Proposed Rules. Notice of proposed rulemaking (NPRM)

32,969 words·~150 min read·/register/2007/05/17/07-2419

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

BILLING CODE 4910-13-M DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27974; Directorate Identifier 2007-CE-040-AD] RIN 2120-AA64 Airworthiness Directives; Diamond Aircraft Industries GmbH Model DA 40 and DA 40F 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 describes the unsafe condition as: A nose landing gear leg failed in area of the nose gear leg pivot axle. This airplane was mostly operated on grass runways and training operations. This failure was based on a fatigue crack developed in the pivot axle. Material inspections figured out that this cracks may also develop on other serial No. pending the type of operation. 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 June 18, 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:* Go to *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: 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-2007-27974; Directorate Identifier 2007-CE-040-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 Austro Control, which is the aviation authority for Austria, has issued AD No. A-2005-005, dated November 15, 2005 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: A nose landing gear leg failed in area of the nose gear leg pivot axle. This airplane was mostly operated on grass runways and training operations. This failure was based on a fatigue crack developed in the pivot axle. Material inspections figured out that this cracks may also develop on other serial No. pending the type of operation. The MCAI requires repetitively inspecting the nose landing gear leg for cracks and replacing the nose landing gear leg if cracks are found. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Diamond Aircraft Industries GmbH has issued Mandatory Service Bulletin No. MSB40-046/1, No. MSBD4-046/1, dated April 25, 2007. 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 476 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $38,080, or $80 per product. In addition, we estimate that any necessary follow-on actions would take about 8 work-hours and require parts costing $1,715, for a cost of $2,355 per product. We have no way of determining the number of products that may need these actions. 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: **Diamond Aircraft Industries GmbH:** Docket No. FAA-2007-27974; Directorate Identifier 2007-CE-040-AD. Comments Due Date

(a)We must receive comments by June 18, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to the following airplanes certificated in any category: Model Serial Nos. DA 40 All serial numbers beginning with 40.006. DA 40F All serial numbers beginning with 40.F001. All serial numbers beginning with 40.FC001. Subject

(d)Air Transport Association of America

(ATA)Code 32: Landing Gear. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: “A nose landing gear leg failed in area of the nose gear leg pivot axle. This airplane was mostly operated on grass runways and training operations. This failure was based on a fatigue crack developed in the pivot axle. Material inspections figured out that this crack may also develop on other serial No. pending the type of operation.” The MCAI requires repetitively inspecting the nose landing gear leg for cracks and replacing the nose landing gear leg if cracks are found. Actions and Compliance

(f)Unless already done, do the following actions:

(1)Within the next 100 hours time-in-service

(TIS)after the effective date of this AD, inspect the nose landing gear leg for cracks. Repetitively inspect thereafter at intervals not to exceed 200 hours TIS.

(2)Before further flight after any inspection in which cracks are found, replace the nose landing gear leg. After replacement, continue with the repetitive inspection requirement specified in paragraph (f)(1) of this AD.

(3)Do the actions required in paragraphs (f)(1) and (f)(2) of this AD following Diamond Aircraft Industries GmbH Mandatory Service Bulletin No. MSB40-046/1, No. MSBD4-046/1, dated April 25, 2007, and the applicable maintenance manual. 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, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. *Send information to ATTN:* Sarjapur Nagarajan, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; *telephone:*

(816)329-4145; *fax:*

(816)329-4090. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.

(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 Austro Control AD No. A-2005-005, dated November 15, 2005; and Diamond Aircraft Industries GmbH Mandatory Service Bulletin No. MSB40-046/1, No. MSBD4-046/1, dated April 25, 2007, for related information. Issued in Kansas City, Missouri, on May 10, 2007. Charles L. Smalley, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-9495 Filed 5-16-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Office of the Secretary 14 CFR Parts 217, 241, 248, 250, 291, 298 and 374a [Docket No. OST 2006-26053] RIN 2139-AA11 Submitting Airline Data via the Internet AGENCY: Office of the Secretary, DOT. ACTION: Notice of public meeting. SUMMARY: The U.S. Department of Transportation

(DOT)is hosting a public meeting to discuss the submission of air carrier traffic, financial, and consumer reports via a secure internet connection. The public meeting was requested by the Air Transport Association. DOT staff will demonstrate e-filing procedures and be available to answer questions. During the meeting, the DOT will propose a pilot program for a limited number of air carriers to test the internet filing system prior to the system becoming operational. A cross section of major, national, regional, commuter and foreign air carriers will be invited to volunteer to participate in the pilot program. DATES: The meeting will be held June 21, 2007, from 1 p.m. to 4 p.m. ADDRESSES: The meeting will be held at the new DOT headquarters building at 1200 New Jersey Avenue, SE., Washington, DC 20590. The room number will be announced at a later date. Persons attending the public meeting must pass through the building security; therefore, we are requesting that you register for attendance by e-mailing or calling Ms. Sharon Herman at *Sharon.herman@dot.gov* or

(202)366-9059. FOR FURTHER INFORMATION CONTACT: Bernie Stankus, Office of Airline Information, RTS-42, Research and Innovative Technology Administration, Bureau of Transportation Statistics (BTS), telephone number

(202)366-4387, fax number

(202)366-3383 or e-mail *bernard.stankus@dot.gov.* SUPPLEMENTARY INFORMATION: The notice of proposed rulemaking

(NPRM)was published on December 20, 2006 (71 FR 76226). You may review comments to the NPRM at *http://www.dms.dot.gov,* Docket 26053. Background Receiving and processing aviation data is an essential business process for the DOT. To increase efficiency and reduce costs of the filing process to both the air carriers and the government, DOT has proposed that all aviation data collected by the BTS be transmitted via the internet (e-filing). To the maximum extent practicable, the proposed e-filing system will be user friendly. Automated, built-in data edits would alert filers of incomplete information, thus reducing filing errors and the need for corrective re-processing. E-filing is more secure than attaching files to e-mails. E-filing does not have the size limit constraints encountered by attachments to e-mail submissions. E-filing provides the submitters with immediate confirmation that the filing has been received by BTS. E-filing should eliminate the need for BTS to key punch hard copy records into its various data bases. During this public meeting, DOT representatives will answer questions about the proposed system, the pilot program and gather additional public comments. A summary of the public meeting will be placed in the rulemaking docket. Issued in Washington, DC, on May 8, 2007. Donald W. Bright, Assistant Director, Airline Information, Bureau of Transportation Statistics. [FR Doc. E7-9210 Filed 5-16-07; 8:45 am] BILLING CODE 4910-HY-P DEPARTMENT OF TRANSPORTATION Office of the Secretary 14 CFR Part 234 Reporting Requirements for Aircraft Gate Returns AGENCY: Office of the Secretary, DOT. ACTION: Notice of public meeting. SUMMARY: The U.S. Department of Transportation

(DOT)is hosting a public meeting to discuss the reporting of on-time aviation data, specifically the reporting of gate-departure time when an aircraft returns to the gate after an initial gate departure, but before the wheels-off time, and the need to report gate-departure time when the flight is ultimately cancelled. DATES: The meeting will be held June 20, 2007, from 1 p.m. to 4 p.m. ADDRESSES: The meeting will be held at the new DOT headquarters building at 1200 New Jersey Avenue, SW., Washington, DC 20590. The room number will be announced at a later date. Persons attending the public meeting must pass through the building security; therefore, we are requesting that you register for attendance by e-mailing or calling Ms. Sharon Herman at *Sharon.herman@dot.gov* or

(202)366-4387, fax number

(202)366-3383 or e-mail *bernard.stankus@dot.gov* . SUPPLEMENTARY INFORMATION: Background The long tarmac delays that occurred in late 2006 and early 2007 focused public attention on the DOT's Part 234 Airline Service Quality Performance Reports. In reviewing taxi-out times, it was brought to our attention that the air carriers were inconsistent in reporting gate-departure times when an aircraft returned to the gate. Some carriers were reporting the initial gate departure time while others were reporting the “second” gate departure time. There are advantages and disadvantages with both methods. By reporting the first gate-departure time, the DOT knows the time interval from when the aircraft was ready to depart and when the aircraft actually departed the airport (wheels-off time). However, many times the air carrier is credited with an on-time departure, when in reality the aircraft returned to the gate only to depart well after the scheduled departure time. Also, the taxi-out time is miscalculated, as the time that the aircraft was parked at the gate awaiting re-boarding is counted in the taxi out time. Reporting the second gate-departure time disguises inconveniences that the passengers endured by making it appear that they were on the aircraft for a much shorter duration before wheels-off time. Some have indicated that the taxi-out time for carriers reporting the second gate departure time is a more accurate assessment of taxi-out times. During recent snowstorms in the northeast, many flights departed the boarding gates only to spend many hours on the tarmac being de-iced and waiting for improved weather conditions. When the weather deteriorated, flights were cancelled. Historically, carriers have not reported gate-departure times when the flight is later cancelled. During this public meeting, the Department will attempt to clarify the reporting requirements for aircraft that return to departure gates. Issued in Washington, DC, on May 8, 2007. Donald W. Bright, Assistant Director, Airline Information, Bureau of Transportation Statistics. [FR Doc. E7-9209 Filed 5-16-07; 8:45 am] BILLING CODE 4910-HY-P DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Parts 1910, 1915, 1917, and 1918 [Docket No. OSHA-2007-0044] RIN 1218-AC08 Updating OSHA Standards Based on National Consensus Standards; Personal Protective Equipment AGENCY: Occupational Safety and Health Administration (OSHA), Department of Labor. ACTION: Notice of proposed rulemaking. SUMMARY: OSHA is proposing to revise the personal protective equipment

(PPE)sections of its general industry, shipyard employment, longshoring, and marine terminals standards regarding the use of eye and face protective devices, head protection, and foot protection. OSHA is proposing to replace the existing references to specific consensus standards with performance language requiring PPE to be constructed in accordance with good design standards. The proposed revision includes guidance for determining what is a good design standard. In addition, OSHA is proposing to add non-mandatory appendices that list standards that constitute good design standards as used in the requirement. OSHA is also proposing to delete a paragraph in its ventilation standard that requires safety shoes to comply with a specific American National Standards Institute

(ANSI)standard, and another paragraph in in its welding, cutting and brazing standard that requires filter lenses and plates in eye protective equipment to meet a test for transmission of radiant energy prescribed in another specific ANSI standard. In proposing to delete these paragraphs, OSHA intends for this safety equipment to comply with the applicable PPE design provisions in Subpart I of the general industry standards. These proposed revisions are a continuation of OSHA's effort to update or remove references to specific consensus and industry standards located throughout the Agency's standards. DATES: Comments and requests for an informal public hearing must be submitted by the following dates: • Hard copy: Your comments or hearing requests must be submitted (postmarked or sent) by July 16, 2007. • Electronic transmission and facsimile: Your comments or hearing requests must be sent by July 16, 2007. ADDRESSES: You may submit comments, requests for hearings and additional materials by any of the following methods: *Electronically:* You may submit comments, requests for hearings, and attachments electronically at *http://www.regulations.gov,* which is the Federal eRulemaking Portal. Follow the instructions on-line for making electronic submissions. *Fax:* If your submissions, including attachments, are not longer than 10 pages, you may fax them to the OSHA Docket Office at

(202)693-1648. *Mail, hand delivery, express mail, messenger or courier service:* You must submit three copies of your comments, requests for hearings and attachments to the OSHA Docket Office, Docket No. OSHA—2007—0044, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210. Deliveries (hand, express mail, messenger and courier service) are accepted during the Department of Labor's and Docket Office's normal business hours, 8:15 a.m.-4:45 p.m., e.t. *Instructions:* All submissions must include the Agency name and the OSHA docket number for this rulemaking (OSHA Docket No. OSHA-2007-0044). Submissions, including any personal information you provide, are placed in the public docket without change and may be made available online at *http://www.regulations.gov.* *Docket:* To read or download submissions or other material in the docket, go to *http://www.regulations.gov* or the OSHA Docket Office at the address above. All documents in the docket are listed in the www.regulations.gov index, however, some information (e.g., copyrighted material) is not publicly available to read or download through the Web site. All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. FOR FURTHER INFORMATION CONTACT: For general information and press inquiries contact Kevin Ropp, Director, OSHA Office of Communications, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone:

(202)693-1999. For technical inquiries, contact Ted Twardowski, Directorate of Standards and Guidance, Room N-3609, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone:

(202)693-2070 or fax:

(202)693-1663. Copies of this **Federal Register** notice are available from the OSHA Office of Publications, Room N-3101, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, telephone:

(202)693-1888. Electronic copies of this **Federal Register** notice, as well as news releases and other relevant documents, are available at OSHA's Web page at *http://www.osha.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. Discussion of Changes II. Legal Considerations III. Preliminary Economic Analysis and Regulatory Flexibility Act Certification IV. Paperwork Reduction Act V. Federalism VI. State-Plan States VII. Unfunded Mandates Reform Act VIII. Authority and Signature I. Discussion of Changes A. Introduction As discussed in a previous **Federal Register** notice (69 FR 68283), OSHA is undertaking a series of projects to update its standards to reflect the latest versions of consensus and industry standards. These projects will include updating or revoking consensus and industry standards incorporated by reference, updating regulatory text of current OSHA rules that were adopted directly from the language of outdated consensus standards, and, where appropriate, replacing specific references to outdated consensus standards with performance-oriented requirements. This action is another step in OSHA's long-term effort to update or revoke references to specific consensus and industry standards. OSHA is performing two main actions in this proposal. First, OSHA is proposing to revise the personal protective equipment

(PPE)sections of its general industry, shipyard employment, longshoring, and marine terminals rules to require that PPE be constructed in accordance with good design standards. The proposed revision also provides guidance on what is a good design standard. In addition, OSHA is proposing to add non-mandatory appendices that list standards that constitute good design standards for purposes of the requirement. Second, OSHA is proposing to delete two paragraphs in § 1910.94 (Ventilation) and § 1910.252 (Welding, cutting and brazing) referencing specific versions of American National Standards Institute

(ANSI)standards on foot protection and eye and face protective devices, respectively. OSHA discusses each action below. B. Revisions to PPE Sections in General Industry, Shipyard Employment, Longshoring, and Marine Terminals Standards

(1)Background Subpart I of OSHA's general industry standards contains design requirements for eye and face protective devices, head protection, and foot protection. See §§ 1910.133, 1910.135, 1910.136. OSHA has similar requirements in subpart I of part 1915 (Shipyard Employment), subpart E of part 1917 (Marine Terminals), and subpart J of part 1918 (Longshoring). These rules require, among other things, that this PPE comply with certain ANSI standards incorporated by reference, unless the employer demonstrates that a piece of equipment is as effective as equipment that complies with the incorporated ANSI standard. *See, e.g.* , § 1910.133(b)(1). 1 These design provisions are part of comprehensive requirements to ensure that employees use PPE that will protect them from hazards in the workplace. 1 The general industry and shipyard employment standards expressly allow employers to use PPE that is as protective as PPE constructed in accordance with the incorporated standards. OSHA uses its de minimis policy to allow employers covered by the longshoring and marine terminals standards to use PPE that is as protective as PPE constructed in accordance with the incorporated standards. See OSHA Instruction CPL 2.103, Field Inspection Reference Manual Ch. III, C.2.g; Memorandum from Richard Fairfax, Director, Directorate of Enforcement Programs to Regional Administrators (June 19, 2006). All of the incorporated ANSI standards have been superseded by more current versions. Table I lists the ANSI standards that are incorporated by reference and the current versions of those standards for the PPE that are covered by this proposed rule. Table 1.—Current OSHA PPE Requirements Subpart/section PPE Incorporated ANSI standard Current version of ANSI standard Subpart I/§ 1910.133 (Eye and Face Devices-General Industry) § 1910.133(b)(1) Protective eye and face devices purchased after July 5, 1994 Z87.1-1989 ANSI Z87.1-2003. § 1910.133(b)(2) Protective eye and face devices purchased before July 5, 1994 Z87.1-1968 ANSI Z87.1-2003. Subpart I/§ 1910.135 (Headwear-General Industry) § 1910.135(b)(1) Protective helmets purchased after July 5, 1994 Z89.1-1986 ANSI Z89.1-2003. § 1910.135(b)(2) Protective helmets purchased before July 5, 1994 Z89.1-1969 ANSI Z89.1-2003. Subpart I/§ 1910.136 (Footwear-General Industry) § 1910.136(b)(1) Protective footwear purchased after July 5, 1994 Z41-1991 ASTM F-2412-05 &-2413-05 2 § 1910.136(b)(2) Protective footwear purchased before July 5, 1994 Z41.1-1967 ASTM F-2412-05 &-2413-05 Subpart I/§ 1915.153 (Eye and Face Devices-Shipyard Employment) § 1915.153(b)(1) Protective eye and face devices purchased after May 20, 1982 Z87.1-1989 ANSI Z87.1-2003. § 1915.153(b)(2) Protective eye and face devices purchased before May 20, 1982 Z87.1-1979 ANSI Z87.1-2003. Subpart I/§ 1915.155 (Headwear-Shipyard Employment) § 1915.155(b)(1) Protective helmets purchased after August 22, 1996 Z89.1-1986 ANSI Z89.1-2003. § 1915.155(b)(2) Protective helmets purchased before August 22, 1996 Z89.1-1969 ANSI Z89.1-2003. Subpart I/§ 1915.156 (Footwear-Shipyard Employment) § 1915.156(b)(1) Protective footwear purchased after August 22, 1996 Z41-1991 ASTM F-2412-05 &-2413-05 § 1915.156(b)(2) Protective footwear purchased before August 22, 1996 Z41-1983 ASTM F-2412-05 &-2413-05 Subpart E/§ 1917.91 (Eye and Face Devices-Marine Terminals) 1917.91(a)(1) Protective eye and face devices Z87.1-1989 ANSI Z87.1-2003. Subpart E/1917.93 (Headwear-Marine Terminals) § 1917.93(b) Protective headwear Z89.1-1986 ANSI Z89.1-2003. Subpart E/§ 1917.94 (Footwear-Marine Terminals) § 1917.94(b) Protective footwear Z41-1991 ASTM F-2412-05 &-2413-05 Subpart J/§ 1918.101 (Eye and Face Devices-Longshoring) § 1918.101(a) Protective eye and face devices Z87.1-1989 ANSI Z87.1-2003. Subpart J/§ 1918.103 (Headwear-Longshoring) § 1918.103(b) Protective headwear Z89.1-1986 ANSI Z89.1-2003. Subpart J/§ 1918.104 (Footwear-Longshoring) § 1918.104(b) Protective footwear Z41-1991 ASTM F-2412-05 &-2413-05 As Table I indicates, the incorporated ANSI standards are all over a decade old and in some instances are two decades old. All of the ANSI standards have been updated, and in one instance, the ANSI Z41 standard for protective footwear, has been completely replaced. As the standards have been updated, manufacturers have switched to manufacturing PPE that is in accord with the updated standards. As a result, employers and employees have difficulty obtaining PPE manufactured in accordance with the incorporated standards. OSHA estimates the average life of these types of PPE to be about two to four years. OSHA Docket S-060, *Preliminary Regulatory Impact & Regulatory Flexibility Analysis of the Personal Protective Equipment Standard* Table IV-2 (U.S. Dep't of Labor, OSHA, Office of Regulatory Analysis, June 30, 1989). Accordingly, the difficulty is widespread and occurs on a regular basis. 2 ANSI's Z41 standard has been withdrawn and replaced by the cited ASTM International standards. ASTM International was formerly the American Society for Testing and Materials. In the past, OSHA has updated its PPE standards by revising them to incorporate more recent versions of the ANSI standards. 59 FR 16360 (Apr. 6, 1994). This temporarily alleviates the problem of trying to obtain PPE manufactured in accordance with an outdated version of an ANSI standard, but it ensures that the problem will arise again as the incorporated standards are superseded by future versions. Despite its best efforts, OSHA cannot propose and finalize its standards as frequently as the consensus standards development organizations (SDOs). Some consensus standards are updated every 3-5 years; OSHA simply does not have the resources to engage in full rulemaking at this frequency for all of its PPE standards. OSHA has preliminarily concluded that incorporating specific versions of ANSI standards is not an effective approach for its PPE design requirements. Therefore, OSHA is proposing a performance-oriented approach: to replace references to specific ANSI standards with a requirement that PPE be constructed in accordance with good design standards. It also establishes additional guidance for employers as to what constitutes a good design standard. 2. The Provisions of the Proposal The crux of the proposed revision is the requirement that the PPE be constructed in accordance with good design standards. Eye and face, head, and foot PPE are commonly worn in general industry, shipyard employment, longshoring, and marine terminals. The PPE must be strong enough to protect employees from the hazards they face in the workplace. It also must be constructed and tested in accordance with sound and accepted principles that will ensure the safety of employees. 3 3 An inherent part of any good design standard is a testing protocol for ensuring that the manufactured equipment will provide a specified level of protection. Accordingly, the requirement that the PPE be constructed in accordance with good design standards includes the requirement that the PPE be tested in accordance with a testing protocol that is designed to ensure that the PPE provides the level of protection the good design standard is intended to achieve. Generally, good design standards for these types of PPE are reflected in the relevant national consensus standards. OSHA has examined the standards for eye and face, head, and foot PPE issued by ANSI and ASTM International

(ASTM)over the last 40 years. OSHA has found that these standards reflect the state of the art in terms of design safety that existed at the time they were issued. 4 Furthermore, each successive edition of these standards has improved the design features of the PPE. For example, a comparison between the 1989 and 2003 versions of the ANSI standard for protective eye and face equipment shows that ANSI has strengthened the impact resistance requirements of the standard. Similarly, the current ASTM International standard for footwear improves on prior ANSI standards for footwear by increasing protection against electrical hazards. 4 OSHA has placed copies of these national consensus standards in the docket for this rulemaking (OSHA—2007—0044). To develop their standards, these SDOs receive input from industry groups, employee representatives, government agencies, safety experts, and other affected parties. *See, e.g.* , ANSI Z89.1-2003, *American National Standard for Industrial Head Protection* Foreword. As a result, they develop standards that are generally recognized as providing an adequate level of safety, as shown by the widespread use of these standards by manufacturers even where OSHA standards specify an earlier version. Congress recognized the importance of national consensus standards in the effort to protect employee safety and health. For the first two years following promulgation of the Occupational Safety and Health Act of 1970 (OSH Act), Congress authorized the adoption of national consensus standards as OSHA standards without notice and comment. 29 U.S.C. 655(a). For standards adopted using the notice-and-comment procedures of the OSH Act, relevant national consensus standards are the baseline for evaluating OSHA standards. *See* 29 U.S.C. 655(b)(8) (when a new standard differs from a national consensus standard, the Secretary must explain why the new standard will better effectuate purposes of the Act than the national consensus standard). In light of this, OSHA believes that design standards that are formulated pursuant to the processes described above will generally constitute good design standards. OSHA's analysis of the PPE design standards over the last 40 years provides evidence of this. OSHA is thus including in the proposal a presumption that PPE complies with the good design requirement if it is constructed in accordance with a design standard that meets specified criteria consistent with the criteria for the development of national consensus standards. The specific criteria of the proposal are drawn from the criteria nationally recognized testing laboratories must apply for determining if a standard is appropriate for evaluating the safety of equipment or materials. *See* § 1910.7(c). They also reflect the criteria of a national consensus standard as defined in the OSH Act and the way many SDOs operate. *See* 29 U.S.C. 652(9). The proposal is intended to codify the criteria that have been used successfully for developing design standards that ensure an adequate level of safety. The first of these criteria ensures that the design standard incorporates safety concerns as part of the standard and that these safety concerns are related to the particular piece of PPE covered by the OSHA standard. The second ensures that the design standard provides guidelines for constructing the equipment and has achieved a minimum level of recognition by safety experts as providing an adequate level of safety. The third of these criteria is process-oriented; it ensures that knowledgeable and affected interests have an opportunity to provide input into the development of the standard, which advances the goal of ensuring that the design standard provides an adequate level of safety. PPE constructed in accordance with the proposal's criteria for a good design standard is only presumptively compliant with the standard's general requirement that the PPE be constructed in accordance with good design standards. The presumption is primarily intended to reserve OSHA's authority to determine that a future national consensus standard for PPE design specifications will not provide an adequate level of protection and therefore will not meet the general good design requirement. OSHA believes that it will rarely, if ever, determine that a future national consensus standard related to PPE design specifications does not provide sufficient protection; nevertheless, OSHA's proposed approach provides for that possibility. To further increase the notice employers have of their obligations under the proposed requirements, OSHA is also proposing to list in non-mandatory appendices the national consensus standards that OSHA has determined are good design standards as that concept is used in the proposal. OSHA is proposing to reference in the non-mandatory appendices the 1986 (headwear), 1989 (eye and face devices), and 1991 (footwear) versions of the national consensus standards incorporated in the existing standards for PPE, as well as the more recent versions of those national consensus standards. Specifically, OSHA proposes to list in the non-mandatory appendices the following standards: for protective eye and face devices, ANSI Z87.1-1989, ANSI Z87.1-1998, and ANSI Z87.1-2003; for protective headwear, ANSI Z89.1-1986, ANSI Z89.1-1997, and ANSI Z89.1-2003; and for protective footwear, ANSI Z41-1991, ANSI Z41-1999, and ASTM F-2412-05 and ASTM F-2413-05. As stated above, OSHA has carefully reviewed all of these standards and has found that they establish design criteria that provide adequate protection for employees. OSHA has not, however, proposed to list ANSI standards from before 1986. OSHA's incorporation of earlier versions in its existing PPE design standards was limited to allowing the use of PPE that was purchased by a certain date that has long passed. For ten years or more, the existing standards have not permitted the use of PPE manufactured in accordance with those earlier versions if the PPE was purchased after those specified dates. In addition, for some time manufacturers have not been manufacturing PPE in accordance with those earlier versions. Given the limited useful life of PPE and the length of time that has passed since employers and employees have been able to use PPE manufactured in accordance with those earlier versions, OSHA believes that no PPE currently in use was constructed in accordance with those earlier standards. Accordingly, there is no need to list those earlier standards. Employers are not required to ensure that the PPE is constructed in accordance with a listed national consensus standard. The fundamental requirement is that the PPE be constructed in accordance with good design standards. However, OSHA is proposing that once a national consensus standard is listed in the non-mandatory appendices, the presumption in the standard would be conclusive for enforcement purposes. Of course, OSHA's decision to list a national consensus standard in the non-mandatory appendices would not preclude OSHA from initiating appropriate procedures to revoke that listing. But until and unless OSHA revokes a listing through that procedure, employers will be assured that their use of PPE that was constructed in accordance with a listed national consensus standard meets the good design requirement. An employer's reasonable reliance on a manufacturer's certification that the PPE was constructed in accordance with any of the listed national consensus standards satisfies the employer's obligation to ensure that the PPE was constructed in accordance with a good design standard. OSHA also intends to update in the future the non-mandatory appendices to include any future national consensus standard it determines meets the requirements of the proposed rule. OSHA is committing itself to reviewing future national consensus standards for PPE design criteria as they are promulgated. Assuming the review confirms that a newly promulgated national consensus standard is a good design standard, OSHA will use the procedures it has developed for direct final rules to add the newly promulgated national consensus standard to the non-mandatory appendices. Those procedures involve OSHA publishing the direct final rule in the **Federal Register** along with an identical proposed rule. The direct final rule will go into effect unless OSHA receives a significant adverse comment within a specified period. If OSHA receives significant adverse comments, it will withdraw the direct final rule and treat the comments as responses to the proposed rule. When using the direct final rule procedures for updating the non-mandatory appendices for the PPE design standards, OSHA will consider as significant adverse comments only those comments that explain why the reviewed version does not provide equivalent or greater protection to employees. As stated, the addition of a new national consensus standard would not require employers to use PPE constructed in accordance with that standard; it would merely provide employers with an additional option for meeting the good design requirement. OSHA anticipates that additions to the non-mandatory appendices will occur rapidly and without controversy. Finally, in switching from a specification provision to a performance oriented provision, OSHA is not intending to decrease employee protection. The references to the specific ANSI standards in OSHA's existing rules are the minimum design specifications for PPE used in the workplace and, as stated above, OSHA is listing them in the non-mandatory appendices. PPE meeting good design standards must at a minimum be constructed to provide protection equivalent to, or greater than, this minimum level of protection. OSHA is adding language in the regulatory text of the proposed rule that makes this clear. 5 5 *See, e.g.* , Proposed § 1910.133(b)(2). 3. Effects of the Proposal OSHA believes that requiring use of PPE that meets good design standards is appropriate and will increase employee safety and health by facilitating the use of state of-the-art PPE. It is appropriate to provide this type of flexibility because, as stated above, OSHA's experience has shown that overall safety increases with each update of national consensus standards. OSHA standards should be written to facilitate the ability of employers to take advantage of safety advances developed by ANSI and similar organizations. Even when an updated national consensus standard merely maintains the status quo in terms of safety, ensuring that OSHA standards are written to facilitate the use of PPE constructed in accordance with those standards serves the interest of protecting employee safety. Once updated standards are promulgated, over time PPE constructed in accordance with those standards become increasingly more available and PPE constructed under the predecessor standards become increasingly unavailable. Those seeking to obtain PPE will therefore usually have an easier time finding PPE manufactured in accordance with a current version than PPE manufactured in accordance with an older version. OSHA's current PPE design standards, however, impose obstacles to allowing employers and employees to obtain the benefit of better PPE manufactured under improved standards or newer equipment manufactured under updated standards that maintain the status quo. Under the current general industry and shipyard employment standards, to obtain these benefits employers must be able to demonstrate that the PPE manufactured in accordance with the updated versions are as protective as PPE manufactured in accordance with the referenced versions. Employers need to research the referenced national consensus standards, identify and analyze the updated versions, and make the determination as to whether PPE designed to meet the updated versions provide employees with protection equivalent to or greater than the protection they receive with PPE designed in accordance with the referenced versions. The proposal reduces if not eliminates this burden. It will authorize the use of PPE that meets the current versions of the referenced standards, which as noted above OSHA has determined meet the good design requirement and which therefore will be listed in the non-mandatory appendices. Similarly, the proposal presumes that a future national consensus standard, as described in this proposal, will meet the good design requirement. The possibility that a future national consensus standard will not be a good design standard is remote, and employers will be able to rely on the presumption established by the proposal with a high degree of confidence. In sum, by replacing the existing PPE provisions with performance requirements, the transition to the use of PPE built in accordance with updated standards will occur more certainly and rapidly than it occurs under the present OSHA standards. This will facilitate employer efforts to improve the safety and health of employees by providing state of the art PPE. In addition, the proposal does not add any compliance burdens on employers. 4. Alternatives In developing the proposal, OSHA considered several alternatives. While some of these approaches had advantages, for the reasons stated below, OSHA has decided preliminarily not to adopt them. First, OSHA considered proposing to update the PPE standards by incorporating the most current versions of the referenced national consensus standards. As discussed above, OSHA has done this in the past. However, this would provide only a short-term fix to the problem of references to outdated consensus standards. In OSHA's view, this approach would simply perpetuate the obstacles to using state-of-the art PPE that are contained in the current OSHA standards. Second, OSHA considered replacing the references to specific design standards with performance-oriented language that would require the PPE to provide the level of protection that a conscientious safety expert would provide. In OSHA's view, the proposal is superior to this alternative because it provides greater notice to employers of their compliance obligations. Finally, OSHA considered proposing specific performance-based criteria, such as a particular level of impact-resistance, that the various types of PPE would have to meet. The specific performance-based criteria of design standards, however, are generally tied to particular test methods, and employers are not in the best position to determine if the performance-based criteria have been met. Thus, in OSHA's view, the proposal is easier for employers to implement than a standard of this type. Moreover, OSHA believes that this alternative would tend to favor a particular design standard at the potential expense of discouraging adherence to future improved design standards. 5. Request for Comments OSHA solicits comments on the proposal's combination of a general good design requirement and the presumption that PPE constructed in accordance with certain specific criteria complies with the good design requirement. More specifically, OSHA solicits comments on the following issues: 1. Does this approach provide employers with sufficient notice of their legal obligations while also providing sufficient flexibility to account for future developments in design standards for PPE? 2. Has OSHA accurately prescribed the criteria that will ensure that a standard meeting those criteria will at least presumptively be a good design standard? Are the criteria sufficiently clear for employers to determine whether certain PPE meets the good design requirement? In particular, can employers easily understand and apply the second criterion—that a particular design standard be recognized in the United States as providing specifications that result in an adequate level of safety? If not, what criterion should be used to determine whether a particular design standard is or is not recognized in the United States as providing specifications that result in an adequate level of safety? 3. Should the listing of a design standard in a Non-Mandatory Appendix be conclusive on whether PPE constructed in accordance with that standard meets the good design requirement? 4. Are there other publicly available design standards that are not included in the proposed non-mandatory appendices that would provide an adequate level of protection and therefore should be included in the appendices? 5. Are there other alternatives the Agency should consider that will provide sufficient notice to employers, appropriate protection for employees, and flexibility to account for future developments in design standards for PPE? 6. Are there PPE currently in use that were constructed in accordance with national consensus standards not included in the proposed appendices? C. Deletions of Outdated References From Ventilation and Welding Standards Section 1910.94(a)(5)(v)(a) of OSHA's ventilation standard requires that safety shoes comply with ANSI Z41.1-1967; § 1910.252(b)(2)(ii)(I) of OSHA's welding standard requires filter lenses and plates in protective eyewear to comply with the transmission test for radiant energy prescribed in ANSI Z87.1-1968. OSHA is proposing to delete these paragraphs. By doing so, OSHA intends for the safety shoes required by § 1910.94(a)(5)(v) to comply with revised section 1910.136(b) requiring footwear to meet good design standards. OSHA intends for filter lenses and plates in protective eyewear required by section 1910.252(b)(2) to comply with revised section 1910.133(b) requiring eye and face protective devices to meet good design standards. OSHA is not deleting the requirements in §§ 1910.94 and 1910.252 that specify when, and under what conditions, employees must use certain PPE; these requirements will remain in the affected standards. OSHA believes that these deletions will not increase compliance burdens, including compliance costs. It is unlikely that employees are using safety shoes that are manufactured in accordance with ANSI Z41.1-1967. Instead, employees are presumably using shoes that were manufactured in accordance with the 1991 or 1999 version or its current replacement, ASTM F-2412-05 and 2413-05. Furthermore, OSHA believes that virtually all employees affected by the welding standard use eyewear that complies with ANSI Z87.1-1989, ANSI 87.1-1998, or ANSI Z87.1-2003, rather than eyewear manufactured in accordance with the 1968 transmission test for radiant energy required in the existing OSHA standard. OSHA solicits comments on whether OSHA is correct that compliance burdens would not increase under the proposal. OSHA also solicits comments on whether OSHA should, rather than delete the paragraphs, replace them with cross references to §§ 1910.136(b) and 1910.133(b). II. Legal Considerations The purpose of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 *et seq.* , is to achieve to the extent possible safe and healthful working conditions for all employees. 29 U.S.C. 651(b). To achieve this goal Congress authorized the Secretary of Labor to promulgate and enforce occupational safety and health standards. 29 U.S.C. 654(b), 655(b). A safety or health standard is a standard which requires employers to maintain conditions or adopt practices that are reasonably necessary or appropriate to provide safe or healthful working conditions. 29 U.S.C. 652(8). A standard is reasonably necessary or appropriate within the meaning of section 652(8) if, among other things, a significant risk of material harm exists in the workplace and the proposed standard would substantially reduce or eliminate that workplace risk. OSHA has already determined that requirements for PPE, including design requirements, are reasonably necessary or appropriate within the meaning of section 652(8). This proposed rule neither reduces employee protection nor alters an employer's obligations under the existing OSHA standard. Under the proposal, employers will be able to continue to use the same equipment they have been using to meet their compliance obligation under the existing standards' design criteria requirement. The proposal provides guidance on additional PPE employers can use to comply with the design criteria requirement by providing equivalent or greater protection. By facilitating but not mandating the transition to PPE constructed in accordance with updated versions of national consensus standards, employee protection will increase and compliance burdens on employers will stay the same or decrease. For these reasons, OSHA is not required in this action to determine significant risk or the extent to which the proposal would reduce that risk, as would typically be required by *Industrial Union Department* , *AFL-CIO* v. *American Petroleum Institute* , 448 U.S. 607 (1980). III. Preliminary Economic Analysis and Regulatory Flexibility Act Certification This action is not economically significant within the context of Executive Order 12866, or a major rule under the Unfunded Mandates Reform Act or Section 801 of the Small Business Regulatory Enforcement Fairness Act. The rulemaking would impose no additional costs on any private or public sector entity, and does not meet any of the criteria for an economically significant or major rule specified by the Executive Order or relevant statutes. This action allows for increased flexibility in choosing the PPE used by employees. However, the rule does not require an employer to update or replace its PPE solely as a result of this rule, if the PPE currently in use meets the existing OSHA standard. Furthermore, because the rule imposes no costs, OSHA certifies that it would not have a significant impact on a substantial number of small entities. IV. Paperwork Reduction Act This action does not impose new information collection requirements for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-30. V. Federalism OSHA has reviewed this proposed rule in accordance with the Executive Order on Federalism (Executive Order 13132, 64 FR 43255, August 10, 1999), which requires that agencies, to the extent possible, refrain from limiting State policy options, consult with States prior to taking any actions that would restrict State policy options, and take such actions only when there is clear constitutional authority and the presence of a problem of national scope. Executive Order 13132 provides for preemption of State law only if there is a clear congressional intent for the Agency to do so. Any such preemption is to be limited to the extent possible. Section 18 of the OSH Act, 29 U.S.C. 667, expresses Congress' intent to preempt State laws where OSHA has promulgated occupational safety and health standards. Under the OSH Act, a State can avoid preemption on issues covered by Federal standards only if it submits, and obtains Federal approval of, a plan for the development of such standards and their enforcement (State-Plan State). 29 U.S.C. 667. Occupational safety and health standards developed by such State-Plan States must, among other things, be at least as effective in providing safe and healthful employment and places of employment as the Federal standards. Subject to these requirements, State-Plan States are free to develop and enforce under State law their own requirements for safety and health standards. This proposed rule complies with Executive Order 13132. In States without OSHA-approved State Plans, this action limits State policy options in the same manner as all OSHA standards. In State-Plan States, this action does not significantly limit State policy options. As explained below, State-Plan States will not have to adopt the proposal, if it is promulgated as proposed. VI. State Plan States When Federal OSHA promulgates a new standard or more stringent amendment to an existing standard, the 26 States or U.S. Territories with their own OSHA-approved occupational safety and health plans must revise their standards to reflect the new standard or amendment, or show OSHA why there is no need for action, *e.g.* , because an existing State standard covering this area is already at least as effective as the new Federal standard or amendment. 29 CFR 1953.5(a). These 26 States and territories are: Alaska, Arizona, California, Connecticut (plan covers only State and local government employees), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, New Jersey (plan covers only State and local government employees), New York (plan covers only State and local government employees), North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands (plan covers only territorial and local government employees), Washington, and Wyoming. OSHA does not consider the proposal as proposing a change that will trigger the requirements of § 1953.5(a). Accordingly, State-Plan States will not be required to adopt the proposal, if it is promulgated as proposed, or show why there is no need for action on their part. At the conclusion of the rulemaking proceedings, OSHA will advise State-Plan States if OSHA intends to require them to inform OSHA of what action, if any, they will take with regard to the matter covered by the proposal. *See* 29 CFR 1953.4(b)(7). VII. Unfunded Mandates Reform Act This proposed rule has been reviewed in accordance with the Unfunded Mandates Reform Act of 1995 (UMRA). 2 U.S.C. 1501 *et seq.* For the purposes of the UMRA, the Agency certifies that this proposed rule does not impose any Federal mandate that may result in increased expenditures by State, local, or tribal governments, in the aggregate, or increased expenditures by the private sector, of more than $100 million in any year. List of Subjects in 29 CFR Parts 1910, 1915, 1917, and 1918 Incorporation by reference, Occupational safety and health, Personal protective equipment. VIII. Authority and Signature This document was prepared under the direction of Edwin G. Foulke, Jr., Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. It is issued pursuant to sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), section 941 of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 901 *et seq.* ); 5 U.S.C. 553, Secretary of Labor's Order 5-2002, and 29 CFR part 1911. Signed at Washington, DC this 10th day of May, 2007. Edwin G. Foulke, Jr., Assistant Secretary of Labor for Occupational Safety and Health. Proposed Amendments to Standards The Occupational Safety and Health Administration is proposing to amend parts 1910, 1915, 1917, and 1918 of Title 29 of the Code of Federal Regulations as set forth below. PART 1910—OCCUPATIONAL SAFETY AND HEALTH STANDARDS Subpart A—General 1. The authority citation for subpart A of part 1910 is revised to read as follows: Authority: Secs. 4, 6, 8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), or 5-2002 (67 FR 65008), as applicable. Section 1910.6 also issued under 5 U.S.C. § 553. Sections 1910.6, 1910.7, and 1910.8 also issued under 29 CFR part 1911. Section 1910.7(f) also issued under 31 U.S.C. 9701, 29 U.S.C. 9a, 5 U.S.C. 553; Pub. L. 106-113 (113 Stat. 1501A-222); and OMB Circular A-25 (dated July 8, 1993) (58 FR 38142, July 15, 1993). § 1910.6 [Amended] 2. In § 1910.6, paragraphs (e)(60), (e)(61), (e)(67), (e)(68), (e)(70), (e)(71) are removed. Paragraphs (e)(62) through (e)(66) are redesignated as paragraphs (e)(60) through (e)(64), respectively; paragraph (e)(69) is redesignated as paragraph (e)(65); and paragraph (e)(72) is redesignated as paragraph (e)(66). Subpart G—Occupational Health and Environmental Control 3. The authority citation for subpart G of part 1910 is revised to read as follows: Authority: Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), or 5-2002 (67 FR 65008), as applicable; and 29 CFR part 1911. Section 1910.94 also issued under 5 U.S.C. 553. § 1910.94 [Amended] 4. Section 1910.94 is amended by removing and reserving paragraph (a)(5)(v)( *a* ). Subpart I—Personal Protective Equipment 5. The authority citation for subpart I of part 1910 is revised to read as follows: Authority: Sections 4, 6, and 8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), or 5-2002 (67 FR 65008), as applicable. Sections 1910.132, 1910.134, and 1910.138 also issued under 29 CFR part 1911. Sections 1910.133, 1910.135, and 1910.136 also issued under 29 CFR part 1911 and 5 U.S.C. 553. 6. Paragraph

(b)of § 1910.133 is revised to read as follows: § 1910.133 Eye and face protection.

(b)*Criteria for protective eye and face devices.*

(1)The employer shall ensure that the protective eye and face devices are constructed in accordance with good design standards. Equipment that is constructed in accordance with an equipment design standard that meets the following criteria will be presumed to be constructed in accordance with good design standards:

(i)The standard specifies the safety requirements for the particular equipment;

(ii)The standard is recognized in the United States as providing specifications that result in an adequate level of safety; and

(iii)The standard was developed by a standards development organization under a method providing for input and consideration of views of industry groups, experts, users, governmental authorities, and others having broad experience and expertise in issues related to the design and construction of the particular equipment.

(b)of § 1910.135 is revised to read as follows: § 1910.135 Head protection.

(b)*Criteria for protective helmets.*

(1)The employer shall ensure that the protective helmets are constructed in accordance with good design standards. A protective helmet that is constructed in accordance with an equipment design standard that meets the following criteria will be presumed to be constructed in accordance with good design standards:

(i)The standard specifies the safety requirements for the particular equipment;

(ii)The standard is recognized in the United States as providing specifications that result in an adequate level of safety; and

(b)of § 1910.136 is revised to read as follows: § 1910.136 Foot protection.

(b)*Criteria for protective footwear.*

(1)The employer shall ensure that the protective footwear is constructed in accordance with good design standards. Protective footwear that is constructed in accordance with an equipment design standard that meets the following criteria will be presumed to be constructed in accordance with good design standards:

(i)The standard specifies the safety requirements for the particular equipment;

(ii)The standard is recognized in the United States as providing specifications that result in an adequate level of safety; and

(2)Non-mandatory appendix C to this subpart contains examples of national consensus standards that OSHA has determined meet the criteria of paragraph (b)(1) of this section. Protective footwear that is constructed in accordance with any of the listed national consensus standards will be deemed to meet the good design requirement of paragraph (b)(1). Protective footwear is not required to be constructed in accordance with one of the listed standards, but the protective footwear must be constructed in accordance with good design standards. To meet this requirement, the protective footwear must provide protection equivalent to or greater than protective footwear of the same type that is constructed in accordance with one of the listed national consensus standards. 9. Appendix C to Subpart I is added as follows: Appendix C to Subpart I of Part 1910—Criteria for Personal Protective Equipment (Non-Mandatory) This appendix lists equipment design standards that OSHA has determined are “good design standards” as that phrase is used in §§ 1910.133(b), 1910.135(b), and 1910.136(b). 1. *Good design standards for protective eye and face devices (1910.133(b))* ANSI Z87.1-2003, “American National Standard Practice for Occupational and Educational Eye and Face Protection” ANSI Z87.1-1998, “American National Standard Practice for Occupational and Educational Eye and Face Protection” ANSI Z87.1-1989, “American National Standard Practice for Occupational and Educational Eye and Face Protection” 2. *Good design standards for protective helmets (1910.135(b))* ANSI Z89.1-2003, “American National Standard for Personnel Protection—Protective Headwear for Industrial Workers-Requirements” ANSI Z89.1-1997, “American National Standard for Personnel Protection—Protective Headwear for Industrial Workers-Requirements” ANSI Z89.1-1986, “American National Standard for Personnel Protection— Protective Headwear for Industrial Workers-Requirements” 3. *Good design standards for protective footwear (1910.136(b))* ASTM F-2412-2005, “Standard Test Methods for Foot Protection,” and ASTM F-2413-2005, “Specification for Performance Requirements for Protective Footwear.” These two standards together constitute a good design standard. ANSI Z41-1999, “American National Standard for Personal Protection—Protective Footwear” ANSI Z41-1991, “American National Standard for Personal Protection—Protective Footwear” Subpart Q—Welding, Cutting and Brazing 10. The authority citation for subpart Q of part 1910 is revised to read as follows: Authority: Secs. 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), or 5-2002 (67 FR 65008), as applicable; and 29 CFR part 1911. Section 1910.252 also issued under 5 U.S.C. 553. § 1910.252 [Amended] 11. Section 1910.252 is amended by removing and reserving paragraph (b)(2)(ii)(I). PART 1915—OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR SHIPYARD EMPLOYMENT 12. The authority citation for part 1915 is revised to read as follows: Authority: Sec. 41, Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941); secs. 4, 6, 8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), or 5-2002 (67 FR 65008), as applicable; and 29 CFR part 1911. Sections 1915.5, 1915.153, 1915.155, and 1915.156 also issued under 5 U.S.C. 553. § 1915.5 Incorporation by reference. 13. Section 1915.5 is amended by removing paragraphs (d)(1)(iv) through (d)(1)(ix). 14. Paragraph

(b)of § 1915.153 is revised to read as follows: § 1915.153 Eye and face protection.

(b)*Criteria for protective eye and face devices.*

(i)The standard specifies the safety requirements for the particular equipment;

(ii)The standard is recognized in the United States as providing specifications that result in an adequate level of safety; and

(b)of § 1915.155 is revised to read as follows: § 1915.155 Head protection.

(b)*Criteria for protective helmets.*

(i)The standard specifies the safety requirements for the particular equipment;

(ii)The standard is recognized in the United States as providing specifications that result in an adequate level of safety; and

(b)of § 1915.156 is revised to read as follows: § 1915.156 Foot protection.

(b)*Criteria for protective footwear.*

(i)The standard specifies the safety requirements for the particular equipment;

(ii)The standard is recognized in the United States as providing specifications that result in an adequate level of safety; and

(2)Non-mandatory appendix C to this subpart contains examples of national consensus standards that OSHA has determined meet the criteria of paragraph (b)(1) of this section. Protective footwear that is constructed in accordance with any of the listed national consensus standards will be deemed to meet the good design requirement of paragraph (b)(1). Protective footwear is not required to be constructed in accordance with one of the listed standards, but the protective footwear must be constructed in accordance with good design standards. To meet this requirement, the protective footwear must provide protection equivalent to or greater than protective footwear of the same type that is constructed in accordance with one of the listed national consensus standards. 17. Appendix C to subpart I is added to read as follows: Appendix C to Subpart I of Part 1915—Criteria for Personal Protective Equipment (Non-Mandatory) This appendix lists equipment design standards that OSHA has determined are “good design standards” as that phrase is used in sections 1915.153(b), 1915.155(b), and 1915.156(b). 1. *Good design standards for protective eye and face devices (1915.153(b))* ANSI Z87.1-2003, “American National Standard Practice for Occupational and Educational Eye and Face Protection” ANSI Z87.1-1998, “American National Standard Practice for Occupational and Educational Eye and Face Protection” ANSI Z87.1-1989, “American National Standard Practice for Occupational and Educational Eye and Face Protection” 2. *Good design standards for protective helmets (1915.155(b))* ANSI Z89.1-2003, “American National Standard for Personnel Protection—Protective Headwear for Industrial Workers—Requirements” ANSI Z89.1-1997, “American National Standard for Personnel Protection—Protective Headwear for Industrial Workers—Requirements” ANSI Z89.1-1986, “American National Standard for Personnel Protection—Protective Headwear for Industrial Workers—Requirements” 3. *Good design standards for protective footwear (1915.156(b))* ASTM F-2412-2005, “Standard Test Methods for Foot Protection,” and ASTM F-2413-2005, “Specification for Performance Requirements for Protective Footwear.” These two standards together constitute a good design standard. ANSI Z41-1999, “American National Standard for Personal Protection—Protective Footwear” ANSI Z41-1991, “American National Standard for Personal Protection—Protective Footwear” PART 1917—MARINE TERMINALS 18. The authority citation for part 1917 is revised to read as follows: Authority: Sec. 41, Longshore and Harbor Worker's Compensation Act (33 U.S.C. 941); Secs. 4, 6, 8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 6-96 (62 FR 111), or 5-2002 (67 FR 65008), as applicable; and 29 CFR part 1911. Sections 1917.3, 1917.28, 1917.91, 1917.93, 1917.94 also issued under 5 U.S.C. 553. Section 1917.29, also issued under Sec. 29, Hazardous Materials Transportation Uniform Safety Act of 1990 (49 U.S.C. 1801-1819 and 5 U.S.C. 553). § 1917.3 [Amended] 19. Section 1917.3 is amended by removing paragraphs (b)(4) through (b)(6) and redesignating paragraph (b)(7) as (b)(4). 20. Paragraph (a)(1) of § 1917.91 is revised to read as follows: § 1917.91 Eye and face protection. (a)(1)(i) The employer shall ensure that each affected employee uses appropriate eye and/or face protection where there are exposures to eye and/or face hazards. Protective eye and face devices shall be constructed in accordance with good design standards. Equipment that is constructed in accordance with an equipment design standard that meets the following criteria will be presumed to be constructed in accordance with good design standards:

(A)The standard specifies the safety requirements for the particular equipment;

(B)The standard is recognized in the United States as providing specifications that result in an adequate level of safety; and

(C)The standard was developed by a standards development organization under a method providing for input and consideration of views of industry groups, experts, users, governmental authorities, and others having broad experience and expertise in issues related to the design and construction of the particular equipment.

(ii)Non-mandatory appendix A to this subpart contains examples of national consensus standards that OSHA has determined meet the criteria of paragraph (a)(1)(i) of this section. Protective eye and face devices that are constructed in accordance with any of the listed national consensus standards will be deemed to meet the good design requirement of paragraph (a)(1)(i). Protective eye and face devices are not required to be constructed in accordance with one of the listed standards, but the protective eye and face devices must be constructed in accordance with good design standards. To meet this requirement, the protective eye and face device must provide protection equivalent to or greater than a protective eye and face device of the same type that is constructed in accordance with one of the listed national consensus standards. 21. Paragraph

(b)of § 1917.93 is revised to read as follows: § 1917.93 Head protection. (b)(1) The employer shall ensure that the protective helmets are constructed in accordance with good design standards. Protective helmets that are constructed in accordance with an equipment design standard that meets the following criteria will be presumed to be constructed in accordance with good design standards:

(i)The standard specifies the safety requirements for the particular equipment;

(ii)The standard is recognized in the United States as providing specifications that result in an adequate level of safety; and

(b)of § 1917.94 is revised to read as follows: § 1917.94 Foot protection. (b)(1) The employer shall ensure that the protective footwear is constructed in accordance with good design standards. Protective footwear that is constructed in accordance with an equipment design standard that meets the following criteria will be presumed to be constructed in accordance with good design standards:

(i)The standard specifies the safety requirements for the particular equipment;

(ii)The standard is recognized in the United States as providing specifications that result in an adequate level of safety; and

(2)Non-mandatory appendix A to this subpart contains examples of national consensus standards that OSHA has determined meet the criteria of paragraph (b)(1) of this section. Protective footwear that is constructed in accordance with any of the listed national consensus standards will be deemed to meet the good design requirement of paragraph (b)(1). Protective footwear is not required to be constructed in accordance with one of the listed standards, but the protective footwear must be constructed in accordance with good design standards. To meet this requirement, the protective footwear must provide protection equivalent to or greater than protective footwear of the same type that is constructed in accordance with one of the listed national consensus standards. 23. Appendix A to subpart E is added to read as follows: Appendix A to Subpart E of Part 1917—Criteria for Personal Protective Equipment (Non-Mandatory) This appendix lists equipment design standards that OSHA has determined are “good design standards” as that phrase is used in §§ 1917.91(a)(1), 1917.93(b), and 1917.94(b). 1. *Good design standards for protective eye and face devices (1917.91(a)(1))* ANSI Z87.1-2003, “American National Standard Practice for Occupational and Educational Eye and Face Protection” ANSI Z87.1-1998, “American National Standard Practice for Occupational and Educational Eye and Face Protection” ANSI Z87.1-1989, “American National Standard Practice for Occupational and Educational Eye and Face Protection” 2. *Good design standards for protective helmets (1917.93(b))* ANSI Z89.1-2003, “American National Standard for Personnel Protection—Protective Headwear for Industrial Workers-Requirements” ANSI Z89.1-1997, “American National Standard for Personnel Protection—Protective Headwear for Industrial Workers-Requirements” ANSI Z89.1-1986, “American National Standard for Personnel Protection—Protective Headwear for Industrial Workers-Requirements” 3. *Good design standards for protective footwear (1917.94(b))* ASTM F-2412-2005, “Standard Test Methods for Foot Protection,” and ASTM F-2413-2005, “Specification for Performance Requirements for Protective Footwear.” These two standards together constitute a good design standard. ANSI Z41-1999, “American National Standard for Personal Protection—Protective Footwear” ANSI Z41-1991, “American National Standard for Personal Protection—Protective Footwear” PART 1918—SAFETY AND HEALTH REGULATIONS FOR LONGSHORING 24. The authority citation for part 1918 is revised to read as follows: Authority: Sec. 41, Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941); Secs. 4, 6, 8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 6-96 (62 FR 111), or 5-2002 (67 FR 65008), as applicable; and 29 CFR part 1911. Sections 1918.3, 1918.90, 1918.101, 1918.103, 1918.104 also issued under 5 U.S.C. 553. Section 1918.100 also issued under Sec. 29, Hazardous Materials Transportation Uniform Safety Act of 1990 (49 U.S.C. 1801-1819 and 5 U.S.C. 553). § 1918.3 [Amended] 25. Section 1918.3 is amended by removing paragraphs (b)(4) through (b)(6). 26. Paragraph (a)(1) of § 1918.101 is revised to read as follows: § 1918.101 Eye and face protection.

(a)* * * (1)(i) Each affected employee uses appropriate eye and/or face protection where there are exposures to eye and/or face hazards. Protective eye and face devices shall be constructed in accordance with good design standards. Equipment that is constructed in accordance with an equipment design standard that meets the following criteria will be presumed to be constructed in accordance with good design standards:

(A)The standard specifies the safety requirements for the particular equipment;

(B)The standard is recognized in the United States as providing specifications that result in an adequate level of safety; and

(b)of § 1918.103 is revised to read as follows: § 1918.103 Head protection. (b)(1) The employer shall ensure that the protective helmets are constructed in accordance with good design standards. A protective helmet that is constructed in accordance with an equipment design standard that meets the following criteria will be presumed to be constructed in accordance with good design standards:

(i)The standard specifies the safety requirements for the particular equipment;

(ii)The standard is recognized in the United States as providing specifications that result in an adequate level of safety; and

(b)of § 1918.104 is revised to read as follows: § 1918.104 Foot protection. (b)(1) The employer shall ensure that the protective footwear is constructed in accordance with good design standards. Protective footwear that is constructed in accordance with an equipment design standard that meets the following criteria will be presumed to be constructed in accordance with good design standards:

(i)The standard specifies the safety requirements for the particular equipment;

(ii)The standard is recognized in the United States as providing specifications that result in an adequate level of safety; and

(2)Non-mandatory appendix A to this subpart contains examples of national consensus standards that OSHA has determined meet the criteria of paragraph (b)(1) of this section. Protective footwear that is constructed in accordance with any of the listed national consensus standards will be deemed to meet the good design requirement of paragraph (b)(1). Protective footwear is not required to be constructed in accordance with one of the listed standards, but the protective footwear must be constructed in accordance with good design standards. To meet this requirement, the protective footwear must provide protection equivalent to or greater than protective footwear of the same type that is constructed in accordance with one of the listed national consensus standards. 29. Appendix A to subpart J is added to read as follows: Appendix A to Subpart J of Part 1918—Criteria for Personal Protective Equipment (Non-Mandatory) This appendix lists equipment design standards that OSHA has determined are “good design standards” as that phrase is used in sections 1918.101(a)(1), 1918.103(b), and 1918.104(b). 1. *Good design standards for protective eye and face devices (1918.101(a)(1))* ANSI Z87.1-2003, “American National Standard Practice for Occupational and Educational Eye and Face Protection” ANSI Z87.1-1998, “American National Standard Practice for Occupational and Educational Eye and Face Protection” ANSI Z87.1-1989, “American National Standard Practice for Occupational and Educational Eye and Face Protection” 2. *Good design standards for protective helmets (1918.103(b))* ANSI Z89.1-2003, “American National Standard for Personnel Protection—Protective Headwear for Industrial Workers-Requirements” ANSI Z89.1-1997, “American National Standard for Personnel Protection—Protective Headwear for Industrial Workers-Requirements” ANSI Z89.1-1986, “American National Standard for Personnel Protection—Protective Headwear for Industrial Workers-Requirements” 3. *Good design standards for protective footwear (1918.104(b))* ASTM F-2412-2005, “Standard Test Methods for Foot Protection,” and ASTM F-2413-2005, “Specification for Performance Requirements for Protective Footwear.” These two standards together constitute a good design standard. ANSI Z41-1999, “American National Standard for Personal Protection—Protective Footwear” ANSI Z41-1991, “American National Standard for Personal Protection—Protective Footwear” [FR Doc. E7-9315 Filed 5-16-07; 8:45 am] BILLING CODE 4510-26-P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 948 [WV-112-FOR] West Virginia Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), Interior. ACTION: Proposed rule; public comment period and opportunity for public hearing on proposed amendment. SUMMARY: We are announcing receipt of a proposed amendment to the West Virginia regulatory program (the West Virginia program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). West Virginia is re-submitting a proposed amendment to revise the West Virginia Code of State Regulations

(CSR)concerning the hydrologic impacts of surface mining operations. The amendments are intended to repeal a definition of “cumulative impact,” and add a definition of “material damage” to the hydrologic balance outside the permit area. OSM had approved an earlier submittal of these same amendments on December 1, 2003 (68 FR 67035), but that approval was vacated and remanded by the United States District Court for the Southern District of West Virginia on September 30, 2005. The United States Court of Appeals for the Fourth Circuit affirmed the lower court's ruling on December 12, 2006. We are expressly seeking comment on whether the proposed amendments and the supporting arguments and explanations presented by the State are consistent with the Federal hydrologic protection requirements under SMCRA. DATES: We will accept written comments on this amendment until 4 p.m. (local time), on June 18, 2007. If requested, we will hold a public hearing on the amendment on June 11, 2007. We will accept requests to speak at a hearing until 4:00 p.m. (local time), on June 1, 2007. ADDRESSES: You may submit comments, identified by WV-112-FOR, by any of the following methods: • *E-mail: chfo@osmre.gov* . Include WV-112-FOR in the subject line of the message; • *Mail/Hand Delivery:* Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East, Charleston, West Virginia 25301; or • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. *Instructions:* All submissions received must include the agency docket number for this rulemaking. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Comment Procedures” heading in the SUPPLEMENTARY INFORMATION section of this document. You may also request to speak at a public hearing by any of the methods listed above or by contacting the individual listed under FOR FURTHER INFORMATION CONTACT . *Docket:* You may review copies of the West Virginia program, this amendment, a listing of any scheduled public hearings, and all written comments received in response to this document at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may also receive one free copy of this amendment by contacting OSM's Charleston Field Office listed below. Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East, Charleston, West Virginia 25301, Telephone:

(304)347-7158. E-mail: *chfo@osmre.gov.* West Virginia Department of Environmental Protection, 601 57th Street, SE., Charleston, WV 25304, Telephone:

(304)926-0490. In addition, you may review a copy of the amendment during regular business hours at the following locations: Office of Surface Mining Reclamation and Enforcement, Morgantown Area Office, 604 Cheat Road, Suite 150, Morgantown, West Virginia 26508, Telephone:

(304)291-4004. (By Appointment Only) Office of Surface Mining Reclamation and Enforcement, Beckley Area Office, 313 Harper Park Drive, Suite 3, Beckley, West Virginia 25801, Telephone:

(304)255-5265. FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, Charleston Field Office, Telephone:

(304)347-7158. E-mail: *chfo@osmre.gov* . SUPPLEMENTARY INFORMATION: I. Background on the West Virginia Program II. Background on the Previous Submittal of This Amendment III. Description of the Proposed Amendment IV. Public Comment Procedures V. Procedural Determinations I. Background on the West Virginia Program Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the West Virginia program on January 21, 1981. You can find background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval of the West Virginia program in the January 21, 1981, **Federal Register** (46 FR 5915). You can also find later actions concerning West Virginia's program and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16. II. Background on the Previous Submittal of this Amendment In 2001, West Virginia House Bill 2663 was enacted as State law. House Bill 2663 deleted the definition of cumulative impact at CSR 38-2-2.39 and added a definition of material damage at CSR 38-2-3.22.e, a provision that concerns cumulative hydrologic impact assessments

(CHIA)of surface coal mining and reclamation operations. By letter dated May 2, 2001, West Virginia submitted the proposed changes as an amendment to its permanent regulatory program (Administrative Record Number WV-1209). OSM approved the deletion of the definition of cumulative impact and the addition of the definition of material damage on December 1, 2003 (68 FR 67035) (Administrative Record Number WV-1379). On January 30, 2004, the Ohio River Valley Environmental Coalition, Inc., Hominy Creek Preservation Association, Inc., and Citizens Coal Council filed a complaint and petition for judicial review in the United States District Court for the Southern District of West Virginia (Administrative Record Number WV-1382). On September 30, 2005, the United States District Court for the Southern District of West Virginia vacated OSM's decision of December 1, 2003, and remanded the matter to the Secretary for further proceedings consistent with the Court's decision (Administrative Record Number WV-1439). In response to the Court's decision of September 30, 2005, OSM notified the State on November 1, 2005, that its definition of material damage was not approved and could not be implemented. OSM also stated that the deletion of the definition of cumulative impact was not approved and the State had to take action to add it back into the program. On November 22, 2005, the United States District Court for the Southern District of West Virginia amended its earlier decision (Administrative Record Number WV-1454). In its amended order, the Court directed the Secretary to instruct the State that it may not implement either the new language nor the deletion of language from the State's program, and that the State must enforce only the State program approved by OSM prior to the amendments. By letter dated January 5, 2006, OSM notified the State that the Court's amended judgment order makes it clear that the definition of “cumulative impact” at CSR 38-2-2.39 remains part of the approved West Virginia program and, as such, must be implemented by the State, and that the definition of “material damage” is not approved and can not be implemented. On December 12, 2006, the U.S. Court of Appeals for the Fourth Circuit affirmed the District Court's ruling of September 30, 2005, to vacate and remand OSM's approval of West Virginia's amendments (Administrative Record Number WV-1479). The Fourth Circuit Court ruled that OSM failed to comply with the rulemaking procedures set forth in section 553 of the Administrative Procedure Act. The Court also stated that OSM's failure to properly analyze and explain its decision to approve the State's program amendment rendered that action arbitrary and capricious. III. Description of the Proposed Amendment By letter dated March 22, 2007 (Administrative Record Number WV-1485), the West Virginia Department of Environmental Protection (WVDEP) re-submitted an amendment to its program under SMCRA (30 U.S.C. 1201 *et seq.* ). See Section II above, for the background on the previous submittal of this amendment. The amendment revises the West Virginia Code of State Regulations

(CSR)concerning the potential hydrologic impacts of surface and underground mining operations. The amendment is intended to repeal a definition of “cumulative impact,” and add a definition of “material damage” to the hydrologic balance outside the permit area. In its March 22, 2007, re-submittal letter, the State provided the following information in support of its proposed amendment: A description of the proposed amendment; a 13-page explanation of why it believes the amendment is no less stringent than SMCRA and no less effective than the Federal regulations; a copy of the State's Requirements Governing Water Quality Standards at 47 CSR 2; and a copy of the United States District Court for the Southern District of West Virginia decision *Ohio River Valley Environmental Coalition, Inc. (OVEC), et al.* , v. *Callaghan, et al., Civil Action No. 3:00-0058,* dated March 8, 2001. You may receive a copy of this information by contacting the person listed above under FOR FURTHER INFORMATION CONTACT . It must be noted that WVDEP stated in its March 22, 2007, letter that it is resubmitting the program amendment pursuant to 30 CFR 732.17(h)(9). The Federal regulations at 30 CFR 732.17(h)(8) provide that if the Director disapproves an amendment, the State regulatory authority will have 30 days after publication of the Director's decision to resubmit a revised amendment request for consideration by the Director. The Federal regulations at 30 CFR 732.17(h)(9) specify the minimum public comment period to be provided and the time period within which the Director should approve or disapprove an amendment resubmission. This program amendment does not qualify as a resubmission pursuant to 30 CFR 732.17(h)(8) and

(9)because this amendment has been the subject of litigation and the time period provided at 30 CFR 732.17(h)(8) for resubmission has expired. Therefore, OSM will treat the amendment as a new request and initiate review procedures in accordance with 30 CFR 732.17(h). West Virginia Proposes the Following Amendments 1. CSR 38-2-2.39 Definition of “cumulative impact” This definition is proposed for deletion from the West Virginia program, and provides as follows: Cumulative impact means the hydrologic impact that results from the cumulation of flows from all coal mining sites to common channels or aquifers in a cumulative impact area. Individual mines within a given cumulative impact area may be in full compliance with effluent standards and all other regulatory requirements, but as a result of the co-mingling of their off-site flows, there is a cumulative impact. The Act does not prohibit cumulative impacts but does emphasize that they be minimized. When the magnitude of cumulative impact exceeds threshold limits or ranges as predetermined by the Division, they constitute material damage. 2. CSR 38-2-3.22.e Cumulative Hydrologic Impact Assessment

(CHIA)This provision is proposed to be amended by adding a definition of material damage to the existing language. The proposed definition of material damage provides as follows: Material damage to the hydrologic balance outside the permit area[s] means any long term or permanent change in the hydrologic balance caused by surface mining operation(s) which has a significant adverse impact on the capability of the affected water resource(s) to support existing conditions and uses. As amended, CSR 38-2-3.22.e would provide as follows: The Director [Secretary] shall perform a separate CHIA for the cumulative impact area of each permit application. This evaluation shall be sufficient to determine whether the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. Material damage to the hydrologic balance outside the permit area[s] means any long term or permanent change in the hydrologic balance caused by surface mining operation(s) which has a significant adverse impact on the capability of the affected water resource(s) to support existing conditions and uses. In support of the proposed amendments described above, the WVDEP provided a 13-page explanation that we have summarized below. Application of the Material Damage Definition In its submittal, the WVDEP stated that the new definition of material damage at CSR 38-2-3.22.e focuses on the impact of mining operation(s) on the ability of a water resource to “support existing conditions and uses”. The principle use of the term “material damage” in the hydrologic context in SMCRA, is as a test for evaluating the potential hydrologic impacts of a permit application before the mining operation (and any potential enforcement) takes place. This new definition effectively requires the State to consider the water quality standards it has promulgated pursuant to section 303(a) of the Federal Clean Water Act as part of the material damage inquiry under the surface mining law. These water quality standards are codified in the State regulations at CSR 47-2-1 to -9.4. By definition at CSR 47-2-2.21, “water quality standards” means the “combination of water uses to be protected and the water quality criteria to be maintained by these rules.” The phrase used in this definition, “water quality criteria”, is also a defined term at CSR 47-2-2.20, and its definition reiterates this direct link between protection of stream uses and application of water quality standards: “Water quality criteria” shall mean levels of parameters or stream conditions that are required to be maintained by these regulations [state water quality standards]. Criteria may be expressed as a constituent concentration, levels, or narrative statement, representing a quality of water that supports a designated use or uses. The WVDEP stated that CSR 47-2-6 establishes various categories of uses for the water resources of the State. For protection of each of these categories of use, Appendix E, Table 1 of the water quality standards rules establishes a specific set of water quality criteria (see CSR 47-2-8.1). These sets of criteria include numeric limits for various pollutant parameters that are intended to protect the category of use to which they apply. Most, if not all, of these State numeric limits are based on scientific studies conducted by or for the U.S. Environmental Protection Agency for the purpose of providing technical guidance to state regulators as to the limits that must be placed on the concentrations of various pollutants in order to provide protection for each category of stream use. The WVDEP stated that to assure that mining will not result in a long term or permanent change in the hydrologic balance which has a significant adverse impact on the capability of a receiving stream to support its uses, a proposed mining operation must be designed so as to consistently comply with the water quality standards for these uses. If upon review of a permit application and assessment of the probable cumulative impact of all anticipated mining in the cumulative impact area on the hydrologic balance, the WVDEP is able to determine that the proposed operation has been designed so as to consistently comply with the water quality standards that protect the uses of the water into which discharges from the operation will flow, the WVDEP will make a finding that the proposed operation has been designed so as to prevent material damage to the hydrologic balance outside the permit area. Consistent with the concept that mining operations must be designed to prevent material damage, isolated or random exceedences of water quality standards by a slight margin which do not affect the capability of the affected water resource to support its uses will not be regarded as “material” damage. In making the material damage finding upon a proposed operation's capability, as designed, to consistently comply with water quality standards, the WVDEP does not intend to create the impression that it will consider every pollutant for which a water quality standard has been promulgated. Water quality standards have been promulgated for a wide variety of parameters, many of which have no potential to be in the effluent from a mining operation. Instead, the agency's consideration will be limited to standards for those parameters which, based on its experience with other mining operations in the area and the geochemical data which the provisions at CSR 38-2-3.23 require to be included in the application, have the potential to have an impact on water quality if the application is granted. Comparison of the Material Damage and Cumulative Impact Definitions The WVDEP stated that for the most part, there is very little difference between the definition of “cumulative impact” that is proposed to be deleted, which included a definition of material damage, and the material damage definition that is proposed to be added. The cumulative impact definition at CSR 38-2-2.39 provides that material damage occurs when “the magnitude of cumulative impact exceeds threshold limits or ranges as predetermined by the [WVDEP]”. The agency's guidance to its permit reviewers stated that water quality standards should be used as material damage limits under this definition. As with the material damage definition at CSR 38-2-3.22.e that is being proposed, isolated or random exceedences of water quality standards by a slight margin which did not affect the capability of the affected water resource to support its uses were not regarded as “material” damage under the cumulative impact definition. Accordingly, regardless of whether a permit reviewer made a material damage finding based on application of threshold limits or ranges under the old cumulative impact definition or makes such a finding based on whether there will be a significant adverse impact on the capability of the affected water resource to support its uses under the new material damage definition, the real focus under both definitions is on the question of whether water quality standards will be met consistently so stream uses are protected. The WVDEP stated that there are three distinctions between the old cumulative impact definition and the new material damage definition. First, by requiring the material damage finding to be made upon the capability of the stream to support its uses, the new definition clearly requires the material damage inquiry to be made by reference to the State's water quality standards that have been promulgated to protect these uses. On its face, the old cumulative impact definition only required this finding to be based on threshold limits or ranges. Outside the agency's guidance, which lacked the binding effect of a regulation, there was no requirement that any particular set of “limits or ranges” be used. Accordingly, individual permit reviewers may have believed that they had discretion to arbitrarily make up their own criteria on a case by case basis. Where such criteria varied from water quality standards, there was potential for conflict with the Clean Water Act in violation of 30 U.S.C. 1292(a)(3) of SMCRA. By requiring the finding to be made upon the capability of a stream to support its uses, which requires this judgment to be based on the ability of the operation to comply with water quality standards, the potential for both arbitrarily established limits and conflict with the Clean Water Act is eliminated. Therefore, the new definition is more objective. Second, the WVDEP stated that the old definition could be read to mean that a single, minor exceedence of threshold limits or ranges which did not result in any perceptible damage constitutes material damage. For example, if the iron level in a trout stream is measured at 0.52 mg/l at any single point in time, which exceeds the water quality standard of 0.50 mg/l for the iron concentration in trout streams, some would argue that the stream has been materially damaged, even in the absence of any evidence that this single exceedence has contributed to impairment of any aspect of the trout's life cycle or the supporting ecology. The new definition makes it clear that single or random, minor exceedences which do not affect the capability of a water resource to support its uses do not constitute “material” damage. By equating “material” damage with a “significant” adverse impact on the capability of the affected water resource to support its uses, the new definition is truer to the plain meaning of “material damage” as used in the statute. Third, the WVDEP stated that the old definition, which is proposed to be deleted, focuses only on whether “cumulative impacts” exceed the threshold limits or ranges, to the exclusion of consideration of other individual hydrologic impacts of the proposed operation. This exclusive focus may not be consistent with 30 CFR sections 780.21(g) and 784.14(f) which require the material damage finding to be based on a determination of “whether the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area”. Under the new definition, this potential shortcoming is eliminated. The new material damage definition provides for consideration of the design of the proposed operation as well as cumulative impacts through its focus on whether there has been a “change in the hydrologic balance caused by surface mining operation(s)”. The WVDEP concluded that the State's proposed material damage definition is consistent with the plain meaning of the term as it is used in SMCRA, its use in the context of hydrologic protection in SMCRA, the meaning it is given in other contexts in SMCRA, as well as the overall focus of SMCRA. By focusing on the protection of stream uses, based on whether a proposed mining operation has been designed to consistently comply with water quality standards that have been promulgated to protect such uses, based upon scientific study, the material damage definition provides a seamless interface between the State's clean water regulatory program and regulation of impacts from mining on the hydrologic balance under the surface mining regulatory program. In the opinion of the State, these amendments render the State program more consistent with SMCRA rather than less so. IV. Public Comment Procedures Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether these amendments and the supporting arguments and explanations presented by the State satisfy the applicable program approval criteria of 30 CFR 732.15. If we approve these revisions, they will become part of the West Virginia program. Written Comments Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We may not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see DATES ). We will make every attempt to log all comments into the administrative record, but comments delivered to an address other than the Charleston Field Office may not be logged in. Electronic Comments Please submit Internet comments as an E-mail or Word file avoiding the use of special characters and any form of encryption. Please also include Attn: SATS NO. WV-112-FOR and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Charleston Field office at

(304)347-7158. Availability of Comments Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Public Hearing If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (local time), on June 1, 2007. If you are disabled and need special accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing. To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard. Public Meeting If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings will be open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES . We will make a written summary of each meeting a part of the Administrative Record. V. Procedural Determinations Executive Order 12630—Takings This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation. Executive Order 12866—Regulatory Planning and Review This rule is exempt from review by the Office of Management and Budget under Executive Order 12866. Executive Order 12988—Civil Justice Reform The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections

(a)and

(b)of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met. Executive Order 13132—Federalism This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects 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. The basis for this determination is that our decision is on a State regulatory program and does not involve a Federal regulation involving Indian lands. Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is

(1)considered significant under Executive Order 12866, and

(2)likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. National Environmental Policy Act This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 *et seq.* ). Regulatory Flexibility Act The Department of the Interior certifies that this 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.* ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

(a)Does not have an annual effect on the economy of $100 million;

(b)Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and

(c)Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations. Unfunded Mandates This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations. List of Subjects in 30 CFR Part 948 Intergovernmental relations, Surface mining, Underground mining. Dated: April 19, 2007. Michael K. Robinson, Acting Regional Director, Appalachian Region. [FR Doc. E7-9506 Filed 5-16-07; 8:45 am] BILLING CODE 4310-05-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2007-0027; FRL-8316-3] Approval and Promulgation of Air Quality Implementation Plans; Delaware; Electric Generating Unit Multi-Pollutant Regulation AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a State Implementation Plan

(SIP)revision submitted by the State of Delaware. This revision pertains to establishing limits on the emissions of nitrogen oxides (NO X ) and sulfur dioxide (SO 2 ) from Delaware's large electric generation units (EGUs). This action is being taken under the Clean Air Act (CAA or the Act). DATES: Written comments must be received on or before June 18, 2007. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-0027 by one of the following methods: A. *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. B. *E-mail:* *miller.linda@epa.gov* . C. *Mail:* EPA-R03-OAR-2007-0027, Linda Miller, Acting Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2007-0027. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an (anonymous access( system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Delaware Department of Natural Resources & Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 19901. FOR FURTHER INFORMATION CONTACT: Rose Quinto,

(215)814-2182, or by e-mail at *quinto.rose@epa.gov* . SUPPLEMENTARY INFORMATION: On November 16, 2006, the Delaware Department of Natural Resources and Environmental Control (DNREC) submitted a revision to its State Implementation Plan

(SIP)for Regulation No. 1146—Electric Generating Unit Multi-Pollutant Regulation. I. Background Regulation No. 1146 establishes NO X , SO 2 and mercury emissions limits to achieve reductions of those pollutants from Delaware's large EGUs of coal-fired and residual oil-fired EGUs with a nameplate capacity rating of 25 megawatts

(MW)or greater generating capacity. Only the NO X and SO 2 sections of this regulation will be discussed in this rulemaking. The mercury sections of this regulation will be discussed in a separate rulemaking. Regulation No. 1146 will help Delaware attain and maintain the national ambient air quality standards (NAAQS) for ozone and particulate matter (PM 2.5 ) and will assist Delaware in achieving the emissions reductions needed to support Delaware's 8-hour ozone reasonable further progress plan (RFP). This multi-pollutant regulation will not replace the Federal Clean Air Interstate Rule

(CAIR)requirements and does not relieve affected sources from participating in and complying with all CAIR cap-and-trade program requirements. II. Summary of SIP Revision Regulation No. 1146 applies to coal-fired and residual oil-fired EGUs located in Delaware with a nameplate capacity rating of 25 MW or greater. The large EGUs subject to Regulation No. 1146 are Conective Delmarva Generating, Inc.'s Edge Moor Generating Station Units 3, 4 and 5 located in New Castle County; the City of Dover's McKee Run Generating Station Unit 3 located in Kent County; and NRG Energy, Inc.'s Indian River Generating Station Units 1, 2, 3 and 4 located in Sussex County. Regulation No. 1146 also contains definitions; emissions limitations for NO X and SO 2 ; recordkeeping and reporting; compliance plan; and annual mass emission limits for NO X and SO 2 . A. Emissions Limitations 1. NO X Regulation No. 1146 includes short term NO X emission rate limits and will be implemented in a phased manner. For Phase I, May 1, 2009 through December 31, 2011, the short term NO X emission rate limit is 0.15 lb/MMBTU of heat input on a rolling 24-hour average basis. For Phase II, January 1, 2012 and beyond, the short term NO X emission rate limit is 0.125 lb/MMBTU of heat input on a rolling 24-hour average basis. A unit subject to this regulation shall not emit annual NO X mass emissions that exceed the values shown in Table I on or after January 1, 2009. Table I.—Annual NO X Mass Emissions Limits Unit Control period NO X mass emissions limit

(tons)Edge Moor 3 773 Edge Moor 4 1339 Edge Moor 5 1348 Indian River 1 601 Indian River 2 628 Indian River 3 977 Indian River 4 2032 McKee Run 3 244 2. SO 2 Regulation No. 1146 includes short term SO 2 emission rate limits and will also be implemented in a phased manner. For Phase I, May 1, 2009 through December 31, 2011, the short term SO 2 emission rate limit is 0.37 lb/MMBTU of heat input on a rolling 24-hour average basis. For Phase II, January 1, 2012 and beyond, the short term SO 2 emission rate limit is 0.26 lb/MMBTU of heat input on a rolling 24-hour average basis. A unit subject to this regulation shall not emit annual SO 2 mass emissions that exceed the values shown in Table II on or after January 1, 2009. Table II.—Annual SO 2 Mass Emissions Limits Unit Control period SO 2 mass emissions limit

(tons)Edge Moor 3 1391 Edge Moor 4 2410 Edge Moor 5 2427 Indian River 1 1082 Indian River 2 1130 Indian River 3 1759 Indian River 4 3657 McKee Run 3 439 B. Compliance Demonstration NO X and SO 2 emissions from multiple units subject to Regulation No. 1146 at a common facility may be averaged on a heat input basis to demonstrate compliance. Regulation No. 1146 requires compliance demonstration with the emissions limitations for NO X and SO 2 through the use of EPA and DNREC approved continuous emissions monitoring systems (CEMS). Regulation No. 1146 also requires that these CEMS must be installed, certified, calibrated, operated, and maintained in accordance with EPA requirements. For NO X and SO 2 emissions, Regulation No. 1146 specifies that CEMS must comply with all 40 CFR part 75; including monitoring, recordkeeping, quality assurance/quality control (QA/QC), and reporting requirements. These are the same requirements that are necessary for compliance with EPA's CAIR program, for which each of the units subject to this regulation are also subject. C. Compliance Plan Regulation No. 1146 requires a submission of a compliance plan from the owner or operator of a unit subject to this regulation to DNREC on or before July 1, 2007. D. Recordkeeping and Reporting Regulation No. 1146 requires compliance with all applicable recordkeeping and reporting requirements of 40 CFR part 75. Owner or operator of a unit subject to this regulation shall maintain for a period of at least 5 years, copies of all measurements, tests, reports and other information required by 40 CFR part 75. This information shall be provided to DNREC upon request at anytime. III. Proposed Action EPA is proposing to approve the Delaware SIP revision for Regulation No. 1146—Electric Generating Unit Multi-Pollutant Regulation submitted on November 16, 2006 pertaining to NO X and SO 2 . This regulation will result in the reduction of NO X and SO 2 emissions from the affected sources. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. IV. 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 action merely proposes to approve state law as meeting Federal requirements 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 rule 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 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 67249, November 9, 2000), nor will it 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), because it merely proposes to approve a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. 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, 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This proposed rule pertaining to Delaware's Electric Generating Unit Multi-Pollutant Regulation, 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 in 40 CFR Part 52 Environmental protection, Air pollution control, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 *et seq.* Dated: May 10, 2007. William T. Wisniewski, Acting Regional Administrator, Region III. [FR Doc. E7-9519 Filed 5-16-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 131 [EPA-HQ-OW-2007-0259; FRL-8315-3] Water Quality Standards for Puerto Rico AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing water quality standards that would establish methods to implement Puerto Rico's existing antidegradation policy for waters in the Commonwealth of Puerto Rico. DATES: Comments must be received on or before June 18, 2007. EPA will hold a public hearing on this proposed rule on Monday June 4, 2007, from 2 p.m. to 5 p.m. and from 7 p.m. to 9 p.m. The public hearing will occur at the Universidad Metropolitana

(UMET)Theatre, Ave. Ana G. Mendez, Km 0.3, Cupey, Puerto Rico 00928. If you need special accommodations at this meeting, including wheelchair access or sign language interpreter, you should contact Yasmin Laguer at 787-997-5848 at least 10 business days prior to the meeting so that we can make appropriate arrangements. ADDRESSES: Submit your comments, identified by Docket Id. No. [EPA-HQ-OW-2007-0259], by one of the following methods: • *www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: ow-docket@epa.gov.* • *Mail to either:* Water Docket, USEPA, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460 or Docket Manager, Proposed Water Quality Standards for Puerto Rico, U.S. EPA Region 2, 290 Broadway, New York, New York 10007, Attention Docket ID No. OW-2007-0259. • *Hand Delivery:* EPA Docket Center, EPA West Room 3334, 1301 Constitution Ave., NW., Washington, DC, 20004 or Docket Manager, Proposed Water Quality Standards for Puerto Rico, U.S. EPA Region 2, 290 Broadway, New York, New York 10007, Attention Docket ID No. OW-2007-0259. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OW-2007-0259. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at two Docket Facilities. The OW Docket Center is open from 8:30 a.m. until 4:30 p.m, Monday through Friday, excluding legal holidays. The Docket telephone number is

(202)566-2426 and the Docket address is OW Docket, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20004. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202)566-1744. Publicly available docket materials are also available in hard copy at U.S. EPA Region 2, 290 Broadway, 24th Floor, New York, New York 10007. This location is open from 8:30 a.m. until 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number is

(212)637-3807. Publicly available docket materials will be viewable electronically at the Caribbean Environmental Protection Division, U.S. EPA Region 2, 1492 Ponce De Leon Avenue, Suite 417, Centro Europa Building, San Juan, Puerto Rico 00907. This facility is open from 9 a.m. to 3:30 p.m., Monday through Friday, excluding legal holidays. The telephone number is

(787)977-5848. FOR FURTHER INFORMATION CONTACT: Wayne Jackson, U.S. EPA Region 2, Division of Environmental Planning and Protection, 290 Broadway, New York, New York 10007 (telephone: 212-637-3807 or e-mail: *jackson.wayne@epa.gov* ) or Danielle Fuligni, U.S. EPA Headquarters, Office of Science and Technology, 1200 Pennsylvania Avenue, NW., Mail Code 4305T, Washington, DC 20460 (telephone: 202-566-0793 or e-mail: *fuligni.danielle@epa.gov* ). SUPPLEMENTARY INFORMATION: This section is organized as follows: Table of Contents I. General Information A. What Entities May be Affected by This Action? B. What Should I Consider as I Prepare my Comments for EPA? II. Background A. What Are the Applicable Federal Statutory and Regulatory Requirements? B. Why Is EPA Proposing Federal Antidegradation Implementation Methods for the Commonwealth of Puerto Rico? III. This Proposed Rule A. What Are the Proposed Antidegradation Implementation Methods to Protect Puerto Rico's High Quality Waters? B. How Will Puerto Rico Implement the Proposed Antidegradation Implementation Methods? C. What Are the Cost Implications of the Proposed Rule? D. Request for Comment IV. Statutory and Executive Order Reviews A. Executive Order 12866 (Regulatory Planning and Review) B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132 (Federalism) F. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) G. Executive Order 13045 (Protection of Children From Environmental Health Risks and Safety Risks) H. Executive Order 13211 (Actions That Significantly Affect Energy Supply, Distribution or Use) I. National Technology Transfer and Advancement Act of 1995 J. Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations) K. Endangered Species Act I. General Information A. What Entities May Be Affected by This Action? Citizens concerned with water quality in Puerto Rico may be interested in this rulemaking. Today's proposal, if made final, will establish Federal antidegradation implementation methods by regulation for waters in the Commonwealth of Puerto Rico (hereafter, “the Commonwealth” or “Puerto Rico”). Entities discharging pollutants to the surface waters of Puerto Rico could be indirectly affected by this rulemaking since water quality standards are used in determining National Pollutant Discharge Elimination System (NPDES) permit limits, CWA section 404 dredge and fill permits, and other activities requiring CWA section 401 certification. Categories and entities that may ultimately be affected include: Category Examples of potentially affected entities Industry Industries discharging pollutants to surface waters in Puerto Rico. Municipalities Discharges from publicly-owned facilities such as publicly owned treatment works and water filtration facilities. This table is not intended to be exhaustive, but rather provides a guide for readers regarding NPDES-regulated entities likely to be affected by this action. This table lists the types of entities that EPA is now aware could potentially be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your facility may be affected by this action, you should carefully examine today's proposed rule. If you have questions regarding the applicability of this action to the particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. B. What Should I Consider as I Prepare My Comments for EPA? i. *Submitting CBI.* Do not submit this information to EPA through *www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. ii. *Tips for Preparing Your Comments.* When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations

(CFR)part or section number. • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. II. Background A. What Are the Applicable Federal Statutory and Regulatory Requirements? Section 303 (33 U.S.C. 1313) of the Clean Water Act (CWA or “the Act”) directs States, Territories, and authorized Tribes (hereafter referred to as “States”), with oversight by EPA, to adopt water quality standards to protect the public health and welfare, enhance the quality of water and serve the purposes of the CWA. Under section 303, States are required to develop water quality standards for navigable waters of the United States within the State. Section 303(c) and EPA's implementing regulations at 40 CFR part 131 require State and Tribal water quality standards to include the designated use or uses to be made of the water, the water quality criteria necessary to protect those uses and an antidegradation policy. States are required to review their water quality standards at least once every three years and, if appropriate, revise or adopt new standards. The results of this triennial review must be submitted to EPA, and EPA must approve or disapprove any new or revised standards. Section 303(c) of the CWA authorizes the EPA Administrator to promulgate water quality standards to supersede State standards that EPA has disapproved or in any case where the Administrator determines that a new or revised standard is needed to meet the CWA's requirements. In a February 14, 2007, Opinion and Order from the United States District Court for the District of Puerto Rico in the case of *CORALations and the American Littoral Society* v. *United States Environmental Protection Agency,* *et al.* (No. 02-1266

(JP)(D. Puerto Rico)), the Court ordered EPA to “prepare and publish new or revised water quality standards identifying antidegradation methods for Puerto Rico within 60 days” (April 17, 2007). The Court has since granted EPA's motion for an additional 30 days. EPA is, therefore, proposing Federal water quality standards for these waters in Puerto Rico. As one of the minimum elements that must be included in a State's water quality standards, antidegradation is an important tool for States and authorized Tribes to use in meeting the CWA's requirement that water quality standards protect public health or welfare, enhance the quality of water and meet the objective of the CWA to restore and maintain the chemical, physical and biological integrity of the nation's waters. Antidegradation requirements help ensure that any degradation in water quality is subject to review and approval by the State even in cases where the existing water quality far exceeds the water quality criteria and designated use applicable to individual waters. EPA's regulation at 40 CFR 131.12 requires that States and authorized Tribes adopt antidegradation policies and identify implementation methods to provide three levels or tiers of water quality protection. The first level of protection at 40 CFR 131.12(a)(1), also known as Tier 1 of antidegradation, requires the maintenance and protection of existing instream water uses and the level of water quality necessary to protect those existing uses. Protection of existing uses is the floor of water quality protection afforded to all waters of the United States. Existing uses are “* * * those uses actually attained in the water body on or after November 28, 1975, whether or not they are included in the water quality standards.” (40 CFR 131.3(e)) The second level of protection, or Tier 2 of antidegradation, is for high quality waters. High quality waters are defined in 40 CFR 131.12(a)(2) as waters where the quality of the waters is better than the levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water. This water quality is to be maintained and protected unless the State or authorized Tribe finds, after public participation and intergovernmental review, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing lower water quality, the State or authorized Tribe must assure water quality adequate to protect existing uses. Further, the State or authorized Tribe must ensure that all applicable statutory and regulatory requirements are achieved for all new and existing point sources and all cost-effective and reasonable best management practices are achieved for nonpoint source control. Finally, the third and highest level of antidegradation protection, or Tier 3, is for outstanding national resource waters (ONRWs). If a State or authorized Tribe determines that the characteristics of a water body constitute an outstanding national resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, and designates a water body as such, then that water quality must be maintained and protected (see 40 CFR 131.12(a)(3)). In addition to requiring States and authorized Tribes to adopt an antidegradation policy, 40 CFR 131.12 requires States to identify methods for implementing such a policy. Such methods are not required to be contained in the State's regulation, but because they inform EPA's judgment regarding whether the State's antidegradation policy is consistent with the Federal regulations at 40 CFR 131.12, they are subject to EPA review. Where the State chooses to make such methods part of its water quality standards regulations, section 303(c)(3) of the CWA and EPA's implementing regulations require them to be submitted to EPA for review and approval. When a State or authorized Tribe chooses to develop such methods as guidance or outside of regulation, EPA reviews the methods in the context of determining whether the State's antidegradation policy as interpreted and implemented through the methods, is consistent with 40 CFR 131.12. EPA's regulations at 40 CFR 131.12 provide a great deal of discretion to States regarding the amount of specificity required in a State's antidegradation implementation methods. The regulations do not specify minimum elements for such methods, but do require that such methods not undermine the intent of the antidegradation policy. *See* Advanced Notice of Proposed Rulemaking, 63 FR 36742, 36781, July 7, 1998. B. Why Is EPA Proposing Federal Antidegradation Implementation Methods for the Commonwealth of Puerto Rico? Puerto Rico has an existing EPA-approved antidegradation policy, which was adopted on October 27, 1990 and approved by EPA on March 28, 2002. This antidegradation policy mirrors that of the federal regulation. The policy states the following: It is the policy of the Government of Puerto Rico to conserve and protect the existing uses of the Waters of Puerto Rico. The water quality necessary to protect the existing uses, including threatened and endangered species shall be maintained and protected. In those water bodies where the quality exceeds levels necessary to support propagation of fish, shellfish, wildlife, desirable species including threatened or endangered species and recreation in and on the water, that quality shall be maintained and protected. A lower water quality may be allowed when the EQB finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the Board's Continuing Planning Process that allowing lower water quality is necessary to accommodate important economic or social development in the area where the waters are located. In allowing such lower water quality, the Board shall require a water quality level adequate to protect existing uses fully. Further, the Board will require that:

(1)The highest statutory and regulatory requirements for all new and/or existing point sources be achieved and

(2)All cost-effective and reasonable best management practices for non-point source control be implemented. Where high quality waters constitute an outstanding national resource, such as waters of El Yunque National Forest and State parks, wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected. Where potential water quality impairment is associated with a thermal discharge, this thermal discharge must comply with Section 316 of the Clean Water Act as amended. The Environmental Quality Board of the Commonwealth of Puerto Rico (EQB or Board) first adopted an antidegradation policy in its water quality standards regulation in June 1973. EQB is responsible, in part, for developing and recommending to the Governor public policy to encourage and promote the improvement of environmental quality so as to meet the conservation, social, economic, health and other requirements and goals of the Commonwealth. One of the specific functions of EQB is to develop and adopt water quality standards, which are intended to “enhance, maintain and preserve the quality of the waters of Puerto Rico compatible with the social and economic needs of Puerto Rico.” This antidegradation policy was approved by EPA on November 15, 1973. Puerto Rico's antidegradation policy statement remained unchanged until 1990. In August 1990, the Commonwealth of Puerto Rico adopted revisions to the Puerto Rico Water Quality Standards Regulation (PRWQSR). These were sent to EPA Region 2 on September 21, 1990, with the caveat from the Chairman of the EQB that the transmittal may not be the final submittal, since EQB was going to hold additional public hearings on November 1, 1990 regarding certain aspects of the revisions. Because of this caveat, and because the requisite certification from the Commonwealth's Secretary of Justice was not submitted with the revisions as required by 40 CFR 131.6(e), EPA did not act on these revisions immediately. From 1991 to 1993, EPA Region 2 worked with EQB on a series of subsequent draft revisions to the PRWQSR. These drafts were never adopted by Puerto Rico. The requisite certification from the Commonwealth's Secretary of Justice was ultimately submitted to EPA on February 25, 2002. Upon receipt of this certification EPA took final action on all new and revised provisions of the 1990 PRWQSR on March 28, 2002. These revisions included the above-referenced revisions to the Puerto Rico antidegradation policy. Prior to October 2001, Puerto Rico had antidegradation implementation methods set forth in a document known as its Continuing Planning Process (CPP). In the fall of 2001, EPA commenced work with the Puerto Rico EQB to enhance their antidegradation implementation methods. EQB submitted its first reasonably complete draft of its consolidation of antidegradation implementation methods on September 3, 2003. On February 20, 2002, CORALations, American Littoral Society, and the American Canoe Association filed a complaint in the U.S. District Court for the District of Puerto Rico. In this action, the plaintiffs alleged, among other things, that a September 4, 1992 letter from a EPA Region 2 Division Director to the EQB had triggered a mandatory duty under section 303(c)(4) of the CWA for EPA to prepare and propose regulations for Puerto Rico setting forth a revised water quality standard for antidegradation implementation methods. In October and December 2003, EQB submitted two revised drafts of its consolidation of antidegradation implementation methods. The December 2003 draft was submitted under cover of a letter dated December 16, 2003 from Ruben Gonzalez Delgado, Director of EQB's Water Quality Area, to Walter Mugdan, Director of the EPA Region 2's Division of Environmental Planning and Protection. This letter stated that it was EQB's intent to promulgate this consolidation as part of the PRWQSR in order to consolidate EQB's existing antidegradation implementation methods “either explicitly or by reference, into one document so that it is readily accessible to the public and the regulated community.” On June 17, 2004, EQB submitted to EPA its final revised consolidation document. This consolidation document, however, was not adopted as a regulation. In a letter dated July 9, 2004, from Mr. Mugdan to EQB's President, Esteban Mujica Cotto, EPA stated that these methods meet the requirements of the Clean Water Act and 40 CFR 131.12(a). On February 14, 2007, the U.S. District Court of Puerto Rico issued an opinion ruling that EPA had failed to execute a mandatory duty to propose antidegradation implementation methods for Puerto Rico and ordered EPA to prepare and publish new or revised water quality standards identifying antidegradation implementation methods for Puerto Rico within 60 days. The court has since granted a 30-day extension. III. This Proposed Rule EPA is proposing federal water quality standards identifying methods for implementing Puerto Rico's antidegradation policy. Consistent with section 303(c)(4) of the CWA, if during the Federal rulemaking process, Puerto Rico incorporates into Commonwealth regulation its own antidegradation implementation methods and EPA approves Puerto Rico's action, EPA would not finalize this proposal. In addition, if Puerto Rico incorporates into Commonwealth regulation its own antidegradation implementation methods following publication of a final Federal rule, EPA would withdraw its rule. A. What Are the Proposed Antidegradation Implementation Methods To Protect Puerto Rico's High Quality Waters? These proposed antidegradation implementation methods are the same as the implementation methods Puerto Rico provided to EPA in 2004. EPA reviewed those and on July 9, 2004, sent a letter from Walter Mugdan, Director of EPA Region 2's Division of Environmental Planning and Protection Division to Esteban Mujica Cotto, President of Puerto Rico's Environmental Quality Board stating that these methods meet the requirements of 40 CFR 131.12(a). (It should be noted that subsequent to the issuance of EPA's July 9, 2004 letter, EQB incorporated some non-substantive updates to its consolidation of implementation methods. The purpose of these updates is to reflect the fact that the Puerto Rico Environmental Public Policy Act (12 LPRA 8001 *et seq.* ), which is one of the referenced documents in the consolidation document, was amended and re-issued on September 22, 2004. The June 17, 2004 version of the consolidation document had referenced the previously applicable version of the Puerto Rico Environmental Public Policy Act. The proposed methods reflect this update). Consistent with Puerto Rico's antidegradation implementation methods, the proposed methods provide that all point sources would be subject to antidegradation review. The CWA and EPA's regulations leave to the States and authorized Tribes the decision whether to regulate nonpoint sources by requiring that they undergo antidegradation review. *American Wildlands* v. *Browner* , 260 F.3d 1192, 1198 (10th Cir. 2001). To date, Puerto Rico has not chosen to subject nonpoint sources to antidegradation review. As a result, EPA is not proposing to apply Puerto Rico's methods to sources other than point sources. In addition, as envisioned by Puerto Rico, the proposed methods provide that the antidegradation review would occur as part of Puerto Rico's CWA section 401 certification process. EPA issues all of the National Pollutant Discharge Elimination System (NPDES) permits under CWA section 402 for the Commonwealth of Puerto Rico. As part of this process, Puerto Rico must certify under CWA section 401 that those permits comply with Puerto Rico's water quality requirements. Conducting the antidegradation review process during this certification is a logical time for this review to occur, since this is the time when EQB conducts its formal analysis to determine, in part, if a proposed action will comply with all aspects of the Puerto Rico Water Quality Standards Regulation (PRWQSR). To implement Tier 1, it is important to explain what is meant by the term “existing in-stream water use” (40 CFR 131.12 (a)(1)) and explain how the level of water quality will be identified that is required to allow an existing use to continue to occur. Section 131.3 of the federal regulations defines existing uses as “those uses actually attained in the water body on or after November 28, 1975 * * * ”. The proposed methods provide that where there are concentrations or levels of a particular pollutant that have caused a waterbody to be listed as impaired under section 303(d) of the CWA, no additional degradation may occur in the waterbody. Puerto Rico's methods provide that this would be assured through water quality-based effluent limits meeting water quality criteria “end-of-pipe”. EPA believes this approach will protect the quality of water in the waterbody from further degradation, which will lead to the protection of the existing uses. EPA has articulated that states may take one of two approaches in identifying their high quality waters, also known as Tier 2 of antidegradation: a parameter-by-parameter approach or a waterbody-by-waterbody approach. Under the parameter-by-parameter approach, States and authorized Tribes determine whether water quality is better than the applicable criteria for a specific parameter or pollutant that would be affected by a new discharge or an increase in an existing discharge of the pollutant. The water body-by-water body approach weighs the chemical, physical, biological, or other factors to judge a water body's overall quality. In EPA's Advanced Notice of Proposed Rulemaking (ANPRM), EPA discussed the advantages and disadvantages to both approaches to designating high quality waters. 63 FR 36782, 36783, July 7, 1998. EPA also discussed these issues in the preamble to its proposed rule regarding antidegradation implementation methods for Kentucky. 67 FR 68971, 67798-99, November 14, 2002. EPA interprets its regulation to authorize either approach. Consistent with the implementation methods identified by Puerto Rico, EPA is today proposing that antidegradation reviews for high quality waters in Puerto Rico occur on a parameter-by-parameter basis. Under the proposed methods, Puerto Rico would implement protection of waters it identifies as ONRWs, also known as Tier 3 of antidegradation, through a requirement that prohibits point source discharges in ONRWs. As described earlier in this section, the proposed methods mirror those methods already identified by Puerto Rico for implementing its antidegradation implementation policy. EPA believes this approach is more than sufficient to meet the federal requirements at 40 CFR 131.12(a)(3) to maintain and protect the water quality of waters identified as ONRWs and is consistent with Puerto Rico's preferred approach. Consistent with the antidegradation methods identified by Puerto Rico, the proposed rule includes methods for implementing Puerto Rico's antidegradation policy for permits issued under section 404 of the CWA or permits issued under section 10 of the River and Harbors Act. The proposed methods would require that the discharge of dredged or fill material not have an unacceptable adverse impact either individually or in combination with other activities affecting the wetland before they can be allowed to discharge. Further, the proposed methods provide that any proposed discharge will not be allowed if there is a practicable alternative that would have less adverse impact. With regard to how the permits for these types of activities would be implemented in waters identified by Puerto Rico as ONRWs, the proposed methods provide that any proposed permitted activity under these sections of the statutes be treated the same as NPDES-permitted dischargers, that is, that these types of activities will be prohibited. This approach, also contained in Puerto Rico's methods, would assure that the water quality in waters identified as ONRWs be maintained and protected. B. How Will Puerto Rico Implement the Proposed Antidegradation Implementation Methods? Puerto Rico will implement the proposed antidegradation implementation methods through its ongoing CWA section 401 certification process. As described earlier in Section III.A., EPA Region 2 issues the NPDES permits for the Commonwealth of Puerto Rico. The permit issuance and preparation of the water quality certification occurs sequentially as described below. Section 6.11 of the PRWQSR describes how the EQB will issue CWA section 401 Water Quality Certifications

(WQC)for federally-issued permits, such as NPDES permits. This provision provides, in part, that when requesting a WQC, an applicant must submit, as part of the application, all relevant information to demonstrate to the satisfaction of the Board that the proposed action will not cause a violation of any applicable water quality standards in the receiving water body. Puerto Rico's requirements for conducting CWA section 401 certifications, which include antidegradation reviews, are found in Resolution R-89-2-2 of the Governing Board of EQB—February 2, 1989, and are summarized as follows. 1. EPA Region 2 (the Region) receives an application from a discharger for a NPDES permit, or for the renewal or modification of an existing NPDES permit. The applicant also submits a copy of the application to the EQB. 2. The Region reviews the application, and, if necessary, obtains additional information from the applicant. After all information is submitted, and EPA completes its review, EPA solicits certification from EQB in accordance with 40 CFR Part 124. 3. EQB evaluates the application/draft permit and issues or denies a 401 certification, or waives the right. (EQB will not waive the right when an initial environmental assessment indicates that the discharge for which a permit is sought will have a significant impact on the environment, triggering the need for an antidegradation review.) In summary, if EQB plans to certify the discharge, an intent to issue a WQC will be prepared. If EQB plans to deny the certification, an intent to deny a WQC will be prepared, including the basis of the determination that the discharge will not comply with applicable water quality standards. A copy of the intent to issue or deny a WQC, whichever the case, will be sent to EPA and the petitioner. A public notice and comment period follows. EQB then decides to issue the WQC or denial. Petitioners have the ability to seek reconsideration before the WQC decision becomes final. 4. In conducting an antidegradation review as part of the CWA section 401 certification process, EQB first determines which level of antidegradation applies based upon a review of existing water quality data, and other required information, to be provided by the applicant. Based upon this review, EQB then determines if additional information is necessary in order to make a determination. In the case of Tier I waters, a determination is made as to whether a discharge would lower water quality such that it would no longer be sufficient to protect and maintain the existing and designated uses of that water body. When the assimilative capacity of a water body is determined to be insufficient to protect existing and designated uses with an additional load to the water body, EQB does not allow a discharge increase by requiring that the applicable water quality standards be met at the end of the pipe. In order to allow the lowering of water quality in Tier 2 waters, EQB evaluates the existing and protected quality of the receiving water on a parameter-by-parameter basis. In those cases where a potential increase in loading from a discharge may result in the lowering of water quality, the applicant must show and justify the necessity for such lowering of water quality. As part of the Tier 2 antidegradation review process, EQB provides a public comment period of at least 30 days. In the case of Tier 3 waters, no point source discharge will be allowed. 5. If EQB issues a 401 certification, then EPA Region 2 incorporates the WQC into the draft permit and issues public notice of its intention to issue a final permit pursuant to 40 CFR Part 122. C. What Are the Cost Implications of the Proposed Rule? Puerto Rico's existing antidegradation implementation methods are the same as the antidegradation methods set forth in this proposed rule. Thus, while not in regulation, the proposed implementation methods are already in place in Puerto Rico and as such, EPA's proposed antidegradation methods are not expected to result in any additional monetary costs. Nonetheless, EPA prepared an analysis to evaluate potential impacts to the Commonwealth of Puerto Rico associated with future implementation of EPA's Federal standards. This analysis is documented in the “Economics Analysis of Proposed Antidegradation Implementation Methods for the Commonwealth of Puerto Rico,” which can be found in the record for this rulemaking and concludes that the total annualized costs of EPA's proposed rule for both the Commonwealth and the point source dischargers could range from $14,500 to $32,900. Any NPDES-permitted facility that discharges to water bodies affected by this proposed rule could potentially incur costs to comply with the rule's provisions. The types of affected facilities may include industrial facilities and publicly owned treatment works (POTWs). EPA did not consider the potential costs for nonpoint sources, such as agricultural and forestry-related nonpoint sources, because EPA's proposed rule would only require that antidegradation be applied to point sources. In addition, EPA did not address the potential monetary benefits of this proposed rule for Puerto Rico. 1. Identifying Affected Entities EPA identified approximately 265 point source facilities that may be affected by the rule. Of these potentially affected facilities, 76 are classified as major dischargers, and 189 are minor dischargers. Exhibit 1 provides a summary of facilities that are currently permitted to discharge to Puerto Rico surface waters, as identified in EPA's Permit Compliance System (PCS). There are a total of 265 facilities, 71 percent of which are minor dischargers. Exhibit 1.—Potentially Affected Individual NPDES Permitted Dischargers in Puerto Rico Facility type Number of facilities Majors 1 Minors 2 Total Municipal 36 33 69 Industrial 40 156 196 Total 76 189 265 Sources: U.S. EPA

(2007)and U.S. EPA Region 2 (2007). 1 Major dischargers are facilities discharging greater than 1 million gallons per day

(mgd)and likely to discharge toxic pollutants in toxic amounts. 2 Minor dischargers are defined as facilities discharging less than 1 million gallons per day

(mgd)and not likely to discharge toxic pollutants in toxic amounts. In the case of Tier 1 waters, EQB would make a determination as to whether a discharge would lower water quality such that it would no longer be sufficient to protect and maintain the existing and designated uses of that water body. For Tier 2 waters, EQB would evaluate the existing and protected quality of the receiving water on a parameter-by-parameter basis. Under this approach, EQB would determine whether water quality is better than the applicable criteria for a specific parameter or pollutant that would be affected by a new discharge or an increase in an existing discharge of the pollutant. In addition, no point source discharges would be allowed to Tier 3 waters. 2. Method for Estimating Potential Compliance Costs EPA Region 2 indicates that is has received five antidegradation review requests within the last five years, or approximately one request per year. This includes antidegradation reviews for both existing and new facilities. EPA assumed that each type of facility (e.g., major municipal, minor municipal, major industrial, and minor industrial) is equally likely to request an antidegradation review. Costs for the proposed antidegradation implementation methods include costs to facilities for preparing the review material and necessary data, and costs associated with the Commonwealth's review of the facility information and certification process. The cost incurred by facilities represents the cost of a preliminary engineering analysis and the subsequent financial analysis for which EPA provides guidance and a workbook. This analysis could cost between one percent and three percent of the installed cost of additional pollution controls. The cost potentially incurred by Puerto Rico's Environmental Quality Board

(EQB)represents the cost of reviewing the engineering cost analysis and financial impact analysis, validating source data and checking calculations, evaluating the engineering design and the conclusions regarding potential financial and community impacts, evaluating the information provided regarding the importance of the proposed development to the economic and social conditions of the affected community, and reviewing and responding to comments from the public. EPA estimated the total time requirement to process each request to be 140 hours. 3. Results Based on the potential number of antidegradation requests, EPA estimated that point source dischargers may incur total annual costs from $9,200 to $27,600 per year. EPA also estimated that Puerto Rico's EQB may incur annual costs to review the requests of approximately $5,300. Thus, total annual costs of the proposed rule could be $14,500 to $32,900. D. Request for Comment EPA solicits comment on the antidegradation methods it is proposing. The Agency will evaluate any comments, data and information submitted to EPA by the close of the public comment period. After full consideration of such comments, data, and information, EPA will make a final decision on the appropriateness of the antidegradation methods it is proposing. IV. Statutory and Executive Order Reviews A. Executive Order 12866 (Regulatory Planning and Review) This action is not a “significant regulatory action” under the terms of Executive Order

(EO)12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. Puerto Rico is already implementing the antidegradation methods set forth in this proposed rule. Therefore, these EPA-proposed methods are not expected to result in any additional monetary costs. However, EPA has prepared an analysis of the costs and benefits of the Puerto Rico antidegradation policy and methods. This analysis is contained in the “Economic Analysis of Proposed Antidegradation Implementation Methods for the Commonwealth of Puerto Rico”. A copy of the analysis is available in the docket for this action and is briefly summarized in Section IV. of today's notice. B. Paperwork Reduction Act This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995. It does not include any information collection, reporting or recordkeeping requirements. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act

(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this action on small entities, small entity is defined as:

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

(SBA)regulations at 13 CFR 121.201;

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

(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering these economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. Puerto Rico's existing antidegradation implementation methods are the same as the antidegradation implementation methods set forth in this proposed rule. Thus, while not in regulation, the proposed implementation methods are already in place in Puerto Rico and, as a result, the proposed implementation methods are not expected to result in any additional monetary costs. Nonetheless, EPA prepared an analysis to evaluate potential impacts to the Commonwealth of Puerto Rico associated with future implementation of EPA's Federal standards. This analysis is documented in the “Economic Analysis of Proposed Antidegradation Implementation Methods for the Commonwealth of Puerto Rico,” which can be found in the record for this rulemaking. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Thus, this rule is not subject to the requirements of section 203 of the Unfunded Mandates Reform Act. E. Executive Order 13132 (Federalism) Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposed rule would not affect the nature of the relationship between EPA and States generally, for the rule would only apply to waters within Puerto Rico's jurisdiction. Further the proposed rule would not substantially affect the relationship of EPA and the Commonwealth of Puerto Rico, or the distribution of power or responsibilities between EPA and the various levels of government. Because Puerto Rico is already implementing these proposed antidegradation methods, this proposed rule would not change the Commonwealth's ability to implement these methods. Further, this proposed rule would not preclude Puerto Rico from adopting its own antidegradation methods that meet the requirements of the CWA into its own regulations. Thus, Executive Order 13132 does not apply to this rule. Although section 6 of Executive Order 13132 does not apply to this proposed rule, EPA did consult with the Commonwealth of Puerto Rico in developing this proposed rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials. F. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in Executive Order 13175, because no Indian Tribal Governments exist in Puerto Rico. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045 (Protection of Children From Environmental Health and Safety Risks) Executive Order 13045: “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:

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

(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed rule is not subject to the Executive Order because it is not economically significant and EPA does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. H. Executive Order 13211 (Actions That Significantly Affect Energy Supply, Distribution, or Use) This proposed rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. J. Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations) Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The antidegradation implementation methods set forth in this proposed rule are the same as the implementation methods Puerto Rico provided to EPA in 2004, which Puerto Rico is already implementing. K. Endangered Species Act EPA is transmitting this proposed rule to the FWS and NMFS for review and comment concurrent with the publication of today's notice. That transmittal constitutes EPA's initiation of informal consultation with the Services on this rulemaking, pursuant to section 7 of the Endangered Species Act and its implementing regulations. EPA will continue to work closely with the Services to ensure that the final rule will not adversely affect or jeopardize the continued existence of threatened or endangered species or their critical habitat. List of Subjects in 40 CFR Part 131 Environmental protection, Antidegradation, Water quality standards. Dated: May 10, 2007. Stephen L. Johnson, Administrator. For the reasons set forth in the preamble, EPA proposes to amend 40 CFR part 131 as follows: PART 131—WATER QUALITY STANDARDS 1. The authority citation for part 131 continues to read as follows: Authority: 33 U.S.C. 1251 *et seq.* Subpart D—[Amended] 2. Section 131.42 is added to read as follows: § 131.42 Antidegradation Implementation Methods for the Commonwealth of Puerto Rico.

(a)General Policy Statement.

(1)All point sources of pollution are subject to an antidegradation review.

(2)An antidegradation review shall be initiated as part of the Section 401—“Water Quality Certification Process” of the Clean Water Act.

(3)The 401 Certification Process shall follow the procedures established by the February 2, 1989 Resolution R-89-2-2 of the Governing Board of the Puerto Rico Environmental Quality Board (EQB).

(4)The following are not subject to an antidegradation review due to the fact that they are non discharge systems and are managed by specific applicable Puerto Rico regulations:

(i)All nonpoint sources of pollutants.

(ii)Underground Storage Tanks.

(iii)Underground Injection Facilities.

(5)The protection of water quality shall include the maintenance, migration, protection, and propagation of desirable species, including threatened and endangered species identified in the local and federal regulations.

(b)Definitions.

(1)All the definitions included in Article 1 of the Puerto Rico Water Quality Standards Regulation (PRWQSR), as amended, are applicable to this procedure.

(2)*High Quality Waters:*

(i)Are waters whose quality is better than the mandatory minimum level to support the CWA Section 101(a)(2) goals of propagation of fish, shellfish, wildlife and recreation in and on the waters. High Quality Waters are to be identified by EQB on a parameter-by-parameter basis.

(ii)[Reserved].

(3)*Outstanding National Resources Waters (ONRW):*

(i)Are waters classified as SA or SE in the PRWQSR, as amended, or any other water designated by Resolution of the Governing Board of EQB. ONRWs are waters that are recreationally or ecologically important, unique or sensitive.

(ii)[Reserved].

(c)Antidegradation Review Procedure.

(1)The antidegradation review will commence with the submission of the CWA Section 401 water quality certification request. EQB uses a parameter-by-parameter approach for the implementation of the anti-degradation policy and will review each parameter separately as it evaluates the request for certification. The 401 certification/antidegradation review shall comply with Article 4(B)(3) of the Puerto Rico Environmental Public Policy Act, (Law No. 416 of September 22, 2004, as amended (12 LPRA 8001 *et seq.* ). Compliance with Article 4(B)(3) shall be conducted in accordance with the Reglamento de la Junta de Calidad Ambiental para el Proceso de Presentación, Evaluación y Trámite de Documentos Ambientales (EQB's Environmental Documents Regulation). As part of the evaluation of the Environmental Document an alternatives analysis shall be conducted (12 LPRA 8001(a)(5), EQB's Environmental Documents Regulation, e.g., Rules 211E and 253C), and a public participation period and a public hearing shall be provided (12 LPRA 8001(a), EQB's Environmental Documents Regulation, Rule 254).

(2)In conducting an antidegradation review, EQB will sequentially apply the following steps:

(i)Determine which level of antidegradation applies:

(A)Tier 1—Protection of Existing and Designated Uses.

(B)Tier 2—Protection of High Quality Waters.

(C)Tier 3—Protection of ONRWs.

(ii)[Reserved].

(3)Review existing water quality data and other information submitted by the applicant. The applicant shall provide EQB with the information regarding the discharge, as required by the PRWQSR including, but not limited to the following:

(i)A description of the nature of the pollutants to be discharged.

(ii)Treatment technologies applied to the pollutants to be discharged.

(iii)Nature of the applicant's business.

(iv)Daily maximum and average flow to be discharged.

(v)Effluent characterization.

(vi)Effluent limitations requested to be applied to the discharge according to Section 6.11 of the PRWQSR.

(vii)Location of the point of discharge.

(viii)Receiving waterbody name.

(ix)Water quality data of the receiving waterbody.

(x)Receiving waterbody minimum flow (7Q2 and 7Q10) for stream waters.

(xi)Location of water intakes within the waterbody.

(xii)In the event that the proposed discharge will result in the lowering of water quality, data and information demonstrating that the discharge is necessary to accommodate important economic or social development in the area where the receiving waters are located.

(4)Determine if additional information or assessment is necessary to make the decision.

(5)Prepare an intent to issue or deny the 401 water quality certificate and publishes a notice in a newspaper of wide circulation in Puerto Rico informing the public of EQB's preliminary decision and granting a public participation period of at least thirty

(30)days.

(6)Address the comments received from the interested parties and consider such comments as part of the decision making process.

(7)Make the final determination to issue or deny the requested 401 certification. Such decision is subject to the reconsideration procedure established in Law 170 of August 12, 1988, *Ley de Procedimiento Administrativo Uniforme del Estado Libre Asociado de Puerto Rico* (3 LPRA 2165).

(d)Implementation Procedures.

(1)Activities Regulated by NPDES Permits

(i)Tier 1—Protection of Existing and Designated Uses:

(A)Tier 1 waters are: *(1)* Those waters of Puerto Rico (except Tier 2 or Tier 3 waters) identified as impaired and that have been included on the list required by Section 303(d) of the CWA; and *(2)* Those waters of Puerto Rico (except Tier 2 and Tier 3 waters) for which attainment of applicable water quality standards has been or is expected to be, achieved through implementation of effluent limitations more stringent than technology-based controls (Best Practicable Technology, Best Available Technology and Secondary Treatment).

(B)To implement Tier 1 antidegradation, EQB shall determine if a discharge would lower the water quality to the extent that it would no longer be sufficient to protect and maintain the existing and designated uses of that waterbody.

(C)When a waterbody has been affected by a parameter of concern causing it to be included on the 303(d) List, then EQB will not allow an increase of the concentration of the parameter of concern or pollutants affecting the parameter of concern in the waterbody. This no increase will be achieved by meeting the applicable water quality standards at the end of the pipe. Until such time that a Total Maximum Daily Load

(TMDL)is developed for the parameter of concern for the waterbody, no discharge will be allowed to cause or contribute to further degradation of the waterbody.

(D)When the assimilative capacity of a waterbody is not sufficient to ensure maintenance of the water quality standard for a parameter of concern with an additional load to the waterbody, EQB will not allow an increase of the concentration of the parameter of concern or pollutants affecting the parameter of concern in the waterbody. This no increase will be achieved by meeting the applicable water quality standards at the end of the pipe. Until such time that a TMDL is developed for the parameter of concern for the waterbody, no discharge will be allowed to cause or contribute to further degradation of the waterbody.

(ii)Tier 2—Protection of High Quality Waters:

(A)To verify that a waterbody is a high quality water for a parameter of concern which initiates a Tier 2 antidegradation review, EQB shall evaluate and determine: *(1)* The existing water quality of the waterbody; *(2)* The projected water quality of the waterbody pursuant to the procedures established in the applicable provisions of Articles 5 and 10 of the PRWQSR including but not limited to, Sections 5.2, 5.3, 5.4, 10.2, 10.3, 10.4, 10.5, and 10.6; *(3)* That the existing and designated uses of the waterbody will be fully maintained and protected in the event of a lowering of water quality. In multiple discharge situations, the effects of all discharges shall be evaluated through a waste load allocation analysis in accordance with the applicable provisions of Article 10 of the PRWQSR or the applicable provisions of Article 5 regarding mixing zones.

(B)In order to allow the lowering of water quality in high quality waters, the applicant must show and justify the necessity for such lowering of water quality through compliance with the requirements of Section 6.11 of the PRWQSR. EQB will not allow the entire assimilative capacity of a waterbody for a parameter of concern to be allocated to a discharger, if the necessity of the requested effluent limitation for the parameter of concern is not demonstrated to the full satisfaction of EQB.

(iii)Tier 3—Protection of ONRWs:

(A)EQB may designate a water as Class SA or SE (ONRWs) through a Resolution (PRWQSR Sections 2.1.1 and 2.2.1). Additionally, any interested party may nominate a specific water to be classified as an ONRW and the Governing Board of EQB will make the final determination. Classifying a water as an ONRW may result in the water being named in either Section 2.1.1 or 2.2.2 of the PRWQSR, which would require an amendment of the PRWQSR. The process for amending the PRWQSR, including public participation, is set forth in Section 8.6 of said regulation.

(B)The existing characteristics of Class SA and SE waters shall not be altered, except by natural causes, in order to preserve the existing natural phenomena. *(1)* No point source discharge will be allowed in ONRWs. *(2)* [Reserved].

(2)Activities Regulated by CWA Section 404 or Rivers and Harbors Action Section 10 Permits (Discharge of dredged or fill material)

(i)EQB will only allow the discharge of dredged or fill material into a wetland if it can be demonstrated that such discharge will not have an unacceptable adverse impact either individually or in combination with other activities affecting the wetland of concern. The impacts to the water quality or the aquatic or other life in the wetland due to the discharge of dredged or fill material should be avoided, minimized and mitigated.

(ii)The discharge of dredged or fill material shall not be certified if there is a practicable alternative to the proposed discharge which would have less adverse impact on the recipient ecosystem, so long as the alternative does not have other more significant adverse environmental consequences. Activities which are not water dependent are presumed to have practicable alternatives, unless the applicant clearly demonstrates otherwise. No discharge of dredged and fill material shall be certified unless appropriated and practicable steps have been taken which minimize potential adverse impacts of the discharge on the recipient ecosystem. The discharge of dredged or fill material to ONRWs, however, shall be governed by paragraph (d)(1)(iii) of this section. [FR Doc. E7-9409 Filed 5-16-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [I.D. 041307D] Fisheries of the Exclusive Economic Zone Off Alaska; Allocating Bering Sea/Aleutian Islands Fishery Resources; Notice of Limited Access Privilege Program Public Workshop AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notification of public workshop. SUMMARY: NMFS will present a public workshop on the proposed program to implement the Amendment 80 Program (Program) for potentially eligible participants and other interested parties. The Program would implement a limited access privilege program

(LAPP)for specific groundfish fisheries in the Bering Sea and Aleutian Islands management area (BSAI). At the workshop, NMFS will provide an overview of the proposed Program, discuss the key proposed Program elements, and answer questions. NMFS is conducting this public workshop to provide assistance to fishery participants in understanding and reviewing this proposed Program. DATES: The workshop will be held on Wednesday, May 23, 2007, from 1 p.m. to 4 p.m. Pacific standard time. ADDRESSES: The workshop will be held at the Leif Erikson Lodge, 2245 NW 57th Street, Seattle, WA 98119. FOR FURTHER INFORMATION CONTACT: Glenn Merrill, 907-586-7228 or *glenn.merrill@noaa.gov* . SUPPLEMENTARY INFORMATION: NMFS intends to publish a proposed rule that would implement a LAPP for Amendment 80 to the Fishery Management Plan for BSAI Groundfish (FMP). Among other things, Amendment 80 would allocate specific BSAI groundfish resources among a defined group of harvesters under a LAPP; limit the bycatch of halibut and crab resources; assign Amendment 80 quota share

(QS)that could be used to yield an exclusive harvest privilege on an annual basis; allow Amendment 80 QS holders to form a cooperative with other Amendment 80 QS holders on an annual basis to receive an exclusive harvest privilege; implement use caps to limit the amount of Amendment 80 QS a person could hold; limit the total amount of catch in other groundfish fisheries that could be taken by participants in the Program; ensure minimum retention of groundfish while fishing in the BSAI; and establish necessary monitoring and enforcement standards. Amendment 80 was approved by the North Pacific Fishery Management Council (Council) on June 9, 2006. In addition to other laws, the Program is specifically designed to meet the requirements of: • Section 219 of the Consolidated Appropriations Act of 2005 (Public Law 108-447; December 8, 2004), which defined the Amendment 80 sector and implemented a capacity reduction program for several catcher/processor sectors; • Section 416 of the Coast Guard and Maritime Transportation Act of 2006 (Public Law 109-241; July 11, 2006), which amended provisions of the Community Development Quota

(CDQ)Program in the Magnuson-Stevens Fishery Conservation and Management Act (MSA); and • The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (Public Law 109-479, January 12, 2007), which modified provisions related to the CDQ Program and instituted other measures applicable to LAPPs. NMFS anticipates that a proposed rule implementing the Program will be published by mid-May. NMFS is conducting this public workshop to provide assistance to fishery participants in understanding and reviewing the proposed requirements. At the workshop, NMFS will provide an overview of the proposed Program, and discuss the key Program elements, including: quota share application; cooperative and limited access participation provisions; cooperative quota transfer provisions; measures to establish sideboard limits to protect non-LAPP fishery participants, the appeals process; catch accounting; monitoring and enforcement; and electronic reporting. Additionally, NMFS will answer questions from workshop participants. For further information on the Program, please visit the NMFS Alaska Region Web site at *http://www.fakr.noaa.gov* . Special Accommodations This workshop is physically accessible to people with disabilities. Requests for special accommodations should be directed to Glenn Merrill (see FOR FURTHER INFORMATION CONTACT ) at least 5 working days before the workshop date. Dated: May 11, 2007. James P. Burgess Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-9530 Filed 5-16-07; 8:45 am] BILLING CODE 3510-22-S 72 95 Thursday, May 17, 2007 Notices DEPARTMENT OF AGRICULTURE Forest Service Nez Perce National Forest, Idaho County; ID; Designated Route and Motorized Vehicle Use AGENCY: Forest Service, USDA. ACTION: Notice of intent to prepare an environmental impact statement. SUMMARY: The Nez Perce National Forest is undergoing planning efforts to comply with the designated routes and areas for motor vehicle use rule of November 9, 2005. The forest is proposing to analyze motorized routes and areas forest-wide to determine a base system, while considering the needs of the users, resources effects, rule requirements, and fiscal capabilities for continued maintenance. DATES: Comments concerning the scope of the analysis must be received by 45 days after the date of publication in the **Federal Register** . The draft environmental impact statement is expected June of 2008 and the final environmental impact statement is expected February 2009. ADDRESSES: Send written comments to Jane Cottrell, Forest Supervisor, 1005 Highway 13, Grangeville, ID 83530, Attn: Designated Routes and Areas for Motor Vehicle Use. The Nez Perce National Forest has scheduled public meetings, to be held in three separate locations, to introduce this project and discuss the most effective ways the public can become involved. Meetings will take place in Elk City, ID on May 29, in Grangeville, ID on May 30, and in Riggins, ID on May 31, 2007. Additional information will be provided in the local newspaper prior to meeting times. FOR FURTHER INFORMATION CONTACT: Alexandra Botello, Project Lead, 1005 Highway 13, Grangeville, ID 83530, Attn: Designated Routes and Areas for Motor Vehicle Use. SUPPLEMENTARY INFORMATION: Purpose and Need for Action In November 2005, the USDA published the *Travel Management; Designated Routes and Areas for Motor Vehicle Use; Final Rule [36 CFR parts 212, 251, 261, and 295] (the rule)* . This rule requires designations of those roads, trails, and areas that are open to motor vehicle use. Designations will be made by class of vehicle, and if appropriate, by time of year. The final rule prohibits the use of motor vehicles off the designated system, as well as the use of motor vehicles on routes and in areas not consistent with those designations. The rule seeks to create a system of routes and areas where motorized use is appropriate. The primary difference from our current system that will occur when implementing the rule is that routes and areas are closed to motorized use unless specifically designated open. The following vehicles and uses are exempt from Provisions in the rule [36 CFR 212.51]: Aircraft, Watercraft, Over-snow vehicles, Limited administrative use by Forest Service, Use of any fire, military, emergency, of law enforcement vehicles for emergency purposes, Authorized use of any combat or combat support vehicle for national defense purposes, Law enforcement [in] response to violations of law, and, any motor vehicle use that is specifically authorized under a written authorization issued under Federal law or regulation. Current direction for the Nez Perce National Forest, under the *Nez Perce National Forest Plan

(1987)Amendment No. 2, October 1988,* allows cross-country motorized travel unless otherwise designated closed. The Designated Routes and Areas for Motor Vehicle Use planning effort is designed to bring the direction for the Nez Perce National Forest in compliance with the Executive orders of the rule that “direct Federal agencies to ensure that the use of off road vehicles on public lands will be controlled and directed so as to protect the resources of those lands, to promote the safety of all users of those lands, and to minimize conflicts among various uses of those lands”. Proposed Action The proposed action is to designate the current National Forest System

(NFS)motorized routes on the Nez Perce National Forest, under class of vehicle and seasons of use, as they are presently (April, 2007). This action would close the forest to cross-country motorized travel except in specifically designated areas or to over snow vehicle use (see attached map and legend). The proposed action also includes a distance 300 feet from center of road which allows for motorized use for the purposes of dispersed camping only, in areas where geography and resource protection are not limiting factors ( *e.g.,* cliffs, streams, etc.). This action does not supersede CFR 261.12 National Forest System roads and trails; * * * *prohibition

(c)Damaging and leaving in a damaged condition any such road, trail, or segment thereof.* Nor will this action supersede CFR 261.15 Use of vehicles off roads; *It is prohibited to operate any vehicle off National Forest System, State, or County roads;

(h)In a manner which damages or unreasonably disturbs the land, wildlife, or vegetative resources.* Responsible Official Jane Cottrell, Forest Supervisor, Nez Perce National Forest, 1005 Highway 13, Grangeville, ID 83530 is the responsible official for this proposal. Nature of Decision To Be Made The Nez Perce National Forest will decide what routes and areas are appropriate to designate and manage for motor vehicle use by class of vehicle and seasons of use. Additionally, we will determine whether to amend the Nez Perce Forest Plan to remove certain existing standards applicable to motorized routes and area management. Scoping Process The U.S. Forest Service uses the process required by the National Environmental Policy Act (NEPA). NEPA requires a systematic, interdisciplinary approach to ensure integrated application of the natural and social sciences and the environmental design arts in any planning and decisionmaking that affects the human environment (42 U.S.C. 4332(2)(A)). Comments are accepted for 45 days after notification in the **Federal Register.** These comments help identify significant issues and/or eliminate nonsignificant issues from detailed study in the environmental impact statement. Comment Requested This notice of intent initiates the scoping process which guides the development of the environmental impact statement. The Nez Perce National Forest is seeing comments and issues you may have regarding this project. Comments are most useful if they are specific. *Early Notice of Importance of Public Participation in Subsequent Environmental Review:* A draft environmental impact statement will be prepared for comment. The comment period on the draft environmental impact statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the **Federal Register** . The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions. *Vermont Yankee Nuclear Power Corp.* v. *NRDC,* 435 U.S. 519,553 (1978). Also, environmental objections that could be raised at the draft environmental impact statement stage but that are not raised until after completion of the final environmental impact statement may be waived or dismissed by the courts. *City of Angoon* v. *Hodel,* 803 F.2d 1016, 1022 (9th Cir. 1986) and *Wisconsin Heritages, Inc.* v. *Harris,* 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the 45 day comment period so that comments and objections are made available to the Forest Service at a time when it can meaningfully consider them and respond to them in the final environmental impact statement. To assist the Forest Service in identifying and considering issues nd concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points. Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection. (Authority: 40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21.) Dated: May 10, 2007. Jane L. Cottrell, Nez Perce National Forest Supervisor. [FR Doc. 07-2419 Filed 5-16-07; 8:45 am]

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