Rules and Regulations. Proposed rule

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BILLING CODE 4310-55-P; 3410-11-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 51 [EPA-HQ-OAR-2003-0079, FRL-8256-8] RIN 2060-AJ99 Phase 2 of the Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard—Notice of Reconsideration AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: On November 29, 2005, EPA published Phase 2 of the final rule to implement the 8-hour ozone national ambient air quality standard (NAAQS). Subsequently, EPA received a petition to reconsider specific aspects of this final rule.

In this action, EPA is announcing its decision to reconsider and take additional comment on three provisions in the final Phase 2 8-hour ozone implementation rule: The determination that electric generating units

(EGUs)that comply with rules implementing the Clean Air Interstate Rule

(CAIR)and that are located in States where all required CAIR emissions reductions are achieved from EGUs meet the 8-hour ozone State implementation plan

(SIP)requirement for application of reasonably available control technology

(RACT)for nitrogen oxide (NO X ) emissions; a new source review

(NSR)requirement allowing sources to use certain emission reductions as offsets under certain circumstances; and an NSR provision addressing when requirements for the lowest achievable emission rate

(LAER)and emission offsets may be waived. In addition, EPA requests comment on postponing the submission date for the RACT SIP for RACT SIPs for EGUs in the CAIR region. The EPA is seeking comment only on the three issues specifically identified in this notice and the submission date issue. We do not intend to respond to comments addressing other provisions of the final 8-hour ozone implementation rule that we are not reconsidering. DATES: *Comments.* Comments must be received on or before January 18, 2007. If anyone contacts us requesting a public hearing by December 29, 2006, the hearing will be held on January 3, 2007. If a public hearing is requested, the record for this action will remain open until February 2, 2007 to accommodate submittal of information related to the public hearing. For additional information on the public hearing, see the SUPPLEMENTARY INFORMATION section of this notice of reconsideration. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2003-0079, by one of the following methods: • *www.regulations.gov:* Follow the on-line instructions for submitting comments. • E-mail: *a-and-r-docket@epa.gov* . • Mail: EPA Docket Center, EPA West (Air Docket), Attention Docket ID No. EPA-HQ-OAR-2003-0079, Environmental Protection Agency, Mail Code: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Please include two copies if possible. • Hand Delivery: EPA Docket Center (Air Docket), Attention Docket ID No. EPA-HQ-OAR-2003-0079, Environmental Protection Agency, 1301 Constitution Avenue, NW., Room 3334, Washington, DC. Such deliveries are only accepted during the Docket Center's normal hours of operation, and special arrangements should be made for deliveries of boxed information. • *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2003-0079. The EPA's policy is that all comments received will be included in the public docket without change and may be made available on-line at *www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be confidential business information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* , or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* . For additional instructions on submitting comments, go to the SUPPLEMENTARY INFORMATION section of this document. *Public Hearing:* If a hearing is held it will be held at the U.S. Environmental Protection Agency, 109 TW Alexander Drive, Research Triangle Park, North Carolina 27709, Building C. *Docket:* All documents in the docket are listed in *www.regulations.gov* . Although listed in the index, some information is not publicly available, *i.e.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the EPA Docket Center (Air Docket), EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202)566-1744. For information on accessing docket materials during the temporary closure of the EPA docket center see note above. FOR FURTHER INFORMATION CONTACT: For further information on the issue relating to NO X RACT for EGU sources in CAIR States, contact Mr. John Silvasi, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, (C539-01), Research Triangle Park, NC 27711, phone number

(919)541-5666, fax number

(919)541-0824 or by e-mail at *silvasi.john@epa.gov* or Ms. Denise Gerth, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, (C539-01), Research Triangle Park, NC 27711, phone number

(919)541-5550, fax number

(919)541-0824 or by e-mail at *gerth.denise@epa.gov* . For further information on the NSR issues discussed in this notice, contact Mr. David Painter, Office of Air Quality Planning and Standards, (C504-03), U.S. EPA, Research Triangle Park, North Carolina 27711, telephone number

(919)541-5515, fax number

(919)541-5509, e-mail: *painter.david@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does This Action Apply to Me? 1. Issue on Determination of CAIR/RACT Equivalency for NO X EGUs Entities potentially affected by the subject rule for today's action include States (typically State air pollution control agencies), and, in some cases, local governments that develop air pollution control rules, in the region affected by the CAIR. 1 The EGUs are also potentially affected by virtue of State action in SIPs that implement provisions resulting from final rulemaking on today's action; these sources are in the following groups: 1 **Federal Register** of May 12, 2005 (70 FR 25162). Industry group SIC a NAICS b Electric Services 492 221111, 221112, 221113, 221119, 221121, 221122. a Standard Industrial Classification. b North American Industry Classification System. 2. NSR Issues Entities potentially affected by the subject rule for today's action include sources in all industry groups. The majority of sources potentially affected are expected to be in the following groups. Industry group SIC a NAICS b Electric Services 492 221111, 221112, 221113, 221119, 221121, 221122. Petroleum Refining 291 324110. Industrial Inorganic Chemicals 281 325181, 325120, 325131, 325182, 211112, 325998, 331311, 325188. Industrial Organic Chemicals 286 325110, 325132, 325192, 325188, 325193, 325120, 325199. Miscellaneous Chemical Products 289 325520, 325920, 325910, 325182, 325510. Natural Gas Liquids 132 211112. Natural Gas Transport 492 486210, 221210. Pulp and Paper Mills 261 322110, 322121, 322122, 322130. Paper Mills 262 322121, 322122. Automobile Manufacturing 371 336111, 336112, 336211, 336992, 336322, 336312, 336330, 336340, 336350, 336399, 336212, 336213. Pharmaceuticals 283 325411, 325412, 325413, 325414. a Standard Industrial Classification. b North American Industry Classification System. Entities potentially affected by the subject rule for today's action also include State, local, and Tribal governments that are delegated authority to implement these regulations. B. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI.* Do not submit this information to EPA through *www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed to be CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for Preparing Your Comments.* When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations

(CFR)part or section number. • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. C. Where Can I Get a Copy of This Document and Other Related Information? In addition to being available in the docket, an electronic copy of today's notice is also available on the World Wide Web. A copy of today's notice will be posted at *http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/* . D. What Information Should I Know About the Public Hearing? If requested, EPA will hold a public hearing on today's notice. The EPA will hold a hearing only if a party notifies EPA by December 29, 2006, expressing its interest in presenting oral testimony on issues addressed in today's notice. Any person may request a hearing by calling Ms. Pamela S. Long at

(919)541-0641 before 5 p.m. by December 29, 2006. Any person who plans to attend the hearing should visit the EPA's Web site at *http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/* and contact Ms. Pamela S. Long at

(919)541-0641 to learn if a hearing will be held. If a public hearing is held on today's notice, it will be held on January 3, 2007 at the EPA, Building C, 109 T.W. Alexander Drive, Research Triangle Park, NC 27709. Because the hearing will be held at a U.S. Government facility, everyone planning to attend should be prepared to show valid picture identification to the security staff in order to gain access to the meeting room. Please check our Web site at *http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/* for information and updates concerning the public hearing. If held, the public hearing will begin at 10 a.m. and end at 2 p.m. The hearing will be limited to the subject matter of this document. Oral testimony will be limited to 5 minutes. The EPA encourages commenters to provide written versions of their oral testimony either electronically (on computer disk or CD ROM) or in paper copy. The list of speakers will be posted on EPA's Web site at *http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/* . Verbatim transcripts and written statements will be included in the rulemaking docket. A public hearing would provide interested parties the opportunity to present data, views, or arguments concerning issues addressed in today's notice. The EPA may ask clarifying questions during the oral presentations, but would not respond to the presentations or comments at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as any oral comments and supporting information presented at a public hearing. If a public hearing is held, the record for this action will remain open until February 2, 2007 to accommodate submittal of information related to the public hearing. Otherwise, if a hearing is not held, the record for this action will remain open until January 18, 2007. E. How Is This Notice Organized? The information presented in this notice is organized as follows: I. General Information A. Does This Action Apply to Me? B. What Should I Consider as I Prepare My Comments for EPA? C. Where Can I Get a Copy of This Document and Other Related Information? D. What Information Should I Know About the Public Hearing? E. How Is This Notice Organized? II. Background A. NO X RACT for EGUs in CAIR States 1. Proposed and Final Rules and Guidance 2. Petition for Reconsideration B. NSR Issues 1. Our Previous Proposed and Final Rules 2. Petition for Reconsideration III. This Action A. NO X RACT for EGUs in CAIR States 1. Reconsideration and Request for Comment on NO X RACT for EGUs in CAIR States 2. Supplemental Technical Analysis 3. Request for Public Comment Period on Submission Date for RACT SIP for NO X for EGUs in CAIR Region B. Provisions of Final Rule Regarding the Criteria for Emission Reduction Credits From Shutdowns and Curtailments 1. Why We Changed Major Source NSR Criteria for Emission Reduction Credits

(ERC)From Shutdowns and Curtailments 2. Legal Basis for Changes to Criteria for Emission Reduction Credits From Shutdowns and Curtailments 3. Reconsideration of Emission Reduction Credits Final Rule Language and Request for Public Comments C. Applicability of Appendix S, Section VI 1. Final Changes to Applicability of Appendix S, Section VI 2. Legal Basis for Changes to Applicability of Appendix S and the Transitional NSR Program 3. Reconsideration of Appendix S, Section VI Final Rule Language and Request for Public Comments IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act

(RFA)D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations V. Statutory Authority II. Background On November 29, 2005, EPA published the final Phase 2 rulemaking to implement the 8-hour ozone NAAQS (the Phase 2 Rule). That rule established requirements relating to several specific elements of the SIPs for nonattainment areas for the 8-hour ozone standard including: The attainment demonstration; the RACT requirement; the reasonable further progress

(RFP)requirement; and new source review. The Natural Resources Defense Council

(NRDC)filed a petition for reconsideration dated January 30, 2006 under section 307(d) of the Clean Air Act

(CAA)concerning three provisions of the Phase 2 rule. The EPA has granted the petition and, in this notice, EPA announces its decision to reconsider the three provisions discussed below and requests public comment on these issues. A. NO X RACT for EGUs in CAIR States 1. Proposed and Final Rules and Guidance In the Phase 2 rulemaking to implement the 8-hour ozone NAAQS, EPA determined that EGU sources complying with rules implementing the CAIR requirements meet ozone NO X RACT requirements in States where all required CAIR emissions reductions are achieved from EGUs only. 2 We noted that the CAIR final rulemaking established a region-wide NO X emissions cap, effective in 2009, at a level that, assuming the reductions are achieved from EGUs, would result in EGUs installing emission controls on the maximum total capacity on which it is feasible to install emission controls by that date. In addition, the CAIR's 2015 NO X cap will eliminate all NO X emissions from EGUs that are highly cost effective to control, and the 2009 cap represents an interim step toward that end. We also noted additional arguments in the phase 2 rule, which we are summarizing below under Section III. A. 1. below. 2 However, as noted below, a State that elects to bring its NO X SIP Call non-EGU sources into the CAIR ozone season trading program may continue to rely on EPA's determination that RACT is met for EGU sources covered by the CAIR trading program. It may rely on this determination if and only if the State retains a summer season EGU budget under the CAIR that is at least restrictive as the EGU budget that was set in the State's NO X SIP call SIP. 2. Petition for Reconsideration The EPA received a petition for reconsideration of the final Phase 2 rule from the NRDC. This petition raised several objections to EPA's determination that, in certain circumstances, EGUs in CAIR States may satisfy the NO X RACT requirement for ozone if they comply with rules implementing the CAIR. Specifically, they argued that: • The EPA unlawfully and arbitrarily failed to seek public comment on the final rule's determination that the CAIR satisfies NO X RACT requirements. • The EPA's CAIR-RACT determinations are unlawful and arbitrary because EPA's action illegally abrogates the Act's RACT requirements. The EPA granted NRDC's petition by letter of June 21, 2006. In this action, EPA is announcing the initiation of the reconsideration process and requesting additional public comment on this issue. Also, EPA is supplementing the record with additional technical analyses that addresses the determination that the CAIR satisfies the NO X RACT requirement for covered EGUs. B. NSR Issues 1. Our Previous Proposed and Final Rules The major NSR provisions in the November 29, 2005 Phase 2 rulemaking were proposed as part of two different regulatory packages. On July 23, 1996 (61 FR 38250), we proposed changes to the major NSR program, including codification of the requirements of part D of title I of the 1990 CAA Amendments for major stationary sources of volatile organic compounds (VOC), NO X , particulate matter having a nominal aerodynamic diameter less than or equal to 10 microns (PM 10 ), and CO. On June 2, 2003 (68 FR 32802), we proposed a rule to implement the 8-hour ozone NAAQS. In the 2003 action, we proposed a rule to identify the statutory requirements that apply for purposes of developing SIPs under the CAA to implement the 8-hour ozone NAAQS (68 FR 32802). We did not propose specific regulatory language for implementation of NSR under the 8-hour NAAQS. However, we indicated that we intended to revise the nonattainment NSR regulations to be consistent with the rule for implementing the 8-hour ozone NAAQS (68 FR 32844). On April 30, 2004 (69 FR 23951), we published a final rule that addressed classifications for the 8-hour NAAQS. The April 2004 rule also included the NSR permitting requirements for the 8-hour ozone standard, which necessarily follow from the classification scheme chosen under the terms of subpart 1 and subpart 2. In 1996, we proposed to revise the regulations limiting offsets from emissions reductions due to shutting down an existing source or curtailing production or operating hours below baseline levels (“shutdowns/curtailments”). We proposed substantive revisions in two alternatives that would ease, under certain circumstances, the existing restrictions on the use of emission reduction credits from source shutdowns and curtailments as offsets. On July 23, 1996, we proposed to revise 40 CFR 52.24 to incorporate changes made by the 1990 CAA Amendments related to the applicability of construction bans (61 FR 38305). To clarify our intent, our proposed 8-hour ozone NAAQS implementation rule in June 2003 explained that section 52.24(k) remained in effect and would be retained. In that action, we also proposed that we would revise section 52.24(k) to reflect the changes in the 1990 CAA Amendments (68 FR 32846). On June 2, 2003 (68 FR 32802), we explained implementation of the major NSR program under the 8-hour ozone NAAQS during the SIP development period, and proposed flexible NSR requirements for areas that expected to attain the 8-hour NAAQS within 3 years after designation. In the final regulations, we included several revisions to the regulations governing the nonattainment NSR programs mandated by section 110(a)(2)(C) and part D of title I of the CAA. First, we codified requirements added to part D of title I of the CAA in the 1990 Amendments related to permitting of major stationary sources in areas that are nonattainment for the 8-hour ozone, particulate matter (PM), and carbon monoxide

(CO)NAAQS. Second, we revised the criteria for crediting emissions reductions credits from shutdowns and curtailments as offsets. Third, we revised the regulations for permitting of major stationary sources in nonattainment areas in interim periods between designation of new nonattainment areas and EPA's approval of a revised SIP. Also, we changed the regulations that impose a moratorium

(ban)prohibiting construction of new or modified major stationary sources in nonattainment areas where the State fails to have an implementation plan meeting all of the requirements of part D. 2. Petition for Reconsideration The NRDC petition for reconsideration raised two objections to the major NSR aspects of the Phase 2 rulemaking: • Allowing sources to use emission reductions as offsets if they occur after the last day of the base year for the SIP planning process; and • Changes to Section VI of Appendix S allowing for waiver of nonattainment major NSR requirements for some source categories. The EPA granted the petition by letter of June 21, 2006 and in this action EPA announces its decision to reconsider and to request additional public comment on these issues. III. This Action A. NO X RACT for EGUs in CAIR States 1. Reconsideration and Request for Comment on NO X RACT for EGUs in CAIR States In this notice, EPA announces its decision to reconsider and request additional comment on the determination that EGU sources complying with rules implementing CAIR requirements meet ozone NO X RACT requirements in States where all required CAIR reductions are achieved from EGUs only. 3 This determination provided the basis for our determination that, for purposes of meeting the NO X RACT requirement, States need not perform (or submit) NO X RACT analyses for sources subject to a NO X trading program meeting the CAIR NO X requirements (in a State achieving all CAIR reductions from EGUs only). According to this provision, States relying on this conclusion for the affected EGU sources need to document their reliance on EPA's determination in their RACT SIPs. A full discussion of EPA's rationale and the conditions under which the above determination is valid appears in the Phase 2 Rule preamble at FR 71656-71658 (November 29, 2005). However, we are summarizing that rationale here: 3 However, see footnote 1 above and exception described below. In the Phase 2 rulemaking to implement the 8-hour ozone NAAQS, EPA determined that EGU sources complying with rules implementing the CAIR requirements meet ozone NO X RACT requirements in States where all required CAIR emissions reductions are achieved from EGUs only. 4 We noted that the CAIR final rulemaking established a region-wide NO X emissions cap, effective in 2009, at a level that, assuming the reductions are achieved from EGUs, would result in EGUs installing emission controls on the maximum total capacity on which it is feasible to install emission controls by that date. In addition, the CAIR's 2015 NO X cap will eliminate all NO X emissions from EGUs that are highly cost effective to control, and the 2009 cap represents an interim step toward that end. We also noted the following in the Phase 2 rulemaking: 4 However, as noted below, a State that elects to bring its NO X SIP Call non-EGU souces into the CAIR ozone season trading program may continue to rely on EPA's determination that RACT is met for EGU sources covered by the CAIR trading program. It may rely on this determination if and only if the State retains a summer season EGU budget under the CAIR that is at least as restrictive as the EGU budget that was set in the State's NO X SIP call SIP. • The EPA's prior views on the details of the NO X RACT program were set forth in the “NO X Supplement to the General Preamble,” November 25, 1992 (57 FR 55620). In that document, EPA determined that in the majority of cases, RACT will result in an overall level of control equivalent to specified maximum allowable emission rates (in pounds of NO X per million Btu) for certain specified electric utility boilers. Section 4.6 of this document (57 FR 55625) noted in part, “In general, EPA considers RACT for utilities to be the most effective level of combustion modification reasonably available to an individual unit. This implies low NO X burners, in some cases with overfire air and in other instances without overfire air; flue gas recirculation; and conceivably some situations with no control at all.” The NO X Supplement also provided, “* * * the State may allow individual owners/operators in the nonattainment area (or, alternatively, Statewide within an ozone transport region) to have emission limits which result in greater or lesser emission reductions so long as the areawide average emission rates described above are met on a Btu-weighted average.” (57 FR at 55625). The NO X Supplement also set forth (in section 4.7) guidance on RACT for utility boilers other than those specified in section 4.6 and also for other source categories. This section noted in part, “In general, EPA expects that NO X RACT for these other sources will be set at levels that are comparable to the RACT guidance specified above [in section 4.6] * * *” • “The [CAIR] budgets are based on the level of emissions that can be achieved through highly cost-effective controls that EPA determined are available from EGUs; however, States have flexibility to choose the measures they will use to achieve the necessary emissions reductions. Due to feasibility constraints, EPA is requiring the CAIR budgets to be achieved in two phases. For summertime NO X , the first phase starts in 2009 (covering 2009-2014); 5 the second phase of NO X reductions begins in 2015 (covering 2015 and thereafter).” (70 FR 71621). We also noted in the June 2, 2003, proposal that we considered highly-cost effective controls for NO X for EGUs and non-EGUs that were used to establish the Statewide NO X emission caps in the NO X SIP call to constitute a greater level of control than RACT. (68 FR 32839.) 5 The CAIR first phase also provides an annual NO X budget, which also starts in 2009. • In general, we expect that the largest-emitting EGU sources will be the first to install NO X control technology and that such control technology will gradually be installed on progressively smaller-emitting EGU sources until the ultimate cap is reached. • We do not believe that requiring source-specific RACT controls on EGUs in nonattainment areas will reduce total NO X emissions from EGU sources covered by the CAIR below the levels that would be achieved under the CAIR alone. • We believe that EGU source-specific RACT would result in more costly emission reductions on a per ton basis. We noted the following: “As discussed more fully in the CAIR final rulemaking, EPA has set the 2009 CAIR NO X cap at a level that, assuming the reductions are achieved from EGUs, would result in EGUs installing emission controls on the maximum total capacity on which it is feasible to install emission controls by those dates. The 2015 NO X cap is specifically designed to eliminate all NO X emissions from EGUs that are highly cost effective to control (the first cap represents an interim step toward that end) * * * In general, we expect that the largest-emitting sources will be the first to install NO X control technology and that such control technology will gradually be installed on progressively smaller-emitting sources until the ultimate cap is reached.” (70 FR 71657, col. 3). • The combination of EGU source specific RACT and the CAIR emissions cap would not reduce the collective total emissions from EGUs covered by the CAIR, but would likely achieve the same total emissions reductions as the CAIR alone, in a more costly way. • As a result, we believe that EGUs subject to the CAIR NO X emissions cap meet the RACT requirement for NO X (in States that require all CAIR NO X reductions from EGUs). The EPA made the finding for all areas in the CAIR region, such that States meeting the CAIR emissions reduction requirements with reductions from EGUs only, need not submit RACT analyses for covered EGU sources subject to and in compliance with rules implementing CAIR requirements. At this time, EPA is not proposing to make any changes to this provision. The petition for reconsideration did not provide information sufficient to convince EPA that any aspect of the determination in the final Phase 2 8-hour ozone rule was in error, and EPA's supplemental technical analysis lends support to this determination. However, EPA acknowledges that the agency did not provide sufficient opportunity for public comment on this determination. We recognize the significant public interest in this issue and request additional comment on this determination. As explained in the preamble to the final Phase 2 Rule, EPA does not believe that requiring source-specific RACT controls on EGUs in nonattainment areas will reduce total NO X emissions from sources covered by the CAIR below the levels that would be achieved under the CAIR alone. As discussed more fully in the CAIR final rulemaking, EPA has set the 2009 CAIR NO X cap at a level that, assuming the reductions are achieved from EGUs, would result in EGUs installing emission controls on the maximum total capacity on which it is feasible to install emission controls by that date. Under cap-and-trade programs such as the CAIR program, there is a direct relationship between the total number of allowances held by participating sources and the collective emissions from those sources. EGU source-specific control requirements (such as EGU source-by-source RACT) layered on top of the overall allowance-based emissions cap may affect the temporal distribution of emissions (by reducing banking and thus delaying early reductions) or the spatial distribution of emissions (by moving them around from one place to another), but such requirements do not affect total allowed emissions in the CAIR region. Furthermore, we believe that EGU source-specific RACT could result in more costly emission reductions on a per ton basis. The 2015 NO X cap is specifically designed to eliminate all NO X emissions from EGUs that are highly cost effective to control (the 2009 cap represents an interim step toward that end). In general, we expect that the largest-emitting EGU sources will be the first to install NO X control technology and that such control technology will gradually be installed on progressively smaller-emitting EGU sources until the ultimate cap is reached. If States choose to require smaller-emitting EGU sources in nonattainment areas to meet source-specific RACT requirements by 2009 (the required compliance date for RACT), they would likely use labor and other resources that would otherwise be used for emission controls on larger EGU sources. Because of economies of scale, more boiler-makers (skilled workers needed to install control equipment on EGUs) and other resources may be required per megawatt of power generation for smaller units than for larger units. Thus, the cost of achieving such reductions would be greater on a per ton basis. If it were possible to strategically target source-specific requirements at the EGUs that can be controlled most cost effectively, then the imposition of source-specific controls would achieve the same temporal and spatial distribution of controls as the projected CAIR cap-and-trade program. But this would require accurate forehand knowledge of each EGU's control costs, which would be practically difficult for regulators to obtain. Without this accurate source-specific control cost information, the imposition of EGU source-specific requirements would make any given level of emission reduction more costly than it would be under the cap-and-trade program alone. Thus, in States that achieve all CAIR reductions from EGUs, requiring both source-specific RACT on EGUs and compliance with rules implementing the CAIR would not achieve greater collective total emissions reductions from EGUs covered by the CAIR, and the collective reductions would likely be achieved at higher overall cost. The CAIR is implemented on an annual and (for ozone) a seasonal basis. We believe that these averaging periods on which RACT is being implemented under the Phase 2 Rule are not in conflict with existing EPA policy. In general, the RACT requirement is applied on a short-term basis up to 24 hours. 6 However, EPA guidance permits averaging times longer than 24 hours under certain conditions. 7 Although these earlier EPA guidance documents were directed at VOC, the NO X Supplement to the General Preamble 8 provides, “While this guidance has been largely directed at application within the VOC program, much of the guidance is also applicable to RACT for stationary sources of NO X .” Section 4.6 (“RACT for Certain Electric Utility Boilers”) of the NO X Supplement provides generally applicable NO X RACT emission rates for certain utility boilers on a pounds of NO X per million Btu basis and indicates, “Compliance with these limits may be determined on a continuous basis through the use of a 30 day rolling average emission rate, calculated each operating day as the average of all hourly data for the pr[e]ceeding 30 operating days.” 6 6 See, *e.g.* , 52 FR at 45108 col. 2, “Compliance Periods” (November 24, 1987). “VOC rules should describe explicitly the compliance timeframe associated with each emission limit ( *e.g.* , instantaneous or daily). However, where the rules are silent on compliance time, EPA will interpret it as instantaneous. 7 Memorandum from John O'Connor, Acting Director of the Office of Air Quality Planning and Standards, January 20, 1984, “Averaging Times for Compliance with VOC Emission Limits—SIP Revision Policy.” 8 57 FR at 55625, col. 1 sec. 4.5 “Relation to VOC RACT Policies” (November 25, 1992). Other EPA guidance and policy allow for longer averaging times in certain circumstances. The EPA's “Economic Incentive Policy” 9

(EIP)provides guidance on use of long-term averages for RACT and generally provides for averaging times of no greater than 30 days. However, that guidance also states, “For NO X sources that are required to comply with the [Ozone Transport Region] NO X MOU regulation or the NO X SIP call, the averaging time of an emission limit must not exceed a compliance period of an area's ozone season. Sources involved with EIP trades must meet all requirements applicable to the program.” The EPA interprets this policy as applying to all trading programs and providing that the averaging time may not exceed the period for determining compliance with the trading program ( *e.g.* , one year for the CAIR annual trading programs—and the ozone season for the CAIR ozone season trading program). 9 Improving Air Quality with Economic Incentive Programs, January 2001, available at *http://www.epa.gov/region07/programs/artd/air/policy/search.htm.* In addition, the RACT emission reductions need to be permanent, *i.e.* , once implemented, they also need to be continuously implemented. The EPA believes that emissions reductions from the CAIR will continue to be applied on a permanent basis. The EPA believes that EGUs covered by the CAIR that make the economic decision to install permanent controls will generally reduce their emissions for an extended period of time and not fluctuate in their level of control significantly over short periods, since it will generally be in their economic interest to control in order to generate emission allowances for sale to EGUs that opt not to install controls. Sources that comply with the CAIR comply with the overall NO X emission caps on an annual and (for ozone) a seasonal basis. We note that sources covered by the CAIR are expected to reduce emissions to either comply with State emission limits (or to “overcontrol” beyond mere compliance and create surplus emission reduction credits that would be used to provide allowances to under-controlling sources) through permanent installation of emission controls such as selective catalytic reduction or selective non-catalytic reduction or combustion modification. As we noted in the Phase 2 Rule preamble in relation to the NO X SIP call, “In addition to operating advanced controls at least in the ozone season, many sources have installed combustion controls that function all the time; emissions reductions from these controls will occur year round.” (70 FR 71656). Therefore, because of the expected general level of permanence of the controls on individual sources, EPA believes that sources that install controls will generally continue to provide the level of control for an extended period of time. For these reasons, we continue to believe that EGUs subject to rules implementing the CAIR NO X emission reduction requirements satisfy the RACT requirements for NO X (in States that require all CAIR NO X reductions from EGUs). Thus, at this time, EPA is not proposing to make any changes to the determination concerning NO X RACT for EGUs in CAIR States in the Phase 2 Rule. The EPA continues to support its determination that States achieving all CAIR reductions from EGUs need not submit RACT analyses for EGU sources that are subject to and in compliance with rules implementing the CAIR requirements. The determination that EGU sources complying with rules implementing CAIR requirements thereby also meet ozone NO X RACT requirements applies only to EGUs in States achieving all required CAIR reductions from EGUs, except as noted below. As explained in the preamble to the final Phase 2 Rule, under the CAIR, a State may elect to meet its State budget for NO X emissions solely through requiring reductions from EGUs or through requiring reductions from a combination of sources, including non-EGUs. If the State requires reductions from sources other than EGUs, it is not eligible to participate in the EPA-administered CAIR trading programs. Additionally, separate provisions of the CAIR rule allow States to choose to allow large NO X sources that are not EGUs to opt-in to the trading programs. States that elect to allow such opt-ins, and States that require reductions from sources other than EGUs in implementing CAIR, may not rely on EPA's determination that EGUs complying with rules implementing the CAIR satisfy NO X RACT. If only part of the CAIR reductions are required from EGUs, and the balance of the reductions obtained from non-EGU sources, then the stringency of the CAIR EGU control would be diminished to some extent (an amount that cannot be determined until a State submits a SIP indicating which sources are participating in the program). Therefore, in these cases, the rationale for our determination that these sources satisfy the RACT requirement would not necessarily apply. Nonetheless, a State that elects to bring its NO X SIP Call non-EGU sources into the CAIR ozone season trading program may continue to rely on EPA's determination that RACT is met for EGU sources covered by the CAIR trading program. It may rely on this determination if and only if the State retains a summer season EGU budget under the CAIR that is at least as restrictive as the EGU budget that was set in the State's NO X SIP call SIP. The rationale for this determination is that the sources covered by the NO X SIP call were shown to meet a level of NO X control that exceeds EPA's presumption of control under NO X RACT. Note that EPA is not reconsidering or requesting additional comment on its determination that the NO X SIP Call constitutes RACT for sources covered by the NO X SIP Call. Therefore, as explained in the final Phase 2 Rule, if the summer season EGU budget under CAIR is at least as restrictive as set out in the NO X SIP call SIP, and if non-EGU sources after 2008 continue to be subject to a SIP that regulates those non-EGU sources equally or more stringently than the State's current rules meeting the NO X SIP call, then those EGUs are meeting a level of control at least as stringent as RACT. (See 68 FR 32839, col. 1 “Proposed Approach for NO X RACT Determinations in Areas Affected by the NO X SIP Call;” and 70 FR 71656, col. 2, “Response,” and col. 3, “NO X SIP Call.”) If the State does not meet these conditions, the State would need to conduct RACT analyses for those EGUs (either on an individual basis, or using the averaging approach within the nonattainment area). The published CAIR summer season NO X budgets for each State are at least as stringent as the NO X budgets for the NO X SIP call. Also, the CAIR rule permits a State to bring its NO X SIP Call non-EGU sources into the CAIR ozone season trading program only if they continue to be regulated at the same level of stringency as under the NO X SIP call. 40 CFR 96.340 (published at 70 FR 25392, May 12, 2005)). In addition, as we noted in the Phase 2 Rule, a State has discretion to require beyond-RACT NO X reductions from any source (including sources covered by the CAIR or NO X SIP Call programs), and has an obligation to demonstrate attainment of the 8-hour ozone standard as expeditiously as practicable. In certain areas, States may require NO X controls based on more advanced control technologies as necessary to provide for attainment of the ozone standards. 2. Supplemental Technical Analysis To provide further support for the determination regarding CAIR and ozone NO X RACT, EPA conducted an additional technical analysis. For each geographic area within the CAIR region where 8-hour ozone RACT determinations are required, EPA examined whether the emissions reductions projected from the CAIR equal or exceed the emissions reductions projected to occur from application of source-by-source RACT. 10 Specifically, this analysis was conducted for operating coal-, oil-, and gas-fired EGUs for each ozone transport region

(OTR)State within the CAIR region and for each nonattainment area in the CAIR region for which a RACT SIP, separate from an attainment demonstration SIP, is expected to be required. 11 The analysis was conducted on the basis of annual emissions and also summer season emissions. This analysis illustrates that the CAIR achieves greater overall emissions reductions across the CAIR region and across the OTR than would be achieved through the application of EGU source-by-source RACT controls. The docket contains a Technical Support Document 12 describing the analysis. 10 Since RACT is a technology requirement prescribing year-round controls, it is appropriate to consider how participation in both CAIR trading programs (annual and seasonal) will affect annual emissions of NO X and to compare that to how RACT will affect annual emissions of NO X . 11 40 CFR 51.912(c)(1) (promulgated in the Phase 2 Rule) provides that for a subpart 1 area “* * * that submits an attainment demonstration that requests an attainment date 5 or less years after designation for the 8-hour NAAQS, the State shall meet the RACT requirement by submitting an attainment demonstration SIP demonstrating that the area has adopted all control measures necessary to demonstrate attainment as expeditiously as practicable.” Thus, these areas are not required to submit RACT SIPs separate from their attainment demonstrations. However, a State must submit a RACT SIP separate from an attainment demonstration SIP for the following areas: Under 40 CFR 51.912(a), subpart 2 moderate and above areas; and under 40 CFR 51.912(c)(2), subpart 1 areas with attainment dates beyond 5 years after designation. 12 Technical Support Document for Phase 2 of the Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard—Notice of Reconsideration; NO X RACT for EGUs in CAIR States—Supplemental Technical Analysis. This emissions analysis, though not quantitatively definitive, is suggestive of the appropriateness of the determination that areas meet the 8-hour ozone SIP requirement for application of RACT for NO X emissions where all EGUs comply with rules implementing the CAIR and those areas are located in States where all required CAIR emissions reductions are achieved exclusively from EGUs. There is uncertainty in the assumptions made in the analysis, although, as noted in the Technical Support Document, the assumptions tended to be conservative, i.e., erring on the side of projecting more emission reductions under the RACT scenario. The analysis does not project that CAIR emission reductions are equivalent to or exceed the reductions from source-by-source RACT for EGUs for every relevant nonattainment area and every State within the OTR. However, CAIR emission reductions are overall significantly greater regionwide than reductions obtained from source-by-source RACT for EGUs in both the CAIR region and the OTR. It is our belief that, due to the nature of regional emissions transport, local nonattainment area emissions reductions alone will not achieve the most effective or economically efficient impact on ozone air quality in nonattainment areas. We believe a combination of local and broader regional reductions, such as those driven by the CAIR requirements for EGUs, will achieve a more effective and economically efficient air quality improvement in nonattainment areas than application of source-by-source RACT. Further, EPA believes that the term “reasonable” in RACT may be construed to allow consideration of the air quality impact of required emissions reductions from a region-wide cap and trade program such as the CAIR. As stated earlier, the region-wide CAIR NO X emissions cap for 2009 was established based on the maximum total capacity on which it was possible to install controls by that date. So by design, the 2009 CAIR region-wide NO X emissions cap for EGUs represents the most reductions that are reasonable to achieve. Because the CAIR achieves more NO X emission reductions overall across the CAIR region and the OTR than EGU-by-EGU application of RACT, we believe this will result in more region-wide air quality improvements than application of RACT in the absence of the CAIR. The CAIR is projected to improve ozone air quality across much of the eastern half of the country, including many current and projected future nonattainment areas. A list of the counties projected to be in nonattainment in 2010 and 2015 (in the absence of the CAIR and 8-hour ozone SIPs), and the air quality improvement provided by the CAIR in each county, is provided in the preamble to the final CAIR (70 FR 91, May 12, 2005, pp. 25254-25255, Tables VI-12 and VI-13) and in the final Air Quality Modeling Technical Support Document in the CAIR final rule docket (docket document EPA-OAR-2003-0053-2123). The CAIR improves air quality in all of the 40 projected 2010 nonattainment counties, and in all 22 of the projected 2015 nonattainment counties, that were identified in the CAIR rule modeling. The modeling also showed air quality improvement in numerous counties projected to be in attainment. 3. Request for Public Comment Period on Submission Date for RACT SIP for RACT SIPs for EGUs in CAIR Region Because EPA is reconsidering the RACT determination discussed above, we believe it is appropriate to postpone the submission date for the portion of the 8-hour ozone SIP that addresses NO X RACT for EGUs in the CAIR region. The EPA therefore proposes a new date of June 15, 2007 for States in the CAIR region to submit RACT SIPs for these sources. Such a postponement would affect only moderate 8-hour ozone nonattainment areas in the CAIR region and only the portion of the RACT SIPs that covers EGUs. For moderate areas in the CAIR region, the States must still submit RACT SIPs for all other affected sources per 40 CFR 51.912(a) by September 15, 2006. B. Provisions of Final Rule Regarding the Criteria for Emission Reduction Credits from Shutdowns and Curtailments 1. Why We Changed Major Source NSR Criteria for Emission Reduction Credits

(ERC)from Shutdowns and Curtailments The final 8-hour ozone implementation rule removed the requirement that a State must have an approved attainment plan before a source may use pre-application credits from shutdowns or curtailments as offsets. It also revised the availability of creditable offsets, consistent with the requirements of section 173 of the CAA. We revised the provisions at 40 CFR 51.165(a)(3)(ii)(C) and appendix S concerning emission reduction credits generated from shutdowns and curtailments as proposed in Alternative 2 of the 1996 proposal, with one exception. Alternative 2 of the 1996 proposal provided that, in order to be creditable, the shutdown of an existing emission unit or curtailing of production or operating hours must have occurred after the “most recent emissions inventory.” We agreed with the commenter who found the regulatory term “most recent emissions inventory” confusing. In particular, the commenter believed this language could be mistaken to mean that the base year for the purpose of determining emissions that may be used as creditable offsets would continue to shift. The commenter noted that it would be more accurate to state that the base year emissions inventory is the starting point, and all creditable emissions reductions must result from the shutdown or curtailment of emissions that have been reported in the base year inventory or a subsequent emissions inventory. (For the 8-hour ozone NAAQS, the base year is 2002. 13 ) We agreed with the commenter that the terminology “most recent emissions inventory” could be confusing and revised 40 CFR 51.165(a)(3)(C)(1) and Appendix S paragraph IV.C.3. accordingly, specifying the cutoff date after which the shutdown or curtailment of emissions must occur as “the last day of the base year for the SIP planning process. For purposes of this paragraph, a reviewing authority may choose to consider a prior shutdown or curtailment to have occurred after the last day of the base year if the projected emissions inventory used to develop the attainment demonstration explicitly includes the emissions from such previously shutdown or curtailed emission units.” This provision is consistent with the previous regulation which also allowed the reviewing authority to treat prior shutdowns or curtailments as occurring after the date of the most recent emissions inventory, but we have modified the regulatory language to clarify the appropriate emissions inventory. Further, this regulatory language is consistent with our previous guidance on how emission reduction credits from shutdowns and curtailments are used in attainment planning. 14 The base year inventory includes actual emissions from existing sources and would not normally reflect emissions from units that were shutdown or curtailed before the base year, as these emissions are not “in the air.” To the extent that these emission reduction credits are to be considered available for use as offsets and are thus “in the air” for purposes of demonstrating attainment, they must be specifically included in the projected emissions inventory used in the attainment demonstration along with other growth in emissions over the base year inventory. This step assures that emissions from shutdown and curtailed units are accounted for in attainment planning. 15 As with the prior rules, reviewing authorities thus retain the ability to consider a prior shutdown or curtailment to have occurred after the last day of the base year if emissions that are eliminated by the shutdown or curtailment are emissions that were accounted for in the attainment demonstration. However, in no event may credit be given for shutdowns that occurred before August 7, 1977, a provision carried over from the previous regulation. *See 40 CFR 51.165(a)(3)(C)(1)(ii) and 40 CFR part 51 Appendix S paragraph IV.C.3.* 13 68 FR 32833. See also “2002 Base Year Emission Inventory SIP Planning: 8-hr. Ozone, PM2.5 and Regional Haze Programs,” U.S. EPA, pg. 1 (November 18, 2002). 14 See 57 FR 13553. After the 1990 CAA Amendments were enacted, 1990 was the base year for 1-hour ozone NAAQS attainment planning purposes. See 57 FR 13502. The EPA encouraged States to allow sources to use pre-enactment banked emissions reductions credits for offsetting purposes. States have been allowed to do so if the restored credits meet all other offset creditability criteria, and States consider such credits as part of the attainment emissions inventory when developing their post-enactment attainment demonstration. 15 For a discussion of emission inventories for the 8-hour ozone standard, see our emission inventory guidance, “Emissions Inventory Guidance for Implementation of Ozone and Particulate Matter National Ambient Air Quality Standards (NAAQS) and Regional Haze Regulations—Final,” at *http://www.epa.gov/ttn/chief/eidocs/eiguid/index.html.* For a discussion of emission projections used in attainment demonstrations, see Emission Inventory Improvement Program, Volume X, Emission Projections, December 1999, available at *http://www.epa.gov/ttn/chief/eiip/techreport/.* Other changes made to the provisions of the final Phase 2 Rule regarding emissions reduction credits from shutdowns and curtailments were nonsubstantive and merely clarified the restrictions on credits from shutdowns or curtailments. Specifically, the rule proposed on June 2, 2003 retained the requirement that a State have an approved attainment demonstration before a source may use preapplication credits from shutdowns or curtailments as offsets, but made that requirement inapplicable where the credits occurred after the last day of the base year for the SIP planning process or where they were included in the most recent emissions inventory. Our final rule recognized there is no requirement for an approved attainment demonstration in those circumstances, and thus deleted the reference to that former requirement since under the revised rule it would never apply. 2. Legal Basis for Changes to Criteria for Emission Reduction Credits From Shutdowns and Curtailments The revisions made to the rules governing use of emissions reductions from shutdowns/curtailments as offsets were warranted by the more detailed attainment planning and sanction provisions of the 1990 CAA Amendments. These provisions specifically address air quality concerns in nonattainment areas lacking EPA-approved attainment demonstrations. As a threshold matter, we noted (see 70 FR 71677, November 29, 2005) that CAA section 173 does not mandate the prior restrictions on shutdown credits, specifically, the requirement to have an approved attainment demonstration before shutdown credits may be allowed. (See 48 FR 38742, 38751; August 25, 1983.) Rather, in promulgating these restrictions in 1989, EPA recognized that it had a large degree of discretion under the CAA to shape implementing regulations, as well as the need to exercise that discretion such that offsets are consistent with reasonable further progress

(RFP)as required in CAA section 173. (See 54 FR 27286, 27292; June 28, 1989.) Originally, EPA believed that areas without approved attainment demonstrations lacked adequate safeguards to ensure that shutdown/curtailment credits would be consistent with RFP. We thus subjected those areas to more restrictive requirements to ensure a link between the new source and the source being shutdown/curtailed (that is, shutdown/curtailment must occur after the application for a new or modified major source is filed). The 1990 CAA Amendments changed the considerations involved. For areas subject to subpart 2 of CAA part D, Congress emphasized the emission inventory requirement in section 172(c)(3) as a fundamental tool in air quality planning (see section 182(a)(1)). Congress also added new provisions keyed to the inventory requirement, including specific reduction strategies (e.g., section 182(b)(3) and

(4)(regarding gasoline vapor recovery and motor vehicle inspection and maintenance programs)) and “milestones” that measure progress toward attainment from the base year emissions inventory or subsequent revised inventories (see section 182(b)(1)). Where the emission reduction credits pre-date the base year, State and local agencies must include the credits from the shutdown/curtailment in the projected emissions inventory used to develop the attainment demonstration. Subpart 4 sets forth specific reduction strategies and milestones for attainment of the PM 10 standards. Additionally, there are now several adverse consequences where States fail to meet the planning or emissions reductions requirements of the CAA. For example, the CAA contains mandatory increased new source offset sanctions at a 2:1 ratio where the Administrator finds that a State failed to submit a required attainment demonstration (see section 179). In areas that are subject to subpart 2 and subpart 4, failure to attain the air quality standard by the attainment deadline results in the area being bumped up to a higher classification (see sections 181(b)(2) and 188(b)(2)). Additional regulatory requirements are imposed as a result of the higher classification (see, e.g., section 182(c), (d), and (e), and section 189(b)). These statutory changes justify shifting the focus of the prior regulations from individual offset transactions between a specific new source and shutdown source and towards a systemic approach. Considering the changes to the 1990 CAA Amendments, we now believe that continuing the prohibition on the use of shutdown/curtailment credits generated in a nonattainment area that is without an approved attainment demonstration is not warranted. We believe that use of emission reduction credits from shutdowns/curtailments will be consistent with RFP towards attainment under CAA section 173, even in the absence of an approved attainment demonstration, if the shutdown or curtailment occurs after the last day of the base year for the SIP planning process or is included in the projected emissions inventory used to develop the attainment demonstration. From an air quality planning perspective, emissions from the shutdown source actually impacted the measurements of air quality used in determining the nonattainment status of an area. Therefore, emissions reductions from such source shutdowns/curtailments are actual emissions reductions, and their use as emission offsets at a ratio of 1:1 or greater is consistent with RFP towards improved air quality as set forth in CAA section 173(a)(1)(A) provided they are included in the baseline emissions inventory. 3. Reconsideration of Emission Reduction Credits Final Rule Language and Request for Public Comments In its January 30, 2006, petition for reconsideration, NRDC requested that EPA reconsider provisions in the final Phase 2 Rule that pertain to ERC. NRDC argued that EPA failed to present portions of the rule's “shutdown-curtailment offset provisions” and accompanying rationales to the public for comment. As noted above, the EPA is of the opinion that the basis for the ERC provisions of the final rule were fully explained in the November 29, 2005 rulemaking and in earlier actions leading to that rulemaking. The November 29, 2005 preamble included a lengthy description of preceding actions in which our rationale was developed. Furthermore, the November 29, 2005 preamble detailed our response to comments pertaining to the proposal. The particular comments that triggered the change in wording from usage of the term “most recent emissions inventory” to the term “projected emissions inventory used to develop the attainment demonstration” directly resulted from public comments we received in response to the July 23, 1996 proposal. The commenters voiced concerns that emission inventory updates would periodically eliminate emissions that could be used as emission reduction credits even though those emissions had been included in the projected inventory to be used for establishing attainment progress. Such was not our intent and we changed the language specific to the inventory in question in the interest of making a clarification. Petitioners assert in their request for reconsideration that our clarifying amendments to the ERC provisions of the final rule were not a logical outgrowth of the ERC provisions we proposed. In contrast, we saw our language change in the final rule as a technical clarification and not as a change to the nature or scope of our proposal. Nonetheless, we do see value in presenting the final rule language for public comment as requested by the petitioners. It was and is our position that the changes reflected in the final rule were made in a procedurally correct manner and that the public comments reflected in the final rule were factually and logically compelling. Nevertheless, we encourage and welcome additional input. At proposal, we presented two options, one of which was adopted following our consideration of the public comments. We thus propose for reconsideration and seek public comment on the ERC provisions in the final Phase 2 Rule set forth at 40 CFR 51.165(a)(3)(ii)(C)(1) and (2), and Appendix S paragraph IV.C.3. C. Applicability of Appendix S, Section VI 1. Final Changes to Applicability of Appendix S, Section VI Section VI allows new sources locating in an area designated as nonattainment to be exempt from the requirements of Section IV.A. of Appendix S if the date for attainment has not yet passed. Section VI provides a management tool to provide a limited degree of flexibility in situations where a new source would not interfere with an area's ability to meet an attainment deadline. The final Phase 2 Rule made a procedural change to limit the applicability of appendix S, section VI to only those instances in which the Administrator has specifically approved doing so. Although we did not include the regulatory language to accomplish this goal in the June 2, 2003 proposal, we did clearly state our intention of doing so. As we noted at 68 FR 32848, section VI as worded without any amendment could apply in any nonattainment area where the dates for attainment have not passed even if the source meets all applicable SIP emission limitations and would not interfere with the area's ability to meet its attainment date. As codified prior to the amendment in the Final Phase 2 Rule, section VI contained no provision conditioning its applicability on approval by the Administrator. We noted at proposal, however, that States generally would not be able to show that a nonattainment area would continue to meet its attainment date if it does not apply LAER or offsets to major new sources and major modifications in the absence of safeguards (68 FR 32848). Further, we stated in the preamble to the Phase 2 Rule that we continued to believe, as we stated in the proposal, that States should not interpret section VI as allowing a blanket exemption from LAER and offsets for all major new sources and major modifications in a given area before attainment dates have passed for that area. At proposal, we also offered for comment two broad programmatic proposals to modify the then-existing section VI for the purpose of providing greater flexibility. Overall, commenters considered the programmatic options to be impracticable. However most commenters did express support for the flexibility provided by section VI. For this reason, we retained the original eligibility conditions for determining when section VI applies, but added the procedural requirement that the Administrator determine that the two previously existing conditions of Section VI are satisfied, and that the Administrator provide public notice of that determination. Thus, in the final rule we retained the previously existing requirements of Section VI, and added a further requirement that the Administrator independently determine and provide public notice that those requirements have been met. This requirement will achieve the proposal's purpose of assuring that States do not interpret section VI to provide a broad exemption to all major new sources and major modifications in any nonattainment area for which the attainment date has not passed. 2. Legal Basis for Changes to Applicability of Appendix S and the Transitional NSR Program For the purposes of today's reconsideration, we will not expand our prior expressions of the legal basis for section VI of Appendix S. The legal basis for Appendix S, including section VI, was discussed in detail in section V.B.3.b. of the preamble to the final Phase 2 Rule. We have historically recognized that the SIP development period provided for in section 172(b) leaves a gap in part D major NSR permitting and have determined that this gap is to be filled with an interim major NSR program that is substantially similar to the requirements of part D, including the LAER and offset requirements from part D, subject to a limited exemption where the attainment deadline will be met (57 FR 18070, 18076). This interim NSR program has been implemented to date through Appendix S. The section VI exemption, as limited by the final Phase 2 Rule, is consistent with the section 110(a)(2)(C) requirement that preconstruction permitting is implemented “as necessary to assure that the [NAAQS] are achieved.” While the Phase 2 Rule did not adopt the eligibility criteria that were proposed to ensure satisfaction of the original section VI conditions, we did add the proposed requirement that the Administrator determine that sources exempted from LAER and offsets under section VI will meet those conditions, in particular, noninterference with the attainment deadline. Section VI also is consistent with the exercise of our gap filling authority under section 301, as informed by the legislative history. That is, Appendix S reflects Congressional intent that standards equivalent to part D govern the issuance of NSR permits, subject to a limited degree of flexibility under conditions where attainment of the NAAQS by the attainment deadline is assured. 3. Reconsideration of Appendix S, Section VI Final Rule Language and Request for Public Comments In its January 30, 2006, petition, NRDC requested that EPA reconsider provisions in the final Phase 2 Rule that pertain to Appendix S, section VI. NRDC argued that EPA failed to provide the public with an opportunity to comment on the language of Appendix S, Section VI that was included in the final rule. As is the case with respect to the ERC provisions, EPA believes that our rationale was fully explained in the November 29, 2005 rulemaking and in earlier actions leading to that rulemaking. The preamble to the final rule included a lengthy description of preceding actions in which our rationale was developed. Further, the preamble to the final rule detailed our response to comments pertaining to the proposal. In our June 2, 2003 notice we proposed two possible programs for the implementation of the provisions contained in Section VI. Commenters recommended against the proposed approaches and we responded by dropping both proposed programs at promulgation. As noted above, what we did in the final rule was add one provision to the already existing language of Appendix S, section VI to limit use of Section VI to only those instances publicly approved of by the Administrator. Although we did not include in the June 2, 2003 proposal the regulatory language added to the final rule at Appendix S, Section VI.C., we did clearly state our intention as to the change to be made. From our perspective, we made the smallest change possible and achieved closure of a gap in section VI. Thus, we disagree with the petitioner's assertion that the final rule language is not a logical outgrowth of the proposal. As well, we disagree with the petitioner's assertion that the final rule constitutes an open-ended scheme to evade the strictures of Part D. If anything, the prior rule language could have been construed as open-ended. The sole intention of our language change was to close what we perceived to be a loophole allowing just the type of outcome to which the petitioners object. Congress required just such closure through the provisions of the original section 129 as included in the August 7, 1977 amendments to the Act. At that time, Congress made clear its opinion that it would be the role of the Administrator to determine whether waiver of the appendix S provisions in question might be appropriate. The change made to Section VI in the final rule providing that the Administrator must determine whether the conditions of Section VI have been satisfied provides a positive safeguard to prevent just the kinds of unchecked application of its provisions as envisioned by the petitioners. We continue to see section VI as a gap-filler that goes away as of the attainment date. It was and is our position that the changes reflected in the final rule were made in a procedurally correct manner and that the public comments reflected in the final rule were factually and logically compelling. Nonetheless, we see value in presenting for public comment the changes made to Section VI of Appendix S in the final Phase 2 Rule. Therefore, we seek comment on subsection C. of Section VI of Appendix S as added in the final Phase 2 rule as requested by the petitioners. Following today's action, we anticipate two possible outcomes. First, should we not receive compelling arguments to the contrary, the provision promulgated on November 29, 2005, and proposed today in section VI.C. would remain as promulgated. That is, the language proposed herein is actually already codified in the Code of Federal Regulations and we would make no further changes. The second possible outcome of our reconsideration of this provision could be that commenters might make compelling arguments that it was inappropriate for us to add to the final Phase 2 Rule the requirement of Section VI.C. that the Administrator determine that requirements A and B of Section VI have been satisfied and to provide notice of such determination. Should that occur, our final rule would consist of amendatory language to revert the text of section VI to that which existed prior to November 29, 2005. That is, we would retract section VI.C. and remove the specification for the Administrator to be the determinant of when section VI might be applied. We invite comment on these two options. We currently believe that the correct approach is the approach we took in the final Phase 2 Rule. While section 129 has been amended to address matters largely unrelated to those addressed in 1977, Congress did previously legislate a course parallel to that which we have thus far chosen to pursue. IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order

(EO)12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” This action is significant because it raises novel legal or policy issues. Accordingly, EPA submitted this action to the Office of Management and Budget

(OMB)for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act The information collection requirements in this reconsideration notice are addressed along with those covering the Phase 1 Rule (April 30, 2004; 69 FR 23951) and the Phase 2 Rule (November 29, 2005; 70 FR 71612) which was submitted for approval to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* [EPA ICR # 2236.01.] The information collection requirements are not enforceable until OMB approves them other than to the extent required by statute. This action announces EPA's decision to reconsider and take additional comment on several provisions of the Phase 2 Rule, namely the RACT provisions and selected NSR provisions. This action does not establish any new information collection burden on States beyond what was required in the Phase 2 Rule. The EPA has projected cost and hour burden for the statutory SIP development obligation for the Phase 2 Rule, and prepared an Information Collection Request (ICR). Assessments of some of the administrative cost categories identified as a part of the SIP for an 8-hour standard are already conducted as a result of other provisions of the CAA and associated ICRs ( *e.g.* emission inventory preparation, air quality monitoring program, conformity assessments, NSR, inspection and maintenance program). The burden estimates in the ICR for the Phase 2 rule are incremental to what is required under other provisions of the CAA and what would be required under a 1-hour standard. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. When the ICR for the Phase 2 rule is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the **Federal Register** to display the OMB control number for the approved information collection requirements contained in this final rule. However, the failure to have an approved ICR for this rule does not affect the statutory obligation for the States to submit SIPs as required under part D of the CAA. The information collection requirements associated with NSR permitting for ozone are covered by EPA's request to renew the approval of the ICR for the NSR program, ICR 1230.17, which was approved by OMB on January 25, 2005. The information collection requirements associated with NSR permitting were previously covered by ICR 1230.10 and 1230.11. The OMB previously approved the information collection requirements contained in the existing NSR regulations at 40 CFR parts 51 and 52 under the provisions of the Paperwork Reduction Act, and assigned OMB control number 2060-0003. A copy of the approved ICR may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling

(202)566-1672. C. Regulatory Flexibility Act The Regulatory Flexibility Act generally requires an Agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the Agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's notice of reconsideration on small entities, small entity is defined as:

(1)A small business as defined by the Small Business Administration's

(SBA)regulations at 13 CFR 121.201;

(2)a governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and

(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of the Phase 1 and Phase 2 Rules, we concluded that those actions did not have a significant economic impact on a substantial number of small entities. For those same reasons, I certify that this action will not have a significant economic impact on a substantial number of small entities. This notice of reconsideration will not impose any requirements on small entities. We continue to be interested in the potential impacts of our proposed rules on small entities and welcome comments on issues related to such impacts. Concerning the NSR portion of this notice of reconsideration, a Regulatory Flexibility Act Screening Analysis (RFASA) was developed as part of a 1994 draft Regulatory Impact Analysis

(RIA)and incorporated into the September 1995 ICR renewal. This analysis showed that the changes to the NSR program due to the 1990 CAA Amendments would not have an adverse impact on small entities. This analysis encompassed the entire universe of applicable major sources that were likely to also be small businesses (approximately 50 “small business” major sources). Because the administrative burden of the NSR program is the primary source of the NSR program's regulatory costs, the analysis estimated a negligible “cost to sales” (regulatory cost divided by the business category mean revenue) ratio for this source group. The incorporation of the major source thresholds and offset ratios from the 1990 CAA Amendments in section 51.165 and appendix S for the purpose of implementing NSR for the 8-hour standard does not change this conclusion. Under section 110(a)(2)(C), all States must implement a preconstruction permitting program “as necessary to assure that the [NAAQS] are achieved,” regardless of changes to today's regulations. Thus, small businesses continue to be subject to regulations for construction and modification of stationary sources, whether under State and local agency minor NSR programs, SIPs to implement section 51.165, or appendix S, to ensure that the 8-hour standard is achieved. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 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 the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the 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. The EPA has determined that this notice of reconsideration does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any 1 year. In promulgating the Phase 1 and Phase 2 Rules, we concluded that they were not subject to the requirements of sections 202 and 205 of the UMRA. For those same reasons, this notice of reconsideration and request for comment is not subject to the UMRA. The EPA has determined that this notice of reconsideration contains no regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments. E. Executive Order 13132: Federalism Executive Order 13132 (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This notice of reconsideration requests comment on three aspects of the Phase 2 Rule. For the same reasons stated in the Phase 1 and Phase 2 Rules, Executive Order 13132 does not apply to this action. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this action from State and local officials. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175 (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” This notice of reconsideration does not have “Tribal implications” as specified in Executive Order 13175. The purpose of this notice of reconsideration is to announce our decision to reconsider and request comment on specific aspects of the Phase 2 Rule. The CAA provides for States and Tribes to develop plans to regulate emissions of air pollutants within their jurisdictions. The Tribal Authority Rule

(TAR)gives Tribes the opportunity to develop and implement CAA programs such as the 8-hour ozone NAAQS, but it leaves to the discretion of the Tribes whether to develop these programs and which programs, or appropriate elements of a program, they will adopt. For the same reasons stated in the Phase 1 and Phase 2 Rules, this action does not have Tribal implications as defined by Executive Order 13175. It does not have a substantial direct effect on one or more Indian Tribes, since no Tribe has implemented a CAA program to attain the 8-hour ozone NAAQS at this time. If a Tribe does implement such a plan, it would not impose substantial direct costs upon it. Furthermore, this action does not affect the relationship or distribution of power and responsibilities between the Federal government and Indian Tribes. The CAA and the TAR establish the relationship of the Federal government and Tribes in developing plans to attain the NAAQS, and this action does nothing to modify that relationship. Because this action does not have Tribal implications, Executive Order 13175 does not apply. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that

(1)is determined to be “economically significant” as defined under Executive Order 12866, and

(2)concerns an environmental health or safety risk that EPA has reason to believe may have 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. This notice of reconsideration addresses several provisions in the Phase 2 Rule that the Agency was requested to reconsider and requests comment on those provisions. The action is not subject to Executive Order 13045 because the Agency does not have reason to believe the environmental health risks or safety risks addressed by this action present a disproportionate risk to children. Nonetheless, we have evaluated the environmental health or safety effects of the 8-hour ozone NAAQS on children. The results of this evaluation are contained in 40 CFR part 50, National Ambient Air Quality Standards for Ozone, Final Rule (July 18, 1997; 62 FR 38855-38896, specifically, 62 FR 38860 and 62 FR 38865). H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This action is not a “significant energy action” as defined in Executive Order 13211, “Actions That Significantly Affect Energy Supply, Distribution, or Use,” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The notice of reconsideration announces our decision to reconsider and requests comment on several aspects of the Phase 2 Rule, for which EPA did perform an analysis of the energy impacts under Executive Order 13211. 16 16 Technical Appendix: Potential Impacts of Implementation of the 8-Hour Ozone NAAQS; Technical Support Document. July 21, 2005. Docket Document EPA-HQ-OAR-2003-0079-0860. I. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards

(VCS)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 VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS. This action does not involve technical standards. Therefore, EPA is not considering the use of any VCS. The EPA will encourage the States and Tribes to consider the use of such standards, where appropriate, in the development of the implementation plans. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionate high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. The EPA concluded that the Phase 2 Rule does not raise any environmental justice issues (See 70 FR at 71695, col. 2; (November 29, 2005)); for the same reasons, since this action announces our decision to reconsider and requests comment on several aspects of the Phase 2 rule, this reconsideration notice does not raise any environmental justice issues. The health and environmental risks associated with ozone were considered in the establishment of the 8-hour, 0.08 ppm ozone NAAQS (62 FR 38856 (July 18, 1997)). The level is designed to be protective with an adequate margin of safety. The Phase 2 Rule provides a framework for improving environmental quality and reducing health risks for areas that may be designated nonattainment. List of Subjects in 40 CFR Part 51 Environmental protection, Air pollution control, Carbon monoxide, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides. Dated: December 11, 2006. Stephen L. Johnson, Administrator. For the reasons stated in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows: PART 51—REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS 1. The authority citation for part 51 continues to read as follows: Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q. Subpart I—[Amended] 2. Section 51.165 is amended by revising paragraph (a)(3)(ii)(C) to read as follows: § 51.165 Permit requirements.

(a)* * *

(3)* * *

(ii)* * *

(C)*Emission reduction credits from shutdowns and curtailments.* ( *1* ) Emissions reductions achieved by shutting down an existing emission unit or curtailing production or operating hours may be generally credited for offsets if they meet the requirements in paragraphs (a)(3)(ii)(C)( *1* )( *i* ) through ( *ii* ) of this section. ( *i* ) Such reductions are surplus, permanent, quantifiable, and federally enforceable. ( *ii* ) The shutdown or curtailment occurred after the last day of the base year for the SIP planning process. For purposes of this paragraph, a reviewing authority may choose to consider a prior shutdown or curtailment to have occurred after the last day of the base year if the projected emissions inventory used to develop the attainment demonstration explicitly includes the emissions from such previously shutdown or curtailed emission units. However, in no event may credit be given for shutdowns that occurred before August 7, 1977. ( *2* ) Emissions reductions achieved by shutting down an existing emissions unit or curtailing production or operating hours and that do not meet the requirements in paragraph (a)(3)(ii)(C) *(1)(ii)* of this section may be generally credited only if: ( *i* ) The shutdown or curtailment occurred on or after the date the construction permit application is filed; or ( *ii* ) The applicant can establish that the proposed new emissions unit is a replacement for the shutdown or curtailed emissions unit, and the emissions reductions achieved by the shutdown or curtailment met the requirements of paragraph (a)(3)(ii)(C) *(1)(i)* of this section. Appendix S to Part 51—[Amended] 3. Appendix S to part 51 is amended by revising paragraphs IV.C.3 and VI to read as follows: Appendix S to Part 51—Emission Offset Interpretative Ruling IV. * * * C. * * * 3. Emission Reduction Credits from Shutdowns and Curtailments.

(i)Emissions reductions achieved by shutting down an existing source or curtailing production or operating hours may be generally credited for offsets if they meet the requirements in paragraphs IV.C.3.i.1. through 2 of this section.

(1)Such reductions are surplus, permanent, quantifiable, and federally enforceable.

(2)The shutdown or curtailment occurred after the last day of the base year for the SIP planning process. For purposes of this paragraph, a reviewing authority may choose to consider a prior shutdown or curtailment to have occurred after the last day of the base year if the projected emissions inventory used to develop the attainment demonstration explicitly includes the emissions from such previously shutdown or curtailed emission units. However, in no event may credit be given for shutdowns that occurred before August 7, 1977.

(ii)Emissions reductions achieved by shutting down an existing source or curtailing production or operating hours and that do not meet the requirements in paragraphs IV.C.3.i.1. through 2 of this section may be generally credited only if:

(1)The shutdown or curtailment occurred on or after the date the new source permit application is filed; or

(2)The applicant can establish that the proposed new source is a replacement for the shutdown or curtailed source, and the emissions reductions achieved by the shutdown or curtailment met the requirements of paragraphs IV.C.3.i.1. through 2 of this section. VI. Policy Where Attainment Dates Have Not Passed In some cases, the dates for attainment of primary standards specified in the SIP under section 110 have not yet passed due to a delay in the promulgation of a plan under this section of the Act. In addition the Act provides more flexibility with respect to the dates for attainment of secondary NAAQS than for primary standards. Rather than setting specific deadlines, section 110 requires secondary NAAQS to be achieved within a “reasonable time”. Therefore, in some cases, the date for attainment of secondary standards specified in the SIP under section 110 may also not yet have passed. In such cases, a new source locating in an area designated in 40 CFR 81.300 *et seq.* as nonattainment (or, where section III of this Ruling is applicable, a new source that would cause or contribute to a NAAQS violation) may be exempt from the Conditions of section IV.A if the conditions in paragraphs VI.A through C are met. A. The new source meets the applicable SIP emission limitations. B. The new source will not interfere with the attainment date specified in the SIP under section 110 of the Act. C. The Administrator has determined that conditions A and B of this section are satisfied and such determination is published in the **Federal Register** . [FR Doc. E6-21379 Filed 12-18-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2005-CA-0013, FRL-8257-7] Revisions to the California State Implementation Plan, Kern County Air Pollution Control District AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve revisions to the Kern County Air Pollution Control District (KCAPCD) portion of the California State Implementation Plan (SIP). The KCAPCD revisions concern permitting requirements. We are proposing to approve local rules that administer regulations under the Clean Air Act as amended in 1990 (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action. DATES: Any comments must arrive by January 18, 2007. ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-2005-CA-0013, by one of the following methods: • Federal eRulemaking Portal: *www.regulations.gov* . Follow the online instructions. • E-mail: *R9airpermits@epa.gov* . • Mail or deliver: Gerardo Rios (Air-3), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105. *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 *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: Manny Aquitania, Permits Office (AIR-3), U.S. Environmental Protection Agency, Region IX,

(415)972-3977, *aquitania.manny@epa.gov* . SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us” and “our” refer to EPA. Table of Contents I. The State's Submittal A. What rules did the State submit? B. Are there other versions of these rules? C. What is the purpose of the submitted rule revisions? II. EPA's Evaluation and Action A. How is EPA evaluating the rules? B. Do the rules meet the evaluation criteria? C. What is the deficiency in Rule 203? D. EPA recommendation to further improve a rule E. Public comment and final action III. Statutory and Executive Order Reviews I. The State's Submittal A. What rules did the State submit? Table 1 lists the rules we are proposing to approve and Table 2 lists the rule we are proposing to disapprove with the date that they were amended by the local air agency and submitted by the California Air Resources Board (CARB). Table 1.—Submitted Rules Proposed for Full Approval Local agency Rule No. Rule title Amended Submitted KCAPCD 201 Permits Required 05/02/96 07/23/96 KCAPCD 202.1 Experimental Research Operations 05/02/96 07/23/96 KCAPCD 209.1 Permit Conditions 05/02/96 07/23/96 KCAPCD 210.2 Standards for Permits to Operate 05/02/96 07/23/96 KCAPCD 210.5 Visibility Protection 05/02/96 07/23/96 Table 2.—Submitted Rule Proposed for Full Disapproval Local agency Rule No. Rule title Amended Submitted KCAPCD 203 Transfer 05/02/96 07/23/96 On October 30, 1996, the submittal of Rules 201, 202.1, 203, 209.1, 210.2, and 210.5 was found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review. B. Are there other versions of these rules? We approved Rules 201 and 202.1 into the SIP on July 6, 1982 (47 FR 29233). We approved Rule 203 into the SIP on September 22, 1972 (37 FR 19812). We approved Rule 210.2 into the SIP on August 21, 1981 (46 FR 42460). There are no versions of Rules 209.1 and 210.5 in the SIP. C. What is the purpose of the submitted rule revisions? Section 110(a) of the CAA requires states to submit regulations that control volatile organic compounds, oxides of nitrogen, particulate matter, and other air pollutants which harm human health and the environment. These rules were developed as part of the local agency's program to control these pollutants. The purposes of the new rules are as follows: • Rule 209.1 adds a prohibition to operate equipment contrary to conditions in the Permit to Operate

(PTO)issued in accordance with the provisions of Rule 209 in order to comply with the standards of Rules 208 and 208.1. • Rule 210.5 adds a requirement that the Air Pollution Control Officer

(APCO)not issue an Authority to Construct

(ATC)unless the analysis required by this rule demonstrates that an adverse impact on visibility in Federal Class I Areas will not occur for any new major stationary source or major modification which would have the potential to emit nitrogen oxides, sulfur dioxide or particulate matter in significant amounts and is required to utilize BACT/LAER for such pollutants. The purposes of revisions relative to the SIP rules are as follows: • Rule 201 adds a provision that the ATC will serve as the temporary PTO after notifying the APCO of the intent to start-up new or modified equipment and adds a provision that the application for a PTO will serve as the temporary PTO for existing equipment. • Rule 202.1 is reformatted for clarity. • Rule 203 replaces the prohibition from transferring a permit with the allowance to transfer a permit from one person to another or from one location to another, providing a new application is filed and approved by the APCO. • Rule 210.2 deletes the severability provision. The TSD has more information about these rules. II. EPA's Evaluation and Action A. How is EPA evaluating the rules? Generally, SIP rules must be enforceable (see section 110(a) of the CAA) and must not relax existing requirements (see sections 110(l) and 193). The following guidance documents were used for reference: • *Requirements for Preparation, Adoption, and Submittal of Implementation Plans,* U.S. EPA, 40 CFR part 51. • *Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,* EPA (May 25, 1988). (The Blue Book) • *Guidance Document for Correcting Common VOC & Other Rule Deficiencies,* EPA Region IX (August 21, 2001). (The Little Bluebook) B. Do the rules meet the evaluation criteria? We believe Rules 201, 202.1, 209.1, 210.2, and 210.5 are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. A provision in Rule 203 which does not meet the evaluation criteria is summarized below and discussed further in the TSD. C. What is the deficiency in Rule 203? This provision conflicts with section 110 and part D of the CAA and prevents full approval of the SIP revision: • The revision to Rule 203 to allow transfer of a permit from one location to another is prohibited, because permitting requirements may be different at different locations. A New Source Review must be performed upon changing location. See 40 CFR part 51, sections 165-166. D. EPA Recommendation to further improve a rule The TSD describes an additional revision to Rule 201 that does not affect EPA's current action but is recommended for the next time the local agency modifies the rule. E. Public comment and final action As authorized in section 110(k)(3) of the CAA, we are proposing full approval of the submitted KCAPCD Rules 201, 202.1, 209.1, 210.2, and 210.5. As authorized in sections 110(k)(3) of the CAA, we are proposing a full disapproval of the submitted KCAPCD Rule 203. If finalized, this action would retain the present SIP-approved rule in the SIP. Sanctions would not be imposed as described in CAA section 179 and 40 CFR 52.30-52.32, because the present SIP-approved rule fulfills CAA requirements. III. Statutory and Executive Order Reviews A. Executive Order 12866, Regulatory Planning and Review The Office of Management and Budget

(OMB)has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.” B. Paperwork Reduction Act This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) C. Regulatory Flexibility Act The Regulatory Flexibility Act

(RFA)generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship, under the Clean Air Act preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. *Union Electric Co.* v. *U.S. EPA* , 427 U.S. 246, 255-66 (1976); 42 U.S.C. 10(a)(2). D. Unfunded Mandates Reform Act Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule. EPA has determined that the approval action proposed does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action proposes to approve pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action. E. Executive Order 13132, Federalism Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation. This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule. F. Executive Order 13175, Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Thus, Executive Order 13175 does not apply to this rule. EPA specifically solicits additional comment on this proposed rule from tribal officials. G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that:

(1)Is determined to be “economically significant” as defined under Executive Order 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. This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks. H. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards”

(VCS)if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical. The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to VCS. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: November 28, 2006. Wayne Nastri, Regional Administrator, Region IX. [FR Doc. E6-21497 Filed 12-18-06; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 [Docket No. FEMA-B-7701] Proposed Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Proposed rule. SUMMARY: Technical information or comments are requested on the proposed Base (1% annual chance) Flood Elevations

(BFEs)and proposed BFEs modifications for the communities listed below. The BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). DATES: The comment period is ninety

(90)days following the second publication of this proposed rule in a newspaper of local circulation in each community. ADDRESSES: The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Section, Mitigation Division, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,

(202)646-3151. SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency

(FEMA)proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a). These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. *National Environmental Policy Act.* This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. *Regulatory Flexibility Act.* As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Regulatory Classification.* This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism.* This proposed rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform.* This proposed rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is proposed to be amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.4 [Amended] 2. The tables published under the authority of § 67.4 are proposed to be amended as follows: Flooding source(s) Location of referenced elevation *Elevation in feet

(NGVD)+Elevation in feet

(NAVD)# Depth in feet above ground Effective Modified Communities affected Bartow County, Georgia and Incorporated Areas Raccoon Creek Approximately 19,930 feet upstream of the confluence with Etowah River None +705 Bartow County ((Unincorporated Areas). Approximately 22,900 feet upstream of the confluence with Etowah River None +708 *National Geodetic Vertical Datum #Depth in feet above ground +North American Vertical Datum ADDRESSES Bartow County (Unincorporated Areas) Maps are available for inspection at the Community Map Repository, 135 West Cherokee Avenue, Suite 124, Cartersville, Georgia 30120. Send comments to Mr. Clarence Brown, Presiding Commissioner, Bartow County, 135 West Cherokee Avenue, Suite 251, Cartersville, Georgia 30120. Flooding source(s) Location of referenced elevation *Elevation in feet

(NGVD)+Elevation in feet

(NAVD)# Depth in feet above ground Effective 1 Modified Communities affected Carroll County, Georgia and Incorporated Areas Beulah Creek At the confluence with Little Tallapoosa River +986 +988 City of Carrollton. At Columbia Drive +986 +988 Buffalo Creek At Strickland Road +1042 +1043 City of Carrollton. Tributary 1 Approximately 900 feet upstream of Strickland Road +1042 +1043 Chandler's Spring Creek At the confluence with Little Tallapoosa River +989 +992 City of Carrollton. Just upstream of William Street +989 +992 Curtis Creek At the confluence with Little Tallapoosa River +991 +994 City of Carrollton. At Lake Carroll Dam +991 +994 Little Tallapoosa River Approximately 2,275 feet upstream of confluence of Buck Creek +977 +978 City of Carrollton. Approximately 2,800 feet upstream of Northside Drive +992 +995 Little Tallapoosa River Tributary At the confluence with Little Tallapoosa River +990 +993 City of Carrollton. Approximately 2,870 feet upstream of confluence with Little Tallapoosa River +992 +993 Sweetwater Creek At Carroll/Douglas County boundary None +979 Carroll County. Approximately 1,510 feet upstream of the Carroll/Douglas county boundary None +982 (Unincorporated Areas). Tanyard Branch At confluence with Little Tallapoosa River +989 +992 City of Carrollton. Approximately 135 feet upstream of River Drive +991 +992 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. 1 The existing elevation data included on the effective FIRM is printed in the elevation datum of the National Geodetic Vertical Datum of 1929 (NGVD29). In order to convert this printed elevation data from the NGVD29 datum to the NAVD88 datum, please add 0.2 feet. ADDRESSES Carroll County (Unincorporated Areas) Maps are available for inspection at the Community Map Repository, Carroll County Engineering Department, 315 Bradley Street, Carrollton, Georgia 30117. Send comments to The Honorable Robert Barr, Chairman, Carroll County Board of Commissioners, 315 Bradley Street, Georgia, 30117. City of Carrollton Maps are available for inspection at the Community Map Repository, Carroll County Engineering Department, 315 Bradley Street, Carrollton, Georgia 30117. Send comments to The Honorable Weigh Garner, Mayor, City of Carrollton, 315 Bradley Street, Georgia, 30117. Flooding source(s) Location of referenced elevation * Elevation in feet

(NGVD)+ Elevation in feet

(NAVD)# Depth in feet above ground Effective Modified Communities affected Forsyth County, Georgia and Incorporated Areas Hurricane Creek At the confluence with Settingdown Creek +969 +970 Forsyth County (Unincorporated Areas). Approximately 1,010 feet upstream of the confluence with Settingdown Creek +969 +970 James Creek At the confluence with Chattahoochee River +917 +918 Forsyth County (Unincorporated Areas). Approximately 2,400 feet upstream of the confluence with Chattahoochee River +917 +918 Tributary G At the confluence with Settingdown Creek +1,141 +1,140 Forsyth County (Unincorporated Areas). Approximately 100 feet upstream of the confluence with Settingdown Creek +1,141 +1,140 Tributary J At the confluence with Settingdown Creek +1,157 +1,156 Forsyth County (Unincorporated Areas). Approximately 60 feet upstream of the confluence with Settingdown Creek +1,157 +1,156 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Forsyth County (Unincorporated Areas) Maps are available for inspection at 110 East Main Street, Suite 100, Cumming, Georgia 30040. Send comments to Mr. Jack Conway, Commission Chairman, Forsyth County, 110 East Main Street, Suite 210, Cumming, Georgia 30040. Flooding source(s) Location of referenced elevation *Elevation in feet

(NGVD)+Elevation in feet

(NAVD)# Depth in feet above ground Effective Modified Communities affected Whitfield County, Georgia and Incorporated Areas Poplar Springs Creek Approximately 660 feet downstream of Poplar Springs Road None +747 Whitfield County (Incorporated Areas). Approximately 1,270 feet upstream of Reed Pond Road Northwest None +771 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Whitfield County (Unincorporated Areas) Maps are available for inspection at 1407 Burleyson Drive, Dalton, Georgia 30720. Send comments to Brian D. Anderson, Sr., Commission Chairman, Board of Commissioners, Whitfield County, 301 West Crawford Street, Dalton, Georgia 30720. Flooding source(s) Location of referenced elevation *Elevation in feet

(NGVD)+Elevation in feet

(NAVD)# Depth in feet above ground Effective Modified Communities affected Choctaw County, Mississippi, and Incorporated Areas Yockanookany River At Highway 407 None +454 Town of Weir. Approximately 400 feet upstream of South Union Road None +513 Choctaw County (Unincorporated Areas). Yockanookany River Tributary 2 At Kansas City Southern Railroad Bridge None +516 Town of Ackerman Choctaw County. Approximately 120 feet upstream of McKnight Road None +534 (Unincorporated Areas). Yockanookany River Tributary 3 At West Main Street None +510 Town of Ackerman Approximately 90 feet upstream of State Highway 12 None +538 Choctaw County (Unincorporated Areas). Yockanookany River Tributary 4 Approximately 70 feet downstream of Commerce Street None +521 Town of Ackerman. Approximately 320 feet upstream of College Street None +534 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Town of Ackerman Maps are available for inspection at Town Hall, 45 East Main Street, Ackerman, MS 39735. Send comments to The Honorable Bruce Burney, Mayor, 45 East Main Street, Ackerman, MS 39735. Choctaw County (Unincorporated Areas) Maps are available for inspection at County Courthouse, 22 East Quinn Street, Ackerman, MS 39735. Send comments to Mr. Thomas Higgins, Board President, Choctaw County Board of Supervisors, 22 East Quinn Street, Ackerman, MS 39735. Town of Weir Maps are available for inspection at Town Hall, 217 Front Street, Weir, MS 39772. Send comments to The Honorable Lee James, Mayor, Town Hall, 217 Front Street, Weir, MS 39772. Flooding source(s) Location of referenced elevation *Elevation in feet

(NGVD)+Elevation in feet

(NAVD)# Depth in feet above ground Effective Modified Communities affected Northumberland County, Pennsylvania, and Incorporated Areas Boile Run Approximately 690 feet upstream of State Road 147 *433 +432 Township of Lower Augusta. Approximately 905 feet downstream of State Road 147 *431 +432 Dalmatia Creek Approximately at 90 feet downstream of State Road 147 *416 +416 Township of Lower Mahanoy. Approximately at 900 feet upstream of State Road 147 *417 +416 Limestone Run Approximately at 1110 feet downstream of Filbert Street *468 +468 Borough of Milton, Township of Turbot. Approximately at 1600 feet upstream of Township Route 594 *520 +519 Mahanoy Creek Approximately 2120 feet downstream of State Road 147 *426 +427 Township of Jackson. Approximately 2900 feet upstream of State Road 147 *427 +427 Mahantango Creek Approximately 1000 feet downstream of State Road 147 *404 +400 Township of Lower Mahanoy. Approximately at 3000 feet upstream of State Road 147 *404 +404 Muddy Run Approximately at 3120 feet downstream of Legislative Route 49102 *472 +472 Township of Turbot. Approximately at 50 feet downstream of Township Route 572 *472 +472 Shamokin Creek Approximately 2500 feet downstream of State Road 61 *587 +583 Township of Ralpho, Township of Shamokin. Approximately 2250 feet upstream of Irish Valley Road *617 +617 Susquehanna River Approximately 18.6 miles downstream of Route 61, at Northumberland/Dauphin County line *404 +400 Borough of Herndon, Borough of Northumberland, Approximately 3.9 miles upstream of Route 54, at Northumberland/Montour County line *464 +468 Borough of Riverside, City of Sunbury, Township of Lower Augusta, Township of Lower Mahanoy, Township of Point, Township of Rush, Township of Upper Augusta. Tributary No. 1 to Limestone Run Approximately 2055 feet downstream of State Road 254 *481 +476 Township of Turbot. Approximately 250 feet downstream of State Road 254 *481 +476 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Borough of Herndon Maps are available for inspection at Herndon Borough Municipal Building, P.O. Box 385, Herndon, PA 17830 Send comments to The Honorable Richard Sweppenhiser, Mayor, North Main Street, P.O. Box 385, Herndon, PA 17830 Borough of Milton Maps are available for inspection at Milton Borough Office, 2nd Filbert Street, Milton, Milton, PA 17847. Send comments to The Honorable Charles Beck, Jr, Borough Manager, 2nd Filbert Street, Milton, PA 17847. Borough of Northumberland Maps are available for inspection at Northumberland Borough Building, 221 Second Street, Northumberland, PA 17857. Send comments to The Honorable Brian M. Wolf, Chairman of Borough Council, 221 Second Street, Northumberland, PA 17857. Borough of Riverside Maps are available for inspection at Riverside Borough Building, 301 Dewart Street, Riverside, PA 17868. Send comments to The Honorable Peter T. Fleming, President of Borough Council, P.O. Box 307, Riverside, PA 17868. City of Sunbury Maps are available for inspection at Sunbury City Code Administration Office, 225 Market Street,Sunbury, PA 17801. Send comments to The Honorable Jess Woodring, Mayor, 225 Market Street, Sunbury, PA 17801. Township of Jackson Maps are available for inspection at Jackson Township Municipal Building, RR 2 Box 605, Herndon, PA 17830. Send comments to The Honorable LaVerne Forman, Chairman of Board of Supervisors, RR 2 Box 605, Herndon, PA 17830. Township of Lower Augusta Maps are available for inspection at Lower Augusta Township Building, Rd #3, Box 28, Sunbury, PA 17801. Send comments to The Honorable Talmage Johnson, Chairman of Board of Supervisors, Rd #3, Box 28, Sunbury, PA 17801. Township of Lower Mahanoy Maps are available for inspection at Lower Mahanoy Township Hall, Rd 1, Box 38, Dalmatia, PA 17017. Send comments to The Honorable Larry L. Adams, Chairman of Board of Supervisors, Rd 1, Box 11, Dalmatia, PA 17017. Township of Point Maps are available for inspection at Point Township Municipal Building, 759 Ridge Road, Northumberland, PA 17857. Flooding source(s) Location of referenced elevation *Elevation in feet

(NGVD)+Elevation in feet

(NAVD)# Depth in feet above ground Effective Modified Communities affected Roane County, Tennessee and Incorporated Areas Clinch River At confluence with Tennessee River None +746 City of Kingston, At confluence with Emory River None +746 Roane County (Unincorporated Areas) Clinch River At confluence with Brashear Creek None +747 City of Oak Ridge, At Roane County-Knox County Boundary None +796 Roane County (Unincorporated Areas). * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Roane County (Unincorporated Areas) Maps are available for inspection at: Roane County Mayor's Office, 200 Race Street, Kingston, TN 37763. Send comments to the Honorable Ken Yager, Mayor Roane County, 200 Race Street, Kingston, TN 37763. City of Kingston Maps are available for inspection at: City of Kingston Mayor's Office, 125 W. Cumberland Street, Kingston, TN 37763. Send comments to the Honorable Diane McKeetham, Mayor City of Kingston, 125 W. Cumberland Street, Kingston, TN 37763. City of Oak Ridge Maps are available for inspection at: Community Development Department, 200 South Tulane Avenue, Oak Ridge, TN 37830. Send comments to the Honorable David Bradshaw, Mayor City of Oak Ridge, 200 South Tulane Avenue, Oak Ridge, TN 37830. Flooding source(s) Location of referenced elevation *Elevation in feet

(NGVD)+Elevation in feet

(NAVD)# Depth in feet above ground Effective Modified Communities affected White County, Tennessee and Incorporated Areas Calfkiller River At Wagner Street None +867 City of Sparta. At West Bronson Street None +963 Town Creek B At Highway 111 None +896 White County At Highway 70/North None +906 (Unincorporated Areas). * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES White County (Unincorporated Areas) Maps are available for inspection at White County Executive Office, Room 205, Courthouse, 1 West Bockmen Way, Sparta, TN 38583. Send comments to: The Honorable Herd Sullivan, Mayor White County, White County Courthouse, Room 205, Sparta, TN 38583. City of Sparta Maps are available for inspection at White County Executive Office, Room 205, Courthouse, 1 West Bockmen Way, Sparta, TN 38583. Send comments to: The Honorable Tommy Pedigo, Mayor City of Sparta, 6 Liberty Square, Sparta, TN 38583. (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”) Dated: December 11, 2006. David I. Maurstad, Director, Mitigation Division, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. E6-21577 Filed 12-18-06; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018-AT37 Endangered and Threatened Wildlife and Plants; Proposed Rule to Remove the Virginia Northern Flying Squirrel ( Glaucomys sabrinus fuscus ) From the Federal List of Endangered and Threatened Wildlife AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule. SUMMARY: Under the authority of the Endangered Species Act of 1973 (Act), as amended, we, the U.S. Fish and Wildlife Service (Service, us, our, or we), propose to remove the West Virginia northern flying squirrel (WVNFS) ( *Glaucomys sabrinus fuscus* ) from the Federal List of Endangered and Threatened Wildlife, due to recovery. This action is based on a review of the best available scientific and commercial data, which indicates that the subspecies is no longer endangered or threatened with extinction, or likely to become so within the foreseeable future. Recovery actions have resulted in a reduction in the threats which has led to:

(1)A significant increase in the number of known WVNFS capture sites;

(2)an increase in the number of individual squirrels;

(3)multiple generation reproduction;

(4)the proven resiliency of the squirrels; and

(5)the vast improvement and continued expansion of suitable habitat. DATES: We will consider comments on this proposed delisting if they are received by February 20, 2007. Public hearing requests must be received by February 2, 2007. ADDRESSES: If you wish to comment on this proposed delisting, you may submit your comments and materials concerning this proposal by any one of several methods: 1. You may submit written comments and information to the Assistant Chief, Division of Endangered and Threatened Species, U.S. Fish and Wildlife Service, Northeast Regional Office, 300 Westgate Center Drive, Hadley, MA 01035. 2. You may hand-deliver written comments to our Northeast Regional Office, at the above address. 3. You may fax your comments to 413-253-8482. 4. You may use the Federal Rulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address. FOR FURTHER INFORMATION CONTACT: Diane Lynch at the above address (telephone: 413-253-8628) or the Field Office Supervisor, West Virginia Field Office, 694 Beverly Pike, Elkins, WV 26241 (telephone: 304-636-6586, extension 15). Public Comments Solicited We intend for any final action resulting from this proposal to be as accurate as possible. Therefore, we solicit data, comments, or suggestions from the public, other concerned government agencies, the scientific community, industry, Tribes, or any other interested party concerning this proposed rule. We particularly seek comments concerning:

(1)Biological, commercial, trade, or other relevant data concerning any threat (or lack thereof) to the WVNFS;

(2)additional information on the range, distribution, and population size of the WVNFS and its habitat;

(3)the location of any additional populations of the WVNFS; and

(4)data on population trends. Please note that comments merely stating support or opposition to the actions under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531 *et seq.* ) directs that determinations as to whether any species is a threatened or endangered species shall be made “solely on the basis of the best scientific and commercial data available.” Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their name and/or home address, etc., but if you wish us to consider withholding this information, you must state this prominently at the beginning of your comments. In addition, you must present rationale for withholding this information. This rationale must demonstrate that disclosure would constitute a clearly unwarranted invasion of privacy. Unsupported assertions will not meet this burden. In the absence of exceptional, documentable circumstances, this information will be released. We will always make submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and other information received, as well as supporting documentation used to write this rule, will be available for public inspection, by appointment, during normal business hours at our Northeast Regional Office (see ADDRESSES ). In making a final decision on this proposal, we will take into consideration the comments and any additional information we receive. Such communications may lead to a final rule that differs from this proposal. SUPPLEMENTARY INFORMATION: Background The northern flying squirrel, *Glaucomys sabrinus* , is comprised of 25 subspecies, including the Virginia northern flying squirrel, *G. s. fuscus* . Miller (1936, p. 143) first described *G. s. fuscus* , based on specimens collected in the Appalachian Mountains of eastern West Virginia. The Virginia northern flying squirrel was listed as endangered under the Endangered Species Act

(Act)of 1973, as amended (16 U.S.C. 1531 *et seq.* ) on July 1, 1985 (Service 1985 (50 FR 26999, p. 27002)). However, it was subsequently determined that a more suitable common name for *G. s. fuscus* is the West Virginia northern flying squirrel (WVNFS), due to the majority of the range of the subspecies occurring in West Virginia, and will be referred to as such throughout the rest of this document. Information about the WVNFS' life history can be found in the final listing rule (50 FR 26999), the Appalachian Northern Flying Squirrels Recovery Plan (Service 1990, pp. 1-11), and the recent 5-year review (Service 2006b, pp. 6-10). Previous Federal Actions Additional information regarding previous Federal action for the WVNFS can be obtained by consulting the subspecies' regulatory profile found at: *http://ecos.fws.gov/species_profile/servlet/gov.doi.species_profile.servlets.SpeciesProfile?spcode=A09R.* Recovery Planning Recovery plans are not regulatory documents and are instead intended to provide guidance to the Service, States, and other partners on methods of minimizing threats to listed species and on criteria that may be used to determine when recovery is achieved. There are many paths to accomplishing recovery of a species and recovery may be achieved without all criteria being fully met. For example, one or more criteria may have been exceeded while other criteria may not have been accomplished. In that instance, the Service may judge that, over all, the threats have been minimized sufficiently, and the species is robust enough, to reclassify the species from endangered to threatened or perhaps delist the species. In other cases, recovery opportunities may have been recognized that were not known at the time the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan. Likewise, information on the species may be learned that was not known at the time the recovery plan was finalized. The new information may change the extent that criteria need to be met for recognizing recovery of the species. Overall, recovery of species is a dynamic process requiring adaptive management, and judging the degree of recovery of a species is also an adaptive management process that may, or may not, fully follow the guidance provided in a recovery plan. When the 1990 final recovery plan was approved, the recovery criteria as they apply to the WVNFS were deemed objective, measurable, and adequate (Service 1990, p. 19). The recovery criteria did not change with a 2001 recovery plan amendment (Service 2001, pp. 1-6). However, the 2001 amendment included an update to Appendix A, Guidelines for Habitat Identification and Management for the WVNFS. Implementation of the amended Appendix A Guidelines by the Monongahela National Forest

(MNF)effectively abated the main threat to the squirrel (i.e., habitat loss from timber management) throughout the majority of its range, by eliminating adverse impacts on all suitable habitat on the MNF without having to prove WVNFS presence (Service 2001, pp. 1-6; Service 2006b, pp. 3-4). With the exception of the 2001 amendment to Appendix A, the recovery plan is no longer actively used to guide recovery of the WVNFS because it is outdated (Service 2006b, pp. 4-6). The recovery criteria do not specifically address the five threat factors used for listing, reclassifying, or delisting a species (Service 2006b, pp. 5-6). Consequently, the recovery plan does not provide an explicit reference point for determining the appropriate legal status of the WVNFS based either on alleviating the specific factors that resulted in its initial listing as an endangered species or on addressing new risk factors that may have emerged since listing. Additionally, the current known range of the WVNFS (Service 2006b, pp. 7-10) is much more widespread than the Geographic Recovery Areas designated in the recovery plan (Service 1990, p. 16). Thus, these focus areas for recovery, which do not have formal or regulatory distinction, are outdated. Therefore, our analysis of the threats to the WVNFS was based largely on the recently completed 5-year review (Service 2006b, pp. 1-20). This review is available at *http://www.fws.gov/northeast/pdf/flysqrev.pdf* . Recovery efforts have provided increased attention and focus on the WVNFS and the habitat upon which it depends. Numerous conservation actions have been implemented since 1985 by land stewards, biologists, and conservation groups. These include research and recovery actions specified in the 1990 recovery plan and 2001 recovery plan update for the WVNFS; minimization and mitigation measures specified in two Habitat Conservation Plans

(HCPs)at Snowshoe Mountain, specifically the protection of approximately 200 acres of WVNFS habitat in perpetuity (BHE 2003, pp. 34-42, Appendix F; BHE 2005, pp. 49-55); red spruce plantings; and conservation provisions in the 1986 MNF Land and Resource Management Plan (U.S. Department of Agriculture

(USDA)Forest Service (Forest Service) 1986, pp. X-1 - X-3), 2004 Forest Plan Amendment (USDA Forest Service 2004, pp. 84, 84a, 84c, 87, 234-234b), and Forest Plan Revision (USDA Forest Service 2006 pp. 12, 19-20, 27). Of particular note are the habitat protection initiatives that have occurred on both public and private lands, the development of a habitat model and research on red spruce habitat restoration, the establishment of Canaan Valley National Wildlife Refuge (NWR), and the growing interest in spruce ecosystem restoration. For example, we continue to work with interested land management and conservation entities to secure long-term commitments to continue conservation efforts already initiated to protect, manage, and monitor the habitat upon which the WVNFS depends. Although not one of the bases for the proposed WVNFS delisting, the Service is developing a long-term Memorandum of Understanding

(MOU)with several Federal and non-federal entities, including the MNF, Canaan Valley NWR, The Nature Conservancy, and the West Virginia Department of Natural Resources (WVDNR). This MOU demonstrates a long-term commitment to continue protecting, managing for, and monitoring the red spruce-northern hardwood ecosystem, WVNFS, and other species. Furthermore, non-Federal land managers in several key areas (Kumbrabow State Forest, MeadWestvaco Ecosytem Research Forest, Snowshoe Mountain, Blackwater Canyon, and Canaan Valley) have expressed an interest to further red spruce conservation, regardless of the regulatory status of the WVNFS (Service 2006b, pp. 13-14). Summary of Factors Affecting the Species Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. We may determine a species to be an endangered or threatened species because of one or more of the five factors described in section 4(a)(1) of the Act, and we must consider these same five factors in delisting a species. We may delist a species according to § 424.11(d) if the best available scientific and commercial data indicate that the species is neither endangered nor threatened for the following reasons:

(1)The species is extinct;

(2)the species has recovered and is no longer endangered or threatened (as is the case with the WVNFS); and/or

(3)the original scientific data used at the time the species was classified were in error. The five factors listed under section 4(a)(1) of the Act and their application to the WVNFS are as follows: A. The Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range WVNFS Distribution At the time of listing (1985), 10 WVNFS individuals were known from Randolph and Pocahontas Counties, WV, and Highland County, VA (Service 2006b, p. 8). It was thought that vast stretches of unsuitable habitat separated the four known population centers and that the WVNFS still existed but that it was very rare, and perhaps no longer present in much of its former range (50 FR 26999, p. 26999). The final listing rule qualitatively described historic habitat losses and suggested that, “[I]n these last occupied zones, the squirrels [ *G. s. fuscus* and *G. s. coloratus* ] and their habitat may be coming under increasing pressure from human disturbances such as logging and development” (50 FR 26999, p. 27000). The current known range of WVNFS follows the spine of the high Allegheny Plateau in a northeast to southwest alignment. Helmick Run (Grant County, WV) marks the northeast periphery and Briery Knob (Greenbrier County, WV) the southwest periphery, covering seven counties in West Virginia and Highland County, Virginia (Service 2006b, p. 25). There is a total of 107 WVNFS capture sites, 105 of which are in West Virginia and 2 in Highland County, Virginia (Service 2006b, pp. 8, 25; WVDNR 2005, pp. 1-105). These capture sites are dispersed across seven general areas of relict habitat in the Allegheny Highlands region (Service 2006b, pp. 9, 26). As of 2005, there had been 1,141 captures (including 78 recaptures) distributed throughout the 107 capture sites (Service 2006b, p. 7; WVDNR 2005, pp. 1-105). Sixty percent of these sites document WVNFS occurrence through time (WVDNR 2005, pp. 1-16, 18-20, 22-24, 26, 28-33, 35-36, 39-49, 52-53, 59-60, 62-64, 66-71, 73-75, 77-82, 84-87, 89, 92-93, 95-96, 98-102, 104-105). WVNFS are nocturnal, leaving the nest to forage at night and returning during the day. Nest box monitoring results are contingent upon WVNFS occupying the box on the day of the survey (Service 2006, p. 7). Therefore, considering that the nest box monitoring program has had only a 2 percent average success rate of squirrel occupancy per box checked (Service 2006b, p. 7), the presence of long-term nest box monitoring data provides strong evidence of the WVNFS' continued presence throughout its range over the last couple of decades (WVDNR 2005, pp. 1-16, 18-20, 22-24, 26, 28-33, 35-36, 39-49, 52-53, 59-60, 62-64, 66-71, 73-75, 77-82, 84-87, 89, 92-93, 95-96, 98-102, 104-105). We now know that the WVNFS continues to occupy the areas identified in the 1985 final listing rule as well as numerous additional sites dispersed throughout its historical range, suggesting that its current range roughly approximates the extent of its historical range. Studies have confirmed the ability of the WVNFS to adjust its foraging and denning behavior ( *i.e.,* the ability to nest in a wide variety of trees) to persist in and around relict red spruce-northern hardwood forest patches (Menzel *et al.* 2004, pp. 360, 363-364; Menzel *et al.* 2006a, pp. 1-3, 6, 7; Menzel *et al.* 2006b, p. 208; Ford *et al.* 2004, p. 430). Habitat Quantity and Quality Prior to European settlement, there were in excess of 500,000 acres (some sources suggest 600,000+ acres) of old-growth red spruce-northern hardwood forests, the preferred habitat of the WVNFS, in the Allegheny Highlands. These forests (occupying ridges, slopes, and drainages) in West Virginia extended from the vicinity of Mount Storm (Grant County) in the north to Cold Knob (Greenbrier County) in the south, east to the Allegheny Front (Pendleton County), and west to Webster and Nicholas Counties. These red spruce-northern hardwood forests were more contiguous across the Allegheny Highlands than are the well-known “sky-islands” of the Southern Appalachians, which support *G. s. coloratus* (Service 1990, pp. 16-17; USDA Forest Service Northeastern Research Station 2006, unpublished data, pp. 2-3). Logging activity and associated widespread fires at the turn of the 20th century decimated the red spruce-northern hardwood forests, resulting in younger forests with less red spruce, and in many areas, a mixed mesophytic (moderately moist environment), oak-dominated forest (Menzel *et al.* 2006a, p. 6; Rollins 2005, pp. 12-13; Schuler *et al.* 2002, pp. 88-89). Consequently, this resulted in less, and poorer quality, WVNFS habitat because younger forests with fewer red spruce provided reduced foraging and sheltering opportunities (Service 2006b, p. 6). Also, the presence of oak and its associated mast ( *i.e.,* acorns), provided a competitive advantage of food resources for the more aggressive southern flying squirrel ( *Glaucomys volans* ). The WVNFS' rarity was understood to be a consequence of its specialized use of a precipitously declining habitat type (Service 2006b, p. 11). Currently, it is estimated that there are approximately 242,000 acres of WVNFS habitat (USDA Forest Service Northeastern Research Station 2006, unpublished data, p. 4). This estimate is based in part on the results of several habitat models, and includes all “optimal” habitat as well as “likely” habitat located in close proximity to red spruce-northern hardwood forests. “Likely” and “optimal” are terms and definitions imparted by the Menzel model, with “likely” areas having a greater than 50 percent chance of being occupied by the WVNFS, and “optimal” areas having a greater than 75 percent probability of being occupied (Menzel 2003, pp. 84-85, 87-89; Menzel *et al.* 2006b, pp. 15-16). The models allow us to estimate the amount of potential and high quality habitat in the Allegheny Highlands (Menzel *et al.* 2006a, p. 7), prioritize areas for restoration and recovery (Menzel *et al.* 2006a, p. 7), assess anthropogenic (manmade) and geologic fragmentation of the spruce forest, and analyze stewardship of the suitable habitat (Menzel *et al.* 2006b, p. 15). The forested areas used by the WVNFS across most of its range have continued to mature in the 20 years since listing. For example, about half of the rangewide area modeled as optimal habitat are red-spruce northern hardwood forest stands on the MNF that are over 75 years old (Menzel *et al.* 2006b, p. 4; Service 2006b, pp. 10-11; USDA Forest Service Northeastern Research Station 2006, unpublished data, p. 2). Even though current habitat conditions are not as favorable for the WVNFS as historic conditions, current conditions are much improved compared to that at the time of listing. With the exception of localized habitat impacts, forest succession has resulted in older forest stands with improved forest structure, reflecting a continuing, positive rangewide trend (Service 2006b, pp. 11-14, 19-20). With regard to forest composition, the amount and extent of red spruce also appears to be gradually increasing, as suggested by Rollins (2005, pp. 39-51). We analyzed impacts the balsam and hemlock woolly adelgids, insect parasites accidentally introduced from Europe (Service 1990, p. 13), may be having on the WVNFS' habitat (Service 2006b, p. 17). The balsam woolly adelgid infects balsam fir ( *Abies balsamea* ) trees, causing damage or mortality to the host trees (Service 1990, p. 13). However, we believe the effect of the balsam woolly adelgid on WVNFS habitat is discountable because balsam fir is limited to a minor component of the WVNFS habitat. Red spruce occurs in or near stands of balsam fir, providing the WVNFS with alternative and higher value habitat where damage from the balsam woolly adelgid may have occurred. In addition, the impact of the balsam woolly adelgid on the small component of balsam fir within WVNFS habitat has already occurred (Service 2006b, p 17). The hemlock woolly adeglid has been in the United States since 1924. The insect damages eastern hemlock ( *Tsuga canadensis* ) trees by damaging new growth, which can cause defoliation and mortality (Service 2006b, p. 17). Only seven percent of the WVNFS capture sites are dominated by Eastern hemlock instead of red spruce (Service 2006b, p. 17). Loss of Eastern hemlock, due to the hemlock woolly adelgid, may reduce the chances of WVNFS dispersal between patches and within metapopulations, potentially having a very local, isolating impact in a limited number of situations. While hemlock woolly adelgid may remove the montane conifer component at less than 10 percent of the known capture sites, most, if not all, of these areas are in close proximity to red spruce-northern hardwood forests, significantly reducing the occasions where loss of Eastern hemlock will be detrimental to the WVNFS (Service 2006b, p. 17). Additionally, the West Virginia Department of Agriculture has an active detection program for hemlock woolly adelgid and a treatment program that will remain in place regardless of the listing status of the WVNFS. Therefore, even though the hemlock woolly adelgid may impact a minor component of the squirrel's habitat, we consider it to pose a negligible degree of risk to the WVNFS, because of the limited role of hemlock in the species' survival, and presence of red spruce in the majority of the areas (Service 2006b, p. 17). The potential impact of beech bark disease was also analyzed. Beech bark disease is caused by the beech scale insect ( *Cryptococcus fagisuga* ), followed by one of two fungi ( *Nectria coccinea* var. *faginata* or *N. galligena* ). The scale stresses and weakens the American beech tree ( *Fagus grandifolia* ) and the fungi then causes either localized lesions or decay and death of the entire tree (Service 2006b, pp. 17-18). Although American beech trees are common to the spruce-northern hardwood forests of the Allegheny Highlands, in WVNFS habitat they usually occur in combination with spruce and other hardwoods, particularly birch and maple. Therefore, despite having a devastating impact on the American beech component of the red spruce-northern hardwood forest, beech bark disease is not thought to render WVNFS habitat unsuitable (Service 2006b, p. 18). There is actually a potential short-term benefit to the WVNFS due to the creation of new nest cavities in the holes of dead and decaying beech. Foraging habitat for the WVNFS may also improve with increases in large woody debris on the forest floor from the dead beech trees, which could promote the growth of underground fungi, one of the WVNFS' primary food sources (Carey *et al.* 1999, p. 54; Pyare and Longland 2001, p. 1008; Rosenberg and Anthony 1992, p. 161; Waters *et al.* 2000, p. 85). Additionally, the removal of beech nuts is thought to be more detrimental to the southern flying squirrel because it is a high energy food source for that species, and, therefore, would counter any small amount of direct competition between the WVNFS and the southern flying squirrel. Therefore, while beech bark disease affects a minor component of WVNFS habitat rangewide, we consider it to pose an overall low-to-moderate degree of risk for WVNFS, and this risk may be offset by the potential benefits of creation of new nest cavities, increase in a primary food source, and potential harm to the food supply of the southern flying squirrel (Service 2006b, p. 18). Land Use Planning Available information indicates that the threat posed by past habitat loss has been largely abated across most of the WVNFS' range. Implementation of the 2001 recovery plan amendment (Service 2001, p. 4) by the MNF and the 2004 amendment to the MNF Land and Resource Management Plan (USDA Forest Service 2004, pp. 84a-84c, 87, 234-234b) significantly removed the threat of habitat loss (via logging) across much of the WVNFS' range. The recovery plan amendment recommended that suitable WVNFS habitat be considered during consultation with Federal agencies. The Forest Service reinforced this recommendation through an amendment to the MNF Land and Resource Management Plan, that limited vegetation management in all “suitable habitat” (as determined collaboratively by the Forest, Service, and WVDNR) to only certain activities: Research covered under an Endangered Species Act section 10 permit; actions to improve or maintain WVNFS populations after research has demonstrated the beneficial effects of the proposed management; or when project-level assessment results in no adverse effects. This conservation strategy has been carried forward into the MNF's recent Forest Plan Revision (USDA Forest Service 2005, pp. II-20, II-24, III-9-III-16; USDA Forest Service 2006, pp. 12, 19-20, 27). The former primary cause of habitat loss (detrimental logging practices) has been abated on the MNF, and proactive conservation throughout much of the WVNFS' range has and will continue to eliminate impacts from past logging practices, and focus on restoration of this ecosystem. For example, tens of thousands of red spruce trees have been planted over the last 4 years and more is being done to protect and restore this ecosystem (West Virginia Highlands Conservancy 2006, p.10). There is no evidence of any new sources of habitat loss throughout the current range of the WVNFS. According to analyses using the Menzel model, over 60% of areas modeled as likely habitat are now considered secured by public ownership and/or managed for the protection of the WVNFS (Menzel *et al.* 2006b, p. 4). These areas include Canaan Valley NWR (created in 1994), Blackwater Falls and Canaan Valley State parks, Handley Wildlife Management Area, Kumbrabow State Forest, and the MNF (Service 2006b, pp. 12-14). Activities that have contributed to habitat loss and degradation since the time of listing have been localized and/or have occurred on the periphery of the WVNFS' range (Service 2006b, pp. 11, 14, 20). These activities include limited highway development, recreational development, mining and gas exploration, timber management, and wind farm development. With regard to activities that are reasonably foreseeable to occur, some low level of local impacts are likely to continue into the future; however, there is no indication that the activities would ever be likely to occur over a landscape level, or at such a magnitude as to pose a threat to the continued existence of WVNFS (Service 2006b, pp. 11, 14, 19-20). For example, in addition to the majority of WVNFS habitat being publicly owned and managed, future development throughout the range of the WVNFS is expected to be minimal. The entire range of the WVNFS is within the Allegheny Mountains Valley Physiographic Region, an area of steep terrain and low human population density and growth. In 2005, the proportion of land use classified as low density and high density development within this physiographic region in West Virginia was 0.4% and 0.1%, respectively (WVDNR 2006, p. 10). During 2000, population densities in the counties in West Virginia in which the WVNFS occurs were among the lowest in the State, ranging from 9.7-40.4 persons per square mile (WVDNR 2006, p. 17); and with the exception of Randolph County (0.3% increase), the 10-year population trend (1990-2000) in all of these counties decreased (WVDNR 2006, p. 18). *Summary of Factor A:* Although the quantity and quality of WVNFS habitat is reduced from historical levels, we now know that the WVNFS is more resilient in its habitat use than formerly thought (probably because of its mobility and plasticity in nest tree selection), and that habitat trends are moving in a positive direction in terms of forest regeneration and conservation. Therefore, the present or threatened destruction, modification, or curtailment of its habitat or range is no longer considered a threat to the WVNFS. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes The final listing rule concluded that the WVNFS was not known to be jeopardized by human utilization but noted that flying squirrels are highly desirable as pets to some persons, and collecting for such purposes is at least a potential threat to the already rare WVNFS (50 FR 26999, p. 27000). The WVNFS has been captured only for scientific purposes through nest box and live trap methods, and not for market collecting or commercial use. Capture for scientific purposes has been very limited, and has not proven to be detrimental to the continued existence of the WVNFS. In the 21 years since listing, the Service has not received any evidence that commercial use in the pet trade or recreational use of the WVNFS is a threat. The WVNFS is a thinly dispersed, nocturnal mammal that is very difficult to catch. For example, Menzel captured the WVNFS at a rate of 0.227 captures per100 trap nights (Menzel 2003, p. 65), and the WVDNR's nest box monitoring program has had only a 2 percent average success rate of squirrel occupancy per box checked (Service 2006b, p. 7). Additionally, due to its nocturnal nature, this squirrel has not been widely hunted. *Summary of Factor B:* Overutilization for any purpose is not currently considered a threat, and is not anticipated to emerge as a threat in the future, given the difficulties in collecting the WVNFS ( *i.e.* , its nocturnal and secretive habits, and the remoteness of its habitat (Service 2006b, p. 14)). C. Disease or Predation The final listing rule made no mention of disease as a threat to the WVNFS, and we are not aware of any evidence since the time of listing that suggests the health of WVNFS individuals is threatened by disease. Of the more than 1,100 individual squirrels captured since 1985, none have shown signs of disease (Service 2006b, p. 15). The final listing rule predicted that increasing human recreational use of northern flying squirrel habitat might result in predation on the WVNFS by pets, especially cats (50 FR 26999, p. 27000). While natural predators of the WVNFS may include weasel, fox, mink, owl, hawks, bobcat, skunk, raccoon, snakes, and fisher, we are not aware of any scientific or circumstantial evidence since the time of listing to support pets preying upon WVNFS (Service 2006a, p. 15), or to suggest that natural predation limits populations of WVNFS. As analyzed in our biological opinion for the Camp Wilderness HCP (Service 2003, pp. 12, 23), there are no documented deaths of northern flying squirrels, particularly the WVNFS, as a result of impacts of human recreational use or occupancy in, or near, its habitat, and pets are not predicted to be a substantial threat in the future (Service 2003, pp. 12, 23-25). Since the majority of WVNFS habitat is found on the MNF, human encroachment into WVNFS habitat is uncommon and localized ( *e.g.* , Canaan Valley and Snowshoe Mountain) (Service 2003, pp. 12, 23-25; Service 2006a, p. 15; Service 2006b, pp. 15, 20), and is therefore precluded from becoming a threat in the future to the WVNFS. *Summary of Factor C:* Disease and predation are not currently considered a threat to the WVNFS and are not considered to become a threat in the foreseeable future. D. Inadequacy of Existing Regulatory Mechanisms The final listing rule stated that this factor was not known to be applicable (50 FR 26999, p. 27000). Prior to its listing in 1985, there were no known existing regulatory mechanisms protecting the WVNFS. State Laws The State of West Virginia does not currently have any State laws protecting endangered species. However, for the reasons stated in the discussions of Factors A, B, C and E, there are no current threats to the species as a whole that require additional regulation. Therefore, the lack of an endangered species State law in West Virginia is not expected to negatively impact the WVNFS. In the Commonwealth of Virginia, the WVNFS has been listed as endangered under the Commonwealth's endangered species act since its Federal listing in 1985. This Commonwealth law, which is administered by the Virginia Department of Game and Inland Fisheries, prohibits take of Commonwealth-listed species and is applicable to the WVNFS regardless of the squirrel's status under the federal Endangered Species Act. The WVNFS will remain listed under the Virginia law if it is removed from the Federal List of Threatened and Endangered Wildlife (VDGIF 2006, p 2). Lack of current threats, along with the Commonwealth's endangered species act, ensures the WVNFS' persistence in Virginia into the foreseeable future. Federal Laws The MNF and the George Washington National Forest

(GWNF)each developed forest management plans that contain provisions to protect, manage, restore, and monitor the WVNFS and its habitat (USDA Forest Service 2006, pp. 12, 19-20, 27; USDA Forest Service 1997, pp. 3-4, 3-23, 3-28, 3-110). These provisions, contained in both Forests' current plan revisions, will be retained by the Forests, irrespective of the WVNFS' Federal listing status. Additionally, the National Forest Management Act and other Forest Service implementing guidance and regulations, state that national forests should be managed to preserve and enhance the diversity of plant and animal communities, and will continue to apply if the WVNFS is delisted. According to the Forest Service Manual, if a species is removed from the Federal List of Threatened and Endangered Wildlife, that species would be placed on a list of sensitive species for 5 years, during which time the Forest Service would evaluate whether any of their proposed actions would result in a trend toward Federal relisting (USDA Forest Service 2001, p. 3). Overall, improving habitat conditions, the WVNFS' resiliency, and lack of rangewide threats indicate that the long-term survival of the WVNFS can be sustained without the protections of the Act. In addition, the binding standards of the MNF's Forest Plan will remain in effect after delisting, providing an existing regulatory mechanism for addressing the historical threat of loss of forest habitat. *Summary of Factor D:* Given the MNF's Forest Plan's standards that apply to a majority of the range and the resiliency and lack of rangewide threats to the species, the inadequacy of regulatory mechanisms is not now, or for the foreseeable future, considered a threat to the WVNFS. E. Other Natural or Manmade Factors Affecting the Continued Existence of the Species Competition With Southern Flying Squirrel The final listing rule concluded that the WVNFS was threatened by competition with the southern flying squirrel for habitat and by the spread of a parasite from the southern flying squirrel to the WVNFS (50 FR 26999, p. 27000). However, evidence collected since the time of listing indicates that the occurrence and potential severity of the southern flying squirrel's impacts are limited. The sympatric occurrence of the two subspecies has been documented for decades at 23 of the 107 WVNFS capture sites, most notably at Stuart Knob (Randolph County, WV) since the 1950s (Service 2006b, p. 16). These occurrences span multiple generations of WVNFS (WVDNR 2005, pp. 1-105), indicating that over-competition by the southern flying squirrel for den sites does not appear to be affecting population persistence of the WVNFS. In addition, any competition between the two subspecies may be somewhat ameliorated by the spread of beech bark disease, which results in the reduced availability of beech nuts, an important food source for the southern flying squirrel. The final listing rule cited evidence from a captive study in the 1960s that a nematode parasite, possibly carried by the southern flying squirrel, might be lethal to the WVNFS (50 FR 26999, p. 26999). The rule stated that while the southern flying squirrels appeared healthy, all the northern flying squirrels weakened and died within 3 months, and this mortality was associated with heavy infestations of the nematode parasite. All the southern flying squirrels also carried the parasite, but they remained in apparent good health and continued to breed (50 FR 26999, p. 27001). Based on review of the original dissertation, the cause of the northern flying squirrel mortality was never completely understood (Weigl 1968, pp. 129-150). Weigl *et al.* (1999, pp. 74-75) hypothesized that survival and maturation rates of the parasite are limited by below-freezing temperatures that occur within the range of the WVNFS, but were not replicated in the 1960s captive study. The conditions created in the captive study apparently do not closely relate to naturally occurring conditions, and observations of WVNFS individuals captured in the last 20 years (including areas also occupied by the southern flying squirrel) have revealed no signs of sickness, debilitation, or death due to parasitic infestation. Other Natural or Manmade Threats The 1985 final listing rule did not address additional threats under Factor E. However, the delisting criterion within the 1990 recovery plan addressed potential threats, such as forest pests (see Factor A), acid rain, and climate change, to the existence of the high elevation forests on which the squirrels ( *G. s. fuscus* and *G. s. coloratus* ) depend (Service 1990, p. 19). Although the delisting criterion in the recovery plan is out of date and not based on the five threat factors (as previously described), these potential threats were included in the overall analysis of the status of the WVNFS in the 5-year review (Service 2006b, pp. 4-6). Acid precipitation (more appropriately referred to as acid deposition) and climate change have been cited as potentially damaging forest ecosystems, especially the spruce-fir forests in portions of the Appalachian Mountains (NAPAP 2005, p. 41). Although empirical data are lacking regarding specific effects on the WVNFS, the long-term potential exists for anthropogenic acid deposition and climate change to diminish the extent and quality of the boreal-like spruce forests that have survived on the high ridges and plateaus, by pushing them farther up the slopes, and, if warming continues, reducing and eventually eliminating habitat at higher elevations. However, there has been no evidence of acid deposition or climate change reducing the extent of red spruce-northern hardwood forests in the Allegheny Highlands since the WVNFS' listing in 1985 (Rollins 2005, pp. 39-51; Service 2006b, p. 10), and it is not possible to predict measurable impacts on WVNFS habitat through the foreseeable future. Thus, the effects of acid deposition and climate change on *G. s. fuscus* and its habitat are not predictable, and it is beyond our capacity to eliminate such threats through interventions at the species level. Land managers can, however, develop contingency plans to deal with these concerns through mitigation and remediation measures. The MNF Forest Plan Revision calls for monitoring and management responses to any potential effects of acid deposition that may emerge in the future, and the GWJF Forest Plan makes a commitment to retain the integrity of high-elevation forests. Other entities have also expressed an interest in perpetuating a healthy red spruce ecosystem in the Allegheny Highlands (Service 2006b, pp. 18-19). *Summary of Factor E:* Overall, our analysis of the other natural and manmade factors, either alone or in combination, indicates that the WVNFS is not in danger of extinction throughout all or a significant portion of its range, or likely to become endangered within the foreseeable future. Summary of Findings We have carefully assessed the best scientific and commercial data available regarding the past, present, and future threats faced by the WVNFS, and conclude that the species has recovered, and is not threatened with extinction or likely to become endangered within the foreseeable future. Due to forest management practices and rangewide proactive conservation activities, a substantial amount of WVNFS habitat is now considered secure and improving in quality. Relative to the information available at the time of listing, recovery actions have resulted in a reduction of threats that have led to a

(1)a significant increase in the number of known WVNFS capture sites;

(2)an increase in the number of individual squirrels;

(3)multiple generation reproduction;

(4)the proven resiliency of the squirrels; and

(5)the vast improvement and continued expansion of suitable habitat. The biological principles under which we evaluate the rangewide population status of the WVNFS relative to its long-term conservation are representation, redundancy, and resiliency. At the time of listing, the WVNFS was thought to be an extremely rare and declining taxon that had disappeared from most of its historical range. We now know that occupancy of available habitat has increased and is much more widespread than formerly thought, and that the geographic extent of the WVNFS' range approximates historical range boundaries. Although the red spruce-northern hardwood forests have not rebounded to pre-logging conditions, we have learned that the WVNFS can utilize sub-optimal habitat adjacent to these forests that constitutes the most essential landscape-level component of the WVNFS' habitat. From this, we can infer that there is more habitat connectivity than previously thought, although there remains geographic separation (and likely has been since the end of the Pleistocene era) between some of the habitat areas supporting population centers. Thus, there is adequate representation (i.e., occupancy of representative habitats formerly occupied by the squirrel across its range) and redundancy (i.e., distribution of populations in a pattern that offsets unforeseen losses across a portion of the WVNFS' range) of the WVNFS. Also, despite the difficulties inherent in conducting population studies for the WVNFS, it has proven to be resilient. The WVNFS has been shown to be more mobile and flexible in its habitat use than previously thought. Specifically, survey and monitoring efforts at 107 sites over the past 21 years have shown that it is persistent at multiple locations for multiple generations, and there is no evidence of extirpation of a local population. As previously described, the current and future trend for habitat quantity and quality is expected to be favorable because of the gradual recovery of the red spruce-northern hardwood ecosystem and the lack of rangewide threats to WVNFS habitat. As habitat availability increases into the foreseeable future, the carrying capacity of secured and protected habitat should allow for persistence of viable populations of the WVNFS. In summary, the threats to the WVNFS have either been eliminated or largely abated. The current available information shows that the WVNFS is persisting throughout its historic range, with areas of known occupancy much more widespread than at the time of listing. Therefore, the WVNF does not meet the definition of endangered or threatened, and should be removed from the List of Endangered and Threatened Wildlife, due to recovery. Effects of This Rule This rule, if made final, would revise 50 CFR 17.11(h) to remove the WVNFS from the List of Endangered and Threatened Wildlife, due to recovery. Because no critical habitat was ever designated for this species, this rule would not affect 50 CFR 17.95. The prohibitions and conservation measures provided by the Act, particularly section 7 and section 9, would no longer apply to the WVNFS. Removal of the WVNFS does not supersede any State regulations. Additionally, for the 60 percent of the WVNFS habitat on the MNF, and the small area of habitat located within the GWNF, the activities impacting the WVNFS and its habitat must comply with appropriate Forest Service regulations. Post-Delisting Monitoring Section 4(g)(1) of the Act requires the Secretary of the Interior, in cooperation with the States, to implement a system to monitor for not less than 5 years the status of all species that have recovered and been delisted. The purpose of this post-delisting monitoring

(PDM)is to verify that a species delisted, due to recovery, remains secure from risk of extinction after it no longer has the protections of the Act. We are to make prompt use of the emergency listing authorities under section 4(b)(7) of the Act to prevent a significant risk to the well being of any recovered species. Section 4(g) of the Act explicitly requires cooperation with the States in development and implementation of PDM programs, but we remain responsible for compliance with section 4(g) and, therefore, must remain actively engaged in all phases of PDM. We also seek active participation of other entities that are expected to assume responsibilities for the species' conservation, post-delisting. The management practices of, and commitments by, primarily the MNF, on whose land the majority of habitat occurs, should afford adequate protection to the WVNFS into the foreseeable future upon delisting. In addition to the previously described conservation measures, the Forest Service (MNF and GWNF) would maintain protection of the WVNFS by considering it a sensitive species for a minimum of 5 years after delisting (USDA Forest Service 2006, p. 18). Sensitive species designation ensures that the Forest Service would continue to monitor the status of the WVNFS, and to conduct management activities on Forest Service lands in a manner that strives to ensure that such actions do not contribute to a trend toward federal listing. In addition, the Forest Service and WVDNR have conducted nest box monitoring for the WVNFS in excess of 20 years and will continue to do so for the foreseeable future, regardless of whether the WVNFS is delisted. Because of these past efforts, a PDM plan is being drafted in a cooperative effort with the Service, the MNF and the WVDNR, and other appropriate land managers, with technical assistance from USDA's Northeastern Research Station, to guide the collection and evaluation of pertinent information over the monitoring period. In the near future, we will publish in the **Federal Register** a notice of availability of the proposed PDM plan, and solicit public comment on that proposed plan. Post-Delisting Monitoring Plan Overview Development of the PDM plan, required under section 4 of the Act, will be facilitated by the MNF's Forest Plan Revision monitoring (USDA Forest Service 2005, pp. IV-1 - IV-12) and the monitoring specified in the West Virginia Conservation Action Plan (WVDNR 2006, pp. 861-867, 959-969, 1046-1049). The West Virginia Conservation Action Plan is a result of a charge from Congress to each State and territory to develop a comprehensive plan for fish and wildlife conservation. Both of these management plans include requisite monitoring of the WVNFS and its habitat (red spruce-northern hardwood forests) because of the importance placed on the red spruce ecosystem. Under these two plans and separate agreements, the Forest Service, WVDNR, and other entities, will continue to conduct nest box monitoring as well as monitoring of habitat conditions and residual threats at representative sites within the seven areas of relict habitat. For example, through a third party, Snowshoe Mountain, Inc., has expressed an interest in continuing nest box monitoring on their property, particularly in their approximately 200-acre conservation area already established as part of their HCPs. The Service will effectively monitor the implementation of commitments by entities, particularly the MNF, to conserve red spruce-northern hardwood forests for the first 5 years following delisting. During this time, the Forest Plan Revision, and other commitments of the MNF and other entities will be reviewed annually by the Service. Additionally, as part of the Forest Service monitoring for sensitive species and/or management indicator species, and the WVDNR monitoring as part of their Action Plan, the Service, WVDNR, and Forest Service will monitor the WVNFS and its relationship to habitat affected by active and passive management. The PDM plan is being designed to monitor the threats to the species by detecting changes in the status of the WVNFS population and its habitat through continued nest box monitoring and monitoring of the quality and quantity of WVNFS habitat throughout its range. Thresholds that would trigger an extension of monitoring or a status review will be presented in the Service's draft post-delisting monitoring plan. Clarity of the Rule Executive Order 12866 requires agencies to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to the following:

(1)Is the discussion in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the proposal?

(2)Does the proposal contain technical language or jargon that interferes with its clarity?

(3)Does the format of the proposal (grouping and order of sections, use of headings, etc.) aid or reduce its clarity? and

(4)What else could we do to make the rule easier to understand? Send a copy of any comments that concern how we could make this proposed rule easier to understand to the Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. Peer Review In accordance with our policy published on July 1, 1994 (50 FR 34270), we will solicit the expert opinions of at least three appropriate and independent specialists for peer review of this proposed rule. The purpose of such review is to ensure that decisions are based on scientifically sound data, assumptions, and analyses. We will send peer reviewers copies of this proposed rule immediately following publication in the **Federal Register.** We will invite peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding the proposed delisting. We will summarize the opinions of these reviewers in the final decision document, and we will consider their input as part of our process of making a final decision on the proposal. Paperwork Reduction Act This rule does not contain any new collections of information other than those already approved under the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ) and assigned Office of Management and Budget

(OMB)control number 1018-0094, which expires on September 30, 2007. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act We have determined that Environmental Assessments and Environmental Impact Statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act. We published a notice outlining our reasons for this determination in the **Federal Register** on October 25, 1983 (48 FR 49244). References Cited A complete list of all references cited herein is available upon request from the West Virginia Field Office (see FOR FURTHER INFORMATION CONTACT above). Author The primary author of this proposed rule is Diane Lynch, Endangered Species Specialist, with technical assistance from Shane Jones, former Endangered Species Biologist and species lead for the WVNFS in our West Virginia Field Office (see FOR FURTHER INFORMATION CONTACT section). List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Regulation Promulgation Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted. § 17.11 [Amended] 2. Amend § 17.11(h) by removing the entry “Squirrel, Virginia northern flying” under “MAMMALS” from the List of Endangered and Threatened Wildlife. Dated: December 6, 2006. Marshall Jones, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. E6-21530 Filed 12-18-06; 8:45 am] BILLING CODE 4310-55-P 71 243 Tuesday, December 19, 2006 Notices DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Docket No. FV-06-311] United States Standards for Grades of Cultivated Ginseng AGENCY: Agricultural Marketing Service, USDA. ACTION: Notice. SUMMARY: The Agricultural Marketing Service

(AMS)of the Department of Agriculture

(USDA)is establishing voluntary United States Standards for Grades of Cultivated Ginseng. AMS received a request from an industry group representing cultivated ginseng growers to develop a standard that will provide the industry with a common language and uniform basis for trading, thus promoting the orderly and efficient marketing of cultivated ginseng. DATES: *Effective Date:* January 18, 2007. FOR FURTHER INFORMATION CONTACT: Cheri L. Emery, Standardization Section, Fresh Products Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, U.S. Department of Agriculture, 1400 Independence Ave., SW., Room 1661, South Building, Stop 0240, Washington, DC 20250-0240,

(202)720-2185, fax

(202)720-8871, or e-mail *Cheri.Emery@usda.gov.* The United States Standards for Grades of Cultivated Ginseng are available either from the above address or by accessing the AMS, Fresh Products Branch Web site at: *http://www.ams.usda.gov/standards/stanfrfv.htm.* SUPPLEMENTARY INFORMATION: Section 203(c) of the Agricultural Marketing Act of 1946 (7 U.S.C. 1621-1627), as amended, directs and authorizes the Secretary of Agriculture “To develop and improve standards of quality, condition, quantity, grade and packaging and recommend and demonstrate such standards in order to encourage uniformity and consistency in commercial practices.” AMS is committed to carrying out this authority in a manner that facilitates the marketing of agricultural commodities and makes copies of official standards available upon request. The United States Standards for Grades of Fruits and Vegetables not connected with Federal Marketing Orders or U.S. Import Requirements, no longer appear in the Code of Federal Regulations, but are maintained by USDA, AMS, Fruit and Vegetable Programs. AMS established voluntary United States Standards for Grades of Cultivated Ginseng using the procedures that appear in Part 36, Title 7 of the Code of Federal Regulations (7 CFR part 36). Background AMS received a request from an industry group representing cultivated ginseng growers to develop a standard that will provide a common language for trade and a means of measuring value in the marketing of cultivated ginseng. Based on information gathered and comments rendered by the industry, AMS developed a proposed U.S. Standards for Grades of Cultivated Ginseng. The proposed standards contained the following grades, as well as a range of numerical values for each grade: U.S. Premium, U.S. Select, U.S. Medium and U.S. Standard. In addition, proposed basic requirements for all grades, size, sample size, color, wrinkle and a definitions section would be established. On June 28, 2006, AMS published a notice in the **Federal Register** (71 FR 36753), soliciting comments on the proposed United States Standards for Grades of Cultivated Ginseng. In response to the notice, comments were received from two industry groups. One comment from an industry group was in favor of the standards as proposed. Another comment was also in favor of the proposed standards. However, they suggested that the section concerning Sample and Sample Size should be changed, and the words “at least” be added to the sample size to allow for any needed adjustments by the inspector while performing inspections. AMS agrees with this comment, because adjustments in the sample size may be necessary when performing the inspection. Consequently, AMS has added the wording “minimum” to the section. The comments are available by accessing the AMS, Fresh Products Branch Web site at: *http://www.ams.usda.gov/fv/fpbdocketlist.htm.* The adoption of the U.S. grade standards will provide the cultivated ginseng industry with U.S. grade standards similar to those extensively in use by the fresh produce industry to assist in orderly marketing of other commodities. The official grade of a lot of cultivated ginseng covered by these standards will be determined by the procedures set forth in the Regulations Governing Inspection, Certification, and Standards of Fresh Fruits, Vegetables and Other Products (Sec. 51.1 to 51.61). The United States Standards for Grades of Cultivated Ginseng will be effective 30 days after publication of this notice in the **Federal Register.** Authority: 7 U.S.C. 1621-1627. Dated: December 13, 2006. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E6-21568 Filed 12-18-06; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Docket No. FV-06-378] Fruit and Vegetable Industry Advisory Committee AGENCY: Agricultural Marketing Service, USDA. ACTION: Notice of public meeting. SUMMARY: The purpose of this notice is to notify all interested parties that the Agricultural Marketing Service

(AMS)will hold a Fruit and Vegetable Industry Advisory Committee (Committee) meeting that is open to the public. The U.S. Department of Agriculture

(USDA)established the Committee to examine the full spectrum of issues faced by the fruit and vegetable industry and to provide suggestions and ideas to the Secretary of Agriculture on how USDA can tailor its programs to meet the fruit and vegetable industry's needs. This notice sets forth the schedule and location for the meeting. DATES: Tuesday, January 23, 2007, from 8 a.m. to 5 p.m., and Wednesday, January 24, 2007, from 8 a.m. to 12 noon. ADDRESSES: The Committee meeting will be held at the Holiday Inn Central, 1501 Rhode Island Avenue, NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Andrew Hatch, Designated Federal Official, USDA, AMS, Fruit and Vegetable Programs. Telephone:

(202)690-0182. Facsimile:

(202)720-0016. E-mail: *andrew.hatch@usda.gov.* SUPPLEMENTARY INFORMATION: Pursuant to the Federal Advisory Committee Act

(FACA)(5 U.S.C. App. II), the Secretary of Agriculture established the Committee in August 2001 to examine the full spectrum of issues faced by the fruit and vegetable industry and to provide suggestions and ideas to the Secretary on how USDA can tailor its programs to meet the fruit and vegetable industry's needs. The Committee was re-chartered in July 2003 and again in June 2005 with new members appointed by USDA from industry nominations. AMS Deputy Administrator for Fruit and Vegetable Programs, Robert C. Keeney, serves as the Committee's Executive Secretary. Representatives from USDA mission areas and other government agencies affecting the fruit and vegetable industry will be called upon to participate in the Committee's meetings as determined by the Committee Chairperson. AMS is giving notice of the Committee meeting to the public so that they may attend and present their recommendations. Reference the date and address section of this announcement for the time and place of the meeting. Topics of discussion at the advisory committee meeting will include: Invasive pests and disease initiatives; an update on U.S. produce industry labor and immigration issues; Perishable Agricultural Commodities Act

(PACA)program budget and fees; and food safety initiatives. Those parties that would like to speak at the meeting should register on or before January 15, 2007. To register as a speaker, please e-mail your name, affiliation, business address, e-mail address, and phone number to Mr. Andrew Hatch at: *andrew.hatch@usda.gov* or facsimile to

(202)720-0016. Speakers who have registered in advance will be given priority. Groups and individuals may submit comments for the Committee's consideration to the same e-mail address. The meeting will be recorded, and information about obtaining a transcript will be provided at the meeting. The Secretary of Agriculture selected a diverse group of members representing a broad spectrum of persons interested in providing suggestions and ideas on how USDA can tailor its programs to meet the fruit and vegetable industry's needs. Equal opportunity practices were considered in all appointments to the Committee in accordance with USDA policies. If you require special accommodations, such as a sign language interpreter, please use either contact name listed above. Dated: December 13, 2006. Lloyd Day, Administrator, Agricultural Marketing Service. [FR Doc. E6-21567 Filed 12-18-06; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2006-0166] Environmental Impact Statement; Genetically Engineered Fruit Fly and Pink Bollworm AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice of intent to prepare an environmental impact statement and proposed scope of study. SUMMARY: We are advising the public that the Animal and Plant Health Inspection Service intends to prepare an environmental impact statement relative to the proposed use of genetically engineered fruit flies and pink bollworm in certain plant pest control programs. This notice identifies potential issues and alternatives that will be studied in the environmental impact statement, requests public comment to further delineate the scope of the issues and alternatives, and provides notice of public meetings. DATES: We will consider all comments that we receive on or before February 20, 2007. We will also consider comments made at public meetings to be held in Washington, DC, on January 17, 2007; in Ontario, CA, on January 23, 2007; in Tempe, AZ, on January 25, 2007; in Weslaco, TX, on January 30, 2007; and in Tampa, FL, on February 1, 2007. Each meeting will be held from 9 a.m. to 12 p.m., local time. ADDRESSES: You may submit comments by either of the following methods: Federal eRulemaking Portal: Go to *http://www.regulations.gov* , select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click “Submit.” In the Docket ID column, select APHIS-2006-0166 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. Postal Mail/Commercial Delivery: Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2006-0166, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2006-0166. *Public Meetings:* For the locations of the public meetings regarding this notice, see the Supplementary Information section of this notice. *Reading Room:* You may read any comments that we receive in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov* . FOR FURTHER INFORMATION CONTACT: Dr. David A. Bergsten, Biological Scientist, Environmental Services, PPD, APHIS, 4700 River Road Unit 149, Riverdale, MD 20737-1238;

(301)734-4883. SUPPLEMENTARY INFORMATION: Background The Animal and Plant Health Inspection Service (APHIS) is considering using genetically engineered fruit flies (Diptera: Tephritidae) and pink bollworm ( *Pectinophora gossypiella* ) in our ongoing plant pest control programs for fruit flies and pink bollworm. Currently, these programs use a sterile insect technique that involves mass-rearing plant pests in a special facility, sterilizing the insects by irradiation, and releasing the insects to mate with wild plant pests. The release of sterile insects reduces the pest population through associated decreases in the potential reproduction rate. Genetically engineered fruit flies and pink bollworm could augment the sterile insect technique by producing only male insects, insects with a genetic identification marker, insects that compete more effectively for mates, and/or insects that produce no viable offspring. Under the provisions of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 *et seq.* ), agencies must examine the potential environmental effects of proposed Federal actions and alternatives. We intend to prepare an environmental impact statement

(EIS)relative to the proposed use of genetically engineered fruit flies and pink bollworm in the plant pest control programs for fruit flies and pink bollworm. The EIS will examine the range of potential effects that the proposed applications could pose to the human environment. This notice identifies potential issues and alternatives that we will study in the EIS and requests public comment to further delineate the issues and the scope of the alternatives. We have identified three broad alternatives for study in the EIS. *Take no action.* This alternative contemplates no change to the plant pest control programs that use sterile insect technique. It represents a baseline against which proposed revisions may be compared. *Expansion of existing plant pest control programs.* This alternative contemplates improving the current plant pest control programs by expanding rearing operations, irradiation treatment capacity, classical genetic selection methods for separation of insect sexes, and the plant pest species used in these programs. *Integrate genetically engineered insects into existing plant pest control programs.* This alternative contemplates integrating genetically engineered fruit flies and pink bollworm into the current plant pest control programs. We welcome comments on these alternatives and on other issues or alternatives that should be examined in the EIS. In addition, we invite responses to the following questions: Are there any new or greater risks or apparent benefits associated with the strategy of using genetic engineering instead of classical genetic techniques to develop new insect strains to improve ongoing APHIS plant pest control programs? If so, please explain. The proposed EIS focuses on the development and use of genetic engineering to improve specific APHIS plant pest control programs. Are there any unique risks that APHIS should consider in detail for genetic engineering of pink bollworm and fruit fly species? What are the potential risks of non-target effects associated with this technology? All comments will be considered fully in developing a final scope of study. When the draft EIS is completed, a notice announcing its availability and an invitation to comment on it will be published in the **Federal Register.** Public Meetings We are advising the public that we are hosting five public meetings on this notice of intent to prepare an EIS. The public meetings will be held as follows: Wednesday, January 17, 2007, in the USDA Jamie L. Whitten Building, Room 107-A, 1400 Independence Avenue SW., Washington, DC. Tuesday, January 23, 2007, in the Marriott Hotel, 2200 East Holt Boulevard, Ontario, CA. Thursday, January 25, 2007, in the Holiday Inn, 915 East Apache Boulevard, Tempe, AZ. Tuesday, January 30, 2007, in the Kika de la Garza Subtropical Agricultural Research Center, 2413 East Highway 83, Bldg. 213, Bill Wilson Conference Room, Weslaco, TX. Thursday, February 1, 2007, in the Embassy Suites Hotel Tampa-Airport/Westshore, 555 North Westshore Boulevard, Tampa, FL. All of the public meetings will be held from 9 a.m. to noon, local time. A representative of the Animal and Plant Health Inspection Service will preside at the public meetings. Any interested person may appear and be heard in person, by attorney, or by other representative. Written statements may be submitted and will be made part of the meeting record. Registration for each meeting will take place 30 minutes prior to the scheduled start of the meeting. Persons who wish to speak at a meeting will be asked to sign in with their name and organization to establish a record for the meeting. We ask that anyone who reads a statement provide two copies to the presiding officer at the meeting. The presiding officer may limit the time for each presentation so that all interested persons appearing at each meeting have an opportunity to participate. Each meeting may be terminated at any time if all persons desiring to speak and that are present in the meeting room have been heard. Done in Washington, DC, this 13th day of December 2006. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E6-21612 Filed 12-18-06; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Commodity Credit Corporation Amendment 2 of the Cotton Storage Agreement AGENCY: Commodity Credit Corporation, USDA. ACTION: Notice. SUMMARY: This notice announces Amendment 2 to the Commodity Credit Corporation's (CCC's) Cotton Storage Agreement. This amendment alters the agreement that regulates the storage of CCC interest and commercial cotton in warehouses throughout the United States. DATES: *Effective Date:* December 19, 2006. FOR FURTHER INFORMATION CONTACT: Timothy R. Murray, Cotton Program Manager, Warehouse and Inventory Division, Farm Service Agency, USDA, STOP 0553, 1400 Independence Avenue, SW., Washington, DC 20250-0553. Telephone:

(202)720-6125. E-mail: *tim.murray@usda.gov.* Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.) should contact the USDA Target Center at

(202)720-2600 (voice and TDD). SUPPLEMENTARY INFORMATION: The final rule published in the **Federal Register** on August 30, 2006 (71 FR 51422) amended the regulations at 7 CFR 1423.11 regarding delivery and shipping standards for CCC-approved cotton warehouses. Amendment 2 to the CCC Cotton Storage Agreement updates Part III, S., Delivery and Shipping Standard, to reflect the changes in 7 CFR 1423.11. The new Section S redefines the minimum weekly delivery and shipping standard to 4.5 percent of the CSA-approved storage capacity or the maximum number of bales on hand at any time during the crop year. A new mandatory reporting requirement is also included. This provision applies to all cotton shipped from the warehouse. Questions regarding Amendment 2, or any other aspects of the CCC Cotton Storage Agreement, should be addressed to Paul Rodriguez at the Kansas City Commodity Office

(816)929-6662 or e-mail *Paul.Rodriguez@kcc.usda.gov.* Amendment 2 can be found at *http://www.fsa.usda.gov/daco/cotton.htm.* Signed at Washington, DC, December 6, 2006. Teresa C. Lasseter, Executive Vice President, Commodity Credit Corporation. [FR Doc. E6-21571 Filed 12-18-06; 8:45 am] BILLING CODE 3410-05-P DEPARTMENT OF AGRICULTURE Forest Service DEPARTMENT OF THE INTERIOR National Park Service Fish and Wildlife Service Bureau of Land Management Bureau of Reclamation Notice of Availability—America the Beautiful—The National Parks and Federal Recreational Lands Pass, Federal Lands Recreation Enhancement Act, Public Law 108-447, Div. J, Title VII AGENCY: USDA Forest Service; U.S. Department of the Interior, National Park Service, Fish and Wildlife Service, Bureau of Land Management, and Bureau of Reclamation, Office of the Secretary, Interior. ACTION: Notice of Availability—America the Beautiful—The National Parks and Federal Recreational Lands Pass. SUMMARY: Section 5 paragraph 3 of the Federal Lands Recreation Enhancement Act

(REA)of December 2004 (16 U.S.C. 6804(a)(3)) requires that the Secretaries of Interior and Agriculture publish a notice in the **Federal Register** when the “America the Beautiful—the National Parks and Federal Recreational Lands Pass” is first established and available for purchase. The new pass program was created in response to requirements of the REA. The new pass replaces the Golden Eagle, Golden Age, and the Golden Access Passports, as well as the National Parks Pass, which currently support recreation opportunities on public lands managed by the United States Forest Service, National Park Service, U.S. Fish and Wildlife Service, Bureau of Land Management, and the Bureau of Reclamation. Sales of the new pass are scheduled to begin in January 2007. The new pass will be sold at Federal recreation sites that charge entrance and standard amenity fees. The pass will also be available through links on government Web sites including creation.gov and through select third-party vendors. FOR FURTHER INFORMATION CONTACT: For more information on the availability, price, and use of the new pass, after January 1, 2007 please visit *http://www.recreation.gov* or call 1-888-AskUSGS (1-888-275-8747), option 1. Dated: November 22, 2006. Thomas Weimer, U.S. Department of the Interior, Assistant Secretary—Policy, Management and Budget. Dated: December 12, 2006. Dave Tenney, U.S. Department of Agriculture, Deputy Under Secretary for Forestry, Natural Resources and Environment. [FR Doc. 06-9767 Filed 12-18-06; 8:45 am]

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