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Code · REGISTER · 2007-02-06 · Federal Highway Administration (FHWA) · Notices

Notices. Notice

88,206 words·~401 min read·/register/2007/02/06/07-472

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

BILLING CODE 4910-13-M DEPARTMENT OF TRANSPORTATION Federal Highway Administration Highway Safety Improvement Program “Five Percent Reports” Posted on DOT/FHWA Web Site AGENCY: Federal Highway Administration (FHWA). ACTION: Notice. SUMMARY: In accordance with 23 U.S.C. 148, as amended by section 1401 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), States are required to submit reports describing at least 5 percent of their public road locations exhibiting the most severe safety needs.
In addition, these reports shall be made available to the public through the Department of Transportation's Web site. The FHWA is issuing this notice to advise the public that the reports submitted by the States are now available on the FHWA Web site, *http://safety.fhwa.dot.gov/fivepercent/index.htm.* DATES: These reports were posted on the Web site on December 15, 2006. ADDRESSES: The reports are posted on the FHWA Web site at: *http://safety.fhwa.dot.gov/fivepercent/index.htm.* FOR FURTHER INFORMATION CONTACT:
George E. Rice, Jr., Office of Safety Design,
(202)366-9064, Kenneth Epstein, Office of Safety Programs,
(202)366-2157, or Raymond Cuprill, Office of the Chief Counsel,
(202)366-0971, Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59; Aug. 10, 2005) amended section 148 of title 23, United States Code, to establish a new “core” Highway Safety Improvement Program
(HSIP)that provides funds to State Departments of Transportation to improve conditions at hazardous highway locations and hazardous railway-highway grade crossings on all public roads. Section 148, as amended, requires the States to submit reports describing at least 5 percent of a State's highway locations exhibiting the most severe safety needs, including an estimate of the potential remedies, their costs, and impediments to their implementation other than cost for each of the locations listed [23 U.S.C. 148(c)(1)(D)]. These reports are intended to help raise public awareness of the highway safety needs and challenges in the States. Section 148 also requires that these “5 Percent Reports” be posted on the Department of Transportation's Web site [23 U.S.C. 148(g)(3)(A)]. Please note that the reports provided by the States represent a variety of methods utilized and various degrees of road coverage. Therefore, the reports should not be compared to one another. The reports that have been posted on the Web site are protected from discovery and admission into evidence. In accordance with 23 U.S.C. 148(g)(4), information collected or compiled for any purpose directly relating to these reports shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location identified or addressed in the reports. The FHWA provided guidance for the States to use in the preparation of these reports. Additional information about the program, including the guidance provided by the FHWA to the States, may be found at: *http://safety.fhwa.dot.gov/safetealu/fiveguidance.htm.* **Authority:** 23 U.S.C. 148(c)(1)(D), 23 U.S.C. 148(g)(3)(A), and Section 1401 of Pub Law 109-59. Issued on: January 26, 2007. J. Richard Capka, Federal Highway Administrator. [FR Doc. E7-1844 Filed 2-5-07; 8:45 am] BILLING CODE 4910-22-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA-02-12423, FMCSA-02-12844, FMCSA-04-19477] Qualification of Drivers; Exemption Applications; Vision AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of renewal of exemptions; request for comments. SUMMARY: FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 10 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemptions will provide a level of safety that will be equivalent to, or greater than, the level of safety maintained without the exemptions for these commercial motor vehicle
(CMV)drivers. DATES: This decision is effective February 25, 2007. Comments must be received on or before March 8, 2007. ADDRESSES: You may submit comments identified by DOT Docket Management System
(DMS)Docket Numbers FMCSA-02-12423, FMCSA-02-12844, FMCSA-04-19477, using any of the following methods. • *Web site: http://dmses.dot.gov.* Follow the instructions for submitting comments on the DOT electronic docket site. • *Fax:* 1-202-493-2251. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the online instructions for submitting comments. *Instructions:* All submissions must include the Agency name and docket numbers for this notice. Note that all comments received will be posted without change to *http://dms.dot.gov,* including any personal information provided. Please see the Privacy Act heading for further information. *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* at any time or Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The DMS is available 24 hours each day, 365 days each year. If you want us to notify you that we received your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments on-line. *Privacy Act:* Anyone may search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477; Apr. 11, 2000). This information is also available at *http://dms.dot.gov.* FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Chief, Physical Qualifications Division,
(202)366-4001, *maggi.gunnels@dot.gov,* FMCSA, Department of Transportation, 400 Seventh Street, SW., Room 8301, Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m., E.T., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Exemption Decision Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381. This notice addresses 10 individuals who have requested renewal of their exemptions in a timely manner. FMCSA has evaluated these 10 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are: Roger C. Carson Charles R. O'Connell Henry A. Shelton William T. Cummins Dennis R. O'Dell, Jr. Ronald A. Stevens Harold D. Jones Jerry W. Parker Lester G. Kelley, II Virgil A. Potts These exemptions are extended subject to the following conditions:
(1)That each individual have a physical examination every year
(a)By an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in 49 CFR 391.41(b)(10), and
(b)by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41;
(2)that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and
(3)that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retain a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if:
(1)The person fails to comply with the terms and conditions of the exemption;
(2)the exemption has resulted in a lower level of safety than was maintained before it was granted; or
(3)continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. Basis for Renewing Exemptions Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 10 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (67 FR 68719; 68 FR 2629; 69 FR 71100; 68 FR 8794; 70 FR 8659; 69 FR 64806; 70 FR 2705). Each of these 10 applicants has requested timely renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the standard specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption standards. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption. Request for Comments FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by March 8, 2007. FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 10 individuals from the vision requirement in 49 CFR 391.41(b)(10). The final decision to grant an exemption to each of these individuals was based on the merits of each case and only after careful consideration of the comments received to its notices of applications. The notices of applications stated in detail the qualifications, experience, and medical condition of each applicant for an exemption from the vision requirements. That information is available by consulting the above cited **Federal Register** publications. Interested parties or organizations possessing information that would otherwise show that any, or all of these drivers, are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver. Issued on: January 30, 2007. Pamela M. Pelcovits, Office Director, Policy Plans and Regulations. [FR Doc. E7-1845 Filed 2-5-07; 8:45 am] BILLING CODE 4910-EX-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration Solicitation of Applications for Fiscal Year
(FY)2007, Safety Data Improvement Program Grant Opportunity AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice. SUMMARY: FMCSA announces that it has published an opportunity to apply for FY 2007 Safety Data Improvement Program Grant Opportunity funding on the grants.gov Web site ( *http://www.grants.gov* ). Section 4128 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy For Users (SAFETEA-LU) establishes the Safety Data Improvement Program Grant Program Opportunity. The legislation supports a discretionary grant program that provides funding for States to improve the quality of crash and inspection truck and bus data reported by the States to FMCSA, as defined in Section 31102 of Title 49, United States Code. Eligible awardees can include a State agency located in one of the fifty States, the District of Columbia, Puerto Rico, Northern Mariana Islands, American Samoa, Guam, and the U.S. Virgin Islands. To apply for funding, applicants must be registered with grants.gov. Registration with grants.gov may take two to five days before the system will allow you to apply for grants using the grants.gov Web site ( *http://www.grants.gov/applicants/get_registered.jsp* ). Submit application in accordance with the instructions provided. Applications for grant funding must be submitted electronically to the FMCSA through the grants.gov Web site. The Catalog of Federal Domestic Assistance
(CFDA)number for Safety Data Improvement Program is 20.234. DATES: FMCSA will initially consider funding for applications submitted by March 31, 2007, by qualified applicants. If additional funding remains available, applications submitted after March 31, 2007 will be considered on a case-by-case basis. Funds will not be available for allocation until fiscal year 2007 appropriations legislation is passed and signed into law. Funding is subject to reductions resulting from obligation limitations or rescissions as specified in SAFETEA-LU or other legislation. FOR FURTHER INFORMATION CONTACT: Ms. Betsy Benkowski, Federal Motor Carrier Safety Administration, Office of Research and Analysis, Analysis Division, e-mail: *betsy.benkowski@.dot.gov,* telephone: 202-366-5387, 400 7th Street, SW., Suite 8214, Washington, DC 20590. Office hours are from 8 a.m. to 4:30 p.m., ET, Monday through Friday, except Federal holidays. Issued on January 29, 2007. John H. Hill, Administrator. [FR Doc. E7-1842 Filed 2-5-07; 8:45 am] BILLING CODE 4910-MC-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA-04-17984] Qualification of Drivers; Exemption Applications; Vision AGENCY: Federal Motor Carrier Safety Administration, DOT. ACTION: Notice of renewal of exemption; request for comments. SUMMARY: FMCSA announces its decision to renew the exemption from the vision requirement in the Federal Motor Carrier Safety Regulations for Scott D. Goalder. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that renewing Mr. Goalder's exemption will provide a level of safety that will be equivalent to, or greater than, the level of safety maintained without the exemption for this commercial motor vehicle
(CMV)driver. DATES: This decision is effective February 25, 2007. Comments must be received on or before March 8, 2007. ADDRESSES: You may submit comments identified by DOT Docket Management System
(DMS)Docket Number FMCSA- 04 17984, using any of the following methods. • *Web site: http://dmses.dot.gov* . Follow the instructions for submitting comments on the DOT electronic docket site. • *Fax:* 1-202-493-2251. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, S.W., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the online instructions for submitting comments. *Instructions:* All submissions must include the Agency name and docket number for this notice. Note that all comments received will be posted without change to *http://dms.dot.gov* , including any personal information provided. Please see the Privacy Act heading for further information. *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* at any time or Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The DMS is available 24 hours each day, 365 days each year. If you want us to notify you that we received your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments on-line. *Privacy Act:* Anyone may search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477; Apr. 11, 2000). This information is also available at *http://dms.dot.gov* . FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Chief, Physical Qualifications Division,
(202)366-4001, *maggi.gunnels@dot.gov* FMCSA, Department of Transportation, 400 Seventh Street, SW., Room 8301, Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m., E.T., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Exemption Decision Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381. This notice addresses Mr. Scott D. Goalder who has requested renewal of his exemption in a timely manner. FMCSA has evaluated his application for renewal on its merits and decided to extend the exemption for a renewable two-year period. This exemption is extended subject to the following conditions:
(1)That Mr. Goalder have a physical examination every year
(a)by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in 49 CFR 391.41(b)(10), and
(b)by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41;
(2)that he provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and
(3)that he provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retain a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Mr. Goalder's exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if:
(1)He fails to comply with the terms and conditions of the exemption;
(2)the exemption has resulted in a lower level of safety than was maintained before it was granted; or
(3)continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. Basis for Renewing Exemptions Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two-year periods. In accordance with 49 U.S.C. 31136(e) and 31315, the 1 applicant has satisfied the entry conditions for obtaining an exemption from the vision requirements (69 FR 33997; 69 FR 61292). This 1 applicant has requested timely renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the standard specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of his record of safety while driving with the vision deficiency over the past two years indicates the applicant continues to meet the vision exemption standards. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for Mr. Goalder for a period of two years is likely to achieve a level of safety equal to that existing without the exemption. Request for Comments FMCSA will review comments received at any time concerning Mr. Goalder's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of this driver submit comments by March 8, 2007. FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published a notice of final disposition announcing its decision to exempt Mr. Goalder (69 FR 61293; Oct. 15, 2004) from the vision requirement in 49 CFR 391.41(b)(10). The final decision to grant an exemption to this individual was based on the merits of his case and only after careful consideration of the comments received to its notice of application. The notice of application stated in detail the qualifications, experience, and medical condition of this applicant for an exemption from the vision requirements. That information is available by consulting the above cited **Federal Register** publications. Interested parties or organizations possessing information that would otherwise show that this driver is not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of the driver. Issued on: January 30, 2007. Pamela M. Pelcovits, Office Director, Policy and Program Development. [FR Doc. E7-1835 Filed 2-5-07; 8:45 am] BILLING CODE 4910-EX-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [FMCSA Docket No. FMCSA-2006-26321] Qualification of Drivers; Exemption Applications; Diabetes AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of final disposition. SUMMARY: FMCSA announces its decision to exempt sixty-six individuals from its rule prohibiting persons with insulin-treated diabetes mellitus
(ITDM)from operating commercial motor vehicles
(CMVs)in interstate commerce. The exemptions will enable these individuals to operate CMVs in interstate commerce. DATES: The exemptions are effective February 6, 2007. The exemptions expire on February 6, 2009. FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Chief, Physical Qualifications Division,
(202)366-4001, *maggi.gunnels@dot.gov* , FMCSA, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Electronic Access You may see all the comments online through the Document Management System
(DMS)at: *http://dmses.dot.gov* . *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* and/or Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. *Privacy Act:* Anyone may search the electronic form of all comments received into any of DOT's dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, or other entity). You may review DOT's complete Privacy Act Statement in the **Federal Register** (65 FR 19477, Apr. 11, 2000). This statement is also available at *http://dms.dot.gov* . Background On December 13, 2006, FMCSA published a notice of receipt of Federal diabetes exemption applications from sixty-six individuals, and requested comments from the public (71 FR 74986). The public comment period closed on January 12, 2007 and no comments were received. FMCSA has evaluated the eligibility of the sixty-six applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to, or greater than, the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3). Diabetes Mellitus and Driving Experience of the Applicants The Agency established the current standard for diabetes in 1970 because several risk studies indicated that diabetic drivers had a higher rate of crash involvement than the general population. The diabetes rule provides that “A person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control” (49 CFR 391.41(b)(3)). FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program To Qualify Individuals With Insulin-Treated Diabetes Mellitus To Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with Insulin-Treated Diabetes Mellitus
(ITDM)to operate CMVs is feasible. The 2003 notice in conjunction with the November 8, 2005 (70 FR 67777) **Federal Register** Notice provides the current protocol for allowing such drivers to operate CMVs in interstate commerce. These sixty-six applicants have had ITDM over a range of 1 to 38 years. These applicants report no hypoglycemic reaction that resulted in loss of consciousness or seizure, that required the assistance of another person, or resulted in impaired cognitive function without warning symptoms in the past 5 years (with one year of stability following any such episode). In each case, an endocrinologist has verified that the driver has demonstrated willingness to properly monitor and manage their diabetes, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision standard at 49 CFR 391.41(b)(10). The qualifications and medical condition of each applicant were stated and discussed in detail in the December 13, 2006, **Federal Register** Notice (71 FR 74986). Because there were no docket comments on the specific merits or qualifications of any applicant, we have not repeated the individual profiles here. Basis for Exemption Determination Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes standard in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce. To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologist's medical opinion related to the ability of the driver to safely operate a CMV while using insulin. Consequently, FMCSA finds that exempting these applicants from the diabetes standard in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption. Conditions and Requirements The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following:
(1)That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation;
(2)that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not they are related to an episode of hypoglycemia;
(3)that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and
(4)that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official. Discussion of Comments FMCSA received no comments in this proceeding. Conclusion There were no comments to the docket, therefore, based upon its evaluation of the sixty-six exemption applications, FMCSA exempts, Louis T. Aceto, James D. Barton, Lawrence H. Behrens, Joel L. Bogenrief, Timothy W. Brogan, Eddy B. Brown, Kenneth E. Buck, Carolynda Cain, Roy B. Carter, Bradley D. Case, Jonathan M. Cleek, David D. Collart, Donald L. Cowan, Michael J. Drake, Thomas D. Dyke, Glenn D. Folkers, Anthony L. Gentry, Howard L. Gocke, James S. Goldman, Carol D. Hardin, Jerry Hardy, Michael T. Hartley, David A. Heider, John A. Helm, John A. Herbert, Lester H. Hughes, Gayle E. Jones, Gerald P. Kargus, Christopher A. Knott, Norman L. Krietemeyer, Jerome A. Krupka, James A. Kunkel, Mark W. Lavorini, Jeffrey C. Link, Londell W. Luther, Harry E. Marsh, Joseph C. McMasters, George R. McMullen, James B. Morris, Bradley S. Mowdy, James R. Murphy, Ronald W. Nelson, Vincent A. Palumbo, Kent E. Pelkey, Keith E. Peterson, Victor C. Port, Lee F. Powell, Allen W. Quon, Armand O. Rondeau, Carl J. Satariano, Randall W. Skaggs, Louis L. Sorenson, James L. Spencer, Ronald D. Stewart, Andy L. Strommenger, Richard J. Symonies, Sr., Douglas K. Thompson, Richard L. Thompson, James L. Tjon, Lowell T. Tucker, Shawn P. Wathley, John P. Westbay, John M. White, Jeffrey M. Wood, Christopher T. Worsley, and Fredrick J. Young from the ITDM standard in 49 CFR 391.41(b)(3), subject to the conditions listed under “Conditions and Requirements” above. In accordance with 49 U.S.C. 31136(e) and 31315 each exemption will be valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if:
(1)The person fails to comply with the terms and conditions of the exemption;
(2)the exemption has resulted in a lower level of safety than was maintained before it was granted; or
(3)continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time. Issued on: January 30, 2007. Pamela M. Pelcovits, Office Director, Policy Plans and Regulation. [FR Doc. E7-1839 Filed 2-5-07; 8:45 am] BILLING CODE 4910-EX-P DEPARTMENT OF TRANSPORTATION Federal Railroad Administration Proposed Agency Information Collection Activities; Comment Request AGENCY: Federal Railroad Administration, DOT. ACTION: Notice. SUMMARY: In accordance with the Paperwork Reduction Act of 1995 and its implementing regulations, the Federal Railroad Administration
(FRA)hereby announces that it is seeking approval of the following information collection activities. Before submitting these information collection requirements for clearance by the Office of Management and Budget (OMB), FRA is soliciting public comment on specific aspects of the activities identified below. DATES: Comments must be received no later than April 9, 2007. ADDRESSES: Submit written comments on any or all of the following proposed activities by mail to either: Mr. Robert Brogan, Office of Safety, Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 17, Washington, DC 20590, or Ms. Gina Christodoulou, Office of Support Systems Staff, RAD-43, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 35, Washington, DC 20590. Commenters requesting FRA to acknowledge receipt of their respective comments must include a self-addressed stamped postcard stating, “Comments on OMB control number 2130-New.” Alternatively, comments may be transmitted via facsimile to
(202)493-6230 or
(202)493-6170, or E-mail to Mr. Brogan at *robert.brogan@dot.gov* , or to Ms. Christodoulou at *gina.christodoulou@dot.gov* . Please refer to the assigned OMB control number or collection title in any correspondence submitted. FRA will summarize comments received in response to this notice in a subsequent notice and include them in its information collection submission to OMB for approval. FOR FURTHER INFORMATION CONTACT: Mr. Robert Brogan, Office of Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 17, Washington, DC 20590 ( *telephone:*
(202)493-6292) or Ms. Gina Christodoulou, Office of Support Systems Staff, RAD-43, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 35, Washington, DC 20590 ( *telephone:*
(202)493-6139). (These telephone numbers are not toll-free.) SUPPLEMENTARY INFORMATION: The Paperwork Reduction Act of 1995 (PRA), Pub. L. No. 104-13, § 2, 109 Stat. 163
(1995)(codified as revised at 44 U.S.C. §§ 3501-3520), and its implementing regulations, 5 CFR Part 1320, require Federal agencies to provide 60-days notice to the public for comment on information collection activities before seeking approval by OMB. 44 U.S.C. § 3506(c)(2)(A); 5 CFR §§ 1320.8(d)(1), 1320.10(e)(1), 1320.12(a). Specifically, FRA invites interested respondents to comment on the following summary of proposed information collection activities regarding
(i)Whether the information collection activities are necessary for FRA to properly execute its functions, including whether the activities will have practical utility;
(ii)the accuracy of FRA's estimates of the burden of the information collection activities, including the validity of the methodology and assumptions used to determine the estimates;
(iii)ways for FRA to enhance the quality, utility, and clarity of the information being collected; and
(iv)ways for FRA to minimize the burden of information collection activities on the public by automated, electronic, mechanical, or other technological collection techniques or other forms of information technology ( *e.g.* , permitting electronic submission of responses). *See* 44 U.S.C. § 3506(c)(2)(A)(i)-(iv); 5 CFR 1320.8(d)(1)(i)-(iv). FRA believes that soliciting public comment will promote its efforts to reduce the administrative and paperwork burdens associated with the collection of information mandated by Federal regulations. In summary, FRA reasons that comments received will advance three objectives:
(i)Reduce reporting burdens;
(ii)ensure that it organizes information collection requirements in a “user friendly” format to improve the use of such information; and
(iii)accurately assess the resources expended to retrieve and produce information requested. *See* 44 U.S.C. § 3501. Below is a brief summary of proposed new information collection activities that FRA will submit for clearance by OMB as required under the PRA: *Title:* Causal Analysis and Countermeasures to Reduce Rail-Related Suicides. *OMB Control Number:* 2130-New. *Abstract:* Pedestrian trespassing on railroad property resulting in serious injury or death is one of the two most serious safety problems—the second being grade crossing collisions—facing the railroad industry and its regulators not only in the United States but also in other countries. It is widely believed in the United States that the reported prevalence and incidence of railway suicide vastly under-represents the nature and extent of the problem. There is no central reporting system within the railroad industry or suicide prevention field that provides verifiable information about how many trespass deaths are accidental versus intentional. Therefore, there are no verifiable measures of the extent of rail-related suicides in this country. While railroad companies must report trespass incidents resulting in serious injury or death to the U.S. Federal Railroad Administration (FRA), injuries or deaths that are ruled by a medical examiner or coroner to be intentional are not reported. Preliminary figures from 2006 indicate there were approximately 500 deaths and 360 injuries reported to FRA—an increase of 100 incidents over the previous year—but suicides are not represented in these numbers. Unverifiable estimates from a number of sources range from 150 to more than 300 suicides per year on the U.S. railways. Like any other incident on the rail system, a suicide on the tracks results in equipment and facility damage, delays to train schedules, and trauma to railroad personnel involved in the incidents. As a result, FRA last year awarded a grant for the first phase of a five-year project to reduce suicides on the rail system to the Railroad Research Foundation (part of the Association of American Railroads) and its subcontractor, the American Association of Suicidology (AAS). In the course of the five-year project, the research project's goals include:
(i)A prevalence assessment to determine verifiable numbers of suicides on the rail system;
(ii)Development of a standardized reporting tool for industry use;
(iii)A causal analysis and root cause analysis of suicide incidents that occur during the grant cycle; and
(iv)Design and implementation of suicide prevention measures for the nation's rail system to reduce suicide injuries and deaths. AAS is also receiving a grant from the Federal Transit Administration
(FTA)to study suicides on commuter rail lines throughout the country. Consequently, AAS has expanded its study to include commuter lines as well, and will be using the same collection instruments once they are approved by the Office of Management and Budget. This collection of information pertains to Phase II of the project, the causal analysis. In order to understand as much as possible about people who intend to die by placing themselves in the path of a train and, therefore, to design prevention strategies, AAS intends to conduct 70 psychological autopsies over the course of two years on people who die by rail-related suicide. Psychological autopsy is a recognized and accepted method for obtaining information about physical, emotional, and circumstantial contributors to a person's death. The 70 psychological autopsies proposed for the FRA and FTA projects will involve interviews with witnesses to these incidents—rail and commuter personnel and members of the public—as well as family members, friends, employers, and co-workers. After conducting a root cause analysis of this data, AAS will then work with the industry to design, pilot test, and implement effective countermeasures with the goal of reducing deaths, injuries, and psychological trauma. *Form Number(s):* FRA F 6180.125A; FRA F 6180.125B. *Affected Public:* Railroad Personnel, Members of the Public, Affected Family and Friends. *Respondent Universe:* 210 Railroad Personnel/Members of the Public/Affected Family and Friends. *Frequency of Submission:* On occasion. *Estimated Annual Burden:* 60 hours. *Status:* Regular Review. Pursuant to 44 U.S.C. 3507(a) and 5 CFR §§ 1320.5(b), 1320.8(b)(3)(vi), FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Authority: 44 U.S.C. §§ 3501-3520. Issued in Washington, DC on January 31, 2007. D.J. Stadtler, Director, Office of Budget, Federal Railroad Administration. [FR Doc. E7-1826 Filed 2-5-07; 8:45 am] BILLING CODE 4910-06-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration [Docket No. NHTSA 2006-26656; Notice 2] Continental Tire North America, Grant of Petition for Decision of Inconsequential Noncompliance Continental Tire North America (Continental) has determined that certain tires it produced in 2006 do not comply with S5.5(f) of 49 CFR 571.139, Federal Motor Vehicle Safety Standard (FMVSS) No. 139, “New pneumatic radial tires for light vehicles.” Pursuant to 49 U.S.C. 30118(d) and 30120(h), Continental has petitioned for a determination that this noncompliance is inconsequential to motor vehicle safety and has filed an appropriate report pursuant to 49 CFR Part 573, “Defect and Noncompliance Reports.” Notice of receipt of a petition was published, with a 30-day comment period, on December 26, 2006, in the **Federal Register** (71 FR 77436). NHTSA received no comments. Affected are a total of approximately 1,369 model 225/70R16 103S Continental and General replacement tires manufactured during October 2006. S5.5(f) of FMVSS No. 139 requires the actual number of plies in the tread area to be molded on both sidewalls of each tire. The noncompliant tires are marked on the sidewall “TREAD 5 PLIES 2 STEEL + 2 POLYESTER + 1 NYLON” whereas the correct marking should be “TREAD 4 PLIES 2 STEEL + 2 POLYESTER.” Continental has corrected the problem that caused these errors so that they will not be repeated in future production. Continental Tire believes that the noncompliance is inconsequential to motor vehicle safety and that no corrective action is warranted. Continental Tire states, All other sidewall identification markings and safety information are correct. This noncompliant sidewall marking does not affect the safety, performance and durability of the tire; the tires were built as designed. The agency agrees with Continental that the noncompliance is inconsequential to motor vehicle safety. The agency believes that the true measure of inconsequentiality to motor vehicle safety in this case is that there is no effect of the noncompliance on the operational safety of vehicles on which these tires are mounted. The safety of people working in the tire retread, repair, and recycling industries must also be considered. Although tire construction affects the strength and durability, neither the agency nor the tire industry provides information relating tire strength and durability to the number of plies and types of ply cord material in the tread and sidewall. Therefore, tire dealers and customers should consider the tire construction information along with other information such as the load capacity, maximum inflation pressure, and tread wear, temperature, and traction ratings, to assess performance capabilities of various tires. In the agency's judgment, the incorrect labeling of the tire construction information will have an inconsequential effect on motor vehicle safety because most consumers do not base tire purchases or vehicle operation parameters on the number of plies in a tire. The agency believes the noncompliance will have no measurable effect on the safety of the tire retread, repair, and recycling industries. The use of steel cord construction in the sidewall and tread is the primary safety concern of these industries. In this case, since the tire sidewalls are marked correctly for the number of steel plies, this potential safety concern does not exist. In consideration of the foregoing, NHTSA has decided that the petitioner has met its burden of persuasion that the noncompliance described is inconsequential to motor vehicle safety. Accordingly, Continental's petition is granted and the petitioner is exempted from the obligation of providing notification of, and a remedy for, the noncompliance. Authority: 49 U.S.C. 30118, 30120; delegations of authority at CFR 1.50 and 501.8. Issued on: January 30, 2007. Daniel C. Smith, Associate Administrator for Enforcement. [FR Doc. E7-1843 Filed 2-5-07; 8:45 am] BILLING CODE 4910-59-P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Ex Parte No. 290 (Sub-No. 4)] Railroad Cost Recovery Procedures—Productivity Adjustment AGENCY: Surface Transportation Board. ACTION: Proposed adoption of a Railroad Cost Recovery Procedures Productivity Adjustment. SUMMARY: The Surface Transportation Board proposes to adopt 1.017 (1.7%) as the measure of average change in railroad productivity for the 2001-2005 (5-year) averaging period. This value is a decline of 0.2 of a percentage point from the current measure of 1.9% that was developed for the 2000-2004 period. DATES: Comments are due February 20, 2007. EFFECTIVE DATE: The proposed productivity adjustment is effective March 1, 2007. ADDRESSES: Send comments (an original and 10 copies) referring to STB Ex Parte No. 290 (Sub-No. 4) to: Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. FOR FURTHER INFORMATION CONTACT: Mac Frampton,
(202)565-1541. [Federal Information Relay Service
(FIRS)for the hearing impaired: 1-800-877-8339.]. SUPPLEMENTARY INFORMATION: Additional information is contained in the Board(s decision, which is available on our Web site *http://www.stb.dot.gov.* To purchase a copy of the full decision, write to, e-mail or call the Board's contractor, ASAP Document Solutions; 9332 Annapolis Rd., Suite 103, Lanham, MD 20706; e-mail *asapdc@verizon.net* ; phone
(202)306-4004. [Assistance for the hearing impaired is available through FIRS: 1-800-877-8339.] . This action will not significantly affect either the quality of the human environment or energy conservation. Pursuant to 5 U.S.C. 605(b), we conclude that our action will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. Decided: January 30, 2007. By the Board, Chairman Nottingham, Vice Chairman Buttrey, and Commissioner Mulvey. Vernon A. Williams, Secretary. [FR Doc. E7-1818 Filed 2-5-07; 8:45 am] BILLING CODE 4915-01-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration [Docket No. NHTSA-2007-27159] Amendments to Highway Safety Program Guidelines AGENCY: National Highway Traffic Safety Administration (NHTSA), Department of Transportation. ACTION: Request for comments, highway safety program guidelines. SUMMARY: Section 402 of title 23 of the United States Code requires the Secretary of Transportation to promulgate uniform guidelines for State highway safety programs. NHTSA is seeking comments on proposed amendments to six
(6)of the existing guidelines and one
(1)new guideline to reflect program methodology and approaches that have proven to be successful and are based on sound science and program administration. The guidelines the agency proposes to revise are as follows: Guideline No. 4 Driver Education; Guideline No. 5 Non-Commercial Driver Licensing (formerly Driver Licensing); Guideline No. 7 Judicial and Court Services (formerly Traffic Courts); Guideline No. 10 Traffic Records; Guideline No. 17 Pupil Transportation Safety; and Guideline No. 21 Roadway Safety. This notice also proposes a new guideline, Guideline No. 12 Prosecutor Training and Outreach. NHTSA has developed Guideline No. 12 because it has found that conducting educational and training outreach to judges and prosecutors is an important element for law enforcement efforts to be truly effective as a deterrent to dangerous driving behaviors. NHTSA believes the proposed revisions and additions will provide more accurate, current and detailed guidance to the States. The guidelines will be made publicly available on the NHTSA Web site. DATES: You should submit your comments early enough to ensure that Docket Management receives them not later than 30 days after publication in the **Federal Register** . ADDRESSES: You may submit comments in writing to: Docket Management, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590. Alternatively, you may submit your comments electronically by logging onto the Docket Management System
(DMS)Web site at *http://dms.dot.gov* . Click on ”Help & Information” or ”Help/Info” to view instructions for filing your comments electronically. Regardless of how you submit your comments, you should mention the docket number of this document. FOR FURTHER INFORMATION CONTACT: The following persons at the National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590: *For technical and policy issues:* Susan Kirinich, Research and Program Development, telephone
(202)366-1755, facsimile
(202)366-7149. *For legal issues:* Allison Rusnak, Office of the Chief Counsel, telephone
(202)366-1834, facsimile
(202)366-3820. SUPPLEMENTARY INFORMATION: Background Section 402 of title 23 of the United States Code requires the Secretary of Transportation to promulgate uniform guidelines for State highway safety programs. As the highway safety environment changes, it is necessary for NHTSA to update the guidelines to provide current information on effective program content for States to use in developing and assessing their traffic safety programs. Each of the proposed revised guidelines reflects the best science available and the real-world experience of NHTSA and the States in developing and managing traffic safety programs. NHTSA updates the guidelines periodically to address new issues and to emphasize program methodology and approaches that have proven to be effective in these program areas. The guidelines offer direction to States in formulating their highway safety plans for highway safety efforts that are supported with section 402 and other grant funds. The guidelines provide a framework for developing a balanced highway safety program and serve as a tool with which States can assess the effectiveness of their own programs. NHTSA encourages States to use these guidelines and build upon them to optimize the effectiveness of highway safety programs conducted at the State and local levels. The revised guidelines will emphasize areas of national concern and highlight effective countermeasures. The six
(6)guidelines NHTSA plans to revise along with the development of
(1)one new guideline as a result of this Notice represent the second in a series of revisions to the guidelines. The Agency revised six
(6)other guidelines on November 7, 2006 (71 FR 65172): Guideline No. 3 Motorcycle Safety; Guideline No. 8 Impaired Driving; Guideline No. 14 Pedestrian and Bicycle Safety; Guideline No. 15 Traffic Enforcement; Guideline No. 19 Speed Management; and Guideline No. 20 Occupant Protection. As each guideline is updated, it will include a date representing the date of its revision. The guidelines can be found in their entirety in the Highway Safety Grant Management Manual or at *http://www.nhtsa.dot.gov* . Comments Interested persons are invited to submit comments in response to this request for comments. Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments. Your comments must not be more than 15 pages long. (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents in your comments. There is no limit on the length of the attachments. Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under ADDRESSES . If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail. If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590. In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under ADDRESSES . When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation. (49 CFR part 512.) We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES . To the extent possible, we will also consider comments that Docket Management receives after that date. You may read the comments received by Docket Management at the address given above under ADDRESSES . The hours of the Docket are 9 a.m. to 5 p.m., Monday to Friday, except Federal holidays. You may also see the comments on the Internet. To read the comments on the Internet, take the following steps: • Go to the Docket Management System
(DMS)Web page of the Department of Transportation ( *http://dms.dot.gov* ). • On that page, click on “search.” • On the next page ( *http://dms.dot.gov/search/* ), type in the five-digit docket number shown at the beginning of this document. Example: If the docket number were “NHTSA-2001-12345,” you would type “12345.” After typing the docket number, click on “search.” • On the next page, which contains docket summary information for the docket you selected, click on the desired comments. You may download the comments. Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material. In consideration of the foregoing, NHTSA proposes to amend the guidelines as follows. Highway Safety Program Guideline No. 4 Driver Education Each State, in cooperation with its political subdivisions and tribal governments, should develop and implement a comprehensive, culturally competent highway safety program, reflective of State demographics, to achieve a significant reduction in traffic crashes, fatalities and injuries on public roads. All programs should be data driven and the highway safety program should include a driver education and training program designed to educate new drivers and provide remedial training for existing drivers. This guideline describes the components that the State driver education program should include and the minimum criteria that the program components should meet. I. Program Management Each State should have centralized program planning, implementation and coordination to deliver comprehensive and uniform driver education. Evaluation should be used to revise existing programs, develop new programs and determine progress and success. The State Highway Safety Office
(SHSO)should: • Provide leadership, training and technical assistance to public and private providers of driver education to ensure consistency and quality; • Identify an entity to provide oversight over driver education programs delivered within the State; and • Evaluate the effectiveness of the State's driver education program. II. Legislation, Regulation and Policy Each State should enact and enforce laws and policies intended to reduce crashes caused by novice drivers. To enhance the effectiveness of driver education, States should: • Enact Graduated Driver Licensing
(GDL)laws that include three stages of licensure, and that place restrictions and sanctions on high-risk driving situations for novice drivers ( *i.e.* , nighttime driving restrictions, passenger restrictions, zero tolerance, and required safety belt use); • Ensure that the GDL restrictions and sanctions for GDL licensure are included, adapted as necessary and enforceable for motorcycle operators; • Develop driver education standards and guidelines to which all driver education programs must adhere to satisfy licensing requirements for novice drivers; and • Ensure that completion of driver education programs will not reduce time required for novice drivers to proceed through a GDL system. III. Enforcement Program Components of a State driver education enforcement program should include: • Visible and well-publicized law enforcement of the components of the GDL and zero tolerance laws; • Licensing sanctions for violations of these provisions; • State agency oversight of driver education programs to ensure delivery of approved state curriculum; and • Administrative or financial penalties for programs in non-compliance. IV. Driver Education and Training Program A driver education program should be available to all youths of licensing age, and include the following criteria: • The program is taught by instructors certified by the State as qualified for these purposes; and • It provides each student with practice driving and instruction in at least the following: ○ Basic driving techniques including: starting, stopping, turning and basic interaction in controlled environments in light and moderate traffic; ○ Advanced driving techniques including: techniques for handling emergencies, such as skid control, braking in emergencies, and over-steering to avoid a crash; ○ Rules of the road, and other State laws and local motor vehicle laws and ordinances; ○ Critical vehicle systems and sub-systems requiring preventive maintenance; ○ Vehicle and highway features: ▪ That aid the driver in avoiding crashes; ▪ That protect the driver and passengers in crashes; and ▪ That maximize the care of the injured. ○ Signs, signals, and highway markings and highway design features that require understanding for safe operation of motor vehicles; ○ Differences in characteristics of urban and rural driving including safe use of modern expressways; ○ Safe Driving Practices including: making good driver decisions; use of occupant restraints; not driving under the influence; and dealing with fatigue, distractions and aggressive drivers; and ○ Sharing the roadway with other users, especially pedestrians, bicycles, and motorcycles, who are more physically vulnerable to injury or death in the event of a crash. Each State should also ensure: • That research and development programs including adequate research, development and procurement of practice driving facilities, simulators, and other similar teaching aids for both school and other driver training use; • There is a program for adult driver training and retraining; and • Commercial driving schools are licensed and commercial driving instructors are certified in accordance with specific criteria adopted by the State. V. Communication Program States should develop and implement communication strategies directed at supporting policy and program elements. The SHSO should develop a statewide communications plan and campaign that: • Informs the public about State GDL laws; • Identifies audiences at particular risk and develops appropriate messages; • Provides culturally competent materials; • Informs parents/guardians about the role of supervised driving and the State's GDL law; • Informs novice drivers about underage drinking and zero tolerance laws (in effect in all 50 States and the District of Columbia), such as including information in manuals for new drivers and including a question about the topic on the written test for a learner's permit; • Informs the public on the role of parental monitoring/involvement; and • Informs the public about State guidelines and regulation of driver education. VI. Program Evaluation and Data The SHSO should develop a comprehensive evaluation program to measure progress toward established project goals and objectives and optimize the allocation of limited resources. The State should promote effective evaluation by: • Supporting the analysis of police accident reports; • Encouraging, supporting and training localities in process, impact and outcome evaluation of local programs; • Evaluating the use of program resources and the effectiveness of existing countermeasures for the general public and high-risk populations; and • Ensuring that evaluation results are used to identify problems, plan new programs and improve existing programs. Highway Safety Program Guideline No. 5 Non-Commercial Driver Licensing Each State, in cooperation with its political subdivisions and tribal governments, should develop and implement a comprehensive, culturally competent highway safety program, reflective of State demographics, to achieve a significant reduction in traffic crashes, fatalities and injuries on public roads. Each state should have a driver licensing program ensuring that every driver is adequately trained and tested, evaluated for physical and mental fitness, when appropriate, and possesses only one driver license and driver record. I. Program Management Each State should have a licensing agency that ensures only those qualified to operate motor vehicles obtain a valid State driver license applicable to vehicles they are authorized to operate. This agency should: • Ensure that drivers are appropriately licensed for the vehicles they operate; • Ensure that driver license applicants are appropriately screened for correct identity; • Ensure that documents used to establish identity are appropriately analyzed; • Take appropriate measures to ensure that applicants are not licensed in other states; • Provide driver licenses that are tamper resistant to prevent fraudulent use of the document; and • Provide driver licenses that clearly indicate if the driver is under 21 years of age. II. Legislation, Regulation and Policy A model driver licensing program should provide, at a minimum, that each driver: • Hold only one license, which identifies the type(s) of vehicle(s) he or she is authorized to operate; • Submits acceptable proof of identity in applying for an original, renewal or re-application of a driver's license; • Passes an initial examination demonstrating his or her: ○ Ability to operate the class(es) of vehicles(s) for which he or she is licensed; ○ Ability to read and comprehend traffic signs and symbols; ○ Knowledge of laws relating to traffic (rules of the road) safe driving procedures, vehicle and highway safety features, emergency situations that arise in the operation of and other driver responsibilities; and ○ Visual acuity, which must meet or exceed State guidelines. • Renews his/her license, in-person, periodically. A model Graduated Driver Licensing
(GDL)law should require each driver under age 18 to participate in a GDL System, a three-stage system that incrementally adds privileges for novice drivers as they gain experience driving. The three-stage process should include the following progressive steps: ○ First, the young driver receives a learner's permit that requires completion of both a minimum of 6 months driving without an at-fault crash or traffic violation and supervised driving practice in which the supervising licensed driver is age 21 or older; ○ Next, the young driver receives an intermediate, or provisional, permit that requires completion of a minimum of 6 months driving without an at-fault crash or traffic violation and imposes nighttime driving restrictions and teenage passenger restrictions; as well as adherence to State safety belt use requirements; ○ The third and final stage is full licensure (with maximum blood alcohol limits of .02 until age 21); and ○ The driver should receive driver education that meets standards set by the State that are related to the state driving manual and driving test and, to the greatest degree possible, increases the safety performance of new drivers. (Under no circumstance should driver education reduce the time required to pass through the GDL system.) III. Driver Fitness Each State should have: • A system that provides medical evaluation of persons whom the driver licensing agency has reason to believe has mental or physical conditions that might impair their driving ability; • A procedure that will keep the driver license agency informed of all licensed drivers who are currently applying for or receiving any type of tax, welfare or other benefits or exemptions for the blind or visually impaired beyond established state vision requirements; • A medical advisory board or equivalent allied health professional unit composed of qualified personnel to advise the driver license agency on medical criteria and vision guidelines; and • Protection from civil liability for individuals who report, in good faith, potentially at-risk drivers to the licensing authority. IV. Motorcycle Operator Licensing States should require every person who operates a motorcycle on public roadways to pass an examination designed especially for motorcycle operation and to hold a license endorsement specifically authorizing motorcycle operation. Each State should have a motorcycle licensing system that requires: • A motorcycle operator's manual that contains essential information on reducing the risks associated with riding a motorcycle; • A motorcycle license examination, including knowledge and skill tests, and State licensing medical criteria; • License examiner training specific to testing of motorcyclists; • Motorcycle license endorsement; • Cross referencing of motorcycle registrations with motorcycle licenses to identify motorcycle owners who do not have the proper endorsement; • Motorcycle license renewal requirements; • Learner's permits issued for a period of at least 90 days and the establishment of limits on the number and frequency of learner's permits issued per applicant to encourage each motorcyclist to get full endorsement; and • Penalties for violation of motorcycle licensing requirements. V. Driver Records, Data and Evaluation Each State should maintain a driver control record on each licensed driver that includes identification information, principle residence, and driver history. In addition to the historical aspect, the traffic records system should be conducive to: • Timely, accurate, and complete entry of data into the system; • Ease of accessibility to the system to give timely, accurate and complete information on drivers for users of the system. Functional users may include courts, administrative/legal personnel, motor vehicle administration, law enforcement, research and development and private citizens etc.; • Real-time availability of data available to provide DMV personnel and other system users with a rapid-response system for the information requested on standard and priority requests for eligibility of an applicant for issuance of a driver license; • Ad-hoc reporting for statistical and other research purposes; • Real time identification of problem drivers for enforcement or other operational countermeasures; and • Medical restriction or suspension/revocation information. Each license should be issued for a specific term, and should be renewed to remain valid. At time of issuance or renewal each driver's record should be checked. There should be a driver improvement program to identify problem drivers for record review and other appropriate actions designed to reduce the frequency of their involvement in traffic crashes or violations. The non-commercial driver licensing program should be periodically evaluated by the State. The evaluation should, among other issues, attempt to ascertain the extent to which driving without a license occurs. VI. Communication Program States should develop and implement communication strategies directed at supporting policy and program elements. The SHSO should develop a statewide communications plan and campaign that: • Informs the public about State licensing requirements; • Identifies audiences at particular risk and develops appropriate messages; • Provides information about driver fitness requirements and mental or physical conditions that might impair driving abilities; • Informs motorcycle registrants of the need to obtain an appropriate motorcycle endorsement or license; • Provides culturally competent materials; • Informs parents/guardians about the role of supervised driving and the State's GDL law; and • Informs novice drivers about underage drinking and zero tolerance laws (in effect in all 50 States and the District of Columbia), such as including information in manuals for new drivers and including a question about the topic on the written test for a learner's permit. Highway Safety Program Guideline No. 7 Judicial and Court Services Each State, in cooperation with its political subdivisions and tribal governments, should develop and implement a comprehensive, culturally competent highway safety program, reflective of State demographics, to achieve a significant reduction in traffic crashes, fatalities and injuries on public roads. Each State should have a comprehensive judicial services program as part of its overall highway safety program. Such judicial services programs should support courts in the competent and effective adjudication of both administrative and statutory law cases. Judicial services programs should, consistent with ethical and professional requirements, promote judicial outreach activity to reduce traffic crashes and resultant fatalities and injury. This document describes the four key components of state judicial services programs and the specific activities needed to implement those components. Additional information on judicial outreach is addressed in Highway Safety Guideline No. 8, Impaired Driving. I. Program Management Program planning, implementation, and coordination are essential for achieving and sustaining State traffic enforcement and adjudication functions. The State Highway Safety Office (SHSO), in conjunction with State and local court administrators, chief judges, and judicial educators should ensure that State traffic safety programs are well planned and coordinated. State SHSOs should provide leadership, training and technical assistance to: • Implement and integrate regular traffic law and safety-related judicial education in judicial education programs for all judges; • Generate broad-based support for traffic safety programs by informing all stakeholders, including court administrators and the judges they serve, of comprehensive highway safety plans for traffic enforcement; • Coordinate traffic safety programs to include Commercial Motor Vehicle
(CMV)safety activities such as the Motor Carrier Safety Assistance Program; • Promote the dissemination of NHTSA-supported judicial traffic safety and education courses through coordination with State judicial educators and nationally based institutions such as the National Center For State Courts, National Council of Juvenile and Family Court Judges, and the National Judicial College; and • Support the development and ethical implementation of judicial education programs for state, local, administrative, and tribal courts that will accomplish the following objectives: ○ Utilize enabling legislation and regulations to provide the public with effective and efficient court services; ○ Provide the impetus for judges to be thoroughly educated on all facets of motor vehicle law; ○ Develop cooperative relationships with other government branches, agencies, and entities, as well as community organizations, and traffic safety stakeholders; and ○ Establish qualitative and quantitative performance measures by which the delivery of services can be evaluated. II. Resource Management The SHSO should coordinate with the courts to develop and maintain comprehensive management plans that identify and deploy those resources necessary to effectively provide efficient traffic law-related services to the public. The resource management plans should include specific components concerning the allocation of funding, personnel, and facilities. Comprehensive management plans should include: • Periodic assessment of traffic law-related service demands and the resources needed to serve the needs of the public; • Development of traffic law-related court service resource management plans that address budgetary requirements, staff allocation, and facilities requirements; and • Employment of efficient accounting and data processing systems to facilitate prompt and accurate generation, retrieval, and sharing of information and records. III. Training and Education Training and education are essential to support and maintain the delivery of traffic law-related services by the judicial branch of government. To be effective adjudicators, and serve the needs of the public, judges must receive regular education and training of the highest caliber. Judicial education and training should be promoted and, where appropriate, presented by the SHSO or other training entities with experienced faculties in the area of traffic safety, including law and procedure. Judicial education and training should be: • Adequately funded and where possible compulsory as a requirement to maintaining service in office; • Provided by State or nationally based judicial education and training entities with experienced faculties in area of traffic-related law and procedure; • Inclusive of education components consistent with models developed by the American Bar Association, for example the Code of Judicial Ethics and the Rules of Professional Conduct; • Inclusive of case management components so as to foster productivity and the prompt and efficient disposition of cases; • Specialized as to curriculum so as to address the needs of both statutory and administrative judges as well as hearing officers; and • Assessed regularly so as to insure that education components address specialized traffic enforcement skills, techniques, or programs such as DWI/Drug Courts. IV. Data and Evaluation The SHSO, in conjunction with court administrators should develop a comprehensive evaluation program to measure progress toward established project goals and objectives. Utilizing comprehensive evaluation programs, the SHSO should effectively plan and implement statewide, county, local, and tribal traffic safety programs. Such programs should have as objectives the optimization of limited resource allocation and should measure the impact of traffic enforcement on court resources. Data that are collected should include case disposition summaries and reports, and other relevant workload information. Court administrators should: • Include evaluation components in initial program planning so as to ensure that data will be available for evaluation; • Insure that adequate resources and personnel are allocated to program planning and data collection; • Regularly report results of program evaluations to project and program managers, legislative decision-makers, and to the public; • Utilize results to guide future activities and to assess in justifying resources to governing bodies; • Conduct surveys to assist in determining court and program effectiveness, including surveys that measure public knowledge and attitudes about court programs; • Evaluate the effectiveness of services provided in support of priority safety programs; and • Maintain and report court generated data to appropriate repositories through the use of effective records programs that: ○ Provide records rapidly and accurately; ○ Provide routine compilations of data for management use in the decision-making process; ○ Provide data for operational planning and execution; ○ Interface with a variety of data systems, including statewide traffic safety records systems that are accessible by other State and local governmental entities, agencies and courts; ○ Provide for the evidentiary integrity of information so as to insure its admissibility in subsequent court and administrative hearing proceedings; and ○ Work with court administrators to use the traffic court functional standards that are available through the National Center for State Courts. Highway Safety Program Guideline No. 10 Traffic Records Each State, in cooperation with its political subdivisions and tribal governments, should implement a traffic records system
(TRS)to support highway and traffic safety decision making and long-range transportation planning. A complete TRS is necessary for identifying the locations and causes of crashes, for planning and implementing countermeasures, for operational management and control, and for evaluating highway safety programs and improvements. This guideline describes the components that a State TRS program should include and the criteria that the program components should meet. I. Traffic Records System Information Components A TRS has been defined as a virtual set of independent real systems ( *e.g.* , driver conviction records, crash records, roadway data, etc.), which collectively form the information base for the management of the highway and traffic safety activities of a State. An updated concept of a TRS encourages States to take a global approach and work toward compiling data into a unified, accessible resource. Sharing and integrating data makes such a system possible, without necessarily duplicating costly and time-consuming tasks such as data entry. Achieving integrated access to data without bringing all the data into a single database is a goal of the TRS. The traffic records system should consist of the following major components: A. The Crash Data Component documents the time, location, environment, and characteristics ( *e.g.* , sequence of events, rollover, etc.) of a crash. It contains basic information about every reportable (as defined by State statute) motor vehicle crash on any public roadway in the State. Through links to other TRS components, the Crash Data Component identifies the roadways, vehicles, and people ( *e.g.* , drivers, occupants, pedestrians) involved in the crash. These data help to document the consequences of the crash ( *e.g.* , fatalities, injuries, property damage, and violations charged), support the analysis of crashes in general, and the analysis of crashes within specific categories defined by: • Person characteristics ( *e.g.* , age or gender); • Location characteristics ( *e.g.* , roadway type or specific intersections); • Vehicle characteristics ( *e.g.* , condition and legal status); and • The interaction of various components ( *e.g.* , time of day, day of week, weather, driver actions, pedestrian actions, etc.) B. The Roadway Data Component includes roadway location, identification, and classification, as well as a description of a road's total physical characteristics and usage. These attributes are tied to a location reference system. Linked safety and roadway information are valuable components that support a State's construction and maintenance program development. This roadway information should be available for all public roadways, including local roads. The State Department of Transportation (State DOT) typically has custodial responsibility for the Roadway Data Component. This component includes various enterprise-related files such as: Roadway Inventories • Pavement • Bridges • Intersection Roadside Appurtenances • Traffic control devices • Guard rails • Barriers Traffic • VMT • Travel by vehicle type Other • GIS • LRS • Project inventory C. The Driver Data Component includes information about the State's population of licensed drivers as well as information about convicted traffic violators who are not licensed in that State. Information about persons licensed by the State should include: personal identification, driver license number, type of license, license status, driver restrictions, convictions for traffic violations in the State and the history of convictions for critical violations in prior States, crash history (whether or not cited for a violation), driver improvement or control actions, and driver education data. Custodial responsibility for the Driver Data Component usually resides in a State Department or Division of Motor Vehicles (DMV). Some commercial vehicle operator-related functions may be handled separately from the primary custodial responsibility for driver data. The structure of driver databases typically is oriented to individual “customers.” D. The Vehicle Data Component includes information on the identification and ownership of vehicles registered in the State. Data should be available regarding vehicle make, model, year of manufacture, body type, and vehicle history (including odometer readings) in order to produce the information needed to support analysis of vehicle-related factors that may contribute to a State's crash experience. Such analyses would be necessarily restricted to crashes involving in-State registered vehicles only. Custodial responsibility for the vehicle data usually resides in a State Department or Division of Motor Vehicles. Some commercial vehicle-related functions may be handled separately from the primary custodial responsibility for all other vehicle data. The structure of vehicle databases typically is oriented to individual “customers.” E. The Citation/Adjudication Data Component, which identifies citation/arrest and adjudication activity of the State, includes information that tracks a citation from the time of its distribution to a law enforcement officer, through its issuance to an offender, its disposition and the posting of conviction in the driver history database. Case management systems, law enforcement records systems, and DMV driver history systems should share information to support: • Citation tracking; • Case tracking; • Disposition reporting; and • Specialized tracking systems for specific types of violators ( *e.g.* , DUI tracking systems). Information should be available to identify the type of violation, location, date and time, the enforcement agency, court of jurisdiction, and final disposition. Similar information for warnings and other motor vehicle incidents that would reflect enforcement activity are also useful for highway safety purposes and should be available at the local level. The information should be used for determining the level of enforcement activity in the State, for accounting and controlling of citation forms, and for detailed monitoring of court activity regarding the disposition of traffic cases. Custodial responsibility for the multiple systems that make up the Citation/Adjudication Data Component should be shared among local and State agencies, with law enforcement, courts, and the State Division or DMV sharing responsibility for some files ( *e.g.* , portions of the citation tracking system). State-level agencies should have responsibility for managing the law enforcement information network ( *e.g.* , a criminal justice information agency), for coordinating and promoting court case management technology ( *e.g.* , an administrative arm of the State Supreme Court), and for assuring that convictions are forwarded to the DMV and actually posted to the drivers' histories ( *e.g.* , the court records custodian and the DMV). F. The Statewide Injury Surveillance System (SWISS) Data Component typically incorporates pre-hospital (EMS), trauma, emergency department (ED), hospital in-patient/discharge, rehabilitation and morbidity databases to track injury causes, magnitude, costs, and outcomes. Often, these systems rely upon other components of the TRS to provide information on injury mechanisms or events ( *e.g.* , traffic crash reports). The custodial responsibility for various files within the SWISS typically is distributed among several agencies and/or offices within a State Department of Health. This system should allow the documentation of information that tracks magnitude, severity, and types of injuries sustained by persons in motor vehicle related crashes. Although traffic crashes cause only a portion of the injuries within any population, they often represent one of the more significant causes of injuries in terms of frequency and cost to the community. The SWISS should support integration of the injury data with police reported traffic crashes and make this information available for analysis to support research, public policy, and decision making. II. Traffic Records System Information Quality A State's traffic records information should be maintained in a form that is of high quality and readily accessible to users throughout the State. Performance-based measures should be quantifiable and should be established for each attribute of each component, *e.g.* , the amount of elapsed time from initial data collection until entry in the traffic records system, the level of accuracy and completeness the data must meet in order to pass edit and validation checks during data entry, the level of adoption of various standards and guidelines, etc. The definition of each performance-based measure and its relative significance may vary for each of the State's TRS data components. The quality of a State's traffic records information is determined by the following attributes: • Timeliness—information should be available within a timeframe to be meaningful for effective analysis of a State's highway safety programs, and for efficient conduct of each custodial agency's business and mission; • Consistency—the information should be consistent with nationally accepted and published guidelines and standards ( *e.g.* , MMUCC, NEMSIS), and data should be collected on uniform forms that are prescribed by the State for use by all jurisdictions; • Completeness—the information should be complete in terms of all the people, events, things, or places represented by the records in the various components, and it should be complete in terms of all the variables required to be collected on those people, events, things, or places; The information should be accurate and should be achieved by the application of commonly used quality control methods; Inaccurate data should be returned to the reporting source for correction; • Accuracy—the information should be accurate as determined by quality control methods to ensure accurate information is contained on individual reports ( *e.g.* , validity and consistency checks in the data capture and data entry processes and feedback to jurisdictions submitting inaccurate reports); • Accessibility—the information should be readily and easily accessible to the principal users of the traffic records system components, including both direct access (automated) and the ability to obtain periodic (standard) reports as well as reports and data by special request; and • Data Integration—information in any traffic records system component should be capable of being linked with any other component through the use of common data variables where possible and permitted by law. III. Uses of a Traffic Records System The purpose of a State's traffic records system is to establish a base of useful information and data. This includes operational personnel, program managers, program analysts, researchers, policy makers, and the public. To be of optimal value, the system should provide for the efficient flow of data to support a broad range of traffic safety and other activities, in particular the following: • Problem Identification Problem identification is the process of determining the locations and causes of crashes and their outcomes and of selecting those sites and issues that represent the best opportunity for highway safety improvements; • Research and Program Development The traffic records system should provide information to identify safety problems, trends, and baseline measures essential for data-driven planning decisions; • Policy Development The traffic records system should provide information to permit informed decisions in setting highway safety policy, including State Highway Safety Plans. • Analytic Resources Access Data users, and decision makers in particular, should have access to resources including skilled analytic personnel and easy to use software tools to support their needs. These tools should be specifically designed to meet needs such as addressing legislative issues (barriers as well as new initiatives), program and countermeasure development, management, and evaluation, as well as meeting all reporting requirements. • Public Access to Data The TRS should be designed to give the public or general non-government user reasonable access to data files, analytic results, and resources, but still meet State and Federal privacy and security standards. • Data Use and Improvement The TRS should be viewed as more than a collection of data repositories, and as a set of processes, methods, and component systems. Knowledge of how these data are collected and managed, along with where the bottlenecks and quality problems arise, is critical to users understanding proper ways to apply the data. IV. Traffic Records System Management The development and management of traffic safety programs is a systematic process with the goal of reducing the number and severity of traffic crashes. This data-driven process ensures that all opportunities to improve highway safety are identified and considered for implementation. This process can be achieved through the following initiatives: Traffic Records Coordinating Committee
(TRCC)The State should form a TRCC whose membership includes, among others, managers, collectors, and users of traffic records and public health and injury control data systems. The TRCC should have the authority to approve the State's Strategic Plan for Traffic Records Improvements. The TRCC should also: • Represent all stakeholders; Each stakeholder must have support from the top management of the representative agency; • Have the authority to review any of the State's highway safety data and traffic records systems and to review any proposed changes to such systems prior to implementation; • Provide a forum for the discussion of highway safety data and traffic records issues and report on any such issues to the agencies and organizations in the State that create, maintain and use highway safety data and traffic records; • Represent the interests of the agencies and organizations within the traffic records system to outside organizations; and • Review and evaluate new technologies to keep the highway safety data and traffic records system up-to-date. Strategic Planning The TRS should support the traffic safety strategic planning process that helps State and local data owners identify and support their overall traffic safety program needs and addresses the changing needs for information over time. Data Integration States should integrate data and expand their linkage opportunities to track traffic safety events among data files. Data integration should be addressed through the following: • Create and Maintain a System Inventory; • Support Centralized Access to Linked Data; • Meet Federal Reporting Requirements such as FARS, MCMIS/SafetyNet, HPMS, and others; • Support Electronic Data Sharing; and • Adhere to State and Federal Privacy and Security Standards. Highway Safety Program Guideline No. 12 Prosecutor Training and Outreach Each State, in cooperation with its political subdivisions and tribal governments, should develop and implement a comprehensive, culturally competent highway safety program, reflective of State demographics, to achieve a significant reduction in traffic crashes, fatalities and injuries on public roads. All programs should include a comprehensive prosecutorial training and outreach program which should support prosecutors in the competent, effective and ethical prosecution of both criminal and administrative cases. Moreover, prosecutorial training and outreach programs should be consistent with both ethical and professional requirements as well as training and technical assistance needs of prosecutors and should promote prosecutorial outreach activity to reduce traffic crashes and resulting fatalities and injuries. This guideline describes the key components that a State outreach program should include and the minimum criteria that the program components should meet. Additional information on prosecutor outreach is addressed in Highway Safety Guideline No. 8, Impaired Driving. I. Program Management Program planning, implementation and coordination are essential for achieving and sustaining high quality State traffic enforcement and prosecution functions. The State Highway Safety Office (SHSO), in conjunction with State prosecutor associations, Prosecutor Coordinators and Traffic Safety Resource Prosecutors
(TSRP)should ensure that State traffic safety programs are comprehensive, well planned and coordinated. State SHSOs should provide leadership, training and technical assistance to their State's prosecutors. In doing so, the SHSOs should: • Communicate and coordinate with State prosecutor coordinators and TSRPs regarding comprehensive highway safety plans for traffic enforcement so they can generate broad-based prosecutorial support for traffic safety programs; • Assist State prosecutor coordinators and TSRPs in implementing regular traffic law and safety-related prosecutor training programs; • Provide support and assistance to State prosecutor coordinators and TSRPs for training and technical assistance that prosecutors need to effectively prosecute impaired driving and other traffic related cases; and • Evaluate the delivery of training and technical assistance through established qualitative and quantitative measures. II. Resource Management The SHSO should assist and encourage prosecutors to develop and maintain comprehensive management plans that identify and deploy those resources necessary to provide efficient traffic law-related services that include: • Periodic assessment of traffic law-related service demands and the resources needed to serve the needs of prosecution and the public. • Development of traffic law-related prosecutor resource management plans that address budgetary requirements, staff allocation, and facilities requirements. • Employment of efficient accounting and data processing systems to facilitate prompt and accurate generation, retrieval, and sharing of information and records. III. Training and Technical Assistance Training and technical assistance are essential to support the delivery of high quality traffic law-related prosecution. To effectively serve the needs of law enforcement, victims and the public, prosecutors must receive regular, consistent training and have available to them individuals who can provide technical assistance in a competent and efficient manner. To this end, the SHSO should: • Encourage the implementation of the TSRP program; • Provide Prosecutor Coordinators and TSRPs with advanced education and training in area of traffic-related law and procedure so as to enhance delivery of training and technical assistance to local prosecutors, law enforcement officers, advocacy groups, and other traffic safety professionals; • Assist and support prosecutor coordinators in providing traffic law and safety-related training programs to the State's prosecutors; • Include development and delivery of specialized curriculum to address the needs of both experienced and inexperienced prosecutors handling complex impaired driving and other traffic prosecutions; • Encourage consistent training and technical assistance through the prosecutor coordinators to address high turnover rates in prosecutor offices; and • Include case management components to foster prompt and effective prosecution of traffic cases. IV. Data and Evaluation The SHSO, in conjunction with the prosecutor coordinator and the TSRP, should develop a comprehensive evaluation program to measure progress toward established project goals and objectives. Utilizing comprehensive evaluation strategies, the SHSO should effectively plan and implement statewide, county, and local traffic safety training programs. Collected data should include training programs attended, technical assistance requested and received, and other workload information. The evaluation results should be used to maximize limited resources and measure the impact of such training and assistance on prosecutorial resources and the ability to effectively prosecute traffic cases. The SHSO should make sure that Prosecutor Coordinators or TSRPs: • Include evaluation components in initial program planning to ensure that data will be available for analysis; • Ensure that adequate resources and personnel are allocated to program planning and data collection; • Regularly report results of program evaluations to project and program managers, and legislative decision-makers; • Utilize results to guide future activities and assess resource allocation; and • Evaluate the effectiveness of services provided in support of priority traffic safety programs. Highway Safety Program Guideline No. 17 Pupil Transportation Safety Each State, in cooperation with its political subdivisions and tribal governments, should establish a State highway safety program for pupil transportation safety including the identification, operation, and maintenance of buses used for carrying students; training of passengers, pedestrians, and bicycle riders; and administration. The purpose of this guideline is to provide strategies for minimizing, to the greatest extent possible, the danger of death or injury to school children while they are traveling to and from school and school-related events. I. Program Management There should be a single State agency with primary administrative responsibility for pupil transportation that employs at least one full-time professional to carry out these responsibilities. The responsible State agency should develop an operating system for collecting and reporting information needed to improve the safety of operating school buses and school-chartered buses. Each State should establish procedures to meet the following recommendations for identification and equipment of school buses. All school buses should: • Be identified with the words “School Bus” printed in letters not less than eight inches high, located between the warning signal lamps as high as possible without impairing visibility of the lettering from both front and rear, and have no other lettering on the front or rear of the vehicle, except as required by Federal Motor Vehicle Safety Standards (FMVSS), 49 CFR Part 571; • Be painted National School Bus Glossy Yellow, in accordance with the colorimetric specification of National Institute of Standards and Technology
(NIST)Federal Standard No. 595a, Color 13432, except that the hood should be either that color or lusterless black, matching NIST Federal Standard No. 595a, Color 37038; • Have bumpers of glossy black, matching NIST Federal Standard No. 595a, Color 17038, unless, for increased visibility, they are covered with a reflective material; • Comply with all FMVSS applicable to school buses at the time of their manufacture; • Be equipped with safety equipment for use in an emergency, including a charged fire extinguisher that is properly mounted near the driver's seat, with signs indicating the location of such equipment; • Be equipped with device(s) demonstrated to enhance the safe operation of school vehicles, such as a stop signal arm; • Be equipped with a system of signal lamps that conforms to the school bus requirements of FMVSS No. 108, 49 CFR 571.108; • Have a system of mirrors that conforms to the school bus requirements of FMVSS No. 111, 49 CFR 571.111; and • School-chartered buses should comply with all applicable Federal Motor Carrier Safety Regulations (FMCSR) and FMVSS. Any school bus meeting the recommendations above that is permanently converted for uses other than transporting children to and from school should be painted a color other than National School Bus Glossy Yellow, and should have the stop arms and school bus signal lamps removed. School buses, while being operated on a public highway and transporting primarily passengers other than school children, should have the words “School Bus” covered, removed, or otherwise concealed, and the stop arm and signal lamps should not be operated. II. Operations Each State should establish procedures to meet the following recommendations for operating school buses and school-chartered buses: • Personnel ○ Each State should develop a plan for selecting, training, and supervising persons whose primary duties involve transporting school children in order to ensure that such persons will attain a high degree of competence in, and knowledge of, their duties; ○ Every person who drives a school bus or school-chartered bus occupied by school children should, as a minimum: ▪ Have a valid State driver's license to operate such a vehicle. All drivers who operate a vehicle designed to transport 16 or more persons (including the driver) are required by the Federal Motor Carrier Safety Administration's (FMCSA) Commercial Driver's License Standards (49 CFR Part 383) to have a valid commercial driver's license; ▪ Meet all physical, mental, moral and other requirements established by the State agency having primary responsibility for pupil transportation, including requirements related to drug and/or alcohol misuse or abuse; and ▪ Meet the physical qualification standards for drivers under the FMCSR of the FMCSA, 49 CFR Part 391, if the driver or the driver's employer is subject to those regulations. • Vehicles ○ Each State should enact legislation that provides for uniform procedures regarding school buses stopping on public highways for loading and discharge of children. Public information campaigns should be conducted on a regular basis to ensure that the driving public fully understands the implications of school bus warning signals and requirements to stop for school buses that are loading or discharging school children. Schools should work with local law enforcement agencies to enforce laws against passing a stopped school bus that is loading or unloading students; ○ Each State should establish policies to ensure that school districts are aware of the federal statutory provision 49 U.S.C. Section 30112(a), as amended by Section 10309(b) of SAFETEA-LU (P.L. 109-59), prohibiting the purchase by schools and school systems of new non-conforming vehicles for school transportation purposes, and prohibit operation of any school bus or other vehicle used for school transportation purposes unless it meets the FMVSSs for school buses; ○ Each State should minimize highway use hazards to school bus and school-chartered bus occupants, other highway users, pedestrians, bicycle riders and property. Efforts to minimize such hazards should include, but not be limited to: ▪ Planning safe routes and annually reviewing routes for safety hazards; ▪ Planning routes to ensure the most effective use of school buses and school-chartered buses to ensure that passengers are not standing while these vehicles are in operation; ▪ Providing loading and unloading zones off the main traveled part of highways, whenever it is practical to do so; ▪ Establishing restricted loading and unloading areas for school buses and school-chartered buses at or near schools; ▪ Ensuring that school bus operators, when stopping on a highway to take on or discharge children, adhere to State regulations for loading and discharging including the use of signal lamps; ▪ Replacing school buses manufactured before April 1, 1977, with buses that meet the current FMVSSs for school buses, and not chartering any pre-1977 school buses; and ▪ Prohibiting public or private schools from purchasing school buses built prior to April 1, 1977 for school transportation or school-related events. ○ Use of amber signal lamps to indicate that a school bus is preparing to stop to load or unload children is at the option of the State. Use of red warning signal lamps as specified in this guideline for any purpose or at any time other than when the school bus is stopped to load or discharge passengers should be prohibited; and ○ When school buses are equipped with stop arms, such devices should be operated only in conjunction with red warning signal lamps, when vehicles are stopped. • Seating ○ Children are protected in large school buses by compartmentalization, a passive occupant protection system. This provides a protective envelope consisting of strong, closely-spaced seats that have energy-absorbing padded seat backs that help to distribute and reduce crash forces. Compartmentalization is most effective when occupants are fully seated within the bus seat. Seating should be provided that will allow each occupant to sit on a school bus seat without any part of his or her body extending into the aisle; ○ There should be no auxiliary seating accommodations such as temporary or folding jump seats in school buses; ○ Standing while school buses and school-chartered buses are in motion should not be permitted. Routing and seating plans should be coordinated to eliminate passengers standing when a school bus or school-chartered bus is in motion; ○ Drivers of school buses and school-chartered buses should be required to wear occupant restraints whenever the vehicle is in motion; ○ Passengers in school buses and school-chartered buses with a gross vehicle weight rating
(GVWR)of 10,000 pounds or less should be required to wear occupant restraints (where provided) whenever the vehicle is in motion. Occupant restraints should comply with the requirements of FMVSS Nos. 208, 209 and 210, as they apply to multipurpose vehicles; ○ Transporting pre-school age children in a school bus. ▪ Each child should be transported in a Child Safety Restraint System, suitable for the child's weight and age, that meets applicable FMVSSs; ▪ Each child should be properly secured in the Child Safety Restraint System; and ▪ The Child Safety Restraint System should be properly secured to the school bus seat, using anchorages that meet FMVSSs. • Emergency exit access ○ Baggage and other items transported in the passenger compartment should be stored and secured so that the aisles are kept clear and the door(s) and emergency exit(s) remain unobstructed at all times; and ○ When school buses are equipped with interior luggage racks, the racks should be capable of retaining their contents in a crash or sudden driving maneuver. • Vehicle maintenance. Each State should establish procedures to meet the following recommendations for maintaining buses used to carry school children: ○ School buses should be maintained in safe operating condition through a systematic preventive maintenance program; ○ All school buses should be inspected at least semiannually. In addition, school buses and school-chartered buses subject to the FMCSR of FMCSA should be inspected and maintained in accordance with those regulations (49 CFR Parts 393 and 396); and ○ School bus drivers should be required to perform daily inspections of their vehicles, and the safety equipment thereon (especially fire extinguishers), and to report promptly and in writing any problems discovered that may affect the safety of the vehicle's operation or result in the vehicle's mechanical breakdown. Driver vehicle inspection reports for school buses and school-chartered buses subject to the FMCSR of FMCSA should be completed in accordance with 49 CFR 396.11. III. Other Elements of Pupil Transportation Safety • At least once during each school semester, each pupil transported from home to school in a school bus should be instructed in safe riding practices, proper loading and unloading techniques, proper street crossing to and from school bus stops and should participate in supervised and timed emergency evacuation drills. Prior to each departure, each pupil transported on an activity or field trip in a school bus or school-chartered bus should be instructed in safe riding practices and the location and operation of emergency exits; • Parents and school officials should work together to identify and select safe pedestrian and bicycle routes for the use of school children; (See Guideline No. 14). • All school children should be instructed in safe transportation practices for walking to and from school. For those children who routinely walk to school, training should include preselected routes and the importance of adhering to those routes; • Children riding bicycles to and from school should receive bicycle safety education, be required to wear bicycle safety helmets, and not deviate from preselected routes; • Local school officials and law enforcement personnel should work together to establish crossing guard programs; • Local school officials should investigate programs that incorporate the practice of escorting students across streets and highways when they leave school buses. These programs may include the use of school safety patrols or adult monitors; • Local school officials should establish passenger vehicle loading and unloading points at schools that are separate from the school bus loading zones; and • Before chartering any vehicle or motor coach for school activity purposes, schools should check the safety record of charter bus companies through the FMCSA Safety and Fitness Electronic Records System. Schools should also consider using a multi-function school activity bus in place of charter buses where feasible. Schools should also consider using a multi-function school activity bus (MFSAB) in place of a charter bus. A MFSAB is not required to be equipped with traffic control devices ( *i.e.* , flashing lights and stop arm). These buses are not intended for the roadside picking up and dropping off of children during service between home and school. They are intended for use by schools and other institutions that need transportation services for school activity trips or for other coordinated transportation activities. IV. Program Evaluation The pupil transportation safety program should be evaluated at least annually by the State agency having primary administrative responsibility for pupil transportation. V. Definitions • A “bus” is a motor vehicle designed for carrying more than 10 persons (including the driver); • A “school bus” is a “bus” that is used for purposes that include carrying students to and from school or related events on a regular basis, but does not include a transit bus or a school-chartered bus; • A “school-chartered bus” is a “bus” that is operated under a short-term contract with State or school authorities who have acquired the exclusive use of the vehicle at a fixed charge to provide transportation for a group of students to a special school-related event; • A “multi-function school activity bus” is a school bus whose purposes do not include transporting students to and from home or school bus stops; • “Federal Motor Carrier Safety Regulations (FMCSR)” are the regulations of the Federal Motor Carrier Safety Administration (FMCSA) for commercial motor vehicles in interstate commerce, including buses with a gross vehicle weight rating
(GVWR)or gross vehicle weight greater than 10,000 pounds; designed or used to transport more than 8 passengers (including the driver) for compensation; or designed or used to transport more than 15 passengers (including the driver), and not used to transport passengers for compensation. (The FMCSR are set forth in 49 CFR Parts 390-399.); and • A “child safety restraint system” is any device (except a passenger system lap seat belt or lap/shoulder seat belt), designed for use in a motor vehicle to restrain, seat, or position a child who weighs less than 65 pounds. Highway Safety Program Guideline No. 21 Roadway Safety Each State, in cooperation with its political subdivisions and tribal governments, should develop and implement a strategic highway safety program to reduce the number and severity of traffic crashes. The plan should include roadway safety elements for highway safety activities related to the roadway environment. Section 402 funds may be used to develop and implement systems and procedures for carrying out safety construction and operation improvements but may not be used for highway construction, maintenance, or design activities, except for the installation of regulatory and warning signs on non-Federal-aid roads. I. Program Management The Federal Highway Administration
(FHWA)provides administrative oversight for the Roadway Safety portion of the Section 402 highway safety program in close coordination with the State Highway Safety Offices
(SHSO)and the State Departments of Transportation (State DOT). An effective Roadway Safety program is based on sound analyses of crash, traffic, enforcement, medical, and roadway data information and applies engineering principles in identifying highway planning, design, operations, and maintenance strategies that will reduce the number and severity of highway crashes. The SHSO should: • Work in consultation with the DOT staff responsible for traffic engineering, motorcycle, pedestrian and bicycle programs, highway safety improvement programs, traffic records systems, commercial motor vehicle
(CMV)safety, work zone safety, railroad grade crossing, design, operations, and maintenance; • Foster ongoing dialogue among all disciplines with a vested interest in highway safety, including engineers, planners, enforcement personnel, traffic safety specialists, driver licensing administrators, railroads, emergency services, CMV safety specialists, and data specialists; • Promote a multi-disciplinary approach to addressing highway safety issues that focuses on comprehensive multi-disciplinary solutions; • Assist local community leaders and safety partners in managing and/or coordinating roadway safety issues; and • Work with the DOT and the other safety partners in the development and implementation of the State's Strategic Highway Safety Plan. II. Highway Safety Improvement Program Additional information on the Highway Safety Improvement Program is available in Part 924, Title 23, Code of Federal Regulations and Section 148 of title 23 of the United States Code. Each State, in cooperation with Federal, Tribal, county, other local governments, and other safety partners, shall develop and implement, on a continuing basis, a highway safety improvement program that has the overall objective of reducing the number and severity of crashes and decreasing the potential for crashes on all highways. The planning component of the Highway Safety Improvement Program shall incorporate: • A process for collecting and maintaining a record of crashes, traffic, and highway data, including, for railroad-highway grade crossings, the characteristics of both highway and train traffic; • A process for analyzing available data to identify highway locations, sections and elements determined to be hazardous on the basis of crash experience or crash potential; • A process for conducting engineering studies of hazardous locations, sections, and elements to develop highway safety improvement projects; and • A process for establishing priorities for implementing highway safety improvements including the potential reduction in the number and/or severity of crashes. The implementation component of the Highway Safety Improvement Program in each State shall include a process for scheduling and implementing safety improvement projects in accordance with the priorities developed in the planning component. The evaluation component of the Highway Safety Improvement Program shall include a process for determining the effect that highway safety improvement projects have in reducing the number and severity of crashes and potential crashes, including: • The cost of, and the safety benefits derived from, the various means and methods used to mitigate or eliminate hazards; • A record of crash experience before and after the implementation of a highway safety improvement, project; and • A comparison of crash numbers, rates, and severity observed after the implementation of a highway safety improvement project with the crash numbers, rates, and severity expected if the improvement had not been made. III. Training Each State should provide training and information for State, tribal, and local agencies' engineers, technicians, and officials in the proper and appropriate use of highway, safety and traffic engineering standards, policies, guidelines, practices, studies, strategies, and techniques. This training and information should be related to established, as well as new and emerging issues. IV. Planning, Design, Construction And Maintenance Every State, in coordination with Federal, tribal, county and other local agencies, should have a program of highway planning, design, construction, operations, and maintenance to improve highway safety. A model program should have the following characteristics: • A systematic process to ensure that safety is fully integrated into the transportation planning, design, construction, and maintenance processes; • The integration of safety into the State's standards, policies, guidelines, and practices; • Procedures to identify and correct hazard conditions within the highway right-of-way; • Traffic control devices and other measures to ensure the guidance, warning and regulation of all road users, including approaching and traveling through work zones, in conformance with the FHWA Manual on Uniform Traffic Control Devices; • Roadway and roadside features and operations that provide, wherever possible, for crash prevention and crash survivability; • Procedures for incident management and congestion mitigation; and • Post-crash activities such as emergency signing, first-responders, and access and egress for emergency vehicles. V. Safety And Traffic Engineering Services Each State should have a program for a comprehensive capacity building plan to provide the necessary traffic and safety expertise and staffing levels and for applying safety and traffic engineering principles and techniques, including the application of traffic control devices in conformance with the FHWA Manual on Uniform Traffic Control Devices. A model program should have the following characteristics: • A comprehensive resource development plan to provide the necessary safety and traffic engineering capability, including: ○ Provisions for supplying safety and traffic engineering assistance to those jurisdictions that are unable to justify a full-time traffic engineering staff; ○ Provisions for upgrading the skills of safety and traffic engineers and technicians and for providing basic instruction in safety and traffic engineering techniques to other professionals, technicians, and officials; ○ A traffic control device management system that includes the application of traffic control devices in conformance with the FHWA Manual on Uniform Traffic Control Devices as well as necessary inventories, reviews, maintenance of traffic control devices, and where appropriate, the application and evaluation of new ideas and concepts in applying traffic control devices. • An implementation schedule that utilizes safety and traffic engineering resources to: ○ review road projects, using tools such as road safety audits and/or reviews, during the planning, design, and construction stages to detect and correct features that may lead to operational safety difficulties; ○ include the impact on motorcycles in the design factors of roadways; ○ install safety-related improvements as part of routine maintenance and/or repair activities; ○ correct conditions noted during routine operational surveillance of the roadway system to adjust rapidly for the changes in traffic and road characteristics as a means of reducing the frequency and severity of crashes; ○ conduct road safety audits and/or reviews of high crash locations and develop corrective measures; ○ conduct road safety audits and/or reviews of potentially hazardous locations—such as sharp curves, steep grades, and railroad grade crossings—and develop appropriate countermeasures; ○ identify traffic control needs and determine short- and long-range requirements; ○ evaluate the effectiveness of specific traffic control measures in reducing the frequency and severity of traffic crashes; and ○ conduct safety and traffic engineering studies to establish traffic regulations, such as fixed or variable speed limits. VII. Communication Program/Outreach Each State should implement a proactive roadway safety outreach program to provide critical information to the public and officials on roadway safety issues and establish communication channels among engineers, planners, enforcement personnel, emergency medical services, highway safety advocacy groups, the private sector, officials, and the general public. VII. Evaluation Roadway Safety programs should be annually evaluated by the State, or appropriate Federal department or agency where applicable. The evaluation results are to be included in the State's annual Highway Safety Plan Evaluation Report. Copies of the report shall be provided to the FHWA. Evaluations should include measures of effectiveness in terms of crash reduction. Notes: The 2005 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users established reporting requirements for projects (primarily construction-related projects) implemented under the Highway Safety Improvement Program (See 23 U.S.C. § 148(g)). FHWA has provided guidance for the preparation of this report. Also, as part of their Strategic Highway Safety Plans, States must establish an evaluation process to analyze and assess the results achieved by their plans. Marilena Amoni, Associate Administrator, Research and Program Development, NHTSA. [FR Doc. E7-1895 Filed 2-5-07; 8:45 am] BILLING CODE 4910-59-P 72 24 Tuesday, February 6, 2007 CORRECTIONS !!!Don!!! DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 412 and 413 [CMS-1529-P] RIN 0938-AO30 Medicare Program; Prospective Payment System for Long-Term Care Hospitals RY 2008: Proposed Annual Payment Rate Updates, and Policy Changes; and Proposed Hospital Direct and Indirect Graduate Medical Education Policy Changes Correction In proposed rule document 07-392 beginning on page 4776 in the issue of Thursday, February 1, 2007 make the following correction: On page 4776, in the first column, under the DATES heading, in the last line “April 2, 2007” should read “March 26, 2007 ”. [FR Doc. C7-392 Filed 2-5-07; 8:45 am] BILLING CODE 1505-01-D 72 24 Tuesday, February 6, 2007 Proposed Rules Part II Environmental Protection Agency 40 CFR Part 60 Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Hospital/Medical/Infectious Waste Incinerators; Proposed Rule ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2006-0534; FRL-8274-9] RIN 2060-A004 Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Hospital/Medical/Infectious Waste Incinerators AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: On September 15, 1997, EPA adopted new source performance standards
(NSPS)and emission guidelines for hospital/medical/infectious waste incinerators (HMIWI). The NSPS and emission guidelines were established under sections 111 and 129 of the Clean Air Act (CAA). On November 14, 1997, the Sierra Club and the Natural Resources Defense Council (Sierra Club) filed suit in the U.S. Court of Appeals for the District of Columbia Circuit (the Court) challenging EPA's methodology for adopting the regulations. On March 2, 1999, the Court issued its opinion. The Court remanded the rule to EPA for further explanation of the Agency's reasoning in determining the minimum regulatory “floors” for new and existing HMIWI. The Court did not vacate the regulations, so the NSPS and emission guidelines remained in effect during the remand and were fully implemented by September 2002. This action provides EPA's proposed response to the questions raised in the Court's remand. Section 129(a)(5) of the CAA requires EPA to review and, if appropriate, revise the NSPS and emission guidelines every 5 years. In this action, EPA also is proposing our response to this 5-year review, which would revise the emission limits in the NSPS and emission guidelines to reflect the levels of performance actually achieved by the emission controls installed to meet the emission limits set forth in the September 15, 1997, NSPS and emission guidelines. DATES: *Comments.* Comments must be received on or before April 9, 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 March 8, 2007. Because of the need to resolve the issues raised in this action in a timely manner, EPA will not grant requests for extensions beyond these dates. *Public Hearing.* If anyone contacts EPA by February 26, 2007 requesting to speak at a public hearing, EPA will hold a public hearing on March 8, 2007. If you are interested in attending the public hearing, contact Ms. Pamela Garrett at
(919)541-7966 to verify that a hearing will be held. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2006-0534, by one of the following methods: *www.regulations.gov:* Follow the on-line instructions for submitting comments. *E-mail:* Send your comments via electronic mail to *a-and-r-Docket@epa.gov,* Attention Docket ID No. EPA-HQ-OAR-2006-0534. *Facsimile:* Fax your comments to
(202)566-1741, Attention Docket ID No. EPA-HQ-OAR-2006-0534. *Mail:* Send your comments to: EPA Docket Center (EPA/DC), Environmental Protection Agency, Mailcode 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-2006-0534. *Hand Delivery:* Deliver your comments to: EPA Docket Center (EPA/DC), EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-2006-0534. Such deliveries are accepted only during the normal hours of operation (8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays), and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2006-0534. The EPA's policy is that all comments received will be included in the public docket and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Public Hearing:* If a public hearing is held, it will be held at EPA's Campus located at 109 T.W. Alexander Drive in Research Triangle Park, NC, or an alternate site nearby. Persons interested in presenting oral testimony must contact Ms. Pamela Garrett at
(919)541-7966 at least 2 days in advance of the hearing. *Docket:* EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2006-0534 and Legacy Docket ID No. A-91-61. All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., 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 at *www.regulations.gov* or in hard copy at the EPA Docket Center EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the EPA Docket Center is
(202)566-1742. FOR FURTHER INFORMATION CONTACT: Ms. Mary Johnson, Energy Strategies Group, Sector Policies and Programs Division (D243-01), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number:
(919)541-5025; fax number:
(919)541-5450; e-mail address: *johnson.mary@epa.gov.* SUPPLEMENTARY INFORMATION: *Organization of This Document.* The following outline is provided to aid in locating information in this preamble. I. General Information A. Does the proposed action apply to me? B. What should I consider as I prepare my comments? II. Background III. Summary A. Litigation and Proposed Remand Response B. Proposed Amendments (CAA Section 129(a)(5) 5-Year Review) IV. Rationale A. Rationale for the Proposed Response to the Remand B. Rationale for the Proposed Amendments (CAA Section 129(a)(5) 5-Year Review) V. Impacts of the Proposed Action for Existing Units A. What are the primary air impacts? B. What are the water and solid waste impacts? C. What are the energy impacts? D. What are the secondary air impacts? E. What are the cost and economic impacts? VI. Impacts of the Proposed Action for New Units VII. Relationship of the Proposed Action to Section 112(c)(6) of the CAA VIII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act 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 and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or Use I. National Technology Transfer Advancement Act I. General Information A. Does the proposed action apply to me? *Regulated Entities.* Categories and entities potentially affected by the proposed action are those which operate HMIWI. The NSPS and emission guidelines for HMIWI affect the following categories of sources: Category NAICS Code Examples of potentially regulated entities Industry 622110, 622310, 325411, 325412, 562213, 611310 Private hospitals, other health care facilities, commercial research laboratories, commercial waste disposal companies, private universities. Federal Government 622110, 541710, 928110 Federal hospitals, other health care facilities, public health service, armed services. State/local/Tribal Government 622110, 562213, 611310 State/local hospitals, other health care facilities, State/local waste disposal services, State universities. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by the proposed action. To determine whether your facility would be affected by the proposed action, you should examine the applicability criteria in 40 CFR 60.50c of subpart Ec and 40 CFR 60.32e of subpart Ce. If you have any questions regarding the applicability of the proposed action to a particular entity, contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. B. What should I consider as I prepare my comments? 1. Submitting CBI Do not submit information that you consider to be CBI electronically through *www.regulations.gov* or e-mail. Send or deliver information identified as CBI to only the following address: Ms. Mary Johnson, c/o OAQPS Document Control Officer (Room C404-02), U.S. EPA, Research Triangle Park, NC 27711, Attention Docket ID No. EPA-HQ-OAR-2006-0534. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section. 2. 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. The EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. 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 in the preceding section titled DATES. 3. Docket The docket number for the proposed action regarding the HMIWI NSPS (40 CFR part 60, subpart Ec) and emission guidelines (40 CFR part 60, subpart Ce) is Docket ID No. EPA-HQ-OAR-2006-0534. 4. Worldwide Web
(WWW)In addition to being available in the docket, an electronic copy of this proposed action is available on the WWW through the Technology Transfer Network Web site (TTN Web). Following signature, EPA posted a copy of the proposed action on the TTN's policy and guidance page for newly proposed or promulgated rules at *http://www.epa.gov/ttn/oarpg.* The TTN provides information and technology exchange in various areas of air pollution control. II. Background Section 129 of the CAA, entitled “Solid Waste Combustion,” requires EPA to develop and adopt NSPS and emission guidelines for solid waste incineration units pursuant to CAA sections 111 and 129. Sections 111(b) and 129(a) of the CAA (NSPS program) address emissions from new HMIWI units, and CAA sections 111(d) and 129(b) (emission guidelines program) address emissions from existing HMIWI units. The NSPS are directly enforceable Federal regulations. The emission guidelines are not directly enforceable but, rather, are implemented by State air pollution control agencies through sections 111(d)/129 State plans. An HMIWI is defined as any device used to burn hospital waste or medical/ infectious waste. Hospital waste means discards generated at a hospital, and medical/infectious waste means any waste generated in the diagnosis, treatment, or immunization of human beings or animals, in research pertaining thereto, or in the production or testing of biologicals (e.g., vaccines, cultures, blood or blood products, human pathological waste, sharps). Hospital/medical/infectious waste does not include household waste, hazardous waste, or human and animal remains not generated as medical waste. An HMIWI typically is a small, dual-chamber incinerator that burns about 800 pounds per hour (lb/hr) of waste. Smaller units burn as little as 13 lb/hr while larger units burn as much as 3,700 lb/hr. Incineration of hospital/medical/infectious waste causes the release of a wide array of air pollutants, some of which exist in the waste feed material and are released unchanged during combustion, and some of which are generated as a result of the combustion process itself. These pollutants include particulate matter (PM); heavy metals, including lead (Pb), cadmium (Cd), and mercury (Hg); toxic organics, including chlorinated dibenzo-p-dioxins/dibenzofurans (CDD/CDF); carbon monoxide (CO); nitrogen oxides (NO <sup>X</sup> ); and acid gases, including hydrogen chloride
(HCl)and sulfur dioxide (SO <sup>2</sup> ). In addition to the use of good combustion control practices, HMIWI units are typically controlled by wet scrubbers or dry sorbent injection fabric filters (dry scrubbers). Combustion control includes the proper design, construction, operation, and maintenance of HMIWI to destroy or prevent the formation of air pollutants prior to their release to the atmosphere. Test data indicate that as secondary chamber residence time and temperature increase, emissions decrease. Combustion control is most effective in reducing CDD/CDF, PM, and CO emissions. The 0.25-second combustion level includes a minimum secondary chamber temperature of 1700 °F and a 0.25-second secondary chamber residence time. These combustion conditions are typical of older HMIWI. The 1-second combustion level includes a minimum secondary chamber temperature of 1700 °F and residence time of 1 second. These combustion conditions are typical of newer HMIWI. Compared to 0.25-second combustion, 1-second combustion will achieve substantial reductions in CDD/CDF and CO emissions, and will provide some control of PM, but will not reduce emissions of acid gases (HCl and SO <sup>2</sup> ), NO <sup>X</sup> , or metals (Pb, Cd, and Hg). The 2-second combustion level includes a minimum secondary chamber temperature of 1800 °F and residence time of 2 seconds. These combustion conditions will provide additional control of CDD/CDF, CO, and PM, but will not reduce emissions of acid gases (HCl and SO <sup>2</sup> ), NO <sup>X</sup> , or metals (Pb, Cd, and Hg). The 2-second combustion conditions are considered to be the best level of combustion control (i.e., good combustion) that is applied to HMIWI. Wet scrubbers and dry scrubbers provide control of PM, CDD/CDF, HCl, and metals, but do not influence CO, SO <sup>2</sup> (at the low concentrations emitted by HMIWI units), or NO <sup>X</sup> ; in fact, there are no technologies currently used by HMIWI that will consistently reduce SO <sup>2</sup> or NO <sup>X</sup> emissions. (See Legacy Docket ID No. A-91-61, item II-A-111; 60 FR 10669, 10671-10677; and 61 FR 31742-31743.) On September 15, 1997, EPA adopted NSPS (40 CFR part 60, subpart Ec) and emission guidelines (40 CFR part 60, subpart Ce) for entities which operate HMIWI. The NSPS and emission guidelines are designed to reduce air pollution emitted from new and existing HMIWI, including HCl, CO, Pb, Cd, Hg, PM, CDD/CDF (total, or 2,3,7,8-tetrachlorinated dibenzo-p-dioxin toxic equivalent (TEQ)), NOX, SO <sup>2</sup> , and opacity. The NSPS apply to HMIWI for which construction began after June 20, 1996, or for which modification began after March 16, 1998. The NSPS became effective on March 16, 1998, and its requirements apply as of that date or at start-up of a HMIWI unit, whichever is later. The emission guidelines apply to HMIWI for which construction began on or before June 20, 1996, and required compliance by September 2002. CAA section 129 requires EPA to establish technology-based emission standards that reflect levels of control EPA determines are achievable for new and existing units, after considering costs, non-air quality health and environmental impacts, and energy requirements associated with the implementation of the standards. In setting forth the methodology EPA must use to establish the technology-based performance standards and emissions guidelines, CAA section 129(a)(2) provides that standards “applicable to solid waste incineration units promulgated under section 111 and this section shall reflect the maximum degree of reduction in emissions of [certain listed air pollutants] that the Administrator, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable for new and existing units in each category.” This level of control is referred to as a maximum achievable control technology, or MACT standard. In promulgating a MACT standard, EPA must first calculate the minimum stringency levels for new and existing solid waste incineration units in a category, generally based on levels of emissions control achieved or required to be achieved by the subject units. The minimum level of stringency is called the MACT floor, and CAA section 129(a)(2) provides that the “degree of reduction in emissions that is deemed achievable for new units in a category shall not be less stringent than the emissions control that is achieved in practice by the best controlled similar unit, as determined by the Administrator. Emissions standards for existing units in a category may be less stringent than standards for new units in the same category but shall not be less stringent than the average emissions limitation achieved by the best performing 12 percent of units in the category.” The minimum stringency requirements form the first and least stringent regulatory option EPA must consider in the determination of MACT for a source category. EPA must also determine whether to control emissions “beyond the floor,” after considering the costs, non-air quality health and environmental impacts, and energy requirements of such more stringent control. These are the two steps EPA took in the 1997 HMIWI rulemaking. Finally, every 5 years after adopting a MACT standard under section 129, CAA section 129(a)(5) requires EPA to review and, if appropriate, revise the incinerator standards. In addition to responding to the Court's remand in *Sierra Club* v. *EPA,* 167 F.3d 658 (D.C. Cir. 1999), this proposed action includes our first set of proposed revisions to the HMIWI standards, also known as the 5-year review. III. Summary A. Litigation and Proposed Remand Response 1. What was EPA's general methodology for determining MACT? The methodology used to determine MACT is similar for source categories under sections 112 and 129 of the CAA. However, because each source category is unique and the data available to determine the performance capabilities of technology can vary from one source category to another, the basic methodology must be adapted to fit the source category in question. As the Court pointed out in the HMIWI litigation, it “generally defer[s] to an agency's decision to proceed on the basis of imperfect scientific information, rather than to ‘invest the resources to conduct the perfect study.’ ” *Sierra Club* v. *EPA,* 167 F.3d at 662. In general, all MACT analyses involve an assessment of the air pollution control systems or technologies used by the better performing units in a source category. The technology assessment can be based solely on actual emissions data, on knowledge of the air pollution control in place in combination with actual emissions data, or on State regulatory requirements, which give an indication of the actual performance of the regulated units. For each source category, the assessment of the technology involves a review of actual emissions data with an appropriate accounting for emissions variability. Where there is more than one method or technology to control emissions, the analysis results in a series of potential regulations (called regulatory options), one of which is selected as MACT. The first regulatory option considered by EPA must be at least as stringent as the CAA's minimum stringency requirements. However, MACT is not necessarily the least stringent regulatory option. EPA must examine more stringent regulatory options to determine MACT. Unlike the minimum stringency requirements, EPA must consider various impacts of the more stringent regulatory options in determining MACT. Only if the more stringent regulatory options are considered to have unreasonable impacts does EPA select the first “floor-based” regulatory option as MACT. As stated earlier, the CAA requires that MACT for new sources be no less stringent than the emissions control achieved in practice by the best controlled similar unit. After EPA's assessment of technology, EPA determines the best control currently in use for a given pollutant and establishes one potential regulatory option at the emission level achievable by that control. More stringent potential regulatory options might reflect controls used on other sources that could be applied to the source category in question. For existing sources, the CAA requires that MACT be no less stringent than the average emissions limitation achieved by the best performing 12 percent of units in a source category. EPA must determine some measure of the average emissions limitation achieved by the best performing 12 percent of units to form the least stringent regulatory option. Sometimes, a direct calculation of the actual emissions values from the best performing 12 percent of sources provides the basis for this regulatory option. More often, EPA determines the technology used by the average source in the best performing 12 percent of sources and establishes the floor based on the technology assessment for that average source. More stringent regulatory options reflect other technologies capable of achieving better performance. 2. What was EPA's methodology in the 1997 HMIWI rulemaking? On February 27, 1995, EPA published a notice of proposed rulemaking regarding emissions standards for HMIWI units (60 FR 10654). The proposal was the result of several years of reviewing available information. During the public comment period for the proposal, EPA received over 700 letters, some of which contained new information or indicated that the commenters were in the process of gathering more information for EPA to consider. The new information led EPA to consider the need for numerous changes to the proposed rule, and on June 20, 1996, the Agency published a re-proposal (61 FR 31736). Following an additional public comment period, EPA published the final rule on September 15, 1997 (62 FR 48348). During the data-gathering phase of developing the 1995 proposal, EPA found it difficult to obtain an accurate count of the thousands of HMIWI units nationwide, or to find HMIWI units with add-on air pollution control systems in place. A few HMIWI units with combustion control were tested to assess performance of combustion control in reducing emissions. One unit with a wet scrubber, and a few units with dry scrubbing systems were tested to determine performance capabilities of add-on controls. (See 61 FR 31738.) Altogether, data were available from only 7 out of the estimated then-operating 3,700 existing HMIWI units (60 FR 10674). Because EPA was under a court-ordered deadline to propose and adopt standards for HMIWI that did not provide sufficient time to collect more actual emissions data (see consent decree entered in *Sierra Club* v. *EPA* , Nos. CV-92-2093 and CV-93-0284 (E.D.N.Y.)), EPA proceeded to develop the regulations with the existing data, as described below. However, EPA specifically requested comment on EPA's MACT determinations and on EPA's conclusions about the performance capabilities of air pollution control technologies on HMIWI in light of the relatively small database (60 FR 10686). a. EPA's Methodology for New HMIWI. In determining the least stringent regulatory option allowed by the CAA for new HMIWI, EPA first examined the data available for various air pollution control technologies applied to HMIWI to determine the performance capabilities of the technologies (i.e., the achievable emission limitations) (60 FR 10671-73, 61 FR 31741-43). To determine the performance capabilities, EPA grouped all of the test data by control technology and established the numerical value for the achievable emission limitations somewhat higher than the highest test data point for each particular control technology. (See Legacy Docket ID No. A-91-61, items IV-B-46, 47, 48, and 49.) Following the determination of performance capability, EPA identified the best control technology for each air pollutant for each subcategory of HMIWI, and established the numerical values for the least stringent regulatory option at the achievable emission limitation associated with that particular control technology. (See 60 FR 10673; Legacy Docket ID No. A-91-61, item IV-B-38; 61 FR 31745-46.) Other, more stringent, regulatory options were developed reflecting the actual performance of other, more effective, control technologies (61 FR 31766-68). As stated in the 1996 re-proposal, the least stringent regulatory option for new large HMIWI units (units with maximum waste burning capacity of more than 500 lb/hr) was based on good combustion (i.e., 2-second combustion level) and a combination of two control technologies, high-efficiency wet scrubbers and dry injection/fabric filter dry scrubbers with carbon (61 FR 31746). New medium units (units with maximum waste burning capacity of more than 200 lb/hr but less than or equal to 500 lb/hr) would need to use good combustion and a combination of two control technologies, high-efficiency wet scrubbers and dry injection/fabric filter dry scrubbers without carbon, to meet the least stringent regulatory option. *Id.* New small units (units with maximum waste burning capacity of less than or equal to 200 lb/hr) would need to use good combustion and a moderate-efficiency wet scrubber to meet the least stringent regulatory option. *Id.* In EPA's final standards promulgated in 1997, EPA selected an overall more stringent regulatory option for new HMIWI (62 FR 48365). The final standards were based on emission limits achievable with good combustion and a moderate-efficiency wet scrubber for new small HMIWI, and good combustion and a combined dry/wet control system with carbon for new medium and large HMIWI. *Id.* These standards reflected the MACT floor emissions levels for new small and large HMIWI, but were more stringent than the MACT floor for new medium HMIWI. *Id.* EPA estimated that the standards would reduce emissions from these units of HCl by up to 98 percent, PM and Pb by up to 92 percent, Cd by up to 91 percent, CDD/CDF by up to 87 percent, Hg by up to 74 percent, and CO, SO <sup>2</sup> , and NO <sup>X</sup> by up to 52 percent (62 FR 48366). b. EPA's Methodology for Existing HMIWI. For existing units, EPA did not have sufficient emissions data to fully characterize the actual emissions performance of the best performing 12 percent of existing HMIWI, and, based exclusively on such data, EPA did not have a clear indication of the technology used by the best 12 percent of units. As a result, EPA used emission limits included in State regulations and State-issued permits (hereinafter referred to as regulatory limits) as surrogate information to determine emissions limitations achieved by the best performing 12 percent of units in each subcategory (60 FR 10674). EPA believed this information could be expected to reliably reflect levels of performance achieved on a continuous basis by better-controlled units that must meet these limits or risk violating enforceable requirements. EPA assumed that all HMIWI were achieving their regulatory limits (60 FR 10674). Where there were regulatory limits for more than 12 percent of units in a subcategory, the regulatory limits were ranked from the most stringent to least stringent, and the average of the regulatory limits for the top 12 percent of units in the subcategory was calculated. *Id.* ; 61 FR 31744-45. Where the number of units subject to specific emissions limitations did not comprise 12 percent of the population in a subcategory, EPA assumed those units with regulatory limits were the best performing units, and the remaining units in the top 12 percent were assigned an emission value associated with “combustion control.” (See 60 FR 10674; 61 FR 31745; Legacy Docket ID No. A-91-61, item IV-B-24 at 2.) In previous **Federal Register** notices regarding HMIWI (60 FR 10654, 61 FR 31736, and 62 FR 48348), this level of control was referred to as “uncontrolled,” which is misleading because sources with combustion control emit lesser amounts of CDD/CDF, CO, and PM. In the latter situation described above, the average of the regulatory limits plus enough combustion-controlled emission values to account for 12 percent of units in the subcategory was calculated. (See Legacy Docket ID No. A-91-61, item IV-B-24 at 2-4.) After calculating the averages of regulatory limits and combustion-controlled emission values, EPA examined the resulting calculated values to determine what level of air pollution control would be needed to meet the calculated average values. (See 60 FR 10675-78; 61 FR 31755-56.) For many pollutants, the calculated averages presented no clear indication of the type of air pollution control used by the best performing units. However, the calculated values for three key pollutants, PM, CO, and HCl, did provide a good indication of the type of air pollution control used on the best performing 12 percent of units. The level of air pollution control associated with the calculated average values for PM, CO, and HCl formed the technical basis of the least stringent regulatory option considered by EPA (61 FR 31756, Table 13). The emission limitations assigned to each pollutant reflected the actual performance of the technology on which they were based. Finally, EPA developed a series of regulatory options based on progressively more stringent technologies and assigned emission limitations to each regulatory option based on the actual performance capabilities of the technologies (61 FR 31757, Table 14). As stated in the 1996 re-proposal, large existing units would need to use good combustion and a high-efficiency wet scrubber to meet the least stringent regulatory option, while medium existing units would need to use good combustion and a moderate-efficiency wet scrubber, although dry scrubbers could also be used with good combustion at large and medium existing units (61 FR 31745). EPA further stated that its inclination was to establish emission limitations for large and medium existing units based on regulatory options representing the MACT floors (61 FR 31778). Small existing units would need only to use good combustion practices to meet the regulatory option representing the MACT floor (61 FR 31745). With respect to small existing units, EPA stated that it had no inclination with regard to which regulatory option should be used to establish emission limitations and requested comment on requiring use of good combustion and a low-efficiency wet scrubber (61 FR 31778-79). In EPA's final standards promulgated in 1997, EPA selected an overall more stringent regulatory option for existing HMIWI (62 FR 48371). The final standards were based on emission limits achievable with good combustion and a low-efficiency wet scrubber for most existing small HMIWI, good combustion and a moderate-efficiency wet scrubber for existing medium HMIWI, and good combustion and a high-efficiency wet scrubber for existing large HMIWI (62 FR 48371). The final standards allow small HMIWI that meet certain rural criteria to meet emissions limits achievable with good combustion alone. *Id.* These standards reflected the MACT floor emissions levels for existing small HMIWI meeting rural criteria, medium HMIWI, and large HMIWI, but were more stringent than the MACT floor for most existing small HMIWI (i.e., non-rural) (62 FR 48371-72). The final standards for existing medium and large HMIWI were structured so that either a dry scrubber or a wet scrubber could be used to achieve the emission limits. EPA estimated that the final emission guidelines would reduce emissions of CDD/CDF by up to 97 percent, Hg by up to 95 percent, PM by up to 92 percent, Pb by up to 87 percent, Cd by up to 84 percent, CO by up to 82 percent, HCl by up to 98 percent, and SO <sup>2</sup> and NO <sup>X</sup> by up to 30 percent (62 FR 48372). Table 1 of this preamble summarizes the emission limits for the NSPS and emission guidelines promulgated in 1997. Table 1.—Summary of Promulgated Emission Limits Pollutant (units) Unit Size 1 Limit for existing HMIWI 2 Limit for new HMIWI 2 HCl (parts per million by volume (ppmv)) L, M, S 100 or 93% reduction 15 or 99% reduction. SR 3,100 N/A. 3 CO
(ppmv)L, M, S 40 40 SR 40 N/A. Pb (milligrams per dry standard cubic meter (mg/dscm)) L, M 1.2 or 70% reduction 0.07 or 98% reduction. 3 S 1.2 or 70% reduction 1.2 or 70% reduction. SR 10 N/A. Cd (mg/dscm) L, M 0.16 or 65% reduction 0.04 or 90% reduction. S 0.16 or 65% reduction 0.16 or 65% reduction. SR 4 N/A. Hg (mg/dscm) L, M, S 0.55 or 85% reduction 0.55 or 85% reduction. SR 7.5 N/A. PM (grains per dry standard cubic foot (gr/dscf)) L 0.015 0.015 M 0.03 0.015 S 0.05. 0.03. SR 0.086 N/A. CDD/CDF, total (nanograms per dry standard cubic meter (ng/dscm)) L, M 125 25 S 125 125 SR 800 N/A. CDD/CDF, TEQ (ng/dscm) L, M 2.3 0.6 S 2.3 2.3 SR 15 N/A. NO <sup>X</sup>
(ppmv)L, M, S 250 250 SR 250 N/A. SO <sup>2</sup>
(ppmv)L, M, S 55 55 SR 55 N/A. 1 L = Large; M = Medium; S = Small; SR = Small Rural 2 All emission limits are measured at 7 percent oxygen. 3 Not applicable. c. Compliance by HMIWI. At the time of promulgation (September 1997), EPA estimated that there were approximately 2,400 HMIWI operating in the United States. Those units combusted approximately 830 thousand tons of hospital/medical/infectious waste annually. Of those existing HMIWI, about 48 percent were small units, 29 percent were medium units, and 20 percent were large units. About 3 percent of the HMIWI were commercial units. EPA projected that no new small or medium HMIWI would be constructed, and that up to 60 new large units and 10 new commercial units would be constructed. After shutdown of approximately 97 percent of the 2,400 HMIWI that were operating in 1997, there are currently 72 existing HMIWI at 67 facilities. Additionally, only 4 new HMIWI at 3 facilities began operation following the 1997 rulemaking. These 76 existing and new units are estimated to combust approximately 165 thousand tons of waste annually. Of the 72 existing HMIWI subject to the emission guidelines, 44 are large units, 20 are medium units, and 8 are small units (6 of which meet the rural criteria). Twenty-one percent of the existing HMIWI are commercially owned. Of the four new HMIWI, three are large units, and one is a medium unit. Two of the new units are county-owned but accept waste from other sources, similar to commercial units. The actual emissions reductions achieved as a result of implementation of the standards exceeded the 1997 projections for all nine of the regulated pollutants. A comparison of the estimated pollutant reductions versus the actual reductions is presented in Table 2 of this preamble. Table 2.—Comparison of Estimated Pollutant Reductions Versus Actual Pollutant Reductions Pollutant Estimated emissions reduction, percent Actual emissions reduction, percent 1 HCl 98 99.2 CO 75 to 82 98.1 Pb 80 to 87 98.7 Cd 75 to 84 99.0 Hg 93 to 95 99.0 PM 88 to 92 98.1 CDD/CDF, total 96 to 97 99.5 CDD/CDF, TEQ 95 to 97 99.6 NO <sup>X</sup> 0 to 30 70.6 SO <sup>2</sup> 0 to 30 92.6 1 Reflects the effect of unit shutdowns as well as the effect of compliance with the promulgated standards. 3. What was the Sierra Club's challenge? On November 14, 1997, the Sierra Club and the Natural Resources Defense Council (Sierra Club) filed suit in the U.S. Court of Appeals for the District of Columbia Circuit (the Court). The Sierra Club claimed that EPA had violated CAA section 129 by setting emission standards for HMIWI under CAA sections 129 and 111 that are less stringent than the statutory minimum stringency required by section 129(a)(2); that EPA had violated section 129 by not including mandatory pollution prevention or waste minimization requirements in the HMIWI standards; and that EPA had not adequately considered the non-air quality health and environmental impacts of the standards. For new units, the Sierra Club argued that to satisfy the statutory phrase “best controlled similar unit” in CAA section 129(a)(2), EPA should have identified the single best performing unit in each subcategory and based the MACT floor for that subcategory on that particular unit's performance, rather than consider the performance of other units using the same technology. The Sierra Club also argued that EPA erroneously based the new unit floors on the emissions of the worst performing unit using a particular technology. Regarding existing units, the Sierra Club claimed that the plain meaning of CAA section 129(a)(2)'s words, “average emissions limitation achieved by the best performing 12 percent of units,” precludes the use of regulatory data, and claimed that the legislative history of section 129(a)(2) reflects congressional intent to prohibit EPA from relying on regulatory data. Moreover, the Sierra Club claimed that, for HMIWI, using regulatory data was impossible because such data existed for fewer than 12 percent of units, and because doing so would impermissibly import an achievability requirement into the unit floor determination. Finally, the Sierra Club argued that EPA failed to require HMIWI units to undertake programs to reduce the Hg and chlorinated plastic in their waste streams, in violation of CAA section 129(a)(3), and that EPA failed to consider the fact that CDD/CDF and Hg from HMIWI can contaminate water, sediment, and soil, and can bioaccumulate in food, in violation of the CAA's requirement that EPA consider non-air quality impacts of setting HMIWI emissions standards. 4. What was the Court's ruling? On March 2, 1999, the Court issued its opinion in *Sierra Club* v. *EPA,* 167 F.3d 658 (D.C. Cir. 1999). While the Court rejected the Sierra Club's claims regarding pollution prevention and non-air quality impacts, and rejected the Sierra Club's statutory arguments under CAA section 129, the Court remanded the rule to EPA for further explanation regarding how EPA derived the MACT floors for new and existing HMIWI units. Furthermore, the Court did not vacate the regulations, stating that “[i]t is possible that EPA may be able to explain [EPA's basis for the standards]” in response to the concerns raised by the Court. *Id.* , at 664. The regulations remain in effect during the remand. a. The Court's Ruling on New Units. In response to the Sierra Club's claims regarding EPA's treatment of new units, the Court opined that “EPA would be justified in setting the floors at a level that is a reasonable estimate of the performance of the ‘best controlled similar unit’ under the worst reasonably foreseeable circumstances [* * *]. It is reasonable to suppose that if an emissions standard is as stringent as ‘the emissions control that is achieved in practice’ by a particular unit, then that particular unit will not violate the standard. This only results if ‘achieved in practice’ is interpreted to mean ‘achieved under the worst foreseeable circumstances.’ In *National Lime Ass'n* v. *EPA,* 627 F.2d 416, 431 n. 46 (D.C. Cir. 1980), we said that where a statute requires that a standard be ‘achievable,’ it must be achievable ‘under most adverse circumstances which can reasonably be expected to recur.’ The same principle should apply when a standard is to be derived from the operating characteristics of a particular unit.” *Sierra Club* v. *EPA,* 167 F.3d at 665. Thus, the Court refused to embrace the Sierra Club's interpretation of CAA section 129(a)(2) as requiring EPA to base the MACT floor on only the lowest emissions data points observed (i.e., the level achieved by the best performing unit for each pollutant). Relating to the Sierra Club's claim that EPA erred in considering the emissions of units other than the best controlled unit, the Court refused to rule that EPA's approach was unlawful, and posited that “[p]erhaps considering all units with the same technology is justifiable because the best way to predict the worst reasonably foreseeable performance of the best unit with the available data is to look at other units’ performance. Or perhaps EPA reasonably considered all units with the same technology equally ‘well-controlled,’ so that each unit with the best technology is a ‘best-controlled unit’ even if such units vary widely in performance.” *Sierra Club* v. *EPA* , 167 F.3d at 665. However, the Court concluded that the possible rationale for this treatment of new units was not presented in the rulemaking record with enough clarity for the Court to determine that EPA's “path may reasonably be discerned.” *Id.* Moreover, the Court ruled that EPA had “not explained why the phrase best controlled similar unit encompasses all units using the same technology as the unit with the best observed performance, rather than just that unit itself[. * * * W]e do not know what interpretation the agency chose, and thus cannot evaluate its choice.” *Sierra Club* v. *EPA,* 167 F.3d at 665. The Court further directed EPA to provide additional explanation regarding how the Agency had calculated the upper bound of the best-controlled unit's performance through rounding. *Id.* b. The Court's Ruling on Existing Units. With respect to existing units, the Court first rejected the Sierra Club's “claim that EPA's decision to base the floors on regulatory data fails the first step of the *Chevron* test. None of the Sierra Club's arguments establish that Congress has ‘directly addressed’ and rejected the use of regulatory data.” *Id.* , at 661. After noting that the Sierra Club's statutory objections to EPA's methodology appeared to be premised on “the counterintuitive proposition that an ‘achieved’ level may not be ‘achievable,’ or, as Sierra Club puts it, may be better than ‘EPA's notions about what is achievable,’ ” *id.* at 662, the Court rejected the Sierra Club's statutory objections to using regulatory data and uncontrolled (i.e., combustion-controlled) emissions values. In other words, the Court implicitly embraced EPA's view, under the principle of *National Lime,* that the MACT floor is premised on the fundamental concept that it be “achievable,” and should not be set at a level that happens to be reflected by the lowest observed data point without consideration of variability in operating conditions. Then, after analyzing and rejecting the Sierra Club's arguments that the plain language of the CAA and its legislative history forbid EPA's methodology, the Court further ruled that it found “nothing inherently impermissible about construing the statute to permit the use of regulatory data—if they allow EPA to make a reasonable estimate of the performance of the top 12 percent of units. Indeed, the Sierra Club conceded at oral argument that ‘a reasonable sample’ may be used ‘to find out what the best 12 percent are doing.’ Oral Arg. Tr. at 11. To be sure, the Sierra Club did not concede that permit data may be used. But neither has it provided any basis for believing that state and local limitations are such weak indicators of performance that using them is necessarily an impossible stretch of the statutory terms. [* * *] We therefore reject the Sierra Club's argument that the CAA forbids the use of permit and regulatory data, and hold that the use of such information is permissible as long as it allows a reasonable inference as to the performance of the top 12 percent of units. Similarly, as long as there is a reasonable basis for believing that some of the best performing 12 percent of units are uncontrolled [i.e., combustion controlled], EPA may include data points giving a reasonable representation of the performance of those units in its averaging.” *Sierra Club* v. *EPA,* 167 F.3d at 662, 663. Thus, the Court rejected all of the Sierra Club's arguments that the CAA prohibits EPA from basing MACT floor determinations on permit or regulatory data, or on uncontrolled (i.e., combustion-controlled) emissions values. However, in addressing the manner in which EPA had specifically relied upon such data in the HMIWI rulemaking, the Court concluded that “[a]lthough EPA said that it believed the combination of regulatory and uncontrolled [i.e., combustion-controlled] data gave an accurate picture of the relevant [HMIWI]s‘ performance, it never adequately said why it believes this. [* * *] First, EPA has said nothing about the possibility that [HMIWI]s might be substantially overachieving the permit limits. If this were the case, the permit limits would be of little value in estimating the top 12 percent of [HMIWI]s’ performance. [* * *] Second, EPA never gave any reason for its apparent belief that [HMIWI]s that were not subject to permit requirements did not deploy emission controls of any sort. Unless there is some finding to this effect, it is difficult to see the rationality in using ‘uncontrolled’ [i.e., combustion-controlled] data for the units that were not subject to regulatory requirements.” *Id.* , at 663-664. The Court further questioned the rationality of EPA using the highest of its test run data in cases where the regulatory data did not alone comprise the necessary 12 percent. *Id.* , at 664. c. Subsequent Court Rulings Relevant to the Remand. Following the Court's remand of the HMIWI MACT floors in *Sierra Club* v. *EPA,* the Court issued a series of rulings in other cases addressing MACT rules that bear on EPA's proposed response regarding HMIWI. The first of these was *Nat'l Lime Ass'n* v. *EPA* , 233 F.3d 625 (D.C. Cir. 2000) ( *“NLA II”* ), which involved challenges to EPA's MACT standards under CAA section 112(d) for portland cement manufacturing facilities. In that case, the Sierra Club argued that EPA should have based its estimate of the top performing 12 percent of sources on actual emissions data, in order to “reasonably estimate” such performance. But the Court determined that EPA's approach of selecting “the median [performing] plant out of the best twelve percent of the plants for which it had information and set[ting] the * * * floor at the level of the worst performing plant in its databases using th[e same] technology [as the median plant]” had not been shown by the Sierra Club to reflect a not reasonable estimate. *NLA II,* 233 F.3d at 633. In addition, the Court partially clarified its position regarding EPA's approach of accounting for emissions performance variability by setting floors at a level that reasonably estimates “the performance of the ‘best controlled similar unit’ under the worst reasonably foreseeable circumstances.” *Sierra Club* , 167 F.3d at 665. In *NLA II* , the Court stressed that EPA should not simply set floors at levels reflecting the worst foreseeable circumstances faced by any worst performing unit in a given source category, and that while considering all units with the same technology may be justifiable because the best way to predict the worst reasonably foreseeable performance of the best unit with available data is to look at other units' performance, such an approach would satisfy the CAA “if pollution control technology were the only factor determining emission levels of that HAP.” *NLA II* , 233 F.3d at 633. *In Cement Kiln Recycling Coalition* v. *EPA* , 255 F.3d 855 (D.C. Cir. 2001) (“ *CKRC* ”), the Court again refined its view on when it is appropriate for EPA to base MACT floors on the performance of air pollution control technology. In that case, the Sierra Club challenged EPA's MACT standards for hazardous waste combustors (HWC), and argued that factors other than MACT technology influenced the emissions performance of the best performing sources. The Court agreed that since EPA's record evidence in the HWC rulemaking showed that factors besides MACT controls significantly influenced HWC emission rates, ”emissions of the worst-performing MACT source may not reflect what the best-performers actually achieve.” *CKRC* , 255 F.3d at 864. EPA had claimed that MACT floors must be achievable by all sources using MACT technology, and that to account for the best-performing sources” operational variability we had to base floors on the worst performers” emissions. But the Court stressed that “whether variability in the MACT control accurately estimates variability associated with the best performing sources depends on whether factors other than MACT control contribute to emissions[,]” *id.* , and that “the relevant question here is not whether control technologies experience variability at all, but whether the variability experienced by the best-performing sources can be estimated by relying on emissions data from the worst-performing sources using the MACT control.” *Id.* , at 865. In the specific case of the HWC rule, the Court concluded that, since record evidence showed that non-MACT factors influenced emissions performance, EPA could not base floors simply on the worst-performing MACT sources' emissions. *Id.* , at 866. However, the Court also reiterated that “[i]f in the case of a particular source category or HAP, the Agency can demonstrate with substantial evidence—not mere assertions—that MACT technology significantly controls emissions, or that factors other than the control have a negligible effect, the MACT approach could be a reasonable means of satisfying the statute's requirements.” *Id.* 5. Are revisions to the emission limits being proposed in response to the remand? Yes, the proposed response to the remand would revise some of the emission limits in both the NSPS and emission guidelines. Relative to the NSPS, the emission limits for CO, Pb, Cd, Hg, PM, and CDD/CDF would be revised. Relative to the emission guidelines, the emission limits for HCl, Pb, Cd, and CDD/CDF would be revised. EPA believes that the revised emission limits being proposed as a result of its response to the remand can be achieved with the same emission control technology currently used by HMIWI. The proposed emission limits for the NSPS and emission guidelines necessary to respond to the Court's remand are summarized in Table 3 of this preamble. Note that in several cases, further amendments to the emission limits are being proposed as a result of our 5-year review under CAA section 129(a)(5). Those proposed amendments are discussed in the following section of this preamble. Table 3.—Summary of Proposed Emission Limits in Response to the Remand Pollutant (units) Unit size 1 Proposed remand limit for existing HMIWI 2 Proposed remand limit for new HMIWI 2 HCl
(ppmv)L, M, S 78 or 93% reduction 3 15 3 or 99% reduction 3 . SR 3,100 3 N/A 4 . CO
(ppmv)L, M, S 40 3 32 SR 40 3 N/A 4 . Pb (mg/dscm) L, M 0.78 or 71% reduction 0.060 or 98% reduction 3 . S 0.78 or 71% reduction 0.78 or 71% reduction. SR 8.9 N/A 4 . Cd (mg/dscm) L, M 0.11 or 66% reduction 3 0.030 or 93% reduction. S 0.11 or 66% reduction 3 0.11 or 66% reduction 3 . SR 4 3 N/A 4 . Hg (mg/dscm) L, M 0.55 3 or 87% reduction 0.45 or 87% reduction. S 0.55 3 or 87% reduction 0.47 or 87% reduction. SR 6.6 N/A 4 . PM (gr/dscf) L 0.015 3 0.009 M 0.030 3 0.009 S 0.050 3 0.018 SR 0.086 3 N/A 4 . CDD/CDF, total (ng/dscm) L, M 115 20 S 115 111 SR 800 3 N/A 4 . CDD/CDF, TEQ (ng/dscm) L, M 2.2 0.53 S 2.2 2.1 SR 15 3 N/A 4 . NO <sup>X</sup>
(ppmv)L, M, S 250 3 225 SR 250 3 N/A 4 SO <sup>2</sup>
(ppmv)L, M, S 55 3 46 SR 55 3 N/A 4 . 1 L = Large; M = Medium; S = Small; SR = Small Rural 2 All emission limits are measured at 7 percent oxygen. 3 No change proposed. 4 Not applicable. B. Proposed Amendments (CAA Section 129(a)(5) 5-Year Review) Section 129(a)(5) of the CAA requires EPA to conduct a review of the NSPS and emissions guidelines at 5 year intervals and, if appropriate, revise the NSPS and emission guidelines pursuant to the requirements under sections 111 and 129 of the CAA. In conducting such reviews, EPA attempts to assess the performance of and variability associated with the installed emissions control equipment (and developments in practices, processes and control technologies) and to revise as necessary and appropriate the NSPS and emission guidelines. In these reviews, EPA takes into account the currently installed equipment and its performance and operational variability. As appropriate, we also consider new technologies that have been demonstrated to reliably control emissions from the source category. In setting numerical emission limits from single, “snap shot” stack test data, EPA must exercise technical judgment to ensure the achievability of such limits over the course of anticipated operating conditions. EPA has completed the 5-year review, and the proposed amendments discussed below reflect the changes that EPA has determined are appropriate in addition to the amendments that are necessary to respond to the Court's remand. These proposed amendments do not reflect adoption of new control technologies or processes, but do reflect more efficient practices in operation of the control technologies that sources used in order to meet the 1997 MACT standards. Following year 2002 compliance with the emission guidelines, EPA gathered information on the performance levels actually being achieved by HMIWI that were operating under the guidelines. After implementation of the guidelines in 1997, approximately 94 percent of HMIWI shut down, and 3 percent demonstrated eligibility for exemptions from the HMIWI regulation. Those HMIWI that remained in operation either continued operation with their existing configuration or were retrofitted with add-on air pollution control devices in order to meet the standards. The retrofits were completed on time, and the controls installed to meet the required emission limitations were highly effective in reducing emissions of all of the CAA section 129 pollutants emitted by HMIWI. For those HMIWI, relative to a 1995 baseline, the emission guidelines reduced organic emissions (CDD/CDF) by about 90 percent, metals emissions (Pb, Cd, and Hg) by more than 80 percent, and acid gas emissions (HCl and SO <sup>2</sup> ) by more than 70 percent. Including shutdowns and exemptions, nationwide HMIWI emissions of organics, metals, and acid gases each decreased by about 99 percent or more relative to a 1995 baseline. It should be noted that the original HMIWI emission limits were based primarily on permit information and other regulatory requirements, and not on actual performance or stack test data. To this end, it was highly uncertain at promulgation what the precise performance efficiency and day-to-day operational variability associated with the promulgated regulatory requirements would yield. Thus, the 2002 compliance test information provided the first quantitative assessment of the performance of the installed control equipment's ability to attain the NSPS and emissions guideline limits. The goal of the current technology review is to assess the performance efficiency of the installed equipment and to ensure that the emission limits reflect the performance of the technologies required by the MACT standards. In addition, the review addresses whether new technologies and processes and improvements in practices have been demonstrated at sources subject to the emissions limitations. EPA's intent for future technology reviews is to include similar analyses that also assess risk along with new technologies. For the current review, while new technologies have not yet been demonstrated to reliably control emissions more efficiently at reasonable cost at HMIWI units than those used to meet MACT, improvements in operational practices do support some additional revision of the standards, in order to better reflect the best operation of the MACT controls. These proposed amendments would revise the NSPS and emission guidelines, in some cases beyond the point needed to respond to the Court's remand, based on the performance levels currently being achieved by HMIWI. The revisions discussed in the following text apply to both the NSPS and the emission guidelines, unless otherwise specified. 1. Are revisions to the emission limits being proposed? Yes, the proposed amendments would revise the emission limits in both the NSPS and emission guidelines. EPA's technology review demonstrates that the proposed emission limits can be achieved with the same emission control technology currently used by HMIWI. The proposed emission limits for the NSPS and emission guidelines are summarized in Tables 4 and 5 of this preamble. Table 4.—Summary of Proposed 5-Year Review Emission Limits for New HMIWI Pollutant (units) Unit Size 1 Proposed Limit 2 HCl
(ppmv)L, M, S 15 3 or 99% reduction 3 . CO
(ppmv)L, M, S 25 Pb (mg/dscm) L, M 0.060 or 99% reduction. S 0.64 or 71% reduction. Cd (mg/dscm) L, M 0.0050 or 99% reduction. S 0.060 or 74% reduction. Hg (mg/dscm) L, M 0.19 or 96% reduction. S 0.33 or 96% reduction. PM (gr/dscf) L, M 0.0090. S 0.018. CDD/CDF, total (ng/dscm) L, M 16 S 111 CDD/CDF, TEQ (ng/dscm) L, M 0.21 S 2.0 NO <sup>X</sup>
(ppmv)L, M, S 212 SO <sup>2</sup>
(ppmv)L, M 21 S 28 1 L = Large; M = Medium; S = Small 2 All emission limits are measured at 7 percent oxygen. 3 No change proposed. Table 5.—Summary of Proposed 5-Year Review Emission Limits for Existing HMIWI Pollutant (units) Unit Size 1 Proposed Limit 2 HCl
(ppm)L, M, S 51 or 94% reduction. SR 398 CO
(ppm)All 25 Pb (mg/dscm) L, M, S 0.64 or 71% reduction. SR 0.60 Cd (mg/dscm) L, M, S 0.060 or 74% reduction. SR 0.050 Hg (mg/dscm) L, M, S 0.33 or 96% reduction. SR 0.25 3 PM (gr/dscf) L 0.015 M 0.030 3 S 0.030 SR 0.030 CDD/CDF, total (ng/dscm) L, M, S 115 SR 800 3 CDD/CDF, TEQ (ng/dscm) L, M, S 2.0 SR 15 3 NO <sup>X</sup>
(ppmv)All 212 SO <sup>2</sup>
(ppmv)All 28 1 L = Large; M = Medium; S = Small; SR = Small Rural 2 All emission limits are measured at 7 percent oxygen. 3 No change proposed. As indicated by Table 5 of this preamble, the proposed emission limits for Pb, Cd, and Hg for existing small rural HMIWI are more stringent than those being proposed for existing large, medium, and small HMIWI. We believe that this better emissions performance by existing small rural HMIWI is a result of the waste stream of a small rural hospital not including certain materials that are in the waste stream of a non-rural hospital and that cause relatively higher Pb, Cd and Hg emissions. 2. Are other amendments being proposed? The proposed amendments would also make the following changes based on information received during implementation of the HMIWI NSPS and emission guidelines and would apply equally to the NSPS and emission guidelines, unless otherwise specified. a. Performance Testing and Monitoring Amendments. The proposed amendments would allow sources to use the results of previous emissions tests to demonstrate compliance with the revised emission limits as long as the sources certify that the previous test results are representative of current operations. Only those sources whose previous emissions tests do not demonstrate compliance with one or more revised emission limits would be required to conduct another emissions test for those pollutants (note that sources are already required to test for HCl, CO, and PM on an annual basis). The proposed amendments would require, for existing HMIWI, annual inspections of scrubbers and fabric filters, and a one-time Method 22 visible emissions test of the ash handling operations to be conducted during the next compliance test. For new HMIWI, the proposed amendments would require CO continuous emissions monitoring systems (CEMS), bag leak detection systems for fabric-filter controlled units, annual inspections of scrubbers and fabric filters, and Method 22 visible emissions testing of the ash handling operations to be conducted during each compliance test. For existing HMIWI, use of CO CEMS would be an approved alternative, and specific language with requirements for CO CEMS is included in the proposed amendments. For new and existing HMIWI, use of PM, HCl, multi-metals, and Hg CEMS, and semi-continuous dioxin monitoring (continuous sampling with periodic sample analysis) also are approved alternatives, and specific language for these alternatives is included in the proposed amendments. b. Other Amendments. The proposed amendments would revise the definition of “Minimum secondary chamber temperature” to read “Minimum secondary chamber temperature means 90 percent of the highest 3-hour average secondary chamber temperature (taken, at a minimum, once every minute) measured during the most recent performance test demonstrating compliance with the PM, CO, and dioxin/furan emission limits.” The proposed amendments would require sources to submit, along with each test report, a description of how operating parameters are established during the initial performance test and subsequent performance tests. 3. Is an implementation schedule being proposed? Yes; under the proposed amendments to the emission guidelines, and consistent with CAA section 129, revised State plans containing the revised emission limits and other requirements in the proposed amendments would be due within 1 year after promulgation of the amendments. That is, revised State plans would have to be submitted to EPA 1 year after the date on which EPA promulgates revised standards. The proposed amendments to the emission guidelines then would allow HMIWI units up to 3 years from the date of approval of a State plan, but not later than 5 years after promulgation of the revised standards, to demonstrate compliance with the amended standards. Consistent with CAA section 129, EPA expects States to require compliance as expeditiously as practicable. HMIWI units have already installed the emission control equipment necessary to meet the proposed revised limits, and EPA, therefore, anticipates that most State plans will include compliance dates sooner than 5 years following promulgation of the amendments. In most cases, the only changes necessary are to review the revisions and adjust the emission monitoring and reporting accordingly. In revising the emission limits in a State plan, a State has two options. First, it could include both the current and the new emission limits in its revised State plan, which allows a phased approach in applying the new limits. That is, the State plan would make it clear that the current emission limits remain in force and apply until the date the new emission limits are effective (as defined in the State plan). States whose HMIWI units do not find it necessary to improve their performance in order to meet the new emission limits may want to consider a second approach where the State would insert the new emission limits in place of the current emission limits, follow procedures in 40 CFR part 60, subpart B, and submit a revised State plan to EPA for approval. If the revised State plan contains only the new emission limits (i.e., the current emission limits are not retained), then the new emission limits must become effective immediately since the current limits would be removed from the State plan. 4. Has EPA changed the applicability date of the 1997 NSPS? No; however, HMIWI may be treated differently under the amended standards than they were under the 1997 standards in terms of whether they are “existing” or “new” sources, and there will be new dates defining what are “new” sources and imposing compliance deadlines regarding any amended standards. The applicability date for the NSPS units, with respect to the standards as promulgated in 1997, remains June 20, 1996; however, units for which construction is commenced after the date of this proposal, or modification is commenced on or after the date 6 months after promulgation of the amended standards, would be subject to more stringent NSPS emission limits than units for which construction or modification was completed prior to those dates. Under the proposed amendments, units that commenced construction after June 20, 1996, and on or before February 6, 2007, or that are modified before the date 6 months after the date of promulgation of any revised final standards, would continue to be or would become subject to the NSPS emission limits that were promulgated in 1997 and that remain in the 40 CFR part 60, subpart Ec NSPS, except where the revised emission guidelines would be more stringent. In that case, HMIWI that are NSPS units under the 1997 rule would also need to comply with the revised emission guidelines for existing sources, by the applicable compliance date for such existing sources. Similarly, emission guidelines units under the 1997 rule would need to meet the revised emission guidelines by the applicable compliance date for the revised guidelines. HMIWI that commence construction after February 6, 2007 or that are modified 6 months or more after the date of promulgation of any revised standards would have to meet the revised NSPS emission limits being added to the subpart Ec NSPS and any remaining NSPS limits from the 1997 rule, as applicable, within 6 months after the promulgation date of the amendments or upon startup, whichever is later. IV. Rationale A. Rationale for the Proposed Response to the Remand This action responds to the Court's remand by
(1)further explaining the reasoning processes by which EPA determined the MACT floors and the MACT standards for new and existing HMIWI for the portions of those processes that are being retained under our remand response, and
(2)explaining revisions to the processes, the MACT floors, and the MACT standards for new and existing HMIWI that result from our response to the remand. 1. New HMIWI The Court raised three issues with regard to EPA's treatment of the MACT floor for new units and the achievable emission limitations. First, the Court asked EPA to explain why the floor was based on the highest emissions levels of the “worst-performing” unit employing the MACT technology rather than on the lowest observed emissions levels of the best performing unit using the MACT technology. (See *Sierra Club* v. *EPA,* 167 F.3d at 665.) Second, the Court requested further explanation of why EPA considered multiple units employing the MACT technology, rather than identify the single best-performing unit and basing the floor on that particular unit's performance with that technology. *Id.* Third, the Court requested further explanation of EPA's procedure for determining the achievable emission limitation from the available data, where EPA selected a numerical value somewhat higher than the highest observed data point. The Court stated that EPA's procedure “[m]ay be justifiable as a means of reasonably estimating the upper bound of the best-controlled unit's performance, but in the absence of agency explanation of both the decision to increase the levels and the choice of method for determining the increases, we are in no position to decide.” *Id.* As discussed in detail below, for the first two issues, the Court described potential rationale for EPA's method. However, because the Court concluded that this rationale was not adequately presented in the rulemaking record, the Court asked for further clarification by EPA. In subsequent cases the Court further addressed these potential rationales, and discussed under what circumstances they would and would not be persuasive. In fact, the Court's potential rationale for EPA's method reflects the principles used by EPA in determining the MACT floor for new units and the achievable emission limitations for this source category, and is the method that has been used by EPA throughout most of the Agency's 30-year history in developing achievable technology-based emission limitations for source categories in cases where the application of control technology has been the only means by which sources have limited emissions, and the variability of technology performance is a critical factor in determining an emission limitation's achievability. (See, e.g., *American Iron and Steel Inst.* v. *EPA,* 115 F.3d 979, 1000 (D.C. Cir. 1997); *BP Exploration & Oil, Inc.,* v. *EPA,* 66 F.3d. 784, 794 (6th Cir. 1995); *NRDC* v. *EPA,* 790 F.2d 289, 299 (3d Cir. 1986); *National Ass'n of Metal Finishers* v. *EPA,* 719 F.2d 624, 659 (3d Cir. 1983); *rev'd on other grounds sub nom,* *Chemical Mfrs. Ass'n* v. *NRDC,* 470 U.S. 116 (1985); *American Petroleum Inst.* v. *EPA,* 661 F.2d 340, 347 n. 23 (5th Cir. 1981); *Bunker Hill Co.* v. *EPA,* 572 F.2d 1286, 1302 (9th Cir. 1977); *Marathon Oil Co.* v. *EPA,* 564 F.2d 1253, 1266-67 (9th Cir. 1977); *FMC* v. *Train,* 639 F.2d 973, 985-86 (4th Cir. 1976).) As discussed elsewhere in this preamble, in *CKRC* the Court stressed that where record evidence suggests that factors other than application of control technology influence emissions, EPA will not be able to demonstrate “that floors based on the worst-performing MACT sources' emissions represent ‘a reasonable estimate of the performance of the [best-performing] units.’ ” *CKRC,* 255 F.3d at 866, quoting *Sierra Club,* 167 F.3d at 662. However, the Court reiterated that where EPA's record demonstrates that MACT technology significantly controls emissions, or that factors other than the control have a negligible effect, the approach of accounting for variability by basing the floor on the highest emissions resulting from a source using MACT technology “could be a reasonable means of satisfying the statute's requirements.” *CKRC,* at 866. a. Applicability of *National Lime* to CAA Section 129. CAA section 129(a)(3) states that “[s]tandards under section 111 and this section applicable to solid waste incineration units shall be based on methods and technologies for removal or destruction of pollutants before, during, or after combustion [* * *].” This language requires that such a standard be based on the degree of reduction in air pollutant emissions that can be achieved through application of a particular method of pollution control, and any other factors that record evidence shows significantly affect emissions performance. Much like the language in CAA sections 111 and 129 governing the HMIWI standards, Congress has used similar language in other statutes to direct adoption of technology-based standards. (See, e.g., CAA section 169(3) defining “best available control technology”; Clean Water Act section 301(b)(2)(A), for “best available technology economically achievable” or “BAT” standards; Clean Water Act section 304(b)(1) for “best practicable technology” or “BPT” standards.) As the Court has stated, “[t]echnology-based provisions [in the CAA] require EPA to promulgate standards only after finding that the requisite technology exists or may be feasibly developed. Absolute standards, on the other hand, require compliance with statutorily prescribed standards and time tables, irrespective of present technologies.” (See *NRDC* v. *Reilly,* 983 F.2d 259, 268 (D.C. Cir. 1993) (holding that elimination of feasibility requirements and specification of particular control systems indicated that congressional amendment of CAA section 202(a)(6) resulted in an “absolute” standard).) MACT standards under CAA sections 111 and 129 are “technology-based,” rather than “absolute” standards. The legislative history to the 1990 CAA Amendments clearly shows that Congress intended the MACT standards to be technology-based. (See I *A Legislative History,* at 863 (Senator Durenberger referring to “the MACT technology-based standards” in debates on the bill reported by the Conference Committee); *id.,* at 1128 (Senator Dole explaining that changes made to CAA section 129 in the Conference Committee “make the technology test more closely approximate the role of the NSPS”); S. Rep. No. 101-228, at 133-134
(1989)(referring to CAA section 112 MACT standards as “technology-based standards” and noting that technology-based effluent standards under the Clean Water Act served as a model for the new MACT standards).) CAA section 129 does not specify a type of control technology for HMIWI, but instead requires EPA to develop floor levels already achieved in practice by one or more units, and then issue standards that EPA determines are “achievable” for units in that source category. As the Court stated in *National Lime Ass'n* v. *EPA* (627 F.2d 416, 431 n. 46 (D.C. Cir. 1980)) (“ *NLA I* ”), and restated in *Sierra Club* , “where a statute requires a standard to be achievable, it must be achievable ‘under most adverse circumstances which can reasonably be expected to recur.’ ” (See *Sierra Club* , 167 F.3d at 665.) In other words, “EPA would be justified in setting floors at a level that is a reasonable estimate of the performance of the ‘best controlled similar unit” under the worst reasonably foreseeable circumstances[.]” *Id.* This concept of “worst reasonably foreseeable circumstances” is fundamental in developing achievable technology-based emission limitations, since, once the standard is in force, sources will be expected to comply with it at all times by relying on the technology that formed the basis for EPA's determination that the promulgated emissions limitation is achievable. As the Court stated in *Sierra Club* , ‘[i]t is reasonable to suppose that if an emissions standard is as stringent as ‘the emissions control that is achieved in practice’ by a particular unit, then that particular unit will not violate the standard. This only results if ‘achieved in practice’ is interpreted to mean ‘achieved under the worst foreseeable circumstances.’ ” *Id* . EPA agrees with the Court that, in order to satisfy the requirements of *NLA I* , “[t]he same principle should apply when a standard is to be derived from the operating characteristics of a particular unit[,]” as is the case under CAA section 129(a)(2). *Id.* CAA section 129(a)(2) requires that the new unit MACT floor be “not less stringent than the emissions control that is achieved in practice by the best controlled similar unit, as determined by the Administrator.” It would have been unreasonable for EPA to base the MACT floors solely on the lowest levels of emissions observed without an assessment of whether those observed levels could be met on a continuous basis, and the CAA and its legislative history provide no support in deviating from the general practice EPA has followed in the wake of *NLA I* . In a report on H.R. 3030, the House Committee on Energy and Commerce explained that “MACT is not intended to require unsafe control measures, or to drive sources to the brink of shutdown.” (See H.R. Rep. No. 101-490, pt. 1, at 328 (1990).) This view is consistent with *NLA I* , which involved challenges to standards EPA promulgated under section 111 of the CAA and is particularly applicable to the HMIWI rulemaking under CAA section 129, since this rule has its basis in authority in both section 129 and section 111. (See CAA section 129(a)(1)(A) and (C).) Moreover, interpreting CAA section 129 as subject to the principles of *NLA I* appropriately notes the critical distinction between a level of emissions that has been continuously achieved through performance using control technology, and one that has been observed at a single point in time. A level that has been continuously achieved is capable of being met under most conditions which can reasonably be expected to recur because variability in operating conditions is taken into account. Such a level best effectuates Congress’ intent because it ensures that the MACT floor will result in reduced emissions without forcing sources to shut down. A lowest observed emission level, however, is not representative of a unit's performance under most conditions which can reasonably be expected, and may be impossible to achieve on a regular, let alone continuous, basis. While an observed lowest emissions level may be appropriate for use in determining whether a source is in compliance with an emission standard that must be continuously met, it is not an appropriate level upon which to base the minimum stringency level of such a standard. In addition, Congress’ use of the phrases “as determined by the Administrator” and “achieved in practice” in CAA section 129(a)(2) in the directive to establish MACT floors shows that Congress expected EPA to consider variability in operating conditions and other relevant factors in the Agency's determinations. The term “practice” is defined as “[r]epeated or customary action; habitual performance; a succession of acts of a similar kind; custom; usage.” (See Black's Law Dictionary 1172 (6th ed. 1990).) Thus, achieved in “practice” means achieved on a repeated, customary, or habitual basis. Under the statutory mandate that the level “achieved in practice” be “determined by the Administrator,” EPA must exercise its judgment, based on an evaluation of the relevant factors and available data, to determine the level of emissions control that can be customarily achieved using the relied-upon technology under variable conditions. Merely locating the lowest emissions data point and setting the MACT standard at that level would not constitute a considered “determination by the Administrator” as to what has been “achieved in practice.” (See, e.g., Senate Debate on Conference Report, 10-26-90, reprinted in I *A Legislative History of CAA Amendments of 1990,* 103d Cong., 1st Sess. at 1128-1129 (Comm. Print 1993) (exchange between Senators Dole and Durenberger confirming that the phrase “achieved in practice” accounts for the distinction between research-type pollution control systems and systems that are “economically viable for widespread use,” and stressing that MACT floors should rely upon technologies that can “stand the rigors of day to day operations”).) Ultimately, *NLA I* is controlling because the case addressed how standards must be set in the face of variable operating conditions, and involved one of the same provisions of the CAA, section 111, under which the HMIWI rule was promulgated. *NLA I* held that EPA is required to use data that is representative of emissions that could be achieved in the industry as a whole. (See 627 F.2d at 433.) In developing the standards at issue in that case, EPA relied upon tests of the emissions from particular units to determine the level of emissions control that was achievable across the entire industry. The Court directed EPA to identify “variable conditions that may contribute substantially to the amount of emissions, or otherwise affect the efficiency of the emissions control systems.” *Id.* The Court then stated that “where test results are relied upon, it should involve the selection or use of test results in a manner which provides some assurance of the achievability of the standard for the industry as a whole, given the range of variable factors found relevant to the standards' achievability.” *Id.* This does not mean that EPA must test every plant, but it does mean that “due consideration must be given to the possible impact on emissions of recognized variations in operations and some rationale offered for the achievability of the promulgated standards given the tests conducted and the relevant variables identified.” *Id.,* at 434. Thus, applying *NLA I* to the HMIWI rule adopted under CAA sections 111 and 129, it is really a misnomer to characterize EPA as basing the MACT floor on the emissions of the “worst performing” unit using the technology in question, since that unit's level of emissions necessarily more closely represents the level “achieved in practice” by the given technology than would the lowest emissions level observed at a source using that “best” technology. b. Variability Between Facilities or Units. In remanding the NSPS at issue in *NLA I,* the Court noted that its decisions under CAA section 111 “evince a concern that variables be accounted for, that the representativeness of test conditions be [sic] ascertained, that the validity of tests be assured and the statistical significance of results be determined.” (See *NLA I* , 627 F.2d at 452-53.) (See, also, *Portland Cement Ass'n* v. *Ruckelshaus* , 486 F.2d 375, 396 (D.C. Cir. 1973), *cert. denied,* 417 U.S. 921 (1974).) When floors and standards are developed based on emissions data, EPA accounts for several types of variability to avoid adopting unachievable standards. The first type of variability is that concerning operational distinctions between facilities or units. As the *Sierra Club* Court stated in reviewing the HMIWI rule, “[p]erhaps considering all units with the same technology is justifiable because the best way to predict the worst reasonably foreseeable performance of the best unit with the available data is to look at other units' performance. Or perhaps EPA reasonably considered all units with the same technology equally ‘well-controlled,’ so that each unit with the best technology is a ‘best-controlled unit’ even if such units vary widely in performance.” (See 167 F.3d at 665.) These are two ways of saying essentially the same thing, and these concepts have been used by EPA throughout most of the Agency's history in determining achievable technology-based emission limitations, in cases where application of control technology significantly controls emissions and no record evidence indicates that factors other than the control have more than a negligible effect. Examining multiple units using the same technology gives the best picture of the performance capability of that particular technology, since it provides EPA with a more complete set of data by which to evaluate what levels of emissions control a technology can achieve as it is applied to varying sources. Such an analysis is necessary especially when adopting standards that all sources in a category will have to be able to meet by using the identified technology. Since MACT floors and standards are generally expressed as numerical emissions limits, it is necessary to account for this variability in order to adopt a regulation that is ‘achievable’ by the industry as a whole.” (See *NLA I* , 627 F.2d at 437.) Section 129(a)(2) of the CAA requires that EPA determine the emissions control achieved by the “best controlled similar unit” when establishing the MACT floors for new units. A solid waste incineration “unit” is defined as “a distinct operating unit of any facility which combusts any solid waste material” (CAA section 129(g)(1)). To achieve the best level of pollution control, that unit will utilize a particular method of pollution control (and possibly use other means that affect its emissions performance). The emissions control achieved by that method (and by any additional means) is the emissions control achieved by the “best controlled similar unit.” Thus, the MACT floor for new units is based on the “emissions control” that is attained by the specific method of pollution control and any other means used to limit emissions at the best similar unit, rather than merely on the emissions measured at a particular unit. In this way, by basing the MACT floor on the capability of a particular method of pollution control used at “similar” “best” “units,” instead of on the emissions measured at a single unit, EPA ensures that the floors would not only be achievable by the single best performing unit, but are also achievable by other units using the same technology and/or emissions limiting means as the best similar unit, and that it is reasonable to require the best similar unit and all future new units to meet this floor on a continuous basis. In contrast, identifying the “emissions control” of the “best controlled similar unit” as being a single data point from a single source provides merely a snapshot of emissions performance that may not be replicable by either that single source or by other sources using the same control technology, and, therefore, does not provide a basis for enforceably requiring all sources to perform to that level. Thus, the most reasonable way to interpret the statutory phrase “best controlled similar unit” in CAA section 129 is as encompassing all units using the same technology and emissions limiting means as the single unit with the best observed performance, rather than just that single best performing unit itself. A contrary interpretation would seem to directly conflict with the Court's directive in *NLA I,* and is not compelled by the Court rulings in *Sierra Club, NLA II,* and *CKRC.* Applying this approach to evaluating “best technologies” at “best controlled similar units,” where different design characteristics are identified (e.g., low-efficiency versus moderate-efficiency versus high-efficiency wet scrubbers), the data are grouped such that each data set reflects the performance of an “identical” control device, providing the best indication of the true performance of each control device and enabling the Agency to adopt a numerical standard that can be met with the subject technology at all units employing this technology, and can be enforced. Again, where the record evidence indicates that the only means of control of emissions at units is application of control technology, and there is no record evidence showing that other means of emissions limitation significantly affect emissions performance, basing the MACT floor on this approach is fully consistent with the Court's rulings in the MACT cases. c. Variability Between and Within Tests at Facilities. Another type of variability that EPA accounts for in order to ensure the achievability of technology-based standards that rely upon application of pollution controls concerns operational distinctions between and within tests at the same unit. Regarding “between-test variability,” even where conditions appear to be the same when two or more tests are conducted, variations in emissions are often caused by different settings for emissions testing equipment and differences in sample handling. Varying results may also be caused by use of different field teams to conduct the testing, or different laboratories to analyze the results. All these variations are typical. An achievable standard needs to account for these differences between tests, in order for “a uniform standard [to] be capable of being met under most adverse conditions which can reasonably be expected to recur[.]” (See *NLA I,* 627 F.2d at 431, n. 46.) (See also *Portland Cement Ass'n,* 486 F.2d at 396 (noting industry point that “a single test offered a weak basis” for inferring that plants could meet the standards).) Without accounting for variation among different emissions tests, it can be determined with a significant degree of statistical confidence that even a single unit will not be able to meet the standard over a reasonable period of time, when one can expect adverse conditions to recur. The Courts have recognized this basic principle in reviewing technology-based effluent standards under the Clean Water Act. As the U.S. Court of Appeals for the 5th Circuit stressed regarding “best practicable technology” or “BPT” standards under section 304(b)(1) of the Clean Water Act, “[t]he same plant using the same treatment method to remove the same toxic does not always achieve the same result. Tests conducted one day may show a different concentration of the same toxic than are shown by the same test on the next day. This variability may be due to the inherent inaccuracy of analytical testing, i.e., ‘analytical variability,’ or to routine fluctuations in a plant's treatment performance.” (See *Chemical Mf'rs Ass'n* v. *EPA,* 870 F.2d 177, 228 (5th Cir. 1989).) (See also *American Petroleum Institute* v. *EPA,* 540 F.2d 1023, 1035-36 (10th Cir. 1976) (“Even in the best treatment systems, changes occur in ability to treat wastes. [* * *] [V]ariability factors present[] a practical effort to accommodate for variations in plant operations”); *FMC Corp.* v. *Train,* 539 F.2d 973, 985 (4th Cir. 1976) (variability factors account for “the fact that even in the best treatment systems changes continually occur in the treatability of wastes”).) The same types of differences leading to between-test variability also cause variations in results between various runs comprising a single test, or “within-test variability.” A single test at a unit usually includes at least three separate test runs. (See 40 CFR 63.7(e)(3) (for MACT standards under section 112 of the CAA), and 40 CFR 60.8(f) (for NSPS under CAA section 111).) (See also *Portland Cement Ass'n,* 486 F.2d at 397 (noting differences in conditions among several test runs).) d. Application of *NLA I, Sierra Club, NLA II, and CKRC* Principles in HMIWI Rulemaking. Based on the record for the 1997 rulemaking, the best way to determine the worst reasonably foreseeable circumstances for the particular technologies used to control emissions at HMIWI was to first examine the highest data point actually observed from HMIWI equipped with each particular technology. If an emission value has been observed and there is no reason to believe it represents poor performance (i.e., there is nothing that can be done to prevent its recurring), it is likely to occur again in the future and, therefore, reflects a foreseeable circumstance. It is incorrect to characterize the highest data point as the “worst performance” of the best performing unit, or to characterize one control device's performance as “better” than another's based solely on the results of a single emission test. This is because such focuses relate to essentially random single data occurrences, rather than to estimating what a particular technology can be expected to continuously achieve. Rather, each data point, whether from one unit or from several identical units using the same technology, should be viewed as a snapshot of the actual performance of the technology in use. Along with an understanding of the factors affecting the performance of the technology, each of these snapshots gives information about the normal, and unavoidable, variation in emissions that would be expected to recur over time when using the identified technology. Conversely, when there is evidence that an emission data point reflects poor performance (design, operation, or both), such a data point should not be considered in determining the achievable emission limitation associated with the technology. Furthermore, a distinction must be made between an emission level that has been “observed” and an emission limitation that can be continuously “achieved.” The purpose of the MACT program is to compel sources to replicate emission reduction strategies used by the best-performing sources. Thus, MACT floors are based on the control strategies used by the best-performing sources to reduce emissions, not based on a snapshot level of emissions from sources without regard to whether this level reflects application of any replicable emission control strategies. CAA section 129(a)(2) does not direct EPA to assess relative emission “levels” in determining MACT floors; it directs EPA to assess the degree of emissions “control” or “reduction” or “limitation” “achieved” by the best-controlled or best-performing sources. The plain meaning of these words implies that a source is utilizing some method or technique to reduce emissions that is within a source operator's power to adopt. The reference to a “degree of reduction” supports the view that the words “control” and “limitation” appearing in section 129(a)(2) require a source to have reduced emissions from uncontrolled levels through some control technique. See *NLA II,* 233 F.3d at 631-32 (rejecting position that EPA is required to set new source floors at the lowest recorded emission level for which it has data and to set existing source floors at the average of the lowest 12 percent or recorded emission level data points). The Court has recognized that EPA may consider variability in estimating the degree of emission reduction achieved by best-performing sources and in setting MACT floors. See *Mossville Envt'l Action Now* v. *EPA,* 370 F.3d 1232, 1241-42 (D.C. Cir 2004) (holding EPA may consider emission variability in estimating performance achieved by best-performing sources and may set floor at level that best-performing source can expect to meet “every day and under all operating conditions”). Since an emission limitation must be complied with at all times, for it to be achievable it must be set at a level that will not force sources to violate it when operating conditions are not ideal and higher emissions levels might be observed. For example, a car which has been observed to consume 0.02 gallons of gasoline in a one-mile downhill stretch of highway cannot be said to have “achieved” a minimum 50 miles per gallon fuel efficiency rate when that same car is later certain to consume 0.04 gallons of gasoline in a one-mile uphill stretch of highway (25 miles per gallon). Rather, the minimum fuel efficiency of the car will be that which the car can meet in adverse circumstances, the uphill stretch. So it is with emissions limitations, which cannot reasonably be set at levels which would force sources to operate in violation even when properly employing the control technology upon which the standards are based. The emission data used to develop the emission limitations in the HMIWI regulations reflect properly designed and operated air pollution control technology on properly designed and operated HMIWI, and emission data that reflected poor operation of the HMIWI unit or the air pollution control technology were excluded. (See Legacy Docket ID No. A-91-61, items II-A-111 and IV-B-14.) The incinerators selected by EPA for testing represented a range of incinerator designs and air pollution control systems in use on this source category. (See Legacy Docket ID No. A-91-61, item IV-B-46.) The incinerators and air pollution controls were inspected thoroughly, and maintenance was performed where necessary to ensure that the incinerators and pollution controls were functioning properly. (See Legacy Docket ID No. A-91-61, items II-A-93, II-A-94, and II-A-85.) During testing, most test runs were conducted under representative conditions to minimize emissions. (See Legacy Docket ID No. A-91-61, items II-A-111, IV-B-46, and IV-B-47.) However, some test runs were purposely conducted under conditions that would represent poor operation (e.g., overcharging waste to the incinerator) to determine the effect of improper operation on emissions. (See Legacy Docket ID No. A-91-61, items II-A-111 and IV-B-46.) These test runs demonstrated that improper operation results in higher emissions. (See Legacy Docket ID No. A-91-61, items II-A-111, IV-B-46, and II-A-81.) Of course, the test runs reflecting poor operation were not used in developing the achievable emission limitations. *Id.* It is important to note that such poor operation is precluded by the good combustion requirements and the parametric monitoring requirements in the 1997 final rule. In addition to data gathered by EPA directly, vendors of air pollution control systems submitted test reports to EPA. (See Legacy Docket ID No. A-91-61, items II-I-230 through 237, II-I-243 and 244, II-I-248, IV-B-48 and 49, IV-J-11, IV-J-15 and 16, IV-J-20, IV-J-24, IV-J-27, IV-J-29 through 31, IV-J-33 and 34, IV-J-39 and 40, and IV-J-47.) The test reports were submitted primarily by wet scrubber vendors to demonstrate to EPA that wet scrubbers could achieve lower emissions than EPA had concluded from the EPA-collected data. (EPA had conducted testing on only one wet scrubber system.) (See 61 FR 31742; Legacy Docket ID No. A-91-61, item IV-B-48.) The test reports and the data collected by EPA reflect the best performance of the air pollution controls that can reasonably be expected when continuously applied on HMIWI. MACT and other technology-based standards are necessarily derived from short-term emissions test data, but such data are not representative of the range of operating conditions that facilities face on a day-to-day basis. In statistical terms, each test produces a limited data sample, not a complete enumeration of the available data for performance of the unit over a long period of time. (See Natrella, *Experimental Statistics* , National Bureau of Standards Handbook 91, chapter 1 (revised ed., 1966).) EPA, therefore, often needs to adjust the short-term data to account for these varying conditions, so facilities properly employing optimal controls can remain in compliance with the standards on a continuous basis. With the relatively small data sets EPA had to work with in the 1997 HMIWI rulemaking, it is possible that EPA has not recorded the highest emissions levels that would occur under the worst reasonably foreseeable circumstances. As the Court noted, it would “generally defer to an agency's decision to proceed on the basis of imperfect scientific information, rather than to ‘invest the resources to conduct the perfect study.' ” (See *Sierra Club* , 167 F.3d at 662.) “[S]ince EPA had data on only one percent of about 3,000 [HMIWI], the data gathering costs of any non-sampling method may well have been daunting.” *Id.* , at 663. In fact, the “perfect study” cannot be conducted, regardless of the resources expended to conduct it. Every study ends with some uncertainty in the results. There is no “cookbook” methodology for determining achievable emission limitations from data. In every case, but especially in cases where data are limited as with the 1997 HMIWI rulemaking, EPA must make judgments about what constitutes the worst reasonably foreseeable circumstance and put those judgments out for public comment. In the case of the HMIWI rulemaking, the “high” data points simply reflected the normal, and unavoidable, variation in emissions that would be expected to recur over time when properly using the best control technologies and strategies we determined were being used at HMIWI units. In fact, while the highest observed value is a “foreseeable circumstance,” it may not reflect the worst reasonably foreseeable circumstance. In determining the 1997 final MACT standards, EPA chose to account for the “worst reasonably foreseeable circumstance” by adding 10 percent to the highest observed emissions levels in the data, and then rounding up those figures. Upon review of this approach in responding to the Court's remand, we have determined that although the highest observed data point may not reflect the “worst reasonably foreseeable circumstance,” we do not have information to support accounting for the “worst reasonably foreseeable circumstance” by adding 10 percent to the highest observed emissions levels, and then rounding up those figures. We, therefore, propose to base revised MACT standards for new HMIWI units on the highest observed data points associated with employed control strategies. In the *CKRC* case, the Court left open the possibility that the approach of basing floors on the “worst-performing MACT sources” emissions represent ‘a reasonable estimate of the performance of the [best-performing] units,' ” *CKRC* at 866, quoting *Sierra Club* at 662, provided that “in the case of a particular source category or HAP, the Agency can demonstrate with substantial evidence—not mere assertions—that MACT technology significantly controls emissions, or that factors other than the control have a negligible effect[.] *CKRC* at 866, citing *NLA II* at 633. The Court in *Sierra Club* essentially already found this to be the situation for the HMIWI rulemaking, and it was, therefore, appropriate for EPA to base its MACT floor review in the 1997 rule strictly on the emissions reductions achieved by use of control technologies. The Sierra Club had claimed that EPA wrongly failed to require HMIWI units to undertake programs to reduce the Hg and chlorinated plastics in HMIWI waste streams. *Sierra Club* , at 666. While the petitioner raised this objection in its challenge to the promulgated standards, rather than its objection to the floor methodology, the Court's response to the Sierra Club's claim shows that in the case of the 1997 HMIWI rulemaking, EPA appropriately focused on the control technologies used at HMIWI units, and that, therefore, under the *CKRC* ruling it was appropriate, in this instance, to base floors on the highest emissions levels achieved by units employing the MACT technologies. The Court observed that “EPA does not deny that the waste stream reductions the Sierra Club calls for would reduce pollution. The less mercury in, the less mercury out, and the less chlorinated plastic in, the less HCl out. But the EPA has consistently argued in its response to comments and here that it does not have evidence that allows quantification of the relevant output reduction. For mercury, the only quantitative evidence before EPA was that a pollution prevention program aimed at mercury could reduce mercury emissions from very high levels to typical levels. See RTC at 7-14 to 7-15. For chlorinated plastics, there was no quantitative evidence before the agency. See RTC at 7-16, 7-18. The Sierra Club does not contest the adequacy of EPA's data-gathering with respect to these measures.” *Id* . (Note that the emission guidelines and NSPS require HMIWI to prepare a waste management plan under §§ 60.35e and 60.55c that would segregate from the health care waste stream certain solid waste components contributing to toxic emissions from the incinerator (62 FR 48380, 48387).) e. Development of the Proposed Revised Emission Limits. While we are proposing to respond to the Court's remand regarding new units by basing floors and standards on the same control technologies that formed the basis for the 1997 standards, in some cases it is necessary to adjust the emission limits in order to correct for the concerns regarding our 1997 methodology that the Court raised. As at promulgation of the 1997 rule, EPA examined the data available for various air pollution control technologies applied to HMIWI to determine the performance capabilities of the technologies; identified the best control technology for each air pollutant for each subcategory of HMIWI (i.e., MACT floor); considered control technologies more stringent than the MACT floor; made a determination regarding the achievable emissions levels from using control technologies upon which the emission standards would be based; and then established numerical emission limits achievable with those technologies. The proposed revised standards are based on the same technologies upon which the 1997 final standards were based—good combustion and a moderate-efficiency wet scrubber for new small HMIWI, and good combustion and a combined dry/wet control system with carbon for new medium and large HMIWI—and reflect the MACT floor emissions levels for new small and large HMIWI, but are more stringent than the MACT floor for new medium HMIWI. The rationale for these determinations regarding identification of MACT can be found at 62 FR 48365. As explained earlier in this preamble, we are proposing emission limits for each air pollutant for each subcategory of new HMIWI based on the highest observed data points associated with the control technologies upon which the emission standards are based, since we identified the “best controlled similar unit” as one using the relevant control technologies for each subcategory of new units. The proposed percent reduction limits for HCl, Pb, Cd, and Hg were established based on average combustion-controlled emissions estimates and highest observed data points associated with the control technologies upon which the emission standards for each of these pollutants for each subcategory are based. This is the same approach used at the time of promulgation with two exceptions—the proposed percent reduction limits do not include the addition of 10 percent to the highest observed emissions levels, nor does it include the rounding up of those figures. A summary of the control technologies upon which the proposed standards for new HMIWI are based, the highest observed data points associated with those control technologies, and the proposed emission limits for new HMIWI in response to the remand are presented in Table 6 of this preamble. Note that MACT for NO <sup>X</sup> and SO <sup>2</sup> are “combustion control,” although combustion control results in no emission reductions for those pollutants because NO <sup>X</sup> emissions are not reduced by combustion control, and NO <sup>X</sup> add-on controls have not been demonstrated on HMIWI; and SO <sup>2</sup> emissions are not reduced by combustion control, and acid gas controls are not effective in reducing SO <sup>2</sup> emissions from HMIWI at the low SO <sup>2</sup> levels associated with HMIWI. Table 6.—Summary of Remand Response for New HMIWI Pollutant (units) Unit Size 1 MACT Highest observed data point 2 Proposed emission limit 2 HCl
(ppmv)L, M, S Wet scrubber 9.3 15 3 or 99% reduction 3 . CO
(ppmv)L, M, S Good combustion 32 32. Pb (mg/dscm) L, M Dry scrubber w/carbon 0.06 0.060 or 98% reduction 3 . S Wet scrubber 1.1 0.78 4 or 71% reduction. Cd (mg/dscm) L, M Dry scrubber w/carbon 0.03 0.030 or 93% reduction. S Wet scrubber 0.14 0.11 4 or 66% reduction 3 . Hg (mg/dscm) L, M Dry scrubber w/carbon 0.45 0.45 or 87% reduction. S Wet scrubber 0.47 0.47 or 87% reduction. PM (gr/dscf) L, M Dry scrubber w/carbon 0.009 0.0090. S Moderate-efficiency wet scrubber 0.018 0.018. CDD/CDF, total (ng/dscm) L, M Dry scrubber w/carbon 20 20. S Wet scrubber 111 111. CDD/CDF, TEQ (ng/dscm) L, M Dry scrubber w/carbon 0.53 0.53. S Wet scrubber 2.1 2.1. NO <sup>X</sup>
(ppmv)L, M, S Combustion Control 5 225 225. SO <sup>2</sup>
(ppmv)L, M, S Combustion Control 5 46 46. 1 L = Large; M = Medium; S = Small. 2 All values are measured at 7 percent oxygen. 3 No change proposed. 4 Remand standards for existing small non-rural HMIWI are proposed. 5 Combustion control results in no emissions reduction. Note that no change is proposed for the emission limit for HCl for new large, medium, and small HMIWI. In this situation, the highest observed emission point (i.e., 9.3 ppmv) is not used as a basis for the proposed emission limits. Public comments concerning use of EPA Method 26A when testing for HCl emissions at sources with wet scrubbers were submitted with respect to the recently promulgated standards for other solid waste incineration units (70 FR 74870, December 16, 2005). The commenter asserted that EPA Method 26A is not adequate for demonstrating compliance with an HCl standard below 20 ppmv when sampling sources with wet scrubbers. Although EPA did not concede that there is an outright problem, we acknowledged that a tester may need to take certain precautions to ensure that there is no bias when sampling streams with low HCl concentrations in certain environments and promulgated an HCl emission limit of 15 ppmv (versus the proposed limit of 3.7 ppmv). Method 26A also notes that there is a possible measurable negative bias below 20 ppmv HCl perhaps due to reaction with small amounts of moisture in the probe and filter (40 CFR part 60, appendix A). Accordingly, because many of the wet-scrubber controlled HMIWI used Method 26A to measure HCl emissions below 20 ppmv and did not take precautions to ensure no negative bias, in this action we are proposing to retain the emission limit of 15 ppmv and also are including provisions that require sources to condition the filter before testing, and use a cyclone and post test purge if water droplets may be present. In the cases of Pb and Cd for new small HMIWI, using the highest observed data points would result in emission limits less stringent (i.e., higher) than the proposed emission limits for existing small non-rural HMIWI. Because the existing source analysis provides limits that can be achieved by existing HMIWI, there is no reason to believe that new HMIWI could not also meet the more stringent limits. This unanticipated result may be due to the small amount of Pb and Cd emissions data available for wet scrubbers at promulgation. Regardless, we are proposing emission limits for Pb and Cd for new small HMIWI that are the same as those proposed for existing small non-rural HMIWI. 2. Existing Units The Court raised three specific concerns regarding EPA's approach for existing units in concluding that EPA had not adequately explained why the combination of regulatory and uncontrolled (i.e., combustion-controlled) data provided a “reasonable estimate” of HMIWI performance: “First, EPA has said nothing about the possibility that [HMIWI] might be substantially overachieving the [regulatory] limits. [Footnote:] Although the agency conceded in its response to comments that ‘actual emission data routinely fall below the State permit emission limits,’ [* * *] the context makes reasonably clear that the EPA was referring to data on ‘actual emissions’ during tests; EPA implied that ‘these levels are not routinely achieved in practice.’ [* * *] [End Footnote] If this were the case, the permit limits would be of little value in estimating the top 12 percent of [HMIWI]s’ performance” (167 F.3d at 663, and at n. 3). According to the Court, “[d]ata in the record suggest that the regulatory limits are in fact much higher than emissions that units achieve in practice.” *Id.* , at 663. “Second, EPA never gave any reason for its apparent belief that [HMIWI]s that were not subject to [regulatory limits] did not employ emission controls of any sort. Unless there is some finding to this effect, it is difficult to see the rationality in using ‘uncontrolled’ data for the units that were not subject to regulatory requirements” (167 F.3d at 664). The Court pointed out that “[d]ata submitted by the American Hospital Association [AHA] in 1995 indicate that over 55% of [HMIWI]s in each category were controlled by wet scrubbers.” *Id.* , footnote omitted. As a result, the Court found it “difficult to see how it was rational to include any uncontrolled [i.e., combustion-controlled] units in the top 12 percent, at least with respect to pollutants that wet scrubbing controls.” *Id* . Third, the Court held that “assuming the regulatory data was a good proxy for the better controlled units and that there were shortfalls in reaching the necessary 12 percent, EPA has never explained why it made sense to use the highest of its test run data to make up the gap.” *Id* . Subsequent court decisions also addressed the type of information EPA may use to estimate emissions performance and establish MACT floors for existing units. In *NLA II* , the Court rejected the Sierra Club's claim that it was unreasonable for EPA to select “the median [performing] plant out of the best twelve percent of the plants for which it had information and set the * * * floor at the level of the worst performing plant in its databases using th[e same] technology [as the median plant].” 233 F.3d at 630. As long as EPA's estimate of the performance of the top 12 percent was reasonable, the Court held, EPA was not required to use actual emissions data. *Id* . While in *CKRC* the Court held that EPA had not justified in the HWC rulemaking basing the floor on emissions levels of the worst performing plant utilizing MACT control technology, when record evidence indicated other factors beyond MACT technology affected emissions performance, the Court reiterated that EPA could use estimates, as long as they reflected a “reasonable[] estimate [of] the performance of the * * * best-performing plants.” 255 F.3d at 862. Specifically regarding the use of State permits to determine MACT floors, the Court in *Northeast Maryland Waste Disposal Authority* v. *EPA* , 358 F.3d 936 (D.C. Cir. 2004) (“ *NMWDA* ”), rejected EPA's approach for small municipal waste combustion units because “as in Sierra Club, EPA stated only that it ‘believes’ state permit limits reasonably reflect the actual performance of the best performing units without explaining why this is so.” 358 F.3d at 954. There, EPA had asserted that the inherent variability of emission levels made other data inaccurate, but the Court concluded that EPA gave “no evidence that the [State] permit levels reflect the emission levels of the best-performing” units, and that EPA's stated “belief” did not rise to the level of a “reasonable estimate.” *Id* . However, in *Mossville Envt'l Action Now* v. *EPA* (370 F.3d 1232 (D.C. Cir. 2004)), the Court concluded that “instead of simply claiming that it believes its [relied upon] standards estimate what the best five plants actually achieve, EPA points to some evidence. In its response to comments, EPA cited its analysis of three years of data, and * * * met its burden of establishing that its standards reasonably estimate the performance of the best five performing sources. Having cited the great variability of emission levels, even within the same plants, and the inherent difficulty in other standards it considered, the EPA's selection of the [relevant] standards as the MACT floor is reasonable because it has supported its decision with record data that shows the connection between its MACT floor and the top performing plants.” 370 F.3d at 1242. a. The Possibility that HMIWI Sources are Substantially Overachieving their Regulatory Limits. With regard to the *Sierra Club* Court's first concern, the Court itself noted early in its opinion that “the necessary relationship [of regulatory data serving as a reasonable proxy to indicate HMIWI performance] seems quite reasonable here. Indeed, it seems likely that any jurisdiction bothering to impose limits would not knowingly set them below what it found firms to be achieving in practice. And there seems no reason to think that underachieving firms would be overrepresented in jurisdictions making this effort.” 167 F.3d at 662. The Court also expressed support for the notion that, when faced with limited actual emissions information, a substitute “ ‘reasonable sample’ may be used ‘to find out what the best 12 percent are doing[,]’ ” ( *id.* , citing Oral Arg. Tr. at 11), and that “EPA typically has wide latitude in determining the extent of data-gathering necessary to solve a problem.” *Id* . Specifically, the Court noted “that since EPA had data on only one percent of about 3000 [HMIWI]s, [* * *] the data-gathering costs of any non-sampling method may well have been daunting.” *Id.* , at 663. There are three reasons why EPA chose to use the regulatory limits at their face value in calculating the existing source MACT floor for the 1997 rule. First, regulatory data were used because there was very little actual emissions data available and very little data available indicating the type of air pollution control used by the best performing units. (See 61 FR at 31738.) None of the available information indicated that the regulated entities were substantially overachieving or underachieving their regulatory limits. Second, there was no information before the Agency suggesting that the State regulatory agencies erred in establishing the regulatory limits or that the States' regulatory limits were outdated. It was thus reasonable for EPA to expect that the State regulatory limits provided a reasonable estimate of the actual performance of HMIWI units. Third, it was reasonable for EPA to expect that regulated entities take their regulatory limits into account when designing their control equipment. To some extent, control equipment can be designed to meet various levels of emissions, and regulated entities do not normally spend more money than necessary to meet a regulatory limit. As noted above, the Court observed that “there seems no reason to think that underachieving firms would be overrepresented” by regulatory limits (167 F.3d at 662). Conversely, there is no reason to generally assume that substantially overachieving firms would be overrepresented in jurisdictions imposing regulatory limits. Rather, what is most likely is that sources in regulated jurisdictions will have assessed whether steps to control emissions are needed to comply with the regulatory limits, and that, in order to account for emissions variability when applying control technologies, they will be targeting their emissions levels at some safe point below the regulatory limits. Hence, with no information in the 1997 rulemaking record to indicate otherwise, EPA generally expected that regulatory limits were being achieved, through application of emissions control methods, at emissions levels that sources deem necessary in order to minimize the risk of violating the relevant limit, and were neither substantially overachieving the limits nor underachieving them. The Court noted that the administrative record indicated that, in some cases, sources were overachieving their regulatory limits, where the floors based on the weighted average of the regulatory limits and the “uncontrolled” (i.e., combustion-controlled) data were significantly higher than the values used for combustion-controlled data. (See 167 F.3d at 663, citing A-91-61, IV-B-024 at 2-3). Here, the Court was referring to some regulatory limits that, in fact, reflected higher emissions levels than did EPA's uncontrolled (i.e., combustion-controlled) emission estimates, and suggested that in these cases it would be unreasonable for EPA to view the best performing 12 percent of sources as actually polluting at levels so much higher than the test units for which EPA assumed no emissions controls were in place. *Id.* , at 663-664. EPA agrees that a regulatory limit does not reflect “actual performance” when that limit is higher than the level attributed to the worst reasonably foreseeable performance of an uncontrolled (i.e., combustion-controlled) source. Since the data forming the basis for the existing source MACT floor must provide a reasonable estimation of the “actual performance” of the best performing 12 percent of HMIWI, such high regulatory limits should not have been included in the best-performing 12 percent. Therefore, in our re-visiting the MACT floor for existing HMIWI based on the 1997 record, in situations for which there is no information in the 1997 record indicating the presence of an add-on pollution control device (“APCD”) or other use of air pollution control methods but there are regulatory limits, we propose the substitution of combustion-controlled data for regulatory limits where those data reflect lower emissions levels than do regulatory limits that appear to be unrelated to actual controls. We propose to continue to use combustion-controlled data in situations for which there is no information indicating air pollution controls are in use and there are no regulatory limits. b. Emission Control on HMIWI Not Subject to Regulatory Limits. The Court's second concern was that EPA had not made a finding that HMIWI that were not subject to regulatory requirements did not use emissions controls of any kind. The Court viewed such a finding as a necessary prerequisite to using uncontrolled (i.e., combustion-controlled) data for units not subject to regulatory requirements. This issue can be partly resolved by correcting a misunderstanding that may have resulted from our 1997 administrative record. The Court focused on information submitted in 1995 by the AHA suggesting that “over 55% of [HMIWI]s in each category were controlled by wet scrubbers.” (See 167 F.3d at 664, citing AHA Comments, Exhibit 3.) Based on its review of the AHA comments, the Court assumed that under EPA's estimation of the HMIWI population, more than 12 percent in each category “would as a matter of mathematical necessity have to be controlled.” *Id.* , at 664, n. 8. The Court then observed that “it is difficult to see how it was rational to include any uncontrolled [i.e., combustion-controlled] units in the top 12 percent, at least with respect to pollutants that wet scrubbing controls.” *Id.* , at 664. With regard to the AHA “data” identified by the Court as indicating 55 percent of HMIWI use wet scrubbers, EPA believes that the Court was led by this information into assuming that unregulated HMIWI were in fact applying add-on emissions controls, when the record does not actually substantiate such an assumption, especially for small HMIWI. The AHA asserts “almost all properly designed, operated, and controlled [HMIWI] can readily meet a particulate emission limit of 0.10 gr/dscf *without* an [add-on air pollution control] system” (IV-D-637, Exhibit 2, emphasis added). The AHA then concludes “[t]herefore, it is reasonable that as many as 50 percent of those [HMIWI] having such an emission limit would be uncontrolled.” *Id.* The AHA goes on to assume that 50 percent of all HMIWI with particulate emission limits of 0.10 gr/dscf or higher are controlled with wet scrubbers, while an even higher percentage of units with more stringent particulate emission limits are assumed to be controlled. *Id.* This is akin to saying that, because homeowners are generally not required to install wet scrubbers on fireplaces, it is reasonable to assume that as many as 50 percent of homes with fireplaces do not have wet scrubbers, while the other 50 percent of home fireplaces are equipped with wet scrubbers. The AHA makes a basic assumption that at least 50 percent of all HMIWI have wet scrubbers, no matter what requirements they are subject to. With no other information to support its assumption, AHA's “data” indicating 55 percent of HMIWI are equipped with wet scrubbers is altogether unreliable. In addition, EPA's documented difficulty in identifying sources with add-on controls during the development of the HMIWI emission testing program is in direct conflict with the large number of controlled sources suggested by the AHA “data.” Based on information from various sources in the docket from the 1997 rulemaking, including an AHA HMIWI inventory, we now estimate that about 32 percent of large, 4 percent of medium, and 1 percent of small HMIWI at the time of the 1997 rulemaking were equipped with add-on control systems. Other sources in the 1997 record that provided an indication of whether or not HMIWI were equipped with add-on air pollution control and upon which these estimates are based include a survey of HMIWI in California and New York, air permits from State regulatory agencies, responses to information collection requests, telephone contact summaries, HMIWI emissions test reports, and various inventories. (See Legacy Docket ID No. A-91-61, items IV-J-82, IV-B-07, II-B-94, II-D-175 through 178, II-I-151, IV-J-89, IV-E-65, IV-E-74, IV-E-86, and II-B-61; Docket EPA-HQ-OAR-2006-0534, document titled “List of Test Reports Used to Identify HMIWI Control Devices”). Our assessment that few HMIWI were equipped with add-on controls is also supported by economics in that it would not have made sense for an HMIWI to be voluntarily equipped with an air pollution control device that costs one to three or more times as much as the entire HMIWI. Further supporting our assessment is the fact that the expected outcome of the regulation (which was not refuted by any commenters), that 50 to 80 percent of existing incinerators (including 100 percent of the small units) would shut down rather than meet the regulations because those that chose to meet the regulations would have to install air pollution control to comply, was, in fact, more than realized. (See 60 FR 10665, 61 FR 31768, and 62 FR 48372.) In fact, all but 8 small units, 6 of which meet the rural criteria and did not have to install air pollution control to comply, 20 medium units, and 44 large units have shut down, rather than meet the standards that would have been achieved by use of the very controls AHA appeared to assume were in place. Consequently, EPA concludes that the 1997 record, as confirmed by recent data showing the vast reduction in sources (as opposed to sources installing controls), shows that most HMIWI were not equipped with add-on air pollution control and that the use of uncontrolled (i.e., combustion-controlled) emission estimates where there was no indication of air pollution control (and where any applicable regulatory limits allowed higher levels of emissions than our combustion-controlled emissions values reflected) was warranted. Based on the number of HMIWI shutdowns, it appears very likely that there were even fewer HMIWI with air pollution controls than we estimated based on the information discussed above ( *i.e.* , that about 32 percent of large, 4 percent of medium, and 1 percent of small HMIWI were equipped with add-on control systems). c. EPA's Use of the Highest Emissions Data to Reflect Uncontrolled (i.e., Combustion-Controlled) Emissions. The Court's third concern regarded our use of the highest of the test run data to reflect uncontrolled (i.e., combustion-controlled) emissions in cases where regulatory data did not comprise the necessary 12 percent of best performing sources. Our reason for this approach is the same as the reason described earlier regarding new units for using the highest data point from MACT-particular technology to reflect the performance of that technology and identify the “best controlled similar unit.” As the Court stated in *NLA I* , “where test results are relied upon, it should involve the selection or use of test results in a manner which provides some assurance of the achievability of the standard for the industry as a whole, given the range of variable factors found relevant to the standard's achievability.” (See 627 F.2d at 433). EPA reads the Court's opinion in *Sierra Club* as at least endorsing the principles of *NLA I* with respect to existing units, as the Court described as “counterintuitive” the Sierra Club's “proposition that an ‘achieved’ level may not be ‘achievable[.]’ ” (See 167 F.3d at 662). In addition, we also read *CKRC* as allowing this approach, where no evidence in the record contradicts the assumption that “factors other than the control have a negligible effect [on emissions performance],” 255 F.3d at 866, and, therefore, the presence or absence of known effective MACT controls is the prime determinant of emissions performance. Where regulatory data indicating use of emissions control was absent in the 1997 rulemaking record, EPA needed to find a surrogate emission limitation that reflected uncontrolled (i.e., combustion-controlled) emissions, expecting, when not faced with data indicating otherwise, that facilities with no regulatory limits would not be controlling their emissions with add-on controls or other control methods (beyond combustion control). In this situation, EPA used the highest test data point from a well-operated HMIWI as a surrogate for the worst reasonably foreseeable circumstances. The highest test data points reflect the normal, and unavoidable, variation in emissions that would be expected to recur over time. Table 7 of this preamble summarizes the performance values used for units for which there is no information indicating an APCD is present and there are no regulatory limits, or where regulatory limits do exist but reflect emissions levels that are higher than the values for uncontrolled (i.e., combustion-controlled) units. Table 7.—Uncontrolled (i.e., Combustion-Controlled) Performance Values Pollutant (units) Performance value 1 HCl
(ppmv)2,770 CO
(ppmv)- 1 584.9 Pb (micrograms per dry standard cubic meter μg/dscm) 8,629 Cd (μg/dscm) 3,520 Hg (μg/dscm) 6,543.4 PM (gr/dscf) 2 0.278 CDD/CDF, total (ng/dscm) 2 8,102 CDD/CDF, TEQ (ng/dscm) 2 236 NO <sup>X</sup>
(ppmv)224.5 SO <sup>2</sup>
(ppmv)46.39 1 All performance values are measured at 7 percent oxygen. 2 Based on 1-second combustion level d. Determining the MACT Floor and MACT for Existing Units. As discussed above, the Sierra Club Court identified some potential errors in EPA's methodology for determining the existing source MACT floors for HMIWI. After reviewing the 1997 HMIWI record in the context of the Court's opinion, EPA agrees that, in determining the MACT floor, the Agency should not have used regulatory limits that reflected higher emissions levels (and that did not appear to be related to any air pollution controls) than those corresponding to EPA's combustion-controlled emission estimates. Furthermore, as we examined the 1997 record and our estimates of the performance of HMIWI where we had some indication that add-on controls may have been used, we determined that we should not have used combustion-controlled emission estimates in the floor calculations to represent the performance of those sources. Additionally, for this rulemaking we propose that where actual emissions test data reflecting emissions performance was available in the 1997 record for use in determining the MACT floor, that data should take precedence over other types of data (i.e., regulatory limits or performance values). EPA's reassessment of the 1997 MACT floors and MACT decisions, based on an adjusted methodology that addresses the Court's issues discussed above, results in proposed emission limits that in many cases are more stringent than the limits promulgated in 1997. EPA's first step in redoing the MACT analysis based on the 1997 record for existing HMIWI was to determine the pollutant-specific values that make up the best performing 12 percent of existing units within each size category. Actual test data, where available in the 1997 record, were the initial type of pollutant-specific values considered. Next, where the 1997 record has information indicating that a source employed some type of add-on control but there are no test data or regulatory limits for that source, an average of the maximum dry and wet control system performance was determined for each pollutant, and those values were added to the data set towards comprising the best performing 12 percent. We believe that use of these averages is an appropriate method of estimating the performance of HMIWI
(1)where the 1997 record has limited information indicating the presence of some type of add-on control but no test data for the unit, and
(2)where we are unsure if the control is similar to, or is as efficient as, those for which we have data, or if the unit even employed a true control device. As previously stated, we believe it very likely that there were fewer HMIWI with air pollution controls than we estimated in 1997, and to which we have assigned pollutant-specific average control device values. If, in fact, those sources were employing true control devices, common sense dictates that there wouldn't have been the large number of unit shut downs that occurred in response to the promulgated standards. However, because we had some indication that an add-on control device was in place on those sources, we recognize that the use of uncontrolled (i.e., combustion-controlled) emission estimates (at promulgation) did not provide a reasonable estimate of their performance. Similarly, use of performance values associated with a specific type of add-on control device seems inappropriate when no details are available on the control device and there is, in fact, some doubt as to the presence of a true control device at all. Despite the doubts of the presence of a true control device, the approach we have selected assumes that the 1997 record is correct and assigns “default” performance values to the units that are based on the expected performance of the types of control devices used in the industry in 1997. These default performance values, based on the average of the maximum dry and wet control system performance, also are used where regulatory limits exist but are higher than the default performance values. Table 8 of this preamble summarizes the performance values for HCl, Pb, Cd, Hg, CDD/CDF, and PM for units for which the 1997 record has information indicating that they employed some type of add-on control but has no test data or regulatory limits corresponding to specific controls, or where regulatory limits exist but are higher than the values based on an average of the maximum dry and wet control system performance. Table 8.—Performance Values Based on Average of Maximum Dry and Wet Control System Performance Pollutant (units) Performance value 1 HCl
(ppmv)53.165 Pb (μg/dscm) 568.5 Cd (μg/dscm) 83.65 Hg (μg/dscm) 459.5 PM (gr/dscf) 0.0195 CDD/CDF, total (ng/dscm) 65.35 CDD/CDF, TEQ (ng/dscm) 1.296 1 All performance values are measured at 7 percent oxygen. The values for CO, NO <sup>X</sup> and SO <sup>2</sup> are based on the performance of combustion-controlled HMIWI because, as stated at proposal and promulgation of the 1997 HMIWI standards, as well as earlier in this preamble, CO emission levels are affected by combustion practices rather than the control systems used by HMIWI; NO <sup>X</sup> control had not been demonstrated on HMIWI; and the acid gas controls used by HMIWI were not effective in reducing SO <sup>2</sup> emissions from HMIWI due to the low inlet levels of SO <sup>2</sup> associated with hospital/medical/infectious waste. Therefore, for units
(1)where the 1997 record contains information indicating that they employed some type of add-on control but for which there was no test data or regulatory limits, or
(2)where regulatory limits existed but were higher than the values for CO, NO <sup>X</sup> , or SO <sup>2</sup> based on combustion-controlled HMIWI, the performance values for CO (584.9 ppmv), NO <sup>X</sup> (224.5 ppmv), and SO <sup>2</sup> (46.39 ppmv) are the same as those presented in Table 7 of this preamble. The next step in the MACT analysis for existing HMIWI was to determine the average emission limitation achieved by the best-performing 12 percent of existing sources where there are 30 or more sources in the category or subcategory. Our general approach to identifying the average emission limitation has been to use a measure of central tendency, such as the arithmetic mean or the median. If the median is used when there are at least 30 sources, then the emission level that is at the bottom of the best performing 6 percent of sources (i.e., the 94th percentile) represents the MACT floor control level. We based our MACT floors for each pollutant within each size category on this approach. We then determined the technology associated with each “average of the best-performing 12 percent” value by comparing the average values to average performance data for wet scrubbers, dry injection fabric filters (also known as dry scrubbers), and combustion controls (no add-on air pollution controls). Those pollutants with average values that were higher than the relevant combustion-controlled emission estimate were identified as having a “combustion control” floor, even if the pollutant is not reduced by combustion control. The technology needed to meet the remaining average values reflects the technology used by the average unit in the top 12 percent and serves as the basis for the MACT floor. EPA then considered, on a pollutant-specific basis, technologies that were more stringent than the MACT floor technologies. Add-on control technology-based MACT floors were identified for large HMIWI for HCl, Pb, Cd, Hg, PM, and CDD/CDF. The MACT floor technology for all size units for NO <sup>X</sup> and SO <sup>2</sup> is “combustion control” although, as previously explained in this preamble, combustion control results in no emission reductions for those pollutants. “Good combustion” (i.e., 2-second combustion) was identified as the MACT floor technology for all size units for CO. “Combustion control” floors were identified for medium HMIWI for Pb, Cd, Hg, and CDD/CDF and for small HMIWI for HCl, Pb, Cd, Hg, and CDD/CDF. However, for these pollutants for all medium and most small HMIWI, we have decided to propose limits that are more stringent than the “combustion control” floors and are consistent with the control technology-based MACT floors that were identified for large HMIWI for these pollutants (i.e., Pb, Cd, Hg, and CDD/CDF for medium HMIWI and HCl, Pb, Cd, Hg, and CDD/CDF for small HMIWI). The control technologies identified as the MACT floors for HCl and PM for medium HMIWI, and for PM for small HMIWI, provide an indication of the level of control of the other pollutants—a level of technology that is consistent with those technologies identified for large HMIWI. The rationale for not basing the proposed emission limits on other technologies that would result in even more stringent limits can be found at 62 FR 48371-72. As at the 1997 promulgation, MACT for small HMIWI that meet certain “rural criteria” was determined to be at the MACT floor level for each pollutant (i.e., no “beyond-the-floor”-based emission limits). Table 9 of this preamble shows the average emission value, based on the ranking of emissions data, regulatory data, and performance data, of each pollutant for the top 12 percent of HMIWI in each subcategory. The values in Table 9 allow EPA to identify the technology associated with the average unit in the top 12 percent of HMIWI. Table 9.— Average Emission Values for Top 12 Percent of Hmiwi 1 Pollutant (units) HMIWI size Small Medium Large HCl
(ppmv)2,770 53 50 CO
(ppmv)100 100 100 Pb (mg/dscm) 8.63 8.63 0.569 Cd (mg/dscm) 3.52 3.52 0.084 Hg (mg/dscm) 6.54 4.27 0.460 PM (gr/dscf) 0.080 0.030 0.020 CDD/CDF, total (ng/dscm) 8,102 8,102 65.4 CDD/CDF, TEQ (ng/dscm) 236 236 1.30 NO <sup>X</sup>
(ppmv)225 225 225 SO <sup>2</sup>
(ppmv)46.4 46.4 46.4 1 All emission values are measured at 7 percent oxygen. Table 10 of this preamble shows the technology associated with each average emission value. Table 10.—MACT Floor Technology Pollutant (units) HMIWI Size Small Medium Large HCl
(ppmv)combustion control dry scrubber dry scrubber. CO
(ppmv)good combustion good combustion good combustion. Pb (mg/dscm) combustion control combustion control wet scrubber. Cd (mg/dscm) combustion control combustion control wet scrubber. Hg (mg/dscm) combustion control combustion control dry scrubber. PM (gr/dscf) low-efficiency wet scrubbber moderate-efficiency wet scrubber moderate-efficiency wet scrubber. CDD/CDF, total (ng/dscm) combustion control combustion control wet scrubber. CDD/CDF, TEQ (ng/dscm) combustion control combustion control wet scrubber. NO <sup>X</sup>
(ppmv)combustion control combustion control combustion control. SO <sup>2</sup>
(ppmv)combustion control combustion control combustion control. For small units, the CO and PM values indicate that good combustion control (i.e., 2-second combustion) and a low-efficiency wet scrubber reflect the CO and PM MACT floors. For medium units, as well as large units, the CO, HCl, and PM values indicate that good combustion control used in conjunction with either a dry scrubber or moderate-efficiency wet scrubber reflects the CO, HCl, and PM MACT floors. As previously stated, EPA concluded that emission limits for small units that meet the rural criteria should reflect the MACT floor level of control for all pollutants. The average emission value and MACT floor level of control for PM vary by unit size, and we are proposing emission limits based on those levels of control. The average emission values, and associated MACT floor levels of control, for CO, NO <sup>X</sup> , and SO <sup>2</sup> are the same for all size units. For most small units and all medium units, however, we concluded that emission limits for HCl, Pb, Cd, Hg, and CDD/CDF should reflect the MACT floor level of control for large units for those pollutants. The resulting numerical emission limits were determined by combining the appropriate average emission value for each pollutant for each size HMIWI with a variability factor. We believe it is necessary to account for variability given the limited amount of actual data available in the 1997 record and the resulting need for use of various, and often presumptive, types of information to formulate the best performing 12 percent of HMIWI. At promulgation, we recognized the need to account for variability and did so as described earlier in this preamble. Although we maintain that the methodology we used was not unreasonable given the available information at promulgation, we now have additional information (the 2002 compliance test data for all of the currently operating units) for use in calculating pollutant-specific variability factors. While these data were not available at promulgation, they are the only data available for providing a quantitative assessment of variability of emissions from well-controlled HMIWI. To determine the pollutant-specific variability factors, a statistical analysis was conducted. Specifically, the emission limit achievable for each pollutant was determined based on the combination of actual emissions test data, regulatory data, and estimated performance levels (as described earlier) and a statistics-based variability factor calculated for each pollutant. To calculate the variability factors, we used the general equation: variability factor = t * standard deviation. This general equation has been used by EPA in similar analyses. (See, e.g., 68 FR 27650; 69 FR 55235-7; 70 FR 28615.) We selected the 90th percentile confidence level for this one-sided t-statistics test. The 90th percentile provides a variability factor appropriate for well-controlled sources that is based on data from well-controlled sources (i.e., the only sources that are still in operation). Table 11 of this preamble presents the values determined by adding the variability factors to the average emission values for each pollutant for existing large and medium HMIWI. The table also presents the proposed revised emission limits for existing large and medium HMIWI necessary to respond to the Court's remand and the percent reduction limits for HCl, Pb, Cd, and Hg. The percent reduction limits are based on average combustion-controlled emissions estimates and maximum performance values for the MACT identified for each pollutant for each subcategory. This is the same approach used at the time of promulgation of the 1997 rule, except that the proposed percent reduction limits do not include the addition of 10 percent to the maximum performance values or the rounding up of those figures. Table 11.—Average Emission Values, Considering Variability, and Emission Limits 1 —Existing Large and Medium HMIWI Pollutant (units) Large Average + variability Emission limit Medium Average + variability Emission limit HCl
(ppmv)78 78 or 93% reduction 2 57.9 78 3 or 93% reduction 2 . CO
(ppmv)110 40 2 113 40 2 Pb (mg/dscm) 0.78 0.78 or 71% reduction 9.02 0.78 3 or 71% reduction 3 . Cd (mg/dscm) 0.11 0.11 or 66% reduction 3.56 0.11 3 or 66% reduction 2 . Hg (mg/dscm) 0.64 0.55 2 or 87% reduction 4.34 0.55 2 or 87% reduction 3 . PM (gr/dscf) 0.025 0.015 2 0.043 0.030 2 CDD/CDF, total (ng/dscm) 115 115 8,150 115 3 CDD/CDF, TEQ (ng/dscm) 2.16 2.2 237 2.2 3 NO <sup>X</sup>
(ppmv)284 250 2 273 250 2 SO <sup>2</sup>
(ppmv)61 55 2 51.8 55 2 1 All emission values are measured at 7 percent oxygen. 2 No change from current emission limit. 3 Emission limit is the same as that for large HMIWI. Table 12 of this preamble presents the same information for existing small non-rural HMIWI and for existing small HMIWI meeting the rural criteria. Table 12.— Average Emission Values, Considering Variability, and Emission Limits 1 —Existing Small And Small Rural HMIWI Pollutant (units) Large Average + variability Emission limit Medium Average + variability Emission limit HCl
(ppmv)2,772 78 3 or 93% reduction 2 . 3,125 2 3,100 CO
(ppmv)103 40 2 109 2 40 Pb (mg/dscm) 8.85 0.78 3 or 71% reduction 3 8.88 8.9 Cd (mg/dscm) 3.54 0.11 3 or 66% reduction 2 3.54 4 Hg (mg/dscm) 6.55 0.55 2 or 87% reduction 3 6.56 6.6 PM (gr/dscf) 0.095 0.050 2 0.089 2 0.086 CDD/CDF, total (ng/dscm) 8,335 115 3 8,518 2 800 CDD/CDF, TEQ (ng/dscm) 239 2.2 3 244 2 15 NO <sup>X</sup>
(ppmv)225 250 2 273 2 250 SO <sup>2</sup>
(ppmv)46.4 55 2 51.8 2 55 1 All emission values are measured at 7 percent oxygen. 2 No change from current emission limit. 3 Emission limit is the same as that for large HMIWI. For pollutants where this remand analysis (based on the average of the best performing 12 percent of HMIWI plus the variability factor) resulted in emission limits less stringent (i.e., higher) than the current emission limits, we retained the current emission limits. This is because we see no reason to upwardly revise standards that the regulated industry has already demonstrated are achievable based on compliance data. In fact, now that we have received the 2002 compliance data for HMIWI units, it is apparent that EPA's estimate of the achievable emissions performance levels from use of the identified MACT technology was reasonably accurate. While we are not in this proposal attempting to justify our prior existing unit MACT floor decisions *post hoc* based on new data that we could not have relied upon in the 1997 rulemaking itself, we note that, similar to the *Mossville* case, we currently find ourselves in a situation where actual emissions data fairly confirms our prior estimates of what the best controlled HMIWI units could achieve when using MACT controls. The resulting emission limits being proposed for medium HMIWI for HCl and SO <sup>2</sup> ; for small HMIWI for NO <sup>X</sup> and SO <sup>2</sup> ; and for small rural HMIWI for SO <sup>2</sup> are the same as those being proposed for large HMIWI because, in these instances, the medium, small, and small rural HMIWI are expected to achieve reductions similar to large HMIWI. B. Rationale for the Proposed Amendments (CAA Section 129(a)(5) 5-Year Review) In recent rulemakings (see, e.g., 71 FR 34422, 34436-38 (June 14, 2006) (proposed amendments to the NESHAP for Hazardous Air Pollutants for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical manufacturing Industry)) EPA has addressed the similar technology review requirement under CAA section 112(d)(6). EPA stated that the statute provides the Agency with broad discretion to revise MACT standards as we determine necessary, and to account for a wide range of relevant factors, including risk. EPA does not interpret such technology review requirements to require another analysis of MACT floors for existing and new units, but rather requires us to consider developments in pollution control in the industry and assess the costs of potentially stricter standards reflecting those developments. (See, *id.* , at 34436-47.) Moreover, as a general matter, EPA has stated that where we determine that existing standards are adequate to protect public health with an ample margin of safety and prevent adverse environmental effects, it is unlikely that EPA would revise MACT standards merely to reflect advances in air pollution control technology. *Id* ., at 34437-38. Under CAA section 112(d)(6), the first round of technology review for MACT standards is subject to the same statutory timeframe as EPA's residual risk review under CAA section 112(f)(2), with both reviews occurring 8 years following initial promulgation of MACT. We interpret CAA section 129(a)(5)'s technology review requirement as providing us the same degree of discretion in terms of whether to revise MACT standards, for the reasons discussed in those prior rulemakings. (See, *id.* , at 34436-38.) However, the deadline for the first round of technology review under section 129(a)(5) (5 years following MACT promulgation) does not coincide with the deadline for residual risk review under section 112(f)(2) (9 years, in the case of HMIWI standards). Therefore, this first section 129(a)(5) technology review for HMIWI does not account for or reflect our residual risk analysis. In future rounds of review under section 129(a)(5) for the HMIWI standards, we intend to follow our general policy, and for our technology reviews and conclusions to be informed by our residual risk analysis, which we will have performed by that point. In exercising its discretion under CAA section 129(a)(5), EPA is proposing in this technology review to adopt emission limits based on the 2002 data because it believes that these limits represent the cost-effective operation of the MACT control technology. EPA is aware of the possibility that regulated units are likely to operate at a level somewhat below emission standards in order to account for operational variability. It is not our intent to preclude this practice through successive rounds of the section 129(a)(5) technology review. EPA requests comment on its proposal (as outlined below) to adopt more stringent emission limits in this instance through its section 129(a)(5) technology review. 1. How were the proposed emission limits developed? The proposed revised emission limits resulting from our 5-year review of the HMIWI standards under section 129(a)(5) of the CAA are based on the performance of units within the industry that currently are subject to the MACT standards. One set of emission limits is proposed for existing HMIWI regulated under CAA section 111(d)/129(b) emission guidelines, and another set of emission limits is proposed for new HMIWI (units commencing construction after February 6, 2007) regulated under CAA section 111(b)/129(a) NSPS. Units that were subject to the 1997 NSPS as new units (referred to as “1997 NSPS units” for the remainder of this preamble) will remain subject to the 1997 NSPS (including revisions resulting from EPA's response to the Court remand), but will also be subject to any requirements of the revised emission guidelines that are more stringent than the 1997 NSPS requirements. The proposed emission limits for existing units, 1997 NSPS units, and new units were developed following the procedures discussed below. As background, with one exception resulting from the analyses associated with our response to the Court remand, the proposed emission limits for new and existing units are based on the application of the same control technologies upon which the 1997 MACT standards were based. For new large and medium units, both the current and proposed emission limits are based upon good combustion and the application of combined control systems that include both dry scrubbers (i.e., dry injection fabric filters or spray dryer fabric filters) with carbon injection and wet scrubbers. The current and proposed emission limits for new small units are based on good combustion and the application of a moderate-efficiency wet scrubber. For large, medium, and most small existing units, the current and proposed emission limits are based on good combustion control for CO; combustion controls (i.e., no add-on controls) for NO <sup>X</sup> and SO <sup>2</sup> ; and the application of either dry scrubbers or wet scrubbers (with various “efficiencies” depending on the size of the unit) for the remaining pollutants. The current emission limits for one additional subcategory, existing small rural units, are based solely on good combustion (i.e., the MACT floor identified in the 1997 analysis was not based on add-on control technology). With the exception of PM, the proposed emission limits for existing small rural units also are based solely on good combustion. In our remand analysis, we identified a low-efficiency wet scrubber as being the MACT floor for PM for these units. Although all small rural units currently use only good combustion, to address this difference in the MACT floors (i.e., 1997 analysis versus remand analysis), we are proposing a PM emission limit for existing small rural units based on the application of low-efficiency wet scrubbers to existing small non-rural units (i.e., MACT floor for small non-rural units in the 1997 analysis as well as the remand analysis). While this performance level is associated with the expected performance of a low-efficiency wet scrubber, the combustion controls in place on these six existing small rural units achieve this performance level, based on the initial compliance tests for these units. In performing this 5-year review, we have not recalculated new MACT floors, but have proposed to revise the emission limits to reflect the actual performance of the MACT technologies. We believe this approach reflects the most reasonable interpretation of the review requirement of CAA section 129(a)(5), and is consistent with how we have interpreted the similar review requirement of CAA section 112(d)(6) regarding MACT standards promulgated under section 112. (See 71 FR 27327-28; 69 FR 48350-51; and 70 FR 20008.) The language of section 129(a)(5) directs EPA to “review” our promulgated standards under CAA section 111/129, and to “revise such standards and requirements” “in accordance with this section and section 111.” It does not, however, direct EPA to conduct, at 5-year-intervals, new MACT floor and beyond-floor analyses based on each 5-years’ changing information as to what might comprise the top 12 percent of sources or constitute the best controlled similar unit. There is no indication that Congress intended for section 129(a)(5) to inexorably force existing source standards progressively lower and lower in each successive review cycle, the likely result of requiring successive floor determinations. Following MACT compliance in September 2002, EPA obtained compliance test reports from all operating HMIWI (76 units at 70 facilities) and used those data to evaluate MACT performance. When the HMIWI regulations were first proposed in 1995, re-proposed in 1996, and promulgated in 1997, only limited information was available about HMIWI emission controls, and significant engineering judgment was necessary in selecting the emission limits. The year 2002 compliance data show that the control technologies that were installed and the practices that were implemented to meet the 1997 NSPS and emission guidelines achieved reductions somewhat superior to what we expected under the 1997 limits for many of the pollutants. EPA used the compliance test data to develop the emission limits contained in the amendments we are proposing under the 5-year review. EPA believes that the proposed emission limits more accurately reflect actual real-world HMIWI MACT performance than what we had estimated in 1997 and what we re-estimated based on the 1997 record in response to the Court's remand (discussed previously in this preamble). We believe that it is necessary, as well as appropriate, to update the 1997 promulgated standards based on the actual performance of MACT technologies in situations where compliance test data indicate that the technologies achieve better performance levels than those we previously estimated based on the information available at the time of promulgation. a. Existing Units. The first step in the analysis was to assess the performance of the HMIWI currently subject to the emission guidelines with respect to each regulated pollutant. We first examined the data separately for each unit size, and the data showed, for all pollutants except PM, that the performance of units with add-on controls, regardless of size, (excluding small rural units, which do not employ add-on controls), is similar. Therefore, we combined the data, regardless of unit size, for all of the pollutants except PM, and conducted analyses on the combined data sets. In addition, for the pollutants with emission limits based on good combustion and combustion control (i.e., no add-on controls), namely CO, NO <sup>X</sup> , and SO <sup>2</sup> , the data for small rural units also were combined with the data for all of the other subcategories of units. Analyses were performed on each data set, and we calculated the 99 percent upper tolerance limit (UTL), which is the emission level that 99 percent of the HMIWI would be expected to achieve. A similar methodology was used for stack test-based emission limits in the 5-year review recently conducted for large municipal waste combustors (MWC). In the preamble to that final action, EPA indicated that analysis of data to estimate emission limits to be enforced by stack test methods must be done using a different approach (i.e., lower percent UTL) than where enforcement is to be based on CEMS and that the percentile must also reflect a reasonable consideration of emissions variability and compliance limitations of stack testing (See 71 FR 27329). EPA further indicated that for this type of technology review, the 99 percent UTL was appropriate to use as a tool for estimating achievable emission levels for emission limits enforced by stack testing. *Id.* In this proposed rulemaking, the 99 percent UTL was used as the starting point for selecting the revised emission limits. We compared the 99 percent UTL values to several other values, including the 1997 promulgated emission limits and the revised limits that we are proposing in response to the Court's remand (“remand limits”). For several pollutants, the value associated with the 99 percent UTL was higher than the remand limit. In these cases, we selected the remand limit, rather than the 99 percent UTL value, as the proposed emission limit. We also graphically compared the 99 percent values and remand limits, where applicable, to all of the data that were used to calculate the percentile values. In many cases, this visual comparison revealed that the 99 percent UTL value or remand limit fell within a break in the data that indicated a level of performance that the technologies, considering variability, could readily achieve but that the “worst performing” units were not achieving during their compliance tests. Thus, our analyses indicate that the emission limits that we selected reflect the actual performance of the MACT control technologies while also serving to require modest improvements in performance from units that are not achieving the performance levels demonstrated in practice by the control technologies currently being used in the industry. For small non-rural HMIWI, we used a different methodology for assessing PM performance because there are only two units and, therefore, statistics are not a useful tool. Both of the small non-rural units are equipped with wet scrubbers. Because existing medium units are predominantly equipped with wet scrubbers, the PM emission limit developed using the 99 percent UTL value of the data set for existing medium units also is being proposed for small non-rural units. A different methodology also was used for assessing performance of the six small rural HMIWI. To determine the actual performance of these small combustion-controlled units while considering the inherent variability in emissions, we obtained test data for all six units (although, as allowed in the emission guidelines, not all of the pollutants were tested at every unit) and selected as the emission limit the highest individual test run from the compliance testing for HCl, Pb, Cd, Hg, and CDD/CDF. This methodology uses actual test data to provide a reasonable estimate of the performance of the small rural units for these pollutants, where statistics are not a useful tool, while accounting for variability. There are exceptions to this methodology for CO, NO <sup>X</sup> , and SO <sup>2</sup> . As previously mentioned in this preamble, the CO, NO <sup>X</sup> , and SO <sup>2</sup> data for small rural units were combined with the CO, NO <sup>X</sup> , and SO <sup>2</sup> data for the other subcategories of units. The 99 percent UTL methodology was then used as the starting point, as previously described in this preamble, to determine proposed emission limits that would apply to all of the subcategories of existing HMIWI. Another exception to this methodology is the proposed emission limit for PM. As previously explained in this preamble, we are proposing a PM emission limit for existing small rural units based on the application of low-efficiency wet scrubbers to existing small non-rural units (i.e., we are proposing the same PM emission limit for small rural and non-rural units). While many of the resulting proposed emission limits for small rural units are significantly more stringent than the 1997 promulgated limits, the proposed limits more accurately reflect the actual performance of these units. Finally, we examined the available data for calculating percent reduction requirements for HCl, Pb, Cd, and Hg. Percent reduction standards were included in the 1997 promulgated standards for these pollutants, and we are proposing to update these requirements to reflect the now-known actual performance of HMIWI utilizing MACT controls. For HCl, we obtained percent reduction data from five large HMIWI using dry scrubbers (i.e., the control technology upon which the emission limits for existing large, medium, and small non-rural units are based), and these data showed percent reductions from 94.2 percent to greater than 99 percent. To account for variability, we based the proposed percent reduction requirement of 94 percent on the lowest percent reduction recorded during the individual test runs (i.e., 94.2 percent). The three-run test that included the 94.2 percent value showed significant variability and demonstrates the need to account for variability. The percent reduction values for the three runs ranged from 94.2 percent to 97.8 percent while there was no identifiable change in the operation of the unit or the dry scrubber. For Pb and Cd from existing large, medium, and small non-rural HMIWI, we used the same methodology as for HCl, and the data sets showed even greater variability. For Hg, we used the only available estimate of percent reduction. The proposed percent reduction standards are 71 percent for Pb, 74 percent for Cd, and 96 percent for Hg. The 5-year review methodology used to assess performance of existing HMIWI resulted in no change to the PM standards for existing large and medium units, and CDD/CDF standards for existing small rural units. All of the other standards for existing HMIWI were adjusted based on either the 5-year review or the remand analyses. Table 13 of this preamble summarizes the emission limits promulgated in 1997, the emission limits resulting from the proposed response to the Court remand, and the emission limits being proposed as a result of the 5-year review for existing HMIWI. Note that these proposed limits for existing HMIWI only apply to units for which construction was commenced on or before June 20, 1996, or for which modification was commenced before March 16, 1998. Table 13.—Summary of 1997 Promulgated Emission Limits, Proposed Remand Response Emission Limits, and Proposed 5-Year Review Limits for Existing HMIWI Pollutant (units) Unit size 1 Promulgated limit 2 Proposed remand response limit 2 Proposed 5-year review limit 2 HCl
(ppmv)L, M, S 100 or 93% reduction 78 or 93% reduction 51 or 94% reduction. SR 3,100 3,100 398 CO
(ppmv)All 40 40 25 Pb (mg/dscm) L, M, S 1.2 or 70% reduction 0.78 or 71% reduction 0.64 or 71% reduction. SR 10 8.9 0.60 Cd (mg/dscm) L, M, S 0.16 or 65% reduction 0.11 or 66% reduction 0.060 or 74% reduction. SR 4 4 0.050 Hg (mg/dscm) L, M, S 0.55 or 85% reduction 0.55 or 87% reduction 0.33 or 96% reduction. SR 7.5 6.6 0.25 PM (gr/dscf) L 0.015 0.015 0.015 M 0.03 0.030 0.030 S 0.05 0.050 0.030 SR 0.086 0.086 0.030 CDD/CDF, total (ng/dscm) L, M, S 125 115 115 SR 800 800 800 CDD/CDF, TEQ (ng/dscm) L, M, S 2.3 2.2 2.0 SR 15 15 15 NO <sup>X</sup>
(ppmv)All 250 250 212 SO <sup>2</sup>
(ppmv)All 55 55 28 1 L = Large; M = Medium; S = Small; SR = Small Rural 2 All emission limits are measured at 7 percent oxygen. Table 14 of this preamble summarizes the emission limits promulgated in 1997 and the emission limits being proposed as a result of EPA's response to the Court remand for the 1997 NSPS HMIWI. Note that these proposed limits for 1997 NSPS HMIWI only apply to units for which construction was commenced after June 20, 1996, and on or before the date of this proposal, or for which modification is commenced before the date 6 months after promulgation of the proposed limits. Also note that where the proposed 5-year review limits for existing HMIWI are more stringent than those resulting from the remand response for 1997 NSPS HMIWI, the more stringent limits for existing HMIWI are included in the table as the limits being proposed. HMIWI subject to the 1997 NSPS, however, will not find these proposed limits, as presented in Table 14 of this preamble, in subparts Ec or Ce of 40 CFR part 60. Instead, they must consider the proposed revisions to subpart Ec of 40 CFR part 60 regarding existing HMIWI, as well as in the proposed revisions to subpart Ce of 40 CFR part 60 regarding 1997 NSPS HMIWI, and comply with the more stringent emission limit. Table 14.—Summary of 1997 Promulgated Emission Limits and Proposed Limits in Response to the Remand for 1997 NSPS HMIWI Pollutant (units) Unit size 1 Promulgated limit 2 Proposed remand response limit 2 HCl
(ppmv)L, M, S 15 or 99% reduction 15 or 99% reduction. CO
(ppmv)L, M, S 40 25 3 . Pb (mg/dscm) L, M 0.07 or 98% reduction 0.060 or 98% reduction. S 1.2 or 70% reduction 0.64 3 or 71% reduction. Cd (mg/dscm) L, M 0.04 or 90% reduction 0.030 or 93% reduction. S 0.16 or 65% reduction 0.060 3 or 74% reduction 3 . Hg (mg/dscm) L, M, S 0.55 or 85% reduction 0.33 3 or 96% reduction 3 . PM (gr/dscf) L, M 0.015 0.0090 S 0.03 0.018 CDD/CDF, total (ng/dscm) L, M 25 20 S 125 111 CDD/CDF, TEQ (ng/dscm) L, M 0.6 0.53 S 2.3 2.0 3 . NO <sup>X</sup>
(ppmv)L, M, S 250 212 3 . SO <sup>2</sup>
(ppmv)L, M, S 55 28 3 . 1 L = Large; M = Medium; S = Small 2 All emission limits are measured at 7 percent oxygen. 3 Because the proposed 5-year review limit for existing HMIWI is more stringent than the one resulting from the remand response for 1997 NSPS HMIWI, the more stringent limit for existing HMIWI is being proposed. b. New Units. The first step in the analysis for new large and medium HMIWI was to assess the performance of the units currently operating a combined dry/wet control system, which is the control technology upon which the 1997 NSPS for large and medium HMIWI was based. Four units currently are operating such controls, and we obtained compliance test data for each unit for use in assessing performance. We selected as the proposed emission limit the highest individual test run from the compliance testing for each pollutant. This methodology uses actual test data from the best-controlled sources in the industry to provide a reasonable estimate of the performance of these units, while accounting for variability. In several instances, the emission limit suggested by the highest run from the four combined-control sources was higher than either the emission limit for new sources that we are proposing in response to the Court remand or the 5-year review emission limit that we are proposing for existing sources. This was likely a result of the small amount of data that we used to establish the limits, and, in these instances, we are proposing the most stringent among these three limits for new sources. Although there are no small HMIWI subject to the current NSPS, we are proposing emission limits based on the performance of moderate-efficiency wet scrubbers, which is the control technology upon which the 1997 limits for new small units was based. As an initial step in selection of these emission limits, we used the performance values representative of control with a moderate-efficiency wet scrubber as determined for the existing medium HMIWI. We then compared these values to the values for new small units developed in response to the remand and, in each case, we selected the more stringent value as the proposed emission limit. To determine proposed percent reduction requirements for new units for HCl, Pb, Cd, and Hg, we followed a methodology similar to that used for existing units. For HCl, we obtained percent reduction data from two units controlled with the MACT control technology for HCl for new large and medium units (wet scrubbers), and these data showed percent reductions greater than 99 percent. To account for variability, we based the percent reduction requirement of 99 percent on the lowest percent reduction recorded during the individual test runs (i.e., 99.1 percent). We used the same methodology for each of the three metals for new large and medium units, and the corresponding percent reduction standards based on the MACT control technology (dry scrubbers) are 99 percent for Pb, 99 percent for Cd, and 96 percent for Hg. For HCl from new small HMIWI, we used the same methodology as for new large and medium units because the MACT control technology upon which the reductions are based is the same (wet scrubbers). For Pb and Cd from new small HMIWI, we used the same methodology as for new large and medium units, except that the MACT control technology upon which the reductions are based is a wet scrubber. For Hg, we used the only available estimate of percent reduction. The proposed percent reduction standards for new small units are 99 percent for HCl, 71 percent for Pb, 74 percent for Cd, and 96 percent for Hg. The 5-year review methodology used to assess performance of new units resulted in no change to the HCl standards for all new units. All of the other standards for new units were adjusted based on either the 5-year review or the remand analyses. Table 15 of this preamble summarizes the emission limits promulgated in 1997 and the emission limits being proposed as a result of the 5-year review for new HMIWI. Note that these proposed limits for new HMIWI only apply to units for which construction is commenced after the date of this proposal, or for which modification is commenced on or after the date 6 months after promulgation of the proposed limits. Table 15.—Summary of 1997 Promulgated Emission Limits and Proposed 5-Year Review Limits for New HMIWI Pollutant (units) Unit size 1 Promulgated limit 2 Proposed 5-year review limit 2 HCl
(ppmv)L, M, S 15 or 99% reduction 15 or 99% reduction. CO
(ppmv)L, M, S 40 25 Pb (mg/dscm) L, M 0.07 or 98% reduction 0.060 or 99% reduction. S 1.2 or 70% reduction 0.64 or 71% reduction. Cd (mg/dscm) L, M 0.04 or 90% reduction 0.0050 or 99% reduction. S 0.16 or 65% reduction 0.060 or 74% reduction. Hg (mg/dscm) L, M 0.55 or 85% reduction 0.19 or 96% reduction. S 0.55 or 85% reduction 0.33 or 96% reduction. PM (gr/dscf) L, M 0.015 0.0090 S 0.03 0.018 CDD/CDF, total (ng/dscm) L, M 25 16 S 125 111 CDD/CDF, TEQ (ng/dscm) L, M 0.6 0.21 S 2.3 2.0 NO <sup>X</sup>
(ppmv)L, M, S 250 212 SO <sup>2</sup>
(ppmv)L, M 55 21 S 55 28 1 L = Large; M = Medium; S = Small. 2 All emission limits are measured at 7 percent oxygen. 2. How did EPA determine the proposed performance testing and monitoring requirements? We are proposing minor adjustments to the performance testing and monitoring requirements that were promulgated in 1997. For existing HMIWI and 1997 NSPS HMIWI, we are proposing retaining the current requirements of the rule and adding the following requirements: Annual inspections of scrubbers and fabric filters; and one-time testing of the ash handling operations at the time of the next compliance test using EPA Method 22 of appendix A of 40 CFR part 60. These proposed requirements were selected to provide additional assurance that sources continue to operate at the levels established during their initial performance test. The proposed amendments would allow sources to use the results of previous emissions tests to demonstrate compliance with the revised emission limits as long as the sources certify that the previous test results are representative of current operations. Only those sources whose previous emissions tests do not demonstrate compliance with one or more revised emission limits would be required to conduct another emissions test for those pollutants (note that sources are already required to test for HCl, CO, and PM on an annual basis). Additional requirements also are proposed for new HMIWI. For new sources, we are proposing retaining the current requirements and adding the following requirements: Use of CO CEMS; annual inspections of scrubbers and fabric filters; use of bag leak detection systems on fabric filter-based control systems; and annual testing of the ash handling operations using EPA Method 22 of appendix A of 40 CFR part 60. For existing sources, in addition to the proposed changes in monitoring requirements, we also are proposing to allow for the optional use of bag leak detection systems. We also are clarifying that the rule allows for the following optional CEMS use: CO CEMS for existing sources and 1997 NSPS sources; and PM CEMS, HCl CEMS, multi-metals CEMS, Hg CEMS, and semi-continuous dioxin monitoring for existing, 1997 NSPS, and new sources. The optional use of HCl CEMS, multi-metals CEMS, and semi-continuous dioxin monitoring will be available on the date a final performance specification for these monitoring systems is published in the **Federal Register** or the date of approval of a site-specific monitoring plan. The proposed testing and monitoring provisions are discussed below. a. Bag Leak Detection Systems. The proposed amendments would provide, as an alternative PM monitoring technique for existing sources and 1997 NSPS sources and a requirement for new sources, the use of bag leak detection systems on HMIWI controlled with fabric filters. Bag leak detection systems have been applied successfully at many industrial sources. EPA is proposing to drop the opacity testing requirements for HMIWI that use bag leak detection systems. b. CO CEMS. The proposed amendments would require the use of CO CEMS for new sources, and allow the use of CO CEMS on existing sources and 1997 NSPS sources. Owners and operators that use CO CEMS would be able to discontinue their annual CO compliance test as well as their monitoring of the secondary chamber temperature. The continuous monitoring of CO emissions is an effective way of ensuring that the combustion unit is operating properly. The proposed amendments incorporate the use of performance specification (PS)-4B (Specifications and Test Procedures for Carbon Monoxide and Oxygen Continuous Monitoring Systems in Stationary Sources) of appendix B of 40 CFR part 60. The proposed CO emission limits are based on data from infrequent (normally annual) stack tests and compliance would be demonstrated by stack tests. The change to use of CO CEMS for measurement and enforcement of the same emission limits must be carefully considered in relation to an appropriate averaging period for data reduction. EPA considered this issue and concluded the use of a 24-hour block average was appropriate to address CO emissions variability, and EPA has included the use of a 24-hour block average in the proposed rule. The 24-hour block average would be calculated following procedures in EPA Method 19 of appendix A of 40 CFR part 60. Facilities electing to use CO CEMS as an optional method would be required to notify EPA 1 month before starting use of CO CEMS and 1 month before stopping use of the CO CEMS. In addition, EPA specifically requests comment on whether continuous monitoring of CO emissions should be required for all existing HMIWI and all 1997 NSPS HMIWI. c. PM CEMS. The proposed amendments would allow the use of PM CEMS as an alternative testing and monitoring method. Owners or operators who choose to rely on PM CEMS would be able to discontinue their annual PM compliance test. In addition, because units that demonstrate compliance with the PM emission limits with a PM CEMS would clearly be meeting the opacity standard, compliance demonstration with PM CEMS would be considered a substitute for opacity testing. Owners and operators that use PM CEMS also would be able to discontinue their monitoring of minimum wet scrubber pressure drop, horsepower, or amperage. The proposed amendments incorporate the use of PS-11 (Specifications and Test Procedures for Particulate Matter Continuous Emission Monitoring Systems at Stationary Sources) of appendix B of 40 CFR part 60 for PM CEMS, and PS-11 QA Procedure 2 to ensure that PM CEMS are installed and operated properly and produce good quality monitoring data. The proposed PM emission limits are based on data from infrequent (normally annual) stack tests and compliance would be demonstrated by stack tests. The use of PM CEMS for measurement and enforcement of the same emission limits must be carefully considered in relation to an appropriate averaging period for data reduction. EPA considered this issue and concluded the use of a 24-hour block average was appropriate to address PM emissions variability, and EPA has included the use of a 24-hour block average in the proposed rule. The 24-hour block average would be calculated following procedures in EPA Method 19 of appendix A of 40 CFR part 60. An owner or operator of an HMIWI unit who wishes to use PM CEMS would be required to notify EPA 1 month before starting use of PM CEMS and 1 month before stopping use of the PM CEMS. d. Other CEMS and Monitoring Systems. EPA also is proposing the optional use of HCl CEMS, multi-metals CEMS, Hg CEMS, and semi-continuous dioxin monitoring as alternatives to the existing methods for demonstrating compliance with the HCl, metals (Pb, Cd, and Hg), and CDD/CDF emissions limits. For the reasons explained above for CO CEMS and PM CEMS, EPA has concluded that the use of 24-hour block averages would be appropriate to address emissions variability, and EPA has included the use of 24-hour block averages in the proposed rule. The 24-hour block averages would be calculated following procedures in EPA Method 19 of appendix A of 40 CFR part 60. Although final performance specifications are not yet available for HCl CEMS and multi-metals CEMS, EPA is considering development of performance specifications. The proposed rule specifies that these options will be available to a facility on the date a final performance specification is published in the **Federal Register** or the date of approval of a site-specific monitoring plan. The use of HCl CEMS would allow the discontinuation of HCl sorbent flow rate monitoring, scrubber liquor pH monitoring, and the annual testing requirements for HCl. EPA has proposed PS-13 (Specifications and Test Procedures for Hydrochloric Acid Continuous Monitoring Systems in Stationary Sources) of appendix B of 40 CFR part 60 and believes that performance specification can serve as the basis for a performance specification for HCl CEMS use at HMIWI. In addition to the procedures used in proposed PS-13 for initial accuracy determination using the relative accuracy test, a comparison against a reference method, EPA is taking comment on an alternate initial accuracy determination procedure, similar to the one in section 11 of PS-15 (Performance Specification for Extractive FTIR Continuous Emissions Monitor Systems in Stationary Sources) of appendix B of 40 CFR part 60 using the dynamic or analyte spiking procedure. EPA believes multi-metals CEMS can be used in many applications, including HMIWI. EPA has monitored side-by-side evaluations of multi-metals CEMS with EPA Method 29 of appendix A of 40 CFR part 60 at industrial waste incinerators and found good correlation. EPA also approved the use of multi-metals CEMS as an alternative monitoring method at a hazardous waste combustor. EPA believes it is possible to adapt proposed PS-10 (Specifications and Test Procedures for Multi-metals Continuous Monitoring Systems in Stationary Sources) of appendix B of 40 CFR part 60 or other EPA performance specifications to allow the use of multi-metals CEMS at HMIWI. In addition to the procedures used in proposed PS-10 for initial accuracy determination using the relative accuracy test, a comparison against a reference method, EPA is taking comment on an alternate initial accuracy determination procedure, similar to the one in section 11 of PS-15 using the dynamic or analyte spiking procedure. Relative to the use of Hg CEMS, EPA believes that PS-12A (Specifications and Test Procedures for Total Vapor Phase Mercury Continuous Emission Monitoring Systems in Stationary Sources) of appendix B of 40 CFR part 60 can provide the basis for using Hg CEMS at HMIWI. An owner or operator of an HMIWI unit who wishes to use Hg CEMS would be required to notify EPA 1 month before starting use of Hg CEMS and 1 month before stopping use of the Hg CEMS. The use of multi-metals CEMS or Hg CEMS would allow the discontinuation of wet scrubber outlet flue gas temperature monitoring. Mercury sorbent flow rate monitoring could not be eliminated in favor of a multi-metals CEMS or Hg CEMS because it also is an indicator of CDD/CDF control. Additionally, there is no annual metals test that could be eliminated. The semi-continuous monitoring of dioxin would entail use of a continuous automated sampling system and analysis of the sample using EPA Reference Method 23 of appendix A of 40 CFR part 60. The option to use a continuous automated sampling system would take effect on the date a final performance specification is published in the **Federal Register** or the date of approval of a site-specific monitoring plan. Semi-continuous monitoring of dioxin would allow the discontinuation of fabric filter inlet temperature monitoring. Dioxin/furan sorbent flow rate monitoring could not be eliminated in favor of semi-continuous monitoring of dioxin because it also is an indicator of Hg control. Additionally, there is no annual CDD/CDF test that could be eliminated. If semi-continuous monitoring of dioxin as well as multi-metals CEMS or Hg CEMS are used, Hg sorbent flow rate monitoring and CDD/CDF sorbent flow rate monitoring (in both cases activated carbon is the sorbent) could be eliminated. EPA requests comment on other parameter monitoring requirements that could be eliminated upon use of any or all of the optional CEMS discussed above. Table 16 of this preamble presents a summary of the HMIWI operating parameters, the pollutants influenced by each parameter, and alternative monitoring options for each parameter. Table 16.—Summary of HMIWI Operating Parameters, Pollutants Influenced by Each Parameter, and Alternative Monitoring Options for Each Parameter Operating parameter/monitoring requirement Pollutants Influenced by Operating Parameter (by Control Device Type) Dry scrubber Wet scrubber Combined system Alternative monitoring options Maximum charge rate All 1 All 1 All 1 None. Minimum secondary chamber temperature PM, CO, CDD/CDF PM, CO, CDD/CDF PM, CO, CDD/CDF CO CEMS 2 . Maximum fabric filter inlet temperature CDD/CDF CDD/CDF Semi-continuous dioxin monitoring system (SCDMS). Minimum CDD/CDF sorbent flow rate CDD/CDF CDD/CDF SCDMS and multi-metals CEMS or Hg CEMS. Minimum Hg sorbent flow rate Hg Hg Minimum HCl sorbent flow rate HCl HCl HCl CEMS. Minimum scrubber pressure drop/ horsepower amperage PM PM PM CEMS. Minimum scrubber liquor flow rate HCl, PM, Cd, Pb, Hg, CDD/CDF HCl, PM, Cd, Pb, Hg, CDD/CDF HCl CEMS, PM CEMS, multi-metals CEMS, and SCDMS. Minimum scrubber liquor pH HCl HCl HCl CEMS. Maximum flue gas temperature (wet scrubber outlet) Hg Hg CEMS or multi-metals CEMS. Do not use bypass stack (except during startup, shutdown, and malfunction) All 1 All 1 All 1 None. Air pollution control device inspections All 1 All 1 All 1 None. 1 “All” pollutants designation does not include SO <sup>2</sup> and NO <sup>X</sup> , which are regulated at combustion-controlled levels (no add-on controls) and have no associated parameter monitoring. 2 Optional method for existing and 1997 NSPS sources; required for new sources. Table 17 of this preamble presents a summary of the HMIWI test methods and approved alternative compliance methods. Table 17.—Summary of HMIWI Test Methods and Approved Alternative Methods Pollutant/parameter Test method(s) 1 Approved alternative method(s) Comments PM Method 5, Method 29 PM CEMS PM CEMS are optional for all sources in lieu of annual PM test. CO Method 10 CO CEMS CO CEMS are optional for existing and 1997 NSPS sources in lieu of annual CO test; CO CEMS are required for new sources. HCl Method 26 or Method 26A HCl CEMS HCl CEMS are optional for all sources in lieu of annual HCl test. Cd Method 29 Multi-metals CEMS Pb Method 29 Multi-metals CEMS Hg Method 29 ASTM D6784-02, multi-metals CEMS or Hg CEMS CDD/CDF Method 23 Semi-continuous dioxin monitoring system Opacity Method 22 Bag leak detection system or PM CEMS Bag leak detection systems are optional for existing and 1997 NSPS sources; and are required for new sources. Flue and exhaust gas analysis Method 3, 3A, or 3B ASME PTC 19-10-1981 Part 10 Opacity from ash handling Method 22 None 1 EPA Reference Methods in appendix A of 40 CFR part 60. V. Impacts of the Proposed Action for Existing Units The emission limits for existing HMIWI that we are proposing as part of this action are based on the actual performance of the MACT control technologies. This proposed action is expected to result in modest improvements in performance being required by HMIWI that are not achieving the performance levels demonstrated in practice by the control technologies currently being used in the industry. Based on compliance test reports from all existing operating HMIWI (72 units at 67 facilities) following MACT compliance in September 2002, 18 existing large HMIWI and 4 existing medium HMIWI are likely to find it necessary to improve performance of their units in order to achieve the proposed emission limits which their compliance test data indicates they would not meet. The modest improvements anticipated include adding lime (for SO <sup>2</sup> ), increasing lime use (for HCl and SO <sup>2</sup> ), increasing natural gas use (for CO and CDD/CDF), and increasing scrubber horsepower (for Pb, Cd, and Hg). Facilities may resubmit previous compliance test data that indicates that their HMIWI meets the proposed emission limits if the facility certifies that the test results are representative of current operations. Those facilities would then not be required to test for those pollutants to prove compliance with the emission limits. A. What are the primary air impacts? As a result of the modest improvements estimated to be required at 22 HMIWI such that they would achieve the proposed emission limits, EPA estimates that a total of approximately 24,700 pounds per year (lb/yr) of the regulated pollutants would be reduced. Approximate reductions by pollutant follow: • HCl—20,600 lb/yr • CO—400 lb/yr • Pb—35 lb/yr • Cd—3 lb/yr • Hg—30 lb/yr • PM—2,700 lb/yr • CDD/CDF—0.0007 lb/yr • NO <sup>X</sup> —200 lb/yr • SO <sup>2</sup> —700 lb/yr B. What are the water and solid waste impacts? EPA estimates that approximately 80 tpy of additional solid waste and 267,000 gallons per year of additional wastewater would be generated as a result of the increase of lime use by some facilities. C. What are the energy impacts? EPA estimates that approximately 3,600 megawatt-hours per year of additional electricity would be required to support the increase in scrubber horsepower that we estimate would be required to enable some facilities to achieve the proposed emission limits. D. What are the secondary air impacts? Secondary air impacts associated with this proposed action are direct impacts that result from the increase in natural gas use and/or wet scrubber horsepower that we estimate may be required to enable some facilities to achieve the proposed emission limits. We estimate that the adjustments could result in emissions of 211 lb/yr of PM; 1,880 lb/yr of CO; 1,230 lb/yr of NO <sup>X</sup> ; and 1,450 lb/yr of SO <sup>2</sup> from the increased electricity and natural gas usage. E. What are the cost and economic impacts? EPA estimates that the national total costs for the 72 existing HMIWI and 4 1997 NSPS HMIWI to comply with this proposed action would be approximately $488,000 in the first year of compliance. This estimate includes the costs that would be incurred by the 22 HMIWI that we anticipate needing to improve performance (i.e., costs of improvements in emissions control and emissions tests for pollutants for which the improvements are made), and the additional monitoring (i.e., annual control device inspections), testing (i.e. initial Method 22 test), and recordkeeping and reporting costs that would be incurred by all 76 HMIWI as a result of this proposed action. Approximately 50 percent of the estimated total cost in the first year is for emissions control, 11 percent is for monitoring, 32 percent is for testing, and 7 percent is for recordkeeping and reporting. National total costs for subsequent years are estimated to be approximately $308,000 per year, with approximately 78 percent of the total cost for emissions control, 18 percent for monitoring, and 3 percent for testing. Economic impact analyses focus on changes in market prices and output levels. If changes in market prices and output levels in the primary markets are significant enough, impacts on other markets are also examined. EPA's economic impact analysis for this proposed action assessed the magnitude of the cost of market changes resulting from the proposed amendments by comparing annualized costs to annual sales. We were able to assess the cost of market changes for 70 HMIWI (sales information was unavailable for the other 6 units). For purposes of assessing economic impacts of the proposed action, the total annualized cost of this proposed action is estimated to be $328,000 and was determined by first annualizing at 7 percent over 15 years the difference between the first year costs and subsequent year costs for each of the 76 HMIWI, and adding to that value the subsequent year costs for each HMIWI; followed by then combining the annualized costs for the 76 HMIWI. The $328,000 was distributed among the 76 HMIWI, resulting in cost-to-sales ratios ranging from 0.0006 percent to 0.06 percent, with an average cost-to-sales ratio of 0.003 percent. Because of the small size of these regulatory costs and estimated impacts, no additional market analysis is needed. Neither the modest national costs nor the facility level costs are anticipated to significantly impact any market. VI. Impacts of the Proposed Action for New Units The current NSPS apply to HMIWI for which construction began after June 20, 1996, or for which modification began after March 16, 1998. There are three new HMIWI and one modified HMIWI that are subject to the current NSPS. No additional units have become subject to the NSPS since 2002. Considering this information, EPA does not anticipate any new HMIWI, and, therefore, no impacts of the proposed standards for new units. However, in the unlikely event that a new HMIWI is constructed, we are proposing new emission limits for those units based on performance of the control technology upon which current NSPS limits are based, as well as additional monitoring requirements, including use of CO CEMS and use of bag leak detection systems for fabric filters. Because EPA does not anticipate any new HMIWI, we, therefore, do not expect there to be any air impacts, water or solid waste impacts, energy impacts, or cost or economic impacts associated with the proposed standards for new sources. VII. Relationship of the Proposed Action to Section 112(c)(6) of the CAA Section 112(c)(6) of the CAA requires EPA to identify categories of sources of seven specified pollutants to assure that sources accounting for not less than 90 percent of the aggregate emissions of each such pollutant are subject to standards under CAA section 112(d)(2) or 112(d)(4). EPA has identified medical waste incinerators as a source category that emits five of the seven CAA section 112(c)(6) pollutants: Polycyclic organic matter (POM), dioxins, furans, Hg, and polychlorinated biphenyls (PCBs). (The POM emitted by HMIWI is composed of 16 polyaromatic hydrocarbons
(PAH)and extractable organic matter (EOM).) In the **Federal Register** notice Source Category Listing for Section 112(d)(2) Rulemaking Pursuant to Section 112(c)(6) Requirements, 63 FR 17838, 17849, Table 2 (1998), EPA identified medical waste incinerators (now referred to as HMIWI) as a source category “subject to regulation” for purposes of CAA section 112(c)(6) with respect to the CAA section 112(c)(6) pollutants that HMIWI emit. HMIWI are solid waste incineration units currently regulated under CAA section 129. For purposes of CAA section 112(c)(6), EPA has determined that standards promulgated under CAA section 129 are substantively equivalent to those promulgated under CAA section 112(d). (See *Id.* at 17845; see also 62 FR 33625, 33632 (1997).) As discussed in more detail below, the CAA section 129 standards effectively control emissions of the five identified CAA section 112(c)(6) pollutants. Further, since CAA section 129(h)(2) precludes EPA from regulating these substantial sources of the five identified CAA section 112(c)(6) pollutants under CAA section 112(d), EPA cannot further regulate these emissions under that CAA section. As a result, EPA considers emissions of these five pollutants from HMIWI units “subject to standards” for purposes of CAA section 112(c)(6). As required by the statute, the CAA section 129 HMIWI standards include numeric emission limitations for the nine pollutants specified in that section. The combination of good combustion practices and add-on air pollution control equipment (dry sorbent injection fabric filters, wet scrubbers, or combined fabric filter and wet scrubber systems) effectively reduces emissions of the pollutants for which emission limits are required under CAA section 129: Hg, CDD/CDF, Cd, Pb, PM, SO <sup>2</sup> , HCl, CO, and NO <sup>X</sup> . Thus, the NSPS and emissions guidelines specifically require reduction in emissions of three of the CAA section 112(c)(6) pollutants: Dioxins, furans, and Hg. As explained below, the air pollution controls necessary to comply with the requirements of the HMIWI NSPS and emission guidelines also effectively reduce emissions of the following CAA section 112(c)(6) pollutants that are emitted from HMIWI units: POM and PCBs. Although the CAA section 129 HMIWI standards do not have separate, specific emissions standards for PCBs and POM, emissions of these two CAA section 112(c)(6) pollutants are effectively controlled by the same control measures used to comply with the numerical emissions limits for the enumerated CAA section 129 pollutants. Specifically, as byproducts of combustion, the formation of PCBs and POM is effectively reduced by the combustion and post-combustion practices required to comply with the CAA section 129 standards. Any PCBs and POM that do form during combustion are further controlled by the various post-combustion HMIWI controls. The add-on PM control systems (either fabric filter or wet scrubber) and activated carbon injection in the fabric filter-based systems further reduce emissions of these organic pollutants, as well as reducing Hg emissions. The post-MACT compliance tests at currently operating HMIWI show that the HMIWI MACT regulations reduced Hg emissions by greater than 80 percent and CDD/CDF emissions by about 90 percent from pre-MACT levels. In light of the fact that similar controls have been demonstrated to effectively reduce emissions of POM and PCBs from another incineration source category (municipal solid waste combustors), it is, therefore, reasonable to conclude that POM and PCB emissions are substantially reduced at all 76 HMIWI. Thus, while the proposed rule does not identify specific limits for POM and PCB, they are, for the reasons noted above, nonetheless “subject to regulation” for purposes of section 112(c)(6) of the CAA. VIII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735; October 4, 1993), this proposed action is a “significant regulatory action” because it is likely to raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Accordingly, EPA submitted this proposed action to the Office of Management and Budget
(OMB)for review under Executive Order 12866, and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act The information collection requirements associated with this proposed action are included in the information collection requirements addressing the HMIWI standards in their entirety, which have been submitted for approval to the OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* The Information Collection Request
(ICR)documents prepared by EPA have been assigned EPA ICR number 1899.04 for subpart Ce and 1730.05 for subpart Ec. The requirements in this proposed action result in industry recordkeeping and reporting burden associated with review of the amendments for all HMIWI, initial EPA Method 22 testing for all HMIWI, annual inspections of scrubbers and fabric filters for all HMIWI, and stack testing and development of new parameter limits for HMIWI that need to make performance improvements. The total nationwide recordkeeping and reporting burden of this proposed action is estimated at 722 hours at a cost of approximately $32,800. This burden and cost would only be applicable once. After that, the total nationwide recordkeeping and reporting burden and costs would be $0 (above and beyond current burden and costs). The annual average burden associated with the emission guidelines over the first 3 years following promulgation of this proposed action is estimated to be 49,878 hours at a total annual labor cost of $2,433,045. The total annualized capital/startup costs and operation and maintenance (O&M) costs associated with the monitoring requirements, EPA Method 22 testing, storage of data and reports, and photocopying and postage over the 3-year period of the ICR are estimated at $407,953 and $333,258 per year, respectively. (The annual inspection costs are included under the recordkeeping and reporting labor costs.) The annual average burden associated with the NSPS over the first 3 years following promulgation of this proposed action is estimated to be 2,004 hours at a total annual labor cost of $91,011. The total annualized capital/startup costs are estimated at $13,046, with total operation and maintenance costs of $36,310 per year. 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 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 action, which includes these ICR documents, under Docket ID No. EPA-HQ-OAR-2006-0534. Submit any comments related to the ICR documents for this proposed action to EPA and OMB. See ADDRESSES section at 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 February 6, 2007, a comment to OMB is best assured of having its full effect if OMB receives it by March 8, 2007. The final action will respond to any OMB or public comments on the information collection requirements contained in this proposal. C. Regulatory Flexibility Act 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 Procedures Act or any other statute unless the agency certifies that the proposed action will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small government organizations, and small government jurisdictions. For purposes of assessing the impacts of this proposed action on small entities, small entity is defined as follows:
(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; or
(3)a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field. After considering the economic impacts of this proposed action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. Because none of the HMIWI facilities are expected to be significantly impacted by this proposed action, that also means that none of the four small entity-owned facilities would be expected to be significantly impacted. None of the 22 HMIWI that we estimate would need to make improvements in order to meet the proposed emission limits are owned by small entities. The only estimated economic impacts on small entities would result from the additional monitoring requirements (annual control device inspections), testing requirements (one-time EPA Method 22 testing), and associated recordkeeping and reporting requirements of this proposed action. We continue to be interested in the potential impacts of this proposed action 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
(UMRA)of 1995, Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of 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 by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the proposed 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 EPA 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, EPA must develop a small government agency plan under section 203 of the UMRA. 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's 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 action does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any 1 year. Thus, this proposed action is not subject to the requirements of section 202 and 205 of the UMRA. In addition, EPA has determined that this proposed action contains no regulatory requirements that might significantly or uniquely affect small governments. Therefore, this proposed action is not subject to the requirements of section 203 of the UMRA. E. Executive Order 13132: Federalism Executive Order 13132 (64 FR 43255; August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposed action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This proposed action will not impose substantial direct compliance costs on State or local governments, and will not preempt State law. Thus, Executive Order 13132 does not apply to this proposed action. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed action from State and local officials. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, (65 FR 67249; November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” This proposed action does not have Tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. EPA is not aware of any HMIWI owned or operated by Indian Tribal governments. Thus, Executive Order 13175 does not apply to this proposed action. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045 (62 FR 19885; April 23, 1997), applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA 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 EPA considered. 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 Executive Order has the potential to influence the regulation. This proposed action is not subject to Executive Order 13045 because it is based on technology performance and not on health and safety risks. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or Use This proposed action 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. EPA estimates that the requirements in this proposed action would cause some HMIWI to increase the horsepower of their wet scrubbers, resulting in approximately 3,600 megawatt-hours per year of additional electricity being used. Given the negligible change in energy consumption resulting from this proposed action, EPA does not expect any price increase for any energy type. The cost of energy distribution should not be affected by this proposed action at all since the action would not affect energy distribution facilities. We also expect that there would be no impact on the import of foreign energy supplies, and no other adverse outcomes are expected to occur with regard to energy supplies. I. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113, Section 12(d), 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards
(VCS)in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. The VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency does not use available and applicable VCS. This proposed action involves technical standards. EPA cites the following standards: EPA Methods 1, 3, 3A, 3B, 5, 9, 10, 10B, 22, 23, 26, 26A, and 29 in 40 CFR part 60, appendix A. Consistent with the NTTAA, EPA conducted searches to identify voluntary consensus standards in addition to these EPA methods. No applicable voluntary consensus standards were identified for EPA Methods 9 and 22. The search and review results are in the docket for this proposed action. Two voluntary consensus standards were identified as acceptable alternatives to EPA test methods for the purposes of this proposed action. The voluntary consensus standard ASME PTC 19-10-1981-Part 10, “Flue and Exhaust Gas Analyses,” is cited in the proposed action for its manual method for measuring the oxygen content of exhaust gas. This part of ASME PTC 19-10-1981-Part 10 is an acceptable alternative to EPA Method 3B. The voluntary consensus standard ASTM D6784-02, “Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method),” is an acceptable alternative to EPA Method 29 (portion for mercury only) as a method for measuring Hg. The search for emissions measurement procedures identified 16 other voluntary consensus standards. EPA determined that these 16 standards identified for measuring emissions of the pollutants subject to emission standards in this proposed action were impractical alternatives to EPA test methods for the purposes of this action. Therefore, EPA does not intend to adopt these standards for this purpose. A document that discusses the determinations for these 16 methods is located in the docket to this proposed action. Section 60.56c of subpart Ec of 40 CFR part 60 and § 60.37e of subpart Ce of 40 CFR part 60 list the testing methods included in the proposed action. Under 40 CFR 60.8(b) and 60.13(i) of subpart A (General Provisions), a source may apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures. List of Subjects in 40 CFR Part 60 Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: January 26, 2007. Stephen L. Johnson, Administrator. For the reasons stated in the preamble, title 40, chapter I, part 60 of the Code of Federal Regulations is proposed to be amended as follows: PART 60—[AMENDED] 1. The authority citation for part 60 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart Ce—[Amended] 2. Section 60.32e is amended by revising paragraphs
(a)and
(i)to read as follows: § 60.32e Designated facilities.
(a)Except as provided in paragraphs
(b)through
(h)of this section, the designated facility to which the guidelines apply is each individual HMIWI for which construction was commenced on or before June 20, 1996 and each individual HMIWI currently subject to subpart Ec as promulgated in 1997 (for which construction was commenced after June 20, 1996 but no later than February 6, 2007 or for which modification commenced after March 16, 1998 but no later than 6 months after the date of promulgation of this subpart).
(i)Beginning 3 years after the date of promulgation of this subpart, or on the effective date of an EPA approved operating permit program under Clean Air Act title V and the implementing regulations under 40 CFR part 70 in the State in which the unit is located, whichever date is later, designated facilities subject to this subpart shall operate pursuant to a permit issued under the EPA-approved operating permit program. 3. Section 60.33e is amended by revising paragraph
(b)to read as follows: § 60.33e Emission guidelines.
(b)For approval, a State plan shall include the requirements for emission limits at least as protective as those requirements listed in Table 2 of this subpart for any small HMIWI constructed on or before June 20, 1996 which is located more than 50 miles from the boundary of the nearest Standard Metropolitan Statistical Area (defined in § 60.31e) and which burns less than 2,000 pounds per week of hospital waste and medical/infectious waste. The 2,000 lb/week limitation does not apply during performance tests. 4. Section 60.36e is amended by adding paragraphs
(c)and
(d)to read as follows: § 60.36e Inspection guidelines.
(c)For approval, a State plan shall require that each HMIWI subject to the emission limits under § 60.33e(a) undergo an initial air pollution control device inspection that is at least as protective as the following within 1 year following approval of the State plan:
(1)At a minimum, an inspection shall include the following:
(i)Inspect air pollution control device(s) for proper operation, if applicable;
(ii)Ensure proper calibration of thermocouples, sorbent feed systems, and any other monitoring equipment; and
(iii)Generally observe that the equipment is maintained in good operating condition.
(2)Within 10 operating days following an air pollution control device inspection, all necessary repairs shall be completed unless the owner or operator obtains written approval from the State agency establishing a date whereby all necessary repairs of the designated facility shall be completed.
(d)For approval, a State plan shall require that each HMIWI subject to the emission limits under § 60.33e(a) undergo an air pollution control device inspection annually (no more than 12 months following the previous annual air pollution control device inspection), as outlined in paragraphs (c)(1) and
(2)of this section. 5. Section 60.37e is amended by revising paragraphs
(a)and (b)(1) and adding paragraph
(e)to read as follows: § 60.37e Compliance, performance testing, and monitoring guidelines.
(a)Except as provided in paragraph
(b)of this section, for approval, a State plan shall include the requirements for compliance and performance testing listed in § 60.56c of subpart Ec of this part, excluding the fugitive emissions annual testing requirement under § 60.56c(c)(3), the CO CEMS requirements under § 60.56c(c)(5), and the bag leak detection system requirements under § 60.57c(g). Sources may, however, elect to use CO CEMS as specified under § 60.56c(c)(5) or bag leak detection systems as specified under § 60.57c(g).
(b)* * *
(1)Conduct the performance testing requirements in § 60.56c(a), (b)(1) through (b)(9), (b)(11) (Hg only), (b)(12), and (c)(1) of subpart Ec of this part. The 2,000 lb/week limitation under § 60.33e(b) does not apply during performance tests.
(e)The owner or operator of a designated facility may use the results of previous emissions tests to demonstrate compliance with the emission limits, provided that the conditions in paragraphs (e)(1) through (e)(3) of this section are met:
(1)The previous emissions tests must have been conducted using the applicable procedures and test methods listed in § 60.56c(b)(1) through (b)(9), (b)(11) (Hg only), and (b)(12). Previous emissions test results obtained using EPA-accepted voluntary consensus standards are also acceptable.
(2)The HMIWI at the affected facility shall be operated in a manner (e.g., with charge rate, secondary chamber temperature, etc.) that would be expected to result in the same or lower emissions than observed during the previous emissions test(s), and the HMIWI may not have been modified such that emissions would be expected to exceed (notwithstanding normal test-to-test variability) the results from previous emissions test(s).
(3)The previous emissions test(s) must have been conducted in 1997 or later. 6. Section 60.38e is amended by revising paragraph
(a)and adding paragraph
(c)to read as follows: § 60.38e Reporting and recordkeeping guidelines.
(a)For approval, a State plan shall include the reporting and recordkeeping requirements listed in § 60.58c(b), (c), (d), (e), and
(f)of subpart Ec of this part, excluding § 60.58c(b)(7) (siting).
(c)For approval, a State plan shall require the owner or operator of each HMIWI subject to the emission limits under § 60.33e(a) to:
(1)Maintain records of the annual air pollution control device inspections, any required maintenance, and any repairs not completed within 10 days of an inspection or the timeframe established by the State regulatory agency; and
(2)Submit an annual report containing information recorded under paragraph (c)(1) of this section no later than 60 days following the year in which data were collected. Subsequent reports shall be sent no later than 12 calendar months following the previous report (once the unit is subject to permitting requirements under title V of the Act, the owner or operator shall submit these reports semiannually). The report shall be signed by the facilities manager. 7. Section 60.39e is amended as follows: a. By revising paragraph (a); b. By revising paragraph
(c)introductory text; c. By revising paragraph (d)(3); and d. By revising paragraph (f). § 60.39e Compliance times.
(a)Not later than 1 year after the date of promulgation of this subpart, each State in which a designated facility is operating shall submit to the Administrator a plan to implement and enforce the emission guidelines.
(c)State plans that specify measurable and enforceable incremental steps of progress towards compliance for designated facilities planning to install the necessary air pollution control equipment may allow compliance on or before the date 3 years after EPA approval of the State plan (but not later than 5 years after the date of promulgation of this subpart). Suggested measurable and enforceable activities to be included in State plans are:
(d)* * *
(3)If an extension is granted, require compliance with the emission guidelines on or before the date 3 years after EPA approval of the State plan (but not later than 5 years after the date of promulgation of this subpart).
(f)The Administrator shall develop, implement, and enforce a plan for existing HMIWI located in any State that has not submitted an approvable plan within 2 years after the date of promulgation of this subpart. Such plans shall ensure that each designated facility is in compliance with the provisions of this subpart no later than 5 years after the date of promulgation of this subpart. 8. Table 1 to subpart Ce is revised to read as follows: Table 1 to Subpart Ce.—Emission Limits for Small, Medium, and Large HMIWI Pollutant Units (7 percent oxygen, dry basis) Emission limits HMIWI size Small Medium Large Particulate matter Milligrams per dry standard cubic meter (mg/dscm) (grains per dry standard cubic foot (gr/dscf)) 69 (0.030) 69 (0.030) 34 (0.015). Carbon monoxide Parts per million by volume
(ppmv)25 25 25. Dioxins/furans Nanograms per dry standard cubic meter total dioxins/furans (ng/dscm) (grains per billion dry standard cubic feet (gr/10 9 dscf)) or ng/dscm TEQ (gr/10 9 dscf) 115
(50)or 2.0 (0.87) 115
(50)or 2.0 (0.87) 115
(50)or 2.0 (0.87). Hydrogen chloride ppmv or percent reduction 51 or 94% 51 or 94% 51 or 94% Sulfur dioxide P <sup>pmv</sup> 28 28 28. Nitrogen oxides P <sup>pmv</sup> 212 212 212. Lead mg/dscm (grains per thousand dry standard cubic feet (gr/10 3 dscf)) or percent reduction 0.64 (0.28) or 71% 0.64 (0.28) or 71% 0.64 (0.28) or 71%. Cadmium mg/dscm (gr/10 3 dscf) or percent reduction 0.060 (0.026) or 74% 0.060 (0.026) or 74% 0.060 (0.026) or 74%. Mercury mg/dscm (gr/10 3 dscf) or percent reduction 0.33 (0.14) or 96% 0.33 (0.14) or 96% 0.33 (0.14) or 96%. 9. Table 2 of subpart Ce is revised to read as follows: Table 2 to Subpart Ce.—Emission Limits for Small HMIWI Which Meet the Criteria Under § 60.33E(B) Pollutant Units (7 percent oxygen, dry basis) HMIWI emission limits Particulate matter mg/dscm (gr/dscf) 69 (0.030). Carbon monoxide P <sup>pmv</sup> 25. Dioxins/furans ng/dscm total dioxins/furans (gr/10 9 dscf) or ng/dscm TEQ (gr/10 9 dscf) 800
(350)or 15 (6.6). Hydrogen chloride ppmv or percent reduction 398. Sulfur dioxide P <sup>pmv</sup> 28. Nitrogen oxides P <sup>pmv</sup> 212. Lead mg/dscm (gr/10 3 dscf) or percent reduction 0.60 (0.26). Cadmium mg/dscm (gr/10 3 dscf) or percent reduction 0.050 (0.022). Mercury mg/dscm (gr/10 3 dscf) or percent reduction 0.25 (0.11). Subpart Ec—[Amended] 10. Section 60.50c is amended by revising paragraphs (a),
(k)and
(l)to read as follows: § 60.50c Applicability and delegation of authority.
(a)Except as provided in paragraphs
(b)through
(h)of this section, the affected facility to which this subpart applies is each individual hospital/medical/infectious waste incinerator (HMIWI):
(1)For which construction is commenced after June 20, 1996 but no later than February 6, 2007;
(2)For which modification is commenced after March 16, 1998 but no later than 6 months after the date of promulgation of this subpart;
(3)For which construction is commenced after February 6, 2007; or
(4)For which modification is commenced after 6 months after the date of promulgation of this subpart.
(k)The requirements of this subpart shall become effective 6 months after the date of promulgation of this subpart.
(l)Beginning 3 years after the date of promulgation of this subpart, or on the effective date of an EPA-approved operating permit program under Clean Air Act title V and the implementing regulations under 40 CFR part 70 in the State in which the unit is located, whichever date is later, affected facilities subject to this subpart shall operate pursuant to a permit issued under the EPA approved State operating permit program. 11. Section 60.51c is amended by adding a definition for “Bag leak detection system” in alphabetical order and revising the definition for “Minimum secondary chamber temperature” to read as follows: § 60.51c Definitions. *Bag leak detection system* means an instrument that is capable of monitoring PM loadings in the exhaust of a fabric filter in order to detect bag failures. A bag leak detection system includes, but is not limited to, an instrument that operates on triboelectric, light-scattering, light-transmittance, or other effects to monitor relative PM loadings. *Minimum secondary chamber temperature* means 90 percent of the highest 3-hour average secondary chamber temperature (taken, at a minimum, once every minute) measured during the most recent performance test demonstrating compliance with the PM, CO, and dioxin/furan emission limits. 12. Section 60.52c is amended by revising paragraph
(c)to read as follows: § 60.52c Emission limits.
(c)On and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility shall cause to be discharged into the atmosphere visible emissions of combustion ash from an ash conveying system (including conveyor transfer points) in excess of 5 percent of the observation period (i.e., 9 minutes per 3-hour period), as determined by EPA Reference Method 22 of appendix A of this part, except as provided in paragraphs
(d)and
(e)of this section. 13. Section 60.56c is amended as follows: a. By revising paragraph
(b)introductory text; b. By revising paragraphs (b)(4) and (b)(6) through (b)(8), (b)(9) introductory text, and (b)(10); c. By revising paragraph (b)(11); d. By revising paragraphs (c)(2) through (4); e. By adding paragraphs (c)(5), and (c)(6); f. By revising paragraph
(d)introductory text; g. By adding paragraphs (e)(6) and (7); h. By adding paragraphs (f)(7) through (9); i. By adding paragraphs (g)(6) through (9); and j. By adding paragraph (k). § 60.56c Compliance and performance testing.
(b)Except as provided in paragraph
(k)of this section, the owner or operator of an affected facility shall conduct an initial performance test as required under § 60.8 to determine compliance with the emission limits using the procedures and test methods listed in paragraphs (b)(1) through (b)(12) of this section. The use of the bypass stack during a performance test shall invalidate the performance test.
(4)EPA Reference Method 3, 3A, or 3B of appendix A of this part shall be used for gas composition analysis, including measurement of oxygen concentration. EPA Reference Method 3, 3A, or 3B of appendix A of this part shall be used simultaneously with each of the other EPA reference methods. As an alternative, ASME PTC-19-10-1981-Part 10 may be used.
(6)EPA Reference Method 5 or 29 of appendix A of this part shall be used to measure the particulate matter emissions. As an alternative, PM CEMS may be used as specified in paragraph (c)(4) of this section.
(7)EPA Reference Method 9 of appendix A of this part shall be used to measure stack opacity. As an alternative, demonstration of compliance with the PM standards using bag leak detection systems as specified in § 60.57c(g) or PM CEMS as specified in paragraph (c)(4) of this section is considered demonstrative of compliance with the opacity requirements.
(8)For affected facilities under § 60.50c(a)(1) and (a)(2), EPA Reference Method 10 or 10B of appendix A of this part shall be used to measure the CO emissions. As an alternative, CO CEMS may be used as specified in paragraph (c)(4) of this section.
(9)EPA Reference Method 23 of appendix A of this part shall be used to measure total dioxin/furan emissions. As an alternative, an owner or operator may elect to sample dioxins/furans by installing, calibrating, maintaining, and operating a continuous automated sampling system for monitoring dioxin/furan emissions as specified in paragraph (c)(6) of this section. For Method 23 sampling, the minimum sample time shall be 4 hours per test run. If the affected facility has selected the toxic equivalency standards for dioxins/furans, under § 60.52c, the following procedures shall be used to determine compliance:
(10)EPA Reference Method 26 or 26A of appendix A of this part shall be used to measure HCl emissions, with the additional requirements for Method 26A specified in paragraphs (b)(10)(i) through
(iii)of this section. As an alternative, HCl CEMS may be used as specified in paragraph (c)(4) of this section. If the affected facility has selected the percentage reduction standards for HCl under § 60.52c, the percentage reduction in HCl emission (%R <sup>HCl</sup> ) is computed using the following formula: (%R <sup>HCl</sup> ) = (E <sup>i</sup> −E <sup>o</sup> )/E <sup>i</sup> × 100 Where: %R <sup>HCl</sup> =percentage reduction of HCl emissions achieved; E <sup>i</sup> =HCl emission concentration measured at the control device inlet, corrected to 7 percent oxygen (dry basis); and E <sup>o</sup> =HCl emission concentration measured at the control device outlet, corrected to 7 percent oxygen (dry basis).
(i)The probe and filter shall be conditioned prior to sampling using the procedure described in paragraphs (b)(10)(i)(A) through
(C)of this section.
(A)Assemble the sampling train(s) and conduct a conditioning run by collecting between 14 liters per minute (L/min)_(0.5 cubic feet per minute (ft 3 /min)) and 30 L/min (1.0 ft 3 /min) of gas over a 1-hour period. Follow the sampling procedures outlined in section 8.1.5 of Method 26A of appendix A of this part. For the conditioning run, water may be used as the impinger solution.
(B)Remove the impingers from the sampling train and replace with a fresh impinger train for the sampling run, leaving the probe and filter (and cyclone, if used) in position. Do not recover the filter or rinse the probe before the first run. Thoroughly rinse the impingers used in the preconditioning run with deionized water and discard these rinses.
(C)The probe and filter assembly shall be conditioned by the stack gas and shall not be recovered or cleaned until the end of testing.
(ii)For the duration of sampling, a temperature around the probe and filter (and cyclone, if used) between 120 °C (248 °F) and 134 °C (273 °F) shall be maintained.
(iii)If water droplets are present in the sample gas stream, the requirements specified in paragraphs (b)(10)(iii)(A) and
(B)of this section shall be met.
(A)The cyclone described in section 6.1.4 of EPA Reference Method 26A of appendix A of this part shall be used.
(B)The post-test moisture removal procedure described in section 8.1.6 of EPA Reference Method 26A of appendix A of this part shall be used.
(11)EPA Reference Method 29 of appendix A of this part shall be used to measure Pb, Cd, and Hg emissions. As an alternative, Hg emissions may be measured using ASTM D6784-02. As an alternative for Pb, Cd, and Hg, multi-metals CEMS, or Hg CEMS, may be used as specified in paragraph (c)(4) of this section. If the affected facility has selected the percentage reduction standards for metals under § 60.52c, the percentage reduction in emissions (%R <sup>metal</sup> ) is computed using the following formula: (%R <sup>metal</sup> ) = (E <sup>i</sup> −E <sup>o</sup> )/E <sup>i</sup> × 100 Where: %R <sup>metal</sup> =percentage reduction of metal emission (Pb, Cd, or Hg) achieved; E <sup>i</sup> =metal emission concentration (Pb, Cd, or Hg) measured at the control device inlet, corrected to 7 percent oxygen (dry basis); and E <sup>o</sup> =metal emission concentration (Pb, Cd, or Hg) measured at the control device outlet, corrected to 7 percent oxygen (dry basis).
(c)* * *
(2)Except as provided in paragraphs (c)(4) and (c)(5) of this section, determine compliance with the PM, CO, and HCl emission limits by conducting an annual performance test (no more than 12 months following the previous performance test) using the applicable procedures and test methods listed in paragraph
(b)of this section. If all three performance tests over a 3-year period indicate compliance with the emission limit for a pollutant (PM, CO, or HCl), the owner or operator may forego a performance test for that pollutant for the subsequent 2 years. At a minimum, a performance test for PM, CO, and HCl shall be conducted every third year (no more than 36 months following the previous performance test). If a performance test conducted every third year indicates compliance with the emission limit for a pollutant (PM, CO, or HCl), the owner or operator may forego a performance test for that pollutant for an additional 2 years. If any performance test indicates noncompliance with the respective emission limit, a performance test for that pollutant shall be conducted annually until all annual performance tests over a 3-year period indicate compliance with the emission limit. The use of the bypass stack during a performance test shall invalidate the performance test.
(3)For large HMIWI under § 60.50c(a)(1) and (a)(2) and for all HMIWI under § 60.50c(a)(3) and (a)(4), determine compliance with the visible emission limits for fugitive emissions from flyash/bottom ash storage and handling by conducting a performance test using EPA Reference Method 22 on an annual basis (no more than 12 months following the previous performance test).
(4)Facilities using optional CEMS to demonstrate compliance with the PM, CO, HCl, Pb, Cd, and/or Hg emission limits under § 60.52c shall:
(i)Determine compliance with the appropriate emission limit(s) using a 24-hour block average, calculated as specified in section 12.4.1 of EPA Reference Method 19 of appendix A of this part.
(ii)Operate all CEMS in accordance with the applicable procedures under appendices B and F of this part. For those CEMS for which performance specifications have not yet been promulgated (HCl, multi-metals), this option takes effect on the date a final performance specification is published in the **Federal Register** or the date of approval of a site-specific monitoring plan.
(iii)Be allowed to substitute use of an HCl CEMS for the HCl annual performance test, minimum HCl sorbent flow rate, and minimum scrubber liquor pH to demonstrate compliance with the HCl emission limit.
(iv)Be allowed to substitute use of a PM CEMS for the PM annual performance test and minimum pressure drop across the wet scrubber, if applicable, to demonstrate compliance with the PM emission limit.
(v)Be allowed to substitute use of a CO CEMS for the CO annual performance test and minimum secondary chamber temperature to demonstrate compliance with the CO emission limit.
(5)For affected facilities under § 60.50c(a)(3) and (a)(4), determine compliance with the CO emission limit using a CO CEMS according to paragraphs (c)(5)(i) and (c)(5)(ii) of this section:
(i)Determine compliance with the CO emission limit using a 24-hour block average, calculated as specified in section 12.4.1 of EPA Reference Method 19 of appendix A of this part.
(ii)Operate the CO CEMS in accordance with the applicable procedures under appendices B and F of this part.
(iii)Use of a CO CEMS may be substituted for the CO annual performance test and minimum secondary chamber temperature to demonstrate compliance with the CO emission limit.
(6)Facilities using a continuous automated sampling system to demonstrate compliance with the dioxin/furan emission limits under § 60.52c shall record the output of the system and analyze the sample using EPA Reference Method 23 of appendix A of this part. This option to use a continuous automated sampling system takes effect on the date a final performance specification applicable to dioxin/furan from monitors is published in the **Federal Register** or the date of approval of a site-specific monitoring plan. The owner or operator of an affected facility who elects to continuously sample dioxin/furan emissions instead of sampling and testing using EPA Reference Method 23 shall install, calibrate, maintain, and operate a continuous automated sampling system and shall comply with the requirements specified in § 60.58b(p) and
(q)of subpart Eb of this part.
(d)Except as provided in paragraphs (c)(4), (c)(5), and (c)(6) of this section, the owner or operator of an affected facility equipped with a dry scrubber followed by a fabric filter, a wet scrubber, or a dry scrubber followed by a fabric filter and wet scrubber shall:
(e)* * *
(6)For HMIWI under § 60.50c(a)(3) and (a)(4), operation of the affected facility above the CO emission limit as measured by the CO CEMS shall constitute a violation of the CO emission limit.
(7)For HMIWI under § 60.50c(a)(3) and (a)(4), failure to initiate corrective action within 1 hour of a bag leak detection system alarm; or failure to operate and maintain the fabric filter such that the alarm is not engaged for more than 5 percent of the total operating time in a 6-month block reporting period shall constitute a violation of the PM emission limit. If inspection of the fabric filter demonstrates that no corrective action is required, no alarm time is counted. If corrective action is required, each alarm is counted as a minimum of 1 hour. If it takes longer than 1 hour to initiate corrective action, the alarm time is counted as the actual amount of time taken to initiate corrective action. If the bag leak detection system is used to demonstrate compliance with the opacity limit, this would also constitute a violation of the opacity emission limit.
(f)* * *
(7)For HMIWI under § 60.50c(a)(3) and (a)(4), operation of the affected facility above the CO emission limit as measured by the CO CEMS shall constitute a violation of the CO emission limit.
(8)For all HMIWI, operation of the affected facility above the PM, CO, HCl, Pb, Cd, and/or Hg emission limit as measured by the CEMS specified in paragraph (c)(4) of this section shall constitute a violation of the applicable emission limit.
(9)For all HMIWI, operation of the affected facility above the CDD/CDF emission limit as measured by the continuous automated sampling system specified in paragraph (c)(6) of this section shall constitute a violation of the CDD/CDF emission limit.
(g)* * *
(6)For HMIWI under § 60.50c(a)(3) and (a)(4), operation of the affected facility above the CO emission limit as measured by the CO CEMS shall constitute a violation of the CO emission limit.
(7)For HMIWI under § 60.50c(a)(3) and (a)(4), failure to initiate corrective action within 1 hour of a bag leak detection system alarm; or failure to operate and maintain the fabric filter such that the alarm is not engaged for more than 5 percent of the total operating time in a 6-month block reporting period shall constitute a violation of the PM emission limit. If inspection of the fabric filter demonstrates that no corrective action is required, no alarm time is counted. If corrective action is required, each alarm is counted as a minimum of 1 hour. If it takes longer than 1 hour to initiate corrective action, the alarm time is counted as the actual amount of time taken to initiate corrective action. If the bag leak detection system is used to demonstrate compliance with the opacity limit, this would also constitute a violation of the opacity emission limit.
(8)For all HMIWI, operation of the affected facility above the PM, CO, HCl, Pb, Cd, and/or Hg emission limit as measured by the CEMS specified in paragraph (c)(4) of this section shall constitute a violation of the applicable emission limit.
(9)For all HMIWI, operation of the affected facility above the CDD/CDF emission limit as measured by the continuous automated sampling system specified in paragraph (c)(6) of this section shall constitute a violation of the CDD/CDF emission limit.
(k)The owner or operator of an affected facility may use the results of previous emissions tests to demonstrate compliance with the emission limits, provided that the conditions in paragraphs (k)(1) through (k)(3) of this section are met:
(1)The previous emissions tests shall have been conducted using the applicable procedures and test methods listed in paragraph
(b)of this section. Previous emissions test results obtained using EPA-accepted voluntary consensus standards are also acceptable.
(2)The HMIWI at the affected facility shall be operated in a manner (e.g., with charge rate, secondary chamber temperature, etc.) that would be expected to result in the same or lower emissions than observed during the previous emissions test(s) and the HMIWI may not have been modified such that emissions would be expected to exceed (notwithstanding normal test-to-test variability) the results from previous emissions test(s).
(3)The previous emissions test(s) shall have been conducted in 1997 or later. 14. Section 60.57c is amended as follows: a. By revising paragraph (a); b. By adding paragraph (e); c. By adding paragraph (f); and d. By adding paragraph (g). § 60.57c Monitoring requirements
(a)Except as provided in § 60.56c(c)(4) through (c)(6), the owner or operator of an affected facility shall install, calibrate (to manufacturers’ specifications), maintain, and operate devices (or establish methods) for monitoring the applicable maximum and minimum operating parameters listed in Table 3 to this subpart (unless optional CEMS are used as a substitute for certain parameters as specified) such that these devices (or methods) measure and record values for these operating parameters at the frequencies indicated in Table 3 at all times except during periods of startup and shutdown.
(e)The owner or operator of an affected facility shall ensure that each HMIWI subject to the emission limits in § 60.52c undergoes an initial air pollution control device inspection that is at least as protective as the following:
(1)At a minimum, an inspection shall include the following:
(i)Inspect air pollution control device(s) for proper operation, if applicable;
(ii)Ensure proper calibration of thermocouples, sorbent feed systems, and any other monitoring equipment; and
(iii)Generally observe that the equipment is maintained in good operating condition.
(2)Within 10 operating days following an air pollution control device inspection, all necessary repairs shall be completed unless the owner or operator obtains written approval from the Administrator establishing a date whereby all necessary repairs of the designated facility shall be completed.
(f)The owner or operator of an affected facility shall ensure that each HMIWI subject to the emission limits under § 60.52c undergoes an air pollution control device inspection annually (no more than 12 months following the previous annual air pollution control device inspection), as outlined in paragraphs (e)(1) and (e)(2) of this section.
(g)For affected facilities under § 60.50c(a)(3) and (a)(4) using an air pollution control device that includes a fabric filter and not using PM CEMS, determine compliance with the PM emission limit using a bag leak detection system and meet the requirements in paragraphs (g)(1) through (g)(12) of this section for each bag leak detection system. Affected facilities under § 60.50c(a)(1) and (a)(2) may elect to demonstrate continuous compliance with the PM emission limit using a bag leak detection system and meet the requirements in paragraphs (g)(1) through (g)(12) of this section.
(1)Each triboelectric bag leak detection system shall be installed, calibrated, operated, and maintained according to the “Fabric Filter Bag Leak Detection Guidance,” (EPA 454/R-98-015, September 1997). This document is available from the U.S. Environmental Protection Agency (U.S. EPA); Office of Air Quality Planning and Standards; Sector Policies and Programs Division; Measurement Policy Group (D-243-02), Research Triangle Park, NC 27711. This document is also available on the Technology Transfer Network
(TTN)under Emission Measurement Center Continuous Emission Monitoring. Other types of bag leak detection systems shall be installed, operated, calibrated, and maintained in a manner consistent with the manufacturer's written specifications and recommendations.
(2)The bag leak detection system shall be certified by the manufacturer to be capable of detecting PM emissions at concentrations of 10 milligrams per actual cubic meter (0.0044 grains per actual cubic foot) or less.
(3)The bag leak detection system sensor shall provide an output of relative PM loadings.
(4)The bag leak detection system shall be equipped with a device to continuously record the output signal from the sensor.
(5)The bag leak detection system shall be equipped with an audible alarm system that will sound automatically when an increase in relative PM emissions over a preset level is detected. The alarm shall be located where it is easily heard by plant operating personnel.
(6)For positive pressure fabric filter systems, a bag leak detector shall be installed in each baghouse compartment or cell.
(7)For negative pressure or induced air fabric filters, the bag leak detector shall be installed downstream of the fabric filter.
(8)Where multiple detectors are required, the system's instrumentation and alarm may be shared among detectors.
(9)The baseline output shall be established by adjusting the range and the averaging period of the device and establishing the alarm set points and the alarm delay time according to section 5.0 of the “Fabric Filter Bag Leak Detection Guidance.”
(10)Following initial adjustment of the system, the sensitivity or range, averaging period, alarm set points, or alarm delay time may not be adjusted. In no case may the sensitivity be increased by more than 100 percent or decreased more than 50 percent over a 365-day period unless such adjustment follows a complete fabric filter inspection that demonstrates that the fabric filter is in good operating condition. Each adjustment shall be recorded.
(11)Record the results of each inspection, calibration, and validation check.
(12)Initiate corrective action within 1 hour of a bag leak detection system alarm; operate and maintain the fabric filter such that the alarm is not engaged for more than 5 percent of the total operating time in a 6-month block reporting period. If inspection of the fabric filter demonstrates that no corrective action is required, no alarm time is counted. If corrective action is required, each alarm is counted as a minimum of 1 hour. If it takes longer than 1 hour to initiate corrective action, the alarm time is counted as the actual amount of time taken to initiate corrective action. 15. Section 60.58c is amended as follows: a. By adding paragraphs (b)(2)(xvi) through (xviii); b. By revising paragraph (b)(6); c. By revising paragraph
(c)introductory text; d. By revising paragraph (c)(2); e. By adding paragraph (c)(4); f. By revising paragraph
(d)introductory text; g. By adding paragraphs (d)(9) through (11); and h. By adding paragraph (g). § 60.58c Reporting and recordkeeping requirements.
(b)* * *
(2)* * *
(xvi)Records of the annual air pollution control device inspections, any required maintenance, and any repairs not completed within 10 days of an inspection or the timeframe established by the Administrator.
(xvii)For affected facilities using a bag leak detection system, records of each alarm, the time of the alarm, the time corrective action was initiated and completed, and a brief description of the cause of the alarm and the corrective action taken. (xviii) For affected facilities under § 60.50c(a)(3) and (a)(4), concentrations of CO as determined by the continuous emission monitoring system.
(6)The results of the initial, annual, and any subsequent performance tests conducted to determine compliance with the emission limits and/or to establish or re-establish operating parameters, as applicable, and a description of how the operating parameters were established or re-established, if applicable.
(c)The owner or operator of an affected facility shall submit the information specified in paragraphs (c)(1) through (c)(4) of this section no later than 60 days following the initial performance test. All reports shall be signed by the facilities manager.
(2)The values for the site-specific operating parameters established pursuant to § 60.56c(d) or § 60.56c(i), as applicable, and a description of how the operating parameters were established during the initial performance test.
(4)For each affected facility that uses a bag leak detection system, analysis and supporting documentation demonstrating conformance with EPA guidance and specifications for bag leak detection systems in § 60.57c(g).
(d)An annual report shall be submitted 1 year following the submission of the information in paragraph
(c)of this section and subsequent reports shall be submitted no more than 12 months following the previous report (once the unit is subject to permitting requirements under title V of the Clean Air Act, the owner or operator of an affected facility must submit these reports semiannually). The annual report shall include the information specified in paragraphs (d)(1) through
(9)of this section. All reports shall be signed by the facilities manager.
(9)Records of the annual air pollution control device inspection, any required maintenance, and any repairs not completed within 10 days of an inspection or the timeframe established by the Administrator.
(10)For affected facilities using a bag leak detection system, records of each alarm, the time of the alarm, the time corrective action was initiated and completed, and a brief description of the cause of the alarm and the corrective action taken.
(11)For affected facilities under § 60.50c(a)(3) and (a)(4), concentrations of CO as determined by the continuous emission monitoring system.
(g)The owner or operator of an affected facility that uses the results of previous emissions tests to demonstrate compliance with the emission limits shall submit the information specified in paragraphs (g)(1) through (g)(4) of this section no later than [DATE 30 DAYS AFTER DATE OF PUBLICATION OF FINAL RULE]. All reports shall have been signed by the facility's manager.
(1)The previous emissions test results as recorded using the methods and procedures in § 60.56c(b)(1) through (12), as applicable. Previous emissions test results recorded using EPA-accepted voluntary consensus standards are also acceptable.
(2)Certification that the test results are representative of current operations.
(3)The values for the site-specific operating parameters established pursuant to § 60.56c(d) or (i), as applicable.
(4)The waste management plan as specified in § 60.55c. 16. Table 1 to subpart Ec is revised to read as follows: Table 1 to Subpart Ec of Part 60.—Emission Limits for Small, Medium, and Large HMIWI Pollutant Units (7 percent oxygen dry basis) Emission limits HMIWI size Small Medium Large 1. Units for which construction is commenced after June 20, 1996 but no later than February 6, 2007 or for which modification is commenced on or after March 16, 1998 but no later than [THE DATE 6 MONTHS AFTER PROMULGATION OF THE FINAL RULE] Particulate matter Milligrams per dry standard cubic meter (grains per dry standard cubic foot) 41 (0.018) 21 (0.0090) 21 (0.0090). Carbon monoxide Parts per million by volume 32 1 32 1 32 1 . Dioxins/furans Nanograms per dry standard cubic meter total dioxins/furans (grains per billion dry standard cubic feet) or nanograms per dry standard cubic meter TEQ (grains per billion dry standard cubic feet) 111
(49)or 2.1 (0.92) 20 (8.7) or 0.53 (0.23) 20 (8.7) or 0.53 (0.23). Hydrogen chloride Parts per million by volume or percent reduction 15 or 99% 15 or 99% 15 or 99%. Sulfur dioxide Parts per million by volume 46 1 46 1 46 1 . Nitrogen oxides Parts per million by volume 225 1 225 1 225 1 . Lead Milligrams per dry standard cubic meter (grains per thousand dry standard cubic feet) or percent reduction 0.78 1 (0.34) or 71% 0.060 (0.026) or 98% 0.060 (0.026) or 98%. Cadmium Milligrams per dry standard cubic meter (grains per thousand dry standard cubic feet) or percent reduction 0.11 1 (0.048) or 66% 0.030 (0.013) or 93% 0.030 (0.013) or 93%. Mercury Milligrams per dry standard cubic meter (grains per thousand dry standard cubic feet) or percent reduction 0.47 1 (0.21) or 87% 0.45 1 (0.20) or 87% 0.45 1 (0.20) or 87%. 2. Units for which construction is commenced after February 6, 2007 or for which modification is commenced after [THE DATE 6 MONTHS AFTER PROMULGATION OF THE FINAL RULE] Particulate matter Milligrams per dry standard cubic meter (grains per dry standard cubic foot) 41 (0.018) 21 (0.0090) 21 (0.0090). Carbon monoxide Parts per million by volume 25 25 25. Dioxins/furans Nanograms per dry standard cubic meter total dioxins/furans (grains per billion dry standard cubic feet) or nanograms per dry standard cubic meter TEQ (grains per billion dry standard cubic feet) 111
(49)or 2.0 (0.87) 16 (7.0) or 0.21 (0.092) 16 (7.0) or 0.21 (0.092). Hydrogen chloride Parts per million by volume or percent reduction 15 or 99% 15 or 99% 15 or 99%. Sulfur dioxide Parts per million by volume 28 21 21. Nitrogen oxides Parts per million by volume 212 212 212. Lead Milligrams per dry standard cubic meter (grains per thousand dry standard cubic feet) or percent reduction 0.64 (0.28) or 71% 0.060 (0.026) or 99% 0.060 (0.026) or 99%. Cadmium Milligrams per dry standard cubic meter (grains per thousand dry standard cubic feet) or percent reduction 0.060 (0.026) or 74% 0.0050 (0.0022) or 99% 0.0050 (0.0022) or 99%. Mercury Milligrams per dry standard cubic meter (grains per thousand dry standard cubic feet) or percent reduction 0.33 (0.14) or 96% 0.19 (0.083) or 96% 0.19 (0.083) or 96%. 1 Emission limit is less stringent than the corresponding limit for existing sources contained in subpart Ce. Sources that would be subject to the emission limits in this table also would be subject to regulation under State plans or Federal plans that would implement subpart Ce and would be subject to limits at least as stringent as those in subpart Ce. [FR Doc. E7-1617 Filed 2-5-07; 8:45 am] BILLING CODE 6560-50-P 72 24 Tuesday, February 6, 2007 Proposed Rules Part III Department of the Interior Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Berberis nevinii (Nevin’s barberry); Proposed Rule DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018-AU84 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Berberis nevinii (Nevin's barberry) AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for *Berberis nevinii* (Nevin's barberry) under the Endangered Species Act of 1973, as amended (Act). The proposal includes approximately 417 acres
(ac)(169 hectares (ha)) of land in Riverside County, California, that meet the definition of critical habitat for *B. nevinii.* Of this, we propose to exclude 385 ac (156 ha) of non-Federal land from the final designation under section 4(b)(2) of the Act, leaving a proposed final designation of 32 ac (13 ha) of Federal land. DATES: We will accept comments from all interested parties until April 9, 2007. We must receive requests for public hearings, in writing, at the address shown in the ADDRESSES section by March 23, 2007. ADDRESSES: If you wish to comment on the proposed rule, you may submit your comments and materials identified by RIN 1018-AU84, by any of the following methods:
(1)You may send comments by electronic mail (e-mail) to *fw8cfwocomments@fws.gov* . Include “RIN 1018-AU84” in the subject line.
(2)You may fax your comments to Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office at 760-431-9624.
(3)You may mail or hand-deliver your written comments and information to Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92011.
(4)You may submit your comments at the Federal eRulemaking Portal, *http://www.regulations.gov* . Follow the instructions for submitting comments. Comments and materials received, as well as supporting documentation used in the preparation of this proposed rule, will be available for public inspection, by appointment, during normal business hours at the Carlsbad Fish and Wildlife Office at the above address (telephone 760-431-9440). FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office at the address or telephone number listed under ADDRESSES. Persons who use a telecommunications device for the deaf
(TDD)may call the Federal Information Relay Service
(FIRS)at 800-877-8339, 7 days a week, 24 hours a day. SUPPLEMENTARY INFORMATION: Public Comments Solicited We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule are hereby solicited. Comments particularly are sought concerning:
(1)The reasons any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 *et seq.* ), including whether the benefit of designation will outweigh any threats to the species due to designation;
(2)Specific information on the amount and distribution of *Berberis nevinii* habitat; what habitat or habitat features are essential to the conservation of this species and why; and which areas occupied at the time of listing containing these features should be included in the critical habitat designation, and which areas not occupied at the time of listing but currently occupied should be included in the final designation, and why;
(3)The geographical extent, number of plants, and/or reproductive status of native *Berberis nevinii* occurrences, particularly those in the Loma Linda Hills area (vicinity of San Timoteo Canyon and Scott Canyon) in San Bernardino County and those in western Riverside County (including in the vicinity of Vail Lake, the Agua Tibia Mountain foothills (Cleveland National Forest), in the Soboba Badlands east of the San Jacinto Wildlife Area, the Jurupa Hills area, and near Temecula);
(4)Specific information on three historical *Berberis nevinii* records from Los Angeles County, two from the Arroyo Seco near Pasadena (CNDDB element occurrence 8 and 9) and one from the Big Tejunga Wash near San Fernando (CNDDB element occurrence 10), such as whether the species still exists in this area and where;
(5)Whether any areas not currently known to be occupied by *Berberis nevinii* , but essential to the conservation of the species, should be included in the designation;
(6)Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;
(7)Information that demonstrates a species-specific pollinator-plant relationship for *Berberis nevinii;* information on seed dispersal mechanisms and dispersal distance for *Berberis nevinii;* whether seed banks exist for this species and, if so, for how long and under what conditions; and whether such information should be applied to or considered a primary constituent element for the species;
(8)Our proposed exclusion of *Berberis nevinii* habitat covered under the approved Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP) and whether the benefits of excluding these areas outweigh the benefits of their inclusion under section 4(b)(2) of the Act (see *Relationship of Critical Habitat to Approved Habitat Conservation Plans (HCPs)—Exclusion Under Section 4(b)(2) of the Act* for details on the Western Riverside County MSHCP). If the Secretary determines the benefits of including these lands outweigh the benefits of excluding them, they will not be excluded from final critical habitat;
(9)Additional information regarding management plans covering lands managed by the Bureau of Land Management
(BLM)on Oak Mountain and by the United States Forest Service
(USFS)on Cleveland National Forest, and whether these plans provide specific management for *Berberis nevinii* such that consideration of exclusion of these lands under section 4(b)(2) of the Act would be appropriate;
(10)Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities; and
(11)Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments. If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (see ADDRESSES section). Please include “Attn: RIN 1018-AU84” in your e-mail subject line and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your Internet message, contact us directly by calling our Carlsbad Fish and Wildlife Office at phone number 760-431-9440. Please note that comments must be received by the date specified in the DATES section in order to be considered. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their names and home addresses, etc., but if you wish us to consider withholding this information, you must state this prominently at the beginning of your comments. In addition, you must present rationale for withholding this information. This rationale must demonstrate that disclosure would constitute a clearly unwarranted invasion of privacy. Unsupported assertions will not meet this burden. In the absence of exceptional, documentable circumstances, this information will be released. We will always make submissions from organizations or businesses, and from individuals identifying themselves as representatives of or officials of organizations or businesses, available for public inspection in their entirety. Role of Critical Habitat in Actual Practice of Administering and Implementing the Act Attention to and protection of habitat is paramount to successful conservation actions. The role that designation of critical habitat plays in protecting habitat of listed species, however, is often misunderstood. As discussed in more detail below in the discussion of exclusions under section 4(b)(2) of the Act, there are significant limitations on the regulatory effect of designation under section 7(a)(2) of the Act. In brief,
(1)Designation provides additional protection to habitat only where there is a federal nexus;
(2)the protection is relevant only when, in the absence of designation, destruction, or adverse modification of the critical habitat would in fact take place (in other words, other statutory or regulatory protections, policies, or other factors relevant to agency decision-making would not prevent the destruction or adverse modification); and
(3)designation of critical habitat triggers the prohibition of destruction or adverse modification of that habitat, but it does not require specific actions to restore or improve habitat. Currently, 483 species, or 37 percent of the 1,311 listed species in the United States under the jurisdiction of the Service, have designated critical habitat. We address the habitat needs of all 1,311 listed species through conservation mechanisms such as listing, section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, the section 10 incidental take permit process, and cooperative, nonregulatory efforts with private landowners. The Service believes that these measures may make the difference between extinction and survival for many species. In considering exclusions of areas proposed for designation, we evaluate the benefits of designation in light of *Gifford Pinchot Task Force* v. *U.S. Fish and Wildlife Service* , 378 F.3d 1059 (9th Cir 2004) (hereinafter *Gifford Pinchot* ). In that case, the Ninth Circuit court invalidated the Service's regulation defining “destruction or adverse modification of critical habitat.” In response, on December 9, 2004, the Director issued guidance to be considered in making section 7 adverse modification determinations. This proposed critical habitat designation does not use the invalidated regulation in our consideration of the benefits of including areas. The Service will carefully manage future consultations that analyze impacts to designated critical habitat, particularly those that appear to be resulting in an adverse modification determination. Such consultations will be reviewed by the Regional Office prior to finalizing to ensure that an adequate analysis has been conducted that is informed by the Director's guidance. On the other hand, to the extent that designation of critical habitat provides protection, that protection can come at significant social and economic cost. In addition, the mere administrative process of designating critical habitat is expensive, time-consuming, and controversial. The current statutory framework of critical habitat, combined with past judicial interpretations of the statute, make critical habitat the subject of excessive litigation. As a result, critical habitat designations are driven by litigation and courts rather than biology, and made at a time and under a timeframe that limits our ability to obtain and evaluate the scientific and other information required to make the designation most meaningful. In light of these circumstances, the Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection. Procedural and Resource Difficulties in Designating Critical Habitat We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs. The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed. The accelerated schedules of court-ordered designations have left the Service with limited ability to provide for public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals, due to the risks associated with noncompliance with judicially imposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, and is very expensive, thus diverting resources from conservation actions that may provide relatively more benefit to imperiled species. The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act
(NEPA)(42 U.S.C. 4321 *et seq.* ). These costs, which are not required for many other conservation actions, directly reduce the funds available for direct and tangible conservation actions. Background It is our intent to discuss only those topics directly relevant to the designation of critical habitat in this proposed rule. For more information on the biology and ecology of *Berberis nevinii* , refer to the final listing rule published in the **Federal Register** on October 13, 1998 (63 FR 54956). Species Description *Berberis nevinii* is a 3 to 13 foot
(ft)(1 to 4 meter (m)) tall rhizomatous, evergreen shrub in the barberry family (Berberidaceae) that is endemic to southern California. This species naturally occurs in scattered locations, ranging from the foothills of the San Gabriel Mountains in northern Los Angeles County, south and east to the Loma Linda Hills in southern San Bernardino County, and south to near the foothills of the Peninsular Ranges of southwestern Riverside County (63 FR 54958; California Natural Diversity Database (CNDDB) 2006). *Berberis nevinii* generally occurs between 900 and 2,000 ft (300 and 650 m) in elevation (63 FR 54958), with scattered occurrences found outside this elevation range (California Native Plant Society
(CNPS)2001, p. 96; CNDDB 2006). This species generally grows on sandy soils in low-gradient washes, alluvial terraces, and canyon bottoms, along gravelly wash margins, or on coarse soils on steep, generally north-facing slopes in association with the following plant communities: alluvial scrub, cismontane ( *e.g.* , chamise) chaparral, coastal sage scrub, oak woodland, and/or riparian scrub or woodland (Boyd 1987, pp. 2, 7; Boyd 1989, pp. 6-8; 63 FR 54958; CNPS, 2001, p. 96; CNDDB 2006). While it is typically found growing on soils of sedimentary origin (Boyd 1987, p. 3), *B. nevinii* is also found on clay soils originating from gabbro bedrock and in association with metasedimentary substrates and springs or seeps (Soza 2003). Species Distribution *Berberis nevinii* appears never to have been common, even within its limited range (Neihaus 1977, p. 2; Mistretta and Brown 1989, p. 7). Its historic distribution probably consisted of fewer than 30 scattered occurrences in Los Angeles, San Bernardino, and Riverside Counties (63 FR 54958), and possibly San Diego County (Neihaus 1977, p. 1; Reiser 2001, unpaginated; CNDDB 2006). This species was first discovered in 1882 in the San Fernando Valley near Los Angeles (Gray 1895, p. 69; Wolf 1940, unpaginated). This was likely one of the most extensive occurrences of the species consisting of approximately 100 plants scattered over 1 to 2 miles (1.6 to 3.2 kilometers (km)) of gravel washes southeast of the City of San Fernando (Wolf 1940, unpaginated). However, the species is presumed extirpated from this location (Boyd 1987, p. 3). *Berberis nevinii* was introduced into horticulture around 1920 (Wolf 1940, unpaginated) and was subsequently planted at numerous sites throughout the species’ range (Boyd 1987, p. 2; Boyd and Banks 1995, unpaginated; Reiser 2001, unpaginated). The availability of *B. nevinii* in the nursery trade and the introduction of cultivated specimens into native habitats have contributed to confusion regarding the species” native range. Table 1 summarizes our current understanding of *B. nevinii* 's occurrence, origin, and status, by county, for records in the CNDDB (2006). Additional occurrence records not in the CNDDB, and therefore not included in Table 1, are discussed below. Table 1.—Known Occurrences of *Berberis Nevinii* in the California Natural Diversity Database
(2006)and Status by County 1 County Extant, 2 native Extant, cultivated origin Extant, unknown origin Extirpated 3 Unknown Status 4 Other 5 Los Angeles 1 4 1 4 3 1 San Bernardino 2 0 0 2 0 0 Riverside 16 1 1 0 0 1 San Diego 0 1 0 0 0 1 Total 19 6 2 6 3 3 1 Other records that are not in the California Natural Diversity Database (CNDDB) are discussed below. 2 Extant = still existing. 3 Extirpated = no longer existing. 4 Possibly extirpated or unknown status. 5 Location questionable and/or may be the same as another CNDDB record. As stated in the final listing rule (63 FR 54956, October 13, 1998), the majority of native *Berberis nevinii* occurrences were located in two geographic areas: In the vicinity of Vail Lake and Oak Mountain in western Riverside County (16 occurrences collectively consisting of 200 to 250 individuals) and in San Francisquito Canyon on the Angeles National Forest in Los Angeles County (130 to 250 individuals) (63 FR 54957 and 54958). The majority of *B. nevinii* plants in the Vail Lake/Oak Mountain area were located on private lands, with a few plants on BLM lands north of Vail Lake and on the Cleveland National Forest southeast of Vail Lake (63 FR 54958). At the time of listing, two other native occurrences were known from private lands in the Loma Linda Hills area in southern San Bernardino County, one consisting of single large individual and the other consisting of seven individuals (Boyd 1987, pp. 5, 7; CNDDB 1997); in addition, a single naturally-occurring plant was known from Lopez Canyon in the foothills of the San Gabriel Mountains on the Angeles National Forest in Los Angeles County (63 FR 54958). Other *B. nevinii* occurrences were known or suspected to be of cultivated origin, and were located primarily on private lands. We are aware of several occurrences of *Berberis nevinii* that have been identified since the final listing rule (63 FR 54956, October 13, 1998). One occurrence is at the mouth of Cobal Canyon at the south base of the San Gabriel Mountains in Los Angeles County; it consists of three plants adjacent to a fire road in the Claremont Hills Wilderness Park (CNDDB 2006). The location of these individuals and the presence of other introduced plant species nearby has led to speculation that *B. nevinii* was planted here (Soza and Boyd 2000, p. 4). We are also aware of several occurrences in western Riverside County from the vicinity of Vail Lake/Oak Mountain, the Soboba Badlands, Jurupa Hills, and the Temecula area that have been identified since the species was federally listed. Of these, two occurrences in the Jurupa Hills and two occurrences in the Temecula area have presumably been extirpated due to residential or agricultural development. The Soboba Badlands occurrence, east of the San Jacinto Wildlife Area, is presumed extant, as are those in the vicinity of Vail Lake and Oak Mountain (Service 2004, p. 331). In total, we are aware of 32 records of *Berberis nevinii* in the vicinity of Vail Lake and Oak Mountain that were documented by multiple observers between 1987 and 1990 (Service 2004, p. 331). These records were compiled in association with the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP) (MSHCP records). According to location descriptions, some MSHCP records appear to be duplicates of CNDDB records, although they are not always mapped the same (Service GIS data 2006). Many of the MSHCP records overlap spatially and others are recorded in close proximity to each other, making it difficult to determine if each record is a distinct occurrence of the species or separate observations of a single occurrence (Service 2004, pp. 330-331). Accompanying data, such as number of plants, origin (native versus cultivated), and habitat information, is generally lacking, making it difficult to accurately quantify the number of distinct occurrences or plants in the Vail Lake area. We are seeking additional information to clarify and verify these occurrences, as well as those mentioned in the preceding paragraph (see *Public Comments Solicited* section). At least six extant occurrences in Los Angeles, Riverside, and San Diego Counties are of cultivated origin or are thought to be outplanted individuals originating from another part of the species’ range (CNDDB 2006; Table 1). The largest of these is in San Francisquito Canyon on the Angeles National Forest. This location is in the Liebre Mountains, a northwestern extension of the San Gabriel Mountains, which extends the species’ overall range to the north and west in Los Angeles County. At the time of the final listing rule (63 FR 54956, October 13, 1998), we believed *Berberis nevinii* to be naturally occurring in San Francisquito Canyon. We are now aware that this species was planted in the bottom of the canyon in 1929 following a flood. Moreover, one of the individuals used in the planting originated as a seedling in the San Fernando Valley in Los Angeles County (Payne 1945) where the species is thought to no longer occur (Niehaus 1977, p. 1; Boyd 1987, p. 3; CNDDB 2006). *Berberis nevinii* appears to have naturalized (established as a part of the flora of a locale other than their place of origin; i.e., nonnative) within San Francisquito Canyon, spreading beyond the canyon floor where it was planted (Payne 1945) to the canyon slopes (Soza and Boyd 2000, p. 2; Soza and Fraga 2003, p. 1). We are unaware of any evidence indicating that this species naturally occurred in San Francisquito Canyon prior to it being planted there in 1929. However, Boyd (Soza and Boyd 2000, p. 3) noted that oaks in the canyon appear to pre-date the flood, which indicates that not all vegetation was scoured from the site by floodwaters and if *B. nevinii* naturally occurred in the canyon prior to this event, some individuals may have survived. The San Francisquito Canyon occurrence has been estimated at 130 to 200 plants in the past (Soza and Boyd 2000, p. 2; CNDDB 2006), but recent surveys estimate the population at 91 plants after a fire burned through the entire occurrence in 2002 (Soza and Fraga 2003, p. 2). No native occurrences of *Berberis nevinii* have been located in San Diego County (Reiser 2001, unpaginated). A report of this species in the desert foothills of Anza-Borrego near Ranchita (San Felipe Wash) in Eastern San Diego County remains unconfirmed (Niehaus 1977, p. 1; Reiser 2001, unpaginated; CNDDB 2006). Isolated plants or small stands (groupings of individuals) of *B. nevinii* may occur in the little explored foothills at the northern edge of the Agua Tibia Wilderness Area, potentially into San Diego County (Reiser 2001, unpaginated), as it occurs nearby in southern Riverside County (Boyd and Banks 1995, unpaginated; CNDDB 2006). At least two occurrences of *B. nevinii* in San Diego County are likely of cultivated origin: Torrey Pines State Park (Reiser 2001, unpaginated) and near the base of Mount Palomar on the La Jolla Indian Reservation (Boyd 1987, p. 3; Reiser 2001, unpaginated; CNDDB 2006). At least seven occurrences of *Berberis nevinii* have been extirpated (63 FR 54958), including six records in the 2006 CNDDB (Table 1) and potentially others from the eastern San Fernando Valley that were not included in the CNDDB because of inadequate data (63 FR 54961). *Berberis nevinii* has been extirpated from several historic locations in Los Angeles and San Bernardino Counties, including the San Fernando Valley and Pacoima Wash area (CNDDB 2006), the confluence of San Francisquito Canyon and Santa Clara River (Boyd 1987, p. 2), and north of the City of Claremont (CNDDB 2006). We are unable to ascertain whether two of the three historic records from the Arroyo Seco near Pasadena and one 1904 record from Big Tejunga Wash are extant and/or accurately mapped. A historic record of *B. nevinii* from south of Rim Forest in the San Bernardino Mountains in San Bernardino County is suspected to be of cultivated origin and is apparently extirpated (Boyd 1987, p. 2). In the Loma Linda Hills area of southern San Bernardino County, two historic occurrences of *B. nevinii* from side canyons off San Timoteo Canyon appear to have been impacted by fire-related and/or landowner activities within the last 10 years (Latch 1997; Sanders 2006). One occurrence, which consisted of a single large clonal individual, has been extirpated (Sanders 2006). The other occurrence has been reduced from seven individuals to perhaps only one or two (Latch 1997; Sanders 2006); we are unsure if the remaining plant(s) are located in southern San Bernardino County or extreme northern Riverside County. We are seeking additional information to clarify and verify these occurrences (see *Public Comments Solicited* section). The total number of *Berberis nevinii* may be fewer than 500 from all known sites; about half are naturally occurring individuals and over half are on private lands (CNDDB 2006; 63 FR 54958). The majority of occurrences consist of five or fewer plants, with many consisting of only one or two large
(old)individuals (CNDDB 2006). Potential habitat within the species' range has been fairly extensively botanically explored and/or surveyed (Boyd 1987, p. 3), including surveys of potential habitat on the San Bernardino National Forest in 1988 and 1989, which yielded no new occurrences (Mistretta 1989, unpaginated). Additional survey efforts for *B. nevinii* likely will not yield new large occurrences of the species. However, the discovery of new occurrences within the last 15 to 20 years ( *e.g.,* from Lopez Canyon in Los Angeles County and from western Riverside County) suggests that individual plants and small stands remain to be found (Boyd 1987, p. 3; Boyd and Banks 1995, unpaginated; Soza and Boyd 2000, p. 4). Potential habitat for *B. nevinii* may occur on the Angeles National Forest on the south slope of the San Gabriel and Liebre Mountains (Soza and Boyd 2000, p. 4), potentially from Pacoima to Lopez Canyon, within the vicinity of San Antonio Wash, and within Cajon Canyon (Soza 2003, based on expertise of Boyd, Rancho Santa Ana Botanic Garden); on the San Bernardino National Forest in the Crafton Hills area and on the west side of the San Jacinto Mountains (Soza 2003); on the Cleveland National Forest in the front range of the Agua Tibia/Palomar Mountains, including the northern edge of the Agua Tibia Wilderness (Boyd and Banks 1995, unpaginated; Reiser 2001, unpaginated; Soza 2003); and south and east of Vail Lake ( *e.g.* , Temecula Creek drainage, the hills between Temecula Creek and Wilson Creek), and the canyons draining Big Oak Mountain north of Vail Lake (Boyd *et al.* 1989, p. 16; Soza 2003). To summarize, native, extant occurrences of *Berberis nevinii* include a single individual in Lopez Canyon in the San Gabriel Mountains on the Angeles National Forest in Los Angeles County (CNDDB 2006); a single individual on private land in Scott Canyon in the Loma Linda Hills south of Redlands in San Bernardino County (Boyd 1987, pp. 5, 7); one or two individuals on private land in a side canyon off San Timoteo Canyon near the San Bernardino/Riverside County line (referred to herein as the San Timoteo Canyon occurrence) (Boyd 1987, pp. 5, 7; Latch 1997; Sanders 2006); an unknown number of individuals in the Soboba Badlands east of the San Jacinto Wildlife Area (Service 2004, p. 331); and other scattered occurrences in Riverside County, including the largest remaining and most significant group of native occurrences in the Vail Lake/Oak Mountain area in southern Riverside County (Service 2004, p. 331; CNDDB 2006). This latter site has many scattered stands of *B. nevinii* , each with one or more individuals, collectively consisting of about 200 to 250 plants (Boyd *et al.* 1989, p. 14; 63 FR 54958). The majority of the individuals in the Vail Lake/Oak Mountain area are located on private land to the south of the lake, with the largest stand on the Vail Lake peninsula (formerly a ridge separating Kolb Creek and Temecula Creek prior to the flooding of Vail Lake). Two plants on Big Oak Mountain north of Vail Lake are on BLM lands, and five plants occur southeast of Vail Lake on the Cleveland National Forest, close to the Agua Tibia Wilderness Area (herein referred to as the Cleveland National Forest occurrence) (63 FR 54956; CNDDB 2006). Species Reproduction There appears to be little to no regeneration by seed occurring at most *Berberis nevinii* sites, and low seed set (including plants bearing fruit without seed) and lack of viable seed has been noted over the years by both botanists and horticulturalists trying to obtain seed for propagation, even from within larger occurrences (Wolf 1940; Boyd 1987, pp. 3, 44, 56; Mistretta and Brown 1989, pp. 4-5; Mistretta 1994, p. 186). According to Mistretta (1994, p. 187) and O'Brien (2001, p. 19), unpublished molecular studies from the early 1990s revealed almost no genetic diversity within *B. nevinii* , with one exception at Vail Lake, suggesting that the species has been subjected to a series of population bottlenecks that may have led to severe inbreeding depression and reproductive failure (Mistretta 1994, p. 187). However, Mistretta
(2006)cautioned against drawing conclusions from this study because the techniques used, which were state-of-the-art at the time, require far more conjecture in determining relationships, especially at the population level, than newly-developed techniques. On the other hand, cultivators of *B. nevinii* have long observed an apparent lack of morphological differences between individual plants, even young seedlings (O'Brien 2001, p. 19), which may also indicate low genetic variation within the species. We know of only a few native occurrences where regeneration by seed may have occurred in the recent past. As noted by Nishida in Boyd (1987, p. 62), the largest stand of *Berberis nevinii* located on the Vail Lake peninsula consists of approximately 111 individuals of various sizes, including a seedling, which suggests a range of ages and past reproduction. Another occurrence on the peak located north of Vail Lake (referred to as “Big” Oak Mountain; Boyd *et al.* 1989, p. 1) consists of two plants: a very old one and a substantially smaller one at some distance to the northeast (Wallace 2006) (hereinafter, we also refer to this peak as “Big Oak Mountain,” whereas “Oak Mountain” refers to the general area to the north and west of Vail Lake). Additionally, fruit with seed was noted at the *B. nevinii* occurrence on Cleveland National Forest to the southeast of Vail Lake in 2006 (Wallace 2006). The San Timoteo Canyon occurrence also contained individuals of several size
(age)classes (Boyd 1987, pp. 51-52); however, regeneration by seed probably has not occurred at this site in many decades, and this occurrence has been at least partially destroyed (Sanders 2006). Regeneration by seed has been noted at a few naturalized (i.e., nonnative) stands of *Berberis nevinii* . The San Francisquito Canyon site appears to have one of the most vigorous naturally regenerating occurrences of the species, as indicated by a wide range of ages of mature individuals, the presence of numerous seedlings and immature plants (Boyd 1987, p. 7; Mistretta and Brown 1989, p. 10; Soza and Boyd 2000, p. 2), and fruits containing seed (Boyd 1987, p. 7). Reproduction has also been observed at the Palomar site in San Diego County, a site presumed to be of cultivated origin (Boyd 1987, pp. 3, 73). The role that naturalized occurrences will have in conservation of the species is not known at this time. The San Francisquito Canyon occurrence may at some point be determined to play a recovery role because it is one of only three occurrences for the species that we know has more than 20 individuals (CNDDB 2006), it is one of only a few occurrences with any evidence of reproduction by seed, and it may contain the only verifiable remnant of the extirpated San Fernando Valley population. According to the California Department of Fish and Game
(CDFG)(2005, p. 272), “the lack of reproduction and recruitment at most sites, and the very low number of individuals at most populations [of *Berberis nevinii* ] in the absence of fire are indicative of fire responsive species.” Fire is a normal occurrence in chaparral communities, and chaparral species, including *B. nevinii* , which is known to stump sprout (i.e., generate new growth from burnt stumps) following fire (Soza and Fraga 2003, p. 2; Sanders 2006), are resilient and/or adapted to such perturbations (Keeley 1991, p. 84; Tyler 1996, p. 2182. However, the specific response of *B. nevinii* to changes to the natural fire regime (fire frequency, intensity, and/or timing), such as has occurred or may occur in southern California's chaparral/shrublands due to increased urbanization, are not fully understood (63 FR 54964, 54965). The final listing rule (63 FR 54956, October 13, 1998) identified urbanization, off-road vehicle use, brush fires, recreation, and roadway projects (e.g., widening) as factors contributing to the imperilment and/or extirpation of *Berberis nevinii* from within parts of its native range (63 FR 54961). The alluvial scrub communities within the San Fernando and San Gabriel valleys have been greatly modified, damaged, or destroyed, including several sites where *B. nevinii* presumably had occurred. Other threats to the long-term survival of the species, as identified in the final listing rule, include the introduction of invasive, nonnative plants that compete with native species and contribute to combustible fuel loads, and fire management strategies that alter natural fire processes (63 FR 54961). Previous Federal Actions *Berberis nevinii* was listed as endangered by the State of California in January 1987, and federally listed as endangered on October 13, 1998 (63 FR 54956). In the final listing rule, we determined that the designation of critical habitat was not prudent because the designation would not be beneficial to the conservation of the species. On August 10, 2004, the Center for Biological Diversity and the CNPS filed a lawsuit in U.S. Federal Court, Northern District of California against the Secretary of the Interior challenging the not prudent determination of critical habitat for *B. nevinii* and four other plant species that occur in southern California ( *Center for Biological Diversity et al.* v. *Gale Norton* , *Secretary of the Department of the Interior, C-04-3240 JL* ). On December 21, 2004, a U.S. District Court Judge signed an order granting a stipulated settlement agreement between the parties. The Service agreed to propose critical habitat for *B. nevinii* , if prudent, on or before January 30, 2007, and finalize the designation on or before January 30, 2008. We are hereby withdrawing our previous not prudent determination of critical habitat for *B. nevinii.* We have reconsidered our not prudent finding, and now believe that identification of primary constituent elements and essential areas (critical habitat designation) may provide educational information to individuals, local and State governments, and other entities. We also do not have any documentation that over-collection has increased significantly since the species was listed. We now believe that the benefits of identifying essential habitat for *B. nevinii* outweigh the potential risk of over-collection and thus we are now proposing critical habitat for this species. A recovery plan for *Berberis nevinii* has not yet been completed. For more information on previous Federal actions concerning *B. nevinii* , refer to the final listing rule published in the **Federal Register** on October 13, 1998 (63 FR 54956). Critical Habitat Critical habitat is defined in section 3 of the Act as
(i)The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(I)Essential to the conservation of the species and
(II)that may require special management considerations or protection; and
(ii)specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7(a)(2) of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7(a)(2) requires consultation on Federal actions that are likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow government or public access to private lands. Section 7(a)(2) is a purely protective measure and does not require implementation of restoration, recovery, or enhancement measures. To be included in a critical habitat designation, the habitat within the area occupied by the species must first have features that are essential to the conservation of the species. Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species ( *i.e.* , areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)). Habitat occupied at the time of listing may be included in critical habitat only if the essential features thereon may require special management considerations or protection. Areas outside of the geographic area occupied by the species at the time of listing may only be included in critical habitat if they are essential for the conservation of the species. Accordingly, when the best available scientific data do not demonstrate that the conservation needs of the species require additional areas, we will not designate critical habitat in areas outside the geographical area occupied by the species at the time of listing. An area currently occupied by the species that was not known to be occupied at the time of listing will likely, but not always, be essential to the conservation of the species and, therefore, typically included in the critical habitat designation. The Service's Policy on Information Standards Under the Endangered Species Act, published in the **Federal Register** on July 1, 1994 (59 FR 34271), and Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service, provide criteria, establish procedures, and provide guidance to ensure that decisions made by the Service represent the best scientific data available. They require Service biologists to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information is generally the listing package for the species. Additional information sources include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge. All information is used in accordance with the provisions of Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery. Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome. Methods As required by section 4(b)(2) of the Act, we used the best scientific data available in determining areas that contain the features essential to the conservation of *Berberis nevinii* . This included information from the following sources:
(1)Final listing rule (63 FR 54956, October 13, 1998);
(2)CNDDB (2006);
(3)California Native Species Field Survey Forms submitted to the CDFG;
(4)herbarium collection records from the Consortium of California Herbaria and Rancho Santa Ana Botanic Garden;
(5)Western Riverside County MSHCP;
(6)botanical assessments and inventories of southern California;
(7)management documents and survey/monitoring reports for *B. nevinii* on U.S. Forest Service land;
(8)technical reports prepared by the Rancho Santa Ana Botanic Garden;
(9)communications from species experts;
(10)aerial photography; and
(11)regional Geographic Information System
(GIS)layers for land ownership, soils, and vegetation (California Wildlife Habitat Relationships
(CWHR)System). We also used information collected by Service biologists who conducted site visits to Big Oak Mountain (CNDDB element occurrence 38) and the Cleveland National Forest (CNDDB element occurrence 31). We have also reviewed available information that pertains to the habitat requirements of *Berberis nevinii.* There is limited information on habitat requirements for this species, but the primary sources are:
(1)CNDDB (2006);
(2)California Native Species Field Survey Forms submitted to CDFG;
(3)habitat parameters compiled by Boyd (Rancho Santa Ana Botanic Garden) based on the results of a field survey by Nishida (Rancho Santa Ana Botanic Garden technical report No. 3 (1987, p. 7));
(4)botanical assessment of the Vail Lake property for the Riverside County Planning Department
(1989)and of Cleveland National Forest (1995);
(5)monitoring data and reports for the Angeles National Forest (Soza and Boyd 2000 and Soza and Fraga 2003);
(6)information from regional GIS layers for soils, vegetation, and percent slope values; and
(7)information received from local species experts, including descriptions of suitable habitat by the USFS (Soza 2003) that were based on the expertise and extensive field experience of Boyd (Rancho Santa Ana Botanic Garden). A variety of other peer-reviewed and non-peer-reviewed articles were reviewed for background information on plant ecology, natural history, and biology, as well as plant response to fire and other disturbances in California shrubland ( *e.g.* , chaparral) communities. Primary Constituent Elements In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we consider those physical or biological features
(PCEs)that are essential to the conservation of the species, and within areas occupied by the species at the time of listing, that may require special management considerations or protection. These include, but are not limited to: Space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing (or development) of offspring; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species. The specific primary constituent elements required for *Berberis nevinii* are derived from the biological needs of the species as described in the final listing rule (63 FR 54956, October 13, 1998), as well as information contained in this proposed rule. Space for Growth and Reproduction *Berberis nevinii* has a limited natural distribution; it typically occurs in small stands (less than 20 individuals, and often only one or two) in scattered locations in Los Angeles, San Bernardino, and Riverside Counties, with the largest native occurrence (as defined by CNDDB) consisting of several stands and totaling about 134 individuals to the south of Vail Lake in Riverside County (Boyd 1987; CNDDB 2006). Within these areas, *B. nevinii* requires appropriate soils, topography, cover, and drainage within the landscape to provide space, food, water, air, light, minerals, or other nutritional or physiological requirements for individual and population growth and reproduction. Characterizing *Berberis nevinii* habitat is difficult due to the varied soils, bedrock substrates, and topography on which this species naturally occurs. Additionally, this species is known to tolerate a wide range of environmental conditions in cultivation (Mistretta and Brown 1989, p. 6). *Berberis nevinii* typically occurs at elevations from 900 to 2,000 ft (300 to 650 m) (63 FR 54958), but most native occurrences and the naturalized San Francisquito population are between 1,400 and 1,700 ft (427 to 518 m) in elevation (Boyd 1987, p. 2; CNDDB 2006). One native occurrence on the Big Oak Mountain summit north of Vail Lake in Riverside County is at approximately 2,700 ft (823 m) elevation, and scattered naturalized occurrences are found outside the 900 to 2,000-foot (300 to 650 m) elevation range (Boyd 1987, pp. 42, 75; CNDDB 2006). *Berberis nevinii* has been found in varied topography from nearly flat sandy washes, terraces, benches, and canyon floors to gravelly wash margins, steeply-sloped banks of drainages, steep rocky slopes, ridges, and mountain summits (CNDDB 2006). Based on 1987 field surveys by Nishida, native *Berberis nevinii* occurring on slopes in Scott Canyon and south of Vail Lake were found in areas with slopes of 35 to 70 percent slope (Boyd 1987, pp. 7, 45, 62, 65, 68). Other *B. nevinii* plants occurring on slopes in the Vail Lake/Oak Mountain area generally occupy areas of less than 70 percent slope, based on Service GIS data (2006). Naturalized ( *i.e.* , nonnative) occurrences are known to grow on steeper slopes ( *e.g.* , 85 to 120 percent slope) in San Francisquito Canyon (Boyd 1987, p. 7, based on field surveys by Nishida). *Berberis nevinii* generally occurs on north, northeast, or northwest-facing slopes; however, exceptions to this have been noted, including several occurrences, both native and naturalized, found on south and west-facing slopes (Boyd 1987, pp. 7, 40, 77; Boyd *et al.* 1989, p. 24; Soza and Boyd 2000, p. 22; CNDDB 2006). *Berberis nevinii* is found on a variety of soils and bedrock substrates. Native occurrences appear to be strongly associated with alluvial soils or soils derived from nonmarine sedimentary based substrates, especially sandy arkose (sandstone derived from granitic material) (Boyd 1987, p. 7; Boyd and Banks 1995, unpaginated; Soza and Boyd 2000, p. 25). Most of the plants at Vail Lake are found in small stands on Temecula arkose soils around the southern end of the lake, with scattered individuals in the “badlands” to the southeast and southwest (Boyd and Banks 1995, unpaginated). Several small, isolated stands on the south flank of Big Oak Mountain are associated with metasedimentary substrates and springs or seeps (Boyd *et al.* 1989, p. 14; Soza 2003), and two plants at the Big Oak Mountain summit occur on heavy adobe/gabbro type soils with high water-holding capacity formed from metavolcanic geology (Mesozoic basic intrusive rock) (Soza 2003). The Cleveland National Forest occurrence is found at the contact between sedimentary (arkose) and metasedimentary substrates (Boyd and Banks 1995, unpaginated). *Berberis nevinii* has also been found growing on Pelona schist outcrops and granitic knolls (Boyd 1987, p. 7; Soza and Boyd 2000, p. 22). Overlying occurrence polygons with NRCS soils data, native *Berberis nevinii* occurrences appear to be associated with the following soil series: Riverwash at the Lopez Canyon site in Los Angeles County; sandy loam of the Saugus series in Scott Canyon and coarse sandy loam of the Metz series from the San Timoteo Canyon location in San Bernardino County; and at least 17 different soil series in the Vail Lake/Oak Mountain area in Riverside County, including Monserate sandy loams; Hanford coarse sandy loams; fine sandy loams of the Arlington and Greenfield, Pachappa, and Cajalco series; Cajalco rocky fine sandy loams; rocky loams of the Lodi and Las Posas series; and loams of the Las Posas, San Timoteo, and San Emigdio series (Service GIS data 2006). Additional soil series found within mapped *B. nevinii* occurrences include gullied land and riverwash primarily south of Vail Lake, and badland to the north and southeast of Vail Lake. Occurrences north of Vail Lake on the south slopes of Big Oak Mountain and its summit are mapped primarily as Auld clay, 8 to 15 percent slopes, Cajalco rocky fine sandy loam, 15 to 50 percent slopes, eroded, and Las Posas loam and rocky loam, 8 to 15 percent slopes, eroded. The *B. nevinii* site on the Cleveland National Forest south of Vail Lake is mapped as gullied land and coarse sandy loam of the Hanford series, 8 to 15 percent slopes, eroded (Service GIS data 2006). Native occurrences of *Berberis nevinii* are generally found growing in well-drained soils, and are known from xeric slopes and rock outcrops. According to Lenz and Dourley (1981, as cited in Mistretta and Brown 1989, p. 5), *B. nevinii* is considered a drought-tolerant species, but it will also accept large amounts of water in cultivation without apparent damage. Observations of native occurrences suggest that, within its general habitat, *B. nevinii* may be associated with more mesic microhabitats. Niehaus (1977, p. 2) noted that *B. nevinii* occurs mostly at the margins of dry washes in or below the foothill zone, but is not present in the driest portion of a wash. At some sites, *B. nevinii* is associated with species such as *Lepidospartum squamatum* and *Prunus ilicifolia* that require groundwater (Niehaus 1977, p. 2). Many of the plants in the Vail Lake area are growing on mesic north or northwest facing slopes. Several stands are in canyons draining the south flank of Big Oak Mountain and are associated with springs or seepages (Boyd *et al.* 1989, p. 14). The two plants on the summit of Big Oak Mountain are on clay soils with a high water-holding capacity. In the late spring and early summer, this site may receive greater moisture in the form of condensation from intrusion of marine air (Soza 2003). *Berberis nevinii* occurs in association with the following plant communities: alluvial scrub, cismontane ( *e.g.* , chamise) chaparral, coastal sage scrub, oak woodland, and/or riparian scrub or woodland (Boyd 1987, pp. 2, 7; Boyd 1989, pp. 6-8; 63 FR 54958; CNPS 2001, p. 96; CNDDB 2006). Native *B. nevinii* in Lopez Canyon, Scott Canyon, and San Timoteo Canyon, as well as many of those found in the Vail Lake/Oak Mountain area, occur within the California Wildlife Habitat Relationships
(CWHR)landcover described as coastal scrub or mixed chaparral (Service GIS data 2006). *Berberis nevinii* is occasionally found in coastal oak woodland in the Vail Lake/Oak Mountain area, characterized by open to dense stands of the large evergreen coast live oak ( *Quercus agrifolia* ) in close association with surrounding scrub vegetation (Boyd *et al.* 1989, p. 7). In the Vail Lake area, this woodland type is found primarily in sandy washes, benches, and canyons on north-facing slopes, near ephemeral stream channels, and/or associated with springs (Boyd *et al.* 1989, pp. 7-8). The San Francisquito site, where *B. nevinii* has apparently naturalized, also has some coastal oak woodland, and *Q. agrifiolia* is locally common south of *B. nevinii* in the canyon bottom at the Lopez Canyon site (Soza and Boyd 2000, pp. 23, 26). Several stands in the Vail Lake area occur within the CWHR landcover described as valley foothill riparian, and several occurrences are also partly characterized as annual grassland (Service GIS data 2006). The Scott Canyon site is described as having an abundance of annual grasses (Boyd 1987, pp. 44-48, CNDDB 2006). Extant, native occurrences of *Berberis nevinii* are often found in association with one or more of the following chaparral and coastal sage scrub species: *Eriogonum fasciculatum, Artemisia californica, Adenostoma fasciculatum, Rhus ovata, R. trilobata,* or *R. integrifolia, Salvia mellifera, Sambucus mexicana, Prunus ilicifolia, Rhamnus crocea,* and * Quercus berberidifolia* (Boyd 1987, p. 2; CNDDB 2006). Several native occurrences are associated with coastal oak woodland or riparian/alluvial scrub vegetation, such as *Quercus agrifolia, Populus fremontii, Salix laevigata, Platanus racemosa, Baccharis glutinosa* , and/or *Lepidospartum squamatum* (CNDDB 2006). Boyd (1987, p. 2) has noted that certain desert floral elements such as *Encelia farinosa, Chrysothamnus nauseosus, Artemisia tridentata, Chilopsis linearis, Yucca schidigera, Opuntia parryii* , and *Atriplex canescens* are often characteristic of the general area and many of the specific sites where *B. nevinii* occurs in the vicinity of Vail Lake. The presence of typically desert floral elements likely reflects the transitional nature of these sites between the cismontane area to the west and the Colorado Desert to the east (Boyd *et al.* 1989, p. 4). Several observers have noted that seedlings and immature *Berberis nevinii* tend to occur in areas with some measure of protection, either in the shade or cover of another plant (Boyd 1987, pp. 77-78, based on field surveys by Nishida; Mistretta and Brown 1989, p. 10). This suggests the need for some fire-free period to allow for canopy growth. However, Nishida (Boyd *et al.* 1987, p. 77) noted that mature individuals were located in areas where they were exposed to full sunlight, and Reiser (2001, unpaginated) noted that this species frequently towers above associated subshrubs. Based on observations in the field, Nishida suggested that seedlings may be shade tolerant, but that as *B. nevinii* matures, it may require more sunlight (Mistretta and Brown 1989, Attachment: “Report on the Population and Ecological Data of *Mahonia nevinii* ” by Joy Nishida, p. 1). A similar shade/sunlight requirement has been noted for several other resprouting chaparral shrub species, where seedlings and saplings are found mostly in the shade of other plants and seldom in the open, but recruitment into the shrub population appears to require the later development of a canopy gap, such as may be created by a fire event (Keeley 1992, p. 1206). We have little information about pollinators, seed dispersal mechanisms, or the reproductive biology of this species. *Berberis nevinii* has perfect (hermaphroditic) yellow flowers clustered in loose racemes that bloom from March through April, and fleshy, yellowish-red to red berries with plump, brown seeds that are present from May to July (Wolf 1940, unpaginated; Munz 1974, p. 245; Neihaus 1977, p. 1; Morris 2006). Species-specific information on pollinators is lacking, but *B. nevinii* may be pollinated by bee species. According to Mussen (2002), California's native *Berberis* species are “visited (and probably pollinated) by honey bees” ( *Apis mellifera* ), and according to the U.S. Department of Agriculture (2006), native *Berberis* species “provide significant forage for native bees.” We also do not know if *B. nevinii* is able to self-fertilize, as the genus *Berberis* contains species that are both self-compatible and self-incompatible (Anderson *et al.* 2001, p. 227). Seed dispersal by both birds and mammals is widespread within the genus *Berberis* (Young and Young 1992, p. 52; Vines 1960, pp. 271-273), and thus is likely within *B. nevinii.* Wolf (1940, unpaginated) noted that the abundant fruits of *B. nevinii* are eaten by various bird species. Seasonal rains flowing through washes and channel drainages may also disperse seed of *B. nevinii* located in these areas (Roof 1968, p. 22; Mistretta and Brown 1989, p. 6; Soza and Boyd 2000, p. 3). However, due to the lack of specific information on habitat requirements for *B. nevinii* related to pollination and seed dispersal, we were unable to fully incorporate these potential areas into our identification of essential habitat for the species. *Berberis nevinii* does not appear to reproduce by vegetative means (rootsprout) to any great extent (Mistretta and Brown 1989, p. 5; Boyd 2006); in other words, it does not regularly produce clones (genetically identical direct descendants) that are well separated from the parent individual through the process of rooting at nodes in the rhizome, as is the case with some other members of the genus *Berberis.* One potential exception is an (extirpated) occurrence south of Redlands in San Bernardino County, which appeared to be reproducing only by vegetative spread (Sanders 2006). Because vegetative reproduction appears to be uncommon, Mistretta and Brown (1989, p. 5) concluded that perpetuation of the species is likely dependent on its occasional production of viable seed. Landscape Ecology and Population Demographics of Berberis nevinii Many extant occurrences of *Berberis nevinii* are associated with chaparral or coastal sage scrub. Fire is a natural occurrence in southern California shrublands, and plants occurring in these vegetation communities are resilient and/or adapted to these types of disturbances (Keeley 1991, p. 84; Tyler 1996, p. 2182). Postfire regeneration mechanisms among California shrubland species can generally be described as obligate seeding, obligate sprouting, or facultative sprouting (Kelly and Parker 1990, p. 114). Obligate seeders are typically killed by fire and rely entirely on seeds for regeneration. Most have locally dispersed seeds that persist in the soil seed bank until dormancy is broken by an environmental stimulus, such as intense heat (Keeley 1991, p. 82). Obligate sprouters, on the other hand, are rarely killed by fire, but rather resprout from roots, lignotubers, or epicormic buds (Kelly and Parker 1990, p. 114). These species have seeds that do not require fire for germination, but require fire-free periods for recruiting new seedlings (Keeley 1991, p. 82). In some species, postfire regeneration occurs by both sprouts and seeds, and fire-caused mortality is variable (facultative sprouters) (Kelly and Parker 1990, p. 114). *Berberis nevinii* is known to regenerate by stump sprouting following fire (Soza and Fraga 2003, p. 2; Sanders 2006; Mistretta and Brown 1989, p. 5). Mature individuals often possess a basal burl (Mistretta and Brown 1989, p. 5), a swelling at the junction of roots and stems that allows a plant to sprout from the base and regenerate after a fire that kills above-ground vegetation. The germination response of *B. nevinii* to fire is not known. According to Soza and Boyd (2003, p. 2), Soza (2006), and the USFS (2005, p. 237), post-fire surveys on the Angeles and Cleveland National Forests found recruitment from both resprouting and seeding. This suggests that this species may also regenerate by seed following fire. *Berberis nevinii* 's response to altered fire regimes ( *e.g.* , changes to fire frequency, timing, and/or intensity) is also unknown (63 FR 54961), such as resprouting response and soil seedbank persistence under conditions of high fire frequency. Because southern California shrublands are adapted to a natural fire regime, plants within these communities likely require such conditions for long-term survival (63 FR 54961). Comparison of the contemporary fire regime in southern California to that of the natural regime ( *i.e.* , pre-fire suppression) shows that in the lower coastal valley and foothill zone, fire frequency has increased, and that high fire frequencies tend to occur in those areas where high human densities interface with relatively undeveloped landscape (Keeley *et al.* 1999, p. 1831; Keeley and Fotheringham 2001, p. 1545; Wells *et al.* 2004, p. 147; Keeley 2006, p. 382). However, fire suppression has kept fires in check so that most stands burn within the range of natural variation (Keeley 2006, p. 382). Additionally, while coastal sage scrub and chaparral have the largest amount of area that has burned multiple times over the past century and have the highest potential fire frequencies of all vegetation community types, only the former clearly shows an increasing trend in area burned over this time period (Wells *et al.* 2004, pp. 148, 151). Too frequent fire on the landscape could potentially kill mature, resprouting *Berberis nevinii* as well as young plants before they have reached their reproductive potential and before the soil seed bank is replenished (Boyd 1991, pp. 7, 9). Repeated burnings over short intervals could eventually lead to type conversion of chaparral/shrublands to nonnative annual grassland (Boyd 1991, p. 9; Keeley *et al.* 1999, p. 1831), as has been observed in areas surrounding urban centers (Keeley 2006, p. 382). Therefore, conservation of rare plants in southern California, such as *B. nevinii,* that are associated with chaparral, coastal sage scrub, or other shrubland vegetation communities may require preservation of enough land around known occurrences to allow for maintenance of natural fire regimes (Boyd 1991, pp. 10-11). However, we do not have sufficient information to quantify the extent of the area necessary to do so for particular *B. nevinii* occurrences. Therefore, we are unable to fully incorporate these potential areas into our identification of essential habitat for *B. nevinii.* Life history characteristics and population demographics of *Berberis nevinii* are largely unknown and unstudied. *Berberis nevinii* is a long-lived species (>50 years) (Mistretta and Brown 1989, p. 5) with low reproductive rates in the wild due to sporadic production of fertile seed (Mistretta and Brown 1989, p. 5). It has been suggested that *B. nevinii* may be a paleoendemic relic (Reiser 2001, unpaginated), which could explain its limited (small and widely scattered) distribution and low reproductive rates in the wild (Soza 2003). The ability of *Berberis nevinii* to stump sprout following disturbance ( *e.g.,* fire), as well as its great longevity, may play an important role in persistence of the species. As discussed in Garcia and Zamora (2003, p. 921), there may be a population maintenance trade-off for long-lived plants between replacement of individuals by seeding and persistence of established plants. A persistence strategy may allow plants to survive through unfavorable conditions, potentially to reproduce again when conditions are more favorable (Garcia and Zamora 2003, p. 924). As mentioned previously, there appears to be little to no regeneration by seed occurring at most *B. nevinii* occurrences. However, since the species is long-lived, it may produce seed intermittently and life-time seed production may be a more important consideration in terms of perpetuation of the species than annual seed production. Primary Constituents Elements for Berberis nevinii Under our regulations, we are required to identify the known physical and biological features
(PCEs)essential to the conservation of *Berberis nevinii* . All areas proposed as critical habitat for *B. nevinii* are currently occupied, are within the species’ historic geographic range, and contain sufficient PCEs to support at least one life history function. Based on our current knowledge of the life history, biology, and ecology of the species, and the requirements of the habitat necessary to sustain the essential life history functions of the species, we have determined that *Berberis nevinii* 's PCEs are:
(1)Low-gradient ( *i.e.* , nearly flat) canyon floors, washes and adjacent terraces, and mountain ridge/summits, or eroded, generally northeast- to northwest-facing mountain slopes and banks of dry washes typically of less than 70 percent slope that provide space for plant establishment and growth;
(2)Well-drained alluvial soils primarily of non-marine sedimentary origin, such as Temecula or sandy arkose soils; soils of the Cajalco-Temescal-Las Posas soil association formed on gabbro (igneous) or latite (volcanic) bedrock; metasedimentary substrates associated with springs or seeps; and heavy adobe/gabbro-type soils derived from metavolcanic geology (Mesozoic basic intrusive rock) that provide the appropriate nutrients and space for growth and reproduction; and
(3)Scrub (chaparral, coastal sage, alluvial, riparian) and woodland (oak, riparian) vegetation communities between 900 and 3,000 ft (275 and 915 m) in elevation that provide the appropriate cover for growth and reproduction. This proposed designation is designed for the conservation of those areas containing PCEs necessary to support the life history functions that were the basis for the proposal. Because not all life history functions require all the PCEs, not all proposed critical habitat will contain all the PCEs. Units are designated based on sufficient PCEs being present to support one or more of the species’ life history functions. Some units contain all PCEs and support multiple life processes, while some units contain only a portion of the PCEs necessary to support the species' particular use of that habitat. Where a subset of the PCEs is present at the time of designation, this rule protects those PCEs and thus the conservation function of the habitat. Criteria Used To Identify Critical Habitat As required by section 4(b)(1)(A) of the Act, we used the best scientific data available in determining areas that contain the features that are essential to the conservation of *Berberis nevinii* . This species naturally occurs in small, isolated stands across its geographic range, with several known occurrences consisting of only a single large and presumably very old individual. At most sites, there is little to no evidence of reproduction. The Vail Lake/Oak Mountain area in western Riverside County has the highest concentration of native *B. nevinii* , representing several size
(age)classes. It occurs in numerous stands scattered throughout the area, with the largest number of plants located south of Vail Lake and on the peninsula. The long-term conservation of *B. nevinii* will depend upon the protection of such extant, native occurrences and the maintenance of ecological functions within these sites. We delineated proposed critical habitat for *Berberis nevinii* using the following criteria:
(1)Areas known to be occupied by naturally-occurring individuals of the species at the time of listing and areas that are currently occupied by naturally-occurring individuals;
(2)areas within the historic range of the species;
(3)areas containing one or more PCEs essential to the conservation of the species; and
(4)areas currently occupied by more than two *B. nevinii* plants that show evidence of reproduction ( *i.e.,* fruits with seed, seedlings, or plants of various size/age classes) on site. For sites where there was no information available on reproduction or size/age class distribution, we assumed that reproduction had occurred at some point in the past if multiple *B. nevinii* plants were present. As discussed below, we also gave consideration to the ecological uniqueness of sites. Whether naturalized occurrences may play a role in conservation of the species is currently unknown. However, the naturalized occurrences represent some of the largest (in terms of number of individuals) and most vigorously reproducing occurrences of the species, and could potentially play a role in preserving genetic diversity. At least one naturalized occurrence (San Francisquito Canyon) may contain an individual and/or descendents of an individual that originated from a location where *B. nevinii* no longer occurs ( *i.e.,* the San Fernando Valley). Thus, we will continue to explore the potential conservation value of naturalized occurrences, and consider these occurrences in future recovery actions as appropriate. We are aware of 39 records for *Berberis nevinii* rangewide documented by the CNDDB (2006), of which we consider 19 to be extant, native occurrences. All of the extant, native occurrences were known at the time of listing, although each occurrence was not specifically described in the final listing rule (63 FR 54956, October 13, 1998). The majority of these occurrences are in the vicinity of Vail Lake and Oak Mountain, which is described within the final listing rule as one of the main geographical areas occupied by the species. As discussed in the *Background* section of this proposed rule, our Western Riverside County MSHCP database contains 32 records of extant *Berberis nevinii* occurrences from the vicinity of Vail Lake/Oak Mountain alone, as well as one record from the Soboba Badlands. However, many of the MSHCP records overlap and some appear to duplicate CNDDB records. Accompanying data, such as number of plants, origin (native versus cultivated), and habitat associations are largely lacking, making it impossible to accurately quantify the actual number of distinct occurrences or plants in this area (Service 2004, pp. 330-331). We also do not know the specific location of many of these occurrences. Therefore, we did not rely on the MSHCP occurrences for determining critical habitat, but rather we are seeking additional information to clarify these records (see *Public Comments Solicited* section). Of the 19 extant, native occurrences in the CNDDB (2006), we consider only six in Riverside County in the vicinity of Vail Lake/Oak Mountain to meet our criteria for designating critical habitat (CNDDB element occurrences 24, 31, 32, 35, 36, and 38). Five of the six occurrences consist of more than two individuals, and evidence of reproduction (multiple size classes, seedlings, and/or fruit with seed) is known for three of the occurrences (CNDDB element occurrences 24, 31, and 38). We do not know if reproduction has occurred at the other three sites (CNDDB element occurrences 32, 35, and 36), but we believe that it is possible given that these occurrences represent some of the largest groupings of the species. While we propose the areas that support these occurrences as critical habitat, we are seeking additional information on the reproductive status and exact numbers of individuals per stand (see *Public Comments Solicited* section). For a detailed description of each of these six occurrences, see the *Proposed Critical Habitat Designation* section of this proposed rule. We do not have adequate information to determine the status of six *Berberis nevinii* occurrences recorded in the CNDDB (2006). Three occurrences in Los Angeles County may be extant, but their existence has not been confirmed since the early to mid 1900s (two records in Arroyo Seco near Pasadena (CNDDB element occurrences 8 and 9) and one record in Big Tejunga Wash near San Fernando (CNDDB element occurrence 10), which may be mismapped). Three other occurrences have vague location descriptions and/or may be mismapped, including one in Los Angeles County (CNDDB element occurrence 18), one in Riverside County (CNDDB element occurrence 14), and one in San Diego County (CNDDB element occurrence 45). We are seeking additional information to verify and/or clarify these records (see *Public Comments Solicited* section). We evaluated whether geographically ( *e.g.* , Los Angeles and San Bernardino Counties) peripheral native occurrences would fit into our criteria for identifying critical habitat. Despite the biological conservation arguments raised by Lesica and Allendorf (1995; p. 753, 754) to conserve peripheral populations, we found that these *Berberis nevinii* occurrences did not meet our criteria for designation of critical habitat because they consisted of very few individuals (often only one) and did not appear to be reproducing. For example, the Lopez Canyon (CNDDB element occurrence 43) and Scott Canyon (CNDDB element occurrence 5) occurrences each consist of only a single large
(old)individual with no signs of past or current reproduction by seed (CNDDB element occurrences 43 and 5). The San Timoteo Canyon occurrence (CNDDB element occurrence 4) has an unknown number of individuals (potentially only one), and reproduction has likely not occurred at this site in many decades (Sanders 2006). We also considered the ecological uniqueness of sites because occurrences within unique habitats may harbor genetic diversity that allows for persistence in these areas (Lesica and Allendorf 1995, p. 757). We determined that ecologically unique habitats were essential to conservation of *Berberis nevinii* , and we included these areas in proposed critical habitat if they were occupied by more than a single large ( *i.e.* , mature) individual. Areas occupied by only one large individual represent sites where regeneration is not occurring; thus, we did not consider these areas to be essential to conservation of the species. We also evaluated whether maintaining adjacent unoccupied habitat or corridors between occurrences may be important to facilitate and allow for pollination and seed dispersal within and between stands of *Berberis nevinii.* However, we do not have any information that suggests a certain quantity of habitat is necessary to maintain the pollinator species associated with *B. nevinii* occurrences. The few available reports actually noted that the genus *Berberis* is pollinated by generalist species, such as honey bees (Lebuhn and Anderson 1994, p. 259; Mussen 2002, unpaginated). It may also be necessary to maintain the natural fire regime associated with this species’ habitat. However, sufficient information is not available to quantify the extent of the area necessary to maintain the natural fire regime for particular *B. nevinii* occurrences. Therefore, we are unable to fully incorporate these areas into our identification of essential habitat. The Vail Lake/Oak Mountain area has the largest number of extant, native *Berberis nevinii* , which are located in numerous scattered stands. Because an extreme catastrophic event could wipe out one or more stands of *B. nevinii* , protecting multiple stands throughout this area may be important to the long-term conservation of the species. The areas that we are proposing as critical habitat are scattered to the north, south, and east of Vail Lake, which may provide some protection against complete loss of the species from this locality due to a catastrophic event, such as flooding or high intensity fire. We delineated critical habitat unit boundaries in the following manner:
(1)We identified all areas known to be occupied at the time of listing and/or currently occupied by *Berberis nevinii* using location data in the CNDDB (2006);
(2)We classified each of these occurrences as to their origin (native or cultivated), status (extant or extirpated), number of plants, and evidence of reproduction, where possible;
(3)We determined which occurrences contain features essential to the conservation of the species using the criteria described above;
(4)Using GIS, we overlaid the occurrences identified in number 3 above on aerial imagery and compared the polygon locations for these occurrences with location information provided in field survey forms to narrow down and refine the location of *B. nevinii* occurrence polygons; and
(5)We then overlaid these occurrences with a series of 100 x 100 meter grid cells. Areas where the occurrence polygon intersected with a grid cell were retained. We used GIS soil and vegetation data to ensure that habitat within the grid cells containing the occurrence polygons contained one or more of the PCEs. Using aerial photography, we removed areas that did not contain any of the PCEs for the species ( *e.g.* , aquatic habitat in Vail Lake). Critical habitat designations were then described and mapped using Universal Transverse Mercator
(UTM)North American Datum 27 (NAD 27) coordinates. Areas meeting these criteria were then analyzed to determine if any existing conservation or management plans exist that benefit the species and their PCEs. *Berberis nevinii* is included as a covered species in the Western Riverside County MSHCP. As a result, occupied areas on private land within the area covered by the MSHCP (Plan Area) are being proposed for exclusion from the final designation of critical habitat for this species under section 4(b)(2) of the Act (see *Relationship of Critical Habitat to Approved Habitat Conservation Plans (HCPs)—Exclusion Under Section 4(b)(2) of the Act* for a detailed discussion). When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as buildings, paved areas, and other structures that lack PCEs for *Berberis nevinii.* The scale of the maps prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed areas. Any such structures and the land under them inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, Federal actions limited to these areas would not trigger section 7 consultation, unless they affect the species and/or primary constituent elements in adjacent critical habitat. We propose to designate critical habitat in areas that contain naturally occurring *Berberis nevinii* plants ( *i.e.* , not of cultivated origin or consisting of outplanted individuals). We have determined these areas were occupied at the time of listing and contain sufficient primary constituent elements
(PCEs)to support life history functions essential for the conservation of the species. No areas outside the geographical area occupied at the time of listing have been proposed for designation. Additionally, information provided in comments on the proposed critical habitat designation and draft economic analysis will be evaluated and considered in the development of the final designation for *B. nevinii.* Section 10(a)(1)(B) of the Act authorizes us to issue permits for the take of listed species incidental to otherwise lawful activities. An incidental take permit application must be supported by a habitat conservation plan
(HCP)that identifies conservation measures that the permittee agrees to implement for the species to minimize and mitigate the impacts of the requested incidental take. We often exclude non-Federal public lands and private lands that are covered by an existing operative HCP and executed implementation agreement
(IA)under section 10(a)(1)(B) of the Act from designated critical habitat because the benefits of exclusion outweigh the benefits of inclusion as discussed in section 4(b)(2) of the Act. All of the private land included in this proposed critical habitat designation is in the vicinity of Vail Lake and Oak Mountain and is covered by the Western Riverside County MSHCP. We are proposing to exclude private lands covered under the MSHCP from the final designation of critical habitat for *Berberis nevinii* because we believe that the benefits of exclusion outweigh the benefits of inclusion ( *See Relationship of Critical Habitat to Approved Habitat Conservation Plans (HCPs)—Exclusion Under Section 4(b)(2) of the Act* section for more details on the Western Riverside County MSHCP and a complete discussion and analysis of the benefits of exclusion and inclusion of these lands in the critical habitat designation). Special Management Considerations or Protection When designating critical habitat, we assess whether the areas determined to be occupied at the time of listing contain primary constituent elements that may require special management considerations or protection. As stated in the final listing rule (63 FR 54956, October 13, 1998), threats to the species include urban development, off-road vehicle use, human recreation ( *e.g.* , horseback riding), highway projects, fire management strategies (suppression measures, brush clearing) that alter natural fire processes to which native plant communities are adapted and which they require for long-term survival, and the introduction of invasive, nonnative plants that may compete with *Berberis nevinii* and/or contribute to combustible fuel loads (63 FR 54961). These threats can directly or indirectly result in the loss, modification, degradation, and/or fragmentation of *B. nevinii* habitat, thereby eliminating or reducing potential habitat for seed germination, seedling establishment, plant growth and maturation, and/or population growth. Individually or combined, these threats may require special management considerations or protection of the PCEs as addressed here and in more detail within the individual critical habitat unit descriptions that follow. Urbanization, flood control measures, road widening, and habitat degradation from extensive recreational use have contributed to the loss of *Berberis nevinii* habitat and have apparently resulted in the extirpation of several occurrences, particularly within the San Fernando Valley of Los Angeles County (63 FR 54961). Urbanization may destroy, degrade, fragment, or otherwise alter the topography, soil, and vegetation community structure in ways that make areas less suitable for *B. nevinii.* Land grading for residential development and road projects may affect the topography of the site (PCE 1); alter soil composition and structure (PCE 2); change vegetation community composition and structure through clearing or thinning of vegetation and the introduction of nonnative plants (PCE 3); increase erosion potential (PCE 1 and 2); and change hydrological (drainage and water infiltration) patterns, thereby decreasing the quality and extent of available habitat for *B. nevinii.* Additionally, urban development near this species may increase the frequency of fire. No urban development is expected to directly impact the known occurrences of *B. nevinii* on Federal or private land in the vicinity of Vail Lake and Oak Mountain, although indirect impacts associated with increased urbanization may occur. Recreational activities may also impact the physical and biological features determined to be essential for conservation of the species by destroying, degrading, fragmenting, or otherwise altering the topography, soil, and vegetation community in ways that make areas less suitable for *Berberis nevinii.* For example, off-highway vehicle use, hiking, camping, horseback riding, and recreational facility development in or near *B. nevinii* occurrences could alter or destroy surface and subsurface structure through trampling and clearing or thinning of vegetation, and the introduction of nonnative plants (PCE 3), soil disturbance and/or compaction (PCE 2), and increased erosion and changes to hydrological (drainage and water infiltration) patterns, which may in turn affect the topography, soil, and vegetation of the site (PCE 1, 2, and 3). Activities associated with fire management, such as fuel treatments, prescribed burns, and wildfire suppression, may also impact the physical and biological features essential for conservation of the species. The creation of firebreaks, brush clearing or thinning, and the use of heavy equipment and off-road vehicles for fire management could physically remove or disturb soils and alter soil composition (PCE 2), remove or destroy vegetation (PCE 3), increase erosion, and alter the topography (PCE 1) and hydrologic patterns in or near *Berberis nevinii* occurrences. Fire management activities could facilitate the incursion or spread of invasive, nonnative plants by potentially creating (disturbance) conditions that increase the competitive edge of nonnative species over native species, thereby altering the composition of the vegetation community (PCE 3). Prescribed fires that are too frequent or that occur at times of the year atypical of the natural fire regime could also result in changes to vegetation community and structure (PCE 3). Alternatively, if fire management activities are successful in keeping fire from the landscape, and high canopy cover ensues, plant species that require full or partial sun ( *i.e.* , canopy gaps) to effectively establish may become underrepresented in the plant community, as will those plants that require fire for seed germination. Proposed Critical Habitat Designation We are proposing one unit as critical habitat for *Berberis nevinii* : the Agua Tibia/Vail Lake unit. This critical habitat unit is further divided into six subunits. The critical habitat unit and subunits described below constitute our best assessment at this time of areas that:
(1)Have extant, native occurrences consisting of more than two *B. nevinii* plants with evidence of reproduction; and
(2)contain some or all of the primary constituent elements that may require special management considerations or protection. All of these units were occupied at the time of listing and are currently occupied to the best of our knowledge. Table 2 identifies the approximate area (ac/ha) of proposed critical habitat for *B. nevinii* , and the areas being considered for exclusion from the final critical habitat designation under section 4(b)(2) of the Act. Areas proposed for exclusion are those areas covered under the Western Riverside County MSHCP ( *see Relationship of Critical Habitat to Approved Habitat Conservation Plans (HCPs)—Exclusion Under Section 4(b)(2) of the Act* section for a detailed discussion). Table 3 identifies the occupancy status for each unit. Table 2.—Areas Proposed for Critical Habitat Designation for Berberis Nevinii, and Areas Being Considered for Exclusion From the Final Critical Habitat Designation Under Section 4(b)(2) of the Act. Critical habitat unit Land ownership Area proposed as critical habitat Area being considered for exclusion from final critical habitat 1. Agua Tibia/Vail Lake: 1A. Big Oak Mountain Summit BLM 15 ac (6 ha) 0 ac (0 ha) 1B. Agua Tibia Mountain Foothills USFS Private 17 ac (7 ha) 5 ac (2 ha) 0 ac (0 ha) 5 ac (2 ha) 1C. South Flank Big Oak Mountain Private 87 ac (35 ha) 87 ac (35 ha) 1D. North of Vail Lake Private 22 ac (9 ha) 22 ac (9 ha) 1E. South of Vail Lake/Peninsula Private 251 ac (102 ha) 251 ac (102 ha) 1F. Temecula Creek East Private 20 ac (8 ha) 20 ac (8 ha) Total 417 ac (169 ha) 385 ac (156 ha) Table 3.—Occupancy of Critical Habitat Units Designated for Berberis nevinii. Critical habitat subunit Occupied at time of listing? Occupied currently? Acres (hectares) Subunit 1A: Big Oak Mountain Summit Yes Yes 15
(6)Subunit 1B: Agua Tibia Mountain Foothills Yes Yes 22
(9)Subunit 1C: South Flank Big Oak Mountain Yes Yes 87
(35)Subunit 1D: North of Vail Lake Yes Yes 22
(9)Subunit 1E: South of Vail Lake/Peninsula Yes Yes 251
(102)Subunit 1F: Temecula Creek East Yes Yes 20
(8)Total 417
(169)Below, we present brief descriptions of the proposed subunits and reasons why they meet the definition of critical habitat for *Berberis nevinii.* Unit 1: Agua Tibia/Vail Lake Unit 1 comprises approximately 417 ac (169 ha) and is divided into six subunits: Big Oak Mountain Summit (1A), Agua Tibia Mountain Foothills (1B), South Flank Big Oak Mountain (1C), North of Vail Lake (1D), South of Vail Lake/Peninsula (1E), and Temecula Creek East (1F). These lands in Unit 1 contain the PCEs for *Berberis nevinii* and also may be important for maintaining genetic diversity for the species as they include occurrences in ecologically unique areas. Subunit 1A: Big Oak Mountain Summit Subunit 1A consists of approximately 15 ac (6 ha) located on Big Oak Mountain to the north of Vail Lake in southern Riverside County. This subunit consists entirely of federally owned land managed by BLM. Two *Berberis nevinii* individuals of different sizes
(ages)are known to occur in this unit on the summit of Big Oak Mountain at approximately 2,700 ft (823 m) elevation ( *i.e.* , the lower edge of the marine layer) (PCE 1 and 3). One individual is an old plant that is covered in lichens, and the other individual is considerably smaller and at some distance to the northeast of the older plant. This location is considered unusual ( *i.e.* , ecologically unique) for the species in that it is at higher elevation and on relatively flat clay lenses consisting of heavy adobe/gabbro type soils with high water-holding capacity, derived from Mesozoic basic intrusive rock (PCE 2) (Soza 2003). Soils in this area are classified primarily as Auld clay, 8 to 15 percent slopes, and Las Posas loam, 8 to 15 percent slopes, eroded (PCE 2) (Service GIS data 2006). This occurrence is located in an open grassland area with chaparral nearby. Associated plant species include *Chenopodium californicum* , *Avena fatua* , *Harpagonella palmeri* , *Plantago erecta* , *Galium porrigens* , and *Delphinium* species. We are proposing this subunit as critical habitat even though it is occupied by only two *Berberis nevinii* plants because it represents an ecologically unique site for the species and contains the features essential to the conservation of *B. nevinii.* Additionally, this site contains naturally-occurring *B. nevinii* of different sizes (ages), indicative of successful reproduction in the past. Because this occurrence is on an ecologically unique site, this subunit may be important in terms of preserving genetic diversity throughout the range of the species. *Berberis nevinii* occupied this subunit at the time of listing, as identified in the final listing rule (63 FR 54956, October 13, 1998). Bureau of Land Management land on Big Oak Mountain consists of three small parcels totaling 888 ac (360 ha), which is surrounded by private land. The primary threats to *Berberis nevinii* habitat in this area that may require special management considerations or protection of the PCEs are the indirect effects of urban/residential development, such as increased human recreation; incursion or spread of invasive, nonnative plants; and changes to the natural fire regime ( *i.e.* , increased ignitions and fire frequency, and shortened fire return intervals that can lead to type conversion of shrublands to annual grasslands). The BLM Resource Management Plan indicates that these parcels are closed to motorized vehicles and livestock grazing (BLM 1994, p. 28). Special management considerations or protection of the PCEs may be required to minimize disturbance to the vegetation and soils within this subunit; control invasive, nonnative plants; and maintain the natural hydrologic and fire regime of the area. While this site falls within the Conservation Area for the Western Riverside County MSHCP, this area is federal land managed by BLM. Therefore, we are not proposing BLM-managed lands within this subunit for exclusion under section 4(b)(2) of the Act. Subunit 1B: Agua Tibia Mountain Foothills Subunit 1B consists of approximately 22 ac (9 ha) located near the Agua Tibia Wilderness Area in southern Riverside County. This subunit consists of 17 ac (7 ha) of federally owned land managed by the USFS (Cleveland National Forest) and 5 ac (2 ha) of private land. Five *Berberis nevinii* individuals are known from this area and are located at the edge of a stream channel (PCE 1) growing in association with coast live oak and riparian woodland species (PCE 3). Nearby chaparral includes such species as *Quercus berberidifolia* , *Adenostoma fasciculatum* , and *Haplopappus squarrosus* , and nearby desert species include *Yucca schidigera* (CNDDB 2006). These *B. nevinii* plants are growing under a canopy of *Quercus agrifolia* and *Platanus racemosa* with the following species: *Heteromeles arbutifolia* , *Q. berberidifolia* , *Elymus condensatus* , *Mimulus aurantiacus* , *Lonicera subspicata* , *Pterostegia drymarioides* , and *Epilobium canum.* Soils in this area are classified as gullied land and coarse sandy loam of the Hanford series, 8 to 15 percent slopes, eroded (PCE 2) (Service GIS data 2006). We are proposing this subunit as critical habitat because it contains features essential to conservation of *Berberis nevinii* and it contains a relatively large natural occurrence of the species. Additionally, Service personnel visited this site in June 2006 while *B. nevinii* was in fruit, and found that several of the fruits had three to four seeds, which may be significant for a species that appears to rarely set seed. *Berberis nevinii* occupied this subunit at the time of listing, as identified in the final listing rule (63 FR 54956, October 13, 1998). The *Berberis nevinii* occurrence on Cleveland National Forest lands is not as well protected as the occurrence on the Angeles National Forest (USFS 2005, p. 238). Threats to *B. nevinii* habitat in this area are associated with the proximity of State Highway 79 and include recreational impacts (off-road vehicle use, shooting) and increased risk of fire ignition (USFS 2005, p. 232). Off-road vehicle use has occurred adjacent to Highway 79, close to but not within occupied habitat. Additionally, this occurrence has shown signs of disturbance from road activities (USFS 2005, p. 235), and Highway 79 is proposed for realignment (USFWS 2004, p. 332), which could adversely affect this occurrence. The USFS does not anticipate that the magnitude of impacts related to camping and hiking will be substantial, and these impacts will be avoided or mitigated by use of Forest Plan standards (USFS 2005, p. 234). Also, invasive, nonnative plants may pose a threat to *B. nevinii* habitat quality at this site. One of the greatest threats to occupied habitat on the Cleveland National Forest is from wildland fire and the management of fire and fuels ( *i.e.* , fire suppression and prevention activities). The Wildland-Urban Interface
(WUI)Defense Zone overlaps about 43 percent of occupied habitat on Cleveland National Forest (USFS 2005, p. 237; USFWS 2005, p. 127). Some plants and/or habitat within the WUI Defense Zone could be removed or degraded under the Revised Land and Resource Management Plan due to fuel removal for fire protection or overly frequent fuel treatments (USFWS 2005, p. 127). Special management considerations or protection of the PCEs may be required to minimize disturbance to the vegetation and soils within this subunit; control invasive, nonnative plants; and maintain the natural fire regime of the area. This subunit falls within the Conservation Area for the Western Riverside County MSHCP; however, the majority of this subunit is Federal land managed by the USFS. Therefore, we are not proposing USFS lands within this subunit for exclusion under section 4(b)(2) of the Act. On the other hand, we are proposing to exclude the private lands within this subunit from the final designation of critical habitat for *Berberis nevinii.* Please see *Relationship of Critical Habitat to Approved Habitat Conservation Plans (HCPs)—Exclusion Under Section 4(b)(2) of the Act—Western Riverside County Multiple Species Habitat Conservation Plan* for a detailed discussion. Subunit 1C: South Flank Big Oak Mountain Subunit 1C consists of approximately 87 ac (35 ha) of private land located north of Vail Lake on the south flank of Big Oak Mountain in southern Riverside County. This occurrence is mapped as four small subpopulations by CNDDB (2006); while the total number of plants is unknown, 17 *Berberis nevinii* plants were attributed to one of the subpopulations based on a 1989 survey (CNDDB 2006). *Berberis nevinii* individuals in this area are found on south-facing drainage bottoms in chaparral and sage scrub vegetation communities (PCE 1 and 3) (CNDDB 2006). Associated species include *Adenostoma fasciculatum* , *Arctostaphylos glauca* , *Artemisia californica* , and *Brickellia californica.* Soils in this area are classified primarily as Cajalco rocky fine sandy loam, 15 to 50 percent slopes, eroded; with Las Posas rocky loam, 15 to 50 percent slopes, severely eroded; and Auld clay, 8 to 15 percent slopes to a lesser extent (PCE 2) (Service GIS data 2006). We are proposing this subunit as critical habitat because it contains features essential to conservation of *Berberis nevinii* , and it contains a relatively large natural occurrence of the species (CNDDB 2006). This subunit has one of several relatively large occurrences (potentially the second largest) of *B. nevinii* in the Vail Lake area and thus has a greater potential for regeneration by seed. This site may also be ecologically unique for the species; Boyd and others (1989, p. 14) indicated that *B. nevinii* located in canyons draining the south flank of Big Oak Mountain are associated with springs or seepages, which appears to be unusual for the species. *Berberis nevinii* occupied this subunit at the time of listing, as identified in the final listing rule (63 FR 54956, October 13, 1998). The primary threats to *Berberis nevinii* habitat in this area that may require special management considerations or protection of the PCEs are the indirect effects of urban/residential development, such as increased human recreation; erosion; incursion or spread of invasive, nonnative plants; and changes to the natural fire regime ( *i.e.* , increased ignitions and fire frequency and shortened fire return intervals) that can lead to type conversion of shrublands to annual grasslands. This subunit falls within the Conservation Area for the Western Riverside County MSHCP, and we are proposing to exclude the private lands within this subunit from the final designation of critical habitat for *B. nevinii.* Please see *Relationship of Critical Habitat to Approved Habitat Conservation Plans (HCPs)—Exclusion Under Section 4(b)(2) of the Act—Western Riverside County Multiple Species Habitat Conservation Plan* for a detailed discussion. Subunit 1D: North of Vail Lake Subunit 1D consists of approximately 22 ac (9 ha) of private land located immediately north of Vail Lake in southern Riverside County. This occurrence is mapped along a canyon just above the highwater line of Vail Lake, and consists of seven plants based on a 1989 survey (CNNDB 2006). *Berberis nevinii* individuals in this area are found in sandy and gravelly soils in a drainage bottom (PCE 1 and 2). The vegetation community is classified as coastal scrub and valley foothill riparian (PCE 3) (Service GIS data 2006). At this site, *B. nevinii* is associated with *Adenostoma fasciculatum* , *Arctostaphylos glauca* , *Rhus integrifolia* , *Juniperus californica* , and *Rhamnus crocea* ; and to the north is a large grove of *Prosopis glandulosa* (CNDDB 2006). Soils in this area are classified as badland (PCE 2) (Service GIS data 2006). We are proposing this subunit as critical habitat because it contains features essential to conservation of *Berberis nevinii* , and it contains a relatively large natural occurrence of the species (CNDDB 2006). This subunit is important for conserving *B. nevinii* as it is one of several relatively large occurrences in the Vail Lake area and thus has a greater potential for regeneration by seed. *Berberis nevinii* occupied this subunit at the time of listing, as identified in the final listing rule (63 FR 54956, October 13, 1998). The primary threats to *Berberis nevinii* habitat in this area that may require special management considerations or protection of the PCEs are the indirect effects of urban/residential development, such as increased human recreation; erosion; incursion or spread of invasive, nonnative plants; and changes to the natural fire regime ( *i.e.* , increased ignitions and fire frequency, and shortened fire return intervals that can lead to type conversion of shrublands to annual grasslands). This subunit falls within the Conservation Area for the Western Riverside County MSHCP, and we are proposing to exclude the private lands within this subunit from the final designation of critical habitat for *B. nevinii.* Please see *Relationship of Critical Habitat to Approved Habitat Conservation Plans (HCPs)—Exclusion Under Section 4(b)(2) of the Act—Western Riverside County Multiple Species Habitat Conservation Plan* for a detailed discussion. Subunit 1E: South of Vail Lake/Peninsula Subunit 1E consists of approximately 251 ac (102 ha) of private land located on the south and southwest side of Vail Lake in southern Riverside County. This site has the largest known natural occurrence of *Berberis nevinii* , collectively consisting of 134 plants based on a 1987 survey (Boyd 1987, pp. 7, 61-72; CNDDB 2006). These plants are located in several stands along both sides of the southwest arm of Vail Lake, the south shore and peninsula, and part of the west shore of the southeast arm of Vail Lake. *Berberis nevinii* individuals in this area are found in canyons, in a wash of 15 percent slope, and on north-facing ridges and slopes between 35 and 70 percent slope (PCE 1) (Boyd 1987, p. 61-72; CNDDB 2006), primarily in association with coastal scrub, mixed chaparral, and valley foothill riparian communities (PCE 3) (Service GIS data 2006). Associated species include, but are not limited to: *Artemisia californica, Adenostoma fasciculatum, Eriogonum fasciculatum, Salvia mellifera, Rhamnus crocea, Rhus ovata, Encelia farinosa, Baccharis glutinosa* , and *Yucca* sp. (Boyd 1987, p. 61-72). Soils in this area are classified as sandy loams (Arlington and Greenfield fine sandy loams, 8 to 15 percent slopes, eroded; Cajalco rocky fine sandy loam, 15 to 50 percent slopes, eroded; Hanford coarse sandy loam, 8 to 15 percent slopes, eroded; Lodi rocky loam, 25 to 50 percent slopes, eroded; Monserate sandy loam, 8 to 15 percent slopes, eroded; Monserate sandy loam, 15 to 25 percent slopes, severely eroded; Pachappa fine sandy loam, 2 to 8 percent slopes, eroded), gullied land, riverwash, and rough broken land (PCE 2) (Service GIS data 2006). We are proposing this subunit as critical habitat because it contains features essential to conservation of *Berberis nevinii* , and it contains the largest known natural occurrence of the species (CNDDB 2006). This location also contains the bulk of known individuals in the Vail Lake/Oak Mountain area. Additionally, we interpret that reproduction has occurred at this site in the past based on the presence of several size
(age)classes. *Berberis nevinii* occupied this subunit at the time of listing, as identified in the final listing rule (63 FR 54956, October 13, 1998). The primary threats to *Berberis nevinii* habitat in this area that may require special management considerations or protection of the PCEs are the indirect effects of urban/residential development, such as increased human recreation; erosion; incursion or spread of invasive, nonnative plants (including *Tamarix* sp. and *Nicotiana glauca* ) that can compete with native plant species; and changes to the natural fire regime ( *i.e.* , increased ignitions and fire frequency and shortened fire return intervals) that can lead to type conversion of shrublands to annual grasslands). Part of this occurrence has burned in the past, and regeneration by stump sprouting has been observed (CNDDB 2006). Part of this area is fairly inaccessible, except by boat; however, other parts are in close proximity to roads, equestrian trails, and the boat launch area (Boyd 1987, pp. 61-72; CNDDB 2006), and thus may be more heavily impacted by recreational use. Rising lake levels could also adversely affect those individuals occurring adjacent to the lake (Boyd 1987, pp. 61-72; CNNDB 2006). This site falls within the Conservation Area for the Western Riverside County MSHCP, and we are proposing to exclude the private lands within this subunit from the final designation of critical habitat for *B. nevinii.* Please see *Relationship of Critical Habitat to Approved Habitat Conservation Plans (HCPs)—Exclusion Under Section 4(b)(2) of the Act—Western Riverside County Multiple Species Habitat Conservation Plan* for a detailed discussion. Subunit 1F: Temecula Creek East Subunit 1F consists of approximately 20 ac (8 ha) of private land located southeast of Vail Lake on the north side of Temecula Creek in Riverside County. This occurrence is mapped as two small subpopulations; while the total number of plants is unknown, three plants were attributed to one of the subpopulations based on a 1989 survey (CNDDB 2006). *Berberis nevinii* individuals in this area are found on a bank adjacent to a dry wash (PCE 1) in a mixed chaparral community (CNDDB 2006) with coastal scrub and annual grassland components (PCE 3) (Service GIS data 2006). Associated species include *Adenostoma fasciculatum, Rhamnus crocea, Eriogonum fasciculatum, Rhus ovata,* and *Lonicera subspicata.* Fine, sandy soils are characteristic of the area (CNDDB 2006), and soils are classified as Badland and San Timoteo loam, 8 to 15 percent slopes, eroded (PCE 2) (Service GIS data 2006). We are proposing this subunit as critical habitat because it contains features essential to conservation of *Berberis nevinii* , and it contains a relatively large natural occurrence of the species (CNDDB 2006). This subunit may be important for conserving *B. nevinii* as it is one of several relatively large occurrences in the Vail Lake area, and thus has a greater potential for regeneration by seed. *Berberis nevinii* occupied this subunit at the time of listing, as identified in the final listing rule (63 FR 54956, October 13, 1998). The primary threats to *Berberis nevinii* habitat in this area that may require special management considerations or protection of the PCEs are the indirect effects of urban/residential development, such as increased human recreation; erosion; incursion or spread of invasive, nonnative plants; and changes to the natural fire regime ( *i.e.* , increased ignitions and fire frequency and shortened fire return intervals) that can lead to type conversion of shrublands to annual grasslands. This site falls within the Conservation Area for the Western Riverside County MSHCP, and we are proposing to exclude the private lands within this subunit from the final designation of critical habitat for *B. nevinii.* Please see *Relationship of Critical Habitat to Approved Habitat Conservation Plans (HCPs)—Exclusion Under Section 4(b)(2) of the Act—Western Riverside County Multiple Species Habitat Conservation Plan* for a detailed discussion. Effects of Critical Habitat Designation Section 7 Consultation Section 7 of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. In our regulations at 50 CFR 402.02, we define destruction or adverse modification as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” However, recent decisions by the 5th and 9th Circuit Court of Appeals have invalidated this definition (see *Gifford Pinchot Task Force* v. *U.S. Fish and Wildlife Service* , 378 F.3d 1059 (9th Cir 2004) and *Sierra Club* v. *U.S. Fish and Wildlife Service* *et al.* , 245 F.3d 434, 442F (5th Cir 2001)). Pursuant to current national policy and the statutory provisions of the Act, destruction or adverse modification is determined on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the primary constituent elements to be functionally established) to serve the intended conservation role for the species. Section 7(a) of the Act requires Federal agencies, including the Service, to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is proposed or designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. This is a procedural requirement only. However, once a proposed species becomes listed, or proposed critical habitat is designated as final, the full prohibitions of section 7(a)(2) apply to any Federal action. The primary utility of the conference procedures is to maximize the opportunity for a Federal agency to adequately consider proposed species and critical habitat and avoid potential delays in implementing their proposed action because of the section 7(a)(2) compliance process, should those species be listed or the critical habitat designated. Under conference procedures, the Service may provide advisory conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The Service may conduct either informal or formal conferences. Informal conferences are typically used if the proposed action is not likely to have any adverse effects to the proposed species or proposed critical habitat. Formal conferences are typically used when the Federal agency or the Service believes the proposed action is likely to cause adverse effects to proposed species or critical habitat, inclusive of those that may cause jeopardy or adverse modification. The results of an informal conference are typically transmitted in a conference report while the results of a formal conference are typically transmitted in a conference opinion. Conference opinions on proposed critical habitat are typically prepared according to 50 CFR 402.14, as if the proposed critical habitat were designated. We may adopt the conference opinion as the biological opinion when the critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)). As noted above, any conservation recommendations in a conference report or opinion are strictly advisory. If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. As a result of this consultation, compliance with the requirements of section 7(a)(2) will be documented through the Service's issuance of:
(1)A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2)a biological opinion for Federal actions that are likely to adversely affect listed species or critical habitat. When we issue a biological opinion concluding that a project is likely to result in jeopardy to a listed species or the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. “Reasonable and prudent alternatives” are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid jeopardy to the listed species or destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where a new species is listed or critical habitat is subsequently designated that may be affected and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions may affect subsequently listed species or designated critical habitat or adversely modify or destroy proposed critical habitat. Federal activities that may affect *Berberis nevinii* or its designated critical habitat will require section 7 consultation under the Act. Activities on State, Tribal, local, or private lands requiring a Federal permit (such as a permit from the Army Corps of Engineers under section 404 of the Clean Water Act or a permit under section 10(a)(1)(B) of the Act from the Service) or involving some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency) will also be subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat, and actions on State, Tribal, local, or private lands that are not federally funded, authorized, or permitted, do not require section 7 consultations. Application of the Jeopardy and Adverse Modification Standards for Actions Involving Effects to Berberis nevinii and Its Critical Habitat Jeopardy Standard The Service applies an analytical framework for *Berberis nevinii* jeopardy analyses that relies heavily on the importance of core area populations to the survival and recovery of *B. nevinii.* The section 7(a)(2) analysis is focused not only on these populations but also on the habitat conditions necessary to support them. The jeopardy analysis usually expresses the survival and recovery needs of *Berberis nevinii* in a qualitative fashion without making distinctions between what is necessary for survival and what is necessary for recovery. Generally, if a proposed Federal action is incompatible with the viability of the affected core area population(s), inclusive of associated habitat conditions, a jeopardy finding is considered to be warranted, because of the relationship of each core area population to the survival and recovery of the species as a whole. Adverse Modification Standard For the reasons described in the Director's December 9, 2004 memorandum, the key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the primary constituent elements to be functionally established) to serve the intended conservation role for the species. Generally, the conservation role of *Berberis nevinii* critical habitat units is to support viable core area populations. Section 4(b)(8) of the Act requires us to briefly evaluate and describe in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat may also jeopardize the continued existence of the species. Activities that may destroy or adversely modify critical habitat are those that alter the PCEs to an extent that the conservation value of critical habitat for *Berberis nevinii* is appreciably reduced. Activities that, when carried out, funded, or authorized by a Federal agency, may affect critical habitat and therefore should result in consultation for *B. nevinii* include, but are not limited to:
(1)Activities that would directly or indirectly impact *Berberis nevinii* habitat and its PCEs. Such activities could include, but are not limited to: Residential or commercial development; fire prevention and suppression activities, such as the creation of firebreaks and brush clearing or thinning; off-road vehicle use; heavy recreational use; placement of recreational trailheads and facilities; road development, maintenance, or improvement projects, such as road grading, widening, or realignment; and flood control projects, such as vegetation stripping. These activities could change the physical and biological features of the habitat by affecting the topography of the site; by physically removing or damaging soils and associated vegetation; by altering the natural hydrology of the area; and by introducing and facilitating the spread of invasive, nonnative plant species.
(2)Activities that would alter fire frequency in areas occupied by *Berberis nevinii.* Such activities could include, but are not limited to, prescribed burns that are too frequent or poorly timed. These activities could reduce the ability of *B. nevinii* to grow and reproduce by altering soil and vegetation community structure and composition ( *e.g.* , type conversion of shrublands into grasslands).
(3)Activities that would foster the introduction or spread of nonnative vegetation. These activities could include, but are not limited to: Seeding areas with nonnative species following a fire; planting nonnative species or using non-weed free hay straw for slope, bank, and soil erosion control; and ground-disturbing activities, such as road maintenance, improvement, or construction projects. These activities could reduce the ability of *Berberis nevinii* to grow and reproduce because nonnative plant species may crowd out or otherwise compete with *B. nevinii.* Additionally, an increase in nonnative plants could change the fire regime by creating conditions prone to frequent fire ( *e.g.* , increased fuel loads and continuous fuel beds) and by altering soil composition. All lands proposed as critical habitat for *Berberis nevinii* , including those that have been proposed for exclusion from the final designation, contain features essential to conservation of the species. All of the subunits proposed for designation are within the geographical range of the species, were known to be occupied at the time of listing, and are currently occupied by *B. nevinii* . Federal agencies already consult with us on activities in areas occupied by *B. nevinii* , and if the species may be affected by the action, to ensure that their actions do not jeopardize the continued existence of *B. nevinii* . Exclusions Under Section 4(b)(2) of the Act There are multiple ways to provide protection and management for species’ habitat. Statutory and regulatory frameworks that exist at a local level can provide such protection and management, as can lack of pressure for change, such as areas too remote for anthropogenic disturbance. Finally, State, local, or private management plans as well as management under Federal agencies’ jurisdictions can provide protection and management that may lessen or even eliminate any appreciable benefit to a designation of critical habitat. When we consider a plan to determine its adequacy in protecting habitat, we consider whether the plan, as a whole will provide the same level of protection that designation of critical habitat would provide. The plan need not lead to exactly the same result as a designation in every individual application, as long as the protection it provides is equivalent, overall. In making this determination, we examine whether the plan provides management, protection, or enhancement of the PCEs that is at least equivalent to that provided by a critical habitat designation, and whether there is a reasonable expectation that the management, protection, or enhancement actions will continue into the foreseeable future. Each review is particular to the species and the plan, and some plans may be adequate for some species and inadequate for others. Section 4(b)(2) of the Act states that critical habitat shall be designated and revised on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the Congressional record is clear that the Secretary is afforded broad discretion regarding which factor(s) to use and how much weight to give to any factor. Under section 4(b)(2) of the Act, in considering whether to exclude a particular area from the designation, we must identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and determine whether the benefits of exclusion outweigh the benefits of inclusion. If an exclusion is contemplated, then we must determine whether excluding the area would result in the extinction of the species. In the following sections, we address a number of general issues that are relevant to the exclusions we considered. In addition, the Service is conducting an economic analysis of the impacts of the proposed critical habitat designation and related factors, which will be available for public review and comment. Based on public comment on that document, the proposed designation itself, and the information in the final economic analysis, additional areas beyond those identified in this assessment may be excluded from critical habitat by the Secretary under the provisions of section 4(b)(2) of the Act. This is provided for in the Act, and in our implementing regulations at 50 CFR 242.19. Conservation Partnerships on Non-Federal Lands Most federally listed species in the United States will not recover without the cooperation of non-Federal landowners. More than 60 percent of the United States is privately owned (National Wilderness Institute 1995) and at least 80 percent of endangered or threatened species occur either partially or solely on private lands (Crouse *et al.* 2002). Stein *et al.*
(1995)found that only about 12 percent of listed species were found almost exclusively on Federal lands (90 to 100 percent of their known occurrences restricted to Federal lands) and that 50 percent of federally listed species are not known to occur on Federal lands at all. Given the distribution of listed species with respect to land ownership, conservation of listed species in many parts of the United States is dependent upon working partnerships with a wide variety of entities and the voluntary cooperation of many non-Federal landowners (Wilcove and Chen 1998, Crouse *et al.* 2002, James 2002). Building partnerships and promoting voluntary cooperation of landowners is essential to understanding the status of species on non-Federal lands and is necessary to implement recovery actions such as reintroducing listed species, habitat restoration, and habitat protection. Many non-Federal landowners derive satisfaction in contributing to endangered species recovery. The Service promotes these private-sector efforts through cooperative conservation. This is evident in Service programs such as HCPs, Safe Harbors Agreements, Candidate Conservation Agreements, Candidate Conservation Agreements with Assurances, and conservation challenge cost-share. Many private landowners, however, are wary of the possible consequences of encouraging endangered species to their property, and there is mounting evidence that some regulatory actions by the Federal government, while well-intentioned and required by law, can under certain circumstances have unintended negative consequences for the conservation of species on private lands (Wilcove *et al.* 1996; Bean 2002; Conner and Mathews 2002; James 2002; Koch 2002; Brook *et al.* 2003). Many landowners fear a decline in their property value due to real or perceived restrictions on land-use options where threatened or endangered species are found. Consequently, harboring endangered species is viewed by many landowners as a liability, resulting in anti-conservation incentives because maintaining habitats that harbor endangered species represents a risk to future economic opportunities (Main *et al.* 1999; Brook *et al.* 2003). The purpose of designating critical habitat is to contribute to the conservation of threatened and endangered species and the ecosystems upon which they depend. The outcome of the designation, triggering regulatory requirements for actions funded, authorized, or carried out by Federal agencies under section 7 of the Act, can sometimes be counterproductive to its intended purpose on non-Federal lands. According to some researchers, the designation of critical habitat on private lands significantly reduces the likelihood that landowners will support and carry out conservation actions (Main *et al.* 1999; Bean 2002; Brook *et al.* 2003). The magnitude of this negative outcome is greatly amplified in situations where active management measures (such as reintroduction, fire management, control of invasive species) are necessary for species conservation (Bean 2002). The Service believes that the judicious use of excluding specific areas of non-federally owned lands from critical habitat designations can contribute to species recovery and provide a superior level of conservation than critical habitat alone. The Department of the Interior's cooperative conservation policy is the foundation for developing the tools of conservation. These tools include conservation grants, funding for Partners for Fish and Wildlife Program, the Coastal Program, and cooperative-conservation challenge cost-share grants. Our Private Stewardship Grant program and Landowner Incentive Program provide assistance to private land owners in their voluntary efforts to protect threatened, imperiled, and endangered species, including the development and implementation of Habitat Conservation Plans. Conservation agreements with non-Federal landowners ( *e.g.* , HCPs, contractual conservation agreements, easements, and stakeholder-negotiated State regulations) enhance species conservation by extending species protections beyond those available through section 7(a)(2) consultations. In the past decade, we have encouraged non-Federal landowners to enter into conservation agreements, based on a view that we can achieve greater species conservation on non-Federal land through such partnerships than we can through coercive methods (61 FR 63854; December 2, 1996). Exclusions Under Section 4(b)(2) of the Act for Berberis nevinii After consideration under section 4(b)(2) of the Act, we are proposing to exclude the following areas from critical habitat for *Berberis nevinii* : private lands covered by the Western Riverside County MSHCP, which includes five ac (2 ha) of the Agua Tibia Mountain Foothills subunit (1B), and all of the South Flank Big Oak Mountain subunit
(1C)(87 ac (35 ha)), North of Vail Lake subunit
(1D)(22 ac (9ha)), South of Vail Lake/Peninsula subunit
(1E)(251 ac (102 ha)), and Temecula Creek East subunit
(1F)(20 ac (8ha)). We believe that:
(1)The private lands' value for conservation is preserved by existing protective action, or
(2)it is appropriate for exclusion pursuant to the “other relevant factor” provisions of section 4(b)(2) of the Act. We specifically solicit comment, however, on the inclusion or exclusion of such areas. A detailed analysis of our exclusion of these lands under section 4(b)(2) of the Act is provided below; starting with *General Principles of Section 7 Consultations Used in the 4(b)(2) Balancing Process.* We evaluated existing management plans relevant to Federal lands occurring within the boundaries of proposed critical habitat for *Berberis nevinii* ( *i.e.* , Subunit 1A and part of Subunit 1B). While Federal lands within subunits 1A and 1B fall within the Conservation Area for the Western Riverside County MSHCP, neither of the Federal land management agencies (USFS and BLM) is obligated to manage these lands in compliance with the MSHCP. Therefore, we have not identified any benefits of exclusion for USFS or BLM managed lands within Unit 1 (Subunit 1A and part of Subunit 1B) and are not proposing to exclude these lands under section 4(b)(2) of the Act. We also evaluated the USFS land management plan for the Cleveland National Forest and other relevant documents ( *i.e.* , USFS species management guide for *Berberis nevinii* and relevant MOUs) for potential exclusion under section 4(b)(2) of the Act. The USFS and Rancho Santa Ana Botanic Garden (Claremont, California) developed a species management guide for *B. nevinii* for the Angeles National Forest (Guide) (Mistretta and Brown 1989). The Guide provides management direction to the USFS for protecting the species while minimizing conflicts with other resource values and recommends specific actions, such as developing and implementing site-specific monitoring plans and surveying potential habitat for additional occurrences of *B. nevinii* (Mistretta and Brown 1989). However, this management guide was written for the Angeles National Forest, and thus does not provide specific guidance or recommendations for the *B. nevinii* occurrence on the Cleveland National Forest, which is included in this proposed critical habitat designation (Subunit 1B). On the other hand, a monitoring program was initiated in 1991 on the Angeles National Forest (Soza and Boyd 2000, p. 1), and the Angeles National Forest continues to utilize recommendations in the Guide when planning projects and managing ongoing activities (USFS 2005, p. 232). In 1997, a Memorandum of Understanding
(MOU)was signed between the Service, USFS Cleveland National Forest, and CDFG for a Conservation Strategy for Coastal Sage Scrub and Interdigitated Habitats (Strategy) (USDA, USDI, CDFG 1997). These agencies agreed to work cooperatively to protect and preserve coastal sage scrub and interdigitated sensitive habitats and their associated species on the Cleveland National Forest and contiguous lands. Specific actions under the Strategy included, but were not limited to: developing standards and guidelines which provide management that compliments surrounding habitat preserves; establishing landscape-scale fire management objectives to guide fire and vegetation management activities; and conferring with the Service and CDFG regarding land exchange and acquisition proposals (USDA, USDI, CDFG 1997, pp. 4-5). *Berberis nevinii* is recognized as a species associated with coastal sage scrub and chaparral communities in the geographic area covered by this MOU. However, the MOU does not make any decisions regarding site-specific project proposals that may be implemented by any of the signatories to the MOU, nor does it compel managers to implement any specific activity. The USFS recently completed Revised Land and Resource Management Plans for the Cleveland, Angeles, and two other National Forests in southern California (Forest Plans) (USDA 2005). The goal of the Forest Plans is to describe a strategic direction for the management of the National Forests over the next 10 to 15 years. The Forest Plans also divide the National Forests into several “Land Use Zones.” The Land Use Zones were designed to describe the type of public use or administrative activities allowable in certain areas. The Land Use Zone where *Berberis nevinii* occurs on the Cleveland National Forest is classified as Developed Area Interface, which typically has a higher level of human use and infrastructure than that found in other Land Use Zones. As such, the USFS considers this *B. nevinii* occurrence to be less protected than the San Francisquito Canyon occurrence on the Angeles National Forest (USFS 2005, p. 238). No new permanent loss of *B. nevinii* occupied habitat is expected under the Forest Plans with the potential exception of areas within the WUI Defense Zone, which overlaps about 40 percent of occupied *B. nevinii* habitat in the Cleveland National Forest (USFS 2005, p. 237; Service 2005, p. 128). Thus, fire and fuels management within or near the WUI defense zones could directly and indirectly affect *B. nevinii* and its PCEs. Overall, the Forest Plans provides general guidance on management of lands within the Cleveland National Forest. However, like the MOU mentioned previously, it does not make any decisions regarding USFS site-specific project proposals for implementation of the land resource management plan, nor does it compel managers to implement any specific activity. Thus, we have not identified any benefits of exclusion for USFS lands within Subunit 1B and are not proposing to exclude these lands under section 4(b)(2) of the Act. We also evaluated the existing BLM land management plan that covers BLM parcels on Big Oak Mountain (Subunit 1A). Direction for management of these parcels is provided in the South Coast Resource Management Plan
(RMP)for the California Desert District, Palm Springs South Coast Resource Area (BLM 1994). The goal of the RMP is to guide future management of approximately 296,000 acres of BLM-administered public lands within the South Coast Resource Area of southern California over the next 15 years (BLM 1994, pp. 1, 8). The RMP addresses five planning issues, one of which is related to threatened, endangered, and other sensitive species. The geographic area covered by this RMP is divided into four Management Areas, with Oak Mountain falling within the Riverside San Bernardino County Management Area. The RMP directs management of the Oak Mountain parcels for sensitive plant and wildlife species by acquiring and consolidating sensitive plant habitat. These parcels (totaling 888 acres) are closed to motorized vehicles and livestock grazing (BLM 1994, p. 28). While the RMP provides overall direction to the BLM for managing sensitive species and their habitat on BLM-administered land in the Oak Mountain area, it does not make any decisions regarding BLM site-specific project proposals for implementation of the land management plan, nor does it compel managers to implement any specific activity. Overall, the RMP provides general guidance that can either benefit or remain neutral to sensitive species. Additionally, the biological opinions that the Service issued on August 31, 1992, and November 22, 1993, for the preferred alternative of the South Coast RMP did not take into account effects to *Berberis nevinii* , which had not been federally listed yet. Thus, we have not identified any benefits of exclusion for BLM lands within Subunit 1A and are not proposing to exclude these lands under section 4(b)(2) of the Act. General Principles of Section 7 Consultations Used in the 4(b)(2) Balancing Process The most direct, and potentially largest, regulatory benefit of critical habitat is that federally authorized, funded, or carried out activities require consultation pursuant to section 7(a)(2) of the Act to ensure that they are not likely to destroy or adversely modify critical habitat. There are two limitations to this regulatory effect. First, it only applies where there is a Federal nexus—if there is no Federal nexus, designation itself does not restrict actions that destroy or adversely modify critical habitat. Second, it only limits destruction or adverse modification. By its nature, the prohibition on adverse modification is designed to ensure those areas that contain the physical and biological features essential to the conservation of the species or unoccupied areas that are essential to the conservation of the species are not eroded. Critical habitat designation alone, however, does not require specific steps toward recovery. Once consultation under section 7(a)(2) of the Act is triggered, the process may conclude informally when the Service concurs in writing that the proposed Federal action is not likely to adversely affect the listed species or its critical habitat. However, if the Service determines through informal consultation that adverse impacts are likely to occur, then formal consultation would be initiated. Formal consultation concludes with a biological opinion issued by the Service on whether the proposed Federal action is likely to jeopardize the continued existence of a listed species or result in destruction or adverse modification of critical habitat, with separate analyses being made under both the jeopardy and the adverse modification standards. For critical habitat, a biological opinion that concludes in a determination of no destruction or adverse modification may contain discretionary conservation recommendations to minimize adverse effects to primary constituent elements, but it would not contain any mandatory reasonable and prudent measures or terms and conditions. Mandatory measures and terms and conditions to implement such measures are only specified when the proposed action would result in the incidental take of a listed animal species. Reasonable and prudent alternatives to the proposed Federal action would only be suggested when the biological opinion results in a jeopardy or adverse modification conclusion. We also note that for 30 years prior to the Ninth Circuit Court's decision in *Gifford Pinchot Task Force* v. *U.S. Fish and Wildlife Service,* 378 F.3d 1059 (9th Cir 2004) (hereinafter *Gifford Pinchot* ), the Service conflated the jeopardy standard with the standard for destruction or adverse modification of critical habitat when evaluating federal actions that affect currently-occupied critical habitat. The Court ruled that the two standards are distinct and that adverse modification evaluations require consideration of impacts on the recovery of species. Thus, under the *Gifford Pinchot* decision, critical habitat designations may provide greater benefits to the recovery of a species. However, we believe the conservation achieved through implementing habitat conservation plans
(HCPs)or other habitat management plans is typically greater than would be achieved through multiple site-by-site, project-by-project, section 7(a)(2) consultations involving consideration of critical habitat. Management plans commit resources to implement long-term management and protection to particular habitat for at least one and possibly other listed or sensitive species. Section 7(a)(2) consultations only commit Federal agencies to prevent adverse modification to critical habitat caused by the particular project, and they are not committed to provide conservation or long-term benefits to areas not affected by the proposed project. Thus, any HCP or management plan which considers enhancement or recovery as the management standard will often provide as much or more benefit than a consultation for critical habitat designation conducted under the standards required by the Ninth Circuit in the *Gifford Pinchot* decision. The information provided in this section applies to all the discussions below that discuss the benefits of inclusion and exclusion of critical habitat in that it provides the framework for the consultation process. Educational Benefits of Critical Habitat A benefit of including lands in critical habitat is that the designation of critical habitat serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by clearly delineating areas of high conservation value for *Berberis nevinii* . In general the educational benefit of a critical habitat designation always exists, although in some cases it may be redundant with other educational effects. For example, HCPs have significant public input and may largely duplicate the educational benefit of a critical habitat designation. This benefit is closely related to a second, more indirect benefit: that designation of critical habitat would inform State agencies and local governments about areas that could be conserved under State laws or local ordinances. However, we believe that there would be little additional informational benefit gained from the designation of critical habitat for the exclusions we are proposing in this rule because these areas are included in this proposed rule as having habitat containing the features essential to the conservation of the species. Consequently, we believe that the informational benefits are already provided. Additionally, the purpose normally served by the designation, that of informing State agencies and local governments about areas that would benefit from protection and enhancement of habitat for *Berberis nevinii* , is already well established among State and local governments and Federal agencies in those areas that we proposing to exclude from critical habitat in this rule on the basis of other existing habitat management protections. The information provided in this section applies to all the discussions below that discuss the benefits of inclusion and exclusion of critical habitat. Benefits of Excluding Lands With HCPs or Other Approved Management Plans From Critical Habitat The benefits of excluding lands with HCPs or other approved management plans from critical habitat designation include relieving landowners, communities, and counties of any additional regulatory burden that might be imposed by a critical habitat designation. Most HCPs and other conservation plans take many years to develop, and upon completion are consistent with the recovery objectives for listed species that are covered within the plan area. Many conservation plans also provide conservation benefits to unlisted sensitive species. Imposing an additional regulatory review as a result of the designation of critical habitat may undermine these conservation efforts and partnerships designed to proactively protect species to ensure that listing under the Act will not be necessary. Designation of critical habitat within the boundaries of management plans that provide conservation measures for a species could be viewed as a disincentive to those entities currently developing these plans or contemplating them in the future, because one of the incentives for undertaking conservation is greater ease of permitting where listed species are affected. Addition of a new regulatory requirement would remove a significant incentive for undertaking the time and expense of management planning. In fact, designating critical habitat in areas covered by a pending HCP or conservation plan could result in the loss of some conservation benefits to the species if participants abandon the planning process, in part because of the strength of the perceived additional regulatory compliance that such designation would entail. The time and cost of regulatory compliance for a critical habitat designation do not have to be quantified for them to be perceived as additional Federal regulatory burden sufficient to discourage continued participation in plans targeting listed species’ conservation. A related benefit of excluding lands within management plans from critical habitat designation is the unhindered, continued ability to seek new partnerships with future plan participants including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement conservation actions that we would be unable to accomplish otherwise. If lands within approved management plan areas are designated as critical habitat, it would likely have a negative effect on our ability to establish new partnerships to develop these plans, particularly plans that address landscape-level conservation of species and habitats. By preemptively excluding these lands, we preserve our current partnerships and encourage additional conservation actions in the future. Furthermore, an HCP or NCCP/HCP application must itself be consulted upon, even without the critical habitat designation. Such a consultation would review the effects of all activities covered by the HCP that might adversely impact the species under a jeopardy standard, including possibly significant habitat modification (see definition of “harm” at 50 CFR 17.3). In addition, Federal actions not covered by the HCP in areas occupied by listed species would still require consultation under section 7(a)(2) of the Act and would be reviewed for possibly significant habitat modification in accordance with the definition of harm referenced above. The information provided in this section applies to all the discussions below that discuss the benefits of inclusion and exclusion of critical habitat. Relationship of Critical Habitat to Approved Habitat Conservation Plans (HCPs)—Exclusion Under Section 4(b)(2) of the Act Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP) We consider a current plan to provide adequate management or protection if it meets three criteria:
(1)The plan is complete and provides the same or better level of protection from adverse modification or destruction than that provided through a consultation under section 7 of the Act;
(2)there is a reasonable expectation that the conservation management strategies and actions will be implemented based on past practices, written guidance, or regulations; and
(3)the plan provides conservation strategies and measures consistent with currently accepted principles of conservation biology. We believe that the Western Riverside County MSHCP fulfills these criteria, and we are considering the exclusion of non-federal lands covered by this plan that provide for the conservation of *Berberis nevinii* . The Western Riverside County MSHCP is a large-scale, multi-jurisdictional habitat conservation plan
(HCP)that addresses 146 listed and unlisted “Covered Species,” including *Berberis nevinii* , within the 1.26-million ac (510,000 ha) Plan Area in western Riverside County. Participants in the MSHCP include 14 cities in western Riverside County; the County of Riverside, including the Riverside County Flood Control and Water Conservation Agency, Riverside County Transportation Commission, Riverside County Parks and Open Space District, and Riverside County Waste Department; California Department of Parks and Recreation; and the California Department of Transportation (Caltrans). The MSHCP was designed to establish a multi-species conservation program that minimizes and mitigates the expected loss of habitat and the incidental take of Covered Species. On June 22, 2004, the Service issued a single incidental take permit under section 10(a)(1)(B) of the Act to 22 Permittees under the MSHCP for a period of 75 years. The Service granted the participating jurisdictions “take authorization” of listed species in exchange for their contribution to the assembly and management of the MSHCP Conservation Area. The MSHCP will establish approximately 153,000 ac (61,916 ha) of new conservation lands (Additional Reserve Lands) to complement the approximate 347,000 ac (140,426 ha) of existing natural and open space areas ( *e.g.* , State Parks, USFS, and County Park lands known as Public/Quasi-Public
(PQP)Lands) in forming the MSHCP Conservation Area. The location and configuration of the 153,000 ac (61,916 ha) Additional Reserve Lands is not mapped or precisely identified in the MSHCP, but rather is based on textual descriptions and will be chosen from within a 310,000-ac (125,453 ha) Criteria Area that will be interpreted as implementation of the MSHCP proceeds. The defined Criteria Area is divided into cells of approximately 160 ac each, and each cell or group of cells has specific conservation criteria associated with it (MSHCP Section 3.2.3). For *Berberis nevinii* , critical habitat subunits 1A through 1F within the Agua Tibia/Vail Lake unit are located entirely within the MSHCP Plan Area and are comprised of USFS, BLM, and private lands. The private lands within proposed critical habitat for *Berberis nevinii* are within the Criteria Area and are targeted for inclusion within the MSHCP Conservation Area as potential Additional Reserve Lands. Specific conservation objectives in the MSHCP for *Berberis nevinii* provide for conservation and management of at least 8,000 ac (3,238 ha) of suitable habitat (defined as chaparral and Riversidean alluvial fan sage scrub between 984 and 2,162 ft (300 and 659 m) in elevation) in the Vail Lake area and all known locations for *B. nevinii* in the Vail Lake area. The Soboba Badlands occurrence is also located within proposed Additional Reserve Lands. Additionally, the MSHCP requires surveys for *B. nevinii* as part of the project review process for public and private projects where suitable habitat is present within a defined boundary of the Criteria Area (see Criteria Area Species Survey Area Map, Figure 6-2 of the MSHCP, Volume I). For locations with positive survey results, 90 percent of those portions of the property that provide long-term conservation value for the species will be avoided until it is demonstrated that the conservation objectives for the species are met. As discussed in the *Background* section of this rule, we were unable to accurately quantify the exact number of *Berberis nevinii* occurrences or plants within the MSHCP Plan Area. Nevertheless, all of these occurrences except those identified below are located within either existing PQP lands or proposed Additional Reserve Lands. Two records near Temecula are outside of existing PQP Lands and the proposed Additional Reserve Lands and may be impacted; however, these occurrences are likely extirpated. Another occurrence in the Temecula area needs to be verified, but may also be impacted. The goal of the MSHCP is to conserve all known locations of *B. nevinii* in the Agua Tibia/Vail Lake area and the Soboba Badlands. Additionally, new occurrences that are found as a result of survey efforts and are subsequently determined to be important to the overall conservation of the species may be included in the Additional Reserve Lands. Although the specific location of individual target areas for this species has yet to be identified, we agree that conservation of known occurrences of this plant in the Agua Tibia/Vail Lake area (which includes Oak Mountain) through the survey requirements, avoidance and minimization measures, and management for *B. nevinii* (and its PCEs) provided for in the Western Riverside County MSHCP exceeds any conservation value provided as a result of regulatory protections that may be afforded through a critical habitat designation. We propose to exclude approximately 385 ac (156 ha) of non-Federal lands from the final critical habitat designation for *Berberis nevinii* under section 4(b)(2) of the Act. These non-Federal lands fall within the MSHCP Plan Area and include: approximately 5 ac (2 ha) of private lands near the foothills of the Agua Tibia Mountains north of Cleveland National Forest (part of Subunit 1B); approximately 87 ac (35 ha) of private lands on the south flank of Big Oak Mountain (Subunit 1C); approximately 22 ac (9 ha) of private land directly north of Vail Lake (Subunit 1D); approximately 251 ac (102 ha) of private land to the south of Vail Lake and on the Vail Lake peninsula, which is the area with the largest known occurrence of *B. nevinii* (Subunit 1E); and approximately 20 ac (8 ha) of private land north of Temecula Creek and southeast of Vail Lake (Subunit 1F). All of these lands are also within the MSHCP's Conservation Area and the MSHCP's Survey Area and will receive conservation benefits under the Additional Survey Needs and Procedures policy. The Federal lands within Subunit 1A (BLM-managed) and Subunit 1B (USFS managed) are considered PQP lands under the MSHCP and as such are included within the overall 500,000-ac (202,343 ha) MSHCP Conservation Area. However, as explained in detail above, we are not proposing to exclude BLM or USFS lands within subunits 1A and 1B. Benefits of Inclusion We believe there is minimal benefit from designating critical habitat for *Berberis nevinii* on private lands in Unit 1 (subunits 1B, 1C, 1D, 1E, and 1F) because the habitat essential for this species in the vicinity of Vail Lake and Oak Mountain in western Riverside County is targeted for conservation under the Western Riverside County MSHCP as explained above. The primary benefit of including an area within a critical habitat designation is the protection provided by section 7(a)(2) of the Act which directs Federal agencies to ensure that their actions do not result in the destruction or adverse modification of critical habitat. The protections provided by section 7(a)(2) apply to actions on private lands whenever there is a Federal nexus, such as the use of Federal funds or the need for a Federal permit to conduct a project. The designation of critical habitat may provide a different level of protection under section 7(a)(2) for *Berberis nevinii* separate from the obligation of a Federal agency to ensure that their actions are not likely to jeopardize the continued existence of the endangered species. Under the *Gifford Pinchot* decision, critical habitat designations may provide greater benefits to the recovery of a species than was previously believed, but it is not possible to quantify this benefit at present. However, the protection provided is still a limitation on the adverse effects that occur as opposed to a requirement to provide a conservation benefit. The inclusion of these 385 ac (156 ha) of private land in the proposed critical habitat designation for *Berberis nevinii* is unlikely to provide any additional Federal regulatory benefits for the species consistent with the conservation standard based on the Ninth Circuit Court's decision in *Gifford Pinchot* . Inclusion of this area in critical habitat would require Federal agencies to ensure that their actions on these lands are not likely to result in the destruction or adverse modification of critical habitat. The potential benefits resulting from this additional analysis to determine destruction or adverse modification of critical habitat are likely to be minimal to nonexistent because known locations of this plant in the vicinity of Vail Lake and Oak Mountain will be conserved through the survey requirements, avoidance and minimization measures, and management of *B. nevinii* (and its PCEs) provided for in the Western Riverside County MSHCP. Additionally, new occurrences documented through survey efforts that are subsequently determined to be important to the overall conservation of the species may be included in the Additional Reserve Lands. We anticipate that these conservation measures will exceed any conservation value provided as a result of regulatory protections that may be afforded through a critical habitat designation. Another potential benefit of critical habitat would be to signal the importance of these lands to Federal agencies, scientific organizations, State and local governments, and the public to encourage conservation efforts to benefit *Berberis nevinii* and its habitat. However, as discussed above, the importance of protecting the biological resource values of these lands, including *B. nevinii* , has already been clearly and effectively communicated to Federal, State, and local agencies and other interested organizations and members of the public through this proposed rule and the Western Riverside County MSHCP approval and implementation process. In short, we expect the Western Riverside County MSHCP to provide enhanced protection and management of *Berberis nevinii* and its PCEs within areas considered essential for conservation of the species on private lands in the vicinity of Vail Lake and Oak Mountain. We expect the MSHCP to provide a greater level of conservation for *B. nevinii* on private lands in this area than would designation of critical habitat. Benefits of Exclusion In contrast to section 7(a)(2) of the Act, the Western Riverside County MSHCP commits the permittees to manage private lands in western Riverside County, California, for the benefit of *Berberis nevinii* and other covered species. These commitments go well beyond a simple requirement for Federal agencies to avoid adverse modification of critical habitat by including conservation and management of at least 8,000 ac (3,238 ha) of suitable *B. nevinii* habitat in the vicinity of Vail Lake and Oak Mountain, and all known locations of the species in this area. Excluding the 385 ac (156 ha) of private land in subunits 1B through 1F from critical habitat designation would recognize the permittees’ commitment under the MSHCP to manage non-Federal lands in western Riverside County consistent with the conservation goals and objectives of the MSHCP. It would also provide additional incentive to the permittees to maintain and strengthen the partnerships created by their official participation in the MSHCP planning process, especially considering the high level of cooperation by the participants in the MSHCP to conserve this taxon. Benefits of Exclusion Outweigh the Benefits of Inclusion We have reviewed and evaluated the proposed exclusion of approximately 385 ac (156 ha) of non-Federal lands within the MSHCP Plan Area from the final designation of critical habitat, and we have determined that the benefits of excluding the non-Federal lands in Unit 1 outweigh the benefits of including these lands. The PCEs required by *Berberis nevinii* will benefit from the conservation measures outlined in the MSHCP. In summary, these conservation measures include protecting and managing important habitat containing PCEs within the MSHCP Conservation Area, primarily through the protection of habitat from surface-disturbing activities; implementing specific management and monitoring practices to help ensure conservation of *B. nevinii* in the Plan Area; maintaining physiological and ecological characteristics of occupied habitat and suitable areas not known to be occupied ( *e.g.* , managing flood control activities, nonnative species, and other activities so as to limit alterations to the natural hydrologic and fire regime); and conducting surveys and implementing other required procedures to ensure avoidance of impacts to at least 90 percent of suitable habitat areas determined important to the long-term conservation of *B. nevinii* within the Criteria Area. The specific areas identified as subunits 1C, 1D, 1E, and 1F, as well as the non-Federal lands identified within Subunit 1B, will be addressed under the MSHCP. These specific conservation actions, survey requirements, avoidance and minimization measures, and management of *B. nevinii* and its habitat/PCEs as outlined in the MSHCP exceed any conservation value provided as a result of regulatory protections that may be afforded through a critical habitat designation. The exclusion of these lands from critical habitat would also help preserve the partnerships that we have developed with the local jurisdictions and project proponents in the development of the MSHCP. The benefits of excluding these lands from critical habitat would outweigh the minimal benefits of including these lands as critical habitat, including the educational benefits gained by informing the public of areas important for the long-term conservation of this species. Such educational benefits can still be accomplished from materials provided on our Web site. Furthermore, many of the educational benefits of critical habitat designation would be achieved through the overall designation, notice, and public comment process, and would occur whether or not these particular subunits are designated. Exclusion Would Not Result in Extinction of the Species We do not believe that the exclusion of 385 ac (156 ha) from the final designation of critical habitat for *Berberis nevinii* would result in the extinction of the species because the Western Riverside County MSHCP provides for the conservation of this species and its PCEs on occupied areas in the Agua Tibia/Vail Lake area (including Oak Mountain), as well as areas discovered to be occupied by *B. nevinii* during surveys of suitable habitat within a defined boundary of the Criteria Area. Importantly, as we stated in our biological opinion for the MSHCP (Service 2004), while some loss of modeled habitat for *B. nevinii* is anticipated due to implementation of the MSHCP, implementation of the plan will not jeopardize the continued existence of this species. The jeopardy standard of section 7 and routine implementation of conservation measures through the section 7 process will also provide assurances that the species will not go extinct. The proposed exclusion of critical habitat leaves these protections unchanged from those that would exist if the proposed excluded areas were designated as critical habitat. Economic Analysis An analysis of the economic impacts of proposing critical habitat for *Berberis nevinii* is being prepared. We will announce the availability of the draft economic analysis as soon as it is completed, at which time we will seek public review and comment. At that time, copies of the draft economic analysis will be available for downloading from the Internet at *http://www.fws.gov/carlsbad* , or by contacting the Carlsbad Fish and Wildlife Office directly (see ADDRESSES section). Based on public comments, the proposed designation itself, and the information in the full economic analysis, additional areas beyond those identified in this assessment may be excluded from final critical habitat by the Secretary under the provisions of section 4(b)(2) of the Act. This is provided for in the Act and in our implementing regulations at 50 CFR 242.19. Peer Review In accordance with our joint policy published in the **Federal Register** on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure that our critical habitat designation is based on scientifically sound data, assumptions, and analyses. We will send to these peer reviewers copies of this proposed rule immediately following publication in the **Federal Register** . We will invite these peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding the proposed designation of critical habitat. We will consider all comments and information received during the comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final decision may differ from this proposal. Public Hearings The Act provides for one or more public hearings on this proposal, if requested. Requests for public hearings must be made in writing at least 15 days prior to the close of the public comment period. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings in the **Federal Register** and local newspapers at least 15 days prior to the first hearing. Clarity of the Rule Executive Order 12866 (Regulatory Planning and Review) requires each agency to write regulations and notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following:
(1)Are the requirements in the proposed rule clearly stated?
(2)Does the proposed rule contain technical jargon that interferes with the clarity?
(3)Does the format of the proposed rule (grouping and order of the sections, use of headings, paragraphing, and so forth) aid or reduce its clarity?
(4)Is the description of the notice in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the proposed rule?
(5)What else could we do to make this proposed rule easier to understand? Send a copy of any comments on how we could make this proposed rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may e-mail your comments to this address: *Exsec@ios.doi.gov* . Required Determinations Regulatory Planning and Review In accordance with Executive Order 12866, this document is a significant rule in that it may raise novel legal and policy issues, but it is not anticipated to have an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the tight timeline for publication in the **Federal Register** , the Office of Management and Budget
(OMB)has not formally reviewed this rule. We are preparing a draft economic analysis of this proposed action, which will be available for public comment, to determine the economic consequences of designating the specific area as critical habitat. This economic analysis also will be used to determine compliance with Executive Order 12866, Regulatory Flexibility Act, Small Business Regulatory Enforcement Fairness Act, Executive Order 12630, Executive Order 13211, and Executive Order 12875. Further, Executive Order 12866 directs Federal Agencies promulgating regulations to evaluate regulatory alternatives (Office of Management and Budget, Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it has been determined that the Federal regulatory action is appropriate, then the agency will need to consider alternative regulatory approaches. Since the determination of critical habitat is a statutory requirement pursuant to the Endangered Species Act of 1973, as amended
(Act)(16 U.S.C. 1531 *et seq.* ), we must then evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat. In developing our designations of critical habitat, we consider economic impacts, impacts to national security, and other relevant impacts under section 4(b)(2) of the Act. Based on the discretion allowable under this provision, we may exclude any particular area from the designation of critical habitat providing that the benefits of such exclusion outweigh the benefits of specifying the area as critical habitat and that such exclusion would not result in the extinction of the subspecies. As such, we believe that the evaluation of the inclusion or exclusion of particular areas, or combination thereof, in a designation constitutes our regulatory alternative analysis. Within these areas, the types of Federal actions or authorized activities that we have identified as potential concerns are listed above in the section on Section 7 Consultation. The availability of the draft economic analysis will be announced in the **Federal Register** and in local newspapers so that it is available for public review and comments. The draft economic analysis can be obtained from our Web site at *http://www.fws.gov/carlsbad* , or by contacting the Carlsbad Fish and Wildlife Office directly (see ADDRESSES section). Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act
(RFA)to require Federal agencies to provide a statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. At this time, the Service lacks the available economic information necessary to provide an adequate factual basis for the required RFA finding. Therefore, the RFA finding is deferred until completion of the draft economic analysis prepared under section 4(b)(2) of the Act and E.O. 12866. This draft economic analysis will provide the required factual basis for the RFA finding. Upon completion of the draft economic analysis, the Service will publish a notice of availability of the draft economic analysis of the proposed designation and reopen the public comment period for the proposed designation for an additional 60 days. The Service will include with the notice of availability, as appropriate, an initial regulatory flexibility analysis or a certification that the rule will not have a significant economic impact on a substantial number of small entities accompanied by the factual basis for that determination. The Service has concluded that deferring the RFA finding until completion of the draft economic analysis is necessary to meet the purposes and requirements of the RFA. Deferring the RFA finding in this manner will ensure that the Service makes a sufficiently informed determination based on adequate economic information and provides the necessary opportunity for public comment. Executive Order 13211 On May 18, 2001, the President issued an Executive Order (E.O. 13211; Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Although this proposed rule to designate critical habitat for *Berberis nevinii* is a significant regulatory action under Executive Order 12866, it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:
(a)This rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except
(i)A condition of Federal assistance or
(ii)a duty arising from participation in a voluntary Federal program.” The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.
(b)We do not believe that this rule would significantly affect small governments. The lands being proposed for final critical habitat designation are owned by the Federal Bureau of Land Management and the U.S. Forest Service. Neither of these government entities fit the definition of “small governmental jurisdiction.” As such, a Small Government Agency Plan is not required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted. Takings In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of designating critical habitat for the *Berberis nevinii* in a takings implications assessment. The takings implications assessment concludes that this proposed designation of critical habitat for the *B. nevinii* would not pose significant takings implications. However, we will further evaluate this issue as we conduct our economic analysis and review and revise this assessment as warranted. Federalism In accordance with Executive Order 13132 (Federalism), the rule would not have significant Federalism effects. A Federalism assessment is not required. In keeping with DOI and Department of Commerce policy, we requested information from, and coordinated development of, this proposed critical habitat designation with appropriate State resource agencies in California. The designation of critical habitat in areas currently occupied by *Berberis nevinii* would impose no additional restrictions to those currently in place and, therefore, has little incremental impact on State and local governments and their activities. The designation would likely have some benefit to these governments in that the areas that contain the features essential to the conservation of the species are more clearly defined, and the primary constituent elements of the habitat necessary to the conservation of the species are specifically identified. While making this definition and identification does not alter where and what federally sponsored activities may occur, it may assist these local governments in long-range planning (rather than waiting for case-by-case section 7 consultations to occur). Civil Justice Reform In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. This proposed rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of *Berberis nevinii.* Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act It is our position that, outside the Tenth Circuit, we do not need to prepare environmental analyses as defined by the NEPA in connection with designating critical habitat under the Endangered Species Act of 1973, as amended. We published a notice outlining our reasons for this determination in the **Federal Register** on October 25, 1983 (48 FR 49244). This assertion was upheld in the courts of the Ninth Circuit ( *Douglas County* v. *Babbitt* , 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996)). Government-to-Government Relationship With Tribes In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We have determined that there are no tribal lands occupied at the time of listing that contain the features essential for the conservation of *Berberis nevinii,* and no Tribal lands that are unoccupied areas that are essential for the conservation of *B. nevinii.* Therefore, the designation of critical habitat for *B. nevinii* has not been proposed on Tribal lands. References Cited A complete list of all references cited in this rulemaking is available upon request from the Field Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES section). Authors The primary authors of this package are the Nevada Fish and Wildlife Office, Reno, Nevada, and the Carlsbad Fish and Wildlife Office, Carlsbad, California. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted. 2. In § 17.12(h), revise the entry for “ *Berberis nevinii* ” under “FLOWERING PLANTS” to read as follows: § 17.12 Endangered and threatened plants.
(h)* * * Species Scientific name Common name Historic range Family Status When listed Critical habitat Special rules **Flowering Plants** * * * * * * * *Berberis nevinii* Nevin's barberry U.S.A.
(CA)Berberidaceae E 648 17.96(a) NA. * * * * * * * 3. Amend § 17.96(a) as follows: a. Add “Family Berberidaceae” in alphabetical order of the family names; and b. Add a critical habitat entry for “Berberis nevinii” under Family Berberidaceae to read as set forth below. § 17.96 Critical habitat—plants.
(a)Flowering Plants. Family Berberidaceae: *Berberis nevinii* (Nevin's barberry)
(1)Critical habitat is depicted for Riverside County, California, in the text and on the maps below.
(2)The primary constituent elements
(PCEs)of critical habitat for *Berberis nevinii* are:
(i)Low-gradient ( *i.e.* , nearly flat) canyon floors, washes and adjacent terraces, and mountain ridges/summits, or eroded, generally northeast- to northwest-facing mountain slopes and banks of dry washes typically of less than 70 percent slope that provide space for plant establishment and growth;
(ii)Well-drained alluvial soils primarily of non-marine sedimentary origin, such as Temecula or sandy arkose soils; soils of the Cajalco-Temescal-Las Posas soil association formed on gabbro (igneous) or latite (volcanic) bedrock; metasedimentary substrates associated with springs or seeps; and heavy adobe/gabbro-type soils derived from metavolcanic geology (Mesozoic basic intrusive rock) that provide the appropriate nutrients and space for growth and reproduction; and
(iii)Scrub (chaparral, coastal sage, alluvial, riparian) and woodland (oak, riparian) vegetation communities between 900 and 3,000 ft (275 and 915 m) in elevation that provide the appropriate cover for growth and reproduction.
(3)Critical habitat does not include man made structures (such as buildings, aqueducts, airports, roads, and other paved areas) existing on the effective date of this rule and not containing one or more of the primary constituent elements.
(4)Data layers defining map units were created on a base of USGS 1:24,000 maps, and critical habitat units were then mapped using Universal Transverse Mercator
(UTM)North American Datum
(NAD)1927 coordinates. We used aerial photographs as well as soils and vegetation data to help refine unit boundaries based on presence of PCEs.
(5)Unit 1. Agua Tibia/Vail Lake, Riverside County, California.
(i)Subunit 1A for *Berberis nevinii* , Big Oak Mountain Summit Subunit, Riverside County, California. From USGS 1:24,000 quadrangle Sage, lands bounded by the following UTM NAD27 coordinates (E, N): 502200, 3708400; 502400, 3708400; 502400, 3708100; 502200, 3708100; thence returning to 502200, 3708400.
(ii)Subunit 1B for *Berberis nevinii* , Agua Tibia Mountain Foothills Subunit, Riverside County, California. From USGS 1:24,000 quadrangle Vail Lake, lands bounded by the following UTM NAD27 coordinates (E, N): 504222, 3703100; 504400, 3703100; 504400, 3703000; 504500, 3703000; 504500, 3702700; 504300, 3702700; 504300, 3702900; 504200, 3702900; 504200, 3703086; thence returning to 504222, 3703100.
(iii)Subunit 1C for *Berberis nevinii* , South Flank Big Oak Mountain Subunit, Riverside County, California. From USGS 1:24,000 quadrangles Sage and Vail Lake, lands bounded by the following UTM NAD27 coordinates (E, N): 501900, 3707400; 502100, 3707400; 502100, 3707200; 502400, 3707200; 502400, 3707100; 502700, 3707100; 502700, 3706900; 502100, 3706900; 502100, 3706400; 501900, 3706400; thence returning to 501900, 3707400.
(iv)Subunit 1D for *Berberis nevinii* , North Vail Lake Subunit, Riverside County, California. From USGS 1:24,000 quadrangles Sage and Vail Lake, lands bounded by the following UTM NAD27 coordinates (E, N): 502600, 3706600; 502900, 3706600; 502900, 3706300; 502600, 3706300; thence returning to 502600, 3706600.
(v)Subunit 1E for *Berberis nevinii* , South of Vail Lake/Peninsula Subunit, Riverside County, California. From USGS 1:24,000 quadrangle Vail Lake, lands bounded by the following UTM NAD27 coordinates (E, N): 502473, 3705611; 502487, 3705628; 502494, 3705628; 502641, 3705560; 502648, 3705557; 502653, 3705552; 502659, 3705538; 502665, 3705518; 502667, 3705506; 502676, 3705495; 502684, 3705486; 502693, 3705468; 502695, 3705461; 502693, 3705456; 502700, 3705444; 502707, 3705436; 502712, 3705428; 502712, 3705419; 502708, 3705408; 502705, 3705396; 502698, 3705384; 502689, 3705376; 502676, 3705356; 502669, 3705334; 502671, 3705311; 502677, 3705301; 502672, 3705285; 502669, 3705266; 502659, 3705234; 502649, 3705196; 502652, 3705152; 502658, 3705122; 502661, 3705080; 502665, 3705034; 502674, 3705014; 502685, 3704979; 502705, 3704936; 502708, 3704929; 502724, 3704909; 502725, 3704908; 502736, 3704876; 502793, 3704820; 502828, 3704794; 502859, 3704788; 502865, 3704791; 502879, 3704784; 502907, 3704779; 502941, 3704777; 503019, 3704751; 503051, 3704744; 503079, 3704742; 503108, 3704745; 503134, 3704748; 503151, 3704748; 503164, 3704748; 503174, 3704748; 503187, 3704746; 503198, 3704737; 503207, 3704732; 503215, 3704728; 503281, 3704698; 503289, 3704697; 503300, 3704696; 503300, 3704300; 503600, 3704300; 503600, 3704100; 503500, 3704100; 503500, 3703900; 503200, 3703900; 503200, 3704100; 503100, 3704100; 503100, 3704600; 502700, 3704600; 502700, 3704700; 502300, 3704700; 502300, 3704500; 502200, 3704500; 502200, 3704200; 502000, 3704200; 502000, 3704000; 501600, 3704000; 501600, 3704300; 501700, 3704300; 501700, 3705100; 501900, 3705100; 501900, 3704900; 502000, 3704900; 502000, 3704600; 502009, 3704588; 502038, 3704568; 502064, 3704558; 502111, 3704555; 502159, 3704562; 502191, 3704583; 502222, 3704611; 502247, 3704656; 502274, 3704719; 502287, 3704762; 502287, 3704806; 502271, 3704875; 502242, 3704940; 502237, 3704948; 502237, 3704961; 502272, 3704992; 502296, 3705015; 502330, 3705040; 502358, 3705052; 502382, 3705079; 502404, 3705116; 502423, 3705150; 502434, 3705160; 502436, 3705171; 502487, 3705293; 502496, 3705308; 502500, 3705322; 502497, 3705332; 502501, 3705348; 502497, 3705372; 502487, 3705414; 502481, 3705428; 502475, 3705447; 502456, 3705535; thence returning to 502473, 3705611.
(vi)Subunit 1F for *Berberis nevinii* , Temecula Creek East Subunit, Riverside County, California. From USGS 1:24,000 quadrangle Vail Lake, lands bounded by the following UTM NAD27 coordinates (E, N): 504400, 3704200; 504600, 3704200; 504600, 3703800; 504400, 3703800; thence returning to 504400, 3704200.
(vii)Map of Subunits 1A through 1F (Map 1) follows. Map 1: Unit 1—Vail Lake (Subunit 1A Big Oak Mountain, Subunit 1B Agua Tibia Mountain Foothills, Subunit 1C South Flank Big Oak Mountain, Subunit 1D North of Vail Lake, Subunit 1E South of Vail Lake/Peninsula, Subunit 1F Temecula Creek East), Riverside County, California. BILLING CODE 4310-55-P EP06FE07.000 Dated: January 30, 2007. David M. Verhey, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 07-472 Filed 2-5-07; 8:45 am]
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68 references not yet in our index
  • Pub. L. 109-59
  • 49 CFR 391.41(b)(10)
  • 49 CFR 381
  • 49 CFR 391.41
  • 49 CFR 391.41(b)(3)
  • Pub. L. 104-13
  • 109 Stat. 163
  • 44 USC 3501-3520
  • 5 CFR 1320
  • 5 CFR 1320.8(d)(1)
  • 5 CFR 1320.8(d)(1)(i)
  • 5 CFR 1320.5(b)
  • 49 CFR 571.139
  • 49 CFR 573
  • 49 CFR 553.21
  • 49 CFR 512
  • 49 CFR 571
  • 49 CFR 571.108
  • 49 CFR 571.111
  • 49 CFR 383
  • 49 CFR 391
  • 49 CFR 396.11
  • 40 CFR 60
  • 40 CFR 60.32
  • 40 CFR 2
  • 167 F.3d 658
  • 627 F.2d 416
  • 233 F.3d 625
  • 255 F.3d 855
  • 115 F.3d 979
  • 790 F.2d 289
  • 719 F.2d 624
  • 470 U.S. 116
  • 661 F.2d 340
  • 572 F.2d 1286
  • 564 F.2d 1253
  • 639 F.2d 973
  • 983 F.2d 259
  • 486 F.2d 375
  • 417 U.S. 921
+ 28 more
Citation graph
cites case law
Notices
Notice
U.S.C.§ 148
U.S.C.§ 31136
U.S.C.§ 31315
U.S.C.§ 3506
U.S.C.§ 3501
U.S.C.§ 3507
U.S.C.§ 30118
U.S.C.§ 605
U.S.C.§ 30112
F. App'x167 F.3d 658
F. App'x627 F.2d 416
F. App'x233 F.3d 625
Cites 94 · showing 12Cited by 0 across 0 sources
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