Section 1a(5) of the Commodity Exchange Act (Act) defines the term “commodity pool operator” to mean:

Part 4 of the Commission's regulations governs the operations and activities of CPOs. 3 Generally, CPOs who are, or who are required to be, registered with the Commission must deliver to prospective pool participants a Disclosure Document containing specified information  4 — e.g., the business background of the CPO and its principals, past performance of the pool being offered, fees and other expenses, and conflicts of interest—and they must distribute to participants in their pools periodic unaudited Account Statements and certified Annual Reports of their pools' operations. 5 These CPOs also must make and keep specified books and records at their main business office. 6 Additionally, regardless of registration status, all persons who come within the CPO definition are subject to certain operational  7 and advertising requirements  8 under Part 4, to all other provisions of the Act and the Commission's regulations prohibiting fraud that apply to CPOs, 9 and to all other relevant provisions of the Act and the Commission's regulations that apply to all commodity interest market participants, such as the general antifraud provisions, prohibitions against manipulation, and the trade reporting requirements. 10

In implementing its statutory mandate to regulate the activities of CPOs, the Commission has endeavored to refine its regulations as appropriate to respond to changing market conditions in a manner consistent with customer protection. In addition to the issuance of relief by Commission staff on a case-by-case basis to facilitate application of regulatory requirements to new market conditions, the Commission has provided certain exemptions for registered CPOs from various of the requirements of Part 4 of its regulations, and where appropriate, it has provided exemptions from the CPO registration requirement itself. In 1985, the Commission adopted Regulation 4.5 to exclude from the CPO definition (and thus from the requirement to register as a CPO) certain otherwise highly-regulated persons in connection with their operation of specified “qualifying entities”— i.e., registered investment companies, insurance company separate accounts, bank collective trust funds and qualifying pension plans. 11 In 1987, the Commission adopted Regulation 4.12(b) to provide relief from specific compliance with certain disclosure, reporting and recordkeeping requirements of Part 4 for certain CPOs who operate pools that trade generally and routinely in securities instruments, and who intend to commit no more than 10 percent of the value of their pools' assets as initial margin or as option premiums for commodity interest trading. 12 In addition, in 1992, the Commission adopted Regulation 4.7 to make available a simplified regulatory framework for CPOs privately offering commodity pools to certain highly accredited investors, termed “qualified eligible participants” or “QEPs.”  13 In 2000, the Commission amended Regulation 4.7 to expand the rule's availability. 14 Most recently, in 2003, the Commission adopted Regulations 4.13(a)(3) and (a)(4) to exempt, respectively, from the CPO registration requirement operators of pools that are offered to certain types of sophisticated investors and that restrict their commodity interest trading to specified limits and operators of pools that admit exclusively investors meeting a higher sophistication standard, but that need not restrict their trading.

As is explained in greater detail below, the Proposal is intended to respond to financial market developments by providing relief to operators of commodity pools where units of participation in the pool are listed for trading on a national securities exchange.

Historically, exchange-traded funds, or ETFs, have been investment companies registered as such under the Investment Company Act of 1940 either as unit investment trusts or as open-end investment companies. Shares of ETFs are traded by both institutional and retail investors on national securities exchanges, and in the over-the-counter markets. ETFs are designed to replicate the holdings, or correspond to the performance and yield of, a referenced securities index or a highly-correlated subset of the securities underlying the index. 15 More recently, ETFs have been offered that seek to use active management of the fund's trading.

In 2005, registered CPOs began offering commodity pools whose units of participation (“shares”) are publicly-offered and listed for trading on a national securities exchange. These pools have come to be known as “Commodity ETFs” because they are designed to emulate ETFs. 16 Like ETFs, a Commodity ETF may passively seek to track or replicate the performance of a specific commodity index, or it may actively trade commodity interests without regard to an index or benchmark.

CPOs of Commodity ETFs have requested and received from Commission staff exemptive relief from certain of the disclosure, reporting and recordkeeping requirements of Subpart B of Part 4 of the Commission's regulations (Prior Relief Letters). 17 In each case, the CPO sought exemption from certain of the Disclosure Document delivery and acknowledgment requirements of Regulation 4.21, 18 the periodic Account Statement distribution requirement of Regulation 4.22, 19 and the requirement under Regulation 4.23 to keep the pool's books and records at the CPO's main business office. 20 In support of their requests, the CPOs offered substituted compliance with other requirements and various undertakings. 21 The Proposal would codify the exemptions that Commission staff has granted.

These CPOs sought relief from the specific Disclosure Document delivery and acknowledgment requirements of Regulation 4.21 because the prospectus delivery requirements under federal securities laws applicable to registered public offerings of exchange-traded shares (such as units of participation in Commodity ETFs) differ from Commission regulations with respect to timing and other aspects. Thus, the CPOs claimed that requiring simultaneous compliance with both sets of requirements was unnecessarily cumbersome, and would needlessly interfere with the established procedures for conducting a registered public offering of shares to be listed on a national securities exchange. In support of their requests, the CPOs represented that the prospectus required under federal securities laws would contain all of the information required to be included in a Disclosure Document under Regulations 4.24 and 4.25, 22 and that, in addition to being made available in accordance with SEC prospectus delivery requirements, the Disclosure Document would be made readily available at the CPO's Internet Web site. 23 Further, the CPOs represented that in acquiring Commodity ETF shares, prospective and actual investors would utilize the services of registered broker-dealers, who would be directed by the CPO either to inform investors where they could obtain the current Disclosure Document or to deliver a copy of the Disclosure Document.

The CPOs sought relief from the Account Statement delivery requirement for the reason that an issuer of exchange-traded shares held in book-entry form through the Depository Trust Company (such as the CPO of a Commodity ETF) typically does not readily know the identities of the ultimate beneficial owners of the shares. The CPOs argued that it would be unduly burdensome and costly to require them to ascertain, on a monthly basis, the identities of purchasers of shares in the secondary market in order to comply with the requirement under Rules 4.22(a) and (b) to deliver monthly Account Statements to those participants. Commission staff noted that, while traditional publicly-offered commodity pools typically provide for redemption of shares no more frequently than monthly, because of the secondary market for a Commodity ETF's shares on a national securities exchange, ownership of those shares was expected to change, frequently on a daily basis, and even throughout the day. The CPOs subject to the Prior Exemption Letters undertook that the same information that would otherwise be provided in the monthly Account Statements, including net asset value and the certification required by Regulation 4.22(h), 24 would be made readily available via the CPO's Internet Web site, of which availability the Disclosure Document would advise participants.

The CPOs also sought exemption from the requirement to keep the books and records required under Regulation 4.23 at the CPO's main business address, seeking instead to keep books and records with one or more banks or professional service providers. 25 As a condition to granting the requested exemption, Commission staff required the CPO to provide signed acknowledgments by each alternate recordkeeper that the books and records may be inspected and copied by any representative of the Commission, the National Futures Association (NFA) or the United States Department of Justice and may be inspected and copied during normal business hours by pool participants.

As directed by the Sarbanes-Oxley Act of 2002, 26 the SEC has adopted rules requiring national securities exchanges to prohibit the listing of the securities of any issuer ( e.g., units of participation in a Commodity ETF) that does not comply with specified requirements for audit committees. 27 Pursuant to Rule 10A-3  28 under the Securities Exchange Act of 1934 ('34 Act), in order for a national securities exchange to permit an issuer to list its securities, the members of the issuer's audit committee must be members of its board of directors but otherwise independent. 29 The audit committee is to be responsible for appointing, compensating and overseeing the public accountant employed to prepare the issuer's audit report. National securities exchanges have amended their listing requirements to conform to, and carry out, the SEC rule.

Under SEC Rule 10A-3(c)(7), a trust or other unincorporated organization that does not have a board of directors or persons acting in a similar capacity is not subject to the audit committee requirements if the organization's activities are limited to passively owning or holding securities or other assets for the benefit of the organization's security holders. Commodity ETFs that track commodity indices have relied upon this provision. Now that Commodity ETFs are being formed to trade commodity interests in an active manner, such Commodity ETFs must have independent directors (or trustees). Because a director (or trustee) of a commodity pool is presumed to be a CPO by virtue of the power such person can exercise, these independent directors (trustees) must either register as CPOs or seek registration relief. 30

Regulation 4.12 currently contains paragraph (a), which states the Commission's power to exempt persons from the provisions of Part 4, consistent with the public interest and subject to appropriate terms and conditions, and paragraph (b), which makes an exemption from certain disclosure, reporting and recordkeeping requirements available to registered CPOs whose pools, among other requirements, trade commodity interests in a manner solely incidental to their securities trading activities and do not enter into commodity interest transactions for which the aggregate initial margin and premiums exceed 10 percent of the fair market value of the pool's assets (after taking into account unrealized profits and losses). To make generally available the relief its staff has issued to the registered CPOs of Commodity ETFs, the Commission is proposing to add a new paragraph (c) to existing Regulation 4.12. 31 The new paragraph would first specify the eligibility requirements for the exemption, and would then set forth the relief that an eligible CPO could claim.

Under proposed paragraph (c)(1), a registered CPO, or a person who has applied for CPO registration, would be able to claim the relief available under the rule with respect to any pool that meets the following criteria: that the units of participation be offered and sold pursuant to an effective registration statement under the '33 Act, and that they be listed for trading on a national securities exchange registered as such under the '34 Act. 32

Proposed paragraph (c)(2) would specify the exemptive relief available under the Proposal, as well as the duties and obligations of the CPO who claims the relief.

Proposed paragraph (c)(2)(i) would provide certain relief from the Disclosure Document delivery requirement of Regulation 4.21(a), and relief from the signed acknowledgment requirement of Regulation 4.21(b) for an eligible CPO. The CPO claiming relief would be required to make the pool's Disclosure Document readily accessible on an Internet Web site maintained by the CPO. 33 The CPO must also comply with the requirements of Regulation 4.26 to keep the Disclosure Document current and to correct the Disclosure Document as necessary. The CPO must clearly inform prospective pool participants of the availability of the Disclosure Document and the Internet address for accessing it, and to direct any selling agent to whom the pool operator sells units of participation to so inform prospective participants. Finally, the CPO must comply with all other requirements in Part 4 applicable to Disclosure Documents, which includes the form and content requirements of Regulations 4.24 and 4.25.

Proposed paragraph (c)(2)(ii) would state that the CPO may satisfy the requirement of Regulation 4.26(b) to attach to the Disclosure Document a copy of the pool's most current Account Statement and Annual Report by making the same readily accessible on an Internet Web site maintained by the CPO.

Proposed paragraph (c)(2)(iii) would provide certain substituted compliance relief from Regulations 4.22(a) and (b). In lieu of compliance with the requirement in the regulation that the CPO distribute a monthly Account Statement to each pool participant, the Proposal would permit the CPO to maintain the pool's Account Statement, including the certification required by Regulation 4.22(h), readily accessible on a Web site operated by the CPO. This relief, however, would be subject to the CPO: (1) Keeping the Account Statement readily accessible on the Web site for a period of 30 days following the date the Account Statement is first posted on the Web site;  34 (2) indicating in the Disclosure Document that the information required to be included in the Account Statement will be readily accessible on the CPO's Web site; and (3) including in the Disclosure Document the Internet address of the pool's Account Statement. (Proposed Regulations 4.12(c)(2)(iii)(A) and (B)). 35

Proposed paragraph (c)(2)(iv) would provide relief from the location requirement of Regulation 4.23. The proposed regulation would permit such of the required books and records as are not kept at the CPO's main business address to be kept at the office of the pool's administrator, its distributor, or a bank or registered broker dealer that is providing services to the CPO or the pool similar to those provided by an administrator or distributor.

Under proposed paragraph (c)(2)(iv)(B), the CPO would be required to provide certain information about storage of books and records at the time that the CPO files to claim relief under Regulation 4.12(c). When filing the notice claiming relief (discussed in greater detail below), the CPO would include a statement identifying, by name and specified contact information, each person other than the CPO who will be keeping required pool books and records, and it would identify each of the categories of books and records, as set forth in various numbered paragraphs of Regulation 4.23, that each such person will be keeping.

Proposed paragraph (c)(2)(iv)(B)( 4 ) would require that the CPO's statement contain representations from the CPO that: (1) It will promptly amend the statement if the contact information or location of any required books and records change;  36 (2) the CPO ultimately remains responsible for maintenance and availability of all books and records required under Regulation 4.23; (3) it will obtain and provide to Commission, NFA or Department of Justice representatives within 48 hours of any request, original books and records from whatever location they are being kept;  37 and (4) it will disclose in the pool's Disclosure Document the location of its books and records that are required under Regulation 4.23.

Finally, proposed paragraph (c)(2)(iv)(C) would require that the statement contain an acknowledgment by each person keeping pool books and records (other than the CPO) that the person will be keeping the books and records identified by the CPO, and that the person will make those books and records available in accordance with Regulation 4.23.

As noted previously  38 the Proposal would redesignate existing paragraphs (b)(3) through (b)(6) of Regulation 4.12, which currently set forth the filing requirements to claim relief under Regulation 4.12(b), as a separate paragraph (d). The Proposal would also revise the existing language to include filing requirements for CPOs claiming the proposed new relief (as well as those claiming relief under Regulation 4.12(b)).

As with Regulation 4.12(b), a CPO wishing to obtain the exemption provided under Regulation 4.12(c) would electronically file a claim of exemption with NFA through NFA's electronic exemptions filing system, which claim will be effective upon filing. The claim would provide the specified identifying information, representations that the pool will be operated in compliance with the requirements of Regulation 4.12(c)(1), and specify the relief sought. As discussed above, the claim of exemption must also include the statements required under paragraphs (c)(2)(iii)(B) and (c)(2)(iii)(C) concerning books and records kept and maintained at a location other than the CPO's main business office. 39

Failure to meet the criteria for exemption as set forth in the Proposal will mean that the person claiming exemption is not exempt and that the full range of Part 4 requirements continue to apply to it.

The Commission is proposing to provide an exemption from the requirement to register as a CPO for persons who serve as a pool's director, trustee or in a similar position, solely for the purpose of complying with the audit committee requirements of SEC Rule 10A-3. The new exemption would be contained in paragraph (a)(5) of Regulation 4.13 (and existing paragraph (a)(5) would be re-numbered as paragraph (a)(6)). Like the other exemptions provided in Regulation 4.13, the new exemption would require a notice to be filed electronically with NFA before the exemption became effective. 40 The notice would be filed by the individual director or trustee. The pool's registered CPO would be liable for any violation of the Act or of the Commission's regulations by the director or trustee in connection with serving as a director or trustee of the pool.

If the requirements for obtaining relief in the final rule are no more restrictive than those set forth in a Prior Relief Letter, then the person or persons granted relief under that Prior Relief Letter will not be required to do anything further in order to continue operating under that relief. If, however, the requirements for obtaining relief in the final rule are more restrictive than those set forth in a Prior Relief Letter, then the person or persons granted relief under that Prior Relief Letter may not continue operating under that relief and will be required to file a Notice under the final rule. Also, if the facts and representations upon which the Prior Relief Letter was based materially change, the person will be required to file a Notice under the final rule, or cease engaging in the activities that prompted the request for the Prior Relief Letter.

The Regulatory Flexibility Act (RFA)  41 requires that agencies, in proposing rules, consider the impact of those rules on small businesses. The Commission has previously established certain definitions of “small entities” to be used by the Commission in evaluating the impact of its rules on such entities in accordance with the RFA. 42 With respect to CPOs, the Commission has previously determined that a CPO is a small entity if it meets the criteria for exemption from registration under current Regulation 4.13(a)(2). 43 Therefore, the requirements of the RFA do not apply to CPOs who do not meet those criteria. The Commission believes that the Proposal will not place any burdens, whether new or additional, on CPOs who would be affected hereunder. This is because the instant proposal, if adopted, would provide disclosure, reporting and recordkeeping relief for more CPOs.

The Proposal affects information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the Commission has submitted a copy of this section to the Office of Management and Budget for its review.

If adopted, the Proposal will require existing and new CPO registrants that operate pools whose units of participation are listed on a national securities exchange, and that wish to claim the exemptive relief provided by the proposed amended regulations, to submit certain filings to the Commission that had not been required previously. As registered CPOs, persons claiming exemption under the Proposal will also be subject to the same information collection requirements under Regulations 4.22 and 4.23 as other registered CPOs, and the burden previously approved by OMB for Collection 3038-005 will be adjusted to account for the additional registrants. Because the information required under Regulation 4.21 will already have been collected under the requirements of the Federal securities laws for which Paperwork Reduction Act collections and burdens have already been established, the burden attributable to Commission Regulation 4.21 will not be affected.

Rules Relating to the Operations and Activities of Commodity Pool Operators and Commodity Trading Advisors and to Monthly Reporting by Futures Commission Merchants, OMB Control Number 3038-0005.

The burden associated with Commission Regulation 4.12 is expected to be increased by 5 hours:

Estimated number of respondents: 35.

Annual responses by each respondent: 1.

Estimated average hours per response: .5.

Annual reporting burden: 17.5.

This annual reporting burden of 17.5 hours represents an increase of 5 hours as a result of the proposed amendments to Regulation 4.12.

The burden associated with Commission Regulations 4.22(a) and (b) is expected to be increased by 1,039.5 hours, due solely to additional, new registrants:

Estimated number of respondents: 519.

Pools by each respondent: 3

Annual responses by each respondent: 9.

Estimated average hours per response: 3.85.

Annual reporting burden: 53,950.05.

This annual reporting burden of 53,950.05 hours represents an increase of 1,039.5 hours as a result of the proposed amendments to Regulation 4.12.

The burden associated with Commission Rule 4.23 is expected to be increased by 520 hours:

Estimated number of respondents: 516.

Annual responses by each respondent: 1.

Estimated average hours per response: 52.

Annual reporting burden: 26,832

This annual reporting burden of 26,832 hours represents an increase of 520 hours as a result of the proposed amendments to Regulation 4.12.

Organizations and individuals desiring to submit comments on the information collection requirements should direct them to the Office of Information and Regulatory Affairs, OMB, Room 10235, New Executive Office Building, Washington, DC 20503; Attention: Desk Officer for the Commodity Futures Trading Commission.

The Commission considers comments by the public on this proposed collection of information in—

• Evaluating whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;

• Evaluating the accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

• Enhancing the quality, usefulness, and clarity of the information to be collected; and

• Minimizing the burden of collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting delivery of information via Internet Web sites.

OMB is required to make a decision concerning the collection of information contained in these proposed regulations between 30 and 60 days after publication of this document in the Federal Register . Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment to the Commission on the proposed regulations.

Copies of the information collection submission to OMB are available from the CFTC Clearance Officer, 1155 21st Street, NW., Washington, DC 20581, (202) 418-5160.

Section 15(a) of the Act requires the Commission to consider the costs and benefits of its action before issuing a new regulation under the Act. By its terms, Section 15(a) does not require the Commission to quantify the costs and benefits of a new regulation or to determine whether the benefits of the proposed regulation outweigh its costs. Rather, Section 15(a) simply requires the Commission to “consider the costs and benefits” of its action.

Section 15(a) further specifies that costs and benefits shall be evaluated in light of five broad areas of market and public concern: Protection of market participants and the public; efficiency, competitiveness, and financial integrity of futures markets; price discovery; sound risk management practices; and other public interest considerations. Accordingly, the Commission could in its discretion give greater weight to any one of the five enumerated areas and could in its discretion determine that, notwithstanding its costs, a particular rule was necessary or appropriate to protect the public interest or to effectuate any of the provisions or to accomplish any of the purposes of the Act.

The Proposal is intended to facilitate market innovation, and to rationalize application of Commission regulations to entities subject to other regulatory frameworks. The Commission is considering the costs and benefits of these rules in light of the specific provisions of Section 15(a) of the Act as follows:

While the proposed amendments are expected to lessen the burden that would otherwise be imposed upon CPOs of Commodity ETFs, any exemption of persons from regulatory requirements would be based on such factors as substituted compliance with other similar requirements. Accordingly, the Proposal should have no effect on the Commission's ability to protect market participants and the public.

The Proposal is expected to benefit efficiency and competition by facilitating the listing and trading on national securities exchanges of units of participation in commodity pools.

The Proposal should have no effect, from the standpoint of imposing costs or creating benefits, on the financial integrity or price discovery function of the commodity futures and options markets.

The Proposal should increase the available range of risk management alternatives for CPOs and other market participants.

The Proposal will also take into account new product developments in the financial services industry ( i.e., the offering of Commodity ETFs).

After considering these factors, the Commission has determined to propose the amendments discussed above. The Commission invites public comment on its application of the cost-benefit considerations. Commenters also are invited to submit with their comment letters any data that they may have quantifying the costs and benefits of the Proposal.

For the reasons presented above, the Commission proposes to amend Chapter I of Title 17 of the Code of Federal Regulations as follows:

On July 19, 2010, the Commission published for public comment a NPRM, where it proposed to collect certain ownership and control information via an account “Ownership and Control Report” submitted weekly by all U.S. futures exchanges and other reporting entities. The NPRM established a 60-day period for submitting public comment, ending September 17, 2010. On September 16, 2010, Commission staff intends to hold a public roundtable meeting at which invited participants will discuss issues arising from the Commission's NPRM. Shortly after the public roundtable meeting, a transcript of the meeting will be published on the Commission's Account Ownership and Control Report public comment page at http://www.cftc.gov/LawRegulation/PublicComments/10-009.html. In order to give interested parties time to prepare comments on matters that were discussed at the public roundtable meeting, the Commission has determined to extend the comment period for the NPRM by an additional twenty days to October 7, 2010.

Notice is hereby given that Commission staff will hold a public roundtable meeting at which invited participants will discuss issues arising from the Commission's notice of proposed rulemaking that calls for the collection of ownership, control and related information for all trading accounts active on U.S. futures exchanges and other reporting entities. 1 Written comments on the proposed rule will be received until October 7, 2010. The meeting will be open to the public with seating on a first-come, first-served basis. Members of the public may also listen by telephone. Call-in participants should be prepared to provide their first name, last name, and affiliation. The information for the conference call is set forth below.

• U.S./Canada Toll-Free: (866) 312-4390

• International Toll: (404) 537-3379

• Conference ID: 94281936

Shortly after the public roundtable meeting, a transcript of the meeting will be published on the Commission's Account Ownership and Control Report public comment page at http://www.cftc.gov/LawRegulation/PublicComments/10-009.html.

Background

This document contains proposed amendments to the Income Tax Regulations (26 CFR part 1) under section 6012 relating to the returns of income corporations are required to file. Section 6011 provides that persons liable for a tax imposed by Title 26 shall make a return when required by regulations prescribed by the Secretary of the Treasury according to the forms and regulations prescribed by the Secretary. Treasury Regulation § 1.6011-1 requires every person liable for income tax to make such returns as are required by regulation. Section 6012 requires corporations subject to an income tax to make a return with respect to that tax. Treasury Regulation § 1.6012-2 sets out the corporations that are required to file returns and the form those returns must take.

In Announcement 2010-9, 2010-7 I.R.B. 408, and Announcement 2010-17, 2010-13 I.R.B. 515, the IRS announced it was developing a schedule requiring certain taxpayers to report uncertain tax positions on their tax returns. The IRS released the draft schedule, Schedule UTP, accompanied by draft instructions that provide a further explanation of the IRS's proposal in conjunction with Announcement 2010-30, IRB 2010-19. That announcement invited public comment by June 1, 2010, on the draft schedule and instructions, which would be finalized after the IRS received and considered the comments regarding the overall proposal and the draft schedule and instructions.

The draft schedule and instructions provide that, beginning with the 2010 tax year, certain corporations with both uncertain tax positions and assets equal to or exceeding $10 million will be required to file Schedule UTP if they or a related party issued audited financial statements. The draft schedule and instructions stated that, for 2010 tax years, the IRS will require corporations filing the following returns to file Schedule UTP: Form 1120, U.S. Corporation Income Tax Return; Form 1120 L, U.S. Life Insurance Company Income Tax Return; Form 1120 PC, U.S. Property and Casualty Insurance Company Income Tax Return; and Form 1120 F, U.S. Income Tax Return of a Foreign Corporation. The draft schedule and instructions do not require a Schedule UTP from any other Form 1120 series filers, pass-through entities, or tax-exempt organizations in 2010 tax years.

A substantial number of public comments have been received regarding the draft schedule. The IRS and Treasury Department are currently reviewing the comments and anticipate publishing a final Schedule UTP in sufficient time to allow taxpayers to comply with the proposed effective date of these regulations.

These proposed regulations require corporations to file a Schedule UTP consistent with the forms, instructions, and other appropriate guidance provided by the IRS. As explained in Announcement 2010-9, the United States federal income tax system relies on taxpayers to make a self-assessment of tax and to file returns that show the facts upon which tax liability may be determined and assessed. Section 601.103 of the Procedure and Administration Regulations. To discharge its obligation to fairly and uniformly administer the tax laws, the IRS must be able to quickly and efficiently identify those returns, and the issues underlying those returns, that present a significant risk of noncompliance with the Internal Revenue Code.

Existing corporate tax returns do not currently require that taxpayers separately identify and explain the uncertain tax positions that are identified in the process of complying with generally accepted accounting principles. Instead, to identify uncertain tax positions the IRS must select a return for audit and expend a substantial amount of effort by revenue agents to determine what uncertain tax positions might relate to the return.

Corporations that prepare financial statements are required by generally accepted accounting principles to identify and quantify all uncertain tax positions as described in Financial Accounting Standards Board, Interpretation No. 48, Accounting for Uncertainty in Income Taxes (June 2006) (FIN 48). FIN 48 is now codified in FASB ASC Topic 740-10 Income Taxes. Income Taxes, Accounting Standards Codification Subtopic 740-10 (Fin. Accounting Standards Bd. 2010). Other corporations that file returns of income in the United States may be subject to other requirements regarding accounting for uncertain tax positions. For example, corporations may be subject to other generally accepted accounting standards, including International Financial Reporting Standards and country-specific generally accepted accounting standards.

Congress, through the Internal Revenue Code, has given the IRS broad authority and discretion to specify the form and content of returns, so long as the IRS promulgates regulations requiring persons made liable for a tax to file those returns. This regulation will authorize the IRS to require certain corporations, as set out in forms, publications, or instructions, or other guidance, to provide information concerning uncertain tax positions concurrent with the filing of a return. This information will aid the IRS in identifying those returns that pose the most significant risks of noncompliance and in selecting issues for examination. The IRS intends to implement the authority provided in this regulation initially by issuing a schedule and explanatory publication that require those corporations that prepare audited financial statements to file a schedule identifying and describing the uncertain tax positions, as described in FIN 48 and other generally accepted accounting standards, that relate to the tax liability reported on the return.

When adopted as a final regulation, this rule will apply to returns filed for tax years beginning after December 15, 2009, and ending after the date of publication of these rules as final regulations in the Federal Register .

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required.

This regulation will only affect taxpayers that prepare or are required to issue audited financial statements. Small entities rarely prepare or are required to issue audited financial statements due to the expense involved. It is hereby certified that this regulation will not have a significant economic impact on a substantial number of small entities pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6). Accordingly, a regulatory flexibility analysis is not required.

Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The IRS and the Treasury Department request comments on the substance of the proposed regulations, as well as on the clarity of the proposed rules and how they can be made easier to understand. All comments submitted by the public will be made available for public inspection and copying. A public hearing has been scheduled for October 15, 2010, beginning at 10 a.m. in the IRS Auditorium, of the Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identifications to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble.

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit electronic or written comments and an outline of the topics to be discussed and the time to be devoted to each topic (signed original and eight (8) copies) by October 12, 2010. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.

The principal author of these regulations is Kathryn Zuba of the Office of the Associate Chief Counsel (Procedure and Administration).

Accordingly, 26 CFR part 1 is proposed to be amended as follows:

All meetings will start at 9 a.m. and conclude by 5 p.m. The agenda for the meetings will include:

• Registration,

• Opening Statement,

• Presentations,

• Comments from the Public, and

• Closing Statement.

MSHA requested academia, safety and health professionals, industry organizations, worker organizations, and government agencies to present information at these meetings on best practices for safety and health programs. MSHA is particularly interested in information on programs which include active involvement of workers from the development of the program through implementation to evaluation. Requests to present at a meeting may be made by telephone (202-693-9440), facsimile (202-693-9441), or mail (MSHA, Office of Standards, Regulations and Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209-3939).

The meetings will be conducted in an informal manner. Presenters and attendees may provide written information to the court reporter for inclusion in the rulemaking record. MSHA will make transcripts of the meetings available on MSHA's Web site http://www.msha.gov, and include them in the rulemaking record.

The meetings will be held on the following dates at the locations indicated:

MSHA has reviewed a number of guidelines for safety and health management programs, including:

• The Occupational Safety and Health Administration's (OSHA's) Voluntary Protection Program and its Safety and Health Program Management Guidelines;

• The American National Standards Institute's (ANSI's) and American Industrial Hygiene Association's (AIHA's) ANSI/AIHA's Z10-2005, Occupational Health and Safety Management Systems;

• The International Standards Organization's (ISO's) ISO 9001:2008 (E), Quality management systems—Requirements; and

• The British Standards Institution's (BSI's) BS OHSAS 18001:2007, Occupational Health and Safety Assessment Series, Occupational health and safety management systems—Requirements.

The Guidelines reveal that the components of effective safety and health management programs generally include:

1. Management Commitment.

2. Worker Involvement.

3. Hazard Identification, including workplace inspections for violations of mandatory health and safety standards.

4. Hazard Prevention and Control.

5. Safety and Health Training.

6. Program Evaluation.

Year after year, many companies experience low injury and illness rates and low violation rates. For these companies, preventing harm to their workers is more than compliance with safety and health requirements; it reflects the embodiment of a culture of safety—from the CEO to the worker to the contractor. This culture of safety derives from a commitment to a systematic, effective, comprehensive safety and health management program, implemented with the full participation of all workers. MSHA understands that many companies have developed and implemented effective safety and health management programs. At the meetings, you will hear about some of these programs. The Agency is interested in receiving comments on all aspects of safety and health management programs.

MSHA will accept written comments and information for the record from any interested party, including those not presenting oral statements.

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, the terms “we,” “us,” and “our” mean U.S. EPA.

The NAAQS are standards for certain ambient air pollutants set by EPA to protect public health and welfare. PM-10 is among the ambient air pollutants for which EPA has established health-based standards. PM-10 causes adverse health effects by penetrating deep in the lungs, aggravating the cardiopulmonary system. Children, the elderly, and people with asthma and heart conditions are the most vulnerable.

On July 1, 1987 EPA revised the health-based national ambient air quality standards (52 FR 24672), replacing the standards for total suspended particulates with new standards applying only to particulate matter up to ten microns in diameter (PM-10). At that time, EPA established two PM-10 standards, annual standards and 24-hour standards. Effective December 18, 2006, EPA revoked the annual PM-10 standards but retained the 24-hour PM-10 standards. 71 FR 61144 (October 17, 2006). The 24-hour PM-10 standards of 150 micrograms per cubic meter (μg/m 3 ) are attained when the expected number of days per calendar year with a 24-hour average concentration above 150 μg/m 3 , as determined in accordance with appendix K to 40 CFR part 50, is equal to or less than one. 40 CFR 50.6 and 40 CFR part 50, appendix K.

On the date of enactment of the 1990 Clean Air Act Amendments (CAA or the Act), many areas, including the Maricopa area, meeting the qualifications of section 107(d)(4)(B) of the amended Act were designated nonattainment by operation of law. 56 FR 11101 (March 15, 1991). The Maricopa area is located in the eastern portion of Maricopa County and encompasses the cities of Phoenix, Mesa, Scottsdale, Tempe, Chandler, Glendale, as well as 17 other jurisdictions and unincorporated County lands. The nonattainment area also includes the town of Apache Junction in Pinal County. EPA codified the boundaries of the Maricopa area at 40 CFR 81.303.

Once an area is designated nonattainment for PM-10, section 188 of the CAA outlines the process for classifying the area as moderate or serious and establishes the area's attainment deadline. In accordance with section 188(a), at the time of designation, all PM-10 nonattainment areas, including the Maricopa area, were initially classified as moderate.

A moderate PM-10 nonattainment area must be reclassified to serious PM-10 nonattainment by operation of law if EPA determines after the applicable attainment date that, based on air quality, the area failed to attain by that date. CAA sections 179(c) and 188(b)(2). On May 10, 1996, EPA reclassified the Maricopa area as a serious PM-10 nonattainment area. 61 FR 21372.

As a serious PM-10 nonattainment area, the Maricopa area acquired a new attainment deadline of no later than December 31, 2001. CAA section 188(c)(2). However CAA section 188(e) allows states to apply for up to a 5-year extension of that deadline if certain conditions are met. In order to obtain the extension, there must be a showing that: (1) Attainment by the applicable attainment date would be impracticable; (2) the state complied with all requirements and commitments pertaining to the area in the implementation plan for the area; and (3) the state demonstrates that the plan for the area includes the most stringent measures (MSM) that are included in the implementation plan of any state or are achieved in practice in any state, and can feasibly be implemented in the specific area. Arizona requested an attainment date extension under CAA section 188(e) from December 31, 2001 to December 31, 2006.

On July 25, 2002, EPA approved the serious PM-10 plan for the Maricopa area as meeting the requirements for such areas in CAA sections 189(b) and (c), including the requirements for implementation of best available control measures (BACM) in section 189(b)(1)(B) and MSM in section 188(e). In the same action, EPA granted Arizona's request to extend the attainment date for the area to December 31, 2006. 67 FR 48718. This final action, as well as the two proposals preceding it, provide a more detailed discussion of the history of PM-10 planning in the Maricopa area. See 65 FR 19964 (April 13, 2000) and 66 FR 50252 (October 2, 2001).

On June 6, 2007, EPA found that the Maricopa area failed to attain the 24-hour PM-10 NAAQS by December 31, 2006 (72 FR 31183) and required the submittal of a new plan meeting the requirements of section 189(d) by December 31, 2007.

On December 19, 2007, the Maricopa Association of Governments (MAG) adopted the “MAG 2007 Five Percent Plan for PM-10 for the Maricopa County Nonattainment Area.” In this proposal, we refer to this plan as the “189(d) plan.” On December 21, 2007 the Arizona Department of Environmental Quality (ADEQ) submitted the 189(d) plan and two Pinal County resolutions. 1 MAG adopted and ADEQ submitted this SIP revision in order to address the CAA requirements in section 189(d).

CAA section 110(k)(1) requires EPA to determine whether a SIP submission is complete within 60 days of receipt. This section also provides that any plan that has not been affirmatively determined to be complete or incomplete shall become complete within 6 months by operation of law. EPA's completeness criteria are found in 40 CFR part 51, appendix V. The 189(d) plan submittal became complete by operation of law on June 21, 2008.

As a serious PM-10 nonattainment area that failed to meet its applicable attainment date, December 31, 2006, the Maricopa area is subject to CAA section 189(d) which provides that the state shall “submit within 12 months after the applicable attainment date, plan revisions which provide for attainment of the PM-10 air quality standard and, from the date of such submission until attainment, for an annual reduction of PM-10 or PM-10 precursor emissions within the area of not less than 5 percent of the amount of such emissions as reported in the most recent inventory prepared for the area.”

The general planning and control requirements for all nonattainment plans are found in CAA sections 110 and 172. EPA has issued a General Preamble  2 and Addendum to the General Preamble  3 describing our preliminary views on how the Agency intends to review SIPs submitted to meet the CAA's requirements for the PM-10 NAAQS. The General Preamble mainly addresses the requirements for moderate nonattainment areas and the Addendum, the requirements for serious nonattainment areas. EPA has also issued other guidance documents related to PM-10 plans which are cited as necessary below. In addition, EPA addresses the adequacy of the motor vehicle budget for transportation conformity (CAA section 176(c)) in this proposed plan action. The PM-10 plan requirements addressed by this proposed action are summarized below.

CAA section 172(c)(3) requires that an attainment plan include a comprehensive, accurate, and current inventory of actual emissions from all sources of the relevant pollutants.

The attainment deadline applicable to an area that misses the serious area attainment date is as soon as practicable, but no later than 5 years from the publication date of the nonattainment finding notice. EPA may, however, extend the attainment deadline to the extent it deems appropriate for a period no greater than 10 years from the publication date, “considering the severity of nonattainment and the availability and feasibility of pollution control measures.” CAA sections 179(d)(3) and 189(d).

A 189(d) plan must provide for an annual reduction of PM-10 or PM-10 precursor emissions within the area of not less than 5% of the amount of such emissions as reported in the most recent inventory prepared for the area.

CAA section 172(c)(2) requires that implementation plans demonstrate reasonable further progress (RFP) as defined in section 171(1). Section 171(1) defines RFP as “such annual incremental reductions in emissions of the relevant air pollutant as are required by this part [part D of title I] or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date.”

Section 189(c)(1) requires the plan to contain quantitative milestones which will be achieved every 3 years and which will demonstrate that RFP is being met.

CAA section 172(c)(9) requires that implementation plans provide for “the implementation of specific measures to be undertaken if the area fails to make reasonable further progress, or to attain the [NAAQS] by the attainment date applicable under this part [part D of title I]. Such measures are to take effect in any such case without further action by the State or the Administrator.”

Transportation conformity is required by CAA section 176(c). Our conformity rule (40 CFR part 93, subpart A) requires that transportation plans, programs, and projects conform to state air quality implementation plans and establishes the criteria and procedures for determining whether or not they do so. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS or any interim milestone. Once a SIP that contains motor vehicle emissions budgets (MVEBs) has been submitted to EPA, and EPA has found it adequate, these budgets are used for determining conformity: emissions from planned transportation activities must be less than or equal to the budgets.

CAA section 110(a)(2)(E)(i) requires that implementation plans provide necessary assurances that the state (or the general purpose local government) will have adequate personnel, funding and authority under state law. Requirements for legal authority are further defined in 40 CFR part 51, subpart L (51.230-51.232) and for resources in 40 CFR 51.280. States and responsible local agencies must also demonstrate that they have the legal authority to adopt and enforce provisions of the SIP and to obtain information necessary to determine compliance. SIPs must also describe the resources that are available or will be available to the State and local agencies to carry out the plan, both at the time of submittal and during the 5-year period following submittal of the SIP.

CAA section 172(c)(3) requires all nonattainment area plans to contain a comprehensive, accurate, and current inventory of emissions from all sources of the relevant pollutants in the geographic area encompassed in the plan. EPA believes that the inventories submitted by Arizona as part of the 189(d) plan for the Maricopa area are comprehensive and current, but are not sufficiently accurate as discussed below.

MAG developed the 189(d) plan using the “2005 Periodic Emissions Inventory for the Maricopa County, Arizona Nonattainment Area,” May 2007 (2005 Periodic Inventory). 189(d) plan, appendices, volume one, appendix B, exhibit 1. This inventory was developed by the Maricopa County Air Quality Department (MCAQD) as the baseline inventory for the area. 189(d) plan, p. 3-2.

MAG used economic growth estimates to project 2007, 2008, 2009 and 2010 emissions inventories for the area from the 2005 Periodic Inventory baseline. MAG then used these projected inventories to calculate the 5% reduction target required by section 189(d) and as the baseline for the RFP demonstration required by section 189(c). 4 See 189(d) plan, appendices, volume three, “Technical Document in Support of the MAG 2007 Five Percent Plan for PM-10 for the Maricopa County Nonattainment Area,” (189(d) plan TSD), chapter II.

The 2005 Periodic Inventory prepared for the Maricopa area describes and quantifies the annual and daily emissions of PM-10 from point, area, nonroad, on-road, and nonanthropogenic sources in the 2,880 square mile nonattainment area. 5 The 2005 Periodic Inventory indicates that the dominant sources of PM-10 emissions in the Maricopa area are construction-related fugitive dust, including residential, commercial, road and other land clearing (38 percent); paved road dust, including trackout (16 percent); unpaved roads (10 percent); and windblown dust (9 percent). 2005 Periodic Inventory, table 1.6-11.

EPA has evaluated the base year inventory relied on by MAG in light of the three criteria in section 172(c)(3) and our conclusions follow.

Current: The base year, 2005, is a reasonably current year, considering the length of time needed to develop an inventory and thereafter to develop a plan based on it. The 2005 Periodic Inventory was the most recent inventory available when the 189(d) plan was developed.

Comprehensive: The 189(d) plan's inventories are sufficiently complete. All of the relevant source categories are quantified.

Accurate: The 2005 Periodic Inventory is not sufficiently accurate for the purposes of the 189(d) plan. As discussed below, this inventory and the subsequent year inventories that MAG derived from it overestimate the baseline emissions for construction and other sources. The accuracy of the baseline inventory is particularly important for this plan because it relies heavily on reductions from improving the effectiveness of existing rules  6 for construction and other sources in order to meet the CAA's 5%, RFP and attainment requirements. See 189(d) plan, chapters 7 and 8.

MCAQD Rule 310 requires control measures for dust generating activities such as excavation, construction, demolition and bulk material handling. According to the 2005 Periodic Inventory, the majority of emissions subject to control under Rule 310 are from residential, commercial and road construction. Measure #8 in the 189(d) plan is a commitment to implement proactive and complaint based inspections during night-time and on weekends and is a telling example of how the 189(d) plan depends primarily on improving Rule 310 effectiveness to demonstrate the required annual 5% reductions and RFP. The plan asserts that Measure #8 will reduce PM-10 emissions by 1,884 tons per year (tpy). 189(d) plan, p. 7-3. Of that, 1,694 tpy are attributed to increases in compliance, and therefore in the effectiveness, of Rule 310. 189(d) plan TSD, p. III-5. This pattern is repeated in Measures #2, #3, #9, #10, #16, and #44, with a large majority of the 189(d) plan's total emissions reductions derived from increased compliance with Rule 310. This pattern is further detailed in table 2 below.

For the 2005 Periodic Inventory, MCAQD used a set of 63 sample inspections of sources subject to Rule 310 in order to estimate its effectiveness. 7 An analysis of these inspections yielded an estimated rule effectiveness of 51 percent. However, an analysis conducted by MCAQD of the entire database of over 11,000 relevant inspections during the time period of the sample inspections yielded an estimated rule effectiveness of 64.5 percent. In other words, examination of the larger database suggests that a significantly higher percentage of sources were in compliance, and accordingly the aggregate emissions inventory for this source category could be proportionately smaller than that suggested by the smaller set of sample inspections. While MCAQD conducted this analysis in 2010, after the development of the 189(d) plan, the data and the method were available at the time it produced the 2005 Periodic Inventory. 8 Table 1 below shows the impact of these two different rule effectiveness values on the estimate of fugitive dust emissions from construction sources in the Maricopa area. The data in table 1 are from the emission rate back-casting analysis conducted by MCAQD in 2010. 9

EPA believes that analysis of the full database of 11,000 Rule 310 inspections provides a more accurate measure of rule effectiveness than using a sample of 63 inspections. This is because the 63 inspections may not be representative of the entire population of sources covered by the rule. The larger data set is much more likely to be free of sample biases. Therefore, based on this analysis of the larger data set, EPA has determined that the initial estimate of rule effectiveness for Rule 310 was not accurate.

There is a similar inaccuracy in the rule effectiveness calculations for MCAQD Rule 310.01 10 for unpaved parking lots, unpaved roads and similar sources of fugitive dust emissions. For the 2005 Periodic Inventory, MCAQD used a set of 124 sample inspections to estimate the effectiveness of Rule 310.01. 2005 Periodic Inventory, appendix 2.2. An analysis of these inspections yielded an estimated rule effectiveness of 68 percent. However, an analysis conducted by MCAQD of the entire database of over 4,500 relevant inspections during the time period of the sample inspections yielded an estimated rule effectiveness of 90 percent. See Poppen Email.

The significance of the inventory inaccuracies discussed above is graphically depicted in table 2:

As shown in table 2, the 189(d) plan is designed to achieve the additional reductions in emissions required for the attainment, 5% and RFP demonstrations primarily through improvements in rule effectiveness for the sources regulated by Rules 310 and 310.01. The inaccuracies in the baseline emissions inventory were carried through into the future year emission inventories and the calculations of emission reductions for those demonstrations.

Moreover, the underestimation of the effectiveness of Rules 310 and 310.01 resulted in a control strategy with a high probability of failure because the over-emphasis on achieving emission reductions from the sources regulated by these rules likely resulted in a corresponding de-emphasis on emission reductions from other sources contributing to the nonattainment problem in the Maricopa area. In table 3 below we compare the projected percentage of 2010 emissions attributable to certain source categories before implementation of the 189(d) plan's controls to the projected percentage of emission reductions attributed to controls for these categories in 2010. The source categories are those contributing more than 5% to the projected 2010 inventory of annual PM-10 emissions. See 189(d) TSD, pp. II-17 and chapter III.

As can be seen from this comparison, the plan's emphasis on reducing emissions from the construction industry is out of proportion to that source category's relative contribution to the projected 2010 inventory.

For the reasons discussed above, EPA is proposing to disapprove under CAA section 110(k)(3) the 2005 baseline emissions inventory in the 189(d) plan and all of the projected inventories as not meeting the requirements of section 172(c)(3).

The 189(d) plan contains 53 measures designed to reduce emissions of PM-10. A detailed description and implementation schedule for each measure is provided in chapter 6 of the plan. Of the 53 measures, 25 measures are intended to support the attainment, RFP and 5% demonstrations provided in the plan, and 9 are contingency measures. These measures incorporate differing strategies to target emissions from a variety of activities within the Maricopa area. The remaining measures are included to represent additional efforts by the State and local jurisdictions to reduce emissions beyond those quantified in the plan. As those measures are implemented, the 189(d) plan provides that a more detailed assessment of the air quality benefits may be developed and reported in the future.

EPA is proposing action on the measures in the 189(d) plan that constitute mandatory directives to the regulated community or to various local jurisdictions to adopt certain legislative requirements. These measures typically involve emissions reductions that can be reasonably quantified, and/or regulatory components that are enforceable. The 189(d) plan does not take specific emission reduction credits for the additional measures referred to above where the ability to quantify emission reductions was considered to be limited.

In reviewing a statute, regulation, or rule for SIP approval, EPA looks to ensure that the provision is enforceable as required by CAA section 110(a), is consistent with all applicable EPA guidance, and does not relax existing SIP requirements as required by CAA sections 110(l) and 193. Guidance and policy documents that we use to evaluate enforceability and PM-10 rules include the following:

1. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D of November 24, 1987 Federal Register Notice,” (Blue Book), notice of availability published in the May 25, 1988 Federal Register .

2. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

3. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992) (General Preamble); 57 FR 18070 (April 28, 1992).

4. “State Implementation Plans for Serious PM-10 Nonattainment Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 59 FR 41998 (August 16, 1994) (Addendum).

5. “PM-10 Guideline Document,” EPA 452/R-93-008, April 1993.

EPA has identified the State statutory provisions submitted with the 189(d) plan that implement the directives in each measure for which we are proposing action. Many of the 189(d) plan measures refer to Arizona Senate Bill 1552 (SB 1552). In 2007, the Arizona Legislature passed SB 1552, which includes several air quality provisions designed to reduce PM-10. SB 1552 adds new and amends existing provisions of the Arizona Revised Statutes (ARS) and is included in the 189(d) plan submittal. 189(d) plan, chapter 10, “Commitments for Implementation,” volume two. We are proposing to approve the sections of the ARS that implement the plan measures identified in table 4 below. For ease of discussion, the statutory provisions that we are proposing to approve are associated with measures that can be generally grouped into seven categories: on-site dust management, certification programs, vehicle use, leaf blowers, unpaved areas, burning and agriculture. A brief discussion of each category is provided after the table.

With the exception of ARS 49-457, discussed in section III.B.3 below, and ARS 49-474.01, the ARS sections listed above are not currently in the Arizona SIP. On August 10, 1988, we approved an earlier version of ARS 49-474.01 that was submitted by the State to EPA on May 22, 1987. 53 FR 30224. In comparison to this previously approved version, the newly submitted version of ARS 49-474.01 contains several additional requirements regarding unstabilized areas and vehicle use that make the statutory provision more stringent. Therefore, we believe the current submitted version of ARS 49-474.01 represents a strengthening of the SIP and is consistent with the relevant policy and guidance regarding SIP relaxations.

Many of the 189(d) plan measures are related to the reduction of PM-10 emissions through dust control training and on-site management by trained personnel. Measures #2 and #3 address development of basic and comprehensive training programs for the suppression of emissions. The program requires completion of dust control training for water truck and water pull drivers, and on-site representatives of sites with more than one acre of disturbed surface area subject to a permit requiring control of PM-10 emissions. Any site with five or more acres of disturbed surface area subject to a permit requiring control of PM-10 emissions will be required to have a trained dust control coordinator on site. Measure #16 involves the requirement for subcontractors engaged in dust generating operations to be registered with the control officer. These measures are implemented through ARS 49-474.05. See 189(d) plan, pp. 6-20, 6-24, 6-42, and 6-46.

Some of the 189(d) plan measures seek to achieve emissions reductions through certification of equipment or personnel. In certain cases, the certification program is intended to provide an incentive for voluntary emission reductions and good operating practices. In other cases, the certification program seeks to maintain an appropriate level of emissions control from regularly used equipment. Measure #5 directs ADEQ to establish the Dust-Free Developments Program. The purpose of this program is to certify persons and entities that demonstrate exceptional commitment to the reduction of airborne dust. See ARS 49-457.02 and 189(d) plan, p. 6-29. Measure #24 directs cities and towns to require that new or renewed contracts for sweeping of city streets must be conducted with certified street sweepers. Street sweepers must meet the certification specifications contained in South Coast Air Quality Management District (SCAQMD) Rule 1186. See ARS 9-500.04, ARS 49-474.01, and 189(d) plan, p. 6-72.

Because vehicle use often generates PM-10 emissions, the 189(d) plan addresses several different activities related to vehicle use. Measures #19, #23, and #46 restrict off-road vehicle use in certain areas and on high pollution advisory days, and prescribe outreach to off-road vehicle purchasers to inform them of methods for reducing generation of dust. See ARS 9-500.27, ARS 49-457.03, ARS 49-457.04, and 189(d) plan, pp. 6-53, 6-71 and 6-190. Measure #31 restricts vehicle use and parking on unpaved or unstabilized vacant lots. See ARS 9-500.04, ARS 49-474.01 and 189(d) plan, p. 6-141.

The 189(d) plan seeks to reduce PM-10 emissions from the operation of leaf blowers. Measures #18 and #45 restrict the use of leaf blowers on high pollution advisory days or on unstabilized surfaces. Measure #21 involves the banning of leaf blowers from blowing landscape debris into public roadways. Measure #22 requires outreach to buyers and sellers of leaf blowing equipment to inform them of safe and efficient use, methods for reducing generation of dust, and dust control ordinances and restrictions. See ARS 9-500.04, ARS 11-877, ARS 49-457.01 and 189(d) plan, pp. 6-50, 6-69, 6-70 and 6-189.

The 189(d) plan contains several measures that seek to reduce PM-10 emissions by reducing the number of unpaved or unstabilized areas. Measures #25, #26, and #28 direct cities and towns to pave or stabilize parking lots, dirt roads, alleys, and shoulders. Measure #33 allows counties the ability to assess fines to recover the cost of stabilizing lots. See ARS 9-500.04, ARS 49-474.01, ARS 28-6705 and 189(d) plan, pp. 6-86, 6-103, 6-124, and 6-169.

Several measures are designed to regulate burning activities. Measure #35 bans the use of outdoor fireplaces in the hospitality industry on “no burn” days. Measure #47 bans open burning during the ozone season. See ARS 49-501 and 189(d) plan, pp. 6-174 and 6-190.

Measure #50 is included in the 189(d) plan as a contingency measure and is designed to achieve emission reductions from agricultural sources of PM-10. 189(d) plan, pp. 6-191 and 8-73. Measure #50 is implemented through SB 1552 which amended ARS 49-457 and requires in section 20 that the best management practices (BMP) committee for regulated agricultural activities adopt revised rules. These rules, AAC R18-2-610 and R18-2-611, were revised pursuant to amended ARS 49-457 and submitted with the 189(d) plan. 189(d) plan, chapter 10, “Commitments for Implementation,” volume two. See also 189(d) plan, Measure #41, p. 6-185. On May 6, 2010, Arizona again submitted the revised versions of AAC R18-2-610 and R18-2-611 with additional documentation and the “Agricultural Best Management Practices Guidance Booklet and Pocket Guide” (Handbook). Letter from Benjamin Grumbles, ADEQ, to Jared Blumenfeld, EPA, with enclosures, May 6, 2010. The Handbook provides regulated sources with guidance on how to implement BMPs and provides information to the public and farm organizations about AAC R18-2-610 and R18-2-611 (Handbook, p. 5).

We describe the history of agricultural PM-10 controls in the Maricopa area and we evaluate amended ARS 49-457 and revised AAC R18-2-610 and R18-2-611 below.

The analysis done for the “Plan for Attainment of the 24-hour PM-10 Standard—Maricopa County PM-10 Nonattainment Area,” May 1997—(Microscale Plan)—revealed the contribution agricultural sources make to exceedances of the 24-hour PM-10 standard in the Maricopa area. See Microscale plan, pp. 18-19. In order to develop adequate controls for this source category, Arizona passed legislation, the original version of ARS 49-457, in 1997 establishing the agricultural BMP committee and directing the committee to adopt by rule by June 10, 2000, an agricultural general permit specifying best management practices for reducing PM-10 from agricultural activities. The legislation also required that implementation of the agricultural controls begin by June 10, 2000, with an education program and full compliance with the rule to be achieved by December 31, 2001.

In September 1998, the State submitted ARS 49-457 and on June 29, 1999 we approved the statute as meeting the reasonably available control measure (RACM) requirements of the CAA. 13 64 FR 34726.

After a series of meetings during 1999 and 2000, the agricultural BMP committee in 2000 adopted the original versions of AAC R18-2-610, “Definitions for R18-2-611,” and AAC R18-2-611, “Agricultural PM-10 General Permit; Maricopa PM10 Nonattainment Area” (collectively, general permit rule). 66 FR 34598. The BMPs are defined in AAC R18-2-610. AAC R18-2-611 groups the BMPs into three categories (tilling and harvest, noncropland, and cropland). The original version of AAC R18-2-611 required that commercial farmers select one practice from each of these categories. AAC R18-2-611 also requires that commercial farmers maintain records demonstrating compliance with the general permit rule.

In July 2000, the State submitted the general permit rule. The State also submitted an analysis quantifying the emission reductions expected from the rule and the demonstration that the rule meets the CAA's RACM, BACM and MSM requirements. We approved the general permit rule as meeting the RACM requirement in CAA section 189(a)(1)(C) on October 11, 2001. 66 FR 51869. We approved the general permit rule as meeting the requirements for BACM and MSM in CAA sections 189(b)(1)(B) and 188(e) on July 25, 2002. 67 FR 48718.

SB 1552 amended ARS 49-457 to increase the number of required BMPs from one to two in the general permit rule by December 31, 2007. SB 1552 also expanded the scope of the applicability of the general permit rule by amending the definition of regulated area to include any portion of Area A  14 that is located in a county with a population of two million or more persons.

The agricultural BMP committee added definitions for the following terms to AAC R18-2-610: “Area A,” “cessation of night tilling,” “forage crop,” “genetically modified,” “genetically modified organism,” “global position satellite system,” “green chop,” “high pollution advisory,” “integrated pest management,” “night tilling,” “organic farming practices,” “precision farming,” and “transgenic crops.” The definitions for “commercial farm” and “regulated agricultural activity” were amended to include Area A.

The agricultural BMP committee also amended AAC R18-2-611. Section C of AAC R18-2-611 was amended to require commercial farmers to implement two BMPs each from the categories of tillage and harvest, noncropland, and cropland. The following additional BMPs were added to the tillage and harvest category in Section E of AAC R18-2-611: Green chop, integrated pest management, cessation of night tilling, precision farming, and transgenic crops. The cropland category in Section G was augmented with the following additional options: Integrated pest management and precision farming.

As stated above, in reviewing a statute, regulation, or rule for SIP approval, EPA looks to ensure that the provision is enforceable as required by CAA section 110(a), is consistent with all applicable EPA guidance, and does not relax existing SIP requirements as required by CAA sections 110(l) and 193. ARS 49-457 and the general permit rule generally meet the applicable requirements and guidance. We are proposing to approve amended ARS 49-457 because it strengthens the SIP by requiring an increase in the number of required BMPs and expanding the geographical scope of the agricultural BMP program. With regard to the general permit rule, we are proposing a limited approval and limited disapproval and we discuss the bases for that proposal below.

As stated above, we approved the general permit rule as meeting the CAA requirements for BACM in 2002. Since then, several air pollution control agencies in California, including the San Joaquin Valley Unified Air Pollution Control District (SJVAPCD) and the Imperial County Air Pollution Control District (ICAPCD), have adopted analogous rules for controlling PM-10 emissions from agricultural sources. The relevant State and local rules in Arizona, California and Nevada are summarized in our recent action on ICAPCD's Rule 806. 75 FR 39366, 39383 (July 8, 2010).

Since the adoption of controls for agricultural sources in the Maricopa area, other State and local agencies which have adopted such controls, as well as EPA, have acquired additional expertise about how to control emissions from these sources and implement regulations for them. As a result, we no longer believe that the requirements in the general permit rule that we approved in 2002 for the Maricopa area fully meet CAA requirements.

AAC R18-2-611 Sections E, F and G list BMPs intended to control emissions from tillage and harvest, noncropland and cropland, and the BMPs on these lists are defined in AAC R18-2-610. However, as discussed below, the definitions in AAC R18-2-610 are overly broad. Moreover, there is no mechanism in the rule to provide sufficient specificity to ensure a BACM level of control. 15

As an example of the breadth of the BMPs, one of the BMPs in AAC R18-2-611 Section E, the tillage and harvest category, is “equipment modification.” This term is defined in AAC R18-2-610 Section 18 as “modifying agricultural equipment to prevent or reduce particulate matter generation from cropland.” The types of equipment modification are not specified in the rule, and according to the Handbook, examples of this practice include using shields to redirect the fan exhaust of the equipment or using spray bars that emit a mist to knock down PM-10. Handbook, p. 10. Because most of the PM-10 generated during active agricultural operations is due to disturbance from parts of agricultural equipment that come into direct contact with the soil, we expect that using appropriately designed spray bars would be far more effective at reducing PM-10 than redirecting a machine's fan exhaust. However, there is no provision in the general permit rule that requires a source or regulatory agency to evaluate whether the more effective version of this BMP is economically and technologically feasible. Moreover, while AAC R18-2-611 Section I requires that a farmer record that he has selected the “equipment modification” BMP, it does not require the farmer to record what type of equipment modification he will be implementing. Hence, neither ADEQ nor the public can verify whether what is being implemented is a best available control measure.

An example from AAC R18-2-611 Section F, the category for noncropland, is the “watering” BMP. AAC R18-2-610 Section 52 defines watering as “applying water to noncropland.” The level of control achieved would depend on the amount of water that was applied, the frequency with which it was applied, as well as the size and conditions of the area to which it was applied. However, the rule does not specify the frequency or amount of water application or otherwise ensure that watering under this measure is effective. Moreover, the definition for “noncropland” in Section 31 of AAC R18-2-611 states that it “includes a private farm road, ditch, ditch bank, equipment yard, storage yard, or well head.” It is not clear which of these areas a farmer would need to control upon selecting the “watering” BMP. As written, the rule allows regulated sources to implement the “watering” BMP in a manner that may not be as effective as best available controls. Furthermore, while AAC R18-2-611 Section I requires that a farmer record that he has selected the “watering” BMP, it does not require the farmer to record how he will be implementing this BMP. Hence, neither ADEQ nor the public can verify whether the BMP that is being implemented is in fact a best available control measure.

An example from AAC R18-2-611 Section G, the category for cropland, is the “artificial wind barrier” BMP. AAC R18-2-610 Section 4 defines “artificial wind barrier” as “a physical barrier to the wind.” The control effectiveness of the barrier will depend on what the barrier is constructed of, the size of the barrier, as well as the placement of the barrier. In fact, the Handbook suggests that certain materials (e.g., board fences, burlap fences, crate walls, and bales of hay) be used, notes that the distance of 10 times the barrier height is considered the protected area downwind of a barrier, and states that the barrier should be aligned across the prevailing wind direction. Handbook, p. 20. However, the general permit rule does not specify any parameters that need to be met for the implementation of the “artificial wind barrier” BMP. Hence a source can construct a barrier that is not a best available control and still be in compliance with the general permit rule.

The absence of sufficiently defined requirements makes it difficult for regulated parties to understand and ensure compliance with the requirements, and makes it difficult for ADEQ or others to verify compliance with the general permit rule. The general permit rule needs to be revised to ensure that the BMPs are enforceable as required by CAA section 110(a) and are implemented at a BACM level as required by section 189(b)(1)(B).

EPA believes the statutory provisions associated with the 189(d) plan measures in table 4 in section III.B.2 above are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. Therefore, we are proposing to fully approve under CAA section 110(k)(3) the following Arizona statutory provisions, as submitted with the 189(d) plan:

EPA is also proposing pursuant to CAA section 110(k)(3) to approve the “Agricultural Best Management Practices Guidance Booklet and Pocket Guide” as submitted on May 6, 2010.

EPA is also proposing pursuant to CAA section 110(k)(3) a limited approval and limited disapproval of AAC R18-2-610 and AAC R18-2-611, as submitted in the 189(d) plan. We are proposing a limited approval because AAC R18-2-610 and AAC R18-2-611 strengthen the SIP. We are proposing a limited disapproval because the general permit rule does not meet the enforceability requirements of CAA section 110(a) and no longer ensures that controls for agricultural sources in the Maricopa area are implemented at a BACM level as required by section 189(b)(1)(B).

CAA section 189(d) requires the submittal of plan revisions that provide for expeditious attainment of the PM-10 NAAQS. The attainment deadline applicable to an area that misses the serious area attainment date is as soon as practicable, but no later than five years from the publication date of the notice of a nonattainment finding unless extended by EPA as meeting certain specified requirements. CAA section 179(d)(3). Because, as stated previously, EPA published the nonattainment finding for the Maricopa area on June 6, 2007 (72 FR 31183), the attainment deadline for the area is as expeditiously as practicable but no later than June 6, 2012.

The 189(d) plan projects through a modeled attainment demonstration that the Maricopa area will attain the PM-10 standard by December 31, 2010. 189(d) plan, chapter 8. According to the plan, modeling was conducted for the two areas, the Salt River area and the Higley monitor, that have the mix and density of sources that caused the highest 24-hour PM-10 monitor readings in the Maricopa area from 2004 through 2006. The Salt River area includes the three monitors (West 43rd Avenue, Durango Complex and Bethune Elementary) that recorded violations during those years. The Higley monitor did not violate the PM-10 standard for that period but had one exceedance in 2004 and one in 2006 and the surrounding area has a different mix of sources than the Salt River area. The plan also provides a modeled attainment demonstration for the remainder of the nonattainment area. AERMOD was used for the attainment demonstration for the Salt River area. Attainment for the Higley monitor area and the remainder of the nonattainment area was shown using a proportional rollback approach.

AERMOD is an EPA-approved model and was appropriately used in the 189(d) plan. The proportional rollback approach was also appropriate because of the lack of good models for PM-10 on large geographic scales. However, EPA cannot approve an attainment demonstration for PM-10 nonattainment areas based on modeled projections of attainment if actual ambient air quality monitoring data show that the area cannot attain by the projected date. Under 40 CFR 50.6(a), the 24-hour PM-10 standard is attained when the expected number of exceedances per year at each monitoring site is less than or equal to one. The number of expected exceedances at a site is determined by recording the number of exceedances in each calendar year and then averaging them over the past 3 calendar years. 40 CFR part 50, appendix K. Thus, in order for the Maricopa area to attain the standard by December 31, 2010, there can be no more than one exceedance at any one monitor in the nonattainment area in calendar years 2008, 2009 and 2010.

There were 11 recorded exceedances of the PM-10 standard in 2008 in the Maricopa area. Five of these exceedances were recorded at the West 43rd Avenue monitor, two at the Durango Complex monitor, two at the South Phoenix monitor, and two at the Coyote Lakes monitor. In 2009, there were 22 exceedances recorded in the Maricopa Area. Seven of these exceedances were recorded at the West 43rd Avenue monitor, three at the Durango Complex monitor, three at the South Phoenix monitor, two at the Higley monitor, two at the West Chandler monitor, one at the West Phoenix monitor, one at the Glendale monitor, one at Greenwood monitor, one at the Dysart monitor, and one at the Bethune Elementary School monitor. 16

Of the eleven 2008 exceedances, ten were flagged by the State as due to exceptional events under EPA's Exceptional Events Rule (EER)  17 which allows the Agency to exclude air quality monitoring data from regulatory determinations related to exceedances or violations of the NAAQS if the requirements of the EER are met. All of the 2009 exceedances were flagged as exceptional events under the EER. 18

Under the EER, EPA may exclude monitored exceedances of the NAAQS from regulatory determinations if a state adequately demonstrates that an exceptional event caused the exceedances. 40 CFR 50.14(a). Before EPA will exclude data from these regulatory determinations, the state must flag the data in EPA's Air Quality System (AQS) database and, after notice and an opportunity for public comment, submit a demonstration to justify the exclusion. After considering the weight of evidence provided in the demonstration, EPA will decide whether or not to concur on each flag.

EPA has evaluated four of the 2008 exceedances recorded at the West 43rd Avenue monitor in south-central Phoenix that the State claims to be due to exceptional events. 19 The exceedances were recorded on March 14, April 30, May 21, and June 4. On May 21, 2010 EPA determined that the events do not meet the requirements of the EER and therefore do not qualify as exceptional events for regulatory purposes. Letter from Jared Blumenfeld, EPA, to Benjamin H. Grumbles, ADEQ, re: PM 10 National Ambient Air Quality Standard in Phoenix; Request for Concurrence for Treatment as “Exceptional Events,” May 21, 2010, with enclosures. As a result, EPA is not excluding the exceedances recorded on these dates from regulatory determinations regarding NAAQS exceedances in the Maricopa area.

Under 40 CFR part 50, appendix K, because there have been four exceedances in 2008 at the West 43rd Avenue monitor, the area cannot attain the standard by December 31, 2010 as projected in the 189(d) plan. Therefore, EPA is proposing to disapprove under CAA section 110(k)(3) the attainment demonstration in the plan as not meeting the requirements of sections 189(d) and 179(d)(3).

Finally, we note here, as we address in more detail in section III.A above, that most of the emission reductions relied on in the 189(d) plan are projected to be achieved by increased compliance with MCAQD Rules 310, 310.01 and 316. This is the case for the attainment demonstration, as well as for the 5% and RFP demonstrations discussed in sections III.D and III.F below. The 189(d) plan provides little or no support for the emission reductions attributed to these increased compliance measures. See, e.g., Measure #8 (Conduct Nighttime and Weekend Inspections) which, with no explanation, estimates that compliance with MCAQD Rules 310 and 316 will increase by 4 percent in 2008, 6 percent in 2009 and 8 percent in 2010. 189(d) plan TSD, pp. III-4 through III-6. We recognize that calculating accurate emission reduction estimates for increased compliance measures is challenging. It is, however, important for such estimates to have a technical basis, especially when such measures are expected to achieve the majority of the emission reductions in a SIP. One way to begin to address this issue would be to initiate an ongoing process to verify that compliance rates are increasing as expected and that, as a result, the projected emission reductions are actually being realized.

The demonstration addressing the 5% requirement of CAA section 189(d) is presented in chapter 7 of the 189(d) plan. Chapter 7 shows the annual 5% emission reductions of PM-10  20 for 2008 through 2010, the projected attainment year. The plan quantifies emission reductions attributable to 25 of the 53 measures in the plan to meet the annual 5% targets. Table 7-2 in the 189(d) plan shows the base case PM-10 emissions from the 2005 Periodic Inventory discussed in section III.A above. Table 7-3 presents the controlled emissions for 2007 through 2010, i.e., the emissions after the emission reductions from the 25 quantified measures have been applied. The plan explains that the annual target is obtained by multiplying the controlled 2007 emissions in table 7-3 by 5% and concludes that the 5% targets are met in 2008, 2009 and 2010 with a surplus margin of benefit in each year. 189(d) plan, table 7-4, p. 7-19.

EPA believes the methodology for determining the 5% targets for the years 2008, 2009 and 2010 is generally appropriate. However, because we have determined that the 2005 Periodic Inventory on which the State based these calculations is inaccurate, the emission reduction targets themselves are also necessarily inaccurate. Because the 189(d) plan projects emission reductions surplus to the 5% targets in each year, it is theoretically possible that creditable reductions from the 25 quantified measures would still achieve the 5% reductions when recalculated from an accurate base year inventory. However that could only be determined by an EPA review of a revised plan based on adjusted calculations.

Furthermore, the language of section 189(d) compels us to conclude that the 5% demonstration in the 189(d) plan does not meet that section's requirement. CAA section 189(d) requires that the plan provide for annual reductions of PM-10 or PM-10 precursors of not less than 5% each year from the date of submission of the plan until attainment. The 189(d) plan submitted by Arizona does not provide for reductions after 2010 because it projects attainment of the PM-10 standard by the end of that year. As discussed in section III.C above, the Maricopa area cannot attain by December 31, 2010.

For the above reasons, EPA is proposing to disapprove under section 110(k)(3) the demonstration of the 5% annual emission reductions in the 189(d) plan as not meeting the 5% requirement in CAA section 189(d).

Under section 189(c)(1), the 189(d) plan must demonstrate RFP. We have explained in guidance that for those areas, such as the Maricopa area, where “the nonattainment problem is attributed to area type sources (e.g., fugitive dust, residential wood combustion, etc.), RFP should be met by showing annual incremental emission reductions sufficient generally to maintain linear progress towards attainment. Total PM-10 emissions should not remain constant or increase from 1 year to the next in such an area.” Further, we stated that “in reviewing the SIP, EPA will determine whether the annual incremental emission reductions to be achieved are reasonable in light of the statutory objective to ensure timely attainment of the PM-10 NAAQS.” Addendum at 42015-42016.

PM-10 nonattainment SIPs are required by section 189(c) to contain quantitative milestones to be achieved every three years and which are consistent with RFP for the area. These quantitative milestones should consist of elements which allow progress to be quantified or measured. Specifically, states should identify and submit quantitative milestones providing for the amount of emission reductions adequate to achieve the NAAQS by the applicable attainment date. Id. at 42016.

The 189(d) plan provides a graph showing a RFP line representing total emissions in the Maricopa area after emission reduction credit is applied for the 25 measures described in chapter 6 of the plan which are quantified for the purpose of meeting the section 189(c) requirements. 189(d) plan, figure 8-25; pp. 8-65 through 8-66. The graph shows an annual downward linear trend in emissions from 2007 through 2010, the modeled attainment date in the plan. The plan explains that the appropriate milestone year is 2010. Id.

The statutory purpose of RFP is to “ensure attainment” and the quantitative milestones are “to be achieved until the area is redesignated to attainment” under CAA sections 171(1) and 189(c) respectively. As discussed in section III.C above, we are proposing to disapprove the attainment demonstration in the 189(d) plan because, as a result of exceedances of the PM-10 standard recorded at the West 43rd Avenue monitor in 2008, the area cannot attain the standard by 2010 as projected in the plan. As a result, the RFP and milestone demonstrations in the plan do not achieve the statutory purposes of sections 171(1) and 189(c). We are therefore proposing to disapprove these demonstrations under CAA section 110(k)(3) as not meeting the requirements of section 189(c).

CAA section 172(c)(9) requires that the 189(d) plan provide for the implementation of specific measures to be undertaken if the area fails to make RFP or to attain the PM-10 standard as projected in the plan. That section further requires that such measures are to take effect in any such case without further action by the state or EPA. The CAA does not specify how many contingency measures are necessary nor does it specify the level of emission reductions they must produce.

In guidance we have explained that the purpose of contingency measures is to ensure that additional emission reductions beyond those relied on in the attainment and RFP demonstrations are available if there is a failure to make RFP or to attain by the applicable statutory date. Addendum at 42014-42015. These additional emission reductions will ensure continued progress towards attainment while the SIP is being revised to fully correct the failure. To that end, we recommend that contingency measures for PM-10 nonattainment areas provide emission reductions equivalent to one year's average increment of RFP. Id.

In interpreting the requirement that the contingency measures must “take effect without further action by the State or the Administrator,” the General Preamble provides the following general guidance: “[s]tates must show that their contingency measures can be implemented with minimal further action on their part and with no additional rulemaking actions such as public hearings or legislative review.” General Preamble at 13512. 21 Further, “[i]n general, EPA will expect all actions needed to affect full implementation of the measures to occur within 60 days after EPA notifies the State of its failure.” Id. The Addendum at 42015 reiterates this interpretation.

We have also interpreted section 172(c)(9) to allow states to implement contingency measures before they are triggered by a failure of RFP or attainment as long as those measures are intended to achieve reductions over and beyond those relied on in the attainment and RFP demonstrations. Id., and see LEAN v. EPA, 382 F.3d 575 (5th Cir. 2004).

The 189(d) plan addresses the section 172(c)(9) contingency measure requirement in chapter 8, pp. 8-65 through 8-74. Of the 53 measures in the plan, nine are designated and quantified as contingency measures: Measures #1, #5, #19, #24, #26, #27, #43, #50 and a measure identified as “multiple” which consists of Measures #14, #15 and #17. Chapter 8 of the 189(d) plan includes a discussion of each of these measures along with associated emission reductions for each of the years 2008, 2009 and 2010. Additional information on the emission reductions claimed is in the 189(d) plan TSD, chapter IV. The measures are also individually discussed in chapter 6 of the 189(d) plan.

In calculating the target emission reductions that the contingency measures must meet, the 189(d) plan cites EPA's recommendation that they provide reductions equivalent to one year's average increment of RFP. The plan subtracts the total controlled emissions in 2010 from the total controlled emissions in 2007 and divides this sum by three years to produce an annual average of 4,869 tpy as the target for the contingency measures to meet in each of the years 2008, 2009 and 2010. 189(d) plan, p. 8-67. Table 8-14 in the 189(d) plan lists the projected emission reductions for the nine contingency measures for each of these years and shows emission reductions in excess of the target for each of them. Table 5 below shows the contingency measures in the plan identified by number and reproduces the corresponding projected PM-10 reductions as depicted in table 8-14 in the plan:

As stated above, CAA section 172(c)(9) requires that the plan provide for the implementation of contingency measures to be undertaken if the area fails to attain the PM-10 standard by the applicable attainment date. The Maricopa area cannot attain the PM-10 standard by the projected date in the 189(d) plan because of monitored exceedances of the NAAQS in 2008. 22 As a result, any emission reductions from contingency measures in the 189(d) plan that are intended to take effect upon an EPA finding that the area failed to attain the standard cannot currently be determined to be surplus to the attainment demonstration as required by section 172(c)(9). Therefore we are proposing to disapprove the attainment contingency measures under CAA section 110(k)(3) as not meeting the requirements of section 172(c)(9).

As also stated above, contingency measures are required to be implemented upon a failure of the Maricopa area to meet RFP. The 189(d) plan bases the emission reduction target for these measures on reductions between 2007 and 2010 calculated from the 2005 Periodic Inventory that we have determined to be inaccurate. See section III.A above. Thus the emission reduction target for the RFP contingency measures is necessarily also inaccurate.

In addition to the inaccurate emission reduction target for the RFP contingency measures, many of the measures themselves do not meet the requirements of section 172(c)(9). These deficiencies generally fall into three categories: (1) Measures in the form of commitments in resolutions adopted by local or State governmental entities to take legislative or other substantial future action; (2) commitments in such resolutions for which implementation is conditioned on good faith efforts and funding availability and are therefore unenforceable; and (3) measures for which no basis is provided for the emission reductions claimed. While we illustrate these individual deficiencies below by reference to one or more of the 189(d) plan's designated contingency measures, it is important to note that many of the measures are deficient for multiple reasons.

1. Some of the commitments by local governments or State agencies to implement measures that are intended to achieve the required emission reductions in 2008, 2009 and 2010 do not meet the requirement of section 172(c)(9) that such measures are to take effect without further regulatory or legislative action.

For example, Measure #19 is intended to reduce off-road vehicle use in areas with high off-road vehicle activity. For this measure, the 189(d) plan assigns emission reduction credit to the requirement in ARS 9-500.27.A, as submitted in the 189(d) plan, that cities and towns in the Maricopa area adopt, implement and enforce ordinances no later than March 31, 2008 prohibiting the use of such vehicles on unpaved surfaces closed by the landowner. 189(d) plan, p. 8-69; 189(d) plan TSD, p. IV-3. The 189(d) plan includes a number of resolutions adopted by cities and towns committing to adopt such ordinances to address the vehicle use prohibition in the statute. However, because the 189(d) plan was submitted at the end of 2007, the contingency measure, i.e., the vehicle use prohibition, could not be fully implemented throughout the Maricopa area without additional future legislative action on the part of a number of governmental entities. 23

Furthermore, not only do some of the contingency measure commitments fail to meet the requirement of section 172(c)(9) that such measures are to be implemented with minimal further action, but because they depend on future actions that may or may not occur, it is also impossible to accurately quantify emission reductions from them at the time of plan development and adoption. Thus it would not be possible to determine at the time of plan development and adoption whether in the aggregate the measures designated as contingency would meet or approximate the target of one year's average increment of RFP. This is the case with Measure #19, mentioned above. For that measure, the 189(d) plan claims emission reduction credit assuming that all jurisdictions subject to the 2008 statutory requirement will comply. 189(d) plan TSD, p. IV-3. However, there is no way to determine at the time of the 189(d) plan adoption which, if any, of the multiple jurisdictions would in fact implement such requirements by the statutory deadline.

Another example of this quantification issue is Measure #26 regarding the paving or stabilization of existing public dirt roads and alleys. 189(d) plan, pp. 6-103 and 8-72; 189(d) plan TSD, p. IV-9. This measure includes commitments in resolutions adopted by 11 cities and towns to pave roads from 2007 through 2010 and claims emission reduction credit assuming full compliance. See also Measure #5 which quantifies as a contingency measure a requirement in ARS 49-457.02 that ADEQ establish a dust-free development program by September 19, 2007. 24 189(d) plan TSD, p. 8-69. However, a 2010 report prepared by MAG addressing the 2008 implementation status of the 53 measures in the 189(d) plan states that “[t]his measure was not implemented because ADEQ delayed the certification program indefinitely due to budgetary constraints.” Letter from Lindy Bauer, MAG to Jared Blumenfeld, EPA, March 9, 2010, enclosing “2008 Implementation Status of Committed Measures in the MAG 2007 Five Percent Plan for PM-10 for the Maricopa County Nonattainment Areas,” February 2010, MAG (2008 Status Report), table 1, p. 4.

See also Measure #24 which includes, among others, a commitment by the Arizona Department of Transportation (ADOT) to require in the contract awarded in January 2008 that contractors use PM-10 certified street sweepers on all State highways in the Maricopa area. 189(d) plan, p. 8-70; 189(d) plan TSD, p. IV-5; ADOT “Resolution to Implement Measures in the MAG 2007 Five Percent Plan for PM-10 for the Maricopa County Nonattainment Area.” 189(d) plan, chapter 10, “Commitments for Implementation,” volume two. The 2008, 2009 and 2010 emission reductions claimed for Measure #24 assume implementation of the ADOT component of the measure. However, the 2008 Status Report states that “ADOT's current contract * * * does not require the use of PM-10 certified street sweepers * * *.” 2008 Status Report, p. 15.

2. In addition to the above issue regarding commitments to take future action, a number of the commitments quantified for credit in the 189(d) plan as contingency measures are in the form of city, town and county resolutions that specifically recognize that the funding or schedules for such actions may be modified depending on the availability of funding or other contingencies. These commitments are also qualified by the statement that the agency making the commitment “agrees to proceed with a good faith effort to implement the identified measures.”  25 See, e.g., Measure #1 regarding public education and outreach, 189(d) plan, pp. 6-2 through 6-20 and related resolutions in chapter 10, “Commitments for Implementation,” volumes one and two. See also id., p. 8-67. See also Measure #26 regarding the paving or stabilization of existing public dirt roads and alleys, id., pp. 6-103 and 8-72; 189(d) plan TSD, p. IV-7.

The language in the above commitments regarding good faith efforts and funding availability makes the measures that are intended to achieve the required emission reductions virtually impossible to enforce. Section 110(a)(2) of the Act requires that SIPs include “enforceable emission limitations and other control measures” and “a program to provide for the enforcement of the measures” in the plan. As we have explained, “[m]easures are enforceable when they are duly adopted, and specify clear, unambiguous, and measurable requirements. Court decisions made clear that regulations must be enforceable in practice. A regulatory limit is not enforceable if, for example, it is impractical to determine compliance with the published limit.” General Preamble at 13568. In the case of most of the contingency measure commitments in the 189(d) plan, the implementation of the underlying measure cannot be ensured because the entity making the commitment can avoid having to implement it by asserting that it made good faith efforts, but failed to do so and/or that implementation did not occur due to insufficient funds.

3. The 189(d) plan provides no methodology or support for the PM-10 emission reductions credited to a number of the contingency measures. For example, the group of Measures #14, #15 and #17 designated in the plan as “multiple” is intended to reduce trackout onto paved roads. 189(d) plan, p. 8-74. The 189(d) plan TSD, p. IV-13, states that “[t]he reduction in trackout emissions in the PM-10 nonattainment area due to the impact of these three committed measures is expected to be at least 15 percent in 2008-2010” and credits these measures with the following emission reductions: 1256.9 tpy in 2008, 1273.4 tpy in 2009 and 1270 tpy in 2010. No information is provided in the 189(d) plan regarding how the 15 percent was determined. Furthermore, the reductions from each measure are not disaggregated so it is impossible to determine the source of the claimed emission reductions or how they were calculated for each measure.

Similarly, for Measure #1, the plan identifies annual emission reductions from seven source categories resulting from public education and outreach in various local jurisdictions but does not explain how these reductions were calculated. 189(d) plan TSD, p. IV-1. See also Measure #5 which provides annual emission reduction credits without any supporting information. The 189(d) plan TSD merely states: “[d]ue to the implementation of this program [certification program for dust-free developments to serve as an industry standard], the construction emissions are expected to decline by 0.10% in 2008-2010.” 189(d) plan TSD, p. IV-2.

For the reasons discussed above we are proposing to disapprove under CAA section 110(k)(3) the contingency measures in the 189(d) plan as not meeting the requirements of section 172(c)(9).

Transportation conformity is required by CAA section 176(c). Our conformity rule (40 CFR part 93, subpart A) requires that transportation plans, programs, and projects conform to state air quality implementation plans and establishes the criteria and procedures for determining whether or not they do so. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS or the timely achievement of interim milestones.

The 189(d) plan specifies the maximum transportation-related PM-10 emissions allowed in the proposed attainment year, 2010, i.e., the MVEB. 189(d) plan, p. 8-75. This budget includes emissions from road construction, vehicle exhaust, tire and brake wear, dust generated from unpaved roads and re-entrained dust from vehicles traveling on paved roads. This budget is based on the 2010 emissions inventory that was projected from the 2005 Periodic Inventory and reflects emission reductions that the plan expects will result from the control measures. The budget is consistent with the attainment, 5% and RFP demonstrations in the 189(d) plan. However, as explained elsewhere in this proposed rule, the area cannot attain by the end of 2010 as projected in the plan and we are, in addition to the attainment demonstration, proposing to disapprove the plan's emissions inventories, 5% and RFP demonstrations. Therefore we must also propose to disapprove the MVEB.

In order for us to find the emission level or “budget” in the 189(d) plan adequate and subsequently approvable, the plan must meet the conformity adequacy provisions of 40 CFR 93.118(e)(4) and (5). For more information on the transportation conformity requirement and applicable policies on MVEBs, please visit our transportation conformity Web site at: http://www.epa.gov/otaq/stateresources/transconf/index.htm. The 189(d) plan includes the PM-10 MVEB shown in table 6 below.

On March 13, 2008, we announced receipt of the 189(d) plan on the Internet and requested public comment on the adequacy of the motor vehicle emissions budget by April 14, 2008. We did not receive any comments during the comment period. During that time we reviewed the MVEB and preliminarily determined that it met the adequacy criteria in 40 CFR 93.118(e)(4) and (5). We sent a letter to ADEQ and MAG on May 30, 2008 stating that the 2010 motor vehicle PM-10 emissions budget for the Maricopa area in the submitted 189(d) plan was adequate. Our finding was published in the Federal Register on June 16, 2008 (73 FR 34013), effective on July 1, 2008.

As explained in the June 16, 2008 Federal Register notice, an adequacy review is separate from EPA's completeness and full plan review, and should not be used to prejudge EPA's ultimate approval action for the SIP. Even if we find a budget adequate, the SIP and the associated budget can later be disapproved for reasons beyond those in 40 CFR 93.118(e).

Because we are proposing to disapprove the emission inventories, and the attainment 5% and RFP demonstrations, we are also now proposing to disapprove the 189(d) plan's 2010 PM-10 MVEB. Under 40 CFR 93.118(e)(4)(iv), we review a submitted plan to determine whether the MVEB, when considered together with all other emissions sources, are consistent with applicable requirements for RFP, attainment, or maintenance (whichever is relevant to a given SIP submission). Because we have now concluded that the area cannot attain by 2010 as projected in the 189(d) plan, the MVEB cannot be consistent with the attainment requirement. In addition, because we are proposing to disapprove the 5% and RFP demonstrations, the MVEB is not consistent with the applicable requirements to show 5% annual reductions and RFP. Given the overemphasis in the plan on reducing emissions from construction activities, it is quite possible that more reductions in onroad emissions will be required to meet the applicable requirements. Consequently, we find that the plan and related budget do not meet the requirements for adequacy and approval.

The consequences of plan disapproval on transportation conformity are explained in 40 CFR 93.120. First, if a plan is disapproved by EPA, a conformity “freeze” takes effect once the action becomes effective (usually 30 days after publication of the final action in the Federal Register ). A conformity freeze means that only projects in the first four years of the most recent conforming Regional Transportation Plan (RTP) and Transportation Improvement Program (TIP) can proceed. See 40 CFR 93.120(a). During a freeze, no new RTPs, TIPs or RTP/TIP amendments can be found to conform. The conformity status of these plans would then lapse on the date that highway sanctions as a result of the disapproval are imposed on the nonattainment area under section 179(b)(1) of the CAA. See 40 CFR 93.120(a)(1). Generally, highway sanctions are triggered 24 months after the effective date of the disapproval of a required SIP revision for a nonattainment area. During a conformity lapse, no new transportation plans, programs, or projects may be found to conform until another SIP revision fulfilling the same CAA requirements is submitted and conformity of this submission is determined.

If EPA were proposing to disapprove the plan for administrative reasons unrelated to the attainment, 5% and RFP demonstrations, EPA could issue the disapproval with a protective finding. See 40 CFR 93.120(a)(3). This would avoid the conformity freeze. Because this is not the case, EPA does not believe that a protective finding should be proposed in connection with our proposed disapproval action on the 189(d) plan. Therefore, a conformity freeze will be in place upon the effective date of any final disapproval of the 189(d) plan.

Section 110(a)(2)(E)(i) of the Clean Air Act requires that implementation plans provide necessary assurances that the state (or the general purpose local government) will have adequate personnel, funding and authority under state law. Requirements for legal authority are further defined in 40 CFR part 51, subpart L (section 51.230-232) and for resources in 40 CFR 51.280.

States and responsible local agencies must demonstrate that they have the legal authority to adopt and enforce provisions of the SIP and to obtain information necessary to determine compliance. SIPs must also describe the resources that are available or will be available to the state and local agencies to carry out the plan, both at the time of submittal and during the 5-year period following submittal. These requirements are addressed in chapter 10 of the 189(d) plan. We evaluate these requirements for the plan in general and for those measures for which we are proposing approval or limited approval.

MAG derives its authority to develop and adopt the 189(d) plan and other nonattainment area plans from ARS 49-406 and from a February 7, 1978 letter from the Governor of Arizona  26 designating MAG as responsible for those tasks. ADEQ is authorized to adopt and submit the 189(d) plan by ARS 49-404 and ARS 49-406.

We are proposing for full approval statutes that have been adopted by the Arizona legislature, signed by the Governor and incorporated into the Arizona Revised Statutes. We are also proposing a limited approval of regulations authorized and mandated by Arizona statute. See section III.B above. Because the requirements in these statutes and regulations are directly imposed by State law, no further demonstration of legal authority to adopt emission standards and limitations is needed under CAA section 110(a)(2)(E)(i) and 40 CFR part 51, subpart L.

Section 51.230 of 40 CFR also requires that the State have the authority to “[e]nforce applicable laws, regulations, and standards, and seek injunctive relief.” ARS 49-462, 49-463 and 49-464 provide the general authorities adequate to meet these requirements. We note that EPA, in undertaking enforcement actions under CAA section 113, is not constrained by provisions it approves into SIPs that circumscribe the enforcement authorities available to state and local governments.

Several of the State statutory provisions proposed for full approval and the regulations proposed for limited approval are direct mandates to the regulated community and require ADEQ to implement and enforce programs in whole or in part. See, e.g., ARS 49-457, 49-457.01, 49-457.03 and 49-457.04. There is no description in the 189(d) plan of the resources available to the State to implement and enforce these statutory and regulatory provisions. Thus it is not possible for EPA to ascertain whether the State has adequate personnel and funding under CAA section 110(a)(2)(E)(i) and EPA's related regulations to carry out these State statutes.

Many of the Arizona statutory provisions proposed for approval are directives to local governmental entities to take action. For example, ARS 49-474.05 requires specified local jurisdictions to develop extensive dust control programs. Developing such programs will require resources and legal authority at the local level. However, we are not proposing approval of such programs at this time. This action is merely proposing approval of the statutory mandate to develop the program. Therefore, for these statutory provisions, a demonstration that adequate authority and resources are available is not required.

Section 110(a)(2)(E)(iii) requires SIPs to include necessary assurances that where a state has relied on a local or regional government, agency or instrumentality for the implementation of any plan provision, the State has responsibility for ensuring adequate implementation of such plan provision. We have previously found that Arizona law provides such assurances. 60 FR 18010, 18019 (April 10, 1995).

For the reasons discussed above, we propose to find that the requirements of section 110(a)(2)(E) and related regulations have been met with respect to legal authority. However, we propose to find that the 189(d) plan does not demonstrate that ADEQ has adequate personnel and funding to implement the State statutes and regulations proposed for full or limited approval for which the State has implementation and enforcement responsibility and authority.

EPA is proposing to approve in part and disapprove in part, the 189(d) plan for the Maricopa County (Phoenix) PM-10 nonattainment area as follows:

A. EPA is proposing to disapprove pursuant to CAA section 110(k)(3) the following elements of the “MAG 2007 Five Percent Plan for PM-10 for the Maricopa County Nonattainment Area”:

(1) The 2005 baseline emissions inventory and the projected emission inventories as not meeting the requirements of CAA sections 172(c)(3);

(2) The attainment demonstration as not meeting the requirements of CAA sections 189(d) and 179(d)(3);

(3) The 5% demonstration as not meeting the requirements of CAA sections 189(d);

(4) The reasonable further progress and milestone demonstrations as not meeting the requirements of CAA section 189(c);

(5) The contingency measures as not meeting the requirements of CAA sections 172(c)(9); and

(6) The 2010 MVEB as not meeting the requirements of CAA section 176(c) and 40 CFR 93.118(e)(4).

B. EPA is proposing a limited approval and disapproval of AAC R18-2-610 and AAC R18-2-611 as submitted in the “MAG 2007 Five Percent Plan for PM-10 for the Maricopa County Nonattainment Area” pursuant to CAA section 110(k)(3). EPA is proposing a limited approval because these regulations strengthen the SIP and a limited disapproval because they do not fully meet the requirements of CAA sections 110(a) and 189(b)(1)(B) for enforceable BACM for agricultural sources of PM-10 in the Maricopa area.

C. EPA is proposing to approve pursuant to CAA section 110(k)(3) the following sections of the Arizona Revised Statutes as submitted in the “MAG 2007 Five Percent Plan for PM-10 for the Maricopa County Nonattainment Area” as strengthening the SIP: ARS 9-500.04, ARS 9-500.27, ARS 11-877, ARS 28-6705, ARS 49-457, ARS 49-457.01, ARS 49-457.02, ARS 49-457.03, ARS 49-457.04, ARS 49-474.01, ARS 49-474.05, and ARS 49-501.

D. EPA is proposing to approve pursuant to CAA section 110(k)(3) the “Agricultural Best Management Practices Guidance Booklet and Pocket Guide” as submitted on May 6, 2010.

If we finalize disapprovals of the emissions inventories, attainment demonstration, RFP and milestone demonstrations, 5% demonstration and contingency measures, the offset sanction in CAA section 179(b)(2) will be applied in the Maricopa area 18 months after the effective date of any final disapproval. The highway funding sanctions in CAA section 179(b)(1) will apply in the area 6 months after the offset sanction is imposed. Neither sanction will be imposed if Arizona submits and we approve prior to the implementation of the sanctions SIP revisions meeting the relevant requirements of the CAA. See 40 CFR 52.31 which sets forth in detail the sanctions consequences of a final disapproval.

If EPA takes final action on the 189(d) plan as proposed, Arizona will need to develop and submit a revised plan for the Maricopa area that again addresses applicable CAA requirements, including section 189(d). While EPA is proposing to approve many of the measures relied on in the submitted 189(d) plan, additional emission reductions will be needed. In pursuing such reductions, we expect Arizona to investigate all potential additional controls for source categories in the Maricopa area that contribute to PM-10 exceedances. This investigation should include, but not be limited to, analysis of BACM controls in other geographic areas. We also note that CAA section 179(d)(2) provides EPA the authority to prescribe specific additional controls for areas, such as the Maricopa area, that have failed to attain the NAAQS.

If we finalize a limited disapproval of AAC R18-2-610 and 611, the offset sanction in CAA section 179(b)(2) will be applied in the Maricopa area 18 months after the effective date of the final limited disapproval. The highway funding sanctions in CAA section 179(b)(1) will apply in the area 6 months after the offset sanction is imposed. Neither sanction will be imposed if Arizona submits and we approve prior to the implementation of the sanctions a measure for the control of agricultural sources meeting the requirements of CAA sections 110(a) and 189(b)(1)(B).

In addition to the sanctions, CAA section 110(c)(1) provides that EPA must promulgate a Federal implementation plan addressing any full or limited disapproved elements of the plan, as set forth above, two years after the effective date of a disapproval should we not be able to approve replacements submitted by the State.

Finally, if we take final action disapproving the 189(d) plan, a conformity freeze takes effect once the action becomes effective (usually 30 days after publication of the final action in the Federal Register ). A conformity freeze means that only projects in the first four years of the most recent RTP and TIP can proceed. During a freeze, no new RTPs, TIPs or RTP/TIP amendments can be found to conform.

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because SIP approvals or disapprovals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve or disapprove requirements that the State is already imposing. Therefore, because the proposed Federal SIP partial approval/partial disapproval and limited approval/limited disapproval actions do not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. , v. U.S. EPA , 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the partial approval/partial disapproval and limited approval/limited disapproval actions proposed do not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action proposes to approve and disapprove pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

Executive Order 13132 (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This rule will 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, because it merely proposes to approve or disapprove 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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, 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. Thus, Executive Order 13175 does not apply to this rule.

EPA specifically solicits additional comment on this proposed rule from tribal officials.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045, because it approves a state rule implementing a Federal standard.

Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the United States. The Executive Order has informed the development and implementation of EPA's environmental justice program and policies. Consistent with the Executive Order and the associated Presidential Memorandum, the Agency's environmental justice policies promote environmental protection by focusing attention and Agency efforts on addressing the types of environmental harms and risks that are prevalent among minority, low-income and Tribal populations.

This action will not have disproportionately high and adverse human health or environmental effects on minority, low-income or Tribal populations because the partial approval/partial disapproval and limited approval/limited disapproval actions proposed increase the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population.

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

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

In the “Rules and Regulations” Section of today's Federal Register, we are publishing a direct final Notice of Partial Deletion for each of the 11 operable units, with the exception of groundwater contamination associated with Operable Unit 8, of the Denver Radium Superfund Site without prior Notice of Intent for Partial Deletion because EPA views this as a noncontroversial revision and anticipates no adverse comment. We have explained our reasons for this partial deletion in the preamble to the direct final Notice of Partial Deletion, and those reasons are incorporated herein. If we receive no adverse comment(s) on this partial deletion action, we will not take further action on this Notice of Intent for Partial Deletion. If we receive adverse comment(s), we will withdraw the direct final Notice of Partial Deletion, and it will not take effect. We will, as appropriate, address all public comments in a subsequent final Notice of Partial Deletion based on this Notice of Intent for Partial Deletion. We will not institute a second comment period on this Notice of Intent for Partial Deletion. Any parties interested in commenting must do so at this time.

For additional information, see the direct final Notice of Partial Deletion which is located in the Rules section of this Federal Register.

Section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq. ), requires that, for any petition to revise the Federal Lists of Threatened and Endangered Wildlife and Plants that contains substantial scientific or commercial information indicating that listing the species may be warranted, we make a finding within 12 months of the date of receipt of the petition. In this finding we determine that the petitioned action is: (a) Not warranted, (b) warranted, or (c) warranted, but immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether species are endangered or threatened, and expeditious progress is being made to add or remove qualified species from the Lists of Endangered and Threatened Wildlife and Plants. Section 4(b)(3)(C) of the Act requires that we treat a petition for which the requested action is found to be warranted but precluded as though resubmitted on the date of such finding, that is, requiring a subsequent finding to be made within 12 months. We must publish these 12-month findings in the Federal Register .

We initially considered the Jemez Mountains salamander ( Plethodon neomexicanus ) for listing under the Act in the early 1980s (General Accounting Office 1993, p. 30). In December 1982, we published a notice of review classifying the salamander as a Category 2 species (47 FR 58454, December 30, 1982). Category 2 status included those taxa for which information in the Service's possession indicated that a proposed listing rule was possibly appropriate, but for which sufficient data on biological vulnerability and threats were not available to support a proposed rule.

On February 21, 1990, we received a petition to list the salamander as threatened. Subsequently, we published a positive 90-day finding, indicating that the petition contained sufficient information to suggest that listing may be warranted (55 FR 38342; September 18, 1990). In the Candidate Notice of Review (CNOR) published on November 21, 1991, we announced the salamander as a Category 1 species with a “declining” status (56 FR 58814). Category 1 status included those species for which the Service had on file substantial information regarding the species' biological vulnerability and threat(s) to support proposals to list them as endangered or threatened species. The “declining” status indicated decreasing numbers, increasing threats, or both.

On May 30, 1991, the Service, the U.S. Forest Service (USFS), and the New Mexico Department of Game and Fish (NMDGF) signed a Memorandum of Agreement outlining actions to be taken to protect the salamander and its habitat on the Santa Fe National Forest lands, including the formation of a team of agency biologists to immediately implement the Memorandum of Agreement and to develop a management plan for the species. The management plan was to be incorporated into the Santa Fe National Forest Plan. On April 3, 1992, we published a 12-month finding that listing the salamander was not warranted because of the conservation measures and commitments within the Memorandum of Agreement (57 FR 11459). In the November 15, 1994, CNOR, we included the salamander as a Category 2 species, with a trend status of “improving” (59 FR 58982). A status of “improving” indicated those species known to be increasing in numbers or whose threats to their continued existence were lessening in the wild.

In the CNOR published on February 28, 1996, we announced a revised list of animal and plant taxa that were regarded as candidates for possible addition to the List of Endangered and Threatened Wildlife and Plants (61 FR 7596). The revised candidate list included only former Category 1 species. All former Category 2 species were dropped from the list in order to reduce confusion about the conservation status of those species, and to clarify that the Service no longer regarded them as candidates for listing. Because the salamander was a Category 2 species, it was no longer recognized as a candidate species as of the February 28, 1996, CNOR.

In January 2000, the New Mexico Endemic Salamander Team (NMEST), a group of interagency biologists representing NMDGF, the Service, the U.S. Geological Survey, and the Santa Fe National Forest, finalized a Cooperative Management Plan for the salamander on lands administered by the Santa Fe National Forest (Cooperative Management Plan), and the agencies signed an updated Conservation Agreement that superseded the Memorandum of Agreement. The stated purpose of the Conservation Agreement and the Cooperative Management Plan was to provide for the long-term conservation of salamanders by reducing or removing threats to the species and by proactively managing their habitat (NMEST 2000 Conservation Agreement, p. 1). In a Decision Notice and Finding of No Significant Impact for the Forest Plan Amendment for Managing Special Status Species Habitat, signed on December 8, 2004, the Cooperative Management Plan was incorporated into the Santa Fe National Forest Plan.

On October 15, 2008, we received a petition dated October 9, 2008, from WildEarth Guardians requesting that we list the Jemez Mountains salamander ( Plethodon neomexicanus ) (salamander) as endangered or threatened under the Act, and designate critical habitat. On August 11, 2009, we published a 90-day finding that the petition presented substantial information that listing the salamander may be warranted and that initiated a status review of the species (74 FR 40132). On December 30, 2009, WildEarth Guardians filed suit against the Service for failure to issue a 12-month finding on the petition ( WildEarth Guardians v . Salazar, No. 09-1212 (D.N.M.)). Under a stipulated settlement agreement, the 12-month finding is due to the Federal Register by September 8, 2010. This notice constitutes our 12-month finding for the petition to list the Jemez Mountains salamander as endangered or threatened.

The salamander is uniformly dark brown above, with occasional fine gold to brassy coloring with stippling dorsally (on the back and sides) and is sooty gray ventrally (underside). The salamander is slender and elongate, and it possesses foot webbing and a reduced fifth toe. This salamander is strictly terrestrial and is a member of the family Plethodontidae. The salamander does not use standing surface water for any life stage. Respiration occurs through the skin, which requires a moist microclimate for gas exchange.

The salamander was originally reported as Spelerpes multiplicatus (= Eurycea multiplicata ) in 1913 (Degenhardt et al. 1996, p. 27); however, it was described and recognized as a new and distinct species ( Plethodon neomexicanus ) in 1950 (Stebbins and Riemer, pp. 73-80). No subspecies are recognized.

It is a member of the Plethodontidae family. Two species of plethodontid salamanders are endemic (native and restricted to a particular region) to New Mexico: the Jemez Mountains salamander and the Sacramento Mountains salamander ( Aneides hardii ). Unlike all other North American plethodontid salamanders, these two species are geographically isolated from all other species of Plethodon and Aneides .

The distribution of plethodontid salamanders in North America has been highly influenced by past changes in climate and associated Pleistocene glacial cycles. In the Jemez Mountains, the lack of glacial landforms indicates that alpine glaciers did not develop here, but the abundance of evidence from exposed rock surfaces that have been quickly broken up by frost action may reflect near-glacial conditions during the Wisconsin Glacial Episode (Allen 1989, p. 11). Conservatively, the salamander has likely occupied the Jemez Mountains for at least 10,000 years, but this could be as long as 1.2 million years, colonizing the area subsequent to volcanic eruption.

The salamander is restricted to the Jemez Mountains in northern New Mexico, in Los Alamos, Rio Arriba, and Sandoval Counties, around the rim of the collapsed caldera (large volcanic crater), with some occurrences on topographic features (e.g., resurgent domes) on the interior of the caldera. The majority of salamander habitat is located on federally managed lands including USFS, Valles Caldera National Preserve (VCNP), National Park Service (Bandelier National Monument), and Los Alamos National Laboratory, with some habitat located on tribal land and private lands (NMEST 2000, p. 1). The species predominantly occurs at an elevation between 2,200 and 2,900 meters (m) (7,200 and 9,500 feet (ft)) (Degenhardt et al. 1996, p. 28), but has been found as low as 2,133 m (6,998 ft) (Ramotnik 1988, p. 78) and as high as 3,350 m (10,990 ft) (Ramotnik 1988, p. 84).

We divided known salamander distributional data into 5 units (Unit 1-Western; Unit 2-Northern; Unit 3-East-South-Eastern; Unit 4-Southern; and Unit 5-Central) to provide clarity in describing and analyzing the potential threats that may differ across the species' range. We developed these units based on the best information available to us, but some of the unit boundaries are based on incomplete occupancy information. These units reflect where surveys have occurred and generally follow breaks in topography. For example, there are areas (e.g., VCNP) where few surveys have been conducted and occupancy may not be uniform. Because the salamander has been found to occupy a wide variety of sites, we do not know the extent of geographic or genetic connectivity between localities. The VCNP is located west of Los Alamos, New Mexico, and is owned by the U.S. Department of Agriculture (part of the National Forest System), but run by a nine-member Board of Trustees: the Supervisor of Bandelier National Monument, the Supervisor of the Santa Fe National Forest, and seven other members with distinct areas of experience or activity appointed by the President of the United States (Valles Caldera Trust 2005, pp. 1-11). Prior to Federal ownership in 2000, the VCNP was privately held.

The terrestrial salamander predominantly inhabits mixed conifer forest, consisting primarily of Douglas fir ( Pseudotsuga menziesii ), blue spruce ( Picea pungens ), Engelman spruce ( P. engelmannii ), white fir ( Abies concolor ), limber pine ( Pinus flexilis ), Ponderosa pine ( P. ponderosa ), Rocky Mountain maple ( Acer glabrum ), and aspen ( Populus tremuloides ) (Degenhardt et al. 1996, p. 28; Reagan 1967, p. 17). The species can also be found in stands of pure Ponderosa pine and in spruce-fir and aspen stands, but these forest types have not been adequately surveyed. Predominant understory includes Rocky Mountain maple ( Acer glabrum ), New Mexico locust ( Robinia neomexicana ), oceanspray ( Holodiscus sp. ), and various shrubby oaks ( Quercus spp. ) (Degenhardt et al. 1996, p. 28; Reagan 1967, p. 17). Salamanders are generally found in association with decaying coniferous logs, and in areas with abundant white fir, Ponderosa pine, and Douglas fir as the predominant tree species (Ramotnik 1988, p. 17; Reagan 1967, pp. 16-17). Salamanders use decaying coniferous logs considerably more often than deciduous, likely due to the physical features (e.g., blocky chunks with cracks and spaces) that form as coniferous logs decay (Ramotnik 1988, p. 53). Still, the species may be found beneath some deciduous logs and excessively decayed coniferous logs, because these can provide surface habitat and cover (Ramotnik 1988, p. 53).

The salamander is strictly terrestrial and does not possess lungs. The salamander does not use standing surface water for any life stage. Respiration occurs through the skin, which requires a moist microclimate for gas exchange. The salamander spends much of its life underground; it can be found at the surface from July through September, when relative environmental conditions are warm and wet. When active at the surface, the species is usually found under decaying logs, rocks, bark, moss mats, or inside decomposing stumps. The salamander's underground habitat appears to be deep, fractured, sub-surface rock in areas with high soil moisture (NMEST 2000, p. 2) where the geologic and moisture constraints likely limit the distribution of the species. Soil pH (acidity) may limit distribution as well. It is unknown whether the species forages or carries on any other activity below ground, although it is presumed that eggs are laid and hatch beneath the surface.

The surface microhabitat temperature for 577 Jemez Mountains salamanders ranged from 6.0 to 17.0 degrees Celsius (°C) (43 to 63 degrees Fahrenheit (°F)), with a mean of 12.7 °C (54.9 °F) (Williams 1972, p. 18). Significantly more salamanders were observed under logs where temperatures are closest to the mean temperature (12.5 °C (54.5 °F)) than inside logs where temperatures deviated the most from the mean temperature (13.3 °C (55.9 °F)) (Williams 1972, p. 19). Changes to microhabitat temperatures are discussed under Factors A and E, below.

Sexual maturity is attained at 3 to 4 years in females and 3 years in males (Williams 1976, pp. 31, 35). Reproduction in the wild has not been observed; however, based on observed physiological changes, reproduction is believed to occur above ground between mid-July and mid-August (Williams 1976, pp. 31-36). Based on examination of 57 female salamanders in the wild and one clutch of eggs laid in a laboratory setting, Williams (1978, p. 475) concluded that females likely lay 7 or 8 eggs every other year or every third year. Eggs are thought to be laid underground the spring after mating occurs (Williams 1978, p. 475). Fully-formed salamanders hatch from the eggs. The lifespan of the salamander in the wild is unknown; however, based on reproductive information that indicates the species is not sexually mature until age 3 or 4 years and that it only lays eggs every 2 or 3 years, and considering the estimated lifespan of other terrestrial plethodontid salamanders, we estimate that the species likely lives more than 10 years.

Salamander prey from above ground foraging is diverse in size and type, with ants, mites, and beetles being most important in the salamander's diet (Cummer 2005, p. 43). Cummer (2005, pp. 45-50) found that specialization on invertebrate species was unlikely, but there was likely a preferential selection of prey.

Standardized survey protocols have been used for the salamander since 1987 (NMDGF 2000, p. 2), but the number and location of surveys have been variable and opportunistic. Survey methods involve searching under potential cover objects (e.g., logs, rocks, bark, moss mats) and inside decomposing coniferous logs when environmental conditions are likely best for detecting surface-active salamanders, generally May through September, when summer monsoon rains occur. Unfortunately, methods for determining locations to survey salamanders over the past 20 years have not been systematic, and though we have conducted a comprehensive review, the data have not been consistently available to allow comparison of the status of the salamander over its entire range.

Three survey protocols have been in use since 1987 (NMEST 2000b, pp. 27-29). Protocol A (presence or absence) has been used when attempting to determine whether an area is occupied (NMEST 2000b, p. 27). Following this protocol, surveys cease after 2 “person-hours” of effort (e.g., one person searching for 2 hours or two people searching for 1 hour) or when the first salamander is observed, whichever comes first. Because the salamander utilizes underground habitat and an unknown number of individuals may be active at the surface, repeated surveys may be necessary to determine occupancy of a locality (NMEST 2000b, p. 27).

Protocol B (population levels and trends) has been used for comparing plots, monitoring trends through time, or evaluating how salamander localities fluctuate in response to environmental variables (NMEST 2000b, p. 28). For this protocol, a survey is conducted for 2 person-hours, with all salamanders tallied.

Protocol C (detailed environmental data) collects microhabitat data to characterize potential salamander habitat (NMEST 2000b, p. 28). This protocol involves collecting data on important habitat features within a 50 m (160 ft) by 2 m (6.6 ft) transect, in addition to surveying for salamanders under cover objects.

The rangewide population size of the salamander is also unknown. Monitoring the absolute abundance of plethodontid salamanders is inherently difficult because of the natural variation associated with surface activity (Hyde and Simons 2001, p. 624), which ultimately affects the probability of detecting a salamander. The probability of detection varies over space and time and is highly dependent upon the environmental and biological parameters that drive surface activity (Hyde and Simons 2001, p. 624). Given the known bias of detection probabilities and the inconsistent survey effort across years, population size estimates using existing data cannot be made accurately.

Despite our inability to assess the rangewide population of the salamander in a comprehensive manner, the survey data are useful to understand that persistence of the salamander in localities may vary across the range of the species. For example, some localities where the salamander was once considered abundant or common (e.g., many parts of Unit 2, the Type Locality or the location where the salamander was originally found (Unit 4), and VCNP-Old Beaver Pond (Unit 5)), either the salamander no longer persists, or it persists at very low numbers. Alternatively, there are also three localities (Redondo Border, VCNP (Unit 5), and North East Slope VCNP (northern part of Unit 3)) where the salamander continues to be relatively abundant compared to most currently occupied sites. However, the numbers in these relatively abundant areas are far less than historic reports for the type locality, where 659 individuals were captured in a single year (1970), 394 of them in a single month (Williams 1976, p. 26). We know of no location where salamander abundance is similar to that observed in 1970. Overall, a few localized areas appear to be stable; however, there appears to be a decreasing trend within areas (decrease in numbers of salamanders observed during surveys) and a possible rangewide declining trend (an increase in the number of areas where salamanders were once present and have not been observed in recent surveys). The apparent declining trend is evident in Units 1 and 3, where we have the best survey information. Because it appears that the species is relatively long-lived, has relatively low reproductive output, has limited dispersal ability, and a small home range, it is likely that the apparent decreasing and declining trends both within localized areas and across the landscape represent actual declines in salamanders over the past 20 to 30 years.

Section 4 of the Act (U.S.C. 1533 et seq. ) and implementing regulations (50 CFR 424) set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, a species may be determined to be endangered or threatened based on any of the following five factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

In considering what factors might constitute threats to the species, we must look beyond the exposure of the species to a factor to evaluate whether the species may respond to the factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat and, during the subsequent status review, we attempt to determine how significant a threat it is. The threat is significant if it drives, or contributes to, the risk of extinction of the species such that the species may warrant listing as endangered or threatened as those terms are defined in the Act. However, the identification of factors that could impact a species negatively may not be sufficient to compel a finding that the information in the petition and our files is substantial. The information must include evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of endangered or threatened under the Act.

In making this finding, information pertaining to the salamander in relation to the five factors provided in section 4(a)(1) of the Act is discussed below.

Under Factor A, we considered whether the Jemez Mountains salamander is threatened by the following: fire exclusion and severe wildland fires; forest composition and structure conversions; post-fire rehabilitation; forest and fire management (fire use, fire suppression, mechanical treatment of hazardous fuels, and forest silvicultural practices (timber harvest, salvage logging, forest thinning, and forest restoration projects)); dams and mining; private (residential) development; geothermal development; roads, trails, and habitat fragmentation; recreation; and livestock grazing.

Fire exclusion and wildfire threaten the salamander. In the Jemez Mountains, the results of over 100 years of fire suppression and fire exclusion (along with cattle grazing and other stressors) have altered forest composition and structure and increased the threat of wildfire in Ponderosa pine and mixed conifer forests in semi-arid western interior forests (Belsky and Blumenthal 1997, p. 318). Fire has been an important process in the Jemez Mountains for at least several thousand years (Allen 1989, p. 69), indicating the salamander evolved with fire. Frequent, low-intensity, surface fires and patchy, small scale, high-intensity fires in the Jemez Mountains historically maintained salamander habitat. These fires spread widely through the grassy understory fuels, or erupted on very small scales. The natural fire intervals prior to the 1900s ranged from 5 to 25 years across the Jemez Mountains (Allen 2001, p. 4). Dry mixed conifer forests burned on average every 12 years, whereas wet mixed conifer forests averaged every 20 years. Historically, patchy surface fires within mixed conifer forests would have thinned stands and created natural fuel breaks that would limit the extent of fires. Still, in very dry years, there is evidence of fires occurring across entire watersheds, but they did not burn with high severity over entire mountain sides (Jemez Mountains Adaptive Planning Workshop Session II Final Notes 2010, p. 7). Aspen stands are evidence of historic patchy crown fires that represent the relatively small-scale, stand-replacing fires that have historically occurred in the Jemez Mountains, which are also associated with significantly dry years (Margolis et al . 2007, p. 2236).

These historic fire patterns were interrupted in the late 1800s through the elimination of fine fuels as a result of livestock overgrazing and managed fire suppression. This interruption and exclusion of fire promoted the development of high forest stand densities with heavy accumulations of dead and downed fuel, and growth of ladder fuels (the dense mid-story trees that favor development of crown fires) (Allen 2001, pp. 5-6). In fact, fire exclusion in this area converted historically low- to moderate-severity fire regimes with small, patchy fires to high-severity, large-scale, stand-replacing fires that have the potential to significantly destroy or degrade salamander habitat (USFS 2009a, pp. 8-9). The disruption of the natural cycle of fire and subsequent accumulation of continuous fuels within the coniferous forests on south and north-facing slopes has increased the chances of a severe wildfire affecting large areas of salamander habitat within the Jemez Mountains (e.g., see USFS 2009a, 2009b).

Prescribed fire at VCNP has been limited, with only one burn in 2004 that was described as creating a positive vegetation response (ENTRIX 2009, p. 97). A prescribed fire plan is expected to be developed (ENTRIX 2009, p. 97), as there is concern for severe wildland fires to occur (Parmenter 2009, cited in Service 2010). The planned Scooter Peak prescribed burn between the VCNP and Bandelier National Monument is a fuel reduction project in occupied salamander habitat, but is small in scale (approximately 960 acres (ac) (390 hectares (ha)) (ENTRIX 2009, p. 2). Although future thinning of secondary growth may somewhat lessen the risk of severe wildland fires in areas, these efforts are not likely at a sufficient geographic scale to lessen the overall threat to the salamander.

The frequency of large-scale, high-severity, stand-replacing wildland fires has increased in the latter part of the 20th century in the Jemez Mountains. This increase is due to landscape-wide buildup of woody fuels associated with removal of grassy fuels from extreme year-round livestock overgrazing in the late 1800s, and subsequent fire suppression (Allen 1989, pp. 94-97; 2001, pp. 5-6). The majority of wildfires over the past 20 years has exhibited crown fire behavior and burned in the direction of the prevailing south or southwest winds (USFS 2009a, p. 17). The first severe wildland fire in the Jemez Mountains was the La Mesa Fire in 1977, burning 15,400 ac (6,250 ha). Subsequent fires included the Buchanon Fire in 1993 (11,543 ac (4,671 ha)), the Dome Fire in 1996 (16,516 ac (6,684 ha)), the Oso Fire in 1997 (6,508 ac (2,634 ha)), the Cerro Grande Fire in 2000 (42,970 ac (17,390 ha)), and the Lakes Fire Complex (Lakes and BMG Fires) in 2002 (4,026 ac (1,629 ha)) (Cummer 2005, pp. 3-4). Over the past 15 years, severe wildland fires have burned about 36 percent of modeled or known salamander habitat on USFS lands (USFS 2009, p. 1). Following the Cerro Grande Fire, the General Accounting Office reported that these conditions are common in much of the western part of the United States turning areas into a “virtual tinderbox” (General Accounting Office 2000, p. 15). The threat of severe wildland fires to salamander habitat remains high due to the tons of dead and down fuel, overcrowded tree conditions leading to poor forest health, and dense thickets of small-diameter trees. There is a 36 percent probability of having at least one large fire of 4,000 ac (over 1,600 ha) every year for the next 20 years in the southwest Jemez Mountains (USFS 2009a, p. 19). Moreover, the probability of exceeding this estimated threshold of 4,000 ac (1,600 ha) burned in the same time period is 65 percent (USFS 2009a, p. 19). As an example of the severe fire risk, the Thompson Ridge-San Antonio area, in Unit 1, has extensive ladder fuels and surface fuels estimated at over 20 tons per acre, and the understory in areas contains over 800 dense sapling trees per acre within the mixed conifer and Ponderosa pine stands (USFS 2009a, pp. 24-25). The canyon topography aligns with south winds and steep slopes, making this area more susceptible to crown fire (USFS 2009a, pp. 24-25).

Increases in soil and microhabitat temperatures, which generally increase with increasing burn severity, can have profound effects on salamander behavior and physiology, and thus their ability to persist subsequent to severe wildland fires. Following the Cerro Grande Fire, soil temperatures were recorded under potential salamander cover objects in areas occupied by the salamander (Cummer and Painter 2007, pp. 26-37). Soil temperatures in areas of high severity burn exceeded the salamander's thermal tolerance, which would have resulted in the death of any salamanders present (Spotila 1972, p. 97; Cummer and Painter 2007, pp. 28-31). Even in moderate and high-severity burned areas where fires did not result in the death of salamanders, the microhabitat conditions, such as those occurring during the Cerro Grande Wildfire, would limit the timing and duration that the salamanders could be surface active (feeding and mating). Moreover, elevated temperatures lead to increases in oxygen consumption, heart rate, and metabolic rate, resulting in decreased body water and body mass (Whitford 1968, pp. 247-251). Physiological stress from elevated temperatures may also increase susceptibility to disease and parasites. Effects from temperature increases are discussed in greater detail under Factor E.

Severe wildland fires typically increase soil pH, which could affect the salamander. In one study of the Jemez Mountains salamander, soil pH was the single best indicator of relative abundance of salamanders at a site (Ramotnik 1988, pp. 24-25). Sites with salamanders had a pH of 6.6 (± 0.08) and sites without salamanders had a pH of 6.2 (± 0.06). In another species of a terrestrial plethodontid salamander, the red-backed salamander ( Plethodon cinereus ), soil pH influences and limits its distribution and occurrence as well as its oxygen consumption rates and growth rates (Wyman and Hawksley-Lescault 1987, p. 1823). Similarly, Frisbie and Wyman (1991, p. 1050) found the disruption of sodium balance by acidic conditions in three species of terrestrial salamanders. A low pH substrate can also reduce body sodium, body water levels, and body mass (Frisbie and Wyman 1991, p. 1050). Changes in soil pH following wildfire likely impact the salamander either by making the habitat less suitable or through physiological stress.

Several regulatory attempts have been made to address and correct the altered ecological balance of New Mexico's forests resulting from a century of fire suppression, logging, and livestock grazing. Congress enacted the Community Forest Restoration Act to promote healthy watersheds and reduce the threat of large, high-intensity wildfires; insect infestation; and disease in the forests in New Mexico (H.R. 2389, Public Law 106-393). The subsequent Omnibus Public Land Management Act, also called the “Forest Landscape Restoration Act” (Title, IV, Public Law III-II, 2009), established a national program that encourages ecological, economic, and social sustainability and utilization of forest restoration byproducts to benefit local rural economies and improve forest health. As a result, the Santa Fe National Forest is preparing the Southwest Jemez Mountains Landscape Assessment that, if funded, may reduce the threat of severe wildland fire in Units 1 and 4 of the salamander's range over the next 10 years (USFS 2009, p. 2). However, funding of this project is not certain, nor is it likely to address the short-term risk of severe wildland fire; thus, the efficacy of this program is unsure.

We are not aware of any recently completed or currently funded large-scale projects to address the risk of severe wildland fire on the Jemez Ranger District of the Santa Fe National Forest. Thinning and burning activities in the Southwest Jemez Restoration Assessment area have ranged from 12 ac (5 ha) to about 7,100 ac (2,900 ha) since 1989 (USFS 2009f, pp. 16-18). Still, most of these activities have focused on Ponderosa pine, with precommercial thinning (removing trees less than 9 inches (in) (23 centimeters (cm)) in diameter at breast height (dbh)) occurring on only 6,000 ac (2,400 ha) since 1986 (USFS 2009f, p. 18). Many of the forest stands remain densely stocked, creating multi-tiered fuels that add to crown fire risk. As such, the limited scale of these thinning and burning activities has not reduced the overall risk of severe crown fire in the area (e.g., see USFS 2009, 2009a, 2009b). The existing risk of wildfire on the VCNP and surrounding areas is uncharacteristically high and is a significant departure from historic conditions over 100 years ago (VCNP 2010, p. 3.1; Allen 1989, pp. ii-346; 2001, pp. 1-10). Therefore, it is highly probable that the overall risk of severe wildland fire will not be significantly reduced or eliminated on USFS lands, National Park Service lands, the VCNP, or surrounding lands in the foreseeable future.

Since 1977, these severe wildland fires have significantly degraded important features of salamander habitat including removal of tree canopy and shading, increases of soil temperature, decreases of soil moisture, increased pH, loss or reduction of soil organic matter, reduced porosity, and short-term creation of water-repelling soils. These and other effects limit the amount of available surface habitat and the timing and duration when salamanders can be surface active, which negatively impacts salamander behavior (e.g., foraging and mating). For these reasons, severe wildland fires have led to a reduction in the quality and quantity of the available salamander habitat rangewide. For this reason, the USFS believes, and we concur, that habitat loss from extensive, stand-replacing wildland fire threatens the salamander (USFS 2009c, p. 1). These effects will likely continue into the foreseeable future because we do not anticipate large-scale changes to funding or initiation of projects that would significantly alleviate the currently high risk of wildfire. Therefore, we believe that fire exclusion and suppression has substantially affected the salamander and this trend is expected to continue.

Changes in forest composition and structure threaten the salamander by directly altering soil moisture, soil temperature, soil pH, relative humidity, and air temperature. With an increase of small-diameter trees on the Jemez Mountains, there is an increase in demand for water required for evapotranspiration, which in turn can lead to increased drying of the soil. Limited water leads to drought-stressed trees, and increases their susceptibility to burning, insects, and disease. This is especially true on south-facing slopes, where less moisture is available or during times of earlier snowmelt. Furthermore, reduced soil moisture may disrupt surface activities of salamanders (e.g., foraging) or alter prey availability. The degree of these impacts is currently unknown; however, alteration of forest composition and structure contribute to increased risk of forest die-offs from disease and insects throughout the range of the salamander (USFS 2002, pp. 11-13; 2009d, p. 1; 2009a, pp. 8-9; 2010, pp. 1-11; Allen 2001, p. 6). We find that the interrelated contributions from changes in vegetation to large-scale, high-severity wildfire and forest die-offs are of a significant magnitude across the range of the species (e.g., see “Fire Exclusion and Severe Wildland Fires” section, above), and in addition to continued predicted future changes to forested habitat within the range of the species, threaten the salamander.

Preliminary data collected from the VCNP indicates that an increase in the amount of tree canopy cover in an area influences the amount of snow that is able to reach the ground, and can decrease the amount of soil moisture and infiltration (Enquist et al . 2009, p. 8). On the VCNP, 95 percent of coniferous forests have thick canopy cover with heavy understory fuels (VCNP 2010, pp. 3.3-3.4; USFS 2009a, p. 9). In these areas, snow accumulates in the tree canopy over winter, and in the spring can quickly evaporate without reaching or infiltrating the soil. For this reason, recent increases in canopy cover, resulting from fire exclusion and suppression, could be having significant drying effects on salamander habitat and threaten the salamander now and in the foreseeable future.

Post-fire management practices are often needed to restore forest dynamics (Beschta et al . 2004, p. 957). In 1971, USFS was given formal authority by Congress for Burn Area Emergency Rehabilitation (BAER) (Robichaud et al . 2000, p. 1) and integrated the evaluation of fire severity, funding request procedures, and treatment options. Treatment options implemented by USFS and BAER teams include hillslope treatments (grass seeding, contour-felled logs, mulch, and other methods to reduce surface runoff and keep post-fire soil in place, such as tilling, temporary fencing, erosion control fabric, straw wattles, lopping, and scattering of slash) and channel treatments (straw bale check dams, log check dams, rock dams, and rock cage dams (gabions)) (Robichaud et al . 2000, pp. 11-21). Rehabilitation actions following the Cerro Grande fire in salamander habitat included heavy equipment and bulldozer operation, felling trees for safety reasons, mulching with straw and placement of straw bales, cutting and trenching trees (contour felling and securing on slope), hand and aerial seeding, and aerial hydromulch (wet mulch with fertilizer and seed) (USFS 2001, p. 1). Some contour felling is likely beneficial for the salamander post-fire because it can slow erosion and, in cases where surface rocks are not present or present in low numbers, the logs can also provide immediate cover. Following the Cerro Grande Fire, the BAER Team recommended felling large-diameter Douglas fir logs and cutting four disks off each log (rounds) to provide immediate cover for salamanders before summer rains (Interagency BAER Team 2000, p. 87; USFS 2001, p. 1). It remains unknown if these measures are effective, but they probably benefit the salamander in the short term. Alternatively, some post-fire treatments (e.g., grass seeding, tilling, erosion control fabrics, and removal of surface rocks to build rock dams) likely negatively impact the salamander. The most common BAER treatment is grass seeding dropped from aircraft (Robichaud et al . 2000, p. 11). This treatment is inexpensive, rapidly increases water infiltration, and stabilizes soil (Robichaud et al . 2000, p. 11). Nonnative grasses are typically seeded because they are fast-growing and have extensive fibrous roots (Robichaud et al . 2000, p. 11). Nevertheless, these nonnative grasses have created thick mats that are impenetrable to the salamander because the species has short legs and cannot dig tunnels. The existing spaces in the soil fill with extensive roots, altering the sub-surface habitat in a manner that is unusable to the salamander. Finally, grass seeds can also contain fertilizer that is broadcast over large areas of habitat (e.g., hydromulch used in post-fire treatments for the Cerro Grande Fire). Fertilizers can contain nitrate, which is toxic to amphibians at certain levels (Rouse et al . 1999, p. 799). While the effects of seeding with nonnative grasses and the use of fertilizers on salamanders have not been specifically studied, this action has likely caused widespread adverse impacts to the salamander. Because this action is a common post-fire treatment, it will likely continue to negatively impact salamander localities from both past and future treatments.

In summary, some post-fire treatments could benefit the salamander, such as some contour felling of logs. Additional measures, such as cutting and scattering rounds, can also benefit the salamander. However, other post-fire treatments negatively impact the salamander. Small-scale impacts could occur from removing rocks from habitat to build rock dams, and large-scale impacts include grass seeding and associated chemicals. We conclude that while the effects of high-severity, stand-replacing wildfire, also referred to as severe wildland fires, are the most significant threat to the salamander, actions taken subsequent to the wildfires could determine whether the salamander will persist in or return to those areas. We therefore find that post-fire rehabilitation treatments are currently a threat to the salamander, and are expected to continue in the future.

Fire use includes the combination of wildland fire use (the management of naturally ignited wildland fires to accomplish specific resource management objectives) and prescribed fire (any fire ignited by management actions to meet specific objectives) applications to meet natural resource objectives (USFS 2010b, p. 1). Fire use can benefit the salamander in the long term by reducing the risk of severe wildland fires and by returning the natural fire cycle to the ecosystem. Alternatively, other practices such as broadcast burning (i.e., conducting prescribed fires over large areas) consume ground litter that helps to create moist conditions and stabilize soil and rocky slopes. Depending on time of year, fire use can also impact the salamander if the species is active on the surface, which is typically from July to September. Conditions for salamander surface activity (wet) are often not conducive to fire. Prescribed fire in the Jemez Mountains is often planned for the fall (when the salamanders are not active), because low wind and increased moisture during this time allow more control, lowering chances of the fire's escape. Because fire historically occurred prior to July (i.e., pre-monsoon rains), the majority of fires likely preceded surface activity. Prescribed fires conducted after September, when salamanders typically return to their underground retreats, would be similar to a natural fire regime in the spring with low direct impacts because most salamanders are subsurface. However, it is unknown what the indirect impacts to the salamander would be by altering the time of year when fire is present on the landscape.

Other impacts to the salamander from fire use can include digging fire lines, targeting the reduction of large decomposing logs, and chemical use (such as flares and fire retardant) in salamander habitat. Some impacts to the salamander can be avoided through seasonal timing of prescribed burns and modifying objectives (e.g., leaving large diameter logs, greater canopy cover) and techniques (e.g., not using flares or chemicals) of the prescribed fire in salamander habitat (Cummer 2005, pp. 2-7). As part of the Southwest Jemez Restoration Project proposal, the Santa Fe National Forest has set specific goals pertaining to the salamander including reduction of the risk of high-intensity wildfire in salamander habitat and retention of a moisture regime that will sustain high-quality salamander habitat (USFS 2009a, p. 11). The Santa Fe National Forest intends to minimize impacts to the salamander and to work towards its recovery (USFS 2009, p. 4), but specific actions or recommendations to accomplish this goal have not yet been determined. If the salamander is not considered, fire use could make its habitat less suitable (warmer; drier; fewer large, decomposing logs) and kill or injure salamanders that are surface active. Alternatively, the species may benefit if seasonal restrictions and maintaining key habitat features (e.g., large logs and sufficient canopy cover to maintain moist microhabitats) are part of managing the fire. Given the current condition of forest composition and structure, the risks of severe wildland fire on a large geographic scale will take a long-term planning strategy. Fire use is critical to the long-term protection of the salamander's habitat, although some practices are not beneficial to the species and may threaten the salamander.

Similarly, fire suppression activities both protect and negatively impact the salamander or its habitat. For example, fire suppression actions that occurred in salamander habitat during the Cerro Grande Fire included hand line construction, backfiring with the capacity of burning off heavy ground cover, fire retardant drops, and bulldozer line (USFS 2001, p. 1). Water dropping from helicopters is another fire suppression technique used in the Jemez Mountains, where water is collected from accessible streams, ponds, or stock tanks. By dropping surface water into terrestrial habitat, there is a significant increased risk of spreading aquatic pathogens into terrestrial habitats (see Factor C, Disease).

Fire retardants and fire fighting foams are addressed under Factor E. Fire suppression actions including the use of fire retardants, water dropping, backfiring, and fire line construction likely impact the salamander; however, the magnitude of impacts from fire suppression remains unknown, and we do not have enough information at this time to determine if fire suppression actions threaten the salamander. However, these activities improve the chances of quick fire suppression and would be relatively smaller in scale and could have fewer impacts than a severe wildland fire. Therefore, we do not find that fire suppression activities are a threat to the salamander, nor do we expect them to become a threat in the future.

Mechanical treatment of hazardous fuels refers to the process of grinding or chipping vegetation (trees and shrubs) to meet forest management objectives. When these treatments are used, resprouting vegetation often grows back in a few years, if the area is not maintained through prescribed fire. Mechanical treatment may include the use of heavy equipment or manual equipment to cut vegetation (trees and shrubs) and to scrape slash and other debris into piles for burning or mastication. Mastication equipment uses a cutting head attached to an overhead boom to grind, chip, or crush wood into smaller pieces and is able to treat vegetation on slopes up to 35 to 45 percent while generally having little ground impact (soil compaction or disturbance). The debris is left on the ground where it decomposes and provides erosion protection or it is burned after drying out.

Mechanical treatment of hazardous fuels such as manual or machine thinning (chipping and mastication) may cause localized disturbances to the forest structure that can impact the salamander. For example, removal of overstory tree canopy or ground cover within salamander habitat may cause desiccation of soil or rocky substrates. Additionally, tree-felling or use of heavy equipment has the potential to disturb the substrate, resulting in destabilization of talus and compaction of soil, which may reduce sub-surface interstices used by salamanders as refuges or for their movements. Similarly, if salamanders are surface active, any of these activities could crush salamanders present under surface cover objects (through use of heavy equipment or heavy foot traffic).

Also of concern is soil compaction from the use of heavy equipment. The masticator largely operated on skid trails (temporary trails used to transport trees, logs, or other forest products), and mastication did not increase soil compaction, because the machinery traveled on trails covered with masticated materials (wood chips, etc.), which more evenly distributed the weight of the machinery and reduced soil compaction (Moghaddas and Stephens 2008, p. 3104). Activities that compact soil, remove excessive canopy cover, or are conducted while salamanders are surface active would be detrimental to the salamander and its habitat. If mechanical treatment and hazardous fuels activities are conducted in a manner that minimizes impacts to the salamander while reducing the risk of severe wildland fire, the salamander could ultimately benefit from the reduction in the threat of severe wildland fire and the improvement in the structure and composition of the forest. While mechanical treatments likely impact a few individual salamanders, we do not have enough information at this time to determine whether mechanical treatments threaten the species.

Forest silvicultural practices (the care and cultivation of forest trees) threaten the salamander. Many areas of the landscape in the Jemez Mountains has been fragmented by past commercial (trees greater than 9 in (23 cm) dbh) and pre-commercial (trees less than 9 in (23 cm) dbh) timber harvesting. Much of the forests of the Jemez Mountains lack large-diameter trees and have become overgrown with small-diameter trees. Salamander localities are found generally within the intact stands of mature forest, but can still be found in areas where evidence of logging exists. We assessed whether timber harvest (logging) or salvage logging threaten the salamander.

From 1935 to 1972, logging (particularly clear-cut logging) was conducted on VCNP (ENTRIX 2009, p. 164). These timber activities resulted in about 50 percent of VCNP being logged, with over 1,600 kilometers (km) (1,000 miles (mi)) of 1960s era logging roads (ENTRIX 2009, p. 164) being built in winding and spiraling patterns around hills (ENTRIX 2009, pp. 59-60). On the VCNP, 95 percent of forest stands contain dense thickets of small-diameter trees (VCNP 2010, pp. 3.3-3.4). This multi-tiered forest structure is similar to surrounding areas and provides ladder fuels that favor the development of crown fires (Allen 2001, pp. 5-6; USFS 2009a, p. 10). Additionally, all forest types on the VCNP contain very few late-stage mature trees greater than 16 in (41 cm) dbh (less than 10 percent of the overall cover) (VCNP 2010, pp. 3.4, 3.6-3.23). The lack of large trees is an artifact of intense logging, mostly from clear-cutting practices in the 1960s (VCNP 2010, p. 3.4), and we believe this to be similar for surrounding forests. Clear-cutting degrades forest floor microhabitats by eliminating shading and leaf litter, increasing soil surface temperature, and reducing moisture (Petranka 1998, p. 16).

In a comparison of four logged sites and five unlogged sites in Jemez Mountains salamander habitat, Ramotnik (1986, p. 8) reports that a total of 47 salamanders were observed at four of the five unlogged sites, while no salamanders were observed on any of the logged sites. It is unclear whether salamanders were observed at the sites prior to logging, but significant differences in habitat features (soil pH, litter depth, and log size) between the logged and unlogged sites are reported. On the unlogged sites, salamanders were associated with cover objects that were closer together and more decayed, and that had a higher canopy cover, greater moss and lichen cover, and lower surrounding needle cover, compared to cover objects on logged sites (Ramotnik 1986, p. 8). Cover objects on logged sites were less decomposed and accessible by the salamanders, had a shallower surrounding litter depth, and were associated with a more acidic soil than were cover objects on the unlogged sites (Ramotnik 1986, p. 8).

Consistent with the findings of Ramotnik (1986, p. 8), deMaynadier and Hunter (1995; in Olson et al . 2009, p. 6) reviewed 18 studies and found that salamander abundance after timber harvest was 3.5 times greater on controls than in clear-cut areas. Furthermore, Petranka et al . (1993; in Olson et al . 2009, p. 6) found that Plethodon abundance and richness in mature forest were five times higher than those in recent clear cuts, and they estimated that it would take as much as 50 to 70 years for clearcut populations to return to pre-clearcut levels. In the Jemez Mountains, historic clearcut logging practices likely led to significant habitat loss for the salamander with effects that continue today.

The majority of salamander habitat has been heavily logged, which has resulted in changes in stand structure and a paucity of large-diameter trees. This lack of large-diameter trees means that there is a limited source for future large, decomposing logs needed for high-quality salamander habitat. Ramotnik (1986, p. 12) reports that logs with salamanders present were significantly larger and wetter than those without salamanders. Further, most salamanders were found in well decomposed logs. In a similar plethodontid salamander, large logs provide refuge from warmer temperatures and resiliency from impacts that can warm and dry habitat (Kluber et al . 2009, p. 31).

On the VCNP, only minor selective logging has occurred since 1972, and it is expected that some thinning of second growth forests will continue to occur to prevent severe wildfires. However, no commercial logging is proposed or likely in the foreseeable future (Parmenter 2009b, cited in Service 2010). Although commercial timber harvest on the Santa Fe National Forest has declined appreciably since 1988 (Fink 2008, pp. 9, 19), the effects from historical logging and associated roads will continue to threaten the salamander and are expected to continue in the foreseeable future.

Salvage cutting (logging) removes dead, dying, damaged, or deteriorating trees while the wood is still merchantable (Wegner 1984, p. 421). Sanitation cutting, similar to salvage, removes the same kinds of trees as well as those susceptible to attack, but for the purpose of reducing the spread of biotic pests (Wegner 1984, p. 421). Both types of cutting are used in salamander habitat, and are referred to as “salvage logging.” Salvage logging is a common response to forest disturbance (Lindenmayer et al . 2008, p. 4) and, in salamander habitat, is most likely to occur after a forest die-off resulting from fire, disease, insects, or drought. The purposes for salvage logging in the Jemez Mountains have included firewood for local use, timber for small and large mills, salvage before economic decay, creation of diverse healthy and productive timber stands, management of stands to minimize insect and disease losses (USFS 1996, p. 4), and recovery of the timber value of fire-killed trees (USFS 2003, p. 1). When conducted in salamander habitat, it can further reduce the quality of the habitat remaining after the initial disturbance by removing or reducing the shading afforded by dead standing trees (Moeur and Guthrie 1984, p. 140) and future salamander cover objects (removal of trees precludes their recruitment to the forest floor), and by interfering with habitat recovery (Lindenmayer et al . 2008, p. 13).

Recent salvage logging within the range of the salamander occurred following the Lakes and BMG Wildfire. The USFS stated that mitigation measures for the Lakes and BMG Wildfire Timber Salvage Project would further protect the salamander and enhance salamander habitat by immediately providing slash and down logs (USFS 2003, pp. 4-5). Mitigation for the salvage logging project included conducting activities during winter to avoid soil compaction, and providing for higher snag retention (by leaving all Douglas fir trees (16 percent fire-killed trees) and 10 percent of other large snags) to provide future down log habitat (USFS 2003, p. 29). These mitigation measures were developed in consultation with NMEST in an effort to minimize impacts to salamander from salvage logging; however, NMEST recommended that salvage logging be excluded from occupied salamander habitat because it was not clear that even with the additional mitigations that it would meet the conservation objectives of the Cooperative Management Plan (NMEST 2003, p. 1). The mitigation measures would likely benefit the salamander in the short term if conducted without salvage logging. It is not known if mitigation measures offset the impacts of salvage logging in salamander habitat; however, Lindenmayer et al . (2008, p. 13) reports that salvage logging interferes with natural ecological recovery and may increase the likelihood and intensity of subsequent fires. We believe that removal of trees limits the amount of future cover and allows additional warming and drying of habitat. The potential for large-scale forest die-offs from wildfire, insect outbreak, disease, or drought is high in the Jemez Mountains (see Factors A and E), which may result in future salvage logging in salamander habitat in the foreseeable future. We believe that salvage logging in salamander habitat further diminishes habitat quality and may be a determining factor of salamander persistence subsequent to forest die-off.

Some timber harvest activities likely pose no threat to the salamander. For example, removal of hazard trees may have minimal disturbance to surrounding soils or substrates, especially if removal is conducted when the species is not surface-active (i.e., seasonal restrictions). This type of localized impact may affect a few individuals but is not likely to affect a population or be considered a threat. Likewise, precommercial thinning (removal of trees less than 9 in (22.9 cm) dbh) or shrub and brush removal (without the use of herbicides) to control vegetation, and without disturbing or compacting large areas of the surrounding soils, likely could be conducted without adverse effects on the salamander.

In summary, current commercial logging levels are very low and do not threaten the salamander. Because most of the high-quality, large-diameter trees have been removed from the Jemez Mountains, we believe that commercial logging levels will remain low for the foreseeable future. Nevertheless, impacts from past commercial logging activities continue to have detrimental effects to the salamander and its habitat. These past activities removed large-diameter trees, removed forest canopy, created roads, compacted soil, and disturbed other important habitat features. These effects of historic logging include the warming and drying of habitat, and no source for future large cover objects (decomposing logs) that contribute to habitat complexity and resiliency. Salvage logging further diminishes salamander habitat subsequent to disturbance. Therefore, we conclude that the salamander continues to be threatened by forest silvicultural practices, including salvage logging, and we expect that these practices and the resulting threats to the species will continue in the future.

Following the 2000 Cerro Grande Fire, water retention dams were constructed within potential salamander habitat to minimize soil erosion within burned areas (NMDGF 2001, p. 1; NMEST 2002, pp.1-2; Kutz 2002, p. 1). Surveys were not conducted prior to construction, and we do not know if the areas were occupied by salamanders, but the areas are in the vicinity of occupied salamander habitat. Because these types of structures were installed to slow erosion subsequent to wildfire, additional dams or flood control features could be constructed within salamander habitat in the foreseeable future following severe wildland fires. Some individual salamanders may be killed or injured by this activity; however, the impact to the species and habitat from construction of retention dams would be relatively minor. For this reason, we do not consider the construction of dams to currently be a significant threat to the salamander, nor do we expect dam construction to be a threat to the species in the future.

Pumice mining activities (e.g., Copar Pumice Company, the Copar South Pit Pumice Mine, and the El Cajete Pumice Mine) have been evaluated for impacts to the salamander (USFS 1995, pp. 1-14; 1996, pp. 1-3). Pumice mines are located within areas of volcanic substrate that are unlikely to support salamanders (USFS 2009c, p. 2). However, associated infrastructure from expansion of the El Cajete Mine, such as access roads and heavy equipment staging areas, may have the potential to be located in potential salamander habitat. Although no decision on authorizing the extension to the El Cajete Mine has been made (USFS 2009. p. 2), these activities would be small in scale and not likely considered a threat to the species, either currently or in the future.

Private property development threatens the salamander. Although the majority of salamander habitat is located on Federally managed lands, private land contains substantially sized, contiguous areas of salamander habitat. Additionally, some areas with salamander habitat on the Santa Fe National Forest could be developed for private use (as proposed in USFS 1997, pp. 1-4; USFS 1998, pp. 1-2). Development can destroy and fragment habitat through the construction of homes and associated infrastructure (e.g., roads, driveways, and buildings), making those areas unusable to salamanders and likely resulting in mortalities to salamanders within those areas. These activities have reduced the quantity and quality of salamander habitat primarily within the southern part of Unit 1, the central and eastern parts of Unit 3, and large inholdings in Unit 4. As the human population continues to increase in New Mexico, we believe development will likely continue to directly affect the salamander within these units in the foreseeable future. These activities will likely be in the form of new housing and associated roads and infrastructure. Because development occurs, or is likely to occur, in part of the range of the salamander, and because we anticipate the continuing loss and degradation of habitat in these areas, we determine that private property development currently threatens the salamander, and this threat will continue in the future.

Geothermal development does not threaten the salamander. A large volcanic complex in the Jemez Mountains is the only known high-temperature geothermal resource in New Mexico (Fleischmann 2006, p. 27). Geothermal energy was explored for possible development on the VCNP between 1959 and 1983 (USFS 2007, p. 126). In July 1978, the U.S. Department of Energy, Union Oil Company of California (Unocal), and the Public Service Company of New Mexico began a cooperative geothermal energy project (USFS 2007, p. 126). The demonstration project drilled 20 exploratory wells over the next 4 years. One of the geothermal development locations was south of Redondo Peak on the VCNP, and the canyon in this area was occupied by the salamander (Sabo 1980, pp. 2-4). An Environmental Impact Statement analyzed a variety of alternatives, including placement of transmission towers and lines (U.S. Department of Energy cited in Sabo 1980, pp. 2-5). Nevertheless, the project ended in January 1982, because Unocal's predictions concerning the size of geothermal resources were not met. Out of the 40 wells drilled in the Valles Caldera in the Redondo Creek and Sulphur Springs areas, only a few yielded sufficient resources to be considered production wells (USFS 2007, p. 126). In some cases, primarily in Unit 5, this occurred in salamander habitat and concrete well pads were built. Although the geothermal resources are found within the range of the salamander in the Jemez Mountains, extraction of large quantities of hot fluids from these rocks has proven difficult and not commercially viable (USFS 2007, p. 127). As such, we are not aware of any current or future plans to construct large or small-scale geothermal power production projects within salamander habitat. Moreover, in 2006, the mineral rights on the VCNP were condemned, including geothermal resources (VallesCaldera.com 2010, p. 1). For these reasons, geothermal development does not present a current or foreseeable threat to the salamander.

Roads, trails, and habitat fragmentation have had significant detrimental impacts that threaten the salamander now and in the foreseeable future. Construction of roads and trails has historically eliminated or reduced the quality or quantity of salamander habitat, reducing blocks of native vegetation to isolated fragments and creating a matrix of native habitat islands that have been altered by varying degrees from their natural state. Allen (1989, pp. 46, 54, 163, 216-242, and 302) collected and analyzed changes in road networks (railroads, paved roads, improved roads, dirt roads, and primitive roads) in the Jemez Mountains from 1935 to 1981. Landscape-wide road density increased 11.75 times from 0.382 km (0.237 mi) of road per square km (0.386 square mi) in 1935 to 4.490 km (2.790 mi) of road per square km in 1981, and in surface area of the map area from 0.131 percent (247 ha; 610 ac) to 1.667 percent (3,132 ha; 7,739 ac) (Allen 1989, pp. 236-240). Allen (1989, p. 240) reports that of 8,443 km (5,246 mi) of roads in the Jemez Mountains in 1981, 74 percent was mapped on USFS lands (3,607 km; 2,241 mi) and private lands (2,649 km; 1,646 mi). These roads generally indicate past logging activity (Allen 1989 p. 236). Ongoing effects of roads and their construction on the VCNP may exceed the effects of the timber harvests for which the roads were constructed (Balmat and Kupfer 2004, p. 46). The majority of roads within the range of the salamander are unpaved, and the compacted soil typically has very low infiltration rates that generate large amounts of surface runoff (Robichaud et al . 2010, p. 80). Increasing runoff and decreasing infiltration has led to the drying of adjacent areas of salamander habitat.

The construction of roads and trails degrades habitat by compacting soil and eliminating interstitial spaces on the surface and sub-surface. Furthermore, roads and trails reduce or eliminate important habitat features (e.g., lowering canopy cover or drying of soil) and prevent gene flow (Saunders et al . 1991, p. 25; Burkey 1995, pp. 527, 528; Frankham et al . 2002, p. 310; Noss et al . 2006, p. 219). Vehicular and off-highway vehicle (OHV) use of roads and trails can kill or injure salamanders. Roads are known to fragment terrestrial salamander habitat and act as partial barriers to movement (deMaynadier and Hunter 2000, p. 56; Marsh et al. 2005, p. 2004). We find that the establishment of roads and trails will likely continue to impact the salamander and its habitat, increasing the risk of extirpation of some localities.

Road clearing and maintenance activities can also cause localized adverse impacts to the salamander from scraping and widening roads and shoulders or maintaining drainage ditches or replacing culverts. These activities may kill or injure individuals through crushing by heavy equipment. Existing and newly constructed roads or trails fragment habitat, accelerating extirpation of localities, especially when movement between suitable habitat is not possible (Burkey 1995, p. 540; Frankham et al . 2002, p. 314). Isolated populations or patches are vulnerable to random events, which could easily destroy part of or an entire salamander locality, or decrease a locality to such a low number of individuals that the risk of extirpation from human disturbance, natural catastrophic events, or genetic and demographic problems (e.g., loss of genetic diversity, uneven male to female ratios) would increase greatly (Shaffer 1987, p. 71; Burkey 1995, pp. 527, 528; Frankham et al . 2002, pp. 310-324).

Terrestrial salamanders are impacted by edge effects, typically adjacent to roads and areas of timber harvest, because microclimate conditions within forest edges often exhibit higher air and soil temperatures, lower soil moisture, and lower humidity, compared to interior forested areas (Moseley et al . 2009, p. 426). Moreover, by creating edge effects, roads can reduce the quality of adjacent habitat by increasing light and wind penetration, exposure to pollutants, and the spread of invasive species (Marsh et al. 2005, pp. 2004-2005). Due to the physiological nature of terrestrial salamanders, they are sensitive to these types of microclimate alterations, particularly to changes to temperature and moisture (Moseley et al . 2009, p. 426). Generally, more salamanders are observed with increasing distance from some edge types, which is attributed to reduced moisture and microhabitat quality (Moseley et al . 2009, p. 426).

Road construction on New Mexico State Highway 126 around the town of Seven Springs in 2007-2008 occurred in occupied salamander habitat in Unit 1. Measures were implemented by the USFS reduce the impact of these road construction activities on salamanders including limiting construction to times when salamanders would not be active on the surface and felling of approximately 300 trees in the project area to replace large woody debris used as salamander habitat. However, at least 24 ac (9.7 ha) of salamander habitat were directly impacted by this project (USFS 2009c, p. 2), which resulted in the destruction and fragmentation of occupied salamander habitat. Continued maintenance of State Highway 126 in the future will likely involve the use of salts for road de-icing, and increase the exposure of adjacent areas to chemicals and pollution from vehicular traffic. Fragmentation of parts of Unit 1 and subsequent edge effects have reduced the quality and quantity of salamander habitat.

In 2007, the NMEST concluded that impacts from OHVs and motorcycles were variable depending on their location relative to salamander habitat. Since the width of a trail is generally smaller than a road, canopy cover typically remains over trails. In some cases (e.g., flat areas without deeply cut erosion), the trails do not likely impede salamander movement. Alternatively, severe erosion caused by heavy trail use in some places formed trenches approximately 2 ft wide by 2 to 3 ft deep (0.6 m wide by 0.6 to 0.9 m deep), which would likely prevent salamander movement, fragment local populations, and trap salamanders that fall into the trenches. Often, the most severely impacted areas from OHVs had been the best salamander habitat prior to OHV use, because they were located on steep, north-facing slopes, with loose rocky soils that are easily eroded.

In November 2005, the USFS issued the Travel Management Rule that requires designation of a system of roads, trails, and areas for motor vehicle use by vehicle class and, if appropriate, by time of year (70 FR 68264; November 9, 2005). As part of this effort, the USFS inventoried and mapped roads and motorized trails, and is currently completing a Draft Environmental Impact Statement to change the usage of some of the current system within the range of the salamander. The Santa Fe National Forest is attempting to minimize the amount of authorized roads or trails in known occupied salamander habitat and will likely prohibit the majority of motorized cross-country travel within the range of the species (USFS 2009c, p. 2). Nevertheless, by closing some areas to OHV use, the magnitude of impacts in areas open to OHV use in salamander habitat will be greater (NMEST 2008, p. 2). We acknowledge that some individual salamanders may be killed or injured by vehicles and OHVs and that OHV use impacts salamander habitat. However, we believe the Santa Fe National Forest is attempting to minimize impacts to the salamander and its habitat. Furthermore, we believe that the revised travel management regulations will reduce the impact of motorized vehicles on the salamander and its habitat by providing a consistent policy that can be applied to all classes of motor vehicles, including OHVs. We conclude that OHV and motorcycle use threatens the salamander if left unmanaged, but with the implementation of the forthcoming management of motorized trails on the Santa Fe National Forest, the threat will be greatly reduced.

In summary, the extensive roads that currently exist in the Jemez Mountains have significantly impacted the salamander and its habitat due to death and injury of salamanders; fragmentation and population isolation; habitat loss; habitat modification from edges; and in some cases, increased exposure to chemicals, salts, and pollution. Roads associated with private development are most likely to be constructed in the future in portions of Units 3 and 4, which has the most private land. However, new roads may also be constructed through Federal lands within the salamander's range. Roads and trails have significantly fragmented habitat and likely reduced persistence of existing salamander localities. Therefore, we conclude that roads, trails, and the resulting habitat fragmentation currently present a threat to the salamander, and this threat will continue in the future.

Recreational activities threaten the salamander now and in the foreseeable future. The Jemez Mountains are heavily used for dispersed recreational activities that have the potential to impact the species, including camping, hiking, mountain biking, hunting, and skiing; OHV use is addressed above. There is overlap of the Jemez National Recreation Area, a 57,650 ac (23,330 ha) area of the southwestern Jemez Mountains, and salamander Units 1 and 4. It is estimated that nearly 1.6 million people visit the Jemez National Recreation Area for recreational opportunities each year (Jemez National Recreation Area 2002, p. 2). Despite an existing average road density of approximately 2.5 mi (4.0 km) of road per square mile (2.6 square km) on the Jemez National Recreation Area, off road use continues to occur resulting in new roads being created or decommissioned roads being reopened (Jemez National Recreation Area 2002, pp. 10, 11). Using current population and travel trends, the potential visitation demand on the VCNP is between 250,000 and 400,000 visits per year (Entrix 2009, p. 93). Of this projection, the VCNP is expected to realize 120,000 visitors per year by the year 2020 (Entrix 2009, p. 94). To put this in context, from 2002 to 2007 the VCNP averaged about 7,600 visitors per year (Entrix 2009, p. 13). Bandelier National Monument, which has a smaller proportion of salamander habitat, overlaps with the southern portion of Unit 3, and attracts an average annual visitation of over 250,000 people (Entrix 2009, p. 92). Fenton Lake State Park in Unit 1 also contains salamander habitat. The park received over 120,000 visitors on its 70 ac (28 ha) containing hiking trails and a fishing lake (Entrix 2009, p. 92).

Campgrounds and associated parking lots and structures have likely impacted the salamander through modification of small areas of habitat from soil compaction and vegetation removal. Similarly, compaction of soil from hiking or mountain biking trails has modified a relatively small amount of habitat. The majority of these trails likely do not act as barriers to movement nor create edge effects similar to roads because they are narrow and do not reduce canopy cover. However, similar to OHV trails, deeply eroded mountain bike trails could act as barriers and entrap salamanders.

The Pajarito Ski Area in Los Alamos County was established in 1957 and expanded through 1994. Ski runs were constructed within salamander habitat. A significant amount of high-quality habitat (north-facing mountain with mixed conifer forests and many salamander observations) was destroyed with construction of the ski areas and the runs and roads have fragmented and created a high proportion of edge areas. Nevertheless, surveys conducted in 2001 in two small patches of forested areas between ski runs detected salamanders (Cummer et al. 2001, pp. 1, 2). Most areas between runs remain unsurveyed. However, because of the large amount of habitat destroyed, the extremely small patch sizes that remain, and relatively high degree of edge effects, the salamander will likely not persist in these areas in the long term.

Adjacent to the downhill ski runs are cross country ski trails. These trails are USFS lands, but maintained by a private group. In 2001, trail maintenance and construction with a bulldozer was conducted by the group in salamander habitat during salamander surface activity period (NMEST 2001, p. 1). Trail maintenance was reported as leveling all existing ski trails with a bulldozer, that involved substantial soil disturbance, cutting into slopes as much as 2 ft (0.6 m), filling other areas in excess of 2 ft (0.6 m), widening trails, and downing some large trees (greater than 10 in (25.4 cm) dbh), ultimately disturbing approximately 2 to 5 ac (1 to 2 ha) of occupied salamander habitat (Sangre de Christo Audubon Society 2001, pp. 2-3). This type of trail maintenance while salamanders are surface active could result in direct impacts to salamanders, and further fragment and dry habitat. We do not know if there are future plans to modify or expand the existing ski area.

The Jemez Mountains are currently heavily used for recreational activities, and as human populations in New Mexico continue to expand, there will likely be an increased demand in the foreseeable future for recreational opportunities in the Jemez Mountains. Large-scale recreational projects in salamander habitat would threaten the salamander. Therefore, we conclude that recreational activities currently threaten the salamander, and will continue to be a threat in the future.

Historical livestock grazing changed the Jemez Mountains ecosystem by removing understory grasses, contributing to altered fire regimes, altered vegetation composition and structure, and increased soil erosion. Livestock grazing generally does not occur within salamander habitat because cattle concentrate outside of forested areas where grass and water are more abundant. We have no information that indicates livestock grazing is directly or indirectly threatening the salamander or its habitat. However, small-scale habitat modification, such as livestock trail establishment or trampling, in occupied salamander habitat is possible. The USFS and VCNP manage livestock to maintain fine grassy fuels and should not limit low-intensity fires in the future. Indirect effects from livestock activities may include the risk of aquatic disease transmission from earthen stock ponds that create areas of standing surface water. Earthen stock tanks are often utilized by tiger salamanders ( Ambystoma tigrinum ), which are known to be vectors for disease (i.e., they can carry and spread disease) (Davidson et al . 2003, pp. 601-607). Earthen stock tanks can also concentrate tiger salamanders, increasing chances of disease. Some tiger salamanders use adjacent upland areas and may transmit disease to the Jemez Mountains salamander in areas where they co-occur. However, we do not have enough information to draw conclusions on the extent or role tiger salamanders may play in disease transmission. Although some small-scale habitat modification is possible, livestock are managed to maintain a grassy forest understory, and the connection between earthen stock tanks for livestock and aquatic disease transmission is unclear. Therefore, we conclude that livestock grazing is not a current threat to the salamander, nor do we believe it will be in the future.

In summary, the salamander and its habitat are threatened by historical and current fire management practices; severe wildland fire; forest composition and structure conversions; post-fire rehabilitation; forest management (including silvicultural practices); private (residential) development; roads, trails, and habitat fragmentation; and recreation. Due to the limited extent of habitat occupied by the salamander, the severity and magnitude of the threat of severe wildland fire, and ongoing impacts from the existing extensive road network and previous logging practices, we have determined that the present or threatened destruction, modification, or curtailment of habitat and range represents a current significant threat to the salamander, and will continue to be so in the future.

Overutilization does not threaten the salamander now or in the foreseeable future, but has likely caused salamander extirpation at the most abundant location known historically. Between 1960 and 1999, nearly 1,000 salamanders were collected from the wild for scientific or educational purposes. The majority (738 salamanders) were collected between 1960 and 1979 (Painter 1999, p. 1). Since 1999, very few salamanders have been collected, and all were collected under a valid permit issued by either NMDGF or USFS. This species is difficult to maintain in captivity, and we know of no salamanders in the pet trade or in captivity for educational or scientific purposes.

In 1967, salamanders were only known from seven localities (Reagan 1967, p. 13). Only one of these localities (the “Type Locality”) was considered to have an abundant salamander population (Reagan 1967, p. 8). The species was originally described using specimens collected from this type locality within Unit 4 (Stebbins and Reimer 1950, pp. 73-80). Reagan (1967, p. 11) collected 165 salamanders from this locality between 1965 and 1967, whereas Williams collected an additional 67 of 659 salamanders found at this locality in 1970 (1972, p. 11). Although surveys have been conducted at this locality since the 1990s, no salamanders have been found, suggesting that salamanders in the area have likely been extirpated from overcollection. We are not aware of any other localities where the species has been extirpated from overcollection. Nevertheless, it is apparent that repeated collections of individuals can lead to extirpation. Still, we believe this is no longer a threat because collections are stringently regulated through permits issues by NMDGF and the USFS (see Factor D below). Additionally, due to these measures, we do not believe that collection will be a threat in the future.

Survey techniques can alter salamander habitat by disturbing and drying the areas underneath the objects that provide cover, and destroying decaying logs by searching inside them. Surveyors are now trained to replace cover objects as they were found and to leave part of every log intact; however, impacts still occur. When surveys are dispersed and there are multiple intervening years, impacts are likely lessened; however, when a location is repeatedly surveyed, habitat quality is diminished. We are aware of only a few locations that have received impacts from repeated surveys (e.g., Activity Plots).

We do not have any recent evidence of risks to the salamander from overutilization for commercial, recreational, scientific, or educational purposes, and we have no reason to believe this factor will become a threat to the species in the future. Therefore, based on a review of the available information, we find that overutilization for commercial, recreational, scientific, or educational purposes is not a threat to the salamander now or in the foreseeable future.

The petition did not present any information indicating that disease or predation threatens the salamander. Additionally, we have no information in our files that indicates that disease or predation are a threat to the salamander currently or likely to become a threat in the future.

The amphibian pathogenic fungus Batrachochytrium dendrobatidis ( Bd ) was found in a wild-caught salamander in 2003 (Cummer et al . 2005, p. 248). Batrachochytrium dendrobatidis causes the disease chytridiomycosis, whereby the Bd fungus attacks keratin in amphibians. In adult amphibians, keratin primarily occurs in the skin. The symptoms of chytridiomycosis can include sloughing of skin, lethargy, morbidity, and death. Chytridiomycosis has been linked with worldwide amphibian declines, die-offs, and extinctions, possibly in association with climate change (Pounds et al . 2006, p. 161). In New Mexico, Bd has caused significant population declines and local extirpations in the federally threatened Chiricahua leopard frog ( Lithobates [Rana] chiricahuensis ) (USFWS 2007, p. 14). It is also implicated in the decline of other leopard frogs and the disappearance of the boreal toad ( Bufo boreas ) from the State (NMDGF 2006, p. 13). Prior to the detection of Bd in the salamander, Bd was considered an aquatic pathogen (Longcore et al . 1999, p. 221; Cummer et al . 2005, p. 248). The salamander does not have an aquatic life stage and is strictly terrestrial; thus the mode of transmission of Bd remains unknown. It is possible that the fungus was transported by other amphibian species that utilize the same terrestrial habitat. Both the tiger salamander and the boreal chorus frog ( Pseudacris maculata ) are amphibians that have aquatic life stages and share terrestrial habitat with the salamander. In California, Bd has been present in wild populations of another strictly terrestrial salamander since 1973, without apparent population declines (Weinstein 2009, p. 653).

Cummer (2006, p. 2) reported that noninvasive skin swabs on 66 Jemez Mountains salamanders, 14 boreal chorus frogs, and 24 tiger salamanders from the Jemez Mountains were all negative for Bd . The observation of Bd in the salamander indicates that the species may be susceptible. However, virulence relative to the salamander remains unknown. Although Bd can be highly infectious and lethal, we have no information to suggest that the disease threatens the salamander currently or in the future. We intend to monitor the prevalence of Bd in the salamander using noninvasive skin swabs. Therefore, we do not find that disease or predations is currently a threat to the salamander, nor do we find it likely they will be so in the future.

One of the primary threats to the salamander is the loss, degradation, and fragmentation of habitat. As described below, existing regulatory mechanisms are not sufficient to protect the salamander or its habitat. New Mexico State law provides limited protection to the salamander. The salamander was reclassified by the State of New Mexico from threatened to endangered in 2005 (NMDGF 2005, p. 2). This designation provides protection under the New Mexico Wildlife Conservation Act of 1974 (i.e., State Endangered Species Act) (19 NMAC 33.6.8), but only prohibits direct take of species, except under issuance of a scientific collecting permit. The New Mexico Wildlife Conservation Act defines “take” or “taking” as harass, hunt, capture, or kill any wildlife or attempt to do so (17 NMAC 17.2.38). In other words, New Mexico State status as an endangered species only conveys protection from collection or intentional harm to the animals themselves. New Mexico State statutes do not address habitat protection, indirect effects, or other threats to these species. There is no formal consultation process to address the habitat requirements of the species or how a proposed action may affect the needs of the species. Because most of the threats to the species are from effects to habitat, protecting individuals will not ensure their long-term conservation and survival.

The New Mexico State statutes require the NMDGF to develop a recovery plan that will restore and maintain habitat for the species. Although the species does not have a finalized recovery plan, NMDGF has the authority to consider and recommend actions to mitigate potential adverse effects to the salamander during its review of development proposals. There is no requirement to follow the recommendations as seen during the construction and realignment of Highway 126, when NMDGF made recommendations, but none of the measures recommended were incorporated into the project design to limit impacts to the salamander or its habitat (New Mexico Game Commission 2006, pp. 12-13) (see Factor A. Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range section, above).

The NMEST Cooperative Management Plan and Conservation Agreement were completed in 2000 (see Previous Federal Actions section above). The goal of these non-regulatory documents was to “...provide guidance for the conservation and management of sufficient habitat to maintain viable populations of the species” (NMEST 2000, p. i.). However, they have been ineffective in preventing the ongoing loss of salamander habitat, and they are not expected to prevent further declines of the species. As discussed elsewhere, the intent of the agreement was to protect the salamander and its habitat on lands administered by the USFS; however, there have been projects that have negatively affected the species (e.g., State Highway 126 project) (WildEarth Guardians 2008, pp. 28-54). The Cooperative Management Plan and Conservation Agreement have been unable to prevent ongoing loss of habitat, and they are not expected to prevent further declines of the species. They do not provide adequate protection for the salamander or its habitat.

Under the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq. ) and the National Forest Management Act of 1976 (16 U.S.C. 1600 et seq. ), the USFS is directed to prepare programmatic-level management plans to guide long-term resource management decisions. Under this direction, the salamander has been on the Regional Forester's Sensitive Species List since 1990 (USFS 1990). The Regional Forester's Sensitive Species List policy is applied to projects implemented under the 1982 National Forest Management Act Planning Rule (49 FR 43026, September 30, 1982). All existing Plans continue to operate under the 1982 Planning Rule and all of its associated implementing regulations and policies.

The intent of the Regional Forester's sensitive species designation is to provide a proactive approach to conserving species, to prevent a trend toward listing under the Act, and to ensure the continued existence of viable, well-distributed populations. The USFS policy (FSM 2670.3) states that Biological Evaluations must be completed for sensitive species and signed by a journey-level biologist or botanist. The Santa Fe National Forest will continue developing biological evaluation reports and conducting analyses under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) for each project that will affect the salamander or its habitat. The Santa Fe National Forest is also preparing the Southwest Jemez Mountains Landscape Assessment that, if funded, may reduce the threat of severe wildland fire in Units 1 and 4 of the salamander's range over the next 10 years (USFS 2009c, p. 2). At this time, funding of this project is not certain, nor is it likely to address short-term risk of severe wildland fire. While the Regional Forester's sensitive species designation provides for consideration of the salamander during planning of activities, it does not preclude activities that may harm salamanders or their habitats on the Santa Fe National Forest.

Finally, populations of salamanders have been observed on Tribal lands, Los Alamos National Laboratory lands, the VCNP, and private lands. Los Alamos National Laboratory has committed to, whenever possible, retaining trees in order to maintain greater than 80 percent canopy cover, and avoiding activities that either compact soils or dry habitat (Los Alamos National Laboratory 2010, p. 7).

In summary, the salamander currently does not receive adequate regulatory protection through the USFS sensitive species designation, State regulations, or the guidelines provided in the Cooperative Management Plan and Conservation Agreement. Outside of the limited protection from collection and intentional harm through the New Mexico Wildlife Conservation Act, there are no State or Federal regulations providing specific protections for the salamander or its habitat on these areas.

The existing regulatory mechanisms are inadequate to ensure the species' long-term conservation and survival because they do not specifically prevent threats to its habitat. We believe this lack of effective regulatory protection will affect the overall ability of the species to persist into the future. In light of this information, we conclude that the existing regulatory mechanisms have been ineffective and inadequate at preventing actions that threaten the salamander and its habitat, and this is expected to continue into the foreseeable future.

Under Factor E, we considered whether the Jemez Mountains salamander is threatened by chemical use and climate conditions.

There is a potential for the salamander to be impacted by chemical use. Chemicals are used to suppress wildfire and for noxious weed control. Because the salamander has permeable skin, and breathes and carries out physiological functions with its skin, it may be susceptible if it comes in contact with fire retardants or herbicides. Many of these chemicals have not been assessed for effects to amphibians, and none have been assessed for effects to terrestrial amphibians. Therefore, we do not have enough information to determine whether chemical use threatens the salamander.

Prior to 2006 (71 FR 42797; July 28, 2006), fire retardant used by the USFS contained sodium ferrocyanide, which is highly toxic to fish and amphibians (Pilliod et al. 2003, p. 175). Fire retardant was used in salamander habitat for the Cerro Grande Fire (Unit 3), but we do not know the quantity or location of this effort (USFS 2001, p. 1). While sodium ferrocyanide is no longer used by USFS to suppress wildfire, similar retardants and foams may still contain ingredients that are toxic to the salamander. Beginning in 2010, the USFS will begin phasing out the use of ammonium sulfate because of its toxicity to fish and replacing it with ammonium phosphate (USFS 2009e, p. 1), which still may have adverse effects to the salamander. One of the ingredients of ammonium phosphate (a type of salt) appeared to have the greatest likelihood of adverse effects to terrestrial species assessed (birds and mammals) through ingestion (USFS/LABAT Environmental 2007, pp. 24-27), and in amphibians, salts can disrupt osmoregulation (regulation of proper water balance and osmotic or fluid pressure within tissues and cells). Currently, we do not have enough information to determine whether the chemicals within fire retardants or foams threaten the salamander. However, we will continue to evaluate whether these chemicals may be a threat to this species.

The USFS is in the process of completing an Environmental Impact Statement regarding the use of herbicides to manage noxious or invasive plants (Orr 2010, p. 2). Chemicals that could be used include 2,4,D; Clopyralid; Chorsulfuron; Dicamba; Glyphosate; Hexazinone; Imazapic; Imazapyr; Metasulfuron Methyl; Sulfometuron Methyl; Picloram; and Triclopyr (Orr 2010, p. 2). We reviewed the ecological risk assessments for these chemicals at http://www.fs.fed.us/foresthealth/pesticide/risk.shtml , but found few studies and data relative to amphibians. We found a single study for Sulfometuron Methyl conducted on the African clawed frog ( Xenopus laevis ) (an aquatic frog not native to the United States). This study resulted in alterations in limb and organ development and metamorphosis (Klotzbach and Durkin 2004, pp. 4-6, 4-7). The use of chemicals listed above by hand-held spot treatments or road-side spraying (Orr 2010, p. 2) in occupied salamander habitat could result in impacts to the salamander. Because of the lack of toxicological studies of these chemicals, we do not know if there is a threat to the salamander. However, we will continue to evaluate whether these chemicals are a threat to the salamander.

Climate conditions have contributed to the status of the salamander now and will continue to in the foreseeable future. Habitat drying affects salamander physiology, behavior, and persistence; will affect the occurrence of natural events such as fire, drought, and forest die-off; and will increase the risk of disease and infection. Trends in climate change and drought conditions have contributed to temperature increases in the Jemez Mountains, with a corresponding decrease in precipitation. Because the salamander is terrestrial, constrained in range, and isolated to the higher elevations of the Jemez Mountains, continued temperature increases and precipitation decreases could threaten the viability of the species over its entire range.

Climate simulations of Palmer Drought Severity Index (PSDI) (a calculation of the cumulative effects of precipitation and temperature on surface moisture balance) for the Southwest for the periods of 2006-2030 and 2035-2060 show an increase in drought severity with surface warming. Additionally, drought still increases during wetter simulations because of the effect of heat-related moisture loss (Hoerling and Eicheid 2007, p. 19). Annual mean precipitation is likely to decrease in the Southwest as well as the length of snow season and snow depth (International Panel on Climate Change (IPCC) 2007b, p. 887). Most models project a widespread decrease in snow depth in the Rocky Mountains and earlier snowmelt (IPCC 2007b, p. 891). Exactly how climate change will affect precipitation is less certain, because precipitation predictions are based on continental-scale general circulation models that do not yet account for land use and land cover change effects on climate or regional phenomena. Consistent with recent observations in climate changes, the outlook presented for the Southwest and New Mexico predict warmer, drier, drought-like conditions (Seager et al . 2007, p. 1181; Hoerling and Eischeid 2007, p. 19).

McKenzie et al . (2004, p. 893) suggest, based on models, that the length of the fire season will likely increase further and that fires in the western United States will be more frequent and more severe. In particular, they found that fire in New Mexico appears to be acutely sensitive to summer climate and temperature changes and may respond dramatically to climate warming.

Plethodontid salamanders have a low metabolic rate and relatively large energy stores (in tails) that provide the potential to survive long periods between unpredictable bouts of feeding (Feder 1983, p. 291). Despite these specializations, terrestrial salamanders must have sufficient opportunities to forage and build energy reserves for use during periods of inactivity. As salamander habitat warms and dries, the quality and quantity of habitat decreases along with the amount of time that salamanders could be surface active. Wiltenmuth (1997, pp. ii-122) concluded that the Jemez Mountains salamanders likely persist by utilizing moist microhabitats and they may be near their physiological limits relative to water balance and moist skin. During field evaluations, the species appeared to be in a dehydrated state. If the species has difficulty maintaining adequate skin moisture (e.g., see Wiltenmuth 1997, pp. ii-122), it will likely spend less time being active. As a result, energy storage, reproduction, and long-term persistence would be reduced.

Wiltenmuth (1997, p. 77) reported rates of dehydration and rehydration were greatest for the Jemez Mountains salamander compared to the other salamanders, and suggested greater skin permeability. While the adaptation to relatively quickly rehydrate and dehydrate may allow the salamander to more quickly rehydrate when moisture becomes available, it may also make it more susceptible and less resistant to longer dry times because it also quickly dehydrates. Dehydration affects the salamander by increasing heart rate, oxygen consumption, and metabolic rate (Whitford 1968, p. 249), thus increasing energy demand, limiting movements (Wiltenmuth 1997, p. 77), increasing concentration and storage of waste products (Duellman and Trueb 1986, p. 207), decreasing burst locomotion (stride length, stride frequency, and speed) (Wiltenmuth 1997, p.45), and sometimes causing death. Moisture-stressed salamanders prioritize hydration over all else, thereby reducing salamander survival and persistence. Additional impacts from dehydration could include increased predation because burst locomotion is impaired (which reduces ability to escape) and increased susceptibility to pathogens resulting from depressed immunity from physiological stress of dehydration. Any of these factors, alone or in combination, could lead either to the reduction or extirpation of salamander localities, especially in combination with the threats of habitat-altering activities, as discussed under Factor A. The IPCC (2007, pp. 12, 13) predicts that changes in the global climate system during the 21st century will very likely be larger than those observed during the 20th century. For the next 2 decades, a warming of about 0.2 °C (0.4 °F) per decade is projected (IPCC 2007, p. 12). The Nature Conservancy of New Mexico analyzed recent changes in New Mexico's climate. Parts I and II of a three-part series have been completed. In Part I, the time period 1961-1990 was used as the reference condition for analysis of recent departures (1991-2005; 2000-2005). This time period is consistent with the baseline used by National Oceanic and Atmospheric Administration and the IPCC for presenting 20 th -century climate anomalies and generating future projections (Enquist and Gori 2008, p. 9). In Part II, trends in climate water deficit (an indicator of biological moisture stress, or drying), snowpack, and timing of peak stream flows were assessed for the period of 1970-2006 (Enquist et al . 2008, p. iv). The Nature Conservancy of New Mexico concludes the following regarding climate conditions in New Mexico and the Jemez Mountains:

(1) Over 95 percent of New Mexico has experienced mean temperature increases; warming has been greatest in the Jemez Mountains (Enquist and Gori 2008, p. 16);

(2) 93 percent of New Mexico's watersheds have experienced increasing annual trends in moisture stress during 1970-2006, that is, they have become relatively drier (Enquist et al . 2008, p. iv);

(3) Snowpack has declined in 98 percent of sites analyzed in New Mexico; the Jemez Mountains has experienced significant declines in snowpack (Enquist et al . 2008, p. iv);

(4) Between 1980-2006, the timing of peak run-off from snowmelt occurred 2 days earlier than in the 1951-1980 period (Enquist et al . 2008, pp. 9, 25);

(5) The Jemez Mountains have experienced warmer and drier conditions during the 1991-2005 time period (Enquist and Gori 2008, pp. 16, 17, 23); and

(6) The Jemez Mountains ranked highest of 248 sites analyzed in New Mexico in climate exposure—a measure of mean temperature and mean precipitation departures (Enquist and Gori 2008, pp. 10, 22, 51-58).

Although the extent of warming likely to occur is not known with certainty at this time, the IPCC (2007a, p. 5) has concluded that the summer season will experience the greatest increase in warming in the Southwest (IPCC 2007b, p. 887). Temperature has strong effects on amphibian immune systems and may be an important factor influencing susceptibility of amphibians to pathogens (e.g., see Raffel et al . 2006, p. 819); thus increases in temperature in the Jemez Mountains have the potential to increase the salamander's susceptibility to disease and pathogens. As noted, we have no information that indicates disease threatens the salamander currently or in the future, but we intend to evaluate this further.

In summary, we find that current and future effects from warmer climate conditions in the Jemez Mountains could reduce the amount of suitable salamander habitat, reduce the time period when the species can be surface active, and increase the moisture demands and subsequent physiological stress on salamanders. Warming and drying trends in the Jemez Mountains currently threaten the species, and these threats are projected to continue into the foreseeable future.

As required by the Act, we conducted a review of the status of the species and considered the five factors in assessing whether the salamander is endangered or threatened throughout all or a significant portion of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by the salamander. We reviewed the petition, information available in our files, and other available published and unpublished information, and we consulted with salamander experts and other Federal, State, and tribal agencies.

On the basis of the best scientific and commercial information available, we find that the petitioned action to list the Jemez Mountains is warranted, due to a combination of risk of historical and current fire management practices, severe wildland fire, forest composition and structure conversions, post-fire rehabilitation treatments, forest management (including silvicultural practices), private residential development, roads, trails, habitat fragmentation, and recreation. The salamander may also be threatened by disease and chemical use. Some of these threats may be exacerbated by the current and projected effects of climate change, and we have determined that the current and projected effects from climate change directly threaten the salamander. The loss of one of the largest known populations, the documented modification of the habitat from fire exclusion, and severe wildland fire places this species at great risk. Cumulative threats to the salamander are not being adequately addressed through existing regulatory mechanisms. Because of the limited distribution of this endemic species and its lack of mobility, threats are likely to render the species at risk of extinction in the foreseeable future. We will make a determination on the status of the species as endangered or threatened when we prepare a proposed listing determination. However, as explained in more detail below, an immediate proposal of a regulation implementing this action is precluded by higher priority listing actions, and progress is being made to add or remove qualified species to or from the Lists of Endangered and Threatened Wildlife and Plants.

We reviewed the available information to determine if the existing and foreseeable threats render the species at risk of extinction now such that issuing an emergency regulation temporarily listing the species under section 4(b)(7) of the Act is warranted. We determined that issuing an emergency regulation temporarily listing the species is not warranted for this species at this time because, within the current distribution of the species throughout its range, there are at least some populations of the salamander that exist in relatively natural conditions that are unlikely to change in the short term. However, if at any time we determine that emergency listing of the salamander is warranted, we will initiate an emergency listing.

The Service adopted guidelines on September 21, 1983 (48 FR 43098), to establish a rational system for allocating available appropriations to the highest priority species when adding species to the Lists of Endangered or Threatened Wildlife and Plants or reclassifying threatened species to endangered status. The system places greatest importance on the immediacy and magnitude of threats, but also factors in the level of taxonomic distinctiveness by assigning priority in descending order to monotypic genera, full species, and subspecies (or equivalently, distinct population segments of vertebrates). As a result of our analysis of the best available scientific and commercial information, we assigned the Jemez Mountains salamander a listing priority number (LPN) of 2, based on our finding that the species faces imminent and high-magnitude threats from the present or threatened destruction, modification, or curtailment of its habitat and the inadequacy of existing regulatory mechanisms. The salamander and its habitat are threatened by historical and current fire management practices; severe wildland fire; forest composition and structure conversions; post-fire rehabilitation; forest management (including silvicultural practices); private (residential) development; roads, trails, and habitat fragmentation; and recreation. Due to the limited extent of habitat occupied by the salamander, the severity and magnitude of the threat of severe wildland fire, and ongoing impacts from the existing extensive road network and previous logging practices, we have determined that the present or threatened destruction, modification, or curtailment of habitat and range represents a current significant threat to the salamander. Existing regulatory mechanisms are inadequate to ensure the species' long-term conservation and survival because they do not specifically prevent threats to its habitat. One or more of the threats discussed above is occurring or is expected to occur throughout the entire range of this species. These threats are ongoing and, in some cases (e.g., loss of habitat through forest management), considered irreversible. While we conclude that listing the Jemez Mountains salamander is warranted, an immediate proposal to list this species is precluded by other higher priority listings, which we address below.

The Act defines an endangered species as one “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as one “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The term “significant portion of its range” is not defined by the statute. For the purposes of this finding, a significant portion of a species' range is an area that is important to the conservation of the species because it contributes meaningfully to the representation, resiliency, or redundancy of the species. The contribution must be at a level such that its loss would result in a decrease in the ability to conserve the species.

If an analysis of whether a species is endangered or threatened in a significant portion of its range is appropriate, we engage in a systematic process that begins with identifying any portions of the range of the species that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose in analyzing portions of the range that are not reasonably likely to be significant and endangered or threatened. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that (i) the portions may be significant and (ii) the species may be in danger of extinction there or likely to become so within the foreseeable future. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the range that are unimportant to the conservation of the species, such portions will not warrant further consideration.

On the basis of an analysis of factors that may threaten the Jemez Mountains salamander, we have determined that listing is warranted throughout its range. Therefore, it is not necessary to conduct further analysis with respect to the significance of any portion of its range at this time. We will further analyze whether threats may be disproportionate and warrant further consideration as a significant portion of the species' range when we develop a proposed listing determination.

Preclusion is a function of the listing priority of a species in relation to the resources that are available and competing demands for those resources. Thus, in any given fiscal year (FY), multiple factors dictate whether it will be possible to undertake work on a proposed listing regulation or whether promulgation of such a proposal is warranted but precluded by higher priority listing actions.

The resources available for listing actions are determined through the annual Congressional appropriations process. The appropriation for the Listing Program is available to support work involving the following listing actions: Proposed and final listing rules; 90-day and 12-month findings on petitions to add species to the Lists of Endangered and Threatened Wildlife and Plants (Lists) or to change the status of a species from threatened to endangered; annual determinations on prior “warranted but precluded” petition findings as required under section 4(b)(3)(C)(i) of the Act; critical habitat petition findings; proposed and final rules designating critical habitat; and litigation-related, administrative, and program-management functions (including preparing and allocating budgets, responding to Congressional and public inquiries, and conducting public outreach regarding listing and critical habitat). The work involved in preparing various listing documents can be extensive and may include, but is not limited to: Gathering and assessing the best scientific and commercial data available and conducting analyses used as the basis for our decisions; writing and publishing documents; and obtaining, reviewing, and evaluating public comments and peer review comments on proposed rules and incorporating relevant information into final rules. The number of listing actions that we can undertake in a given year also is influenced by the complexity of those listing actions; that is, more complex actions generally are more costly. For example, during the past several years, the cost (excluding publication costs) for preparing a 12-month finding, without a proposed rule, has ranged from approximately $11,000 for one species with a restricted range and involving a relatively uncomplicated analysis to $305,000 for another species that is wide-ranging and involving a complex analysis.

We cannot spend more than is appropriated for the Listing Program without violating the Anti-Deficiency Act (see 31 U.S.C. 1341(a)(1)(A)). In addition, in FY 1998 and for each fiscal year since then, Congress has placed a statutory cap on funds which may be expended for the Listing Program, equal to the amount expressly appropriated for that purpose in that fiscal year. This cap was designed to prevent funds appropriated for other functions under the Act (for example, recovery funds for removing species from the Lists), or for other Service programs, from being used for Listing Program actions (see House Report 105-163, 105 th Congress, 1st Session, July 1, 1997).

Recognizing that designation of critical habitat for species already listed would consume most of the overall Listing Program appropriation, Congress also put a critical habitat subcap in place in FY 2002 and has retained it each subsequent year to ensure that some funds are available for other work in the Listing Program: “The critical habitat designation subcap will ensure that some funding is available to address other listing activities” (House Report No. 107 - 103, 107 th Congress, 1st Session, June 19, 2001). In FY 2002 and each year until FY 2006, the Service has had to use virtually the entire critical habitat subcap to address court-mandated designations of critical habitat, and consequently none of the critical habitat subcap funds have been available for other listing activities. In FY 2007, we were able to use some of the critical habitat subcap funds to fund proposed listing determinations for high-priority candidate species. In FY 2009, while we were unable to use any of the critical habitat subcap funds to fund proposed listing determinations, we did use some of this money to fund the critical habitat portion of some proposed listing determinations so that the proposed listing determination and proposed critical habitat designation could be combined into one rule, thereby being more efficient in our work. In FY 2010, we are using some of the critical habitat subcap funds to fund actions with statutory deadlines.

Thus, through the listing cap, the critical habitat subcap, and the amount of funds needed to address court-mandated critical habitat designations, Congress and the courts have in effect determined the amount of money available for other listing activities. Therefore, the funds in the listing cap, other than those needed to address court-mandated critical habitat for already listed species, set the limits on our determinations of preclusion and expeditious progress.

Congress also recognized that the availability of resources was the key element in deciding, when making a 12-month petition finding, whether we would prepare and issue a listing proposal or instead make a “warranted but precluded” finding for a given species. The Conference Report accompanying Public Law 97-304, which established the current statutory deadlines and the warranted-but-precluded finding, states (in a discussion on 90-day petition findings that by its own terms also covers 12-month findings) that the deadlines were “not intended to allow the Secretary to delay commencing the rulemaking process for any reason other than that the existence of pending or imminent proposals to list species subject to a greater degree of threat would make allocation of resources to such a petition [that is, for a lower-ranking species] unwise.”

In FY 2010, expeditious progress is that amount of work that can be achieved with $10,471,000, which is the amount of money that Congress appropriated for the Listing Program (that is, the portion of the Listing Program funding not related to critical habitat designations for species that are already listed). However these funds are not enough to fully fund all our court-ordered and statutory listing actions in FY 2010, so we are using $1,114,417 of our critical habitat subcap funds in order to work on all of our required petition findings and listing determinations. This brings the total amount of funds we have for listing actions in FY 2010 to $11,585,417. Our process is to make our determinations of preclusion on a nationwide basis to ensure that the species most in need of listing will be addressed first and also because we allocate our listing budget on a nationwide basis. The $11,585,417 is being used to fund work in the following categories: compliance with court orders and court-approved settlement agreements requiring that petition findings or listing determinations be completed by a specific date; section 4 (of the Act) listing actions with absolute statutory deadlines; essential litigation-related, administrative, and listing program-management functions; and high-priority listing actions for some of our candidate species. In 2009, the responsibility for listing foreign species under the Act was transferred from the Division of Scientific Authority, International Affairs Program, to the Endangered Species Program. Starting in FY 2010, a portion of our funding is being used to work on the actions described above as they apply to listing actions for foreign species. This has the potential to further reduce funding available for domestic listing actions, although there are currently no foreign species issues included in our high-priority listing actions at this time. The allocations for each specific listing action are identified in the Service's FY 2010 Allocation Table (part of our administrative record).

In FY 2007, we had more than 120 species with an LPN of 2, based on our September 21, 1983, guidance for assigning an LPN for each candidate species (48 FR 43098). Using this guidance, we assign each candidate an LPN of 1 to 12, depending on the magnitude of threats (high vs. moderate to low), immediacy of threats (imminent or nonimminent), and taxonomic status of the species (in order of priority: monotypic genus (a species that is the sole member of a genus); species; or part of a species (subspecies, distinct population segment, or significant portion of the range)). The lower the listing priority number, the higher the listing priority (that is, a species with an LPN of 1 would have the highest listing priority). Because of the large number of high-priority species, we further ranked the candidate species with an LPN of 2 by using the following extinction-risk type criteria: International Union for the Conservation of Nature and Natural Resources (IUCN) Red list status/rank, Heritage rank (provided by NatureServe), Heritage threat rank (provided by NatureServe), and species currently with fewer than 50 individuals, or 4 or fewer populations. Those species with the highest IUCN rank (critically endangered), the highest Heritage rank (G1), the highest Heritage threat rank (substantial, imminent threats), and currently with fewer than 50 individuals, or fewer than 4 populations, comprised a group of approximately 40 candidate species (“Top 40”). These 40 candidate species have had the highest priority to receive funding to work on a proposed listing determination. As we work on proposed and final listing rules for these 40 candidates, we are applying the ranking criteria to the next group of candidates with an LPN of 2 and 3 to determine the next set of highest priority candidate species.

To be more efficient in our listing process, as we work on proposed rules for these species in the next several years, we are preparing multi-species proposals when appropriate, and these may include species with lower priority if they overlap geographically or have the same threats as a species with an LPN of 2. In addition, available staff resources are also a factor in determining high-priority species provided with funding. Finally, proposed rules for reclassification of threatened species to endangered are lower priority, since as listed species, they are already afforded the protection of the Act and implementing regulations.

We assigned the Jemez Mountains salamander an LPN of 2, based on our finding that the species faces immediate and high magnitude threats from the present or threatened destruction, modification, or curtailment of its habitat; predation; and the inadequacy of existing regulatory mechanisms. One or more of the threats discussed above are occurring in each known population in the United States. These threats are ongoing and, in some cases (e.g., nonnative species), considered irreversible. Under our 1983 Guidelines, a “species” facing imminent high-magnitude threats is assigned an LPN of 1, 2, or 3 depending on its taxonomic status. Because the Jemez Mountains salamander is a species, we assigned it an LPN of 2 (the highest category available for a species). Therefore, work on a proposed listing determination for the Jemez Mountains salamander is precluded by work on higher priority candidate species; listing actions with absolute statutory, court ordered, or court-approved deadlines; and final listing determinations for those species that were proposed for listing with funds from previous fiscal years. This work includes all the actions listed in the tables below under expeditious progress.

As explained above, a determination that listing is warranted but precluded must also demonstrate that expeditious progress is being made to add or remove qualified species to and from the Lists of Endangered and Threatened Wildlife and Plants. (Although we do not discuss it in detail here, we are also making expeditious progress in removing species from the Lists under the Recovery program, which is funded by a separate line item in the budget of the Endangered Species Program. As explained above in our description of the statutory cap on Listing Program funds, the Recovery Program funds and actions supported by them cannot be considered in determining expeditious progress made in the Listing Program.) As with our “precluded” finding, expeditious progress in adding qualified species to the Lists is a function of the resources available and the competing demands for those funds. Given that limitation, we find that we are making progress in FY 2010 in the Listing Program. This progress included preparing and publishing the following determinations:

Our expeditious progress also includes work on listing actions that we funded in FY 2010 but have not yet been completed to date. These actions are listed below. Actions in the top section of the table are being conducted under a deadline set by a court. Actions in the middle section of the table are being conducted to meet statutory timelines, that is, timelines required under the Act. Actions in the bottom section of the table are high-priority listing actions. These actions include work primarily on species with an LPN of 2, and selection of these species is partially based on available staff resources, and when appropriate, include species with a lower priority if they overlap geographically or have the same threats as the species with the high priority. Including these species together in the same proposed rule results in considerable savings in time and funding, as compared to preparing separate proposed rules for each of them in the future.

We have endeavored to make our listing actions as efficient and timely as possible, given the requirements of the relevant law and regulations, and constraints relating to workload and personnel. We are continually considering ways to streamline processes or achieve economies of scale, such as by batching related actions together. Given our limited budget for implementing section 4 of the Act, these actions described above collectively constitute expeditious progress.

The Jemez Mountains salamander will be added to the list of candidate species upon publication of this 12-month finding. We will continue to monitor the status of this species as new information becomes available. This review will determine if a change in status is warranted, including the need to make prompt use of emergency listing procedures.

We intend that any proposed listing action for the Jemez Mountains salamander will be as accurate as possible. Therefore, we will continue to accept additional information and comments from all concerned governmental agencies, the scientific community, industry, or any other interested party concerning this finding.

A complete list of all references is available on the Internet at http://www.regulations.gov or upon request from the Field Supervisor, New Mexico Ecological Services Field Office (see ADDRESSES section).

The primary authors of this rule are the staff members of the New Mexico Ecological Services Office.

The authority for this section is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).