Section 203(c) of the Agricultural Marketing Act of 1946 (7 U.S.C. 1621-1627), as amended, directs and authorizes the Secretary of Agriculture “To develop and improve standards of quality, condition, quantity, grade and packaging and recommend and demonstrate such standards in order to encourage uniformity and consistency in commercial practices.” AMS is committed to carrying out this authority in a manner that facilitates the marketing of agricultural commodities. AMS makes copies of official standards available upon request.

AMS is considering revisions to the United States Standards for Grades of Florida Avocados. These standards were published on September 3, 1957.

At a meeting with the Fruit and Vegetable Industry Advisory Committee, AMS was asked to review the Fresh Fruit and Vegetable grade standards for usefulness in serving the industry. AMS has identified the United States Standards for Grades of Florida Avocados (7 CFR 51.3050-3069) for possible revision. The current standard only applies to avocados grown in Florida. AMS is considering revisions to the standards so it may be applied to all avocados. The title of the standard would be modified by deleting “Florida,” to make the standards generic to cover all avocados. As a result this allows for avocados from different growing regions to be marketed and certified to a grade using the standard. AMS will also eliminate § 51.3054 entitled “Unclassified.” This section is not a grade and only serves to show than no grade has been applied to the lot. This section will be removed from all fresh fruit and vegetable standards. It is no longer considered necessary. However, prior to undertaking detailed work to develop the proposed revision to the standards, AMS is soliciting comments on these changes as well as any other revisions to the United States Standards for Grades of Florida Avocados to better serve the industry. Users of these standards include: voluntary, destination and shipping point users, in addition to required users.

AMS is seeking comments regarding how, if at all, marketing would be improved by removing the word “Florida” so the standard could be applied to all avocados, including avocados grown outside the state of Florida. Further, comments outlining any additional costs or benefits would be helpful in determining a final decision after the comments are received and reviewed. AMS will also review any other suggested revisions and would be interested in how they would improve the marketing of avocados and any associated costs and/or benefits to the industry.

There is a mandatory marketing program which regulates the handling of Florida avocados under (7 CFR part 915). Avocados under the marketing order have to meet certain requirements set forth in the grade standards. In addition, avocados are subject to section 8e import requirements (7 CFR part 944) under the Agricultural Marketing Act of 1937, as amended (7 U.S.C. 601-674) which requires imported avocados to meet grade, size, quality under the applicable marketing order.

The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action.

This notice provides for a 60-day comment period for interested parties to comment on whether any changes are necessary to the standards. Should AMS conclude that there is a need for any revisions of the standards, the proposed revisions will be published in the Federal Register with a request for comments.

This proposal is issued under Marketing Order Nos. 916 and 917, both as amended (7 CFR parts 916 and 917), regulating the handling of nectarines and peaches grown in California, respectively, hereinafter referred to as the “orders.” The marketing orders are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This proposal will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This proposal invites comments on establishing regulations that would allow the committees to apply late payment and interest charges on past due assessments owed the committees by handlers. This proposal was unanimously recommended by the committees at meetings on November 30, 2006.

Sections 916.41 and 917.37 of the orders provide authority for the committees to assess handlers of California nectarines and peaches, respectively, to fund authorized activities such as research and promotion programs. Paragraph (b) of these sections was amended on July 21, 2006 (71 FR 41345), to authorize the committees, with the approval of the Secretary, to apply late payment charges, interest charges, or both on past due assessments.

At meetings on November 30, 2006, the committees recommended establishing rules and regulations to implement these authorities regarding late payment and interest charges. Although the majority of handlers remit their assessments in a timely manner, there are some handlers who do not. Implementing late payment and interest charges would provide an incentive for handlers to pay assessments in a timely manner and would remove any financial advantage for those who do not pay on time.

Specifically, the committees recommended that a late payment charge be applied to any assessment that has not been received in the committees' office, or the envelope containing the payment legibly postmarked by the U.S. Postal Service, within 60 days of the invoice date shown on the handler's assessment statement. The committees recommended a late payment charge of 10 percent of the unpaid balance. In addition, interest would be applied to the unpaid balance and late payment charge for the number of days the payment is delinquent beyond 60 days.

The committees recommended that interest be applied at the current commercial prime rate charged by the committees' bank plus 2 percent beginning on the day the assessment becomes delinquent. However, USDA determined that a set interest rate of 1.5 percent per month is typical of comparable marketing order programs, and the proposal has been revised. Accordingly, new §§ 916.141 and 917.137 specifying implementation of the 10 percent late charge and 1.5 percent per month interest rate would be added to the rules and regulations of the nectarine and peach orders, respectively.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 175 California nectarine and peach handlers subject to regulation under the orders covering nectarines and peaches grown in California, and about 676 producers of these fruits in California. Small agricultural service firms, which include handlers, are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those whose annual receipts are less than $6,500,000. Small agricultural producers are defined by the SBA as those having annual receipts of less than $750,000. A majority of these handlers and producers may be classified as small entities.

The committees' staff has estimated that there are fewer than 26 handlers in the industry who could be defined as other than small entities. For the 2006 season, the committees' staff estimated that the average handler price received was $9.00 per container or container equivalent of nectarines or peaches. A handler would have to ship at least 722,223 containers to have annual receipts of $6,500,000. Given data on shipments maintained by the committees' staff and the average handler price received during the 2006 season, the committees' staff estimates that small handlers represent approximately 85 percent of all the handlers within the industry.

The committees' staff has also estimated that fewer than 68 producers in the industry could be defined as other than small entities. For the 2006 season, the committees' staff estimated the average producer price received was $4.50 per container or container equivalent for nectarines and peaches. A producer would have to produce at least 166,667 containers of nectarines and peaches to have annual receipts of $750,000. Given data maintained by the committees' staff and the average producer price received during the 2006 season, the committees' staff estimates that small producers represent more than 90 percent of the producers within the industry.

With an average producer price of $4.50 per container or container equivalent, and a combined packout of nectarines and peaches of 36,388,996 containers, the value of the 2006 packout is estimated to be $163,750,482. Dividing this total estimated grower revenue figure by the estimated number of producers (676) yields an estimate of average revenue per producer of about $242,234 from the sales of peaches and nectarines.

This proposed rule would add new §§ 916.141 and 917.137 to the orders' rules and regulations, whereby late payment and interest charges on delinquent assessment payments would be implemented under the orders. Specifically, handlers not remitting their assessment payments within 60 days of the invoice date would be subject to a 10 percent late payment penalty and interest charges accruing at a rate of 1.5 percent per month. The late payment and interest charges would serve as an incentive for handlers to remit assessment payments when due to avoid paying an increased amount to the committees. This action is expected to facilitate program operations. Authority for this action is provided in paragraph (b) of §§ 916.41 and 917.37 of the orders.

This action would apply late payment and interest charges to assessments not paid within 60 days of the invoice date. Only handlers who are late in paying their assessments owed the committees would be impacted. For example, a delinquent invoice with late payment and interest charges applied would be calculated in the following manner: If a handler failed to pay an invoice for $5,000 within 60 days of the July 1, 2007, invoice date, a 10 percent late payment charge ($500) would be applied to the unpaid balance. In addition, interest charges at a rate of 1.5 percent per month would be added to the assessments owed and the accrued late payment charge. The 1.5 percent per month rate computes to an annual rate of 18 percent. This must be divided by 365 days to obtain the daily rate. This same July 1, 2007, invoice would be 62 days delinquent as of September 1, 2007, bringing the interest charges to $168.16 ($5,500 × .18 ÷ 365 × 62). Thus, the total assessment due, including late payment and interest charges, would be $5,668.16 as of September 1, 2007.

The committees discussed alternatives to this change, including not implementing late payment and interest charges at all. While only a small number of handlers fail to make assessments payments when due, the committees believe that a lack of action only compounds the problem. The committees considered applying late payment and interest charges at a lower rate but believe that a higher rate would be more likely to encourage compliance with the orders' assessment requirements. The joint executive committee discussed the issue and recommended the 10 percent late payment and prime plus 2 percent interest charges that the committee members unanimously approved and recommended to USDA.

However, as previously mentioned, USDA has determined that a set interest rate of 1.5 percent per month is typical of comparable marketing order programs, and the proposal has been revised.

This proposed rule would not impose any additional reporting or recordkeeping requirements on either small or large nectarine and peach handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

The AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, the subcommittee and committees' meetings were widely publicized throughout the California nectarine and peach industries and all interested persons were invited to attend the meetings and participate in the committees' deliberations on all issues. Like all committee meetings, the November 30, 2006, meetings were public meetings and all entities of all sizes were invited to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

A 15-day comment period is provided to allow interested persons to respond to this proposal. Fifteen days is deemed appropriate because this rule would need to be in place as soon as possible, since the season begins on April 1. All written comments timely received will be considered before a final determination is made on this matter.

This advance notice has been reviewed under Executive Order 12866 by the Office of Management and Budget and has been determined to be significant for the purposes of Executive Order 12866.

The Rural Development Mission Area of the Department of Agriculture (Rural Development) is responsible for assisting rural communities in improving the quality of life for their residents and in increasing their economic opportunities. Most of the programs and activities of Rural Development provide assistance in the form of loans, loan guarantees, and grants. However, Rural Development estimates that at least $1.45 trillion of equity in rural America is idle and could be used to assist the development of rural America.

In an attempt to tap this equity in rural America and provide for investment capital opportunities which are not widely available, Congress created the Rural Business Investment Program in section 6029 of the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171; 116 Stat. 134). The Rural Business Investment Program authorized the Secretary of Agriculture to encourage, with financial and technical assistance, the creation of investment companies, called Rural Business Investment Companies, which would provide equity investments to rural small businesses. These investment companies would leverage capital raised from private investors, including rural residents into investments in rural small businesses. The legislation strongly encouraged that the Secretary of Agriculture operate this Program with the assistance of the Small Business Administration (SBA) because it was modeled after the SBA Small Business Investment Program. The legislation even provided funding to cover SBA's costs of providing such assistance. On June 8, 2004, Rural Development promulgated an interim rule to implement the Rural Business Investment Program [7 CFR part 4290; 69 FR 32200].

The legislation that created the Rural Business Investment Program gave the Secretary of Agriculture two choices concerning the creation of Rural Business Investment Companies: leveraged and non-leveraged. A leveraged Rural Business Investment Company is a company that is created with an infusion of Federal capital. A non-leveraged Rural Business Investment Company is a company that is created without the infusion of Federal capital. Since the legislation authorizing this Program provided funds for leveraged Rural Business Investment Companies and SBA's own programs operate with leveraged entities, the focus of the current Rural Business Investment Program has been on the creation of leveraged Rural Business Investment Companies. Since the promulgation of the interim rule, Rural Development, with SBA's support, has conditionally selected three leveraged Rural Business Investment Companies. These companies have initiated the process of making equity investments in rural small businesses.

With the enactment of section 1403 of the Deficit Reduction Act of 2005 (Pub. L. 109-171; 120 Stat. 4), all unobligated funds for the Rural Business Investment Program for administrative costs for SBA and for the assistance grants and leveraging for the Rural Business Investment Companies will be rescinded at the end of Fiscal Year 2006. The enactment of this legislation effectively prevents the funding and support of new Rural Business Investment Companies after the end of this Fiscal Year.

Rural Development believes that a greater focus on tapping the equity in rural America for the purposes of furthering rural development should be maintained. By encouraging investments in rural businesses with rural equity, not only is there the development of an underutilized rural resource, but also there is the potential to use such investments to increase wealth in rural communities.

The development of renewable energy resources such as biofuels and wind represents an example of the economic development power of tapping rural equity. The development of these new energy resources has reached a stage where it is possible to find capital in the United States and elsewhere to develop many of these rural resources. While the rural areas where these outside funded projects are located will reap some economic benefits, the profits and equity they create will be owned by those outside these rural communities. Rural Development believes that if at least a portion of the funding of these projects can be supported by the equity in the surrounding rural communities, the projects are likely to be more successful because they will have greater local support and generate profits and equity that will be retained in the these rural communities which could be applied to support further development.

Rural Development seeks to encourage not only the placement of economic development projects in rural areas, like an ethanol plant, but also the development of business and investment models that will lead to the greater use of, and growth in, wealth, equity, and economic opportunities in rural communities. For these reasons, Rural Development would like to investigate whether there may be a way to continue the Rural Business Investment Program, despite the enactment of the Deficit Reduction Act of 2005, as part of a strategy to help unlock the potential power that rural equity has to finance rural development in a manner that will help rural residents share in the benefits of the economic growth potential of rural America.

After reviewing the legislation creating the Rural Business Investment Program, it may be possible for the Secretary of Agriculture to operate this Program with another partner. The legislation authorizing the Rural Business Investment Program authorized certain financial institutions to create and invest in Rural Business Investment Companies (7 U.S.C. 2009cc-9). Eligible financial institutions include banks and savings associations whose deposits are insured by the Federal Deposit Insurance Corporation and Farm Credit System institutions. The Farm Credit Administration (FCA), the independent Federal agency that regulates the Farm Credit System, is responsible for the chartering, oversight and examination of the financial institutions of the Farm Credit System (FCS). Additionally, FCA has experience in examining other non-System institutions, such as Small Business Investment Companies. Therefore, FCA has the expertise to operate the non-leveraged program for the Secretary of Agriculture. If the focus of this Program shifted to the creation of non-leveraged Rural Business Investment Companies, the only funds that would be needed would be administrative costs to administer the program and provide technical assistance. It is Rural Development's understanding that these funds could be raised through the fees the FCA can currently charge regulated entities. If the FCA would become a partner of this Program, provisions would be made to ensure that non-Farm Credit System members would be allowed to participate in the creation and financing of non-leveraged Rural Business Investment Companies in accordance with the statute. This proposal is based on a comment Rural Development received from the FCA during the interim rule commenting period for the Rural Business Investment Program [69 FR 32200; June 8, 2004].

Rural Development is seeking help from the public regarding the following questions related to this matter:

(1) In what ways can Rural Development leverage the Rural Business Investment Program, a developmental venture capital program, to help encourage an expanded use of rural equity in the development of rural America?

(2) Does the Rural Business Investment Program provide an appropriate basis to encourage the expanded use of rural equity in rural development? If not, are there changes in the regulation that could be made to make the Program more effective?

(3) If USDA chooses to use one or more partners in order to provide for the licensing of non-leveraged Rural Business Investment Companies, what type of considerations should be made? How could such a partnership, between USDA and FCA, be made most effective for USDA, FCA, and the rural business community? If other Federal agencies in addition to FCA wish to become a partner, how should this be addressed within the regulation?

The petitioners are the Project On Government Oversight and the Union of Concerned Scientists. The petitioners state that the Project On Government Oversight, formerly the Project on Military Procurement, previously worked to reform military spending. After experiencing success, the petitioner expanded its mission to include the investigation of systemic waste, fraud and abuse in all Federal agencies, including the important topic of nuclear plant security.

The petitioners state that the Union of Concerned Scientists is a nonprofit partnership of scientists and citizens that combines scientific analysis, policy development, and citizen advocacy to achieve practical environmental solutions. In 2002, the Union of Concerned Scientists had 61,300 members. The petitioners state that the Union of Concerned Scientists has been an active participant in the past in public meetings conducted by NRC regarding security regulations, and the petitioner continues to articulate potential problems and recommended solutions in various public arenas.

Current regulations at 10 CFR part 73 contain requirements for the physical protection of nuclear power plants and materials. On January 29, 2007, the Commission approved the issuance of a final rule which revises § 73.1 to establish a new design basis threat (DBT) level. The final DBT rule was published in the Federal Register on March 19, 2007. (72 FR 12705)

The petitioners observe that the final DBT rule reflects the Commission's determination of the most likely composite set of adversary features against which private security forces should reasonably have to defend. The petitioners believes that the DBT level set forth in the final rule is less what is determined to be the maximum level deemed credible by the national intelligence community, and that the potential exists for radiological sabotage at a level greater than the new DBT level. The petitioners therefore state that the defense of a nuclear power plant against a threat greater than the DBT would depend on the supplementation by local, State and Federal entities.

The petitioners request that the NRC amend its regulations at 10 CFR part 50 to require periodic demonstrations that nuclear power plants can be adequately protected against radiological sabotage above the DBT level. Current regulations in Appendix E to 10 CFR part 50 require periodic demonstrations that plant owners and external authorities can successfully meet their responsibilities during nuclear power plant emergencies. The petitioners point out, however, that the Commission's regulations do not provide for periodic demonstration by applicable local, State and Federal entities to ensure that nuclear power plants are protected against radiological sabotage above the DBT level. The petitioners state that their requested amendment would provide reasonable assurance that external authorities could demonstrate that adequate protection is also available against radiological sabotage greater than the DBT level.

The petitioners believe that in order for Americans to be adequately protected, nuclear power plants must be defended against both DBT and beyond-DBT attacks. Therefore, the petitioners request that 10 CFR part 50 be amended in a way similar to current Appendix E to require periodic exercises involving licensees and applicable local, State and Federal entities to demonstrate their capabilities to protect from radiological sabotage greater than the DBT level.

The petitioners believe that the proposed amendment to 10 CFR part 50 will complement current regulations by requiring periodic demonstrations by applicable local, State and Federal entities to ensure that nuclear power plants can be adequately protected against radiological sabotage greater than the DBT level. Accordingly, the petitioners request that the NCR amend its regulations related to emergency preparedness as described previously in the section titled, “The Proposed Amendment.”

We invite you to submit any relevant written data, views, or arguments regarding this supplemental NPRM. Send your comments to an address listed in the ADDRESSES section. Include the docket number “Docket No. FAA-2005-22918; Directorate Identifier 2005-NM-172-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this supplemental NPRM. We will consider all comments received by the closing date and may amend this supplemental NPRM in light of those comments.

We will post all comments submitted, without change, to http://dms.dot.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this supplemental NPRM. Using the search function of that web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov .

You may examine the AD docket on the Internet at http://dms.dot.gov , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level in the Nassif Building at the DOT street address stated in ADDRESSES . Comments will be available in the AD docket shortly after the Docket Management System receives them.

We proposed to amend 14 CFR part 39 with a notice of proposed rulemaking (NPRM) for an airworthiness directive (AD) (the “original NPRM”). The original NPRM applies to certain Airbus Model A319-100 and A320-200 series airplanes. The original NPRM was published in the Federal Register on November 10, 2005 (70 FR 68379). The original NPRM proposed to require repetitive inspections of the wing-tank fuel pumps, canisters, and wing fuel tanks for detached identification labels, and corrective action if necessary.

Since the original NPRM was issued, the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, superseded French airworthiness directive F-2005-121, dated July 20, 2005, and issued EASA airworthiness directive 2006-0236, dated August 10, 2006. The French airworthiness directive was referred to in the original NPRM. The EASA airworthiness directive expands the applicability and mandates the modification of the fuel strainers at the fuel pump and suction bypass intakes, which terminates the repetitive inspections.

Airbus has issued Service Bulletin A320-28-1102, Revision 02, including Appendix 01, dated July 10, 2006 (Revision 01, dated February 11, 2005, was referred to in the original NPRM as the appropriate source of service information for accomplishing the repetitive detailed visual inspections for detached identification labels in the four wing-tank fuel pumps and canisters). The procedures in Revision 02 are essentially the same as those in Revision 01; however, Revision 02 revises the accomplishment timescales, updates the effectivity, and contains editorial changes.

Airbus has also issued Service Bulletin A320-57-1117, Revision 02, including Appendix 01, dated March 13, 2006. We referred to the original issue in the original NPRM as the appropriate source of service information for accomplishing the repetitive detailed visual inspections for detached identification labels in the collector cells between ribs 1 and 2, the surge tank between ribs 22 and 26, and the wing fuel tank and vent box. Additional work is necessary for airplanes on which the original issue of the service bulletin was accomplished. The procedures specified in subsequent revisions of the service bulletin include removing the labels, marking the fastener data on the wing structure with black ink on a white background, and restoring the primer before marking the fastener data on the wing structure. An additional inspection of work accomplished in accordance with previous issues of the service bulletin is also necessary. The inspection involves an adhesion test of the paint applied.

In addition, Airbus has issued Service Bulletin A320-28-1149, dated June 14, 2006. The service bulletin describes procedures for modifying the fuel strainers at the fuel pump and suction bypass intakes. The modification includes, among other things, installing support brackets for the fuel pump strainers; installing new, improved fuel pump strainer assemblies; and installing new, improved fuel pump suction valve strainer assemblies. Accomplishing this modification eliminates the need for the repetitive inspections specified in Service Bulletin A320-28-1102. Service Bulletin A320-28-1149 also recommends prior or concurrent accomplishment of the inspections specified in Service Bulletin A320-57-1117.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The EASA mandated the service information and issued airworthiness directive 2006-0236, dated August 10, 2006, to ensure the continued airworthiness of these airplanes in France.

We have considered the following comments on the original NPRM.

Airbus states that the EASA airworthiness directive corrects the applicability specified therein (and identified in the original NPRM). Airbus adds that the service bulletins have also been revised to list new manufacturer serial numbers (MSNs) in the applicability, including two U.S. MSNs.

We infer that Airbus wants us to change the applicability in the original NPRM and add the revised service information. We agree to change the applicability in this supplemental NPRM to correspond with the EASA airworthiness directive specified in the Discussion section above, and to add the revised Airbus service bulletins specified in the Relevant Service Information section above. Therefore, we have changed paragraphs (c), (f), (g), and (i) of this supplemental NPRM accordingly.

The Air Transport Association (ATA), on behalf of two of its members, Northwest Airlines and America West Airlines, states that the intent of the 600-flight-hour repetitive inspections for detached identification labels in the four wing-tank fuel pumps and canisters is already being addressed per the current master minimum equipment list (MMEL) requirements, and would be superfluous and ineffective. America West asks that the one-pump restriction per MMEL 28-21-01 be removed on airplanes identified in Service Bulletin A320-28-1102. America West states that the pumps will be inspected at sufficient intervals to provide an acceptable level of assurance that the remaining pump is not clogged with labels.

Northwest Airlines states that accomplishing the noted service bulletins and the current MMEL makes the inspection requirement unnecessary. Northwest Airlines adds that this is for two main reasons: First, the only remaining labels will be located in the vent box, and thus not normally immersed in fuel; therefore, it would be improbable that the labels would detach; second, per the MMEL, a wing tank fuel pump cannot be placed on the MEL if a “Fuel Tank LO PR” warning is displayed on the electronic centralized aircraft monitor. If this warning is displayed, the airplane is grounded pending a full inspection of the affected fuel system components.

America West states that the 600-flight-hour repeat interval is not warranted due to the actions taken. America West previously accomplished the inspection of the fuel pumps and canisters specified in Airbus Service Bulletin A320-28-1102, Revision 01. America West adds that it also previously accomplished the inspection of the fuel tank and vent box specified in Airbus Service Bulletin A320-57-1117. America West finds that these actions adequately removed all the labels and it has been over two years since the inspection was accomplished and no labels have been found in the fuel tanks or pumps during that timeframe. America West is concerned that repeating the inspection every 600 flight hours would result in excessive removals of the pumps, which could lead to additional maintenance issues and possible safety issues, such as damage to the pump and/or fuel leaks. America West asks that the repetitive interval be extended to a C-check.

America West also notes that it does not agree with the definition of a detailed inspection specified in the original NPRM. America West explains that the definition would be interpreted as a requirement to have the component torn down in a shop environment, and adds that experience has shown that the pump can have an adequate inspection at the airplane and the canisters can be inspected without removal from the airplane.

We partially agree. We do not agree to remove the repetitive inspections required by paragraph (f) of this supplemental NPRM; however, we do agree to extend the repetitive interval for certain airplanes. We have changed paragraph (g) of this supplemental NPRM to require repeating the inspection at intervals not to exceed 600 flight hours for airplanes on which the actions specified in Airbus Service Bulletin A320-57-1117, Revision 02, dated March 13, 2006, have not been done; or at intervals not to exceed 3,000 flight hours for airplanes on which those actions have been done. This supplemental NPRM would also require repeating the inspection before the next flight following any wing-tank fuel pump failure. This change coincides with the repetitive inspection interval required by the EASA airworthiness directive. In addition, we do not agree to remove the one-pump restriction per MMEL 28-21-01, as this reinforces maintaining safe flight of the airplane following any wing-tank fuel pump failure.

ATA, on behalf of its member U.S. Airways, states that the repair procedure in Appendix 01 of Service Bulletin A320-57-1117 requests operators to apply varnish over the white painted area on which panel fastener information is written using indelible ink. U.S. Airways adds that it found that if a marker is used to re-identify the fastener information, as soon as the recommended varnish is applied, the information gets smudged and smeared and is no longer legible. U.S. Airways used black paint MPN 8000B00701CAQBTX instead of the recommended marker, and after the varnish is applied there is no smudging or smearing. U.S. Airways asks that the supplemental NPRM include approval to use this black paint (or equivalent) in lieu of Eddings 8404.

We do not agree to change the supplemental NPRM to specify alternative marking methods. Revision 02 of Service Bulletin A320-57-1117 includes a note specifying that the varnish be applied with a single brush stroke, as subsequent brush strokes may cause damage to the lettering. However, if operators continue to have problems with the marking they may request an alternative method of compliance to obtain approval for using the black paint, in accordance with the procedures specified in paragraph (l) of this supplemental NPRM. We have made no change to the supplemental NPRM in this regard.

US Airways states that the Costs of Compliance section in the original NPRM specifies 3 work hours (including an operational test) per airplane for the inspection specified in Service Bulletin A320-28-1102, and 6 work hours (including an operational test) for the inspection specified in Service Bulletin A320-57-1117. U.S. Airways notes that the service bulletins referred to in the Costs of Compliance section actually specify 10 and 47 hours respectively. U.S. Airways asks that the work hours be changed to specify between 24 and 30 work hours for accomplishing the inspections.

We do not agree to change the work hours as specified by U.S. Airways. The cost information describes only the direct costs of the specific actions required by this AD. Based on the best data available, the manufacturer provided the number of work hours necessary to do the required actions. These numbers represent the time necessary to perform only the actions actually required by this supplemental NPRM. We recognize that, in doing the actions required by a supplemental NPRM, operators might incur incidental costs in addition to the direct costs. The cost analysis in AD rulemaking actions, however, typically does not include incidental costs such as the time required to gain access and close up, time necessary for planning, or time necessitated by other administrative actions. Those incidental costs, which might vary significantly among operators, are almost impossible to calculate. However, the work hours specified in Revision 02 of Service Bulletin A320-57-1117 were revised to include time necessary for additional procedures. Therefore, we have changed the work hours specified for the inspections in that service bulletin to 20 work hours. We have made no further change to this supplemental NPRM regarding this issue.

The changes discussed above expand the scope of the original NPRM; therefore, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment on this supplemental NPRM.

The EASA airworthiness directive mandates changes to the MMEL. This supplemental NPRM will not mandate those MMEL changes because the limits imposed by the FAA-approved MMEL meet or exceed those mandated by the EASA airworthiness directive. We have coordinated this issue with the EASA.

After the original NPRM was issued, we reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $65 per work hour to $80 per work hour. The costs of compliance, below, reflect this increase in the specified hourly labor rate.

The following table provides the estimated costs for U.S. operators to comply with this supplemental NPRM.

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 supplemental NPRM 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:

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “Docket No. FAA-2007-27712; Directorate Identifier 2006-NM-233-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), you can visit http://dms.dot.gov .

You may examine the AD docket on the Internet at http://dms.dot.gov , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them.

On April 20, 2004, we issued AD 2004-09-10, amendment 39-13599 (69 FR 23647, April 30, 2004), for certain Boeing Model 747 series airplanes. That AD requires a one-time inspection of the potable water and drain lines in the forward and aft cargo compartments for indications of overheating of the heater tape, exposed foam insulation, missing or damaged protective tape, or debris around the potable water fill and drain lines; and corrective action, if necessary. That AD resulted from a report of a fire in the aft cargo compartment of a Boeing Model 767 series airplane due to heater tape on a water fill line overheating and igniting debris accumulated on or near the heater tape. Model 747 series airplanes have a configuration similar to that of the Model 767 and, under similar conditions, are subject to the same unsafe condition. We issued that AD to prevent overheating of the heater tape on potable water fill and drain lines, which could ignite accumulated debris or contaminants on or near the potable water fill and drain lines, and result in a fire in the airplane.

The preamble to AD 2004-09-10 explains that we considered the requirements “interim action” and were considering further rulemaking. We now have determined that further rulemaking is indeed necessary, and this proposed AD follows from that determination.

We have reviewed Boeing Alert Service Bulletin 747-30A2080, Revision 2, dated September 14, 2006. The service bulletin describes procedures for the following actions:

• Repetitive inspections of the potable water supply and gray water drain lines for foreign object debris (FOD) and contamination;

• Removal of FOD and contamination on, near, or around the potable water supply and gray water drain lines;

• Repetitive inspections of the heater tape on the potable water supply and gray water drain lines for heat damage, exposed foam insulation, and missing/damaged protective tape;

• Replacement of all damaged heater tape;

• Covering of the exposed foam insulation with protective tape;

• Replacement of all missing or damaged protective tape; and

• Eventual replacement of the potable water supply and gray water drain line heater tape with new ribbon heaters, which eliminates the need for the repetitive inspections.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

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 2004-09-10. This proposed AD would require accomplishing the actions specified in Boeing Alert Service Bulletin 747-30A2080, Revision 2, dated September 14, 2006, described previously.

There are about 1,114 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, at an average labor rate of $80 per hour. The cost of parts is minimal.

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:

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2007-27713; Directorate Identifier 2006-NM-240-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov.

You may examine the AD docket on the Internet at http://dms.dot.gov, or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them.

Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified us that an unsafe condition may exist on certain Bombardier Model DHC-8-100, DHC-8-200, and DHC-8-300 series airplanes. TCCA advises that there have been six cases reported in which the main landing gear (MLG) shock strut piston over-extended, allowing the torque links to go over-center and rest on the piston. Investigation has revealed that over-extension of the shock strut resulted from damage to the upper bearing and seal carrier, caused by a loss of internal damping.

Over-extension of the MLG shock strut piston, if not corrected, could result in loss in shock absorption during touchdown and failure of the shock strut housing, which could result in a subsequent loss of directional control.

Bombardier has issued Service Bulletin 8-32-144, Revision ‘A,' dated April 29, 2002, including Messier-Dowty Service Bulletin M-DT SBDHC8-32-82, Revision 1, dated July 5, 2001 (for Model DHC-8-311, -314, and -315 airplanes). The service bulletin describes procedures for modifying the upper bearing in each MLG. The modification includes an inspection of the two halves of the upper bearing for wear and damage, the removal of the needle roller from the upper bearing, an inspection of the cylinder bore for damage and wear, and corrective action if necessary. The corrective action includes replacing the upper bearing with a new bearing and contacting the parts manufacturer if damage or wear that exceeds the maximum diameter is found on the cylinder bore.

Bombardier has issued the following de Havilland Dash 8 maintenance task cards to the applicable Bombardier DHC-8 Maintenance Program Manual (Program Support Manuals 1-8-7, 1-82-7, and 1-83-7). These tasks describe procedures for servicing the MLG shock struts:

• Dash 8 Series 100 Maintenance Task Card 3210/15, dated June 22, 2005;

• Dash 8 Series 200 Maintenance Task Card 3210/15, dated June 22, 2005; and

• Dash 8 Series 300 Maintenance Task Card 3210/15, dated November 29, 2005.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. TCCA mandated the service information and issued Canadian airworthiness directive CF-2006-14, effective July 21, 2006, to ensure the continued airworthiness of these airplanes in Canada.

These airplane models are manufactured in Canada and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, TCCA has kept the FAA informed of the situation described above. We have examined TCCA's findings, evaluated all pertinent information, and determined that we need to issue an AD for airplanes of this type design that are certificated for operation in the United States.

Therefore, we are proposing this AD, which would require, for certain airplanes, accomplishing the actions specified in the service bulletin described previously, and, for certain airplanes, revising the applicable DCH-8 Maintenance Program Manual to include the MLG shock strut servicing Task 3210/15, except as discussed under “Difference Between the Proposed AD and the Service Bulletin.”

The service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions using a method that we or TCCA (or its delegated agent) approve. In light of the type of repair that would be required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that, for this proposed AD, a repair we or TCCA approve would be acceptable for compliance with this proposed AD.

The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

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:

Comments Invited

We invite you to send any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA- 2007-26966; Directorate Identifier 99-NE-01-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of the DMS Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://dms.dot.gov.

You may examine the docket that contains the proposal, any comments received and any final disposition in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES . Comments will be available in the AD docket shortly after the DMS receives them.

We are transferring the docket for this proposed AD to the Docket Management System as part of our on-going docket management consolidation efforts. The new Docket No. is FAA-2007-26966. The old Docket No. became the Directorate Identifier, which is 99-NE-01-AD.

On March 29, 1999, we issued AD 99-02-51, Amendment 39-11108 (64 FR 16339, April 5, 1999), applicable to RRC AE 3007A and AE 3007C series turbofan engines. That AD prohibits any flight following a ground engine start where the engine oil temperature is below 32 °F (0 °C), unless certain preflight operational procedures are followed to ensure that there is no excessive loss of oil from leakage at the air turbine starter shaft. That action resulted from reports of in-flight engine shutdowns attributed to loss of engine oil from the starter shaft seal.

Since we issued AD 99-02-51, RRC, Cessna Aircraft Company, and Empresa Brasileira de Aeronautica S.A. (EMBRAER) issued Service Bulletins (SBs) that describe a procedure to install a cap on the accessory gearbox starter pad drain fitting to prevent rapid engine oil loss during flight. These SBs were approved in 1999 as AMOCs to the requirements of AD 99-02-51. In September 2001, RRC developed single- and multi-orifice restrictors that were approved for use also as an AMOC that replaced the drain fitting cap in the previous AMOCs. RRC has since improved the design for the multi-orifice restrictor which is also approved as an AMOC. Since we approved these AMOCs, RRC released an improved seal for the accessory gearbox air turbine starter mounting pad. On January 19, 2006, we approved a terminating action AMOC incorporating the improved seal. That AMOC requires no cap or restrictor on the starter drain, but does not require removal of those components either. This proposed AD would mandate the removal of the AMOC configurations incorporating caps or restrictors and the installation of an open drain adapter.

We have reviewed and approved the technical contents of the following RRC SBs:

• SB No. AE 3007A-72-321 AE 3007C-72-250, Revision 2, which describes procedures for installing an improved starter shaft seal.

• SB No. AE 3007C-72-223, Revision 1, and SB No. AE 3007A-72-330, Revision 1, which describe procedures for installing an open starter drain adapter.

• SB No. AE 3007A-72-274, Revision 1, which describes procedures for removing the drain cap or starter drain adapter on AE 3007A series engines.

The SB issue dates do not appear in this proposed AD because we agreed to allow RRC to assign the final rule AD issue date to them, as they want to reference the AD number in the SBs.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. We are proposing this AD, which would:

• Prohibit before further flight, any flight following a ground engine start where the engine oil temperature is below 32 °F (0 °C), unless certain preflight operational procedures are followed to ensure that there is no excessive loss of oil from leakage at the air turbine starter shaft; and

• Require terminating action to the prohibition requirements of the existing AD, by removing from service certain seal P/Ns from the accessory gearbox air turbine starter mounting pad and installing an improved seal; and

• Require removing certain P/N drain caps, drain adapters, and orifice inserts, and installing an open adapter on the starter pad drain.

The proposed AD would require that you do these actions using the service information described previously.

We estimate that this proposed AD would affect 1,868 RRC AE 3007A and AE 3007C series turbofan engines installed on aircraft of U.S. registry. We also estimate that it would take about 4 work-hours per engine to perform the proposed terminating action, and that the average labor rate is $80 per work-hour. Required parts would cost about $2,917 per engine. Based on these figures, if all engines incorporated the terminating action, we estimate the total cost of the proposed AD to U.S. operators to be $6,046,100.

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 AD:

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. Would 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. See the ADDRESSES section for a location to examine the regulatory evaluation.

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

The Occupational Safety and Health Administration (OSHA) has completed a “lookback” review of its Excavations Standard, 29 CFR part 1926, Subpart P, §§ 1926.650 to 1926.652 and Appendices A to F, titled “Regulatory Review of 29 CFR part 1926, Subpart P: Excavations, March 2007” (“Regulatory Review”). This Federal Register document announces the availability of the Regulatory Review and briefly summarizes it.

The Regulatory Review was undertaken pursuant to and meets the requirements of section 610 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) and section 5 of Executive Order 12866 (59 FR 51739, Oct 4, 1993). The purpose of a review under section 610 of the Regulatory Flexibility Act is to determine whether a rule should be continued without change, or should be amended or rescinded, consistent with the stated objectives of applicable statutes to minimize any significant impact of the rule on a substantial number of small entities. In making this determination, the Agency considers the following factors:

(1) The continued need for the rule;

(2) The nature of complaints or comments received concerning the rule from the public;

(3) The complexity of the rule;

(4) The extent to which the rule overlaps, duplicates or conflicts with other Federal rules; and to the extent feasible, with state and local governmental rules; and

(5) The length of time since the rule has been evaluated and the degree to which technology, economic conditions, or other factors have changed in the areas affected by the rule.

Under section 5 of Executive Order 12866, agencies examine whether rules have become unjustified or unnecessary as a result of changed circumstances, whether they are both compatible with other rules and not duplicative or inappropriately burdensome in the aggregate, whether they are consistent with the President's priorities and the principles set forth in the Executive Order, within applicable law, and whether their effectiveness can be improved.

On October 31, 1989, OSHA issued a final, revised Standard for excavation and trenching, at 54 FR 45894. The revision updated the previous standard by simplifying many of the existing provisions, adding and clarifying definitions, eliminating duplicate provisions and ambiguous language, and giving employers added flexibility in providing protection for employees. In addition, the Standard provided several new appendices. One appendix provided a consistent method of soil classification. Others provided sloping and benching requirements, pictorial examples of shoring and shielding devices, timber tables, hydraulic shoring tables and section charts that provide a graphic summary of the requirements contained in the Standard.

On August 21, 2002, OSHA published a Federal Register document requesting public comments on the Excavations Standard and, specifically, on all issues raised by section 610 of the RFA and section 5 of Executive Order 12866 (67 FR 54103). The Regulatory Review summarizes the public comments and responds to them, and makes the following major findings:

• There is a continued need for the Standard. The annual number of trenching and excavation fatalities has declined from an estimated 90 fatalities per year prior to the enactment of the 1989 Standard, to approximately 70 per year since 1990.

This 22% reduction is even more impressive given the 20% real increase in construction activity over this period. Therefore, in relation to increased construction activity, fatalities have been reduced by more than 40%. Although the Standard has improved safety, it remains needed in light of the ongoing occurrence of related fatalities, most of which result from violations of the Standard. OSHA intends to expand outreach and maintain enforcement to further reduce fatalities.

• The Standard does not impose an unnecessary or disproportionate burden on small business or on industry in general. The cost of protective systems has decreased by 10 percent in real dollars between 1990 and 2001. The number of small businesses engaged in excavation activity has increased, and the percentage of excavation work done by small business has increased. Real construction activity has increased.

• There is no indication that employers are unable to comply due to the complexity of the revised Standard. Nonetheless, public comments suggested some ways in which the Standard might be simplified or clarified (although some argued that any changes would only serve to confuse and discourage those who now understand and follow the Standard). The expanded outreach will address these matters.

• In general, the Standard does not overlap, duplicate, or conflict with other state or Federal rules. Several commenters, however, identified a possible conflict between the Excavations Standard and OSHA's standard for confined spaces. OSHA will address this issue in its future rulemaking for confined spaces in construction.

• Economic and technological trends have not reduced the need for the Standard. However, the development of so-called “trenchless” technologies (e.g., directional boring machines) has added a new dimension to excavation work (including additional hazards) that OSHA will monitor.

• Public comments contained some specific suggestions for how the Standard could be made more effective, although the comments were divided as to whether or not the Standard should be modified. In light of the effectiveness of the Standard, the certainty it has created, and limited regulatory resources, major modifications are not of high priority.

• The National Transportation Safety Board (NSTB) recommended that OSHA amend the Excavations Standard to require employers to notify appropriate authorities after excavation activities create a gas leak or leak of other hazardous substances. Since then, the “Pipeline Inspection, Protection, Enforcement, and Safety Act (PIPES) of 2006” has been enacted. Section 2 of PIPES requires all persons (including employers) engaged in demolition, excavation, tunneling, or construction to immediately call 911 if: (1) They damage a pipeline that may endanger life or cause serious bodily harm or damage to property; and (2) such damage results in the escape of flammable, toxic, or corrosive gas or liquid. OSHA will monitor the implementation of PIPES and consider whether amending the Excavations Standard as suggested by NTSB is necessary and appropriate.

• The Standard remains consistent with the President's priorities to the extent that it has produced the intended benefits, a reduction in trenching and excavation fatalities and injuries, while not causing negative economic effects.

Based on the findings of this review, OSHA finds that the Excavations Standard should be continued. OSHA also believes that further increases in safety might be achieved through increased outreach and training.

In the Final Rules section of this Federal Register , EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules section of this Federal Register .

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

A. Submitting CBI. Do not submit this information to EPA through http:// www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

B. Tips for Preparing Your Comments. When submitting comments, remember to:

1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

2. Follow directions—The EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

4. Describe any assumptions and provide any technical information and/or data that you used.

5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

6. Provide specific examples to illustrate your concerns, and suggest alternatives.

7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

8. Make sure to submit your comments by the comment period deadline identified.

On April 15, 2004, the EPA designated 5 counties in Cincinnati, Ohio (Hamilton, Butler, Clinton, Warren and Clermont counties—Cincinnati-Hamilton, OH-KY-IN) and 4 counties in Dayton, Ohio (Clark, Greene, Miami, and Montgomery counties—Dayton-Springfield, OH) as nonattainment for the 8-hour ozone standard. Both areas have been designated Basic nonattainment with respect to the 8-hour ozone standard and they are required to attain the standard as expeditiously as practicable, but no later than June 2009.

As part of the State of Ohio's (Ohio) efforts to bring these areas into attainment, the State is adopting and implementing a broad range of ozone control measures including control of emissions from auto refinishing operations, the reduction of VOC emission from portable fuel containers, the adoption of industrial solvent degreasing rules, and the implementation of a 7.8 pound per square inch (psi) RVP fuel program.

Ohio originally proposed to replace the State's vehicle inspection and maintenance (I/M) program in Cincinnati and Dayton, which was discontinued by the State on December 31, 2005, with the requirement to supply 7.8 psi RVP gasoline to these areas starting in 2006. However, the State has since modified its original request and has asked that EPA act on the state's fuel waiver request to allow the use of 7.8 psi RVP gasoline in both areas. On February 14, 2006, Ohio submitted the fuel waiver request as a SIP revision and the submittal included adopted amended rules under Ohio Administrative Code Chapter 3745-72 “Low Reid Vapor Pressure Fuel Requirements” to require the use of 7.8 psi RVP gasoline in the Cincinnati and Dayton areas beginning on June 1, 2006.

Soon after the State's February 14, 2006 submittal, the American Petroleum Institute (API) appealed the State's 7.8 psi RVP rule on the basis that there was insufficient time to implement the rule and that EPA had not yet issued a waiver under section 211(c)(4)(C) of the CAA, as amended. EPA conducted an informal survey of gasoline suppliers and determined that there was not enough 7.8 psi RVP gasoline to supply the Cincinnati and Dayton nonattainment areas during the 2006 ozone season. As part of the State's settlement with API on its appeal, Ohio agreed to revise the rule to delay the effectiveness of the rule until twelve months following the approval of a fuel waiver by EPA in order to ensure that there is sufficient time for the regulated community to prepare for the change.

On July 10, 2006, the Ohio Environmental Protection Agency (OEPA) adopted amended rules under the Ohio Administrative Code Chapter 3745-72 “Low Reid Vapor Pressure Fuel Requirements” to modify the implementation date for the required use of 7.8 psi RVP gasoline in the Cincinnati and Dayton areas to be one year after the approval of a fuel waiver under CAA amendments section 211(c)(4)(C). Public hearings on the amended rules were held on June 2, 2006, in Columbus, Ohio and the rules became effective on July 17, 2006.

The OEPA submitted these amended low-RVP rules to EPA as a revision to the SIP on October 6, 2006. As part of the October 6, 2006 submittal, OEPA included additional technical support for the SIP revision, including documentation supporting the State's request to waive the CAA preemption of State fuel controls pursuant to section 211(c)(4) of the CAA. The documentation demonstrates that a low-RVP fuel is critical to the Cincinnati and Dayton ozone nonattainment areas attainment of the 8-hour ozone standard.

Reid Vapor Pressure, or RVP, is a measure of a gasoline's volatility at a certain temperature and is a measurement of the rate at which gasoline evaporates and emits VOCs; the lower the RVP, the lower the rate of evaporation. The RVP of gasoline can be lowered by reducing the amount of its more volatile components, such as butane. Lowering RVP in the summer months can offset the effect of high summer temperatures upon the volatility of gasoline, which, in turn, lowers emissions of VOC. Because VOC is a necessary component in the production of ground level ozone in hot summer months, reduction of RVP will help areas achieve the NAAQS for ozone and thereby produce benefits for human health and the environment.

The primary emission reduction benefit from low-RVP gasoline used in motor vehicles comes from reductions in VOC evaporative emissions; exhaust emission reductions are much smaller. Because oxides of nitrogen (NO X ) are a product of combustion from motor vehicles, they will not be found in evaporative emissions, and low-RVP gasoline will have little or no effect on NO X .

In determining the approvability of a SIP revision, EPA must evaluate the proposed revision for consistency with the requirements of the CAA and EPA regulations, as found in section 110 and part D of the CAA and 40 CFR part 51 (Requirements for Preparation, Adoption, and Submittal of Implementation Plans).

For SIP revisions approving certain state fuel measures, an additional statutory requirement applies. CAA section 211(c)(4)(A) prohibits state regulations respecting a fuel characteristic or component for which EPA has adopted a control or prohibition under section 211(c)(1), unless the state control is identical to the federal control. Section 211(c)(4)(C) provides an exception to this preemption if EPA approves the state requirements in a SIP. Section 211(c)(4)(C) states that the Administrator may approve an otherwise preempted state fuel standard in a SIP:

EPA's August, 1997 “Guidance on Use of Opt-in to RFG and Low RVP Requirements in Ozone SIPs” gives further guidance on what EPA is likely to consider in making a finding of necessity. Specifically, the guidance recommends breaking down the necessity demonstration into four steps: (1) Identifying the quantity of reductions needed to reach attainment; (2) identifying other possible control measures and the quantity of reductions each measure would achieve; (3) explaining in detail which of those identified control measures are considered unreasonable or impracticable; and, (4) showing that, even with the implementation of all reasonable and practicable measures, the state would need additional emission reductions for timely attainment, and that the state fuel measure would supply some or all of such additional reductions.

EPA has evaluated the submitted SIP revision and has determined that it is consistent with the requirements of the CAA, EPA regulations, and conforms to EPA's completeness criteria in 40 CFR part 51, Appendix V. Further, EPA has looked at Ohio's demonstration that the low-RVP fuel control is necessary in accordance with Section 211(c)(4)(C) of the CAA and agrees with the State's conclusion that a fuel measure is needed to achieve the 8-hour ozone NAAQS.

The SIP submittal contains: (1) 7.8 low vapor pressure gasoline waiver request for Cincinnati and Dayton; (2) Amendments to Ohio Administrative Code, Chapter 3745-72 “Low Reid Vapor Pressure Fuel Requirements”, effective January 16, 2006 and July 17, 2006; (3) Additional support for 7.8 Reid Vapor Pressure fuel waiver dated October 6, 2006; and, (4) the public hearing records dated December 7, 2005 and June 2, 2006.

CAA section 211(c)(4)(A) preempts certain state fuel regulations by prohibiting a State from prescribing or attempting to enforce any control or prohibition respecting any characteristic or component of a fuel or fuel additive for the purposes of motor vehicle emission control if the Administrator has prescribed under section 211(c)(1) a control or prohibition applicable to such characteristic or component of the fuel or fuel additive, unless the state prohibition is identical to the prohibition or control prescribed by the Administrator.

EPA has adopted federal RVP controls under CAA sections 211(c) and 211(h). See 56 FR 64704 (December 12, 1991). These regulations are found in 40 CFR 80.27. The State of Ohio is currently required under the federal rule to meet a 9.0 psi RVP standard. See 40 CFR 80.27(a)(2).

As stated previously, a State may prescribe and enforce an otherwise preempted low-RVP requirement only if the EPA approves the control into the State's SIP. In order to approve a preempted state fuel control into a SIP, EPA must find that the state control is necessary to achieve a NAAQS because no other measures that would bring about timely attainment exist or that such measures exist but are either not reasonable or practicable. Thus, to determine whether Ohio's low-RVP rule is necessary to meet the ozone NAAQS, EPA must consider whether there are other reasonable and practicable measures available to produce the emission reductions needed to achieve the 8-hour ozone NAAQS.

To estimate the emission reductions needed in the Cincinnati and Dayton areas to achieve attainment of the ozone NAAQS, EPA used modeling information developed by the Lake Michigan Air Directors Consortium (LADCO). This analysis used the CAMx (Comprehensive Air Quality Model with Extensions) photochemical dispersion model to simulate expected concentrations throughout much of the Eastern United States. Using procedures recommended by EPA, LADCO used modeling results for 2002 and 2009 to estimate the reduction in ozone concentrations expected to occur by 2009. These results project that the emission reductions expected to occur by 2009 in the Cincinnati and Dayton areas will bring the areas into attainment of the 8-hour ozone standard. This modeling reflects emission reductions as if the vehicle inspection and maintenance program were still operating but with no reductions from low RVP gasoline. LADCO also modeled conditions for 2008 and then projected concentrations to continue to exceed the standard. Therefore, EPA finds the level of emission reductions achieved by 2009 to represent the reductions necessary to attain the standard.

Interpretation of the quantity of emission reductions needed to attain the ozone standard is complicated by the fact that ozone results from chemical reactions involving both VOC and NO X . A given air quality improvement (e.g., attaining the standard) can result from a variety of combinations of reductions of the emissions of these two precursors. That is, the quantity of VOC emission reduction needed to attain the standard is in part a function of the quantity of NO X emission reduction expected to occur.

While other combinations of VOC and NO X emission reduction would also be expected to provide for attainment, EPA is using the combination of VOC and NO X emissions modeled by LADCO to define the emission reductions needed to attain the standard in the Cincinnati and Dayton areas. By this means, EPA determined that the necessary emission reductions for VOC in the Cincinnati area is 47 tons per day and in the Dayton area is 21 tons per day, for a total of 68 tons per day. EPA considers these amounts as the necessary VOC emissions reductions based on an expectation that NO X emissions will simultaneously be reduced by 202 tons per day in the Cincinnati area and by 39 tons per day in the Dayton area, for a total of 241 tons per day.

Some of these emission reductions will be achieved by programs that have already been adopted, most notably including the Federal Motor Vehicle Control Program. In order to assess the need for low RVP fuel, EPA sought to estimate the quantity of emission reduction needed for attainment by 2008 beyond the reductions provided by these programs. Because the modeling suggests attainment by 2009, one year after the date by which attainment must begin, the one year's emission reduction (from 2008 to 2009) is an approximation of the additional emission reduction needed for the area to begin attaining by 2008. EPA estimated this one year's emission reduction as 1/7 of the emission reduction expected between 2002 and 2009. Thus, EPA estimated that the additional emission reduction needed will be approximately 7 tons per day in the Cincinnati area and approximately 3 tons per day in the Dayton area, for a total of approximately 10 tons per day in the Cincinnati/Dayton area.

Some features of these estimates warrant note. First, the deadline for Cincinnati and Dayton to meet the air quality standard is 2009, which means that any VOC reductions contributing to attainment would need to occur during the 2008 ozone season. Thus, the emission inventory and modeling information from LADCO do not directly assess whether the set of measures assumed in the analysis will suffice to assure timely attainment. Second, the emission inventory includes emission reductions that would be expected were Ohio to restart a vehicle inspection and maintenance program and does not include the emission reductions that are expected from use of low RVP gasoline. Third, while EPA believes that the modeling is adequate for purposes here, EPA recognizes that Ohio and other states are continuing to refine their emission inventories and modeling analyses, and EPA is not attempting to evaluate here whether the analysis would constitute an adequate attainment demonstration as required under CAA section 172(c)(1). Moreover, under CAA section 211(c)(4)(C)(i), EPA is allowed to make a finding of necessity even if the plan for an area does not contain an approved demonstration of timely attainment. Fourth, EPA recognizes the uncertainties inherent in modeling. For this reason, EPA guidance recommends that states supplement the modeling with additional analyses to be used as weight of evidence in assessing whether the modeling overstates or understates the air quality improvement that is expected. The above estimates of reductions needed to attain the standard in the Cincinnati and Dayton areas are taken directly from LADCO modeling results without considering any additional analyses that Ohio may submit along with its attainment demonstrations.

The State evaluated an extensive list of non-fuel alternative controls to determine if reasonable and practicable controls could be adopted and used to attain the 8-hour ozone NAAQS by the required deadline.

The State evaluated a wide range of control measures, considering the following factors: VOC emission reduction potential; ability to implement the control measure expeditiously; cost; and, ease of implementation. Ohio summarized the results of this evaluation in a document entitled “RVP Rule Waiver Request Addendum.”

After evaluating a wide range of other controls for their reasonableness and practicability, four measures did rise to the top: the reduction of VOC emission from auto refinishing operations, the reduction of VOC emissions from portable fuel containers, the adoption of rules for industrial solvent degreasing, and, the lowering of gasoline vapor pressure to 7.8 psi during the summer months. Ohio determined that the rest of the control measures would not achieve emission reductions early enough to bring about timely attainment, were technically impossible to implement, and, were either unreasonable or impracticable.

In the case of auto refinishing operations, the State has adopted rules that require high volume, low pressure spray equipment and additional work practice requirements. The State's analysis indicates that the application of such controls could yield emission reductions comparable to those from other source categories in the range of approximately 0.7 tons per day (including 0.4 tons per day in the Cincinnati area and 0.3 tons per day in the Dayton area), in a time period compatible with the State's commitment to attain the 8-hour NAAQS as expeditiously as possible. Ohio's evaluation also showed that VOC reductions in the range of 4.3 tons per day (including 2.6 tons per day from the Cincinnati area and 1.7 tons per day in the Dayton area) could be achieved through the adoption of industrial solvent cleaning (degreasing) regulations. In addition, the implementation of statewide rules requiring the use of newly designed spill proof portable fuel containers would achieve a modest reduction of about 0.4 tons per day across the Cincinnati/Dayton area by 2008.

The State's analysis identified that adoption of all measures determined to be reasonable and practicable would at most result in approximately 5.2 tons per day of emission reductions by 2008. Thus, even with implementation of all reasonable and practicable non-fuel control measures, additional VOC reductions are necessary.

Ohio's 7.8 psi RVP fuel requirement, which includes a 1 psi exemption for ethanol blended fuels, is calculated to achieve approximately 4.6 tpd of VOC reductions in Cincinnati and 4.2 tpd of VOC reductions in Dayton beginning the summer of 2008. EPA believes these emission reductions are necessary to achieve the ozone NAAQS in both areas. EPA is basing today's action on the information available to us at this time, which indicates that adequate reasonable and practicable non-fuel measures that would achieve these needed emission reductions, and protect Ohio's air quality in a timely manner are not available to the State. Hence, EPA finds that the 7.8 psi RVP fuel program is necessary for attainment of the applicable ozone NAAQS, and is proposing to approve it as a revision to the Ohio SIP.

The Energy Policy Act of 2005 (EPAct) amends the CAA by requiring EPA, in consultation with the Department of Energy (DOE), to determine the total number of fuels approved into all SIPs under section 211(c)(4)(C), as of September 1, 2004, and to publish a list that identifies these fuels, the States and Petroleum Administration for Defense Districts (PADD) in which they are used. CAA section 211(c)(4)(C)(v)(II). It also places three additional restrictions on EPA's authority to waive preemption by approving a State fuel program into the SIP.

These restrictions are as follows:

• First, EPA may not approve a State fuel program into the SIP if it would cause an increase in the total number of fuel types approved into SIPs as of September 1, 2004.

• Second, in cases where EPA approval of a fuel would increase the total number of fuel types on the list but not above the number approved as of September 1, 2004, because the total number of fuel types in SIPs is below the number of fuel types as of September 1, 2004, we are required to make a finding after consultation with DOE, that the new fuel will not cause supply or distribution interruptions or have a significant adverse impact on fuel producibility in the affected or contiguous areas.

• Third, with the exception of 7.0 psi RVP, EPA may not approve a state fuel into a SIP unless that fuel type is already approved in at least one SIP in the applicable PADD. CAA Section 211(c)(4)(C)(v)(I), (IV) and (V).

On December 28, 2006, EPA published the final notice containing the final interpretation, which was a fuel type interpretation, of the EPAct provisions (See 71 FR 78192). We also determined and published a list of the total number of fuels approved into all SIPs, under section 211(c)(4)(C) as of September 1, 2004.

Any approval of a 7.8 psi RVP program would be subject to the EPAct restrictions, described earlier above. More specifically, any approval of a 7.8 psi RVP program must not cause an increase in the total number of fuel types approved into all SIPs as of September 1, 2004. Under our final interpretation, Ohio's 7.8 psi RVP requirement for the Cincinnati and Dayton areas is not a “new fuel type.” EPA's approval of Ohio's 7.8 psi RVP will not increase the total number of fuels approved into all SIPs, as of September 1, 2004, because 7.8 psi RVP is on the list of fuels types. Further, because the total number of fuels approved into all SIPs at this time is not below the number of fuels on the final list of fuels, which we published on December 28, 2006 (71 FR 78192), we do not believe that we need to make a finding on the effect of a 7.8 psi RVP fuel requirement in Cincinnati and Dayton on fuel supply and distribution in either Cincinnati/Dayton or the contiguous areas. We note, however, that Ohio has delayed the effectiveness of the 7.8 psi RVP fuel requirements until twelve months following the EPA approval of its request for a fuel waiver in order to ensure that there is sufficient compliance time for the regulated community. Finally, because the 7.8 psi RVP fuel type is already approved in at least one SIP (Indiana (61 FR 4895, (February 9, 1996)) in the PADD where Ohio is located, EPA has determined that the Agency is not restricted from approving the 7.8 psi fuel program into the Ohio SIP.

In today's action, we are proposing approval of Ohio's 7.8 psi RVP program as consistent with the provisions of EPAct.

EPA is proposing to approve a SIP revision at the request of the OEPA. To ensure that it secures the needed approval under section 211(c)(4)(C) of the CAA, Ohio submitted this action for EPA approval to make it part of the SIP.

On May 9, 2006, OEPA submitted several VOC rules for approval into the SIP and EPA published a proposed approval of these rules on December 6, 2006 (71 FR 70699). The rules include a provision requiring the use of lower emitting solvents in cold cleaner degreasers, the use of more efficient auto refinishing painting application techniques and a rule requiring the use of lower emitting portable fuel containers all which are discussed in this notice. In addition, EPA recently received a redesignation request from OEPA for the Dayton 8-hour ozone nonattainment area. EPA is currently reviewing the submittal and the implication of any of these additional materials on the approval of the fuel waiver request.

EPA is proposing to approve a SIP revision submitted by the State of Ohio on February 14, 2006 and October 6, 2006, establishing a 7.8 psi RVP fuel requirement for gasoline distributed in the Cincinnati and Dayton 8-hour ozone nonattainment areas which include Montgomery, Miami, Greene, Clark, Hamilton, Butler, Warren and Clermont counties. EPA is proposing to approve Ohio's fuel requirements into the SIP because EPA has found that the requirements are necessary for the Cincinnati and Dayton areas to achieve the NAAQS for ozone.

Under Executive Order 12866 (58 FR 51735, September 30, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.

This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.

This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it proposes approval of a state rule implementing a Federal Standard.

Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant regulatory action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impractical. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a SIP submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a program submission that otherwise satisfies the provisions of the Clean Air Act. Therefore, the requirements of section 12(d) of the NTTA do not apply.

Regulated Entities. Entities potentially affected by this action include facilities containing any one or more of the 22 major source categories subject to the 12 national emission standards for hazardous air pollutants (NESHAP) (or commonly referred to maximum achievable control technology (MACT) standards) listed in Table 1. This action does not affect area sources, as these NESHAP do not apply to area sources. Industries regulated by these MACT are classified by the North American Industry Classification System (NAICS) codes shown in Table 1. In addition, a classification system of MACT codes has been developed and is used in the 2002 NEI to identify processes included in each MACT source category. The MACT codes for the 22 source categories addressed in this notice are also displayed in Table 1.

Submitting Comments/CBI. When submitting comments, remember to identify this ANPRM by docket number and other identifying information (subject heading, Federal Register date, and page number). Also, make sure to submit your comments by the comment period deadline identified. As described further in section VII of this ANPRM, specific data change suggestions need to be accompanied by supporting documentation that includes a description of any assumptions used and any technical information and/or data that you used.

Do not submit CBI to EPA through www.regulations.gov or e-mail. Instead, send or deliver information identified as CBI only to the following address: Mr. Roberto Morales, OAQPS Document Control Officer (C404-02), U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC 27711, Attention Docket ID No. EPA-HQ-OAR-2006-0859. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD-ROM that you mail to Mr. Morales, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. If you submit a CD-ROM or disc that does not contain CBI, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice.

If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

Worldwide Web (WWW). In addition to being available in the docket, an electronic copy of today's notice is also available on the World Wide Web through the Technology Transfer Network (TTN). Following signature by the EPA Administrator, a copy of today's notice will be posted on the TTN's policy and guidance page for newly proposed or promulgated NESHAP at http://www.epa.gov/ttn/oarpg . The TTN provides information and technology exchange in various areas of air pollution control.

As discussed in more detail in section VI of this ANPRM, additional information is available on the Risk and Technology Review Phase II Web page at http://www.epa.gov/ttn/atw/rrisk/rtrpg.html . This information includes source category descriptions and detailed emissions and other data that will be used as model inputs.

Outline. The information presented in this preamble is organized as follows:

Section 112 of the Clean Air Act (CAA) establishes a two-stage regulatory process to address emissions of hazardous air pollutants (HAP) from stationary sources. In the first stage, after EPA has identified categories of sources emitting one or more of the HAP listed in CAA section 112(b), section 112(d) of the CAA calls for promulgation of technology-based emission standards for those sources. For “major sources” that emit or have the potential to emit 10 tons per year or more of any single HAP or 25 tons per year or more of any combination of HAP, these technology-based standards must reflect the maximum reductions of HAP achievable (after considering cost, energy requirements, and non-air health and environmental impacts). These technology based standards are commonly referred to as MACT standards. Between 1993 and 2004, EPA published 96 MACT standards (or NESHAP) covering 174 source categories. In this first stage, the focus was on ensuring reductions through available technologies. CAA Section 112(d)(6) requires EPA to review these emission standards and to revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less frequently than every 8 years.

The second stage in standard-setting focuses on reducing any remaining “residual” risk according to CAA section 112(f). This provision requires, first, that EPA prepare a Report to Congress discussing (among other things) methods of calculating risk posed (or potentially posed) by sources after implementation of the MACT standards, the public health significance of those risks, the means and costs of controlling them, actual health effects to persons in proximity of emitting sources, and recommendations as to legislation regarding such remaining risk. EPA prepared and submitted this report (Residual Risk Report to Congress, EPA-453/R-99-001) in March 1999. Congress did not act in response to the report, thereby triggering EPA's obligation under CAA section 112(f)(2) to analyze and address residual risk.

Section 112(f)(2) of the CAA then directs EPA to assess the risk remaining (residual risk) after the application of the MACT standards and promulgate more stringent standards for a category or subcategory of sources subject to MACT standards if promulgation of such standards is necessary to protect public health with an ample margin of safety or to prevent (taking into consideration various factors) adverse environmental effects. The standards to be promulgated under this subsection must “provide an ample margin of safety to protect public health in accordance with this section (as in effect before the date of enactment of the CAA Amendments of 1990), unless the Administrator determines that a more stringent standard is necessary to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental impact.” Section 112(f)(2) of the CAA expressly preserves our use of a two-step process for developing standards to address any residual risk and our interpretation of “ample margin of safety” developed in the “National Emission Standards for Hazardous Air Pollutants: Benzene Emissions from Maleic Anhydride Plants, Ethylbenzene/Styrene Plants, Benzene Storage Vessels, Benzene Equipment Leaks, and Coke By-Product Recovery Plants” (Benzene NESHAP) (54 FR 38044, September 14, 1989).

To date, EPA has conducted CAA 112(d)(6) technology reviews and promulgated residual risk standards for eight (Halogenated Solvents will be promulgated in April 2007) individual NESHAP and their associated source categories. In an effort to streamline this process for the remaining source categories, EPA plans to address residual risk and perform a technology review for several source categories in one combined effort. While the standard review and development process will be streamlined, each source category will be assessed independently and decisions on the level of any standards will be made individually for each source category. The first set of MACT source categories for which this streamlined process will be undertaken includes the 50 source categories listed in Table 2, all of which have MACT compliance dates of 2002 and earlier. (Except for the Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills source category, which has a compliance date of January 2004, these facilities are believed to be in compliance with MACT as of 2002, so the NEI reflects their post-MACT compliance emissions.) This action is referred to as Phase II of the Risk and Technology Review (RTR) process (where the first eight individual NESHAP comprise Phase I). Other MACT standards will be reviewed in the future. While the initial phases of data compilation and EPA internal review processes have been completed for each of the 50 source categories included in RTR Phase II, the source categories have been divided into smaller groups to ease the burden on public commenters and EPA's review of public comments and the rulemaking processes. Table 2 shows the source categories EPA anticipates including in each group of the RTR Phase II.

This ANPRM addresses only the 22 source categories included in Group 2. As initial analyses for each source category included in Group 1 of the RTR Phase II indicate that estimated health risks to the individual most exposed to emissions from a facility in the source category meet levels the Agency considers to be without appreciable health risk and it is improbable that these source categories emit pollutants that would cause adverse environmental effects, we plan to publish a Notice of Proposed Rulemaking (NPRM) in the Federal Register for the 8 source categories in Group 1 without previously issuing an ANPRM. The remaining source categories were split into two groups. Group 2 is generally comprised of source categories with earlier deadlines, fewer multipathway concerns, and categories that the Agency believes will require fewer resources to complete. The source categories in the other group generally have later deadlines and more multipathway concerns. Additional notices will be published addressing the other source categories in the future.

We plan to follow the same general process in revising NESHAP to address residual risk for each of Group 2 source categories listed in the table above. This general approach includes the following primary steps :

1. Compile and review (and update with facility-specific data collected by EPA in some cases) readily available source category emissions data from the 2002 NEI.

2. For each group of source categories, conduct preliminary evaluations to identify key HAP and data anomalies.

3. Make emissions and other modeling input data, along with a list of the identified key HAP and data anomalies, available for public comment through an ANPRM.

4. Reconcile and update emissions and other modeling input data, based on comments received, and conduct a risk assessment for each category.

5. Develop and propose CAA section 112(f)(2) residual risk and CAA section 112(d)(6) technology review standard(s) as appropriate.

6. Address comments from the proposal(s) and promulgate CAA section 112(f)(2) residual risk and CAA 112(d)(6) technology standard(s), where necessary.

An independent scientific peer consultation is currently underway to review the approach for assessing residual risk for the source categories included in the RTR Phase II. This peer consultation will be conducted by a panel of EPA's Science Advisory Board, and will focus on: (1) The source of emissions and other modeling data and the approach for refining this data, (2) the analytical approach for quantifying and characterizing human and environmental exposures and risks, and (3) the types of results that will be generated and the format for the characterization of assessment results.

The process outlined above for the 22 source categories included in Group 2 of the RTR Phase II is described in more detail in the following discussion.

In the first step of this process, we used the 2002 NEI Final Version 1 (made publicly available on February 26, 2006) as a starting point and compiled emissions information for each source category and performed an internal engineering review of these data (referred to hereafter as “initial NEI data”). The primary data attributes evaluated in this review included: (1) Facility representation in each source category (i.e., we ensured that source categories accurately included facilities making the products characteristic of the source categories), and (2) appropriateness of facility emissions, in both the inclusion of the appropriate HAP, and in the magnitude of those HAP emissions. In cases where better data were known to exist for a particular source category, that information was integrated into the data set for that source category. These reviewed and integrated data sets for each source category are referred to hereafter as the “ANPRM data sets.”

In this ANPRM, we are seeking public review and comment on the emissions and other model input data included in the ANPRM data sets for the source categories included in Group 2 of the RTR Phase II. These source categories are listed in Table 1. We will evaluate the comments and data corrections received in response to this ANPRM and update the data for the source categories in Group 2, as appropriate. In accordance with the methodologies described in the Residual Risk Report to Congress, we will then use the revised model input data sets for these source categories (referred to as the notice of proposed rulemaking, or NPRM, data sets) in an analysis of the inhalation risks. The Human Exposure Model (Community and Sector HEM-3 version 1.1.0) will be used to perform this modeling. The HEM-3 model performs three main operations: dispersion modeling, estimation of population exposure, and estimation of human health risks. The dispersion model used by HEM-3 is AERMOD, which is one of EPA's preferred models for assessing pollutant concentrations from industrial facilities. 1 We will also perform a screening assessment of potential adverse environmental effects using these updated data.

We will also evaluate the NPRM data sets for each of the 22 source categories for potential non-inhalation human health risks, specifically through the presence of emissions of any persistent and bioaccumulative (PB) HAP, all of which are listed in Table 3 below. 2 For source categories that also carry a potential for non-inhalation human health risks, in addition to analyses to estimate risks from inhalation of emissions, we will also estimate risks using refined models capable of addressing multi-pathway exposures (i.e., exposures due to ingestion or dermal exposures). The models selected for this exercise (primarily, we will use the EPA's Total Risk Integrated Modeling system, or TRIM, a refined multi-pathway pollutant fate and transport model) will also be used to produce estimates of pollutant concentrations in the surrounding environment, which will be used in the quantitative assessment of environmental risks from these chemicals. The 22 source categories are not expected to have multi-pathway issues.

We will provide a more detailed discussion of the residual risk methodology in the Group 2 NPRM. Therefore, after the risk assessments for Group 2 are complete, the results will be examined to determine whether any source category meets certain criteria where the Agency considers the risk to not be a problem (“low risk”). The “low risk” criteria we intend to consider include: Lifetime cancer risk to the individual most exposed is less than 1-in-1 million, chronic non-cancer risk to the individual most exposed is less than a target-organ-specific hazard index of 1, air concentrations estimated for acute exposures scenarios are less than health-protective reference levels, and there is no potential for significant and widespread adverse environmental effect.

For Group 2 source categories in which all facilities meet these “low risk” criteria, EPA will not propose further regulation under CAA section 112(f). For source categories that are not determined to be low risk, a two-step standard development process will be applied, consistent with CAA section 112(f) and with our previously articulated approach for developing NESHAP pursuant to CAA section 112(f). This approach was described in the final NESHAP addressing residual risk for coke ovens (58 FR 57898, October 27, 1993).

In the first step of this approach, modeled source category risks will be evaluated to determine if they are “acceptable.” The term “acceptable,” in reference to residual risks is not specifically defined in the CAA, but CAA section 112(f)(2) refers positively to the interpretation of this term in the Benzene NESHAP (54 FR 38044, September 14, 1989).

The preamble to the Benzene NESHAP (54 FR 38044, September 14, 1989) stated that a lifetime maximum individual excess cancer risk of approximately 100-in-1 million “should ordinarily be the upper-end of the range of acceptability.” However, this is not a rigid line of acceptability, and other factors will be considered, such as the number of people exposed at various risk levels, the overall incidence of cancer and other serious health effects, assumptions and uncertainties associated with the risk analysis (including the 70 year exposure assumption), and the weight of evidence for human health effects.

In the second step of this standard development process, we will develop risk-reduction regulatory alternatives and decide upon the level of the standard for each source category, considering the requirements necessary to provide an ample margin of safety to protect human health, as required by CAA section 112(f)(2). To develop the regulatory alternatives, we will conduct various analyses, including an assessment of the impacts of each regulatory alternative. The impacts will include HAP emission reductions, other environmental impacts, costs, economics, small business impacts, reduction in maximum risks to individuals most exposed, reductions in chronic and acute risks to populations at various risk levels, and reductions in cancer incidence. We will assess these alternatives, decide upon the level of the standard, and publish a NPRM in the Federal Register to propose any regulatory changes for the individual standards codified in 40 CFR part 63 for each source category.

As we undertake these rulemaking proposals, we will also consider developments in pollution control in each source category and the costs of potentially stricter standards reflecting those developments, to fulfill the requirements of CAA section 112(d)(6). Where there have been developments in practices, processes, and control technologies, we will consider relevant factors, such as costs, potential emissions reductions, and health and environmental risk in a determination of what, if any, further controls are necessary. Where appropriate, we will develop regulatory alternatives, assess the impacts of those alternatives, and decide upon the level of the standard(s). We plan to propose any CAA section 112(d)(6) regulatory changes for the individual standards codified in 40 CFR part 63 for each source category in the same Federal Register notice proposing action addressing residual risk.

Our current goal is to propose the decisions resulting from both CAA section 112(f) (residual risk) and CAA section 112(d)(6) (technology review) efforts, including the proposal of any standards for each of the 21 source categories in Group 2, in the Fall of 2007. Proposal of any standards for the petroleum refineries source category will occur by the court-ordered deadline of August 22, 2007. In addition to proposing any new residual risk or technology-based standards, we will announce any decisions not to promulgate residual risk standards for “low risk” source categories or source categories for which the current standards protect public health with an ample margin of safety and any decisions not to promulgate additional technology-based standards.

After the close of the comment period on the proposed standard(s), we will review and perform any analyses and data gathering necessary to address the comments, prepare responses, and make changes to the proposed standards, as necessary. We anticipate the final standards will be published in the Federal Register in the summer of 2008.

The primary purpose of today's ANPRM is to request public comments on the emissions and other model input data included in the ANPRM data sets for the 22 source categories included in Group 2 of the RTR Phase II. These data are provided in an updatable form on the RTR Web page at http://www.epa.gov/ttn/atw/rrisk/rtrpg.html. We provide detail in section VII below on how to submit updates and corrections to this information. Following review of comments received, we will update the data as appropriate, and model to generate estimates of residual risk that we will use as the basis for our proposed decisions on whether to develop standards to address residual risk for each source category.

Section V lists the general items for which we are seeking comment for all source categories. In addition, we note information unique to each source category for which we are requesting technical corrections or updates in the source category specific sections within section IV of this ANPRM. We note that emissions data cannot be withheld from disclosure as CBI pursuant to section 1905 of title 18 of the United States Code. EPA's policy regarding the categories of information that it considers to be “emissions data” is set forth in a Federal Register notice dated February 14, 1991 (56 FR 7042). A copy of that notice has been placed in the docket.

As mentioned in Section II of this ANPRM, the 2002 NEI is the primary data source used in creating the ANPRM data sets for each source category. The data extracted from the NEI for inclusion in the ANPRM data sets included general facility information, such as company name, plant name, and facility identification codes; emissions data, including speciated HAP emissions data; emissions release characteristics, including stack height, stack diameter, and the emissions stream exit temperature and velocity; and location information, including the latitude/longitude coordinates of emissions release locations. For more information on the 2002 NEI, please visit our 2002 NEI Web page at http://www.epa.gov/ttn/chief/net/2002inventory.html.

For the most part, the emissions values in the ANPRM data set represent actual emission levels. Where actual emissions data is not already included, we request that commenters provide such data.

Due to the high uncertainty of the dioxin/furan emissions information submitted during the inventory development process, dioxin/furan emissions were not included in the 2002 NEI, and no emissions of these compounds are included in the ANPRM data sets. As we update the ANPRM data set, we will include dioxin/furan emissions, based on the best information available to EPA at that time. These data may include information EPA has gathered on dioxin and dioxin-like compounds. The EPA National Center for Environmental Assessment Web site, http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=159286 , contains links to these data.

In creating the ANPRM data sets for each source category, we started with the February 2006 version of the 2002 NEI. We first conducted a detailed review of the facilities that were included in the NEI and added or removed facilities to make the data as representative of the overall source category as possible. We then reviewed emissions, release characteristics, and other model input data.

We began by retrieving all records in the 2002 NEI based solely on MACT source category designations, which are fields in the NEI that identify the MACT source category that applies to each emission point. This MACT source category is assigned by a variety of methods. In some cases, the State or local agency that provided the data to EPA identified the MACT category. Since State and local agencies are aware of the regulations that apply to facilities, we have high confidence in MACT category designations provided by a State or local agency. In other cases, EPA staff responsible for developing the MACT standards provided input to populate the MACT source category code fields. As these individuals have knowledge of the source category for which they are accessing and using the NEI data, the confidence in these designations is also high. Most of the MACT source category code designations, however, are assigned based on Standard Industrial Classification (SIC), NAICS, or Source Classification Code (SCC) defaults. There is often considerable uncertainty associated with these designations.

One of the first things we reviewed in the NEI data was the list of facilities included for each source category. For some source categories, we are reasonably confident that we know the names of the facilities and their exact locations. In these cases, we compared the “known” lists of facilities to the facilities in the NEI. We removed the MACT source category designation for facilities not on the known list. If facilities on the known lists were not in the data for the source categories, we searched the NEI for these facilities. Quite often, they were in the 2002 NEI, but had different, and presumably incorrect, MACT source category designations. These facilities were added to the data set for the category and the MACT source category codes were re-designated accordingly.

For large facilities with multiple processes that represent multiple MACT source categories, it was not always straightforward to separate the processes by source category. In these cases, we used a variety of approaches to separate the processes and emission points into source categories. Examples of the criteria used to separate processes and emissions into source categories include SCC, SIC codes, and pollutants emitted. Situations where such source category separation decisions were made are highlighted in the source-category discussions later in this section and detailed in the files available for download on the RTR Web page at http://www.epa.gov/ttn/atw/rrisk/rtrpg.html. We are asking specifically for comment on how we separated processes and emission points by source category at these large integrated facilities.

For categories with large numbers of facilities for which we do not have complete lists of known facilities, we conducted more general evaluations of the facilities in the data sets. These evaluations included examining the company names, SIC, NAICS, and SCC, and adding or removing facilities based on these criteria.

We will be evaluating residual risk for all facilities and emission sources that are in the 22 source categories included in Group 2 of the RTR Phase II. In some instances, the ANPRM data sets may include emission points that are part of the source category but are not subject to the MACT standard for that source category. Emissions from these sources will be considered in our future regulatory decisions. In addition, the ANPRM data sets, for most source categories, include all major and area sources (facilities) in the 2002 NEI that have processes related to the specific source category.

After finalizing the facility lists for each source category, we conducted a general review of the emissions and other data included in the ANPRM data sets to identify data anomalies that could affect the risk estimates. With a few exceptions, we did not change the data or include additional data. For the following source categories, the 2002 NEI was supplemented with additional data provided by industry to create the ANPRM data sets:

• Petroleum Refineries

• Shipbuilding and Ship Repair

• Source categories regulated by the Group I Polymers and Resins MACT:

○ Epichlorohydrin Elastomers Production

○ Hypalon TM Production

○ Nitrile Butadiene Rubber Production

○ Polybutadiene Rubber Production

○ Styrene-Butadiene Rubber and Latex Production

The addition of these data, as well as other data changes made, are described in the source-category specific sections below. We note that because these changes are included in the ANPRM data sets, these data sets do not exactly match the February 2006 version of the 2002 NEI data available on our NEI Web site— http://www.epa.gov/ttn/chief/net/2002inventory.html. When comments are received via this ANPRM and incorporated into the source category-specific ANPRM data sets, these revisions will then also be incorporated into the 2002 NEI and made publicly available through the NEI Web site in Final Version 2.1.

Following are sections discussing the data for individual source categories. These discussions provide an overview of the source category, a brief summary of the ANPRM data sets, and a mention of the types of major anomalies associated with the data. Summary reports for each of the source categories, which contain considerable detail on the information summarized below, including the carcinogenic HAP and HAP with adverse health effects other than cancer, are available on the RTR Web page at http://www.epa.gov/ttn/atw/rrisk/rtrpg.html. We especially encourage you to review the specific anomalies raised in these reports and to provide data to help reduce these anomalies.

The mineral wool production source category includes facilities that produce mineral wool, which is a fibrous, glassy substance made from natural rock (such as basalt), blast furnace slag, or other similar materials and consisting of silicate fibers. In the mineral wool manufacturing process, rock and/or blast furnace slag and other raw materials (e.g., gravel) are melted in a furnace (cupola) using coke as fuel. The molten material is then formed into fiber. Mineral wool is manufactured as either a “bonded” product that incorporates a binder to increase structural rigidity or a less rigid “nonbonded” product. Emission sources from mineral wool manufacturing facilities include the cupola furnace where the mineral charge is melted; a blow chamber, in which air or a binder is drawn over the fibers, forming them into a screen; a curing oven that bonds the fibers (for bonded products); and a cooling oven. The primary HAP expected to be emitted during the mineral wool manufacturing process are metals, including antimony, arsenic, beryllium, cadmium, chromium, manganese, nickel, lead, and selenium that are emitted from the cupola, and gaseous HAP, including formaldehyde, carbonyl sulfide, and phenol, that result from the vaporization of the binder.

The ANPRM data set for this source category includes information for 12 facilities, 11 of which are classified as major sources in the NEI. Based on our previous estimates of the number of facilities in the mineral wool source category, this data set represents between 75 and 90 percent of the industry. The HAP emitted in largest quantities from these facilities is carbonyl sulfide, which accounts for over 84 percent of the total HAP emissions by mass from the data set. Formaldehyde, triethylamine, and phenol are also emitted in large quantities. Several PB HAP are reported in the data set for the mineral wool manufacturing source category, including lead, cadmium, and mercury compounds.

The major anomalies associated with the data set for this source category include the HAP emitted and the speciation of chromium and mercury emissions. Some HAP expected (e.g., lead, manganese, cadmium, chromium, nickel, etc.) are not included for all the facilities in the data set, and some that are not expected (e.g., benzene and triethylamine) are reported from a few facilities.

The aerospace manufacturing and rework source category includes all facilities that manufacture aerospace vehicles and/or vehicle components and all facilities that rework or repair these items. An aerospace vehicle or component is any fabricated, processed, or assembled set of parts or complete unit of any aircraft including, but not limited to, airplanes, helicopters, missiles, rockets, and space vehicles. Organic and inorganic HAP emissions in aerospace facilities originate from cleaning, primer application, topcoat application, paint stripping, chemical milling maskant application, and waste handling and storage. The HAP expected to be emitted by aerospace facilities include chromium, cadmium, methylene chloride, toluene, xylene, ethylene glycol, and glycol ethers. For emissions reported generically as “chromium” or “chromium and compounds,” emissions are speciated for this source category as 75 percent “chromium (III) compounds” and 25 percent “chromium (VI) compounds.” This speciation is based on source category-specific information provided by the aerospace industry. (Typically, a 66 percent “chromium (III) compounds” and 34 percent “chromium (VI) compounds” is used as a default speciation profile based on the approach adopted by the 1996 National-Scale Air Toxics Assessment, or NATA.) We encourage commenters to review this assumption and provide site-specific chromium (VI) and chromium (III) data where possible.

The ANPRM data set for the Aerospace Manufacturing and Rework source category includes information for 301 facilities, 169 of which are classified as major sources in the NEI. Based on our previous estimates of the number of facilities in the aerospace source category, the ANPRM data set includes data for about 10 percent of the industry. Methyl chloroform, tetrachloroethylene, toluene, trichloroethylene, and methylene chloride account for approximately 80 percent of the mass of HAP emitted across the 301 facilities in the ANPRM dataset.

The major anomalies associated with the data set for this source category include the number of facilities in the source category, the HAP emitted, and the speciation of chromium. Some HAP expected to be reported (chromium, nickel, and hexamethylene diisocyanate) are not included for all the facilities in the data set.

Marine tank vessel loading operations are facilities that load and unload liquid commodities in bulk, such as crude oil, gasoline and other fuels, and some chemicals and solvent mixtures. The cargo is pumped from the terminal's large, above-ground storage tanks through a network of pipes and into a storage compartment (tank) on the vessel. Most marine tank vessel loading operations are associated with petroleum refineries, synthetic organic chemical manufacturers, or are independent terminals. The major HAP emission points for marine vessel loading operations include open tank hatches and overhead vent systems. Other possible emission points are hatch covers or domes, pressure-vacuum relief valves, seals, and vents. Emissions may also occur during ballasting (i.e., the process of drawing ballast as water into a cargo hold). The primary HAP expected to be emitted from marine vessel loading operations depend on the material being loaded, but are generally expected to be benzene, hexane, toluene, xylene compounds, ethyl benzene, and cumene.

The ANPRM data set for the marine tank vessel loading operations source category includes information for 126 facilities, all of which are classified as major sources in the NEI. Based on our previous estimates of the number of facilities in this source category, the ANPRM data set includes data for more than were expected to be subject to the MACT (which was estimated to be 40 at time of the MACT promulgation) and less than the estimated number of existing facilities based on Army Corps of Engineers estimates (700). In the ANPRM data set, the HAP emitted in largest quantities from these 126 sources are hexane, methanol, toluene, xylene compounds, and benzene, which collectively accounts for nearly 75 percent of the total HAP emitted.

The major anomalies associated with the data set for this source category include the number of facilities in the source category and the emission release parameters (of which nearly all are NEI default values).

The natural gas transmission and storage source category comprises the pipelines, facilities, and equipment used to transport and store natural gas products (hydrocarbon liquids and gases). Pipeline transport of natural gas products is covered by this category to either the point of custody transfer for the oil and natural gas production source category or the point of delivery to the local distribution company or final end user of the natural gas if no local distribution company is present. Emissions of HAP from the natural gas transmission and storage category come from glycol dehydration unit reboiler vents, other process vents, storage vessels with flash emissions, pipeline pigging and storage of pipeline pigging wastes, combustion sources, and equipment leaks. The major HAP expected to be emitted by the natural gas transmission and storage source category are hexane, toluene, benzene, mixed xylenes, formaldehyde, and glycol ethers.

Our previous estimates identified seven natural gas transmission and storage facilities that were major sources. The ANPRM data set for the natural gas transmission and storage source category includes information for 123 facilities, 78 of which are classified as major sources in the NEI. In the ANPRM data set, the HAP emitted in largest quantities from natural gas transmission and storage facilities are hexane, toluene, benzene, and mixed xylenes and these emissions collectively account for over 75 percent of the total HAP emissions from this source category.

One major anomaly associated with the data set for this source category is the number of facilities identified in the ANPRM data set compared to the number of facilities previously identified for this source category (i.e., there appear to be more facilities identified as natural gas transmission and storage facilities in the ANPRM data set than previously identified).

The Oil and Natural Gas Production source category includes facilities involved in the recovery and treatment of hydrocarbon liquids and gases from oil and natural gas production wells. Components of these facilities include glycol dehydration units, condensate tank batteries, and other tanks and equipment present at natural gas processing plants. The primary HAP emissions from oil and natural gas production facilities occur via the glycol dehydration reboiler vents, other process vents, storage vessels, and equipment leaks. The major HAP expected to be emitted by the oil and natural gas production source category are xylenes, toluene, hexane, and ethyl benzene.

The ANPRM data set for the oil and natural gas production source category includes information for 2,824 facilities, of which 909 facilities are classified as major sources in the NEI. Our previous estimates identified 440 major sources and 2,200 area sources. In the ANPRM data set, the HAP emitted in the greatest amounts are carbonyl sulfide, hexane, toluene, benzene, and xylenes formaldehyde, ethyl benzene, ethylene glycol, and methanol. These HAP collectively account for over 99 percent of the total HAP emissions for this source category. There are twelve PB HAP reported in the data set for the Oil and Natural Gas Production source category, including polycyclic aromatic hydrocarbons (PAH), lead, dibenzofuran, and cadmium.

For reported emissions of POM chemicals, emissions are grouped into one of seven POM categories—POM 71002 (16-PAH, PAH total, POM); POM 72002 (2-Chloronaphthalene, 2-Methylnaphthalene, Acenaphthene, Acenaphthylene, Anthracene, Benzo(c)phenanthrene, Benzo[e]Pyrene, Benzo[g,h,i,]Perylene, Fluoranthene, Fluorene, Perylene, Phenanthrene, Pyrene); POM 73002 (7,12-Dimethylbenz[a]Anthracene); POM 74002 (3-Methylcholanthrene); POM 75002 (5-Methylchrysene, Benzo[a]Pyrene, Dibenzo[a,h]Anthracene); POM 76002 (B[j]Fluoranthen, Benz[a]Anthracene, Benzo[b]Fluoranthene, Benzo[k]Fluoranthene, Indeno[1,2,3-c,d]Pyrene); and POM 77002 (Chrysene). We encourage commenters to provide data on the individual chemical(s) that make up the POM.

The major anomalies associated with the data set for this source category include the number of facilities in the source category, the specific HAP emitted by individual facilities, and default plant coordinates. The ANPRM data set contains over 2,800 facilities and this number is more than expected. The ANPRM data set also contains emissions of some HAP that are expected to be emitted from all facilities in the category (e.g., xylenes, hexane, toluene, and ethyl benzene), but are only emitted from a small percentage of facilities. Conversely, the HAP with the largest quantity of emissions in the ANPRM data set, carbonyl sulfide, is not expected to be emitted from facilities in this source category. In addition, a significant percentage (40 percent) of the coordinates in the ANPRM data set are default coordinates.

Petroleum refineries are facilities engaged in refining and producing products made from crude oil or unfinished petroleum derivatives. EPA listed two separate Petroleum Refinery source categories, both of which include any facility engaged in producing gasoline, naphtha, kerosene, jet fuels, distillate fuel oils, residual fuel oils, lubricants, or other products from crude oil or unfinished petroleum derivatives. The Petroleum Refineries—Catalytic Cracking (Fluid and Other) Units, Catalytic Reforming Units, and Sulfur Plant Units source category includes the following process units: catalytic cracking (fluid and other) units, catalytic reforming units, and sulfur plant units (MACT II). The second source category, Petroleum Refineries—Other Sources Not Distinctly Listed, includes the process units not listed in the first category including, but not limited to, thermal cracking, vacuum distillation, crude distillation, hydrotreating, hydrorefining, isomerization, polymerization, lube oil processing, and hydrogen production (MACT I).

Because the MACT standard for the “Other Sources Not Distinctly Listed” source category (40 CFR part 63, subpart UU) was promulgated first (60 FR 43244, August 18, 1995), it is commonly referred to as Petroleum Refineries MACT I. Only the units in the “Other Sources Not Distinctly Listed” category, and regulated by the MACT 1 standards, are being addressed in RTR Phase II. These units include emissions sources classified under SIC 2911 located at petroleum refineries, including: petroleum refinery process units, storage vessels, transfer racks, wastewater streams, and equipment leaks. The units and emissions associated with catalytic cracking, catalytic reforming, and sulfur plants, which are all regulated by MACT 2 standards, will be investigated in future RTR efforts.

The specific HAP emitted by petroleum refineries varies by facility and process operations but can include a variety of organic and inorganic compounds and metals. Emissions originate from various process vents, storage vessels, wastewater streams, loading racks, marine tank vessel loading operations, and equipment leaks associated with refining facilities. Process vents, wastewater streams, and storage vessels generally emit organic HAP. The primary HAP expected to be emitted from the MACT 1 petroleum refining sources include benzene, toluene, and ethyl benzene, but can also include acetaldehyde, formaldehyde, hexane, phenol, xylene, carbonyl sulfide, carbon disulfide, hydrogen chloride, chlorine and other HAP.

The ANPRM dataset for this source category contains 175 refineries, of which 124 are classified as major sources. In conjunction with previous efforts for this source category, the industry had collected and submitted up-to-date benzene emissions data for 23 refineries. The industry and EPA consider these data to be the most accurate benzene emissions data available for petroleum refineries. For these 23 refineries, EPA replaced all benzene emissions data in the NEI with these updated industry data. The emissions of other HAP that were in the NEI for these 23 refineries were not removed. For the purpose of these analyses, the ANPRM data set for these 23 facilities was kept separate from the ANPRM data set for the remaining 152 refineries.

Organic chemicals account for the majority of the total mass of HAP emitted by petroleum refinery sources, with toluene, hexane, mixed and individual isomers of xylenes, benzene, methanol, methyl tert-butyl ether, and ethyl benzene accounting for about 90 percent of the HAP mass emitted across the both data sets. Of the 152 refineries for which industry did not supply benzene emissions data, benzene emissions were reported for 137 refineries. A range of PB HAP emissions are reported in the ANPRM datasets, including various PAH and several metals (including lead and lead compounds, cadmium and cadmium compounds, mercury and mercury compounds).

For reported emissions of POM chemicals, emissions are grouped into one of seven POM categories. We encourage commenters to provide the individual chemical(s) that make up the POM.

The major anomalies associated with the data sets for this source category include specific HAP emitted by individual facilities, along with release characteristics and coordinates for those refineries for which industry did not provide updated data. The data sets contain emissions of several metal HAP, which are expected to be more likely to be emitted from MACT 2 sources, not MACT 1. Also, it appears that the benzene emissions for the 23 facilities for which the industry supplied new data are significantly higher than the benzene emissions in the NEI for the other refineries.

Nearly all of the emissions release parameters (71 percent of stack height, 96 percent of stack diameter, 97 percent of emissions exit temperature, and 97 percent of emissions exit velocity values) for the refineries for which no new data were provided are default values in the NEI and the ANPRM data set. Finally, a significant percentage (40 percent) of the coordinates in the data set for which new data were not provided are defaulted, some based on county or zip code centroids.

The pharmaceutical manufacturing process consists of chemical production operations that produce drugs and medication. These operations include chemical synthesis (deriving a drug's active ingredient) and chemical formulation (producing a drug in its final form). During pharmaceutical manufacturing operations, HAP emissions can occur from breathing and withdrawal losses from chemical storage tanks, venting of process vessels, leaks from piping and equipment used to transfer HAP compounds (equipment leaks), and volatilization of HAP from wastewater streams. While a wide variety of HAP can be emitted from pharmaceutical manufacturing processes, expected HAP include methylene chloride, methanol, N,N-dimethylformamide, toluene and hydrochloric acid. When the NESHAP for this category was finalized in 1998, EPA estimated that there were approximately 101 pharmaceutical manufacturing operations subject to the MACT regulations.

The ANPRM data set for pharmaceutical manufacturing includes 222 facilities, 107 of which are classified as major sources in the NEI. The HAP emitted in largest quantities from these sources are methanol, methylene chloride, and toluene. Emissions of these three HAP account for over 80 percent of the mass of all HAP emitted across all 222 facilities. PB HAP emissions in the ANPRM data set for the Pharmaceutical Manufacturing source category include lead, mercury, and cadmium compounds as well as a range of PAH.

For reported emissions of POM chemicals, emissions are grouped into of one of seven POM categories. We encourage commenters to provide the individual chemical(s) that make up the POM.

For emissions reported generically as “chromium” or “chromium and compounds,” emissions are speciated for this source category as 66 percent “chromium (III) compounds” and 34 percent “chromium (VI) compounds.” We encourage commenters to review this assumption and provide specific chromium (VI) and chromium (III) data where possible.

The major anomalies associated with the data set for this source category are related to the HAP emitted. While methylene chloride, NN-dimethylformamide, toluene, and hydrochloric acid are expected to be emitted by facilities in this source category, these emissions were not reported for many of the facilities. Also, HAP not expected to be emitted from this source category (e.g., ethylene oxide, p-dioxane, naphthalene, ethylene dichloride, arsenic, hydrazine, POM, and chromium (IV) compounds) are reported for eight or fewer facilities.

Epichlorohydrin elastomers are widely used in the automotive industry. The main epichlorohydrin elastomers are polyepichlorohydrin, epi-ethylene oxide (EO) copolymer, epi-allyl glycidyl ether (AGE) copolymer, and epi-EO-AGE terpolymer. Sources of HAP emissions for the Epichlorohydrin Elastomer source category include raw material storage vessels, front-end process vents, back-end process operations, wastewater operations, and equipment leaks. The majority of the emissions come from equipment leaks. The process “front-end” includes pre-polymerization, reaction, stripping, and material recovery operations; and the process “back-end” includes all operations after stripping (predominately drying and finishing). The primary HAP emitted during production are epichlorohydrin and toluene.

The ANPRM data set for the Epichlorohydrin source category includes information for one facility, which is classified as a major source in the NEI. Our previous estimate of the number of facilities in the Epichlorohydrin source category was also one, therefore we believe the ANPRM data set includes data for the entire industry. In conjunction with previous efforts for this source category, the industry had collected and submitted up-to-date emissions and emissions release characteristic data for this facility. The industry and EPA consider these data to be the most accurate emissions and emissions release characteristic data available for the epichlorohydrin elastomers production processes at this facility. EPA replaced all epichlorohydrin elastomers production emissions and emissions release characteristic data in the NEI with the updated industry data for this facility. In the ANPRM data set, toluene is emitted in the greatest quantity and accounts for about 99 percent of the total emissions.

Hypalon TM , or chlorosulfonated polyethylene, is a synthetic rubber produced by reacting polyethylene with chloric and sulfur dioxide, transforming the thermoplastic polyethylene into a vulcanized elastomer. The reaction is conducted in a solvent reaction medium containing carbon tetrachloride. Sources of HAP emissions include raw material storage vessels, front-end process vents, back-end process operations, and equipment leaks. The majority of the emissions come from front-end process vents. The process “front-end” includes pre-polymerization, reaction, stripping, and material recovery operations; and the process “back-end” includes all operations after stripping (predominately drying and finishing). The primary HAP emitted during production are carbon tetrachloride and chloroform.

The ANPRM data set for the Hypalon TM resins source category includes information for one facility, which is classified as a major source in the NEI. Our previous estimate of the number of facilities in the Hypalon TM source category was also one, therefore we believe the ANPRM data set includes data for the entire industry. In conjunction with previous efforts for this source category, the industry had collected and submitted up-to-date emissions and emissions release characteristic data for this facility. The industry and EPA consider these data to be the most accurate emissions and emissions release characteristic data available for the Hypalon TM production processes at this facility. EPA replaced all Hypalon TM production emissions and emissions release characteristic data in the NEI with the updated industry data for this facility.

In the ANPRM data set, carbon tetrachloride and chloroform are emitted in the greatest amounts and account for nearly all of the emissions.

Nitrile butadiene rubber is a copolymer of 1,3-butadiene and acrylonitrile, and the Nitrile Butadiene Rubber Production source category includes any facility that polymerizes 1,3-butadiene and acrylonitrile. Depending on its specific composition, nitrile butadiene rubber can be resistant to oil and chemicals, a property that facilitates its use in disposable gloves, hoses, seals, and a variety of automotive applications. The drying and finishing steps that make up the back-end processes are significant sources of HAP emissions. Other sources of HAP emissions include raw material storage vessels, front-end process vents, wastewater operations, and equipment leaks. The primary HAP emitted during production are acrylonitrile, 1,3-butadiene, and styrene.

The ANPRM data set for the Nitrile Butadiene Rubber Production source category includes five facilities, two of which are classified as major sources. Based on our previous estimates of the number of facilities in the source category, the ANPRM data set includes data for the entire industry. In conjunction with previous efforts for this source category, the industry had collected and submitted up-to-date emissions and emissions release characteristic data for three of these five facilities. The industry and EPA consider these data to be the most accurate emissions and emissions release characteristic data available for the nitrile butadiene rubber production processes at these facilities. For these three facilities, EPA replaced all nitrile butadiene rubber production emissions and emissions release characteristic data in the NEI with these updated industry data.

In the ANPRM data set, styrene, 1,3-butadiene, and acrylonitrile are emitted in the largest quantities, accounting for 42 percent, 21 percent, and 33 percent of the total source category emissions, respectively.

A major anomaly associated with the data set for this source category is that one HAP expected to be reported by each facility (1,3-butadiene) is not included in the data for all the facilities.

Polybutadiene rubber is a homopolymer of 1,3-butadiene, and the Polybutadiene Rubber Production source category includes any facility that polymerizes 1,3-butadiene. Most of the polybutadiene rubber manufactured in the United States is used in the production of tires in the construction of the tread and sidewalls. Sources of HAP emissions include raw material storage vessels, front-end process vents, back-end process operations, wastewater operations, and equipment leaks. The majority of the emissions come from back-end process operations, which are predominately drying and finishing. The primary HAP emitted during production include hexane, 1,3-butadiene, styrene, and toluene.

The ANPRM data set for the Polybutadiene Rubber Production source category includes information for five facilities, each of which are classified as major sources in the NEI. Based on our previous estimates of the number of facilities in the Polybutadiene Rubber Production source category, the ANPRM data set includes data for the entire industry. In conjunction with previous efforts for this source category, the industry had collected and submitted up-to-date emissions and emissions release characteristic data for each of these five facilities. The industry and EPA consider these data to be the most accurate emissions and emissions release characteristic data available for the polybutadiene rubber production processes at these facilities. For these five facilities, EPA replaced all polybutadiene rubber production emissions and emissions release characteristic data in the NEI with these updated industry data.

In the ANPRM data set, hexane and toluene are emitted in the greatest amounts and account for about 74 and 19 percent of the total emissions, respectively.

The Styrene-Butadiene Rubber and Latex Production source category includes any facility that manufactures copolymers consisting of styrene and butadiene monomer units. This source category is divided into three subcategories due to technical process and HAP emission differences: (1) The production of styrene-butadiene rubber by emulsion, (2) the production of styrene-butadiene rubber by solution, and (3) the production of latex. Styrene-butadiene rubber is coagulated and dried, while latex is not. For both styrene-butadiene rubber processes, the monomers used are styrene and butadiene; either process can be conducted as a batch or a continuous process. Sources of HAP emissions for the emulsion subcategory include raw material storage vessels, front-end process vents, back-end process operations, wastewater operations, and equipment leaks. Most of the emissions come from back-end process operations, which are predominately drying and finishing. The primary HAP emitted by emulsion styrene-butadiene rubber production are styrene and 1-3,butadiene. Sources of HAP emissions for the solution subcategory include raw material storage vessels, front-end process vents, back-end process operations, wastewater operations, and equipment leaks. Most of the emissions come from back-end process operations. The primary HAP emitted by production of solution styrene butadiene rubber are hexane, butadiene, styrene, and toluene. Sources of HAP emissions from the latex production subcategory include raw material storage vessels, front-end process vents, wastewater operations, and equipment leaks. The primary HAP emitted are styrene and butadiene.

The ANPRM data set for the Styrene-Butadiene Rubber and Latex Production source category includes information for 15 facilities, seven of which are classified as major sources in the NEI. Based on our previous estimates of the number of facilities in the Styrene-Butadiene Rubber and Latex Production source category, the ANPRM data set includes data for the entire industry. In conjunction with previous efforts for this source category, the industry had collected and submitted up-to-date emissions and emissions release characteristic data for eight of these 15 facilities. The industry and EPA consider these data to be the most accurate emissions and emissions release characteristic data available for the styrene butadiene rubber and latex production processes at these facilities. For these eight facilities, EPA replaced all styrene butadiene rubber and latex production emissions and emissions release characteristic data in the NEI with these updated industry data.

In the ANPRM data set, styrene and 1,3-butadiene are emitted in the greatest amounts and account for about 88 and 8 percent of the total emissions, respectively.

Acrylonitrile-butadiene-styrene resins consist of a terpolymer of acrylonitrile, butadiene, and styrene and can be synthesized by emulsion, suspension, and continuous mass polymerization. The majority of acrylonitrile-butadiene-styrene resin production is by batch emulsion. The primary HAP emissions during the acrylonitrile-butadiene-styrene production process occur via equipment leaks and process vents. Other emission points include storage vessels, wastewater operations, and heat exchange systems. Typical products made from acrylonitrile-butadiene-styrene resins are piping, refrigerator door liners and food compartments, automotive components, telephones, luggage and cases, toys, mobile homes, and margarine tubs. The major HAP expected to be emitted by the Acrylonitrile-Butadiene-Styrene Production source category are acrylonitrile, butadiene, and styrene.

The ANPRM data set for the Acrylonitrile-Butadiene-Styrene Production source category includes information for seven facilities, six of which are classified as major sources in the NEI. Based on our previous estimates of the number of facilities in the Acrylonitrile-Butadiene-Styrene Production source category, the ANPRM data set includes data for about half of the industry. In the ANPRM data set, styrene and acrylonitrile are emitted in the greatest amounts and account for about 65 percent of the total emissions.

The major anomalies associated with the data set for this source category include the number of facilities in the source category (i.e., only about half of the facilities in the category appear to be included in the inventory) and the specific HAP emitted by individual facilities. Some HAP expected to be reported (styrene and 1,3-butadiene) are not included for all the plants in the data set and other unexpected HAP (e.g., ethylene dichloride and ethylene oxide) are reported to be emitted by at least one facility.

Methyl methacrylate-acrylonitrile-butadiene-styrene is an acrylic graft copolymer. Chemically, graft copolymers are prepared by attaching a polymer as a branch to the chain of another polymer of a different composition. Typical products made from methyl methacrylate-acrylonitrile-butadiene-styrene resins are piping, refrigerator door liners and food compartments, automotive components, telephones, luggage and cases, toys, mobile homes, and margarine tubs. Major HAP expected to be emitted by the Methyl Methacrylate-Acrylonitrile-Butadiene-Styrene source category are acrylonitrile, butadiene, and styrene.

The ANPRM data set for the Methyl Methacrylate-Acrylonitrile-Butadiene-Styrene source category includes information for one facility, which is classified as a major source in the NEI. Based on our previous estimates of the number of facilities in the Methyl Methacrylate-Acrylonitrile-Butadiene-Styrene source category, the ANPRM data set includes data for the whole industry. In the ANPRM data set, the six HAP reported to be emitted include styrene, acrylonitrile, 1,3-butadiene, methyl methacrylate, cumene, and ethyl benzene. Styrene accounts for almost 83 percent of the mass emitted.

One major anomaly associated with the data set for this source category is that nearly all of the emissions points are reported to be fugitive sources, but the data includes only NEI default “virtual stack” emissions parameters for these sources.

Methyl methacrylate-butadiene-styrene polymers are prepared by grafting methyl methacrylate and styrene onto a styrene-butadiene rubber in an emulsion process. The product is a two-phase polymer used as an impact modifier for rigid polyvinyl chloride products. These products are used for applications in packaging, building, and construction. Emission points for methyl methacrylate-butadiene-styrene resin production include process vents, equipment leaks, storage vessels, and wastewater operations. Major HAP expected to be emitted by the Methyl Methacrylate-Butadiene-Styrene Production source category include butadiene, styrene, acrylonitrile, and methyl methacrylate.

The ANPRM data set for the Methyl Methacrylate-Butadiene-Styrene Resin Production source category includes information for three facilities, each of which are classified as major sources in the NEI. Based on our previous estimates of the number of facilities in the Methyl Methacrylate-Butadiene-Styrene Production source category, the ANPRM data set includes data for each facility in the industry. In the ANPRM data set, toluene, methyl methacrylate, styrene, and 1,3-butadiene account for nearly all of the emissions.

The major anomalies associated with the data set for this source category include the HAP emitted. Some HAP are emitted by one facility and possibly should be emitted by the other facilities in the source category. In addition, nearly all of the emission release parameters are NEI default values.

Nitrile resins are synthesized through the polymerization of acrylonitrile, methyl acrylate, and butadiene latex using an emulsion process. Nitrile resin products are commonly used in packaging applications (e.g., food packaging). Emissions points for nitrile resin manufacturing processes are process vents and equipment leaks. Emissions from storage tanks, such as those used to store acrylonitrile, are also possible. The major HAP expected to be emitted by the nitrile resins production source category is acrylonitrile.

The ANPRM data set for the Nitrile Resins source category includes information for one facility, which is classified as a major source in the NEI. Based on our previous estimates of the number of facilities in the Nitrile Resins source category, the ANPRM data set includes data for the whole industry. Acrylonitrile is the HAP emitted in the largest quantity, accounting for over 55 percent of the total HAP mass emitted.

One major anomaly associated with the data set for this source category is that 100 percent of the emission release parameters are NEI default values.

Three different types of resins are made by sources covered by the Polyethylene Terephthalate Production source category: Solid-state resins (polyethylene terephthalate bottle grade resins); polyester film; and engineering resins. They are all thermoplastic linear condensation polymers based on dimethyl terephthalate or terephthalic acid. Polyethylene terephthalate melt-phase polymer is used in the production of all three of these resins. Polyethylene terephthalate production can occur via either a batch or continuous process. The most common use of polyethylene terephthalate solid-state resins is in soft drink bottles, and some industrial fiber- graded polyester (e.g., for tire cord) is also produced from polyethylene terephthalate solid-state resins. The most common uses of polyethylene terephthalate film are photographic film and magnetic media. Polyethylene terephthalate is used extensively in the manufacture of synthetic fibers (i.e., polyester fibers), which compose the largest segment of the synthetic fiber industry. The most common uses of polyester fibers are apparel, home furnishings, carpets, fiberfill, and other industrial processes. Emissions sources present at polyethylene terephthalate production processes include raw material storage tanks, mix tanks, prepolymerization and polymerization reaction vents and process tanks, cooling towers, and methanol recovery systems. Major HAP emissions expected from the Polyethylene Terephthalate Production source category are ethylene glycol, methanol, acetaldehyde, and dioxane.

The ANPRM data set for the Polyethylene Terephthalate source category includes information for 22 facilities, 21 of which are classified as major sources in the NEI. Based on our previous estimates of the number of facilities in the Polyethylene Terephthalate Production source category, the ANPRM data set includes data for about two-thirds of the facilities in the industry. In the ANPRM data set, volatile organic HAP dominate the total mass emissions, with methanol, ethylene glycol, acetaldehyde, methylene chloride, and mixed xylenes accounting for over three-fourths of the total emissions.

The major anomalies associated with the data set for this source category include the number of facilities in the source category and the HAP emitted. Some HAP expected to be reported (methanol, acetaldehyde, and dioxane) are not included for all the plants in the data set.

Polystyrene resins are those produced by the polymerization of styrene monomer. This type of resin can be produced by three methods: (1) Suspension polymerization (operated in batch mode); (2) mass (operated in a continuous mode); and (3) emulsion process (operated in a continuous mode). The mass and suspension methods are the most commercially significant, whereas use of the emulsion process has decreased significantly since the mid-1940s. The uses for polystyrene resin include packaging and one-time use, expandable polystyrene beads, electronics, resellers and compounding, consumer and institutional products, and furniture, building, or construction uses. A wide variety of consumer and construction products are made from polystyrene resins, including disposable dinnerware, shower doors, light diffusers, soap dishes, insulation board, food containers, drain pipes, audio and video tape, picnic coolers, loose fill packaging, and tubing. The major HAP expected to be emitted by the polystyrene source category is styrene.

The ANPRM data set for the polystyrene resins source category includes information for 23 facilities, 14 of which are classified as major sources in the NEI. Based on our previous estimates of the number of facilities in the Polystyrene Production source category, the ANPRM data set is missing data for 5 facilities in the industry. In the ANPRM data set, styrene is emitted in the greatest amounts and accounts for about 65 percent of the total emissions.

The major anomalies associated with the data set for this source category include facility representation of the source category and the HAP emitted. Some unexpected HAP, including tetrachloroethylene, naphthalene, ethyl chloride, and several metals, are reported to be emitted by some facilities.

Styrene-acrylonitrile resins are copolymers of styrene and acrylonitrile. Styrene-acrylonitrile resins may be synthesized by emulsion, suspension, and continuous mass polymerization; however, the majority of production is by batch emulsion. Typical uses include automobile instrument panels and interior trim and housewares. Emission points along the styrene-acrylonitrile resin production process include equipment leaks, process vents, storage vessels, and wastewater operations. Major HAP expected to be emitted by the Styrene-Acrylonitrile Production source category are acrylonitrile and styrene.

The ANPRM data set for the Styrene-Acrylonitrile Production source category includes information for three facilities, all of which are classified as major sources in the NEI. Based on our previous estimates of the number of facilities in the Styrene-Acrylonitrile Production source category, the ANPRM data set is missing data for 3 facilities in the industry. Many facilities that produce acrylonitrile-butadiene-styrene resins also produce styrene-acrylonitrile, because much of the styrene-acrylonitrile resins that are produced are used as feedstock in the production of acrylonitrile-butadiene-styrene. Therefore, for two of these plant sites, we could not distinguish whether certain emissions units belonged to the Acrylonitrile-Butadiene-Styrene or the Styrene-Acrylonitrile Production source categories. For these two plant sites, the emissions units in question were assigned to the Acrylonitrile-Butadiene-Styrene Production source category and no emissions units were assigned to the Styrene-Acrylonitrile Production source category. For the third plant site, EPA assigned the Styrene-Acrylonitrile Production MACT code to all the processes that emitted styrene or acrylonitrile and included these units in the ANPRM data set for the Styrene-Acrylonitrile Production source category. For this facility, styrene is the HAP emitted in the largest quantity accounting for over 55 percent of total HAP mass emitted. Ethyl benzene, 1,3-butadiene, and toluene are also reported in relatively large quantities and collectively account for about 35 percent of the total emissions.

The major anomalies associated with the data set for this source category include the number of facilities in the source category, the use of county centroid locations as default emissions release locations, and the use of NEI default values for 100 percent of the emissions release parameters. In addition, one HAP (acrylonitrile) is expected to be emitted in larger quantities than reported in the NEI.

Primary aluminum plants produce aluminum metal from alumina ore through the electrolytic reduction of aluminum oxide (alumina) by direct current voltage in an electrolyte (called “cryolite”) of sodium aluminum fluoride. All primary aluminum facilities have potlines that produce aluminum metal, and also have a paste production operation. In addition, some facilities have anode bake furnaces that are used in the production of aluminum anodes. Potlines are categorized based primarily on differences in the process operation, equipment, and the applicability of control devices. HAP expected to be emitted by primary aluminum production sources include hydrogen fluoride and POM, including PAH (e.g., anthracene, benzo(a) pyrene, and naphthalene) that are part of the POM HAP category.

The ANPRM data set for the primary aluminum reduction source category includes information for 20 primary aluminum facilities. Of these 20 facilities, 19 are classified as major sources in the NEI. Based on our previous estimates of the number of primary aluminum reduction facilities, this includes over 85 percent of the industry. Although a wide range of compounds are reported as emissions from these facilities in the ANPRM data set, carbonyl sulfide, hydrogen fluoride, and hydrochloric acid make up over 96 percent of the total emissions by mass. Hydrogen fluoride is the most common HAP reported as an emission (reported for 18 facilities); carbonyl sulfide and hydrochloric acid are reported as emissions by 11 and 7 facilities, respectively. A wide variety of PB HAP are reported, including numerous PAH and the metals lead, cadmium, and mercury and their associated compounds. For reported emissions of POM chemicals, emissions are grouped into one of seven POM categories. We encourage commenters to provide the individual chemical(s) that make up the POM.

The major anomalies associated with the data set for this source category include the specific HAP emitted by individual facilities and the speciation of POM. Certain HAP (e.g., chlorine, hydrogen chloride, POM) are not included for all the facilities in the data set.

The printing and publishing source category includes facilities that use lithography, rotogravure, and other methods to print a variety of substrates, including paper, plastic, metal foil, wood, vinyl, metal, and glass. The MACT standards focused on those facilities that perform publication rotogravure printing, product and package rotogravure printing, and wide-web flexographic printing. Publication rotogravure printing refers to printing using a rotogravure press of various paper products, including catalogs, magazines, direct mail advertisements, display advertisements, miscellaneous brochures and other advertisements, newspaper sections and inserts, periodicals, and telephone directories. Product and packaging rotogravure printing entails the production, on a rotogravure press, of any printed substrate not otherwise defined as publication rotogravure printing. This includes (but is not limited to) folding cartons, flexible packaging, labels and wrappers, gift wraps, wall and floor coverings, upholstery, decorative laminates, and tissue products. Wide-web flexographic printing is a technique for printing substrates of 18 inches or wider in which the applied pattern is raised above the printing plate and the image carrier is made of rubber or other elastomeric materials. The wide-web flexographic presses are used to print flexible and rigid packaging; newspapers, magazines, and directories; paper towels, tissues, and similar products; and printed vinyl shower curtains and wallpaper. Research and laboratory facilities are not subject to the provisions of the MACT standards unless they are collocated with production lines. The NESHAP applies to HAP present in the inks, ink extenders, solvents, coatings, varnishes, primers, adhesives, and other materials applied with rotogravure and flexographic plates.

The primary HAP expected to be emitted from printing and publishing operations are toluene, xylene, ethylbenzene, methanol, methyl isobutyl ketone, ethylene glycol, and certain glycol ethers.

At the time of MACT promulgation in 1995, EPA estimated that there were approximately 200 publication rotogravure, product and packaging rotogravure, and wide-web flexographic printing facilities nationwide that would be subject to these MACT regulations.

The ANPRM dataset for the printing and publishing source category contains 463 facilities, of which 216 are classified as major sources in the NEI. The HAP emitted in largest quantities from these sources are toluene, glycol ethers, methyl isobutyl ketone, and xylene (mixture of o-, m-, and p-isomers). Emissions from these HAP account for nearly 94 percent of the mass emitted across all 463 facilities. POM is the only PB HAP reported in the ANPRM data set for this source category.

For reported emissions of POM chemicals, emissions are grouped into one of seven POM categories. We encourage commenters to provide the individual chemical(s) that make up the POM.

The major anomalies associated with the data set for this source category are related to the HAP emitted. Emissions of several HAP, including trichloroethylene, tetrachloroethylene, p-dioxane, benzene, and naphthalene, are reported to be emitted by a small percentage of sources in this category. These HAP may be emitted from other on-site processes. We are requesting data on these HAP emissions.

The shipbuilding and ship repair industry consists of establishments that build, repair, repaint, convert, and alter ships. In general, activities and processes involved in ship repair and new ship construction are relatively similar. Operations include fabrication of basic components from raw materials, welding components and parts together, painting and repainting, overhauls, ship conversions, and other alterations. Nearly all shipyards that construct new ships also perform major ship repairs. Marine coatings used on offshore oil and gas well drilling and production platforms are not included in this source category.

Emissions of HAP from shipbuilding and ship repair facilities result from painting, cleaning solvents, welding, metal forming and cutting, and abrasive blasting performed during ship repair and shipbuilding operations. HAP expected to be emitted include a range of organic compounds used as solvents, including toluene, xylene, ethylbenzene, methanol, methyl isobutyl ketone, ethylene glycol, and glycol ethers. In addition to the organic HAP, relatively small amounts of inorganic HAP such as chromium, hexavalent chromium, manganese, nickel, and lead are expected to be emitted from painting, welding, metal forming and cutting, and abrasive blasting performed during ship repair and shipbuilding operations.

At the time of NESHAP promulgation in 1995, EPA estimated that there were approximately 437 facilities of varying capabilities involved in the construction and repair of ships in the United States; approximately 35 of these facilities qualified as major sources of HAP emissions.

The ANPRM data set for the shipbuilding and ship repair source category contains 88 facilities, of which 71 facilities are classified as major sources. In conjunction with previous efforts for this source category, the industry had collected and submitted up-to-date welding and blasting emissions data for 13 facilities. The industry and EPA consider these data to be the accurate welding and blasting emissions data for these facilities. For 12 of these 13 facilities, the 2002 NEI did not include any emissions from these welding and blasting processes. The newly collected data was added to the ANPRM data set for these facilities. The data was not added for the 13th facility, which did have detailed state-submitted welding and blasting emissions data already included in the NEI. As no welding and blasting emissions data were available for the other facilities in the source category, no data was added to the ANPRM data set for these facilities. The HAP emitted in largest quantities in total from these sources are xylenes and ethylbenzene. Total emissions from these two HAP account for 63 percent of the mass emitted across all 88 facilities. PB HAP emissions reported in the ANPRM data set for the shipbuilding and ship repair source category include cadmium, lead compounds, POM, and mercury.

For emissions reported generically as “chromium” or “chromium and compounds,” emissions are speciated for this source category as 66 percent “chromium (III) compounds” and 34 percent “chromium (VI) compounds.” We encourage commenters to review this assumption and provide specific chromium (VI) and chromium (III) data where possible.

For reported emissions of POM chemicals, emissions are grouped into one of seven POM categories. We encourage commenters to provide the individual chemical(s) that make up the POM.

The major anomalies associated with the data set for this source category are related to the HAP emitted. Some metal HAP expected to be reported from welding, blasting, and other metalworking processes are not included for all the facilities in the data set. We have been working with the industry to improve these anomalies, and will continue these efforts. However, we also welcome additional data on these emissions.

The primary purpose of this ANPRM is to solicit comments on the source-category specific data included in the ANPRM data sets. Therefore, we are asking you to carefully review the facility-specific data available for download on the RTR Web page at http://www.epa.gov/ttn/atw/rrisk/rtrpg.html and provide corrections to these data. These data include information for each emissions release point at each facility in each of the 22 source categories included in Group 2 of the RTR Phase II. For large integrated facilities with multiple processes representing multiple source categories, it is often difficult to clearly distinguish the source category to which each emission point belongs. For this reason, the data available for download include not only the data for each facility in the specific source category, but also the data for each entire facility.

In addition to the ANPRM data sets for each source category, we are providing a downloadable file which describes each source category and summarizes the major data anomalies. These files are being made available to focus the review of emissions data on the emission points and pollutants which are expected to contribute the most to significant inhalation exposures and health risks. More information on how to download the data and how to submit data corrections is provided in Sections VI and VII of this ANPRM, respectively.

In reviewing the data, we are requesting both general comments about how well the data represent the source categories and more specific comments regarding the emission-point specific information included in the ANPRM data set for each facility in the 22 source categories. We also ask that you examine situations in which we made changes or additions to the NEI data and provide comments and data that will help us improve or clarify the information in order to minimize any anomalies. We are particularly interested in the following information regarding source category representation in the data:

• Names and addresses for any facilities with processes which should be, but are not included in the data set for a specific source category.

○ If known, whether data for these facilities are included in the NEI.

• Facilities whose data should not be included in the data set for a specific source category—please provide a brief description of the facilities and an explanation of why they do not belong in the data set for that source category.

• Facilities in the data set for a source category that are not major sources for HAP—please provide documentation verifying the area source status.

We would also like comment on the facility-specific and emission-point specific data, as well as our assumptions about certain data characteristics. As discussed further below, the areas in which further information and/or correction or clarification is requested, include the following:

• Facility location and identification.

○ Facility name.

○ Facility address.

○ Facility category code (i.e., major or area source).

• Emission point data

○ SCC and MACT codes

○ Emissions (tons per year (TPY)) of each HAP.

○ Emission release point type (i.e., fugitive, vertical, horizontal, gooseneck, vertical with raincap, or downward facing vent).

○ Emissions release characteristics: stack height and diameter, exit gas temperature, velocity, and flow rate.

○ Emission point latitude and longitude coordinates.

• Data characteristics.

○ Acute emissions factors.

○ Speciation of metal HAP and POM.

○ HAP emissions performance level (e.g., actual, allowable, maximum).

At the facility level, we are asking for input on the name and address of the facility, whether the facility is a major or area source for HAP, and facility identification codes. The facility name should include at least the company name and may also include facility identification information, such as “Plant A” or “Ohio River Works.” The address should include the street address of the plant location, as well as the city, county, State, and zip code for that location. We are also requesting verification of the area/major source status of each facility.

For each individual emission point, we are asking for comments on the SCC and MACT code to which each emission point is assigned, the HAP emitted, the mass of emissions reported for each HAP, and the release characteristics. For large facilities with multiple processes representing more than one source category, we ask that you pay particular attention to the MACT and SCC codes, so that emission points and emissions are assigned to the appropriate source category. We also ask that you provide comments on all HAP emitted from a process, even if you know the emission levels are very low. The high toxicity of some HAP means that even emission levels one might otherwise consider insignificant (in terms of mass) can have a significant risk impact. This is particularly true for PB HAP. These compounds have high toxicities and may be emitted by some of the source categories being reviewed. It is critical that we obtain the most accurate, speciated emission estimates possible to be used in the multi-pathway assessments that will be conducted prior to proposal of regulatory actions.

If you consider the data in the ANPRM data sets unrepresentative of the emissions from a facility, explain why these data are not representative and submit better data where available. When submitting emissions data, we ask that you provide documentation of the basis for the revised values. We will need appropriate documentation to support any suggested changes. Data corrections are discussed more in section VII.

In addition to the emissions data, we also request comments and revisions on the release characteristics for individual emission points. First, you should check the emission release point type description. Most of the emission points in the NEI are either classified as vertical or fugitive, although the options also include horizontal, goose neck, vertical with rain cap, and downward facing vent. Then you should check the release parameters, which include stack height, exit gas temperature, stack diameter, exit gas velocity, and exit gas flow rate. Quite often the NEI contains default release parameters, so providing actual parameters will improve the quality of the data and the modeling results.

Emission point location is a parameter that can have a significant effect on the modeling results. Ideally, we would like a specific set of coordinates for every emission point. In many instances, a single set of coordinates is used for all emission points at a facility. In these situations, we request information on emission-point specific coordinates. If such detailed coordinates are already in the ANPRM data sets, we would like you to review them carefully and provide any updates or corrections needed.

To model fugitive sources, the release parameters used include the height, length, width, and angle of the area where the fugitive emissions sources are located, along with the temperature. The NEI contains fields for these parameters, but they are rarely populated. Instead, the NEI contains a set of default vertical stack parameters for fugitive sources, which have been designed to provide the same dispersion as a low-lying point source with minimal plume rise. These are a temperature of 72° Fahrenheit, a diameter of 0.003 feet, a velocity of 0.0003 feet per second, and a flow rate of 0 cubic feet per second. We request comment on the use of these release characteristics to effectively model fugitive emission sources as pseudo-point sources.

We are also requesting comments concerning certain data characteristics. This includes the speciation of several metal HAP, including mercury and chromium, and polycyclic organic material. These HAP were separated into their various forms, such as hexavalent and trivalent chromium, within NEI using the procedures established by the National Air Toxics Assessment. We are requesting comment on whether the speciation factors used are appropriate and ask that any suggested alternative approaches be accompanied by documentation supporting that alternative.

Also, to screen for potentially-significant short-term exposures, maximum short-term (one-hour) emission rates will be developed by multiplying the average annual hourly emission rates by ten. We would like comments on whether this factor represents a reasonable approximation for each emission point in order to estimate acute exposures and risks. If you believe that any particular emission point does not represent a reasonable approximation, please provide your rationale and a suggestion for a more appropriate ratio. This will assist us in our assessment of short-term impacts and risks.

As noted in section IV, the emissions values in the ANPRM data set generally represent actual emission levels. Where actual emissions data is not already included, we request that commenters provide such data.

In addition to comments on the data included in the data sets for each source category, we will accept other comments related to this ANPRM. As described in section VII of this ANPRM, all comments and supporting data must be submitted to the docket for this action.

Source category descriptions and the ANPRM data sets are available on the RTR Web page at http://www.epa.gov/ttn/atw/rrisk/rtrpg.html. Information is available to be downloaded from this Web page for each source category in two separate files. One file contains a description of the source category, and a separate file includes the detailed ANPRM data set for the source category. These files must be downloaded from the Web site to be viewed.

The file containing the source category description is available in an Adobe® PDF format (this file format is viewable with Adobe® Reader, which may be downloaded at http://www.adobe.com/products/acrobat/readermain.html ) and contains the following information:

• A description of the processes and major products

• The estimated number of facilities in the source category.

• A summary of emission points types and HAP emissions from the source category.

• A summary of the anomalies associated with the data for that source category.

The ANPRM data set for each source category is included in a separate file, which must be downloaded from the RTR Web page—http://www.epa.gov/ttn/atw/rrisk/rtrpg.html . These are Microsoft® Access files, which require Microsoft® Access to be viewed (if you do not have Microsoft® Access, contact Anne Pope by telephone ((919) 541-5373) or by e-mail ( pope.anne@epa.gov ) for other data viewing options). Each file contains the following information from the NEI for each facility in the source category:

More information on these NEI data fields can be found in the NEI documentation at http://www.epa.gov/ttn/chief/net/2002inventory.html#documentation.

The source category-specific ANPRM data sets are available for download on the RTR Web page at http://www.epa.gov/ttn/atw/rrisk/rtrpg.html . To suggest revisions to this information, we request that you complete the following steps:

1. Download the Microsoft® Access file containing the ANPRM data set for a source category.

2. Within this downloaded file, enter suggested revisions in the data fields appropriate for that information. The data fields that may be revised include the following:

3. Fill in the following commenter information fields for each suggested revision:

• Commenter Name.

• Commenter E-Mail Address.

• Commenter Phone Number.

• Revision Comments.

4. Gather documentation for any suggested emissions revisions (e.g., performance test reports, material balance calculations, etc.).

5. Send the entire downloaded file with suggested revisions in Microsoft® Access format and all accompanying documentation to the docket for this ANPRM (through one of the methods described in the ADDRESSES section of this ANPRM). To help speed review of the revisions, it would also be helpful to submit the suggestions to EPA directly at RTR@epa.gov.

6. If you are providing comments on a facility with multiple source categories, you need only submit one file for that facility, which should contain all suggested changes for all source categories at that facility.

We strongly urge that all data revision comments be submitted in the form of updated Microsoft® Access files, which are provided on the http://www.epa.gov/ttn/atw/rrisk/rtrpg.html Web page. Data in the form of written descriptions or other electronic file formats will be difficult for EPA to translate into the necessary format in a timely manner. Additionally, placing the burden on EPA to interpret data submitted in other formats increases the possibility of misinterpretation or errors.

Once EPA receives comments on the Group 2 emissions and emissions release data, we plan to revise the ANPRM data sets based upon public comment and supporting documentation, model with the new data, and proceed with proposing and promulgating residual risk and technology review standards as appropriate. More detail of this process is provided in sections C, D, and E of section II of this ANPRM.

When we make a finding that a petition presents substantial information to indicate that listing a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information on the Siskiyou Mountains and Scott Bar salamanders. We request any additional information, comments, and suggestions from the public, other concerned governmental agencies, Tribes, the scientific community, industry, or any other interested parties concerning the status of the Siskiyou Mountains and Scott Bar salamanders. We are seeking information regarding the species' historical and current status and distribution, biology and ecology, ongoing conservation measures for the species and habitat, and threats to either species or habitat.

Please note that comments merely stating support or opposition to the actions under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species shall be made “solely on the basis of the best scientific and commercial data available.” At the conclusion of the status review, we will issue the 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.).

If we determine that listing either the Siskiyou Mountains salamander or Scott Bar salamander is warranted, it is our intent to propose critical habitat to the maximum extent prudent and determinable at the time we would propose to list the species. Therefore, with regard to areas within the geographical area currently occupied by the species we also request data and information on what may constitute physical or biological features essential to the conservation of either species, where these features are currently found, and whether any of these features may require special management considerations or protection. In addition, we request data and information regarding whether there are areas outside of the geographical area occupied by the species, which are essential to the conservation of either species. Please provide specific comments as to what, if any, critical habitat should be proposed for designation, if either species is proposed for listing, and why that proposed habitat meets the requirements of the Act.

If you wish to comment or provide information, you may submit your comments and materials concerning this finding to the Field Supervisor (see ADDRESSES ) by the date listing in the DATES section.

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the address listed in the ADDRESSES section.

Section 4(b)(3)(A) of the Act requires that the Service make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. The finding is based on information contained in the petition and information otherwise available in our files at the time we make the finding. To the maximum extent practicable, we are to make the finding within 90 days of our receipt of the petition, and publish our notice of the finding promptly in the Federal Register .

In making this finding, we relied on information provided by the petitioners and otherwise available in our files at the time of the petition review. We had access to a Geographic Information System database of all known Siskiyou Mountains salamander and Scott Bar salamander sites, based on data obtained from researchers, the State of California, the United States Forest Service, and private land managers. We evaluated the information provided by the petitioners in accordance with 50 CFR 424.14(b). The process of making a 90-day finding under section 4(b)(3)(A) of the Act and § 424.14(b) of our regulations is based on a determination of whether the information in the petition meets the “substantial scientific or commercial information” threshold. A substantial finding should be made when the Service deems that adequate and reliable information has been presented that would lead a reasonable person to believe that the petitioned action may be warranted.

Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly commence a status review of the species.

On June 18, 2004, we received a petition dated June 16, 2004, from the Center for Biological Diversity, Klamath-Siskiyou Wildlands Center, and Noah Greenwald, to list the Siskiyou Mountains salamander ( Plethodon stormi ) as a threatened or endangered species on behalf of themselves and five other organizations. The petition clearly identified itself as such and included the requisite identification information for the petitioners, as required in 50 CFR 424.14(a). In their petition, the petitioners assert that there are three separate distinct population segments (DPSs) of the Siskiyou Mountains salamander, one of which consists of the Scott Bar salamander. Alternatively, the petitioners assert that the Scott Bar salamander is a separate species and request that it be considered independently for listing. Since the time of the petition, the Scott Bar salamander ( Plethodon asupak ) has been recognized as a species separate from the Siskiyou Mountains salamander (Mead et al. 2005) and we have reviewed it separately in making this finding. The petitioners also requested the Service to consider whether the Siskiyou Mountains salamander warrants listing throughout a significant portion of its range, and requested designation of critical habitat for both species concurrent with their listing. In a July 19, 2004, letter to the petitioners, we responded that we reviewed the petition for both species and determined that an emergency listing was not warranted, and that because of inadequate funds for listing and critical habitat designation, we would not be able to otherwise address the petition to list the Siskiyou Mountains salamander and Scott Bar salamander at that time.

On June 23, 2005, we received a 60-day notice of intent to sue, and on August 23, 2005, the Center for Biological Diversity and four other groups filed a Complaint for Declaratory and Injunctive Relief in Federal District Court for the District of Oregon ( Center for Biological Diversity , et al. v. Norton et al. , No. 3:05-CV-1311-BR), challenging our failure to issue a 90-day finding on the petition to list the Siskiyou Mountains salamander and Scott Bar salamander. On December 28, 2005, we reached an agreement with the plaintiffs to complete the 90-day finding by April 15, 2006, and if we determined that the petition presented substantial information that listing may be warranted, to complete the 12-month finding by January 15, 2007.

On April 17, 2006, the Service made its 90-day finding (71 FR 23886; April 25, 2006). That finding concluded that the petition did not present substantial scientific or commercial information to warrant the listing of Siskiyou Mountains and Scott Bar salamanders.

On July 6, 2006, the Center for Biological Diversity and others filed suit in the United States District Court for the Northern District of California ( Center for Biological Diversity et al. vs. Dirk Kempthorne et al. , No. C-06-4186-WHA) challenging the merits of our April 17, 2006, 90-day finding.

On January 19, 2007, the U.S. District Court determined the 90-day finding was arbitrary and capricious, and the Court vacated and remanded the finding, and ordered the Service to make a new 90-day finding by March 23, 2007. This new finding complies with the Court's order.

For the purpose of this finding, the Service is evaluating the Siskiyou Mountains salamander and Scott Bar salamander separately. However, we recognize that all research on the ecology of these species was conducted prior to recognition of the Scott Bar salamander as a separate species. To date, information specific to the Scott Bar salamander is limited to its distribution and range. Both species are members of the Family Plethodontidae, the lungless salamanders, and as such their survival is dependent upon similar ecological requirements. The geographic ranges of the Siskiyou Mountains salamander and Scott Bar salamander are contiguous, but not overlapping, occur over a relatively small area (approximately 405,000 acres (ac) (164,000 hectares (ha))), and have similar environmental conditions. Additionally, information in our files suggests that habitat associations of these species are generally the same, although a rigorous study comparing their habitat requirements has not been conducted. The most significant difference between these species is their range; the range of the Siskiyou Mountains salamander is approximately five times larger than that of the Scott Bar salamander. Therefore, for the purpose of this finding, the Service applied the current literature describing the biological characteristics and ecology of the Siskiyou Mountains salamander to both species.

Like others in the family Plethodontidae, the Siskiyou Mountains salamander and Scott Bar salamander are completely terrestrial, medium-sized, slender-bodied salamanders with short limbs and a dorsal stripe. Both species are found in or near talus (loose surface rock) and fissured rock outcrops where moisture and humidity are high enough to allow respiration through their skin (Nussbaum et al. 1983). Both species are endemic to the Klamath-Siskiyou Mountains of southern Oregon and northern California.

The Siskiyou Mountains salamander was described in 1965 (Highton and Brame 1965), and is characterized by a modal number of 17 costal grooves (vertical creases along the side of the body) and 4 to 5.5 intercostal folds (folds of skin between the costal grooves) between the toes of adpressed limbs (limbs firmly pressed against the sides of the body) (Nussbaum et al. 1983; Leonard et al. 1993). Adults have a light-to purplish-brown dorsum, and the body is sprinkled with a moderate to dense array of white to yellow flecks that are concentrated on the sides and limbs and away from the light-brown dorsal stripe. Juveniles are black and have an olive-tan dorsal stripe that extends onto the tail.

Recent genetic analyses recognize the Siskiyou Mountains salamander as a distinct species from the Del Norte salamander ( Plethodon elongatus ) and the Scott Bar salamander (Mead et al. 2002, 2005; Mahoney 2004; Bury and Welsh 2005). Previously, observations of clinal variation in color and morphometric traits from coastal populations of Del Norte salamanders along the Klamath River to Siskiyou Mountains salamander populations in the Seiad Valley led Bury (1973) to propose possible intergradation between these two species, and Stebbins (1985, 2003) to demote the Siskiyou Mountains salamander to a subspecies of Del Norte salamander.

A number of studies (Pfrender and Titus 2002; DeGross 2004; Mead et al. 2005) have delineated three distinct genetic lineages within the Siskiyou Mountains salamander: Group I ( P. stormi populations within the Applegate River drainage north of the Siskiyou crest), Group II ( P. stormi populations south of the Siskiyou crest), and Group III ( P. asupak populations). However, Group III is now considered a separate species, Scott Bar salamander.

Mead et al. (2005) described Plethodon asupak , the Scott Bar salamander, as a new species based on analysis of molecular (mitochondrial DNA) and morphological data from Plethodon populations near the confluence of the Klamath and Scott Rivers in Siskiyou County, California (Mahoney 2004; Mead et al. 2002, 2005). Molecular analysis shows the Scott Bar salamander to be the ancestral lineage from which the Del Norte salamander and Siskiyou Mountains salamander were derived (Mahoney 2004; Mead et al. 2002, 2005). For the purpose of this finding, the Service is evaluating the Scott Bar salamander as a species separate from the Siskiyou Mountains salamander. We recognize, however, that genetic research on these salamanders is ongoing, and the species' designations may be reconsidered in the future.

The Scott Bar salamander is more robust and has a wider head and longer limbs than either of its two most closely related sister species, the Del Norte salamander and Siskiyou Mountains salamander. It has fewer intercostal folds (2.5 to 3.5) between adpressed (flatly pressed back) limbs than either the Del Norte salamander (5 to 6) or the Siskiyou Mountains salamander (4 to 5), and the modal number of costal grooves (17) is one fewer than in the Del Norte salamander (18). The Scott Bar salamander has a longer body relative to its tail length and longer forelimbs and hindlimbs than the Siskiyou Mountains salamander or Del Norte salamander. The coloration of the Scott Bar salamander is similar to that of the Siskiyou Mountains salamander and is described in Mead et al. (2005). Despite the morphological differences described in Mead et al. (2005), the two species are very difficult to distinguish in the field.

Siskiyou Mountains salamanders and Scott Bar salamanders are found on forested slopes where rocky soils and talus outcrops occur. Occupied habitat for the Siskiyou Mountains salamander can range from small isolated rock outcrops to entire hillsides (Clayton et al. 2004). Occasionally these salamanders can be found under other types of cover such as bark, limbs, or logs, but only during wet weather when moisture is high and only if there are talus outcrops nearby (Nussbaum 1974; Nussbaum et al. 1983). Nussbaum (1974) characterized optimal habitat for the Siskiyou Mountains salamander as stabilized talus in old-growth forest stands on north-facing slopes. However, more recently, populations of both species have been found in rock outcrops in all forest age classes and on all slope aspects (Clayton et al. 2004; U.S. Department of Interior (USDI) 2005), as well as in managed stands (CDFG 2005). Siskiyou Mountains salamanders have been collected in the spring during the daytime at soil temperatures ranging from 38 to 52.3 degrees Fahrenheit (3.5 to 11.3 degrees Celsius) and at depths ranging from 0 to 18.0 inches (0 to 45.7 centimeters) (Nussbaum et al. 1983; Nussbaum 1974).

The Siskiyou Mountains salamander's range encompasses approximately 337,037 ac (136,500 ha) in three counties (Jackson, Josephine, and Siskiyou Counties) of southwestern Oregon and in northern California (Clayton and Nauman 2005a). More specifically, this species has been detected in the Applegate River drainage of southern Oregon south to the Klamath River watershed of northern California. In California, recent genetic analyses indicate the species' range is bounded to the west by the Indian Creek drainage and to the east by the Horse Creek drainage (see DeGross 2004; Mahoney 2004; Mead et al. 2005; Mead 2006). It is known from sites ranging from 1,600 feet (488 meters) (Nussbaum et al. 1983) to approximately 1,800 meters (6,000 feet) in elevation (Clayton et al. 1999). Approximately 90 percent of the Siskiyou Mountains salamander's range occurs on Federal lands managed under the Northwest Forest Plan (NWFP) (USDA, USDI 1994). Within the NWFP area, 36 percent of the salamander's range occurs in reserves (Late-Successional Reserves, Administratively Withdrawn Areas, and Congressionally Reserved Areas), where timber harvest and other ground-disturbing activities are severely restricted; 10 percent occurs within Matrix lands generally available for timber harvest; and 44 percent occurs in Adaptive Management Areas (AMA), where habitat management guidelines are flexible and some timber harvest is expected to occur. The remaining 10 percent of the species' range occurs on private lands.

To date, approximately 200 Siskiyou Mountains salamander sites have been located (Clayton and Nauman 2005a). This number represents an unknown proportion of the total population, because surveys have not been conducted over the species' entire range. These sites occur primarily on Federal lands and are distributed across several NWFP land use allocations (Clayton et al. 2004). The USDA, USDI Species Review Panel (2002) reported that approximately 23 percent of known sites occur on reserve lands (Late-Successional Reserves and Congressionally Withdrawn Areas) (USDA, USDI 1994). The remaining sites occur on Adaptive Management Areas, Matrix lands, and private lands.

The Scott Bar salamander is found only in Siskiyou County, California, from just east of Seiad Valley to Scott Bar Mountain (Clayton and Nauman 2005b). The species' range extends north and south of the Klamath River and east and west of the Scott River and encompasses approximately 68,438 ac (27,717 ha). Approximately 82 percent of the Scott Bar salamander's range occurs on Federal lands: 58 percent on reserves (Late-Successional Reserves) and 24 percent on Matrix lands (USDA, USDI 1994). The remaining 18 percent of the species' range occurs on private lands.

Clayton and Nauman (2005b) reported that fewer than 10 sites are currently known for the Scott Bar salamander, although other sites are suspected. Based on our internal review of recent genetic analyses (Mahoney 2004; Mahoney 2005; Mead et al. 2005; Mead 2006), 17 Scott Bar salamander sites have now been verified. Within the presumed range of the Scott Bar salamander, numerous historical salamander detections have been assigned to the Siskiyou Mountains salamander. Because populations of the two species tend not to overlap (Mead 2006), it is reasonable to conclude that all salamander detections within what is now known to be the range of the Scott Bar salamander are Scott Bar salamanders. Thus, information in our files suggests that, within the range of the Scott Bar salamander, there are roughly 20 known salamander sites that are likely occupied by Scott Bar salamanders and are in addition to the 17 noted above (USDI 2006). To date, systematic surveys have not been conducted throughout this species' range; however, additional sites may be discovered in the future.

The 17 verified localities of the Scott Bar salamander are distributed across several watersheds that encompass the majority of the species' known range. Of these localities, 82 percent occur on Federal lands: 35 percent on reserves (Late-Successional Reserves) and 47 percent on Matrix lands (USDA, USDI 1994). The remaining 18 percent of the verified localities occur on private lands. Although the sample of known sites was not collected systematically, this distribution suggests that the species may be well distributed within its range.

Although the historic range of the Siskiyou Mountains salamander is unknown, the Service assumes that it was bounded to the west and south by the range of the Del Norte salamander ( Plethodon elongatus ), and to the east and northeast by drier climatic conditions and the associated vegetation communities. The range of the Scott Bar salamander consists of a polygon surrounded by the range of the Siskiyou Mountains salamander. The existing distribution of occupied sites for these species closely matches this description, and neither the petition nor information in our files provides information to suggest that a decline in extent of range has occurred for either species. Similarly, neither the petition nor information in our files provides information to suggest that significant areas within the species' ranges no longer support salamander populations. The petition states that significant portions of the species' ranges have been logged, suggesting the loss of salamander populations. However, as discussed in more detail below under Threats Analysis, Factor A, information from our files suggests that sites often remain occupied following logging (Farber et al. 2001; Clayton et al. 2004; CDFG 2005) or are recolonized after a few years (Welsh and Ollivier 1995). In addition, the Services' evaluation of the distribution of known salamander locations indicates that the salamanders are well-distributed throughout their ranges, including many areas with evidence of past logging, with large gaps corresponding to roadless areas that have received little to no survey effort.

Evaluation of the range and potential population size for the Siskiyou Mountains salamander and Scott Bar salamander is strongly influenced by the species' low detectability and the amount and distribution of potentially suitable habitat. Because of their secretive habits, detection rates for these salamanders are very low, even though the species may be quite abundant locally (Nussbaum 1974; Clayton et al. 1999). Surveys within habitat known to be occupied are frequently negative (Clayton et al. 2004; CDFG 2005). Populations at individual sites likely range in size from a few individuals to thousands of individuals (Nussbaum 1974; Welsh and Lind 1992). Based on intensive field surveys, Nussbaum (1974) provided a species-wide “conservative estimate” of over 3 million Siskiyou Mountains salamanders. While the author acknowledged that a number of methodological problems may affect this estimate, it nonetheless suggests that the perceived rarity of this species may be more related to low detectability than to actual population size.

The USDA, USDI Species Review Panel (2001) evaluated results of project surveys conducted in the northern portion of the Siskiyou Mountains salamander's range, and estimated that 3 to 14 percent of the extent surveyed provides potentially suitable habitat. In a similar evaluation, Timber Products Company estimated that approximately 18 percent of their surveyed lands within the range of the Scott Bar salamander was composed of suitable talus habitat (S. Farber pers. comm. 2006). The information from both surveys suggests that suitable habitat for these species is patchy, and comprises a minor portion of these species' ranges.

Section 4 of the Act and its implementing regulations (50 CFR 424) set forth the procedures for adding species to the Federal lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) Present or threatened destruction, modification, or curtailment of habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. In making this finding, we evaluated whether threats to the Siskiyou Mountains salamander and Scott Bar salamander as presented in the petition pose a concern with respect to the species' survival such that listing under the Act may be warranted. Our evaluation of these threats, based on information provided in the petition and available in our files, is presented below.

The petition claims that logging and wildfire pose the primary threats to Siskiyou Mountains salamander's and Scott Bar salamander's habitat and populations by altering habitat structures that influence the microclimatic conditions required by both species. The petition states that logging and wildfire increase surface temperatures and decrease relative humidity and soil moisture by removing forest cover. It also states that logging has the additional effect of compacting and realigning talus substrates. The petition states that it is likely a substantial, yet unquantified, amount of habitat has already been lost due to logging activities.

According to the petition, the effects of logging and wildfire on Siskiyou Mountains and Scott Bar salamanders are based on a sequence of relationships: the unique physiology and behavior of these species, their dependence on moist surface conditions in order to forage and reproduce, reduction of the occurrence of favorable surface conditions following loss of forest cover, and loss of viability of salamander populations inhabiting the resulting unfavorable conditions. Based on these assertions, the petition concludes that the rate and extent of timber harvest and fires will likely cause the two species to be threatened or endangered due to habitat loss in the foreseeable future.

The petition describes the physiological and behavioral traits of Siskiyou Mountains salamanders and Scott Bar salamanders that link them to habitats that provide moist conditions. Both species are lungless salamanders that require moisture in order to respire through their skin and to avoid dessication (Nussbaum et al. 1983). These traits act to limit the time during which the species can be active at the surface where foraging takes place (Nussbaum et al. 1983; Feder 1983). In the warm, dry environment characteristic of the eastern Klamath—Siskiyou Mountains, surface conditions favorable for activity by these salamanders is limited to relatively brief rainy periods in the spring and fall when soil moisture and relative humidity are high and temperatures moderate (Nussbaum et al. 1983; Clayton et al. 1999). This limitation is reflected in survey protocols for Siskiyou Mountains salamander, which require that surveys be restricted to periods of relative humidity above 65 percent, air temperature between 39.2 and 68 Fahrenheit (4 to 20 degrees Celsius), soil temperature between 38.3 and 64.4 degrees Fahrenheit (3.5 to 18 degrees Celsius), and moist soil conditions; outside of these parameters detection rates are low (Clayton et al. 1999). During the remainder of the year, these salamanders retreat underground into fissured rock substrates (Nussbaum et al. 1983).

Based on the relationships described above, the petition claims that habitat conditions that further limit above ground activity will result in reduced abundance and viability of Siskiyou Mountains salamander and Scott Bar salamander populations. The petition cites Ollivier et al. (2001), who state that shortened periods of surface conditions appropriate for feeding and breeding activities can limit both survivorship and recruitment of these salamanders due to reduced ability to achieve body mass and fat needed for reproduction. Based on physiological and ecological studies of plethodontid salamanders (Feder 1983), and the association of Siskiyou Mountains and Scott Bar salamanders (and the closely related Del Norte salamander in the Klamath province) with mature forested habitats (Nussbaum et al. 1983; Welsh and Lind 1988, 1991, 1995; Ollivier et al. 2001), it is reasonable to conclude that individuals living in drier, more open conditions may experience reduced fitness.

The petition cites Chen et al. (1993) to support the claim that removing or reducing canopy during logging or other activities can alter stand microclimates, which in turn would result in conditions unsuitable for surface activity by salamanders. Information in our files suggests that microclimatic variables such as soil moisture, fuel moisture, relative humidity, and air temperature are sensitive to changes in canopy, with open-canopied and unforested sites exhibiting drier conditions, reduced humidity, and warmer air and soil temperatures (Chen et al. 1995; Chen et al. 1999).

The petition states that rigorous pre- and post-logging studies have not been conducted on Siskiyou Mountains salamanders or Scott Bar salamanders. Information in our files also indicates that this type of study has not been conducted on the similar Del Norte salamander in the drier portions of its range. However, the petition cites several studies from across North America (Dupuis et al. 1995; Ash 1997; deMaynadier and Hunter 1998; Herbeck and Larsen 1999) and specific to the Pacific Northwest (Bury and Corn 1988; Raphael 1988; Welsh 1990; Corn and Bury 1991; Welsh and Lind 1988, 1991,1995) that describe impacts of logging to other plethodontid salamanders. It is important to note that studies conducted in eastern and mid-western North America and much of the Pacific Northwest (Bury and Corn 1988; Raphael 1988; Welsh 1990; Corn and Bury 1991; Welsh and Lind 1988, 1991,1995; and Grialou et al. 2000) were conducted in mesic (relatively wet) forest types where environmental constraints (moisture, temperature) on salamander dispersal and survival are presumably less than in the dry eastern Klamath Mountains. In addition, most plethodontid salamander species studied in other areas of North America occupy soil, surface litter, and woody debris in mesic environments, whereas Siskiyou Mountains salamanders and Scott Bar salamanders occupy talus substrates that provide refuge from temperature extremes and dry conditions in xeric (relatively dry) environments. Therefore, inferences drawn from studies of other plethodontid species in mesic environments may be limited in their applicability to Siskiyou Mountains salamander or Scott Bar salamander populations in the dry eastern Klamath Mountains.

Studies from the midwestern and eastern United States (Ash 1997; deMaynadier and Hunter 1998; Herbeck and Larsen 1999) and western Canada (Dupuis et al. 1995) indicate that clear-cutting can have significant short-term impacts to plethodontid salamander abundance, and that second-growth stands that regenerate following clear-cutting typically do not support the same level of abundance as do older forests. Dupuis et al. (1995), Ash (1997), and Herbeck and Larsen (1999) reported that plethodontid salamanders were frequently absent from 2-to-5-year-old clear-cut forests.

All of the studies that examined relative abundance of plethodontid salamanders in different forest age classes (Dupuis et al. 1995; deMaynadier and Hunter 1998; Herbeck and Larsen 1999) found that second-growth stands supported salamanders, albeit at significantly lesser abundance than older forests. However, the impact of clear-cutting on salamanders may be temporary, as one study (Ash 1997) showed that salamanders returned to clear-cut sample plots 4 to 6 years after cutting, and their numbers increased rapidly. Linear regressions estimated that salamander numbers on clear-cut plots would equal or exceed numbers on forested plots by 20 to 24 years after cutting (Ash 1997).

Studies of more closely related plethodontid salamanders in the Pacific Northwest (Raphael 1988; Welsh 1990; Corn and Bury 1991; Welsh and Lind 1988, 1991,1995) found the abundance of plethodontid salamanders to be greater in older versus younger forests, and most of these studies found that difference to be significant. However, salamanders were still present in harvested areas. Raphael (1988) reported that while Del Norte salamanders were 2 to 3 times more abundant in adjacent old-growth forest, clear-cut areas still contained the species. Additional information in our files (Grialou et al. 2000) also suggests that western red-backed salamanders ( Plethodon vehiculum ) occupy recent clear-cut areas (2 to 4 years), although at a significantly lesser abundance than in adjacent older forests. H. Welsh and D. Ashton (2004) obtained similar results for Del Norte salamanders on the Six Rivers National Forest, where salamander abundance showed a marked decline following clear-cutting, but remained relatively stable in a lightly harvested stand. However, studies are not consistent with respect to abundance on recently clear-cut sites. Bury and Corn (1988) reported plethodontid salamanders to be absent in their two clear-cut sites, but their results were equivocal because detection rates of plethodontid salamanders were very low in all of the habitats studied. In contrast to the above studies, Corn and Bury (1991) found abundance of western red-backed salamanders was not significantly different between clear-cut areas less than 10 years old and old-growth forest.

Few peer-reviewed studies exist in our files comparing the demographics of plethodontid salamander populations in clear-cut areas and adjacent forest. Grialou et al. (2000) studied the abundance and demographics of salamanders, including two plethodontid species, in mesic forests in southwestern Washington. In the year following clear-cut harvesting, body sizes of western subadult and juvenile red-backed salamanders were smaller, but attained normal size distribution by the second-year post harvest. Gravid females were captured on clear-cut plots before and after harvest. Knapp et al. (2003) used a randomized, replicated design to quantify plethodontid salamander populations on harvested timberlands of the Appalachian Mountains in Virginia and West Virginia. While salamander abundance was less on clear-cut areas versus control areas, there were no differences between cut and uncut treatments in the proportion of gravid females or in the average number of eggs in gravid females. Moreover, there were no differences between cut and uncut treatments in the proportion of the sample that was juvenile, except in one plethodontid species, which had a higher proportion of juveniles in uncut treatments.

Because most of the aforementioned studies have been conducted on other plethodontid species in mesic environments, the Service believes that our evaluation should focus primarily on information collected from Siskiyou Mountains salamander and Scott Bar salamander populations. The petition claims that a study of habitat associations of Siskiyou Mountains salamander by Ollivier et al. (2001) demonstrates that the species is threatened by logging. Ollivier et al. (2001) conducted presence/absence surveys for salamanders at 239 random locations within the range of Siskiyou Mountains salamander (some samples were within the range of the Scott Bar salamander), and concluded that the species was strongly associated with characteristics of mature forests such as closed canopies, large tree diameters, and a mossy ground cover layer. Based on this conclusion, the petition infers that removal of forest cover would result in habitat conditions unsuitable for the salamanders. While the study design employed by Ollivier et al. (2001) did not compare salamander abundance pre- and post-harvest, their sample contained 42 precanopy plots (0-to-30-year-old clearcuts). Subsequent to the study by Ollivier et al. (2001), State and private biologists conducted numerous surveys and detected Siskiyou Mountains salamanders and Scott Bar salamanders in previously logged sites (Farber et al. 2001; CDFG 2005). These surveys followed no sampling design and cannot be used to infer a lack of impacts caused by logging; however, they do suggest that salamander populations persist at sites that have been logged.

After reviewing data collected by Ollivier et al. (2001) and sampling results obtained by the California Department of Fish and Game (CDFG), H. Welsh and D. Ashton (2004) concluded that the viability of Siskiyou Mountains salamander populations is compromised following clear-cutting. They based this conclusion on the high proportion (64 percent) of juvenile and subadult animals in the sample obtained by CDFG in non-forested habitats, and speculated that this was an indication of a ‘sink' population of dispersing individuals and low levels of reproduction. Without further research, the effects of forest canopy removal on the abundance and demographics of Siskiyou Mountains salamander and Scott Bar salamander populations following logging will remain poorly understood. Two studies examining this question are currently in progress: one involving the Service, the Redwood Sciences Laboratory, and Humboldt State University, and one being conducted by Timber Products Company.

The petition also states that gaps created in the species' range by logging could compromise the species' viability. The petition claims that the biology of the species, narrow habitat niche, naturally fragmented habitat, and patchy distribution limit the species' ability to recover from disturbances. The petition cites Blaustein et al. (1995) to support the claim that when local populations of Siskiyou Mountains salamander are extirpated, there is little chance that the habitat will be recolonized. However, evidence in the petition and in Service files suggests that dispersing juveniles readily colonize logged sites (Welsh 2005) and road cutbanks (Nussbaum 1974), suggesting that dispersal may not be as limited as previously thought. The biology of the Siskiyou Mountains salamander and the Scott Bar salamander may limit their ability to recolonize vacant sites; however, neither the petition nor information in our files demonstrates that logging creates gaps in plethodontid salamander distribution by extirpating species from a site.

The petition also states that other actions, including tractor logging, road construction, mining, and recreational development, have resulted in, and will continue to result in, degradation, loss, or fragmentation of Siskiyou Mountains salamander habitat. The petition cites Welsh and Ollivier (1995) as suggesting that tractor yarding may impact Siskiyou Mountains salamander habitat by compacting, breaking, or realigning talus. Although it is reasonable to conclude that tractor yarding may disturb talus substrates, field studies have not demonstrated how this impacts salamander populations. The petition also cites deMaynadier and Hunter (2000) as indicating that plethodontid salamanders are sensitive to population fragmentation by logging roads. Results of that study suggest that logging roads may significantly inhibit movement and local abundance of plethodontid salamanders. Additional information in our files (Marsh et al. 2005) suggests that forest roads act as partial barriers to salamander movement. Road densities within much of the ranges of the Siskiyou Mountains salamander and Scott Bar salamander are documented to be high (USDA 1999) and may act to reduce dispersal and increase the degree of isolation among salamander populations. This in turn may lead to reduced gene flow and reduced long-term persistence of small, isolated populations (Marsh et al. 2005). Conversely, Nussbaum (1974) found that road cuts provided essential habitat in the form of newly exposed fissured rock and were colonized by Siskiyou Mountains salamanders soon after road construction. The available information regarding the effects of roads on populations of Siskiyou Mountains salamanders and Scott Bar salamanders is equivocal.

Although the amount of habitat impacted by logging could not be quantified, the petition contends that substantial habitat loss has likely occurred. To support this claim, the petition cites the USDA, USDI Species Review Panel (2001), which stated that “cumulative effects from past timber harvest have impacted populations on Federal lands” and “from 1980 to 1990, 10 percent of habitat on the Applegate Ranger District was clearcut.” However, the rate and extent of timber harvest has declined dramatically on Federal lands within the Northwest Forest Plan area during the past 30 years (USDA, USDI 2005), particularly on the Klamath National Forest, which comprises roughly 50 percent of the Siskiyou Mountain salamander's range and 80 percent of the Scott Bar salamander's range (USDA 2006). During the 6-year period from 2000 to 2005, the Klamath National Forest sold and removed an average of 15.9 million board feet of timber annually, compared with 187.8 million board feet/per year during 1985 to 1990 (inclusive), and 238.2 million board feet/per year from 1979 to 1984 (USDA 2006). The declining trend in timber harvest reduces the likelihood that a high proportion of the salamanders' populations will be impacted by logging.

While the Service agrees that timber harvesting has the potential to reduce habitat quality for the Siskiyou Mountains salamander and Scott Bar salamander, Forest Service reports (USDA, USDI 2005; USDA 2006) demonstrate a dramatic decline in the amount of timber harvest on Federal lands within the ranges of the salamanders. These data suggest that the rate and magnitude of harvest on the majority of the species' ranges is likely not sufficient to cause them to be threatened or endangered in the foreseeable future.

The petition further claims that fire suppression has led to an increase in fuel loading, resulting in a change from low- to high-intensity fire regimes in many forest stands within the ranges of the Siskiyou Mountains salamander and Scott Bar salamander, and that the risk of stand-replacing fire has increased due to forest management practices that remove the largest, most fire resistant trees and create young, highly combustible plantations. The petition claims that although the response of these salamanders to fire has not been well studied, fire has the potential to impact populations by removing or reducing forest canopy cover. Published studies (Agee 1993; Taylor and Skinner 1998) and Forest Service reports (USDA 1999) clearly document that increased fuel loading and forest stand density have increased the potential for high-intensity wildfire events within the range of the Siskiyou Mountains salamander and Scott Bar salamander. These high-intensity fires were much less frequent in the historical fire regime with which these salamanders evolved. High-intensity wildfire events, by definition, remove or significantly reduce forest cover; consume moss, duff, and forest litter; and may sterilize surface soil layers. The impacts of such events on salamander habitat and populations are likely more severe than those of clear-cutting, but have not been directly evaluated. Recent large fires within the Klamath Province, combined with fire behavior modeling conducted by the Forest Service, suggest a high probability of moderate-to high-intensity wildfires within the range of the Siskiyou Mountains salamander and Scott Bar salamander. However, fire modeling also suggests that the level of tree mortality would be highly variable within the range of these species (USDA 1999), resulting in a mosaic pattern of habitat effects. The extent to which high-intensity fire effects would occur within habitats occupied by these salamanders is currently unknown.

To summarize Factor A, logging, wildfire, and other habitat disturbances may impact local abundance and viability of Siskiyou Mountains salamanders and Scott Bar salamanders by altering the microclimate within stands that support these species, by fragmenting habitat, or by otherwise reducing habitat quality. Although extensive logging has occurred in Siskiyou Mountains salamander and Scott Bar salamander habitat for over 100 years, the extent of habitat change has not been quantified, and salamander populations remain well-distributed. Increased potential for stand-replacing wildfire also places more of the species' habitat at risk. Information in our files (e.g., Farber et al. 2001; CDFG 2005) indicates that both Siskiyou Mountains salamanders and Scott Bar salamanders occur to some extent in clear-cuts, second-growth stands, burned areas, and naturally open habitats, and the demography of populations subjected to timber harvest or fire is poorly known. This evidence suggests that while timber harvest and wildfire may, at least temporally, reduce habitat quality for, and abundance of, Siskiyou Mountains salamanders and Scott Bar salamanders, they do not result in the extirpation of populations. The rate and extent of timber harvest has declined dramatically on Federal lands within the Northwest Forest Plan area, particularly the salamanders' ranges on the Klamath National Forest, during the past 30 years (USDA, USDI 2005; USDA 2006). Based on current Forest Service policies, we anticipate that the rate of timber harvest will remain at roughly the present levels. Although it is reasonable to assume that high-intensity wildfire may have a negative impact on salamander habitat and populations, we are not aware of any scientific studies that evaluate this potential risk, and there is evidence that salamander populations persist following reduction of forest canopy.

In general, the Service finds that reliable scientific information presented in the petition and available in our files regarding the dependence of the Siskiyou Mountains and Scott Bar salamanders on old growth forest habitat and habitat-based threats to the species posed by logging and high-intensity fires is equivocal and conflicting. However, based on the standard applicable to 90-day findings under the Act, we find that the petition does present substantial information regarding Factor A, indicating that listing of these two species across all or a significant portion of their ranges may be warranted due to the present or threatened destruction, modification, or curtailment of the species' habitat or range.

The petition does not provide any information pertaining to Factor B. Therefore, we find that the petition does not present substantial information indicating that listing of these two species across all or a significant portion of their ranges may be warranted due to overutilization for commercial, recreational, scientific, or educational purposes.

The petition does not present any information pertaining to Factor C. Therefore, we find that the petition does not present substantial information indicating that listing of these two species across all or a significant portion of their ranges may be warranted due to disease or predation.

The petition asserts that existing regulatory mechanisms are inadequate to protect Siskiyou Mountains and Scott Bar salamanders because Federal regulatory mechanisms that formerly protected the salamanders have been eliminated and State regulatory mechanisms that protect the species are likely to be eliminated. The petition does not contend that, if left in place, the Federal and State mechanisms would be inadequate to protect the species.

The petition cites the USDA, USDI Species Review Panel (2001) to demonstrate that approximately 80 percent of the range of the Siskiyou Mountains salamander occurs on Federal lands managed by the Rogue-Siskiyou and Klamath National Forests and the Medford District of the Bureau of Land Management. Thirty-nine percent of the species' range occurs within protected land designations under the Northwest Forest Plan (NWFP) (USDA, USDI Species Review Panel 2001). Additionally, the petition cites Clayton et al. (2002 as cited in USDA, USDI 2004) to demonstrate that less than 10 percent of suspected high-quality habitat occurs in reserves. The petition thus concludes that the majority of the species' ranges and high-quality habitat occurs on Federal lands available for timber harvest and other activities. The petition cites the USDA, USDI Species Review Panel (2001) to suggest that specific protections on non-reserve land allocations will likely be required to ensure persistence of the species.

The petition claims that the Siskiyou Mountains salamander formerly received substantial protection on Federal lands from the Survey and Manage Program (USDA, USDI 1994). The petition claims that this program was abolished with the Record of Decision (ROD) entitled, “To Remove or Modify the Survey and Manage Mitigation Measures Standards and Guidelines in Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl” in March 2004 (March 2004 ROD). The Final Supplemental Environmental Impact Statement for the March 2004 ROD addressed potential mitigation, including sensitive species programs, for species affected by the removal of the Survey and Manage Program. However, the petition claims that the sensitive species programs provide substantially less protection by failing to require surveys and making mitigation optional. The petition cites a USDA, USDI (2004) statement that the elimination of the Survey and Manage Program may result in gaps in the Siskiyou Mountains salamander's range.

According to the petition, in the absence of the Survey and Manage Program, management of the Siskiyou Mountains salamander would be governed by the standards and guidelines of the NWFP. According to the petition, 78 percent of the known occupied sites north of the Siskiyou Crest occur in the Applegate Adaptive Management Area (AMA). Under the NWFP, AMAs were created to “encourage the development and testing of technical and social approaches to achieving desired ecological, economic, and other social objectives,” with each AMA having a management plan (USDA, USDI 1994). Because an agency plan for the Applegate AMA has not been produced, and standards and guidelines for activities in AMAs are more flexible than in other land-use allocations, the petition claims that existing guidelines for the Siskiyou Mountains salamander in the Applegate AMA would result in limited protection for the species. However, the petitioners provided no documentation to suggest that Federal actions in the AMA are having an effect on the salamanders.

The status of the Survey and Manage Program is in flux. In January 2006, the United States District Court, Western District of Washington in Northwest Ecosystem Alliance, et al. , v. Mark E. Rey, et al. , Case 2:04-CV-00844-MJP, ordered the March 2004 ROD set aside for failure to comply with the National Environmental Policy Act (42 U.S.C. 4321 et seq.). With this, the court reinstated the 2001 Survey and Manage ROD as it stood in March 2004. The Survey and Manage Program is therefore the current regulatory mechanism in place for the United States Forest Service and Bureau of Land Management lands that the Siskiyou Mountains salamander occupies. Under these provisions, all currently known and future sites south of the Siskiyou Crest will be managed to maintain species persistence, and surveys will be conducted prior to habitat-disturbing activities. North of the Siskiyou Crest, high-priority sites will be identified and managed to provide a reasonable assurance of species persistence.

The Scott Bar salamander is not specifically addressed by name in the Survey and Manage ROD protections. However, the Klamath National Forest has formally stated that Survey and Manage protections for Siskiyou Mountains salamander also extend to the Scott Bar salamander, as they cannot be easily distinguished in the field (M. Boland 2006). Thus, protections for the Scott Bar salamander on Federal lands are in place.

The Forest Service and Bureau of Land Management have stated that they intend to issue on June 8, 2007, a final supplement to the 2004 Final Supplemental Environmental Impact Statement that addresses the deficiencies of the March 2004 ROD that were identified by the court. Implementation of the final supplement is anticipated during August 2007. The Service cannot predict what protections will be provided to the Siskiyou Mountains salamander in future decisions. If existing Federal regulations are modified in the future, the adequacy of these regulations to protect the Siskiyou Mountains salamander and Scott Bar salamander in light of any threats to the species threats should be evaluated at that time.

The State of Oregon provides no regulatory protections for the Siskiyou Mountains salamander on private lands (approximately 10 percent of the species' range). In California, the Siskiyou Mountains salamander is listed as a threatened species and receives substantial protection under the California Endangered Species Act (CESA). These protections include pre-project surveys and prohibitions on timber harvest in established buffers around suitable habitat. In 2005, CDFG submitted a petition to the California Fish and Game Commission to delist the Siskiyou Mountains salamander. Because of CDFG's delisting proposal, the petitioners claim that the protections provided by CESA should not be considered to provide firm regulatory protection for the species. The final determination on whether to delist the Siskiyou Mountains salamander was scheduled to be made at the Fish and Game Commission's January 31, 2007, meeting; however, that determination has been postponed until Fall of 2007. If existing State regulations are modified in the future, the adequacy of the future regulations to protect the Siskiyou Mountains salamander in light of any threats to the species should be evaluated at that time. Unless and until the Siskiyou Mountains salamander is delisted as a threatened species, it remains protected under the CESA.

In July 2005, the Scott Bar salamander appeared on the CDFG's Special Animals List (CDFG 2006). The CDFG describes the Scott Bar salamander as a “newly discovered species from what was part of the range of Plethodon stormi. ” Based on this change of taxonomic status, the CDFG removed the Siskiyou Mountains salamander populations now recognized as Scott Bar salamanders from listed status under CESA. That action was successfully challenged by three environmental organizations in State court ( Environmental Protection Information Center et al. vs. California Department of Fish and Game , Case No. CPF-06-506585). The court found that the removal of Scott Bar salamander from the State's endangered species list was not in accordance with law, and ordered that the new species be protected under CESA until formal delisting procedures are completed. On May 1, 2006, the California Fish and Game Commission received a petition to list the Scott Bar salamander under CESA.

No specific regulatory mechanisms to protect the Siskiyou Mountains salamander exist on the approximately 10 percent of the species' range that occurs in Oregon. However, research suggests that populations of these salamanders persist following timber harvest (Farber et al. 2001; Clayton et al. 2004; CDFG 2005). Therefore, the Service believes that the lack of regulatory protections on a limited proportion of the species' ranges does not likely pose a threat to the species as a whole in the foreseeable future.

To summarize Factor D, existing Federal regulations currently provide substantial protection on Federal lands for the Siskiyou Mountains salamander and Scott Bar salamander through the Survey and Manage Program.

Current California regulations provide substantial protection for the Siskiyou Mountains salamander and Scott Bar salamander on private lands. Oregon provides no regulatory protections for Siskiyou Mountains salamanders on private lands. However, private lands in Oregon comprise only 10 percent of the Siskiyou Mountains salamander's range. The Scott Bar salamander's range does not extend into Oregon. Thus, substantial regulatory protections are provided to both species across a large majority of the Siskiyou Mountains salamander's range and all of the Scott Bar salamander's range. Although the Forest Service and Bureau of Land Management have developed a supplement to their March 2004 Supplemental Environmental Impact Statement (SEIS) that again proposes to eliminate Survey and Manage guidelines for the Siskiyou Mountains salamander, no decision has been made by the agencies. Similarly, the State of California is currently evaluating a petition to delist the Siskiyou Mountains salamander, but no decision regarding this action has been reached. Continuing litigation over the Federal and State proposals and re-evaluation of the proposals by Federal and State agencies indicates that a future relaxation of regulatory mechanisms to protect the Siskiyou Mountains and Scott Bar salamanders is at best uncertain. Under section 4(a)(1)(D) of the Act, the Service must evaluate the adequacy of existing regulatory mechanisms rather than speculate about future changes to those mechanisms. If these regulations are modified or eliminated in the future, the Service will consider that information when evaluating the adequacy of then existing regulatory mechanisms to protect the Siskiyou Mountains salamander and the Scott Bar salamander, in light of any threats faced by the species. In particular, we will monitor any changes to Federal and State regulatory mechanisms during our status review of the species.

Because Federal and State of California regulations are currently in effect and offer protection for the Siskiyou Mountains salamander and Scott Bar salamander over all or the vast majority of the species' ranges, we find that the petition does not present substantial information that listing of these two species across all or a significant portion of their ranges may be warranted due to the inadequacy of existing regulatory mechanisms.

The petition states that “an increasing consensus has developed that we are and will continue to experience global warming.” The petition cites Feder (1983) and Ollivier et al. (2001) to propose that the salamanders' unique physiology and their need for moist conditions for foraging and breeding activity make the Siskiyou Mountains salamander and Scott Bar salamander particularly sensitive to variations in climate. Thus, the petition suggests that the expected change in climate over time is likely to influence the species' distribution and ability to find suitable habitat. The petition also claims that warmer temperatures may shorten the window in which the species is able to forage and reproduce. According to the petition, warmer temperatures may also negatively affect habitat by increasing the severity and intensity of forest fires, resulting in loss of forest canopy. However, the petition did not present an analysis of the likelihood or magnitude of microhabitat changes that may be brought about by regional climate change.

The petition also cites USDA, USDI (2004) to demonstrate that, due to limited habitat and the known existence of only three localities, the Scott Bar salamander is at risk of extinction due to genetic or demographic stochasticity, regardless of management direction. However, information in our files suggests that the number of known localities and existing habitat within the range of the Scott Bar salamander is considerably larger than that considered in USDA, USDI (2004), and there is no evidence to suggest the historical range of the Scott Bar salamander has significantly contracted despite 100 years of extensive logging, which has substantially decreased in recent years. The apparent resiliency of this species and the existence of 37 currently known sites decreases the potential threat posed by stochastic events, although the species' range is naturally small and restricted. The Siskiyou Mountains salamander also continues to be distributed across its historic range despite widespread logging during the 20th century. Stochastic events pose even less of a potential threat to the Siskiyou Mountains salamander due to its apparent resiliency and the greater number of known localities and relatively larger range.

To summarize Factor E, because foraging and breeding activities are dependent upon cool, moist conditions, these salamanders may be susceptible to alterations in microclimate resulting from projected climate change. However, the petition does not present reliable evidence of, or analyze the type, magnitude, or temporal effects of, microhabitat changes within the ranges of the Siskiyou Mountains and Scott Bar salamanders that could potentially be brought about by future regional climate change. Finally, the petitioners assert that the Siskiyou Mountains and Scott Bar salamanders are at risk because their restricted ranges make the species vulnerable to extinction as a result of stochastic events. Although the ranges of the species are naturally restricted, they have continued to persist despite decades of logging, and the number of currently known populations is considerably greater than stated in the petition. Additionally, a considerable amount of suitable habitat capable of supporting Siskiyou Mountains salamanders and Scott Bar salamanders has yet to be surveyed. Thus, the Service believes that both the Siskiyou Mountains and Scott Bar salamanders are more resilient to stochastic events than the petition claims. We find that the petition does not present substantial information that listing of the two species across all or a significant portion of their ranges may be warranted due to natural or manmade factors affecting their continued existence.

The petition asserts that the Siskiyou Mountains salamander occurs in three separate distinct population segments (DPSs) and also requests the Service to consider listing the Siskiyou Mountains salamander throughout a significant portion of its range.

Because we conclude that the petition provides substantial information that listing the Siskiyou Mountains and Scott Bar salamanders rangewide may be warranted (thus triggering the requirement under the Act that we conduct a status review), we have not analyzed in detail whether the petition also provides substantial information with respect to a particular significant portion of the range of the Siskiyou Mountains salamander. For the same reason, we have not analyzed in detail whether the petition provides substantial information with regard to potential distinct population segments of the Siskiyou Mountains salamander other than the petitioner's proposed Scott Bar salamander DPS, which we have treated as a separate species for purposes of this finding. However, we welcome information on the issue of whether either salamander is, in fact, in danger of extinction throughout all or a significant portion of its range, or likely to become so in the foreseeable future, and information on the issue of whether a particular DPS of the Siskiyou Mountains salamander warrants listing. We will consider these issues further during the status review, particularly if we conclude that the species are not in danger of extinction rangewide, nor likely to become so in the foreseeable future.

The Service finds that the information provided in the petition and readily available in our files regarding habitat associations of Siskiyou Mountains and Scott Bar salamanders and the potential for population losses due to logging and fire is equivocal and conflicting. Therefore, based on the standard applicable to 90-day findings under the Act, we must find that the petition does present substantial information that listing of the two species across all or a portion of their ranges may be warranted based on the threatened destruction, modification, or curtailment of their habitat and ranges. This finding initiates a status review of these species so that we can gather more scientific data on these and other relevant issues concerning these species.

The petition also requested that critical habitat be designated for the Siskiyou Mountains salamander and Scott Bar salamander. If we determine in our 12-month finding that listing these species is warranted, we will address the designation of critical habitat in the proposed listing rule or as funding allows.

A complete list of all references cited herein is available, upon request, from the Yreka Fish and Wildlife Office (see ADDRESSES ).

The primary authors of this notice are staff of the Yreka Fish and Wildlife Office (see ADDRESSES ).

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

Background

On February 8, 2007, we published a proposal to establish a DPS of the wolf ( Canis lupus ) in the NRM of the United States and to remove the NRM DPS from the List (71 FR 6106). The comment period on this proposal opened February 8, 2007, and extends to April 9, 2007. Due to the complexity of this proposed action, we are extending the comment period for 30 days to allow the public ample opportunity to comment on this complex proposal.

One additional open house, from 3 p.m. to 5 p.m. (brief presentations about the proposed rule will be given at both 3 p.m. and 4 p.m.), and one additional public hearing, from 6 p.m. to 8 p.m., will be held on:

April 19, 2007, Thursday, at the Cody Auditorium Facility, 1240 Beck Avenue, Cody, WY 82414.

Anyone wishing to make an oral statement for the record is encouraged to provide a written copy of their statement and present it to us at the hearing. In the event there is a large attendance, the time allotted for oral statements may be limited. Speakers can sign up only at the open houses and hearings. Oral and written statements receive equal consideration. There are no limits on the length of written comments submitted to us. If you have any questions concerning the public hearing, please contact Sharon Rose (303) 236-4580. If you need reasonable accommodations in order to attend and participate in the public hearing, please contact Sharon Rose at (303) 236-4580 as soon as possible in order to allow sufficient time to process requests. Please call no later than 1 week before the hearing date. Information regarding the proposal is available in alternative formats upon request.

The purpose of the public hearing is to provide additional opportunity for the public to comment on this complex proposal. Public hearings are the only method for comments and data to be presented verbally for entry into the public record of this rulemaking and for our consideration during our final decision. Comments and data also can be submitted in writing or electronically, as described in our February 8, 2007, proposal (71 FR 6106) and in the ADDRESSES section above.

We intend that any final action resulting from this proposed rule will be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We solicit information, data, comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposal. Generally, we seek information, data, and comments concerning the boundaries of the proposed NRM DPS and the status of gray wolf in the NRM. Specifically, we seek documented, biological data on the status and management of the NRM wolf population and its habitat.

Submit comments as indicated under ADDRESSES . If you wish to submit comments by e-mail, please include your name and return address in your e-mail message.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. We will take into consideration the comments and any additional information received during the comment period on this proposed rule during our preparation of a final rulemaking. Accordingly, our final decision may differ from this proposal.

The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq. ).

On December 15, 2004, NMFS notified the Western Pacific and Pacific Fishery Management Councils that overfishing was occurring on bigeye tuna Pacific-wide (69 FR 78397, December 30, 2004). On March 16, 2006, NMFS notified the Western Pacific Council that overfishing was occurring on western and central Pacific Ocean (WCPO) yellowfin tuna (71 FR 14837, March 24, 2006). As required by the Magnuson-Stevens Act, the Councils were requested to take appropriate action to end overfishing. Pelagics FMP Amendment 14 contains the Western Pacific Council's recommended actions to end overfishing for both stocks.

According to the guidelines for National Standard 1 of the Magnuson-Stevens Act (50 CFR 600.310), fishery stock status is assessed with respect to two status determination criteria, one of which is used to determine whether a stock is “overfished,” and the second of which is used to determine if the stock is subject to “overfishing.” A stock is considered to be overfished if its biomass falls below the minimum stock size threshold (MSST). Overfishing means that fishing is occurring at a rate or level that jeopardizes the capacity of a stock or stock complex to produce maximum sustainable yield (MSY) on a continuing basis. When a stock is not in an overfished condition, the maximum fishing mortality threshold (MFMT) is equal to the fishing mortality associated with MSY (F MSY ). The latest stock assessments for bigeye tuna in the Pacific and WCPO yellowfin tuna have concluded that the biomass of neither stock is below their respective MSST. However, the assessments used as a basis for the overfishing determinations (conducted in 2003 and 2004 for Pacific bigeye tuna and 2005 and 2006 for WCPO yellowfin tuna) indicated that the then-current level of fishing mortality did exceed the stocks' respective MFMTs. Consequently, NMFS determined that overfishing was occurring on the Pacific-wide stock of bigeye tuna and on the WCPO stock of yellowfin tuna.

Bigeye and yellowfin tuna are highly migratory species, and occur in the waters of multiple nations and the high seas. Consequently, they are targeted by fishing fleets of several nations, including the United States of America (U.S.A.). Until recently, the majority of bigeye tuna in the Pacific Ocean was caught by longliners, primarily for the Japanese sashimi market. During the last 10 years, however, catches of bigeye tuna by purse seiners have increased considerably. Purse seine-caught bigeye tuna are taken primarily when purse seiners targeting skipjack and yellowfin tuna set their nets around fish aggregating devices (FADs). Smaller amounts are also taken by handline and troll vessels. Yellowfin tuna in the WCPO are caught primarily by purse seiners. WCPO longline, pole-and-line, handline and troll fisheries also catch substantial amounts of yellowfin tuna.

In 2004, estimated bigeye tuna catches by U.S. commercial fisheries under the Council's authority amounted to 5,163 mt, or 2.3 percent of the 2004 total Pacific-wide bigeye tuna catch. In 2004, estimated yellowfin tuna catches by U.S. commercial fisheries under the Council's authority amounted to 2,383 mt, or about 0.35 percent of the 2004 total Pacific-wide yellowfin tuna catch, and 0.58 percent of the yellowfin tuna caught in the WCPO. These figures indicate that the capacity for unilateral action by the U.S.A. to prevent or end overfishing is limited, as is the capacity for any action taken by the Council to end overfishing on these fish stocks.

In response to concerns about the condition of the bigeye tuna stock in the Eastern Pacific Ocean, the Inter-American Tropical Tuna Commission (IATTC) adopted management measures, commencing with temporal closures of purse-seine fishing and bigeye tuna catch limits for longline vessels. Within the area of competence of the IATTC, the longline fleets of China, Japan, Korea, and Chinese Taipei were allocated specific catch limits. Other member nations of the IATTC were allocated bigeye tuna catch limits equivalent to their respective 2001 catches. The U.S. longline fleet-wide bigeye tuna limit was set at 150 mt, although this quota will increase to 500 mt in 2007. (The IATTC's June 2006 resolution allows for a quota of 500 mt, and the U.S. implementing regulations are still being reviewed for implementation in the near future.)

The U.S.A. is a Cooperating Non-member of the Commission on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC). (Although the implementing legislation for U.S. membership in the WCPFC has been signed, the U.S.A. has not formally ratified the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention) or become a member of the Commission.) The WCPFC, established under the Convention, adopted conservation and management measures for WCPO yellowfin tuna and WCPO bigeye tuna in 2005 and 2006. The measures include national limits on bigeye tuna catches by longline fisheries in the Convention area (which overlaps with the area of competence of the IATTC), based on such members' average 2001-04 catches, or for China and the U.S.A., based on their 2004 catches. These limits will remain in effect through 2008. WCPFC cooperating non-members, and participating territories (together abbreviated as CCMs) that caught less than 2,000 mt by longlines in 2004, may take up to 2,000 mt each year from 2006-08.

For yellowfin tuna, for which the main source of fishing mortality in the WCPO is purse seine fishing, the WCPFC established measures for purse seiners within the Convention Area (in the area between 20° N and 20° S latitude). Starting in 2006, CCMs are required to take necessary measures to ensure purse seine effort levels do not exceed either 2004 levels, or the average of 2001 to 2004 levels, in waters under their national jurisdiction. Starting in 2007, CCMs must limit effort on the high seas by their purse seine vessels to those same baseline levels. Also beginning n 2007, CCMs must limit the fishing capacity of their fisheries other than longline and tropical purse seine fisheries to the same baseline levels. The adopted measures also require CCMs to develop management plans for the use of FADs in waters under national jurisdiction and on the high seas.

The 2004 overfishing determination for Pacific-wide bigeye tuna relied on assessments from two approaches: one assuming a single Pacific-wide stock (assessment completed in July 2003), and the other assuming two stocks, one in the WCPO, corresponding to the area of competence of the WCPFC (assessment completed in July 2004), and the other in the eastern Pacific Ocean (EPO), corresponding to the area of competence of the IATTC (assessment completed in May 2004). The overfishing determinations relied on assessment results from each of these approaches, but did not rely on any assumptions or conclusions about stock structure. The July 2004 assessment for the WCPO stock indicated a probability of at least 67 percent that the recent fishing mortality rate exceeded the fishing mortality rate associated with MSY, known as the Maximum Fishing Mortality Threshold (MFMT). The May 2004 assessment for the EPO stock indicated that in all scenarios considered, the recent fishing mortality rate exceeded the MFMT. The results of the 2003 assessment for the Pacific-wide stock were similar in that the recent fishing mortality rate exceeded the MFMT. The results from the 2003 and 2004 assessments showed that the level of fishing mortality F current was at or above the fishing mortality at MSY (F MSY ), i.e., F current /F MSY = 0.90-1.30 for bigeye tuna Pacific-wide. The latest assessment for bigeye tuna in the WCPO estimated, in the base case model, that F current /F MSY = 1.32 (F current was taken to be the 2001-04 average fishing mortality-at-age). The probability of F current being greater than F MSY was estimated to be 100 percent. The Pacific-wide stock was found not to be overfished, but could become so if levels of fishing mortality are not reduced.

In 2005, the Scientific Committee of the WCPFC reviewed a stock assessment for the WCPO stock of yellowfin tuna that indicated that the stock was likely subject to overfishing. The then-current rate of fishing mortality F current was found to be likely in excess of the MFMT, with an F current /F MSY = 1.0 - 2.33. The latest assessment for yellowfin tuna in the WCPO, conducted in 2006 estimated, in the base case model, that F current /F MSY = 1.11 (F current was taken to be the 2001-04 average fishing mortality-at-age). The probability of F current being greater than F MSY was estimated to be 73 percent. The WCPO stock was found not to be overfished, but could become so if levels of fishing mortality are not reduced.

Because bigeye and yellowfin tuna are taken by handline and troll vessels, Pelagics FMP Amendment 14 contains measures to assess the impact of small boat fisheries in Hawaii on these species, as well as other pelagic fishes, in the WCPO. Specifically, the Council recommended that NMFS enhance the data collection for U.S. Hawaii-based small boat fishing through mandatory Federal permits and data-collection programs (logbooks) for commercial pelagic fisheries, and improved surveys and voluntary reporting for recreational pelagic fisheries.

Pelagics FMP Amendment 14 acknowledges that the Council recommended a control date of June 2, 2005, for entry into the small boat commercial pelagic fisheries in U.S. EEZ waters around Hawaii. On August 15, 2005, NMFS published a notice of this control date (70 FR 47781). The amendment also acknowledges that the Council recommended a control date of June 2, 2005, for entry into domestic longline and purse seine fisheries in U.S. EEZ waters in the western Pacific. On August 15, 2005, NMFS published a notice of this control date (70 FR 47782). These control dates were implemented to notify the public that future participation in these fisheries was not guaranteed if the Council and NMFS developed and implemented limited access programs for the fisheries. Establishment of these control dates does not, however, commit the Council or NMFS to any particular management regime or criteria for entry into these fisheries.

The international scope of the overfishing situation for bigeye tuna Pacific-wide and WCPO yellowfin tuna indicates that measures to meaningfully address the problem must be addressed through international institutions. Unilateral management action for Council-managed pelagic fisheries could help reduce the fishing mortality, but would be insufficient to end overfishing. Thus, international measures are a fundamental component of FMP Amendment 14 to end overfishing on these tuna stocks.

Internationally, Pelagics FMP Amendment 14 contains several proposed non-regulatory measures and recommendations, including the establishment for the Council of an internal protocol related to its role in making recommendations to the Secretary on the management of pelagic fish stocks that are managed internationally (including steps the Council would take to monitor the status of internationally managed fish stocks, participate in U.S. delegations in meetings with RFMOs, and follow the activities of RFMOs). The Council also recommends that NMFS and the Department of State work through the RFMOs to immediately end overfishing of bigeye tuna Pacific-wide and WCPO yellowfin tuna, focusing on fisheries with the greatest impact on Pacific bigeye tuna and WCPO yellowfin tuna, i.e., longline and purse seine fisheries. Specific international recommendations include plans for reducing longline fishing capacity, reducing purse seine fishing capacity and restrictions on the use of FADs while purse seine fishing, establishment and gradual reduction of national quotas, and other measures.

This proposed rule is consistent with section 406 of the Magnuson-Stevens Reauthorization Act (MSRA, Public Law 109-479), which added a new subsection 304(i) to the MSA. Section 304(i) requires the Secretary to, among other things, in cooperation with the Secretary of State, immediately take appropriate action at the international level to end overfishing for fisheries that the Secretary has determined (a) to be overfished or approaching a condition of being overfished due to excessive international fishing pressure, and (b) for which there are no management measures to end overfishing under an international agreement to which the United States is a party. NMFS has made a determination that both of these conditions are present, and these measures are, therefore, proposed pursuant to subsection 304(i).

This proposed rule recognizes that Pacific bigeye tuna and WCPO yellowfin tuna are exploited in waters under US jurisdiction, waters under the jurisdiction of other nations, and on the high seas by foreign fishing fleets along with the U.S. fleet. U.S. fisheries account for only a small percentage of the Pacific bigeye and WCPO yellowfin tuna harvests. Thus, fishing mortality of these tuna stocks stems predominantly from non-U.S. fleets in the region, and any unilateral management action to end overfishing by the U.S.A. would have a proportionally small effect in terms of reducing fishing mortality and ending overfishing. The Council has developed recommendations in Amendment 14 for domestic regulations to address the relative impact of U.S. fishing vessels on the affected stocks. Also in Amendment 14, the Council proposes to recommend, to NMFS and the Secretary of State, international actions to end overfishing in the fisheries. NMFS, in collaboration with the Councils and State Department, is working to end overfishing through the international bodies governing the conservation and management of Pacific bigeye and WCPO yellowfin tunas.

Existing Pelagics FMP measures for bigeye Pacific-wide and WCPO yellowfin tuna have been implemented to address the relative impact of U.S. fishing vessels within the meaning of MSA Section 304(i)(2)(A). These measures include limited access programs, mandatory data collection, scientific observers, vessel size limits and gear specifications, and a vessel monitoring system. The additional domestic measures, proposed in this rule, would establish permit and reporting requirements for Hawaii-based small-boat pelagic fisheries to improve the quantity and quality of information on the harvest of Pacific bigeye and WCPO yellowfin tunas.

Bigeye tuna is also a management unit species under the Pacific Fishery Management Council's Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP). The Pacific Council has worked with the Western Pacific Council to develop a response to the determination of overfishing on bigeye tuna Pacific-wide. Amendment 1 to the Pacific Council's HMS FMP is consistent with relevant elements of Pelagics FMP Amendment 14 to end overfishing of bigeye tuna.

Comments on this proposed rule must be received by May 14, 2007. Public comment is specifically sought regarding the proposed Federal data collection requirements for small boat commercial pelagic fishermen in Hawaii, including the necessity of, and possible alternative means for, the proposed data collection program in light of existing programs collecting data for the same fisheries. To be considered, comments must be received by close of business on May 14, 2007, not postmarked or otherwise transmitted by that date.

In addition to soliciting public comments on this proposed rule, NMFS is soliciting comments on proposed FMP Amendment 14 through April 16, 2007 (as stated in the Notice of Availability published on February 15, 2007, 72 FR 7385). Public comments on this proposed rule, if received by April 16, 2007, will also be considered in the approval/disapproval decision for Amendment 14. Comments received after that date will not be considered in the approval/disapproval decision for Amendment 14, but will be considered for this proposed rule.

At this time, NMFS has not determined that Pelagics FMP Amendment 14, which this proposed rule would implement, is consistent with the national standards of the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The analysis follows:

This proposed rule contains a collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval. The public reporting burden for these requirements is estimated to be 30 min for a new permit application, and 20 min for completing a fishing logbook each day. Each estimate includes time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Public comment is sought regarding whether (a) this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility, (b) the accuracy of the burden estimates, (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to William L. Robinson (see ADDRESSES ), and email to David_Rostker@omb.eop.gov or fax to 202-395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to 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.

For the reasons set out in the preamble, 50 CFR part 665 is proposed to be amended as follows:

1. The authority citation for part 665 continues to read as follows:

2. In § 665.12, add the definition of “Hawaii non-longline pelagic permit” to read as follows:

3. In § 665.21, add a new paragraph (o) to read as follows:

5. In § 665.22, add new paragraph (uu) to read as follows:

NMFS manages the U.S. groundfish fisheries of the Bering Sea and Aleutian Islands Management Area (BSAI) and Gulf of Alaska (GOA) in the Exclusive Economic Zone under the FMPs. The North Pacific Fishery Management Council (Council) has prepared the FMPs pursuant to the Magnuson-Stevens Fishery Conservation and Management Act. Regulations implementing the FMPs appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.

The Council originally adopted and NMFS approved and implemented the current “interim” Observer Program (Observer Program) in 1996 (61 FR 56425, November 1, 1996). Through interim extensions, Observer Program regulatory requirements have been extended through 2007 (62 FR 67755, December 30, 1997; 63 FR 69024, December 15, 1998; 65 FR 80381, December 21, 2000; and 67 FR 72595, December 6, 2002). A proposed rule that would extend regulations implementing the Observer Program indefinitely was published on February 22, 2007 (72 FR 7948).

The Observer Program provides the regulatory framework for the collection of data by observers to obtain information necessary for the conservation and management of the groundfish fisheries managed under the FMPs. Regulations implementing the Observer Program at § 679.50 require observer coverage aboard catcher vessels, catcher/processors, motherships, and shoreside and stationary floating processors that participate in the groundfish fisheries off Alaska, as well as establish vessel, processor, and observer provider responsibilities relating to the Observer Program.

Timely electronic communication of catch reports submitted to NMFS by industry and observers is crucial for groundfish quota and prohibited species catch allowance monitoring. In July 1995, NMFS issued a final rule (60 FR 34904, July 5, 1995) that required computer hardware and software that enabled observers to send NMFS electronic data on all catcher/processors, motherships, and shoreside processors that process groundfish. In October 2003, a final rule was published (68 FR 58038, October 8, 2003) that extended these requirements to all catcher vessels that are required to carry an observer at all times during fishing operations. In April 2006, a final rule (71 FR 20346, April 20, 2006) was issued that, in part, revised hardware requirements to allow software upgrades installation. These rulemakings referred to the electronic data submission and communications system as “Atlas.”

Regulations describing hardware and software requirements for electronic submission of observer reports on all catcher/processors, motherships, catcher vessels required to carry an observer at all times, and from shoreside and stationary floating processors are found at § 679.50(g)(1) and (g)(2). This electronic data submission and communications system is now called the “observer communications system (OCS).” The OCS is comprised of computers and communications equipment supplied by catcher vessels, catcher/processors, motherships, and shoreside and stationary floating processors, as well as custom software provided by NMFS. The OCS allows observers to rapidly process and report the data they collect to NMFS. Its use on catcher vessels, catcher/processors, motherships, and shoreside and stationary floating processors has enhanced timely and accurate fisheries data reporting.

Regulations at § 679.50(g)(1) and (g)(2) require each OCS-use computer to meet processing chip, memory, operating system, disk drives, and modem minimum specifications. Since its implementation, OCS requirements have been periodically revised through proposed and final rulemaking to require necessary upgrades as commercially available software became obsolete or unsupported by its manufacturer, or as NMFS upgraded the OCS software component to increase data quality and efficiency.

Rather than propose necessary hardware and software component upgrades to support new OCS software, NMFS proposes to remove these specific requirements. NMFS proposes to require that each catcher vessel, catcher/processor, mothership, and shoreside and stationary floating processor already subject to OCS requirements provide hardware and software that is fully functional and operational with the NMFS-supplied software. The term “functional” would mean that all the tasks and components of the NMFS supplied software and data transmissions to NMFS could be executed effectively by the computer equipment. NMFS would no longer revise OCS hardware and software requirements through rulemaking. As changes to the software component of the OCS become necessary to support electronic communications of observer data, Observer Program staff would communicate in writing with vessel and plant personnel to describe those changes. Catcher vessels, catcher/processors, motherships, and shoreside or stationary floating processors subject to OCS requirements would be required to ensure their computer hardware and software components continued to meet the functionality and operational requirements.

Observer Program staff are currently upgrading the OCS software component. One reason for the upgrade is that the commercial database software used to store observer-collected information and interface with the OCS software is no longer supported by the manufacturer. The new OCS software should increase overall data quality by increasing the functionality and efficiency of the OCS, and interface with new, supported commercial database software. The new OCS software is expected to be available for installation for the 2008 fishing year. If this proposed regulation is adopted, catcher vessels, catcher/processors, motherships, and shoreside or stationary floating processors must ensure the OCS computer meets the minimum specifications necessary for the software to execute all of its tasks, including communication with NMFS computers to transmit data for the 2008 fishing year.

Presently, § 679.50(g)(1)(iii)(B)( 1 ) and (g)(2)(iii)(B)( 1 ) describe the minimum hardware and software requirements for the computer provided for an observer's use. This action proposes to remove these requirements except that the computer would still be required to be connected to a communication device that provides a point-to-point modem NMFS host computer connection.

Proposed regulations at § 679.50(g)(1)(iii)(B)( 2 ) and (g)(2)(iii)(B)( 2 ) would require catcher vessel, catcher/processor, mothership, and shoreside or stationary floating processor operators to install the most recent NMFS-provided OCS software version or other NMFS-approved, commercially available software. While no commercially available software has been approved at this time, NMFS would consider approving commercially available software in the future.

Regulations at § 679.50(g)(1)(iii)(C) and (g)(2)(iii)(C) currently require all OCS hardware to be fully functional and operational. According to these regulations, “functional” means that the hardware can initiate and transmit data to NMFS. Under this action, “functional” would be defined so that all of the NMFS-supplied, or other approved, software's tasks and components must also be fully functional and operational on the computer equipment. Additionally, NMFS proposes to redesignate these paragraphs as § 679.50(g)(1)(iii)(B)( 3 ) and (g)(2)(iii)(B)( 3 ), respectively, to clarify that both software and hardware OCS components must be functional.

The revisions described above are necessary to accommodate the larger, more sophisticated software and database programs provided, or other approved, by NMFS.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS prepared an initial regulatory flexibility analysis (IRFA) as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. An action description, why it is being considered, and the legal basis for this action are contained at the beginning of the preamble and in the SUMMARY section of the preamble. An IRFA copy is available from NMFS (see ADDRESSES ) and is not repeated here. An analysis summary follows.

This proposed rule would require vessels and shoreside or stationary floating processors to meet current technology standards necessary to support OCS software changes as they occur. Entities subject to OCS requirements include all motherships, catcher/processors, shoreside or stationary floating processors and catcher vessels required to carry an observer at all times. These proposed actions would revise requirements for the facilitation of observer data transmission and improve support for observers.

All motherships have gross revenues in excess of $4 million and are considered large entities. Data available for 2005 indicate that 17 of the 83 catcher/processors active in the groundfish fisheries that year would be considered small entities. Confidentiality restrictions require NMFS to report gross revenue information in aggregate of four or more entities. These restrictions prevent NMFS from reporting the number of catcher vessels and shoreside or stationary floating processors regulated under this proposed action as small entities because each group is no larger than four.

Alternative 1 described in the EA/RIR/IRFA is the status quo alternative. Current regulations regarding computing and communications equipment would remain in effect.

Alternative 2 would remove current hardware and software specifications for all vessels and shoreside or stationary floating processors currently subject to OCS requirements, and instead require them to ensure the computer provided for use by an observer meets the minimum specifications necessary for the NMFS-provided OCS software to execute all of its tasks, including communicate with NMFS computers to transmit data.

Alternative 3 would revise current regulations to upgrade minimum hardware and software specifications for all vessels and shoreside or stationary floating processors currently subject to OCS requirements. Future changes to OCS software that would require hardware and software upgrades would require additional rulemaking.

Upgrade costs to accommodate anticipated changes to OCS software are estimated to average $93 for all catcher/processors, $200 for all motherships, $315 for all shoreside and stationary floating processors, and $438 for all catcher vessels required to carry an observer at all times under the proposed action. For the 17 catcher/processors considered small entities, the cost is estimated at about 0.004 percent of one year's gross revenues. As noted above, NMFS is unable to report gross revenues for catcher vessels and shoreside or stationary floating processors considered small entities under this action. Therefore, OCS upgrade costs cannot be reported as a percentage of gross revenues for these entities.

No additional recordkeeping, reporting, or compliance requirements are associated with this action.

The analysis did not reveal any Federal rules that duplicate, overlap, or conflict with the proposed action.

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 679 as follows:

1. The authority citation for part 679 continues to read as follows:

2. In § 679.50, paragraph (g)(1)(iii)(C) is redesignated as paragraph (g)(1)(iii)(B)( 3 ) and revised; paragraph (g)(2)(iii)(C) is redesignated as paragraph (g)(2)(iii)(B)( 3 ) and revised; and paragraphs (g)(1)(iii)(B)( 1 ) and ( 2 ), and (g)(2)(iii)(B)( 1 ) and ( 2 ) are revised to read as follows: