Notices. Notice of 90-day petition finding

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BILLING CODE 4910-22-P 71 243 Tuesday, December 19, 2006 Proposed Rules Part IV Department of the Interior Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 90-Day Finding on Petitions to List the Mono Basin Area Population of the Greater Sage-Grouse as Threatened or Endangered; Proposed Rule DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 90-Day Finding on Petitions to List the Mono Basin Area Population of the Greater Sage-Grouse as Threatened or Endangered AGENCY:

Fish and Wildlife Service, Interior. ACTION: Notice of 90-day petition finding. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on two petitions to list the Mono Basin area population of greater sage-grouse ( *Centrocercus urophasianus* ) in the Bi-State area of California and Nevada as threatened or endangered under the Endangered Species Act of 1973, as amended. We find that the petitions do not present substantial scientific or commercial information indicating that listing this population may be warranted.

Therefore, we are not initiating a status review in response to these petitions. We ask the public to submit to us any new information that becomes available concerning the status of this population or threats to it or its habitat at any time. DATES: This finding was made on December 19, 2006. ADDRESSES: The complete file for this finding is available for public inspection, by appointment, during normal business hours at the Nevada Fish and Wildlife Office, U.S. Fish and Wildlife Service, 1340 Financial Blvd., Suite #234, Reno, NV 89502.

Submit new information, materials, comments, or questions concerning this species to us at the address above. FOR FURTHER INFORMATION CONTACT: Robert D. Williams, Field Supervisor, Nevada Fish and Wildlife Office (see ADDRESSES ) or 775-861-6300 (voice), or 775-861-6301 (fax). SUPPLEMENTARY INFORMATION: Background Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended

(Act)(16 U.S.C. 1531 *et seq.* ), requires that the Service make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. Such findings are based on information contained in the petition and information otherwise available in our files at the time we make the determination. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition, and publish our notice of the finding promptly in the **Federal Register** . In making this finding, we based our decision on information provided by the petitioners in petitions dated December 28, 2001, and November 10, 2005, and otherwise available in our files at the time of the petition review. As part of an active and ongoing partnership with the States of California and Nevada in collaborative sage-grouse conservation efforts, we contacted the Nevada Department of Wildlife

(NDOW)and the California Department of Fish and Game

(CDFG)subsequent to receiving the 2005 petition, to obtain information about sage-grouse for the Mono Basin area, as sage-grouse are a game species managed by the States. We received information from these agencies on population levels, lek distribution, harvest and harvest seasons, and implementation of projects of benefit to sage-grouse. We also contacted the U.S. Geological Survey—Biological Resources Division (USGS-BRD), Dixon Field Station of the Western Ecological Research Center, to obtain reports from a 3-year study of sage-grouse in the Bi-State area that was mostly funded by the CDFG and the Service. New information ( *i.e.* information not already in our files) obtained from NDOW, CDFG, and USGS-BRD as a result of these contacts, was not used as a basis for this 90-day finding. Specifically we did not utilize the new information we obtained in our evaluation of threats (see Threats Analysis, below), which is the basis of this finding. This approach is consistent with recent court decisions that invalidated the Service's 90-day findings for the Yellowstone cutthroat trout ( *Center for Biological Diversity, et al* v. *Morgenweck* , 351 F. Supp. 2d 1137, 1143-44 (D. Colo. 2004)) and the Colorado River cutthroat trout ( *Colorado River Cutthroat Trout, et al* . v. *Kempthorne et al.,* No. 00-2497, slip op. at 12 (D. D.C. September 7, 2006)). In these cases, the courts ruled that the Service over-reached the limited review involved in a 90-finding by soliciting information from State and Federal agencies after the receipt of the petition and relied on that information to supplement petition findings. Therefore, the Service did not rely on any new information received from the States or from USGS-BRD in the threats analysis. We have however, included some of the new information in the Species Information section (see below) to help the public understand the status of the population. We evaluated the information in the petitions in accordance with our regulations at title 50 of the Code of Federal Regulations (CFR), § 424.14(b). The process of making a 90-day finding under section 4(b)(3)(A) of the Act and § 424.14(b) of our regulations is based on a determination of whether the information in the petition meets the “substantial scientific information” threshold. Our standard for substantial scientific or commercial information with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that the petition presents substantial scientific or commercial information, we are required to promptly commence a status review of the species. On January 2, 2002, we received a petition, dated December 28, 2001, from the Institute for Wildlife Protection requesting that the greater sage grouse ( *Centrocercus urophasianus phaios* ) occurring in the Mono Basin area of Mono County, California, and Lyon County, Nevada, be emergency listed as an endangered distinct population segment

(DPS)under the Act. Although the petitioner referred to greater sage-grouse in the Mono Basin area by the subspecific epithet “ *phaios* ” we have concluded that the subspecies designations for greater sage-grouse are inappropriate give current taxonomic standards (September 12, 2006, **Federal Register** , p. 53781). In response to recent judicial direction, the Service is in the process of revisiting our current interpretation of the taxonomic status of the greater sage-grouse subspecies. We have not included subspecies designations any further in this finding. The petition clearly identified itself as such and included the requisite identification information for the petitioners, as required in 50 CFR 424.14(a). In a March 20, 2002, letter to the petitioners, we responded that we reviewed the petition and determined that an emergency listing was not necessary. On December 26, 2002, we published a 90-day finding that this petition did not present substantial scientific or commercial information indicating that the petitioned action may be warranted (67 FR 78811). Our finding was based the lack of substantial information in the petition indicating that the Mono basin area sage-grouse is a distinct population segment

(DPS)under our DPS policy (61 FR 47222), and thus we concluded it was not a listable entity ( **Federal Register** , December 26, 2002, pp. 78813-78814). Our 2002 finding also included a determination that the petition did not present substantial information that the Mono Basin area sage grouse was threatened with extinction ( **Federal Register** , December 26, 2002, p. 78814). On November 15, 2005, we received a formal petition dated November 10, 2005, submitted by the Stanford Law School Environmental Law Clinic on behalf of the Sagebrush Sea Campaign, Western Watersheds Project, the Center for Biological Diversity, and Christians Caring for Conservation to list the Mono Basin area greater sage-grouse ( *Centrocercus urophasianus* ) as threatened or endangered. The petition clearly identified itself as a petition and included the requisite identification information for the petitioners, as required in 50 CFR 424.14(a). In a March 28, 2006, letter to the petitioners, we responded that we reviewed the petition and determined that emergency listing was not warranted. We also stated that due to court orders and settlement agreements for other listing and critical habitat actions that required nearly all of our listing and critical habitat funding for fiscal year 2006, we would not be able to further address the petition at that time. On April 17, 2006, we received a 60-day notice of intent letter from the Stanford Environment Law Clinic, dated April 14, 2006, notifying us that the petitioners intend to sue the Service for violating the Act's requirement to make a petition finding within 12 months after receiving a petition. On November 18, 2005, the Institute for Wildlife Protection and Dr. Steven G. Herman filed a Complaint for Declaratory and Injunctive Relief in United States District Court for the Western District of Washington ( *Institute for Wildlife Protection et al.* v. *Norton et al.* , No. C05-1939 RSM) challenging the Service's finding in 2002 that their petition did not present substantial information indicating that the petitioned action may be warranted. On April 11, 2006, we reached a stipulated settlement agreement with the plaintiffs. Under this settlement agreement we agreed to evaluate both the November 2005 petition submitted by the Sagebrush Sea Campaign, Western Watersheds Project, the Center for Biological Diversity, and Christians Caring for Conservation (hereafter referred to as the November, 2005 petition), and to reconsider the December 2001 petition submitted by the Institute for Wildlife protection (hereafter referred to as the December, 2001 petition). The settlement agreement calls for the Service to submit to the **Federal Register** a completed 90-day finding by December 8, 2006, and if substantial, to complete the 12-month finding by December 10, 2007. This notice constitutes the 90-day finding on the November 2005 petition and reevaluation of the December 2001 petition. In completing this finding, we reviewed the December 2001 petition in the context of whether it provided additional information not discussed in the November 2005 petition. Species Information The sage-grouse is the largest North American grouse species. Adult males range in size from 65 to 75 centimeters

(cm)(26 to 30 inches (in)) and weigh between 1.7 and 2.9 kilograms

(kg)(3.8 and 6.4 pounds (lb)); adult females range in size from 50 to 60 cm (19.7 to 23.6 in) and weigh between 1 and 1.8 kg (2.2 and 3.9 lb) (Schroeder *et al.* 1999, p. 19-20). Males and females have dark grayish-brown body plumage with many small gray and white speckles, fleshy yellow combs over the eyes, long pointed tails, and dark-green toes (Schroeder *et al.* 1999, p. 2). Males also have blackish chin and throat feathers, conspicuous phylloplumes (specialized erectile feathers) at the back of the head and neck, and white feathers forming a ruff around the neck and upper belly. During breeding displays, males also exhibit olive-green apteria (fleshy bare patches of skin) on their breasts (Schroeder *et al.* 1999, p. 2). Sage-grouse depend on a variety of shrub steppe habitats throughout their life cycle, and are particularly associated with several species of sagebrush ( *Artemisia* spp.). Throughout much of the year, adult sage-grouse rely on sagebrush to provide roosting cover and food (Schroeder *et al.* 1999, p. 4). During the winter, they depend almost exclusively on sagebrush for food (Schroeder *et al.* 1999, p. 5). The type and condition of shrub steppe plant communities strongly affect habitat use by sage grouse populations. However, these populations also exhibit strong site fidelity. Sage-grouse populations may disperse up to 160 kilometers

(km)(100 miles (mi)) between seasonal use areas; however, average population movements are generally less than 34 km (21 mi) (Schroeder *et al.* 1999, p. 3). Movements between season use areas may involve dispersal over areas of unsuitable habitat. During the spring breeding season, primarily during the morning hours just after dawn, male sage-grouse gather together and perform courtship or strutting displays on areas called leks (an area where animals assemble and perform courtship displays) (Connelly *et al.* 2004, p. 3-8). Areas of bare soil, short grass steppe, windswept ridges, exposed knolls, or other relatively open sites may serve as leks (Connelly *et al.* 2004, p. 3-7). Leks range in size from 1 hectare

(ha)(2.5 acre (ac)) to at least 16 ha (39.5 ac) (Connelly *et al.* 2004, p. 3-7) and can host several to hundreds of males. Some leks are used for many years. These “historic” leks are typically surrounded by smaller “satellite” leks, which may be less stable in both size and location within the course of 1 year and between 2 or more years. A group of leks where males and females may interact within a breeding season (approximately late February to early June each year) or between years is called a lek complex. Males defend individual territories within leks and perform elaborate displays with their specialized plumage and vocalizations to attract females for mating (Connelly *et al.* 2004, pp. 3-7 to 3-8). Females may travel over 20 km (12.5 mi) after mating, and typically select nest sites under sagebrush cover, although other shrub or bunchgrass species are sometimes used (Connelly *et al.* 2000, p. 970). Nests are relatively simple and consist of scrapes on the ground. Clutch sizes range from about 6-9 eggs (Connelly *et al.* 2004, p. 3-10). Nest success ranges from 12 to 86 percent (Connelly *et al.* 2000, p. 969). Sage grouse generally have low reproductive rates and high annual survival compared to other grouse species (Connelly *et al.* 2000, p. 970). Shrub canopy and grass cover provide concealment for sage grouse nests and young, and may be critical for reproductive success (Connelly *et al.* 2000, p. 971). Sage-grouse typically live between 1 and 4 years. However, sage-grouse up to 10 years of age have been recorded in the wild (Connelly *et al.* 2004, p. 3-12). Annual survival ranges from about 36 to 78 percent for females and about 30 to 60 percent for males (Connelly *et al.* 2004, p. 3-12). The generally higher survival rate of females accounts for a female-biased sex ratio in adult birds (Schroeder *et al.* 1999, p. 14). Prior to settlement of the western United States by European immigrants greater sage-grouse were found in 13 States and 3 Canadian provinces—Washington, Oregon, California, Nevada, Idaho, Montana, Wyoming, Colorado, Utah, South Dakota, North Dakota, Nebraska, Arizona, British Columbia, Alberta, and Saskatchewan (Schroeder *et al.* 2004, p. 368). Greater sage-grouse still occur in most of these states and provinces except for Nebraska, British Columbia, and possibly Arizona where they have been extirpated (Schroeder *et al.* 2004, pp. 368-369). Sagebrush habitats that potentially supported greater sage-grouse covered approximately 1,200,483 square kilometers (sq km) (463,509 square miles (sq mi)) before the year 1800 (Schroeder *et al.* 2004, p. 366). Current distribution is estimated at 668,412 sq km (258,075 sq mi) or 56 percent of the potential pre-settlement distribution (Schroeder *et al.* 2004, p. 369). The number of greater sage-grouse that existed in North America prior to European expansion across the continent is unknown. The Western States Sage- and Columbian Sharp-Tailed Grouse Technical Committee (WSSCSTGTC) estimated there were 1.1 million sage-grouse in 1800 (WSSCSTGTC 1999), although this estimate was for both greater sage-grouse and Gunnison sage-grouse ( *Centrocercus minimus* ). Braun (1998, unpaginated) estimated that there were about 142,000 sage-grouse (both greater and Gunnison sage-grouse) rangewide in 1998. Connelly *et al.* (2004, p. 13-5) did not estimate a rangewide population for greater sage-grouse, but did state that the number is probably much greater than the estimate by Braun (1998). Although Connelly *et al.*

(2004)were unable to estimate rangewide population numbers for greater sage-grouse, they did use lek count data as an indication of population changes since 1965 (Connelly *et al.* 2004, Chapter 6). They reported substantial declines from 1965 through 2003 with an average decline of 2 percent of the population per year during this time period (Connelly *et al.* 2004, p. 6-71). The decline was more pronounced from 1965 through 1985, with an average annual change of 3.5 percent (Connelly *et al.* 2004, p. 6-71). However, the rate of decline rangewide slowed from 1986 to 2003 to 0.37 percent annually (Connelly *et al.* 2004, p. 6-71). The best available scientific and commercial information regarding the past, present, and future threats faced by the greater sage-grouse were reviewed by the Service, including information on population declines. Based on that review, on January 12, 2005, the Service published a finding that listing the greater sage-grouse was not warranted (70 FR 2243). The Service noted that although sagebrush habitat and sage-grouse populations had declined and were continuing to decline in some areas, the most recent data indicated overall population declines had slowed, stabilized, or populations had increased, and that the threats, when considered in relation to the status, trend, and distribution of the current population, were not sufficient to result in the greater sage-grouse becoming an endangered species in the foreseeable future ( **Federal Register** , January 12, 2005, pp. 2280-2281). Mono Basin Area Sage Grouse The States of California and Nevada jointly supported development of a conservation plan, entitled *Greater Sage Grouse Conservation Plan for Nevada and Eastern California* (Sage-Grouse Conservation Team 2004). A draft version of the *Greater Sage Grouse Conservation Plan for Nevada and Eastern California* was submitted to a seven-person team for external science peer review (Sage-Grouse Conservation Team 2004, p. 6). The conservation plan written specifically for sage-grouse in the Mono Basin area is the *Greater Sage-Grouse Conservation Plan for the Bi-State Plan Area of Nevada and Eastern California* (Bi-State Plan) (Bi-State Local Planning Group 2004), and is an appendix of the *Greater Sage-Grouse Conservation Plan for Nevada and Eastern California.* The 2005 petition frequently refers to the Bi-State Plan. The Bi-State Plan was not peer reviewed. The group that developed the Bi-State Plan consisted of local biologists, land managers, land users, and others with concerns about sage-grouse in western Nevada and eastern California (Bi-State Plan 2004, p. vi). The Bi-State Plan covers the same geographic area described in the 2001 and 2005 petitions as the Mono Basin area, but refers to it as the Bi-State area (Bi-State Local Planning Group 2004, pp. 4-5). The Mono Basin area includes portions of Alpine and Inyo Counties, and most of Mono County in California and portions of Lyon, Douglas, Carson City, Esmeralda, and Mineral Counties in Nevada. Sage-grouse in the Mono Basin area historically occurred approximately throughout Mono, eastern Alpine, and northern Inyo Counties, California (Hall 1995, Figure 1); and parts of Carson City, Esmeralda, Mineral, Lyon, and Douglas Counties, Nevada. The current range of the population in California is reduced from the historic range (Leach and Hensley, 1954, p. 386; Hall 1995, p. 54). Gullion and Christensen (1957, pp. 131-132) documented that sage-grouse occurred throughout most of their historic range in Nevada, including occurrences in Esmeralda, Mineral, Lyon, and Douglas Counties, but not in Carson City County, although Espinosa

(2006)hypothesized that birds may still persist in this County. Sage-grouse habitat has been lost in the Nevada portion of the Bi-State area but the extent of the loss has not been estimated (Stiver 2002). Prior to development of the *Greater Sage Grouse Conservation Plan for Nevada and Eastern California,* the State of Nevada sponsored development of the Nevada Sage-Grouse Conservation Strategy (Sage-Grouse Conservation Planning Team 2001). This Strategy established Population Management Units

(PMUs)for Nevada and California as management tools for defining and monitoring sage-grouse distribution (Sage-Grouse Conservation Planning Team 2001, p. 31). The PMU boundaries are based on aggregations of leks, sage-grouse seasonal habitats, and existing sage-grouse telemetry data (Sage-Grouse Conservation Planning Team 2001, p. 31). PMUs that comprise the Mono Basin area include the Pine Nut, Desert Creek-Fales, Mount Grant, Bodie, South Mono, and White Mountains PMUs. The Bi-State Plan

(2004)is the only existing assessment of greater sage-grouse populations and habitats specific to the PMUs that comprise the Mono Basin area. Currently in the Mono Basin area, sage-grouse leks occur in the Pine Nut, Desert Creek-Fales, Bodie, Mount Grant, South Mono, and White Mountains PMUs (Bi-State Plan 2004). Most of the leks occur in the Bodie and South Mono PMUs (Bi-State Plan 2004). Of the 122 known lek locations in the Mono Basin area: 56 are on Bureau of Land Management

(BLM)land, 30 are on U.S. Forest Service

(USFS)land, 4 are on Department of Defense land, 2 are on State of California land, 9 are on Los Angeles Department of Water and Power land, and 21 occur on private land (Espinosa 2006; Taylor 2006). Overall, 83 percent of the leks are on public land and 17 percent occur on private land. Based upon the extent of previous survey work, it is unlikely that more leks will be found in the Nevada portions of the Pine Nut and Desert Creek-Fales PMUs (Espinosa 2006). Due to long-term and extensive survey efforts, it also is unlikely that new leks will be found in the California portion of the Pine Nut and Desert Creek-Fales PMUs or the Bodie and South Mono PMUs (Gardner 2006). However, it is possible that more leks will be discovered in the Mount Grant PMU and the Nevada portion of the White Mountains PMU because these are less accessible and there has been less survey effort in them (Espinosa 2006). More leks also may be discovered in the California portion of the White Mountains PMU, which is difficult to access and has not been well surveyed (Gardner 2006). Sage-grouse population trends analyzed for California and Nevada for 1965-2003 (Connelly *et al.* 2004, pp. 6- 24 to 6-26 and 6-36 to 6-39) led to a conclusion that populations in California had slightly increased over this timeframe while those in Nevada had declined (Connelly *et al.* 2004, pp. 6-67 to 6-68). However, this analysis was performed at the State level and did not specifically analyze population trends for the Mono Basin area. The Bi-State Plan

(2004)provides some information on population trends for some of the PMUs in the Mono Basin area, and indicates that in some areas population declines occurred historically. However, the number of leks surveyed, survey methodology, and techniques for estimating population size are inconsistent and have varied considerably over time, making it very difficult to interpret or rely on the information. In 2003, the NDOW began estimating population numbers based on a peer reviewed and accepted formula (NDOW, 2006, p. 1), and consequently we believe the most accurate population estimates for the Nevada portion of the Mono Basin area start in 2003. Prior to that, Nevada survey efforts varied from year to year, with no data for some years, and inconsistent survey methodology. Although CDFG methods for estimating populations of sage-grouse have been more consistent prior to 2003, using population estimates for sage-grouse derived before 2003 would lead to invalid and unjustified conclusions given the variation in the number of leks surveyed, survey methodology, and population estimation techniques between NDOW and CDFG. Due to past differences in consistency in population estimation techniques for the two States, in this description of populations we are only presenting population numbers from 2003-2006. During this period of time, both states used the same population estimation methods. We provide this information to help inform the public, and for the reasons described above, we did not consider this information in our Threats Analysis (below) and it was not part of the basis for making this finding. CDFG and NDOW annually coordinate sage-grouse lek counts in the California and Nevada portions, respectively, of the Mono Basin area. Results from these lek counts are used by CDFG and NDOW to estimate sage-grouse populations for PMUs in the Mono Basin area. CDFG and NDOW calculate low and high sage-grouse population estimates for the PMUs, based on low and high lek detection rates, respectively, to account for the range in lek detection rates. The following spring population estimates are based on lek counts for the South Mono, Bodie, Mount Grant, and Desert Creek-Fales PMUs (CDFG 2006; NDOW 2006). They also include population estimates from the Nevada portion of the Pine Nut PMU (NDOW 2006). However, they do not include population estimates for the White Mountains PMU or the California portion of the Pine Nut PMU (CDFG 2006; NDOW 2006). The White Mountain PMU and the California portion of the Pine Nut PMU together comprise about 41 percent of the Mono Basin area. Due to the lack of information on sage-grouse habitat for the Mono Basin, we cannot state what percent of the current habitat occurs in these two areas for which population estimates are unavailable. The recent spring population estimates for the areas described above are as follows: 2003—a low estimate of 2820 birds and a high estimate of 3181 birds, 2004—a low estimate of 3682 birds and a high estimate of 4141 birds, 2005—a low estimate of 3496 birds and a high estimate of 3926 birds, and 2006—a low estimate of 4218 birds and a high estimate of 4740 birds (CDFG 2006; NDOW 2006). Spring populations largely reflect the number of breeding sage-grouse in this area. The number of breeding sage-grouse is representative of effective population size and probably one of the best ways to assess the health of the overall population. At a minimum, the spring population estimates for sage-grouse in the Mono Basin area indicate that the surveyed populations have not declined in recent years. Indeed, 2004 to 2006 spring lek counts for the Long Valley lek complex, which comprises most of the leks in the South Mono PMU, are the highest numbers counted in the last 30 years and sage-grouse in this area are more productive than anywhere else in California (Gardner 2006). Casazza *et al.*

(2006)conducted a 3-year study on sage-grouse in the Mono Basin area to determine movements. The researchers radio-marked birds in Mono County within the Desert Creek-Fales, Bodie, White Mountains, and South Mono PMUs (Casazza *et al.* 2006, unpaginated). The greatest distances moved by radio-tagged birds between two points is as follows: About 29 percent moved 0-8 km (0-5 mi); about 41 percent moved 8-16 km (5-10 mi); about 25 percent moved 16-24 km (10-15 mi); about 4 percent moved 24-32 km (15-20 mi); and about 1 percent moved a distance greater than 32 km (20 mi) (Overton 2006). Female sage-grouse home range size ranged from 2.3 to 137.1 sq km (0.9 to 52.9 sq mi), with a mean home range size of 38.6 sq km (14.9 sq mi) (Overton 2006). Male sage-grouse home ranges ranged in size from 6.1 to 245.7 sq km (2.3 to 94.9 sq mi), with a mean home range size of 62.9 sq km (24.1 sq mi) (Overton 2006). Distinct Population Segment We consider a species for listing under the Act if available information indicates such an action might be warranted. “Species” is defined by the Act as including any species or subspecies of fish and wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532 (16)). We, along with the National Marine Fisheries Service (now the National Oceanic and Atmospheric Administration—Fisheries), developed the Policy Regarding the Recognition of Distinct Vertebrate Population Segments (DPS Policy) (February 7, 1996, 61 FR 4722) to help us in determining what constitutes a DPS. The policy identifies three elements that are to be considered in a decision regarding the status of a possible DPS. These elements include

(1)the discreteness of a population in relation to the remainder of the species to which it belongs;

(2)the significance of the population segment to the species to which it belongs; and

(3)the population segment's conservation status in relation to the Act's standards for listing. Our policy further recognizes it may be appropriate to assign different classifications ( *i.e.* , threatened or endangered) to different DPSs of the same vertebrate taxon (February 7, 1996, 61 FR 4722). Discreteness The November 2005 and December 2001 petitions assert that Mono Basin area sage-grouse qualify as a Distinct Population Segment

(DPS)based on discreteness. Both petitions cite the Services' DPS policy under the Act (February 7, 1996, 61 FR 4722) and both assert that Mono Basin area sage-grouse are discrete based on genetic distinctiveness. The DPS policy states that a population segment may be considered discrete if it satisfies either one of the following conditions:

(1)It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.

(2)It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act. In a previous 90- day finding, we reviewed the December 2001 petitioners' claim that Mono Basin area sage-grouse are a DPS, and found that there was not substantial scientific or commercial information indicating that Mono Basin area sage-grouse may be discrete from other greater sage-grouse (December 26, 2002, **Federal Register** , p. 78811). Our 2002 determination was based on a lack of information to demonstrate that Mono Basin sage-grouse are physically isolated from other nearby populations, the limited extent of sage-grouse genetic sampling within the Mono Basin area at that time, information from a comparative study which indicated that Mono Basin sage-grouse are not behaviorally different from other populations of great sage-grouse, and the lack of any morphological information on Mono Basin sage-grouse. We still believe that there are no significant behavioral differences between sage-grouse populations. Young *et al.*

(1994)compared greater sage-grouse behavioral attributes for populations in the Mono Basin area and outside it for males displaying on leks. This study concluded that sage-grouse in the Mono Basin area do not exhibit any appreciable behavioral differences in male mating displays from other greater sage-grouse populations (Young *et al.* , 1994). In contrast to results from comparative behavioral studies, comparative genetics studies have documented genetic differences between greater sage-grouse populations in the Mono Basin area and those outside of it. The November 2005 petition correctly cites Benedict *et al.* (2003), Oyler-McCance *et al.* (2005), and the Bi-State Plan

(2004)with regard to how sage-grouse in the Mono Basin area are genetically unique from other populations of greater sage-grouse. Since we published our previous 90-day finding, comparisons of genetic material from many sage-grouse populations across the range of the species have been completed and demonstrate that Mono Basin area sage-grouse contain unique haplotypes not found elsewhere within the range of the greater sage-grouse (Benedict *et al.* 2003; Oyler-McCance *et al.* 2005). Genetic sampling continues in the Mono Basin area, as the full geographic extent of this genetic uniqueness has not yet been determined. However since our previous 90-day finding on Mono Basin area sage-grouse (December 26, 2002, 67 FR 78811), most leks in the Mono Basin area have now been genetically sampled. Although the full extent of this genetic uniqueness is undetermined, there now exists sufficient evidence to suggest that Mono Basin area sage-grouse are genetically distinct from other greater sage-grouse populations (Benedict *et al.* 2003; Oyler-McCance *et al.* 2005). The November 2005 petitioners assert that genetic work by Benedict *et al.*

(2003)or Oyler-McCance *et al.*

(2005)support their contention that Mono Basin area sage-grouse area are presently isolated from other sage-grouse populations by present day habitat conditions, but this claim is inaccurate. These genetic studies provided evidence that the present genetic uniqueness exhibited by Mono Basin area sage-grouse occurred over thousands and perhaps tens of thousands of years (Benedict *et al.* 2003, p. 308; Oyler-McCance *et al.* 2005, p. 1307). Hence, the genetic uniqueness of this sage-grouse population developed prior to the Euro-American settlement in the Mono Basin area that resulted in changes in habitat conditions for this population. The Services' DPS policy requires that only one of the discreteness criteria be satisfied in order for a population segment of a vertebrate species to be discrete. There is substantial information indicating that Mono Basin area sage-grouse are genetically distinct from other greater sage-grouse populations. Therefore, we conclude that there is substantial information indicating that the Mono Basin area sage-grouse may satisfy the discreteness criterion of the DPS policy. Significance Both the December 2001 petition and the November 2005 petition also assert that Mono Basin area sage-grouse further qualify as a DPS based on significance. The DPS policy (February 7, 1996, **Federal Register** , p. 4725) states that if a population segment is considered discrete under one or more of the discreteness criteria then its biological and ecological significance will be considered in light of Congressional guidance that the authority to list DPSs be used “* * * sparingly” while encouraging the conservation of genetic diversity. In such an examination, the Service considers available scientific evidence of the discrete population segment's importance to the taxon to which it belongs. As specified in the DPS policy February 7, 1996, **Federal Register** , p. 4725), this consideration of the significance may include, but is not limited to, the following:

(1)Persistence of the discrete population segment in an ecological setting unusual or unique to the taxon;

(2)Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon;

(3)Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; or

(4)Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. The November 2005 petition claims that the Mono Basin area is a unique ecological setting and cites a map in Rowland *et al.*

(2003)to support this claim. This petition also asserts that the loss of the Mono Basin area population would result in a significant gap in the range of the greater sage-grouse and that the population differs markedly from other sage-grouse populations in genetic characteristics. The Mono Basin area sage-grouse populations do occur in an ecological province labeled the Mono province in Rowland *et al.* (2003, p. 63). However, this ecological province is part of the Great Basin, and on a gross scale all the ecological provinces that comprise this area are characterized by basin and range topography. Basin and range topography covers a large portion of the western United States and northern Mexico. It is typified by a series of north-south oriented mountain ranges running parallel to each other, with arid valleys between the mountains. Most of Nevada and eastern California are covered by basin and range topography. Hence, we do not concur that Mono Basin area sage-grouse occur in an ecological setting that is unique for the taxon. Based on the extant range of greater sage-grouse provided by Schroeder *et al.* (2004, p. 369), we do not agree that the loss of the Mono Basin area sage-grouse population would result in a significant gap in the range of greater sage-grouse. Schroeder *et al.* (2004, p. 363) estimated total extant range of greater sage-grouse to be 668,412 sq km (258,075 sq mi) and the total area of the PMUs that comprise the Mono Basin area is 18,310 sq km (7,069 mi) (Bi-State Plan 2004). Hence, the total area comprised by the Mono Basin represents at most about 3 percent of the total extant range of greater sage-grouse and loss of the population in this area would not result in a significant gap in the range of the species. Mono Basin area sage-grouse are not the only surviving occurrence of the taxon, and as previously discussed represent a small proportion of the total extant range of the species. However, existing genetic evidence (Benedict *et al.* 2003; Oyler-McCance *et al.* 2005) does indicate that Mono Basin area sage-grouse differ from other populations of greater sage-grouse in their genetic characteristics, as discussed previously with regard to the discreteness criterion. Therefore, based on information regarding genetics, we conclude that there is substantial information indicating that the Mono Basin area sage-grouse may satisfy the significance criterion of the DPS policy. DPS Conclusion We have reviewed the information presented in the petitions, and have evaluated the information in accordance with 50 CFR 424.14(b). In a 90-day finding, the question is whether a petition presents substantial information that the petitioned action may be warranted. We do not make final determinations regarding DPSs at this stage; rather, we determine whether a petition presents substantial information that a population may be a DPS. On the basis of our review, we find that the November 2005 petition, and our files, do present substantial scientific or commercial information to indicate that Mono Basin area sage-grouse may be a DPS based, on genetic evidence, which may meet both the discreteness and significance criteria of the DPS policy. Based on this preliminary assessment, we proceeded with an evaluation of information presented in both petitions, as well as information in our files, to determine whether there is substantial scientific or commercial information indicating that listing this population may be warranted. Our threats analysis and conclusion follow. Threats Analysis Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for adding species to the Federal List of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:

(A)Present or threatened destruction, modification, or curtailment of habitat or range;

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

(C)disease or predation;

(D)inadequacy of existing regulatory mechanisms; or

(E)other natural or manmade factors affecting its continued existence. In making this 90-day finding, we evaluated whether information on threats to the Mono Basin area sage-grouse in our files and presented in the November 2005 and the December 2001 petitions constitutes substantial scientific or commercial information such that listing under the Act may be warranted. Our evaluation of this information is presented below. A. Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range Geographic Range The November 2005 petition asserts that the range of sage-grouse in the Mono Basin area is greatly reduced and that the populations are scattered among several counties in western Nevada and eastern California. Petitioners cite the work of Schroeder *et al.*

(2004)and claim that in pre-settlement time the habitat for the species was continuous along the California-Nevada border and extended from Inyo County, California, into Oregon. The petition further states that by 2000 the Mono Basin area population had become physically isolated from other sage-grouse populations and now only occurs in small isolated groups. The petitioners cite a Western States Sage Grouse Technical Committee report (WSSGTC 1999) and state that for the Nevada portion of the Mono Basin area sage-grouse are extirpated from Storey and Carson City Counties, at extreme risk in Douglas and Esmeralda Counties, and at risk in Lyon and Mineral Counties. Regarding sage-grouse range in California, the petition cites Hall

(1995)and states that there has been a 55 percent reduction statewide in the range of the species from its historic range. More specific to the Mono Basin area, the petitioners cite our December 26, 2002, 90-day finding (67 FR 78811), which states that suitable habitat for the California portion of the Mono Basin area has declined approximately 71 percent from historic levels based on information in Hall (1995). The petitioners also cited Oyler-McCance *et al.*

(2001)to state that extirpations of local populations of Gunnison sage-grouse have occurred because of the loss and fragmentation of habitat caused by human activities; cited Barbour (1988, unpaginated) regarding impacts to sagebrush habitat in California; and cited Braun's (1998, unpaginated) assessment of factors that have caused sage-grouse declines across the western United States, which included habitat loss. We agree with the petitioners that there has been a reduction in the distribution of greater sage-grouse along the California-Nevada border (Schroeder *et al.* 2004, pp. 368-369). Distribution in the Mono Basin area is much more disjunct now compared to pre-settlement conditions; however, the southern limit of sage-grouse distribution along the California-Nevada border has not changed (Schroeder *et al.* 2004, pp. 368-369). A considerable amount (approximately 71 percent) of the original sage-grouse habitat has been lost in the California portion of the Mono Basin area (Hall, 1995, p. 54; December 26, 2002, **Federal Register** , p. 78813). The extent of habitat has also declined within the Nevada portion of the Mono Basin area, but no estimates are provided in the petitions or available in our files regarding the Nevada portion. The Bi-State Plan

(2004)provides limited anecdotal information about the historic range of the population in the Mono Basin area, and the distribution and range discussion is focused primarily on current conditions. Additionally the work cited from Oyler-McCance *et al.*

(2001)and Braun

(1998)is not specific to the Mono Basin area. Connelly *et al.*

(2004)did assess changes for the sagebrush ecosystem, but this analysis was also performed at the rangewide level for sage-grouse and not specific to the Mono Basin area. Although sage-grouse habitat and range has been reduced from pre-settlement conditions, and some additional habitat losses may be occurring at present, neither the petitioners, nor our files, provide information on the rate or extent of habitat losses for the Mono Basin area. The Bi-State Plan

(2004)documents some loss of specific localized habitat areas due to wildfire. The Service recognizes that historically there has been destruction and modification of the habitat and range of sage-grouse in the Mono Basin area. However, historic impacts are not the focus of the evaluation called for under Factor A; rather, Factor A specifically addresses the present or threatened destruction, modification, or curtailment of habitat or range. Although the petitioners and our files contain information on historic reductions in range, neither the petitioners, nor our files, provide substantial information that documents the present or threatened loss of sage-grouse range for sage-grouse in the Mono Basin area. Therefore, we conclude that there is not substantial scientific or commercial information to indicate that listing may be warranted due to the present or threatened destruction or modification of habitat or range for the sage-grouse population in the Mono Basin area. Private Land Development The November 2005 petition cites private land development as a significant threat to Mono Basin area sage-grouse. The petitioners state that over 329,000 acres (close to 12 percent) of land in the Mono Basin area is privately owned and susceptible to development. They cite the Bi-State Plan

(2004)regarding private land development in several of the PMUs and reference discussions of: community expansion in the Pine Nut PMU; conversion of private rangeland to residential and vacation homes, conversion of grouse winter habitat to irrigated pasture and hay fields, and increased pressure of subdivision and development in the Desert Creek-Fales PMU; increasing development of private lands for residential, commercial and recreational purposes in the Bodie PMU; and development of private lands in the South Mono PMU. The petitioners claim that Mono County intends to significantly expand the Benton Crossing Landfill, which could impact sage-grouse through direct habitat loss, increased predation, and a potential increase in disease (Mono County 2004). They also cite a process to revise the Mammoth Lakes general plan (Mammoth Lakes 2005) and claim the revised plan will allow for more development on non-Federal lands. The petitioners assert that expansion of the Mammoth Lakes airport to accommodate commercial jets and construction of an adjacent business park would pose a significant impact to sage-grouse in the South Mono PMU. Petitioners cite a California Department of Fish and Game memo (California Department of Fish and Game 2001) and state that the California Department of Fish and Game expressed serious concerns about the impacts of the proposed airport expansion on sage-grouse. The petitioners claim that California Department of Fish and Game expressed several concerns, including that aircraft may disturb birds on leks and while they are wintering and that the airport expansion project would have growth-inducing impacts to the region. Finally, they claim that a number of other proposed developments could affect the South Mono sage-grouse population. The December 2001 petition also cited development and habitat conversion to suburbs and ranchettes as a threat to sage-grouse. However, this petition did not provide additional information beyond what was provided in the November 2005 petition. The November 2005 petition is incorrect in asserting that close to 12 percent of the Mono Basin area is privately owned. Their figures do not include the White Mountains PMU, which comprises about 38 percent of the total area; including this PMU, approximately 8 percent of lands within the Mono Basin area are privately owned (Bi-State Plan 2004). Connelly *et al.* (2004, pp. 7-25, 7-26) included some analysis of the effects of development (including associated infrastructure) on sage-grouse, but the analysis was conducted at the rangewide scale (Connelly *et al.* 2004, pp. 12-1 to 12-23) and not specific to the Mono Basin area. The Bi-State Plan

(2004)recognizes urban expansion as a risk to sage-grouse in the Pine Nut PMU (Bi-State Plan 2004, p. 24), the Desert Creek-Fales PMU (Bi-State Plan 2004, p. 47), the Bodie PMU (Bi-State Plan 2004, p. 88), and the South Mono PMU (Bi-State Plan 2004, p. 169). Although development of private lands may impact sage-grouse habitat (Connelly *et al.* 2004) and there are concerns about private lands being developed for housing in the Mono Basin area (Bi-State Plan 2004, p. 4), about 89 percent of the land area within the Mono Basin area is federally managed land, primarily USFS and BLM lands (Bi-State Plan 2004). These public lands are not the areas where traditional development into housing communities is occurring and are not subject to such development. Furthermore, although some housing development has occurred on private lands within the Mono Basin area, the five housing subdivisions cited by the petitioners are considered speculative, as they have not moved beyond the planning stage. The petitioners are correct that the Town of Mammoth Lakes General Plan is being updated and does allow for more housing development on private land; however, the petitioners fail to note that this growth is planned to occur within the Mammoth Lakes Urban Growth Boundary (Town of Mammoth Lakes 2005, pp. 3-9 to 3-14), well away from known lek sites, and therefore it will not directly impact sage-grouse. Additionally, the Benton Crossing Landfill will not be expanded as the petition asserts (Town of Mammoth Lakes 2005, p. 2-38). The Federal Aviation Administration

(FAA)has dropped its proposal to expand the Mammoth Yosemite Airport (FAA 2006). However, the FAA is currently proposing to resume regional commercial air service using the existing Mammoth Yosemite Airport facilities, with two winter flights per day initially and potentially increasing to a maximum of eight winter flights per day by 2012-2013 (FAA 2006). The Mammoth Yosemite Airport had regional commercial air service from 1970 to the mid-1990s (FAA 2006) and it currently supports about 400 flights per month, primarily single-engine aircraft (Town of Mammoth Lakes 2005, p. 4-204). Therefore, sage-grouse in the South Mono PMU that occur in lek areas in the near proximity of the Mammoth Yosemite Airport have been exposed to commercial air traffic in the past, and they are presently exposed to private air traffic. Effects of the FAA proposal to reinstate commercial air traffic at the Mammoth Yosemite Airport on sage-grouse are unknown at this time, as the level of commercial flight traffic these birds may be exposed to is undetermined and subject to commercial success by the airlines. Also, since the proposal by FAA has yet to be implemented, any assessment of effects is speculative. The FAA will develop an environmental analysis for the proposed project pursuant to the National Environmental Policy Act

(NEPA)(FAA 2006), which will include an assessment of impacts to wildlife. The Town of Mammoth Lakes is proposing commercial development on a tract of land immediately adjacent to the existing airport (Town of Mammoth Lakes 2005, p. 2-9). We do not have information in our files to determine whether the area of proposed development involves sage-grouse habitat. In summary, development of private lands for housing and the associated construction of roads and power lines within the Mono Basin area would occur mostly in areas where sage-grouse are not present. Furthermore, petitioners' claims about expansion of the Mammoth Yosemite Airport are no longer valid, and they did not provide information which documents how the proposed resumption of commercial air service at the Airport, combined with the construction of an adjacent business park, would impact sage-grouse in the South Mono PMU. Most significantly, about 89 percent of the Mono Basin area is federally managed land (Bi-State Plan 2004), where development into housing communities is not occurring. Neither the petitioners, nor our files, provide information on the extent or magnitude of private development to indicate that listing of the Mono Basin area sage-grouse may be warranted due to the present or threatened destruction, modification, or curtailment of sage-grouse habitat or range due to private land development. Public Land Development The November 2005 petition states that the majority of the Mono Basin area sage-grouse habitat is managed by BLM and the USFS under multiple-use policies that have harmed sage-grouse and degraded their habitat. Petitioners assert that public land is subject to some forms of development and that private land development often affects the integrity and health of adjacent public lands. The petitioners cite the Bi-State Plan

(2004)with regard to the Bodie PMU and state that habitat loss and fragmentation associated with land use change and development is not restricted to private lands in this PMU. Petitioners further assert that development of private lands can also have indirect effects on sage-grouse populations and habitat on public lands. They cite the Bi-State Plan

(2004)for the Desert Creek-Fales PMU and note that residential development may reduce habitat, resulting in risks to habitat quality and fragmentation. The petitioners indicate that the Bi-State Plan provides no new regulatory measures or funding for mitigation of threats from private land use and development. The petitioners cite the Bi-State Plan

(2004)to support their claim that 13 sites have been authorized for monitoring for wind energy development in the Pine Nut PMU and wind turbines may be constructed on these sites. The petitioners also state that numerous geothermal energy developments have been proposed or approved on public and private land in the South Mono PMU (Bi-State Plan 2004) and specifically reference a proposal for the Inyo National Forest claiming that sage-grouse have been found within 0.4 km (0.25 mi) of the proposed project and that the project may displace individual sage-grouse by eliminating suitable habitat for the species (USFS 2005). The petition claims that a myriad of other smaller projects or activities are authorized and developed on Federal lands. In support of this assertion, the petitioners indicate that records they obtained from the BLM-Carson City Field Office for these smaller projects and lesser activities authorized between 2001 and 2005 included 55 records of categorical exclusions and 13 findings of no significant impact under the National Environmental Policy Act (NEPA). The petitioners further stated that these decisions were for a variety of projects, including rights-of-way, road construction, communication towers, power lines, gas/water/sewer pipelines, water tanks, fiber optic/telephone cables, seismometer stations, irrigation facilities, monitoring wells, and a railroad. The petition asserts that, although the size and scope of these are considered minor by Federal management agencies, and hence their potential environmental impacts are not assessed under NEPA, their cumulative impact fragments and degrades sagebrush habitat in the Mono Basin area. As noted previously, the majority of the land area in the Mono Basin area, and therefore most of the sage-grouse habitat, is managed by BLM and the USFS; approximately 89 percent of the land in the Mono Basin area is administered by these agencies (Bi-State Plan 2004). Both of these Federal agencies manage public lands on a multiple-use basis under Federal laws (January 12, 2005, **Federal Register** , pp. 2272, 2274). The multiple-use management approach allows for a wide array of actions on Federal lands, including some forms of development that may be detrimental, as well as conservation measures that are beneficial, for habitat of wildlife species such as sage-grouse. When private lands adjacent to public lands are developed, there can be impacts to sage-grouse on the public lands (Braun 1998, unpaginated) and Connelly *et al.* (2004, pp. 7-24 to 7-26), both document impacts to sage-grouse as a result of urbanization, such as loss of habitat. Several urban and suburban areas in this PMU are continuing to expand in the Pine Nut PMU (Bi-State Plan 2004, p. 24). For the Bodie PMU, the Bi-State Plan does indicate that habitat loss and fragmentation associated with land use change and development is not restricted to private lands (Bi-State Plan 2004, p. 88). Rights-of-ways across public lands for roads, utility lines, sewage treatment plants and other public purposes are frequently requested, and granted, to support development activities on adjacent private lands (Bi-State Plan 2004, p. 88). But the Bi-State Plan concludes that land use and development on most lands in the Bodie PMU are guided by existing land use plans and that the development is a manageable risk for sage-grouse (Bi-State Plan 2004, p. 88). Residential development was reported to be very low in the White Mountains PMU (Bi-State Plan 2004, p. 124). Effects of public land development were not cited among the risk factors described for the Mount Grant PMU (Bi-State Plan 2004). We have also evaluated the threat of energy development as presented by the petitioners. According to the Bi-State Plan (2004, p. 31) three sites in the Pine Nut PMU have been authorized for monitoring wind energy potential, not 13 sites as presented by the petitioners. The Bi-State Plan expresses concern about possible threats arising from infrastructure, such as roads and power lines, associated with wind energy development in this area (Bi-State Plan 2004, p. 31). Connelly *et al.* (2004, p. 7-43) discuss wind energy development as a factor that could impact sagebrush ecosystems. There is also potential for wind energy and geothermal energy development in the South Mono PMU (Bi-State Plan 2004, p. 178). The South Mono PMU has an existing geothermal plant and the Bi-State Plan discusses four other proposed geothermal energy projects in the PMU, only one of which has been approved (Bi-State Plan 2004, pp. 178-181). The Bi-State Plan indicates that geothermal development in the South Mono PMU is a manageable risk, and that the USFS and BLM both have management plans in place that consider effects of this activity on sage-grouse (Bi-State Plan 2004, p. 181). One of the geothermal projects discussed in the Bi-State Plan is being evaluated by the USFS (Inyo National Forest 2005). The project would occur in suitable habitat for sage-grouse, and birds have been documented within 0.4 km (0.25 mi) of the site (Inyo National Forest, 2005, p. 7). However, the USFS evaluation concluded that while the proposed geothermal project may affect individuals it would not likely result in a loss of sage-grouse viability because: the area was surveyed for leks and none were found; only about 3 acres of habitat would be lost; prior to construction, an area adjacent to the construction corridor would be surveyed for nests and if nests are located, construction would not be allowed within 30 meters (100 feet) until after the young had fledged (Inyo National Forest 2005, p. 22). We acknowledge that development of public lands for a variety of purposes (including rights-of-ways for roads, power lines, utility lines, and wind and geothermal energy development) may impact some sage-grouse habitat. However, neither the petitioners, nor our files, provide information on the present or future extent or magnitude of public development as a threat for the Mono Basin area. Therefore, we conclude that there is not substantial scientific or commercial information to indicate that listing of the Mono Basin area sage-grouse may be warranted as a result of the present or threatened destruction, modification, or curtailment of sage-grouse habitat or range due to public land development. Fences, Power Lines, Roads The November 2005 petition cites Braun

(1998)in stating that fences and power lines fragment sage-grouse habitat, cause direct mortality, and provide perches for avian predators. The petition cites a Sierra Pacific Power Company report (Sierra Pacific Power Company 2003) and states that construction of transmission lines can increase weed invasion in sagebrush. The petitioners also cite a personal communication with F. Hall from the Bi-State Plan

(2004)which indicates that, in northern California, power lines had a negative effect on lek attendance and strutting activity, and fewer radio-marked birds were lost as distance from power lines increased. For the Pine Nut PMU the petitioners cite the Bi-State Plan

(2004)in stating that: The North Pine Nut lek is bordered on two sides by power lines; strutting grounds and nest sites are within the hunting territory of ravens ( *Corvus corax* ) that nest on power lines; and more new power lines have been requested in the area. The petitioners also cite a BLM Environmental Assessment (BLM-Carson City Field Office 2004) in stating that BLM recently authorized construction of a power line in the Pine Nut PMU and this area includes suitable sage-grouse habitat and is within 5 miles of a lek. For the Desert Creek-Fales PMU, petitioners cite the Bi-State Plan

(2004)in stating that recent declines in this PMU may be linked to power line construction in the last 10 years. Petitioners cite the Bi-State Plan

(2004)and state that in the Bodie area, a number of power lines may be affecting sage-grouse, and in the South Mono PMU, sage-grouse are currently impacted by power lines and more may be constructed due to energy development. The November 2005 petition cites a BLM-Bishop Field Office document (BLM-Bishop Field Office undated), which indicates that mortalities increase and lek use decreases when fences or power lines are built nearby. Petitioners cite the Bi-State Plan

(2004)in stating that fences in the Bodie area have been identified as a potentially significant threat and they also cite Fatooh *et al.* (undated), which reports that sage-grouse in the Bodie Hills area were displaced from one lek area by a fence. Regarding roads as a threat to sage-grouse, the November 2005 petition cites Oyler-McCance *et al.*

(2001)in stating that roads are an important cause of fragmentation and degradation of Gunnison sage-grouse habitat. Petitioners also cite the assessment by Wisdom *et al.*

(2003)in asserting that human disturbances from roads and other activities can also exacerbate the spread of cheatgrass into sagebrush ecosystems, and that disturbances such as road construction and use, inappropriate grazing, energy development, mining, and recreational activities can cause cheatgrass expansion. The December 2001 petition also cited fences, power lines, and roads as a threat to sage-grouse. However, this petition did not provide additional information beyond what was provided in the November 2005 petition. The effects of fencing on sage-grouse include direct mortality through collisions, creation of predator (raptor) perch sites, the potential creation of a predator corridor along fences (particularly if a road is maintained next to the fence), incursion of exotic species along the fencing corridor, and habitat fragmentation (January 12, 2005, 70 FR 2257). Power lines can directly affect sage-grouse by posing a collision and electrocution hazard, and can have indirect effects by increasing predation, fragmenting habitat, and facilitating the invasion of exotic annual plants (January 12, 2005, 70 FR 2256). Impacts from roads to sage-grouse may include direct habitat loss, direct mortality, the creation of barriers to migration corridors or seasonal habitats, providing predator travel corridors, facilitation of the spread of invasive plant species, and other indirect influences such as noise (January 12, 2005, 70 FR 2257). The Bi-State Plan (2004, p. 28) does state that in the Pine Nut PMU there are power lines bordering the North Pine Nut lek. However, it also indicates that these power lines are 3.2-4.8 km (2-3 mi) away from active strutting grounds (Bi-State Plan 2004, p. 28) so they do not occur in close proximity to the leks. The petitioners other assertions about the Pine Nut PMU are accurate. The BLM-Carson City Field Office did recently authorize construction of a power line in the Pine Nut PMU as stated by petitioners (BLM-Carson City Field Office 2004). However, sage-grouse habitat is not present along the power line route or in its vicinity (BLM-Carson City Field Office 2004, p. 3-15) and the closest known leks to the line are more than 8 km (5 mi) away (BLM-Carson City Field Office 2004, p. 3-20). For the Desert Creek-Fales PMU the Bi-State plan concludes that power lines are one of several types of infrastructure that are a risk to sage-grouse which can impact habitat for the species (Bi-State Plan 2004, p. 54). It also states that recent declines in the Fales population in the Desert Creek-Fales PMU may be related to construction of power lines and other associated land use activities (Bi-State Plan 2004, p. 54). In the Bodie PMU, the Bi-State Plan (2004, p. 81) characterizes utility lines as a past, current, and future risk that affects multiple sites and multiple birds. Also, the Bodie PMU utility line discussion in the Bi-State Plan cites a personal communication with F. Hall indicating that in northern California these lines have a negative effect on lek attendance and strutting activity and that radio-tagged sage-grouse lost to avian predation increased as the distance to utility lines decreased (Bi-State Plan 2004, p. 81). The Bi-State Plan (2004, pp. 81-82) identifies several utility lines in the Bodie PMU that may be negatively affecting sage-grouse. Land use plans in Bodie PMU do not predict or plan for any additional major, multi-line, or high-voltage utility lines in this PMU (Bi-State Plan 2004, p. 82). For the Mount Grant PMU, the Bi-State Plan (2004, p. 137) indicates that a power line fragments this PMU and that the line provides perches for raptors. In the South Mono PMU, transmission lines were considered to be a risk to sage-grouse on a yearlong basis (Bi-State Plan 2004, p. 169). The Bi-State Plan also mentions three transmission lines that either are impacting sage-grouse or may potentially impact them, and that future geothermal development may result in expansion of transmission lines in the South Mono PMU (Bi-State Plan 2004, p. 169). The Bi-State Plan (2004, p. 120) indicates that construction of new transmission lines may fragment occupied or potential sage-grouse habitat in the White Mountains PMU. BLM-Bishop Field Office (undated) documented increased sage-grouse mortality and decreased use of leks when fences or power lines are built nearby although the source of this statement was a summary sheet of information put together for a presentation, not a published report or study. Fatooh *et al.* (undated) reported that sage-grouse were displaced from one lek area by fence construction. Fences were considered a risk to sage-grouse in the Desert Creek-Fales PMU (Bi-State Plan 2004, p. 54) and the Bodie PMU (Bi-State Plan 2004, p. 80). Within the Bodie PMU, there have been instances where sage-grouse avoided habitat areas following fence construction and several documented cases where mortalities resulted from collisions with fences (Bi-State Plan 2004, p. 80). However, the Bi-State Plan discussion of fences in the Bodie PMU also indicated that properly designed and sited fences are an important management tool that may improve sage-grouse habitat quality, and that fencing is clearly a manageable risk (Bi-State Plan 2004, p. 80). For the White Mountains PMU, fences can potentially affect sage-grouse populations or habitat negatively, and construction of new fences may fragment occupied or potential habitat for the species (Bi-State Plan 2004, pp. 120, 124). In the South Mono PMU, fences and other types of infrastructure are considered to be a risk to sage-grouse and sage-grouse mortality caused by collision with a fence has been documented (Bi-State Plan 2004, p. 169). However, the South Mono PMU discussion also indicated that fences are a valuable rangeland management tool and that mitigation of potential impacts to sage-grouse from fences includes design and placement (Bi-State Plan 2004, p. 169). Fences were not considered to be a risk factor for either the Pine Nut or Mount Grant PMUs (Bi-State Plan 2004). Roads were one of several factors causing habitat degradation for the Gunnison sage-grouse in Colorado (Oyler-McCance *et al.* 2001, p. 324). Wisdom *et al.* (2003, p. 10-3) indicates that disturbance factors, including roads, can facilitate cheatgrass spread. For the Desert Creek-Fales PMU, roads were considered to be a type of risk to sage-grouse for the (Bi-State Plan 2004, p. 54). Roads were considered as a type of disturbance in the White Mountains that can potentially negatively impact sage-grouse populations or habitat (Bi-State Plan 2004, p. 124), and construction of new roads in this PMU may fragment occupied or potential habitat for the species (Bi-State Plan 2004, p. 120). For the South Mono PMU, roads are listed as a risk factor that affect sage-grouse habitat and populations (Bi-State Plan 2004, p. 169). Roads were not presented as a specific risk factor for the Pine Nut, Bodie, or Mount Grant PMUs (Bi-State Plan 2004). Fences, power lines, and roads are present in all the PMUs that comprise the Mono Basin area. The presence of this type of human infrastructure in areas where sage-grouse occur may have direct or indirect impacts to the species (January 12, 2005, **Federal Register** , pp. 2256-2258). In the Bi-State area, power lines and fences are considered to be a risk factor for most of the PMUs, but roads were not (Bi-State Plan 2004). Although the Bi-State Plan

(2004)provides some direct examples of impacts to sage-grouse from fences, power lines, and roads, most of what it presents is the potential for impacts to sage-grouse without providing documentation that this infrastructure threatens sage-grouse or specifically how it is a threat and whether this infrastructure has actually affected populations. In general, we acknowledge that where fences, power lines, and roads occur in close proximity to occupied sage-grouse habitat, they may impact the species. However, neither the petitioners, nor our files, provide information on the extent or magnitude of fences, power lines, and roads as a threat for sage-grouse habitat in the Mono Basin area. Therefore, we conclude that there is not substantial scientific or commercial information to indicate that listing of the Mono Basin area sage-grouse may be warranted due to the present or threatened destruction, modification, or curtailment of sage-grouse habitat or range due to the impacts of fences, power lines, or roads. Mining The November 2005 petition states that mining directly eliminates habitat wherever it occurs in sagebrush steppe, may poison surface water, and may expose wildlife to toxic chemicals. Petitioners also assert that mining often requires the construction of roads, power lines, ditches, pipelines, and slagheaps that fragment habitat. The petition claims that hard-rock mining for silver and gold is a prominent threat in the Bodie PMU, citing the Bi-State Plan, stating that within this PMU: Mineral exploration is likely to continue for the foreseeable future; recent proposals to mine for gold, silver, sand and gravel would affect a sage-grouse summer concentration near the Panamount Mine and a lek area on Dry Lakes Plateau; and disturbances associated with these activities include noise, stream sedimentation, water and soil contamination, and habitat removal (Bi-State Plan, pp. 89-90). Additionally, the petitioners cite Braun

(1998)in asserting that there is no evidence that sage-grouse populations are able to reach their pre-mining numbers on reclaimed areas. The petition states that sage-grouse may use areas reclaimed from mining, but only if migration corridors from source populations are available (Braun 1998). Petitioners also cite problems in mineland reclamation, including that it is difficult to establish sagebrush and forbs on reclaimed areas, reclamation is expensive, invasive weeds can spread on reclaimed sites, and shrub densities on reclaimed sites may not be adequate to support sage-grouse. The December 2001 petition also cited mining as habitat conversion that is a threat to sage-grouse. However, this petition did not provide additional information beyond what was provided in the November 2005 petition in relation to mining and its relationship to the present or threatened destruction, modification, or curtailment of the habitat or range of sage-grouse in the Mono Basin area. We previously have concluded that surface mining for any mineral resource will result in direct habitat loss for sage-grouse if the mining occurs in occupied habitat (January 12, 2005, **Federal Register** , p. 2260). The actual effect of this loss, however, depends on the quality, amount, and type of habitat disturbed; in some cases, if the type of habitat disturbed is not a limiting factor for a local population, then loss of that habitat will not result in a population decline. However, the effects of mining on sage-grouse populations are not well known (Connelly *et al.* 2000, p. 974). The petition correctly cites the Bi-State Plan (2004, pp. 89-90) in describing potential mineral exploration in the Bodie PMU and the associated impacts. However, most of the discussion of mining impacts for the Bodie PMU relate to either effects of past mining operations, or the potential for future mining impacts should mineral deposits be discovered and developed (Bi-State Plan 2004, pp. 89-90). The discussion for the Bodie PMU concludes that the current risk is restricted to small-scale gold and silver exploration and sand and gravel extraction activities that are considered to have minimal impacts on sage-grouse (Bi-State Plan 2004, p. 90). Furthermore, although Braun

(1998)indicated that mining and the associated infrastructure negatively impact sage-grouse numbers and habitat in the short term, there is some recovery of populations following initial development and subsequent reclamation of the affected sites (although sage-grouse may not attain population levels present prior to development) (Braun 1998). Within the Mono Basin area, sage-grouse were impacted by past mining in the Bodie PMU. While mining could potentially impact some sage-grouse habitat in the Bodie PMU in the future, petitioners' claims regarding this are speculative, since the potential for mining will depend largely on where mineral deposits are discovered and developed (Bi-State Plan 2004, pp. 89-90). Also, the potential impacts of future mineral development would be influenced by factors such as new technology and economic considerations. Furthermore, the amount of suitable habitat that might be involved, the number of sage-grouse that might be impacted, and the actual nature of the impacts resulting from mining are inherently speculative at this time and would depend on local conditions, including whether the habitat impacted was a limiting factor for the local sage-grouse population in that area. Neither the petitioners, nor our files, provide information on the present or future extent, magnitude, or immediacy of mining as a threat for the Mono Basin area. Therefore, we conclude that there is not substantial scientific or commercial information to indicate that listing of the Mono Basin area sage-grouse may be warranted due to the present or threatened destruction, modification, or curtailment of sage-grouse habitat or range due to mining activities. Livestock Grazing The November 2005 petition asserts that livestock grazing is associated with the widespread decline of sage-grouse across their range through habitat degradation, loss, and fragmentation and cites Connelly and Braun

(1997)and Webb and Salvo

(2002)to support this assertion. According to the petitioners, Beck and Mitchell

(2000)found that there were more negative impacts than positive impacts of livestock grazing; negative impacts often affect large areas, whereas positive grazing affects are localized; and livestock grazing appears to affect sage-grouse productivity. The petitioners cite Gregg and Crawford

(1991)and Holloran *et al.*

(2005)in asserting that livestock eat and trample sagebrush, and the grasses and forbs around sagebrush, which degrades or eliminates nesting habitat; and the petitioners cite Gregg *et al.* (1994), Delong *et al.* (1995), and Sveum *et al.*

(1998)to state that this affects both nesting success and chick survival. The petitioners cite information from multiple authors and studies in asserting the following: the availability of forbs during the pre-laying period may affect the nutritional status of hens and their reproductive success (Barnett and Crawford 1994); herbaceous cover is important in nest site selection (Connelly *et al.* 1991; Wakkinen 1990); nest success is positively correlated with presence of big sagebrush ( *Artemisia tridentata* ) and thick grass and forb cover (Beck and Mitchell 2000; Connelly *et al.* 1991; Gregg *et al.* 1994); herbaceous cover is important for nesting sage-grouse for concealment, security, and shelter from weather and predators (Schroeder and Baydack 2001; Sveum *et al.* 1998); unsuitable nesting habitat may contribute to lower nesting success (Connelly and Braun 1997); the presence of livestock can cause sage-grouse to abandon their nests (Rasmussen and Griner 1938; Call 1979); consumption of forbs by livestock in late spring and early summer may limit their availability for sage-grouse chicks (Call 1979); insects are an important food source for sage-grouse chicks (Pyle and Crawford 1991; Johnson and Boyce 1990) and insects are less abundant in degraded habitats; the availability of primary foods directly affects the diets of sage-grouse chicks (forbs and insects comprise over 75 percent of chick diets in areas where forbs and arthropods were more available, whereas in less productive habitats sage-grouse chicks consumed 65 percent sagebrush) (Drut *et al.* 1994). The petitioners cite an Inyo National Forest sage-grouse management plan (Inyo National Forest 1966) in claiming that livestock grazing was a factor in historic declines in Mono Basin area sage-grouse populations. Petitioners also claim that livestock grazing affects other seasonal habitats for sage-grouse. In support of this claim, they cite Belsky *et al.*

(1999)in stating that livestock damage riparian areas and associated meadows; they cite Owens and Norton

(1992)in stating that livestock eat and trample sagebrush; and they cite Bedunah

(1992)in asserting that livestock grazing introduces and spreads unpalatable weeds in sagebrush habitat, which reduces sage-grouse food sources. Further, the petition asserts that the range developments that support livestock grazing also harm sage-grouse. The petitioners state that fence posts provide raptor perches, and livestock water developments may artificially increase sage-grouse predators or competitors. They cite Autenrieth

(1981)in asserting that conversion of sagebrush to crested wheatgrass and other livestock forage species eliminates sage-grouse habitat. The petitioners cite Wilkenson

(2001)in stating that sage-grouse are low fliers and frequently collide with fences used to manage livestock. The November 2005 petition claims that commercial livestock grazing on public lands affects broad swaths of sage-grouse habitat in the Mono Basin area. The petitioners cite the Bi-State Plan

(2004)in listing the number of livestock allotments in the Desert Creek-Fales, Bodie, and Mount Grant PMUs and in stating that about 75 percent of the Bodie PMU is subject to grazing. They also assert that all PMUs in the Bi-State area are subject to livestock grazing. The petitioners further cite the Bi-State Plan

(2004)in stating that: enforcement of permit conditions, seasons of use, numbers of livestock, and trespass grazing is a concern for part of the Pine Nut PMU; riparian habitats are being adversely impacted by grazing in the White Mountains PMU; and trespass livestock are impacting habitat in the Mount Grant PMU. Finally, the petitioners cite two Great Basin assessments (Wisdom *et al.* 2003; Rowland *et al.* 2003) in stating that vast areas of sagebrush habitat in Nevada are at risk of cheatgrass invasion and may be sensitive to inappropriate livestock grazing. The December 2001 petition also cited grazing as a threat to sage-grouse. However, this petition did not provide additional information beyond what was provided in the November 2005 petition. In reviewing several of the documents cited by the petitioners (Beck and Mitchell 2000; Connelly and Braun 1997; Holloran *et al.* 2005; Gregg and Crawford 1991; Schroeder and Baydack 2001; and Call 1979), we found that the cited materials offered a more comprehensive discussion of the threats from grazing. For example, although Beck and Mitchell

(2000)found more negative than positive impacts of grazing, they concluded that indirect impacts of livestock grazing have affected sage-grouse habitat more than direct impacts (Beck and Mitchell 2000, p. 997) and that presently little information is available regarding the direct impacts of grazing on sage-grouse habitat (Beck and Mitchell 2000, p. 993). Connelly and Braun (1997, p. 231-232) stated that although excessive grazing during the breeding season may have negative impacts on sage-grouse populations, there is little direct evidence linking grazing practices to sage-grouse population levels and that more information is needed on the relationship of livestock grazing to sage-grouse production. Additionally, although several authors (Holloran *et al.* 2005; Gregg and Crawford 1991; Gregg *et al.* 1994; Delong *et al.* 1995; Sveum *et al.* 1998; 1994; Connelly *et al.* 1991; and Wakkinen 1990) discuss the relationship between sagebrush grass and herbaceous cover and nesting success as presented by the petitioners, none of these studies are direct comparisons of grazed versus non-grazed sites, but rather they all compare successful to unsuccessful nest sites and hypothesize that grazing may negatively impact nesting success. Furthermore, neither Holloran *et al.*

(2005)nor Gregg and Crawford discuss livestock eating sagebrush and trampling sagebrush or the grasses and forbs around them as asserted by the petitioners. Beck and Mitchell

(2000)did not demonstrate that sagebrush cover and grass or herbaceous cover was important to nest success but rather summarized the work of other researchers. Sveum *et al.* (1998, p. 268) did find that sagebrush cover and tall grass cover was greater for successful nests than for those lost to predation, but Schroeder and Baydack

(2001)only discuss predation for prairie grouse species in general without providing specific conclusions for sage-grouse. Call (1979, p. 25) cites work by Patterson

(1950)in which livestock presence at a site resulted in nest desertion and destruction, but Call (1979; p. 30) also states that while sheep can cause nest abandonment, cattle are generally not considered to cause nest desertion. Call (1979, p. 25) indicates that consumption of forbs by livestock in spring and summer may have an adverse impact on young sage-grouse, but this was not based on a comparative study of grazed versus ungrazed sites. Barnett and Crawford (1994, p. 114) documented the importance of forb availability to nesting females, but as with other studies, they did not compare grazed sites to ungrazed sites to directly address grazing effects on forb availability. Both Pyle and Crawford

(1991)and Johnson and Boyce (1990, pp. 90-91) demonstrated that insects were important in the diet of young sage-grouse. However, Pyle and Crawford did not compare grazed to ungrazed sites, and the results in Johnson and Boyce (1990, pp. 89-91) are based on captive birds, not a field study. Furthermore, Johnson and Boyce (1990, p. 91) state that results from their work cannot be related directly to effects of insect reductions on wild populations, because insect types and abundance needed for young sage-grouse to meet their requirements are unknown. Drut *et al.* (1994, pp. 91-92) did document that sage-grouse chicks ate more forbs and insects at a site where these were more abundant, and they consumed more sagebrush at another study site where forbs and insects were less available. However, they did not directly compare grazed to ungrazed sites and only make inferences about land use practices based on major outcomes of their work (Drut *et al.* 1994, p. 93). The sage-grouse management plan developed for the Inyo National Forest (Inyo National Forest 1966, p. 2) does suggest that livestock grazing was a factor in historic declines of sage-grouse populations in Inyo and Mono Counties. However, this plan is 40 years old and it refers to livestock as a factor in historic declines in sage-grouse that occurred in the 20th century, and does not relate directly to present conditions or present grazing management practices in the Mono Basin area. The petitioners correctly cite other works (Belsky *et al.* 1999; Owens and Norton 1992; and Bedunah 1992) that document effects of grazing on sagebrush habitat. However these authors only present effects of livestock grazing on habitat and do not document how grazing directly impacts sage-grouse. Petitioners do correctly cite Autenrieth (1980, p. 772) regarding conversion of sagebrush to grasslands and Wilkinson (2001), who documents sage-grouse mortalities caused by fences used to manage livestock. For the Mono Basin area, all the sage-grouse PMUs are subject to livestock grazing (Bi-State Plan 2004), as stated by petitioners. Petitioners also accurately characterize the number of grazing allotments for the Desert Creek-Fales, Bodie, and Mount Grant PMUs (Bi-State Plan 2004, pp. 56-57, 82, and 138). The petition accurately characterizes concerns related to grazing for the southern part of the Pine Nut PMU (Bi-State Plan 2004, p. 29); however, the Bi-State Plan indicates that public land grazing in this PMU is being managed in such a way that it is not known to be impacting sage-grouse habitat at this time (Bi-State Plan 2004, p. 29). Petitioners asserted that riparian habitats in general are being impacted in the White Mountains PMU; whereas, according to the Bi-State Plan (2004, p. 122), impacts are discussed for only three specific riparian areas and there is no indication that livestock grazing is considered to be a major risk for sage-grouse in this PMU. For the Mount Grant PMU, the petitioners assert that trespass livestock are impacting habitat in this PMU, whereas the Bi-State Plan (2004, p. 138) only states that there are some trespass cattle present in one specific area. There is no indication in the Bi-State Plan (2004, pp. 138-139) that livestock grazing is considered to be a major risk for the Mount Grant PMU. Nor is livestock grazing considered to be a major risk for sage-grouse in the Desert Creek-Fales PMU (Bi-State Plan 2004, pp. 56-57). The Bi-State Plan does characterize livestock grazing as a risk to sage-grouse for the Bodie PMU (Bi-State Plan 2004, p. 82); however, it also states that permitted grazing is a manageable risk with current management practices representing a significant improvement over historic use (Bi-State Plan 2004, p. 85). Finally, for the South Mono PMU, the Bi-State Plan (2004, pp. 175-176) states the livestock grazing occurs on public lands in this PMU but it does not characterize grazing as a major risk to sage-grouse. The petition accurately characterizes both the Wisdom *et al.* (2003, p. xiv) and Rowland *et al.* (2003, p. 16) assessments of the Great Basin and Nevada regarding the large area at risk to cheatgrass displacement and sensitivity to inappropriate grazing. However, both of these assessments were completed at a large geographic area scale. Neither of these assessments is specific to the Mono Basin area. With regard to inappropriate livestock grazing, the Rowland *et al.* (2003, p. 16) assessment only states that very little of the sagebrush habitat in Nevada is on lands protected outright from disturbances like energy development or inappropriate grazing, and this information is not specific to the Mono Basin area. Petitioners accurately cite a BLM Environmental Assessment authorizing livestock grazing (BLM-Bishop Field Office 2003, pp. 22-23). However, the 2005 petitioners' assessment of grazing actions for BLM-Bishop Field Office lands is not consistent with the characterization of grazing provided in the Bi-State Plan. Most of the land administered by the BLM-Bishop Field Office occurs in the Bodie and South Mono PMUs. For these two PMUs, the discussions of livestock grazing in the Bi-State Plan do not indicate that livestock grazing is a major risk, or that it is having major impacts on sage-grouse populations in these areas (Bi-State Plan 2004, pp. 82-85 and 175-176). Beck and Mitchell (2000), Connelly *et al.* (2000), Connelly *et al.* (2004), and Crawford *et al.*

(2004)present information about the effects of livestock grazing on sage-grouse, including what is documented and what has not been documented. Livestock grazing has some effects on sagebrush habitat and therefore some effects on sage-grouse. Most of the impacts on sage grouse appear to be indirect (Beck and Mitchell 2000, p. 993). There is little direct experimental evidence linking grazing practices to sage-grouse population levels (Connelly *et al.* 2004, p. 974). Excessive livestock grazing has negatively impacted sage-grouse habitat by creating conditions that favor annual grasses and reducing perennial grasses used as nesting and escape cover by sage-grouse (Crawford *et al.* 2004, p. 12). However, the specific relationship between grazing pressure and sage-grouse nest success has not been evaluated, and more research is needed to address the direct effects of livestock grazing on the species (Crawford *et al.* 2004, p. 12). Specific to the Mono Basin area, most of the land area that is grazed by livestock in the Mono Basin area is public land managed by BLM and USFS under rangeland management practices guided by agency land use plans. Livestock grazing is a long-term and historic use in the Mono Basin area, and sage-grouse have persisted here over time. Neither the petitioners, nor our files, provide information on the present or threatened extent, magnitude, or immediacy of livestock grazing as a threat for the Mono Basin area. Therefore, we conclude that there is not substantial scientific or commercial information to indicate that listing of the Mono Basin area sage-grouse may be warranted due to the present or threatened destruction, modification, or curtailment of sage-grouse habitat or range due to livestock grazing. Non-Native Species The November 2005 petition states that non-native plants are common in sagebrush-steppe habitat and degrade habitat quality for sage-grouse. The petitioners cite the description of the impacts of cheatgrass ( *Bromus tectorum* ) invasion and other invasive plants on sagebrush habitat and sage-grouse provided by Connelly *et al.* (2004). They also cite the Bi-State Plan in stating that in the Pine Nut PMU noxious weeds and cheatgrass are invading sagebrush and wet meadow sites throughout the PMU. Petitioners cite Wisdom *et al.*

(2003)as reporting that 26 percent of sage-grouse habitat in Nevada is at moderate risk and another 14 percent of this habitat is at high risk of cheatgrass invasion, and that 44 percent of all sagebrush habitat in Nevada currently faces a moderate or high risk of being replaced by non-native cheatgrass. The petitioners cite a related assessment completed by Rowland *et al.*

(2003)in stating that sage-grouse habitat for the BLM-Carson City District lands, where Mono Basin area sage-grouse occur, are at moderate risk of displacement by cheatgrass, and 13 percent of these lands are at high risk of displacement by cheatgrass. The December 2001 petition also cited invasive species as a threat to sage-grouse. However, this petition did not provide additional information beyond what was provided in the November 2005 petition. We recognize that a wide variety of plant species are considered invasive across the range of the sagebrush ecosystem that sage-grouse occupy (January 12, 2005, **Federal Register** , p. 2265). Cheatgrass is a non-native annual grass species that was introduced to western North America and was well established by the late 1920s (Connelly *et al.* 2004, p. 7-14). Cheatgrass readily outcompetes native plant species for water and nutrients, and standing dead cheatgrass is more flammable than native species, leading to increased fire intensity and frequency, which greatly shortens the fire return interval in areas where it dominates compared to native sagebrush ecosystems (Connelly *et al.* 2004, p. 7-14). The more frequent fires encouraged by the presence of cheatgrass directly eliminate native shrubs, forbs, and perennial grasses, resulting in self-perpetuating stands of cheatgrass (Connelly *et al.* 2004, p. 7-14). Wisdom *et al.* (2003, pp. 4-3 to 4-13) assessed the risk of cheatgrass displacement of native vegetation and presented their results for the Great Basin eco-region and then separately for the State of Nevada. We agree with petitioners that for their Nevada assessment, Wisdom *et al.* (2003, p. xi) reported that 44 percent of existing sagebrush habitat was at either a moderate or high risk of displacement by cheatgrass, but we also note that 56 percent of sagebrush habitat is at low risk of displacement (Wisdom *et al.* 2003, p. xi). Wisdom *et al.* (2003, p. xii) also stated that for Nevada sage-grouse habitat, 14 percent was at high risk and another 26 percent was at moderate risk of cheatgrass replacement within Nevada, but that 60 percent of sage-grouse habitat in Nevada is at low risk of being displaced by cheatgrass (Wisdom *et al.* 2003, p. xii). Furthermore, the assessment stated that the amount of habitat present and its associated threats do not directly correlate with population effects for a given species, and that new research is needed to evaluate the performance of their cheatgrass risk model, including extensive field evaluation (Wisdom *et al.* 2004, p. 9-2 and 4-12). The Rowland *et al.*

(2003)habitat assessment was a component of the Wisdom *et al.*

(2003)assessment. We note also that the assessments conducted by Wisdom *et al.*

(2003)and Rowland *et al.*

(2003)were conducted at large landscape scales and do not provide information specific to the Mono Basin area. The Rowland *et al.*

(2003)assessment provided a summary for lands within BLM's Carson City Field Office boundary, but a large portion of the lands administered by this Field Office do not occur within the Mono Basin area, and consequently it is not appropriate to apply these results directly to the Mono Basin area. The Bi-State Plan (2004, p. 30) states that noxious weeds and cheatgrass are invading sagebrush and meadow sites throughout the Pine Nut PMU, and that exotic plant species negatively affect sage-grouse habitat quality and quantity. The Bi-State Plan also identifies cheatgrass in some sagebrush communities in the Bodie PMU and states that there is some risk of habitat type conversion, but it is for limited sagebrush habitats in this PMU and there have not been any conversions of sagebrush habitat to non-native annual grasslands in the Bodie PMU to date (Bi-State Plan 2004, p. 93). Although non-native plants are present in the White Mountains, Mount Grant, and South Mono PMUs, this was not found to be a risk factor in any of these areas (Bi-State Plan 2004, pp. 118, 140, 177). Non-native plants were not considered to be a risk factor in the Desert Creek-Fales PMU (Bi-State Plan 2004). Neither the petitioners, nor our files, provide substantial information to document the extent or magnitude of the present or future threat of non-native plant species for sage-grouse habitat in the Mono Basin area. Therefore, we conclude that there is not substantial scientific or commercial information to indicate that listing of the Mono Basin area sage-grouse may be warranted due to the present or threatened destruction, modification, or curtailment of sage-grouse habitat or range due to non-native plant species. Pinyon-Juniper Encroachment The November 2005 petition cites the impacts of pinyon-juniper ( *Pinus edulis-Juniperus* spp.) encroachment described by Connelly *et al.*

(2004)on sagebrush steppe habitat and sage-grouse. The petition asserts that pinyon-juniper encroachment into sagebrush habitat is occurring throughout the Mono Basin area and has widespread impacts on sage grouse habitat. The petition also cites USFS information that the Inyo National Forest noticed encroachment of pinyon pine into sagebrush habitat in the Crowley Lake area in 1966 (Inyo National Forest 1966). For the Pine Nut PMU, the petitioners cite the Bi-State Plan

(2004)in stating that many of the ecological sites that support big sagebrush have been converted to pinyon-juniper woodlands over the past 100 years. The petition further cites the Bi-State Plan

(2004)for the Pine Nut PMU in stating that: Encroachment is impacting potential nesting and brood habitat at multiple sites; it may also be affecting connectivity between breeding populations; and the effects of encroachment may become permanent and irreversible without active management. For the Desert Creek-Fales PMU petitioners cite the Bi-State Plan

(2004)in stating that pinyon-juniper encroachment is occurring throughout the entire PMU and is adversely affecting both the habitat quality and quantity for sage-grouse. For the Bodie PMU they assert that Fatooh *et al.* (undated) questioned whether “pinyon and juniper may be limiting potential winter habitat or constraining potential migration routes.” The petitioners also cite the Bi-State Plan

(2004)in stating that all or portions of the other PMUs are also affected by pinyon-juniper encroachment, and they cite the work of Wisdom *et al.*

(2003)in stating that 41 percent of Great Basin ecosystems were at moderate or high risk of pinyon-juniper invasion. We agree that the work by Connelly *et al.*

(2004)describes the expansion of pinyon-juniper woodlands as a threat to the sagebrush ecosystem, and specifically within the Great Basin region, these woodlands have expanded greatly in comparison to their distribution over 150 years ago (Connelly *et al.* 2004, p. 7-7). Potential causes for this increase include a decrease in fire frequencies; climate change; past patterns of livestock grazing; and increases in carbon dioxide in the atmosphere (Connelly *et al.* 2004, p. 7-7). This expansion has resulted in the loss of many bunchgrass and sagebrush-bunchgrass communities that formerly dominated the Intermountain West (January 12, 2005, **Federal Register** , p. 2266). Wisdom *et al.* (2003, p. 4-1 to 4-7) modeled the risk that pinyon-juniper woodlands would displace sagebrush habitats in the Great Basin and found that nearly 60 percent of the area occupied by sagebrush was at low risk of replacement, 6 percent of all sagebrush cover was at moderate risk, and 35 percent of sagebrush cover was at high risk of replacement. However, they also reported that new research is needed to evaluate the performance of their pinyon-juniper risk model, including extensive field evaluation, and that the amount of habitat and associated threats does not directly correlate with populations effects for a given species (Wisdom *et al.* 2003, p. 4-6 and 9-2). We note also that the assessments by Connelly *et al.*

(2004)and Wisdom *et al.*

(2003)were for large geographic areas covering multiple states in the range of the species, and hence they do not provide a specific assessment of conditions in the Mono Basin area. The quote of Fatooh *et al.* (undated) in the petition was incomplete. Fatooh *et al.* (undated) actually stated that “in a heavy snow winter we may want to note whether pinyon and juniper may be limiting potential winter habitat or constraining potential migration routes” (Fatooh *et al.* , undated). Thus the information in Fatooh *et al.* is inconclusive, as it relates to period of heavy winter snow and poses questions, rather than providing evidence, in relation to possible effects on potential habitat and potential migration routes. The Inyo National Forest reported that some pinyon pine encroachment into sagebrush has occurred (Inyo National Forest 1966, p. 22). However, that statement related to past conditions and was limited to the east side of the Crowley Lake area. Also, there is no information presented by the Inyo National Forest document on the extent or magnitude of pine encroachment in this limited area by Crowley Lake. The Bi-State Plan reports that within the Pine Nut PMU, pinyon-juniper encroachment is occurring and many big sagebrush sites have been converted to pinyon-juniper woodland (Bi-State Plan 2004, p. 20). The petition correctly cites other concerns expressed for the Pine Nut PMU in the Bi-State Plan (2004, p. 20) as well as concerns about pinyon-juniper encroachment in the Desert Creek-Fales PMU (Bi-State Plan 2004, p. 39), and Bodie, White Mountains, Mount Grant, and South Mono PMUs (Bi-State Plan 2004, pp. 96, 119, 133, 167). The Bi-State Plan indicates that pinyon-juniper encroachment is occurring to some degree in all of the PMUs in the Mono Basin area with the greatest risk occurring in the Pine Nut, Desert Creek-Fales, and Bodie PMUs (Bi-State Plan 2004, pp. 20, 39, 96). However, the Bi-State Plan does not provide documentation of the amount of sagebrush habitat lost to encroachment in the Mono Basin area, nor does it not demonstrate that pinyon-juniper encroachment has caused sage-grouse populations to decline in any of the PMUs. Information about the time period over which encroachment has been ongoing is lacking, but it has been occurring since at least the 1960's (Inyo National Forest 1966, p. 22). Our evaluation shows that neither the petitions, nor our files, provide documentation of the extent or magnitude of the present or future threat of pinyon-juniper encroachment to sage-grouse habitat within the Mono Basin area. Therefore, we conclude that there is not substantial scientific or commercial information to indicate that listing of the Mono Basin area sage-grouse may be warranted as a result of the present or threatened destruction, modification, or curtailment of sage-grouse habitat or range due to pinyon-juniper encroachment. Military Lands The November 2005 petition states that 19,804 hectares

(ha)(48,936 acres (ac)) of sage-grouse habitat in the Mono Basin area are managed by the Department of Defense as an army depot (a facility used for storage, renovation, and disposal of conventional army weapons). The petitioners cite Connelly *et al.*

(2004)regarding impacts of military training and related activities on sagebrush habitat and sage-grouse and conclude that these lands cannot be considered suitable or protected habitat since they are open to development and activities that negatively impact the species. The December 2001 petition also cited military operations as a threat to sage-grouse. However, this petition did not provide additional information beyond what was provided in the November 2005 petition. We agree that the U.S. Army manages 19,804 ha (48,936 ac) of land within the Mount Grant PMU as part of its Hawthorne Army Depot (Bi-State Plan 2004, p. 127). However, the petitioner's claim that these lands cannot be considered suitable or protected habitat because they are open to development and activities that negatively impact sage-grouse is not valid. The Bi-State Plan

(2004)describes Hawthorne Army Depot lands in the Mount Grant PMU as some of the best sage-grouse habitat within this PMU because of the exclusion of livestock and the public (Bi-State Plan 2004, p. 149). Livestock grazing has not occurred on the Hawthorne Army Depot lands in the Mount Grant PMU since the 1930s and military activities such as testing and training have been fairly minor on these lands (Nachlinger 2003, p. 38). Connelly *et al.* (2004, p. 7-43) summarizes impacts of military training due to military exercises involving tracked and wheeled vehicles, and fires from ordnance impacts from across the range of sagebrush ecosystems. However, this assessment was generalized for all military lands within the range of the sage-grouse and did not include information specific to military lands in the Mono Basin area. Hawthorne Army Depot lands within the Mount Grant PMU have been documented to provide relatively high quality habitat for sage-grouse (Nachlinger 2003, p. 38; Bi-State Plan 2004, p. 149), and we are not aware of any other U.S. military lands elsewhere in the Mono Basin area. Neither the petitioners, nor our files, provide documentation to substantiate claims that military training or development on military lands is a present or future threat to the habitat or range of the sage-grouse population in the Mono Basin area. Therefore, we conclude that there is not substantial scientific or commercial information to indicate that listing of the Mono Basin area sage-grouse may be warranted due to the present or threatened destruction, modification, or curtailment of sage-grouse habitat or range due to military training or development of military lands. Water Development The November 2005 petition states that the conversion of natural basins to managed watersheds for the purpose of providing water for agriculture and urban centers negatively affects semiarid ecosystems. The petitioners also state that the City of Los Angeles Department of Water and Power (LADWP) manages land in the Mono Basin area and diverts, collects, and exports water from this area to Los Angeles. They cite the work of Elmore *et al.*

(2003)and indicate that the diversion, exportation, and inter-basin transfer of water from arid environments results in adverse ecological impacts to aquatic, riparian, wetland, mesic, and other systems dependent on that water. They also cite Elmore *et al.*

(2003)in stating that: groundwater pumping adversely affects semi-arid habitats that are dependent on groundwater when droughts occur; that native vegetation decreases during drought when groundwater pumping lowers water tables; in some areas the decline in native vegetation is followed by an increase in non-native weed species after the drought ended; and that these effects are amplified when vegetation communities are disturbed by other factors such as burning, grazing, and agriculture. According to the petitioners, a variety of plant communities are present in the Owens River Valley, including sagebrush habitat and Mono Basin sage-grouse were historically present in this area. The petitioners cite Elmore *et al.*

(2003)and assert that this study demonstrated that where LADWP has drilled wells and pumped water, the lowered water tables have caused a loss of native vegetative cover within 19 percent of the valley landscape. Finally, the petitioners assert that the loss of mesic and semi-arid habitats adversely affects sage-grouse in the Owens Valley by eliminating habitat and degrading and fragmenting the sagebrush habitats that remain. We concur that Elmore *et al.*

(2003)demonstrated that groundwater pumping from the Owens River Valley by LADWP impacted some native plant communities in this area. However, the petitioners failed to note that only a small portion of the Owens Valley study area (Elmore *et al.* 2003, p. 449) actually overlaps with the Mono Basin area (in the White Mountains PMU). They also fail to note that only a small portion of the Owens Valley study area (Elmore *et al.* 2003, p. 449) overlaps with the historic range of sage-grouse in Inyo County (Hall 1995, Figure 1) or that sage-grouse are no longer present in the area where the Elmore *et al.*

(2003)study occurred (Hall 1995, Figure 1). Even if groundwater pumping by LADWP was a factor in the reduction of sage-grouse range in Inyo County, the extent and magnitude of this impact would have been limited, given the small overlap in the historic range of sage-grouse and the Elmore *et al.*

(2003)study area. Also, Elmore *et al.* (2003, p. 454) did not find any negative response of sagebrush plant communities (which sage-grouse require) to groundwater pumping. Furthermore, the sagebrush type in the Elmore *et al.* (2003, p. 447) study only comprised a minor portion of their study area (about 4 percent of the area), and the nearest sage-grouse leks to the Owens Valley are at high-elevation sites in the White Mountains, and groundwater pumping would not directly impact these birds. None of the PMU discussions in the Bi-State Plan identified groundwater pumping by LADWP as a risk to sage-grouse. Neither the petition, nor our files, provide documentation that groundwater pumping in the Owens Valley of California is the cause of the present or threatened destruction, modification, or curtailment of the habitat or range of the greater sage-grouse in the Mono Basin. Therefore, we conclude that there is not substantial scientific or commercial information to indicate that listing the Mono Basin area sage-grouse may be warranted due to water development. Feral Horses The November 2005 petition claims that feral horses affect sage-grouse populations at several locations in the Mono Basin area and cites the Bi-State Plan

(2004)in claiming they are a potentially significant risk for the 7-Troughs lek in the Bodie PMU. They also cite the discussion of impacts from wild horse and burros in Connelly *et al.* (2004). Connelly *et al.* (2004, pp. 7-36—7-37) stated that habitat occupied by horses exhibits lower grass cover, fewer shrubs, and less total vegetative cover, and that horse alteration of spring or other mesic areas may be a concern with regard to sage-grouse brood rearing (Connelly *et al.* 2004, p. 7-37). However, these observations were general and not specific to the Mono Basin area. The Bi-State Plan (2004, pp. 28, 86, 122, 139, 177) included discussions on wild horses for the Pine Nut, Bodie, White Mountains, Mount Grant, and South Mono PMUs. For all PMUs except Bodie, the discussions in the Bi-State Plan are brief and focused on one or a few locations within each PMU where wild horses may be impacting sage-grouse habitat. The most extensive discussion is for the Bodie PMU (Bi-State Plan 2004, pp. 86-87), where there is risk of disturbance to the 7-Troughs lek. However, for the Bodie PMU, the current extent of breeding and summer sage-grouse habitat degradation attributable to wild horses is insignificant due to low horse numbers, and the extent of winter habitat degradation due to this factor also is insignificant because sagebrush cover is minimally affected by horse use (Bi-State Plan 2004, p. 86). The BLM captured and removed some wild horses from part of the Bodie PMU in 2003 (Bi-State Plan 2004, pp. 86-87). Neither the petitioners, nor our files, provide substantial information to document the extent, magnitude, or immediacy of present or future threats posed by feral horses to sage-grouse throughout the Mono Basin area. Therefore, we conclude that there is not substantial scientific or commercial information to indicate that listing of the Mono Basin area sage-grouse may be warranted as a result of the present or threatened destruction, modification, or curtailment of sage-grouse habitat or range due to feral horses. Wildfire The November 2005 petition states that wildfire is often mentioned as a significant threat to sage-grouse. It cites the Connelly *et al.*

(2004)review of wildfire impacts on sagebrush steppe habitats and sage-grouse. The petitioners also cite Wisdom *et al.*

(2003)and state that: Wildfire often leads to cheatgrass invasion of sagebrush habitats; that the number and size of wildfires across the Great Basin and Nevada have increased in the past 20 years and this trend continues; and that reducing the spread of cheatgrass in native shrublands through mitigation of human disturbances that facilitate its spread is probably the most important consideration in reducing the frequency, intensity, and area of undesirable wildfires. The December 2001 petition also cited fire as a threat to sage-grouse. However, this petition did not provide additional information beyond what was provided in the November 2005 petition. We note the Connelly *et al.*

(2004)assessment of fire data across the range of the sagebrush ecosystem and their conclusions that the number of fires and total area burned had increased for the period from 1980-2003, and that fires are an increasingly significant disturbance throughout much of the sagebrush ecosystem (Connelly *et al.* 2004, p. 7-6). Repeated fires in more arid sagebrush stands have allowed cheatgrass to replace native shrubs and herbs with fires occurring at more frequent intervals (Connelly *et al.* 2004, p. 7-5). Cheatgrass recovers more quickly after fire, effectively preventing the return of native sagebrush (January 12, 2005, **Federal Register** , p. 2265). From a rangewide perspective, altered fire regimes due to cheatgrass invasion is a factor in the loss of sage-grouse habitat (Connelly *et al.* 2004, p. 7-5). Wisdom *et al.* (2003, p. 10-1) conducted a bioregional assessment of the Great Basin eco-region and similarly concluded that the number and size of wildfire across this region have increased dramatically in the last 20 years, and that this trend continues. They further concluded that reducing the spread of cheatgrass in native shrublands, and mitigating human disturbances that facilitate its spread are probably the most important considerations in reducing the frequency, intensity, and area of wildfires (Wisdom *et al.* 2003, p. 10-1). However, both the analysis performed by Connelly *et al.*

(2004)and the assessment by Wisdom *et al.*

(2003)were conducted at large landscape scales, and neither provides an evaluation of the present or potential future effects of wildfire on greater sage-grouse habitat in the Mono Basin area. For the Mono Basin area, the Bi-State Plan

(2004)states that: wildfire is a factor that can affect the quality of sagebrush habitat for the Desert Creek-Fales and South Mono PMUs; wildfire is a low risk for sage-grouse in the White Mountains PMU; and only three recent fires have occurred in the Mount Grant PMU (Bi-State Plan 2004, pp. 53, 124, 140, 178). The Bi-State Plan indicates that some wildfires occur in the Pine Nut PMU nearly every year with the potential to remove sagebrush habitats (Bi-State Plan 2004, p. 26). Wildfire is a risk to sage-grouse habitat in the Pine Nut PMU; however, the Bi-State Plan (2004, p. 26) does not provide information on the extent or magnitude of fire, or how it has impacted sage-grouse in this PMU. For the Bodie PMU, the Bi-State Plan (2004, p. 92) indicates that all sagebrush habitats in the PMU are subject to some fire-related risk. However, it also states that: Recent wildfire activity in the PMU is limited; no landscape-scale fires have occurred over the last 40 years and even the largest recent burns have been small; no significant impacts to key sage-grouse habitats have been documented; and fire is a manageable risk (Bi-State Plan 2004, p. 93). Rangewide, wildfires have led to the loss of some sage-grouse habitat. Within the Mono Basin area, wildfire is a potential threat to sage-grouse habitat, but neither the petitioners, nor our files, provide any documentation that large landscape fires have occurred in this area or that significant amounts of habitat have been lost here due to fire. Hence, information on the extent and magnitude of wildfire is lacking for the Mono Basin area. Wildfires are a natural part of the environment in which the sage-grouse has evolved and persisted. Due to the changes in fire regimes described, wildfire remains a potential threat to sage-grouse in the Mono Basin area. However, neither the petitioners, nor our files, provide substantial scientific or commercial information that indicates wildfire poses a substantial risk of present or threatened destruction, modification, or curtailment of the habitat or range of the greater sage-grouse in the Mono Basin area to such an extent as to indicate listing may be warranted. Summary for Factor A Habitat loss and modification for sage-grouse has occurred in the Mono Basin area in the past as a result of many of the situations and actions described above. However, the question being addressed in Factor A is the present or future, not the past. Our evaluation (above) shows that the 2001 and 2005 petitions, and information in our files, do not present substantial information that indicates listing is warranted under Factor A in relation to any of the individual activities described in the petitions. Further, neither the petitions nor information in our files present substantial information that collectively these actions indicate that listing is warranted under Factor A. In summary, we evaluated the threats cited in both petitions. We find that the petitions and other information in our files do not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to the present or threatened destruction, modification, or curtailment of sage-grouse habitat or range. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes The November 2005 petition asserts that given the declines in sage-grouse populations across the West, there are many concerns about the possible impacts of continued sport hunting on this species. The petition further states that the impacts of hunting may disproportionately affect small and isolated populations of sage-grouse. The petitioners also claim that hunting in the South Mono and Bodie PMUs could suppress local populations and jeopardize the Mono Basin area sage-grouse rangewide. The petitioners cite the following information to support their contention that hunting is a threat to Mono Basin area sage-grouse. Connelly *et al.*

(2004)reviewed the impacts of hunting on sage-grouse populations. Autenrieth

(1981)assessed hunting of sage-grouse and stated that harvest rates should be more conservative in xeric

(dry)areas close to urban centers than in more mesic (moist) areas. Connelly *et al.*

(2003)studied sage-grouse response to hunting and reported that: Areas open to hunting had lower rates of increase than did areas with no hunting; both moderate and restricted hunting seasons slowed population recovery; and populations in low elevation habitats close to urban centers, and isolated due to habitat fragmentation, may be less able to withstand a harvest rate that would not affect populations in more extensive, contiguous, remote, or mesic areas. The petitioners also cited Gibson (1998), who analyzed the effect of hunting sage-grouse on two populations in the Mono Basin area and found that for the Long Valley area, which was characterized as an isolated population, hunting mortality could depress and hold population levels well below the carrying capacity. In contrast, for another local population that was contiguous with other sage-grouse local populations in Nevada, Gibson

(1998)found that population level was not related to hunting mortality. The petition states that Gibson

(2001)later concluded that: The Long Valley population of sage-grouse is heavily impacted by hunting; changes in population size in this area have been driven by CDFG hunting regulations over the past 40 years; and despite reduced permit numbers over the past 10 years, this population has not rebounded like it did when the season was closed for several years each in the 1960s and 1980s. The petition cites the Bi-State Plan

(2004)to state that for the Bodie PMU, direct mortality of sage-grouse from hunting is a potentially significant risk, and that during a closure of the hunting season in Mono County the population increased but then declined after the season was reopened. The December 2001 petition also identified hunting as a threat to Mono Basin area sage-grouse. The December 2001 petition states that roads and the use of off-road vehicles greatly increase the level of poaching, and that hunting seasons for other upland game birds expose sage-grouse to mortality when the areas open to hunting overlap with sage-grouse range, as they may be misidentified and shot. The petition also asserts that falconry, bird watching, and scientific study disturb or stress sage-grouse. However, that petition did not provide any additional information beyond that presented in the November 2005 petition that was substantial. The effect of harvest on greater sage-grouse has been assessed across the range of the species (Connelly *et al.* 2004, pp. 9-1 to 9-6). Some negative effects have been documented to particular populations of sage grouse, but Connelly *et al.* (2004, p. 9-6) conclude that no studies have demonstrated that hunting is a primary cause of reduced numbers of greater sage-grouse. The only known assessment of hunting effects specific to the Mono Basin area is the analysis by Gibson

(2001)for the Bodie Hills and Long Valley lek complexes. The assessment by Gibson

(2001)indicated that populations in the Long Valley area were depressed by hunting for the period of years examined, but the Bodie Hills populations were not. However, Gibson's analysis covered a 45-year period (Gibson 1998), and CDFG has significantly changed hunting seasons for sage-grouse in the Mono Basin area over this time period, as described below. Prior to 1983, there was no limit on hunting permits in the Mono Basin area, then the season was closed from 1983 to 1986 (Bi-State Plan 2004, pp. 73-74). CDFG instituted a permit system in 1987 when the season was re-opened, and issued hundreds of permits each year until 1998 when permit numbers were reduced significantly over what they had been during the period of 1987-1997 (Bi-State Plan 2004, pp. 74-75). From 1998 to the present, the number of hunting permits issued by CDFG has ranged from 10 to 35 per year for the two hunt units (the North Mono Hunt Area in the Bodie Hills portion of the Bodie PMU, and the South Mono Hunt Area in the Long Valley part of the South Mono PMU) open to hunting in the California portion of the Mono Basin area (Bi-State Plan 2004, p. 173). CDFG has concluded that the removal of individual animals from resident game bird populations statewide (including sage-grouse) will not significantly reduce those populations and will therefore not have a significant environmental impact on resident game birds (CDFG 2002, p. 7). Hunting

(gun)has been closed in the Nevada portion of the Mono Basin area since 1999 (Greater Sage-Grouse Conservation Plan for Nevada and Eastern California 2004, p. 108). Regarding possible effects of bird watching at leks or from scientific studies of sage-grouse, neither CDFG nor NDOW had any specific information about how these activities may affect birds in the Mono Basin area. Casazza *et al.* (2005, p. 10) indicate that in two years of study of radio-marked sage-grouse, the deaths of only 3 birds was attributed to handling of the birds by researchers. Thus, mortality related to scientific studies of sage-grouse in the Mono Basin area is negligible. The petitions provided information regarding the impacts of hunting for a limited part of the Mono Basin area. However, as described above the extent of hunting of sage-grouse in the Mono Basin area is quite limited. The petitions did not provide substantial information, nor did our files contain information, indicating that the extent or magnitude of hunting and other potential overutilization factors are significant threats to this sage-grouse population such that the requested listing action may be warranted. C. Disease or Predation The November 2005 petition asserts that West Nile virus is a threat to Mono Basin area sage-grouse. The petitioners cite Naugle *et al.*

(2004)as stating “If survival in our marked sample is representative of broader impacts of West Nile virus, the virus may be an important new stressor on sage-grouse populations.” They further quote Naugle *et al.*

(2004)as stating, “Survival of females has been shown to be limiting in sage-grouse populations and declines due to West Nile virus occurred in late summer when survival typically is high.” Additionally they cite Naugle *et al.*

(2004)as stating, “Of immediate concern are the potential consequences of West Nile virus for small populations * * * of greater sage-grouse in California,” and “Stochastic events such as disease exacerbate risk of extinction due to the combined effect of demographic stochasticity, deterministic stressors, and inbreeding depression in small, fragmented populations. Moreover, because small or isolated populations generally show reduced genetic variation, they are less likely to include individuals resistant to emerging infectious disease.” The petition further cites Oyler-McCance *et al.*

(2005)as stating, “Populations with relatively low levels of genetic diversity can suffer from inbreeding effects and can be more susceptible to parasitic agents and disease.” The petitioners cite Casazza *et al.*

(2005)in stating that two birds in the Bodie PMU and one in the Desert Creek-Fales PMU have been killed by West Nile virus. The petition also asserts that West Nile virus could eliminate entire populations in the near future because they are small and isolated, which makes them more susceptible to disease. The December 2001 petition also indicates that disease and parasites could cause local declines in sage-grouse populations. The petition discusses losses in sage-grouse populations due to coccidiosis. It also states that numerous parasites are associated with sage-grouse, including tapeworms, protozoans, and ticks. The petitioner states that other diseases such as salmonellosis, botulism, aspergillosis, avian tuberculosis, and pasturellosis affect sage grouse. The petitioner claims that disease outbreaks need not kill or even cause physiologic effects in individual birds to reduce population viability. The petition cites Boyce

(1990)in stating that even mild malaria outbreaks can affect reproduction because male sage-grouse infected with malaria attend leks significantly less frequently during the mating season. Finally, the petition claims that the introduction of exotic game birds in an area to provide hunting opportunities carries a substantial risk of disease and parasite spread to sage-grouse. The November 2005 petition states that there are many studies that correlate predation of sage-grouse to reduced and degraded habitat. The petitioners cite a BLM-Bishop Field Office source in stating, “56% of monitored sage grouse leks were lost from predation in the Long Valley in 2003, despite a high nest initiation rate.” The petition also indicates that poor habitat quality may have been the causative factor with regard to these losses. Petitioners also cite work by Casazza *et al.* (2005, p. 10) in stating, “recent research documented that predators killed 55 of 136 radio-collared sage-grouse in the Mono Basin area in 2003 and 2004.” Also, petitioners quoted the Bi-State Plan as stating that “steep declines in the sage-grouse population for any reason. * * * could render the population vulnerable to predation impacts” (Bi-State Plan 2004, p. 77). The December 2001 petition also cited predation as a threat to sage-grouse. However, this petition did not provide additional information beyond what was provided in the November 2005 petition. West Nile virus was first diagnosed in greater sage-grouse in 2003 (January 12, 2005, **Federal Register** , p. 2269). Data from four studies in the eastern half of the greater sage-grouse range (Alberta, Montana, and Wyoming) showed survival in these populations declined 25 percent in July and August as a result of the West Nile virus infection (Naugle *et al.* 2004, p. 709). Populations of greater sage-grouse not affected by West Nile virus showed no similar decline. However, the Naugle *et al.*

(2004)study did not include any sage-grouse from the Mono Basin area, and even in the region where the Naugle *et al.*

(2004)study was conducted, lek counts in 2004 indicated that regional sage-grouse populations did not decline. This suggests that the initial effects of West Nile virus were localized (January 12, 2005, **Federal Register** , p. 2270) and did not have a substantial effect on local populations. As cited by the petitioners, Casazza *et al.* (2005, p. 10) documented the loss of three sage-grouse to West Nile virus in the Mono Basin area. However, this is very minor and localized mortality and there is no information presented by the petitions, nor is there information in our files, that West Nile virus is a major factor contributing to mortality of sage-grouse in the Mono Basin area. Greater sage-grouse host a variety of potentially pathogenic organisms. However, there have been few systematic surveys for parasites and infectious diseases completed for greater sage-grouse (Connelly *et al.* , 2004, p. 10-3). The disease coccidiosis, which is caused by the protozoan *Eimeria* spp., has been documented to cause sage-grouse mortalities (Connelly *et al.* , 2004, p. 10-4). However, no cases of sage-grouse mortality resulting from coccidiosis have been documented since the early 1960s (Connelly *et al.* , 2004, p. 10-4). Although tapeworms are known to parasitize sage-grouse, the grouse remain in good physical condition (Connelly *et al.* , 2004; p. 10-5). Greater sage-grouse host many external parasites, including lice, ticks, and dipterans (midges, flies, mosquitoes, and keds) (Connelly *et al.* , 2004, pp. 10-6 to 10-7). Some studies have suggested that lice infestations can affect sage-grouse mate selection (Boyce 1990, p. 266), but they have not been shown to significantly affect the status of sage-grouse populations (Connelly *et al.* 2004, p. 10-6). Connelly *et al.* (2004, p. 10-7) stated that the presence of ticks is not a threat to sage-grouse populations. A variety of bacterial, fungal, and viral diseases are known to infect greater sage-grouse (Connelly *et al.* 2004, p. 10-7). However, in relation to the diseases cited by the 2001 petition, salmonellosis is not an important disease of wild birds, botulism is not considered a significant threat because the potential for exposure is low, there is no evidence to suggest that aspergillosis plays a significant role in sage-grouse ecology, and avian tuberculosis has not been documented in sage-grouse and thus is not considered a significant threat (Connelly *et al.* 2004, pp. 10-7 to 10-11). Avian malaria has been documented to affect male reproductive performance on sage-grouse leks (Boyce 1990, p. 265); however, the petitions and the information available in our files do not provide evidence that this disease affects sage-grouse populations in the Mono Basin area. Regarding the introduction of exotic game birds for state hunting programs, we acknowledge that it may be possible for diseases carried by exotic birds to infect native sage-grouse populations. However, neither the December 2001 petition, nor information available to us in our files, provides evidence that exotic game bird introductions threaten sage-grouse populations in the Mono Basin area. Predation is the most commonly identified cause of direct mortality for sage-grouse (Schroeder *et al.* 1999, p. 14; Connelly *et al.* 2000b, p. 228). The November 2005 petition states that many studies have linked predation of sage-grouse to degraded habitat. This relationship is confirmed by the literature (Schroeder and Baydack, p. 28; Connelly *et al.* 2004, pp. 10-2 and 10-3). However, the petitioners' statement that “56 percent of monitored sage-grouse leks were lost from predation in Long Valley in 2003” is inaccurate. This statement is based on a table comparing nest initiation rates, nest success, renesting success, nest predation rate, and other nesting parameters from Long Valley with those for the Bodie Hills (BLM-Bishop Field Office, undated). The statement in the November 2005 petition should have read, “56 percent of monitored sage-grouse nests were lost from predation in Long Valley in 2003.” This translates to a nest success of 44 percent for monitored nests in Long Valley, which is well within the range of nest success from across the range of the species, 14.5 to 86.1 percent, as summarized for a variety of studies in a variety of states and one province by Connelly *et al.* (2004, p. 3-21). Annual mortality of breeding-age sage-grouse varies from 55 to 75 percent for females and 38 to 60 percent for males (Schroeder and Baydack 2001, p. 25); therefore the statement in the November 2005 petition “that predators killed 55 of 136 radio-collared sage-grouse in the Mono Basin area in 2003 and 2004,” although accurate (Casazza *et al.* 2005, p. 10), is misleading. Similar to the nest success rate for Long Valley, the loss of approximately 40 percent of the radio-collared sage-grouse to predators is well within the normal range of annual mortality for the species. The 2005 petition statement that “steep declines in the sage-grouse population for any reason * * * could render the population vulnerable to predation impacts” was taken out of context. The statement only applies to the Bodie PMU and not the Bi-State area as a whole (Bi-State Plan 2004, p. 77). Additionally, the Bodie PMU discussion (Bi-State Plan 2004, p. 77) also stated that predation is not known to be a significant limiting factor in the Bodie PMU, and few studies have identified predation as primary factor limiting sage-grouse populations elsewhere. In summary, neither the petitioners, nor our files, provide substantial information to document the extent or magnitude of the present or future threat of disease or predation to sage-grouse in the Mono Basin area. Therefore, we conclude that there is not substantial scientific or commercial information to indicate that listing of the Mono Basin area sage-grouse may be warranted due to disease or predation. D. Inadequacy of Existing Regulatory Mechanisms The November 2005 petition asserts that no plan or agreement has been drafted that contains adequate regulatory mechanisms to prevent further decline of Mono Basin area sage-grouse and avoid listing the species. The petition discusses Candidate Conservation Agreements

(CCAs)and references a 2001 application by CDFG to the Service to acquire funding for developing a CCA for sage-grouse in Mono County, and asserts that the Service awarded the funding but the CCA was not developed. The November 2005 petition discusses the Bi-State Plan

(2004)and acknowledges it is a component of the *Greater Sage-Grouse Conservation Plan for the Bi-State Plan Area of Nevada and Eastern California.* Petitioners reference the six goals and objectives of the Bi-State Plan

(2004)and indicate they are an excellent starting point but that the Bi-State Plan will not meet them. The petitioners contend that the Bi-State Plan

(2004)only seeks to maintain current populations of sage-grouse in the Bi-State planning area and that there is no discussion of restoring historic sage-grouse numbers or habitat in the area. The 2005 petition cites the Policy for Evaluation of Conservation Efforts When Making Listing Decisions

(PECE)(March 28, 2003, 68 FR 15100) and lists the criteria under the policy regarding the certainty that a conservation effort will be implemented and the certainty that the conservation effort will be effective. According to the petitioners, the Bi-State Plan

(2004)does not contain adequate regulatory mechanisms that meet PECE policy criteria to avoid listing the Mono Basin area sage-grouse under the ESA. They further contend that the Bi-State Plan's

(2004)management prescriptions are voluntary, dependent on the cooperation and participation of interested parties and agencies, and may be altered or abandoned at any time. Also, there is no penalty for non-compliance with the Plan and no prohibition against activity that will harm sage-grouse or their habitat. The petitioners contend that the Service cannot rely on voluntary conservation efforts, or on the promise of future conservation efforts, by Federal and State agencies and private parties to delay listing the Mono Basin area sage-grouse under the ESA. From their review of the Bi-State Plan (2004), the petitioners conclude that often action items were not included to address risks, that the action items are voluntary and lack funding to complete, that regulatory mechanisms are lacking, and that often the actions identified do not conserve sage-grouse. The petitioners cite a Service review of the Bi-State Plan (USFWS 2004) in which we evaluated the conservation measures proposed in the Plan pursuant to PECE. In citing that review, petitioners state the Service found that 1 of the 30 individual conservation efforts in the Bi-State Plan fully meets PECE and the other 29 do not. Petitioners conclude that if the Bi-State Plan

(2004)does not meet the Service's PECE policy (March 28, 2003, 68 FR 15100), then adequate regulatory mechanisms are not in place to conserve the sage-grouse in the Mono Basin area. Finally, the 2005 petition references the BLM-Bishop Field Office Resource Management Plan (BLM-Bishop Field Office 1993) and asserts that sage-grouse have continued to struggle since the Resource Management Plan was adopted in 1993. The petitioners suggest that a possible reason for suppressed sage-grouse populations is the small management buffers recommended by the Resource Management Plan for certain activities within 0.4 to 0.5 km (0.25 to 0.33 mi) of active leks. The 2001 petition contends that existing regulatory mechanisms are virtually non-existent and existing management is inadequate to conserve the sage-grouse. This petition contends that Federal laws such as NEPA, National Forest Management Act, Federal Lands Policy and Management Act, and others do not provide for sage-grouse conservation. The petitioner also reviewed management on BLM lands and concluded that BLM has seriously mismanaged public lands; that BLM does not adequately monitor, plan, or measure sage-grouse populations or habitat needed to restore the species; and that the Service cannot rely on BLM to follow Federal environmental laws to conserve sage-grouse. This petition also provided a review of management on USFS lands and concluded that the agency is not giving adequate attention to sage-grouse on National Forests or National Grasslands. Management of a National Guard training area, Department of Energy lands, and National Park Service lands were also included in the petition, which found shortcomings in the management of all these federal lands with regard to sage-grouse. The petitioner also reviewed management of sage-grouse by the Service and asserts that the Service has mismanaged both its ESA duties, including listing responsibilities, and the lands in the National Wildlife Refuge System. The petition also asserts that management of the Conservation Reserve Program

(CRP)of the U.S. Department of Agriculture has failed to halt severe declines in sage-grouse populations to date. At the State level, the petition assessed management of sage-grouse by the States and asserts they have a poor record of conserving the species. Regarding State management, the petition cites the general lack of conservation plans for sage-grouse and indicates that those which have been completed are not regulatory mechanisms in any sense and do not assure funding for conservation actions. Finally, the petition provided an assessment of management by private parties and concluded that, aside from hunting seasons, there are no regulatory mechanisms to protect sage-grouse on private lands. We concur that the Service did provide funding to CDFG for development of a CCA for sage-grouse in Mono County, and to our knowledge this CCA has not yet been completed. However, a CCA is not essential to providing adequate regulatory mechanisms. Regarding the Bi-State Plan (2004), we agree that it is focused on maintaining existing breeding population in the Bi-State area (Bi-State Plan 2004, p. 186). However, there is no apparent need to return sage-grouse populations and habitat in the Mono Basin area to historic levels in order to preclude the need for listing the species as threatened or endangered. When populations and habitat are at less than historic levels, it does not mean a species is threatened or endangered as defined by the Act. Thus, the fact that the Bi-State Plan does not prescribe restoring historic sage-grouse numbers or range does not mean the Plan is inadequate, nor does it mean that existing regulatory mechanisms are inadequate. We agree that the recommended actions in the Bi-State Plan are voluntary and depend on the cooperation and participation of interested parties and agencies, and that the Bi-State Plan does not include any prohibitions against actions that harm sage-grouse or their habitat. The Service did review the Bi-State Plan as part of our rangewide status review for greater sage-grouse (January 12, 2005, 70 FR 2244). In that review, we evaluated formalized conservation efforts that have not been implemented or have not demonstrated effectiveness, to determine if they met the standard in PECE. In accordance with PECE, a conservation effort can contribute to a determination that listing is not necessary if it is found to be sufficiently certain to be implemented and effective so as to have contributed to the elimination or adequate reduction of one or more threats to the species. (March 28, 2003, **Federal Register** , p. 15111). The petition correctly states that the Service found that 1 of 30 conservation efforts included in the Bi-State Plan fully met standard in PECE (USFWS 2004, p. 4). This does not, however, mean that regulatory mechanisms are inadequate. The fact that conservation efforts in the plan are voluntary does not mean that further regulatory mechanisms are necessary to conserve the sage-grouse in the Mono Basin area, nor does it mean that the actions it recommends to conserve sage-grouse will fail to be implemented and effective. Further, PECE applies to determining that a conservation effort(s) is sufficiently certain to be implemented and effective so as to have contributed to the elimination or adequate reduction of one or more threats to the species identified through the threats analysis (March 28, 2003, **Federal Register** , p. 15115); PECE is not applicable when such threats are not documented to exist. In regard to the BLM-Bishop Resource Management Plan, although the petitioners assert that management buffers and seasonal restrictions that BLM imposes on land use activities are insufficient to conserve sage-grouse, they do not provide information that documents how this impacts sage-grouse. We note also that BLM resource management plans are guided by direction in the Federal Land Policy and Management Act (FLPMA) and associated regulations, BLM's Special Status Species Management Policy, the National BLM Sage-Grouse Habitat Conservation Strategy, and Regulations on Grazing Administration Exclusive of Alaska (January 12, 2006, FR p. 2272-2274. The 2001 petition provides many citations to support the petitioners' contention that existing regulatory mechanisms are inadequate and threaten Mono Basin area sage-grouse. We cannot validate the substantiality of the petitioners' claims concerning the inadequacy of regulatory mechanisms because the petitioners did not provide copies of these citations and thus we cannot verify the quality and validity of the citations, whether the information was cited correctly, or whether the information directly relates to the status of sage-grouse in the Mono Basin area. We note that most of the information in the petition regarding this factor is not specific to the Mono Basin area. Specifically, most of the discussion in the 2001 petition regarding BLM and USFS lands was not specific to the Mono Basin area. Further, there are no National Guard training areas in the Mono Basin area, and the only U.S. Department of Defense lands in the area are the Hawthorne Army Depot, an area that provides some of the best remaining habitat for sage-grouse, as discussed above. There are no National Parks or National Wildlife Refuges in any of the PMUs in the Mono Basin area, and we are unaware of any private lands in the area that are enrolled in the CRP program. Thus, none of the assertions in the 2001 petition regarding these lands are relevant. The 2001 petition indicated that California and Nevada had not yet completed conservation plans for sage-grouse, but this is no longer the case for the Mono Basin area, due to completion of the *Greater Sage-Grouse Conservation Plan for the Bi-State Plan Area of Nevada and Eastern California* and its component, the Bi-State Plan (2004). As discussed under Factor B, above, there are only two areas where sage-grouse are hunted in the Mono Basin area and the harvest of birds in these areas is closely regulated by CDFG such that it has determined that there is no significant environmental impact on this game bird (CDFG 2002, p. 7). Also, 89 percent of the lands in the Mono Basin area are public lands managed by BLM and USFS under federal laws such as FLPMA, the National Forest Management Act, and NEPA, along with other related agency policies (January 12, 2005, **Federal Register** , pp. 2272-2276). Neither the petitions, nor our files, provide substantial scientific or commercial information indicating that the inadequacy of existing regulatory mechanisms is presently a threat to Mono Basin area sage-grouse such that the petitioned action may be warranted. E. Other Natural or Manmade Factors Affecting the Species' Continued Existence Off-Road Vehicle Use The November 2005 petition states that off-road vehicles are a threat to a number of sage-grouse populations in the Mono Basin area. Regarding the Bodie PMU, the petition quotes the Bi-State Plan

(2004)as stating that “population impacts of motorized recreation include disturbance, displacement, and direct mortality from vehicle collisions” and that recreation in this PMU “is characterized as a past, current, and future risk to multiple birds and multiple sites.” It also cites the South Mono PMU section of the Bi-State Plan

(2004)in stating that recreational activities are affecting multiple birds on multiple sites year round and increased urbanization threatens to increase this risk. Petitioners also quote a portion of the Pine Nut PMU section of the Bi-State Plan (2004), which states that “unrestricted road access throughout the Pine Nut PMU provides the potential for increased human presence in critical habitats during critical times of the year,” and “people particularly affect nesting, early brood, and late brood habitat during spring through fall where critical habitats are easily accessed by vehicles [and] increased human presence disrupts daily activities for individual birds and broods.” The petition also asserts that another threat in the Pine Nut PMU is an off-road vehicle race that goes through sage-grouse brood habitat and affects birds by direct mortality or by disturbances that break up broods and cause chick mortality. Finally, the petitioners cite Robertson and Bushman

(2001)in asserting that BLM is currently considering recommendations to develop new off-road facilities within sage-grouse habitat. The December 2001 petition also cited off road vehicles as a threat to sage-grouse. However, this petition did not provide additional information beyond what was provided in the November 2005 petition. We are not aware of any published studies concerning recreational effects on sage-grouse, although recreation could disturb sage-grouse on leks and in nesting areas (January 12, 2005, **Federal Register** , p. 2278). Also, we are not aware of any scientific reports that document direct mortality of sage-grouse through collision with off-road vehicles (January 12, 2005, **Federal Register** , p. 2278). Off-road vehicle use could have indirect impacts to sage-grouse habitat; this type of activity generally is known to reduce sagebrush canopy cover through repeated trips in an area, increased sediment production, and decreased soil infiltration rates (January 12, 2005, **Federal Register** , p. 2278). The Bi-State Plan discusses off-road vehicles as a risk factor in the Pine Nut PMU and the Mount Grant PMU (Bi-State Plan 2004, p. 27 and pp. 137-138, respectively). However, for the Bodie and South Mono PMUs, the Bi-State Plan (2004, pp. 91-92 and pp. 170-171 respectively) discusses off-road vehicles in the context of all types of recreational activities (motorized and non-motorized). For the Pine Nut PMU, the Bi-State Plan (2004, p. 24) indicates concerns about unrestricted road access, including increased human presence in critical habitats in critical times of the year, disruption of daily activities for individual birds and broods, and existing law enforcement limitations. The Pine Nut PMU section of the Bi-State Plan also mentions off-road vehicle races, which could impact individual and multiple birds by direct mortality or disturbance (Bi-State Plan 2004, p. 27). However, the Bi-State Plan (2004, p. 27) does not indicate that this is a major risk for the Pine Nut PMU. The off-road vehicle discussion for the Mount Grant PMU states that off-road vehicle use is restricted to designated routes within this PMU, minimizing any risks to birds in this PMU. However, the Bi-State Plan (2004, p. 137) continues to state that some off-road vehicle use is on undesignated routes within the Mount Grant PMU, causing damage to meadows that provide potential habitat for sage-grouse. For the Bodie PMU, the Bi-State Plan considered population impacts of motorized recreation, including disturbance, displacement, and direct mortality (Bi-State Plan 2004, p. 91), but the statement that recreation is a past, current, and future risk to multiple birds and multiple sites refers to all types of recreation, not just off-road vehicles (Bi-State Plan 2004, p. 91). The Bi-State Plan states that the prospect of increased motorized recreational use is a concern, but it does not indicate that this factor is a major threat to sage-grouse in the Bodie PMU (Bi-State Plan 2004, p. 92). In the South Mono PMU, the Bi-State Plan (2004, p. 170) states that recreational activities are affecting multiple birds on multiple sites year round, but this statement refers to all types of recreational activities combined, not just off-road vehicle use alone. Robertson and Bushman

(2001)provide limited recommendations to BLM for managing existing recreational uses (motorized and non-motorized) in the wildland urban interface zone east of Carson City, Minden, and Gardnerville, including improvements at existing staging areas, creation of new staging areas, and improving management of existing recreational activities at access points to Federal land that are already being used. We do not know whether BLM has implemented the recommendations in the report. Using Robertson and Bushman (2001), we mapped the locations of the recreational areas described in the report. While there may be some sagebrush habitat associated with these recreational areas, the majority (80 percent) of the known lek areas in the Pine Nut PMU are at least 17.6 km (11 mi) east of these areas, and the other few remaining leks in this PMU are a minimum of 11.2 km (7 mi) southeast of these areas. Hence, sage-grouse do not currently use sagebrush habitat in the near vicinity of the recreation areas discussed in Robertson and Bushman (2001). In summary, the Bi-State Plan

(2004)discusses the effects of recreational activities and off-road vehicles. Most of the discussions in the Bi-State Plan relate to only the potential for off-road vehicles to disturb, disrupt, or cause mortalities to sage-grouse, with relatively few specific examples of impacts to the species in the area, and all of these examples involved indirect effects. Neither the petitions, nor our files, provided information that documents the extent, magnitude, or immediacy of the threat of off-road vehicles to sage-grouse, or their habitat, within the Mono Basin area. Therefore, we conclude that there is not substantial scientific or commercial information to indicate that listing of the Mono Basin area sage-grouse may be warranted due to the present or threatened effects to Mono Basin area sage-grouse, or their habitat, due to off-road vehicle use. Human Disturbance The November 2005 petition cites the Bi-State Plan

(2004)in asserting that human disturbance is affecting multiple birds on multiple sites in the Desert Creek-Fales PMU. Other than citing the Bi-State Plan

(2004)with regard to the Desert Creek-Fales PMU, the November 2005 petition does not specify the types of human disturbances that affect sage-grouse or the extent of the impacts. The Desert Creek-Fales PMU part of the Bi-State Plan includes human disturbance as a risk factor for sage-grouse, stating that some sage-grouse habitats in this PMU are accessible for public recreation year round or are adjacent to recently developed housing areas, but it does not indicate this is a major threat to sage-grouse in this PMU (Bi-State Plan 2004, p. 51). Neither the petitions, nor our files, present information that documents the extent, magnitude, or immediacy of human disturbance as a threat to sage-grouse for the Mono Basin area. Therefore, we conclude that there is not substantial scientific or commercial information to indicate that listing of the Mono Basin area sage-grouse may be warranted due to human disturbance. Insecticides The November 2005 petition lists insecticides as a factor affecting sage-grouse habitat in the Mono Basin area. The petitioners cite Beck and Mitchell

(2000)as recommending against application of insecticides to sage-grouse summer habitat, a Johnson and Boyce

(1990)finding that insects are essential to chick development and that they are required by chicks of all ages for normal development, and a report by Blus *et al.*

(1989)that in southeastern Idaho there was a sage-grouse die-off after organophosphorus insecticides were applied to cultivated crops. None of the studies cited by the petitioners are specific to the Mono Basin area. In the Bi-State Plan the only mention of this as a threat factor was for the White Mountains PMU risk assessment, which indicates that accidental exposure to pesticides and herbicides can kill sage-grouse, but that these compounds are not generally used in this area because the human population and agricultural activities are limited (Bi-State Plan 2004, p. 112). Neither the petitions, nor our files, provide any specific information about how insecticides impact sage-grouse in the Mono Basin area. Therefore, we conclude that there is not substantial scientific or commercial information to indicate that listing Mono Basin area sage-grouse may be warranted due to insecticide use. Other Threats The December 2001 petition cited other threats to sage-grouse in the Mono Basin area, including: Noise, acoustic interference, disturbance, oil and gas operations, weather effects, climate change and global warming, ozone layer depletion, air pollution, acid precipitation, effects of chemical and radiological agents, natural factors and environmental variation, habitat recovery time, and genetic introgression. The December 2001 petition cited numerous sources to support the contention that these other threats pose a threat to Mono Basin sage-grouse. The information cited is generic in nature and was not specific to sage-grouse or not specific to the Mono Basin or Mono Basin sage-grouse. The petitioner did not provide copies of these citations and hence we cannot validate the substantiality of the petitioner's claims regarding these threats, nor do our files contain information to validate any of the other threats cited by the petitioner. We cannot verify the quality and validity of the citations, or whether the information was correctly cited. These other threats cited by the petition are speculative in nature. The 2001 petition does not provide information that documents the extent, magnitude, or immediacy of these other threats on sage-grouse throughout the Mono Basin area. In summary, neither the petition nor our files contain substantial scientific or commercial information that indicating other natural or man-made factors threaten the sage-grouse population in the Mono Basin area such that the petitioned action may be warranted. Finding We reviewed the petitions and supporting information provided by the petitioners and evaluated that information to determine whether the sources cited in the petitions support the claims made in the petitions. Based on this review and evaluation, we find the petitions do not present substantial scientific or commercial information that listing the Mono Basin area sage-grouse as threatened or endangered may be warranted at this time. We note that in making this finding we did not use any of the new information received from the States or USGS-BRD subsequent to our receipt of the 2005 petition; if we had used that new information, we would have reached the same conclusion. We encourage interested parties to continue gathering data that will assist with the conservation and monitoring of sage-grouse in the Mono Basin area. Information regarding the Mono Basin area sage-grouse may be submitted to the Field Supervisor, Nevada Fish and Wildlife Office (see ADDRESSES section), at any time. References Cited A complete list of all references cited herein is available upon request from the Nevada Fish and Wildlife Office (see ADDRESSES ). Author The primary author of this notice is Kevin Kritz, U.S. Fish and Wildlife Service, Nevada Fish and Wildlife Office (see ADDRESSES ). Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ). Dated: December 7, 2006. Kenneth Stansell, Acting Director, Fish and Wildlife Service. [FR Doc. E6-21135 Filed 12-18-06; 8:45 am] BILLING CODE 4310-55-P 71 243 Tuesday, December 19, 2006 Proposed Rules Part V Environmental Protection Agency 40 CFR Part 6 Procedures for Implementing the National Environmental Policy Act and Assessing the Environmental Effects Abroad of EPA Actions; Proposed Rule ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 6 [EPA-HQ-OECA-2005-0062; FRL-8257-1] RIN 2020-AA42 Procedures for Implementing the National Environmental Policy Act and Assessing the Environmental Effects Abroad of EPA Actions AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency (EPA or Agency) is proposing amendments to its procedures for implementing the requirements of the National Environmental Policy Act of 1969 (NEPA). This proposed rule also includes minor, technical amendments to the Agency's procedures for implementing Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions.” This proposed rule would amend EPA's NEPA implementing procedures by: consolidating and standardizing the procedural provisions and requirements of the Agency's environmental review process under NEPA; clarifying the general procedures associated with categorical exclusions, consolidating the categories of actions subject to categorical exclusion, amending existing and adding new categorical exclusions, and consolidating and amending existing and adding new extraordinary circumstances; consolidating and amending the listing of actions that generally require an environmental impact statement; clarifying the procedural requirements for consideration of applicable environmental review laws and executive orders; and incorporating other proposed revisions consistent with the Council on Environmental Quality's regulations (CEQ's Regulations). DATES: Comments must be received on or before February 20, 2007. Under the Paperwork Reduction Act, comments on the information collection provisions must be received by the Office of Management and Budget

(OMB)on or before January 18, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OECA-2005-0062, by one of the following methods: • *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: hargrove.robert@epa.gov.* • *Fax:* 202-564-0072, Attention: Robert Hargrove. • *Mail:* EPA-HQ-OECA-2005-0062, Environmental Protection Agency, EPA Docket Center (EPA/DC), Enforcement and Compliance Docket and Information Center, Mailcode: 2201T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503. • *Hand Delivery:* Public Reading Room, Room B102, Enforcement and Compliance Docket and Information Center, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC 20004. Such deliveries are only accepted during the Docket'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-OECA-2005-0062. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes 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 *http://www.regulations.gov* , or e-mail. The *http://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 *http://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.* *Docket:* All documents in the docket are listed in the *http://www.regulations.gov index.* 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, will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Public Reading Room, Room B102, Enforcement and Compliance Docket and Information Center, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC 20004. 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, and the telephone number for the OECA Docket is

(202)566-1752. FOR FURTHER INFORMATION CONTACT: Mr. Robert Hargrove; NEPA Compliance Division; Office of Federal Activities (Mailcode 2252A); Environmental Protection Agency; 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone

(202)564-7157; fax number:

(202)564-0072; e-mail address: *hargrove.robert@epa.gov.* SUPPLEMENTARY INFORMATION: This preamble is organized according to the following outline: I. General Information A. Does This Proposed Rule Apply to Me? B. Tips for Preparing Your Comments II. Introduction A. Statutory authority B. Background C. Exemptions From NEPA for Certain EPA Actions D. EPA's Voluntary NEPA Policy and Procedures III. Purpose and Policy IV. Proposed Changes to the Regulations and Objectives of These Proposed Changes A. Proposed Revision to the Title for EPA's Regulations at Part 6 B. Restructuring and Standardizing EPA's NEPA Implementing Regulations 1. Consolidate and Standardize the Procedural Provisions and Requirements of the Agency's Environmental Review Process Under NEPA 2. Clarify the General Procedures Associated With Categorical Exclusions; Consolidate the Categories of Actions Subject to Categorical Exclusion; Amend Existing and Add New Categorical Exclusions; and Consolidate and Amend Existing and Add New Extraordinary Circumstances 3. Consolidate and Amend the Listing of Actions that Generally Require an Environmental Impact Statement 4. Clarify the Procedural Requirements for Consideration of Applicable Environmental Review Laws and Executive Orders 5. Other Proposed Revisions Consistent With the CEQ Regulations C. Proposed amendments to EPA's Procedures for Implementing Executive Order 12114 1. Amendment to Re-Designate the Subpart for EPA's Procedures Implementing Executive Order 12114 2. Amendments to Update Office Names and Titles 3. Amendment to Reference in the Executive Order 12114 Implementing Procedures to EPA's Voluntary NEPA Policy 4. Amendment to Reference in the Executive Order 12114 Implementing Procedures to EPA's NEPA Implementing Procedures 5. Amendments for Correction of Cross-References and Typographical Errors V. Proposed Amended and New Categories of Actions Eligible for Categorical Exclusion; Amended and New Extraordinary Circumstances; and Amended Listing of Actions That Generally Require an Environmental Impact Statement VI. Administrative Requirements 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 and 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 I. General Information A. Does This Proposed Rule Apply to Me? Those subject to the proposed rule include EPA employees who must comply with NEPA or Executive Order 12114, and certain grant and permit applicants who must submit environmental information documentation to EPA for their proposed projects. *EPA's Procedures for Implementing NEPA.* As with EPA's current NEPA implementing regulations, compliance with the proposed regulations would be the responsibility of EPA's Responsible Officials. For applicant-proposed actions, certain procedures in the proposed NEPA regulations would require those defined in the proposed regulations as applicants (that is, grant and permit applicants) to provide environmental information for EPA's use in its environmental review process. Currently, EPA's NEPA implementing regulations apply, by subpart, to specific types of EPA proposed actions. For example, Subpart E applies to the award of wastewater treatment construction grants under Title II of the Clean Water Act, and Subpart F applies to EPA's environmental review process for issuance of new source National Pollutant Discharge Elimination System (NPDES) permits. The proposed regulations would consolidate and standardize the environmental review process applicable to all EPA proposed actions subject to NEPA, including those actions now specifically addressed in the current regulations and other actions subject to NEPA but not specifically addressed in the current regulations (e.g., certain EPA grant awards for special projects identified in the State and Tribal Assistance Grants

(STAG)account authorized by Congress through the Agency's annual Appropriations Act, including grants for the Border Environmental Cooperation Commission/Border Environmental Infrastructure Fund and Colonias grant projects). As with EPA's current regulations, the proposed regulations would supplement and be used in conjunction with the government-wide Council on Environmental Quality

(CEQ)NEPA Regulations (40 CFR Parts 1500-1508). For additional information of interest to applicants, please see Preamble IV.B.5, “Other proposed revisions consistent with the CEQ Regulations. This section provides further information on proposed revisions that apply to applicants. *EPA's Procedures for Implementing Executive Order 12114.* As with EPA's current Executive Order 12114 implementing procedures, compliance with these procedures would be the responsibility of EPA's Responsible Officials. As with the current procedures, for applicant-proposed actions, applicants may be required to provide environmental information for EPA's use in its environmental review process. EPA's Executive Order 12114 implementing procedures ensure that environmental information is available to the Agency's decision-makers and other appropriate Federal agencies and officials for proposed actions subject to Executive Order 12114. Today's proposed rule also includes minor, technical amendments to the Agency's procedures for implementing Executive Order 12114 (42 U.S.C. 4321, note, E.O. 12114, 44 FR 1979, 3 CFR 1979, Comp., p. 356). EPA actions typically subject to Executive Order 12114 include major EPA actions that affect the environment of a foreign nation or the global commons and may include: major research or demonstration projects, ocean dumping activities carried out under section 102 of the Marine Protection, Research, and Sanctuaries Act (33 U.S.C. 1401 *et seq.* ), and major permitting or licensing of facilities by EPA (such as EPA-issued permits for hazardous waste treatment, storage, or disposal facilities under section 3005 of the Resource Conservation and Recovery Act (42 U.S.C. 6925), National Pollutant Discharge Elimination System permits under section 402 of the Clean Water Act (33 U.S.C. 1342), and prevention of significant deterioration approvals under Part C of the Clean Air Act (42 U.S.C. 7470 *et seq.* ). To determine whether your project would be subject to these procedures, you should carefully examine the applicability criteria in § 6.101 and Subpart C of the NEPA implementing procedures, and § 6.401 of the Executive Order 12114 implementing procedures in this proposed rule. If you have questions regarding the applicability of these procedures to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section of this Preamble. B. Tips for Preparing Your Comments *When submitting comments, remember to:*

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

(b)Follow directions for commenting according to the ADDRESSES section of this Preamble.

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

(d)Describe any assumptions and provide any technical information and/or data that you used.

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

(f)Provide specific examples to illustrate your concerns, and suggest alternatives.

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

(h)Make sure to submit your comments by the comment period deadline identified. II. Introduction A. Statutory Authority The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4347, establishes the federal government's national policy for protection of the environment. The Council on Environmental Quality Regulations (CEQ Regulations) at 40 CFR parts 1500 through 1508 establish procedures implementing this national policy. The CEQ Regulations (40 CFR 1505.1) require federal agencies to adopt and, as needed, revise their own NEPA implementing procedures to supplement the CEQ Regulations and to ensure their decision-making processes are consistent with NEPA. Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions,” (see 46 FR 3364) is the authority and basis for EPA's policy, criteria, and procedures contained in the portion of today's proposed rule entitled “Assessing the Environmental Effects Abroad of EPA Actions.” B. Background The Environmental Protection Agency initially established its NEPA regulations as 40 CFR Part 6 (Part 6), Subparts A through H on April 14, 1975 (see 40 FR 16823). Subpart I was added on January 11, 1977 (see 42 FR 2450). On November 29, 1978, the Council on Environmental Quality

(CEQ)promulgated regulations establishing uniform federal procedures for implementing NEPA (see 43 FR 55978). Section 103 of NEPA and the CEQ Regulations require federal agencies to adopt appropriate NEPA procedures to supplement those regulations. As a result, EPA amended its NEPA regulations on November 6, 1979, to make them consistent with the CEQ Regulations (see 44 FR 64177). Under the Agency's 1979 Part 6 amendments, Subparts A through D described general NEPA procedures for preparing environmental reviews applicable to all EPA NEPA actions and established certain categorical exclusions. Subpart A contained an overview of EPA's NEPA regulations, including environmental impact statement

(EIS)requirements for EPA legislative proposals and requirements for environmental information documents

(EIDs)to be submitted to EPA by applicants, grantees, or permitees as required in Subparts E through I. Subpart B described the requirements for the content of an EIS prepared pursuant to Subparts E through I. Subpart C described the requirements for coordination of applicable environmental laws and certain executive orders with the environmental review procedures. It provided a brief recitation of the provisions of those laws or executive orders and EPA implementing procedures. Subpart D described the public information requirements to be undertaken in conjunction with the environmental review requirements under Subparts E through I. Subparts E through I established specific criteria for conducting environmental reviews for particular types of actions and categorical exclusions applicable to those actions. Specifically, Subpart E established NEPA environmental review procedures for the Wastewater Treatment Construction Grants Program of the Clean Water Act; Subpart F for the issuance of new source NPDES permits; Subpart G for research and development program actions; Subpart H for solid waste demonstration projects; and Subpart I for EPA actions for construction of special purpose facilities or facility renovations. EPA's “Statement of Procedures on Floodplain Management and Wetlands Protection,” dated January 5, 1979, was included as Appendix A to clarify the effective date and to emphasize the importance of this Statement of Procedures. In 1981, Subpart J, “Assessing the Environmental Effects Abroad of EPA Actions,” was added as EPA's general policy, criteria, and procedures for implementing Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions” (see 46 FR 3364). Executive Order 12114 does not impose NEPA compliance requirements on Federal agencies, rather it “furthers the purpose” of NEPA and identifies the documents, including environmental impact statements

(EISs)and environmental assessments (EAs), to be used when conducting assessments under Executive Order 12114. In 1982, the Agency revised its Part 6 NEPA regulations by removing CEQ from the consultation process on requests to segment wastewater treatment facility construction grant projects (see 47 FR 9831). In 1983, EPA revised the categorical exclusions and the criteria for not granting an exclusion, and corrected a factual error on the responsibility for preparing a final EA (see 48 FR 1012). In 1985, the Agency promulgated procedural amendments and minor substantive amendments to its Part 6 NEPA regulations to accommodate changes in EPA's regulations for the construction grants program found at 40 CFR Part 35 (see 50 FR 26310). The modifications in the construction grants program changed the process that EPA grant recipients followed in planning and building wastewater treatment facilities. The amendments to Subpart E and related sections of the EPA NEPA regulations streamlined and clarified the criteria and process for an environmental review and for preparing an EIS, including partitioning of the review process and the public involvement requirements. These amendments also included Office name and technical changes to reflect an Agency reorganization. In 1986, EPA amended its Part 6 NEPA regulations to clarify and streamline procedures for partitioning and re-evaluating environmental reviews, making categorical exclusion determinations, providing for public participation, and producing and distributing environmental review documents; and to make various technical changes including Office name changes due to reorganizations. In 1991, EPA amended Subpart G of its Part 6 NEPA regulations by adding categorical exclusions and a list of projects that normally result in preparation of EAs; revising the criteria used to determine whether preparation of an EIS is required; revising the provision directing coordination, where feasible, with other EPA program reviews; and clarifying the NEPA review process for Office of Research and Development actions (see 56 FR 20541). In addition, EPA amended Subpart D by eliminating the requirement for public notice of categorical exclusion determinations for all EPA programs except the Wastewater Treatment Construction Grants Program. In 1993, EPA amended its Part 6 NEPA regulations to address the requirement that EPA actions conform to any air quality State implementation plan, and to clarify that air pollution control requirements need to be considered when performing NEPA reviews for wastewater treatment works (see 58 FR 63214). C. Exemptions From NEPA for Certain EPA Actions Certain EPA actions are exempt from the procedural requirements of NEPA, including the CEQ Regulations. Congress has provided specific statutory exemptions for certain EPA actions taken under the Clean Water Act

(CWA)and all EPA actions taken under the Clean Air Act (CAA). Specifically, under CWA Section 511(c)(1), EPA is exempt from preparing EISs for all actions taken under the CWA except for issuance of NPDES permits under CWA Section 402 for “new sources” as defined in Section 306, and for Federal financial assistance provided for assisting construction of publicly owned treatment works under CWA Section 201 (33 U.S.C. 1371(c)). Under the Energy Supply and Environmental Coordination Act of 1974 (15 U.S.C. 793(c)(1)), all actions taken under the CAA are deemed not to be major federal actions significantly affecting the environment. Further, the courts have exempted certain EPA actions from the procedural requirements of NEPA through the functional equivalence doctrine. Under the functional equivalence doctrine, courts have found EPA to be exempt from the procedural requirements of NEPA for certain actions under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), the Safe Drinking Water Act (SDWA), and the Marine Protection, Research, and Sanctuaries Act (MPRSA). The courts reasoned that EPA actions under these statutes are functionally equivalent to the analysis required under NEPA because they are undertaken with full consideration of environmental impacts and opportunities for public involvement. *See, e.g., EDF* v. *EPA* , 489 F.2d 1247 (D.C. Cir. 1973) (FIFRA); *State of Alabama* v. *EPA* , 911 F. 2d 499 (11th Cir. 1990) (RCRA); *Warren County* v. *North Carolina* , 528 F. Supp. 276 (E.D. N.C. 1981) (TSCA); *Western Nebraska Resources Council* v. *U.S. EPA* , 943 F.2d 867 (8th Cir. 1991) (SDWA); *Maryland* v. *Train* , 415 F. Supp. 116 (D. Md. 1976) (MPRSA). Agency actions exempt from the requirements of NEPA would remain exempt under this proposed rule. If a question arises regarding the applicability of the NEPA requirements to certain proposed actions, the Responsible Official should consult with the NEPA Official and the Office of General Counsel. D. EPA's Voluntary NEPA Policy and Procedures In 1974, EPA Administrator Russell Train determined that the Agency could voluntarily prepare EISs for certain regulatory activities that were exempt from NEPA. In 1998, Administrator Carol Browner amended this policy to permit the preparation of non-EIS NEPA documents for certain EPA regulatory actions. The Agency's current “Notice of Policy and Procedures for Voluntary Preparation of National Environmental Policy Act

(NEPA)Documents” (see 63 FR 58045) sets out the policy and procedures EPA uses when preparing environmental review documents under the Voluntary NEPA Policy. This proposed rule does not make any changes to the voluntary NEPA policy and procedures. However, the proposed rule can serve as a framework for the preparation of voluntary NEPA documents. III. Purpose and Policy This proposed rule has two purposes. The first purpose is to update and revise EPA's procedures for implementing the procedural requirements of NEPA and the CEQ Regulations by restructuring and standardizing these regulations (see Section IV below). The revised NEPA procedures would continue to be consistent with the declaration of national environmental policy as stated in Title I, Section 101(a) of NEPA (42 U.S.C. 4331(a)). Under the proposed NEPA rule, EPA's environmental review process would continue to ensure that, when required, environmental information is available and taken into account before EPA makes a finding of no significant impact or signs a Record of Decision. The NEPA environmental review process would continue to include: identification of alternatives to the proposed action, description of the affected environment, and analyses of the environmental consequences. For proposed actions subject to NEPA, EPA would continue to prepare environmental impact statements

(EISs)for major federal actions significantly affecting the quality of the human environment. As part of its NEPA environmental review process, EPA also would continue to determine the applicability of other laws and executive orders early in the planning process and incorporate applicable requirements as early in the NEPA review process as possible. EPA's NEPA implementing regulations will be amended in consultation with the Council on Environmental Quality (see 40 CFR 1507.3(a)). The second purpose of today's proposed rule is to make minor, technical amendments to Subpart D, “Assessing the Environmental Effects Abroad of EPA Actions,” which contains the Agency's procedures for implementing Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions.” The scope of this portion of the proposed regulations is limited to these minor, technical changes. These minor, technical changes are described in the Preamble in Section IV.C. and include amendments to: Re-designate the subpart for EPA's procedures implementing Executive Order 12114; update office names and titles and the references to EPA's Voluntary NEPA Policy and NEPA implementing procedures; and correct cross-references and typographical errors. IV. Proposed Changes to the Regulations and Objectives of These Proposed Changes A. Proposed Revision to the Title for EPA's Regulations at Part 6 EPA proposes to retitle its regulations at Part 6 to clarify that the proposed rule includes two sets of Agency procedures: the Agency's procedures for implementing the National Environmental Policy Act; and the Agency's procedures for implementing Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions.” Both sets of implementing procedures are currently, and will remain, in Part 6. However, EPA believes the proposed amended title will clarify that the procedures implementing Executive Order 12114 are not based on NEPA authority and do not impose NEPA compliance requirements on EPA. B. Restructuring and Standardizing EPA's NEPA Implementing Regulations Restructuring and standardizing EPA's NEPA implementing procedures will clarify that the regulations apply to all proposed actions that are subject both to EPA's control and responsibility and NEPA, including actions not specifically addressed in the current regulations (e.g., certain grants awarded for special projects identified in the STAG account authorized through the Agency's annual Appropriations Act). The proposed revisions also take into account the environmental review exemptions to NEPA established by Congress and the courts. This proposed rule would restructure and amend EPA's NEPA implementing regulations in order to:

(1)Consolidate and standardize the procedural provisions and requirements of the Agency's environmental review process under NEPA;

(2)clarify the general procedures associated with categorical exclusions, consolidate the categories of actions subject to categorical exclusion, amend existing and add new categorical exclusions, and consolidate and amend existing and add new extraordinary circumstances;

(3)consolidate and amend the listing of actions that generally require an EIS;

(4)clarify the procedural requirements for consideration of applicable environmental review laws and executive orders; and

(5)incorporate other proposed revisions consistent with the CEQ Regulations. Preamble sections IV.B.1 through 5 summarize the objectives of these proposed changes. 1. Consolidate and Standardize the Procedural Provisions and Requirements of the Agency's Environmental Review Process Under NEPA Currently, as discussed in Section II above, EPA's NEPA implementing regulations apply, by subpart, to specific actions. The proposed regulations would consolidate the definitions and environmental review procedures in a single set of definitions and environmental review procedures applicable to all EPA proposed actions subject to NEPA. The proposed regulations also would consolidate the notification and public participation procedures that apply to all EPA proposed actions subject to NEPA. The proposed regulations no longer require a public meeting or hearing as part of the NEPA process. However, consistent with the CEQ Regulations (40 CFR 1506.6(c)), the Agency will hold meetings and/or hearings when appropriate or in accordance with statutory requirements. This does not diminish the Agency's commitment to NEPA's requirement for full public disclosure. The proposed regulations also state the conditions for notification of and consultation with state and local governments, and federally-recognized Indian tribes (tribes) and for public participation. 2. Clarify the General Procedures Associated With Categorical Exclusions; Consolidate the Categories of Actions Subject to Categorical Exclusion; Amend Existing and Add New Categorical Exclusions; and Consolidate and Amend Existing and Add New Extraordinary Circumstances Currently, EPA's NEPA implementing regulations include general and, by subpart, action-specific categorical exclusions and extraordinary circumstances. The proposed regulations would consolidate the categorical exclusions and extraordinary circumstances in a single location. Thus, the procedures for determining if a proposed action fits within a categorical exclusion or involves any extraordinary circumstances would be applicable to all EPA actions subject to NEPA. The proposed regulations also propose amending existing and adding new categories of actions for categorical exclusion as discussed in Section V below, Proposed Amended and New Categories of Actions Eligible for Categorical Exclusion; Amended and New Extraordinary Circumstances; and Amended Listing of Actions that Generally Require an Environmental Impact Statement. 3. Consolidate and Amend the Listing of Actions That Generally Require an Environmental Impact Statement Currently, some subparts of EPA's NEPA implementing regulations list proposed actions that generally require EISs, and one also lists proposed actions that generally require EAs. The proposed regulations would consolidate and amend the criteria for actions that generally require EISs. These criteria for actions that generally require EISs in the proposed regulations would be applicable to all EPA actions subject to NEPA. 4. Clarify the Procedural Requirements for Consideration of Applicable Environmental Review Laws and Executive Orders Currently, Subpart C of EPA's NEPA implementing regulations focuses on integrating the requirements of applicable environmental laws and executive orders with environmental review requirements independent of NEPA with the Agency's NEPA environmental review procedures. Subpart C also provides a brief outline of the provisions of certain environmental laws and executive orders and EPA implementing procedures, including but not limited to: The National Historic Preservation Act (16 U.S.C. 470 *et seq.* ); the Archaeological and Historic Preservation Act (16 U.S.C. 469 *et seq.* ); Executive Order 11593, “Protection and Enhancement of the Cultural Environment;” the Historic Sites Act (16 U.S.C. 461 *et seq.* ); Executive Order 11990, “Protection of Wetlands;” Executive Order 11988, “Floodplain Management;” the Farmland Protection Policy Act (7 U.S.C. 4201 *et seq.* ); the Coastal Zone Management Act (16 U.S.C. 1451 *et seq.* ); the Wild and Scenic Rivers Act (16 U.S.C. 1274 *et seq.* ); the Coastal Barrier Resources Act (16 U.S.C. 3501 *et seq.* ); the Fish and Wildlife Coordination Act (16 U.S.C. *et seq.* ); the Endangered Species Act (16 U.S.C. 1531 *et seq.* ); and air quality conformity pursuant to the Clean Air Act (42 U.S.C. 7476(c) and 42 U.S.C. 7616). Appendix A provides EPA's “Statement of Procedures on Floodplain Management and Wetlands Protection.” The proposed NEPA regulations would remove the outlines and Appendix A, and replace them with the general procedural requirement to determine, to the fullest extent possible, the applicability of other environmental laws and executive orders early in the planning process, and to incorporate applicable requirements as early in the NEPA review process as possible. This general procedural requirement would be applicable to all EPA actions subject to NEPA. This revision also would eliminate the need to amend the regulations whenever the laws and executive orders change. Moreover, today, the environmental review laws, regulations, and executive orders are available through the Internet (for example, many executive orders are linked through CEQ's Web site on NEPAnet at: *http://ceq.eh.doe.gov/nepa/regs/executiveorders.htm* ). Guidance documents have been issued by the responsible oversight agencies, CEQ, and EPA for many of these including those frequently addressed in a NEPA review. (For example, see: CEQ guidance documents available at: *http://ceq.eh.doe.gov/nepa/regs/guidance.html;* and EPA guidance such as “Guidance for Incorporating Environmental Justice Concerns in EPA's NEPA Compliance Analyses,” EPA, April 1998.) 5. Other Proposed Revisions Consistent With the CEQ Regulations *Consolidate and standardize the definitions in the existing regulations.* The proposed NEPA implementing regulations would consolidate and standardize the definitions in EPA's current NEPA regulations, as well as adding new definitions. Currently, EPA's NEPA implementing regulations apply, by subpart, to specific actions. The proposed regulations would consolidate the definitions in a single set of definitions applicable to all EPA actions subject to NEPA. For example, the proposed NEPA rule defines the term “action,” and replaces the terms “grantee,” “applicant” and “permit applicant” with the single defined term “applicant.” The current regulations define and list by title the specific EPA officials responsible for the various program and action-specific actions identified by subpart. In the proposed rule, the Responsible Official would be defined simply and without title as the EPA official responsible for compliance with NEPA for individual actions thereby precluding the need for technical change to the regulations whenever there is an Agency reorganization and/or change to the title of an organizational unit or management position. Generally, the Responsible Official is an Assistant Administrator or a Regional Administrator, and the NEPA Official is the EPA official responsible for overall review of EPA's NEPA compliance (currently the Director of the Office of Federal Activities within the Office of Enforcement and Compliance Assurance). *Delegation of responsibilities.* Currently, Subpart G of EPA's NEPA implementing regulations provides for delegation of responsibilities for carrying out the environmental review process by EPA's Office of Research and Development; other subparts are silent regarding delegation of responsibilities. In order to clarify and standardize the regulations, the proposed NEPA rule would standardize the delegation of responsibilities by stating that the NEPA-related responsibilities may be delegated to a level no lower than the Branch Chief or equivalent organizational level. *Clarify the general requirements for an environmental assessment.* Consistent with the CEQ Regulations at §§ 1501.3 and 1508.9, and considering the information contained in “The NEPA Task Force Report to the Council on Environmental Quality, Modernizing NEPA Implementation” (September 2003), the proposed NEPA regulations would include specific elements that generally must be addressed in an EA such as the need for the proposed action, the alternatives considered, description of the affected environment, and the environmental impacts of the proposed action and the alternatives. *Consolidate and standardize the procedures that apply to applicants.* Currently, EPA's NEPA implementing regulations include, by subpart, procedures applicable to certain grantees and new source NPDES permit applicants. These procedures require those grantees and permit applicants (together referred to as applicants) to submit information to the Responsible Official for use in EPA's environmental review process. The proposed NEPA regulations would consolidate and standardize these procedures in Subpart C, “Requirements for Environmental Information Documents and Third-Party Agreements.” These procedures would be applicable to all applicant-proposed actions subject to NEPA. Compliance with the proposed NEPA regulations would be the responsibility of the Responsible Official. The proposed NEPA regulations require the applicant to submit an environmental information document

(EID)unless the action is categorically excluded or the applicant prepares and submits a draft EA and supporting documents. As appropriate and according to the proposed procedures in Subpart C, the applicant would be able to submit information to the Responsible Official regarding the applicability of a categorical exclusion to the applicant's pending action. The Responsible Official would notify the applicant if the Responsible Official determines that the action is categorically excluded; if EPA needs additional information to support the application of a categorical exclusion; or if the submitted information does not support the application of a categorical exclusion and an EA or an EIS and supporting documents would be required for the project. The Responsible Official also would notify the applicant if an EID would not be required. Unless so notified or unless the applicant and Responsible Official implement a third-party agreement, the applicant, in consultation with the Responsible Official, would prepare an EID that is of sufficient scope to enable the Responsible Official to prepare an EA or, if necessary, an EIS. C. Proposed Amendments to EPA's Procedures for Implementing Executive Order 12114 Today's proposed rule also includes minor, technical amendments to the Agency's procedures for implementing Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions,” included in EPA's proposed regulations in Subpart D, “Assessing the Environmental Effects Abroad of EPA Actions.” These proposed amendments are described below. For this subpart, the scope of the proposal is limited to these minor, technical amendments and EPA is requesting comments only on these amendments. 1. Amendment to Re-Designate the Subpart for EPA's Procedures Implementing Executive Order 12114 Currently, EPA's procedures implementing Executive Order 12114 are in Part 6 at Subpart J. As part of the overall restructuring of Part 6, these procedures are proposed to be re-designated as Subpart D. The sections in this subpart are proposed to be re-numbered accordingly; § 6.1001 would become § 6.400, § 6.1002 would become § 6.401, § 6.1003 would become § 6.402, § 6.1004 would become § 6.403, § 6.1005 would become § 6.404, § 6.1006 would become § 6.405, and § 6.1007 would become § 6.406, respectively and in accordance with **Federal Register** numbering, in the proposed rule. 2. Amendments To Update Office Names and Titles In 1981 when Subpart J was included in Part 6, the Office of Environmental Review

(OER)housed the EPA official responsible for overall review of EPA's NEPA compliance as required by 40 CFR 1507.2(a). Today, this responsibility resides in the Office of Federal Activities (OFA). The proposed rule contains amendments to update this information. Likewise, the proposed rule also contains amendments to update other office names and titles. The following proposed office name and title amendments are identified according to the paragraph numbers in the proposed rule; *e.g.* , § 6.401(a)(5) in the proposed rule corresponds to § 6.1002(a)(5) in the current rule, § 6.403(b)(1) in the proposed rule corresponds to § 6.1004(b)(1) in the current rule, § 6.405 in the proposed rule corresponds to § 6.1006 in the current rule, and § 6.406 in the proposed rule corresponds to § 6.1007 in the current rule. In § 6.401(a)(5), “OER” would be amended to “OFA”. In § 6.403(b)(1), “The Assistant Administrator for Water and Waste Management” would be amended to “The Assistant Administrator for Water”. In § 6.405, “the Director, Office of Environmental Review (OER)” would be amended to “the Director, Office of Federal Activities (OFA)”; “Director Office of International Activities (OIA)” would be amended to “Assistant Administrator, Office of International Affairs (OIA)”; “Director, OER” would be amended to “Director, OFA”; and “Director, OIA” would be amended to “Assistant Administrator, OIA”. In § 6.406, paragraphs

(a)through (c), “OER” would be amended to “OFA”. 3. Amendment to Reference in the Executive Order 12114 Implementing Procedures to EPA's Voluntary NEPA Policy Currently, EPA's procedures for implementing Executive Order 12114 reference EPA's Voluntary EIS Policy dated October 21, 1974. The Agency revised this policy in 1998. For this reason and to clarify the applicability of these procedures to ocean dumping activities in the global commons under section 102(a) of the MPRSA, in § 6.403(b)(1), the sentences: “For ocean dumping site designations prescribed pursuant to section 102(c) of the MPRSA and 40 CFR part 228, EPA shall prepare an environmental impact statement consistent with the requirements of EPA's Procedures for the Voluntary Preparation of Environmental Impact Statements dated October 21, 1974 (see 30 FR 37419). Also EPA shall prepare an environmental impact statement for the establishment or revision of criteria under section 102(a) of MPRSA.” would be amended to: “For ocean dumping site designations prescribed pursuant to section 102(c) of the MPRSA and 40 CFR part 228, and for the establishment or revision of criteria under section 102(a) of the MPRSA, EPA shall prepare appropriate environmental documents consistent with EPA's Notice of Policy and Procedures for Voluntary Preparation of National Environmental Policy Act

(NEPA)Documents dated October 29, 1998 (see 63 FR 58045).” This proposed amendment is identified according to the paragraph number in the proposed rule; *e.g.* , § 6.403(b)(1) in the proposed rule corresponds to § 6.1004(b)(1) in the current rule. 4. Amendment to Reference in the Executive Order 12114 Implementing Procedures to EPA's NEPA Implementing Procedures Currently, EPA's procedures for implementing Executive Order 12114 reference § 6.506 of EPA's current NEPA implementing procedures. Because EPA proposes to restructure its NEPA implementing procedures, in § 6.403(d), “40 CFR 6.506 details” would be amended to “40 CFR part 6, subparts A through C, detail”. This proposed amendment is identified according to the paragraph number in the proposed rule; e.g., § 6.403(d) in the proposed rule corresponds to § 6.1004(d) in the current rule. 5. Amendments for Correction of Cross-References and Typographical Errors In § 6.400(a), “the Marine Protection Research and Sanctuaries Act” would be amended to “the Marine Protection, Research, and Sanctuaries Act”. In § 6.401(a), “of by EPA as set forth below:” would be amended to “of EPA as follows:”. In § 6.401(a)(5), “(see § 6.1007(c)).” would be amended to “(see § 6.406(c)).” In § 6.401, “(b) [Reserved].” would be added to meet the **Federal Register** requirement for a second paragraph in this section. In § 6.403(d), “or water quality agreements” would be amended to “of water quality agreements” in the sentence, “Where water quality impacts identified in a facility plan are the subject of water quality agreements with Canada or Mexico, nothing in these regulations shall impose on the facility planning process coordination and consultation requirements in addition to those required by such agreements.” These proposed amendments are identified according to the paragraph numbers in the proposed rule; e.g., § 6.400(a) in the proposed rule corresponds to § 6.1001(a) in the current rule, § 6.401(a) in the proposed rule corresponds to § 6.1002(a) in the current rule, § 6.401(a)(5) in the proposed rule corresponds to § 6.1002(a)(5) in the current rule, § 6.401 in the proposed rule corresponds to § 6.1002 in the current rule, and § 6.403(d) in the proposed rule corresponds to § 6.1004(d) in the current rule. V. Proposed Amended and New Categories of Actions Eligible for Categorical Exclusion; Amended and New Extraordinary Circumstances; and Amended Listing of Actions That Generally Require an Environmental Impact Statement The Environmental Protection Agency (EPA or Agency) is proposing amendments to its procedures for implementing the requirements of the National Environmental Policy Act of 1969 (NEPA). The proposed rule also includes minor, technical amendments to the Agency's procedures for implementing Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions.” Pursuant to CEQ's Regulations that are applicable to all Federal agencies for implementing the procedural provisions of NEPA, Federal agencies must, to the fullest extent possible, reduce paperwork and accumulation of extraneous background data and emphasize real environmental issues and alternatives. (40 CFR 1500.2(b)) CEQ's Regulations (40 CFR 1507.3(b)(2)(ii)) provide that agencies are to adopt their own implementing procedures to supplement CEQ's NEPA implementing procedures, including specific criteria for and identification of classes of action which normally do not require either an environmental impact statement or an environmental assessment (e.g., categorical exclusions (see 40 CFR 1508.4)). As part of the amendments to its NEPA implementing regulations, the Agency is proposing to amend existing and add new categories of actions eligible for categorical exclusion. Consistent with the CEQ Regulations at § 1508.4, the proposed rule would define “categorical exclusion” to mean “a category of actions that does not individually or cumulatively have a significant effect on the human environment * * *” and have been found by EPA to have no such effect. The proposed rule would require that to find that a proposed action is categorically excluded, EPA's Responsible Official must determine that the proposed action fits within a categorical exclusion listed in the proposed regulations, and the proposed action does not involve any extraordinary circumstances. Some of EPA's proposed new categorical exclusions are essentially the same as categorical exclusions of other Federal agencies; others are more specific to EPA. Consistent with the CEQ Regulations at § 1508.4, the proposed rule would define “extraordinary circumstances” to mean “those circumstances * * * that may cause a significant environmental effect such that an action that otherwise meets the requirements of a categorical exclusion may not be categorically excluded.” Like its current NEPA implementing regulations, EPA's proposed rule includes a list of extraordinary circumstances. Some are generally the same as those in its current NEPA implementing regulations, some are new, and some are proposed amendments based on current extraordinary circumstances, the criteria for actions that generally require environmental impact statements (EISs), and NEPA's policy direction to emphasize real environmental issues and alternatives. The extraordinary circumstances would be consolidated in the proposed rule. As required by CEQ's Regulations, the proposed rule also includes a consolidated listing of actions that generally require an EIS (see 40 CFR 1507.3(b)(2)(i)). The proposed amendments to EPA's NEPA implementing regulations include:

(1)Consolidating and standardizing the procedural provisions and requirements of the Agency's environmental review process under NEPA;

(2)clarifying the general procedures associated with categorical exclusions, consolidating the categories of actions subject to categorical exclusion, amending existing and adding new categorical exclusions, and consolidating and amending existing and adding new extraordinary circumstances;

(3)consolidating and amending the listing of actions that generally require environmental impact statements;

(4)clarifying the procedural requirements for consideration of applicable environmental review laws and executive orders; and

(5)incorporating other proposed revisions consistent with CEQ's Regulations. The general reasons for the amended and new categorical exclusions, extraordinary circumstances, and criteria for actions that generally require an EIS are as follows:

(1)Consolidation and standardization of the procedural provisions and requirements of the Agency's environmental review process under NEPA The proposed regulations would consolidate and standardize the environmental review process applicable to all EPA actions subject to NEPA, including those actions now specifically addressed in the current regulations and other actions subject to NEPA but not specifically addressed in the current regulations (e.g., certain grants awarded for special projects identified in the State and Tribal Assistance Grants

(STAG)account authorized by Congress through the Agency's annual Appropriations Act).

(2)Clarify the general procedures associated with categorical exclusions, consolidate the categories of actions subject to categorical exclusion, amend existing and add new categorical exclusions, and consolidate and amend existing and add new extraordinary circumstances Currently, EPA's NEPA implementing regulations include general and, by subpart, program-specific categorical exclusions and extraordinary circumstances. The proposed regulations would consolidate the categorical exclusions and extraordinary circumstances in a single location. Thus, the procedures for determining if a proposed action fits within a categorical exclusion or involves any extraordinary circumstances would be the same for all EPA actions subject to NEPA.

(3)Consolidate and amend the listing of actions that generally require an environmental impact statement Currently, some subparts of EPA's NEPA implementing regulations list actions that generally require EISs, and one also lists specific actions that generally require EAs. The proposed regulations would consolidate and amend the criteria for actions that generally require EISs. These criteria for actions that generally require EISs in the proposed regulations would be applicable to all EPA actions subject to NEPA. EPA's NEPA regulations apply to the actions and decisions of EPA that are subject to NEPA's procedural requirements in order to ensure that environmental information is available to the Agency's decision-makers and the public before decisions are made and before actions are taken. This includes actions such as the award of wastewater treatment construction grants under Title II of the Clean Water Act, EPA's issuance of new source National Pollutant Discharge Elimination System (NPDES) permits, certain research and development projects, EPA actions involving renovations at or new construction of EPA facilities, and certain grants awarded for special projects identified in the STAG account authorized by Congress through the Agency's annual Appropriations Act. EPA actions subject to NEPA that are based on applicant proposals may include any of these except EPA actions for construction of special purpose facilities or facility renovations. As with EPA's current NEPA implementing regulations, compliance with the proposed NEPA regulations would be the responsibility of EPA's Responsible Officials and certain grant or permit applicants who must submit environmental information documentation to EPA for their proposed projects. Currently, EPA's NEPA implementing regulations apply, by subpart, to specific actions. For example, Subpart E applies to the award of wastewater treatment construction grants under Title II of the Clean Water Act, and Subpart F applies to EPA's environmental review process for issuance of new source NPDES permits. The proposed regulations would consolidate and standardize the environmental review process applicable to all EPA actions subject to NEPA, including those actions now specifically addressed in the current regulations and other actions subject to NEPA but not specifically addressed in the current regulations (e.g., certain grants awarded for special projects identified in the STAG account.) As with EPA's current regulations, the proposed regulations would supplement and be used in conjunction with the CEQ Regulations. Certain EPA actions are exempt from the procedural requirements of NEPA and would remain exempt under the proposed rule. EPA is proposing to consolidate and standardize the environmental review process applicable to all EPA actions subject to NEPA. As part of this process, EPA is consolidating the categories of actions eligible for categorical exclusion, and amending existing and adding new categorical exclusions. CEQ's Regulations state that Federal agencies must implement NEPA procedures, in part, “to reduce paperwork and the accumulation of extraneous background data; and to emphasize real environmental issues and alternatives.” (40 CFR 1500.2(b)) EPA believes that the proposed amended and identification of new categorical exclusions meets the intent of this NEPA policy as paperwork is reduced or eliminated for EPA's Responsible Officials and applicants. Likewise, EPA's attention will be focused on proposed actions with real environmental issues and the associated analysis of alternatives, including mitigation measures, that will eliminate or reduce the project's environmental impacts. The NEPA Task Force Report to the Council on Environmental Quality notes that federal agency administrative records prepared to support categorical exclusions may include documentation of: Professional staff and expert opinions; research study results; past NEPA action records; and similar categorical exclusion actions by other agencies. [“Modernizing NEPA Implementation, Chapter 5, Categorical Exclusions,” The NEPA Task Force Report to the Council on Environmental Quality, September 2003] *Categorical Exclusions.* EPA's proposed rule identifies 15 categories of action eligible for categorical exclusion included in two listings. The first five proposed categorical exclusions, listed in the proposed rule at § 6.204(a)(1)(i) through (v), are more likely to involve extraordinary circumstances and require the EPA Responsible Official to document a determination that a categorical exclusion applies. It is also EPA's opinion that these actions generally do not pose the potential for environmental impacts, and that confirmation there are no extraordinary circumstances would satisfy a determination that the use of a CE is appropriate. The first three of these are substantially the same as, or similar to, categorical exclusions in EPA's current NEPA implementing regulations with amendments to clarify their applicability to all EPA actions subject to NEPA and to clarify the intended applicability of the categorical exclusion. Proposed categorical exclusion

(i)is similar to other Federal agencies' categorical exclusions (in general terms, minor rehabilitation). Proposed categorical exclusions

(ii)and

(iii)are specific to EPA and are similar to current EPA categorical exclusions; they have been documented as proposed categorical exclusions through past NEPA action records. Categorical exclusion

(iv)is a proposed new categorical exclusion based on EPA's past NEPA action records. Categorical exclusion

(v)is a proposed new categorical exclusion based on EPA's view that these actions for award of funds are not likely to have the potential for environmental impacts because the project for which the grant is being awarded was completed prior to the date the appropriation was enacted. However, EPA has discretion to award these grants, so they should be screened to determine whether there may be extraordinary circumstances associated with the completed project that should be addressed by conducting a NEPA review (e.g., avoidance or mitigation of potential impacts). It is EPA's view that the next 10 listed categorical exclusions are generally administrative in nature, do not generally involve extraordinary circumstances and do not require the EPA Responsible Official to document a determination that a categorical exclusion applies (see proposed rule, § 6.204(a)(2)(i) through (x)). One of these proposed categorical exclusions is substantially the same as one in EPA's current Part 6 rule. The other 9 are proposed new categorical exclusions, one of which incorporates three of the categorical exclusions in EPA's current NEPA implementing regulations. These proposed new categorical exclusions are generally for actions involving administrative procedures of the Agency. Most are similar to other Federal agencies' categorical exclusions, and some are also based on EPA's view that they are administrative in nature and generally do not involve extraordinary circumstances. In any case, even for these categorical exclusions, the Responsible Official would be required to ensure that none of the extraordinary circumstances applies to the action. EPA's “Supporting Statement for Amended and New Categorical Exclusions, Extraordinary Circumstances, and Criteria for Actions that Generally Require EISs under 40 CFR Part 6: ‘Procedures for Implementing the National Environmental Policy Act and Assessing the Environmental Effects Abroad of EPA Actions’ ” is available in the docket for this proposed rulemaking at www.regulations.gov and provides specific reasons for the proposed amended and new categorical exclusions included in EPA's proposed rule. EPA's documentation includes: references to EPA projects documented with environmental assessments and findings of no significant impact; reference to other Federal agencies with similar provisions for categorical exclusions; and statements of EPA's opinion. *Extraordinary Circumstances.* EPA's proposed rule identifies 10 extraordinary circumstances in the proposed rule at § 6.204(b)(1) through (10). Four of the proposed extraordinary circumstances are substantially the same as the eight in EPA's current regulations, and one of the proposed new extraordinary circumstances combines the elements of two in the current regulations. This proposed rule updates and amends the current extraordinary circumstances to clarify the conditions for their applicability, and consolidates all of the extraordinary circumstances into a single listing that would be applicable to all EPA actions subject to NEPA. EPA is also proposing six new extraordinary circumstances based on NEPA's policy direction to emphasize real environmental issues and alternatives and on consideration of EPA's proposed criteria for actions that generally require an EIS. EPA believes there is a relationship between the extraordinary circumstances and the criteria for actions that generally require EISs. EPA notes, however, that extraordinary circumstances are used to help the Responsible Official determine whether, or not, a categorical exclusion applies to the proposed action, and that the criteria for actions that generally require an EIS are criteria that generally, but not always, require an EIS. EPA's “Supporting Statement for Amended and New Categorical Exclusions, Extraordinary Circumstances, and Criteria for Actions that Generally Require EISs under 40 CFR Part 6: ‘Procedures for Implementing the National Environmental Policy Act and Assessing the Environmental Effects Abroad of EPA Actions’ ” is available in the docket for this proposed rulemaking at www.regulations.gov and provides specific reasons for the amended and new extraordinary circumstances included in the proposed rule. In summary, the intent is to standardize the essential concepts and combine the variously stated criteria into a consolidated set of extraordinary circumstances applicable to all EPA actions subject to NEPA. The proposed extraordinary circumstances are not intended to be a listing of requirements for preparing EISs. Rather, they are to be used to determine whether a categorical exclusion applies to the action. If not, the EPA Responsible Official may prepare an environmental assessment to determine whether a finding of no significant impact, or an EIS, is the appropriate NEPA document for the project, or the Responsible Official proceeds directly with preparing an EIS. *Criteria for Actions that Generally Require EISs.* EPA's proposed rule identifies 11 criteria for actions that generally require an EIS. These proposed criteria are substantially the same as, or similar to, 16 of the 17 criteria in EPA's current NEPA implementing regulations. The criterion in EPA's current rule at § 6.509(b), ‘the project is highly controversial,’ is not included in the proposed criteria for actions that generally require EISs because EPA believes that the potential environmental impacts of such a project may not necessarily rise to the level of significance such that an EIS is generally required; e.g., an environmental assessment with provisions for mitigation could be the appropriate level of environmental review for the action. Further, as stated in the current rule, there is no direct tie to environmental impacts. Rather, EPA's proposed rule includes an extraordinary circumstance at § 6.204(b)(8) that addresses this concept, including the potential for environmental impact. EPA's “Supporting Statement for Amended and New Categorical Exclusions, Extraordinary Circumstances, and Criteria for Actions that Generally Require EISs under 40 CFR Part 6: ‘Procedures for Implementing the National Environmental Policy Act and Assessing the Environmental Effects Abroad of EPA Actions’ ” is available in the docket for this proposed rulemaking at *www.regulations.gov* and provides specific reasons for the amended criteria for actions that generally require EISs included in the proposed rule. In summary, the intent is to standardize the essential concepts and combine the variously stated criteria into a consolidated set of criteria for actions that generally require EISs that are applicable to all EPA actions subject to NEPA. The proposed criteria are not intended to be a listing of requirements for preparing EISs in all cases. This is because not all actions examined under the criteria rise to the level of significance such that EISs are required (e.g., an environmental assessment with provisions for mitigation could be the appropriate level of environmental review for an action). In keeping with the public comment process for this proposed rulemaking, EPA is interested in the public's comments on these proposed amended and new categorical exclusions, extraordinary circumstances, and criteria for actions that generally require an EIS. VI. Administrative Requirements 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.” 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. In addition, EPA prepared an analysis of the potential costs and benefits associated with this action. A copy of the analysis is available in the docket for this action and the analysis is briefly summarized here. The total annual public reporting and recordkeeping burden for this collection of information is estimated at 48,147 hours and $3,823,740 for contractor hours and costs, direct labor hours and costs, and O&M costs. This burden reflects the annual preparation of documentation for an anticipated 312 applicant-proposed projects that may be documented with a CE, or an EA/FONSI, or an EIS/ROD. Under the proposed rule, EPA assumes there will be approximately 300 grantee projects annually with about 60% of these projects documented with a CE, and about 40% with an EA/FONSI. In addition, EPA estimates that one project will have an EIS/ROD completed during the 3-year period of this ICR. For permit applicants, EPA assumes there will be approximately 12 projects annually with about 11 documented with an EA/FONSI. In addition, EPA estimates one project will have an EIS/ROD completed annually. None will be documented initially with a CE. Over a 3-year period, EPA anticipates 937 applicant-proposed projects with a 3-year total burden estimate of 144,440 hours and $11,471,220. Under the current rule, the individual cost for each type of documentation is the same. However, EPA estimates that 50% of grantee projects are documented with a CE, and 50% are documented with an EA/FONSI. Approximately one project will have an EIS/ROD completed per three-year period, and project estimates for permit applicants are approximately the same (11 projects documented with an EA/FONSI; 1 project documented with an EIS/ROD). The total burden of the current rule is 54,497 hours and $4,275,180. The proposed rule would decrease the number of hours spent on documentation by 6,350 hours, and would have an annual yearly savings of $451,440. Over a three-year period, the proposed rule would decrease burden by 19,050 hours and $1,354,320. 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. B. Paperwork Reduction Act The information collection requirements of this proposed rule have been submitted for approval to the Office of Management and Budget

(OMB)under the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* The Information Collection Request

(ICR)document prepared by EPA has been assigned EPA ICR number 2243.02. The Environmental Protection Agency (EPA or Agency) is proposing to amend its procedures for implementing the requirements of the National Environmental Policy Act of 1969 (NEPA). Today's proposed rule also includes minor, technical amendments to the Agency's procedures for implementing Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions.” EPA is collecting information from certain applicants as part of the process of complying with either NEPA or Executive Order 12114. EPA's Executive Order 12114 procedures further the purpose of NEPA and provide that EPA may be guided by these procedures to the extent they are applicable. Therefore, when EPA conducts an environmental assessment pursuant to its Executive Order 12114 procedures, the Agency generally follows its NEPA procedures. For this ICR, applicant-proposed projects subject to either NEPA or Executive Order 12114 (and that are not addressed in other EPA programs' ICRs), are addressed through the NEPA assessment process. Those subject to the proposed rule include EPA employees who must comply with NEPA and certain grant and permit applicants who must submit environmental information to EPA for their proposed projects. The EPA Responsible Official is responsible for the environmental review process, including any categorical exclusion determination or the scope, accuracy, and contents of a final environmental assessment

(EA)or environmental impact statement

(EIS)and any associated documents. The applicant contributes by submitting environmental information to EPA as part of the environmental review process. The information collected from grant or permit applicants is one-time only on a per-project basis for EPA actions subject to NEPA that are based on applicant proposals. Grantees (primarily grants for special projects identified in EPA's State and Tribal Assistance Grants

(STAG)account) or permit applicants (for new source NPDES permits issued by EPA) are required to provide environmental information to EPA as part of the environmental review process unless the EPA Responsible Official decides to prepare the NEPA documents without assistance from the applicant. If the applicant cannot afford to provide the required environmental information to EPA, then EPA would undertake the environmental review without input from the applicant. Further, grantees may be grant-eligible for certain costs associated with providing environmental information to EPA; permit applicants are not eligible for EPA financial assistance. The NEPA review for a project may result in a categorical exclusion (CE), or an EA documented with a finding of no significant impact (EA/FONSI), or an EIS documented with a record of decision (EIS/ROD). (EPA assumes a project may be documented with a CE only for grantee-proposed projects. EPA does not anticipate that an initial new source NPDES permit application would be documented with a CE.) For any specific project, only one of these levels of documentation is generally prepared. Applicants may submit an environmental information document

(1)Information to support application of a CE with environmental information prepared directly by the applicant's contractor; or

(2)a draft EA and supporting documents prepared directly by the applicant's contractor; or

(3)a draft and final EIS and supporting documents prepared by the applicant's contractor under a third-party contract agreement with EPA. Based on EPA's past experience, under the proposed rule, EPA anticipates there will be approximately 300 grantee projects annually with about 60% of these projects documented with a CE, and about 40% with an EA/FONSI. In addition, EPA estimates that one project (less than one percent of the total annual grantee projects) will have an EIS/ROD completed during the 3-year period of this ICR. For permit applicants, EPA assumes there will be approximately 12 projects annually with about 11 of the projects documented with an EA/FONSI. In addition, EPA estimates one project will have an EIS/ ROD completed annually. None will be documented initially with a CE. EPA estimated the one-time costs for applicants to prepare the environmental documentation by including contractor hours and costs, direct labor hours and costs, and O&M for documentation submitted to EPA to support a CE determination, or an EA/FONSI, or an EIS/ROD. For a grantee, EPA estimates an applicant's one-time costs for submitting environmental information will be: 45 hours and $3,292 for CE documentation, or 260 hours and $18,340 for EA/FONSI documentation, or 2,840 hours and $324,480 for EIS/ROD documentation. For a permit applicant, EPA estimates an applicant's one-time costs for submitting environmental information will be: 460 hours and $53,940 for EA/FONSI documentation, or 2,840 hours and $328,880 for EIS/ROD documentation. These figures may vary depending on the complexity of issues associated with the project and the availability of relevant information, particularly for EISs. (For example, EPA's experience with a limited number of EISs has included one-time costs ranging from nominal for information submitted by letter to supplement an existing oil and gas extraction EIS to over a million dollars for new EISs for a mining project and an oil and gas extraction project with multiple complex issues.) EPA believes the calculations for this ICR are representative of most projects. For purposes of this ICR, the total annual public reporting and recordkeeping burden for this collection of information is estimated at 48,147 hours and $3,823,740 for contractor hours and costs, direct labor hours and costs, and O&M costs. This burden reflects the annual submission of documentation for an anticipated 312 applicant-proposed projects that may be documented with a CE, or an EA/FONSI, or an EIS/ROD. Under the proposed rule, EPA assumes there will be approximately 300 grantee projects annually with about 60% of these projects documented with a CE, and about 40% with an EA/FONSI. In addition, EPA estimates that one project will have an EIS/ROD completed during the 3-year period of this ICR. For permit applicants, EPA assumes there will be approximately 12 projects annually with about 11 documented with an EA/FONSI. In addition, EPA estimates one project will have an EIS/ROD completed annually. None will be documented initially with a CE. The total burden estimate for this ICR reduces the burden of the previous collection by 6,350 hours and $451,440 (the previous collection estimated that there were approximately 300 grantee projects annually with about 50% of these projects documented with a CE and about 50% documented with an EA/FONSI. Approximately one project completed an EIS/ROD during the 3-year period of the ICR). Over the 3-year period of this ICR, EPA anticipates 937 applicant-proposed projects with a 3-year total burden estimate of 144,440 hours and $11,471,220. For the 3-year period of this ICR, the proposed rule would reduce the total burden by 19,050 hours and $1,354,320. 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. To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, EPA has established a public docket for this proposed rule, which includes this ICR, under Docket ID number EPA-HQ-OECA-2005-0062. Submit any comments related to the ICR for this proposed rule to EPA and OMB. See ADDRESSEES section of the beginning of this notice for where to submit comments to EPA. Send comments to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after December 19, 2006, a comment to OMB is best assured of having its full effect if OMB receives it by January 18, 2007. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal. C . Regulatory Flexibility Act

(RFA)The Regulatory Flexibility Act

(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the proposed 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 proposed rule 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 small 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 today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. We are proposing amendments to the Agency's procedures for implementing the requirements of the National Environmental Policy Act of 1969 (NEPA). This proposed rule also includes minor, technical amendments to the Agency's procedures for implementing Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions.” Certain applicants must submit environmental information to EPA as part of the process of complying with either NEPA or Executive Order 12114. EPA's Executive Order 12114 procedures further the purpose of NEPA and provide that EPA may be guided by these procedures to the extent they are applicable. Therefore, when EPA conducts an environmental assessment pursuant to its Executive Order 12114 procedures, the Agency generally follows its NEPA procedures. This proposed rule is applicable to certain EPA actions subject to NEPA, including certain applicant-proposed projects. Because the projects are proposed by the applicants, who are non-federal entities, including small businesses and small governments, EPA does not know what projects will be proposed, when they will be proposed, or what level of NEPA review will be required for each individual project. In this regard, EPA's NEPA review process is reactive to an applicant's request. These factors are built into this screening assessment, including assumptions about the entities likely to be subject to the regulations, the types of projects they are likely to propose, and the degree of possible economic impact based on the NEPA review process and the three levels of environmental documentation possible under this process using available historical information as future indicators. More detailed information on the small entity screening analysis can be found in the docket for this proposed rulemaking, EPA-HQ-OECA-2005-0062 (available at *http://www.regulations.gov* ), and is summarized below. Based on EPA's past experience, EPA anticipates that annually there will be approximately 170 small governments applying to EPA for STAG grants for projects subject to NEPA, and four small businesses applying to EPA for new source NPDES permits for a total of approximately 174 small entities out of potential 312 total entities. Of the 174 small entities possibly affected by this proposed rule, we have determined that the economic impact of submitting one-time environmental documentation to support a CE determination would be less than 1% of annual revenues for all small entities; and that for the one-time costs associated with submitting EA-related environmental documentation six small entities (3.4%) could experience an economic impact of 1-3%, and up to four small entities (2%) could experience an economic impact of greater than 3%. Additionally, we have also determined that approximately 57 of the 174 small entities (33%) could experience an economic impact of 1-3%, and up to 26 of the 174 small entities (15%) could experience an economic impact of greater than 3% for the one-time costs associated with submitting EIS-related environmental documentation. In all, these approximately 83 small entities represent about 48% of the estimated 174 total number of small entities that could experience a one-time economic impact of 1-3% or greater of annual revenues. Of these 83 small entities, 79 are likely to be governmental grant applicants and could be grant-eligible for EPA financial assistance with only one EIS anticipated per three years with this likelihood spread over 300 total grant applicants, including small and large governments, including tribes, and special districts. Although this proposed rule will not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of this proposed rule on small entities. The environmental information submitted by an applicant under the proposed rule is one-time only for EPA actions subject to NEPA based on applicant proposals; i.e., actions proposed by grantees seeking funding assistance from EPA or for an NPDES permit application initiated by the permit applicant. In either case, EPA assumes the action will directly benefit the applicant (such as a grantee seeking STAG funding for renovation of a community drinking water system, or a permit applicant seeking an NPDES permit from EPA to further the applicant's business interests). Nonetheless, if the applicant cannot afford to provide the required environmental information to EPA, then EPA would undertake the environmental review without input from the applicant. (Applicants would normally be requested to demonstrate financial hardship, including inability to provide the requested environmental information.) Grantees may be grant-eligible for certain costs associated with providing environmental information to EPA; permit applicants are not eligible for EPA financial assistance. Further, EPA has attempted to reduce the cost on all entities, including small entities, through the following provisions of the proposed rule: Section 6.300 provides that an EID is not required when the action is categorically excluded, or the applicant will prepare a draft EA and supporting documents. The Responsible Official may prepare the NEPA documents without assistance from the applicant. Section 6.302 provides that the Responsible Official may prepare generic guidance for categories of actions involving a large number of applicants; and must ensure early involvement of applicants, consult with the applicant and provide guidance describing the scope and level of environmental information required, and provide guidance on a project-by-project basis to any applicant seeking assistance. This Section also provides that the Responsible Official must consider the extent to which the applicant is capable of providing the required information, must not require the applicant to gather data or perform analyses that unnecessarily duplicate either existing data or the results of existing analyses available to EPA, and must limit the request for environmental information to that necessary for the environmental review. Section 6.303 provides that an applicant may enter into a third-party agreement with EPA. For grantees, third-party agreement contractor costs may be grant-eligible. Permit applicants are not eligible for EPA financial assistance. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 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 one 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. EPA has determined that this proposed rule 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 one year. EPA is proposing to amend its procedures for implementing the requirements of the National Environmental Policy Act of 1969 (NEPA). Today's proposed rule also includes minor, technical amendments to the Agency's procedures for implementing Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions.” EPA is collecting information from certain applicants as part of the process of complying with either NEPA or Executive Order 12114. EPA's Executive Order 12114 procedures further the purpose of NEPA and provide that EPA may be guided by these procedures to the extent they are applicable. Therefore, when EPA conducts an environmental assessment pursuant to its Executive Order 12114 procedures, the Agency generally follows its NEPA procedures. For purposes of UMRA, applicant-proposed projects subject to either NEPA or Executive Order 12114 are addressed through the NEPA assessment process. Those subject to the proposed NEPA rule include EPA employees who must comply with NEPA and certain grant and permit applicants who must submit environmental information to EPA for their proposed projects. The EPA Responsible Official is responsible for the environmental review process, including any categorical exclusion

(CE)determination or the scope, accuracy, and contents of a final environmental assessment

(EA)or environmental impact statement

(EIS)and any associated documents. The applicant contributes by submitting environmental information to EPA as part of the environmental review process. The information submitted by grant or permit applicants is one-time only on a per-project basis for EPA actions subject to NEPA that are based on applicant proposals. Grantees are generally governmental jurisdictions, including State and local governments, and tribes applying to EPA for special projects identified in EPA's State and Tribal Assistance Grants (STAG account) or private sector applicants for new source NPDES permits issued by EPA. Applicants are required to provide environmental information to EPA as part of the environmental review process unless the EPA Responsible Official decides to prepare the NEPA documents without assistance from the applicant. If the applicant, including governmental grantees, cannot afford to provide the required environmental information to EPA, then EPA would undertake the environmental review without input from the applicant. Further, governmental grantees may be grant-eligible for certain costs associated with providing environmental information to EPA. The NEPA review for a project may result in a CE determination, or an EA documented with a finding of no significant impact (EA/FONSI), or an EIS documented with a record of decision (EIS/ROD). For any specific project, only one of these levels of documentation is generally prepared. Applicants may submit an environmental information document

(EID)to EPA as part of the environmental review process. Alternately, an applicant may submit a draft EA or a draft EIS and supporting documents. Applicants may prepare and submit the information directly, or may enter a third-party contract agreement with EPA for preparation of an EA or EIS and supporting documentation. Governmental grantees may be grant-eligible for certain costs associated with providing environmental information to EPA, including certain third-party contract costs; private sector permit applicants are not eligible for EPA financial assistance. For purposes of maximum cost estimates to applicants for UMRA purposes, EPA assumed that applicants would expend time and contractor costs to submit:

(1)Information to support application of a CE with environmental information prepared directly by the applicant's contractor; or

(2)a draft EA and supporting documents prepared directly by the applicant's contractor; or

(3)a draft and final EIS and supporting documents prepared by the applicant's contractor under a third-party contract agreement with EPA. Based on EPA's past experience, under the proposed rule, EPA anticipates there will be approximately 300 grantee projects annually with about 60% of these projects documented with a CE, and about 40% with an EA/FONSI. In addition, EPA estimates that one project (less than one percent of the total annual grantee projects) will have an EIS/ROD completed during a 3-year period. For permit applicants, EPA assumes there will be approximately 12 projects annually with about 11 of the projects documented with an EA/FONSI. In addition, EPA estimates one project will have an EIS/ROD completed annually. None of the projects will be documented initially with a CE. EPA estimated one-time costs for applicants to prepare the environmental documentation by including contractor hours and costs, direct labor hours and costs, and O&M for documentation submitted to EPA to support a CE determination, or an EA/FONSI, or an EIS/ROD. For a grantee, EPA estimates an applicant's one-time costs for submitting environmental information will be: $3,292 for CE documentation, or $18,340 for EA/FONSI documentation, or $324,480 for EIS/ROD documentation. For a permit applicant, EPA estimates an applicant's one-time costs for submitting environmental information will be: $53,940 for EA/FONSI documentation, or $328,880 for EIS/ROD documentation. These figures may vary depending on the complexity of issues associated with the project and the availability of relevant information, particularly for EISs. (For example, EPA's experience with a limited number of EISs has included one-time costs ranging from nominal for information submitted by letter to supplement an existing oil and gas extraction EIS to over a million dollars for new EISs for a mining project and an oil and gas extraction project with multiple complex issues.) EPA believes the calculation for this UMRA assessment is representative of most projects. On an annual one-time submission basis, EPA's aggregate estimate for applicants is $3,823,740 for contractor hours and costs, direct labor hours and costs, including third-year costs for an EIS/ROD for one grantee project. The requirement in today's proposed rule for applicants to submit one-time, project-specific environmental information does not impose substantial compliance costs on applicants, including governmental grantees, because it is not likely to result in the expenditure by applicants, including State and local governments, and tribes, in the aggregate, or the private sector, of $100 million or more in any one year. Thus, today's proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (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.” Neither the proposed amendments to EPA's NEPA implementing regulations nor the minor, technical amendments to EPA's procedures implementing Executive Order 12114 have federalism implications. They 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. The proposed NEPA regulations do not impose new regulatory obligations on the States. Under EPA's current NEPA regulations, as well as the proposed rule, State and local governments are required to submit environmental information only when the State or local government is a project-applicant for an EPA action subject to NEPA, for example, when the State or local government applies for a grant for a special project identified in EPA's State and Tribal Assistance

(STAG)account, or for a new source NPDES permit issued by EPA. The requirement to submit environmental information to EPA for the NEPA review does not impose substantial compliance costs because it is not likely to result in the expenditure by State and local governments in the aggregate of $100 million or more in any one year. Further, this requirement does not preempt State law. The proposed minor, technical amendments to EPA's procedures for implementing Executive Order 12114 do not impose new regulatory obligations on the States or alter the current relationship between the States and the Federal government. Under EPA's current Executive Order 12114 regulations, as well as the proposed amendments, States are required to submit environmental information only when the State is a project-applicant for an EPA action subject to Executive Order 12114. The requirement to submit environmental information to EPA for the Executive Order 12114 review does not impose substantial compliance costs because it is not likely to result in the expenditure by State and local governments in the aggregate of $100 million or more in any one year. Further, this requirement does not preempt State law. Thus, Executive Order 13132 does not apply to this proposed rule. Although this proposed rule does not have federalism implications, as with EPA's current rule, some parts of the proposed NEPA regulations might require EPA to involve the States in the NEPA environmental review process. For example, § 6.202 encourages early coordination and cooperation with federal agencies, state and local governments, and tribes with jurisdiction by law or special expertise. Section 6.203 requires the Responsible Official to ensure meaningful public participation. EPA anticipates that State and local governments would participate in the public participation process. Section 6.204 of the proposed NEPA regulations lists extraordinary circumstances that would bar the Responsible Official from determining that a categorical exclusion applies to the action. The Responsible Official may ask the relevant State for assistance in determining whether the proposed action meets these criteria. 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 proposed rule from State and local officials. F. Executive Order 13175: Consultation and 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. Neither the proposed amendments to EPA's NEPA implementing regulations nor the minor, technical amendments to EPA's procedures implementing Executive Order 12114 impose new regulatory obligations on tribes. They will not have substantial direct effects on tribes, on the relationship between the national government and tribes, or on the distribution of power and responsibilities between the national government and tribes. Under EPA's current regulations, as well as the proposed rule, Tribes are required to submit environmental information only when the Tribes are project-applicants for EPA actions subject to NEPA or Executive Order 12114, for example, when Tribes apply for grants for special projects identified in EPA's State and Tribal Assistance

(STAG)account, or for new source NPDES permits issued by EPA. The requirement to submit environmental information to EPA for the environmental review process do not impose substantial compliance costs because it is not likely to result in the expenditure by state, local, and tribal governments in the aggregate of $100 million or more in any one year. Further, these requirements do not preempt tribal law. Thus, Executive Order 13175 does not apply to this proposed rule. Although this proposed rule does not have Executive Order 13175 implications, as with EPA's current rule, some parts of the proposed NEPA regulations might require EPA to involve tribes in the environmental review process. For example, § 6.202 encourages early coordination and cooperation with federal agencies, state and local governments, and tribes with jurisdiction by law or special expertise. Section 6.203 requires the Responsible Official to ensure meaningful public participation. EPA anticipates that tribes would participate in the public participation process as appropriate. Section 6.204 of the proposed NEPA regulations lists extraordinary circumstances that would bar the Responsible Official from determining that a categorical exclusion applies to the action. The Responsible Official may ask the relevant tribe for assistance in determining whether the proposed action meets these criteria. 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 Executive Order 13045, “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. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This proposed rule, including the proposed amendments to EPA's NEPA implementing procedures and the proposed minor, technical amendments to the Agency's procedures for implementing Executive Order 12114, is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution and Use This proposed rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations 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. Today's proposed rule includes EPA's proposed amendments to its procedures for implementing the requirements of the National Environmental Policy Act of 1969 and minor, technical amendments to the Agency's procedures for implementing Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions.” It does not impose new regulatory obligations related to energy supply, distribution, or use of energy on EPA, state or local governments, tribes, or individual applicants required to provide environmental information to EPA for certain grants or permits. Therefore, we have concluded that this proposed rule is not likely to have any adverse energy effects. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking, which includes EPA's proposed amendments to its procedures for implementing the requirements of the National Environmental Policy Act of 1969 and minor, technical amendments to the Agency's procedures for implementing Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions,” does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in this regulation. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations EPA maintains an ongoing commitment to ensure environmental justice for all people, regardless of race, color, national origin, or income. Ensuring environmental justice means not only protecting human health and the environment for everyone, but also ensuring that all people are treated fairly and given the opportunity to participate meaningfully in the development, implementation, and enforcement of environmental laws, regulations, and policies. In recognizing that minority and/or low-income communities frequently may be exposed disproportionately to environmental harms and risks, EPA works to protect these and other burdened communities from adverse human health and environmental effects of its programs, consistent with existing environmental and civil rights laws, and their implementing regulations, as well as Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.” (59 FR 7629 (Feb. 11, 1994)). Executive Order 12898 establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and/or low-income populations. In developing this proposed rule in compliance with Executive Order 12898, EPA determined that the proposed rule did not raise any environmental justice concerns. Today's proposed rule, including the proposed amendments to EPA's NEPA implementing procedures and the proposed minor, technical amendments to the Agency's procedures for implementing Executive Order 12114, does not impose new regulatory program, policy, or activity obligations on EPA, state or local governments, tribes, or individual applicants required to provide environmental information to EPA for certain grants or permits. Therefore, we have concluded that this proposed rule is not likely to have any adverse effects on minority or low-income populations, including tribes. However, the proposed NEPA rule at § 6.201 requires that for specific projects, consistent with 40 CFR 1500.5(g) and 1502.25, the EPA Responsible Official must determine the applicability of executive orders, including Executive Order 12898, and should incorporate applicable requirements as early in the NEPA review process as possible. In addition, § 6.203(a)(5) and (c)(3)(iv) require the Responsible Official to choose public participation methods and engage in outreach designed to reach those in “potentially affected communities where the proposed action is known or expected to have potentially significant environmental impacts or where the proposed action may have disproportionately high and adverse human health or environmental effects in any communities, including minority communities, low-income communities, or federally-recognized Indian tribal communities.” EPA provides guidance to Responsible Officials and EPA staff on incorporating environmental justice concerns into the NEPA analysis. See “Final Guidance For Incorporating Environmental Justice Concerns in EPA's NEPA Compliance Analyses, “April 1998. List of Subjects in 40 CFR Part 6 Environmental protection, Environmental assessments, Environmental impact statements, Environmental protection reporting, Foreign relations, Grant programs—environmental protection, Reporting and recordkeeping requirements. Dated: December 11, 2006. Stephen L. Johnson, Administrator. Therefore, for the reasons set forth in the preamble, EPA hereby proposes to amend title 40 chapter I of the Code of Federal Regulations by revising part 6 to read as follows: PART 6—PROCEDURES FOR IMPLEMENTING THE NATIONAL ENVIRONMENTAL POLICY ACT AND ASSESSING THE ENVIRONMENTAL EFFECTS ABROAD OF EPA ACTIONS Subpart A—General Provisions for EPA Actions Subject to NEPA 6.100 Policy and Purpose. 6.101 Applicability. 6.102 Definitions. 6.103 Responsibilities of the NEPA Official and Responsible Officials. Subpart B—EPA's NEPA Environmental Review Procedures 6.200 General requirements. 6.201 Coordination with other environmental review requirements. 6.202 Interagency cooperation. 6.203 Public participation. 6.204 Categorical exclusions and extraordinary circumstances. 6.205 Environmental assessments. 6.206 Findings of no significant impact. 6.207 Environmental impact statements. 6.208 Records of decision. 6.209 Filing requirements for EPA EISs. 6.210 Emergency circumstances. Subpart C—Requirements for Environmental Information Documents and Third-Party Agreements for EPA Actions Subject to NEPA 6.300 Applicability. 6.301 Applicant requirements. 6.302 Responsible Official requirements. 6.303 Third-party agreements. Subpart D—Assessing the Environmental Effects Abroad of EPA Actions 6.400 Purpose and policy. 6.401 Applicability. 6.402 Definitions. 6.403 Environmental review and assessment requirements. 6.404 Lead or cooperating agency. 6.405 Exemptions and considerations. 6.406 Implementation. Authority: 42 U.S.C. 4321 *et seq.* , 7401-7671q. Subpart D also issued under 42 U.S.C. 4321, note, E.O. 12114, 44 FR 1979, 3 CFR, 1979 Comp., p. 356. Subpart A—General Provisions for EPA Actions Subject to NEPA § 6.100 Policy and Purpose.

(a)The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 *et seq.* , as implemented by the Council on Environmental Quality

(CEQ)Regulations (40 CFR Parts 1500-1508), requires that Federal agencies include in their decision-making processes appropriate and careful consideration of all environmental effects of proposed actions, analyze potential environmental effects of proposed actions and their alternatives for public understanding and scrutiny, avoid or minimize adverse effects of proposed actions, and restore and enhance environmental quality to the extent practicable. The U.S. Environmental Protection Agency

(EPA)will integrate these NEPA requirements as early in the Agency planning processes as possible. The environmental review process will be the focal point to ensure NEPA considerations are taken into account.

(b)Through this proposed rule, EPA adopts the CEQ's regulations (40 CFR Parts 1500-1508) implementing NEPA; subparts A through C of this part supplement those regulations, for actions proposed by EPA that are subject to NEPA requirements. Subparts A through C are to be used in conjunction with the CEQ Regulations. § 6.101 Applicability.

(a)Subparts A through C apply to the proposed actions of EPA that are subject to NEPA. EPA actions subject to NEPA include the award of wastewater treatment construction grants under Title II of the Clean Water Act, EPA's issuance of new source National Pollutant Discharge Elimination System (NPDES) permits under section 402 of the Clean Water Act, certain research and development projects, development and issuance of regulations, EPA actions involving renovations or new construction of facilities, and certain grants awarded for special projects identified in the State and Tribal Assistance Grants

(STAG)account authorized by Congress through the Agency's annual Appropriations Act.

(b)The appropriate Responsible Official will undertake certain EPA actions required by the provisions of subparts A through C of this part.

(c)Certain procedures in subparts A through C of this part apply to the responsibilities of the NEPA Official.

(d)Certain procedures in subparts A through C of this part apply to applicants who are required to provide environmental information to EPA.

(e)When the Responsible Official decides to perform an environmental review under EPA's Voluntary NEPA Policy (see 63 FR 58045), the Responsible Official generally will follow the procedures set out in subparts A through C of this part.

(f)Subparts A through C of this part do not apply to the actions of EPA for which NEPA review is not required, including proposed actions for which analyses that have been conducted under another statute have been determined to be functionally equivalent to NEPA. § 6.102 Definitions.

(a)Subparts A through C of this part use the definitions found at 40 CFR part 1508. Additional definitions are listed in this subpart.

(b)Definitions.

(1)*Administrator* means the Administrator of the United States Environmental Protection Agency.

(2)*Applicant* means any individual, agency, or other entity that has:

(i)Filed an application for federal assistance; or

(ii)Applied to EPA for a permit.

(3)*Assistance agreement* means an award of federal assistance in the form of money or property in lieu of money from EPA to an eligible applicant including grants or cooperative agreements.

(4)*Environmental information document (EID)* means a written analysis prepared by an applicant that provides sufficient information for the Responsible Official to undertake an environmental review and prepare either an EA and FONSI or an EIS and record of decision

(ROD)for the proposed action.

(5)*Environmental review or NEPA review* means the process used to comply with section 102(2) of NEPA or the CEQ Regulations including development, supplementation, adoption, and revision of NEPA documents.

(6)*Extraordinary circumstances* means those circumstances listed in § 6.204 that may cause a significant environmental effect such that a proposed action that otherwise meets the requirements of a categorical exclusion may not be categorically excluded.

(7)*NEPA document* is a document prepared pursuant to NEPA.

(8)*NEPA Official* is the Assistant Administrator for Enforcement and Compliance Assurance, who is responsible for EPA's NEPA compliance.

(9)*Responsible Official* means the EPA official responsible for compliance with NEPA for individual proposed actions. § 6.103 Responsibilities of the NEPA Official and Responsible Officials.

(a)The NEPA Official will:

(1)Ensure EPA's compliance with NEPA pursuant to 40 CFR 1507.2(a) and the regulations in subparts A through C of this part.

(2)Act as EPA's liaison with the CEQ and other federal agencies, state and local governments, and federally-recognized Indian tribes on matters of policy and administrative procedures regarding compliance with NEPA.

(3)Approve procedural deviations from subparts A through C of this part.

(4)Monitor the overall timeliness and quality of EPA's compliance with subparts A through C of this part.

(5)Advise the Administrator on NEPA-related actions that involve more than one EPA office, are highly controversial, are nationally significant, or establish new EPA NEPA-related policy.

(6)Support the Administrator by providing policy guidance on NEPA-related issues.

(7)Assist EPA's Responsible Officials with establishing and maintaining adequate administrative procedures to comply with subparts A through C of this part, performing their NEPA duties, and training personnel and applicants involved in the environmental review process.

(8)Consult with Responsible Officials and CEQ regarding the addition, amendment, or deletion of a categorical exclusion.

(b)For individual proposed actions, the Responsible Official will:

(1)Ensure EPA's compliance with the CEQ regulations and subparts A through C of this part.

(2)Ensure that environmental reviews are conducted on proposed actions at the earliest practicable point in EPA's decision-making process and in accordance with the provisions of subparts A through C of this part.

(3)Ensure, to the extent practicable, early and continued involvement of interested federal agencies, state and local governments, federally-recognized Indian tribes, and affected applicants in the environmental review process.

(4)Coordinate with the NEPA Official and other Responsible Officials, as appropriate, on resolving issues involving EPA-wide NEPA policy and procedures and/or unresolved conflicts with other federal agencies, state and local governments, and federally-recognized Indian tribes, and/or advising the Administrator when necessary.

(5)Coordinate with other Responsible Officials, as appropriate, on NEPA-related actions involving their specific interests.

(6)Consistent with national NEPA guidance, provide specific policy guidance, as appropriate, and ensure that the Responsible Official's office establishes and maintains adequate administrative procedures to comply with subparts A through C of this part.

(7)Upon request of an applicant and consistent with 40 CFR 1501.8, set time limits on the NEPA review appropriate to individual proposed actions.

(8)Make decisions relating to the preparation of the appropriate NEPA documents, including preparing an EA or EIS, and signing the decision document.

(9)Monitor the overall timeliness and quality of the Responsible Official's respective office's efforts to comply with subparts A through C of this part.

(c)The NEPA Official and the Responsible Officials may delegate NEPA-related responsibilities to a level no lower than the Branch Chief or equivalent organizational level. Subpart B—EPA's NEPA Environmental Review Procedures § 6.200 General requirements.

(a)The Responsible Official must determine whether the proposed action meets the criteria for categorical exclusion or whether it requires preparation of an EA or an EIS to identify and evaluate its environmental impacts. The Responsible Official may decide to prepare an EIS without first undertaking an EA.

(b)The Responsible Official must determine the scope of the environmental review by considering the type of proposed action, the reasonable alternatives, and the type of environmental impacts. The scope of an EIS will be determined as provided in 40 CFR 1508.25.

(c)During the environmental review process, the Responsible Official must:

(1)Integrate the NEPA process and the procedures of subparts A through C of this part into early planning to ensure appropriate consideration of NEPA's policies and to minimize or eliminate delay;

(2)Emphasize cooperative consultation among federal agencies, state and local governments, and federally-recognized Indian tribes before an EA or EIS is prepared to help ensure compliance with the procedural provisions of subparts A through C of this part and with other environmental review requirements, to address the need for interagency cooperation, to identify the requirements for other agencies' reviews, and to ensure appropriate public participation.

(3)Identify at an early stage any potentially significant environmental issues to be evaluated in detail and insignificant issues to be de-emphasized, focusing the scope of the environmental review accordingly;

(4)Involve other agencies and the public, as appropriate, in the environmental review process for proposed actions that are not categorically excluded to:

(i)Identify the federal, state, local, and federally-recognized Indian tribal entities and the members of the public that may have an interest in the action;

(ii)Request that appropriate federal, state, and local agencies and federally-recognized Indian tribes serve as cooperating agencies consistent with 40 CFR 1501.6 and 1508.5; and

(iii)Integrate, where possible, review of applicable federal laws and executive orders into the environmental review process in conjunction with the development of NEPA documents.

(d)When preparing NEPA documents, the Responsible Official must:

(1)Utilize a systematic, interdisciplinary approach to integrate the natural and social sciences with the environmental design arts in planning and making decisions on proposed actions subject to environmental review under subparts A through C of this part (see 40 CFR 1501.2(a) and 1507.2);

(2)Plan adequate time and funding for the NEPA review and preparation of the NEPA documents. Planning includes consideration of whether an applicant will be required to prepare an EID for the proposed action.

(3)Review relevant planning or decision-making documents, whether prepared by EPA or another federal agency, to determine if the proposed action or any of its alternatives have been considered in a prior federal NEPA document. EPA may adopt the existing document, or will incorporate by reference any pertinent part of it, consistent with 40 CFR 1506.3 and 1502.21.

(4)Review relevant environmental review document prepared by a state or local government or federally-recognized Indian tribe to determine if the proposed action or any of its alternatives have been considered in such a document. EPA will incorporate by reference any pertinent part of that document consistent with 40 CFR 1502.21.

(e)During the decision-making process for the proposed action, the Responsible Official must:

(1)Incorporate the NEPA review in decision-making on the action. Processing and review of an applicant's application must proceed concurrently with the NEPA review procedures set out in subparts A through C of this part. EPA must complete its NEPA review before making a decision on the action.

(2)Consider the relevant NEPA documents, public and other agency comments (if any) on those documents, and EPA responses to those comments, as part of consideration of the action (see 40 CFR 1505.1(d)).

(3)Consider the alternatives analyzed in an EA or EIS before rendering a decision on the action; and

(4)Ensure that the decision on the action is to implement an alternative analyzed or is within the range of alternatives analyzed in the EA or EIS (see 40 CFR 1505.1(e)).

(f)To eliminate duplication and to foster efficiency, the Responsible Official should use tiering (see 40 CFR 1502.20 and 1508.28) and incorporate material by reference (see 40 CFR 1502.21) as appropriate.

(g)For applicant-related proposed actions:

(1)The Responsible Official may request that the applicant submit information to support the application of a categorical exclusion to the applicant's pending action.

(2)The Responsible Official may gather the information and prepare the NEPA document without assistance from the applicant, or, pursuant to Subpart C of this part, have the applicant prepare an EID or a draft EA and supporting documents, or enter into a third-party agreement with the applicant.

(3)During the environmental review process, applicants may continue to compile additional information needed for the environmental review and/or information necessary to support an application for a permit or assistance agreement from EPA.

(h)For all NEPA determinations (CEs, EA/FONSIs, or EIS/RODs) that are five years old or older, and for which the subject action has not yet been implemented, the Responsible Official must re-evaluate the proposed action, environmental conditions, and public views to determine whether to conduct a supplemental environmental review of the action and complete an appropriate NEPA document or reaffirm EPA's original NEPA determination. If there has been substantial change in the proposed action that is relevant to environmental concerns, or if there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts, the Responsible Official must conduct a supplemental environmental review of the action and complete an appropriate NEPA document. § 6.201 Coordination with other environmental review requirements. Consistent with 40 CFR 1500.5(g) and 1502.25, the Responsible Official must determine the applicability of other environmental laws and executive orders, to the fullest extent possible. The Responsible Official should incorporate applicable requirements as early in the NEPA review process as possible. § 6.202 Interagency cooperation.

(a)Consistent with 40 CFR 1501.5, 1501.6, and 1508.5, the Responsible Official will request other appropriate federal and non-federal agencies to be joint lead or cooperating agencies in the preparation of NEPA documents for actions as a means of encouraging early coordination and cooperation with federal agencies, state and local governments, and federally-recognized Indian tribes with jurisdiction by law or special expertise.

(b)For an EPA action related to an action of any other federal agency, the Responsible Official must comply with the requirements of 40 CFR 1501.5 and 1501.6 relating to lead agencies and cooperating agencies, respectively. The Responsible Official will work with the other involved agencies to facilitate coordination and to reduce delay and duplication.

(c)To prepare a single document to fulfill both NEPA and state or local government, or federally-recognized Indian tribe requirements, consistent with 40 CFR 1506.2, the Responsible Official should enter into a written agreement with the involved state or local government, or federally-recognized Indian tribe that sets out the intentions of the parties, including the responsibilities each party intends to assume and procedures the parties intend to follow. § 6.203 Public participation.

(a)*General requirements* .

(1)The procedures in this section apply to EPA's environmental review processes, including development, supplementation, adoption, and revision of NEPA documents.

(2)The Responsible Official will make diligent efforts to involve the public, including applicants, in the preparation of EAs or EISs consistent with 40 CFR 1501.4 and 1506.6 and applicable EPA public participation regulations ( *e.g.* , 40 CFR Part 25).

(3)EPA NEPA documents will use plain language to the extent possible.

(4)The Responsible Official will, to the greatest extent possible, give notice to any state or local government, or federally-recognized Indian tribe that, in the Official's judgment, may be affected by an action for which EPA plans to prepare an EA or an EIS.

(5)The Responsible Official must use appropriate communication procedures to ensure meaningful public participation throughout the NEPA process. The Responsible Official must make reasonable efforts to involve the potentially affected communities where the proposed action is expected to have environmental impacts or where the proposed action may have human health or environmental effects in any communities, including minority communities, low-income communities, or federally-recognized Indian tribal communities.

(b)*EA and FONSI requirements.* At least thirty

(30)calendar days before making the decision on whether, and if so how, to proceed with a proposed action, the Responsible Official must make available to the interested federal agencies, state and local governments, federally-recognized Indian tribes and the affected public the EA and preliminary FONSI for review and comment. The Responsible Official must respond to any substantive comments received and finalize the EA and FONSI before making a decision on the proposed action. Where circumstances make it necessary to take the action without observing the 30-calendar-day comment period, the Responsible Official must notify the NEPA Official before taking such action. If the NEPA Official determines that a reduced comment period would be in the best interest of the Government, the NEPA Official will inform the Responsible Official, as soon as possible, of this approval.

(c)*EIS and ROD requirements.*

(1)As soon as practicable after the decision to prepare an EIS and before beginning the scoping process, the Responsible Official must ensure that a notice of intent

(NOI)(see 40 CFR 1508.22) is published in the **Federal Register** . The NOI must briefly describe the proposed action; a preliminary list of environmental issues to be analyzed, and possible alternatives; EPA's proposed scoping process including, if available, whether, when, and where any scoping meeting will be held; and the name and contact information for the person designated by EPA to answer questions about the proposed action and the EIS. The NOI must invite comments and suggestions on the scope of the EIS.

(2)The Responsible Official must disseminate the NOI consistent with 40 CFR 1506.6.

(3)The Responsible Official must conduct the scoping process consistent with 40 CFR 1501.7 and any applicable EPA public participation regulations (e.g., 40 CFR Part 25).

(i)Publication of the NOI in the **Federal Register** begins the scoping process.

(ii)The Responsible Official must ensure that the scoping process for an EIS allows a minimum of thirty

(30)days for the receipt of public comments.

(iii)The Responsible Official may hold one or more public meetings as part of the scoping process for an EPA EIS. The Responsible Official must announce the location, date, and time of public scoping meetings in the NOI or by other appropriate means, such as additional notices in the **Federal Register** , news releases to the local media, or letters to affected parties. Public scoping meetings should be held at least fifteen

(15)days after public notification.

(iv)The Responsible Official must use appropriate means to publicize the availability of draft and final EISs and the time and place for public meetings or hearings on draft EISs. The methods chosen for public participation must focus on reaching persons who may be interested in the proposed action. Such persons include those in potentially affected communities where the proposed action is known or expected to have environmental impacts including minority communities, low-income communities, or federally-recognized Indian tribal communities.

(v)The Responsible Official must circulate the draft and final EISs consistent with 40 CFR 1502.19 and any applicable EPA public participation regulations and in accordance with the 45-day public review period for draft EISs and the 30-day public review period for final EISs (see § 6.209). Consistent with § 6.209(b), the Responsible Official may establish a longer public comment period for a draft or final EIS.

(vi)After preparing a draft EIS and before preparing a final EIS, the Responsible Official must solicit the comments of appropriate federal agencies, state and/or local governments, and/or federally-recognized Indian tribes, and the public (see 40 CFR 1503.1). The Responsible Official must respond in the final EIS to substantive comments received (see 40 CFR 1503.4).

(vii)The Responsible Official may conduct one or more public meetings or hearings on the draft EIS as part of the public involvement process. If meetings or hearings are held, the Responsible Official must make the draft EIS available to the public at least thirty

(30)days in advance of any meeting or hearing.

(4)The Responsible Official must make the ROD available to the public upon request. § 6.204 Categorical exclusions and extraordinary circumstances.

(a)A proposed action may be categorically excluded if the action fits within a category of action that is eligible for exclusion and the proposed action does not involve any extraordinary circumstances.

(1)Certain actions eligible for categorical exclusion require the Responsible Official to document a determination that a categorical exclusion applies. The documentation must include: a brief description of the proposed action; the categorical exclusion that applies to the action; and a statement confirming that and explaining why no extraordinary circumstances apply to the proposed action. The Responsible Official must make a copy of the determination document available to the public upon request. The categorical exclusions requiring this documentation are listed in paragraphs (a)(1)(i) through (a)(1)(v) of this section.

(i)Actions at EPA owned or operated facilities involving routine facility maintenance, repair, and grounds-keeping; minor rehabilitation, restoration, renovation, or revitalization of existing facilities; functional replacement of equipment, acquisition and installation of equipment, or construction of new minor ancillary facilities adjacent to or on the same property as existing facilities.

(ii)Actions relating to existing infrastructure systems (such as sewer systems; drinking water supply systems; and stormwater systems, including combined sewer overflow systems) that involve minor upgrading, or minor expansion of system capacity or rehabilitation (including functional replacement) of the existing system and system components (such as the sewer collection network and treatment system, the system to collect, treat, store and distribute drinking water; and stormwater systems, including combined sewer overflow systems) or construction of new minor ancillary facilities adjacent to or on the same property as existing facilities. This category does not include actions that: involve new or relocated discharges to surface or ground water; will likely result in the substantial increase in the volume or the loading of pollutant to the receiving water; will provide capacity to serve a population 30% greater than the existing population or is not supported by the state, or other regional growth plan or strategy; or directly or indirectly involve or relate to upgrading or extending infrastructure systems primarily for the purposes of future development.

(iii)Actions in unsewered communities relating to the use of proposed wastewater on-site technologies where such technologies replace existing systems.

(iv)Actions involving re-issuance of a NPDES permit for a new source providing the conclusions of the original NEPA document are still valid (including the appropriate mitigation), there will be no degradation of the receiving waters, and the permit conditions do not change or are more environmentally protective.

(v)Actions for award of grants authorized by Congress under EPA's annual Appropriations Act that are solely for reimbursement of the costs of a project that was completed prior to the date the appropriation was enacted.

(2)Certain actions eligible for categorical exclusion do not require the Responsible Official to document a determination that a categorical exclusion applies. These categorical exclusions are listed in paragraphs (a)(2)(i) through (a)(2)(x) of this section.

(i)Procedural, ministerial, administrative, financial, personnel, and management actions necessary to support the normal conduct of EPA business.

(ii)Acquisition actions (compliant with applicable procedures for sustainable or “green” procurement) and contracting actions necessary to support the normal conduct of EPA business.

(iii)Actions involving information collection, dissemination, or exchange; planning; monitoring and sample collection wherein no significant alteration of existing ambient conditions occurs; educational and training programs; literature searches and studies; computer studies and activities; research and analytical activities; development of compliance assistance tools; and architectural and engineering studies. These actions include those conducted directly by EPA and EPA actions relating to contracts or assistance agreements involving such actions.

(iv)Actions relating to or conducted completely within a permanent, existing contained facility, such as a laboratory, or other enclosed building, provided that reliable and scientifically sound methods are used to appropriately dispose of wastes and safeguards exist to prevent hazardous, toxic and radioactive materials in excess of allowable limits from entering the environment. Where such activities are conducted at laboratories, the Lab Director or other appropriate official must certify in writing that the laboratory follows good laboratory practices and adheres to all applicable federal, state, local and federally-recognized Indian tribal laws and regulations. This category does not include activities related to construction and/or demolition within the facility (see paragraph (a)(1)(i) of this section).

(v)Actions involving emergency preparedness planning and training activities.

(vi)Actions involving the acquisition, transfer, lease, disposition, or closure of existing permanent structures, land, equipment, materials or personal property provided that the property: has been used solely for office functions; has never been used for laboratory purposes by any party; does not require site remediation; and will be used in essentially the same manner such that the type and magnitude of the impacts will not change substantially. This category does not include activities related to construction and/or demolition of structures on the property (see paragraph (a)(1)(i) of this section).

(vii)Actions involving providing technical advice to federal agencies, state or local governments, federally-recognized Indian tribes, foreign governments, or public or private entities.

(viii)Actions involving approval of EPA participation in international “umbrella” agreements for cooperation in environmental-related activities that would not commit the United States to any specific projects or actions.

(ix)Actions involving containment or removal and disposal of asbestos-containing material or lead-based paint from EPA owned or operated facilities when undertaken in accordance with applicable regulations.

(x)Actions involving new source NPDES permit modifications that make only technical corrections to the NPDES permit (such as correcting typographical errors) that do not result in a change in environmental impacts or conditions.

(b)The Responsible Official must review actions eligible for categorical exclusion to determine whether any extraordinary circumstances are involved. Extraordinary circumstances are listed in paragraphs (b)(1) through (b)(10) of this section. (See 40 CFR 1508.4.)

(1)The proposed action is known or expected to have potentially significant environmental impacts on the quality of the human environment either individually or cumulatively over time (see 40 CFR 1508.25(a)).

(2)The proposed action is known or expected to have disproportionately high and adverse human health or environmental effects on any community, including minority communities, low-income communities, or federally-recognized Indian tribal communities.

(3)The proposed action may significantly affect federally listed threatened or endangered species or their critical habitat.

(4)The proposed action may significantly affect national natural landmarks or any property with nationally significant historic, architectural, prehistoric, archeological, or cultural value, including but not limited to, property listed on or eligible for the National Register of Historic Places.

(5)The proposed action may significantly affect environmentally important natural resource areas such as wetlands, floodplains, significant agricultural lands, aquifer recharge zones, coastal zones, barrier islands, wild and scenic rivers, and significant fish or wildlife habitat.

(6)The proposed action has the potential to cause significant adverse air quality effects.

(7)The proposed action will likely have a significant effect on the pattern and type of land use (industrial, commercial, agricultural, recreational, residential) or growth and distribution of population including altering the character of existing residential areas, or may not be consistent with state or local government, or federally-recognized Indian tribe approved land use plans or federal land management plans.

(8)The proposed action is expected to cause significant public controversy about a potential environmental impact of the proposed action.

(9)The proposed action may be associated with providing financial assistance to a federal agency through an interagency agreement for a project that is known or expected to have potentially significant environmental impacts.

(10)The proposed action may conflict with federal, state or local government, or federally-recognized Indian tribe environmental, resource-protection, or land-use laws or regulations.

(c)The Responsible Official may request that an applicant submit sufficient information to enable the Responsible Official to determine whether a categorical exclusion applies to the applicant's proposed action or whether an exceptional circumstance applies. Pursuant to Subpart C of this part, applicants are not required to prepare EIDs for actions that are being considered for categorical exclusion.

(d)The Responsible Official must prepare an EA or EIS when a proposed action involves extraordinary circumstances.

(e)After a determination has been made that a categorical exclusion applies to an action, if new information or changes in the proposed action involve or relate to at least one of the extraordinary circumstances or otherwise indicate that the action may not meet the criteria for categorical exclusion and the Responsible Official determines that an action no longer qualifies for a categorical exclusion, the Responsible Official will prepare an EA or EIS.

(f)The Responsible Official, or other interested parties, may request the addition, amendment, or deletion of a categorical exclusion.

(1)Such requests must be made in writing, be directed to the NEPA Official, and contain adequate information to support and justify the request.

(2)Proposed new categories of actions for exclusion must meet these criteria:

(i)Actions covered by the proposed categorical exclusion generally do not individually or cumulatively have a significant effect on the human environment and have been found by EPA to have no such effect.

(ii)Actions covered by the proposed categorical exclusion generally do not involve extraordinary circumstances as set out in paragraphs (b)(1) through (b)(14) of this section and generally do not require preparation of an EIS; and

(iii)Information adequate to determine that a proposed action is properly covered by the proposed category will usually be available.

(3)The NEPA Official must determine that the addition, amendment, or deletion of a categorical exclusion is appropriate.

(g)Any addition, amendment, or deletion of a categorical exclusion will be done by rule-making and in coordination with CEQ pursuant to 40 CFR 1507.3 to amend paragraph (a)(1) or paragraph (a)(2) of this section. § 6.205 Environmental assessments.

(a)The Responsible Official must prepare an environmental assessment

(EA)(see 40 CFR 1508.9) for a proposed action that is expected to result in environmental impacts and the significance of the impacts is not known. An EA is not required if the proposed action is categorically excluded, or if the Responsible Official has decided to prepare an EIS. (See 40 CFR 1501.3.) Types of actions that typically require the preparation of an EA include: the award of wastewater treatment construction grants under Title II of the Clean Water Act; EPA's issuance of new source NPDES permits under section 402 of the Clean Water Act; EPA actions involving renovations or new construction of facilities; certain grants awarded for special projects identified in the State and Tribal Assistance Grants

(STAG)account authorized by Congress through the Agency's annual Appropriations Act; and research and development projects, such as initial field demonstration of a new technology, field trials of a new product or new uses of an existing technology, alteration of a local habitat by physical or chemical means, or actions that may result in the release of radioactive, hazardous, or toxic substances, or biota.

(b)Consistent with 40 CFR 1508.9, an EA must provide sufficient information and analysis for determining whether to prepare an EIS or to issue a FONSI (see 40 CFR 1508.9(a)), and may include analyses needed for other environmental determinations. The EA must focus on resources that might be impacted and any environmental issues that are of public concern.

(c)An EA must include:

(1)A brief discussions of:

(i)The need for the proposed action;

(ii)The alternatives, including the no action alternative (which must be assessed even when the proposed action is specifically required by legislation or a court order);

(iii)The affected environment, including baseline conditions that may be impacted by the proposed action and alternatives;

(iv)The environmental impacts of the proposed action and alternatives, including any unresolved conflicts concerning alternative uses of available resources; and

(v)Other applicable environmental laws and executive orders.

(2)A listing or summary of any coordination or consultation undertaken with any federal agency, state or local government, or federally-recognized Indian tribe regarding compliance with applicable laws and executive orders;

(3)Identification and description of any mitigation measures considered, including any mitigation measures that must be adopted to ensure the action will not have significant impacts; and

(4)Incorporation of documents by reference, if appropriate, including, when available, the EID for the action. § 6.206 Findings of no significant impact.

(a)The Responsible Official may issue a finding of no significant impact (FONSI) (see 40 CFR 1508.13) only if the EA supports the finding that the proposed action will not have a significant effect on the human environment. If the EA does not support a FONSI, the Responsible Official must prepare an EIS and issue a ROD before taking action on the proposed action.

(b)Consistent with 40 CFR 1508.13, a FONSI must include:

(1)The EA, or in lieu of the EA, a summary of the supporting EA that includes a brief description of the proposed action and alternatives considered in the EA, environmental factors considered, and project impacts; and

(2)A brief description of the reasons why there are no significant impacts.

(c)In addition, the FONSI, must include:

(1)Any commitments to mitigation that are essential to render the impacts of the proposed action not significant;

(2)The date of issuance; and

(3)The signature of the Responsible Official.

(d)The Responsible Official must ensure that an applicant that has committed to mitigation possesses the authority and ability to fulfill the commitments.

(e)The Responsible Official must make a preliminary FONSI available to the public in accordance with § 6.203(b) before taking action.

(f)The Responsible Official may proceed with the action subject to any mitigation measures described in the FONSI after responding to any substantive comments received on the preliminary FONSI during the 30-day comment period, or 30 days after issuance of the FONSI if no substantive comments are received.

(g)The Responsible Official must ensure that the mitigation measures necessary to the FONSI determination, at a minimum, are enforceable, and conduct appropriate monitoring of the mitigation measures.

(h)The Responsible Official may revise a FONSI at any time provided the revision is supported by an EA. A revised FONSI is subject to all provisions of paragraph

(d)of this section. § 6.207 Environmental impact statements.

(a)The Responsible Official will prepare an environmental impact statement

(EIS)(see 40 CFR 1508.11) for major actions significantly affecting the quality of the human environment, including actions for which the EA analysis demonstrates that significant impacts will occur that will not be reduced or eliminated by changes to or mitigation of the proposed action.

(1)An EIS must be prepared consistent with 40 CFR part 1502.

(2)A proposed action normally requires an EIS if it meets any of the following criteria. (See 40 CFR 1507.3(b)(2).)

(i)The proposed action would result in a discharge of treated effluent from a new or modified existing facility into a body of water and the discharge is likely to have a significant effect on the quality of the receiving waters.

(ii)The proposed action is likely to directly, or through induced development, have significant adverse effect upon local ambient air quality or local ambient noise levels.

(iii)The proposed action is likely to have significant adverse effects on surface water reservoirs or navigation projects.

(iv)The proposed action would be inconsistent with state or local government, or federally-recognized Indian tribe approved land use plans or regulations, or federal land management plans.

(v)The proposed action would be inconsistent with state or local government, or federally-recognized Indian tribe environmental, resource-protection, or land-use laws and regulations for protection of the environment.

(vi)The proposed action is likely to significantly affect the environment through the release of radioactive, hazardous or toxic substances, or biota.

(vii)The proposed action involves uncertain environmental effects or highly unique environmental risks that are likely to be significant.

(viii)The proposed action is likely to significantly affect national natural landmarks or any property on or eligible for the National Register of Historic Places.

(ix)The proposed action is likely to significantly affect environmentally important natural resources such as wetlands, significant agricultural lands, aquifer recharge zones, coastal zones, barrier islands, wild and scenic rivers, and significant fish or wildlife habitat.

(x)The proposed action in conjunction with related federal, state or local government, or federally-recognized Indian tribe projects is likely to produce significant cumulative impacts.

(xi)The proposed action is likely to significantly affect the pattern and type of land use (industrial, commercial, recreational, residential) or growth and distribution of population including altering the character of existing residential areas.

(3)EISs are typically prepared for the following actions:

(i)New regional wastewater treatment facilities or water supply systems for a community with a population greater than 100,000.

(ii)Expansions of existing wastewater treatment facilities that will increase existing discharge to an impaired water by greater than 10 million gallons per day (mgd).

(iii)Issuance of new source NPDES permit for a new major industrial discharge.

(iv)Issuance of a new source NPDES permit for a new oil/gas development and production operation on the outer continental shelf.

(v)Issuance of a new source NPDES permit for a deepwater port with a projected discharge in excess of 10 mgd.

(b)When appropriate, the Responsible Official will prepare a legislative EIS consistent with 40 CFR 1506.8.

(c)In preparing an EIS, the Responsible Official must determine if an applicant, other federal agencies or state or local governments, or federally-recognized Indian tribes are involved with the project and apply the applicable provisions of section 6.202 and Subpart C of this part.

(d)An EIS must:

(1)Comply with all requirements at 40 CFR parts 1500-1508;

(2)Analyze all reasonable alternatives and the no action alternative (which may be the same as denying the action). Assess the no action alternative even when the proposed action is specifically required by legislation or a court order.

(3)Describe the potentially affected environment including, as appropriate, the size and location of new and existing facilities, land requirements, operation and maintenance requirements, auxiliary structures such as pipelines or transmission lines, and construction schedules.

(4)Summarize any coordination or consultation undertaken with any federal agency, state and/or local government, and/or federally-recognized Indian tribe, including copies or summaries of relevant correspondence.

(5)Summarize any public meetings during the scoping process including the date, time, place, and purpose of the meetings. The final EIS must summarize the public participation process including the date, time, place, and purpose of meetings or hearings held after publication of the draft EIS.

(6)Consider substantive comments received during the public participation process. The draft EIS must consider the substantive comments received during the scoping process. The final EIS must include or summarize all substantive comments received on the draft EIS, respond to any substantive comments on the draft EIS, and explain any changes to the draft EIS and the reason for the changes.

(7)Include the names and qualifications of the persons primarily responsible for preparing the EIS including an EIS prepared under a third-party contract (if applicable), significant background papers, and the EID (if applicable).

(e)The Responsible Official must prepare a supplemental EIS when appropriate, consistent with 40 CFR 1502.9. § 6.208 Records of decision.

(a)The Responsible Official may not make any decisions on the action until the time periods in 40 CFR 1506.10 have been met.

(b)A record of decision

(ROD)records EPA's decision on the action. Consistent with 40 CFR 1505.2, a ROD must include:

(1)A brief description of the proposed action and alternatives considered in the EIS, environmental factors considered, and project impacts;

(2)Any commitments to mitigation; and

(3)An explanation if an environmentally preferred alternative was not selected.

(c)In addition, the ROD must include:

(1)Responses to any substantive comments on the final EIS;

(2)The date of issuance; and

(3)The signature of the Responsible Official.

(d)The Responsible Official must ensure that an applicant that has committed to mitigation possesses the authority and ability to fulfill the commitment.

(e)The Responsible Official must make a ROD available to the public.

(f)Upon issuance of the ROD, the Responsible Official may proceed with the action subject to any mitigation measures described in the ROD. The Responsible Official must ensure adequate monitoring of mitigation measures identified in the ROD.

(g)If the mitigation identified in the ROD will be included as a condition in the permit or grant, the Responsible Official must ensure that EPA has the authority to impose the conditions. The Responsible Official should ensure that compliance with assistance agreement or permit conditions will be monitored and enforced under EPA's assistance agreement and permit authorities.

(h)The Responsible Official may revise a ROD at any time provided the revision is supported by an EIS. A revised ROD is subject to all provisions of paragraph

(d)of this section. § 6.209 Filing requirements for EPA EISs.

(a)The Responsible Official must file an EIS with the NEPA Official no earlier than the document being transmitted to commenting agencies and made available to the public. The Responsible Official must comply with any guidelines established by the NEPA Official for the filing system process and comply with 40 CFR 1506.9 and 1506.10. The review periods are computed through the filing system process and published in the **Federal Register** in the Notice of Availability.

(b)The Responsible Official may request that the NEPA Official extend the review periods for an EIS. The NEPA Official will publish notice of an extension of the review period in the **Federal Register** and notify the CEQ. § 6.210 Emergency circumstances. If emergency circumstances make it necessary to take an action that has a significant environmental impact without observing the provisions of subparts A through C of this part that are required by the CEQ Regulations, the Responsible Official must consult with the NEPA Official at the earliest possible time. Actions taken without observing the provisions of subparts A through C of this part will be limited to actions necessary to control the immediate impacts of the emergency; other actions remain subject to the environmental review process. Consistent with 40 CFR 1506.11, the Responsible Official and the NEPA Official should consult with CEQ about alternative arrangements at the earliest opportunity. Subpart C—Requirements for Environmental Information Documents and Third-Party Agreements for EPA Actions Subject to NEPA § 6.300 Applicability.

(a)This section applies to actions that involve applications to EPA for permits or assistance agreements.

(b)The Responsible Official is responsible for the environmental review process on EPA's action (that is, issuing the permit or awarding the assistance agreement) with the applicant contributing through submission of an EID or a draft EA and supporting documents.

(c)An applicant is not required to prepare an EID when:

(1)The action has been categorically excluded; or

(2)The applicant will prepare and submit an EA or EIS and supporting documents.

(d)The Responsible Official must notify the applicant if EPA will not require submission of an EID. § 6.301 Applicant requirements.

(a)The applicant must prepare an EID in consultation with the Responsible Official, unless the Responsible Official has notified the applicant that an EID is not required. The EID must be of sufficient scope and content to enable the Responsible Official to prepare an EA and FONSI or, if necessary, an EIS and ROD. The applicant must submit the EID to the Responsible Official.

(b)The applicant must consult with the Responsible Official as early as possible in the planning process to obtain guidance with respect to the appropriate level and scope of environmental information required for the EID.

(c)As part of the EID process, the applicant may consult with appropriate federal agencies, state and local governments, and federally-recognized Indian tribes and other potentially affected parties to identify their interests in the project and the environmental issues associated with the project.

(d)The applicant must notify the Responsible Official as early as possible of other federal agency, state or local government, or federally-recognized Indian tribe requirements related to the project. The applicant also must notify the Responsible Official of any private entities and organizations affected by the proposed project. (See 40 CFR 1501.2(d)(2).)

(e)The applicant must notify the Responsible Official if, during EPA's environmental review process, the applicant:

(1)Changes its plans for the project as originally submitted to EPA; and/or

(2)Changes its schedule for the project from that originally submitted to EPA.

(f)In accordance with section 6.204 of this part, where appropriate, the applicant may request a categorical exclusion determination by the Responsible Official. If requested by the Responsible Official, the applicant must submit information to the Responsible Official regarding the application of a categorical exclusion to EPA's pending action and the applicant's project. § 6.302 Responsible Official requirements.

(a)Consistent with 40 CFR 1501.2(d), the Responsible Official must ensure early involvement of applicants in the environmental review process to identify environmental effects, avoid delays, and resolve conflicts.

(b)The Responsible Official must notify the applicant if a determination has been made that the action has been categorically excluded, or if EPA needs additional information to support the application of a categorical exclusion or if the submitted information does not support the application of a categorical exclusion and that an EA, or an EIS, will be required.

(c)When an EID is required for a project, the Responsible Official must consult with the applicant and provide the applicant with guidance describing the scope and level of environmental information required.

(1)The Responsible Official must provide guidance on a project-by-project basis to any applicant seeking such assistance. For major categories of actions involving a large number of applicants, the Responsible Official may prepare and make available generic guidance describing the recommended level and scope of environmental information that applicants should provide.

(2)The Responsible Official must consider the extent to which the applicant is capable of providing the required information. The Responsible Official may not require the applicant to gather data or perform analyses that unnecessarily duplicate either existing data or the results of existing analyses available to EPA. The Responsible Official must limit the request for environmental information to that necessary for the environmental review.

(d)If, prior to completion of the environmental review for a project, the Responsible Official receives notification from the applicant under section 6.301(e) and determines that its actions would result in significant impacts or would limit alternatives, the Responsible Official must notify the applicant promptly that EPA will take appropriate action to ensure that the objectives and procedures of NEPA are achieved (see 40 CFR 1506.1(b)). Such actions may include withholding grant funds or denial of permits.

(e)The Responsible Official must begin the NEPA review as soon as possible after receiving the applicant's EID or draft EA. The Responsible Official must independently evaluate the information submitted and be responsible for its accuracy (see 40 CFR 1506.5).

(f)At the request of an applicant and at the discretion of the Responsible Official, an applicant may prepare an EA or EIS and supporting documents or enter into a third-party contract pursuant to section 6.303 of this part.

(g)The Responsible Official must have reviewed and taken responsibility for the completed NEPA documents before rendering a final decision on the proposed action. § 6.303 Third-party agreements.

(a)If an EA or EIS is to be prepared for an action subject to subparts A through C of this part, the Responsible Official and the applicant may enter into an agreement whereby the applicant engages and pays for the services of a third-party contractor to prepare an EA or EIS and any associated documents for consideration by EPA. In such cases, the Responsible Official must approve the qualifications of the third-party contractor. The third-party contractor must be selected on the basis of ability and absence of any conflict of interest. Consistent with 40 CFR 1506.5(c), in consultation with the applicant, the Responsible Official shall select the contractor. The Responsible Official must provide guidance to the applicant and contractor regarding the information to be developed, including the project's scope, and guide and participate in the collection, analysis, and presentation of the information. The Responsible Official has sole authority for final approval of an EA or EIS.

(1)The applicant must engage and pay for the services of a contractor to prepare the EA or EIS and any associated documents without using EPA financial assistance (including required match);

(2)The Responsible Official, in consultation with the applicant, must ensure that the contractor is qualified to prepare an EA or EIS, and that the substantive terms of the contract specify the information to be developed, and the procedures for gathering, analyzing and presenting the information;

(3)The Responsible Official must prepare a disclosure statement for the applicant to include in the contract specifying that the contractor has no financial or other interest in the outcome of the project (see 40 CFR 1506.5(c)).

(4)The Responsible Official must ensure that the EA or EIS and any associated documents contain analyses and conclusions that adequately assess the relevant environmental issues.

(b)In order to make a decision on the action, the Responsible Official must independently evaluate the information submitted in the EA or EIS and any associated documents, and issue an EA or draft and final EIS. After review of, and appropriate changes to, the EA or EIS submitted by the applicant, the Responsible Official may accept it as EPA's document. The Responsible Official is responsible for the scope, accuracy, and contents of the EA or EIS and any associated documents (see 40 CFR 1506.5).

(c)A third-party agreement may not be initiated unless both the applicant and the Responsible Official agree to its creation and terms.

(d)The terms of the contract between the applicant and the third-party contractor must ensure that the contractor does not have recourse to EPA for financial or other claims arising under the contract, and that the Responsible Official, or other EPA designee, may give technical advice to the contractor. Subpart D—Assessing the Environmental Effects Abroad of EPA Actions § 6.400 Purpose and policy.

(a)*Purpose* . On January 4, 1979, the President signed Executive Order 12114 entitled “Environmental Effects Abroad of Major Federal Actions.” The purpose of this Executive Order is to enable responsible Federal officials in carrying out or approving major Federal actions which affect foreign nations or the global commons to be informed of pertinent environmental considerations and to consider fully the environmental impacts of the actions undertaken. While based on independent authority, this Order furthers the purpose of the National Environmental Policy Act

(NEPA)(42 U.S.C. 4321 *et seq.* ) and the Marine Protection, Research, and Sanctuaries Act (MPRSA) (33 U.S.C. 1401 *et seq.* ). It should be noted, however, that in fulfilling its responsibilities under Executive Order 12114, EPA shall be guided by CEQ regulations only to the extent that they are made expressly applicable by this subpart. The procedures set forth below reflect EPA's duties and responsibilities as required under the Executive Order and satisfy the requirement for issuance of procedures under section 2-1 of the Executive Order.

(b)*Policy* . It shall be the policy of this Agency to carry out the purpose and requirements of the Executive Order to the fullest extent possible. EPA, within the realm of its expertise, shall work with the Department of State and the Council on Environmental Quality to provide information to other Federal agencies and foreign nations to heighten awareness of and interest in the environment. EPA shall further cooperate to the extent possible with Federal agencies to lend special expertise and assistance in the preparation of required environmental documents under the Executive Order. EPA shall perform environmental reviews of activities significantly affecting the global commons and foreign nations as required under Executive Order 12114 and as set forth under these procedures. § 6.401 Applicability.

(a)Administrative actions requiring environmental review. The environmental review requirements apply to the activities of EPA as follows:

(1)Major research or demonstration projects which affect the global commons or a foreign nation.

(2)Ocean dumping activities carried out under section 102 of the MPRSA which affect the related environment.

(3)Major permitting or licensing by EPA of facilities which affect the global commons or the environment of a foreign nation. This may include such actions as the issuance by EPA of hazardous waste treatment, storage, or disposal facility permits pursuant to section 3005 of the Resource Conservation and Recovery Act (42 U.S.C. 6925), NPDES permits pursuant to section 402 of the Clean Water Act (33 U.S.C. 1342), and prevention of significant deterioration approvals pursuant to Part C of the Clean Air Act (42 U.S.C. 7470 *et seq.* )

(4)Wastewater Treatment Construction Grants Program under section 201 of the Clean Water Act when activities addressed in the facility plan would have environmental effects abroad.

(5)Other EPA activities as determined by OFA and OIA (see § 6.406(c)).

(b)[Reserved]. § 6.402 Definitions. As used in this subpart, *environment* means the natural and physical environment and excludes social, economic and other environments; *global commons* is that area (land, air, water) outside the jurisdiction of any nation; and *responsible official* is either the EPA Assistant Administrator or Regional Administrator as appropriate for the particular EPA program. Also, an action *significantly* affects the environment if it does *significant* harm to the environment even though on balance the action may be beneficial to the environment. To the extent applicable, the responsible official shall address the considerations set forth in the CEQ regulations under 40 CFR 1508.27 in determining significant effect. § 6.403 Environmental review and assessment requirements.

(a)*Research and demonstration projects* . The appropriate Assistant Administrator is responsible for performing the necessary degree of environmental review on research and demonstration projects undertaken by EPA. If the research or demonstration project affects the environment of the global commons, the applicant shall prepare an environmental analysis. This will assist the responsible official in determining whether an EIS is necessary. If it is determined that the action significantly affects the environment of the global commons, then an EIS shall be prepared. If the undertaking significantly affects a foreign nation EPA shall prepare a unilateral, bilateral or multilateral environmental study. EPA shall afford the affected foreign nation or international body or organization an opportunity to participate in this study. This environmental study shall discuss the need for the action, analyze the environmental impact of the various alternatives considered and list the agencies and other parties consulted.

(b)*Ocean dumping activities* .

(1)The Assistant Administrator for Water shall ensure the preparation of appropriate environmental documents relating to ocean dumping activities in the global commons under section 102 of the MPRSA. For ocean dumping site designations prescribed pursuant to section 102(c) of the MPRSA and 40 CFR part 228, and for the establishment or revision of criteria under section 102(a) of the MPRSA, EPA shall prepare appropriate environmental documents consistent with EPA's Notice of Policy and Procedures for Voluntary Preparation of National Environmental Policy Act

(NEPA)Documents dated October 29, 1998 (see 63 FR 58045).

(2)For individual permits issued by EPA under section 102(b) an environmental assessment shall be made by EPA. Pursuant to 40 CFR part 221, the permit applicant shall submit with the application an environmental analysis which includes a discussion of the need for the action, an outline of alternatives, and an analysis of the environmental impact of the proposed action and alternatives consistent with the EPA criteria established under section 102(a) of MPRSA. The information submitted under 40 CFR part 221 shall be sufficient to satisfy the environmental assessment requirement.

(c)*EPA permitting and licensing activities.* The appropriate Regional Administrator is responsible for conducting concise environmental reviews with regard to permits issued under section 3005 of the Resource Conservation and Recovery Act (RCRA permits), section 402 of the Clean Water Act (NPDES permits), and section 165 of the Clean Air Act (PSD permits), for such actions undertaken by EPA which affect the global commons or foreign nations. The information submitted by applicants for such permits or approvals under the applicable consolidated permit regulations (40 CFR parts 122 and 124) and Prevention of Significant Deterioration

(PSD)regulations (40 CFR part 52) shall satisfy the environmental document requirement under Section 2-4(b) of Executive Order 12114. Compliance with applicable requirements in part 124 of the consolidated permit regulations (40 CFR part 124) shall be sufficient to satisfy the requirements to conduct a concise environmental review for permits subject to this paragraph (c).

(d)*Wastewater treatment facility planning.* 40 CFR part 6, subparts A through C, detail the environmental review process for the facilities planning process under the wastewater treatment works construction grants program. For the purpose of these regulations, the facility plan shall also include a concise environmental review of those activities that would have environmental effects abroad. This shall apply only to the Step 1 grants awarded after January 14, 1981, but on or before December 29, 1981, and facilities plans developed after December 29, 1981. Where water quality impacts identified in a facility plan are the subject of water quality agreements with Canada or Mexico, nothing in these regulations shall impose on the facility planning process coordination and consultation requirements in addition to those required by such agreements.

(e)*Review by other Federal agencies and other appropriate officials.* The responsible officials shall consult with other Federal agencies with relevant expertise during the preparation of the environmental document. As soon as feasible after preparation of the environmental document, the responsible official shall make the document available to the Council on Environmental Quality, Department of State, and other appropriate officials. The responsible official with assistance from OIA shall work with the Department of State to establish procedures for communicating with and making documents available to foreign nations and international organizations. § 6.404 Lead or cooperating agency.

(a)*Lead Agency.* Section 3-3 of Executive Order 12114 requires the creation of a lead agency whenever an action involves more than one Federal agency. In implementing section 3-3, EPA shall, to the fullest extent possible, follow the guidance for the selection of a lead agency contained in 40 CFR 1501.5 of the CEQ regulations.

(b)*Cooperating Agency.* Under Section 2-4(d) of the Executive Order, Federal agencies with special expertise are encouraged to provide appropriate resources to the agency preparing environmental documents in order to avoid duplication of resources. In working with a lead agency, EPA shall to the fullest extent possible serve as a cooperating agency in accordance with 40 CFR 1501.6. When other program commitments preclude the degree of involvement requested by the lead agency, the responsible EPA official shall so inform the lead agency in writing. § 6.405 Exemptions and considerations. Under section 2-5(b) and

(c)of the Executive Order, Federal agencies may provide for modifications in the contents, timing and availability of documents or exemptions from certain requirements for the environmental review and assessment. The responsible official, in consultation with the Director, Office of Federal Activities (OFA), and the Assistant Administrator, Office of International Affairs (OIA), may approve modifications for situations described in section 2-5(b). The responsible official, in consultation with the Director, OFA and Assistant Administrator, OIA, shall obtain exemptions from the Administrator for situations described in section 2-5(c). The Department of State and the Council on Environmental Quality shall be consulted as soon as possible on the utilization of such exemptions. § 6.406 Implementation.

(a)*Oversight.* OFA is responsible for overseeing the implementation of these procedures and shall consult with OIA wherever appropriate. OIA shall be utilized for making formal contacts with the Department of State. OFA shall assist the responsible officials in carrying out their responsibilities under these procedures.

(b)*Information exchange.* OFA with the aid of OIA, shall assist the Department of State and the Council on Environmental Quality in developing the informational exchange on environmental review activities with foreign nations.

(c)*Unidentified activities.* The responsible official shall consult with OFA and OIA to establish the type of environmental review or document appropriate for any new EPA activities or requirements imposed upon EPA by statute, international agreement or other agreements. [FR Doc. E6-21402 Filed 12-18-06; 8:45 am] BILLING CODE 6560-50-P 71 243 Tuesday, December 19, 2006 Presidential Documents Part VI The President Proclamation 8091—Wright Brothers Day, 2006 Title 3— The President Proclamation 8091 of December 15, 2006 Wright Brothers Day, 2006 By the President of the United States of America A Proclamation America has a rich history of exploration and discovery, marked by scientific and technological achievements that have transformed the world. On Wright Brothers Day, we remember two aviation pioneers from Ohio whose big dreams and extraordinary accomplishments helped change the course of human history. On December 17, 1903, Orville and Wilbur Wright completed the first manned, powered flight in history and ushered all of mankind into a new era of possibility and promise. With Orville at the controls, the Wright brothers' small aircraft traveled 120 feet in 12 seconds above the dunes of Kitty Hawk, North Carolina. The age of flight had begun, and in the decades that followed, advancements in aviation would enable determined American risk-takers to cross oceans, break the sound barrier, and walk on the Moon. Today, our Nation follows the Wright brothers' example of innovation as we continue to explore the frontiers of air and space. My Administration has outlined a vision for space exploration that includes a return to the Moon and a long-term human and robotic program to explore Mars and the solar system. By working to expand the realm of the possible, we can gain a better understanding of the universe and continue the journey that the Wright brothers began more than a century ago. The Congress, by a joint resolution approved December 17, 1963, as amended (77 Stat. 402; 36 U.S.C. 143), has designated December 17 of each year as “Wright Brothers Day” and has authorized and requested the President to issue annually a proclamation inviting the people of the United States to observe that day with appropriate ceremonies and activities. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, do hereby proclaim December 17, 2006, as Wright Brothers Day. IN WITNESS WHEREOF, I have hereunto set my hand this fifteenth day of December, in the year of our Lord two thousand six, and of the Independence of the United States of America the two hundred and thirty-first. GWBOLD.EPS [FR Doc. 06-9802 Filed 12-18-06; 11:34 am]

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