Proposed Rules. Notice of availability and request for comments
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/register/2007/02/14/07-683A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
BILLING CODE 3510-22-S 72 30 Wednesday, February 14, 2007 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Parts 1, 21, 43, and 45 [Docket No. FAA-2006-25877; Notice No. 07-02] Production and Airworthiness Approvals, Parts Marking, and Miscellaneous Proposals AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of availability and request for comments. SUMMARY: This notice announces the availability of and requests comments on the Initial Regulatory Flexibility Analysis
(IRFA)associated with the notice of proposed rulemaking entitled, Production and Airworthiness Approvals, Parts Marking, and Miscellaneous Proposals. DATES: Send your comments to reach us on or before April 2, 2007. ADDRESSES: You may send comments identified by Docket Number FAA-2007—using any of the following methods: • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Governmentwide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Fax:* 1-202-493-2251. • *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. For more information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. *Privacy:* We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. For more information, see the Privacy Act discussion in the SUPPLEMENTARY INFORMATION section of this document. *Docket:* To read background documents or comments received, go to *http://dms.dot.gov* at any time or to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Barbara Capron, Production Certification Branch, AIR-220, Federal Aviation Administration, 800 Independence Ave., SW., Washington, DC 20591; *telephone number:*
(202)267-3343. SUPPLEMENTARY INFORMATION: Comments Invited The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the IRFA, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments. We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this IRFA. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also review the docket using the Internet at the Web address in the ADDRESSES section. *Privacy Act:* Using the search function of our docket Web site, anyone can find and read the comments received into any of our dockets, including the name of the individual sending the comment (or signing the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78) or you may visit *http://dms.dot.gov.* The purpose behind an IRFA is to notify small businesses of a rulemaking activity that, if finalized, may adversely affect a substantial number of small businesses. If a rulemaking is likely to have such an impact, we are required to identify alternatives that may reduce this impact. To adequately explore these alternatives, we need the input of those small businesses. Accordingly, we will consider all comments we receive on or before the closing date for comments. However, your comments should be limited to the IRFA since the comment period on the NPRM has closed. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change our proposal in light of the comments we receive. If you want the FAA to acknowledge receipt of your comments, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you. Proprietary or Confidential Business Information Do not file in the docket information that you consider to be proprietary or confidential business information. Send or deliver this information directly to the person identified in the FOR FURTHER INFORMATION CONTACT section of this document. You must mark the information that you consider proprietary or confidential. If you send the information on a disk or CD-ROM, mark the outside of the disk or CD-ROM and also identify electronically within the disk or CD-ROM the specific information that is proprietary or confidential. Under 14 CFR 11.35(b), when we are aware of proprietary information filed with a comment, we do not place it in the docket. We hold it in a separate file to which the public does not have access, and place a note in the docket that we have received it. If we receive a request to examine or copy this information, we treat it as any other request under the Freedom of Information Act (5 U.S.C. 552). We process such a request under the DOT procedures found in 49 CFR part 7. Availability of Rulemaking Documents You can get an electronic copy using the Internet by:
(1)Searching the Department of Transportation's electronic Docket Management System
(DMS)Web page ( *http://dms.dot.gov/search* );
(2)Visiting the FAA's Regulations and Policies Web page at *http://www.faa.gov/regulations_policies/* ; or
(3)Accessing the Government Printing Office's Web page at *http://www.gpoaccess.gov/fr/index.html.* You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling
(202)267-9680. Make sure to identify the docket number, notice number, or amendment number of this rulemaking. Discussion On October 5, 2006, the Federal Aviation Administration
(FAA)issued a notice of proposed rulemaking
(NPRM)entitled, Production and Airworthiness Approvals, Parts Marking, and Miscellaneous Proposals (71 FR 58915). The extended comment period for this NPRM closed on February 5, 2007. The Small Business Administration's Office of Advocacy has asked us, on behalf of small businesses that may be adversely affected by the proposed rulemaking, to allow additional time for small businesses to comment on the Initial Regulatory Flexibility Analysis associated with the NPRM. 1 The analysis examines whether the proposed rulemaking would have a significant economic impact on a substantial number of small entities. We have determined that the additional comment period is consistent with the public interest and that good cause exists for taking this action. Accordingly, we are establishing an additional 45-day comment period on the Initial Regulatory Flexibility Analysis. 1 This analysis can also be found in the FAA's Initial Regulatory Evaluation, docket # FAA-2006-25877-19. Initial Regulatory Flexibility Analysis The Regulatory Flexibility Act of 1980
(RFA)establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the Act requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The Act covers a wide range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions. Agencies must perform a review to determine whether a proposed or final rule would have a significant economic impact on a substantial number of small entities. If the determination is that it would, the agency must prepare a regulatory flexibility analysis as described in the Act. However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear. The FAA used the Small Business Administration
(SBA)guideline of 1,500 employees or less per firm as the criterion for the determination of a small business in aircraft manufacturing. The FAA also used the SBA guideline of 1,000 employees or less per firm as the criterion for the determination of a small business in aircraft engine and engine parts manufacturing, and/or other aircraft part and auxiliary equipment manufacturing. 2 2 13 CFR 121.201, Size Standards Used to Define Small Business Concerns, Sectors 31-33 Manufacturing, Subsector 336 Transportation Equipment Manufacturing. In order to determine if the proposed rule will have a significant economic impact on a substantial number of small entities, lists of all U.S. aircraft, aircraft engine, and other aircraft part and auxiliary equipment manufacturers was generated by the FAA Aircraft Certification Directorate Offices. Because the list was organized by the type of production approval, a firm could be listed more than once (e.g., a firm could hold a TSO authorization as well as a PMA). There are close to 2,000 records on this list. From the lists of manufacturers supplied by the Rotorcraft Directorate
(ASW)and the Small Airplane Directorate (ACE), the FAA took a 10% sample of firms that had already been identified as small entities by the Directorates (or 78 firms). From the lists of manufacturers supplied by the Transport Airplane Directorate
(ANM)and the Engine and Propeller Directorate (ANE), the FAA took a 10% sample of all firms (or 109 firms) because those two Directorates had not identified the firms that were small entities. Hence, the FAA used a sample of 187 firms (or approximately 10%) for the analysis. Using information provided by the ReferenceUSA Business Database, company annual reports, and SEC filings, all businesses with more than 1,500 employees for aircraft manufacturer and 1,000 employees for other manufacturers, and subsidiaries of larger businesses, were excluded from the list of small businesses. An example of a subsidiary business is Bell Helicopter, which is a subsidiary of Textron, Inc. For the remaining businesses, the FAA obtained company revenue information from these three sources, when the revenue was made public. By applying this methodology to the 10% sample, the FAA verified that 109 firms are small entities, 32 firms are large businesses or subsidiaries of large businesses or consortiums, and 46 firms could not be found in the database and/or had no revenue information available. Among the 109 verified small entities, 5 are small PCs, 19 are small TSO authorization holders, and 85 are small PMAs. The FAA estimates that the average discounted compliance cost for a small PC is approximately $582,000, for a small TSO authorization holder is approximately $52,000, and for a small PMA is approximately $15,000. (Refer to Appendix E.) The annualized cost for a small PC is estimated at $82,881 ($582,120 * 0.142378 = $82,881), for a small TSO authorization holder is estimated at $7,342 ($51,566 * 0.142378 = $7,342), and for a small PMA is estimated at $2,153 ($15,125 * 0.142378 = $2,153). The degree to which small manufacturers can “afford” the cost of compliance is determined by the availability of financial resources. The initial implementation costs of the proposed rule may be financed, paid for using existing company assets, or borrowed. As a proxy for the firm's ability to afford the cost of compliance, the FAA calculated the ratio of the total annualized cost of the proposed rule as a percentage of annual revenue. This ratio is a conservative measure as the annualized value of the 10-year total compliance cost is divided by one year of annual revenue. Appendix F shows that one of the small businesses sampled would incur costs greater than 1 percent of their annual revenue. Since this is based on a 10% sample, approximately 10 small businesses would incur costs greater than 1 percent of their annual revenue. Thus, the FAA believes that approximately 10 small entities would incur a substantial economic impact in the form of higher annual costs as a result of this proposed rule. Therefore, the FAA thinks that the rule may have a significant economic impact on a substantial number of small entities. However, the FAA does not think that the implementation of this proposed regulation would cause any of these companies to become bankrupt. *Questions to be addressed in an Initial Regulatory Flexibility Analysis (IRFA):* 1. Which small entities will be impacted most? PC holders and TSO authorization holders. Should the definition of “small entity” be redefined for purposes of the Regulatory Flexibility Act of 1980 (RFA)? No. 2. Are all the required elements of an IRFA present, particularly a description of all compliance requirements, and a clear explanation of the need for and objectives of the rule? Yes. This Federal Aviation Administration
(FAA)proposed rule would make various changes in design, production, and identification regulations for products and parts. These proposed changes include establishing a single set of quality system requirements applicable to all production approval holders as well as requiring an airworthiness approval document to be issued with all products and parts shipments from a production approval holder. The proposed rule would also revise aircraft parts marking requirements. For additional information, refer to the Regulatory Evaluation for a description of all compliance requirements and further explanations of the need for and objectives of the rule. 3. Have all major cost factors been developed and analyzed? Yes. Refer to Appendix E for the cost factors for a small entity by type of production approval. 4. What alternatives will allow the agency to accomplish its regulatory objectives while minimizing the impact on small entities? *Alternative 1:* No Action. This alternative would have no impact on small entities. The FAA decided to discard this alternative because it would not enhance safety. Among other things, the FAA proposes to enhance safety by
(1)establishing a single set of quality system requirements applicable to all production approval holders,
(2)requiring an airworthiness approval document to be issued with all products and parts shipments from a production approval holder, and
(3)revising aircraft parts marking requirements. *Alternative 2:* Partial Proposed Rule. The partial proposed rule would be the complete proposed rule with the exception of the requirement for airworthiness approval tags (Form 8130-3) with all part or product sales/shipments. This requirement is the most costly proposal for the manufacturers. If this were not included in the proposed rule, then there would not be a significant economic impact on a substantial number of small entities. *Alternative 3:* Complete Proposed Rule. The complete proposed rule is more costly for small entities, but the FAA recommends proceeding with the complete proposed rule instead of Alternative 2 for several reasons. • The Form 8130-3 is the recognized industry standard document that provides legal proof that the part was produced by an FAA-approved source and is airworthy. Use of the Form in this way parallels what is done in Europe with the EASA Form One. • A common, easily recognizable Form is needed with all new parts shipments so that the receiver can easily verify the airworthiness of the part and authority of the producer. • Most non-US aviation agencies demand a completed Form 8130-3 for parts imported into their country. The FAA recommends it for domestic use also because it makes sense to use a common form for all shipments, rather than different forms for domestic versus export shipments. • Legal enforcement for misuse—since the 8130-3 is a Federal form, misuse of the Form is a Federal offense. 5. *Competitiveness Analysis:* This rule is a comprehensive rule that impacts all production approval holders including PC holders, TSO authorization holders, and PMA holders. This covers a wide variety of businesses (e.g., balloons, gliders, helicopters, small airplanes, large transport category airplanes, engine manufacturers, propeller manufacturers, seat belt manufacturers, seat manufacturers, and so forth). Market share within the industry probably would not change due to this proposed regulation, and the industry itself would not lose market share to other products or services. 6. *Business closure analysis:* The FAA thinks that there would not be any small businesses that close due to the proposed regulation because there were only about 10 companies that would have costs that exceed one percent of revenues, more specifically, their costs would be approximately 1.1% of revenues. The FAA estimates that these costs are not high enough to force companies into bankruptcy. 7. *Disproportionality Analysis:* The table below shows the differences in the impacts on small businesses as compared to large ones. Small entity Total costs Discounted total costs Large entity Total costs Discounted total costs Small PCs: Large PCs: 21.9(a)(4) $1,600 $917 21.9(a)(4) $128,000 $73,387 21.123(e) 10,000 5,733 21.123(e) 0 0 21.137(h) 2,000 1,526 21.137(h) 0 0 21.137(m) 300 229 21.137(m) 0 0 21.137(n) 500 381 21.137(n) 0 0 21.146(d) 1,000,000 573,333 21.146(d) 706,667 405,156 Subtotal 1,014,400 582,120 Subtotal 834,667 478,542 Small TSOAs: Large TSOAs: 21.9(a)(4) 375 215 21.9(a)(4) 0 0 21.605 50 38 21.605 0 0 21.616(d) 4,500 2,580 21.616(d) 3,668,750 2,103,417 45.15(b) 85,000 48,733 45.15(b) 572,000 327,947 Subtotal 89,925 51,566 Subtotal 4,240,750 2,431,364 Small PMAs: Large PMAs: 21.9(a)(4) 1,250 717 21.9(a)(4) 0 0 21.303(a)(5) 50 38 21.303(a)(5) 50 38 21.307 400 305 21.307 80 61 21.308 400 305 21.308 200 153 21.316(d) 24,000 13,760 21.316(d) 825,000 473,000 Subtotal 26,100 15,125 Subtotal 825,330 473,252 Large PCs appear to have lower costs on these requirements because the requirements are already current practice. Large TSOAs and large PMAs have higher costs on these requirements compared to their respective smaller entities. The FAA estimates that there would be no significant change in market share due to this proposed regulation. Appendix E.—Costs for Small Businesses [per firm] 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 Total Costs Discounted total costs Small PCs: 21.9(a)(4) $160 $160 $160 $160 $160 $160 $160 $160 $160 $160 $1,600 $917 21.123(e) 1,000 1,000 1,000 1,000 1,000 1,000 1,000 1,000 1,000 1,000 10,000 5,733 21.137(h) 2,000 2,000 1,526 21.137(m) 300 300 229 21.137(n) 500 500 381 21.146(d) 100,000 100,000 100,000 100,000 100,000 100,000 100,000 100,000 100,000 100,000 1,000,000 573,333 Subtotal 1,014,400 582,120 Small TSOAs: 21.9(a)(4) 38 38 38 38 38 38 38 38 38 38 375 215 21.605 50 50 38 21.616(d) 450 450 450 450 450 450 450 450 450 450 4,500 2,580 45.15(b) 8,500 8,500 8,500 8,500 8,500 8,500 8,500 8,500 8,500 8,500 85,000 48,733 Subtotal 89,925 51,566 Small PMAs: 21.9(a)(4) 125 125 125 125 125 125 125 125 125 125 1,250 717 21.303(a)(5) 50 50 38 21.307 400 400 305 21.308 400 400 305 21.316(d) 2,400 2,400 2,400 2,400 2,400 2,400 2,400 2,400 2,400 2,400 24,000 13,760 Subtotal 26,100 15,125 Appendix F.—Economic Impact on a Representative Sample of Small Businesses Production basis Manufacturer State Revenues (avg est.) Annualized cost of rule Percent PC AEROSTAR AIRCRAFT CORP ID $15,000,000 $82,881 0.55 PC AIR TRACTOR, INC. TX 75,000,000 82,881 0.11 PC AMERICAN CHAMPION AIRCRAFT CORP WI 35,000,000 82,881 0.24 PC UNIVAIR AIRCRAFT CORP CO 7,500,000 82,881 1.11 PC WILLIAMS INTERNATIONAL MI 75,000,000 82,881 0.11 PMA A&C PRODUCTS, INC TX 1,750,000 2,153 0.12 PMA ABLE AIR CA 750,000 2,153 0.29 PMA ACCURATE BUSHING COMPANY INC NJ 3,750,000 2,153 0.06 PMA ACR ELECTRONICS INC FL 75,000,000 2,153 0.00 PMA ADVANCED HYPERFINE PRODUCTS CA 250,000 2,153 0.86 PMA AERO DECALS FL 750,000 2,153 0.29 PMA AERO SEATS AND SYSTEMS, INC TX 1,750,000 2,153 0.12 PMA AERO TECHNICAL ALLIANCE INC FL 1,750,000 2,153 0.12 PMA AERODYNE ENGINEERING CA 250,000 2,153 0.86 PMA AERONCA INC OH 75,000,000 2,153 0.00 PMA AEROSPACE SYSTEMS. & COMPONENTS, INC KS 3,750,000 2,153 0.06 PMA AIRBORNE TECHNOLOGIES, INC CA 7,500,000 2,153 0.03 PMA AIRCRAFT INSTRUMENTS PA 1,750,000 2,153 0.12 PMA AIRCRAFT SPECIALTIES SERVICES, INC OK 3,750,000 2,153 0.06 PMA AIRWELD, INC CA 1,750,000 2,153 0.12 PMA AIRWOLF FILTER CORP OH 1,750,000 2,153 0.12 PMA AMERICAN POLARIZERS, INC PA 3,750,000 2,153 0.06 PMA AMGLO KEMLITE LABORATORIES, INC IL 15,000,000 2,153 0.01 PMA APACHE ENTERPRISES TX 7,500,000 2,153 0.03 PMA AVIATION DEVELOPMENT CORP WA 750,000 2,153 0.29 PMA AVION RESEARCH CA 750,000 2,153 0.29 PMA BIZJET INTERNATIONAL SALES OK 15,000,000 2,153 0.01 PMA BRAUER AEROSPACE PRODUCTS, INC AL 3,750,000 2,153 0.06 PMA BREEZE-EASTERN CORP NJ 72,300,000 2,153 0.00 PMA BRUCE INDUSTRIES, INC NV 15,000,000 2,153 0.01 PMA CAMARILLO AIRCRAFT SERVICE CA 250,000 2,153 0.86 PMA CANARD AEROSPACE CORPORATION MN 1,750,000 2,153 0.12 PMA CEE BAILEY'S AIRCRAFT PLASTICS CA 15,000,000 2,153 0.01 PMA COLLINS AIRCRAFT DYNAMICS, INC TX 750,000 2,153 0.29 PMA COMANT INDUSTRIES, INC CA 15,000,000 2,153 0.01 PMA CONAX FLORIDA CORPORATION FL 7,500,000 2,153 0.03 PMA DAVTRON CA 3,750,000 2,153 0.06 PMA DER ASSOCIATES INC KS 250,000 2,153 0.86 PMA DEUTSCH RELAYS, INC NY 35,000,000 2,153 0.01 PMA DOW-ELCO INC CA 3,750,000 2,153 0.06 PMA DUSTERS AND SPRAYERS, INC OK 1,750,000 2,153 0.12 PMA DYNAMIC AIR ENGINEERING CA 7,500,000 2,153 0.03 PMA E.J. MLYNARCZYK & CO., INC FL 7,500,000 2,153 0.03 PMA ELECTRONIC CABLE SPECIALISTS WI 300,000,000 2,153 0.00 PMA ESSEX INDUSTRIES INC MO 7,500,000 2,153 0.03 PMA FLEXFAB DIVISION MI 300,000,000 2,153 0.00 PMA FLIGHT DYNAMICS OR 1,750,000 2,153 0.12 PMA FRANKLIN AIRCRAFT ENGINES, INC CO 1,750,000 2,153 0.12 PMA HELI-TECH OR 1,750,000 2,153 0.12 PMA HYDRAFLOW CA 35,000,000 2,153 0.01 PMA INTERNATIONAL AERO INC WA 35,000,000 2,153 0.01 PMA JAY-DEE AIRCRAFT SUPPLY CO., INC CA 3,750,000 2,153 0.06 PMA JORMAC, INC. FL 1,750,000 2,153 0.12 PMA KEITH PRODUCTS, L.P TX 15,000,000 2,153 0.01 PMA KING AIRE, INC KS 250,000 2,153 0.86 PMA LTA AVIATION, INC NY 250,000 2,153 0.86 PMA MAGNETIC SEAL CORP RI 7,500,000 2,153 0.03 PMA MED-FLITE OF MIDAMERICA, INC KS 250,000 2,153 0.86 PMA MILLENNIUM CONCEPTS, INC KS 1,750,000 2,153 0.12 PMA MILMAN ENGINEERING INC WA 250,000 2,153 0.86 PMA NASERA CORPORATION NC 1,750,000 2,153 0.12 PMA NORDAM TEXAS TX 35,000,000 2,153 0.01 PMA NORTHEAST AERO COMPRESSOR CORP NY 3,750,000 2,153 0.06 PMA OTTO ENGINEERING INC IL 15,000,000 2,153 0.01 PMA PACIFIC PRECISION PRODUCTS CA 1,750,000 2,153 0.12 PMA PARAVION TECHNOLOGY INC CO 7,500,000 2,153 0.03 PMA PETERSON'S PERFORMANCE PLUS KS 1,750,000 2,153 0.12 PMA PLASTIC MOLDED PRODUCTS WA 15,000,000 2,153 0.01 PMA PRECISION PATTERN INC KS 15,000,000 2,153 0.01 PMA QED, INC CA 7,500,000 2,153 0.03 PMA RALMARK COMPANY PA 1,750,000 2,153 0.12 PMA RAY'S AIRCRAFT SERVICE CA 750,000 2,153 0.29 PMA ROTOR DYNAMICS AMERICAS, INC TX 250,000 2,153 0.86 PMA SAINT GOBAIN PERFORMANCE PLASTIC WA 15,000,000 2,153 0.01 PMA SEAL DYNAMICS, INC NY 35,000,000 2,153 0.01 PMA SENSOR SYSTEMS L.L.C FL 35,000,000 2,153 0.01 PMA SKYBOLT AEROMOTIVE CORP FL 7,500,000 2,153 0.03 PMA SKYLIGHT AVIONICS CO CA 1,750,000 2,153 0.12 PMA SPECTRUM AEROMED, INC MN 7,500,000 2,153 0.03 PMA STEIN SEAL PA 35,000,000 2,153 0.01 PMA STERLING AVIATION TECHNOLOGIES WA 1,750,000 2,153 0.12 PMA TANIS AIRCRAFT SERVICES, INC MN 750,000 2,153 0.29 PMA TEXAS AIR STAR, INC. TX 750,000 2,153 0.29 PMA THORNTON TECHNOLOGY CORP CA 15,000,000 2,153 0.01 PMA UMPCO, INC CA 15,000,000 2,153 0.01 PMA VALCOR ENGINEERING NJ 35,000,000 2,153 0.01 PMA VARGA ENTERPRISES, INC AZ 7,500,000 2,153 0.03 PMA WECO AEROSPACE SYSTEMS, INC CA 15,000,000 2,153 0.01 PMA WENDON COMPANY, INC CT 7,500,000 2,153 0.03 PMA WINDSOR AIRMOTIVE CT 15,000,000 2,153 0.01 TSOA AERO TWIN, INCORPORATED AK 3,750,000 7,342 0.20 TSOA AIRCRAFT BELTS INC TX 35,000,000 7,342 0.02 TSOA AIRPATH INSTR. CO MO 3,750,000 7,342 0.20 TSOA AVIONICS INNOVATIONS CA 750,000 7,342 0.98 TSOA BURL'S AIRCRAFT REBUILD AK 1,750,000 7,342 0.42 TSOA CASTLE INDUSTRIES, INC CA 75,000,000 7,342 0.01 TSOA DIAMOND J , INC KS 3,750,000 7,342 0.20 TSOA ESSEX INDUSTRIES INC MO 7,500,000 7,342 0.10 TSOA GLOBE MOTORS INTERNATIONAL LOGISTICS SUPPORT CORP.
(ILSC)AL 75,000,000 7,342 0.01 TSOA AZ 1,750,000 7,342 0.42 TSOA KOLLSMAN INC NH 750,000 7,342 0.98 TSOA KOSOLA & ASSOCIATES GA 3,750,000 7,342 0.20 TSOA NORTH AMERICAN AERODYNAMICS NC 15,000,000 7,342 0.05 TSOA PHAOSTRON INSTRUMENTS & ELEC. CO CA 15,000,000 7,342 0.05 TSOA R.A. MILLER INDUSTRIES INC MI 15,000,000 7,342 0.05 TSOA SATCO, INC CA 75,000,000 7,342 0.01 TSOA SIGMA TEK, INC KS 35,000,000 7,342 0.02 TSOA SOUTHWEST PRODUCTS COMPANY CA 15,000,000 7,342 0.05 TSOA VISION MICROSYSTEMS WA 1,750,000 7,342 0.42 Issued in Washington, DC on February 8, 2007. Pamela Hamilton-Powell, Director, Office of Rulemaking. [FR Doc. E7-2537 Filed 2-13-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27152; Directorate Identifier 2006-NM-219-AD] RIN 2120-AA64 Airworthiness Directives; McDonnell Douglas Model 717-200 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for certain McDonnell Douglas Model 717-200 airplanes. This proposed AD would require installing a certain junction(s) and changing the wiring of the first officer's pitot static heater system. This proposed AD results from a report of temporary loss of the auto-flight function with displays of suspect or erratic airspeed indications. We are proposing this AD to prevent display of suspect or erratic airspeed indications during heavy rain conditions, which could reduce the ability of the flightcrew to maintain the safe flight and landing of the airplane. DATES: We must receive comments on this proposed AD by April 2, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, room PL-401, Washington, DC 20590. • *Fax:*
(202)493-2251. • *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. Contact Boeing Commercial Airplanes, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024), for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Dan Bui, Aerospace Engineer, Systems and Equipment Branch, ANM-130L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone
(562)627-5339; fax
(562)627-5210. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2007-27152; Directorate Identifier 2006-NM-219-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov* . Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone
(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion We have received a report of temporary loss of the auto-flight function with displays of suspect or erratic airspeed indications on a McDonnell Douglas Model 717-200 airplane during climb-out in very heavy rain. The suspect or erratic indications were consistent with loss of air data sensor heating caused by ice build-up on unheated captain's, first officer's, and auxiliary's pitot sensors. In addition, investigation revealed that the original design of the air data sensor heating system does not meet system separation criteria and independence requirements. As a result, the airplane may lose or have unreliable airspeed indications. This condition, if not corrected, could result in display of suspect or erratic airspeed indications during heavy rain conditions, which could reduce the ability of the flightcrew to maintain the safe flight and landing of the airplane. Relevant Service Information We have reviewed Boeing Alert Service Bulletin 717-30A0003, Revision 2, dated November 28, 2006. The service bulletin describes procedures for installing CTM-16-090 junction(s) and changing the wiring of the first officer's pitot static heater system, which separates the first officer's pitot sensor heater power from the captain's and auxiliary's pitot sensor heater power. These actions will ensure that the three systems (i.e., captain's, first officer's, and auxiliary's pitot sensor heaters) will always be on in-flight, regardless of the position of the air data heat switch. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously. Costs of Compliance There are about 155 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 123 airplanes of U.S. registry. The proposed actions would take between 4 and 16 work hours per airplane depending on the airplane configuration, at an average labor rate of $80 per work hour. The manufacturer states that it will supply required parts to the operators at no cost. Based on these figures, the estimated cost of the proposed AD for U.S. operators is between $39,360 and $157,440, or between $320 and $1,280 per airplane, depending on the airplane configuration. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **McDonnell Douglas:** Docket No. FAA-2007-27152; Directorate Identifier 2006-NM-219-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by April 2, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to McDonnell Douglas Model 717-200 airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin 717-30A0003, Revision 2, dated November 28, 2006. Unsafe Condition
(d)This AD results from a report of temporary loss of the auto-flight function with displays of suspect or erratic airspeed indications. We are issuing this AD to prevent display of suspect or erratic airspeed indications during heavy rain conditions, which could reduce the ability of the flightcrew to maintain the safe flight and landing of the airplane. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Installation and Wiring Change
(f)Within 24 months after the effective date of this AD, install CTM-16-090 junction(s) and change the wiring of the first officer's pitot static heater system, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 717-30A0003, Revision 2, dated November 28, 2006.
(g)Actions done before the effective date of this AD in accordance with Boeing Alert Service Bulletin 717-30A0003, Revision 1, dated March 2, 2006, are acceptable for compliance with the corresponding provisions of paragraph
(f)of this AD. Alternative Methods of Compliance (AMOCs) (h)(1) The Manager, Los Angeles Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office. Issued in Renton, Washington, on February 5, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-2525 Filed 2-13-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27151; Directorate Identifier 2006-NM-156-AD] RIN 2120-AA64 Airworthiness Directives; McDonnell Douglas Model MD-10-10F and MD-10-30F Airplanes, Model MD-11 and MD-11F Airplanes, and Model 717-200 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to supersede an existing airworthiness directive
(AD)that applies to all McDonnell Douglas Model MD-10-10F and MD-10-30F airplanes, Model MD-11 and MD-11F airplanes, and Model 717-200 airplanes. The existing AD currently requires a revision to the Limitations section of the airplane flight manual
(AFM)to prohibit use of the flight management system
(FMS)profile
(PROF)mode for descent and/or approach operations unless certain conditions are met. This proposed AD would require, for Model 717-200 airplanes, upgrading the versatile integrated avionics
(VIA)digital computer with new system software, which would end the need for the AFM revision. This proposed AD results from a report of two violations of the selected flight control panel
(FCP)altitude during FMS PROF descents. We are proposing this AD to prevent, under certain conditions during the FMS PROF descent, the uncommanded descent of an airplane below the selected level-off altitude, which could result in an unacceptable reduction in the separation between the airplane and nearby air traffic or terrain. DATES: We must receive comments on this proposed AD by April 2, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, room PL-401, Washington, DC 20590. • *Fax:*
(202)493-2251. • *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. Contact Boeing Commercial Airplanes, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024), for service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Thomas Phan, Aerospace Engineer, Propulsion Branch, ANM-140L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone
(562)627-5342; fax
(562)627-5210. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “Docket No. FAA-2007-27151; Directorate Identifier 2006-NM-156-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or may can visit *http://dms.dot.gov.* Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone
(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion On August 25, 2004, we issued AD 2004-18-04, amendment 39-13782 (69 FR 53794, September 21, 2004), for all McDonnell Douglas Model MD-10-10F and MD-10-30F airplanes, Model MD-11 and MD-11F airplanes, and Model 717-200 airplanes. That AD currently requires a revision to the Limitations section of the airplane flight manual
(AFM)to prohibit use of the flight management system
(FMS)profile
(PROF)mode for descent and/or approach operations unless certain conditions are met. That AD resulted from a report of two violations of the selected flight control panel
(FCP)altitude during FMS PROF descents. We issued that AD to prevent, under certain conditions during the FMS PROF descent, the uncommanded descent of an airplane below the selected level-off altitude, which could result in an unacceptable reduction in the separation between the airplane and nearby air traffic or terrain. Actions Since Existing AD Was Issued The preamble to AD 2004-18-04 explains that we consider the requirements “interim action” and that the manufacturer was developing a software modification to address the unsafe condition. That AD explained that we may consider further rulemaking if a modification is developed, approved, and available. The manufacturer now has developed such a modification for Model 717-200 airplanes, and we have determined that further rulemaking is indeed necessary; this proposed AD follows from that determination. Other Relevant Rulemaking On August 3, 2006, we issued AD 2006-16-15, amendment 39-14715 (71 FR 47707, August 18, 2006), for certain McDonnell Douglas Model MD-10-10F and MD-10-30F airplanes and all Model MD-11 and MD-11F airplanes. That AD currently requires installation of upgraded flight management computer
(FMC)software. As specified in paragraph (n)(4) of that AD, doing the applicable software/hardware upgrades required by paragraph
(j)or
(k)of that AD is an alternative method of compliance for the corresponding actions required by AD 2004-18-04. Doing the upgrades specified in AD 2006-16-15 would also be an acceptable method of compliance for the actions in paragraph
(f)of this proposed AD for the applicable airplanes. Relevant Service Information We have reviewed Boeing Service Bulletin 717-31-0013, dated March 25, 2005. The service bulletin describes procedures for upgrading the versatile integrated avionics
(VIA)digital computer with new system software (part number (P/N) PS4081970-909) and in-service data acquisition system (ISDAS) database
(DB)software (P/N PS4081642-909). The service bulletin refers to Honeywell Alert Service Bulletin 4081570-31-A6007, dated March 9, 2005, as an additional source of service information for doing the actions. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to develop on other airplanes of the same type design. For this reason, we are proposing this AD, which would supersede AD 2004-18-04 and would retain the requirements of the existing AD. This proposed AD would also require accomplishing the actions specified in Boeing Service Bulletin 717-31-0013 described previously. Clarification of Alternative Method of Compliance
(AMOC)Paragraph We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies. Costs of Compliance There are about 369 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. The parts manufacturer states that it will supply required parts to the operators at no cost. Estimated Costs Action Work hours Average labor rate per hour Cost per airplane Number of U.S.-registered airplanes Fleet cost AFM Revision (required by AD 2004-18-04) 1 $80 $80 226 $18,080 Software upgrade for Model 717-200 airplanes (new proposed action) 1 $80 $80 109 $8,720 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by removing amendment 39-13782 (69 FR 53794, September 21, 2004) and adding the following new airworthiness directive (AD): **McDonnell Douglas:** Docket No. FAA-2007-27151; Directorate Identifier 2006-NM-156-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by April 2, 2007. Affected ADs
(b)This AD supersedes AD 2004-18-04. Applicability
(c)This AD applies to all McDonnell Douglas Model MD-10-10F and MD-10-30F airplanes, Model MD-11 and MD-11F airplanes, and Model 717-200 airplanes, certificated in any category. Unsafe Condition
(d)This AD results from a report of two violations of the selected flight control panel
(FCP)altitude during flight management system
(FMS)profile
(PROF)descents. We are issuing this AD to prevent, under certain conditions during the FMS PROF descent, the uncommanded descent of an airplane below the selected level-off altitude, which could result in an unacceptable reduction in the separation between the airplane and nearby air traffic or terrain. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Restatement of Requirements of AD 2004-18-04 Airplane Flight Manual
(AFM)Revision
(f)Within 90 days after September 20, 2004 (the effective date of AD 2004-18-04), revise the Limitations section of the AFM to include the following statement. This may be done by inserting a copy of this AD in the AFM. Doing the applicable software upgrade specified in paragraph
(g)of this AD (for Model 717-200 airplanes), paragraph
(j)of AD 2006-16-15, amendment 39-14715 (for Model MD-11 and MD-11F airplanes), or paragraph
(k)of AD 2006-16-15 (for Model MD-10-10F and MD-10-30F airplanes), terminates the requirements of this paragraph for that airplane. For airplanes on which the applicable software upgrade has been done, the AFM revision may be removed. “Use of PROF mode for descent and/or approach operations is prohibited unless 1. The airplane is on path and the FMA indicates THRUST │xxx│ PROF, or 2. The indicated airspeed is below Vmax for the airplane configuration by at least: a. 10 knots at indicated altitudes below 10,000 feet, or b. 15 knots at indicated altitudes of 10,000 feet or above, or 3. Basic autoflight modes (e.g., LVL CHG, V/S, or FPA) are used to recapture the path when the PROF mode is engaged and the airplane is: a. Above or below the path and the FMA indicates PITCH │xxx│ IDLE, or b. Below the path and the FMA indicates THRUST │xxx│ V/S.” Note 1: When a statement identical to that in paragraph
(f)of this AD has been included in the general revisions of the AFM, the general revisions may be inserted into the AFM, and the copy of this AD may be removed from the AFM. New Requirements of This AD Upgrade Software—Model 717-200 Airplanes
(g)For Model 717-200 airplanes: Within 18 months after the effective date of this AD, upgrade the versatile integrated avionics
(VIA)digital computer with new system software (part number (P/N) PS4081970-909) and in-service data acquisition system (ISDAS) database
(DB)software (P/N PS4081642-909), in accordance with the Accomplishment Instructions of Boeing Service Bulletin 717-31-0013, dated March 25, 2005. Doing this upgrade terminates the requirements of paragraph
(f)of this AD for that airplane only. Note 2: Boeing Service Bulletin 717-31-0013, dated March 25, 2005, refers to Honeywell Alert Service Bulletin 4081570-31-A6007, dated March 9, 2005, as an additional source of service information for doing the actions specified in paragraph
(g)of this AD. Parts Installation
(h)For Model 717-200 airplanes: As of the effective date of this AD, no person may install a VIA digital computer, P/N 4081570-904, -905, -906, or -907, on any airplane, except as required by the actions specified in paragraph
(g)of this AD. Alternative Methods of Compliance (AMOCs) (i)(1) The Manager, Los Angeles Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office. Issued in Renton, Washington, on February 1, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-2524 Filed 2-13-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27257; Directorate Identifier 2006-NM-131-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Model A300 Airplanes; and Model A300 B4-600, B4-600R, and F4-600R Series Airplanes, and Model A300 C4-605R Variant F Airplanes (Collectively Called A300-600 Series Airplanes) AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for all Airbus Model A300 airplanes and Model A300-600 series airplanes. This proposed AD would require inspecting to determine the part number of the sliding rods of the main landing gear
(MLG)retraction actuators. For MLG retraction actuators equipped with sliding rods having certain part numbers, this proposed AD would also require inspecting for discrepancies, including but not limited to cracking, of the sliding rod; and performing corrective actions if necessary. This proposed AD results from a report of a failure of a sliding rod of the MLG retraction actuator before the actuator reached the life limit established by the manufacturer. We are proposing this AD to prevent failure of the sliding rod of the MLG retraction actuator, which could result in reduced structural integrity of the MLG. DATES: We must receive comments on this proposed AD by March 16, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, room PL-401, Washington, DC 20590. • *Fax:*
(202)493-2251. • *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. Contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, for service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Thomas Stafford, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1622; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2007-27257; Directorate Identifier 2006-NM-131-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov.* Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone
(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, notified us that an unsafe condition may exist on all Airbus Model A300 airplanes; and Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called A300-600 series airplanes). The EASA advises of a report of a failure of a sliding rod of the main landing gear
(MLG)retraction actuator. The total number of flight cycles on the actuator at the time of the failure was close to, but below, the life limit of 32,000 flight cycles established by the manufacturer. Failure of a sliding rod of the MLG retraction actuator, if not corrected, could result in reduced structural integrity of the MLG. Relevant Service Information Airbus has issued Service Bulletins A300-32-0450 (for Model A300 airplanes) and A300-32-6097 (for Model A300-600 series airplanes), both Revision 01, both dated May 10, 2006. The service bulletins describe procedures for inspecting to determine the part number (P/N) of the sliding rod of the MLG retraction actuators on the left-hand and right-hand MLGs. For MLG retraction actuators equipped with sliding rods having certain part numbers, the service bulletins describe procedures for detailed and high frequency eddy current
(HFEC)inspections to detect discrepancies, including but not limited to cracking, of the thread of the sliding rod, and corrective actions if necessary. The corrective action, if any discrepancy is found, is replacing the MLG retraction actuator with a new or serviceable actuator that has a new sliding rod. The service bulletins also note that the MLG retraction actuator must be replaced with a new or serviceable actuator before the 32,000-flight-cycle life limit, regardless of the inspection findings. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The EASA mandated the service information and issued airworthiness directive 2006-0075R2, dated January 4, 2007, to ensure the continued airworthiness of these airplanes in the European Union. The Airbus service bulletins refer to Messier-Dowty Special Inspection Service Bulletin 470-32-806, dated October 27, 2005, as an additional source of service information for performing the detailed and HFEC inspections to detect discrepancies of the sliding rod. FAA's Determination and Requirements of the Proposed AD These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. As described in FAA Order 8100.14A, “Interim Procedures for Working with the European Community on Airworthiness Certification and Continued Airworthiness,” dated August 12, 2005, the EASA has kept the FAA informed of the situation described above. We have examined the EASA's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States. Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously. This proposed AD would also require repeating the inspections in this proposed AD on MLG retraction actuators installed in accordance with this proposed AD prior to the accumulation of 27,000 flight cycles on those actuators. Difference Between the Proposed AD and the EASA Airworthiness Directive The EASA airworthiness directive specifies that MLG retraction actuator rods that have reached the life limit of 32,000 flight cycles must be returned to Messier-Dowty. However, this proposed AD would not require that action. We have included a reminder to operators in Note 3 of this proposed AD that the MLG retraction actuator rod must be replaced before the 32,000-flight-cycle life limit specified in the applicable airworthiness limitations document. Clarification of Requirement To Repeat Inspections The EASA's airworthiness directive and the referenced Airbus service bulletins do not specifically state that the inspections must be accomplished on all actuators installed from spares when they reach the inspection threshold. However, we have determined that these inspections are necessary on any MLG retraction actuator equipped with a sliding rod having P/N C69029-2 or C69029-3 when the MLG retraction actuator reaches the thresholds specified in this proposed AD. This is consistent with the intent of the EASA's airworthiness directive and the service bulletins. Costs of Compliance The following table provides the estimated costs for U.S. operators to comply with this proposed AD, at an average labor rate of $80 per hour, per inspection cycle. Estimated Costs Action Work hours Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost Inspection to determine part number 1 None $80 168 $13,440 Inspections for discrepancies 11 None 880 168 147,840 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Airbus:** Docket No. FAA-2007-27257; Directorate Identifier 2006-NM-131-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by March 16, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to all Airbus Model A300 airplanes; and all Airbus Model A300 B4-601, A300 B4-603, A300 B4-620, A300 B4-622, A300 B4-605R, A300 B4-622R, A300 F4-605R, A300 F4-622R, and A300 C4-605R Variant F airplanes; certificated in any category. Unsafe Condition
(d)This AD results from a report of a failure of a sliding rod of the main landing gear
(MLG)retraction actuator before the actuator reached the life limit established by the manufacturer. We are issuing this AD to prevent failure of the sliding rod of the MLG retraction actuator, which could result in reduced structural integrity of the MLG. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Service Bulletin Reference
(f)The term “service bulletin,” as used in this AD, means the Accomplishment Instructions of the service bulletins identified in paragraphs (f)(1) and (f)(2) of this AD, as applicable. Where these service bulletins refer to an inspection report, this AD does not require submitting an inspection report.
(1)*For Model A300 airplanes:* Airbus Service Bulletin A300-32-0450, Revision 01, excluding Appendix 01, dated May 10, 2006.
(2)For Model A300 B4-601, A300 B4-603, A300 B4-620, A300 B4-622, A300 B4-605R, A300 B4-622R, A300 F4-605R, A300 F4-622R, and A300 C4-605R Variant F airplanes: Airbus Service Bulletin A300-32-6097, Revision 01, excluding Appendix 01, dated May 10, 2006. Note 1: The Airbus service bulletins refer to Messier-Dowty Special Inspection Service Bulletin 470-32-806, dated October 27, 2005, as an additional source of service information for performing detailed and high-frequency eddy current
(HFEC)inspections to detect discrepancies of the sliding rod. Inspection to Determine Part Number (P/N) of Sliding Rod
(g)At the time specified in paragraph (g)(1) or (g)(2) of this AD, whichever is later, do a one-time inspection to determine the part number of the sliding rod of the MLG retraction actuator, in accordance with the applicable service bulletin. If no sliding rod having P/N C69029-2 or C69029-3 is installed, no further action is required by this paragraph.
(1)Before the accumulation of 27,000 total flight cycles on the MLG retraction actuator.
(2)Within 1,000 landings or 12 months after the effective date of this AD, whichever is first. Inspection for Discrepancies of Sliding Rod
(h)For MLG retraction actuators equipped with sliding rods having P/N C69029-2 or C69029-3: At the later of the times specified in paragraph (g)(1) or (g)(2) of this AD, perform detailed and HFEC inspections of the sliding rod of the MLG retraction actuators on the left-hand and right-hand MLGs, in accordance with the applicable service bulletin. Then, before further flight, perform all applicable corrective actions, in accordance with the applicable service bulletin. Note 2: For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.” Note 3: Operators should note that the MLG retraction actuator rod must be replaced with a new or serviceable actuator rod before the 32,000-flight-cycle life limit specified in the applicable airworthiness limitations document, regardless of the inspection findings. Parts Installation for MLG Retraction Actuator Rod
(i)As of the effective date of this AD, no person may install, on any airplane, an MLG retraction actuator that is equipped with a sliding rod having P/N C69029-2 or C69029-3, and on which the retraction actuator rod has accumulated 27,000 total flight cycles or more, unless paragraph
(h)of this AD is accomplished. Actions Accomplished According to a Previous Issue of the Service Bulletins
(j)Inspections and corrective actions done before the effective date of this AD in accordance with the following service bulletins are acceptable for compliance with the corresponding requirements of this AD:
(1)For Model A300 airplanes: Airbus Service Bulletin A300-32-0450, excluding Appendix 01, dated December 1, 2005.
(2)For Model A300 B4-601, A300 B4-603, A300 B4-620, A300 B4-622, A300 B4-605R, A300 B4-622R, A300 F4-605R, A300 F4-622R, and A300 C4-605R Variant F airplanes: Airbus Service Bulletin A300-32-6097, excluding Appendix 01, dated December 1, 2005. Alternative Methods of Compliance (AMOCs) (k)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office. Related Information
(l)European Aviation Safety Agency airworthiness directive 2006-0075R2, dated January 4, 2007, also addresses the subject of this AD. Issued in Renton, Washington, on February 6, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-2513 Filed 2-13-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27223; Directorate Identifier 2006-NM-224-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 767 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for certain Boeing Model 767 airplanes. This proposed AD would require modifying the link arms of the number 2 windows in the flight compartment. This proposed AD results from reports of the number 2 windows opening during takeoff roll, which has resulted in aborted takeoffs. We are proposing this AD to prevent the opening of the number 2 windows during takeoff roll, which could result in an aborted takeoff or an unscheduled landing, and adversely affect the flightcrew's ability to perform critical takeoff communication. DATES: We must receive comments on this proposed AD by April 2, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, room PL-401, Washington, DC 20590. • *Fax:*
(202)493-2251. • *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. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: John Bell, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6422; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2007-27223; Directorate Identifier 2006-NM-224-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov.* Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov,* or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone
(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion Operators have reported the number 2 windows opening during takeoff roll. This has resulted in aborted takeoffs, which have occurred at speeds up to 140 knots. The number 2 windows are opened and closed by rotating an operating crank. When the flightcrew closes the window, the crank roller at the end of the torque tube will move and lock into the cam block at the top aft corner of the window. On affected airplanes, the crank roller can move at 18-degree increments with one gear tooth rotation. This minimum adjustment of 18 degrees can cause too much movement of the lower link arm and result in interference with the link bracket, preventing the crank roller from engaging into the cam block. When this occurs, the link arm will not be positioned at an angle less than 90 degrees (over center) in reference to the track roller, and the window could open during takeoff roll. Opening of the number 2 windows during takeoff roll, if not corrected, could result in aborted takeoffs or unscheduled landings, and adversely affect the flightcrew's ability to perform critical takeoff communication. Relevant Service Information We have reviewed Boeing Alert Service Bulletin 767-56A0010, dated September 7, 2006. The service bulletin describes procedures for modifying the link arms of the number 2 windows in the flight compartment. The modification will allow the crank roller to move at 9-degree increments with a change of position of a retaining pin, instead of one gear tooth rotation of 18-degree increments. The link arm that drives the window shut will be positioned at an angle less than 90 degrees (over center), in reference to the track roller, when the window is closed. The modification will make sure that the window cannot open without input from the operating crank. The modification involves either: • Replacing the link brackets, cam blocks, and torque tube assemblies with new parts; or • Reworking the cam blocks and torque tube assemblies, and either reworking the link brackets or replacing them with new link brackets. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously. Costs of Compliance There are about 896 airplanes of the affected design in the worldwide fleet; of these, 384 are U.S.-registered airplanes. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. The cost of parts depends on the type and extent of the replacement or rework. Estimated Costs Action Work hours Average labor rate per hour Parts Cost per airplane Fleet cost Modification 8-10 $80 $495-$6,805 $1,135-$7,605 Up to $2,920,320. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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. *For the reasons discussed above, I certify that the proposed regulation:* 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2007-27223; Directorate Identifier 2006-NM-224-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by April 2, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to Model 767-200, -300, -300F, and -400ER series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 767-56A0010, dated September 7, 2006. Unsafe Condition
(d)This AD results from reports of the number 2 windows opening during takeoff roll, which has resulted in aborted takeoffs. We are issuing this AD to prevent the opening of the number 2 windows during takeoff roll, which could result in an aborted takeoff or an unscheduled landing, and adversely affect the flightcrew's ability to perform critical takeoff communication. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Modification
(f)Within 60 months after the effective date of this AD, modify the link arms of the number 2 windows in the flight compartment, in accordance with Boeing Alert Service Bulletin 767-56A0010, dated September 7, 2006. Alternative Methods of Compliance (AMOCs) (g)(1) The Manager, Seattle Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office. Issued in Renton, Washington, on February 5, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-2523 Filed 2-13-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27109; Directorate Identifier 2007-CE-005-AD] RIN 2120-AA64 Airworthiness Directives; LATINOAMERICANA DE AVIACIÓN (LAVIA) S.A. (Type Certificate Data Sheets No. 2A8 and No. 2A10 Previously Held by The New Piper Aircraft, Inc.) Models PA-25, PA-25-235, and PA-25-260 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI references Latinoamericana de Aviación S.A. Service Bulletin No. 25/53/03, dated May 10, 2006, which describes the unsafe condition as: REAR AND FORWARD SUPPORTS OF BOTH HORIZONTAL STABILIZER MODIFICATION. It have been found on several of the affected airplanes some severe corrosion and cracks in both supports. The probable cause for those failures is the accumulation of steam or application products vapors. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by March 16, 2007. ADDRESSES: You may send comments by any of the following methods: • *DOT Docket Web Site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Fax:*
(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:* *http://www.regulations.gov.* Follow the instructions for submitting comments. Examining the AD Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Mr. Sarjapur Nagarajan, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4145; fax:
(816)329-4090. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products. This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-27109; Directorate Identifier 2007-CE-005-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The Dirección Nacional de Aeronavegabilidad (DNA), which is the aviation authority for Republica Argentina, has issued AD No. RA 2006-06-01, Rev. 1 LAVIA S.A., Amendment No. 39/03-041, dated November 17, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI references Latinoamericana de Aviación S.A. Service Bulletin No. 25/53/03, dated May 10, 2006, which states: REAR AND FORWARD SUPPORTS OF BOTH HORIZONTAL STABILIZER MODIFICATION. It have been found on several of the affected airplanes some severe corrosion and cracks in both supports. The probable cause for those failures is the accumulation of steam or application products vapors. The MCAI requires: Compliance with Service Bulletin No. 25/53/03 issued by Latinoamericana de Aviación S.A. is required in order to detect cracks, evidence of corrosion or any other anomalies on support tubes of the horizontal stabilizer. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Latinoamericana de Aviación S.A. has issued Service Bulletin No. 25/53/03, dated May 10, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of the Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This Proposed AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 1,144 products of U.S. registry. We also estimate that it would take about 10 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $845 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,881,880, or $1,645 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **LATINOAMERICANA DE AVIACIÓN (LAVIA) S.A. (Type Certificate Data Sheets No. 2A8 and No. 2A10 previously held by The New Piper Aircraft, Inc.):** Docket No. FAA-2007-27109; Directorate Identifier 2007-CE-005-AD Comments Due Date
(a)We must receive comments by March 16, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to Models PA-25, PA-25-235, and PA-25-260, all serial numbers up to LA-260-06008, certificated in any category. Subject
(d)Air Transport Association of America
(ATA)Code 55: Stabilizers. Reason
(e)The mandatory continuing airworthiness information
(MCAI)references Latinoamericana de Aviación S.A. Service Bulletin No. 25/53/03, dated May 10, 2006, which states: REAR AND FORWARD SUPPORTS OF BOTH HORIZONTAL STABILIZER MODIFICATION. It has been found on several of the affected airplanes some severe corrosion and cracks in both supports. The probable cause for those failures is the accumulation of steam or application products vapors. Actions and Compliance
(f)Unless already done, do the following actions:
(1)Upon accumulating 1,500 hours time-in-service
(TIS)or within the next 50 hours TIS after the effective date of this AD, whichever occurs later, do the operations as specified in the paragraph “ACTIONS,” subparagraph “INITIAL” of Latinoamericana de Aviación S.A. Service Bulletin No. 25/53/03, dated May 10, 2006. Repetitively inspect thereafter every 100 hours TIS or 12 months, whichever occurs first, until the modification specified in paragraph “ACTIONS,” subparagraph “DEFINITIVE” of Latinoamericana de Aviación S.A. Service Bulletin No. 25/53/03, dated May 10, 2006, is done.
(2)If any evidence of cracks, signs of corrosion, or any other discrepancy is detected during any inspection required in paragraph (f)(1) of this AD, before further flight, disassemble both horizontal stabilizers and conduct a detailed inspection on the surface of both supports and take corrective action. Use paragraph “ACTIONS,” subparagraph “DEFINITIVE” of Latinoamericana de Aviación S.A. Service Bulletin No. 25/53/03, dated May 10, 2006.
(3)After incorporating the modification specified in paragraph “ACTIONS,” subparagraph “DEFINITIVE” of Latinoamericana de Aviación S.A. Service Bulletin No. 25/53/03, dated May 10, 2006, no further action is required.
(4)Upon accumulating 1,000 hours TIS after the effective date of this AD, modify both horizontal stabilizers as specified in paragraph “ACTIONS,” subparagraph “DEFINITIVE” of Latinoamericana de Aviación S.A. Service Bulletin No. 25/53/03, dated May 10, 2006, unless already done. Incorporating this modification terminates the repetitive inspection requirement in paragraph (f)(1) of this AD.
(5)As a terminating action to the inspection requirements of this AD, the modification to both horizontal stabilizers specified in paragraph “ACTIONS,” subparagraph “DEFINITIVE” of Latinoamericana de Aviación S.A. Service Bulletin No. 25/53/03, dated May 10, 2006, may be incorporated at any time after the effective date of this AD and before the time required in paragraph (f)(4) of this AD. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Standards Staff, FAA, Small Airplane Directorate, ATTN: Sarjapur Nagarajan, Aerospace Engineer, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4145; fax:
(816)329-4090, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et.seq.), the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI Dirección Nacional de Aeronavegabilidad AD No. RA 2006-06-01, Rev. 1 LAVIA S.A., Amendment No. 39/03-041, dated November 17, 2006; and Latinoamericana de Aviación S.A. Service Bulletin No. 25/53/03, dated May 10, 2006, for related information. Issued in Kansas City, Missouri, on February 8, 2007. Kim Smith, Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-2508 Filed 2-13-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 301 [REG-159444-04] RIN 1545-BE35 Release of Lien or Discharge of Property; Correction AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Correction to notice of proposed rulemaking. SUMMARY: This document contains corrections to a notice of proposed rulemaking (REG-159444-04) that was published in the **Federal Register** on Thursday, January 11, 2007 (72 FR 1301) relating to release of lien and discharge of property under sections 6325, 6503, and 7426 of the Internal Revenue Code. FOR FURTHER INFORMATION CONTACT: Debra A. Kohn,
(202)622-7985 (not toll-free number). SUPPLEMENTARY INFORMATION: Background The correction notice that is the subject of this document is under sections 6325, 6503, and 7426 of the Internal Revenue Code. Need for Correction As published, the notice of proposed rulemaking (REG-159444-04) contains errors that may prove to be misleading and are in need of clarification. Correction of Publication Accordingly, the publication of proposed rulemaking (REG-159444-04), which was the subject of FR Doc. E7-219, is corrected as follows: 1. On page 1302, column 1, in the preamble, under the paragraph heading “Background”, sixth line from the bottom of the second paragraph of the column, the language “addition these provisions to the Code,” is corrected to read “addition of these provisions to the Code,”. § 301.6325-1 [Corrected] 2. On page 1306, column 3, § 301.6325-1(a)(2)(i), fourth paragraph of the column, sixth line from the bottom of the paragraph, the language “been put into the matter. In no case” is corrected to read “been put in the matter. In no case”. LaNita Van Dyke, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). [FR Doc. E7-2496 Filed 2-13-07; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF COMMERCE United States Patent and Trademark Office 37 CFR Part 2 [Docket No. PTO-T-2006-0011] RIN 0651-AC05 Changes in the Requirements for Filing Requests for Reconsideration of Final Office Actions in Trademark Cases AGENCY: United States Patent and Trademark Office, Commerce. ACTION: Notice of proposed rule. SUMMARY: The United States Patent and Trademark Office (“USPTO”) proposes to amend 37 CFR 2.64 to require a request for reconsideration of an examining attorney's final refusal or requirement to be filed through the Trademark Electronic Application System (“TEAS”) within three months of the mailing date of the final action. DATES: Comments must be received by April 16, 2007 to ensure consideration. ADDRESSES: The Office prefers that comments be submitted via electronic mail message to *TM RECON COMMENTS@USPTO.GOV.* Written comments may also be submitted by mail to Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451, attention Cynthia C. Lynch; or by hand delivery to the Trademark Assistance Center, Concourse Level, James Madison Building-East Wing, 600 Dulany Street, Alexandria, Virginia, attention Cynthia C. Lynch; or by electronic mail message via the Federal eRulemaking Portal. See the Federal eRulemaking Portal Web site ( *http://www.regulations.gov* ) for additional instructions on providing comments via the Federal eRulemaking Portal. The comments will be available for public inspection on the Office's Web site at *http://www.uspto.gov.* and will also be available at the Office of the Commissioner for Trademarks, Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia. FOR FURTHER INFORMATION CONTACT: Cynthia C. Lynch, Office of the Deputy Commissioner for Trademark Examination Policy, by telephone at
(571)272-8742. SUPPLEMENTARY INFORMATION: The USPTO proposes the amendment of 37 CFR 2.64 to streamline and promote efficiency in the process once a final action has issued in an application for trademark registration. By setting a three-month period in which to file a request for reconsideration of the final action, and by requiring that the request be filed through TEAS, the proposed amendment would facilitate the likely disposition of an applicant's request for reconsideration prior to the six-month deadline for filing an appeal to the Trademark Trial and Appeal Board (“TTAB”) or petition to the Director on the same final action. This may eliminate the need for some appeals or petitions, and reduces the need for remands and transfers of applications on appeal. A request for reconsideration of a final action does not extend the time for filing an appeal or petitioning the Director on that action. Under the current version of the rule, wherein the applicant may file a request for reconsideration at any time between the final action and the six-month deadline for appealing or petitioning, many applicants simultaneously seek reconsideration and file an appeal. Because the examining attorney loses jurisdiction over the application upon the filing of an appeal to the TTAB, this simultaneous pursuit of reconsideration and appeal often necessitates a remand by the TTAB to the examining attorney for a decision on the request for reconsideration. If the request is denied, then the case is transferred back to the TTAB. If the request is granted, and the examining attorney reconsiders the final action, the appeal or petition may become moot. The need for these remands and transfers contributes to the burden on the applicant and the USPTO, and prolongs the pendency of the case. In order to eliminate some appeals and petitions and reduce the need for these remands and transfers, the proposed rule provides that a request for reconsideration must be filed within three months of the final action, while the six-month period for appeal or petition remains unchanged. Normally, the examining attorney will reply to the request for reconsideration before the end of the six-month period to appeal or petition. To facilitate the prompt consideration by the examining attorney, the proposed rule further provides that the request must be filed through TEAS, which expedites the examining attorney's notice of and access to the request. The proposed earlier deadline and mandatory TEAS filing facilitate the likely disposition of the request for reconsideration prior to the deadline to petition or appeal. A grant of reconsideration within this time frame will obviate the need for an applicant to file an appeal or petition, thus also saving the applicant the filing fee for an appeal or petition. A denial of reconsideration within this time frame will obviate the need for a case on appeal to be remanded and transferred between the TTAB and the examining attorney. Under either scenario, the time frame in the proposed rule promotes more efficient and prompt handling of the case, and achieves benefits both for the applicant and the USPTO. References in this notice to “the Act,” “the Trademark Act,” or “the statute” refer to the Trademark Act of 1946, 15 U.S.C. 1051 *et seq.* , as amended. “TMEP” refers to the *Trademark Manual of Examining Procedure,* 4th Edition, April 2005. Discussion of Specific Rule The Office proposes to revise current § 2.64(b). This section concerns the time frame for and effect of filing a request for reconsideration of a final action, as well as the treatment of amendments accompanying such requests. The proposed revision changes the period for filing a request for reconsideration of a final action to three months from the date of the action. The proposed revision also introduces a requirement that any request for reconsideration be filed through TEAS. In addition, the proposed revision eliminates the aspirational statement in the current rule as to when an examining attorney would “normally” act on such requests, as unnecessary to the rule. Nonetheless, the USPTO anticipates that an examining attorney will continue to act promptly on such requests, and in any event, before the end of the six-month period to petition or appeal. The proposed rule still affords applicants the opportunity to submit amendments for the full six-month period from the date of the final action, and maintains the practice under the current rule that such amendments are entered if they comply with the applicable rules and statutory provisions. As in the current version of the rule, the filing of such amendments does not extend the time for filing an appeal or petitioning the Director. The Office proposes a technical correction to § 2.64(c), for consistency with the proposed amendment to § 2.64(b), to eliminate the reference to “the six-month *response* period after issuance of the final action.” The reference would be changed to “the six-month period after issuance of the final action.” Rule Making Requirements *Executive Order 13132:* This rule does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999). *Executive Order 12866:* This rule has been determined not to be significant for purposes of Executive Order 12866 (Sept. 30, 1993). *Regulatory Flexibility Act:* The Deputy General Counsel for General Law of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule changes will not have a significant impact on a substantial number of small entities (Regulatory Flexibility Act, 5 U.S.C. 605(b)). The changes proposed in this notice would not impose any additional fees on trademark applicants. Rather, the proposed changes would facilitate the likely disposition of the request for reconsideration prior to the deadline to petition or appeal. A grant of reconsideration within this time frame will obviate the need for an applicant to file an appeal or petition, thus also saving the applicant the filing fee for an appeal or petition. *Paperwork Reduction Act:* This notice involves information collection requirements which are subject to review by the Office of Management and Budget
(OMB)under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The collection of information involved in this notice has been reviewed and previously approved by OMB under OMB control number 0651-0050. This notice proposes to require a request for reconsideration of an examining attorney's final refusal or requirement to be filed through TEAS within three months of the mailing date of the final action. The United States Patent and Trademark Office is resubmitting an information collection package to OMB for its review and approval because the changes in this notice do affect the information collection requirements associated with the information collection under OMB control number 0651-0050. The estimated annual reporting burden for OMB control number 0651-0050 Electronic Response to Office Action and Preliminary Amendment Forms is 117,400 responses and 19,958 burden hours. The estimated time per response is 10 minutes. The time for reviewing instructions, gathering and maintaining the data needed, and completing and reviewing the collection of information is included in the estimate. The collection is approved through April of 2009. Comments are invited on:
(1)Whether the collection of information is necessary for proper performance of the functions of the agency;
(2)the accuracy of the agency's estimate of the burden;
(3)ways to enhance the quality, utility, and clarity of the information to be collected; and
(4)ways to minimize the burden of the collection of information to respondents. Interested persons are requested to send comments regarding these information collections, including suggestions for reducing this burden, to the Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451 (Attn: Cynthia C. Lynch), and to the Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street, NW., Washington, DC 20503 (Attn: Desk Officer for the Patent and Trademark Office). Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number. List of Subjects in 37 CFR Part 2 Administrative practice and procedure, Trademarks. For the reasons stated, title 37 CFR part 2 is proposed to be amended as follows: PART 2—RULES OF PRACTICE IN TRADEMARK CASES 1. The authority citation for 37 CFR part 2 continues to read as follows: Authority: 15 U.S.C. 1123, 35 U.S.C. 2, unless otherwise noted. 2. Amend § 2.64 by revising paragraphs
(b)and (c)(1) to read as follows: § 2.64 Final action. (b)(1) During the three-month period after issuance of a final action, the applicant may request that the examining attorney reconsider the final action. The request must be filed through TEAS. The filing of a request for reconsideration will not extend the time for filing an appeal or petitioning the Director.
(2)During the six-month period after issuance of a final action, the applicant may submit amendments. Any such amendments will be examined, and will be entered if they comply with the rules of practice in trademark cases and the Act of 1946. The filing of such an amendment will not extend the time for filing an appeal or petitioning the Director. (c)(1) If an applicant in an application under section 1(b) of the Act files an amendment to allege use under § 2.76 during the six-month period after issuance of a final action, the examiner shall examine the amendment. The filing of such an amendment will not extend the time for filing an appeal or petitioning the Director. Dated: February 8, 2007. Jon W. Dudas, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. [FR Doc. E7-2519 Filed 2-13-07; 8:45 am] BILLING CODE 3510-16-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R09-OAR-2007-0101; FRL-8277-9] Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes: California AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to grant a request submitted by the State to redesignate the South Coast from nonattainment to attainment for the CO National Ambient Air Quality Standards (NAAQS). EPA is also proposing to approve a state implementation plan
(SIP)revision for the South Coast nonattainment area in California as meeting the Clean Air Act
(CAA)requirements for maintenance plans for carbon monoxide (CO). EPA is proposing to find adequate and approve motor vehicle emission budgets, which are included in the maintenance plan. Finally, EPA is proposing to approve the California motor vehicle inspection and maintenance (I/M) program as meeting the low enhanced I/M requirements for CO in the South Coast. DATES: Comments must be received by March 16, 2007. ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-2007-0101, by one of the following methods: 1. Agency Web site: *http://www.regulations.gov* . EPA prefers receiving comments through this electronic public docket and comment system. Follow the on-line instructions to submit comments. 2. Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the on-line instructions. 3. E-mail: *jesson.david@epa.gov* 4. Mail or deliver: Marty Robin, Office of Air Planning (AIR-2), U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, CA 94105-3901. *Instructions:* All comments will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through the agency Web site, eRulemaking portal, or e-mail. The agency Web site and eRulemaking portal are anonymous access systems, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. *Docket:* The index to the docket for this action is available electronically at *http://www.regulations.gov* and in hard copy at EPA Region 9, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: David Jesson, U.S. EPA Region 9, 415-972-3961, *david.jesson@epa.gov* or *http://www.epa.gov/region09/air/actions* . SUPPLEMENTARY INFORMATION: Throughout this document, the terms “we,” “us,” and “our” mean U.S. EPA. Table of Contents I. Summary of Today's Proposed Action II. CO SIPs for the South Coast A. Requirements for Serious CO Nonattainment Areas B. Serious CO SIP for the South Coast C. CO Maintenance Plan for the South Coast III. South Coast Redesignation to Attainment A. Attainment of the NAAQS 1. Basis for Determining Attainment 2. Record of Attainment in the South Coast B. Fully Approved Applicable Implementation Plan Under CAA Section 110(k) Meeting Requirements Applicable for Purposes of Redesignation Under Section 110 and Part D 1. Basic SIP Requirements Under CAA Section 110 2. Clean Data Policy and Outstanding Part D Requirements a. Introduction b. RFP and Attainment Demonstration c. Contingency Provisions
(1)Introduction
(2)CAA Section 172(c)(9)
(3)CAA Section 187(a)(3) d. Conclusion 3. TCMs to Offset Growth in Emissions From VMT Increases 4. Requirement for Enhanced I/M Program 5. Wintertime Oxygenated Gasoline Program 6. Conclusion C. Improvement in Air Quality is Due to Permanent and Enforceable Measures D. Fully Approved Maintenance Plan 1. Applicable Requirements 2. Maintenance Plan Provisions a. Emissions Inventories for Attainment Year and Future Years b. Maintenance Demonstration c. Monitoring Network and Verification of Continued Attainment d. Contingency Provisions e. Commitment to Submit Subsequent Maintenance Plan Revision f. Motor Vehicle Emissions Budgets g. Conclusion IV. Proposed Action V. Statutory and Executive Order Reviews I. Summary of Today's Proposed Action We are proposing to approve the 2005 Carbon Monoxide Redesignation Request and Carbon Monoxide Maintenance Plan for the South Coast Air Basin (Maintenance Plan) as meeting the requirements of CAA sections 107(d)(3)(E) and 175A, which provide, in part, that plans must demonstrate continued attainment for at least 10 years and must include contingency measures. The submittal included evidence that the South Coast attained the CO NAAQS in 2002 and continues to attain the NAAQS. We are also proposing to approve and find adequate the motor vehicle emissions budgets (MVEBs) submitted with the Maintenance Plan. We are proposing to approve the request by the State of California to redesignate the area to attainment for CO under the provisions of CAA section 107(d)(3)(E). Section 107(d)(3)(E) authorizes the EPA Administrator to redesignate areas to attainment if the area has attained the NAAQS due to permanent and enforceable emission reductions, and the approved SIP for the area meets all of the applicable requirements of CAA section 110 (basic requirements applicable to SIPs generally), Part D (special SIP requirements applicable to nonattainment areas), and 175A (SIP requirements for maintenance areas). As part of our proposed determination that California has met applicable Part D provisions, we propose to adapt to CO nonattainment areas the provisions of our Clean Data Policy, which was initially established for ozone (see discussion below in section III.B.2.). Under the Clean Data Policy, certain CAA Part D requirements—including the requirements for developing attainment demonstrations, reasonable further progress
(RFP)plans, reasonably available control measures
(RACM)and contingency measures—no longer apply because the area has already attained the NAAQS. Finally, because our interim approval of California's I/M program for CO in the South Coast expired on August 7, 1998, California has now submitted a demonstration that the I/M program meets the low-enhanced requirements applicable to the South Coast CO nonattainment area (see discussion in section III.B.4.) We are proposing to approve that demonstration. II. CO SIPs for the South Coast A. Requirements for Serious CO Nonattainment Areas The CAA was substantially amended in 1990 to establish new planning requirements and attainment deadlines for the NAAQS, including CO. 1 Under section 107(d)(1)(C) of the Act, areas designated nonattainment prior to enactment of the 1990 amendments, including the South Coast, were designated nonattainment by operation of law. 2 Under section 186(a) of the Act, each CO area designated nonattainment under section 107(d) was also classified by operation of law as either moderate or serious, depending on the severity of the area's air quality problem. CO areas with design values at and above 16.5 ppm, such as the South Coast, were classified as serious. 1 Under section 109 of the CAA, EPA has established primary, health-related NAAQS for CO: 9 parts per million
(ppm)averaged over an 8-hour period, and 35 ppm averaged over 1 hour. Attainment of the 8-hour CO NAAQS is achieved if not more than one non-overlapping 8-hour average in any consecutive 2-year period per monitoring site exceeds 9 ppm (values below 9.5 are rounded down to 9.0 and are not considered exceedances). See 40 CFR 50.8; William G. Laxton, Director Technical Support Division, entitled “Ozone and Carbon Monoxide Design Value Calculations,” dated June 18, 1990; and EPA's General Preamble (see 57 FR 13535). 2 For a description of the boundaries of the Los Angeles-South Coast Air Basin, see 40 CFR 81.305. The nonattainment area includes all of Orange County and the more populated portions of Los Angeles, San Bernardino, and Riverside Counties. Section 172 of the Act contains general requirements applicable to SIPs for nonattainment areas. Sections 186 and 187 of the Act set out additional air quality planning requirements for CO nonattainment areas. The most fundamental of these provisions is the requirement that CO nonattainment areas submit by November 15, 1992, a SIP demonstrating attainment of the NAAQS as expeditiously as practicable, but no later than the deadline applicable to the area's classification: December 31, 1995, for moderate areas, and December 31, 2000, for serious areas like the South Coast. CAA sections 186(a)(1), 187(a)(7), and 187(b)(1). Such a demonstration must include enforceable measures to achieve emission reductions each year leading to emissions at or below the level predicted to result in attainment of the NAAQS throughout the nonattainment area. EPA has issued a General Preamble describing the Agency's preliminary views on how EPA intends to act on SIPs submitted under Title I of the Act. See generally 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992). The reader should refer to the General Preamble for a more detailed discussion of EPA's preliminary interpretations of the CAA's Title I requirements. B. Serious CO SIP for the South Coast On February 5, 1997, California submitted a CO plan for the South Coast, which had been adopted by the South Coast Air Quality Management District (SCAQMD) on November 15, 1996. Because the South Coast had continuously achieved the 1-hour CO NAAQS for more than 20 years, this plan primarily addressed the 8-hour CO NAAQS. On April 21, 1998 (63 FR 19661), we fully approved the SIP as meeting the applicable CO requirements for the South Coast, with the following exceptions:
(1)We took no action on the plan with respect to the CAA section 187(b)(2) requirement for transportation control measures
(TCMs)to offset any growth in emissions from vehicle miles traveled
(VMT)or numbers of vehicles trips;
(2)we took no action on the plan with respect to the contingency measure requirements of CAA sections 172(c)(9) and 187(a)(3); 3
(3)we granted interim approval to the RFP provisions under CAA sections 171(1), 172(c)(2), and 187(a)(7);
(4)we granted interim approval to the attainment demonstration under CAA section 187(a)(7); and
(5)we granted interim approval to the enhanced I/M program required by CAA 187(a)(6), as discussed below. 3 CAA section 172(c)(9) requires contingency measures that would be implemented if an area fails to make RFP or to attain the NAAQS by the applicable deadline. For CO areas, CAA section 187(a)(3) requires contingency measures to be implemented if any estimate of vehicle miles traveled
(VMT)in the area for any year prior to the attainment year that is submitted in an annual report under section 187(a)(2)(A) (“VMT tracking report”) exceeds the number predicted in the most recent prior forecast or if the area fails to attain the NAAQS by the attainment year. Interim approval is authorized under section 348(c) of the National Highway System Designation Act (“Highway Act,” Public Law 104-59, enacted on November 28, 1995) for certain types of I/M programs and, by extension, to SIP provisions dependent upon reductions from these I/M programs. We had previously granted interim approval to California's enhanced I/M program (62 FR 1160, January 8, 1997). Our 1997 interim approval established August 7, 1998, as the expiration of the approval if by such date EPA had not approved a SIP submittal demonstrating that the credits claimed for the I/M program are appropriate and the program is otherwise in full compliance with the applicable enhanced I/M requirements. Because the State did not submit the needed demonstration, the approval of the I/M program and the South Coast CO SIP with respect to RFP and attainment demonstration expired on August 7, 1998. C. CO Maintenance Plan for the South Coast In 2002, the South Coast attained the 8-hour CO NAAQS, and on March 4, 2005, the SCAQMD adopted the Maintenance Plan, following 30-day public notice (SCAQMD Board Resolution No. 05-8). On February 24, 2006, the California Air Resources Board
(CARB)adopted the Maintenance Plan (CARB Executive Order G-125-332) and submitted it to EPA as a SIP revision, along with a request that we approve a redesignation request to attainment (Letter from Lynn Terry, CARB, to Wayne Nastri, EPA Region 9). On August 11, 2006, CARB submitted additional technical information relating to the I/M program in the South Coast (Letter from Kurt Karperos, CARB, to Lisa Hanf, EPA Region 9). The attachment to the letter addressed the requirement associated with EPA's 1997 interim approval of the enhanced I/M program under the Highway Act, by demonstrating that the California smog check program meets minimum requirements applicable to an enhanced I/M program for CO. In accordance with CAA section 110(k)(1)(B), the submittal became complete by operation of law on August 25, 2006. III. South Coast Redesignation to Attainment The criteria for approval of a redesignation request are set out in CAA section 107(d)(3)(E). We review the State's request against each of these criteria in our discussion below. A. Attainment of the NAAQS 1. Basis for Determining Attainment CAA section 107(d)(3)(E) requires that we determine that the area has attained the NAAQS. EPA makes the determination as to whether an area's air quality is meeting the CO NAAQS based upon air quality data gathered at CO monitoring sites in the nonattainment area which have been entered into the Air Quality System
(AQS)database, formerly known as the Aerometric Information Retrieval System (AIRS). This data is reviewed to determine the area's air quality status in accordance with 40 CFR 50.8; EPA policy guidance as stated in a memorandum from William G. Laxton, Director Technical Support Division, entitled “Ozone and Carbon Monoxide Design Value Calculations,” dated June 18, 1990; and EPA's General Preamble at 57 FR 13535. The 8-hour and 1-hour CO design values are used to determine attainment of CO areas, and the design values are determined by reviewing 8 quarters of data, or a total of two complete calendar years of data for an area. The 8-hour design value is computed by first finding the maximum and second maximum (non-overlapping) 8-hour values at each monitoring site for each year of the two calendar years prior to and including the attainment date. Then the higher of the “second high” values is used as the design value for the monitoring site, and the highest design value among the various CO monitoring sites represents the CO design value for the area. The CO NAAQS requires that not more than one 8-hour average per year equals or exceeds 9.5 ppm (values below 9.5 are rounded down to 9 and are not considered exceedances). If an area has a design value that is equal to or greater than 9.5 ppm, this means that there was a monitoring site where the second highest (non-overlapping) 8-hour average was measured to be equal to or greater than 9.5 ppm in at least one of the two years being reviewed to determine attainment for the area. This indicates that there were at least two values above the NAAQS during one year at that site and thus the NAAQS for CO was not met. Conversely, an 8-hour design value of less than 9.5 ppm indicates that the area has attained the CO NAAQS. The 1-hour CO design value is computed in the same manner. An area attains the one-hour CO NAAQS if the 1-hour design value is less than 35.5 ppm. 2. Record of Attainment in the South Coast The Maintenance Plan presents the attainment air quality data for the South Coast's 22 monitoring stations in Table 2-2 on p. 8. During the period 2002-2003, there was only one maximum 8-hour average concentration above the standard, a 10.1 ppm concentration recorded at the Lynwood (South Central Los Angeles) site on January 8, 2002, under very stagnant conditions and a strong inversion. The maximum 8-hour concentration at Lynwood was 7.7 ppm in 2001 and 7.3 ppm in 2003. There were no exceedances of the 8-hour NAAQS recorded in 2001 and 2003 at any station, and the design value at all stations for the periods 2001-2002 and 2002-2003 was well below the NAAQS. A review of data input to AQS indicates that the South Coast has continued to attain the CO NAAQS since 2003. The highest second maximum 1-hour and 8-hour CO concentrations measured at the various monitoring stations during the 2004 through the first quarter of 2006 were 8.7 ppm and 6.1 ppm, respectively, both recorded in 2004 at the Lynwood station in south central Los Angeles County. These values are well below the corresponding CO NAAQS of 35 and 9 ppm. A “quick look” report generated using AQS for the South Coast CO monitoring stations for 2004 through the third quarter of 2006 is included in the docket for this proposed rule. The Maintenance Plan indicates that the 1-hour CO NAAQS has not been violated for 25 years in the South Coast. Based on the monitoring data presented in the Maintenance Plan and AQS data for the past two years, we propose to determine that the South Coast attained the CO NAAQS in 2002 and has continued to attain the NAAQS. B. Fully Approved Applicable Implementation Plan Under CAA Section 110(k) Meeting Requirements Applicable for Purposes of Redesignation Under Section 110 and Part D Section 107(d)(3)(E)(ii) and
(v)require EPA to determine that the area has a fully approved applicable SIP under section 110(k) that meets all applicable requirements under section 110 and Part D for purposes of redesignation. 1. Basic SIP Requirements Under CAA Section 110 The general SIP elements and requirements set forth in section 110(a)(2) include, but are not limited to, the following: Kubmittal of a SIP that has been adopted by the state after reasonable public notice and hearing; provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; implementation of a source permit program; provisions for the implementation of Part C requirement for Prevention of Significant Deterioration (PSD); provisions for the implementation of Part D requirements for New Source Review
(NSR)permit programs; provisions for air pollution modeling; and provisions for public and local agency participation in planning and emission control rule development. On numerous occasions over the past 35 years, CARB and SCAQMD have submitted and we have approved provisions addressing the basic CAA section 110 provisions. There are no outstanding or disapproved applicable SIP submittals with respect to the State and SCAQMD. 4 We propose to conclude that CARB and SCAQMD have met all SIP requirements for the South Coast area applicable for purposes of redesignation under section 110 of the CAA (General SIP Requirements). With the exceptions discussed below in Sections III.B.2-4, the SIP for the South Coast also has been approved as meeting applicable requirements under Part D of Title I of the CAA. See our approval of the South Coast CO attainment SIP at 63 FR 19661-2. 4 The applicable SIP for CARB and South Coast may be found at *http://yosemite.epa.gov/r9/r9sips.nsf/Casips?readform&state=California* . We note that SIPs must be fully approved only with respect to applicable requirements for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). Thus, for example, CAA section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. However, the section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's designation and classification in that state. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, we do not believe that these requirements should be construed to be applicable requirements for purposes of redesignation. In addition, EPA believes that the other section 110 elements not connected with nonattainment plan submissions and not linked with an area's attainment status are not applicable requirements for purposes of redesignation. The State will still be subject to these requirements after the South Coast area is redesignated. The section 110 and Part D requirements, which are linked with a particular area's designation and classification, are the relevant measures to evaluate in reviewing a redesignation request. This policy is consistent with EPA's existing policy on applicability of conformity (i.e., for redesignations) and oxygenated fuels requirement. See Reading, Pennsylvania, proposed and final rulemakings 61 FR 53174-53176 (October 10, 1996), 62 FR 24816 (May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking 61 FR 20458 (May 7, 1996); and Tampa, Florida, final rulemaking 60 FR 62748 (December 7, 1995). See also the discussion on this issue in the Cincinnati redesignation 65 FR 37890 (June 19, 2000), and in the Pittsburgh redesignation 66 FR 50399 (October 19, 2001). EPA believes that section 110 elements not linked to the area's nonattainment status are not applicable for purposes of redesignation. 2. Clean Data Policy and Outstanding Part D Requirements a. Introduction In some designated nonattainment areas, monitored data demonstrates that the NAAQS have already been achieved. Based on its interpretation of the Act, EPA has determined that certain SIP submission requirements of part D, subparts 1, 2, and 4 of the Act do not apply and therefore do not require certain submissions for an area that has attained the NAAQS. These include RFP requirements, attainment demonstrations and contingency measures, because these provisions have the purpose of helping achieve attainment of the NAAQS. The Clean Data Policy is the subject of two EPA memoranda setting forth our interpretation of the provisions of the Act as they apply to areas that have attained the relevant NAAQS. EPA also finalized the statutory interpretation set forth in the policy in a final rule, 40 CFR 51.918, as part of its Final Rule to Implement the 8-hour Ozone National Ambient Air Quality Standard—Phase 2 (Phase 2 Final Rule). See discussion in the preamble to the rule at 70 FR 71645-71646 (November 29, 2005). We have also applied the same approach to the interpretations of the provisions of subparts 1 and 4 applicable to PM-10. For detailed discussions of this interpretation with respect to the CAA's PM-10 requirements for RFP, attainment demonstrations, and contingency measures, see 71 FR 6352, 6354 (February 8, 2006); 71 FR 13021, 13024 (March 14, 2006); 71 FR 27440, 27443-27444 (May 11, 2006); and 71 FR 40952, 40954 (July 19, 2006); and 71 FR 63642 (October 30, 2006). EPA believes that the legal bases set forth in detail in our Phase 2 Final rule, our May 10, 1995 memorandum from John S. Seitz, entitled “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard” (Seitz memo), and our December 14, 2004 memorandum from Stephen D. Page entitled “Clean Data Policy for the Fine Particle National Ambient Air Quality Standards” (Page memo), are equally pertinent to the interpretation of provisions of subparts 1 and 3 applicable to CO. EPA's interpretation of how the provisions of the Act apply to areas with “clean data” is not logically limited to ozone, PM-2.5, and PM-10, because the rationale is not dependent upon the type of pollutant. Our interpretation that an area that is attaining the standard is relieved of obligations to demonstrate RFP and to provide an attainment demonstration and contingency measures pursuant to part D of the CAA, pertains whether the standard is CO, 1-hour ozone, 8-hour ozone, PM-2.5, or PM-10. b. RFP and Attainment Demonstration The reasons for relieving an area that has attained the relevant standard of certain part D, subpart 1 and 2 (sections 171 and 172) obligations, applies equally as well to part D, subpart 3, which contains specific attainment demonstration and RFP provisions for CO nonattainment areas. As we have explained in the 8-hour ozone Phase 2 Final Rule, our ozone and PM-2.5 clean data memoranda, and our approval of PM-10 SIPs, EPA believes it is reasonable to interpret provisions regarding RFP and attainment demonstrations, along with related requirements, so as not to require SIP submissions if an area subject to those requirements is already attaining the NAAQS (i.e., attainment of the NAAQS is demonstrated with three consecutive years of complete, quality-assured air quality monitoring data for ozone and PM, and two consecutive years for CO). Three U.S. Circuit Courts of Appeals have upheld EPA rulemakings applying its interpretation of subparts 1 and 2 with respect to ozone. *Sierra Club* v. *EPA,* 99 F.3d 1551 (10th Cir. 1996); *Sierra Club* v. *EPA,* 375 F. 3d 537 (7th Cir. 2004); *Our Children's Earth Foundation* v. *EPA,* N. 04-73032 (9th Cir. June 28, 2005) (memorandum opinion). It has been EPA's longstanding interpretation that the general provisions of part D, subpart 1 of the Act (sections 171 and 172) do not require the submission of SIP revisions concerning RFP for areas already attaining the ozone NAAQS. In the General Preamble, we stated: [R]equirements for RFP will not apply in evaluating a request for redesignation to attainment, since, at a minimum, the air quality data for the area must show that the area has already attained. A showing that the State will make RFP toward attainment will, therefore, have no meaning at that point. 57 FR at 13564. See also page 6 of the guidance memorandum entitled “Procedures for Processing Requests to Redesignate Areas to Attainment” from John Calcagni, Director, Air Quality Management Division, Office of Air Quality Planning and Standards, to Regional Air Division Directors, dated September 4, 1992 (Calcagni Memo, available at *http://www.epa.gov/ttn/naaqs/ozone/ozonetech/940904.pdf* ). EPA believes the same reasoning applies to the CO RFP provisions of part D, subpart 3. With respect to RFP, CAA section 171(1) states that, for purposes of part D of title I, RFP means such annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable NAAQS by the applicable date. The stated purpose of RFP is to ensure attainment by the applicable attainment date, whether dealing with the general RFP requirement of section 172(c)(2), the ozone-specific RFP requirements of sections 182(b) and (c), the PM-10 specific RFP requirements of section 189(c)(1), or the CO-specific RFP requirements of section 187(a)(7). Section 187(a)(7) states that the SIP for moderate CO areas with a design value greater than 12.7 must: provide a demonstration that the plan as revised will provide for attainment of the carbon monoxide NAAQS by the applicable attainment date and provisions for such specific annual emission reductions as are necessary to attain the standard by that date. This same requirement also applies to serious CO areas in accordance with CAA section 187(b)(1). It is clear that once the area has attained the standard, no further specific annual emission reductions are necessary or meaningful. With respect to CO areas, this interpretation is supported by language in section 187(d)(3), which mandates that a state that fails to achieve the milestone must submit a plan that assures that the state achieves the “pecific annual reductions in carbon monoxide emissions set forth in the plan by the attainment date.” 5 Section 187(d)(3) assumes that the requirement to submit and achieve the milestone does not continue after attainment of the NAAQS. 5 AA section 187(d), CO Milestone, applies to serious CO areas and requires:
(1)The state to submit a demonstration that the area has achieved certain specific annual emission reductions (187(d)(1));
(2)EPA to determine whether the demonstration is adequate within 90 days (187(d)(2)); and
(3)the state to submit a plan revision within 9 months of EPA's notification that the state has not met the milestone, such plan to implement CAA section 182(g)(4) economic incentive and transportation control programs sufficient to achieve the specific annual emission reductions by the attainment date (187(d)(3)). EPA interprets these provisions consistent with its interpretation of Section 182(g) in Subpart 2. See May 10, 1995 Seitz Memorandum at p. 5. There, EPA included in its identification of SIP submission requirements linked with attainment and RFP requirements the “Section 182(g) requirements concerning milestones that are based on the section 182(b)(1) and 182(c)(2)(B) and
(C)submissions.” In Subpart 3, similarly, milestone requirements are based on the section 187(a)(7) specific annual emission reduction requirements. If an area has in fact attained the standard, the stated purpose of the RFP and specific annual emissions reductions requirements will have already been fulfilled. 6 The specific annual emission reductions required are only those necessary to attain the standard by the attainment date. EPA took this position with respect to the general RFP requirement of section 172(c)(2) in the April 16, 1992 General Preamble and also in the May 10, 1995 memorandum with respect to the requirements of sections 182(b) and (c). We are proposing to extend that interpretation to the specific provisions of part D, subpart 3. 6 For PM-10 areas, we have concluded that it is a distinction without a difference that section 189(c)(1) speaks of the PM-10 nonattainment area RFP requirement as one to be achieved until an area is “redesignated as attainment”, as opposed to section 172(c)(2), which is silent on the period to which the requirement pertains, or the ozone and CO nonattainment area RFP requirements in sections 182(b)(1) or 182(c)(2) for ozone and 187(a)(7) for CO, which refer to the RFP requirements as applying until the “attainment date”, since, section 189(c)(1) defines RFP by reference to section 171(l) of the Act. Reference to 171(l) clarifies that, as with the general RFP requirements in section 172(c)(2) and the ozone-specific requirements of section 182(b)(1) and 182(c)(2) and the CO-specific requirements of section 187(a)(7), the PM-specific requirements may only be required for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date.” 42 U.S.C. section 7501(1). As discussed in the text of this rulemaking, EPA interprets the RFP requirements, in light of the definition of RFP in section 171(l), to be a requirement that no longer applies once the standard has been attained. With respect to the attainment demonstration requirements of section 187(a)(7), an analogous rationale leads to the same result. Section 187(a)(7) requires that the State submit a revision to provide, and a demonstration that the plan as revised will provide for attainment of the carbon monoxide NAAQS by the applicable attainment date and provisions for such specific annual emission reductions as are necessary to attain the standard by that date. As with the RFP requirements, if an area is already monitoring attainment of the standard, EPA believes there is no need for an area to make a further submission containing additional measures to achieve attainment. This is also consistent with the interpretation of the section 172(c) requirements provided by EPA in the General Preamble, the Page memo and of the section 182(b) and
(c)requirements set forth in the Seitz memo. As EPA stated in the General Preamble, no other measures to provide for attainment would be needed by areas seeking redesignation to attainment since “attainment will have been reached.” (57 FR at 13564). c. Contingency Provisions
(1)CAA Section 172(c)(9) Other SIP submission requirements are linked with these attainment demonstration and RFP requirements, and similar reasoning applies to them. These requirements include the contingency measure requirements of CAA section 172(c)(9), and the special contingency provisions applicable to ozone and CO plans. Section 172(c)(9) requires a State to submit contingency measures that will be implemented if an area fails to make “reasonable further progress” or fails to attain by the applicable attainment date. 7 Thus, the stated purpose of the contingency measure requirement is to ensure RFP (the purpose of which is to ensure attainment by the applicable attainment date) and attainment by the applicable attainment date. If an area has in fact attained the standard by the applicable attainment date, the stated purpose of the contingency measure requirement will have already been fulfilled. Consequently, we believe that the requirement for a State to submit revisions providing for measures to meet the contingency provisions of section 172(c)(9) no longer applies for an area that we find as having attained the relevant NAAQS by the applicable attainment date. 7 RFP means “such annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date.” CAA Section 171(1). We note that we took this view with respect to the general contingency measure requirement of section 172(c)(9) in our General Preamble. In the General Preamble, we stated, in the context of a discussion of the requirements applicable to the evaluation of requests to redesignate nonattainment areas to attainment, that the “section 172(c)(9) requirements for contingency measures * * * no longer apply when an area has attained the standard and is eligible for redesignation.” See 57 FR 13498, at 13564 (April 16, 1992). See also Calcagni memo, p. 6. We propose to extend the same reasoning to CO plans with respect to the section 172(c)(9) contingency provision requirements, since our reasoning is equally applicable regardless of the pollutant. Moreover, just as we concluded that the pollutant-specific contingency measure requirements of section 182(c)(9) for ozone areas also no longer apply to areas attaining the ozone NAAQS, we propose below that the CO-specific contingency provisions of section 187(a)(3) no longer apply at the time we find that an area has attained the CO NAAQS.
(2)CAA Section 187(a)(3) Section 187(a)(3) requires contingency measures to be implemented if any estimate of vehicle miles traveled in the area which is submitted in an annual report under paragraph
(2)exceeds the number predicted in the most recent prior forecast or if the area fails to attain the national primary ambient air quality standard for carbon monoxide by the primary standard attainment date. Thus, the Act establishes two triggers for implementation of contingency measures required under this provision. The first trigger is associated with CAA section 187(a)(2), which requires plans for areas with a design value above 12.7 ppm at the time of classification to include “a forecast of vehicle miles traveled in the nonattainment area concerned for each year before the year in which the plan projects the national ambient air quality standard for carbon monoxide to be attained in the area,” along with annual updates of the forecasts to be submitted to the Administrator together with annual reports regarding the extent to which such forecasts proved to be accurate. Such annual reports shall contain estimates of actual vehicle miles traveled in each year for which a forecast was required. The plan’s contingency measures must be implemented “if the prior forecast has been exceeded by an updated forecast * * *.” Both the forecasts and reports are required only until the SIP's projected attainment year. Following the plan’s projected attainment year, which is the last year of the VMT forecasts, this trigger disappears. The second trigger of the contingency provision is a failure of the area to attain the primary CO standard by the applicable deadline, for the evident purpose of ensuring that such an area further reduces emissions as needed to attain the NAAQS. Once an area has actually attained the CO NAAQS, this second trigger is clearly eliminated. Thus, the CAA section 187(a)(3) contingency provision has no further practical effect when the two contingency triggers cease to exist. Moreover, the implicit goal of the contingency provision, to reduce motor vehicle-related CO emissions to the extent needed to achieve annual progress and eventual attainment, would have been accomplished when an area comes into attainment. Therefore, we propose to conclude that an area that is attaining the CO standards is relieved of an obligation to provide contingency measures pursuant to CAA section 187(a)(3). CAA section 187(b)(2) requires that CO serious area plans include TCMs as prescribed in CAA section 182(d)(1) for ozone areas, except that the TCMs relate to CO emissions rather than volatile organic compound emissions. Section 182(d)(1) requires that plans for severe ozone areas must include TCMs to be implemented to offset any growth in emissions from growth in vehicle miles traveled or numbers of vehicle trips in such area and to attain reduction in motor vehicle emissions as necessary, in combination with other emission reduction requirements of this subpart, to comply with the requirements of subsection (b)(2)(B) and (c)(2)(B) (pertaining to periodic emissions reduction requirements). The section 187(b)(2) TCMs are required to be submitted if CO emissions are expected to increase from growth in VMT or vehicle trips, and to meet RFP or attainment. For the same reason that the requirement for RFP no longer applies to an area that has attained the NAAQS, the requirement for measures to contribute to RFP no longer applies following a finding of attainment. Thus EPA interprets the provisions of section 187(b)(2)(A) that cross-reference section 182(d)(1) so as to suspend those provisions pertaining to periodic emissions reductions requirements for so long as the area is attaining the standard. In a May 10, 1995 Seitz memorandum, we identified as among those requirements that could be suspended upon finding of attainment “the elements of the * * * requirements of section 182(d)(1)(A) concerning vehicle miles traveled that are related to RFP requirements.” (p. 2). With respect to the requirement for TCMs to offset any growth in emissions from VMT, see Section 3 below. d. Conclusion As noted above, the South Coast area does not currently have an approved SIP with respect to the requirements for RFP, attainment, contingency provisions, and TCMs related to RFP requirements. However, we believe that, for the reasons set forth here and established in our prior “clean data” memoranda and rulemakings, a CO nonattainment area that has “clean data,” should be relieved of the part D, subpart 3 obligations to provide an attainment demonstration with specific annual emission reductions pursuant to CAA section 187(a)(7); the CAA section 187(d) milestone demonstration requirement; contingency provisions pursuant to CAA section 187(a)(3)); and TCMs related to RFP requirements pursuant to 187(b)(2); as well as the attainment demonstration, RFP, and contingency measure provisions of part D, subpart 1 contained in section 172 of the Act. Here, as in both our 8-hour ozone Phase 2 final rule and 1-hour ozone and PM-2.5 clean data memoranda, we emphasize that the suspension of a requirement to submit these SIP revisions exists only for as long as a nonattainment area continues to monitor attainment of the standard. If such an area experiences a violation of the NAAQS, the basis for the requirements being suspended would no longer exist. Therefore, the area would again be subject to a requirement to submit the pertinent SIP revision or revisions and would need to address those requirements. Thus, a determination that an area need not submit one of the SIP submittals amounts to no more than a suspension of the requirement for so long as the area continues to attain the standard. However, once EPA ultimately redesignates the area to attainment, the area will be entirely relieved of these requirements to the extent the maintenance plan for the area does not rely on them. Should we at some future time determine that an area that had clean data, but which has not yet been redesignated as attainment for a NAAQS, has violated the relevant standard, the area would again be required to submit the pertinent requirements under the SIP for the area. Attainment determinations under the policy do not shield an area from other required actions, such as provisions to address pollution transport. As set forth, above, we propose to find that because the South Coast area has continued to attain the NAAQS the requirement of an attainment demonstration, reasonable further progress, milestone demonstration, TCMs related to RFP, and contingency measures no longer apply. 3. TCMs To Offset Growth in Emissions From VMT Increases As noted above, the section 187(b)(2) TCMs are required to be submitted if CO emissions are expected to increase from growth in VMT or vehicle trips. EPA has concluded that states are not required to submit such measures if the SIP includes a demonstration that, despite any growth in projected VMT, CO emissions will decline each year through the attainment year. 8 In the General Preamble, we state that: “If projected total motor vehicle emissions during the ozone season in one year are not higher than during the ozone season the year before, given the control measures in the SIP, the VMT offset requirement is satisfied.” General Preamble at 57 FR 13522. 8 See, for example, EPA's final approval of Illinois' VMT SIP at 60 FR 48896, 48897 (September 21, 1995). The 1997 CO Plan contains a demonstration that CO emissions from motor vehicles decline each year through the attainment year (Appendix V, page V-5-4, Table 5-2 “Carbon Monoxide Emissions (tons/day) Projected from 1993 through 2000 for the South Coast Air Basin”). This table shows that no additional TCMs are required to prevent an increase in emissions associated with a growth in VMT or trips, since emissions are shown to decline each year through the attainment year despite increases in VMT and trip numbers. 9 The Maintenance Plan includes revised and updated VMT forecasts for each year from 1997 through 2006 (Table 4-1). The Maintenance Plan also includes revised and updated projected CO emissions from motor vehicles from 1997 through 2006 (Table 4-2), showing a continuing sharp decline in CO emissions despite the growth in VMT and trips. Consequently, we conclude that no TCMs are required to satisfy the progress requirements of the Act or to offset growth in CO emissions from growth in VMT or vehicle trips. We therefore propose to approve the 1997 CO Plan, and the update through the year of attainment
(2002)in the Maintenance Plan, as meeting the provisions of CAA section 187(b)(2). 9 Motor vehicle VMT forecasts for each year are shown in Table 5-1. Despite this annual growth, emissions from motor vehicles are shown in Table 5-2 to decline as follows: 1993-5909, 1994-5522, 1995-5135, 1996-4596, 1997-4057, 1998-3784, 1999-3511, 2000-3298. 4. Requirement for Enhanced I/M Program The requirement for an enhanced motor vehicle I/M program under CAA section 187(a)(6) applies to the South Coast by virtue of the area's designation as a serious nonattainment area for CO, in accordance with CAA section 187(b)(1). On January 22, 1996, CARB submitted a SIP revision to satisfy the requirements for basic and enhanced I/M programs in the various ozone and CO nonattainment areas in the State. On January 8, 1997 (62 FR 1150), we approved the State's basic I/M program as meeting the CAA section 182(b)(4) requirement for moderate ozone areas within California, and the CAA section 187(a)(4) requirement for I/M program corrections applicable to California's moderate CO areas with a design value of less than 12.7 ppm at the time of classification. In the same rule, we granted interim approval to the State's enhanced I/M program under section 348(c) of the Highway Act, as meeting the CAA section 182(c)(3) requirement for serious and above ozone areas, and CAA 187(a)(6) for serious CO areas. In accordance with the State's request, we approved the I/M program as meeting the high enhanced requirements (see discussion below). As provided in the Highway Act, the interim approval was for a period of 18 months (i.e., until August 7, 1998), by which time the approval would expire unless we had approved a SIP demonstrating that the credits claimed for the program are appropriate and the I/M program is otherwise in compliance with the Clean Air Act. See 40 CFR 52.241. When we subsequently ruled on the South Coast CO SIP, we also granted interim approval to the progress and attainment provisions of the plan, since fulfillment of those requirements depended upon emission reductions from the enhanced I/M program. (63 FR 19661, April 21, 1998). California failed to make the SIP submittal required under the Highway Act to substantiate the emission reductions claimed for the enhanced I/M program and, as a result, the interim approval of the enhanced I/M program and the progress and attainment demonstration provisions of the South Coast CO SIP expired by operation of law on August 7, 1998. In Section III.B.2.b, we discuss this lapsed approval and our interpretation that the Clean Data Policy allows us to suspend the requirements for progress and attainment demonstration as they apply to the South Coast CO SIP. With the submittal of the South Coast CO Maintenance Plan and redesignation request, the State included a SIP revision documenting that:
(1)The I/M program delivered CO emission reductions sufficient, along with other control measures, to lead to attainment of the CO NAAQS in the South Coast, and
(2)the I/M program meets the low-enhanced I/M performance requirements for CO in the South Coast. The State's transmittal letter included a table of the wintertime CO emissions reduction benefits in the South Coast from the current I/M program, along with a copy of the September 2005 Report to the Legislature regarding ARB's &“April 2004 Evaluation of the California Enhanced Vehicle Inspection and Maintenance (Smog Check) Program.” The table shows the following reductions: Table 1.—Winter Season CO Emissions Reduction Benefits in the South Coast Air Basin Associated With the Enhanced I/M Program [In tons per day] Year 1990 1993 2000 2006 2010 2020 Reductions 494 459 291 671 618 377 Because these substantial emission reductions did, in fact, result in attainment of the CO NAAQS in the South Coast, we agree with the State that the enhanced I/M program proved adequate to meet attainment needs for the area. The State requests that we also now determine that the program meets other low enhanced I/M program requirements. This would allow us to conclude, for purposes of the redesignation provisions of CAA section 107(d)(3)(E)(v), that the area has met the applicable requirement for an enhanced I/M program under CAA sections 187(a)(6) and 187(b)(1). On September 18, 1995, we amended our regulatory requirements for enhanced I/M programs (60 FR 48029). Among other changes, we established a low enhanced performance standard as an option for areas subject to the enhanced I/M requirement and meeting the following requirements set out in 40 CFR 51.351(g) regarding RFP and attainment:
(1)The area is either not subject to or has an approved SIP for RFP in 1996, and
(2)the area does not have a disapproved post-1996 RFP plan or a disapproved attainment plan for ozone or CO. South Coast meets these requirements because it has an approved plan for RFP in 1996 for ozone, (62 FR 1150, January 8, 1997) and has no disapproved post-1996 RFP plan or a disapproved attainment plan for ozone or CO. The low enhanced I/M requirements set out in 40 CFR 51.351(g), and further described in the preamble, establish specific program test elements generally equivalent to those for a basic I/M program, as set out in 40 CFR 51.352. The key difference in test requirements between the basic and the low enhanced I/M program are two additional requirements for low enhanced programs: visual inspection of emission control device inspections in accordance with 40 CFR 51.351(g)(8), and testing of light duty trucks rated up to 8,500 pounds gross vehicle weight rating
(GVWR)as prescribed in 40 CFR 51.351(g)(5). Additionally, 40 CFR 51.351(b) requires on-road testing of 0.5% of the subject fleet or 20,000 vehicles, whichever is less, and 40 CFR 51.351(c) requires inspection of all 1996 and later vehicles equipped with on-board diagnostics
(OBD)systems. As mentioned above, we fully approved California's I/M program as meeting the basic I/M performance standard on January 8, 1997. 62 FR 1150 and 40 CFR 52.220(c)(234). California has now shown that its I/M program also meets the low enhanced I/M performance standard and meets the four requirements mentioned above. 10 10 See August 11, 2006, letter from Kurt Karperos, CARB, to Lisa Hanf, EPA Region 9, for technical information about this demonstration.
(1)Since March 1984, the State has required visual inspection of the positive crankcase ventilation valve and of the exhaust gas recirculation valve on all vehicles subject to the I/M program, in accordance with 40 CFR 51.351(g)(8). See Health & Safety Code, Division 26, Part 5, Section 44012(f); Title 16, California Code of Regulations, Division 33, Bureau of Automotive Repair, Article 5.5, Motor Vehicle Inspection Program, section 3340.42; and BAR 97 Specifications sections 3.3.9 and 3.6.18.
(2)Since March 1984, the State I/M program has applied to light duty trucks rated up to 8,500 pounds GVWR, in accordance with 40 CFR 51.351(g)(5). See Health & Safety Code, Division 26, Part 5, Section 44011, and Title 16, California Code of Regulations, Division 33, Bureau of Automotive Repair, Article 5.5, Motor Vehicle Inspection Program, Section 3340.5.
(3)Since 1998, California has conducted random roadside pullover inspections in accordance with 40 CFR 51.351(b), under the authority of Health & Safety Code, Division 26, Part 5, Section 44081.
(4)Since 2002, California has inspected 1996 and later OBD-equipped vehicles in accordance with 40 CFR 51.351(c). See Health & Safety Code, Division 26, Part 5, Section 44036(b)(10); Title 16, California Code of Regulations, Division 33, Bureau of Automotive Repair, Article 5.5, Motor Vehicle Inspection Program, Section 3340.42; and BAR 97 Specifications, Sections 2 and 3. In summary, we conclude that:
(1)The State was entitled to elect to implement a low enhanced I/M program for CO in the South Coast;
(2)the program, as implemented by the State, delivered actual CO emission reductions sufficient (along with reductions from other measures) to attain the CO NAAQS in the South Coast;
(3)the State's program has been federally approved as meeting the basic I/M performance standard; and
(4)the State's program meets the low enhanced I/M performance standard. Consequently, we find that the State met the CAA section 187(a)(6) and 187(b)(1) enhanced I/M requirements that applied to the South Coast CO nonattainment area prior to and at the time of the submission of the redesignation request. Finally, we note that the State has indicated that it intends to continue to implement the enhanced I/M program in the South Coast, and continued CO emission reduction benefits from the program are incorporated in the projected emissions inventory that is part of the maintenance demonstration in the submitted maintenance plan. 5. Wintertime Oxygenated Gasoline Program Pursuant to CAA section 211(m), CO nonattainment areas with design values of 9.5 ppm or higher must implement a wintertime oxygenated gasoline program requiring that gasoline contain not less than 2.7 percent oxygen by weight. In addition, CAA section 187(b)(3) requires that all serious CO areas implement such a program. California submitted its motor vehicle fuels regulations, including requirements for wintertime oxygen content, on November 15, 1994. We approved the regulations on August 21, 1995, as meeting the applicable CAA requirements. 60 FR 43379. The requirements remain in effect in the South Coast area, although the State has amended the program in other areas. 6. Conclusion For the reasons discussed above, we propose to determine that all of the provisions of CAA section 110 and part D applicable to the South Coast CO area for purposes of redesignation have been approved into the California SIP. C. Improvement in Air Quality Is Due to Permanent and Enforceable Measures CAA section 107(d)(3)(E)(iii) establishes that, as a prerequisite to redesignation to attainment, the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions * * *. The Maintenance Plan provides evidence that the meteorological conditions for the years when the South Coast attained the CO NAAQS were more conducive to higher ambient CO concentrations than the long term mean. During the same period, daily VMT increased at the normal rate of growth, from 322.8 million miles in 2001 to 330.4 million miles in 2003, so activity levels associated with motor vehicles, the primary CO source in the South Coast, were not abnormal. Maintenance Plan, p. 6. Increasing CO emission reductions associated with State and Federal motor vehicle standards, coupled with SCAQMD's CO emission limits on stationary and area sources, provide additional evidence that attainment results from the SIP's permanent and reliable controls on CO emissions rather than favorable meteorology or depressed activity levels. The largest source of emissions reductions during this period came from progressively more stringent State emission standards for cars, trucks, buses, and nonroad equipment, including forklifts, lawn and garden equipment, and marine pleasurecraft. 11 11 Documentation on these and other California mobile souce standards may be found at: *http://www.arb.ca.gov/msprog/msprog.htm.* EPA has acted over the years to waive Federal preemption of State standards for California's motor vehicle standards as authorized by CAA section 209(b) and nonroad engine standards as authorized by CAA section 209(e)(2). Under these CAA sections, EPA must grant the waiver unless the Adminsitrator finds that:
(1)Califronia's determination that its standards, in the aggregate, are at least as protective of public health and welfare as applicable Federal standards is arbitrary and capricious;
(2)California does not need such State standards to meet compelling and extraordinary conditions; or
(3)California's standards and accompanying enforcement procedures are not consistent with section 202(a) [or 209 for nonroad] of the CAA. We propose to find that this prerequisite to redesignation has been met. D. Fully Approved Maintenance Plan CAA section 107(d)(3)(E)(iii) requires that, before we redesignate an area to attainment, we must have “fully approved a maintenance plan for the area as meeting the requirements of section 175A * * *.” 1. Applicable Requirements Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The maintenance plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the Administrator approves a redesignation to attainment. Eight years after the promulgation of the redesignation, the State must submit a revised maintenance plan that demonstrates continued attainment for the subsequent ten-year period following the initial ten-year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures, with a schedule for adoption and implementation, that are adequate to assure prompt correction of a violation. We have issued guidance on maintenance plans, including most notably:
(1)The General Preamble (57 FR 13498, April 16, 1992), and
(2)the Calcagni memo. In this action, we propose to approve the Maintenance Plan because we believe that it meets the requirements of CAA section 175A and is consistent with the documents referenced above and other documents identified in the discussion below. 2. Maintenance Plan Provisions a. Emissions Inventories for Attainment Year and Future Years The Maintenance Plan includes emissions inventories for the attainment year
(2002)and for future years 2005, 2010, and 2015, along with motor vehicle emissions for 2020. The methodologies for the inventories are discussed on pages 14-16, including an extensive discussion of adjustments to projected mobile source emissions to reflect the impact of possible suspension of wintertime oxygenate requirement for gasoline in the South Coast. 12 Table 2 below reproduces emissions data primarily from Table 3-2 of the Maintenance Plan. For 2020, the onroad emissions data are presented in Attachment 3 to the plan. Attachment 3 provides winter emissions for motor vehicles under two scenarios, SCAG 2001 RTP baseline case (1078 tpd) and SCAG 2001 RTP plan case (941 tpd). The Maintenance Plan does not include inventories for stationary, areawide, and nonroad sources for 2020. In Table 2, the 2020 projected emissions are derived from CARB's latest annual updated emissions analysis for these inventory categories. The data are taken from The *California Almanac of Emissions and Air Quality,* 2006 Edition, Table 4-10, available at: *http://www.arb.ca.gov/aqd/almanac/almanac06/chap406.htm.* 12 Section 3.1.2 of the Maintenance Plan discusses the possibility that the State might determine in future to rescind the wintertime oxygenated fuel requirement as a primary measure. As discussed below, data from the *California Almanac of Emissions and Air Quality,* 2006 Edition, were used to complete the emissions profile for 2020. The Almanac does not provide projected emissions for a future scenario in which the wintertime oxygenated fuel requirement is shifted from a primary measure to a contingency measure. Therefore, the 2020 column in Table 2 does not show these projections. If the State wishes in future to change the wintertime oxygenated fuel program from an active measure to a contingency measure, the State will need at that time to update the quantification of the impact on CO emissions, and demonstrate that the proposed revision will not interfere with continued maintenance or any other applicable requirement. Table 2.—South Coast Projected Winter CO Emissions Inventory [In tons per day] Category 2002 2005 2010 2015 2020 Stationary 53 55 59 64 69 Areawide 315 318 325 332 79 Onroad 3402 2668 2018 1428 1078 Onroad with oxygenated fuel adjustment 3402 2668 3041 1444 Nonroad 1065 987 912 890 953 Nonroad with oxygenated fuel adjustment 1065 987 921 899 Total 4835 4028 3346 2739 2179 The table shows that maintenance of the NAAQS would be expected primarily from large reductions in the onroad category, which result from the turnover of cars and trucks, as older and more polluting vehicles are retired and replaced with newer and much cleaner vehicles. The projected 2015 and 2020 onroad emissions were generated using CARB's motor vehicle emissions factor model, EMFAC2002v2.2, interpolating vehicle populations from calendar year 2010 and 2020 populations, as set out in Maintenance Plan, Attachment 2 (CO Modeling Attainment Demonstration Extracted from the 2003 Air Quality Management Plan, Appendix V, Section 4), Attachment 3 (CARB Assessment 549: South Coast Air Basin CO Maintenance Plan Winter Emissions). EMFAC2002v2.2 was the most recent EPA-approved motor vehicle emissions factor model at the time the Maintenance Plan was prepared, but CARB expects to update the model in the near future as part of the preparation of SIPs due to be submitted by the State in 2007. 13 Other aspects of the emissions inventory were current, accurate, and complete at the time of plan preparation, and comply with applicable EPA guidance on the preparation of emission inventories. We therefore propose to approve the Maintenance Plan with respect to its emissions inventories. 13 We approved the use of EMFAC2002 to estimate motor vehicle emissions on April 2, 2003 (68 FR 15720). b. Maintenance Demonstration CAA section 175A(a) requires that the maintenance plan “provide for the maintenance of the national primary ambient air quality standard for such air pollutant in the area concerned for at least 10 years after the redesignation.” Generally, a state may demonstrate maintenance of the CO NAAQS by either showing that future emissions will not exceed the level of the attainment inventory or by modeling to show that the future mix of sources and emissions rates will not cause a violation of the NAAQS. For areas that are required under the Act to submit modeled attainment demonstrations, the maintenance demonstration should use the same type of modeling. Calcagni memo, p. 9. Because the design value for the South Coast exceeded 12.7 ppm and the area is classified as serious, modeling would have been required as part of the attainment demonstration under CAA section 187(b)(7)(i). The Maintenance Plan includes a modeled maintenance demonstration. 14 14 However, where there is a determination of attainment, the requirement for an attainment demonstration is suspended and demonstrations of maintenance can be either by emissions inventory or modeling. See *Wall* v. *EPA,* 265 F.3d 426, 435-436 (6th Cir. 2001). The modeling demonstration is discussed on pages 12-13 of the Maintenance Plan, and at more length in Attachment 2. Regional modeling used the Comprehensive Air Quality Model
(CAMx)and an October 31-November 1, 1997 meteorological episode, which ranked in the 98th percentile in stagnation severity. Additional hot-spot roadway intersection modeling using the CAL3QHC model was used to demonstrate attainment at high-volume intersections. The modeling estimated the South Coast CO carrying capacity to be 4,527 tpd. For the 2005 emissions inventory level of 4028, modeling predicted the 8-hour maximum concentration to be 7.8 ppm, and the 1-hour maximum to be 8.5 ppm. Concentrations still further below the NAAQS are associated with the 2015 and 2020 inventory levels, primarily due to significant reductions in the dominant motor vehicle emissions category (2668 tpd in 2005, 1428 in 2015, and 1078 in 2020). The demonstration covers a 13-year period (from 2007 through 2020), although primarily referencing the 2015 year. The CAMx modeling approach used in the Maintenance Plan is an EPA-approved model and the modeling performance is fully acceptable. Moreover, the declining projected emissions inventories for the span of the maintenance demonstration also support continued maintenance of the NAAQS. We therefore propose to approve the demonstration of maintenance. c. Monitoring Network and Verification of Continued Attainment The Calcagni Memo provides that areas must continue to operate an air quality monitoring network to verify attainment. CO is currently monitored in accordance with 40 CFR Part 50, Appendix C and 40 CFR Part 58 at 22 stations. SCAQMD continues to assure the quality of the measured data by conducting routine calibrations, pre-run and post-run test procedures, and routine service checks. The District also completes an annual review of the monitoring network to document continued compliance with siting criteria. The SCAQMD commits in the Maintenance Plan to verify continued maintenance by daily analysis of air quality data collected (pp. 22-23). Furthermore, the District commits to a formal review of the Maintenance Plan in 2007 and 2010 (p. 24). We propose to approve the Maintenance Plan with respect to the obligation to continue to monitor and verify attainment. d. Contingency Provision CAA section 175A(d) requires that maintenance plans include provisions that EPA deems are necessary to assure that the State will promptly correct any NAAQS violation, and further requires that such provisions include a requirement that the State will implement all measures contained in the SIP before redesignation. We have concluded that contingency measures need not be new measures that would be triggered by a violation, but may consist of early implementation of measures that provide surplus reductions beyond those needed for attainment or maintenance. See “Early Implementation of Contingency Measures for Ozone and Carbon Monoxide
(CO)Nonattainment Areas,” memo from G.T. Helms to EPA Air Branch Chiefs, August 13, 1993. The Maintenance Plan takes this approach, providing a large margin of emissions from fully adopted State regulations, such as tighter emission standards for all categories of motor vehicles and for nonroad engines, such as forklifts, lawn and garden equipment, and marine pleasure craft. See discussion above in Section III.C., providing a more extensive list of measures, referencing the extensive CARB documentation available for each measure, and discussing the EPA waiver process applicable to these California mobile source standards. There is no reason to expect that these standards, which are all currently in effect, will be relaxed in the future. Nor is there reason to believe that compliance will be inadequate, since CARB has for many decades maintained a successful enforcement program. For details on CARB's mobile source enforcement program for new and existing vehicles and engines, see: *http://www.arb.ca.gov/enf/enf.htm.* As a result, the predicted emissions for 2015 are approximately 43 percent below the 2002 attainment year emissions levels, and this margin of excess reductions is projected to increase further in future years due to the State's progressively tighter emissions standards for new mobile source engines coupled with fleet turnover of the onroad and nonroad fleet. The SCAQMD and CARB have committed to continue to implement all existing measures to achieve permanent, enforceable CO emission reductions that will further reduce CO levels (Maintenance Plan, Chapters 2 and 3; CARB's letter to EPA dated February 24, 2006). The Maintenance Plan does evaluate, however, the relatively small emissions impact of a possible future decision to suspend implementation of the wintertime oxygenate program in the South Coast (see Table 2 above). The methodology and assumptions for calculating the impact are discussed at length on pp. 15-16 and in Attachment A to the Maintenance Plan. If the State decides in future to suspend the wintertime oxygenated fuel requirement, the State would need to submit a SIP revision complying with applicable CAA requirements. For the above reasons, we propose to approve the contingency provisions in the Maintenance Plan as meeting the requirements of CAA section 175A(d). e. Commitment To Submit Subsequent Maintenance Plan Revisons CAA section 179A(b) provides that States shall submit a commitment to submit a SIP revision 8 years after redesignation providing for maintaining the NAAQS for an additional 10 years. SCAQMD has made this commitment as part of the Maintenance Plan (see p. 22), and we propose to approve it. f. Motor Vehicle Emissions Budgets Transportation conformity is required by section 176(c) of the CAA. Our transportation conformity rule (codified in 40 CFR part 93, subpart A) requires that transportation plans, programs, and projects conform to SIPs and establishes the criteria and procedures for determining whether or not they do so. Conformity to the SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards. Maintenance plan submittals must specify the maximum emissions of transportation-related CO emissions allowed in the last year of the maintenance period, i.e., the motor vehicle emissions budget (MVEB). The submittal must also demonstrate that these emissions levels, when considered with emissions from all other sources, are consistent with maintenance of the NAAQS. In order for us to find these emissions levels or “budgets” adequate and approvable, the submittal must meet the conformity adequacy provisions of 40 CFR 93.118(e)(4) and (5), and be approvable under all pertinent SIP requirements. For more information on the transportation conformity requirement and applicable policies on MVEBs, please visit our transportation conformity Web site at: *http://www.epa.gov/otaq/stateresources/transconf/index.htm.* The Maintenance Plan includes the CO MVEBs shown in Table 3 below. The budgets are based on Table 3-5 of the plan and other documentation in Section 3.1.3 of the plan. 15 See also the discussion of projected emissions in Section III.D.2.a., above. 15 The MVEB for 2020 was clarified in letters from Sylia Oey, CARB, to Dave Jesson, EPA Region 9, dated February 2, 2007, and from Laki Tisopulos, SCAQMD, to Dave Jesson, dated February 2, 2007, and an e-mail from Jonathan Nadler, SCAG, to Dave Jesson, dated February 2, 2007. Table 3.—South Coast CO Maintenance Plan Motor Vehicle Emissions Budgets [Winter season emissions in tons per day] Category 2005 2010 2015 2020 Total Air Basin Emissions 4028 3346 2739 2179 Motor Vehicle Emissions 2668 2041 1444 1078 Safety Margins 220 96 693 1059 Motor Vehicle Emissions Budgets 2888 2137 2137 2137 Total Air Basin Emissions with Safety Margin 4248 3442 3432 3196 Modeled Air Basin Emissions 4528 4528 4528 4528 In setting MVEBs, States generally use motor vehicle emission inventories. California took this approach, for example, in the 1997 CO attainment plan. California need not, however, cap MVEBs at projected motor vehicle emissions levels. Because overall projected levels of emissions from all sources are expected to be less than the levels necessary to maintain the CO NAAQS, California has a “safety margin” that the State may use to set MVEBs at a higher level. As long as emissions from all sources are lower than needed to provide for continued maintenance, the State may allocate additional emissions to future mobile source growth by assigning a portion of the safety margin to the MVEBs (see 40 CFR 93.124). California stated in the Maintenance Plan that the safety margins described in Table 3 above are allocated to the MVEBs. Attainment was achieved in 2002 when the CO emissions level in the basin was 4835 tpd. The modeled attainment level is 4527 tpd. As can be seen from Table 3, total basin emissions, with the safety margin, are substantially below actual and modeled attainment levels. Thus, the safety margins comply with the requirement that the budgets with safety margins are lower than the maintenance level. The criteria by which we determine whether a SIP's MVEBs are adequate and approvable for conformity purposes are outlined in 40 CFR 93.118(e)(4) and (5). The following paragraphs provide our review of the budgets in the Maintenance Plan against our adequacy criteria and provide the basis for our proposed approval of the MVEBs. Under 40 CFR 93.118(e)(4)(i), we review a submitted plan to determine whether the plan was endorsed by the Governor (or designee) and was subject to a public hearing. The February 24, 2006 transmittal letter for the Maintenance Plan was signed by the CARB Executive Officer, the Governor's designee for SIP purposes. CARB Executive Order G-125-332 provides evidence of State adoption and legal authority. SCAQMD's April 19, 2005 transmittal letter documents that the District held a public hearing on the Maintenance Plan on March 4, 2005, after proper public notice. Therefore, we propose to conclude that the submitted plan meets the criterion under 40 CFR 93.118(e)(4)(i). Under 40 CFR 93.118(e)(4)(ii), we review a submitted plan to determine whether the plan was developed through consultation with Federal, State and local agencies and whether full implementation plan documentation was provided to EPA and EPA's stated concerns, if any, were addressed. Consultation for development of this plan largely consisted of public meetings (page 75 of the plan); discussions with Federal, State, and local transportation planning agencies; and a public hearing, preceded by notices that were published in newspapers of general circulation. Documentation was provided to EPA and EPA's stated concerns were addressed. We propose to conclude that this consultation is sufficient for the purposes of 40 CFR 93.118(e)(4)(ii). Under 40 CFR 93.118(e)(4)(iii), we review a submitted plan to determine whether the MVEBs are clearly identified and precisely quantified. The Maintenance Plan clearly identifies and precisely quantifies the CO MVEBs as shown in Table 3 above. The budgets are derived from EMFAC2002 with travel activity data provided by the Southern California Association of Governments (SCAG). The methodology and rationale for determining the MVEBs is discussed on pages 17 through 22 of the plan. This portion of the plan also indicates that modeling sensitivity analyses confirm that the budgets would provide for maintenance even assuming possible changes in future to the estimation of motor vehicle emissions. We propose that the plan thereby meets the adequacy criterion under 40 CFR 93.118(e)(4)(iii). Under 40 CFR 93.118(e)(4)(iv), we review a submitted plan to determine whether the MVEBs, when considered together with all other emissions sources, are consistent with applicable requirements for reasonable further progress, attainment, or maintenance (whichever is relevant to a given SIP submission). The Maintenance Plan shows how the MVEBs and related safety margins are consistent with maintenance of the CO NAAQS through 2015 (see pages 12 through 16 of the Maintenance Plan) and 2020 (see Attachment 3). In particular, Table 3-1, 3-2, 3-4, and 3-6 of the Maintenance Plan show the extent to which maximum future year emissions (including the budget safety margins) fall below emissions for the 2002 attainment year and below the modeled 2003 emissions, which are associated with ambient concentration levels that are below both the 1-hour and 8-hour NAAQS. “Assessment 549” on page 74 of the plan shows that this trend of lower CO emissions continues through 2020, despite projected VMT increases. Consequently, we propose to find that the plan meets this criterion for adequacy. Under 40 CFR 93.118(e)(4)(v), we review a plan to determine whether the MVEBs are consistent with and clearly related to the emissions inventory and the control measures in the submitted control strategy plan or maintenance plan. The Maintenance Plan contains no new measures but the budgets appropriately reflect the State's adopted emissions standards, fuel regulations, and the vehicle inspection and maintenance program, as applicable to the area. Thus, we propose to conclude that the submitted plan meets this criterion for adequacy. Under 40 CFR 93.118(e)(4)(vi), we review a submitted plan to determine whether revisions to previously submitted plans explain and document any changes to previously submitted budgets and control measures; impacts on point and area source emissions; any changes to established safety margins; and reasons for the changes (including the basis for any changes related to emissions factors or estimates of vehicle miles traveled). The Maintenance Plan explains and documents the various changes that have been made to the CO emissions inventories, etc. 16 Thus, we propose to find that the submitted plan meets this criterion for adequacy. 16 The most significant technical difference between the attainment SIP and the maintenance plan is the change from EMFAC7G to EMFAC2002v2.2, which results in a significant improvement in the quantification of motor vehicle emissions, and updates to SCAG's growth projections. Under 40 CFR 93.118(e)(5), we review the State's compilation of public comments and response to comments that are required to be submitted with any SIP revision. Attachments 6 and 7 of the Maintenance Plan submittal provide transcripts and minutes of the public hearing, during which there was a single comment, supporting adoption of the plan. We reviewed this compilation and concluded that the comment does not affect our proposed approval of the MVEBs. Thus, we propose that the Maintenance Plan meets this criterion for adequacy. Therefore, we propose to approve the CO MVEBs contained in the submitted Maintenance Plan because the plan and budgets meet the requirements under 40 CFR 93.118(e)(4) and
(5)and because we find that ARB has met all statutory requirements for submittals of maintenance plans under sections 110 and part D of the Act. Should we finalize our approval, the Southern California Association of Governments
(SCAG)and the U.S. Department of Transportation must use these new CO MVEBs from the Maintenance Plan for future transportation conformity determinations. We are also announcing our proposed approval on our conformity adequacy Web site: *http://www.epa.gov/otaq/stateresources/transconf/currsips.htm.* In the submittal letter dated February 24, 2006, CARB requested that we limit the duration of any final approval of the MVEBs in the Maintenance Plan to last only until the effective date of future EPA adequacy findings for replacement budgets. This would mean that if CARB decides to amend the CO MVEBs sometime in the future, then the new MVEBs would become effective as soon as EPA determined adequacy, rather than after comprehensive rulemaking (which is a longer process). CARB had made a similar request, and EPA granted it, in connection with the MVEBs in other plans submitted by the State (see 67 FR 69139, November 15, 2002). That prior CARB request was accompanied by significant documentation that demonstrated why limiting the duration of our MVEB approval provided an advantage to air quality and public health protection. With the current request, however, CARB has not provided supporting documentation to address our criteria for granting limited approval. The criteria are set out on page 69141 of the rulemaking, and include:
(1)State acknowledgment that its current budgets are outdated or deficient;
(2)State commitment to update the budgets as part of a comprehensive update of its SIP; and
(3)State request that we limit the duration of the approval of the State's current approved SIP. We note that CARB's request to limit the duration of the approvals of the MVEBs was contained only in the submittal letter and the request is not, therefore, considered a part of the maintenance plan itself. Therefore, our denial of ARB's request does not affect our approval of the plan or the budgets contained therein. g. Conclusion Because the Maintenance Plan satisfies applicable CAA requirements, we propose to approve it under section 175A. IV. Proposed Action We are proposing to approve the 2005 Carbon Monoxide Redesignation Request and Carbon Monoxide Maintenance Plan for the South Coast Air Basin as meeting the requirements of CAA section 175A. We are proposing to find adequate the MVEBs and to approve the budgets under CAA section 176(c). We are also proposing to approve the State's request to redesignate the area to attainment for CO under the provisions of CAA section 107(d)(3)(E). As prerequisite to this action, we are proposing to find that the area has attained the NAAQS due to permanent and enforceable emission reductions under the SIP, and that the SIP for the area meets all of the requirements of CAA section 110, Part D, and section 175A applicable for purposes of redesignation. As part of our proposed determination that the South Coast area has met applicable Part D provisions, we are proposing to adapt to CO areas the provisions of our Clean Data Policy, which we have established for 1-hour ozone, PM-10, 8-hour ozone, and PM-2.5 areas. Under our proposed extension of the Clean Data Policy to CO, we are proposing to interpret certain CAA Part D provisions as suspending the requirements for submission of RFP, attainment demonstrations, contingency measures, and TCMs related to RFP due to the fact that the South Coast has already attained the CO NAAQS. We are proposing to approve the 1997 CO plan and the Maintenance Plan as meeting the requirements of CAA section 187(b)(2) relating to TCMs to offset emissions associated with growth in VMT and vehicle trips. Finally, because our interim approval of California's I/M program for CO in the South Coast expired on August 7, 1998, California has now submitted a demonstration that the I/M program meets the low-enhanced requirements applicable to the South Coast CO nonattainment area. We are proposing to approve that demonstration and to conclude that the State has satisfied the CAA section 187(a)(6) and 187(b)(1) enhanced I/M requirements that applied to the South Coast CO nonattainment area. V. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve state law as meeting Federal requirements and to redesignate the area to attainment for air quality planning purposes, and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65 FR 97249, November 9, 2000). This proposed action also does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action merely proposes to approve a State rule implementing a Federal standard and to redesignate the area to attainment for air quality planning purposes, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it proposes to approve a state plan implementing a Federal Standard and to redesignate the area to attainment for air quality planning purposes. EPA interprets EO 13045 as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This proposed rule is not subject to EO 13045 because it proposes to approve a State plan and to redesignate the area to attainment for air quality planning purposes. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission or redesignation request, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Carbon monoxide, Reporting and recordkeeping requirements. 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas. Dated: February 6, 2007. Laura Yoshii, Acting Regional Administrator, Region 9. [FR Doc. E7-2538 Filed 2-13-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 90-Day Finding on A Petition to List Astragalus debequaeus (DeBeque milkvetch) as Threatened or Endangered AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of 90-day petition finding. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list *Astragalus debequaeus* (DeBeque milkvetch) as threatened or endangered under the Endangered Species Act of 1973, as amended (Act). We find that the petition does not present substantial scientific or commercial information indicating that listing *A. debequaeus* may be warranted. Therefore, we will not be initiating a further status review in response to this petition. We ask the public to submit to us any new information that becomes available concerning the status of *A. debequaeus* or threats to its habitat at any time. This information will help us monitor and encourage the conservation of the species. DATES: The finding announced in this document was made on February 14, 2007. You may submit new information concerning this species for our consideration at any time. ADDRESSES: The complete supporting file for this finding is available for public inspection, by appointment, during normal business hours at the Western Colorado Field Office, U.S. Fish and Wildlife Service, 764 Horizon Drive, Building B, Grand Junction, CO 81506. Submit new information, materials, comments, or questions concerning this species to us at the address above. FOR FURTHER INFORMATION CONTACT: Allan R. Pfister, Field Supervisor, Western Colorado Field Office (see ADDRESSES section) (telephone 970-243-2778, extension 29; facsimile 970-245-6933). Persons who use a telecommunications device for the deaf
(TDD)may call the Federal Information Relay Service
(FIRS)at 800-877-8339. SUPPLEMENTARY INFORMATION: Background Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files at the time we make the determination. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of this finding promptly in the **Federal Register** . Our standard for substantial information within the Code of Federal Regulations
(CFR)with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial information was presented, we are required to promptly commence a review of the status of the species. In making this finding, we rely on information provided by the petitioner and evaluate that information in accordance with 50 CFR 424.14(b). Our 90-day finding process under section 4(b)(3)(A) of the Act and section 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold. A substantial finding should be made when the Service deems that adequate and reliable information has been presented that would lead a reasonable person to believe that the petitioned action may be warranted. On October 26, 2004, we received a formal petition, dated October 25, 2004, submitted by the Center for Native Ecosystems and the Colorado Native Plant Society (2004), requesting that we list *Astragalus debequaeus* as threatened or endangered, and designate critical habitat concurrently. The petition identified itself as such and included the requisite identification information for the petitioners, as required in 50 CFR 424.14(a). We acknowledged receipt of the petition in a January 20, 2005, letter to Mr. Joshua Pollock. In that letter, we advised the petitioners that due to prior listing allocations in Fiscal Year 2005, we would not be able to begin processing the petition, and that emergency listing of *A. debequaeus* was not warranted. Delays in responding to the petition continued due to the high priority of responding to court orders and settlement agreements. On October 20, 2005, petitioners sent a 60-day notice of intent to sue for failure to grant emergency listing status to *Astragalus debequaeus,* to make a 90-day finding, and to make a 12-month finding. On June 8, 2006, petitioners filed suit to force the Service to make the “overdue” finding. On July 17, 2006, a settlement agreement was proposed by the Service with dates for the 90-day finding submittal being February 9, 2007, and, if the petition was found to be substantial, we would send a 12-month finding to the **Federal Register** by October 12, 2007. These dates were agreed upon in a settlement filed on August 10, 2006, and approved on August 15, 2006. General Biology and Listable Entity Evaluation *Astragalus debequaeus* is a member of the Fabaceae
(Pea)family. Plants are clump-forming perennials 2 to 10 decimeters (8 to 39 inches (in.)) in diameter with a woody taproot; stems 14 to 30 centimeters
(cm)(5.5 to 12 in.) long, curving upward; compound leaves 2 to 10 cm (0.8 to 4 in.) long with 13 to 21 glabrous, flat or somewhat folded leaflets. Flowers are white, upright, and 17 to 21 millimeters
(mm)(0.6 to 0.8 in.) long. Pods are ascending, 15 to 23 mm (0.5 to 1 in.) long, 6 to 11 mm (0.2 to 0.4 in.) thick, and inflated with minute rough hairs that become smooth with age (Welsh 1985, p. 31). *Astragalus debequaeus* has only been identified as a separate taxonomic entity for about 20 years, which represents about two generations (Colorado Natural Heritage Program
(CNHP)2005, p. 60). The species was discovered and described as a new species in 1984 by Dr. Stanley Welsh of Brigham Young University. *Astragalus debequaeus* is recognized as a species in the *Colorado Rare Plant Field Guide* (Spackman *et al.* 1997b, p. 7); Integrated Taxonomic Information System (2007); NatureServe (2006); and Weber and Wittmann (1992, pp. 3, 42; 2001, p. 181). *Astragalus debequaeus* plants are found on the fine-textured, sandy clay soils of the Atwell Gulch Member of the Wasatch Formation that are relatively barren, varicolored, seleniferous, and saline (Welsh 1985, p. 31). The habitat is found between 1,508 and 1,981 meters (4,970 and 6,500 feet) elevation in Mesa and Garfield Counties, Colorado. The species is known from 17 occurrences that occupy about 573 hectares (1,417 acres) (CNHP 2006, pp. 1-2). Fourteen of the occurrences are near the town of DeBeque, Colorado, in Mesa County. The Bureau of Land Management
(BLM)Grand Junction Field Office
(GJFO)manages 12 of these occurrences, 2 of which include small portions of private land. The other two occurrences near DeBeque, Colorado are located on private lands. There are three occurrences of *A. debequaeus* located in Garfield County at the base of the Roan Plateau near the town of Rifle. Two of these occurrences are primarily on BLM lands but include small portions of private land, while the other one is privately owned. The total estimated number of plants at all seventeen occurrences is at least 64,617 (CNHP 2006, p. 2; Lincoln and Bridgman 2006, p. 1). Table 1 outlines the known populations, estimated number of plants and area occupied, land ownership, and overall habitat quality as ranked by CNHP. Table 1.—Astragalus debequaeus Population Information (CNHP 2005; Lincoln and Bridgman 2006, p. 1). Occurence location Number of plants* Acres (hectares) * * Land ownership Quality * * * Shire Gulch 8 to 10 1 (0.4) Private D Pyramid Rock thousands 300 to 392 (121 to 158) BLM GJFO A Pyramid View > 1,000 8 (3.2) BLM GJFO A Coon Hollow > 50,000 352
(142)BLM GJFO A Sulphur Gulch 300 to thousands 1 to 55 (0.4 to 22) BLM GJFO A Sulphur Gulch Bottomland * * * * >50 >30
(12)BLM GSFO C Corcoran Wash 500 8 to 80 (3.2 to 32) BLM GJFO A Anvil Points >700 97
(39)BLM GSFO/Private AB Little Horsethief Creek 20 1 (0.4) BLM GJFO C DeBeque Cutoff 710 to thousands 36 to 317 (14.5 to 128) BLM GJFO/Private A Plateau Valley 12 to 50 1 to 15 (0.4 to 6) BLM GJFO/Private C Atwell Gulch 4,478 * * * * * >16 (6.5) * * * * * BLM GJFO AB South Dry Fork 1,000 15
(6)BLM GJFO/Private A Horsethief Creek 100 3 to 11 (1.2 to 4.4) BLM GJFO/Private B King Creek * * * * 3 1 (0.4) Private D Lockhart Draw * * * * 1 to 5 1 (0.4) BLM GJFO D JQS Trail * * * * 70 to 100 1 to 15 (0.4 to 6) BLM GSFO/Private C * Numbers of plants are estimates. * * Acres and hectares are estimates. When a range of acres or hectares is presented, the first number represents the observed occupied area and the second number represents the mapped area of continuous habitat. * * * Quality is an overall quality ranking assigned by CNHP where an “A” represents “excellent” quality, “B” represents “good” quality, “C” represents “fair” quality overall, and a “D” represents “poor” quality. Intermediates are represented with multiple letters. * * * * New occurrence added to the CNHP database in 2005. * * * * * Lincoln and Bridgman (2006, p. 1) provided population estimate and area estimates for new additions to Atwell Gulch. NatureServe and the CNHP rank the species as G2/S2, indicating that it is imperiled both globally and within Colorado due to extreme rarity (6 to 20 occurrences) and/or because of other factors demonstrably making it vulnerable to extinction throughout its range. Previous Federal Actions *Astragalus debequaeus* was listed as a Category 2
(C2)candidate for listing in 1993 (58 FR 51144, September 30, 1993). In the February 28, 1996, Notice of Review (61 FR 7595), we discontinued the use of multiple candidate categories and considered only the former Category 1 candidates for listing purposes. Because the species did not meet the threshold of the definition of a C1 species, *A. debequaeus* was removed from the candidate list at that time. The species is managed as a Sensitive Species by BLM, as designated by the BLM State Director, with special management consideration. The BLM Manual 6840 provides policy direction that BLM sensitive plant species are to be managed as if they were candidate species for Federal listing so that they do not become listed, while also fulfilling other Federal law mandates. Threats Analysis Section 4 of the Act and its implementing regulations (50 CFR 424) set forth the procedures for adding species to the Federal List of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:
(A)present or threatened destruction, modification, or curtailment of its habitat or range;
(B)overutilization for commercial, recreational, scientific, or educational purposes;
(C)disease or predation;
(D)inadequacy of existing regulatory mechanisms; or
(E)other natural or manmade factors affecting its continued existence. In making this finding, we evaluated whether threats to the *Astragalus debequaeus* presented in the petition and other information available in our files at the time of the petition review may pose a concern with respect to the *A. debequaeus* survival. Our evaluation of these threats is presented below under the most appropriate listing factor. A. The Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range The petitioners state that substantial threats to the species' habitat are presented by—(1) traditional oil and gas development,
(2)oil-shale mining,
(3)coalbed methane development and/or coal mining,
(4)noxious weeds and seeding,
(5)existing and projected roads,
(6)livestock trampling,
(7)off-road vehicle
(ORV)use, and
(8)increased housing development. We address each of these topics individually below. *Information Provided in the Petition Regarding Traditional Oil and Gas Development* —Oil and gas resources and development are extensive within the range of *Astragalus debequaeus.* The species is endemic to the Atwell Gulch Member of the Wasatch Formation substrate, which overlays deposits of oil and gas in the Piceance Basin that BLM has leased for energy development. The following table summarizes information provided in the petition regarding activities within the leases and the sections where plants occur. Occurrences listed in this table are not necessarily the same as those shown in the previous table due to different occurrence criteria protocols used by CNHP in 2004 versus 2006. Table 2.—Summary Information Provided in the Petition Regarding Activities Within the Leases and the Sections Where Astragalus debequaeus Plants Occur Occurence location * Number of leases 1 Old 2 New 3 Applications for permit to drill in the lease area 4 Applications for permit to drill in the section 5 Pipelines Roads ORV Grazing Pyramid Rock 4 11 20 10 multiple multiple 90% open open Corcoran Wash 1 open open South Dry Fork 3 2 1 1 open open Sulphur Gulch 2 2 1 1 open open DeBeque South 2 3 2 3 3 1 open open Atwell Gulch 1 2 multiple open open Jerry Gulch 1 2 open open Anvil Points 3 1 27 31 open open 1 Occurrences listed in this table are not the same as those shown in the previous table due to different occurrence criteria protocols used by CNHP in 2004 versus 2006. Another discrepancy originates from the fact that four additional occurrences were documented in 2005 after this information was obtained by the petitioners from the CNHP. 2 Leases granted prior to standard stipulations being included in lease notices. 3 Leases with, at least, standard stipulations allowing avoidance up to 200 meters. Some of these stipulations also control surface use. 4 Applications for permit to drill in the lease area as of 2004. 5 Applications for permit to drill in the section (approximately 640 acres (2.6 km 2 )) where plants occur as of 2004. *Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review* —We cannot find support for the petitioners' claim that the high density of oil and gas infrastructure causes direct and indirect impacts to *Astragalus debequaeus.* The petitioners cite two instances in which “a sizable number” and “a dozen or so” sensitive plants (no species named) were destroyed during construction of two well pads (BLM GSFO 1999a, pp. 4-33, 34). The BLM GSFO is aware of only one instance where *A. debequaeus* was directly impacted. The BLM permitted the loss of three plants within a proposed disturbance area for an access road (Scheck 2006a). The Service has information on only one additional instance, in the BLM GJFO management area, where four plants were lost during construction of a pipeline and 12 plants were transplanted (Alward 2006). The petition provides general information regarding the extent of oil and gas leasing and potential development in the BLM GSFO and GJFO management areas within the range of *Astragalus debequaeus.* It does not present specific information that this development has resulted in losses or threatens to result in losses of plants or habitat. Much of the information in the petition identifies potential threats and hypothetical impacts rather than actual impacts. On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing of *Astragalus debequaeus* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range due to oil and gas development. *Information Provided in the Petition Regarding Oil Shale Development* —Petitioners state that oil-shale mining continues to become a more concrete threat that would devastate *Astragalus debequaeus.* They cite the previous mining activity that could resume given sufficient economic incentive, and the conditional oil-shale water rights permits that are still held by three oil companies in Garfield and Mesa Counties, Colorado. *Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review* —New oil-shale research leases currently being considered by the BLM in Colorado would be located in the Piceance Basin in Rio Blanco County, outside of the range for *Astragalus debequaeus* (BLM 2006, p. 1). Potential future expansion of the research leases to commercial production would occur in the same area, also outside of the species' range. Oil-shale reserves are found in the Green River Shale formation. *A. debequaeus* is found in the Wasatch formation. The two formations are exposed in close proximity to each other in some areas in Garfield County, Colorado, but we have no information in our files to indicate that historical oil-shale mining in this area is likely to resume in the foreseeable future. Petitioners do not provide evidence that incentives are likely to increase. Renewal of water rights associated with oil-shale development does not suggest imminent or foreseeable destruction of habitat. In February 2006, Mesa County granted an oil company an extension of a conceptual conditional use permit for a water diversion system in the DeBeque area, but no proposed plan of development was submitted (Mesa County 2006, p. 1-2). While indirect or cumulative impacts may result if large water storage projects or other facilities are constructed in the DeBeque area (Scheck 2006a), the petitioners did not provide specific information, nor does the Service have information to indicate that water projects are likely to be developed within the range of this species in the foreseeable future. Due to the lack of overlap between the range of *Astragalus debequaeus* and areas considered for new oil-shale development, we have determined that the information in the petition is incorrect and therefore is not substantial with respect to a threat to the species from oil shale development or associated indirect impacts. On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing of *A. debequaeus* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range due to oil-shale development. *Information Provided in the Petition Regarding Coalbed Methane Development* —The petitioners assert that coalbed methane development and coal mining may constitute threats to *Astragalus debequaeus* due to the resources present and the processes for extraction. Petitioners state that 30 coalbed methane wells have been drilled on South Shale Ridge in the vicinity of an *A. debequaeus* site, and 10 more have been permitted but not drilled. *Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review* —Petitioners provide no information to substantiate the claim that coalbed methane development or coal mining are impacting, or are likely to impact, *Astragalus debequaeus* occurrences. On site surveys by the BLM GJFO have not documented any *A. debequaeus* plants within active or permitted coalbed methane development areas and have not identified any potential threats to the species from these activities (Trappett 2005). On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing of *A. debequaeus* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range due to coalbed methane or coal development. *Information Provided in the Petition Regarding Noxious Weeds* —Petitioners state that noxious weeds and seeding pose threats to *Astragalus debequaeus.* The petition gives three examples of cheatgrass ( *Bromus tectorum* ) invasions documented at *A. debequaeus* occurrences. *Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review* —The petitioners' description of weed and introduced seed interactions with rare plants in general is accurate and applicable to *Astragalus debequaeus* habitat after disturbance. Three examples are given of cheatgrass invasions documented at *A. debequaeus* occurrences. Two of the sites, Pyramid View and Pyramid Rock/Pyramid Ridge, are ranked by CNHP as “A” (excellent) for “quality” even though the cheatgrass downgraded the “condition” of the habitat to a “B” (good). At the third occurrence at Horsethief Creek the “quality” is ranked “B” although the site is given a “C”
(fair)for “condition” due to cheatgrass and the roadside location. *A. debequaeus* plants at this site are large (114 cm/45 in.) and seedlings are present (CNHP 2005, pp. 36-37). While cheatgrass is nearly ubiquitous in the western United States, it does not necessarily dominate perennial plants or prevent seedling establishment. In the BLM GSFO management area, cheatgrass has been noted as a component of the vegetative community at all Anvil Points occurrences that have been visited in the past 4 years. Based on observations during these surveys, it does not appear that the Anvil Points occurrences are dominated by cheatgrass or other noxious weeds, and the *Astragalus debequaeus* populations do not appear to be suppressed by the presence of cheatgrass at the current levels (Scheck 2006a). On the basis of a review of the information in the petition, it is our determination that the petition does not contain substantial information to indicate that cheatgrass and other noxious weeds or seeds are a threat to *Astragalus debequaeous* . Despite the presence of cheatgrass in some locations where *A. debequaeous* occurs, cheatgrass does not appear to suppress *A. debequaeus* (Scheck 2006a). We have concluded that a slight downgrade in habitat quality at a few locations does not constitute a threat to the species. Neither the petitioners, nor our files, provide information on the extent or magnitude of noxious weed invasion to indicate that listing *A. debequaeus* may be warranted due to the present or threatened destruction, modification, or curtailment of *A. debequaeus'* habitat or range. *Information Provided in the Petition Regarding Roads* —The petitioners state that existing and projected roads pose significant threats to *Astragalus debequaeus* . They cite the general proximity of roads to existing populations and the predicted increase in road networks that accompany oil and gas development as significant threats. They base this claim upon assertions of soil compaction, fine particle deposition on the plants, alterations in hydrologic flow above the plants, spread of invasive plants, increased ORV access and use, destabilization of the slopes where the plants are found, the limiting of plant dispersal, and damage to the plants during road maintenance and repairs. *Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review* —In the BLM GSFO management area, several of the Anvil Points suboccurrences are within 0.40 kilometer (0.25 mile) of a road. Scheck (2006a) indicates that road disturbance in the form of destabilization of slopes, dust deposition and corridors for weed dispersal likely results in impacts to *Astragalus debequaeus* . However, there is no substantial information to suggest the magnitude of these impacts and whether they pose a threat to the species. None of the known occurrences are located on slopes below the roads, so there have been no impacts from sedimentation or changes in runoff patterns. Road maintenance and repair has contributed to the loss of a few individuals that are sloughing off the cut banks above the road (Scheck 2006a). However, sloughing at this site seems to be an isolated impact involving only a few plants. Although oil and gas development on BLM lands would include access roads, the BLM would evaluate proposed roads during project planning and they would be subject to applicable stipulations, including possible road relocation (BLM GSFO 1999a, p. 13). These measures should help to ensure that no substantial impacts result from road construction. It appears that the information provided in the petition addressed impacts to the species in only a few localized areas and does not speak to the magnitude or severity of impacts to the species. Further, the petitioners do not provide information on the extent or magnitude of existing and future roads and how road use, maintenance, or development may affect the species. On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing *Astragalus debequaeus* may be warranted due to the present or threatened destruction, modification, or curtailment of *A. debequaeus'* habitat or range due to road development. *Information Provided in the Petition Regarding Livestock* —Petitioners state that livestock pose a threat to *Astragalus debequaeus* , primarily through trampling, but also discuss secondary issues including the introduction of noxious weeds and other invasive plants as well as direct grazing. According to the petition, livestock pose a threat to *the species* because all known *A. debequaeus* occurrences are within BLM grazing allotments. They cite the Atwell Gulch occurrence in the Heely allotment, BLM GJFO management area, where over 20 percent of the total number of plants was heavily trampled in 1997. The petitioners found this compelling in that only 50 percent of plants were located in areas accessible to cattle. At the Pyramid Rock occurrence in the BLM GJFO management area, one occurrence was reported by CNHP to be somewhat overgrazed, with much cheatgrass, which petitioners cite as an indication that cattle were introducing noxious weeds. Petitioners state that as of 2004 there were no other available reports on the grazing status within any allotments. *Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review* —Based on a review of information in our files, we have determined the information contained in the petition regarding the threat to *Astragalus debequaeus* from livestock impacts may not be accurate. The GJFO BLM manages the Heely grazing allotment, which lies within the Atwell Gulch occurrence of *Astragalus debequaeus* . These occurrences were surveyed in 1996 and 2006. In both surveys, trampling of individual plants by cattle was observed; however, the total estimated number of plants appeared to have increased by 610 plants at previously known locations, and 6 newly recorded sites, with an estimated 3,361 plants, were discovered. The BLM renewed the grazing lease in 2006 for only 3 years to allow for the collection of additional data before issuing a grazing decision, during which time it will continue to monitor the plants (Lincoln and Bridgman 2006, p. 5). In the BLM GJFO management area, the Pyramid Rock occurrence was ranked “AB” in 1996 (Spackman et al. 1997a, figure 11) and “A” in 2000 (CNHP 2005, p. 46). Because the quality of the site has improved and its subsequent CNHP ranking, we do not agree with the petitioner's claim that overgrazing is a threat at this site. In the BLM GSFO management area, only one grazing allotment contains known populations of the species. The BLM GSFO completed a grazing permit renewal Environmental Assessment for Webster Park allotment in the Anvil Points occurrence of *Astragalus debequaeus* that included a discussion of grazing impacts (or lack thereof) on the plants. The BLM stated that “there are several known populations of the BLM Sensitive plant, *A. debequaeus* , in the lower unit of the Webster Park allotment and in the adjacent Sharrard Park allotment. Monitoring of these populations in 2002 and 2003 found little evidence of livestock grazing or trampling. The reissuance of the grazing permit, as proposed, should have no effect on this plant species” (Scheck 2006a). The resilience of these plants over 10 years at Atwell Gulch and 19 years at Pyramid Rock indicates that the response of *Astragalus debequaeus* to grazing impacts under current management does not pose a significant threat to the species. The magnitude of grazing in known occupied *A. debequaeus* habitat is minor, and where it occurs, does not seem to be impacting the long-term viability of the species at the site. On the basis of our evaluation of the information on the extent or magnitude of livestock impacts contained in the petition, it is our determination that the petition does not present substantial information to indicate that listing *Astragalus debequaeus* may be warranted due to the present or threatened destruction, modification, or curtailment of *A. debequaeus'* habitat or range. *Information Provided in the Petition Regarding Off-Road Vehicle
(ORV)Use—* The petitioners state that ORV use poses a significant threat and has been documented at an *Astragalus debequaeus* site. Petitioners state that ORV use is allowed in most areas where *A. debequaeus* is found, and that it is documented at the Area of Critical Environmental Concern (ACEC), which is closed to motorized vehicles. The petitioners also expect that increased ORV use will accompany increased access provided by new roads for oil and gas development. *Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review* —The petition does not contain reliable information concerning the threat to *Astragalus debequaeus* from ORV use. While ORV use is allowed in most areas of BLM land where *A. debequaeus* is found, ORV tracks are documented only at the Pyramid Rock ACEC, which is closed to motorized vehicles. The BLM GSFO reports no ORV impacts to the Anvil Points populations, because legal public access to these sites is blocked by private land. On the basis of our evaluation of information on the extent or magnitude of ORV use contained in the petition, it is our determination that the petition does not present substantial information to indicate that listing *Astragalus debequaeus* may be warranted due to the present or threatened destruction, modification, or curtailment of *A. debequaeus'* habitat or range. Our information indicates that the magnitude of ORV use in known occupied *A. debequaeus* areas is minor. *Information Provided in the Petition Regarding Residential Development* —The petitioners assert that increased housing development threatens *Astragalus debequaeus.* Petitioners cite the 1997 CNHP report that listed increased housing development between Rifle and Grand Junction as a threat to the habitat for the species (Spackman et al. 1997a, pp. 5, 44). *Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review* —The petition provides no estimates of current or projected housing development within the habitat for *Astragalus debequaeus* to indicate that it represents a threat to the species. While housing development is known to be increasing within the range of this species, the potential direct impact of housing development on *A. debequaeus* is limited to the occurrences that are at least partly on private land. Information on the portion of occupied area and number of plants present on the private portion of these parcels is not available. However, private lands contribute only a small portion of the known occurrences of *A. debequaeus.* Even if all private lands were lost, the vast majority of occurrences and individuals would remain on BLM lands (see Table 1) not subject to residential development. On the basis of our evaluation of information on the extent or magnitude of residential development contained in the petition, it is our determination that the petition does not present substantial information to indicate that listing *A. debequaeus* may be warranted due to the present or threatened destruction, modification, or curtailment of *A. debequaeus'* habitat or range. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes The petitioners did not provide information regarding the overutilization of this *Astragalus debequaeus* for commercial, recreational, scientific, or educational purposes. We also have no available information on the overutilization of this plant species for commercial, recreational, educational, or scientific purposes. Therefore, we have determined that the petition does not provide substantial information that listing *A. debequaeus* may be warranted due to overutilization for commercial, recreational, scientific, or educational purposes. C. Disease or Predation *Information Provided in the Petition* —Petitioners state that the threat of herbivory (either natural or livestock related) could be significant given the small population sizes, scarcity of occurrences, and limited geographic range size of the species. They cite CNHP records from 2004 in which the plants were “somewhat overgrazed” at one occurrence in 1986, and two plants were browsed in another occurrence where there also was “some evidence of seed predation by an unknown predator.” Petitioners also state that cattle are believed to avoid grazing on *Astragalus debequaeus* , either because it is unpalatable or because the more palatable plants are found in other habitats. *Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review* —The petition does not contain substantial information concerning the threat of herbivory. The report on seed predation and browsing appears anecdotal, and no evidence suggests that herbivory threatens *Astragalus debequaeus.* As the petition states, cattle appear to avoid grazing on *A. debequaeus.* As such, we have determined that the petition does not provide substantial information that listing *A. debequaeus* may be warranted due to herbivory. Livestock impacts are also discussed under Factor A above. D. Inadequacy of Existing Regulatory Mechanisms Petitioners state that Federal regulatory mechanisms are inadequate to protect the *Astragalus debequaeus.* The petition asserts that BLM fails to protect the species due to—(1) inadequate monitoring of occurrences;
(2)inadequate avoidance of adverse impacts from oil and gas development, grazing, and ORV use; and
(3)failure to designate or enforce ACECs. Finally, the petition asserts that there is a lack of State regulatory mechanisms protecting the species. As indicated in other portions of this finding, the petition failed to present substantial information indicating that oil and gas, grazing, and ORV use are a threat to *A. debequaeus.* Nevertheless, we evaluated the claims of the petition regarding each of these factors and the adequacy of the associated regulatory mechanisms below. *Information Provided in the Petition Regarding Inadequate Monitoring* —The Petitioners state that BLM fails to monitor the species, saying that several occurrences have not been revisited in over 18 years. *Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review* —The petition does not provide reliable information that the BLM fails to monitor the species. The petitioners claim that several occurrences have not been revisited in over 18 years. However, CNHP (2005, pp. 12, 17, 123) records indicate that, with the exception of one small occurrence and two suboccurrences, all known occurrences have been surveyed since 1995. Petitioners list eight subocurrences that have been revisited within the last 8 years and four newly discovered suboccurrences. In the BLM GSFO management area, two suboccurrences in the Anvil Points area have been monitored for the past 3 years, and surveys have relocated one of four “missing” subocurrences that may have been inaccurately mapped (Scheck 2006b). In the BLM GJFO management area, eight known subocurrences were resurveyed, seven new subocurrences were found, and a monitoring plot was established in the Atwell Gulch occurrence in 2006 (Lincoln and Bridgman 2006, p. 5). Transplant research and monitoring (see Factor E below) were funded after BLM surveys located plants along the route for a new oil and gas pipeline. On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing *Astragalus debequaeus* may be warranted due to inadequate monitoring of occurrences. *Information Provided in the Petition Regarding Inadequate Protection From Oil and Gas Development, Grazing, and ORV Use* —The petitioners assert that the BLM fails to regulate oil and gas development, ORV use, and livestock grazing in a manner that would adequately protect *Astragalus debequaeus* . Petitioners assert that neither the 1987 Grand Junction Resource Management Plan nor the 1999 Glenwood Springs Resource Management Plan amendment adequately controls energy development impacts on the plants. They state that the standard lease provisions found in 43 CFR 1301.1-2 cannot be applied to leases issued prior to the promulgation of these regulations. They also state that neither of these Resource Management Plans stipulate there will be no surface occupancy at BLM sensitive plant sites. Regarding regulation of ORV use, the petitioners state that more than half of the occurrences and total number of plants are exposed to ORV traffic, and that several of the occurrences are in designated open ORV areas on BLM land. Regarding regulation of livestock grazing, petitioners cite the example of five Environmental Assessments written for grazing permit renewals in the BLM GJFO management area, in which BLM failed to consider grazing impacts to the plant. *Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review* —The petition does not provide reliable information regarding the ability of the BLM to apply protections to already leased oil and gas areas. The provisions in 43 CFR 1301.1-2 apply to leases issued prior to the adoption of the regulations, because these provisions are considered “consistent with lease rights granted” and, therefore, are not a violation of existing lease rights (Scheck 2006b). While relocation of activities by up to 200 meters (656 feet) may not be adequate to avoid all impacts to large occurrences, it would protect the majority of individuals. Relocation of oil and gas activities also would suffice to avoid direct impacts to smaller occurrences, such as those at Anvil Points. Ten of the 13 suboccurrences in the Anvil Points occurrence are found on leases issued in May 1999, following the completion of the Glenwood Springs 1999 Oil and Gas Leasing and Development Record of Decision and Resource Management Plan Amendment (Scheck 2006b). These leases are covered by a Controlled Surface Use stipulation (CSU-3) to protect populations of sensitive plants (BLM GSFO 1999b, p. 12). Each time a new Application for Permit to Drill is received or a Geographic Area Plan is proposed, BLM GSFO requires surveys in areas of potential habitat for special status plants, including *Astragalus debequaeus* . If populations or individuals are found in the project area, the proposed action is modified, if deemed necessary, to mitigate impacts (Scheck 2006b). When seismic activities were proposed for the Anvil Points area in 2001, surveys were conducted beforehand and all occurrences of *A. debequaeus* were avoided (Scheck 2006a). In the BLM GJFO management area where 13 of the 17 occurrences are located, the standard lease stipulation (43 CFR 1301.1-2) is included in 19 of the 30 leases in the area (see Table 1). The earlier leases also are subject to the same provisions, which are consistent with lease rights granted. Conditions of approval for new Applications for Permits to Drill include surveys of potential habitat for special status plants, including *Astragalus debequaeus,* and mitigation measures to avoid impacting occupied habitat. Regarding regulation of livestock grazing, four of the Environmental Assessments cited by petitioners that were available for review support the petitioner's claim that no specific measures were included for protection of the plant (BLM GJFO 2000, pp. 8-9; BLM GJFO 2001, pp. 7-8; BLM GJFO 2003a, pp. 7-8, 13; BLM GJFO 2003b, p. 6). However, seasoned field biologists, with extensive knowledge of the species and years of site visits to these allotments, signed these assessments after determining that the species was not likely to be adversely affected by the grazing activities. In two of these Environmental Assessments (BLM GJFO 2000, p. 9; BLM GJFO 2001, p. 8), BLM recommended scheduled range monitoring for a subset of the relevant population. Regarding ORV use regulation, petitioners assert that few restrictions exist within the range of *Astragalus debequaeus* . They do not show, nor do we have additional information to indicate, that the level of ORV use in the area presents a need for a higher level of regulation. On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing *Astragalus debequaeus* may be warranted due to the lack of regulation by BLM on oil and gas development, livestock use, or ORV use. Our files show that the BLM routinely considers impacts of its actions on *A. debequaeus* , and avoids the majority of individual plants and occurrences. *Information Provided in the Petition Regarding Failure to Designate Areas of Critical Environmental Concern* —Petitioners state that BLM has failed to designate additional ACECs to protect this species, and that the existing ACEC does not protect the plants from grazing and ORV activities and impacts, based on one illegal ORV track and permitted grazing. *Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review* —Through the Roan Plateau Resource Management Plan/Final Environmental Impact Statement, the BLM has proposed an ACEC at Anvil Points that would increase protection for the species (BLM GSFO 2006, p. 3-111). This ACEC will be finalized after the Record of Decision is published. The ACEC would protect about 14 percent of the plants in the Anvil Points occurrence (Scheck 2006b; CNHP 2005, pp. 38, 73). The Pyramid Rock ACEC in the BLM GJFO management area is being evaluated for grazing and ORV impacts to *Astragalus debequaeus* and three other species because some habitat damage has occurred (Lincoln and Bridgman 2006, p. 9). This ACEC has been withheld from oil and gas lease offerings. On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing *Astragalus debequaeus* may be warranted due to the lack of protection by BLM through the designation and enforcement of ACECs. The BLM has created the Pyramid Rock ACEC that protects about 150 individuals (CNHP 2005, p. 2). Furthermore, the petition and our files do not contain any evidence that the species requires ACECs to sustain it. *Information Contained in the Petition Regarding Lack of State Regulatory Mechanisms* —Petitioners state that Colorado has no State regulatory mechanisms for protecting rare plant species, and that the Colorado Natural Areas Program is insufficient to protect and provide recovery for *Astragalus debequaeus* . *Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review—* The Colorado Natural Areas Program collects information on rare plant species, but does not have regulatory authority over habitat development. However, they are working with the BLM GJFO to determine whether fencing would be appropriate for the Pyramid Rock Natural Area (Kurzel 2006). Voluntary conservation agreements for a State Natural Area are most effective on private land, which is a very small percentage of the habitat for this species. While we agree that Colorado does not have State regulatory mechanisms for protecting rare plant species, the petitioners and currently available information do not provide information that the species requires any additional regulatory mechanisms to sustain it. On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing *Astragalus debequaeus* may be warranted due to the inadequacy of existing regulatory mechanisms. E. Other Natural or Manmade Factors Affecting the Continued Existence of the Species *Information Provided in the Petition Regarding Population Size and Range* —Petitioners state that limited range, small number of plants, and small number of populations make *Astragalus debequaeus* vulnerable to anthropogenic impacts, environmental and genetic stochasticity, and climate change. They cite 44 occurrences of the species at 8 sites over a range of 40 to 48 kilometers (25 to 30 miles). *Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review* —We disagree with the assertion that population size, range, and number of populations are so limited that other natural or manmade factors would substantially impact the species. In a 2006 Global Ranking report from CNHP, the occurrence numbers have been revised to 32 documented occurrences, 15 of which are suboccurrences; therefore, 17 (primary) occurrences are currently known to be extant (CNHP 2006, p. 2). The difference in the number of occurrences is based on an update of occurrence delineation protocols, plus the addition of four new occurrences that were added to the CNHP database in 2005 (see Table 1). The total number of plants estimated in 1996 was 68,000. Four new occurrences and a net of 1,205 new plants have been documented by CNHP (2005, pp. 7, 36, 47, 80, 137). In 2006, which had a very dry spring, 6 new suboccurrences containing 3,361 plants were recorded in Atwell Gulch (Lincoln and Bridgman 2006, p. 1). The total estimated number of plants has changed from 68,000 in 1996 to 64,617 in 2006. The difference appears to be due to the method of summarizing the rough estimates from 1996 records. There are no recounts that can be used to precisely compare population sizes and determine whether there has been an actual downward trend in the number of plants. The area of currently known occupied habitat for the 17 occurrences is an estimated 573 hectares (1,417 acres) (CNHP 2006, p. 2). Spackman et al. (1997a, p. 8) concluded that the species occupies most of its available suitable habitat and historical range. On the basis of our evaluation of the information presented in the petition, it is our determination that the petition does not present substantial information to indicate that listing of *Astragalus debequaeus* may be warranted due to impacts from other natural or manmade factors. *Information Provided in the Petition Regarding Transplanting Success* —Petitioners state that *Astragalus debequaeus* does not respond well to transplanting. They cite one unsuccessful attempt to transplant three plants (Trappett 2005). *Analysis of Information Provided in the Petition and Information Available to Us at the Time of Petition Review* —The petition provides reliable information regarding the lack of success of transplantation as a mitigation measure in Trappett (2005). We also know of one additional attempt at transplantation. In 2005, 12 individuals were transplanted from a pipeline right-of-way. Two of the transplants died, some flowered in 2006, with none being as robust as undisturbed plants in the vicinity (Alward 2006). Because so few individuals were involved, information from these two transplant attempts does not provide substantial evidence to indicate whether transplanting can be successful in minimizing disturbance effects on the species. Although the two known attempts have been of limited or uncertain success, few individuals are subject to transplantation. The BLM prefers impact avoidance over transplantation as a conservation measure. Neither the petitioners nor our files provide substantial information that listing *Astragalus debequaeus* may be warranted due to the lack of success of transplantation attempts. Finding We have reviewed the petition and literature cited in the petition and evaluated that information in relation to information available to us. After this review and evaluation, we find that the petition does not present substantial scientific information to indicate that listing *Astragalus debequaeus* (DeBeque milkvetch) may be warranted at this time. Petitioners state that nearly all occurrences are—within oil and gas leases, some with approved permits to drill; on active grazing allotments; open to ORVs; and often near roads and pipelines. However, there are only a very limited number of instances where impacts to the plants have resulted from any documented or potential threats. Further, there is insufficient information in the petition regarding the magnitude of these impacts and no information that suggests that these impacts may have population-level effects. The petition is based primarily on claims regarding Factors A and D, both of which are primarily tied to oil and gas development. Since the petition was submitted in 2004, the BLM has taken additional measures to conserve the species in areas within potential oil and gas development areas. They have withheld the Pyramid Rock ACEC from oil and gas leasing, conducted new surveys during the Application for Permit to Drill and grazing allotment renewal reviews, and added standard lease stipulations and controlled use stipulations to new oil and gas leases in the course of developing appropriate management strategies. Monitoring is being implemented to assess the effectiveness of these measures in minimizing impacts to the species as additional development occurs within its habitat. Our review of the available information indicated that the species appears to be maintaining its presence in known locations throughout its range. Despite several potential threat factors, the petition and the information in our files do not present substantial information indicating that any factor, nor a combination of factors, suggests the petitioned action, listing as threatened or endangered with critical habitat, may be warranted for *Astragalus debequaeus.* Although we will not commence a status review in response to this petition, we will continue to monitor the *Astragalus debequaeus* population status and trends, potential threats, and ongoing management actions that might be important with regard to the conservation of the *A. debequaeus* across its range. We encourage interested parties to continue to gather data that will assist with the conservation of the species. If you wish to provide information regarding *A. debequaeus* , you may submit your information or materials to the Field Supervisor, Western Colorado Ecological Services Office, U.S. Fish and Wildlife Service (see ADDRESSES section). References Cited A complete list of all references cited herein is available upon request from the Western Colorado Ecological Services Field Office (see ADDRESSES section). Author The primary author of this document is Ellen Mayo, U.S. Fish and Wildlife Service, Western Colorado Ecological Services Field Office (see ADDRESSES section). Authority The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ). Dated: February 6, 2007. Kenneth Stansell, Acting Director, Fish and Wildlife Service. [FR Doc. E7-2445 Filed 2-13-07; 8:45 am] BILLING CODE 4310-55-P 72 30 Wednesday, February 14, 2007 Notices ADVISORY COUNCIL ON HISTORIC PRESERVATION Notice of Meeting AGENCY: Advisory Council on Historic Preservation. ACTION: Notice of meeting. SUMMARY: Notice is hereby given that the Advisory Council on Historic Preservation
(ACHP)will meet on Friday, February 23, 2007. The meeting will be held in the Rachel Carson Room of the Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC at 9 a.m. The ACHP was established by the National Historic Preservation Act of 1966 (16 U.S.C. 470 et seq.) to advise the President and Congress on national historic preservation policy and to comment upon Federal, federally assisted, and federally licensed undertakings having an effect upon properties listed in or eligible for inclusion in the National Register of Historic Places. The ACHP's members are the Architect of the Capitol; the Secretaries of the Interior, Agriculture, Defense, and Transportation; the Administrators of the Environmental Protection Agency and General Services Administration; the Chairman of the National Trust for Historic Preservation; the President of the National Conference of State Historic Preservation Officers; a Governor; a Mayor; a Native American; and eight non-Federal members appointed by the President. The agenda for the meeting includes the following: Call to Order—9 a.m. I. Chairman's Welcome. II. Swearing in Ceremony for Mayor Alan Autry. III. ACHP Award for Federal Preserve America Achievement and Chairman's Award Presentation. IV. Adoption of ACHP Recommendations from the Preserve America Summit. V. Archaeology Task Force. A. Presentation of Human Remains Policy Statement for Council Approval. B. Report on Archaeology Guidance and Heritage Tourism Initiatives. VI. Report of the Native American Advisory Group. VII. Report of the Preservation Initiatives Committee. A. Legislative Update. B. Update on Preserve America Communities and Grants. C. Implementation of NHPA Amendments. VIII. Report of the Federal Agency Programs Committee. A. Guidance for Program Comments. B. Update on the Implementation of the Affordable Housing Policy Statement. C. Report on Proposed Redevelopment of St. Elizabeths West Campus. D. Consideration of Standard Treatments. IX. Report of the Communications, Education, and Outreach Committee. A. 2007 Preserve America Presidential Award Update. C. Preserve America Presidential Award Program Improvements. X. Chairman's Report. A. Report on Meeting of Senior Policy Officials. B. ACHP Reauthorization Legislation. C. ACHP Budget—FY 2007 and FY 2008. XI. Executive Director's Report. XII. New Business. XIII. Adjourn. Note: The meetings of the ACHP are open to the public. If you need special accommodations due to a disability, please contact the Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue, NW., Room 803, Washington, DC 202-606-8503, at least seven
(7)days prior to the meeting. FOR FURTHER INFORMATION CONTACT: Additional information concerning the meeting is available from the Executive Director, Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue, NW., #803, Washington, DC 20004. Dated: February 9, 2007. Ralston Cox, Acting Executive Director. [FR Doc. 07-683 Filed 2-13-07; 8:45 am]
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Traces to 28 documents
CFR
- Does FAA include sensitive security information and proprietary information in the Federal Docket Management System (FDMS)?§ 11.35
- What size standards has SBA identified by North American Industry Classification System codes?§ 121.201
- May I address the unsafe condition in a way other than that set out in the airworthiness directive?§ 39.19
- Issue of type certificate: import products.§ 21.29
- Reinstatement of applications and registrations abandoned, cancelled, or expired due to Office error.§ 2.64
- National primary ambient air quality standards for carbon monoxide.§ 50.8
- Can any SIP planning requirements be suspended in 8-hour ozone nonattainment areas that have air quality data that meets the NAAQS?§ 51.918
- Inspection and maintenance program.§ 52.241
- Enhanced I/M performance standard.§ 51.351
- Basic I/M performance standard.§ 51.352
- Identification of plan—in part.§ 52.220
U.S. Code
- Public information; agency rules, opinions, orders, records, and proceedings§ 552
- Federal Aviation Administration§ 106
- Purposes§ 3501
- Application for registration; verification§ 1051
- Avoidance of duplicative or unnecessary analyses§ 605
- Rules and regulations for conduct of proceedings in Patent and Trademark Office§ 1123
- Powers and duties§ 2
- Definitions§ 7501
- Definitions§ 601
- Establishment, functions, and activities§ 272
- Congressional findings and declaration of purposes and policy§ 1531
- Transferred or Omitted§ 470
29 references not yet in our index
- 49 CFR 7
- 14 CFR 39
- 26 CFR 301
- 37 CFR 2
- 40 CFR 81.305
- Pub. L. 104-59
- 99 F.3d 1551
- 375 F.3d 537
- 265 F.3d 426
- 40 CFR 50
- 40 CFR 58
- 40 CFR 93
- 40 CFR 93.118(e)(4)
- 40 CFR 93.124
- 40 CFR 93.118(e)(4)(i)
- 40 CFR 93.118(e)(4)(ii)
- 40 CFR 93.118(e)(4)(iii)
- 40 CFR 93.118(e)(4)(iv)
- 40 CFR 93.118(e)(4)(v)
- 40 CFR 93.118(e)(4)(vi)
- 40 CFR 93.118(e)(5)
- Pub. L. 104-4
- 40 CFR 52
- 40 CFR 81
- 50 CFR 17
- 50 CFR 424.14(b)
- 50 CFR 424.14(a)
- 50 CFR 424
- 43 CFR 1301.1-2
Citation graph
cites case law
Proposed Rules
Notice of availability and request for comments
F. App'x99 F.3d 1551
F. App'x375 F.3d 537
F. App'x265 F.3d 426
Cites 57 · showing 12Cited by 0 across 0 sources