Proposed Rules. Re-opening of comment period

24,177 words·~110 min read·/register/2006/09/12/06-7587

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 4910-15-M DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [USCG-2006-25767; CGD09-06-123] RIN 1625-AA00 Safety Zones; U.S. Coast Guard Water Training Areas, Great Lakes AGENCY: Coast Guard, DHS. ACTION: Re-opening of comment period. SUMMARY: In response to public requests, the Coast Guard is re-opening the comment period on its notice of proposed rulemaking

(NPRM)to establish permanent safety zones throughout the Great Lakes to conduct live fire gun exercises. These safety zones are necessary to protect the public from the hazards associated with the firing of weapons and to ensure the operational readiness of Coast Guard personnel, cutters and small boats. Re-opening the comment period will provide the public more time to submit comments and recommendations. DATES: Comments and related materials must reach the Coast Guard on or before November 13, 2006. ADDRESSES: To make sure your comments and related material are not entered more than once in the docket, please submit them by only one of the following means:

(1)By mail to the Docket Management Facility (USCG-2006-2567), U.S. Department of Transportation, room PL-401, 400 SW., Washington, DC 20590-0001.

(2)By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal Holidays. The telephone number is 202-366-9329.

(3)By fax to the Docket Management Facility at 202-493-2251.

(4)Electronically through the Web site for the Docket Management System at *http://dms.dot.gov.* The Docket Management Facility maintains the public docket for the rulemaking. Comments will become part of this docket and will be available for inspection or copying at room PL-401, located on the Plaza level of the Nassif Building at the same address between 10 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may electronically access the public docket on the Internet at *http://dms.dot.gov.* FOR FURTHER INFORMATION CONTACT: For information on the NPRM provisions contact Commander Gustav Wulfkuhle, Enforcement Branch, Response Division, Ninth Coast Guard District, Cleveland, Ohio at 216-902-6091. For questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-493-0402. SUPPLEMENTARY INFORMATION: Background and Purpose On August 1, 2006, the Coast Guard published a notice of proposed rulemaking (NPRM)(71 FR 43402) to establish permanent safety zones throughout the Great Lakes to conduct live fire gun exercises. The initial comment period for this NPRM ended on August 31, 2006. In response to public requests, the Coast Guard is re-opening the comment period on this NPRM. Re-opening the comment period will provide the public more time to submit comments and recommendations. In addition, the Coast Guard has added a copy of the “Preliminary Health Risk Assessment for Proposed U.S. Coast Guard Weapons Training Exercises” (January 2006) to the docket in order to better inform the public that the proposed training will pose no elevated health or ecological risks in the Great Lakes. Request for Comments The Coast Guard encourages you to submit comments and related materials. If you submit a comment, please include your name and address, identify the NPRM [USCG-2006-2567 (formerly CGD09-06-123)]; published in the **Federal Register** on August 1, 2006 (71 FR 43402) and indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit one copy of all comments and attachments in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing to the DOT Docket Management Facility at the address under ADDRESSES . If you submit them by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope. The Coast Guard will consider all comments received during the comment period. It may change the proposed rules in view of the comments. Dated: September 1, 2006. John E. Crowley, Jr., Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District. [FR Doc. E6-15109 Filed 9-11-06; 8:45 am] BILLING CODE 4910-15-P ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD 36 CFR Parts 1193 and 1194 [Docket No. 2006-1] Telecommunications Act Accessibility Guidelines; Electronic and Information Technology Accessibility Standards AGENCY: Architectural and Transportation Barriers Compliance Board. ACTION: Notice of meeting. SUMMARY: The Architectural and Transportation Barriers Compliance Board (Access Board) has established a Telecommunications and Electronic and Information Technology Advisory Committee to assist it in revising and updating accessibility guidelines for telecommunications products and accessibility standards for electronic and information technology. This notice announces the dates, time, and location of the first Committee meeting, which will be open to the public. DATES: The meeting is scheduled for September 27, 2006 (beginning at 1 p.m. and ending at 5 p.m.), September 28, 2006 (beginning at 9 a.m. and ending at 5 p.m.) and September 29, 2006 (beginning at 9 a.m. and ending at 3:30 p.m.). Decisions with respect to future meetings will be made at the first meeting and from time to time thereafter. Notices of future meetings will be published in the **Federal Register.** ADDRESSES: The meeting will be held at the National Science Foundation, Room II-555, 4201 Wilson Boulevard, Arlington, VA. FOR FURTHER INFORMATION CONTACT: Timothy Creagan, Office of Technical and Information Services, Architectural and Transportation Barriers Compliance Board, 1331 F Street, NW., suite 1000, Washington, DC 20004-1111. Telephone number

(202)272-0016 (Voice);

(202)272-0082 (TTY). Electronic mail address: *creagan@access-board.gov.* SUPPLEMENTARY INFORMATION: On July 6, 2006 the Architectural and Transportation Barriers Compliance Board (Access Board) published a notice establishing the Telecommunications and Electronic and Information Technology Advisory Committee (Committee) (71 FR 38324, July 6, 2006). The committee will provide recommendations for revisions and updates to accessibility guidelines for telecommunications products and accessibility standards for electronic and information technology. Forty organizations were appointed as members of the Committee. After the notice was published, it came to our attention that the application from the Japanese Standards Association, which had been timely received, had been overlooked. As a result, Access Board Chairman David Bibb has added the Japanese Standards Association as a committee member. We apologize for this oversight. Additionally, on July 26, 2006, the Access Board Chairman announced the appointment of Mike Paciello and Jim Tobias as co-chairs of the advisory committee. Mr. Paciello is the Founder and Principal of the Paciello Group from Nashua, New Hampshire and Mr. Tobias is the Principal of Inclusive Technologies from Matawan, New Jersey. Over 120 organizations applied to serve on the committee. In order to keep the Committee to a size that can be effective, it was necessary to limit membership. It is also important to have balance among members of the Committee representing different clusters of interest, such as disability organizations and the technology industry. Some organizations that were not accepted have asked that their applications be reconsidered. Additionally, some organizations learned about the committee too late to submit an application. On Thursday, September 28 (at approximately 2:30 p.m.) there will be time set aside on the agenda to discuss additional committee applicants. Organizations seeking to be added to the committee are encouraged to contact Timothy Creagan prior to the meeting (see FOR FURTHER INFORMATION CONTACT above). A draft meeting agenda and other information about the Committee are available on the Access Board's Web site at *http://www.access-board.gov/sec508/update-index.htm.* Committee meetings are open to the public and interested persons can attend the meetings and communicate their views. Members of the public will have an opportunity to address the Committee on issues of interest to them and the Committee during public comment periods scheduled on each day of the meeting. Members of groups or individuals who are not members of the Committee are invited to participate on subcommittees that will be formed. The Access Board believes that participation of this kind can be very valuable for the advisory committee process. The meeting site is accessible to individuals with disabilities. Sign language interpreters and real-time captioning will be provided. Individuals who require other accommodations should contact Timothy Creagan by September 20, 2006 (see FOR FURTHER INFORMATION CONTACT above). Persons attending Committee meetings are requested to refrain from using perfume, cologne, and other fragrances for the comfort of other participants. Due to security measures at the National Science Foundation, members of the public should notify Timothy Creagan of their intent to attend the meeting (see FOR FURTHER INFORMATION CONTACT above). This will ensure that a name badge is available at the National Science Foundation check-in desk to facilitate efficient building entry and will enable the Board to provide additional information about mandatory technology screening processes which the National Science Foundation requires. James J. Raggio, General Counsel. [FR Doc. E6-15061 Filed 9-11-06; 8:45 am] BILLING CODE 8150-01-P ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD 36 CFR Part 1195 [Docket No. 2004-1] RIN 3014-AA11 Americans With Disabilities Act

(ADA)Accessibility Guidelines for Passenger Vessels AGENCY: Architectural and Transportation Barriers Compliance Board. ACTION: Reopening of comment period. SUMMARY: The Architectural and Transportation Barriers Compliance Board (Access Board) had placed in the docket and on its Web site for public review and comment draft guidelines on accessibility for passenger vessels which are permitted to carry more than 150 passengers or more than 49 overnight passengers, all ferries regardless of size and passenger capacity, and certain tenders which carry 60 or more passengers. The comment period closed on September 5, 2006. This document reopens the comment period for an additional 60 days. DATES: Comments on the draft guidelines must be received by November 13, 2006. Late comments will be considered to the extent practicable. ADDRESSES: You may submit comments on the draft guidelines, identified by Docket No. 2004-1, by any of the following methods: *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. *E-mail: pvag@access-board.gov.* Include Docket No. 2004-1 in the subject line of the message. *Fax:*

(202)272-0081. *Mail or Hand Delivery:* Office of Technical and Information Services, Architectural and Transportation Barriers Compliance Board, 1331 F Street NW., suite 1000, Washington, DC 20004-1111. Comments will be available for inspection at the above address from 9 a.m. to 5 p.m. on regular business days. FOR FURTHER INFORMATION CONTACT: Paul Beatty, Office of Technical and Information Services, Architectural and Transportation Barriers Compliance Board, 1331 F Street, NW., suite 1000, Washington DC 20004-1111. Telephone number

(202)272-0012 (voice);

(202)272-0082 (TTY); Electronic mail address: *pvag@access-board.gov.* SUPPLEMENTARY INFORMATION: On July 7, 2006, the Architectural and Transportation Barriers Compliance Board (Access Board) placed in the docket and on its Web site for public review and comment draft guidelines which address accessibility to and in passenger vessels which are permitted to carry more than 150 passengers or more than 49 overnight passengers. (71 FR 38563, July 7, 2006). In addition, the draft addresses all ferries regardless of size and passenger capacity, and certain tenders which carry 60 or more passengers. The comment period closed on September 5, 2006. The Board received two requests for an extension of the comment period from the passenger vessel industry to further review the detailed guidelines and provide in-depth comments. As a result, the Board has reopened the time for filing comments by an additional 60 days. The Board believes that the extension of time for comments will give the public a better opportunity to provide input on the draft guidelines. James J. Raggio, General Counsel. [FR Doc. E6-15062 Filed 9-11-06; 8:45 am] BILLING CODE 8150-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 49 [EPA-R09-OAR-2006-0184; FRL-8218-5] Source-Specific Federal Implementation Plan for Four Corners Power Plant; Navajo Nation AGENCY: Environmental Protection Agency. ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency

(EPA)proposes to promulgate a source-specific Federal Implementation Plan

(FIP)to regulate emissions from the Four Corners Power Plant (FCPP), a coal-fired power plant located on the Navajo Indian Reservation near Farmington, New Mexico. DATES: Any comments on this proposal must arrive by November 6, 2006. ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-2006-0184, by one of the following methods:

(1)*Federal eRulemaking portal: http://www.regulations.gov.* Follow the on-line instructions.

(2)*E-mail: rosen.rebecca@epa.gov.*

(3)*Mail or deliver:* Rebecca Rosen (AIR-2), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. *Instructions:* All comments will be included in the public docket without change and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through the *www.regulations.gov* or e-mail. *www.regulations.gov* is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. *Docket:* The index to the docket for this action is available electronically at *www.regulations.gov* and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location ( *e.g.* , copyrighted material), and some may not be publicly available in either location ( *e.g.* , CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Rebecca Rosen, EPA Region IX,

(415)947-4152, *rosen.rebecca@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us” and “our” refer to EPA. Table of Contents I. Background A. Action B. Facility C. Attainment Status D. Historical Overview of FCPP FIP Actions II. Basis for Proposed Action A. EPA's Authority to Promulgate a FIP in Indian Country B. Relation to Regional Haze Rule III. Four Corners Power Plant Facility Description IV. Summary of FIP provisions A. Proposed FIP Standards B. Other Requirements C. Compliance Schedule V. Solicitation of Comments VI. Administrative Requirements A. Executive Order 12866 B. Regulatory Flexibility Act C. Unfunded Mandates Reform Act D. Paperwork Reduction Act E. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks F. Executive Order 12875: Enhancing the Intergovernmental Partnership G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments H. National Technology Transfer and Advancement Act I. Background A. Action In today's action, EPA proposes to promulgate a FIP to establish federally enforceable emissions limitations for sulfur dioxide (SO 2 ), nitrogen oxides (NO X ), and total particulate matter

(PM)applicable to the FCPP. The FIP also proposes federally enforceable emissions limitations for opacity and control measures for dust. B. Facility FCPP is a privately owned and operated coal-fired power plant located on the Navajo Indian Reservation near Farmington, New Mexico. Based on lease agreements signed in 1960, FCPP was constructed and has been operating on real property held in trust by the Federal government for the Navajo Nation. The facility consists of five coal-fired electric utility steam generating units with a total capacity in excess of 2000 megawatts (MW). C. Attainment Status FCPP is located in the Four Corners Interstate air quality control region (AQCR), which is designated attainment for all criteria pollutants under the Clean Air Act (CAA or “the Act”). See 40 CFR 81.332. The proposed FCPP FIP establishes federally enforceable emissions limitations that are more stringent than, or at least as stringent as, the emissions limitations with which FCPP has historically complied. Therefore, EPA believes that air quality in this area will be positively impacted by this action. D. Historical Overview of FCPP FIP Actions When the Clean Air Act was amended in 1990, Congress included a new provision, Section 301(d), granting EPA authority to treat Tribes in the same manner as States where appropriate. See 40 U.S.C. 7601(d). In 1998, EPA promulgated regulations known as the Tribal Authority Rule (TAR). See 40 CFR parts 9, 35, 49, 50 & 81, 63 FR 7254 (February 12, 1998). EPA's promulgation of the TAR clarified, among other things, that State air quality regulations generally do not, under the Clean Air Act, apply to facilities located anywhere within the exterior boundaries of Indian reservations. See 63 FR at 7254, 7258 (noting that unless a state has explicitly demonstrated its authority and been expressly approved by EPA to implement Clean Air Act programs in Indian country, EPA is the appropriate entity to implement Clean Air Act programs prior to tribal primacy), *Arizona Public Service Company* v. *E.P.A.,* 211 F.3d 1280 (DC Cir. 2000), *cert. denied sub nom, Michigan* v. *E.P.A.,* 532 U.S. 970

(2001)(upholding the TAR), see also *Alaska* v. *Native Village of Venetie Tribal Government,* 533 U.S. 520, 526 n.1

(1998)(primary jurisdiction over Indian country generally lies with Federal government and tribes, not with states). Prior to the addition of Section 301(d) and promulgation of the TAR, some States had mistakenly included emissions limitations in their State Implementation Plans

(SIPs)which they believed could apply to private facilities operating on adjacent Indian reservations. Such was the case for FCPP. The State Implementation Plan for New Mexico contained emissions limitations purported to apply to FCPP and with which FCPP was complying. EPA recognized that New Mexico's SIP emissions limits could not apply to FCPP, and on September 8, 1999, EPA proposed a source-specific FIP for the FCPP. See 64 FR 48731 (September 8, 1999). The 1999 proposed FIP stated: “Although the facility has been historically regulated by New Mexico since its construction, the state lacks jurisdiction over the facility or its owners or operations for CAA compliance or enforcement purposes.” See 64 FR 48733. EPA intended for the 1999 FCPP FIP to “federalize” the emissions limitations that New Mexico had erroneously included in its State Implementation Plan. *Id.* at 64 FR 48736. EPA received comments on the proposed 1999 FIP but did not take action finalizing the proposal. Since EPA's 1999 FIP proposal, Arizona Public Service (APS), the operating agent for FCPP, has been in negotiation with the Navajo Nation, EPA Region IX, the Environmental Defense, New Mexico Citizens for Clean Air and Water, Western Resources Advocates, and the National Park Service. Recently, APS agreed to install emission control devices and take other measures to significantly reduce the amount of SO 2 that will be emitted from its various boilers. Today's FIP proposal, therefore, establishes a significantly lower emission limit for SO 2 than the one set forth in the 1999 proposed FIP, and also promulgates federally enforceable emissions limits for PM and NO X . EPA is also proposing to establish an emissions limitation for opacity and a requirement for control measures to limit dust emissions. NO X emissions are also further limited by the Federal Acid Rain Program. FCPP is subject to a plantwide averaging plan limit of 0.62 pounds per million British thermal unit (lbs/MMbtu) for NO X . II. Basis for Proposed Action A. EPA's Authority To Promulgate a FIP in Indian Country As mentioned above, States generally lack authority to administer Clean Air Act programs in Indian country. *See Alaska* v. *Native Village of Venetie Tribal Government,* 533 U.S. 520, 526 n.1 (1998). In the preamble to the proposed and final 1998 TAR, EPA discusses generally the legal basis under the CAA by which EPA is authorized to regulate sources of air pollution in Indian country. See 59 FR 43956; 63 FR 7253. EPA concluded that the CAA authorizes EPA to protect air quality throughout Indian country. See 63 FR 7262; 59 FR 43960-43961 (citing, among other things, to CAA sections 101(b)(1), 301(a), and 301(d)). In fact, in promulgating the TAR, EPA specifically provided that, pursuant to the discretionary authority explicitly granted to EPA under sections 301(a) and 301(d)(4) of the Act, EPA “[s]hall promulgate without unreasonable delay such Federal implementation plan provisions as are necessary or appropriate to protect air quality, consistent with the provisions of sections 304(a) [sic] and 301(d)(4), if a tribe does not submit a tribal implementation plan meeting the completeness criteria of 40 CFR part 51, Appendix V, or does not receive EPA approval of a submitted tribal implementation plan.” See 63 FR at 7273 (codified at 40 CFR 49.11(a)). 1 1 In the preamble to the final TAR, EPA explained that it was inappropriate to treat Tribes in the same manner as States with respect to section 110(c) of the Act, which directs EPA to promulgate a FIP within two years after EPA finds a state has failed to submit a complete state plan or within two years after EPA disapproval of a state plan. Although EPA is not required to promulgate a FIP within the two-year period for Tribes, EPA promulgated 40 CFR 49.11(a) to clarify that EPA will continue to be subject to the basic requirement to issue any necessary or appropriate FIP provisions for affected tribal areas within some reasonable time. See 63 FR 7264-7265. Since there is not currently an approved Implementation Plan covering FCPP, a regulatory gap exists with regard to this facility. EPA is thus proposing to remedy this gap with a source-specific FIP. This FIP will establish federally enforceable emissions limits for SO 2 , NO X , PM, and opacity, and control measures for dust. Therefore, in this proposed FIP, EPA is exercising its discretionary authority under sections 301(a) and 301(d)(4) of the CAA and 40 CFR 49.11(a) to promulgate a FIP to remedy an existing regulatory gap under the Act with respect to FCPP to provide for maintenance of the national ambient air quality standards and to advance the goal of visibility protection. Given the magnitude of the emissions from the plant, EPA believes that the proposed FIP provisions are necessary or appropriate to protect air quality on the Reservation. B. Relation to Regional Haze Rule The Clean Air Act defines sources potentially subject to Best Available Retrofit Technology

(BART)as major stationary sources with the potential to emit greater than 250 tons or more of any pollutant, and which were placed into operation between 1962 and 1977. See Clean Air Act sections 169(A)(b)(2)(A) and (g)(7). EPA promulgated regulations addressing regional haze in 1999. 64 FR 35714 (July 1, 1999), codified at 40 CFR part 51, subpart P. These regulations require all States to submit implementation plans that, among other measures, contain either emission limits representing BART for certain sources constructed between 1962 and 1977, or alternative measures that provide for greater reasonable progress than BART. 40 CFR 51.308(e). As explained in the regional haze rulemaking, Tribes are not required to submit regional haze implementation plans but they may seek approval to develop a regional haze program under 40 CFR part 49. 64 FR at 35759. EPA noted that pursuant to its authority under section 301(d)(4) of the CAA, EPA will promulgate FIPs within reasonable timeframes to protect air quality in Indian country and take on the responsibility of meeting the requirements of the regional haze rule consistent with the provisions of 40 CFR 49.11(a). *Id.* EPA notes that there are only two major sources of SO 2 on the Navajo Reservation that are potentially subject to the BART requirements under the regional haze rule at 40 CFR 51.308. As explained in a companion notice published elsewhere in this **Federal Register** , Navajo Generating Station (NGS), is at this time already required to meet an SO 2 limit of 0.1 lb/MMbtu, which requires a greater than 90% reduction in SO 2 emissions through the use of wet scrubbers. The wet scrubbers for NGS are new scrubbers that came on-line between 1997 and 1999 for the three units at the source. APS, in partnership with the Navajo Nation, several environmental groups and Federal agencies, conducted a test program to determine if the efficiency of the existing scrubbers at FCPP could be improved from the recent historical level of 72% SO 2 removal to 85%. The test program, which was completed in spring of 2005, was successful and the plant was able to achieve a plant-wide annual SO 2 removal of 88%. The parties involved in the test program have agreed that this rule should propose to require 88% efficiency for the FCPP. EPA believes that the SO 2 controls proposed today for FCPP are close to or the equivalent of a regional haze BART determination for SO 2 . For example, the BART Guidelines published by EPA in 2005 establish a presumption for the control of SO 2 from uncontrolled large utility boilers of either 95% control or 0.15 lbs/MMBtu, but suggest that for electric generating units with pre-existing post-combustion SO 2 controls of at least 50% removal efficiency, States consider cost effective scrubber upgrades designed to improve the system's overall SO 2 removal efficiency. 70 FR 39104, 39171 (July 6, 2005). The conclusion that the SO 2 controls proposed today are close to or the equivalent of BART takes into consideration not only the BART Guidelines but also the early reductions for Regional Haze that this action will achieve through the modifications to the existing SO 2 scrubbers. As explained in today's companion notice for NGS published elsewhere in this **Federal Register** , EPA previously determined that the SO 2 emission limits in the 1991 FIP for NGS provide for a greater degree of reasonable progress toward the Regional Haze national goal than would BART. See 56 FR 50172. As a result, EPA does not consider it necessary or appropriate to develop a regional haze plan to address the BART requirements under 40 CFR 51.308 for the Navajo Reservation for SO 2 . This proposal addresses only the necessity or appropriateness of developing a regional haze plan to address the BART requirements for SO 2 for the Navajo Reservation. EPA will evaluate emissions of NO X , PM, and other pollutants that contribute to visibility impairment for their impact on regional haze and determine in a future action whether it is necessary and appropriate to develop a regional haze plan to address the BART requirements with respect to these pollutants. III. Four Corners Power Plant Facility Description The FCPP is a 2040 MW net coal-fired power plant located on the Navajo Indian Reservation near Farmington, New Mexico. The FCPP consists of two 170 MW net electric generating units, one 220 MW net unit and two 740 MW net units, all of which became operational between 1963 and 1970. The APS is the operating agent for FCPP which is jointly owned by the APS, the Southern California Edison Company, the Salt River Project Agricultural Improvement and Power District (SRP), the Public Service Company of New Mexico, the El Paso Electric Company and the Tucson Electric Power Company. Existing pollution control equipment at FCPP units 4 and 5 includes baghouses for particulate matter control, lime spray towers for SO 2 control, and burners for limiting NO X formation. Units 1, 2 and 3 each have venturi scrubbers for particulate matter and SO 2 control, and burners for limiting NO X formation. None of these unit's burner designs are the latest technology for NO X control. IV. Summary of FIP Provisions A. Proposed FIP Standards 1. FCPP's SO 2 emissions are not allowed to exceed 12 percent of the SO 2 produced in the burning of sulfur-bearing coal (averaged over a daily rolling yearly average on a plant-wide basis) and not to exceed 17,900 pounds of total SO 2 per hour averaged over any consecutive three-hour period, on a plant-wide basis. 2. Particulate emissions are not to exceed 0.050 lbs/MMbtu of heat input, as averaged from at least three sampling runs, each at a minimum of 60 minutes in duration, each collecting a minimum sample of 30 dry standard cubic feet. 3. Opacity is limited to 20%, averaged over a six-minute period, for Units 4 and 5. The opacity limit for Units 4 and 5 allows for one six-minute period per hour of not more than 27 percent opacity, excluding water vapor. The opacity limit is not being applied to Units 1, 2, and 3. The scrubbers currently in operation on Units 1, 2, and 3 were designed for control of particulate matter, and were later redesigned to also control SO 2 . However, FCPP cannot currently meet a continuous opacity limit of 20 percent at Units 1, 2, and 3. EPA is proposing that FCPP design and enact a plan to monitor operating parameters such as pressure drop and scrubber liquid flow for the scrubbers. This will yield information about continuous proper operation of the scrubbers for particulate control. This information could then be used to determine appropriate parameters, which could be included in FCPP's Title V permit as indicators for good particulate matter control practice. EPA requests comment on this proposal, including whether an opacity standard of 20% or 40% could be applied to Units 1, 2, and 3. It should be noted that even if this regulation adopts an opacity limit, continuous opacity monitors would not be required since the stack is continuously wet from water vapor from the scrubbers. 4. Opacity is limited to 20 percent averaged over a six minute period for dust from emissions associated with coal transfer and storage and other dust-generating activities. APS is required to submit a description of the dust control measures. 5. FCPP's nitrogen oxide emissions are not allowed to exceed 0.85 lbs/MMbtu of input for Units 1 and 2, and 0.65 lbs/MMbtu of input for Units 3, 4, and 5, averaged over any successive 30 boiler operating day period; nor shall they exceed 335,000 lb per 24-hour period on a plant-wide basis. When any one unit is not operating, the limits are reduced by 1542 pounds per hour for units 1, 2, and 3, and by 4667 pounds per hour for units 4 and 5. B. Other Requirements 1. All periods of excess emissions will be treated as violations of the emission limitation. This rule does, however, provide an affirmative defense to enforcement actions for penalties brought for excess emissions that arise during certain malfunction episodes. As explained in EPA's excess emissions policy, 2 affirmative defenses must be restricted to malfunctions that are sudden, unavoidable, and unpredictable. In addition, all possible steps must have been taken to minimize excess emissions. The rule accordingly requires an owner or operator to meet several conditions to qualify for an affirmative defense. An affirmative defense is not available if, during the period of excess emissions, there was an exceedance of the relevant ambient air quality standard that could be attributed to the emitting source. 2 September 20, 1999, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (the Excess Emissions Policy). 2. APS will develop a plan to monitor, record and report operating parameters indicative of good operation of the scrubbers for control of particulate matter on Units 1, 2, and 3. C. Compliance Schedule The EPA proposes that the requirements contained in this proposal become effective upon promulgation of these regulations, except where specified otherwise. V. Solicitation of Comments The EPA solicits comments on all aspects of today's proposal to promulgate a FIP to regulate air emissions from FCPP. Interested parties should submit comments to the address listed in the front of this proposed rule. Public comments postmarked by November 6, 2006 will be considered in the final action taken by EPA. VI. Administrative Requirements A. Executive Order 12866 Under Executive Order (E.O.) 12866, 58 FR 51735 (October 4, 1993), all “regulatory actions” that are “significant” are subject to Office of Management and Budget

(OMB)review and the requirements of the Executive Order. A “regulatory action” is defined as “any substantive action by an agency (normally published in the **Federal Register** ) that promulgates or is expected to result in the promulgation of a final rule or regulation, including * * * notices of proposed rulemaking.” A “regulation or rule” is defined as “an agency statement of general applicability and future effect, * * *.” The proposed FIP is not subject to OMB review under E.O. 12866 because it applies to only a single, specifically named facility and is therefore not a rule of general applicability. Thus, it is not a “regulatory action” under E.O. 12866. B. Regulatory Flexibility Act Under the Regulatory Flexibility Act, 5 U.S.C. 601 *et. seq.,* EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. See 5 U.S.C. 603 and 604. Alternatively, EPA may certify 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 government entities with jurisdiction over populations of less than 50,000. The Federal implementation plan for the Four Corners Power Plant proposed today does not impose any new requirements on small entities. See *Mid-Tex Electric Cooperative, Inc.* v. *FERC,* 773 F.2d 327 (DC Cir. 1985) (agency's certification need only consider the rule's impact on entities subject to the requirements of the rule). Therefore, pursuant to 5 U.S.C. 605(b), EPA certifies that today's action does not have a significant impact on a substantial number of small entities within the meaning of those terms for RFA purposes. C. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under section 202 of UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed rules and for final rules for which EPA published a notice of proposed rulemaking, if those rules contain “federal mandates” that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If section 202 requires a written statement, section 205 of UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives. Under section 205, EPA must adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule, unless the Regional Administrator publishes with the final rule an explanation why EPA did not adopt that alternative. The provisions of section 205 do not apply when they are inconsistent with applicable law. Section 204 of UMRA requires EPA to develop a process to allow elected officers of state, local, and tribal governments (or their designated, authorized employees), to provide meaningful and timely input in the development of EPA regulatory proposals containing significant Federal intergovernmental mandates. EPA has determined that the proposed FIP contains no Federal mandates on state, local or tribal governments, because it will not impose any additional enforceable duties on any of these entities. EPA further has determined that the proposed FIP is not likely to result in the expenditure of $100 million or more by the private sector in any one year. Although the proposed FIP imposes enforceable duties on an entity in the private sector, the costs are expected to be minimal. Consequently, sections 202, 204, and 205 of UMRA do not apply to the proposed FIP. Before EPA establishes any regulatory requirements that might significantly or uniquely affect small governments, it must have developed under section 203 of UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that the proposed FIP will not significantly or uniquely affect small governments, because it imposes no requirements on small governments. Therefore, the requirements of section 203 do not apply to the proposed FIP. Nonetheless, EPA worked closely with representatives of the Tribe in the development of today's proposed action. D. Paperwork Reduction Act Under the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* , OMB must approve all “collections of information” by EPA. The Act defines “collection of information” as a requirement for “answers to * * * identical reporting or recordkeeping requirements imposed on ten or more persons * * *.” 44 U.S.C. 3502(3)(A). Because the proposed FIP only applies to one company, the Paperwork Reduction Act does not apply. E. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks The FCPP FIP is not subject to Executive Order 13045 because it implements previously promulgated health or safety-based Federal standards. Executive Order 13045 applies to any rule that:

(1)Is determined to be “economically significant” as that term is defined in E.O. 12866, and

(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. EPA interprets E.O. 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. F. Executive Order 12875: Enhancing the Intergovernmental Partnership Under Executive Order 12875, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a state, local or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 12875 requires EPA to provide to the Office of Management and Budget a description of the extent of EPA's prior consultation with representatives of affected State, local and tribal governments, the nature of their concerns, any written communications from the governments, and EPA's position supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives of state, local and tribal governments “to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.” As stated above, the proposed FIP will not create a mandate on state, local or tribal governments because it will not impose any additional enforceable duties on these entities. Accordingly, the requirements of section 1(a) of Executive Order 12875 do not apply to this rule. Nonetheless, EPA worked closely with representatives of the Tribe during the development of today's proposed action. G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Under Executive Order 13175, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13175 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13175 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.” The proposed FIP does not impose substantial direct compliance costs on the communities of Indian tribal governments. The proposed FIP imposes obligations only on the owner or operator of FCPP. Accordingly, the requirements of section 3(b) of Executive Order 13175 do not apply to this rule. H. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12 (10 (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by the voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through annual reports to OMB, with explanations when the Agency decides not to use available and applicable voluntary consensus standards. Consistent with the NTTAA, the Agency conducted a search to identify potentially applicable voluntary consensus standards (VCS). For the measurement of the sulfur in the coal for calculating the efficiency of the SO 2 scrubbers for FCCP, EPA proposes to require use of American Society of Testing and Materials

(ASTM)standards. FCCP would have the ability to choose an applicable ASTM standard for both the coal sample collection and the sulfur in coal analysis. In regard to the remaining measurement needs as listed below, there are a number of voluntary consensus standards that appear to have possible use in lieu of the EPA test methods and performance specifications (40 CFR part 60, Appendices A and B) noted next to the measurement requirements. It would not be practical to specify these standards in the current rulemaking due to a lack of sufficient data on equivalency and validation and because some are still under development. However, EPA's Office of Air Quality Planning and Standards is in the process of reviewing all available VCS for incorporation by reference into the test methods and performance specifications of 40 CFR part 60, Appendices A and B. Any VCS so incorporated in a specified test method or performance specification would then be available for use in determining the emissions from this facility. This will be an ongoing process designed to incorporate suitable VCS as they become available. *Particulate Matter Emissions* —EPA Methods 1 though 5. *Opacity* —EPA Method 9 and Performance Specification Test 1 for Opacity Monitoring. *SO* 2 —EPA Method 6C and Performance Specification 2 for Continuous SO 2 Monitoring. *NO* X —EPA Method 7E and Performance Specification 2 for Continuous NO X Monitoring and Performance Specification 6 for Flow Monitoring. List of Subjects in 40 CFR Part 49 Environmental protection, Administrative practice and procedure, Air pollution control, Indians, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: August 30, 2006. Laura Yoshii, Acting Regional Administrator, Region IX. Title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows: PART 49—[AMENDED] 1. The authority citation for part 49 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* 2. Part 49 is proposed to be amended by adding § 49.21 to read as follows: § 49.21 Federal Implementation Plan Provisions for Four Corners Power Plant, Navajo Nation.

(a)*Applicability.* The provisions of this section shall apply to each owner or operator of the coal burning equipment designated as Units 1, 2, 3, 4, and 5 at the Four Corners Power Plant (“the Plant”) on the Navajo Nation located in the Four Corners Interstate Air Quality Control Region (see 40 CFR 81.121).

(b)*Compliance Dates.* Compliance with the requirements of this section is required upon the effective date of this promulgation unless otherwise indicated by compliance dates contained in specific provisions.

(c)*Definitions.* For the purposes of this section:

(1)*Affirmative defense* means, in the context of an enforcement proceeding, a response or defense put forward by a defendant, regarding which the defendant has the burden of proof, and the merits of which are independently and objectively evaluated in a judicial or administrative proceeding.

(2)*Air pollution control equipment* includes baghouses, particulate or gaseous scrubbers, and any other apparatus utilized to control emissions of regulated air contaminants which would be emitted to the atmosphere.

(3)*Daily average* means the arithmetic average of the hourly values measured in a 24-hour period.

(4)*Excess emissions* means the emissions of air contaminants in excess of an applicable emissions limitation or requirement.

(5)*Heat input* means heat derived from combustion of fuel in a Unit and does not include the heat input from preheated combustion air, recirculated flue gases, or exhaust gases from other sources. Heat input shall be in accordance with 50 CFR part 75.

(6)*Malfunction* means any sudden and unavoidable failure of air pollution control equipment or process equipment or of a process to operate in a normal or usual manner. Failures that are caused entirely or in part by poor maintenance, careless operation, or any other preventable upset condition or preventable equipment breakdown shall not be considered malfunctions. This rule provides an affirmative defense to actions for penalties brought for excess emissions that arise during certain malfunction episodes. An affirmative defense is not available if during the period of excess emissions, there was an exceedance of the relevant ambient air quality standard that could be attributed to the emitting source.

(7)*Owner or Operator* means any person who owns, leases, operates, controls, or supervises the Plant or any of the coal burning equipment designated as Units 1, 2, 3, 4, or 5 at the Plant.

(8)*Oxides of nitrogen (NO* X *)* means the sum of nitric oxide

(NO)and nitrogen dioxide (NO 2 ) in the flue gas, expressed as nitrogen dioxide.

(9)*Plant-wide basis* means total stack emissions of any particular pollutant from all coal burning equipment at the Plant.

(10)*Regional Administrator* means the Regional Administrator of the Environmental Protection Agency

(EPA)Region 9 or his/her authorized representative.

(11)*Shutdown* means the cessation of operation of any air pollution control equipment, process equipment, or process for any purpose. Specifically, for Units 1, 2, or 3, shutdown begins when the unit drops below 40 MW net load with the intent to remove the unit from service. For Units 4 or 5, shutdown begins when the unit drops below 300 MW net load with the intent to remove the unit from service.

(12)*Startup* means the setting into operation of any air pollution control equipment, process equipment, or process for any purpose. Specifically, for Units 1, 2, or 3, startup ends when the unit reaches 40 MW net load. For Units 4 or 5, startup ends when the unit reaches 400 MW net load.

(13)*24-hour period* means the period of time between 12:01 a.m. and 12 midnight.

(d)*Emissions Standards and Control Measures.*

(1)*Sulfur Dioxide.* No owner or operator shall discharge or cause the discharge of sulfur dioxide (SO 2 ) into the atmosphere in excess of

(i)12.0% of that which is produced by the Plant's coal burning equipment, determined each day on a yearly plant-wide basis; and

(ii)17,900 pounds of total SO 2 emissions per hour averaged over any consecutive three

(3)hour period, determined on a plant-wide basis.

(2)*Particulate Matter.* No owner or operator shall discharge or cause the discharge of particulate matter from any coal burning equipment into the atmosphere in excess of 0.050 pounds per million British thermal unit (lb/MMBtu) of heat input (higher heating value), as averaged from at least three sampling runs, each at minimum 60 minutes in duration, each collecting a minimum sample of 30 dry standard cubic feet.

(3)*Dust.* Each owner or operator shall operate and maintain the existing dust suppression methods for controlling dust from the coal handling and storage facilities. Within ninety

(90)days after promulgation of this section, the owner or operator shall submit to the Regional Administrator a description of the dust suppression methods for controlling dust from the coal handling and storage facilities, fly ash handling and storage, and road sweeping activities. Each owner or operator shall not emit dust with an opacity greater than 20% from any crusher, grinding mill, screening operation, belt conveyor, or truck loading or unloading operation.

(4)*Opacity.* No owner or operator shall discharge or cause the discharge of emissions from the stacks of Units 4 and 5 into the atmosphere exhibiting greater than 20% opacity, excluding water vapor, averaged over any six

(6)minute period, except for one six

(6)minute period per hour of not more than 27% opacity, excluding water vapor.

(5)*Oxides of nitrogen.* No owner or operator shall discharge or cause the discharge of NO X into the atmosphere

(i)From either Unit 1 or 2 in excess of 0.85 lb/MMBtu of heat input per unit, and from either Units 3, 4, or 5 in excess of 0.65 lb/MMBtu of heat input per unit averaged over any successive thirty

(30)boiler operating day period;

(ii)In excess of 335,000 lb per 24-hour period when coal burning equipment is operating, on a plant-wide basis; for each hour when coal burning equipment is not operating, this limitation shall be reduced. If the unit which is not operating is Unit 1, 2, or 3, the limitation shall be reduced by 1,542 lb per hour for each unit which is not operating. If the unit which is not operating is Unit 4 or 5, the limitation shall be reduced by 4,667 lb per hour for each unit which is not operating.

(e)*Testing and Monitoring.* Upon completion of the installation of continuous emissions monitoring systems

(CEMS)software as required in this section, compliance with the emissions limits set for SO 2 and NO X shall be determined by using data from a CEMS unless otherwise specified in paragraphs (e)(2) and (e)(4) of this section. Compliance with the emissions limit set for particulate matter shall be tested annually, or at such other time as requested by the Regional Administrator, based on data from testing conducted in accordance with 40 CFR part 60, Appendix A, Methods 1 through 5, or any other method receiving prior approval from the Regional Administrator. Compliance with the emissions limits set for opacity shall be determined by using data from a Continuous Opacity Monitoring System

(COMS)except during saturated stack conditions (condensed water vapor). If the baghouse is operating within its normal operating parameters, the baghouse is not fully closed, and a high opacity reading occurs, it will be presumed that the occurrence was caused by saturated stack conditions and shall not be considered a violation.

(1)The owner or operator shall maintain and operate CEMS for SO 2 , NO or NO X , a diluent and, for Units 4 and 5 only, COMS, in accordance with 40 CFR 60.8 and 60.13, and Appendix B of 40 CFR Part 60. Within six

(6)months of promulgation of this section, the owner or operator shall install CEMS and COMS software which complies with the requirements of this section. The owner or operator of the Plant may petition the Regional Administrator for extension of the six

(6)month period for good cause shown. Completion of 40 CFR part 75 monitor certification requirements shall be deemed to satisfy the requirements under 40 CFR 60.8 and 60.13 and Appendix B of Part 60. The owner or operator shall comply with the quality assurance procedures for CEMS found in 40 CFR part 75, and all reports required there under shall be submitted to the Regional Administrator. The owner or operator shall provide the Regional Administrator notice in accordance with 40 CFR 75.61.

(2)*Sulfur Dioxide.* For the purpose of determining compliance with this section, the sulfur dioxide inlet concentration (in lb/MMBtu) shall be calculated using the daily average percent sulfur and Btu content of the coal combusted. The inlet sulfur concentration and Btu content shall be determined in accordance with American Society for Testing and Materials

(ASTM)methods or any other method receiving prior approval from the Regional Administrator. A daily fuel sample shall be collected using the coal sampling tower conforming to the ASTM specifications. The analyses shall be done on the daily sample using ASTM methods or any other method receiving prior approval from the Regional Administrator.

(i)The inlet sulfur dioxide concentration shall be calculated using the following formula: I s = 2(%S f )/GCV × 10 4 English units Where: I s = sulfur dioxide inlet concentrations in pounds per million Btu; %S f = weight percent sulfur content of the fuel; and GCV = Gross calorific value for the fuel in Btu per pound.

(ii)The total pounds of SO 2 generated by burning the coal shall be calculated by multiplying the SO 2 inlet concentration by the daily total heat input determined by the 40 CFR part 75 acid rain monitoring. This will determine the pounds of SO 2 produced per day. The SO 2 emitted from the stacks shall be determined by adding the daily SO 2 emissions from each stack as determined by the 40 CFR part 75 acid rain monitors. Compliance with the emission limit shall be determined for each day by adding that day's SO 2 emissions and that day's SO 2 produced to the previous 364 days and then dividing the 365 days of emissions by the 365 days of SO 2 produced. Compliance is demonstrated if this fraction, converted to a percent, is equal to or less than 12.0%. The data from the 40 CFR part 75 monitors shall not be bias adjusted. Missing hours of data shall be calculated by averaging the last prior valid hourly data with the next valid hour after the data gap.

(3)*Particulate Matter.* Particulate matter emissions shall be determined by averaging the results of three test runs. Each test run shall be at least sixty

(60)minutes in duration and shall collect a minimum volume of thirty

(30)dry standard cubic feet. Particulate matter testing shall be conducted annually and at least six

(6)months apart, with the equipment within 90% of maximum operation in accordance with 40 CFR 60.8 and Appendix A to 40 CFR part 60. The owner or operator shall submit written notice of the date of testing no later than 21 days prior to testing. Testing may be performed on a date other than that already provided in a notice as long as notice of the new date is provided either in writing or by telephone or other means acceptable to the Regional Administrator, and the notice is provided as soon as practicable after the new testing date is known, but no later than 7 days (or a shorter period as approved by the Regional Administrator) in advance of the new date of testing.

(4)*Oxides of nitrogen.* The total daily plant-wide oxides of nitrogen emissions in pounds of NO 2 per day shall be calculated using the following formula: EP12SE06.021 Where: TE = total plant-wide nitrogen dioxide emissions (lb NO 2 /day); E ij = hourly average emissions rate of each unit (lb NO 2 /MMBtu); H ij = hourly total heat input for each unit (MMBtu); n = the number of units of coal burning equipment operating during the hour; m = the number of operating hours in a day, from midnight to midnight.

(5)Continuous emissions monitoring shall apply during all periods of operation of the coal burning equipment, including periods of startup, shutdown, and malfunction, except for CEMS breakdowns, repairs, calibration checks, and zero and span adjustments. Continuous monitoring systems for measuring SO 2 , NO X , and diluent gas shall complete a minimum of one cycle of operation (sampling, analyzing, and data recording) for each successive 15-minute period. The one-hour averages shall be calculated using these data points. At least two data points must be used to calculate the one-hour averages. When emission data are not obtained because of continuous monitoring system breakdowns, repairs, calibration checks, or zero and span adjustments, emission data must be obtained by using other monitoring systems approved by the EPA to provide emission data for a minimum of 18 hours in at least 22 out of 30 successive boiler operating days. NO X emissions rates and quantities shall be reported as NO 2 concentrations. For reporting purposes, when CEMS data is not available because of malfunctions or other reasons, the unavailable data will be replaced with a calculated value based on the average of the last valid data point and the next valid data point for purposes of calculating total plant-wide emissions.

(6)The owner or operator shall maintain two sets of opacity filters for each type of COMS, one set to be used as calibration standards and one set to be used as audit standards. At least one set of filters shall be on site at all times.

(7)Nothing herein shall limit EPA's ability to ask for a test at any time under Section 114 of the Clean Air Act, 42 U.S.C. 7414, and enforce against any violation.

(8)In order to provide reasonable assurance that the scrubbers for control of particulate matter from Units 1, 2, and 3 are being maintained and operated in a manner consistent with good air pollution control practice for minimizing emissions, the owner or operator shall comply with the following provisions:

(i)The owner or operator shall develop a plan to monitor, record, and report parameter(s) indicative of the proper operation of the scrubbers to provide a reasonable assurance of compliance with the particulate matter limits in paragraph (d)(2) of this section. The owner or operator shall submit this plan to the Regional Administrator no later than sixty

(60)days after the effective date of this FIP. The owner or operator shall implement this plan within 30 days of approval by the Regional Administrator and shall commence reporting the data generated pursuant to the monitoring plan in accordance with the schedule in paragraph (e)(8)(v) of this section. If requested by the Regional Administrator, this plan shall be revised and submitted to the Regional Administrator for approval within sixty

(60)days of the request. The revised plan shall be implemented within sixty

(60)days of the Regional Administrator's approval.

(ii)In the event that the owner or operator is unable to develop the plan required in paragraph (e)(8)(i) of this section due to technical difficulties, fails to submit the plan within sixty

(60)days of the effective date of this FIP, or the Regional Administrator disapproves the plan, the owner or operator shall install and operate devices to measure the pressure drop across each scrubber module and the total flow of scrubbing liquid to the venturi section of each scrubber module. The data from these instruments shall be monitored and recorded electronically. A minimum of one reading every 15 minutes shall be used to calculate an hourly average which shall be recorded and stored for at least a five-year period. The owner or operator shall report in an electronic format either all hourly data, or one-hour averages deviating by more than 30% from the levels measured during the last particulate matter stack test that demonstrated compliance with the limit in this section. The owner or operator shall implement this requirement no later than one hundred twenty

(120)days after the effective date of this FIP if it failed to submit the plan within sixty

(60)days after the effective date of this FIP; or no later than 60 days after the Regional Administrator's disapproval of the plan.

(iii)The monitoring required under paragraphs (e)(8)(i) and (e)(8)(ii) of this section shall apply to each Unit at all times that the Unit is operating, except for monitoring malfunctions, associated repairs, and required quality assurance or control activities (including, as applicable, calibration checks and required zero and span adjustments). A monitoring malfunction is any sudden, infrequent, not reasonably preventable failure of the monitoring to provide valid data. Monitoring failures that are caused in part by poor maintenance or careless operation are not malfunctions.

(iv)The owner or operator may petition the Regional Administrator for an extension of the sixty

(60)day deadline. Such extension shall be granted only if the owner or operator demonstrates to the satisfaction of the Regional Administrator that:

(A)The delay is due to technical infeasibility beyond the control of the owner or operator; and

(B)The requested extension, if granted, will allow the owner or operator to successfully complete the plan.

(v)The owner or operator shall submit to the Regional Administrator reports of the monitoring data required by this section quarterly. The reports shall be postmarked within 30 days of the end of each calendar quarter.

(vi)The owner or operator shall develop and document a quality assurance program for the monitoring and recording instrumentation. This program shall be updated or improved as requested by the Regional Administrator.

(vii)In the event that a program for parameter monitoring on Units 1, 2, and 3 is approved pursuant to the Compliance Assurance Monitoring rule, 40 CFR part 64, such program will supersede the provisions contained in paragraph (e)(8) of this section.

(f)*Reporting and Recordkeeping Requirements.* Unless otherwise stated all requests, reports, submittals, notifications, and other communications to the Regional Administrator required by this section shall be submitted, unless instructed otherwise, to the Director, Navajo Environmental Protection Agency, P.O. Box 339, Window Rock, Arizona 86515,

(928)871-7692,

(928)871-7996 (facsimile), and to the Director, Air Division, U.S. Environmental Protection Agency, Region IX, to the attention of Mail Code: AIR-5, at 75 Hawthorne Street, San Francisco, California 94105,

(415)972-3990,

(415)947-3579 (facsimile). For each unit subject to the emissions limitation in this section and upon completion of the installation of CEMS and COMS as required in this section, the owner or operator shall comply with the following requirements:

(1)For each emissions limit in this section, comply with the notification and recordkeeping requirements for CEMS compliance monitoring in 40 CFR 60.7(c) and (d).

(2)For each day, provide the 365-day percent SO 2 emitted, the total SO 2 emitted that day, and the total SO 2 produced that day. List the number of hours of substitute data used for each of the 5 units during that day.

(3)Furnish the Regional Administrator with reports describing the results of the annual particulate matter emissions tests postmarked within sixty

(60)days of completing the tests. Each report shall include the following information:

(i)The test date;

(ii)The test method;

(iii)Identification of the coal burning equipment tested;

(iv)Values for stack pressure, temperature, moisture, and distribution of velocity heads;

(v)Average heat input;

(vi)Emissions data, identified by sample number, and expressed in pounds per MMBtu;

(vii)Arithmetic average of sample data expressed in pounds per MMBtu; and

(viii)A description of any variances from the test method.

(4)*Excess Emissions Report.*

(i)For excess emissions (except in the case of saturated stack conditions), the owner or operator shall notify the Navajo Environmental Protection Agency Director and the U.S. Environmental Protection Agency Regional Administrator by telephone or in writing within one business day (“initial notification”). A complete written report of the incident shall be submitted to the Navajo Environmental Protection Agency Director and the U.S. Environmental Protection Agency Regional Administrator within ten

(10)working days of the initial notification. This notification should be sent to the Director, Navajo Environmental Protection Agency, by mail to: P.O. Box 339, Window Rock, Arizona 86515, or by facsimile to:

(928)871-7996 (facsimile), and to the Regional Administrator, U.S. Environmental Protection Agency, by mail to the attention of Mail Code: AIR-5, at 75 Hawthorne Street, San Francisco, California 94105, by facsimile to:

(415)947-3579 (facsimile), or by e-mail to: *r9.aeo@epa.gov.* The complete written report shall include:

(A)The name and title of the person reporting;

(B)The identity and location of the Plant and Unit(s) involved, and the emissions point(s), including bypass, from which the excess emissions occurred or are occurring;

(C)The time and duration or expected duration of the excess emissions;

(D)The magnitude of the excess emissions expressed in the units of the applicable emissions limitation and the operating data and calculations used in determining the magnitude of the excess emissions;

(E)The nature of the condition causing the excess emissions and the reasons why excess emissions occurred or are occurring;

(F)If the excess emissions were the result of a malfunction, the steps taken to remedy the malfunction and the steps taken or planned to prevent the recurrence of such malfunction;

(G)For an opacity exceedance, the 6-minute average opacity monitoring data greater than 20% for the 24 hours prior to and during the exceedance for Units 4 and 5; and

(H)The efforts taken or being taken to minimize the excess emissions and to repair or otherwise bring the Plant into compliance with the applicable emissions limit(s) or other requirements. For this reporting requirement, excess opacity due to saturated stack conditions is exempted.

(ii)If the period of excess emissions extends beyond the submittal of the written report, the owner or operator shall also notify the Regional Administrator in writing of the exact time and date when the excess emissions stopped. Compliance with the excess emissions notification provisions of this section shall not excuse or otherwise constitute a defense to any violations of this section or of any law or regulation which such excess emissions or malfunction may cause.

(g)*Equipment Operations.* At all times, including periods of startup, shutdown, and malfunction, the owner or operator shall, to the extent practicable, maintain and operate the Plant including associated air pollution control equipment in a manner consistent with good air pollution control practices for minimizing emissions. Determination of whether acceptable operating and maintenance procedures are being used will be based on information available to the Regional Administrator which may include, but is not limited to, monitoring results, opacity observations, review of operating and maintenance procedures, and inspection of the Plant. With regard to the operation of the baghouses on Units 4 and 5, placing the baghouses in service before coal fires are initiated will constitute compliance with this paragraph. (If the baghouse inlet temperature cannot achieve 185 degrees Fahrenheit using only gas fires, the owner or operator will not be expected to place baghouses in service before coal fires are initiated; however, the owner or operator will remain subject to the requirements of this paragraph.)

(h)*Enforcement.*

(1)Notwithstanding any other provision in this implementation plan, any credible evidence or information relevant to whether the Plant would have been in compliance with applicable requirements if the appropriate performance or compliance test had been performed, can be used to establish whether or not the owner or operator has violated or is in violation of any standard in the plan.

(2)During periods of startup and shutdown the otherwise applicable emission limits or requirements for opacity and particulate matter shall not apply provided that:

(i)At all times the facility is operated in a manner consistent with good practice for minimizing emissions, and the owner or operator uses best efforts regarding planning, design, and operating procedures to meet the otherwise applicable emission limit;

(ii)The frequency and duration of operation in start-up or shutdown mode are minimized to the maximum extent practicable; and

(iii)The owner or operator's actions during start-up and shutdown periods are documented by properly signed, contemporaneous operating logs, or other relevant evidence.

(3)Emissions in excess of the level of the applicable emission limit or requirement that occur due to a malfunction shall constitute a violation of the applicable emission limit. However, it shall be an affirmative defense in an enforcement action seeking penalties if the owner or operator has met with all of the following conditions:

(i)The malfunction was the result of a sudden and unavoidable failure of process or air pollution control equipment or of a process to operate in a normal or usual manner;

(ii)The malfunction did not result from operator error or neglect, or from improper operation or maintenance procedures;

(iii)The excess emissions were not part of a recurring pattern indicative of inadequate design, operation, or maintenance;

(iv)Steps were taken in an expeditious fashion to correct conditions leading to the malfunction, and the amount and duration of the excess emissions caused by the malfunction were minimized to the maximum extent practicable;

(v)All possible steps were taken to minimize the impact of the excess emissions on ambient air quality;

(vi)All emissions monitoring systems were kept in operation if at all possible; and

(vii)The owner or operator's actions in response to the excess emissions were documented by properly signed, contemporaneous operating logs, or other relevant evidence. [FR Doc. E6-15097 Filed 9-11-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 49 [EPA-R09-OAR-2006-0185; FRL-8218-6] Source-Specific Federal Implementation Plan for Navajo Generating Station; Navajo Nation AGENCY: Environmental Protection Agency. ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency

(EPA)proposes to promulgate a source-specific Federal Implementation Plan

(FIP)to regulate emissions from the Navajo Generating Station (NGS), a coal-fired power plant located on the Navajo Indian Reservation near Page, Arizona. DATES: Any comments on this proposal must arrive by November 6, 2006. ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-2006-0185, by one of the following methods:

(1)*Federal eRulemaking portal:* *http://www.regulations.gov.* Follow the on-line instructions.

(2)*E-mail: rosen.rebecca@epa.gov.*

(3)*Mail or deliver:* Rebecca Rosen (AIR-2), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. *Instructions:* All comments will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through the *http://www.regulations.gov* or e-mail. *http://www.regulations.gov* is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. *Docket:* The index to the docket for this action is available electronically at *www.regulations.gov* and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Rebecca Rosen, EPA Region IX,

(415)947-4152, *rosen.rebecca@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us” and “our” refer to EPA. Table of Contents I. Background A. Action B. Facility C. Attainment Status D. Visibility FIP E. Historical Overview of NGS FIP Actions II. Basis for Proposed Action EPA's Authority to Promulgate a FIP in Indian Country III. Navajo Generating Station Facility Description IV. Summary of FIP Provisions A. Proposed FIP Standards B. Other Requirements C. Compliance Schedule V. Other Requirements for NGS A. Visibility FIP B. Acid Rain Program Requirements VI. Solicitation of Comments VII. Administrative Requirements A. Executive Order 12866 B. Regulatory Flexibility Act C. Unfunded Mandates Reform Act D. Paperwork Reduction Act E. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks F. Executive Order 12875: Enhancing the Intergovernmental Partnership G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments H. National Technology Transfer and Advancement Act I. Background A. Action In today's action, EPA proposes to promulgate a FIP to establish Federally enforceable emissions limitations for total particulate matter

(PM)and sulfur dioxide (SO 2 ) applicable to the NGS. The FIP also proposes Federally enforceable emissions limitations for opacity and control measures for dust. B. Facility NGS is a coal-fired power plant located on the Navajo Indian Reservation, just east of Page, Arizona, approximately 135 miles north of Flagstaff, that is owned and operated by Salt River Project (SRP). Through lease agreements, the facility utilizes real property held in trust by the Federal government for the Navajo Nation. The facility operates three units, each with a capacity of 750 megawatts

(MW)net generation. The total capacity of the facility is 2250 MW. Operations at the facility produce emissions of sulfur dioxide, nitrogen dioxide, and particulate matter. C. Attainment Status NGS is located in the Northern Arizona Intrastate air quality control region (AQCR), which is designated unclassifiable for all criteria pollutants under the Clean Air Act (CAA or “the Act”). See 40 CFR 81.303. The proposed NGS FIP establishes Federally enforceable emissions limitations that are more stringent than, or at least as stringent as, the emissions limitations with which NGS has historically complied. Therefore, EPA believes that air quality in this area will be positively impacted by this action. D. Visibility FIP In 1987, EPA issued a visibility FIP for the state of Arizona addressing reasonably attributable visibility impairment. 1 52 FR 45132 (November 24, 1987). Following a report issued by the National Park Service that identified NGS as a source of visibility impairment in the Grand Canyon National Park, EPA preliminarily determined that visibility impairment at the Grand Canyon was reasonably attributable to emissions of SO 2 from NGS. See 54 FR 36948 (September 5, 1989). Under the visibility regulations, such impairment must be addressed in accordance with 40 CFR 51.302(c), which sets forth measures for achieving reasonable progress, including best available retrofit technology (BART). Id. In 1991, EPA revised the visibility FIP for the state of Arizona to include an SO 2 emission limit for NGS to remedy visibility impairment in the Grand Canyon National Park that was reasonably attributable to NGS. 56 FR 50172 (October 3, 1991), codified at 40 CFR 52.145. Under the 1991 visibility FIP, NGS was required to phase-in compliance with the SO 2 emission limit, by installing scrubbers in 1997, 1998, and 1999. 40 CFR 52.145(d)(7). In establishing the SO 2 emission limit for NGS, which includes a higher level of control than that proposed as BART, EPA determined that the FIP would provide for greater reasonable progress toward the national visibility goal than implementation of BART. 56 FR 50172. 1 On December 2, 1980, EPA issued regulations addressing visibility impairment that is traceable or “reasonably attributable” to a single source or small group of sources. 45 FR 80084, codified at 40 CFR parts 300-307. These regulations required a number of States to submit State Implementation Plans

(SIPs)no later than September 2, 1981. Most States, including Arizona, failed to submit SIPs as called for by the regulations. The 1991 visibility FIP is not being amended or changed by today's action. The visibility FIP remains in full force and effect and this rulemaking does not provide an opportunity for public comment or judicial review of EPA's earlier actions promulgating the 1991 visibility FIP. E. Historical Overview of NGS FIP Actions When the Clean Air Act was amended in 1990, Congress included a new provision, Section 301(d), granting EPA authority to treat Tribes in the same manner as States where appropriate. See 40 U.S.C. 7601(d). In 1998, EPA promulgated regulations known as the Tribal Authority Rule (TAR). See 40 CFR parts 9, 35, 49, 50 and 81, 63 FR 7254 (February 12, 1998). EPA's promulgation of the TAR clarified, among other things, that State air quality regulations generally do not, under the Clean Air Act, apply to facilities located anywhere within the exterior boundaries of Indian reservations. See 63 FR at 7254, 7258 (noting that unless a state has explicitly demonstrated its authority and been expressly approved by EPA to implement Clean Air Act programs in Indian country, EPA is the appropriate entity to implement Clean Air Act programs prior to tribal primacy), *Arizona Public Service Company* v. *E.P.A.* , 211 F.3d 1280 (D.C. Cir. 2000), cert. denied sub nom, *Michigan* v. *E.P.A.* , 532 U.S. 970

(2001)(upholding the TAR), see also *Alaska* v. *Native Village of Venetie Tribal Government* , 533 U.S. 520, 526 n.1

(1998)(primary jurisdiction over Indian country generally lies with Federal Government and tribes, not with states). Prior to the addition of Section 301(d) and promulgation of the TAR, some States had mistakenly included emissions limitations in their State Implementation Plans

(SIPs)which they may have believed could apply under the Clean Air Act to private facilities operating on adjacent Indian reservations. Such was the case for NGS. The SIP for Arizona, and permits issued pursuant to the SIP, contained emissions limitations purported to apply to NGS and with which NGS was complying. However, EPA recognized that Arizona's SIP emissions limits do not apply to NGS under the Clean Air Act, and on September 8, 1999, EPA proposed a source-specific FIP for NGS. See 64 FR 48725 (September 8, 1999). The 1999 proposed FIP stated: “Although the facility has been historically regulated by Arizona since its construction, the state lacks jurisdiction over the facility or its owners or operations for CAA compliance or enforcement purposes.” EPA intended for the 1999 NGS FIP to “Federalize” the emissions limitations that Arizona had erroneously included in its State Implementation Plan. 64 FR at 48727. EPA received comments on the proposed 1999 FIP but did not take action finalizing the proposal. Today's proposed rule would promulgate Federally enforceable emissions limits for PM and SO 2 . The 1991 visibility FIP includes an SO 2 emission limit for the NGS that is more stringent than the emissions limitation for SO 2 set out in today's proposed rule. However, the SO 2 limit included in today's proposed rule is a short-term emissions limit, unlike the annual emissions limit in the 1991 visibility FIP. EPA is also proposing to establish an emissions limitation for opacity and a requirement for control measures to limit dust emissions. In addition, the proposed FIP contains NO X and SO 2 emissions limitations that apply to NGS as part of the Acid Rain program, which was also added when the Clean Air Act was amended in 1990. II. Basis for Proposed Action EPA's Authority To Promulgate a FIP in Indian Country As mentioned above, States generally lack authority to administer Clean Air Act programs in Indian country. See *Alaska* v. *Native Village of Venetie Tribal Government,* 533 U.S. 520, 526 n.1 (1998). In the preamble to the proposed and final 1998 TAR, EPA discusses generally the legal basis under the CAA by which EPA is authorized to regulate sources of air pollution in Indian country. See 59 FR 43956; 63 FR 7253. EPA concluded that the CAA authorizes EPA to protect air quality throughout Indian country. See 63 FR 7262; 59 FR 43960-43961 (citing, among other things, to CAA sections 101(b)(1), 301(a), and 301(d)). In fact, in promulgating the TAR, EPA specifically provided that, pursuant to the discretionary authority explicitly granted to EPA under sections 301(a) and 301(d)(4) of the Act, EPA “[s]hall promulgate without unreasonable delay such Federal implementation plan provisions as are necessary or appropriate to protect air quality, consistent with the provisions of sections 304(a) [sic] and 301(d)(4), if a tribe does not submit a tribal implementation plan meeting the completeness criteria of 40 CFR part 51, Appendix V, or does not receive EPA approval of a submitted tribal implementation plan.” See 63 FR at 7273 (codified at 40 CFR 49.11(a)). 2 2 In the preamble to the final TAR, EPA explained that it was inappropriate to treat Tribes in the same manner as States with respect to section 110(c) of the Act, which directs EPA to promulgate a FIP within two years after EPA finds a state has failed to submit a complete state plan or within two years after EPA disapproval of a state plan. Although EPA is not required to promulgate a FIP within the two-year period for Tribes, EPA promulgated 40 CFR 49.11(a) to clarify that EPA will continue to be subject to the basic requirement to issue any necessary or appropriate FIP provisions for affected tribal areas within some reasonable time. See 63 FR at 7264-7265. Since there is not currently an approved Implementation Plan covering NGS, a regulatory gap exists with regard to this facility. EPA is thus proposing to remedy this gap with a source-specific FIP. This FIP will establish Federally enforceable emissions limits for PM, SO 2 , and opacity, and control measures for dust. Therefore, in this proposed FIP, EPA is exercising its discretionary authority under sections 301(a) and 301(d)(4) of the CAA and 40 CFR 49.11(a) to promulgate a FIP to remedy an existing regulatory gap under the Act with respect to NGS. EPA's FIP will establish Federally enforceable emissions limits applicable to NGS to provide for maintenance of the national ambient air quality standards. Given the magnitude of the emissions from the plant, EPA believes that the proposed FIP provisions are necessary or appropriate to protect air quality on the Reservation. III. Navajo Generating Station Facility Description NGS is a 2250 MW (net generation) coal-fired power plant located on the Navajo Indian Reservation near Page, Arizona. NGS is a baseload generating station consisting of three 750 MW (net generation) units which became operational between 1974 and 1976. SRP is the operating agent for NGS, which is jointly owned by SRP, the Los Angeles Department of Water and Power, the Arizona Public Service, the Nevada Power Company, and the Tucson Electric Power Company. Existing pollution control equipment at NGS includes electrostatic precipitators for PM removal and burners specifically designed for NO X control. Furthermore, to meet the emission limits in the 1991 visibility FIP, NGS installed limestone wet scrubbers on each unit to reduce SO 2 emissions by 90%. These scrubbers are now fully operational. Compliance with the SO 2 emission limit in the 1991 visibility FIP is determined on a plant-wide annual rolling average basis. See 40 CFR 52.145. IV. Summary of FIP Provisions A. Proposed FIP Standards 1. EPA is proposing to limit particulate matter at 0.060 pounds per million british thermal units (lbs/MMbtu), determined by averaging the results of at least three sampling runs, each at minimum 60 minutes in duration, each collecting a minimum sample of 30 dry standard cubic feet, on a plant-wide basis. The Arizona particulate emissions standard was changed from 17.0 Q 0.4320 pounds per hour (where Q is million BTU per hour) to 0.060 pounds per million BTU because this standard is a generally recognized form for the particulate standard and it is more reliably measured. 3 3 Using EPA Region 9's policy of conducting emissions tests at 90 percent to 100 percent of the facility's full load, the original equation in the Arizona State Implementation Plan

(SIP)yields estimated allowable emissions of between 0.057 and 0.061 pounds per million BTU. Thus, a limit of 0.060 lb/MMbtu is appropriate. The FIP we are proposing specifically states that the particulate standard will be measured on a plant-wide basis. Although the Arizona permit did not state this explicitly, this was the way that Arizona determined compliance at the NGS historically. 2. Opacity from each unit is limited to 20% averaged over any normal six

(6)minute period, excluding condensed water vapor, and 40% opacity, averaged over six

(6)minutes, during absorber upset transition periods. The proposed opacity standard specifically excludes condensed water vapor. NGS has opacity monitors on each of its stacks; condensed water vapor, which will be present in all stacks because of the SO 2 scrubbers, causes inaccurate excess emission readings on the opacity monitors. Therefore, excess opacity due to condensed water vapor in the stack does not constitute a reportable exceedance. 3. SO 2 emissions are limited to 1 lb/MMbtu averaged over a three-hour period, on a plant-wide basis. 4 The method of compliance determination has been changed from one based on the sulfur content of coal to one based on continuous emission monitoring (CEM). We are making this change not only because the facility has experienced difficulty with the analysis of the sulfur content of coal, but because the Federal acid rain regulations require CEM monitoring, which is generally recognized as being more accurate and precise than monitoring the sulfur content of coal. 4 This emissions limit for SO 2 was previously established in the Arizona State Implementation Plan. NGS previously complied with the limit of 1 lb/MMbtu on a per-unit basis by using very low sulfur coal. Because NGS has now installed scrubbers to comply with the 1991 visibility FIP, however, NGS will be able to comply with its short-term limits by removing sulfur from the exhaust stream. This will allow NGS to purchase slightly higher sulfur coal; additionally, the plant-wide average allows one scrubber to be down for periodic maintenance (lasting usually 30 to 40 days) without requiring the purchase of specific low sulfur coal for use during the maintenance. Nevertheless, the actual SO 2 emissions from NGS will remain 90% lower on an annual basis than they were before the scrubbers were installed to comply with the 1991 visibility FIP. To ensure, however, that NGS continues to meet this limit, we are proposing to include the 1 lb/MMbtu 3 hour average limit in today's FIP. With the scrubbers in place, the plantwide hourly emissions (tons per hour) will always be less than under the prior state limit, since at least one unit with its scrubber operating and removing SO 2 will be needed to meet the plantwide SO 2 three hour limit. 4. Opacity is limited to 20 percent averaged over a six minute period for dust from emissions associated with coal transfer and storage and other dust-generating activities. NGS is required to submit a description of the dust control measures. B. Other Requirements All periods of excess emissions are violations of the emission limitation. This rule does, however, provide NGS with an affirmative defense to enforcement actions for penalties brought for excess emissions that arise during certain startup, shutdown, and malfunction episodes. As explained in EPA's excess emissions policy 5 , affirmative defenses must be restricted to malfunctions that are sudden, unavoidable, and unpredictable. In addition, NGS must have taken all possible steps to minimize excess emissions. This rule accordingly requires an owner or operator to meet several conditions to qualify for an affirmative defense. An affirmative defense is not available to NGS if, during the period of excess emissions, there was an exceedance of the relevant ambient air quality standard that could be attributed to NGS. 5 “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (September 20, 1999)(the Excess Emissions Policy). C. Compliance Schedule EPA proposes that the requirements contained in this proposal become effective upon final promulgation of these regulations. V. Other Requirements for NGS A. Visibility FIP Under the 1991 visibility FIP, SO 2 emissions are limited to 0.1 lb/MMbtu on a plant-wide (all units, either in operation or not) rolling annual basis. NGS installed scrubbers, operable on all three units, by February 1999. The SO 2 scrubbers substantially lower the SO 2 emissions from NGS. When the scrubbers are operating, SO 2 emissions are less than 0.1 lbs/MMbtu. However, we note that compliance with the SO 2 emission limits is determined based on an annual average, as this was determined to be protective of visibility in the Grand Canyon. These provisions are not being amended or changed by today's action. B. Acid Rain Program Requirements NGS is subject to the Federal Acid Rain requirements under title IV of the Clean Air Act. NGS elected to comply early as a Phase I NO X facility which means NGS currently has a NO X limit of 0.45 lbs/MMbtu, per unit, on an annual basis. This limit applies until 2008, when it will be lowered to 0.40 lbs/MMbtu. VI. Solicitation of Comments The EPA solicits comments on all aspects of today's proposal to promulgate a FIP to regulate air emissions from NGS. Interested parties should submit comments to the address listed in the front of this proposed rule. Public comments postmarked by November 6, 2006 will be considered in the final action taken by EPA. VII. Administrative Requirements A. Executive Order 12866 Under Executive Order (E.O.) 12866, 58 FR 51735 (October 4, 1993), all “regulatory actions” that are “significant” are subject to Office of Management and Budget

(OMB)review and the requirements of the Executive Order. A “regulatory action” is defined as “any substantive action by an agency (normally published in the **Federal Register** ) that promulgates or is expected to result in the promulgation of a final rule or regulation, including* * * notices of proposed rulemaking.” A “regulation or rule” is defined as “an agency statement of general applicability and future effect,* * * .” The proposed FIP is not subject to OMB review under E.O. 12866 because it applies to only a single, specifically named facility and is therefore not a rule of general applicability. Thus, it is not a “regulatory action” under E.O. 12866. B. Regulatory Flexibility Act Under the Regulatory Flexibility Act, 5 U.S.C. 601 et. seq., EPA must prepare a regulatory flexibility analysis to assess the impact of any proposed or final rule on small entities. See 5 U.S.C. 603 and 604. Alternatively, EPA may certify 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 government entities with jurisdiction over populations of less than 50,000. The Federal implementation plan for the Navajo Generating Station proposed today does not impose any new requirements on small entities. See *Mid-Tex Electric Cooperative, Inc.* v. *FERC,* 773 F.2d 327 (D.C. Cir. 1985)(agency's certification need only consider the rule's impact on entities subject to the requirements of the rule). Therefore, pursuant to 5 U.S.C. 605(b), EPA certifies that today's action does not have a significant impact on a substantial number of small entities within the meaning of those terms for RFA purposes. C. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under section 202 of UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed rules and for final rules for which EPA published a notice of proposed rulemaking, if those rules contain “Federal mandates” that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If section 202 requires a written statement, section 205 of UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives. Under section 205, EPA must adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule, unless the Regional Administrator publishes with the final rule an explanation why EPA did not adopt that alternative. The provisions of section 205 do not apply when they are inconsistent with applicable law. Section 204 of UMRA requires EPA to develop a process to allow elected officers of state, local, and tribal governments (or their designated, authorized employees), to provide meaningful and timely input in the development of EPA regulatory proposals containing significant Federal intergovernmental mandates. EPA has determined that the proposed FIP contains no Federal mandates on state, local or tribal governments, because it will not impose any additional enforceable duties on any of these entities. EPA further has determined that the proposed FIP is not likely to result in the expenditure of $100 million or more by the private sector in any one year. Although the proposed FIP imposes enforceable duties on an entity in the private sector, the costs are expected to be minimal. Consequently, sections 202, 204, and 205 of UMRA do not apply to the proposed FIP. Before EPA establishes any regulatory requirements that might significantly or uniquely affect small governments, it must have developed under section 203 of UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that the proposed FIP will not significantly or uniquely affect small governments, because it imposes no requirements on small governments. Therefore, the requirements of section 203 do not apply to the proposed FIP. Nonetheless, EPA worked closely with representatives of the Tribe in the development of today's proposed action. D. Paperwork Reduction Act Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must approve all “collections of information” by EPA. The Act defines “collection of information” as a requirement for “answers to * * * identical reporting or recordkeeping requirements imposed on ten or more persons * * *.” 44 U.S.C. 3502(3)(A). Because the proposed FIP only applies to one company, the Paperwork Reduction Act does not apply. E. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks The NGS FIP is not subject to Executive Order 13045 because it implements previously promulgated health or safety-based Federal standards. Executive Order 13045 applies to any rule that:

(1)Is determined to be “economically significant” as that term is defined in E.O. 12866, and

(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. EPA interprets E.O. 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. F. Executive Order 12875: Enhancing the Intergovernmental Partnership Under Executive Order 12875, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a state, local or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 12875 requires EPA to provide to the Office of Management and Budget a description of the extent of EPA's prior consultation with representatives of affected State, local and tribal governments, the nature of their concerns, any written communications from the governments, and EPA's position supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives of state, local and tribal governments “to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.” As stated above, the proposed FIP will not create a mandate on state, local or tribal governments because it will not impose any additional enforceable duties on these entities. Accordingly, the requirements of section 1(a) of Executive Order 12875 do not apply to this rule. Nonetheless, EPA worked closely with representatives of the Tribe during the development of today's proposed action. G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Under Executive Order 13175, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13175 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13175 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.” The proposed FIP does not impose substantial direct compliance costs on the communities of Indian tribal governments. The proposed FIP imposes obligations only on the owner or operator of NGS. Accordingly, the requirements of section 3(b) of Executive Order 13175 do not apply to this rule. As discussed above, EPA worked closely with representatives of the Tribe during the development of today's proposed action. H. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12 (10 (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards

(VCS)are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by the voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through annual reports to OMB, with explanations when the Agency decides not to use available and applicable voluntary consensus standards. EPA Performance Specification 1 (see 40 CFR part 60, Appendix B) for the opacity monitoring for this facility is a consensus standard. It was promulgated on August 10, 2000. With regard to the remaining measurement needs as listed below, there are a number of voluntary consensus standards that appear to have possible use in lieu of the EPA test methods and Performance Specifications (40 CFR part 60, Appendices A and B) noted next to the measurement requirements. It would not be practical to specify these standards in the current rulemaking due to a lack of sufficient data on equivalency and validation and because some are still under development. However, EPA's Office of Air Quality Planning and Standards is in the process of reviewing all available VCS for incorporation by reference into the test methods and performance specifications of 40 CFR part 60, Appendices A and B. Any VCS so incorporated in a specified test method or performance specification would then be available for use in determining the emissions from this facility. This will be an ongoing process designed to incorporate suitable VCS as they become available. *Particulate Matter Emissions* —EPA Methods 5 or 17. *Opacity* —EPA Method 9 and Performance Specification Test 1 for Opacity Monitoring. *SO* 2 —EPA Method 6C and Performance Specification 2 for Continuous SO 2 Monitoring. List of Subjects in 40 CFR Part 49 Environmental protection, Administrative practice and procedure, Air pollution control, Indians, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: August 30, 2006. Laura Yoshii, Acting Regional Administrator, Region IX. Title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows: PART 49—[AMENDED] 1. The authority citation for part 49 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* 2. Part 49 is proposed to be amended by adding § 49.20 to read as follows: § 49.20 Federal Implementation Plan Provisions for Navajo Generating Station, Navajo Nation.

(a)*Applicability* . The provisions of this section shall apply to each owner or operator of the fossil fuel-fired, steam-generating equipment designated as Units 1, 2, and 3, and the two auxiliary steam boilers at the Navajo Generating Station

(NGS)on the Navajo Nation located in the Northern Arizona Intrastate Air Quality Control Region (see 40 CFR 81.270).

(b)*Compliance Dates.* Compliance with the requirements of this section is required upon the effective date of this section.

(c)*Definitions.* For the purposes of this section:

(1)*Absorber upset transition period* means the 24-hour period following an upset of an SO 2 absorber mode.

(2)*Affirmative defense* means, in the context of an enforcement proceeding, a response or defense put forward by a defendant, regarding which the defendant has the burden of proof, and the merits of which are independently and objectively evaluated in a judicial or administrative proceeding. This rule provides an affirmative defense to actions for penalties brought for excess emissions that arise during certain malfunction episodes.

(3)*Malfunction* means any sudden and unavoidable failure of air pollution control equipment or process equipment or of a process to operate in a normal or usual manner. Failures that are caused entirely or in part by poor maintenance, careless operation, or any other preventable upset condition or preventable equipment breakdown shall not be considered malfunctions. An affirmative defense is not available if during the period of excess emissions, there was an exceedance of the relevant ambient air quality standard that could be attributed to the emitting source.

(4)*Owner or Operator* means any person who owns, leases, operates, controls or supervises the NGS, any of the fossil fuel-fired, steam-generating equipment at the NGS, or the auxiliary steam boilers at the NGS.

(5)*Plant-wide* means a weighted average of particulate matter and SO 2 emissions for Units 1, 2, and 3 based on the heat input to each unit as determined by 40 CFR part 75.

(6)*Point source* means any crusher, any conveyor belt transfer point, any pneumatic material transferring, any baghouse or other control devices used to capture dust emissions from loading and unloading, and any other stationary point of dust that may be observed in conformance with Method 9 (excluding stockpiles).

(7)*Regional Administrator* means the Regional Administrator of the Environmental Protection Agency Region 9 or his/her authorized representative.

(8)*Startup* shall mean the period from start of fires in the boiler with fuel oil, to the time when the electrostatic precipitator is sufficiently heated such that the temperature of the air preheater inlet reaches 400 degrees Fahrenheit and startup ends when a unit reaches 300 MW net load. Proper startup procedures shall include energizing the electrostatic precipitator prior to the combustion of coal in the boiler. This rule provides an affirmative defense to actions for penalties brought for excess emissions that arise during startup episodes. An affirmative defense is not available if during the period of excess emissions, there was an exceedance of the relevant ambient air quality standard that could be attributed to the emitting source.

(9)*Shutdown* shall be the period from cessation of coal fires in the boiler until the electrostatic precipitator is de-energized. Shutdown begins when the unit drops below 300 MW net load with the intent to remove the unit from service. The precipitator shall be maintained in service until boiler fans are disengaged. This rule provides an affirmative defense to actions for penalties brought for excess emissions that arise during shutdown episodes. An affirmative defense is not available if during the period of excess emissions, there was an exceedance of the relevant ambient air quality standard that could be attributed to the emitting source.

(10)*Oxides of nitrogen (NO* X ) means the sum of nitrogen oxide

(NO)and nitrogen dioxide (NO 2 ) in the flue gas, expressed as nitrogen dioxide.

(d)*Emissions Limitations and Control Measures.*

(1)*Sulfur Oxides.* No owner or operator shall discharge or cause the discharge of sulfur oxides into the atmosphere from Units 1, 2 or 3 in excess of 1.0 pound per million British thermal units (lb/MMBtu) averaged over any three

(3)hour period, on a plant-wide basis.

(2)* Particulate Matter.* No owner or operator shall discharge or cause the discharge of particulate matter into the atmosphere in excess of 0.060 lb/MMBtu, as averaged from at least three sampling runs, each at minimum 60 minutes in duration, each collecting a minimum sample of 30 dry standard cubic feet, on a plant-wide basis.

(3)*Dust.* Each owner or operator shall operate and maintain the existing dust suppression methods for controlling dust from the coal handling and storage facilities. Within ninety

(90)days after promulgation of these regulations the owner or operator shall submit to the Regional Administrator a description of the dust suppression methods for controlling dust from the coal handling and storage facilities, fly ash handling and storage, and road sweeping activities. Each owner or operator shall not emit dust with an opacity greater than 20% from any crusher, grinding mill, screening operation, belt conveyor, truck loading or unloading operation, or railcar unloading station.

(4)*Opacity.* No owner or operator shall discharge or cause the discharge of emissions from the stacks of Units 1, 2, or 3 into the atmosphere exhibiting greater than 20% opacity, excluding condensed water vapor, averaged over any normal six

(6)minute period and 40% opacity, averaged over six

(6)minutes, during absorber upset transition periods.

(e)*Testing and Monitoring.*

(1)Effective sixty

(60)days after promulgation of this section, the owner or operator shall maintain and operate Continuous Emissions Monitoring Systems

(CEMS)for NO X and SO 2 and Continuous Opacity Monitoring Systems

(COMS)on Units 1,2, and 3 in accordance with 40 CFR 60.8 and 60.13(e), (f), and (h), and Appendix B of Part 60. The owner or operator shall comply with the quality assurance procedures for CEMS and COMS found in 40 CFR part 75, or 40 CFR part 60, whichever is more stringent.

(2)The owner or operator shall conduct annual mass emissions tests for particulate matter on Units 1, 2, and 3, operating at rated capacity, using coal that is representative of that normally used. The tests shall be conducted using the appropriate test methods in 40 CFR part 60, Appendix A.

(3)Within 90 days after promulgation of this section, the owner or operator shall conduct initial mass emissions tests for sulfur dioxide, nitrogen oxides and particulate matter on the two auxiliary steam boilers, operating at rated capacity, using oil that is representative of that normally used. Thereafter, the tests shall be conducted annually from the promulgation date of this rule or after 720 hours of operation, whichever is later. The tests shall be conducted using the appropriate test methods in 40 CFR part 60, Appendix A. For particulate matter, testing shall consist of three test runs. Each test run shall be at least sixty

(60)minutes in duration and shall collect a minimum volume of thirty

(30)dry standard cubic feet.

(4)The owner or operator shall maintain two sets of opacity filters for each type of COMS, one set to be used as calibration standards and one set to be used as audit standards. At least one set of filters shall be on site at all times.

(5)All emissions testing and monitor evaluation required pursuant to this section shall be conducted in accordance with the appropriate method found in 40 CFR part 60, Appendices A and B.

(6)The owner or operator shall install, maintain and operate ambient monitors at Glen Canyon Dam for particulate matter (PM 2.5 and PM 10 ), nitrogen dioxide, sulfur dioxide, and ozone. Operation, calibration and maintenance of the monitors shall be performed in accordance with 40 CFR part 58, manufacturer's specification, and “Quality Assurance Handbook for Air Pollution Measurements Systems”, Volume II, U.S. EPA as applicable to single station monitors. Data obtained from the monitors shall be reported annually to the Regional Administrator. All particulate matter samplers shall operate at least once every six days, coinciding with the national particulate sampling schedule.

(7)Nothing herein shall limit EPA's ability to ask for a test at any time under section 114 of the Clean Air Act, 42 U.S.C. 7413, and enforce against any violation of the Clean Air Act or this section.

(f)*Reporting and Recordkeeping Requirements.* Unless otherwise stated all requests, reports, submittals, notifications and other communications to the Regional Administrator required by this section shall be submitted to the Director, Navajo Environmental Protection Agency, P.O. Box 339, Window Rock, Arizona 86515,

(928)871-7692,

(415)972-3990,

(415)947-3579 (facsimile). For each unit subject to the emissions limitations in this section the owner or operator shall:

(1)Comply with the notification and recordkeeping requirements for testing found in 40 CFR 60.7. All data/reports of testing results shall be submitted to the Regional Administrator and postmarked within 60 days of testing.

(2)For excess emissions, notify the Navajo Environmental Protection Agency Director and the U.S. Environmental Protection Agency Regional Administrator by telephone or in writing within one business day. This notification should be sent to the Director, Navajo Environmental Protection Agency, by mail to: P.O. Box 339, Window Rock, Arizona 86515, or by facsimile to:

(928)871-7996 (facsimile), and to the Regional Administrator, U.S. Environmental Protection Agency Region 9, by mail to the attention of Mail Code: AIR-5, at 75 Hawthorne Street, San Francisco, California 94105, by facsimile to:

(415)947-3579 (facsimile), or by e-mail to: *r9.aeo@epa.gov* . A complete written report of the incident shall be submitted to the Regional Administrator within ten

(10)working days after the event. This notification shall include the following information:

(i)The identity of the stack and/or other emissions points where excess emissions occurred;

(ii)The magnitude of the excess emissions expressed in the units of the applicable emissions limitation and the operating data and calculations used in determining the magnitude of the excess emissions;

(iii)The time and duration or expected duration of the excess emissions;

(iv)The identity of the equipment causing the excess emissions;

(v)The nature and cause of such excess emissions;

(vi)If the excess emissions were the result of a malfunction, the steps taken to remedy the malfunction and the steps taken or planned to prevent the recurrence of such malfunction; and

(vii)The steps that were taken or are being taken to limit excess emissions.

(3)Notify the Regional Administrator verbally within one business day of determination that an exceedance of the NAAQS has been measured by a monitor operated in accordance with this regulation. The notification to the Regional Administrator shall include the time, date, and location of the exceedance, and the pollutant and concentration of the exceedance. The verbal notification shall be followed within fifteen

(15)days by a letter containing the following information:

(i)The time, date, and location of the exceedance;

(ii)The pollutant and concentration of the exceedance;

(iii)The meteorological conditions existing 24 hours prior to and during the exceedance;

(iv)For a particulate matter exceedance, the 6-minute average opacity monitoring data greater than 20% for the 24 hours prior to and during the exceedance; and

(v)Proposed plant changes such as operation or maintenance, if any, to prevent future exceedances. Compliance with this paragraph (f)(3)(v) shall not excuse or otherwise constitute a defense to any violations of this section or of any law or regulation which such excess emissions or malfunction may cause.

(4)Submit quarterly excess emissions reports for sulfur dioxide and opacity as recorded by CEMS and COMS together with a CEMS data assessment report to the Regional Administrator no later than 30 days after each calendar quarter. The owner or operator shall complete the excess emissions reports according to the procedures in 40 CFR 60.7(c) and

(d)and include the Quality Assurance assessment of Appendix F of part 60. Excess opacity due to condensed water vapor in the stack does not constitute a reportable exceedance, however, the length of time during which water vapor interfered with COMs readings should be summarized in the § 60.7(c) report.

(g)*Compliance Certifications.* Notwithstanding any other provision in this implementation plan, the owner or operator may use any credible evidence or information relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test had been performed, for the purpose of submitting compliance certifications.

(h)*Equipment Operations.* The owner or operator shall operate all equipment or systems needed to comply with this section in accordance with 40 CFR 60.11(d) and consistent with good engineering practices to keep emissions at or below the emissions limitations in this section, and following outages of any control equipment or systems the control equipment or system will be returned to full operation as expeditiously as practicable.

(i)*Enforcement.*

(1)Notwithstanding any other provision in this implementation plan, any credible evidence or information relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test had been performed, can be used to establish whether or not a person has violated or is in violation of any standard in the plan.

(2)During periods of start-up and shutdown the otherwise applicable emission limits or requirements for opacity and particulate matter shall not apply provided that:

(ii)The frequency and duration of operation in start-up or shutdown mode are minimized to the maximum extent practicable; and

(iii)The owner or operator's actions during start-up and shutdown periods are documented by properly signed, contemporaneous operating logs, or other relevant evidence.

(i)The malfunction was the result of a sudden and unavoidable failure of process or air pollution control equipment and did not result from inadequate design or construction of the process or air pollution control equipment;

(ii)The malfunction did not result from operator error or neglect, or from improper operation or maintenance procedures;

(iii)The excess emissions were not part of a recurring pattern indicative of inadequate design, operation, or maintenance;

(iv)Steps were immediately taken to correct conditions leading to the malfunction, and the amount and duration of the excess emissions caused by the malfunction were minimized to the maximum extent practicable;

(v)All possible steps were taken to minimize the impact of the excess emissions on ambient air quality;

(vi)All emissions monitoring systems were kept in operation if at all possible; and

(vii)The owner or operator's actions in response to the excess emissions were documented by properly signed, contemporaneous operating logs, or other relevant evidence. [FR Doc. E6-15086 Filed 9-11-06; 8:45 am] BILLING CODE 6560-50-P GENERAL SERVICES ADMINISTRATION 41 CFR Part 102-35 [FMR Case 2004-102-1] RIN 3090-AH93 Federal Management Regulation; Disposition of Personal Property AGENCY: Office of Governmentwide Policy, General Services Administration (GSA). ACTION: Proposed rule. SUMMARY: The General Services Administration is amending the Federal Management Regulation

(FMR)by revising coverage on personal property and moving it into Subchapter B of the FMR. This proposed rule adds a new part to Subchapter B of the FMR to provide an overview of the property disposal regulation and provide definitions for terms found in the FMR parts as well as the Federal Property Management Regulations

(FPMR)parts. The FPMR parts will be included in the FMR in the near future. The FMR and any corresponding documents may be accessed at GSA's Web site at *http://www.gsa.gov/fmr* . DATES: Interested parties should submit comments in writing on or before October 12, 2006 to be considered in the formulation of a final rule. ADDRESSES: Submit comments identified by FMR case 2004-102-1 by any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. • Agency Web Site: *http://www.gsa.gov/fmr* . Click on FMR Proposed Rules, and the FMR case number to submit comments. • E-mail: *fmrcase.2004-102-1@gsa.gov.* Include FMR case 2004-102-1 in the subject line of the message. • Fax: 202-501-4067. • Mail: General Services Administration, Regulatory Secretariat (VIR), 1800 F Street, NW., Room 4035, ATTN: Laurieann Duarte, Washington, DC 20405. *Instructions:* Please submit comments only and cite FMR case 2004-102-1 in all correspondence related to this case. All comments received will be posted without change to *http://www.gsa.gov/fmr* , including any personal information provided. Click on “FMR Public Comments”. FOR FURTHER INFORMATION CONTACT The Regulatory Secretariat, Room 4035, GS Building, Washington, DC 20405, at

(202)501-4755 for information pertaining to status or publication schedules. For clarification of content, contact Mr. Robert Holcombe, Office of Governmentwide Policy, Personal Property Management Policy, at

(202)501-3828, or e-mail at *robert.holcombe@gsa.gov* . Please cite FMR case 2004-102-1. SUPPLEMENTARY INFORMATION: A. Background This proposed rule adds a new part, 102-35, to Subchapter B of the FMR to provide an overview of the property disposal regulation and to provide definitions for terms found in FMR parts 102-36 through 102-42 (41 CFR 102-36 through 102-42), as well as FPMR parts 101-42 and 101-48 (41 CFR 101-42 and 101-48) which will be included in the FMR in the near future. This part serves as a summary and overview of the policies relating to the disposal of Federal personal property and provides overall guidance for all methods of property disposal. Finally, this part emphasizes the use of excess property from other agencies as the first source of supply, and specifically identifying the preference to transfer property to Federal agencies for their own use before transferring that property to agencies for use by non-Federal entities. B. Executive Order 12866 GSA has determined that this proposed rule is not a significant rule for the purposes of Executive Order 12866 of September 30, 1993. C. Regulatory Flexibility Act This proposed rule is not required to be published in the **Federal Register** for notice and comment; therefore the Regulatory Flexibility Act, 5 U.S.C. 601, *et seq.* , does not apply. D. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the proposed rule does not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public which require the approval of the Office of Management and Budget

(OMB)under 44 U.S.C. 3501 *et seq.* E. Small Business Regulatory Enforcement Fairness Act This proposed rule is exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel. List of Subjects in 41 CFR Part 102-35 Government employees, Personal property. Dated: January 18, 2006. John G. Sindelar, Acting Associate Administrator, Office of Governmentwide Policy. For the reasons set forth in the preamble, GSA proposes to amend 41 CFR chapter 102 as follows: CHAPTER 102—FEDERAL MANAGEMENT REGULATION 1. Part 102-35 is added to subchapter B of chapter 102 to read as follows: PART 102-35—DISPOSITION OF PERSONAL PROPERTY Sec. 102-35.5 What is the scope of the General Services Administration's regulations on the disposal of personal property? 102-35.10 How are these regulations for the disposal of personal property organized? 102-35.15 What are the goals of GSA's personal property regulations? 102-35.20 What definitions apply to GSA's personal property regulations? 102-35.25 What management reports must we provide? 102-35.30 What actions must I take regardless of the property disposition method? Authority: 40 U.S.C. 121(c). § 102-35.5 What is the scope of the General Services Administration's regulations on the disposal of personal property? The General Services Administration's personal property disposal regulations contained in this part and parts 102-36 through 102-42 of this subchapter B as well as parts 101-42 and 101-48 of the Federal Property Management Regulations (41 CFR parts 101-42 and 101-48) cover the disposal of personal property under the custody and control of executive agencies located in the United States, the U.S. Virgin Islands, American Samoa, Guam, Puerto Rico, the Northern Mariana Islands, the Federated States of Micronesia, the Marshall Islands, and Palau, except in part 102-39 of this subchapter B which applies to the replacement of all property owned by executive agencies worldwide using the exchange/sale authority and in sections 102-36.380 through 102-36.400 which apply to the disposal of excess property located in countries and areas not listed in this subpart. The legislative and judicial branches are encouraged to follow these provisions for property in their custody and control. § 102-35.10 How are these regulations for the disposal of personal property organized? The General Services Administration

(GSA)has divided its regulations for the disposal of personal property into the following program areas:

(a)Disposition of excess personal property (part 102-36 of this subchapter B).

(b)Donation of surplus personal property (part 102-37 of this subchapter B).

(c)Sale of surplus personal property (part 102-38 of this subchapter B).

(d)Replacement of personal property pursuant to the exchange/sale authority (part 102-39 of this subchapter B).

(e)Utilization and disposal of hazardous materials and certain categories of property (part 101-42 of the Federal Property Management Regulations (FPMR), 41 CFR 101-42).

(f)Disposition of seized and forfeited, voluntarily abandoned, and unclaimed personal property (part 101-48 of the FPMR, 41 CFR 101-48).

(g)Utilization, donation, and disposal of foreign gifts and decorations (part 102-42 of this subchapter B). § 102-35.15 What are the goals of GSA's personal property regulations? The goals of GSA's personal property regulations are to—

(a)Reduce procurement costs by maximum use of the exchange/sale authority for the replacement of personal property;

(b)Improve the identification and reporting of excess personal property;

(c)Maximize the use of excess property as the first source of supply to minimize expenditures for the purchase of new property, when practicable; *Note to § 102-35.15(c)* : If there are competing requests among Federal agencies for excess property, preference will be given to agencies where the transfer will avoid a new Federal procurement. A transfer to an agency where the agency will provide the property to a non-Federal entity for the non-Federal entity's use will be secondary to Federal use.

(d)Achieve maximum use of Government property through the donation of surplus personal property to State and local public agencies and other eligible non-Federal recipients;

(e)Obtain the optimum monetary return to the Government for surplus personal property sold and property sold under the exchange/sale authority; and

(f)Reduce management and inventory costs by appropriate use of the abandonment/destruction authority to dispose of unneeded personal property that has no commercial value or the estimated cost of continued care and handling would exceed the estimated sales proceeds (see FMR §§ 102-36.305 through 102-36.330). § 102-35.20 What definitions apply to GSA's personal property regulations? The following are definitions of, or cross-references to, some key terms that apply to GSA's personal property regulations. Other personal property terms are defined in the sections or parts to which they primarily apply. *Abandoned or other unclaimed property* (see § 101-48.001-1 of the Federal Property Management Regulations (41 CFR 101-48.001-1)). *Accountable Personal Property* includes nonexpendable personal property whose expected useful life is two years or longer and whose acquisition value, as determined by the agency, warrants tracking in the agency's property records, including capitalized and sensitive personal property. *Accountability* means the ability to account for personal property by providing a complete audit trail for property transactions from receipt to final disposition. *Acquisition cost* means the original purchase price of an item. *Capitalized Personal Property* includes property that is entered on the agency's general ledger records as a major investment or asset. An agency must determine its capitalization level based on generally accepted accounting standards as defined by the American Institute of Certified Public Accountants. *Control* means the ongoing function of maintaining physical oversight and surveillance of personal property throughout its complete life cycle using various property management tools and techniques taking into account the environment in which the property is located and its vulnerability to theft, waste, fraud, or abuse. *Excess personal property* (see § 102-36.40 of this subchapter B). *Exchange/sale* (see § 102-39.20 of this subchapter B). *Executive agency* (see § 102-36.40 of this subchapter B). *Federal agency* (see § 102-36.40 of this subchapter B). *Foreign gifts and decorations* (see § 102-42.10 of this subchapter B). *Forfeited property* (see § 101-48.001-5 of the FPMR (41 CFR 101-48.001-5)). *Inventory* includes a formal listing of all accountable property items assigned to an agency, along with a formal process to verify the condition, location, and quantity of such items. This term may also be used as a verb to indicate the actions leading to the development of a listing. In this sense, an inventory must be conducted using an actual physical count, electronic means, and/or statistical methods. *National property management officer* means an official, designated in accordance with § 102-36.45(b) of this subchapter B, who is responsible for ensuring effective acquisition, use, and disposal of excess property within your agency. *Personal property* (see § 102-36.40 of this subchapter B). *Property management* means the system of acquiring, maintaining, using and disposing of the physical assets of an organization or entity. *Seized property* means personal property that has been confiscated by a Federal agency, and whose care and handling will be the responsibility of that agency until final ownership is determined by the judicial process. *Sensitive Personal Property* includes all items, regardless of value, that require special control and accountability due to unusual rates of loss, theft or misuse, or due to national security or export control considerations. Such property includes weapons, ammunition, explosives, and classified property or records, information technology equipment with memory capability, cameras, and communications equipment. These classifications do not preclude agencies from specifying additional personal property classifications to effectively manage their programs. *Surplus personal property* (see § 102-37.25 of this subchapter B). *Utilization* means the identification, reporting, and transfer of excess personal property among Federal agencies to fill current or future authorized requirements in lieu of new procurement. § 102-35.25 What management reports must we provide?

(a)There are three reports that must be provided. The report summarizing the property provided to non-Federal recipients and the report summarizing exchange/sale transactions (see FMR 102-36.295 and FMR 102-39.75 respectively) must be provided every year (negative reports are required). In addition, if you conduct negotiated sales of surplus personal property valued over $5,000 in any year, you must report this transaction in accordance with FMR 102-38.115 (negative reports are not required for this report).

(b)The General Services Administration

(GSA)may request other reports as authorized by 40 U.S.C. 506(a)(1)(A). § 102-35.30 What actions must I take regardless of the property disposition method? Regardless of the disposition method used, you should take the following actions.

(a)You must maintain property in a safe, secure, and cost-effective manner until final disposition.

(b)You have authority to use the abandonment/destruction provisions at any stage of the disposal process (see §§ 102-36.305 through 102-36.330 and § 102-38.70 of this subchapter B).

(c)You must implement policies and procedures to remove sensitive or classified information from property. Agency-affixed markings should be removed, if at all possible, prior to property permanently leaving your agency's control.

(d)Government property may only be used as authorized by your agency. Title to Government property may not be transferred to a non-Federal entity unless through official procedures specifically authorized by law. [FR Doc. E6-15073 Filed 9-11-06; 8:45 am] BILLING CODE 6820-14-S 71 176 Tuesday, September 12, 2006 Notices DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service [Docket No. FSIS-2006-0019] The National Advisory Committee on Meat and Poultry Inspection; Nominations for Membership AGENCY: Food Safety and Inspection Service (FSIS), USDA. ACTION: Notice. SUMMARY: The U.S. Department of Agriculture

(USDA)is soliciting nominations for membership on the National Advisory Committee on Meat and Poultry Inspection (NACMPI). The full Committee consists of no less than 16 and no more than 18 members, and each person selected is expected to serve a two year term. Existing members can serve three consecutive two year terms. USDA is soliciting nominations in order to fill 16 to 18 vacancies on the Committee. DATES: Nomination materials must be received no later than October 12, 2006. ADDRESSES: Nominations should be submitted by e-mail to *NACMPI@fsis.usda.gov,* or by mail to Dr. Barbara J. Masters, Administrator, Food Safety and Inspection Service (FSIS), USDA, in care of the Advisory Committee Specialist, Room 405 Aerospace Building, 901 D Street, SW., Washington, DC 20250-3700, or by fax to

(202)690-6519. FOR FURTHER INFORMATION CONTACT: Loraine Cannon,

(202)690-6647. SUPPLEMENTARY INFORMATION: In accordance with the Federal Advisory Committee Act, 5 U.S.C. app. 2, USDA is seeking nominees for membership on the National Advisory Committee on Meat and Poultry Inspection. The Committee provides advice and recommendations to the Secretary on meat and poultry inspection programs, pursuant to sections 7(c), 24, 301(a)(3), and 301(c) of the Federal Meat Inspection Act, 21 U.S.C. 607(c), 624, 645, 661(a)(3), and 661(c), and to sections 5(a)(3), 5(c), 8(b), and 11(e) of the Poultry Products Inspection Act, 21 U.S.C. 454(a)(3), 454(c), 457(b), and 460(e). Nominations for membership are being sought from persons representing industry, academia, State and local government officials, public health organizations, and consumers. Nomination materials including the names of the nominees and their curricula vitae or résumés, must be submitted to the person described in the ADDRESSES section of this notice. Applications, AD-0755 Advisory Committee Membership Background Information, are available on-line in Word and pdf format at: *http://www.ocio.usda.gov/forms/ocio_forms.html.* Appointments to the Committee will be made by the Secretary. To ensure that recommendations of the Committee take into account the needs of the diverse groups served by the Department, membership shall include, to the extent practicable, individuals with demonstrated ability to represent minorities, women, and persons with disabilities. It is anticipated that the Committee will meet at least twice annually. Additional Public Notification Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that minorities, women, and persons with disabilities are aware of this notice, FSIS will announce it on-line through the FSIS Web page located at *http://www.fsis.usda.gov/regulations/2006_Notices_Index/* . FSIS also will make copies of this **Federal Register** publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, **Federal Register** notices, FSIS public meetings, recalls and other types of information that could affect or would be of interest to constituents and stakeholders. The update is communicated via Listserv, a free electronic mail subscription service for industry, trade and farm groups, consumer interest groups, allied health professionals, and other individuals who have asked to be included. The update is available on the FSIS Web page. Through the Listserv and Web page, FSIS is able to provide information to a much broader and more diverse audience. In addition, FSIS offers an e-mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available at *http://www.fsis.usda.gov/news_and_events/email_subscription/.* Options range from recalls to export information to regulations, directives and notices. Customers can add or delete subscriptions themselves and have the option to password protect their account. Done at Washington, DC on September 7, 2006. Barbara J. Masters, Administrator. [FR Doc. E6-15060 Filed 9-11-06; 8:45 am] BILLING CODE 3410-DM-P DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service [Docket No. FSIS-2006-0011E] Harvard Risk Assessment of Bovine Spongiform Encephalopathy

(BSE)Update; Notice of Availability and Technical Meeting AGENCY: Food Safety and Inspection Service, USDA. ACTION: Notice of availability; reopening and extension of comment period. SUMMARY: The Food Safety and Inspection Service

(FSIS)is reopening and extending the comment period for the 2005 updated Harvard Risk Assessment of bovine spongiform encephalopathy (BSE). The original comment period closed on August 11, 2006. The Agency is taking this action in response to a comment that was submitted after the Agency held its July 25, 2006, technical meeting to provide information on the updated risk assessment model and report. DATES: Comments are due by October 27, 2006. ADDRESSES: Comments may be submitted by any of the following methods: *Federal eRulemaking Portal:* This Web site provides the ability to type short comments directly into the comment field on this Web page or attach a file for lengthier comments. Go to *http://www.regulations.gov* and, in the “Search for Open Regulations” box, select “Food Safety and Inspection Service” from the agency drop-down menu, and then click on “Submit.” In the Docket ID column, select FDMS Docket Number FSIS-2005-0011 to submit or view public comments and to view supporting and related material available electronically. This docket can be viewed using the “Advanced Search” function in Regulations.gov. *Mail, including floppy disks or CD-ROM's, and hand or courier-delivered items:* Send to Docket Clerk, U.S. Department of Agriculture, Food Safety and Inspection Service, 300 12th Street, SW., Room 102 Cotton Annex, Washington, DC 20250. *Electronic mail: FSIS.regulationscomments@fsis.usda.gov.* All submissions received by mail and electronic mail must include the Agency name and docket number FSIS-2006-0011. All comments submitted in response to this notice will be available for public inspection in the FSIS Docket Room at the address listed above between 8:30 a.m. and 4:30 p.m., Monday through Friday. The comments also will be posted to the *regulations.gov* Web site and on the Agency's Web site at *http://www.fsis.usda.gov/regulations_&_policies/2006_Proposed_Rules_Index/index.asp.* FOR FURTHER INFORMATION CONTACT: Lynn E. Dickey, PhD, Director, Regulations and Petitions Policy Staff, Office of Policy, Program, and Employee Development, Room 112, Cotton Annex, 300 12th Street, SW., Washington, DC 20250-3700; Telephone

(202)720-5627. SUPPLEMENTARY INFORMATION: On July 12, 2006, FSIS published a notice in the **Federal Register** announcing that the Agency was making the 2005 updated Harvard Risk Assessment of BSE available to the public. In the notice, FSIS gave the public until August 11, 2006, to submit comments on the updated risk assessment. The notice also announced that the Agency would be holding a technical meeting to provide information on the 2005 updated Harvard Risk Assessment. This meeting was held on July 25, 2006. On August 1, 2006, FSIS received a comment requesting that the Agency extend the comment period on the updated Harvard Risk Assessment until 45 days from the day on which it makes the transcript of the July 25, 2006, technical meeting publicly available. The comment was submitted by a trade association that represents small cattle producers. The comment asserted that the 30-day comment period provided in the July 12, 2006, **Federal Register** notice is not an adequate amount of time to evaluate the new assumptions and analyses in the revised risk assessment, and that it needed the official transcript of the technical meeting proceedings to formulate its comments. FSIS agrees that the matters presented in the risk assessment are complex. Therefore, FSIS is reopening the comment period for 45 days as the transcript of the July 25, 2006, technical meeting is now available on the FSIS Web site at *http://www.fsis.usda.gov/PDF/BSE_Transcript_072506.pdf* and *http://www.fsis.usda.gov/News_&_Events/2006_events/index.asp* . This comment period will provide time for interested persons to fully assess the complex information presented at the technical meeting and to make written comments based upon their assessments. Additional Public Notification Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that the public and in particular minorities, women, and persons with disabilities, are aware of this proposal, FSIS will announce it on-line through the FSIS Web page located at *http://www.fsis.usda.gov/regulations_&_policies/2006_Proposed_Rules_Index/index.asp.* The *Regulations.gov* Web site is the central online rulemaking portal of the United States government. It is being offered as a public service to increase participation in the Federal government's regulatory activities. FSIS participates in Regulations.gov and will accept comments on documents published on the site. The site allows visitors to search by keyword or Department or Agency for rulemakings that allow for public comment. Each entry provides a quick link to a comment form so that visitors can type in their comments and submit them to FSIS. The Web site is located at *http://www.regulations.gov.* FSIS also will make copies of this **Federal Register** publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, **Federal Register** notices, FSIS public meetings, recalls, and other types of information that could affect or would be of interest to our constituents and stakeholders. The update is communicated via Listserv, a free e-mail subscription service consisting of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals, and other individuals who have requested to be included. The update also is available on the FSIS Web page. Through Listserv and the Web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an e-mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available at *http://www.fsis.usda.gov/news_and_events/email_subscription/.* Options range from recalls to export information to regulations, directives and notices. Customers can add or delete subscriptions themselves and have the option to password protect their account. Done in Washington, DC, September 6, 2006. Barbara J. Masters, Administrator. [FR Doc. E6-15017 Filed 9-11-06; 8:45 am] BILLING CODE 3410-DM-P DEPARTMENT OF AGRICULTURE Forest Service Brick Trout Project, Clearwater National Forest, Idaho County, ID AGENCY: Forest Service, USDA. ACTION: Notice of intent to prepare an environmental impact statement. SUMMARY: The USDA, Forest Service, will prepare an environmental impact statement

(EIS)to disclose the environmental effects of timber harvesting the Brick Creek, Panther Creek, Lunch Creek, Trout Creek, and Fan Creek drainages (herein referred to as the Brick Trout project). The project area is located 16 miles east of Kamiah, Idaho, north of U.S. Highway 12, mostly along or near Forest Roads 514 and 5043. The project area is outside of inventoried roadless areas. DATES: Comments concerning the scope of the analysis must be postmarked within 45 days after this Notice of Intent appears in the **Federal Register** . The draft environmental impact statement is expected to be available in February, 2007 and the final environmental impact statement is expected to be completed in September of 2007. ADDRESSES: Written comments concerning this notice or a request to be placed on the project mailing list should be addressed to Chris Tootell, TEAMS, 200 East Broadway, Suite 251. Missoula, Montana, 59807. Comments may also be sent via e-mail to *ctootell@fs.fed.us.* The subject line in the e-mail message should contain the title “Brick Trout Timber Sale Project.” If you choose to comment by e-mail, please include your name and regular mailing address with the comment. Comments may also be sent via facsimile to

(406)329-3411, c/o Chris Tootell, Environmental Coordinator. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the U.S. Forest Service, Lochsa District Office in Kooskia, Idaho. FOR FURTHER INFORMATION CONTACT: Chris Tootell, Environmental Resource Coordinator, TEAMS Enterprise unit, USDA Forest Service

(406)329-3459. Individuals who use telecommunication devices for the deaf

(TDD)may call the Federal Information Relay Service

(FIRS)at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. SUPPLEMENTARY INFORMATION: The proposed project is located in portions of Sections 8, 17, 18, 23-28, 33-36, T34N, R6E, and Section 3, T33N, R6E, Boise Meridian, Idaho County, Idaho. The analysis area encompasses approximately 7,000 acres. Purpose and Need for Action The purpose and need for the proposed action is to:

(1)Improve forest health, reduce catastrophic wildfire risk, maintain and restore ecological processes and functions, and restore tree stands to structure and species composition that would be expected under natural disturbance regimes;

(2)manage the landscape to provide for goods and services deemed important to society;

(3)restore the aquatic ecosystem to more natural processes and functions. Proposed Action The Forest Service proposes to harvest timber on 427 acres and then plan western white pine and western larch on most of the harvest area. Specifically, harvesting would include: 300 acres of clearcutting with reserves, 70 acres of seed tree harvest, 57 acres of final removal, 437 acres of slash treatment and site preparation for tree planting, 437 acres of tree planting. Cable yarding systems would be used for most of the area (350 acres). The rest of the area (77 acres) would use tractor-yarding methods. To access the harvest units, 3.5 miles of temporary road would be built. Upon project completion, all temporary roads would be decommissioned, which includes recontouring the road prism. Watershed restoration activities would consist of road reconstruction on 1.9 miles of road, road reconditioning (brushing, blading and ditch cleaning) on 43.7 miles of road, replacement of two undersized culverts to improve fish passage, road decommissioning on three miles of road, and placing about 7.7 miles of road into storage. Possible Alternatives The Forest Service will consider alternatives to the proposed action including a “no action” alternative in which none of the proposed activities would be implemented. Additional alternatives being considered examine varying levels and locations for the proposed activities to achieve the proposal's purpose and need, as well as to respond to issues and other resource concerns. Responsible Official The Responsible Official is the Forest Supervisor of the Clearwater National Forest, 12730 Highway 12, Orofino, ID 83544. The Responsible Official will decide if the proposed project will be implemented and will document the decision and reasons for the decision in a Record of Decision. That decision will be subject to Forest Service Appeal Regulations. The responsibility for preparing the DEIS and FEIS has been delegated to the District Ranger, Lochsa Ranger District, Rt. 1 Box 398, Kooskia, ID 83539. Scoping Process The Clearwater National Forest has developed a listing of individuals and organizations that have expressed an interest in being informed of and providing input to projects such as this. This list of individuals and organizations include Native American groups, private citizens, businesses, various organizations, and Federal, State and county agencies. All of these contacts will be sent the initial scoping document. Preliminary Issues The following list of preliminary issues was developed for the project area by the Forest Service Interdisciplinary Team (ID Team). This list of issues will be amended and/or expanded after review of the Brick Trout Environmental Impact Statement project scoping comments. Preliminary issues include: effects of tree retention levels on ecosystem functions and processes, effects, of road decommissioning on future forest access, effects of mature forest harvest on sensitive species, and effects of proposed activities on old growth habitat. Comment Requested This notice of intent initiates the scoping process which guides the development of the draft environmental impact statement, including the identification of the range of issues to be addressed and for identifying the significant issues related to the proposed action. The Forest Service believes that it is important to give reviewers notice that they must comment or otherwise notify the Forest Service of their interest in this project to have the right to appeal. To assist the Forest Service in identifying and considering issues, concerns and other relevant information on the project proposal, comments should be as specific as possible. *Early Notice of Importance of Public Participation in Subsequent Environmental Review:* A draft environmental impact statement will be prepared for comment. The comment period on the draft environmental impact statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the **Federal Register** . The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions. *Vermont Yankee Nuclear Power Corp.* v. *NRDC* , 435 U.S. 519, 553 (1978). Also, environmental objections that could be raised at the draft environmental impact statement stage but that are not raised until after completion of the final environmental impact statement may be waived or dismissed by the courts. *City of Angoon* v. *Hodel,* 803 F.2d 1016, 1022 (9th Cir. 1986) and *Wisconsin Heritages, Inc.* v. *Harris,* 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the 45-day comment period so that substantive comments and objections are made available to the Forest Service at a time when it can meaningfully consider them and respond to them in the final environmental impact statement. To assist the Forest Service in identifying and considering issues and concerns on the proposed actions, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points. Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection. (Authority: 40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21) Dated: September 5, 2006. Thomas K. Reilly, Forest Supervisor. [FR Doc. 06-7587 Filed 9-11-06; 8:45 am]

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Traces to 25 documents