) was also considered and rejected because, for three areas, the benefits of exclusion outweighed the benefits of designation, and NMFS did not determine that exclusion of these areas would significantly impede conservation of the species or result in extinction of the species. The total estimated annualized economic impact associated with the designation of all of the areas considered would be $500,000 (discounted at 7 percent) or $520,000 (discounted at 3 percent).

An alternative to designating critical habitat within all of the areas considered for designation is the designation of critical habitat within a subset of these areas. Under section 4(b)(2) of the ESA, NMFS must consider the economic impacts, impacts to national security, and other relevant impacts of designating any particular area as critical habitat. NMFS has the discretion to exclude an area from designation as critical habitat if the benefits of exclusion ( i.e., the impacts that would be avoided if an area were excluded from the designation) outweigh the benefits of designation ( i.e., the conservation benefits to southern DPS eulachon if an area were designated), so long as exclusion of the area will not result in extinction of the species. Exclusion under section 4(b)(2) of the ESA of one or more of the areas considered for designation would reduce the total impacts of designation. The determination of which units to exclude depends on NMFS' ESA section 4(b)(2) analysis, which is conducted for each area and described in detail in the draft ESA 4(b)(2) report (NMFS, 2010b). Under the preferred alternative we propose to exclude three of the 14 areas considered (we propose to exclude two of the areas completely and part of the third area). The total estimated economic impact associated with this preferred alternative is $460,500 (discounted at 7 percent) or $479,000 (discounted at 3 percent). We determined that the exclusion of these areas would not significantly impede the conservation of southern DPS eulachon nor result in extinction of the species. We selected this as the preferred alternative because it results in a critical habitat designation that provides for the conservation of southern DPS eulachon while reducing other relevant impacts. This alternative also meets the requirements under the ESA and our joint NMFS-U.S. Fish and Wildlife Service (USFWS) regulations concerning critical habitat.

Section 3 of the ESA defines critical habitat as “(i) the specific areas within the geographical area occupied by the species, at the time it is listed * * *, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed * * *, upon a determination by the Secretary that such areas are essential for the conservation of the species.” Section 3 of the ESA (16 U.S.C. 1532(3)) also defines the terms “conserve,” “conserving,” and “conservation” to mean: “to use, and the use of, all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.” Critical habitat cannot be designated in areas outside of U.S. jurisdiction (50 CFR 424.12h). Section 4 of the ESA requires that, before designating critical habitat, we consider economic impacts, impacts on national security, and other relevant impacts of specifying any particular area as critical habitat. The Secretary of Commerce (Secretary) may exclude any area from critical habitat if he determines that the benefits of exclusion outweigh the benefits of designation, unless excluding an area from critical habitat will result in the extinction of the species concerned. Once critical habitat is designated, section 7(a)(2) of the ESA requires that each Federal agency, in consultation with NMFS and with our assistance, ensure that any action it authorizes, funds, or carries out is not likely to result in the destruction or adverse modification of critical habitat. This requirement is additional to the section 7 requirement that Federal agencies ensure their actions do not jeopardize the continued existence of listed species.

Eulachon are an anadromous fish, meaning adults migrate from the ocean to spawn in freshwater creeks and rivers where their offspring hatch and migrate back to the ocean to forage until maturity. Although they spend 95 to 98 percent of their lives at sea (Hay and McCarter 2000), little is known concerning the saltwater existence of eulachon. The species is endemic to the northeastern Pacific Ocean, ranging from northern California to the southeastern Bering Sea in Bristol Bay, Alaska (McAllister, 1963; Scott and Crossman, 1973; Willson et al., 2006). This distribution coincides closely with the distribution of the coastal temperate rain forest ecosystem on the west coast of North America (with the exception of populations spawning west of Cook Inlet, Alaska).

In the portion of the species' range that lies south of the U.S.-Canada border, most eulachon production originates in the Columbia River basin. Within the Columbia River basin, the major and most consistent spawning runs return to the mainstem of the Columbia River and the Cowlitz River. Spawning also occurs in other tributaries to the Columbia River, including the Grays, Elochoman, Kalama, Lewis, and Sandy Rivers (WDFW and ODFW, 2001). Historically, the only other large river basins in the contiguous United States where large, consistent spawning runs of eulachon have been documented are the Klamath River in northern California and the Umpqua River in Oregon. Eulachon have been found in numerous coastal rivers in northern California (including the Mad River and Redwood Creek), Oregon (including Tenmile Creek south of Yachats, OR) and Washington (including the Quinault and Elwha Rivers) (Emmett et al., 1991; Willson et al., 2006).

Major eulachon production areas in Canada are the Fraser and Nass rivers (Willson et al., 2006). Numerous other river systems in central British Columbia and Alaska have consistent yearly runs of eulachon and historically supported significant levels of harvest (Willson et al., 2006; NMFS, 2010a). Many sources note that runs occasionally occur in other rivers and streams, although these tend to be sporadic, appearing in some years but not others, and appearing only rarely in some river systems (Hay and McCarter, 2000; Willson et al., 2006).

Eulachon eggs can vary considerably in size but typically are approximately 1 mm (0.04 in) in diameter and average about 43 mg (0.002 oz) in weight (Hay and McCarter, 2000). Eggs are enclosed in a double membrane; after fertilization in the water, the outer membrane breaks and turns inside out, creating a sticky stalk which acts to anchor the eggs to the substrate (Hart and McHugh, 1944; Hay and McCarter, 2000). Eulachon eggs hatch in 20 to 40 days with incubation time dependent on water temperature (Howell, 2001). Shortly after hatching, the larvae are carried downstream and dispersed by estuarine, tidal, and ocean currents. Larval eulachon may be retained in low salinity, surface waters of estuaries for several weeks or longer (Hay and McCarter, 2000) before entering the ocean. Similar to salmon, juvenile eulachon are thought to imprint on the chemical signature of their natal river basin. However, because juvenile eulachon spend less time in freshwater environments than do juvenile salmon, researchers believe that this short freshwater residence time may cause returning eulachon to stray between spawning sites at higher rates than salmon (Hay and McCarter, 2000).

Once juvenile eulachon enter the ocean, they move from shallow nearshore areas to deeper areas over the continental shelf. Larvae and young juveniles become widely distributed in coastal waters, where they are typically found near the ocean bottom in waters 20 to 150 m deep (66 to 292 ft) (Hay and McCarter, 2000) and sometimes as deep as 182 m (597 ft) (Barraclough, 1964). There is currently little information available about eulachon movements in nearshore marine areas and the open ocean. However, eulachon occur as bycatch in the ocean shrimp ( Pandalus jordani ) fishery (Hay et al., 1999; Olsen et al., 2000; NWFSC, 2008; Hannah and Jones, 2009), which seems to indicate that the distribution of these organisms may overlap in the ocean.

Eulachon typically spend several years in salt water before returning to fresh water to spawn from late winter through early summer. Eulachon are semelparous, meaning that they spawn once and then die. Spawning grounds are typically in the lower reaches of larger rivers fed by snowmelt (Hay and McCarter, 2000). Willson et al. (2006) concluded that the age distribution of eulachon in a spawning run varies considerably, but typically consists of fish that are 2 to 5 years old. Eulachon eggs commonly adhere to sand (Langer et al., 1977) or pea-sized gravel (Smith and Saalfeld, 1955), though eggs have been found on silt, gravel to cobble sized rock, and organic detritus (Smith and Saalfeld 1955, Langer et al., 1977, Lewis et al., 2002). Eggs found in areas of silt or organic debris reportedly suffer much higher mortality than those found in sand or gravel (Langer et al., 1977).

In many rivers, spawning is limited to the part of the river that is influenced by tides (Lewis et al., 2002), but some exceptions exist. In the Berners Bay system of Alaska, the greatest abundance of eulachon are observed in tidally-influenced reaches, but some fish ascend well beyond the tidal influence (Willson et al., 2006). In the Kemano River, Canada, water velocity greater than 0.4 meters/second begins to limit the upstream movements of eulachon (Lewis et al., 2002).

Entry into the spawning rivers appears to be related to water temperature and the occurrence of high tides (Ricker et al., 1954; Smith and Saalfeld, 1955; Spangler, 2002). Spawning generally occurs in January, February, and March in the Columbia River, the Klamath River, and the coastal rivers of Washington and Oregon, and April and May in the Fraser River (NMFS, 2010a). Eulachon runs in central and northern British Columbia typically occur in late February and March or late March and early April. Attempts to characterize eulachon run timing are complicated by marked annual variation in timing. Willson et al. (2006) give several examples of spawning run timing varying by a month or more in rivers in British Columbia and Alaska. Climate change, especially in regards to ocean conditions, is considered a significant threat to eulachon and their habitats and may also be a factor in run timing (NMFS, 2010a). Most eulachon rivers are fed by extensive snowmelt or glacial runoff, so elevated temperatures and changes in snow pack and the timing and intensity of stream flows will likely impact eulachon run timing. There are already indications, perhaps in response to warming conditions and/or altered stream flow timing, that adult eulachon are returning earlier in the season to several rivers within the range of the southern DPS (Moody, 2008).

Water temperature at the time of spawning varies across the distribution of the species. Although spawning generally occurs at temperatures from 4 to 7 °C (39 to 45 °F) in the Cowlitz River (Smith and Saalfeld, 1955), and at a mean temperature of 3.1 °C (37.6 °F) in the Kemano and Wahoo Rivers, peak eulachon runs occur at noticeably colder temperatures (between 0 and 2 °C [32 and 36 °F]) in the Nass River. The Nass River run is also earlier than the eulachon run that occurs in the Fraser River, which typically has warmer temperatures than the Nass River (Langer et al., 1977).

Eulachon adults feed on zooplankton, chiefly eating crustaceans such as copepods and euphausiids, including Thysanoessa spp. (Hay and McCarter, 2000; WDFW and ODFW, 2001), unidentified malacostracans (Sturdevant 1999), and cumaceans (Smith and Saalfeld, 1955). Eulachon larvae and juveniles eat a variety of prey items, including phytoplankton, copepods, copepod eggs, mysids, barnacle larvae, and worm larvae (WDFW and ODFW 2001). Adults and juveniles commonly forage at moderate depths (20-150 m [66-292 ft]) in nearshore marine waters (Hay and McCarter 2000). Eulachon adults do not feed during spawning (McHugh 1939, Hart and McHugh 1944).

In the following sections, we describe the relevant definitions and requirements in the ESA and our implementing regulations and the key methods and criteria used to prepare this proposed critical habitat designation. In accordance with section 4(b)(2) of the ESA and our implementing regulations (50 CFR 424.12), this proposed rule is based on the best scientific information available concerning the southern DPS's present and historical range, habitat, and biology, as well as threats to its habitat. In preparing this rule, we reviewed and summarized current information on eulachon, including recent biological surveys and reports, peer-reviewed literature, NMFS status reviews for southern DPS eulachon (NMFS 2010), the proposed rule to list eulachon (74 FR 10857; March 13, 2009), and the final listing determination for eulachon (75 FR 13012; March 18, 2010). All of the information gathered to create this proposed rule has been collated and analyzed in three supporting documents: The Draft Eulachon Biological Report (NMFS 2010b); the Draft Eulachon Economic Analysis (NMFS 2010c); and, the Draft Eulachon Section 4(b)(2) Report (NMFS 2010d).

We used this information to identify specific areas that may qualify as critical habitat for the southern DPS. We followed a five-step process in order to identify these specific areas: (1) Determine the geographical area occupied by the species, (2) identify physical or biological habitat features essential to the conservation of the species, (3) delineate specific areas within the geographical area occupied by the species on which are found the physical or biological features, (4) determine whether the features in a specific area may require special management considerations or protections, and (5) determine whether any unoccupied areas are essential for conservation. Our evaluation and conclusions are described in detail in the following sections.

We relied on the best available data from commercial and recreational harvest, published literature, field observations (including river sampling with a variety of net types and research trawls), opportunistic sightings, and anecdotal information to determine the geographical area occupied by the southern DPS of eulachon at the time it was listed. The southern DPS ranges from the Skeena River in British Columbia, Canada, to the Mad River in California (NMFS 2010a). We cannot designate areas outside U.S. jurisdiction as critical habitat (see above). Thus, the geographical area under consideration for this designation is limited to areas under the jurisdiction of the United States, south of the international border with Canada, to the Mad River in California. At the time of listing, we had information indicating that the geographical area occupied consists of at least 42 river systems between the international border and the Mad River (NMFS, 2010b). Although eulachon presence has been documented in these systems, most river systems have limited or irregular sampling for eulachon and many other river systems within the range of the DPS have never been sampled. In addition, given the highly migratory nature of eulachon and the lack of published records, we do not know how far offshore southern DPS eulachon are distributed and thus how far offshore the geographical area occupied by the species extends.

Joint NMFS-U.S. Fish and Wildlife Service (USFWS) regulations at 50 CFR 424.12(b) state that in determining what areas are critical habitat, the agencies “shall consider those physical and biological features that are essential to the conservation of a given species and that may require special management considerations or protection”. These include, but are not limited to: “(1) Space for individual and population growth, and for normal behavior; (2) Food, water, air, light, minerals, or other nutritional or physiological requirements; (3) Cover or shelter; (4) Sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and generally: (5) Habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.”

Based on the best available scientific information, we developed a list of physical and biological features essential to the conservation of eulachon and relevant to determining whether occupied areas are consistent with the above regulations and the ESA section (3)(5)(A) definition of “critical habitat.” The physical or biological features essential to the conservation of the southern DPS fall into three major categories reflecting key life history phases of eulachon:

(1) Freshwater spawning and incubation sites with water flow, quality and temperature conditions and substrate supporting spawning and incubation. These features are essential to conservation because without them the species cannot successfully spawn and produce offspring.

(2) Freshwater and estuarine migration corridors free of obstruction and with water flow, quality and temperature conditions supporting larval and adult mobility, and with abundant prey items supporting larval feeding after the yolk sac is depleted. These features are essential to conservation because they allow adult fish to swim upstream to reach spawning areas and they allow larval fish to proceed downstream and reach the ocean.

(3) Nearshore and offshore marine foraging habitat with water quality and available prey, supporting juveniles and adult survival. Juveniles eat phytoplankton, copepod eggs, copepods and other small zooplanktons (including euphausiids; Barraclough, 1964), and adults eat euphausiids and copepods (Hart, 1973). These features are essential to conservation because they allow juvenile fish to survive, grow, and reach maturity, and they allow adult fish to survive and return to freshwater systems to spawn.

The components of the freshwater spawning and incubation essential features include:

Flow: A flow regime ( i.e., the magnitude, frequency, duration, seasonality, and rate-of-change of freshwater discharge over time) that supports spawning, and survival of all life stages. Most spawning rivers experience a spring freshet characteristic of rivers draining large snow packs or glaciers (Hay and McCarter, 2000). In general, eulachon spawn at lower water levels before spring freshets (Lewis et al., 2002). In the Kemano River, Canada, water velocity greater than 0.4 m/s (1.3 ft/s) begins to limit upstream movements (Lewis et al., 2002). Sufficient flow may also be needed to flush silt and debris from spawning substrate surfaces to prevent suffocation of developing eggs.

Water Quality: Water quality suitable for spawning and viability of all eulachon life stages. Sublethal concentrations of contaminants affect the survival of aquatic species by increasing stress, predisposing organisms to disease, delaying development, and disrupting physiological processes, including reproduction. Adult eulachon can take up and store pollutants from their spawning rivers, despite the fact that they do not feed in fresh water and remain there only a few weeks (Rogers et al., 1990; WDFW and ODFW, 2001). Eulachon have also been shown to avoid polluted waters when possible (Smith and Saalfeld 1955).

Water Temperature: Suitable water temperatures, within natural ranges, in eulachon spawning reaches. Water temperature between 4 °C and 10 °C (39 °F and 50 °F) in the Columbia River is preferred for spawning (WDFW and ODFW, 2001) although temperatures during spawning can be much colder in northern rivers ( e.g., 0 °C to 2 °C [32 °F to 36 °F] in the Nass River; Willson et al., 2006). High water temperatures can lead to adult mortality and spawning failure (Blahm and McConnell, 1971).

Substrate: Spawning substrates for eulachon egg deposition and development. Spawning substrates typically consist of silt, sand, gravel, cobble, or detritus (NMFS 2010a). However, pea sized gravel (Smith and Saalfeld, 1955) and coarse sand (Langer et al., 1977) are the most commonly used. Water depth for spawning can range from 8 cm (3 in) to at least 7.6 m (25 ft) (Willson et al., 2006).

The components of the freshwater and estuarine migration corridor essential feature include:

Migratory Corridor: Safe and unobstructed migratory pathways for eulachon adults to pass from the ocean through estuarine areas to riverine habitats in order to spawn, and for larval eulachon to access rearing habitats within the estuaries and juvenile and adults to access habitats in the ocean. Lower reaches of larger river systems ( e.g., the Columbia River) are used as migration routes to upriver or tributary spawning areas. Out-migrating larval eulachon are distributed throughout the water column in some rivers ( e.g., the Fraser River) but are more abundant in mid-water and bottom portions of the water column in others ( e.g., the Columbia River; Howell et al., 2001).

Flow: A flow regime ( i.e., the magnitude, frequency, duration, seasonality, and rate-of-change of freshwater discharge over time) that supports spawning migration of adults and outmigration of larval eulachon from spawning sites. Most eulachon spawning rivers experience a spring freshet (Hay and McCarter, 2000) that may influence the timing of spawning adult migration. In general, eulachon spawn at low water levels before spring freshets (Lewis et al., 2002). In the Kemano River water velocity greater than 0.4 m/s (1.3 ft/s) begins to limit upstream movements (Lewis et al., 2002).

Water Quality: Water quality suitable for survival and migration of spawning adults and larval eulachon. Adult eulachon can take up and store pollutants from their spawning rivers, despite the fact that they do not feed in fresh water and remain there only a few weeks (Rogers et al., 1990; WDFW and ODFW, 2001). Eulachon avoid polluted waters when possible (Smith and Saalfeld, 1955).

Water Temperature: Water temperature suitable for survival and migration. Eulachon run timing may be influenced by water temperature (Willson et al., 2006), and high water temperatures can increase adult mortality (Blahm and McConnell, 1971). Given the range of temperatures in which eulachon spawn, Langer et al. (1977) suggested that the contrast between ocean and river temperatures might be more critical than absolute river or ocean temperatures.

Food: Prey resources to support larval eulachon survival. Eulachon larvae need abundant prey items (especially copepod larvae; Hart, 1973) when they begin exogenous feeding after the yolk sac is depleted. Eulachon yolk sac can be depleted between 6 and 21 days after hatching (Howell, 2001), and larvae may be retained in low salinity, surface waters of the natal estuary for several weeks or longer (Hay and McCarter, 2000), making this an important component in migratory corridor habitat.

The components of the nearshore and offshore marine foraging essential feature include:

Food: Prey items, in a concentration that supports foraging leading to adequate growth and reproductive development for juveniles and adults in the marine environment. Juveniles eat phytoplankton, copepod eggs, copepods and other small zooplankton (including euphausiids; Barraclough, 1964), and adults eat euphausiids and copepods (Hart, 1973).

Water Quality: Water quality suitable for adequate growth and reproductive development. The water quality requirements for eulachon in marine habitats are largely unknown, but they would likely include adequate dissolved oxygen levels, adequate temperature, and lack of contaminants (such as pesticides, organochlorines, elevated levels of heavy metals) that may disrupt behavior, growth, and viability of eulachon and their prey.

After determining the geographical area occupied by the southern DPS of eulachon, and the physical and biological features essential to their conservation, we next identified the specific areas within the geographical area occupied by the species that contain the essential features. All of the essential physical and biological features we identified within the freshwater and estuarine environment are within specific areas associated with spawning, or with migrations related to spawning events. In order to delineate specific areas where the spawning sites and migration corridors occur, we relied on evidence of eulachon spawning and migration. To ensure that our selection of the specific areas was based on the best available information we developed two criteria to identify areas where spawning, and spawning migration, occurs. These criteria are sites that contain: (1) Larval fish or pre-/post-spawn adults that have been positively identified and documented; or (2) commercial or recreational catches that have been documented over multiple years. Within the geographic area occupied by the southern DPS, there are 42 creeks and rivers with documented presence of eulachon (NMFS, 2010a). Of these, we identified 14 that meet at least one of the criteria for spawning.

We next considered the distribution of the essential features within these creeks or rivers. We again used evidence of eulachon spawning and spawning migration to delineate the extent of the specific areas where the spawning sites and spawning migration corridors are found. We relied on data from published literature, field observations (including river sampling with a variety of net types), opportunistic sightings, commercial and recreational harvest, and anecdotal information. Given the extremely limited sampling done for this species, we chose to rely on the most recent information available to us to determine which areas were eligible for designation. For some creeks and rivers, opportunistic sightings are the only information that is available to identify the distribution of the essential features, and in these cases we relied on the best professional judgment of agency and tribal biologists familiar with the area to identify the extent of the essential features.

The 14 specific freshwater and estuarine areas which contain one or more of the essential physical or biological features are described below and summarized in Table 1, which appears at the end of the Special Management Considerations section. The draft biological report (available via the internet and by contacting NMFS; see ADDRESSES ) provides more detailed information on each specific area, including a description of the essential physical and biological features, special management considerations or protection that may be needed, and the presence and distribution of southern DPS eulachon.

(1) Mad River, CA: The Mad River is located in northwestern California. It flows for 150 km (95 mi) in a roughly northwest direction through Trinity and Humboldt Counties, draining a 1,290 km 2 (497 mi 2 ) basin into the Pacific Ocean near McKinleyville, California. The river's headwaters are in the Coast Range mountains near South Kelsey Ridge.

Eulachon consistently spawned in large numbers in the Mad River as recently as the 1960s and 1970s (Moyle et al., 1995; Moyle, 2002; NMFS, 2010a). However, in recent years eulachon numbers have declined, and they are now considered rare (Sweetnam et al., 2001). Based on observations by the California Department of Fish and Game (CDFG), spawning occurs as far upstream as the confluence with the North Fork of the Mad River (CDFG, 2009). The river below this point contains overlapping spawning and incubation sites and migration corridor features.

(2) Redwood Creek, CA: Redwood Creek is located entirely in Humboldt County, in northwestern California. The basin is approximately 105 km (65 mi) long, and drains approximately 738 km 2 (285 mi 2 ), most of which is forested and mountainous terrain (Cannata et al., 2006).

Eulachon have been reported from Redwood Creek by a variety of sources (Young, 1984; Ridenhour and Hofstra, 1994; Moyle et al., 1995; Larson and Belchik, 1998), and runs large enough to be noted in available local newspaper accounts occurred in 1963 and 1967. Eulachon returns to Redwood Creek have declined drastically in recent years, and they are now considered rare (Sweetnam et al., 2001). Although the species is not currently targeted in sampling efforts, CDFG reported that during the early 1970s eulachon regularly spawned between the ocean and the mouth of Prairie Creek (the first major tributary on Redwood Creek; Moyle et al., 1995) indicating that this area contains the spawning and incubation, and migration corridor essential features. Spawning also occurred in the lower 0.5 km (0.3 mi) of Prairie Creek (Moyle et al., 1995), however eulachon have not been seen in Prairie Creek since the 1970s.

The lower reach of Redwood Creek alternates between an open estuary and a closed coastal lagoon depending on the season. During early summer a sand bar typically forms across the river mouth creating a lagoon. Rains during the fall typically clear the sand bar away and open up the river mouth to the ocean (Cannata et al., 2006).

(3) Klamath River, CA: The Klamath River basin drains approximately 25,100 km 2 (9,690 mi 2 ) in southern Oregon and northern California, making it the second largest river in California (after the Sacramento River). Historically, the Klamath River has been a major producer of anadromous fish, and once was the third most productive salmon and steelhead fishery in the continental United States, prior to recent significant declines (Powers et al., 2005).

Historically, large aggregations of eulachon consistently spawned in the Klamath River, and a commercial fishery occurred there in 1963. During the spawning run, fish were regularly caught from the mouth of the river upstream to Brooks Riffle, near the confluence with Omogar Creek (Larson and Belchik, 1998), indicating that this area contains the spawning and incubation, and migration corridor essential features.

The only reported commercial catch of eulachon in Northern California occurred in 1963 when a combined total of 25 metric tons (56,000 lbs) was landed from the Klamath River, the Mad River, and Redwood Creek (Odemar, 1964). Since 1963, the run size has declined to the point that only a few individual fish have been caught in recent years. According to accounts of Yurok Tribal elders, the last noticeable runs of eulachon were observed in the Klamath River in 1988 and 1989 by tribal fishers (Larson and Belchik, 1998). However, in January 2007, six eulachon were reportedly caught by tribal fishers on the Klamath River (Yurok Tribe, 2008). Larson and Belchik (1998) report that eulachon have not been of commercial importance in the Klamath in recent years and are unstudied as to their current run strengths.

Approximately 68 km (42 mi) of the lower Klamath River is bordered by the Yurok Indian Reservation. The lower Klamath River is listed as a National Wild and Scenic River from the mouth, upstream to just below Iron Gate Dam, for a total of 460 km (286 mi). Of these, 19 km (12 mi) are designated Wild, 39 km (24 mi) are designated Scenic, and 402 km (250 mi) are designated Recreational.

(4) Umpqua River/Winchester Bay, OR: The Umpqua River Basin consists of a 10,925 km 2 (4,220 mi 2 ) drainage area comprised of the main Umpqua River, the North Umpqua River, the South Umpqua River, and associated tributary streams (Snyder et al. 2006). The Umpqua River drains a varied landscape, from steep-sloped uplands, to low gradient broad floodplains. Upstream, the Umpqua River collects water from tributaries as far east as the Cascade Mountains.

Historically, a large and consistent run of eulachon returned to the Umpqua River, and both recreational and commercial fisheries occurred. The Umpqua River eulachon sport fishery was active for many years during the 1970s and 1980s, with the majority of fishing activity centered near the town of Scottsburg. A commercial fishery also harvested eulachon during that time. The Oregon Fish Commission (1970) reported that from four to five thousand pounds of eulachon were landed by two commercial fishermen in the Umpqua River during 31 days of drift gill net fishing from late December 1966 to mid-March 1967. Numbers of fish returning to the Umpqua seem to have declined in the 1980s and do not appear to have rebounded to previous levels. Johnson et al. (1986) list eulachon as occurring in trace amounts in their trawl and beach-seine samples from April 1977 to January 1986. Williams (2009) reported on the results of seine collections conducted during March to November from 1995 to 2003 in Winchester Bay estuary on the Lower Umpqua River, which confirmed the presence of eulachon in four of the years in which sampling occurred.

Eulachon have been documented in the lower Umpqua River during spawning, from the mouth upstream to the confluence of Mill Creek, just below Scottsburg (Williams, 2009). This indicates that the area downstream from this confluence contains the spawning and incubation, and migration corridor essential features.

(5) Tenmile Creek, OR: The Tenmile Creek watershed lies entirely within Lane County, Oregon and encompasses approximately 60 km 2 (23 mi 2 ) on the central Oregon Coast (Johnson, 1999). The watershed is in a unique location, between the Cummins Creek and Rock Creek wilderness areas. Together, this area is part of the largest remaining contiguous coastal temperate forest in the Pacific Northwest.

Eulachon are regularly caught in salmonid smolt traps operated in the lower reaches of Tenmile Creek by the Oregon Department of Fish and Wildlife (ODFW). During previous sampling efforts, 80-90 percent of the eulachon captured in the traps were spawned out and several fish were found dead (Williams, 2009). Given the timing of the sampling (February to May), it is very likely that spawning occurs regularly in Tenmile Creek. It is not known how far adult eulachon ascend the creek to spawn, but the location of the ODFW trap (just upstream of the Highway 101 bridge) is the confirmed upstream extent of adult eulachon in spawning condition, and we conclude that the specific area containing spawning and incubation sites extends upstream at least to this point (ODFW, 2009).

(6) Sandy River, OR: The Sandy River and its tributaries drain 1,316 km 2 (508 mi 2 ). Most of the headwaters of the Sandy River are within Clackamas County, while the lower mainstem of the river lies within Multnomah County. The Sandy River originates from glaciers on Mount Hood and flows for 90 km (56 mi) to join the Columbia River near the City of Troutdale (Sandy River Basin Watershed Council, 1999). The segment of the Sandy River from Dodge Park to Dabney State Park was designated as a National Wild and Scenic River in October 1988.

Large commercial and recreational fisheries have occurred in the Sandy River in the past. The most recent commercial harvest in the Sandy River was in 2003 and resulted in a catch of 10,400 kg (23,000 lbs) (JCRMS 2009). During spawning, eulachon extent in the Sandy River is typically upstream to the confluence with Gordon Creek at river km 21 (river mi 13) (Anderson 2009), indicating that this area contains the spawning and incubation, and migration corridor essential features.

(7) Lower Columbia River, OR and WA: The lower Columbia River and its tributaries support the largest known spawning run of eulachon. The mainstem of the lower Columbia River provides spawning and incubation sites, and a large migratory corridor to spawning areas in the tributaries. Major tributaries of the Columbia River that have supported eulachon runs in the past include the Grays, Elochoman, Cowlitz, Kalama and Lewis Rivers in Washington and the Sandy River in Oregon (the Columbia River tributaries in Washington State are discussed below as separate specific areas).

Although direct estimates of adult spawning stock abundance in the Columbia River are unavailable, records of commercial fishery landings begin in 1888 and continue as a nearly uninterrupted data set to present (NMFS, 2010a). A large recreational dipnet fishery, for which catch records have not been maintained, has taken place concurrent with the commercial fishery (WDFW and ODFW, 2001). However, the dipnet fishery takes place almost entirely within the tributaries. During spawning, adult eulachon are found in the lower Columbia River from the mouth of the river to immediately downstream of Bonneville Dam (WDFW and ODFW, 2008), indicating that the area contains the essential feature of migration corridors. Eulachon eggs have been collected, and spawning presumed, from river km 56 (river mi 35) to river km 117 (river mi 73) (Romano et al., 2002) indicating that this area contains the spawning and incubation essential feature. However, due to the limited range of the study, the entire range of eulachon spawning in the mainstem of the Columbia River remains unknown (Romano et al., 2002). Prior to the construction of Bonneville Dam, eulachon ascended the Columbia River as far as Hood River, Oregon (Smith and Saalfeld, 1955). An extensive fish passage facility is installed at the dam, however eulachon have not been reported upstream of Bonneville Dam since 1953 (FCO, 1953), and it is uncertain whether they can navigate the facility.

The Columbia River, estimated to have historically represented half of the species' abundance, experienced a sudden decline in its commercial eulachon fishery landings in 1993-1994 (WDFW and ODFW, 2001; JCRMS, 2009). Commercial catch levels were consistently high (usually greater than 500 metric tons [550 tons] and often greater than 1,000 metric tons [1,100 tons]) for the three quarters of a century from about 1915 to 1992. In 1993, catches declined greatly to 233 metric tons (257 tons) and to an average of less than 40 metric tons (44 tons) between 1994 and 2000. From 2001 to 2004, the catches increased to an average of 266 metric tons (293 tons), before falling to an average of less than 5 metric tons (5.5 tons) from 2005 to 2008. Some of this pattern is due to fishery restrictions put in place in response to the apparent sharp declines in the species abundance. Persistent low returns and landings of eulachon in the Columbia River from 1993 to 2000 prompted the states of Oregon and Washington to adopt a Joint State Eulachon Management Plan in 2001 that provides for restricted harvest management when parental run strength, juvenile production, and ocean productivity forecast a poor return (WDFW and ODFW, 2001). Despite a brief period of improved returns in 2001-2003, the returns and associated commercial landings have again declined to the very low levels observed in the mid-1990s (JCRMS, 2009), and since 2005, the fishery has operated at the most conservative level allowed in the Joint State Eulachon Management Plan (JCRMS, 2009).

(8) Grays River, WA: The Grays River watershed is located in Pacific and Wahkiakum counties, in Washington State. The Grays River is a tributary of the Columbia River, which it enters near the town of Oneida, Washington. The Grays River watershed encompasses 322 km 2 (124 mi 2 ) (May and Geist, 2007).

From 1980 to 1989 the annual commercial harvest of eulachon in the Grays River varied from 0 to16 metric tons (0 to 35,000 lbs.). No commercial harvest has been recorded for the Grays River from 1990 to the present but larval sampling has confirmed successful spawning in recent years ( e.g., 2009; JCRMS, 2009). During spawning, eulachon typically ascend the river as far as 17.3 km (10.8 miles), to the covered bridge near the unincorporated town of Grays River, WA (Anderson, 2009), indicating that this area contains the spawning and incubation, and migration corridor essential features.

(9) Elochoman River, WA: The Elochoman River is a tributary of the Columbia River in southwest Washington and it originates in the Willapa Hills. The watershed lies within Lewis, Cowlitz, and Wahkiakum counties and flows generally south to the Columbia River. The combined Elochoman/Skamokawa watershed area is approximately 422 km 2 (163 mi 2 ) with the Elochoman accounting for the majority of the area (LCFRB, 2004a).

Eulachon spawn occasionally in the Elochoman River, although there is no history of commercial or recreational harvest of eulachon for the Elochoman River. Sampling of outmigrating larval eulachon by WDFW has confirmed spawning in the river 6 times in the last 15 years, most recently in 2008 (JCRMS, 2009). WDFW has documented spawning eulachon as far as 3.2 km (2 mi) up the lower Elochoman River to the Washington State Highway 4 bridge crossing (Anderson, 2009), indicating that this area contains the spawning and incubation, and migration corridor essential features. If eulachon ascend the river beyond this point, the water intake dam at the old Beaver Creek Hatchery (located on the Elochoman River at river km 8 [river mi 5]) may be a barrier to any further upstream migration of eulachon (Wade, 2002).

(10) Cowlitz River, WA: The Cowlitz River flows from its source on the west slope of the Cascade Mountains through the towns of Kelso and Longview, WA, and empties into the Columbia River about 109 km (68 mi) upstream from the Pacific Ocean. The Cowlitz River drains approximately 6,400 km 2 (2,480 mi 2 ) over a distance of 243 km (151 mi) (Dammers et al., 2002). Principal tributaries to the Cowlitz River include the Coweeman, Toutle, Tilton, and Cispus Rivers.

The Cowlitz River is likely the most productive and important spawning river for eulachon within the Columbia River system (Wydoski and Whitney, 2003). Spawning adults typically move upstream about 26 km (16 mi) to the town of Castle Rock, WA or beyond to the confluence with the Toutle River. Adults are regularly sighted from the mouth of the river to 55 km (34 mi) upstream (near the town of Toledo, WA). Eulachon are occasionally sighted as far as 80 km (50 mi) upstream, to the barrier dam at the Cowlitz Salmon Hatchery (WDFW and ODFW, 2008; Anderson, 2009), indicating that this area contains the spawning and incubation, and migration corridor essential features.

The Cowlitz River currently has 3 major hydroelectric dams and several small-scale hydropower and sediment retention structures located on tributaries within the Cowlitz Basin. Mayfield Dam is located at river km 84 (river mi 52) and is a complete barrier to upstream migration of anadromous fishes (LCFRB, 2004b) (although the salmon hatchery barrier dam at river km 80 (river mi 50) may also be a complete barrier to eulachon).

(11) Kalama River, WA: The Kalama River basin is a 531 km 2 (205 mi 2 ) watershed extending from the southwest slopes of Mount St. Helens to the Columbia River (LCFRB, 2004e). The headwaters of the Kalama River begin in Skamania County, WA, but the majority of the 72 km (45 mi) river flows within Cowlitz County. At river km 16 (river mi 10), a concrete barrier dam and fish ladder prevent upstream movement of all anadromous fishes with the exception of summer steelhead and spring Chinook salmon (LCFRB, 2004c).

The extent of spawning within the Kalama River is from the confluence with the Columbia River to the Modrow Bridge (Anderson, 2009) at river km 4.5 (river mi 2.8), indicating that this area contains the spawning and incubation, and migration corridor essential features. Although the last commercial harvest of eulachon in the Kalama River occurred in 1993, sampling for larval eulachon has confirmed spawning in the Kalama River as recently as 2002 (JCRMS, 2009).

(12) Lewis River, WA: The Lewis River enters the Columbia River 104 km (87 mi) upstream from the mouth of the Columbia River, a few kilometers north of the town of Ridgefield, Washington. The majority of the 1,893 km 2 (731 mi 2 ) watershed lies within Lewis and Skamania Counties (LCFRB, 2004d). Although generally not considered as large a eulachon run as the Cowlitz River, the Lewis River has produced very large runs periodically. Nearly half of the total commercial eulachon catch for the Columbia River Basin in 2002 and 2003 came from the Lewis River. Larval eulachon are caught in WDFW sampling on the Lewis River, including during the past three years (2007-09) (JCRMS, 2009). During spawning, eulachon typically move upstream in the Lewis River about 16 km (10 mi; to Eagle Island), but they have been observed upstream to the Merwin Dam (31.4 km [19.5 mi] from the mouth of the river) (WDFW and ODFW, 2008; Anderson, 2009) indicating that this area contains the spawning and incubation, and migration corridor essential features.

Merwin Dam is 240 feet high and was completed in 1931. The dam presents a passage barrier to all anadromous fish, including eulachon (LCFRB, 2004d). We are unable to find information to determine whether eulachon ascended the river beyond river km 31.4 (river mi 19.5) prior to construction of the dam.

(13) Quinault River, WA: The headwaters of the Quinault River originate in the Olympic Mountains within Olympic National Park. The river then crosses into the Quinault Indian Reservation where it flows into Lake Quinault. Downstream of the lake, the Quinault River remains within the Quinault Indian Reservation for another 53 km (33 mi) to the Pacific Ocean. The total watershed area is 1,190 km 2 (460 mi 2 ) (Smith and Caldwell, 2001).

Although there is currently no monitoring for eulachon in the Quinault River, WDFW and ODFW (2001) reported that eulachon “were noted in large abundance in the Quinault” River in 1993. A noticeable number of eulachon make an appearance in the Quinault River, and to a lesser extent the Queets River, at 5 to 6 year intervals and were last observed in the Quinault River in the winter of 2004-2005 (Quinault Indian Nation, 2008). There is very little information on eulachon spawning distribution in the Quinault River, but tribal fishermen targeting eulachon typically catch fish in the lower three miles of the river (Quinault Indian Nation, 2008). It is reasonable to conclude that this area contains the spawning and incubation, and migration corridor essential features.

Although eulachon are currently only occasionally recorded in the Quinault River, during the late 19th and early 20th century eulachon were regularly caught by members of the Quinault Indian Tribe (Willoughby, 1889; Olson, 1936). Fish were typically taken in the ocean surf but often ascended the river for several miles (Olson, 1936). Olson (1936) reported that there was usually a large run of eulachon in the Quinault River every three or four years, and the run timing varied, usually occurring between January and April. The Washington Department of Fisheries annual report for 1960 (Starlund, 1960) listed commercial eulachon landings in the Quinault River in 1936, 1940, 1953, 1958 and 1960. The commercial catches ranged from a low of 61 kg (135 lbs.) in 1960, to a high of 42,449 kg (93,387 lbs.) in 1953.

Nearly half of the watershed lies within Olympic National Park, under the jurisdiction of the National Park Service, while the Quinault Indian reservation comprises about one third (32 percent) of the watershed, including most of the area downstream of Lake Quinault (Quinault Indian Nation and U.S. Forest Service, 1999). The U.S. Forest Service manages 13 percent of the watershed, and private landholdings comprise only 4 percent of the lands in the watershed (Smith and Caldwell, 2001).

(14) Elwha River, WA: The Elwha River mainstem is approximately 72 km (45 mi) long, and it drains 831 km 2 (321 mi 2 ) of the Olympic Peninsula. A majority of the drainage (83 percent) is within Olympic National Park (Elwha-Dungeness Planning Unit, 2005). The historical condition of the river has been altered by two major hydroelectric developments: the Elwha Dam and the Glines Canyon Dam (located just upstream of the Elwha Dam).

In 2005, eulachon were observed in the Elwha River for the first time since the 1970s (Shaffer et al., 2007). Since 2005, adult eulachon have been captured in the Elwha River every year (2006-2010) (Lower Elwha Klallam Indian Tribe, 2010). Several of the fish captured in 2005 were ripe (egg-extruding) females, indicating that eulachon likely spawn in the Elwha River. The Elwha Dam serves as a complete barrier to upstream fish migration, and thus it is reasonable to assume that the spawning and incubation, and migration corridor essential features only extend to that point in the Elwha River. It is not known if eulachon ascended the Elwha River beyond river km 7.9 (river mi 4.9) prior to the construction of the Elwha Dam, and it is also not known if the portion of the river above Elwha Dam will provide the physical and biological features essential to eulachon once the dam is removed. As part of a comprehensive restoration of the watershed's ecosystem and its fisheries, the Elwha and Glines Canyon dams were acquired by the Federal government in 2000 and their removal is scheduled to begin in 2011.

All Areas: We delineated each specific area as extending from the mouth of the river or creek (or its associated estuary when applicable) upstream to a fixed location. We delineated the upstream extent based on evidence of eulachon spawning or presence, or the presence of an impassable barrier. The boundary at the mouth of each specific area was defined by the demarcation lines which delineate “those waters upon which mariners shall comply with the International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS) and those waters upon which mariners shall comply with the Inland Navigation Rules” (33 CFR 80.01). For those specific areas that do not have a COLREGS line delineated, the boundary at the mouth of those specific areas was defined as a line drawn from the northernmost seaward extremity of the mouth of the creek or river to the southernmost seaward extremity of the mouth (with the exception of the boundary at the mouth of the Elwha River, which was defined as a line drawn from the easternmost seaward extremity of the mouth of the river to the westernmost seaward extremity of the mouth).

Nearshore and offshore marine foraging habitat is essential for juvenile eulachon to survive and grow to adulthood, and for adults to survive and reproduce. At this time we have little information on eulachon distribution in marine waters and no information on where eulachon foraging habitat might occur. For these reasons, we are unable to identify any specific areas in marine waters that meet the definition of critical habitat under the ESA. Although we cannot presently identify any specific marine areas where foraging takes place, we will continue to gather information and will consider revising the designation in future rulemaking if new information supports doing so.

Physical or biological features meet the definition of critical habitat if they “may require special management considerations or protection.” Joint NMFS and USFWS regulations at 50 CFR 424.02(j) define “special management considerations or protection” to mean “any methods or procedures useful in protecting physical and biological features of the environment for the conservation of listed species.” We identified a number of activities that may affect the physical and biological features essential to the southern DPS of eulachon such that special management considerations or protection may be required. Major categories of such activities include: (1) Dams and water diversions; (2) dredging and disposal of dredged material; (3) in-water construction or alterations, including channel modifications/diking, shoreline stabilization, sand and gravel mining, and road building and maintenance; (4) pollution and runoff from point and non-point sources including industrial activities, urbanization, grazing, agriculture, and forestry operations; (5) proposed tidal, wind, or wave energy projects; (6) port and shipping terminals; and (7) habitat restoration projects. All of these activities may have an effect on one or more of the essential physical and biological features via their alteration of one or more of the following: stream hydrology; water level and flow; water temperature; dissolved oxygen; erosion and sediment input/transport; physical habitat structure; vegetation; soils; nutrients and chemicals; fish passage; and estuarine/marine prey resources.

In the following paragraphs, we describe the potential effects of certain activities on essential physical or biological features, and we summarize the occurrence of these activities in the specific areas in Table 1 below (examples of activities that may require special management considerations for each of the specific areas are listed in the Draft Eulachon Biological Report (NMFS, 2010b)). This is not an exhaustive list of potential effects, but rather a description of the primary concerns and potential effects that we are aware of at this time and that should be considered in the analysis of these activities under section 7 of the ESA.

(1) Dams and Water Diversions: Physical structures associated with dams and water diversions may impede or delay passage of southern DPS eulachon. The operation of dams and water diversions may also affect water flow, water quality parameters, substrate quality, and depth, and further compromise the ability of adult eulachon to reproduce successfully. Optimum flow and temperature requirements for spawning and incubation are unclear, but effects on water flow and associated effects on water quality ( e.g., water temperature) and substrate composition may affect adult spawning activity, egg viability, and larval growth, development, and survival. Many uncertainties remain about how large-scale hydropower development ( e.g., the Federal Columbia River Power System) affects eulachon habitat.

(2) Dredging: Dredging activities, which include the disposal of dredged material, may affect depth, sediment quality, water quality, and prey resources for eulachon. Dredging and the in-river disposal of dredged material can remove, and/or alter the composition of, substrate materials at the dredge site, as well as bury them at the disposal site (potentially altering the quality of substrate for use as a spawning site). In addition, dredging operations and disposal of dredged materials may result in the re-suspension and spread of contaminated sediments, which can adversely affect eulachon migration and spawning, as well as larval growth and development. The effects of dredging and disposal activities on critical habitat would depend on factors such as the location, seasonality, scale, frequency, and duration of these activities.

(3) In-Water Construction or Alterations: This category consists of a broad range of activities associated with in-water structures or activities that alter habitat within rivers, estuaries, and coastal marine waters. The primary concerns are with activities that may affect water quality, water flow, sediment quality, substrate composition, or migratory corridors. Activities that may affect water quality include the installation of in-water structures (such as pilings) with protective coatings containing chemicals that may leach into the water. Activities that affect flow, sediment quality and substrate composition include those that result in increased erosion and sedimentation (such as road maintenance and construction, bridge construction, construction of levees and other flood control devices, construction or repair of breakwaters, docks, piers, pilings, bulkheads, and boat ramps) and those that directly alter substrates (such as sand and gravel mining or gravel augmentation). Activities that may affect migratory corridors include the construction of in-water structures, such as docks, piers, pilings, and ramps.

(4) Pollution and Runoff: The discharge of pollutants and runoff from point and non-point sources (including but not limited to: Industrial discharges, urbanization, grazing, agriculture, road surfaces, road construction, and forestry operations) can adversely affect the water quality, sediment quality, and substrate composition of eulachon critical habitat. Exposure to contaminants may disrupt eulachon spawning migration patterns, and high concentrations may be lethal to young fish (Smith and Saalfeld, 1955). Excessive runoff may increase turbidity and alter the quality of spawning substrates.

(5) Proposed Tidal, Wind, or Wave Energy Projects: Proposed tidal, wind, or wave energy projects generally require energy generating equipment and supporting structures to be anchored on the bottom. However, there are a wide range of designs currently being tested and potential impacts of individual projects will vary depending on the type of unit being deployed. Proposed projects may be located in coastal marine waters or coastal estuaries. Physical structures associated with tidal, wind, or wave energy projects may impede or delay passage of southern DPS eulachon. In addition, construction and maintenance of these energy projects may require in water construction or alterations, which would include the potential effects described above.

(6) Port and Shipping Terminals: The operation of port and shipping terminals poses the risk of leaks, spills, or pipeline breakage and may affect water quality. Vessel ballast water management (including the introduction of competitors or parasites) may also affect water quality. In addition, activities associated with the construction, operation, and maintenance of port and shipping terminals may affect water quality, sediment quality, and prey resources for larval eulachon. For example, dredging operations and in-water and shoreline construction activities associated with the construction and operation of port and shipping terminals may result in increased erosion and sedimentation, increased turbidity, and the re-suspension of contaminated sediments.

(7) Habitat Restoration Projects: Habitat restoration activities are efforts undertaken to improve habitat, and can include the installation of fish passage structures and fish screens, in-stream barrier modification, bank stabilization, installation of instream structures, such as engineered log jams, substrate augmentation, planting of riparian vegetation, and many other habitat- related activities. Although the primary purpose of these activities is to improve natural habitats for the benefit of native species, these activities nonetheless modify the habitat and need to be evaluated to ensure that they do not adversely affect the habitat features essential to eulachon. While habitat restoration activities would be encouraged as long as they promote the conservation of the species, project modifications in the form of spatial and temporal restrictions may be required as a result of this designation.

Section 3(5)(A)(ii) of the ESA authorizes the designation of “specific areas outside the geographical area occupied at the time [the species] is listed” if these areas are essential for the conservation of the species. Regulations at 50 CFR 424.12(e) emphasize that the agency “shall designate as critical habitat areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.”

Nearly all of the documented historical presence and production of southern DPS eulachon comes from within the geographical area occupied by the southern DPS at the time of listing. Sightings of southern DPS eulachon from creeks or rivers outside of this area have been extremely infrequent, and have consisted of very few fish (NMFS, 2010). Therefore, we do not consider these areas to be essential to the conservation of the southern DPS of eulachon, and thus we are not considering any unoccupied areas as critical habitat for the DPS.

The ESA was amended by the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) to address the designation of military lands as critical habitat. ESA section 4(a)(3)(B)(i) states: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” Department of Defense lands do not overlap with, nor are adjacent to, any areas proposed for designation as critical habitat for the southern DPS so there are no known potential areas that would be removed from designation under ESA Section 4(a)(3)(B)(i).

The foregoing discussion describes the specific areas that fall within the ESA section 3(5) definition of critical habitat and are eligible for designation as critical habitat. Specific areas eligible for designation are not automatically designated as critical habitat. Section 4(b)(2) of the ESA requires the Secretary to first consider the economic impact, impact on national security, and any other relevant impact of designation. The Secretary has the discretion to exclude an area from designation if he determines the benefits of exclusion (that is, avoiding the impact that would result from designation) outweigh the benefits of designation based upon best scientific and commercial data. In adopting this provision, Congress explained that, “[t]he consideration and weight given to any particular impact is completely within the Secretary's discretion.” H.R. Rep. No. 95-1625, at 16-17 (1978). The Secretary may not exclude an area from designation if exclusion will result in the extinction of the species. Because the authority to exclude is discretionary, exclusion is not required for any area.

The first step in conducting an ESA section 4(b)(2) analysis is to identify the “particular areas” to be analyzed. Section 3(5) of the ESA defines critical habitat as “specific areas,” while section 4(b)(2) requires the agency to consider certain factors before designating any “particular area.” Depending on the biology of the species, the characteristics of its habitat, and the nature of the impacts of designation, “specific” areas might be different from, or the same as, “particular” areas. For this designation, we analyzed two types of “particular” areas. Where we considered economic impacts, and weighed the economic benefits of exclusion against the conservation benefits of designation, we used the same biologically based “specific” areas we had identified under section 3(5)(A). Specifically, these areas were the occupied freshwater and estuarine areas that contain the physical and biological features essential to the conservation of the southern DPS of eulachon. However, because upslope and upstream activities can impact critical habitat, we chose to use the watershed (specifically, individual 5th field hydrologic units as designated by the U.S. Geological Survey) as our assessment area for economic impacts (see the draft Economic Analysis Report [NMFS 2010c] for definition of the 5th field hydrologic units and more information). This approach allowed us to most effectively consider the conservation value of the different areas when balancing conservation benefits of designation against economic benefits of exclusion. Where we considered impacts on Indian lands, however, we instead used a delineation of “particular” areas based on ownership or control of the area. Specifically, these particular areas consisted of occupied freshwater and estuarine areas that overlap with Indian lands. (We defined Indian lands in accordance with our past practice, as described in the Draft Eulachon Section 4(b)(2) Report [NMFS 2010d].) This approach allowed us to consider impacts and benefits associated with tribal land ownership and management by Indian tribes. In the future, if we consider impacts and benefits of designation associated with lands covered by a habitat conservation plan (HCP), we will also use a delineation of “particular” areas based on ownership or control of the area.

The primary benefit of designation is the protection afforded under the ESA section 7 requirement that all Federal agencies ensure their actions are not likely to destroy or adversely modify designated critical habitat. This type of benefit is sometimes referred to as an incremental benefit because the protections afforded to the species from critical habitat designation are in addition to the requirement that all Federal agencies ensure their actions are not likely to jeopardize the continued existence of the species. In addition, the designation may enhance the conservation of habitat by informing the public about areas and features important to species conservation. This may help focus and contribute to conservation efforts for eulachon and their habitats.

With sufficient information, it may be possible to monetize these benefits of designation by first quantifying the benefits expected from an ESA section 7 consultation and translating that into dollars. We are not aware, however, of any available data to monetize the benefits of designation ( e.g., estimates of the monetary value of the physical and biological features within specific areas that meet the definition of critical habitat, or of the monetary value of general benefits such as education and outreach). In an alternative approach that we have commonly used in the past, we qualitatively assessed the benefit of designation for each of the specific areas identified as meeting the definition of critical habitat for the southern DPS. Our qualitative consideration began with an evaluation of the conservation value of each area. We considered a number of factors to determine the conservation value of an area, including the quantity and quality of physical or biological features, the relationship of the area to other areas within the DPS, and the significance to the DPS of the population occupying that area.

To evaluate the quantity and quality of features of the specific areas, we considered existing information on the consistency of spawning in each area, the typical size of runs in the area, and the amount of habitat available to and used by eulachon in the area. We found that eulachon habitat and habitat use varies widely among the areas, and may vary within the same area across different years. It is difficult to identify differences between the areas that could be driving variation in run size and frequency, and variation in habitat use. Eulachon spawn in systems as large as the Columbia River (largest river in the Pacific Northwest), and as small as Tenmile Creek (a watershed of 60 km 2 [23 mi 2 ]). While some rivers consistently produce large spawning runs of eulachon ( e.g., the Columbia and Cowlitz Rivers), spawning can be sporadic in others ( e.g. Grays, Kalama, Lewis, Sandy, and Quinault Rivers). Still other areas, either currently or in the past, produce small yet consistent runs of eulachon ( e.g., Tenmile Creek and Elwha River).

Another factor we considered in evaluating the conservation value of the specific areas is the geographic distribution of the areas. Nearly the entire production of southern DPS eulachon in the conterminous United States originates in the 14 specific areas we have identified. These specific areas are widely distributed across the geographic extent of the DPS. Compared to salmon, steelhead, and other anadromous fishes, these relatively small areas historically produced a very large biomass of eulachon. The loss of any one of these areas could potentially leave a large gap in the spawning distribution of the DPS, and the loss to eulachon production could represent a significant impact on the ability of the southern DPS to survive and recover. Utilizing a diversity of stream/estuary sizes across a wide geographic area can be a useful strategy to buffer the species against localized environmental catastrophes (such as the Mount St. Helens eruption of May 18, 1980). For the above reasons, we conclude that all of the specific areas have a high conservation value.

There are many Federal activities that occur within the specific areas that could impact the conservation value of these areas. Regardless of designation, Federal agencies are required under Section 7 of the ESA to ensure these activities are not likely to jeopardize the continued existence of the southern DPS of eulachon. If the specific areas are designated as critical habitat, Federal agencies will additionally be required to ensure their actions are not likely to adversely modify the critical habitat. We grouped the potential Federal activities that would be subject to this additional protection into several broad categories: Dams and water supply, agriculture, transportation, forest management, mining, in-water construction and restoration, water quality management/monitoring, and other activities. (The Draft Economic Analysis [NMFS, 2010c] includes a detailed description of the industry sectors associated with these activities).

The benefit of designating a particular area depends upon the likelihood of a section 7 consultation occurring in that area and the degree to which a consultation would yield conservation benefits for the species. Based on past consultations for other migratory fish species, we estimated that a total of 37.5 actions would require section 7 consultation annually within the particular areas being considered for eulachon critical habitat designation (NMFS, 2010c). The most common activity type subject to consultation would be in-stream work (estimated 13.2 consultations annually), followed by forest management (estimated 6.7 consultations annually) and transportation projects (estimated 6.2 consultations annually). (A complete list of the estimated annual actions, divided by particular area, is included in the Draft Economic Analysis [NMFS, 2010c]). These activities have the potential to adversely affect water quality, sediment quality, substrate composition, or migratory corridors for eulachon. Consultation would yield conservation benefits for the species by preventing or ameliorating such habitat effects.

Section 4(b)(2) of the ESA provides that the Secretary shall consider “the economic impact, impact to national security, and any other relevant impact of specifying any particular area as critical habitat.” The primary impact of a critical habitat designation stems from the requirement under section 7(a)(2) of the ESA that Federal agencies ensure their actions are not likely to result in the destruction or adverse modification of critical habitat. Determining this impact is complicated by the fact that section 7(a)(2) contains the overlapping requirement that Federal agencies must ensure their actions are not likely to jeopardize the species' continued existence. The true impact of designation is the extent to which Federal agencies modify their actions to ensure their actions are not likely to destroy or adversely modify the critical habitat of the species, beyond any modifications they would make because of listing and the jeopardy requirement. Additional impacts of designation include state and local protections that may be triggered as a result of the designation.

In determining the impacts of designation, we predicted the incremental change in Federal agency actions as a result of critical habitat designation and the adverse modification prohibition, beyond the changes predicted to occur as a result of listing and the jeopardy provision. In critical habitat designations for salmon and steelhead (70 FR 52630; September 2, 2005) and for Southern Resident killer whales (71 FR 69054; November 29, 2006), we considered the “coextensive” impact of designation, in accordance with a Tenth Circuit Court decision ( New Mexico Cattle Growers Association v. U.S. Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001)). More recently, however, several courts (including the 9th Circuit Court of Appeals in Arizona Cattlegrowers v. Salazar, 606 F.3d 1160 (9th Cir. 2010); Homebuilders Association of Northern California v. U.S. Fish and Wildlife, 616 F.3d 983 (9th Cir. 2010)) have approved an approach that examines only the incremental impact of designation (see also: Cape Hatteras Access Preservation Alliance v. Norton, 344 F. Supp. 2d 1080 (D.DC 2004)). In more recent critical habitat designations, both NMFS and the USFWS have considered the incremental impact of critical habitat designation (for example, NMFS' designation of critical habitat for the Southern DPS of green sturgeon (74 FR 52300; October 9, 2009); U.S. Fish and Wildlife's designation of critical habitat for the Oregon chub (75 FR 11031; March 10, 2010)). Consistent with this more recent practice, we estimated the incremental impacts of designation, beyond the impacts that would result from the listing and jeopardy provision.

To determine the impact of designation, we examined what the state of the world would be with and without the designation of critical habitat for eulachon. The “without critical habitat” scenario represents the baseline for the analysis. It includes process requirements and habitat protections already afforded eulachon under its Federal listing or under other Federal, state, and local regulations. Such regulations include protections afforded eulachon habitat from other co-occurring ESA listings and critical habitat designations, such as for Pacific salmon and steelhead (70 FR 52630; September 2, 2005), North American green sturgeon (74 FR 52300; October 9, 2009), and bull trout (75 FR 63898; October 18, 2010) (see the Draft Economic Analysis for Eulachon (NMFS, 2010c) for examples of protections for other species that would benefit eulachon). The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for eulachon. The primary impacts of critical habitat designation we found were: (1) The additional administrative effort of including a eulachon critical habitat analysis in section 7 consultations, (2) the project modifications required solely to avoid destruction or adverse modification of eulachon critical habitat, and (3) the perception of Indian tribes that designation of Indian lands is an unwarranted intrusion into tribal sovereignty and self-governance.

To quantify the economic impact of designation, we employed the following three steps:

(1) Define the geographic study area for the analysis, and identify the units of analysis (the “particular areas”). In this case, we defined 5th field hydrologic units that encompass occupied stream reaches as the study area.

(2) Identify potentially affected economic activities and determine how management costs may increase due to the designation of eulachon critical habitat, both in terms of project administration and project modification.

(3) Estimate the economic impacts associated with these changes in management.

We estimated a total annualized incremental administrative cost of approximately $500,000 for designating the 14 specific areas as eulachon critical habitat. The greatest costs are associated with dams and water supply, mining, and forest management activities (see NMFS, 2010c for more details). The Lower Mad River and Columbia River—Hayden Island 5th field hydrologic units have the largest estimated annual impacts ($63,500 and $33,300), due to mining activities and water supply activities, respectively (NMFS, 2010c). For 5th field hydrologic units other than the lower Mad River and Columbia River—Hayden Island, we estimate the incremental impacts of critical habitat designation would be less than $30,000/year.

For the second category of impacts, we identified three areas where critical habitat designation for eulachon might result in modifications to activities beyond those already resulting from the ESA listing of eulachon. Although we could not quantify the economic impacts, we anticipate these costs would be small, for the reasons described below.

(1) Disposal of dredge material in the Lower Columbia River. Eulachon spawning habitat has the potential to be modified by the disposal of dredge material in the Lower Columbia River, particularly if material is disposed in shallow water. If we conclude that disposing of dredge material in shallow water could destroy or adversely modify critical habitat, the U.S. Army Corps of Engineers (USACE) or the party seeking disposal may need to find alternative disposal sites, thereby incurring additional project costs. Because disposal of dredge material in shallow water is already quite limited in the Lower Columbia River and its cost is already relatively high, requiring another disposal method may have minimal added costs.

(2) Elwha River Dam removal. The Elwha and Glines Canyon dams, on the Elwha River, are scheduled for removal beginning in early 2011. Because protections are already in place to reduce the impact of the project on salmonid habitat, consideration of eulachon critical habitat is unlikely to result in recommendations to change the project, except possibly recommendations to make slight changes to the timing of the dam removals. If that were the case, such timing changes would likely have small associated costs.

(3) Mayfield Dam flow regime. As outlined in the eulachon final listing determination (75 FR 13012; March 18, 2010), dams and water diversions are moderate threats to eulachon in the Columbia River Basin. To benefit salmon and steelhead species, Tacoma Power Company currently follows a flow regime for Mayfield Dam on the Cowlitz River. If we conclude the existing flow regime could destroy or adversely modify eulachon critical habitat, Tacoma Power Company may need to change the timing or amount of water releases. This could change the timing of energy production, with an associated decrease in revenue from energy sales. We would expect any such decreases to be small because the effect would be to change the timing of energy production and not the total amount of energy produced.

Without conducting a complete analysis on a specific project, it is difficult to evaluate the extent to which NMFS might recommend changes in any of these activities to avoid destroying or adversely modifying critical habitat. Any changes required solely to avoid destroying or adversely modifying critical habitat would be an impact of designation.

Department of Defense lands do not overlap with, nor are adjacent to, any areas proposed for designation as critical habitat for the southern DPS. Thus, there would be no direct impacts to national security if any of the specific areas were designated as critical habitat.

We identified three rivers with areas under consideration for critical habitat designation that overlap with Indian lands—the Elwha River and Quinault River in Washington, and the Klamath River in California. The Federally-recognized tribes (74 FR 40218; August 11, 2009) potentially affected are the Lower Elwha Tribe, the Quinault Tribe, the Yurok Tribe, and the Resighini Rancheria. In addition to the economic impacts described above, designating these tribes' Indian lands would have an impact on Federal policies promoting tribal sovereignty and self-governance. The longstanding and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the U.S. Government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian tribes and the application of fiduciary standards of due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. Pursuant to these authorities, lands have been retained by Indian tribes or have been set aside for tribal use. These lands are managed by Indian tribes in accordance with tribal goals and objectives within the framework of applicable treaties and laws. Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, outlines the responsibilities of the Federal Government in matters affecting tribal interests (recently confirmed by Presidential Memorandum; 74 FR 57879; November 9, 2009). In addition to Executive Order 13175, we have Department of Commerce direction, via Secretarial Order 3206, stating that Indian lands shall not be designated as critical habitat, nor areas where the “tribal trust resources * * * or the exercise of tribal rights” will be impacted, unless such lands or areas are determined “essential to conserve a listed species.” In such cases we “shall evaluate and document the extent to which the conservation needs of the listed species can be achieved by designating only other lands.”

Designation would also have impacts to NMFS' relationship with the affected tribes. In the decision Center for Biological Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003), the court held that a positive working relationship with Indian tribes is a relevant impact that can be considered when weighing the relative benefits of a critical habitat designation. We contacted the governments of each of the potentially affected tribes to determine what impact a critical habitat designation on Indian lands would have on the working relationship between NMFS and the tribes. All four advised us that they would view critical habitat designation on their lands as an unwanted intrusion, which would have a negative impact on tribal sovereignty and self-governance and on the relationship between the tribe and the agency. This response was consistent with responses NMFS has received from Indian tribes in past designations (for example, the designation of critical habitat for 12 ESUs of West Coast salmon and steelhead (70 FR 52630; September 2, 2005)).

Conservation agreements with non- Federal landowners ( e.g., HCPs) enhance species conservation by extending species' protections beyond those available through section 7 consultations. We have encouraged non-Federal landowners to enter into conservation agreements, based on a view that we can achieve greater species' conservation on non-Federal land through such partnerships than we can through coercive methods (61 FR 63854; December 2, 1996).

Section 10(a)(1)(B) of the ESA authorizes us to issue to non-Federal entities a permit for the incidental take of endangered and threatened species. This permit allows a non-Federal landowner to proceed with an activity that is legal in all other respects, but that results in the incidental taking of a listed species ( i.e., take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity). The ESA specifies that an application for an incidental take permit must be accompanied by a conservation plan, and specifies the content of such a plan. The purpose of such an HCP is to describe and ensure that the effects of the permitted action on covered species are adequately minimized and mitigated, and that the action does not appreciably reduce the likelihood of the survival and recovery of the species.

In previous critical habitat designations, we have exercised discretion to exclude some (but not all) lands covered by an HCP from designation ( e.g., for Pacific salmon (70 FR 52630; September 2, 2005)), after concluding that benefits of exclusion outweighed the benefits of designation. For lands covered by an HCP, the benefits of designation typically arise from section 7 protections as well as enhanced public awareness. The benefits of exclusion generally include relieving regulatory burdens on existing conservation partners, maintaining good working relationships with them (thus enhancing implementation of existing HCPs), and encouraging the development of new partnerships.

There are two existing HCPs that overlap areas proposed as critical habitat for the southern DPS of eulachon; the Green Diamond Timber HCP (covering the company's operations in northern California, including portions of the Klamath River), and the Humboldt Bay Municipal Water District HCP (covering their operations in the Mad River, California). Neither of these HCPs currently address conservation of eulachon, and it is unclear what, if any, conservation benefits they might provide to eulachon. We will seek comments and information specific to these HCPs and determine by the time of the final rule if, as in some past designations, the benefits of excluding these HCP areas outweigh the conservation benefits of designation.

The following section balances the benefits of avoiding economic impacts and impacts to tribal sovereignty and self-governance against the incremental and general benefits of designation. We determine whether the benefits of exclusion outweigh the benefits of designation and make recommendations for exclusion.

As described above, the economic benefits of excluding particular areas are small, for a total of about $500,000. Also as described above, we consider all 14 particular areas meeting the definition of critical habitat to have a high conservation value and a high benefit of designation. When we listed eulachon as a threatened species we cited, among other reasons, the present or threatened destruction, modification, or curtailment of its habitat. Identified threats to eulachon habitat include climate-induced change to freshwater habitats; dams and water diversions (particularly in the Columbia and Klamath Rivers); and degraded water quality. Designating these areas as critical habitat will enhance our ability to address some of these threats through section 7 consultations and through public outreach and education. We conclude that the economic benefits of excluding each particular area do not outweigh the conservation benefits of designating each particular area as critical habitat, given the following considerations: (1) The economic impact of designating all areas is small; (2) eulachon are likely to become endangered in the foreseeable future; (3) threats to freshwater habitat were a primary concern leading to our decision to list the species as threatened; (4) there are a limited number of spawning areas available throughout the coast-wide range of eulachon; and (5) designation will enhance the ability of a section 7 consultation to protect the habitat through the identification of areas of particular concern and through the added protection of the adverse modification provision.

The eulachon critical habitat Section 4(b)(2) report (NMFS, 2010d) details our consideration of excluding Indian lands in this critical habitat designation. The discussion here summarizes that consideration. As described above, designating critical habitat on Indian lands would have economic impacts. It is difficult to quantify those impacts (and therefore the benefit of exclusion), for the Lower Elwha tribe because their lands do not encompass the entire area that is being considered for designation. The effects of many types of actions on their lands would also affect areas downstream that are not excluded from designation. Therefore, a section 7 consultation would still need to consider the downstream effects on critical habitat. Administrative costs of designation would still be incurred, along with any costs associated with project modifications. The Quinault Tribe's lands encompass nearly the entire watershed of the specific area identified, thus exclusion would relieve Federal agencies of the administrative costs of considering effects of actions on designated critical habitat. The boundaries of the Yurok Indian Reservation encompass the entire specific area that represents critical habitat on the Klamath River. However there is some uncertainty as to which particular areas within it meet the above definition of Indian lands. For this analysis we have assumed, based on initial discussions with the Tribe that the entire specific area under consideration qualifies as Indian land. We estimated a total annualized incremental administrative cost of approximately $500,000 for designating all 14 specific areas as eulachon critical habitat. The exclusion of Indian Lands from critical habitat designation would decrease the total annualized incremental administrative cost by approximately $39,500. With Indian Lands excluded, the total annualized incremental administrative cost of designating eulachon critical habitat would be approximately $460,500.

In addition to the economic impact, designation would have an impact on Federal policies promoting tribal sovereignty and self-governance ( e.g., Executive Order 13175), and on the relationship between NMFS and each of the tribes ( e.g., Secretarial Order 3206) because of their perception that designation is an intrusion on tribal sovereignty and self-governance. The benefit of excluding Indian lands would be to avoid these impacts.

Balanced against these benefits of exclusion, a benefit of designating the Indian lands would be to achieve the added protection from ESA section 7's critical habitat provisions. This protection would apply to all Federal activities, which we expect would include dam operations and water supply, forest management, instream construction, mining, transportation projects, and habitat restoration. As described above, section 7 consultations for Federal actions on lands of the Lower Elwha Tribe may still need to consider designated critical habitat elsewhere in the watershed, thus many of the benefits of a section 7 consultation could still apply even if the Indian lands were excluded. In contrast, if Indian lands on the Quinault River and Klamath River were excluded, section 7 consultations would not include consideration of eulachon critical habitat.

Another benefit of designation would be to educate the public about the importance of these Indian lands to eulachon conservation. Because these are not public or private lands, and because the tribes themselves are keenly aware of the importance of their lands to eulachon conservation, we consider the education benefit of designating these Indian lands to be low.

Quinault Indian Nation Lands. In the Quinault River, exclusion of Indian lands would result in 100 percent of the area being excluded. An ESA section 7 consultation in this area would not consider adverse modification of critical habitat. In a public comment letter submitted in response to the designation of critical habitat for the bull trout, the Quinault Indian Nation (QIN) state that a Forest Management Plan (FMP), on which the USFWS prepared a programmatic biological opinion for bull trout, should provide adequate protection for the bull trout. The QIN intend to submit a similar comment in response to the designation of critical habitat for the eulachon (Quinault Indian Nation 2010). The FMP takes into account significant restrictions on in-water construction activities imposed by the State of Washington (USFWS 2003; Washington State Law, Chapter 77.55). Project modifications specific to the bull trout included in the biological opinion for the FMP include requirements that in-water or near-stream activities may only be conducted during the specific timeframes outlined in the FMP, construction of new roads is to be minimized “to the maximum extent practicable,” and construction of fill roads is allowable only when absolutely necessary. These project modifications would likely benefit eulachon habitat as well by limiting runoff which can adversely affect water quality, sediment quality, and substrate composition.

Exclusion of the 4.8 km (3.0 mi) of the Quinault River that runs through tribal lands would have the benefit of promoting Federal policies regarding tribal sovereignty and self-governance ( e.g., Executive Order 13175). It would also have the benefit of promoting a positive relationship between NMFS and the tribe (in accordance with Secretarial Order 3206), with a very small reduction in the benefits of designation (primarily the loss of section 7 consultation to consider adverse modification of critical habitat). The current FMP provides some protection for eulachon habitat and will provide a structure for future coordination and communication between the QIN, USFWS, and NMFS. For these reasons, we conclude that the benefits of exclusion outweigh the benefits of designation.

Lower Elwha Tribal Lands. In the Lower Elwha River, exclusion of tribal lands would result in 1.3 km (0.8 mi) of the lower Elwha River being excluded, which represents about 16 percent of the total 7.9 km (4.9 mi) of habitat. As explained above, Federal agencies would still need to consult on the effects of their actions on the designated critical habitat elsewhere in the river. Exclusion of the 1.3 km (0.8 mi) of the lower Elwha River that runs through tribal lands would have the benefit of promoting Federal policies regarding tribal sovereignty and self-governance ( e.g., Executive Order 13175). It would also have the benefit of promoting a positive relationship between NMFS and the tribe (in accordance with Secretarial Order 3206), with a very small reduction in the benefits of designation (primarily, the loss of section 7 consultation to consider adverse modification of critical habitat). For these reasons, we conclude that the benefits of exclusion outweigh the benefits of designation.

Resighini Rancheria Land. The tribal lands of the Resighini Rancheria include approximately 0.5 km (0.3 mi) along the Klamath River, within the specific area of critical habitat for eulachon. Exclusion of this land would account for approximately 3 percent of the specific habitat of southern DPS eulachon in the Klamath River. Exclusion of the 0.5 km (0.3 mi) of the Klamath River that runs through tribal lands would have the benefit of promoting Federal policies regarding tribal sovereignty and self-governance. It would also have the benefit of promoting a positive relationship between NMFS and the tribe, with a very small reduction in the benefits of designation. For these reasons, we conclude that the benefits of exclusion outweigh the benefits of designation.

Yurok Tribal Lands. Yurok Tribal Lands: The boundaries of the Yurok Indian Reservation encompass the 17.5 km (10.9 mi) on the Klamath River that represent the specific area occupied by eulachon on that river. However, land ownership within the reservation boundary includes a mixture of Federal, State, tribal and private ownerships.

As managers of the Klamath River fisheries and their resources, the Tribe oversees and protects fish and fish habitat through various land and water management practices, plans, and cooperative efforts. Tribal forest practices and land management are guided by a Forest Management Plan (FMP), a primary objective of which is to protect and enhance tribal trust fisheries. The Tribe has an established water quality control plan on the Reservation (Yurok Tribe, 2004) with standards that have been approved by the Environmental Protection Agency (EPA). In conjunction with Federal, state and private partners, the Yurok Tribe has initiated a large-scale, coordinated watershed restoration effort in the Lower Klamath sub-basin to protect and improve instream, intertidal, and floodplain habitats that support viable, self-sustaining populations of native fishes. More recently, the Yurok Tribe fisheries program has implemented a eulachon monitoring study to determine the current abundance, and distribution of eulachon in the Klamath River.

We are proposing to exclude from designation all areas of the Klamath River based on an initial consideration of impacts on our working relationship with the Yurok Tribe. Although this decision is consistent with our previous critical habitat designation for Southern Oregon/Northern California Coasts coho salmon (64 FR 24049; May 5, 1999), it is less clear how well it reflects our more recent 4(b)(2) analyses used in 2005 to designate critical habitat for 19 salmon and steelhead DPSs (70 FR 52630; September 2, 2005). In that more recent approach we focused such exclusions on those Indian lands defined in the 1997 Secretarial Order 3206 “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act.” Specifically, we excluded: (1) Lands held in trust by the United States for the benefit of any Indian tribe; (2) land held in trust by the United States for any Indian Tribe or individual subject to restrictions by the United States against alienation; (3) fee lands, either within or outside the reservation boundaries, owned by the tribal government; and (4) fee lands within the reservation boundaries owned by individual Indians.

During the time between this proposed rule and a final designation we will consult with the Tribe and other land managers in the lower Klamath Basin to determine how best to determine the benefits of designating or excluding particular areas within the Yurok Reservation boundary. As noted in a biological report supporting this designation, the eulachon habitat under consideration includes the lowermost 17.5 km (10.9 miles) of the Klamath River. Depending on the outcome of our consultations and a final 4(b)(2) analysis (informed by tribal input and public comments), our final rule may designate some or none of these occupied areas as critical habitat for this species.

Section 4(b)(2) limits our discretion to exclude areas from designation if exclusion will result in extinction of the species. The overwhelming majority of production for the southern DPS of eulachon occurs in the Columbia River (and tributaries) and the Fraser River in Canada (NMFS, 2010a). While abundance estimates are not available for the three rivers (Quinault, Elwha, and Klamath) that overlap Indian lands, the runs on these rivers are believed to be very small (NMFS, 2010a) and likely contribute only a small fraction to the total DPS abundance. Because the overall percentage of critical habitat on Indian lands is so small (5 percent of the total area identified) and the likelihood that eulachon production on these lands represents a very small percent of the total annual production for the DPS, we conclude that exclusion will not result in extinction of the southern DPS of eulachon.

We propose to designate approximately 470.2 km (292.1 mi) of riverine and estuarine habitat in California, Oregon, and Washington within the geographical area occupied by the southern DPS of eulachon. The proposed critical habitat areas contain one or more physical or biological features essential to the conservation of the species that may require special management considerations or protection. We propose to completely exclude two areas (the Quinault River and the Klamath River) and portions of one other area (Elwha River) from designation for which the benefit of exclusion outweighs the benefit of inclusion (NMFS, 2010c). These areas include less than 23.6 km (14.7 mi) of riverine and estuarine habitat in California and Washington. We conclude that the exclusion of these areas will not result in the extinction of the southern DPS. We have not identified any unoccupied areas that are essential to conservation, and thus we are not proposing any unoccupied areas for designation as critical habitat at this time.

We describe the lateral extent of critical habitat units as the width of the stream channel defined by the ordinary high water line, as defined by the USACE in 33 CFR 329.11. The ordinary high water line on non-tidal rivers is defined as “the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas” (33 CFR 329.11(a)(1)). In areas for which the ordinary high-water line has not been defined pursuant to 33 CFR 329.11, we define the width of the stream channel by its bankfull elevation. Bankfull elevation is the level at which water begins to leave the channel and move into the floodplain (Rosgen, 1996) and is reached at a discharge which generally has a recurrence interval of 1 to 2 years on the annual flood series (Leopold et al. 1992).

As discussed in previous critical habitat designations ( e.g., Pacific salmon and steelhead (70 FR 52630; September 2, 2005), North American green sturgeon (74 FR 52300; October 9, 2009)), the quality of aquatic and estuarine habitats within stream channels and bays and estuaries is intrinsically related to the adjacent riparian zones and floodplain, to surrounding wetlands and uplands, and to non-fish-bearing streams above occupied stream reaches. Human activities that occur outside of designated critical habitat can destroy or adversely modify the essential physical and biological features within these areas. In addition, human activities occurring within and adjacent to reaches upstream or downstream of designated stream reaches or estuaries can also destroy or adversely modify the essential physical and biological features of these areas. This designation will help to ensure that Federal agencies are aware of these important habitat linkages.

Section 7(a)(2) of the ESA requires Federal agencies to insure that any action authorized, funded, or carried out by the agency (agency action) does not jeopardize the continued existence of any threatened or endangered species or destroy or adversely modify designated critical habitat. Federal agencies are also required to confer with us regarding any actions likely to jeopardize a species proposed for listing under the ESA, or likely to destroy or adversely modify proposed critical habitat, pursuant to section 7(a)(4). A conference involves informal discussions in which we may recommend conservation measures to minimize or avoid adverse effects. The discussions and conservation recommendations are to be documented in a conference report provided to the Federal agency. If requested by the Federal agency, a formal conference report may be issued; including a biological opinion prepared according to 50 CFR 402.14. A formal conference report may be adopted as the biological opinion when the species is listed or critical habitat designated, if no significant new information or changes to the action alter the content of the opinion.

When a species is listed or critical habitat is designated, Federal agencies must consult with NMFS on any agency actions to be conducted in an area where the species is present and that may affect the species or its critical habitat. During the consultation, we would evaluate the agency action to determine whether the action may adversely affect listed species or critical habitat and issue our findings in a biological opinion or concurrence letter. If we conclude in the biological opinion that the agency action would likely result in the destruction or adverse modification of critical habitat, we would also recommend any reasonable and prudent alternatives to the action. Reasonable and prudent alternatives (defined in 50 CFR 402.02) are alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that would avoid the destruction or adverse modification of critical habitat.

Regulations at 50 CFR 402.16 require Federal agencies that have retained discretionary involvement or control over an action, or where such discretionary involvement or control is authorized by law, to reinitiate consultation on previously reviewed actions in instances where: (1) Critical habitat is subsequently designated; or (2) new information or changes to the action may result in effects to critical habitat not previously considered in the biological opinion. Consequently, some Federal agencies may request reinitiation of a consultation or conference with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat or adversely modify or destroy proposed critical habitat.

Activities subject to the ESA section 7 consultation process include activities on Federal lands and activities on private or state lands requiring a permit from a Federal agency ( e.g., a Clean Water Act, Section 404 dredge or fill permit from USACE) or some other Federal action, including funding ( e.g., Federal Highway Administration funding for transportation projects). ESA section 7 consultation would not be required for Federal actions that do not affect listed species or critical habitat and for actions on non-Federal and private lands that are not Federally funded, authorized, or carried out.

ESA section 4(b)(8) requires in any proposed or final regulation to designate critical habitat an evaluation and brief description of those activities (whether public or private) that may adversely modify such habitat or that may be affected by such designation. A wide variety of activities may affect the proposed critical habitat and may be subject to the ESA section 7 consultation process when carried out, funded, or authorized by a Federal agency. These include water and land management actions of Federal agencies ( e.g., U.S. Forest Service (USFS)), Bureau of Land Management (BLM), U.S. Army Corps of Engineers (USACE), U.S. Bureau of Reclamation (BOR), Natural Resource Conservation Service (NRCS), National Park Service (NPS), Bureau of Indian Affairs (BIA), the Federal Energy Regulatory Commission (FERC), and the Nuclear Regulatory Commission (NRC)) and related or similar Federally-regulated projects and activities on Federal lands, including hydropower sites licensed by the FERC; nuclear power sites licensed by the NRC; dams built or operated by the USACE or BOR; timber sales and other vegetation management activities conducted by the USFS, BLM and BIA; irrigation diversions authorized by the USFS and BLM; and road building and maintenance activities authorized by the USFS, BLM, NPS, and BIA. Other actions of concern include dredging and filling, mining, diking, and bank stabilization activities authorized or conducted by the USACE, habitat modifications authorized by the Federal Emergency Management Agency, and approval of water quality standards and pesticide labeling and use restrictions administered by the Environmental Protection Agency.

Private entities may also be affected by this proposed critical habitat designation if a Federal permit is required, if Federal funding is received, or the entity is involved in or receives benefits from a Federal project. For example, private entities may have special use permits to convey water or build access roads across Federal land; they may require Federal permits to construct irrigation withdrawal facilities, or build or repair docks; they may obtain water from Federally funded and operated irrigation projects; or they may apply pesticides that are only available with Federal agency approval. These activities will need to be evaluated with respect to their potential to destroy or adversely modify critical habitat for eulachon. Changes to some activities, such as the operations of dams and dredging activities, may be necessary to minimize or avoid destruction or adverse modification of proposed critical habitat. Transportation and utilities sectors may need to modify the placement of culverts, bridges, and utility conveyances ( e.g., water, sewer, and power lines) to avoid barriers to fish migration. Developments ( e.g., marinas, residential, or industrial facilities) occurring in or near streams, estuaries, or marine waters designated as critical habitat that require Federal authorization or funding may need to be altered or built in a manner to ensure that critical habitat is not destroyed or adversely modified as a result of the construction or subsequent operation of the facility. Questions regarding whether specific activities will constitute destruction or adverse modification of critical habitat should be directed to NMFS ( see ADDRESSES and FOR FURTHER INFORMATION CONTACT ).

We solicit comments or suggestions from the public, other concerned governments and agencies, the scientific community, industry, non-governmental organizations, or any other interested party concerning the proposed designation and exclusions as well as the documents supporting this rulemaking. We are particularly interested in comments and information in the following areas: (1) Information describing the abundance, distribution, and habitat use of southern DPS eulachon, including marine areas; (2) Information on the identification, location, and the quality of physical or biological features which may be essential to the conservation of the species, including marine foraging sites; (3) Information regarding potential benefits of designating any particular area as critical habitat, including information on the types of Federal actions that may affect the area's physical and biological features; (4) Information regarding potential impacts of designating any particular area, including the types of Federal actions that may trigger an ESA section 7 consultation and the possible modifications that may be required of those activities; (5) Information regarding the benefits of excluding a particular area from critical habitat, including areas covered by an existing HCP, especially the Green Diamond Timber and Humboldt Bay Municipal Water District HCPs in northern California; (6) Current or planned activities in the areas proposed as critical habitat and costs of potential modifications to those activities due to critical habitat designation; and (7) Any foreseeable economic, national security, or other relevant impact resulting from the proposed designation. You may submit your comments and materials concerning this proposal by any one of several methods ( see ADDRESSES ). Copies of the proposed rule and supporting documentation can be found on the NMFS Web site http://www.nwr.noaa.gov. We will consider all comments pertaining to this designation received during the comment period in preparing the final rule. Accordingly, the final decision may differ from this proposal.

50 CFR 424.16(c)(3) requires the Secretary to promptly hold at least one public hearing if any person requests one within 45 days of publication of a proposed rule to designate critical habitat. Such hearings provide the opportunity for interested individuals and parties to give comments, exchange information and opinions, and engage in a constructive dialogue concerning this proposed rule. We encourage the public's involvement in such ESA matters. A public meeting has been scheduled for January 26, 2011 at the Doubletree Hotel, 1000 NE Multnomah Street, Portland, OR. Requests for additional public hearings must be made in writing ( see ADDRESSES ) by February 22, 2011.

The data and analyses supporting this proposed action have undergone a pre-dissemination review and have been determined to be in compliance with applicable information quality guidelines implementing the Information Quality Act (IQA) (Section 515 of Pub. L. 106-554). In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review pursuant to the IQA. The Bulletin was published in the Federal Register on January 14, 2005 (70 FR 2664). The Bulletin established minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation with regard to certain types of information disseminated by the Federal Government. The peer review requirements of the OMB Bulletin apply to influential or highly influential scientific information disseminated on or after June 16, 2005. Two documents supporting this proposal to designate critical habitat for the southern DPS of eulachon are considered influential scientific information and subject to peer review. These documents are the draft Biological Report and draft Economic Analysis. We have distributed the draft Biological Report and draft Economic Analysis for independent peer review and will address any comments received in developing the final drafts of the two reports. Both documents are available on our Web site at http://www.nwr.noaa.gov/, on the Federal eRulemaking Web site at http://www.regulations.gov, or upon request ( see ADDRESSES ).

Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency publishes a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis describing the effects of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). We have prepared an initial regulatory flexibility analysis (IRFA), which is part of the draft Economic Analysis. This document is available upon request ( see ADDRESSES ), via our Web site at http://nwr.noaa.gov, or via the Federal eRulemaking Web site at http://www.regulations.gov. The results of the IRFA are summarized below.

At the present time, little information exists regarding the cost structure and operational procedures and strategies in the sectors that may be directly affected by the potential critical habitat designation. In addition, given the short consultation history for eulachon, there is significant uncertainty regarding the activities that may trigger an ESA section 7 consultation or how those activities may be modified as a result of consultation. With these limitations in mind, we considered which of the potential economic impacts we analyzed might affect small entities. These estimates should not be considered exact estimates of the impacts of potential critical habitat to individual businesses.

The impacts to small businesses were assessed for the following eight broad categories of activities: Dams and water supply, agriculture and grazing, transportation, forest management, mining, in-water construction and restoration, water quality management/monitoring (and other activities resulting in non-point pollution), and other activities. Small entities were defined by the Small Business Administration size standards for each activity type. The majority (approximately 97 percent) of entities affected within each specific area would be considered a small entity. A total of 540 small businesses involved in the activities listed above would most likely be affected by the proposed critical habitat designation. Total annualized impacts to small entities are conservatively assumed to be $459,000, or approximately 99.5 percent of total incremental impacts anticipated as a result of this rule.

We estimated the annualized costs associated with section 7 consultations incurred per small business under two different scenarios. These scenarios are intended to provide a measure of the range of potential impacts to small entities given the level of uncertainty referred to above. Under the first scenario the analysis estimated the number of small entities located within areas affected by the proposed designation (approximately 540), and assumes that incremental impacts are distributed evenly across all entities in each affected industry. Under this scenario, a small entity may bear costs up to $3,550, representing between < 0.01 and 0.10 percent of average revenues (depending on the industry). Under the second scenario, the analysis assumes the costs of each anticipated future consultation are borne by a distinct small business most likely to be involved in a section 7 consultation (approximately 38 entities). Under this scenario, each small entity may bear costs of between $1,330 and $162,000, representing between 0.01 and 4.69 percent of average annual revenues, depending on the industry.

In accordance with the requirements of the RFA (as amended by SBREFA of 1996) this analysis considered various alternatives to the critical habitat designation for the southern DPS. The alternative of not designating critical habitat for the southern DPS of eulachon was considered and rejected because such an approach does not meet the legal requirements of the ESA. We considered the alternative of designating all specific areas ( i.e., no areas excluded); however, for three areas (all of the Quinault and Klamath Rivers and part of the Elwha River), the benefits of exclusion outweighed the benefits of including them in the designation. Thus, NMFS also considered the alternative of designating all specific areas, but excluding these areas. This alternative helps to reduce the number of small businesses potentially affected from 571 to 540, and the total potential annualized economic impact to small businesses would be reduced from $498,000 to $459,000.

On May 18, 2001, the President issued an executive order on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking any action that promulgates or is expected to lead to the promulgation of a final rule or regulation that (1) is a significant regulatory action under E.O. 12866 and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy.

We have considered the potential impacts of this action on the supply, distribution, or use of energy and find the designation of critical habitat will not have impacts that exceed the thresholds identified above (NMFS, 2010c).

In accordance with the Unfunded Mandates Reform Act, NMFS makes the following findings:

(a) This proposed rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute or regulation that would impose an enforceable duty upon state, local, tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to state, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the state, local, or tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.)

“Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.” The designation of critical habitat does not impose a legally binding duty on non- Federal government entities or private parties. Under the ESA, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non- Federal entities which receive Federal funding, assistance, permits or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above to state governments.

(b) Due to the existing protection afforded to the proposed critical habitat from existing critical habitat for salmon and steelhead (70 FR 52630; September 2, 2005), Southern DPS of green sturgeon (74 FR 52300; October 9, 2009), and/or bull trout (70 FR 56212; September 26, 2005), we do not anticipate that this proposed rule will significantly or uniquely affect small governments. As such, a Small Government Agency Plan is not required.

Under Executive Order 12630, Federal agencies must consider the effects of their actions on constitutionally protected private property rights and avoid unnecessary takings of property. A taking of property includes actions that result in physical invasion or occupancy of private property, and regulations imposed on private property that substantially affect its value or use. In accordance with E.O. 12630, this proposed rule does not have significant takings implications. A takings implication assessment is not required. The designation of critical habitat affects only Federal agency actions. We do not expect the proposed critical habitat designation to impose additional burdens on land use or affect property values. Additionally, the proposed critical habitat designation does not preclude the development of Habitat Conservation Plans and issuance of incidental take permits for non-Federal actions. Owners of areas included within the proposed critical habitat designation would continue to have the opportunity to use their property in ways consistent with the survival of listed southern DPS eulachon.

Section 307(c)(1) of the Federal Coastal Zone Management Act of 1972 (16 U.S.C. 1456) requires that all Federal activities that affect the land or water use or natural resource of the coastal zone be consistent with approved state coastal zone management programs to the maximum extent practicable. We have determined that this proposed designation of critical habitat is consistent to the maximum extent practicable with the enforceable policies of approved Coastal Zone Management Programs of California, Oregon, and Washington. The determination has been submitted for review by the responsible agencies in the aforementioned states.

In accordance with Executive Order 13132, we determined that this proposed rule does not have significant Federalism effects and that a Federalism assessment is not required. In keeping with Department of Commerce policies, we request information from, and will coordinate development of this proposed critical habitat designation with, appropriate state resource agencies in California, Oregon, and Washington. The proposed designation may have some benefit to state and local resource agencies in that the areas essential to the conservation of the species are more clearly defined, and the essential features of the habitat necessary for the survival of the southern DPS of eulachon are specifically identified. It may also assist local governments in long-range planning (rather than waiting for case-by-case ESA section 7 consultations to occur).

The Department of Commerce has determined that this proposed rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988 We are proposing to designate critical habitat in accordance with the provisions of the ESA. This proposed rule uses standard property descriptions and identifies the essential features within the designated areas to assist the public in understanding the habitat needs of southern DPS eulachon.

This proposed rule does not contain new or revised information collection requirements for which Office of Management and Budget (OMB) approval is required under the Paperwork Reduction Act. This proposed rule will not impose recordkeeping or reporting requirements on state or local governments, individuals, businesses, or organizations. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

We have determined that an environmental analysis as provided for under NEPA is not required for critical habitat designations made pursuant to the ESA. See Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).

Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, outlines the responsibilities of the Federal Government in matters affecting tribal interests. If NMFS issues a regulation with tribal implications (defined as having a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes) we must consult with those governments or the Federal Government must provide funds necessary to pay direct compliance costs incurred by tribal governments.

Pursuant to Executive Order 13175 and Secretarial Order 3206, we consulted with the affected Indian Tribes when considering the designation of critical habitat in an area that may impact tribal trust resources, tribally owned fee lands or the exercise of tribal rights. All of the tribes we consulted expressed concern about the intrusion into tribal sovereignty that critical habitat designation represents. The Secretarial Order defines Indian lands as “any lands title to which is either: (1) Held in trust by the United States for the benefit of any Indian tribe or (2) held by an Indian Tribe or individual subject to restrictions by the United States against alienation.” Our conversations with the tribes indicate that they view the designation of Indian lands as an unwanted intrusion into tribal self-governance, compromising the government-to-government relationship that is essential to achieving our mutual goal of conserving threatened and endangered salmonids.

For the general reasons described in the Other Relevant Impacts—Impacts to Tribal Sovereignty and Self-Governance section above, the draft ESA 4(b)(2) analysis has led us to propose the exclusion of all Indian lands in our proposed designation for the southern DPS of eulachon. Consistent with other proposed exclusions, any exclusion in the final rule will be made only after consideration of all comments received.

A complete list of all references cited in this rulemaking can be found on our Web site at http://www.nwr.noaa.gov/ and is available upon request from the NMFS office in Portland, Oregon ( see ADDRESSES. )

For the reasons set out in the preamble, we propose to amend part 226, title 50 of the Code of Federal Regulations as set forth below: