Proposed Rules. Notice of proposed rulemaking (NPRM)

54,689 words·~249 min read·/register/2007/05/30/07-2649

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

BILLING CODE 3510-22-S 72 103 Wednesday, May 30, 2007 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28157; Directorate Identifier 2007-CE-046-AD] RIN 2120-AA64 Airworthiness Directives; Pilatus Aircraft Ltd. Model PC-6 Series 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: This Airworthiness Directive

(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: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:

(816)329-4059; 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-2007-28157; Directorate Identifier 2007-CE-046-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No: 2007-0114, dated May 2, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: This Airworthiness Directive

(AD)is prompted due to the discovery of cracks in the upper wing strut fittings of some PC-6 aircraft. It is possible that the spherical bearing of the wing strut fittings installed in the underwing can be loose in the fitting or cannot rotate because of corrosion. In this condition, the joint cannot function as designed and fatigue cracks may then develop. Undetected cracks in this area could lead to failure of upper attachment fitting. This could result in the failure of the wing structure with subsequent loss of control of the airplane. In order to correct and monitor this situation, the present AD mandates a one-time inspection of the wing strut fittings and replacement of damaged wing strut fittings with new ones. This AD also requires examination of the spherical bearings installed in the wing strut fittings and their replacement for bearings that do not pass the examination criteria. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Pilatus Aircraft Ltd. has issued Service Bulletin No. 57-004, dated April 16, 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 50 products of U.S. registry. We also estimate that it would take about 7 work-hours 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 $28,000, or $560 per product. In addition, we estimate that any necessary follow-on actions would take about 15 work-hours and require parts costing $2,500 for a cost of $3,700 per fitting or $7,400 per product if both fittings are replaced. 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: **Pilatus Aircraft Ltd.:** Docket No. FAA-2007-28157; Directorate Identifier 2007-CE-046-AD. Comments Due Date

(a)We must receive comments by June 29, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to Models PC-6, PC-6-H1, PC-6-H2, PC-6/350, PC-6/350-H1, PC-6/350-H2, PC-6/A, PC-6/A-H1, PC-6/A-H2, PC-6/B-H2, PC-6/B1-H2, PC-6/B2-H2, PC-6/B2-H4, PC-6/C-H2, and PC-6/C1-H2 airplanes; manufacturer serial numbers

(MSN)101 through 951, and MSN 2001 through 2092; that are certificated in any category. These airplanes are also identified as Fairchild Republic Company PC-6 airplanes, Fairchild Industries PC-6 airplanes, Fairchild Heli Porter PC-6 airplanes, or Fairchild-Hiller Corporation PC-6 airplanes. Subject

(d)Air Transport Association of America

(ATA)Code 57: Wings. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: This Airworthiness Directive

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

(1)*For MSN 2001 through MSN 2092:* Within the next 100 hours time-in-service

(TIS)on the upper wing strut fitting after the effective date of this AD or within 3 months after the effective date of this AD, whichever occurs first, and repetitively thereafter at intervals not to exceed 12 months, do the actions specified in paragraph (f)(3) of this AD.

(2)*For MSN 101 through MSN 951* do the following actions, as applicable:

(i)If the upper wing strut fitting has less than 3,500 hours TIS or has been installed for less than 84 months (7 years): Within the next 1,000 hours TIS on the upper wing strut fitting after the effective date of this AD or within 24 months after the effective date of this AD without exceeding 3,600 hours TIS or 87 months (7 years, 3 months), whichever occurs first, and repetitively thereafter at intervals not to exceed 12 months, do the actions specified in paragraph (f)(3) of this AD, or;

(ii)If the upper wing strut fitting has 3,500 or more hours TIS or has been installed for 84 months (7 years) or longer: Within the next 100 hours TIS on the upper wing strut fitting after the effective date of this AD or within 3 months after the effective date of this AD, whichever occurs first, and repetitively thereafter at intervals not to exceed 12 months, do the actions specified in paragraph (f)(3) of this AD. Note 1: If the TIS of the upper wing strut fittings cannot be positively determined by a review in the airplane maintenance records, then by default the upper wing strut fittings were installed from the date of original Certificate of Airworthiness.

(3)Do the following at the times specified in paragraph (f)(1) or (f)(2) of this AD:

(i)Perform a visual and non-destructive inspection of the upper wing strut fittings for cracks following the Accomplishment Instructions in Pilatus Aircraft Ltd. Service Bulletin No. 57-004, dated April 16, 2007.

(ii)Examine for conformity the spherical bearings following the Accomplishment Instructions in Pilatus Aircraft Ltd. Service Bulletin No. 57-004, dated April 16, 2007.

(4)If during any inspection required by paragraph (f)(3)(i) of this AD, cracks are found in the upper wing strut fitting, before further flight replace the wing strut fitting with a new part number (P/N) 111.35.06.185 (left side) or P/N 111.35.06.186 (right side) following the Accomplishment Instructions in Pilatus Aircraft Ltd. Service Bulletin No. 57-004, dated April 16, 2007. Replacement of the upper wing strut fitting does not terminate the repetitive inspection specified in paragraph (f)(3) of this AD.

(5)If during any inspection required by paragraph (f)(3)(ii) of this AD, the spherical bearing is found not in conformity, replace the bearing with a new P/N 944.61.00.109 following the Accomplishment Instructions in Pilatus Aircraft Ltd. Service Bulletin No. 57-004, dated April 16, 2007. Replacement of the spherical bearing does not terminate the repetitive inspection specified in paragraph (f)(3) of this AD.

(6)Report to Pilatus Aircraft Ltd. Customer Liaison Manager results of the inspection/examination using Table 1 of Pilatus Aircraft Ltd. Service Bulletin No. 57-004, dated April 16, 2007. FAA AD Differences Note 2: This AD differs from the MCAI and/or service information as follows:

(1)The FAA AD is requiring repetitive inspections and reporting results to the manufacturer, not just a one-time inspection and report as required in the MCAI.

(2)The Service Bulletin specifies “subsequent inspections for cracks will be included in Chapter 5 of the Aircraft Maintenance Manual (AMM).” The only way we

(FAA)can mandate these repetitive inspections is through an AD. 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: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:

(816)329-4059; 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 European Aviation Safety Agency

(EASA)AD No: 2007-0114, dated May 02, 2007; and Pilatus Aircraft Ltd. Service Bulletin No. 57-004, dated April 16, 2007, for related information. Issued in Kansas City, Missouri, on May 23, 2007. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-10315 Filed 5-29-07; 8:45 am] BILLING CODE 4910-13-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2006-0540; FRL-8319-7] Approval and Promulgation of Air Quality Implementation Plans; Indiana; Oxides of Nitrogen Regulations, Phase II AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The EPA is proposing to approve Indiana's oxides of nitrogen (NO X ) rules which satisfy the requirements of EPA's NO X SIP Call Phase II Rule (the Phase II Rule). We are proposing to approve these rules based on Indiana's demonstration that the State will meet the Phase II Rule requirements through rules regulating stationary internal combustion

(IC)engines. Limiting NO X emissions from IC engines will enable the State to meet the Phase II budget of 4,244 tons during the ozone season, thereby improving air quality and protecting the health of Indiana citizens. We are also proposing to approve other changes to Indiana's NO X rules. These are minor clerical corrections and changes in definitions made by Indiana to conform to EPA's Phase II Rule. Citizens who wish to comment on this proposed approval of the Indiana Phase II NO X plan are encouraged to do so within the timeframe noted below. DATES: Comments must be received on or before June 29, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-OAR-2006-0540, by one of the following methods: 1. *www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail: mooney.john@epa.gov.* 3. *Fax:*

(312)886-5824. 4. *Mail:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. 5. *Hand Delivery:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R05-OAR-2006-0540. 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* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional instructions on submitting comments, go to Section I of the SUPPLEMENTARY INFORMATION section of this document. *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 the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We recommend that you telephone John Paskevicz, Engineer, at

(312)886-6084 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: John Paskevicz, Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), U. S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,

(312)886-6084, *paskevicz.john@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows: I. What should I consider as I prepare my comments for EPA? II. Background III. Who is affected by the new Phase II rule and the amendments to the Phase I rules? IV. What would approval of this rule accomplish? V. How are owners and operators expected to comply with the new requirement? VI. What action is EPA taking today? VII. Statutory and Executive Order Reviews. I. What should I consider as I prepare my comments for EPA? When submitting comments, remember to: 1. Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). 2. Follow directions—The EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations

(CFR)part or section number. 3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. 4. Describe any assumptions and provide any technical information and/or data that you used. 5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. 6. Provide specific examples to illustrate your concerns, and suggest alternatives. 7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. 8. Make sure to submit your comments by the comment period deadline identified. II. Background On October 27, 1998 (63 FR 57356), EPA issued the NO X SIP Call in which it required 22 states, including Indiana, to prepare plans to reduce the transport of ozone throughout the eastern part of the United States. This was to be accomplished by reducing emissions of NO X from selected source categories, primarily major fuel burning sources, using available cost-effective measures. The rule established a cap on emissions of NO X from each state. States had flexibility in determining which fuel burning sources were to be included in their rules. For the most part, states targeted NO X reductions from electric utilities and other large industrial boilers, cement kilns, and IC engines as sources which could be controlled in a cost-effective manner. Background information in this regard is available from documents prepared by EPA, and can be found at *http://www.epa.gov/ttn/rto/otag/index.html.* Some states and industry challenged the rule. In *Michigan* v. *EPA,* 213 F.3d 663 (D.C.Cir. 2000), *cert. denied,* 121 S. Ct. 1225 (2001), the Court largely upheld EPA's rulemaking. It did, however, remand a portion of the rule concerning IC engines to EPA for further notice and public comment. Subsequent to the Court's decision, EPA proceeded initially with rules concerning electric generating units (EGU), industrial boilers (non-EGU) and cement kilns as Phase I sources. The IC engines fell into the Phase II group, to be addressed at a later date. Indiana adopted its Phase I rules and submitted them to EPA. We approved the Phase I rules on November 8, 2001 (66 FR 56465). On April 21, 2004 (69 FR 21603), EPA issued the Phase II Rule. It required most States with Phase I budget programs to submit a Phase II plan to achieve incremental reductions not addressed by Phase I rules. The Phase II Rule also included amendments to the Phase I rules affecting definitions for EGUs, and identified the additional NO X budget reductions (incremental reductions) that would be required by regulating large (greater than one ton per day emissions) IC engines. The amount of incremental reductions required resulted from the re-calculation of the overall budget to reflect a control level of 82 percent from natural gas-fired lean-burn IC engines with greater than one ton per day NO X emissions. IDEM drafted the new rule (326 IAC 10-5, NO X Reduction Program from IC Engines) based on guidance from EPA dated September 19, 2004, which contained an example model rule. The State also made some clerical changes to 326 IAC 10-3 and 10-4 as fix-ups to IDEM's existing NO X SIP. The public process for the State's IC engine rule started on May 4, 2005, and ended on October 5, 2005. The Indiana Air Pollution Control Board (IAPCB) adopted the rules and they became effective on February 26, 2006. New rule 326 IAC 10-5 applies to any person who owns or operates a large reciprocating stationary IC engine that emits more than one ton of NO X per day during the ozone season. At the time of the State rulemaking, the only two subject Indiana companies were ANR Pipeline and Panhandle Eastern Company, which operate most of the gas-fired engines in the State. These companies own a total of 17 large lean-burn engines and many smaller engines throughout the State serving compressor stations located on pipelines that transport natural gas to customers. The IAPCB also adopted minor changes to its Phase I rules in 326 IAC 10-3 and 10-4, to conform to changes EPA had made to its rule. On March 8, 2006, the Indiana Department of Environmental Management

(IDEM)submitted its Phase II rules to EPA. IDEM sent additional follow-up information addressing the budget demonstration for this source category in a June 22, 2006, letter requesting EPA approval. IDEM also asked in this submittal for EPA to approve the minor changes to the Phase I NO X rules. The State's budget demonstration, which contains enforceable emission limits for Indiana IC engines, uses the information in the source compliance plans to conclude that these sources will meet the incremental reduction called for in the Phase II Rule. The overall NO X budget for Indiana was originally calculated using emissions data from base year 1995. This number was based on the assumption that IC engines would be controlled at a highly cost-effective (90 percent) control level. However, the Court ruled in *Michigan* v. *EPA* that EPA had failed to provide adequate notice of the 90 percent control level assumed for IC engines. In the original proposed rule, EPA had proposed a range of control levels from 82 to 91 percent for the IC engine portion of the budget. As a result of the Court's decision, EPA set the control level at 82 percent for gas-fired lean-burn engines and recalculated the budget. The recalculation resulted in an overall budget number which for most states is smaller than the budget published by EPA on March 2, 2000. The incremental difference is the target reduction which Indiana is required to (and expects) to achieve with the Phase II Rule. In the Phase II Rule, EPA calculated the 2007 base year emissions inventory from which Indiana needed additional reductions of 4,244 tons per ozone season, based upon achieving an 82 percent reduction at all IC engines in Indiana with greater than one ton per day of NO X emissions. EPA allows states flexibility to use company-wide emissions averaging to achieve the needed emissions reductions. (See August 22, 2002 memorandum from Lydia Wegman, Director, Air Quality Strategies and Standards Division, Office of Air Quality Planning and Standards, to EPA Air Division Directors). EPA's example model rule is sufficiently flexible to allow companies with multiple affected engines to comply using a specific emission rate limit for each engine listed in the source compliance plan. (see *http://epa.gov/ttncaaa1/t1/reports/23814qnaasfin.pdf;* undated memorandum, Phase II of the NO X SIP Call: Q&As and Example Rule). Emission rate limits must be reflected in a Federally enforceable permit, the enforcement mechanism for the compliance plan, which shows that the control measures are adequate to meet the State's Phase II budget incremental difference. The Indiana rule requires sources to show that the emission reductions associated with a source will meet the facility seasonal NO X tonnage reduction assigned to the source. Sources are required to project 2007 base emissions and then show the emissions reductions associated with the control technology or other reduction methodology (engine replacement, for example). The Indiana budget demonstration shows that sources will meet the required seasonal tonnage reductions by reducing emissions from various other engines in the inventory, so that the overall reductions are equivalent to achieving 82 percent reductions on IC engines with greater than one ton per day NO X emissions. Some of the engines use combustion modification and some engines have been replaced with newer engines. Demonstrated reductions resulting from the replacement of older engines with newer engines in some cases exceeds 82 percent. More importantly, the compliance plans for the two companies, as noted in the Indiana budget demonstration, show that the sources meet the NO X SIP Call emission reductions specified for Indiana. III. Who is affected by the new Phase II rule and the amendments to the Phase I rules? New rule 326 IAC 10-5 applies to any person who owns or operates a large stationary reciprocating IC engine and other smaller stationary IC engines that are included in a compliance plan. A large IC engine is defined as an engine that emits more than one ton of NO X per ozone season day, based on operation during the 1995 ozone season. Pipeline energy companies are the major users of large IC engines and the State developed its budget demonstration based on control of engines used in this energy transport industry. The minor amendments to 326 IAC 10-3 and 326 IAC 10-4 clarify regulatory language and correct various clerical errors. They also incorporate changes applicable to EGUs and non-EGUs, made in accordance with EPA's Phase II Rule, including the definitions of “EGU” and “non-EGU” as applied to co-generation units. IV. What would approval of this rule accomplish? Approval of rule 326 IAC 10-05 will provide a means by which the State of Indiana will meet the required reductions of NO X emissions from IC engines during the ozone season. The State rule affects NO X SIP Call IC engines as well as any other stationary IC engine subject to NO X control in the State's rule. The emission reductions for some large engines will be permanent and year-round resulting from low emission combustion measures retrofitted to existing engines. Low emission combustion measures cannot be cycled off once the changes are made to the engine. The combustion control technology is a permanent, physical change to the design and operation of the engine which, when implemented, is expected to reduce emissions of NO X year-round. A source subject to these rules may achieve the required reductions through a facility-wide or State-wide averaging program approved by Indiana. The State's rules include provisions which the sources must follow to demonstrate compliance with the rules. The environmental benefits and health implications are expected to be permanent. The amendments to the plan also make clarifying clerical and formatting corrections to previously approved rules 326 IAC 10-3 and 326 IAC 10-4. They incorporate changes contained in EPA's Phase II Rule applicable to EGUs and non-EGUs, including the definitions of “EGU” and “non-EGU” as applied to co-generation units. These amendments will bring the originally approved Phase I NO X State rules into conformance with the Clean Air Act

(CAA)and current EPA requirements. V. How are owners and operators expected to comply with the new requirement? Owners of large IC engines were required to submit to IDEM, by May 1, 2006, compliance plans showing how the companies will meet the emission reductions in their respective systems. The State's budget demonstration shows that the owners of the large NO X SIP Call engines will reach the required reductions by reducing emissions from all of the engines in their respective systems and not just from the large, one-ton-per-day, engines. These reductions shown in the budget demonstration are taken from the compliance plans submitted to IDEM by the two companies currently subject to the rule, and must be achieved by May 1, 2007. The applicable emission rate, along with monitoring, record keeping and reporting requirements, must be incorporated into Federally enforceable State permits to be issued to the companies. As public documents, these permits and compliance reports can be viewed by the public to verify compliance with the State's plan. Known subject sources have met the first increment of compliance by submitting to the State of Indiana compliance plans as required by rule. The next major increment is completion of the requirements listed in the source plans which bring the sources into compliance. This step, which includes the application of low emission technology (or other controls) or source averaging or both, must be completed by May 2007. EPA published the incremental budget for affected States, including Indiana, in the April 21, 2004, **Federal Register** (69 FR 21604). The State's budget demonstration shows that, through the use of low emission combustion technology, installation of new units to replace old engines, and the use of averaging NO X emissions system-wide by the two companies identified above, the State will be able to reduce emissions of NO X to meet the Phase II incremental difference of 4244 tons of NO X for the ozone season. The State rule 326 IAC 10-5-3 includes a requirement that an owner or operator of a large IC engine shall not operate an affected engine during the ozone period unless there is a compliance plan which meets the requirements of the rule. The compliance plan was required to be submitted to the State by May 1, 2006, and the rules prohibit operation of affected engines after May 1, 2007, if they are not in compliance with the requirements. Included in the compliance plan is a requirement that the projected NO X emissions from the engine, in grams per break horsepower-hour, be included in a Federally enforceable permit. This information will enable the State to determine if reductions from the covered sources should meet the Phase II budget increment. The failure of a source to meet the required NO X reductions is a violation of the provisions of the permit. The State of Indiana is expected to determine non-compliance with its rules by reviewing monitoring and testing information submitted by the owners and operators of the affected engines. In addition, because the compliance plan will be included in Federally enforceable permits, EPA has the authority to enforce the applicable provisions. VI. What action is EPA taking today? EPA is proposing to approve the Phase II NO X rules submitted by the State. We are taking this action because we have determined that the rules satisfy the requirements of the CAA and the Phase II Rule. The State has shown, through its budget demonstration, that it can achieve the Phase II budget increment through source compliance with the State's rules affecting IC engines and the State's permitting program. Meeting the Phase II budget increment and the Phase I increment means the State will meet its total overall ozone season NO X budget and bring about reductions in ozone concentrations in the State and downwind from Indiana. EPA is also proposing to approve other changes to Indiana's NO X SIP. These other changes are minor clerical corrections and changes in definitions to conform to the changes made by EPA in the NO X Phase II Rule. Citizens who wish to comment on this proposed approval of the Indiana plan are encouraged to do so within the timeframe noted in the front of this action. VI. Statutory and Executive Order Reviews Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, September 30, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget. Paperwork Reduction Act This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq* .). Regulatory Flexibility Act This proposed 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.* ). Unfunded Mandates Reform Act 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). Executive Order 13132: Federalism This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Executive Order 13045: Protection of Children From Environmental Health and Safety Risks This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it proposes approval of a State rule implementing a Federal standard. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant regulatory action,” 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). National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impractical. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a SIP submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a program submission that otherwise satisfies the provisions of the CAA. Therefore, the requirements of section 12(d) of the NTTAA do not apply. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements. Dated: May 18, 2007. Gary Gulezian, Acting Regional Administrator, Region 5. [FR Doc. E7-10317 Filed 5-29-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2007-0236; FRL-8316-1] Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). These revisions concern Oxides of Nitrogen (NO X ) emissions from Boilers, Steam Generators and Process Heaters (2.0 MMBtu/hr to 5.0 MMBtu/hr, and 0.075 MMBtu/hr to 2.0 MMBtu/hr); Dryers, Dehydrators, and Ovens; Natural Gas-Fired, Fan-Type Residential Central Furnaces; and Solid Fuel Fired Boilers, Steam Generators and Process Heaters. We are proposing to approve local rules to regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act). DATES: Any comments on this proposal must arrive by June 29, 2007. ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-2007-0236, by one of the following methods: 1. *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the on-line instructions. 2. *E-mail: steckel.andrew@epa.gov.* 3. *Mail or deliver:* Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. *Instructions:* All comments will be included in the public docket without change and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through *http://www.regulations.gov* or e-mail. *Http://www.regulations.gov* is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. *Docket:* The index to the docket for this action is available electronically at *http://www.regulations.gov* and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Francisco Dóñez, EPA Region IX,

(415)972-3956, *Donez.Francisco@epa.gov.* SUPPLEMENTARY INFORMATION: This proposal addresses the following local rules: SJVUAPCD Rules 4307, 4308, 4309, 4352, and 4905. In the Rules and Regulations section of this **Federal Register** , we are approving these local rules in a direct final action without prior proposal because we believe these SIP revisions are not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment. We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action. Dated: April 30, 2007. Laura Yoshii, Acting Regional Administrator, Region IX. [FR Doc. E7-10238 Filed 5-29-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R03-OAR-2007-0175; FRL-8319-9] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Redesignation of the Reading Ozone Nonattainment Area to Attainment and Approval of the Area's Maintenance Plan and 2002 Base Year Inventory AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a redesignation request and a State Implementation Plan

(SIP)revisions submitted by the Commonwealth of Pennsylvania. The Pennsylvania Department of Environmental Protection (PADEP) is requesting that the Reading, Berks County, Pennsylvania ozone nonattainment area (Reading Area) be redesignated as attainment for the 8-hour ozone national ambient air quality standard (NAAQS). EPA is proposing to approve the ozone redesignation request for Reading Area. In conjunction with its redesignation request, PADEP submitted a SIP revision consisting of a maintenance plan for Reading Area that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after redesignation and that amends the existing 1-hour ozone maintenance plan for the Reading Area. EPA is proposing to make a determination that the Reading Area has attained the 8-hour ozone NAAQS, based upon three years of complete, quality-assured ambient air quality ozone monitoring data for 2003-2005. EPA's proposed approval of the 8-hour ozone redesignation request is based on its determination that the Reading Area has met the criteria for redesignation to attainment specified in the Clean Air Act (CAA). In addition, PADEP submitted a 2002 base year inventory for the Reading Area which EPA is proposing to approve as a SIP revision. EPA is also providing information on the status of its adequacy determination for the motor vehicle emission budgets (MVEBs) that are identified in the Reading Area maintenance plan for purposes of transportation conformity, which EPA is also proposing to approve. EPA is proposing approval of the redesignation request, and the maintenance plan and the 2002 base year inventory SIP revisions in accordance with the requirements of the CAA. DATES: Written comments must be received on or before June 29, 2007. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-0175 by one of the following methods: A. *www.regulations.gov.* Follow the on-line instructions for submitting comments. B. *E-mail: miller.linda@epa.gov.* C. *Mail:* EPA-R03-OAR-2007-0175, 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-2007-0175. 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* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *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 *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 Pennsylvania Department of Environmental Protection, Bureau of Air Quality, P.O. Box 8468, Harrisburg, Pennsylvania 17105. FOR FURTHER INFORMATION CONTACT: Christopher Cripps,

(215)814-2179, or by e-mail at *cripps.christopher@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we”, “us”, or “our” is used, we mean EPA. Table of Contents I. What Actions Are EPA Proposing To Take? II. What Is the Background for These Proposed Actions? III. What Are the Criteria for Redesignation to Attainment? IV. Why is EPA Taking These Actions? V. What Would Be the Effect of These Actions? VI. What Is EPA's Analysis of the State's Request and SIP Revision? VII. Are the Motor Vehicle Emissions Budgets Established and Identified in the Maintenance Plan for the Reading Area Adequate and Approvable? VIII. Proposed Actions IX. Statutory and Executive Order Reviews I. What Actions Are EPA Proposing To Take? On January 25, 2007, PADEP formally submitted a request to redesignate the Reading Area from nonattainment to attainment of the 8-hour NAAQS for ozone. Concurrently, on January 25, 2007, PADEP submitted a maintenance plan for the Reading Area as a SIP revision to ensure continued attainment of the 8-hour NAAQS for at least 10 years after redesignation and continued attainment of the 1-hour ozone NAAQS until 2018. PADEP submitted a supplement to the technical support for the maintenance plan on April 12, 2007. (Hereafter, when we say the maintenance plan was submitted on January 25, 2007 we mean that it submitted on January 25, 2007, with a supplement submitted on April 12, 2007.) PADEP also submitted a 2002 base year inventory as a SIP revision on January 25, 2007. The Reading Area is currently designated as a basic 8-hour ozone nonattainment area and is covered by a maintenance plan for the 1-hour NAAQS. EPA is proposing to determine that the Reading Area has attained the 8-hour ozone NAAQS and that it has met the requirements for redesignation pursuant to section 107(d)(3)(E) of the CAA. EPA is, therefore, proposing to approve the redesignation request to change the designation of the Reading Area from nonattainment to attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve the Reading Area maintenance plan as a SIP revision, such approval being one of the CAA criteria for redesignation to attainment status. The maintenance plan is designed to ensure continued attainment in the Reading Area for the next ten years. EPA is also proposing to approve the 2002 base year inventory for the Reading Area as a SIP revision. Additionally, EPA is announcing its action on the adequacy process for the MVEBs identified in the Reading Area maintenance plan, and proposing to approve the MVEBs identified for volatile organic compounds

(VOC)and nitrogen oxides (NO X ) for transportation conformity purposes. II. What Is the Background for These Proposed Actions? A. General Ground-level ozone is not emitted directly by sources. Rather, emissions of NO X and VOC react in the presence of sunlight to form ground-level ozone. The air pollutants NO X and VOC are referred to as precursors of ozone. The CAA establishes a process for air quality management through the attainment and maintenance of the NAAQS. On July 18, 1997, EPA promulgated a revised 8-hour ozone standard of 0.08 parts per million (ppm). This new standard is more stringent than the previous 1-hour ozone standard. EPA designated, as nonattainment, any area violating the 8-hour ozone NAAQS based on the air quality data for the three years of 2001-2003. These were the most recent three years of data at the time EPA designated 8-hour areas. The Reading Area was designated as basic 8-hour ozone nonattainment status in a **Federal Register** notice signed on April 15, 2004 and published on April 30, 2004 (69 FR 23857), based on its exceedance of the 8-hour health-based standard for ozone during the years 2001-2003. On April 30, 2004, EPA issued a final rule (69 FR 23951, 23996) to revoke the 1-hour ozone NAAQS in the Reading Area (as well as most other areas of the country) effective June 15, 2005. See 40 CFR 50.9(b); 69 FR at 23996 (April 30, 2004); and see 70 FR 44470 (August 3, 2005). However, on December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard. (69 FR 23951, April 30, 2004). *South Coast Air Quality Management Dist.* v. *EPA,* 472 F.3d 882 (D.C.Cir. 2006) (hereafter “ *South Coast* .”). The Court held that certain provisions of EPA's Phase 1 Rule were inconsistent with the requirements of the Clean Air Act. The Court rejected EPA's reasons for implementing the 8-hour standard in nonattainment areas under Subpart 1 in lieu of subpart 2 of Title I, part D of the Act. The Court also held that EPA improperly failed to retain four measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations:

(1)Nonattainment area New Source Review

(NSR)requirements based on an area's 1-hour nonattainment classification;

(2)Section 185 penalty fees for 1-hour severe or extreme nonattainment areas;

(3)measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the Act, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS; and

(4)the certain conformity requirements for certain types of federal actions. The Court upheld EPA's authority to revoke the 1-hour standard provided there were adequate anti-backsliding provisions. Elsewhere in this document, mainly in section VI. B. “The Reading Area Has Met All Applicable Requirements under Section 110 and Part D of the CAA and Has a Fully Approved SIP Under Section 110(k) of the CAA,” EPA discusses its rationale why the decision in *South Coast* is not an impediment to redesignating the Reading Area to attainment of the 8-hour ozone NAAQS. The CAA, Title I, Part D, contains two sets of provisions—subpart 1 and subpart 2—that address planning and control requirements for nonattainment areas. Subpart 1 (which EPA refers to as “basic” nonattainment) contains general, less prescriptive requirements for nonattainment areas for any pollutant—including ozone—governed by a NAAQS. Subpart 2 (which EPA refers to as “classified” nonattainment) provides more specific requirements for ozone nonattainment areas. Some 8-hour ozone nonattainment areas are subject only to the provisions of subpart 1. Other areas are also subject to the provisions of subpart 2. Under EPA's 8-hour ozone implementation rule, signed on April 15, 2004, an area was classified under subpart 2 based on its 8-hour ozone design value (i.e., the 3-year average annual fourth-highest daily maximum 8-hour average ozone concentration), if it had a 1-hour design value at or above 0.121 ppm (the lowest 1-hour design value in the CAA for subpart 2 requirements). All other areas are covered under subpart 1, based upon their 8-hour design values. In 2004, Reading Area was designated a basic 8-hour ozone nonattainment area based upon air quality monitoring data from 2001-2003, and therefore, is subject to the requirements of subpart 1 of Part D. Under 40 CFR part 50, the 8-hour ozone standard is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). See 69 FR 23857, (April 30, 2004) for further information. Ambient air quality monitoring data for the 3-year period must meet data completeness requirements. The data completeness requirements are met when the average percent of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined in Appendix I of 40 CFR part 50. The ozone monitoring data from the 3-year period of 2003-2005 indicates that the Reading Area has a design value of 0.080 ppm. Therefore, the ambient ozone data for the Reading Area indicates no violations of the 8-hour ozone standard. B. The Reading Area The Reading Area consists solely of Berks County, Pennsylvania and was designated as basic 8-hour ozone nonattainment status in an April 30, 2004 Final Rule (69 FR 23857). Prior to its designation as an 8-hour basic ozone nonattainment area, the Reading Area was designated an incomplete data nonattainment area for the 1-hour standard. See 56 FR 56694 at 56822, November 6, 1991. Prior to its designation as an 8-hour ozone nonattainment area, the Reading Area had been designated and classified as a moderate ozone nonattainment area for the 1-hour standard. See 56 FR 56694 at 56822, November 6, 1991. On May 7, 1997 (62 FR 24826), EPA approved a request to redesignate the Reading area to attainment of the 1-hour ozone standard and approved a maintenance plan SIP revision. On January 25, 2007, PADEP requested that the Reading Area be redesignated to attainment for the 8-hour ozone standard. The redesignation request included 3 years of complete, quality-assured data for the period of 2003-2005, indicating that the 8-hour NAAQS for ozone had been achieved in the Reading Area. The data satisfies the CAA requirements when the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration (commonly referred to as the area's design value) is less than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). Under the CAA, a nonattainment area may be redesignated if sufficient complete, quality-assured data is available to determine that the area has attained the standard and the area meets the other CAA redesignation requirements set forth in section 107(d)(3)(E). III. What Are the Criteria for Redesignation to Attainment? The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA, allows for redesignation, providing that:

(1)EPA determines that the area has attained the applicable NAAQS;

(2)EPA has fully approved the applicable implementation plan for the area under section 110(k);

(3)EPA determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;

(4)EPA has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and

(5)The State containing such area has met all requirements applicable to the area under section 110 and Part D. EPA provided guidance on redesignation in the General Preamble for the Implementation of Title I of the CAA Amendments of 1990, on April 16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents: • “Ozone and Carbon Monoxide Design Value Calculations”, Memorandum from Bill Laxton, June 18, 1990; • “Maintenance Plans for Redesignation of Ozone and Carbon Monoxide Nonattainment Areas,” Memorandum from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, April 30, 1992; • “Contingency Measures for Ozone and Carbon Monoxide

(CO)Redesignations,” Memorandum from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992; • “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992; • “State Implementation Plan

(SIP)Actions Submitted in Response to Clean Air Act

(Act)Deadlines,” Memorandum from John Calcagni Director, Air Quality Management Division, October 28, 1992; • “Technical Support Documents (TSD's) for Redesignation Ozone and Carbon Monoxide

(CO)Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993; • “State Implementation Plan

(SIP)Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide

(CO)National Ambient Air Quality Standards (NAAQS) On or After November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993 • Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, to Air Division Directors, Regions 1-10, “Use of Actual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas,” dated November 30, 1993; • “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994; and • “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995. IV. Why Is EPA Taking These Actions? On January 25, 2007, PADEP requested redesignation of the Reading Area to attainment for the 8-hour ozone standard. On January 25, 2007, PADEP submitted a maintenance plan for the Reading Area as a SIP revision to assure continued attainment at least 10 years after redesignation. EPA has determined that the Reading Area has attained the standard and has met the requirements for redesignation set forth in section 107(d)(3)(E). V. What Would Be the Effect of These Actions? Approval of the redesignation request would change the designation of the Reading Area from nonattainment to attainment for the 8-hour ozone NAAQS found at 40 CFR part 81. It would also incorporate into the Pennsylvania SIP a 2002 base year inventory and a maintenance plan ensuring continued attainment of the 8-hour ozone NAAQS in the Reading Area for the next 10 years. The maintenance plan includes contingency measures to remedy any future violations of the 8-hour NAAQS (should they occur), and identifies the MVEBs for NO X and VOC for transportation conformity purposes for the years 2004, 2009 and 2018. These motor vehicle emissions

(2004)and MVEBs (2009 and 2018) are displayed in the following table: Table 1.—Motor Vehicle Emissions Budgets in Tons Per Day [Rounded to one decimal place] Year VOC NO X 2009 13.1 21.3 2018 7.5 9.0 VI. What Is EPA's Analysis of the State's Request and SIP Revision? EPA is proposing to determine that Reading Area has attained the 8-hour ozone standard and that all other redesignation criteria have been met. The following is a description of how PADEP's January 25, 2007, submittal satisfies the requirements of section 107(d)(3)(E) of the CAA. A. The Reading Area Has Attained the Ozone NAAQS In the Reading Area, there is one monitor that measures air quality with respect to ozone. As part of its redesignation request, Pennsylvania submitted ozone monitoring data for the years 2003-2005 (the most recent three years of data available as of the time of the redesignation request) for the Reading Area. This data has been quality assured and is recorded in AQS. Based upon this data, EPA is proposing to determine that the Reading Area has attained the 8-hour ozone NAAQS. For the 8-hour ozone standard, an area may be considered to be attaining the 8-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.10 and Appendix I of part 50, based on three complete and consecutive calendar years of quality-assured air quality monitoring data. To attain this standard, the design value, which is the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations, measured at each monitor within the area over each year must not exceed the ozone standard of 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, Appendix I, the standard is attained if the design value is 0.084 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58, and recorded in EPA's Air Quality System (AQS). PADEP uses the AQS as the permanent database to maintain its data and quality assures the data transfers and content for accuracy. The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment. The fourth-high 8-hour daily maximum concentrations, along with the three-year average, are summarized in Table 2A. Table 2A.—Reading Nonattainment Area Fourth Highest 8-Hour Ozone Values; UGI Co Mongantown Rd and Prospect St Reading Berks Co, AQS ID 42-011-0009 Year Annual 4th high reading

(ppm)2003 0.080 2004 0.076 2005 0.085 The average for the 3-year period 2003 through 2005 is 0.080 ppm. The air quality data for 2003-2005 show that the Reading Area has attained the standard with a design value of 0.080 ppm. The data collected at the Reading Area monitor satisfies the CAA requirement that the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm. PADEP's request for redesignation for the Reading Area indicates that the data was quality assured in accordance with 40 CFR part 58. In addition, as discussed below with respect to the maintenance plan, PADEP has committed to continue monitoring in accordance with 40 CFR part 58. EPA believes this conclusion remains valid that after review of the quality assured 2006 data because the design value for 2004-2006 would be 0.079 ppm. In summary, EPA has determined that the data submitted by Pennsylvania and taken from AQS indicates that Reading Area has attained the 8-hour ozone NAAQS. Based upon the ozone monitoring data for the years 2003-2005, EPA believes that the Reading Area is still in attainment for the 1-hour ozone NAAQS. For the 1-hour ozone standard, an area may be considered to be attaining the 1-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.9 and Appendix H of part 50, based on three complete and consecutive calendar years of quality-assured air quality monitoring data. Compliance is determined on a monitor-by-monitor basis within the area. To demonstrate attainment, i.e., compliance with this standard, the annual average of the number of expected exceedances of the 1-hour standard over a 3-year period must be less than or equal to 1. (To account for missing data, adjustment of the actual number of monitored exceedances of the standard yields the annual expected number of exceedances at an air quality monitoring site.) Table 2B provides a summary of the number of expected exceedances for each of the years 2003 through 2005 and three-year annual average. Table 2B.—Reading Nonattainment Area Number of Expected Exceedances of the 1-Hour Ozone Standard; UGI Co Mongantown Rd and Prospect St Reading Berks Co, AQS ID 42-011-0009 Year Number of expected exceedances 2003 1.0 2004 0.0 2005 0.0 The average number of expected exceedances for the 3-year period 2003 through 2005 is 0.3. In summary, EPA has determined that the data submitted by Pennsylvania and taken from AQS indicates that Reading Area is maintaining air quality that conforms to the 1-hour ozone NAAQS. EPA believes this conclusion remains valid after review of the quality assured 2006 data because no exceedances were recorded in the Reading Area in 2006. B. The Reading Area Has Met All Applicable Requirements Under Section 110 and Part D of the CAA and Has a Fully Approved SIP Under Section 110(k) of the CAA EPA has determined that the Reading Area has met all SIP requirements applicable for purposes of this redesignation under section 110 of the CAA (General SIP Requirements) and that it meets all applicable SIP requirements under Part D of Title I of the CAA, in accordance with section 107(d)(3)(E)(v). In addition, EPA has determined that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these proposed determinations, EPA ascertained what requirements are applicable to the area, and determined that the applicable portions of the SIP meeting these requirements are fully approved under section 110(k) of the CAA. We note that SIPs must be fully approved only with respect to applicable requirements. The September 4, 1992 Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992) describes EPA's interpretation of section 107(d)(3)(E) with respect to the timing of applicable requirements. Under this interpretation, to qualify for redesignation, States requesting redesignation to attainment must meet only the relevant CAA requirements that come due prior to the submittal of a complete redesignation request. See also Michael Shapiro memorandum, September 17, 1993, and 60 FR 12459, 12465-66, (March 7, 1995) (redesignation of Detroit-Ann Arbor). Applicable requirements of the CAA that come due subsequent to the area's submittal of a complete redesignation request remain applicable until a redesignation is approved, but are not required as a prerequisite to redesignation. Section 175A(c) of the CAA. *Sierra Club* v. *EPA,* 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424, 25427 (May 12, 2003) (redesignation of St. Louis). This section also sets forth EPA's views on the potential effect of the Court's ruling in *South Coast* on this redesignation action. For the reasons set forth below, EPA does not believe that the Court's ruling alters any requirements relevant to this redesignation action so as to preclude redesignation, and does not prevent EPA from finalizing this redesignation. EPA believes that the Court's decision, as it currently stands or as it may be modified based upon any petition for rehearing that has been filed, imposes no impediment to moving forward with redesignation of this area to attainment, because in either circumstance redesignation is appropriate under the relevant redesignation provisions of the Act and longstanding policies regarding redesignation requests. 1. Section 110 General SIP Requirements Section 110(a)(2) of Title I of the CAA delineates the general requirements for a SIP, which include enforceable emissions limitations and other control measures, means, or techniques, provisions for the establishment and operation of appropriate devices necessary to collect data on ambient air quality, and programs to enforce the limitations. The general SIP elements and requirements set forth in section 110(a)(2) include, but are not limited to, the following: • Submittal of a SIP that has been adopted by the State after reasonable public notice and hearing; • Provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; • Implementation of a source permit program; provisions for the implementation of Part C requirement (Prevention of Significant Deterioration (PSD)); • Provisions for the implementation of Part D requirements for New Source Review

(NSR)permit programs; • Provisions for air pollution modeling; and • Provisions for public and local agency participation in planning and emission control rule development. Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a State from significantly contributing to air quality problems in another State. To implement this provision, EPA has required certain States to establish programs to address transport of air pollutants in accordance with the NO X SIP Call, October 27, 1998 (63 FR 57356), amendments to the NO X SIP Call, May 14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25162). However, the section 110(a)(2)(D) requirements for a State are not linked with a particular nonattainment area's designation and classification in that State. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a State regardless of the designation of any one particular area in the State. Thus, we do not believe that these requirements should be construed to be applicable requirements for purposes of redesignation. In addition, EPA believes that the other section 110 elements not connected with nonattainment plan submissions and not linked with an area's attainment status are not applicable requirements for purposes of redesignation. The Reading Area will still be subject to these requirements after it is redesignated. The section 110 and Part D requirements, which are linked with a particular area's designation and classification, are the relevant measures to evaluate in reviewing a redesignation request. This policy is consistent with EPA's existing policy on applicability of conformity (i.e., for redesignations) and oxygenated fuels requirement. See Reading, Pennsylvania, proposed and final rulemakings, (61 FR 53174-53176, October 10, 1996), (62 FR 24816, May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati redesignation (65 FR at 37890, June 19, 2000), and in the Pittsburgh redesignation (66 FR at 50399, October 19, 2001). Similarly, with respect to the NO X SIP Call rules, EPA noted in its Phase 1 Final Rule to Implement the 8-hour Ozone NAAQS, that the NO X SIP Call rules are not “an ‘applicable requirement' for purposes of section 110(l) because the NO X rules apply regardless of an area's attainment or nonattainment status for the 8-hour (or the 1-hour) NAAQS.” 69 FR 23951, 23983 (April 30, 2004). EPA believes that section 110 elements not linked to the area's nonattainment status are not applicable for purposes of redesignation. Any section 110 requirements that are linked to the Part D requirements for 8-hour ozone nonattainment areas are not yet due, because, as we explain later in this notice, no Part D requirements applicable for purposes of redesignation under the 8-hour standard became due prior to submission of the redesignation request. Because the Pennsylvania SIP satisfies all of the applicable general SIP elements and requirements set forth in section 110(a)(2), EPA concludes that Pennsylvania has satisfied the criterion of section 107(d)(3)(E) regarding section 110 of the Act. 2. Part D Nonattainment Area Requirements Under the 8-Hour Standard Sections 172-176 of the CAA, found in subpart 1 of Part D, set forth the basic nonattainment requirements for all nonattainment areas. Section 182 of the CAA, found in subpart 2 of Part D, establishes additional specific requirements depending on the area's nonattainment classification. Under an April 30, 2004, final rule (69 FR 23951), EPA classified the Reading Area as a subpart 1 nonattainment area under the 8-hour ozone standard. EPA believes that no subpart 1 requirements need to be approved prior to redesignation. Of the nonattainment plan provisions due under section 172, none were due prior to redesignation because EPA's November 29, 2005 final rule (70 FR 71612) set the deadline for these requirements at 3 years after resignation which for the Reading Area is June 15, 2007. With respect to the 8-hour standard, the Court's ruling in *South Coast* rejected EPA's reasons for classifying areas under Subpart 1 for the 8-hour standard, and remanded that matter to the Agency. Consequently, it is possible that this area could, during a remand to EPA, be reclassified under Subpart 2. Although any future decision by EPA to classify this area under subpart 2 might trigger additional future requirements for the area, EPA believes that this does not mean that redesignation cannot now go forward. This belief is based upon

(1)EPA's longstanding policy of evaluating requirements in accordance with the requirements due at the time the request is submitted; and

(1)A base-year inventory requirement pursuant to section 182(a)(1) of the CAA, and,

(2)the emissions statement requirement pursuant to section 182(a)(3)(B) of the CAA. As we have stated previously in this document, these requirements are not yet due for purpose of redesignation of the Reading Area, but nevertheless, Pennsylvania already has in its approved SIP an emissions statement rule for the 1-hour standard which covers all portions of the Reading Area and which EPA believes satisfies the emissions statement requirement for the 8-hour standard under section 182(a)(3)(B). This regulation is codified at Section 135.21 “Emission statements” in Chapter 135 of 40 CFR 52.2020(c)(1); see also 60 FR 2881, January 12, 1995. With respect to the base year inventory requirement, in this notice of proposed rulemaking, EPA is proposing to approve the 2002 base year inventory SIP concurrently with the maintenance plan as fulfilling the requirements, if necessary, of both section 182(a)(1) and section 172(c)(3) of the CAA. With respect to the 8-hour standard, EPA proposes to determine that Pennsylvania's SIP meets all applicable SIP requirements under Part D of the CAA. In addition to the fact that Part D requirements applicable for purposes of redesignation did not become due prior to submission of the redesignation request, EPA believes it is reasonable to interpret the general conformity and NSR requirements as not requiring approval prior to redesignation. With respect to section 176, Conformity Requirements, section 176(c) of the CAA requires States to establish criteria and procedures to ensure that Federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects developed, funded or approved under Title 23 U.S.C. and the Federal Transit Act (“transportation conformity”) as well as to all other Federally supported or funded projects (“general conformity”). State conformity revisions must be consistent with Federal conformity regulations relating to consultation, enforcement and enforceability that the CAA required EPA to promulgate. EPA believes it is reasonable to interpret the conformity SIP requirements as not applying for purposes of evaluating the redesignation request under section 107(d) since State conformity rules are still required after redesignation and Federal conformity rules apply where State rules have not been approved. See *Wall* v. *EPA,* 265 F. 3d 426, 438-440 (6th Cir. 2001), upholding this interpretation. See also 60 FR 62748 (December 7, 1995). In the case of the Reading Area, EPA has also determined that before being redesignated, the Reading Area need not comply with the requirement that a NSR program be approved prior to redesignation. EPA has determined that areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the standard without Part D NSR in effect. The rationale for this position is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D NSR Requirements or Areas Requesting Redesignation to Attainment.” See rulemakings for Detroit, Michigan (60 FR at 12467-68); Cleveland-Akron-Lorrain, Ohio (61 FR at 20458, 20469-70); Louisville, Kentucky (66 FR 53665, 53669 October 23, 2001); Grand Rapids, Michigan (61 FR at 31831, 31834-37, June 21, 1996). In the case of the Reading Area, the Chapter 127 Part D NSR regulations in the Pennsylvania SIP (codified at 40 CFR 52.2020(c)(1)) explicitly apply the requirements for NSR in section 184 of the CAA to ozone attainment areas within the OTR. The OTR NSR requirements are more stringent than that required for a subpart 1/basic 8-hour ozone nonattainment area. On October 19, 2001 (66 FR 53094), EPA fully approved Pennsylvania's NSR SIP revision consisting of Pennsylvania's Chapter 127 Part D NSR regulations that cover the Reading Area. EPA has also interpreted the section 184 OTR requirements, including the NSR program, as not being applicable for purposes of redesignation. The rational for this is based on two factors. First, the requirement to submit SIP revisions for the section 184 requirements continues to apply to areas in the OTR after redesignation to attainment. Therefore, the State remains obligated to have NSR, as well as RACT, even after redesignation. Second, the section 184 control measures are region-wide requirements and do not apply to the Reading Area by virtue of the area's designation and classification. Rather, section 184 measures are required in the Reading Area because it is located in the OTR. See 61 FR 53174, 53175-53176 (October 10, 1996) and 62 FR 24826, 24830-32 (May 7, 1997). 3. Part D Nonattainment Area Requirements Under the 1-Hour Standard As stated previously in this document, on May 7, 1997 (62 FR 24826), EPA approved a request to redesignate the Reading Area to attainment of the 1-hour ozone standard and approved a maintenance plan SIP revision. In order to redesignate the area to attainment of the 1-hour ozone standard, EPA determined that Pennsylvania had fulfilled all Part D requirements applicable to the Reading Area as a consequence of its classification as a moderate ozone nonattainment. See Reading final (62 FR 24826, May 7, 1997) and proposed rules (61 FR 53174, October 10, 1996). With respect to the requirements under the 1-hour standard, the Reading Area was an attainment area subject to a Clean Air Act section 175A maintenance plan under the 1-hour standard. The Court's ruling in *South Coast* does not impact redesignation requests for these types of areas. First, there are no conformity requirements that are relevant for redesignation requests, including the requirement to submit a transportation conformity SIP. 1 As we have previously stated in this document, EPA believes that it is reasonable to interpret the conformity SIP requirements as not applying for purposes of evaluating a redesignation request under section 107(d) because state conformity rules are still required after redesignation and federal conformity rules apply where state rules have not been approved. See 40 CFR 51.390. See *Wall* v. *EPA,* 265 F.3d 426 (6th Cir. 2001), upholding this interpretation. See also 60 FR 62748 (December 7, 1995) (Tampa, FL redesignation). 1 Clean Air Act section 176(c)(4)(E) currently requires States to submit revisions to their SIPs to reflect certain federal criteria and procedures for determining transportation conformity. Transportation conformity SIPs are different from the motor vehicle emissions budgets that are established in control strategy SIPs and maintenance plans. Second, with respect to the three other anti-backsliding provisions for the 1-hour standard that the Court found were not properly retained, the Reading Area is an attainment area subject to a maintenance plan for the 1-hour standard, and the NSR, contingency measure (pursuant to section 172(c)(9) or 182(c)(9)), and fee provision requirements no longer apply to an area that has been redesignated to attainment of the 1-hour standard. Thus the decision in *South Coast* should not alter any requirements that would preclude EPA from finalizing the redesignation of this area. 4. Transport Region Requirements All areas in the Ozone Transport Region (OTR), both attainment and nonattainment, are subject to additional control requirements under section 184 for the purpose of reducing interstate transport of emissions that may contribute to downwind ozone nonattainment. The section 184 requirements include reasonably available control technology (RACT), NSR, enhanced vehicle inspection and maintenance, and Stage II vapor recovery or a comparable measure. In the case of the Reading Area, which is located in the OTR, nonattainment NSR will be applicable after redesignation. On October 19, 2001 (66 FR 53094), EPA fully approved Pennsylvania's NSR SIP revision consisting of Pennsylvania's Chapter 127 Part D NSR regulations that cover the Reading Area. The Chapter 127 Part D NSR regulations in the Pennsylvania SIP explicitly apply the requirements for NSR of section 184 of the CAA to attainment areas within the OTR. EPA has also interpreted the section 184 OTR requirements, including NSR, as not being applicable for purposes of redesignation. See 61 FR 53174, October 10, 1996 and 62 FR 24826, May 7, 1997 (Reading, Pennsylvania Redesignation). The rationale for this is based on two considerations. First, the requirement to submit SIP revisions for the section 184 requirements continues to apply to areas in the OTR after redesignation to attainment. Therefore, the State remains obligated to have NSR, as well as RACT, and I/M even after redesignation. Second, the section 184 control measures are region-wide requirements and do not apply to the area by virtue of the area's nonattainment designation and classification, and thus are properly considered not relevant to an action changing an area's designation. See 61 FR 53174 at 53175-53176 (October 10, 1996) and 62 FR 24826 at 24830-24832 (May 7, 1997). 5. The Reading Area Has a Fully Approved SIP for the Purposes of Redesignation EPA has fully approved the Pennsylvania SIP for the purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request. Calcagni Memo, p. 3; *Southwestern Pennsylvania Growth Alliance* v. *Browner,* 144 F. 3d 984, 989-90 (6th Cir. 1998), *Wall* v. *EPA,* 265 F.3d 426 (6th Cir. 2001), plus any additional measures it may approve in conjunction with a redesignation action. See 68 FR at 25425 (May 12, 2003) and citations therein. The Reading Area was a 1-hour maintenance area which had been a moderate nonattainment area at the time of its designation as a basic 8-hour ozone nonattainment area on April 30, 2004 (69 FR 23857). No Part D submittal requirements have come due prior to the submittal of the 8-hour maintenance plan for the area. Therefore, all Part D submittal requirements have been fulfilled. Because there are no outstanding SIP submission requirements applicable for the purposes of redesignation of the Reading Area, the applicable implementation plan satisfies all pertinent SIP requirements. As indicated previously, EPA believes that the section 110 elements not connected with Part D nonattainment plan submissions and not linked to the area's nonattainment status are not applicable requirements for purposes of redesignation. EPA also believes that Pennsylvania has fulfilled all 8-hour Part D requirements applicable for purposes of redesignation. C. The Air Quality Improvement in the Reading Area Is Due to Permanent and Enforceable Reductions in Emissions Resulting From Implementation of the SIP and Applicable Federal Air Pollution Control Regulations and Other Permanent and Enforceable Reductions EPA believes that the Commonwealth has demonstrated that the observed air quality improvement in the Reading Area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal measures, and other State-adopted measures. Emissions reductions attributable to these rules are shown in Table 3. Table 3.—Total VOC and NO X Emissions for 2002 and 2004 in Tons Per Day

(tpd)Year Point Area Nonroad Mobile Total Volatile Organic Compounds

(VOC)Year 2002 4.7 21.8 8.4 20.1 55.0 Year 2004 4.7 21.7 8.1 17.0 51.5 Diff. (02-04) 0.0 0.1 0.3 3.1 3.5 Nitrogen Oxides (NO X ) Year 2002 14.5 2.1 10.9 34.1 61.6 Year 2004 16.0 2.1 10.3 29.8 58.2 Difference (02-04) −1.5 0.0 0.6 4.3 3.4 Between 2002 and 2004, VOC emissions were reduced by 3.5 tpd, and NO X emissions were reduced by 3.3 tpd, due to the following permanent and enforceable measures implemented in the Reading Area:

(1)Stationary Area Sources

(a)Solvent Cleaning (68 FR 2206, January 16, 2003)

(b)Portable Fuel Containers (69 FR 70893, December 8, 2004)

(2)Highway Vehicle Sources

(a)Federal Motor Vehicle Control Program (FMVCP), Tier 1 (56 FR 25724, June 5, 1991) and Tier 2 (65 FR 6698, February 10, 2000)

(b)Federal Heavy Duty Engines and Vehicles Standards (62 FR 54694, October 21, 1997 and 65 FR 59896, October 6, 2000)

(c)National Low Emission Vehicle

(NLEV)(64 FR 72564, December 28, 1999)

(d)Vehicle Safety Inspection Program (70 FR 58313, October 6, 2005)

(3)Nonroad Sources—Federal Nonroad Engine and Fuels (40 CFR parts 89 to 91, and 1039, 1048 and 1051) EPA believes that permanent and enforceable emissions reductions are the cause of the long-term improvement in ozone levels and are the cause of the area achieving attainment of the 8-hour ozone standard. D. The Reading Area Has a Fully Approved Maintenance Plan Pursuant to Section 175A of the CAA In conjunction with its request to redesignate the Reading Area to attainment of the 8-hour ozone NAAQS, Pennsylvania submitted for approval under section 175A of the CAA the January 25, 2007, maintenance plan to fulfill section 175A(a) requirement for the 8-hour standard as well as the section 175A(b) requirement for a 1-hour maintenance plan. Pennsylvania submitted this SIP revision to provide for maintenance of the 8-hour ozone NAAQS in the Reading Area for at least 10 years after redesignation and for continued maintenance of the 1-hour NAAQS until 2018 which is a total of 21 years after the area was redesignated to attainment of the 1-hour NAAQS. Once approved, the maintenance plan for the ozone NAAQS will ensure that the SIP for the Reading Area meets the requirements of the CAA regarding maintenance of the applicable ozone standards including the 8-hour standard. 1. What is required in a maintenance plan? Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A(a), the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after approval of a redesignation of an area to attainment. Section 175A(b) requires that eight years after the redesignation the State must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the next 10-year period following the initial 10-year period. That is, the maintenance demonstration under section 175A(b) must ensure maintenance for a total of 20 years after redesignation to attainment. For the Reading Area the total demonstrated period of maintenance for the 1-hour NAAQS under section 175A(b) would be until 2017 which is 20 years after the area's redesignation to attainment in 1997. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures, with a schedule for implementation, as EPA deems necessary to assure prompt correction of any future 8-hour ozone violations. Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The Calcagni memorandum dated September 4, 1992, provides additional guidance on the content of a maintenance plan. An ozone maintenance plan should address the following provisions:

(1)An attainment emissions inventory;

(2)A maintenance demonstration;

(3)A monitoring network;

(4)Verification of continued attainment; and

(5)A contingency plan. 2. Analysis of the Reading Area Maintenance Plan a. Attainment Inventory—An attainment inventory includes the emissions during the time period associated with the monitoring data showing attainment. An attainment year of 2004 was used for the Reading Area since it is a reasonable year within the 3-year attainment period of 2003-2005 and accounts for reductions attributable to implementation of the CAA requirements to date. These 2004 levels of emissions are representative of attainment of both the 1-hour and 8-hour ozone NAAQS. PADEP prepared comprehensive VOC and NO X emissions inventories for the Reading Area, including point, area, mobile on-road, and mobile non-road sources for a base year of 2002. To develop the NO X and VOC base year emissions inventories, PADEP used the following approaches and sources of data: *(i) Point source emissions* —Pennsylvania requires owners and operators of larger facilities to submit annual production figures and emission calculations each year. Throughput data are multiplied by emission factors from Factor Information Retrieval

(FIRE)Data System and EPA's publication series AP-42 and are based on Source Classification Code (SCC). Each process has at least one SCC assigned to it. If the owners and operators of facilities provide more accurate emission data based upon other factors, these emission estimates supersede those calculated using SCC codes. *(ii) Area source emissions* —Area source emissions are generally estimated by multiplying an emission factor by some known indicator or collective activity for each area source category at the county level. Pennsylvania estimates emissions from area sources using emission factors and SCC codes in a method similar to that used for stationary point sources. Emission factors may also be derived from research and guidance documents if those documents are more accurate than FIRE and AP-42 factors. Throughput estimates are derived from county-level activity data, by apportioning national and statewide activity data to counties, from census numbers, and from county employee numbers. County employee numbers are based upon North American Industry Classification System (NAICS) codes to establish that those numbers are specific to the industry covered. *(iii) On-road mobile sources* —PADEP employs an emissions estimation methodology that uses current EPA-approved highway vehicle emission model, MOBILE 6.2, to estimate highway vehicle emissions. The Reading Area highway vehicle emissions in 2004 were estimated using MOBILE 6.2 and PENNDOT estimates of vehicles miles traveled

(VMT)by vehicle type and roadway type. *(iv) Mobile nonroad emissions* —The 2002 emissions for the majority of nonroad emission source categories were estimated using the EPA NONROAD 2005 model. The NONROAD model estimates emissions for diesel, gasoline, liquefied petroleum gasoline, and compressed natural gas-fueled nonroad equipment types and includes growth factors. The NONROAD model does not estimate emissions from aircraft or locomotives. For 2002 locomotive emissions, PADEP projected emissions from a 1999 survey using national fuel information and EPA emission and conversion factors. There are no commercial aircraft operations in the Reading Area. For 2002 aircraft emissions, PADEP estimated emissions using small aircraft operation statistics from *http://www.airnav.com,* and emission factors and operational characteristics in the EPA-approved model, Emissions and Dispersion Modeling System (EDMS). The 2004 attainment year VOC and NO X emissions for the Reading Area are summarized along with the 2009 and 2018 projected emissions for this area in Tables 4 and 5, which cover the demonstration of maintenance for this area. EPA has concluded that Pennsylvania has adequately derived and documented the 2004 attainment year VOC and NO X emissions for this area.

(b)Maintenance Demonstration—On January 25, 2007, PADEP submitted a SIP revision to supplement its January 25, 2007, redesignation request. The submittal by PADEP consists of the maintenance plan as required by section 175A of the CAA. The Reading Area plan shows maintenance of the 8-hour and 1-hour ozone NAAQS by demonstrating that current and future emissions of VOC and NO X remain at or below the attainment year 2004 emissions levels throughout the Reading Area through the year 2018. The Reading Area maintenance demonstration need not be based on modeling. See *Wall* v. *EPA, supra; Sierra Club* v. *EPA, supra. See also,* 66 FR at 53099-53100; 68 FR at 25430-32. Tables 4 and 5 specify the VOC and NO X emissions for the Reading Area for 2004, 2009, and 2018. PADEP chose 2009 as an interim year in the 10-year maintenance demonstration period to demonstrate that the VOC and NO X emissions are not projected to increase above the 2004 attainment level during the time of the 10-year maintenance period. Table 4.—Total VOC Emissions for 2004-2018

(tpd)Source category 2004 VOC emissions 2009 VOC emissions 2018 VOC emissions Mobile* 17.0 13.1 7.5 Nonroad 8.1 6.7 5.6 Area 21.7 21.6 24.0 Point 4.7 3.4 4.3 Total 51.5 44.8 41.4 * Includes safety margin for 2009 and 2018 identified in the motor vehicle emission budgets for transportation conformity. Table 5.—Total NO X Emissions 2004-2018

(tpd)Source category 2004 NO X emissions 2009 NO X emissions 2018 NO X emissions Mobile* 29.8 21.3 9.0 Nonroad 10.3 8.4 5.4 Area 2.1 2.2 2.3 Point 16.0 16.8 19.2 Total 58.2 48.7 35.9 * Includes safety margin for 2009 and 2018 identified in the motor vehicle emission budgets for transportation conformity. The following are permanent and enforceable control measures to ensure emissions during the maintenance period are equal to or less than the emissions in the attainment year:

(1)Pennsylvania's Portable Fuel Containers (December 8, 2004, 69 FR 70893);

(2)Pennsylvania's Consumer Products ( December 8, 2004, 69 FR 70895); and

(3)Pennsylvania's Architectural and Industrial Maintenance

(1)FMVCP for passenger vehicles and light-duty trucks and cleaner gasoline (2009 and 2018 fleet)—Tier 1 and Tier 2;

(2)NLEV Program, which includes the Pennsylvania's Clean Vehicle Program for passenger vehicles and light-duty trucks (69 FR 72564, December 28, 1999);

(3)Heavy duty diesel on-road (2004/2007) and low-sulfur on-road

(2006)(66 FR 5002, January 18, 2001); and

(4)Non-road emissions standards

(2008)and off-road diesel fuel (2007/2010) (69 FR 38958, June 29, 2004).

(5)Pennsylvania's vehicle emission inspection/maintenance program (October 6, 2005, 70 FR 58313). In addition to the permanent and enforceable measures, the Clean Air Interstate Rule (CAIR), promulgated May 12, 2005 (70 FR 25162) should have positive impacts on Pennsylvania's air quality. CAIR, which will be implemented in the eastern portion of the country in two phases (2009 and 2015) should reduce long range transport of ozone precursors, which will have a beneficial effect on the air quality in the Reading Area. Pennsylvania and other nearby states are required to adopt a regulation implementing the requirements of CAIR or an equivalent program. On April 28, 2006 (71 FR 25328), EPA promulgated Federal Implementation Plans

(FIPs)to reduce the interstate transport of NO X and sulfur dioxides that contribute significantly to nonattainment and maintenance 8-hour ozone and PM 2.5 NAAQS. Because Pennsylvania will not adopt its own CAIR requirements and obtain approval of the required SIP revision by September 2006, the FIP will become operative, imposing the Federal program upon CAIR-affected electric generating units in Pennsylvania. Therefore, allowances for CAIR-related sources will be limited to no more than the allowances issued pursuant to the FIP but may purchase additional allowances under the cap-and-trade rule in the FIP. The Reading Area has one source that is directly regulated by CAIR. For the maintenance demonstration, Pennsylvania did not rely upon any reductions from CAIR at this facility. However, the quality of air transported from upwind sources into the county would be improved. Based upon the comparison of the projected emissions and the attainment year emissions along with the additional measures, EPA concludes that PADEP has successfully demonstrated that the 8-hour ozone standard should be maintained in the Reading Area.

(c)Monitoring Network—There is currently one monitor measuring ozone in the Reading Area. Pennsylvania will continue to operate its current air quality monitor in accordance with 40 CFR part 58.

(d)Verification of Continued Attainment—The Commonwealth will track the attainment status of the ozone NAAQS in the Reading Area by reviewing air quality and emissions during the maintenance period. The Commonwealth will perform an annual evaluation of two key factors, VMT data and emissions reported from stationary sources, and compare them to the assumptions about these factors used in the maintenance plan. The Commonwealth will also evaluate the periodic (every three years) emission inventories prepared under EPA's Consolidated Emission Reporting Regulation (40 CFR 51 Subpart A) to see if the area exceed the attainment year inventory

(2004)by more than 10 percent. Based on these evaluations, the Commonwealth will consider whether any further emission control measures should be implemented.

(e)The Maintenance Plan's Contingency Measures—The contingency plan provisions are designed to promptly correct a violation of the NAAQS that occurs after redesignation. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to ensure that the State will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the events that would “trigger” the adoption and implementation of a contingency measure(s), the contingency measure(s) that would be adopted and implemented, and the schedule indicating the time frame by which the state would adopt and implement the measure(s). The ability of the Reading Area to stay in compliance with the 8-hour ozone standard after redesignation depends upon VOC and NO X emissions in the area remaining at or below 2004 levels. The Commonwealth's maintenance plan projects VOC and NO X emissions to decrease and stay below 2004 levels through the year 2018. The Commonwealth's maintenance plan outlines the procedures for the adoption and implementation of contingency measures to further reduce emissions should a violation occur. Contingency measures will be considered if for two consecutive years the fourth highest eight-hour ozone concentrations at the Reading Area monitor are above 84 ppb. If this trigger point occurs, the Commonwealth will evaluate whether additional local emission control measures should be implemented in order to prevent a violation of the air quality standard. PADEP will analyze the conditions leading to the excessive ozone levels and evaluate what measures might be most effective in correcting the excessive ozone levels. PADEP will also analyze the potential emissions effect of Federal, state and local measure that have been adopted but not yet implemented at the time excessive ozone levels occurred. PADEP will then begin the process of implementing any selected measures. Contingency measures will be considered in the event that a violation of the 8-hour ozone standard occurs at any monitor in the Reading Area. In the event of a violation of the 8-hour ozone standard, contingency measures will be adopted in order to return the area to attainment with the standard. Contingency measures to be considered for the Reading Area will include, but not limited to the following: *Regulatory measures:* —Additional controls on consumer products. —Additional control on portable fuel containers. *Non-regulatory measures:* —Voluntary diesel engine “chip reflash”—installation software to correct the defeat device option on certain heavy duty diesel engines. —Diesel retrofit, including replacement, repowering or alternative fuel use, for public or private local onroad or offroad fleets. —Idling reduction technology for Class 2 yard locomotives. —Idling reduction technologies or strategies for truck stops, warehouses and other freight-handling facilities. —Accelerated turnover of lawn and garden equipment, especially commercial equipment, including promotion of electric equipment. —Additional promotion of alternative fuel (e.g., biodiesel) for home heating and agricultural use. *The following schedule applies to the implementation of the regulatory contingency measures:* —Within 1 month of the trigger, submit request to begin regulatory development process. —Within 3 months of the trigger, review of regulation by Air Quality Technical Advisory Committee (AQTAC), Citizens Advisory Council

(CAC)and other advisory committees as appropriate. —Within 6 months of the trigger, Environmental Quality Board

(EQB)meeting/action. —Within 8 months of the trigger, publish in the Pennsylvania Bulletin for comment as proposed rulemaking. —Within 10 months of the trigger, public hearing takes place and comment period on proposed rule closes. —Within 11 months of the trigger, House and Senate Standing Committees and Independent Regulatory Review Commission

(f)Revisions to the 1-Hour Maintenance Plan. In addition to demonstrating continued maintenance until 2018, the January 25, 2007, maintenance plan also amends the February 3, 1997, maintenance plan in the approved SIP at 40 CFR 52.2020(e)(1) for the Reading Area. Pennsylvania's January 25, 2007 maintenance plan SIP revision for the Reading Area amends the approved 1-hour maintenance plan by removing I/M from the contingency plan. The contingency measures in the February 3, 1997 maintenance plan would be replaced by those in the January 25, 2007, maintenance plan. These contingency measures would be implemented only in response to recorded exceedances or violations of the 8-hour ozone standards and no longer tied to exceedances or violations of the 1-hour ozone standard. With regard to the first change, in December 2003, Pennsylvania commenced implementation of an OTR enhanced I/M program in Berks County. EPA believes that the actual implementation of the OTR enhanced I/M program means that the contingency measure of a basic I/M program is no longer available as a contingency. The maintenance demonstration relies upon the OTR enhanced I/M program. EPA believes that the January 25, 2007 maintenance plan SIP revision has an adequate suite of contingency measures. Therefore, for these reasons, EPA believes that the contingency measures plan for the Reading Area currently does not need to contain a basic I/M program since the OTR enhanced program has been implemented. With regard to removal of the 1-hour contingency measure triggers from the maintenance plan, under 40 CFR 51.905(e) of the April 30, 2004, Phase 1 final rule, EPA may approve a SIP revision requesting the removal of the obligation to implement contingency measures upon a violation of the 1-hour ozone NAAQS when the State submits and EPA approves an attainment demonstration for the 8-hour ozone NAAQS for an area initially designated nonattainment for the 8-hour NAAQS or a maintenance SIP for the 8-hour NAAQS for an area initially designated attainment for the 8-hour NAAQS. EPA believes the rationale of 51.905(e) in relieving areas designated under the 8-hour standard of their 1-hour maintenance plan triggers analogously applies to areas that are being redesignated as attainment with the 8-hour ozone NAAQS. Accordingly, EPA is proposing to relieve the Reading Area of its maintenance plan obligations with respect to implementing contingency measures in the event of a violation of the 1-hour standard. Furthermore, to the extent that 40 CFR 51.905(e) of the Phase 1 final rule may be vacated by the *South Coast* decision, EPA believes there is an alternate basis for allowing the Commonwealth to remove the 1-hour triggers from the SIP-approved maintenance for the Reading Area. EPA has determined that the 8-hour NAAQS provides increased public health protection as compared to the 1-hour ozone standard. See 62 FR at 38859 (July 18, 1997). Because the 8-hour standard is more stringent than the 1-hour standard, a maintenance plan with triggers tied to the 8-hour standard will be more protective of public health than a maintenance plan with contingency measure triggers tied to the 1-hour standard. This greater protectiveness of the 8-hour standard provides an additional justification for removing the 1-hour triggers from the maintenance plan.

(g)Summary of EPA's Evaluation of the Maintenance Plan. EPA concludes that the January 25, 2007 maintenance plan meets the requirements of section 175A of the CAA and the revisions to the 1-hour maintenance plan otherwise meets the requirements of the CAA including section 110(l) as it does not interfere with any applicable requirement such as those concerning attainment, reasonable further progress towards attainment or maintenance. VII. Does the Maintenance Plan Establish and Identify Adequate and Approvable Motor Vehicle Emissions Budgets for the Reading Area? A. What Are the Motor Vehicle Emissions Budgets? Under the CAA, States are required to submit, at various times, control strategy SIPs and maintenance plans in ozone areas. These control strategy SIPs (i.e. RFP SIPs and attainment demonstration SIPs) and maintenance plans identify and establish MVEBs for certain criteria pollutants and/or their precursors to address pollution from on-road mobile sources. Pursuant to 40 CFR part 93 and 51.112, MVEBs must be established in an ozone maintenance plan. A MVEB is the portion of the total allowable emissions that is allocated to highway and transit vehicle use and emissions. A MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble also describes how to establish and revise the MVEBs in control strategy SIPs and maintenance plans. Under section 176(c) of the CAA, new transportation projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the part of the State's air quality plan that addresses pollution from cars and trucks. “Conformity” to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of or reasonable progress towards the NAAQS. If a transportation plan does not “conform,” most new projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and assuring conformity of such transportation activities to a SIP. When reviewing submitted “control strategy” SIPs or maintenance plans containing MVEBs, EPA must affirmatively find the MVEB budget contained therein “adequate” for use in determining transportation conformity. After EPA affirmatively finds the submitted MVEB is adequate for transportation conformity purposes, that MVEB can be used by State and Federal agencies in determining whether proposed transportation projects “conform” to the SIP as required by section 176(c) of the CAA. EPA's substantive criteria for determining “adequacy” of a MVEB are set out in 40 CFR 93.118(e)(4). EPA's process for determining “adequacy” consists of three basic steps: Public notification of a SIP submission, a public comment period, and EPA's adequacy finding. This process for determining the adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 1999 guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” This guidance was finalized in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change” on July 1, 2004 (69 FR 40004). EPA follows this guidance and rulemaking in making its adequacy determinations. The MVEBs for the Reading Area are listed in Table 1 of this document for the 2009, and 2018 years and are the projected emissions for the on-road mobile sources plus any portion of the safety margin allocated to the MVEBs. These emission budgets, when approved by EPA, must be used for transportation conformity determinations. B. What Is a Safety Margin? A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. The following example is for the 2018 safety margin: The Reading Area first attained the 8-hour ozone NAAQS during the 2002 to 2004 time period. The Commonwealth used 2004 as the year to determine attainment levels of emissions for the Reading Area. The total emissions from point, area, mobile on-road, and mobile non-road sources in 2004 were 51.5 tpd of VOC and 58.2 tpd of NO X . PADEP projected emissions out to the year 2018 and obtained totals of 40.4 tpd of VOC and 35.3 tpd of NO X from all sources in the Reading Area. The safety margin for the Reading Area for 2018 would be the difference between these amounts. This difference is 11.1 tpd of VOC and 22.9 tpd of NO X . The emissions up to the level of the attainment year including the safety margins are projected to maintain the area's air quality consistent with the 8-hour ozone NAAQS. The safety margin is the extra emissions reduction below the attainment levels that can be allocated for emissions by various sources as long as the total emission levels are maintained at or below the attainment levels. Table 6 shows the safety margins for the 2009 and 2018 years. Table 6.—2009 and 2018 Safety Margins for the Reading Area Inventory year VOC emissions

(tpd)NO X emissions

(tpd)2004 Attainment 51.5 58.2 2009 Interim 43.8 48.1 2009 Safety Margin 7.7 10.1 2004 Attainment 51.5 58.2 2018 Final 40.4 35.3 2018 Safety Margin 11.1 22.9 PADEP allocated 1.0 tpd VOC and 0.6 tpd NO X to the 2009 interim VOC projected on-road mobile source emissions projection and the 2009 interim NO X projected on-road mobile source emissions projection to arrive at the 2009 MVEBs. For the 2018 MVEBs the PADEP allocated 1.0 tpd VOC and 0.6 tpd NO X from the 2018 safety margins to arrive at the 2018 MVEBs. Once allocated to the mobile source budgets these portions of the safety margins are no longer available, and may no longer be allocated to any other source category. Table 7 shows the final 2009 and 2018 MVEBS for the Reading Area. Table 7.—2009 and 2018 Final MVEBs for the Reading Area Tons per Day [Rounded to nearest 0.1 tpd] Inventory year VOC emissions NO X emissions 2009 projected on-road mobile source projected emissions 12.1 20.7 2009 Safety Margin Allocated to MVEBs 1.0 0.6 2009 MVEBs 13.1 21.3 2018 projected on-road mobile source projected emissions 6.5 8.4 2018 Safety Margin Allocated to MVEBs 1.0 0.6 2018 MVEBs 7.5 9.0 C. Why Are the MVEBs Approvable? The 2009 and 2018 MVEBs for the Reading Area are approvable because the MVEBs for NO X and VOC, including the allocated safety margins, continue to maintain the total emissions at or below the attainment year inventory levels as required by the transportation conformity regulations. D. What Is the Adequacy and Approval Process for the MVEBs in the Reading Area Maintenance Plan? The MVEBs for the Reading Area maintenance plan are being posted to EPA's conformity Web site concurrent with this proposal. The public comment period will end at the same time as the public comment period for this proposed rule. In this case, EPA is concurrently processing the action on the maintenance plan and the adequacy process for the MVEBs contained therein. In this proposed rule, EPA is proposing to find the MVEBs adequate and also proposing to approve the MVEBs as part of the maintenance plan. The MVEBs cannot be used for transportation conformity until the maintenance plan update and associated MVEBs are approved in a final **Federal Register** notice, or EPA otherwise finds the budgets adequate in a separate action following the comment period. If EPA receives adverse written comments with respect to the proposed approval of the Reading Area MVEBs, or any other aspect of our proposed approval of this updated maintenance plan, we will respond to the comments on the MVEBs in our final action or proceed with the adequacy process as a separate action. Our action on the Reading Area MVEBs will also be announced on EPA's conformity Web site: *http://www.epa.gov/oms/traq* , (once there, click on the “Conformity” button, then look for “Adequacy Review of SIP Submissions for Conformity”). VIII. Proposed Actions EPA is proposing to determine that the Reading Area has attained the 8-hour ozone NAAQS. EPA is also proposing to approve the Commonwealth's January 25, 2007, request for the Reading Area to be designated to attainment of the 8-hour NAAQS for ozone. EPA has evaluated Pennsylvania's redesignation request and determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes that the redesignation request and monitoring data demonstrate that the area has attained the 8-hour ozone standard. The final approval of this redesignation request would change the designation of the Reading Area from nonattainment to attainment for the 8-hour ozone standard. EPA is also proposing to approve the associated maintenance plan and the 2002 base year inventory for Reading Area, submitted on January 25, 2007, as revisions to the Pennsylvania SIP. EPA is proposing to approve the maintenance plan for the Reading Area because it meets the requirements of section 175A of the CAA as described previously in this notice. EPA is also proposing to approve the MVEBs submitted by Pennsylvania for the Reading Area in conjunction with its redesignation request. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. IX. 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 rule proposing to approve the redesignation of the Reading Area to attainment for the 8-hour ozone NAAQS, the associated maintenance plan, the 2002 base year inventory, and the MVEBs identified in the maintenance plan does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. 40 CFR Part 81 Air pollution control, National parks, Wilderness areas. Authority: 42 U.S.C. 7401 *et seq.* Dated: May 22, 2007. Donald S. Welsh, Regional Administrator, Region III. [FR Doc. E7-10356 Filed 5-29-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R03-OAR-2007-0174; FRL-8320-1] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Attainment Determination, Redesignation of the Franklin County Ozone Nonattainment Area to Attainment and Approval of the Area's Maintenance Plan and 2002 Base Year Inventory AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a redesignation request and a State Implementation Plan

(SIP)revisions submitted by the Commonwealth of Pennsylvania. The Pennsylvania Department of Environmental Protection (PADEP) is requesting that the Franklin County ozone nonattainment area (Franklin County Area) be redesignated as attainment for the 8-hour ozone national ambient air quality standard (NAAQS). EPA is proposing to approve the ozone redesignation request for Franklin County Area. In conjunction with its redesignation request, PADEP submitted a SIP revision consisting of a maintenance plan for Franklin County Area that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after redesignation. EPA is proposing to make a determination that the Franklin County Area has attained the 8-hour ozone NAAQS, based upon three years of complete, quality-assured ambient air quality ozone monitoring data for 2003-2005. EPA's proposed approval of the 8-hour ozone redesignation request is based on its determination that the Franklin County Area has met the criteria for redesignation to attainment specified in the Clean Air Act (CAA). In addition, PADEP submitted a 2002 base year inventory for the Franklin County Area which EPA is proposing to approve as a SIP revision. EPA is also providing information on the status of its adequacy determination for the motor vehicle emission budgets (MVEBs) that are identified in the Franklin County Area maintenance plan for purposes of transportation conformity, which EPA is also proposing to approve. EPA is proposing approval of the redesignation request, and the maintenance plan and the 2002 base year inventory SIP revisions in accordance with the requirements of the CAA. EPA is also proposing to issue a determination that the area has attained the 1-hour ozone NAAQS, and to find that the requirements of section 172(c)(1) concerning the submission of the ozone attainment demonstration and reasonably available control measure requirements, the requirements of section 172(c)(2) concerning reasonable further progress (RFP), and the requirements of section 172(c)(9) concerning contingency measures for RFP or attainment do not apply to the area for so long as it continues to attain the 1-hour NAAQS for ozone. DATES: Written comments must be received on or before June 29, 2007. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-0174 by one of the following methods: A. *www.regulations.gov.* Follow the on-line instructions for submitting comments. B. E-mail: *miller.linda@epa.gov.* C. Mail: EPA-R03-OAR-2007-0174, 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-2007-0174. 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* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *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 *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 Pennsylvania Department of Environmental Protection, Bureau of Air Quality, P.O. Box 8468, Harrisburg, Pennsylvania 17105. FOR FURTHER INFORMATION CONTACT: Christopher Cripps,

(215)814-2179, or by e-mail at *cripps.christopher@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we”, “us”, or “our” is used, we mean EPA. Table of Contents I. What Actions Are EPA Proposing To Take? II. What Is the Background for These Proposed Actions? III. What Are the Criteria for Redesignation to Attainment? IV. Why Is EPA Taking These Actions? V. What Would Be the Effect of These Actions? VI. What Is EPA's Analysis of the State's Request? VII. Are the Motor Vehicle Emissions Budgets Established and Identified in the Maintenance Plan for the Franklin County Area Adequate and Approvable? VIII. Proposed Actions IX. Statutory and Executive Order Reviews I. What Actions Are EPA Proposing To Take? On December 14, 2006, PADEP formally submitted a request to redesignate the Franklin County Area from nonattainment to attainment of the 8-hour NAAQS for ozone. Concurrently, on December 14, 2006, PADEP submitted a maintenance plan for the Franklin County Area as a SIP revision to ensure continued attainment for at least 10 years after redesignation. PADEP also submitted a 2002 base year inventory as a SIP revision on December 14, 2006. The Franklin County Area is currently designated as a basic 8-hour ozone nonattainment area. EPA is proposing to determine that the Franklin County Area has attained the 8-hour ozone NAAQS and that it has met the requirements for redesignation pursuant to section 107(d)(3)(E) of the CAA. EPA is, therefore, proposing to approve the redesignation request to change the designation of the Franklin County Area from nonattainment to attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve the Franklin County Area maintenance plan as a SIP revision, such approval being one of the CAA criteria for redesignation to attainment status. The maintenance plan is designed to ensure continued attainment in the Franklin County Area for the next ten years. EPA is also proposing to approve the 2002 base year inventory for the Franklin County Area as a SIP revision. Additionally, EPA is announcing its action on the adequacy process for the MVEBs identified in the Franklin County Area maintenance plan, and proposing to approve the MVEBs identified for volatile organic compounds

(VOC)and nitrogen oxides (NO X ) for transportation conformity purposes. EPA is also proposing to issue a determination that the area has attained the 1-hour ozone NAAQS, and to find that the requirements of section 172(c)(1) concerning the submission of the ozone attainment demonstration and reasonably available control measure requirements, the requirements of section 172(c)(2) concerning reasonable further progress (RFP), and the requirements of section 172(c)(9) concerning contingency measures for RFP or attainment do not apply to the area for so long as it continues to attain the 1-hour NAAQS for ozone. II. What Is the Background for These Proposed Actions? A. General Ground-level ozone is not emitted directly by sources. Rather, emissions of NO X and VOC react in the presence of sunlight to form ground-level ozone. The air pollutants NO X and VOC are referred to as precursors of ozone. The CAA establishes a process for air quality management through the attainment and maintenance of the NAAQS. On July 18, 1997, EPA promulgated a revised 8-hour ozone standard of 0.08 parts per million (ppm). This new standard is more stringent than the previous 1-hour ozone standard. EPA designated, as nonattainment, any area violating the 8-hour ozone NAAQS based on the air quality data for the three years of 2001-2003. These were the most recent three years of data at the time EPA designated 8-hour areas. The Franklin County Area was designated as basic 8-hour ozone nonattainment status in a **Federal Register** notice signed on April 15, 2004 and published on April 30, 2004 (69 FR 23857), based on its exceedance of the 8-hour health-based standard for ozone during the years 2001-2003. On April 30, 2004, EPA issued a final rule (69 FR 23951, 23996) to revoke the 1-hour ozone NAAQS in the Franklin County Area (as well as most other areas of the country) effective June 15, 2005. *See* 40 CFR 50.9(b); 69 FR at 23996 (April 30, 2004); and *see* 70 FR 44470 (August 3, 2005). However, on December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard. (69 FR 23951, April 30, 2004). *South Coast Air Quality Management Dist.* v. *EPA* , 472 F.3d 882 (D.C.Cir. 2006) (hereafter “ *South Coast.* ”). The Court held that certain provisions of EPA's Phase 1 Rule were inconsistent with the requirements of the Clean Air Act. The Court rejected EPA's reasons for implementing the 8-hour standard in nonattainment areas under subpart 1 in lieu of subpart 2 of Title I, part D of the Act. The Court also held that EPA improperly failed to retain four measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations:

(1)Nonattainment area New Source Review

(NSR)requirements based on an area's 1-hour nonattainment classification;

(2)Section 185 penalty fees for 1-hour severe or extreme nonattainment areas;

(4)the certain conformity requirements for certain types of federal actions. The Court upheld EPA's authority to revoke the 1-hour standard provided there were adequate anti-backsliding provisions. Elsewhere in this document, mainly in section VI. B. “The Franklin County Area Has Met All Applicable Requirements Under Section 110 and Part D of the CAA and Has a Fully Approved SIP Under Section 110(k) of the CAA,” EPA discusses its rationale why the decision in South Coast is not an impediment to redesignating the Franklin County Area to attainment of the 8-hour ozone NAAQS. The CAA, Title I, Part D, contains two sets of provisions—subpart 1 and subpart 2—that address planning and control requirements for nonattainment areas. Subpart 1 (which EPA refers to as “basic” nonattainment) contains general, less prescriptive requirements for nonattainment areas for any pollutant—including ozone—governed by a NAAQS. Subpart 2 (which EPA refers to as “classified” nonattainment) provides more specific requirements for ozone nonattainment areas. Some 8-hour ozone nonattainment areas are subject only to the provisions of subpart 1. Other areas are also subject to the provisions of subpart 2. Under EPA's 8-hour ozone implementation rule, signed on April 15, 2004, an area was classified under subpart 2 based on its 8-hour ozone design value (i.e., the 3-year average annual fourth-highest daily maximum 8-hour average ozone concentration), if it had a 1-hour design value at or above 0.121 ppm (the lowest 1-hour design value in the CAA for subpart 2 requirements). All other areas are covered under subpart 1, based upon their 8-hour design values. In 2004, Franklin County Area was designated a basic 8-hour ozone nonattainment area based upon air quality monitoring data from 2001-2003, and therefore, is subject to the requirements of subpart 1 of Part D. Under 40 CFR part 50, the 8-hour ozone standard is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). *See* 69 FR 23857, (April 30, 2004) for further information. Ambient air quality monitoring data for the 3-year period must meet data completeness requirements. The data completeness requirements are met when the average percent of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined in Appendix I of 40 CFR part 50. The ozone monitoring data from the 3-year period of 2003-2005 indicates that the Franklin County Area has a design value of 0.075 ppm. Therefore, the ambient ozone data for the Franklin County Area indicates no violations of the 8-hour ozone standard. B. The Franklin County Area The Franklin County Area consists solely of Franklin County, Pennsylvania and was designated as basic 8-hour ozone nonattainment status in an April 30, 2004 Final Rule (69 FR 23857). Prior to its designation as an 8-hour basic ozone nonattainment area, the Franklin County Area was designated an incomplete data nonattainment area for the 1-hour standard. *See* 56 FR 56694 at 56822, November 6, 1991. On December 14, 2006, PADEP requested that the Franklin County Area be redesignated to attainment for the 8-hour ozone standard. The redesignation request included 3 years of complete, quality-assured data for the period of 2003-2005, indicating that the 8-hour NAAQS for ozone had been achieved in the Franklin County Area. The data satisfies the CAA requirements when the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration (commonly referred to as the area's design value) is less than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). Under the CAA, a nonattainment area may be redesignated if sufficient complete, quality-assured data is available to determine that the area has attained the standard and the area meets the other CAA redesignation requirements set forth in section 107(d)(3)(E). III. What Are the Criteria for Redesignation to Attainment? The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA, allows for redesignation, providing that:

(1)EPA determines that the area has attained the applicable NAAQS;

(2)EPA has fully approved the applicable implementation plan for the area under section 110(k);

(4)EPA has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and

(SIP)Actions Submitted in Response to Clean Air Act

(Act)Deadlines,” Memorandum from John Calcagni Director, Air Quality Management Division, October 28, 1992; • “Technical Support Documents (TSD's) for Redesignation Ozone and Carbon Monoxide

(CO)Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993; • “State Implementation Plan

(SIP)Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide

(CO)National Ambient Air Quality Standards (NAAQS) On or After November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993; • Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, to Air Division Directors, Regions 1-10, “Use of Actual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas,” dated November 30, 1993; • “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994; and • “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995. IV. Why Is EPA Taking These Actions? On December 14, 2006, PADEP requested redesignation of the Franklin County Area to attainment for the 8-hour ozone standard. On December 14, PADEP submitted a maintenance plan for the Franklin County Area as a SIP revision to assure continued attainment at least 10 years after redesignation. EPA has determined that the Franklin County Area has attained the standard and has met the requirements for redesignation set forth in section 107(d)(3)(E). V. What Would Be the Effect of These Actions? Approval of the redesignation request would change the designation of the Franklin County Area from nonattainment to attainment for the 8-hour ozone NAAQS found at 40 CFR part 81. It would also incorporate into the Pennsylvania SIP a 2002 base year inventory and a maintenance plan ensuring continued attainment of the 8-hour ozone NAAQS in the Franklin County Area for the next 10 years. The maintenance plan includes contingency measures to remedy any future violations of the 8-hour NAAQS (should they occur), and identifies the MVEBs for NO X and VOC for transportation conformity purposes for the years 2004, 2009 and 2018. These motor vehicle emissions

(2004)and MVEBs (2009 and 2018) are displayed in the following table: Table 1.—Motor Vehicle Emissions Budgets in Tons per Day—Rounded Upward to One Decimal Place Year NO X VOC 2009 12.7 7.3 2018 6.7 5.1 VI. What Is EPA's Analysis of the State's Request? EPA is proposing to determine that Franklin County Area has attained the 8-hour ozone standard and the 1-hour standard if that standard is reinstated and that all other redesignation criteria have been met. The following is a description of how PADEP's December 14, 2006, submittal satisfies the requirements of section 107(d)(3)(E) of the CAA. A. The Franklin County Area Has Attained the Ozone NAAQS EPA is proposing to determine that the Franklin County Area has attained the 8-hour ozone NAAQS. For ozone, an area may be considered to be attaining the 8-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.10 and Appendix I of part 50, based on three complete and consecutive calendar years of quality-assured air quality monitoring data. To attain this standard, the design value, which is the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations, measured at each monitor within the area over each year must not exceed the ozone standard of 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, Appendix I, the standard is attained if the design value is 0.084 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58, and recorded in EPA's Air Quality System (AQS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment. In the Franklin County Area, there is one monitor that measures air quality with respect to ozone. As part of its redesignation request, Pennsylvania submitted ozone monitoring data for the years 2003-2005 (the most recent three years of data available as of the time of the redesignation request) for the Franklin County Area. This data has been quality assured and is recorded in AQS. PADEP uses the AQS as the permanent database to maintain its data and quality assures the data transfers and content for accuracy. The fourth-high 8-hour daily maximum concentrations, along with the three-year average, are summarized in Table 2A. Table 2A.—Franklin County Nonattainment Area Fourth Highest 8-Hour Average Values; Franklin County Monitor, AQS ID 42-055-0001 Year Annual 4th High Reading

(ppm)2003 0.080 2004 0.071 2005 0.074 2006 0.066 The average for the 3-year period 2003 through 2005 is 0.075 ppm. The average for the 3-year period 2004 through 2006 is 0.070 ppm. The air quality data for 2003-2005 show that the Franklin County Area has attained the standard with a design value of 0.075 ppm. The data collected at the Franklin County Area monitor satisfies the CAA requirement that the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm. EPA believes this conclusion remains valid that after review of the available 2006 data because the fourth-highest daily maximum 8-hour average ozone concentration was 0.066 ppm which equates to a design value 0.070 ppm for the period 2004-2006. PADEP's request for redesignation for the Franklin County Area indicates that the data was quality assured in accordance with 40 CFR part 58. In addition, as discussed below with respect to the maintenance plan, PADEP has committed to continue monitoring in accordance with 40 CFR part 58. In summary, EPA has determined that the data submitted by Pennsylvania and taken from AQS indicates that Franklin County Area has attained the 8-hour ozone NAAQS. Based upon the ozone monitoring data for the years 1996-1998, EPA believes that the Franklin County Area attained the 1-hour ozone NAAQS and continued to attain the 1-hour NAAQS to present. For the 1-hour ozone standard, an area may be considered to be attaining the 1-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.9 and Appendix H of part 50, based on three complete and consecutive calendar years of quality-assured air quality monitoring data. Compliance is determined on a monitor-by-monitor basis within the area. To demonstrate attainment, i.e., compliance with this standard, the annual average of the number of expected exceedances of the 1-hour standard over a 3-year period must be less than or equal to 1. (To account for missing data, adjustment of the actual number of monitored exceedances of the standard yields the annual expected number of exceedances at an air quality monitoring site.) Table 2B provides a summary of the number of expected exceedances for each of the years 1996 through 2006. Table 2B.—Franklin County Area Number of Expected Exceedances of the 1-Hour Ozone Standard; Franklin County Monitor, AQS ID 42-117-4000 Year Number of expected exceedances 1996 0.0 1997 0.0 1998 0.0 1999 0.0 2000 0.0 2001 0.0 2002 0.0 2003 0.0 2004 0.0 2005 0.0 2006 0.0 The average number of expected exceedances for any three-year period to date is 0.0. In summary, EPA has determined that the data submitted by Pennsylvania and taken from AQS indicates that Franklin County Area is maintaining air quality that conforms to the 1-hour ozone NAAQS. The EPA is proposing to issue a determination that the Franklin County Area has attained the 1-hour NAAQS for ozone. This proposed determination is based upon the 1996 through 2006 air quality data. While section 181(b)(2)(A) specifies that EPA is to make the statutorily required determinations of attainment using the 1-hour ozone “design value,” EPA “has interpreted this provision generally to refer to EPA's methodology for determining attainment status.” *See* 60 FR 3349 at 3350, January 17, 1995. As noted previously, EPA determines the attainment status under the 1-hour ozone standard on the basis of the annual average number of expected exceedances. B. The Franklin County Area Has Met All Applicable Requirements Under Section 110 and Part D of the CAA and Has a Fully Approved SIP Under Section 110(k) of the CAA EPA has determined that the Franklin County Area has met all SIP requirements applicable for purposes of this redesignation under section 110 of the CAA (General SIP Requirements) and that it meets all applicable SIP requirements under Part D of Title I of the CAA, in accordance with section 107(d)(3)(E)(v). In addition, EPA has determined that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these proposed determinations, EPA ascertained what requirements are applicable to the area, and determined that the applicable portions of the SIP meeting these requirements are fully approved under section 110(k) of the CAA. We note that SIPs must be fully approved only with respect to applicable requirements. The September 4, 1992 Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992) describes EPA's interpretation of section 107(d)(3)(E) with respect to the timing of applicable requirements. Under this interpretation, to qualify for redesignation, States requesting redesignation to attainment must meet only the relevant CAA requirements that come due prior to the submittal of a complete redesignation request. *See also,* Michael Shapiro memorandum, September 17, 1993, and 60 FR 12459, 12465-66, (March 7, 1995) (redesignation of Detroit-Ann Arbor). Applicable requirements of the CAA that come due subsequent to the area's submittal of a complete redesignation request remain applicable until a redesignation is approved, but are not required as a prerequisite to redesignation. Section 175A(c) of the CAA. *Sierra Club* v. *EPA,* 375 F.3d 537 (7th Cir. 2004). *See also,* 68 FR 25424, 25427 (May 12, 2003) (redesignation of St. Louis). This section also sets forth EPA's views on the potential effect of the Court's ruling in *South Coast* on this redesignation action. For the reasons set forth below, EPA does not believe that the Court's ruling alters any requirements relevant to this redesignation action so as to preclude redesignation, and does not prevent EPA from finalizing this redesignation. EPA believes that the Court's decision, as it currently stands or as it may be modified based upon any petition for rehearing that has been filed, imposes no impediment to moving forward with redesignation of this area to attainment, because in either circumstance redesignation is appropriate under the relevant redesignation provisions of the Act and longstanding policies regarding redesignation requests. 1. Section 110 General SIP Requirements Section 110(a)(2) of Title I of the CAA delineates the general requirements for a SIP, which include enforceable emissions limitations and other control measures, means, or techniques, provisions for the establishment and operation of appropriate devices necessary to collect data on ambient air quality, and programs to enforce the limitations. The general SIP elements and requirements set forth in section 110(a)(2) include, but are not limited to, the following: • Submittal of a SIP that has been adopted by the State after reasonable public notice and hearing; • Provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; • Implementation of a source permit program; provisions for the implementation of Part C requirement (Prevention of Significant Deterioration (PSD)); • Provisions for the implementation of Part D requirements for New Source Review

(NSR)permit programs; • Provisions for air pollution modeling; and • Provisions for public and local agency participation in planning and emission control rule development. Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a State from significantly contributing to air quality problems in another State. To implement this provision, EPA has required certain States to establish programs to address transport of air pollutants in accordance with the NO X SIP Call, October 27, 1998 (63 FR 57356), amendments to the NO X SIP Call, May 14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25162). However, the section 110(a)(2)(D) requirements for a State are not linked with a particular nonattainment area's designation and classification in that State. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a State regardless of the designation of any one particular area in the State. Thus, we do not believe that these requirements should be construed to be applicable requirements for purposes of redesignation. In addition, EPA believes that the other section 110 elements not connected with nonattainment plan submissions and not linked with an area's attainment status are not applicable requirements for purposes of redesignation. The Franklin County Area will still be subject to these requirements after it is redesignated. The section 110 and Part D requirements, which are linked with a particular area's designation and classification, are the relevant measures to evaluate in reviewing a redesignation request. This policy is consistent with EPA's existing policy on applicability of conformity ( *i.e.* , for redesignations) and oxygenated fuels requirement. *See* Reading, Pennsylvania, proposed and final rulemakings, (61 FR 53174-53176, October 10, 1996), (62 FR 24816, May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). *See also,* the discussion on this issue in the Cincinnati redesignation (65 FR at 37890, June 19, 2000), and in the Pittsburgh redesignation (66 FR at 50399, October 19, 2001). Similarly, with respect to the NO X SIP Call rules, EPA noted in its Phase 1 Final Rule to Implement the 8-hour Ozone NAAQS, that the NO X SIP Call rules are not “an 'applicable requirement' for purposes of section 110(l) because the NO X rules apply regardless of an area's attainment or nonattainment status for the 8-hour (or the 1-hour) NAAQS.” 69 FR 23951, 23983 (April 30, 2004). EPA believes that section 110 elements not linked to the area's nonattainment status are not applicable for purposes of redesignation. Any section 110 requirements that are linked to the Part D requirements for 8-hour ozone nonattainment areas are not yet due, because, as we explain later in this notice, no Part D requirements applicable for purposes of redesignation under the 8-hour standard became due prior to submission of the redesignation request. Because the Pennsylvania SIP satisfies all of the applicable general SIP elements and requirements set forth in section 110(a)(2), EPA concludes that Pennsylvania has satisfied the criterion of section 107(d)(3)(E) regarding section 110 of the Act. 2. Part D Nonattainment Area Requirements Under the 8-Hour Standard Pursuant to an April 30, 2004, final rule (69 FR 23951), the Franklin County Area was designated a basic nonattainment area for the 8-hour ozone standard. Sections 172-176 of the CAA, found in subpart 1 of Part D, set forth the basic nonattainment requirements for all nonattainment areas. Section 182 of the CAA, found in subpart 2 of Part D, establishes additional specific requirements depending on the area's nonattainment classification. With respect to the 8-hour standard, the court's ruling rejected EPA's reasons for classifying areas under Subpart 1 for the 8-hour standard, and remanded that matter to the Agency. Consequently, it is possible that this area could, during a remand to EPA, be reclassified under Subpart 2. Although any future decision by EPA to classify this area under subpart 2 might trigger additional future requirements for the area, EPA believes that this does not mean that redesignation of the area cannot now go forward. This belief is based upon

(1)EPA's longstanding policy of evaluating redesignation requests in accordance with the requirements due at the time the request is submitted; and,

(2)consideration of the inequity of applying retroactively any requirements that might in the future be applied. First, at the time the redesignation request was submitted, the Franklin County Area was classified under Subpart 1 and was obligated to meet Subpart 1 requirements. Under EPA's longstanding interpretation of section 107(d)(3)(E) of the Clean Air Act, to qualify for redesignation, states requesting redesignation to attainment must meet only the relevant SIP requirements that came due prior to the submittal of a complete redesignation request. *See* September 4, 1992 Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division). *See also,* Michael Shapiro Memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995) (Redesignation of Detroit-Ann Arbor); *Sierra Club* v. *EPA,* 375 F.3d 537 (7th Cir. 2004), which upheld this interpretation; 68 FR 25418, 25424, 25427 (May 12, 2003) (redesignation of St. Louis). Moreover, it would be inequitable to retroactively apply any new SIP requirements that were not applicable at the time the request was submitted. The D.C. Circuit has recognized the inequity in such retroactive rulemaking, see *Sierra Club* v. *Whitman,* 285 F. 3d 63 (D.C. Cir. 2002), in which the D.C. Circuit upheld a District Court's ruling refusing to make retroactive an EPA determination of nonattainment that was past the statutory due date. Such a determination would have resulted in the imposition of additional requirements on the area. The Court stated: “Although EPA failed to make the nonattainment determination within the statutory time frame, Sierra Club's proposed solution only makes the situation worse. Retroactive relief would likely impose large costs on the States, which would face fines and suits for not implementing air pollution prevention plans in 1997, even though they were not on notice at the time.” Id. at 68. Similarly here it would be unfair to penalize the area by applying to it for purposes of redesignation additional SIP requirements under Subpart 2 that were not in effect at the time it submitted its redesignation request. With respect to subpart 2 requirements, if the Franklin County Area initially had been classified under subpart 2 the first two part D subpart 2 requirements applicable to the Franklin County Area under section 182(a) of the CAA would be: A base-year inventory requirement pursuant to section 182(a)(1) of the CAA, and, the emissions statement requirement pursuant to section 182(a)(3)(B) of the CAA. As we have stated previously in this document, these requirements are not yet due for purpose of redesignation of the Franklin County Area, but nevertheless, Pennsylvania already has in its approved SIP an emissions statement rule for the 1-hour standard that covers all portions of the designated 8-hour nonattainment area, and that satisfies the emissions statement requirement for the 8-hour standard. See 25 Pa. Code 135.21(a)(1) codified at 40 CFR 52.2020; 60 FR 2881, January 12, 1995. With respect to the base year inventory requirement, in this notice of proposed rulemaking, EPA is proposing to approve the 2002 base-year inventory for the Franklin County Area, which was submitted on December 14, 2006, concurrently with its maintenance plan, into the Pennsylvania SIP. EPA is proposing to approve the 2002 base year inventory as fulfilling the requirements, if necessary, of both section 182(a)(1) and section 172(c)(3) of the CAA. A detailed evaluation of Pennsylvania's 2002 base-year inventory for the Franklin County Area can be found in a Technical Support Document

(TSD)prepared by EPA for this rulemaking. EPA has determined that the emission inventory and emissions statement requirements for the Franklin County Area have been satisfied. In addition to the fact that part D requirements applicable for purposes of redesignation did not become due prior to submission of the redesignation request, EPA believes it is reasonable to interpret the general conformity and NSR requirements as not requiring approval prior to redesignation. With respect to section 176, Conformity Requirements, section 176(c) of the CAA requires States to establish criteria and procedures to ensure that Federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects developed, funded or approved under Title 23 U.S.C. and the Federal Transit Act (“transportation conformity”) as well as to all other Federally supported or funded projects (“general conformity”). State conformity revisions must be consistent with Federal conformity regulations relating to consultation, enforcement and enforceability that the CAA required EPA to promulgate. EPA believes it is reasonable to interpret the conformity SIP requirements as not applying for purposes of evaluating the redesignation request under section 107(d) since State conformity rules are still required after redesignation and Federal conformity rules apply where State rules have not been approved. *See Wall* v. *EPA,* 265 F. 3d 426, 438-440 (6th Cir. 2001), upholding this interpretation. *See also,* 60 FR 62748 (December 7, 1995). In the case of the Franklin County Area, EPA has also determined that before being redesignated, the Franklin County Area need not comply with the requirement that a NSR program be approved prior to redesignation. EPA has determined that areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the standard without Part D NSR in effect. The rationale for this position is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D NSR Requirements or Areas Requesting Redesignation to Attainment.” Normally, State's Prevention of Significant Deterioration

(PSD)program will become effective in the area immediately upon redesignation to attainment. *See* the more detailed explanations in the following redesignation rulemakings: Detroit, MI (60 FR 12467-12468 (March 7, 1995); Cleveland-Akron-Lorrain, OH (61 FR 20458, 20469-70, May 7, 1996); Louisville, KY (66 FR 53665, 53669, October 23, 2001); Grand Rapids, MI (61 FR 31831, 31836-31837, June 21, 1996). In the case of the Franklin County Area, the Chapter 127 Part D NSR regulations in the Pennsylvania SIP (codified at 40 CFR 52.2020(c)(1)) explicitly apply the requirements for NSR in section 184 of the CAA to ozone attainment areas within the OTR. The OTR NSR requirements are more stringent than that required for a basic 8-hour ozone nonattainment area. On October 19, 2001 (66 FR 53094), EPA fully approved Pennsylvania's NSR SIP revision consisting of Pennsylvania's Chapter 127 Part D NSR regulations that cover the Franklin County Area. EPA has also interpreted the section 184 OTR requirements, including the NSR program, as not being applicable for purposes of redesignation. The rational for this is based on two factors. First, the requirement to submit SIP revisions for the section 184 requirements continues to apply to areas in the OTR after redesignation to attainment. Therefore, the State remains obligated to have NSR, as well as RACT, even after redesignation. Second, the section 184 control measures are region-wide requirements and do not apply to the Franklin County Area by virtue of the area's designation and classification. Rather, section 184 measures are required in the Franklin County Area because it is located in the OTR. *See* 61 FR 53174, 53175-53176 (October 10, 1996) and 62 FR 24826, 24830-32 (May 7, 1997). 3. Part D Nonattainment Area Requirements Under the 1-Hour Standard Prior to its designation as an 8-hour ozone nonattainment area, the Franklin County Area was designated an incomplete data nonattainment area for the 1-hour standard. *See* 56 FR 56694 at 56822, November 6, 1991. In its December 22, 2006 decision in *South Coast,* the Court addressed EPA's revocation of the 1-hour ozone standard. The current status of the revocation and associated anti-backsliding rules is dependent on whether the Court's decision stands as originally issued or is modified in response to any petition for rehearing or request for clarification that has been filed. As described more fully below, EPA believes that the area has attained the 1-hour standard and has met all of the requirements applicable for redesignation under the 1-hour standard that would apply even if the 1-hour standard is deemed to be reinstated and those requirements are viewed as applying under the statute itself. Thus, the Court's decision, as it currently stands, imposes no impediment to moving forward with redesignation of the area to attainment. Further, even if the Court's decision were modified based upon any petition for rehearing that has been filed, such that the ultimate decision requires something less than compliance with all applicable 1-hour requirements, because the area meets all such requirements, as explained below, it would certainly meet any lesser requirements and thus redesignation could proceed. The conformity portion of the Court's ruling does not impact the redesignation request for the Franklin County Area because there are no conformity requirements that are relevant to redesignation request for any standard, including the requirement to submit a transportation conformity SIP. 1 As we have previously stated in this document, EPA believes it is reasonable to interpret the conformity SIP requirements as not applying for purposes of evaluating a redesignation request under section 107(d) because state conformity rules are still required after redesignation and federal conformity rules apply where state rules have not been approved. 1 Clean Air Act section 176(c)(4)(E) currently requires States to submit revisions to their SIPs to reflect certain federal criteria and procedures for determining transportation conformity. Transportation conformity SIPs are different from the motor vehicle emissions budgets that are established in control strategy SIPs and maintenance plans. With respect to other requirements under the 1-hour standard, in our April 16, 1992 General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 (57 FR 13498 at 13524-13527) EPA concluded that the Clean Air Act provides no specific guidance concerning applicable requirements for certain unclassifiable nonattainment areas including incomplete data areas. We observed that subpart 1 contains general SIP planning requirements, and, we concluded that subpart 2 is not applicable to incomplete data areas. Under the approach laid out in our April 16, 1992 General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 (57 FR 13498 at 13524-13527) EPA concluded that because incomplete areas are designated nonattainment some aspects of Subpart 1 necessarily apply. *See* 57 FR 13498 at 13525 (April 16, 1992). With regard to RACT/Reasonably available control measures (RACM), EPA's position is that requiring all RACT corrections for incomplete data areas is unreasonable, but we required that incomplete data areas must correct any RACT deficiencies regarding enforceability of existing rules in order to be redesignated to attainment. *Id.* at 13525. With regard to the emission inventory requirement, EPA believes that because an emissions inventory is specifically required under section 172(c)(3) and is not tied to an area's proximity to attainment an incomplete data area was required to develop such an inventory even if only to develop an approvable maintenance plan under section 175A. *Id.* at 13525. Furthermore, with respect to the attainment demonstration and RACM, RFP, and contingency measure requirements of part D, under EPA's Clean Data Policy, as embodied in 40 CFR 51.918, upon a finding that the area is attaining the standard, requirements for SIP submissions linked to attainment demonstrations, reasonable further progress

(RFP)and contingency measures are suspended for so long as the area is attaining the standard. EPA described its interpretation in a May 10, 1995 memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, entitled “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone Ambient Air Quality Standard.” *See also,* the discussion and rulemakings cited in EPA's Final Rule to Implement the 8-Hour Ozone NAAQS—Phase 2, 70 FR 71612, 71644-71646 (November 29, 2005). The Tenth, Seventh and Ninth Circuits have upheld EPA rulemakings applying the Clean Data Policy. *See Sierra Club* v. *EPA,* 99 F. 3d 1551 (10th Cir. 1996); *Sierra Club* v. *EPA,* 375 F.3d 537 (7th Cir. 2004) and *Our Children's Earth Foundation* v. *EPA,* No. 04-73032 (9th Cir. June 28, 2005) memorandum opinion. We are proposing to find that the Franklin County Area has met the 1-hour ozone standard, and thus the requirements of section 172(c)(1) concerning the submission of the ozone attainment demonstration and reasonably available control measure requirements, the requirements of section 172(c)(2) concerning RFP, and section 172(c)(9) contingency measures under the 1-hour standard are not applicable for purposes of redesignation. 2 2 We note, however, that the maintenance plan contains contingency measures required under section 175A of the Clean Air Act. If, while this proposal is pending, the 1-hour ozone standard is reinstated and a violation of the 1-hour ozone NAAQS is monitored (consistent with the requirements contained in 40 CFR part 58 and recorded in AQS) in this nonattainment area the EPA would not issue a final determination of attainment for the affected area. If the area remains in attainment and EPA issues a final determination of attainment, a subsequent monitored violation prior to redesignation to attainment of the 1-hour ozone NAAQS would also mean that the area would thereafter have to address the requirements of sections 172(c)(1), 172(c)(2) and 172(c)(9), since the basis for the determination that they do not apply would no longer exist. This proposal does not revoke the 1-hour NAAQS for ozone in the Franklin County Area. With respect to NSR, EPA has determined that areas being redesignated need not have an approved New Source Review program for the same reasons discussed previously with respect to the applicable part D requirements for the 8-hour standard. Therefore, the only 1-hour Part D elements currently applicable to the Franklin County Area by virtue of its designation and classification as an incomplete data nonattainment area under the 1-hour ozone NAAQS were the corrections of any RACT deficiencies regarding enforceability of existing rules in order to be redesignated to attainment, and the emission inventory requirement. On December 22, 1994, EPA fully approved into the Pennsylvania SIP all corrections required under section 182(a)(2)(A) of the CAA (59 FR 65971, December 22, 1994). EPA believes that this requirement applies only to incomplete data and subpart 2 areas under the 1-hour NAAQS pursuant to the 1990 amendments to the CAA; therefore, this is a one-time requirement. After an area has fulfilled the section 182(a)(2)(A) requirement for the 1-hour NAAQS, there is no requirement under the 8-hour NAAQS. Section 173(c)(3) provided for the submission of a comprehensive, accurate, current inventory of actual emissions from all sources, as described in section 172(c)(3), in accordance with guidance provided by the Administrator. In this proposed rule, EPA is proposing to approve a 2002 base year emissions inventory for the Franklin County Area as meeting the requirements of section 172(c)(3) as well as section 182(a)(1). While EPA generally required that the base year inventory for the 1-hour standard be for calendar year 1990, EPA believes that Pennsylvania's 2002 inventory fulfills this requirement because it meets EPA's guidance and because it is more current than 1990. EPA also proposes to determine that, if the 1-hour standard is deemed to be reinstated, the 2002 base year inventory for the 8-hour standard will provide an acceptable substitute for the base year inventory for the 1-hour standard. 4. Transport Region Requirements All areas in the Ozone Transport Region (OTR), both attainment and nonattainment, are subject to additional control requirements under section 184 for the purpose of reducing interstate transport of emissions that may contribute to downwind ozone nonattainment. The section 184 requirements include (RACT), NSR, enhanced vehicle inspection and maintenance, and Stage II vapor recovery or a comparable measure. In the case of the Franklin County Area, which is located in the OTR, nonattainment NSR will be applicable after redesignation. As discussed previously, EPA has fully approved Pennsylvania's NSR SIP revision which applies the requirements for NSR of section 184 of the CAA to attainment areas within the OTR. EPA has also interpreted the section 184 OTR requirements, including NSR, as not being applicable for purposes of redesignation. *See* 61 FR 53174, October 10, 1996 and 62 FR 24826, May 7, 1997 (Reading, Pennsylvania Redesignation). The rationale for this is based on two considerations. First, the requirement to submit SIP revisions for the section 184 requirements continues to apply to areas in the OTR after redesignation to attainment. Therefore, the State remains obligated to have NSR, as well as RACT, and I/M even after redesignation. Second, the section 184 control measures are region-wide requirements and do not apply to the area by virtue of the area's nonattainment designation and classification, and thus are properly considered not relevant to an action changing an area's designation. *See* 61 FR 53174 at 53175-53176 (October 10, 1996) and 62 FR 24826 at 24830-24832 (May 7, 1997). 5. The Franklin County Area Has a Fully Approved SIP for the Purposes of Redesignation EPA has fully approved the Pennsylvania SIP for the purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request. Calcagni Memo, p. 3; *Southwestern Pennsylvania Growth Alliance* v. *Browner,* 144 F. 3d 984, 989-90 (6th Cir. 1998), *Wall* v. *EPA,* 265 F.3d 426 (6th Cir. 2001), plus any additional measures it may approve in conjunction with a redesignation action. *See* 68 FR at 25425 (May 12, 2003) and citations therein. The Franklin County Area was a 1-hour incomplete data area at the time of its designation as a basic 8-hour ozone nonattainment area on April 30, 2004 (69 FR 23857). Because the Franklin County Area was a 1-hour incomplete data area, the only previous part D SIP submittal requirement was the RACT corrections due under section 182(a)(2)(A) and the comprehensive emissions inventory due under section 172(c)(3) for the 1-hour standard. The RACT corrections are fully approved (59 FR 65971, December 22, 1994), and, EPA is proposing to approve a comprehensive inventory for the area in this notice of proposed rulemaking. No other Part D submittal requirements have come due prior to the submittal of the 8-hour maintenance plan for the area. Therefore, all Part D submittal requirements have been fulfilled. Because there are no outstanding SIP submission requirements applicable for the purposes of redesignation of the Franklin County Area, the applicable implementation plan satisfies all pertinent SIP requirements. As indicated previously, EPA believes that the section 110 elements not connected with Part D nonattainment plan submissions and not linked to the area's nonattainment status are not applicable requirements for purposes of redesignation. EPA also believes that no 8-hour Part D requirements applicable for purposes of redesignation have yet become due for the Franklin County Area, and therefore they need not be approved into the SIP prior to redesignation. C. The Air Quality Improvement in the Franklin County Area Is Due to Permanent and Enforceable Reductions in Emissions Resulting From Implementation of the SIP and Applicable Federal Air Pollution Control Regulations and Other Permanent and Enforceable Reductions EPA believes that the Commonwealth has demonstrated that the observed air quality improvement in the Franklin County Area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal measures, and other State-adopted measures. Emissions reductions attributable to these rules are shown in Table 3. Table 3.—Total VOC and NO X Emissions for 2002 and 2004 in Tons per Day

(tpd)Year Point Area Nonroad Mobile Total Volatile Organic Compounds

(VOC)Year 2002 0.7 7.8 2.6 9.7 20.8 Year 2004 0.8 7.8 2.6 8.6 19.8 Difference (02-04) −0.1 0.0 0.0 1.1 1.0 Nitrogen Oxides (NO X ) Year 2002 0.4 0.7 4.2 18.3 23.6 Year 2004 0.6 0.7 4.0 16.5 21.8 Difference (02-04) −0.2 0.0 0.2 1.8 1.8 Between 2002 and 2004, VOC emissions were reduced by 1.1 tpd, and NO X emissions were reduced by 1.8 tpd, due to the following permanent and enforceable measures implemented or in the process of being implemented in the Franklin County Area: 1. Stationary Point Sources Interstate Pollution Transport Reduction (66 FR 43795, August 21, 2001). 2. Stationary Area Sources Solvent Cleaning (68 FR 2206, January 16, 2003). Portable Fuel Containers (69 FR 70893, December 8, 2004). 3. Highway Vehicle Sources Federal Motor Vehicle Control Programs (FMVCP). —Tier 1 (56 FR 25724, June 5, 1991). —Tier 2 (65 FR 6698, February 10, 2000). Heavy Duty Engines and Vehicles Standards (62 FR 54694, October 21, 1997 and 65 FR 59896, October 6, 2000). National Low Emission Vehicle

(NLEV)(64 FR 72564, December 28, 1999). Vehicle Safety Inspection Program (70 FR 58313, October 6, 2005). 4. Nonroad Sources Nonroad Diesel Engine and Fuel (69 FR 38958, June 29, 2004). EPA believes that permanent and enforceable emissions reductions are the cause of the long-term improvement in ozone levels and are the cause of the area achieving attainment of the 8-hour ozone standard. D. The Franklin County Area Has a Fully Approved Maintenance Plan Pursuant to Section 175A of the CAA In conjunction with its request to redesignate the Franklin County Area to attainment of the 8-hour ozone NAAQS, Pennsylvania submitted a SIP revision to provide for maintenance of the 8-hour ozone NAAQS in the Franklin County Area for at least 10 years after redesignation. Pennsylvania is requesting that EPA approve this SIP revision as meeting the requirement of section 175A of the CAA. Once approved, the maintenance plan for the 8-hour ozone NAAQS will ensure that the SIP for the Franklin County Area meets the requirements of the CAA regarding maintenance of the applicable 8-hour ozone standard. 1. What is required in a maintenance plan? Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after approval of a redesignation of an area to attainment. Eight years after the redesignation, the State must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the next 10-year period following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures, with a schedule for implementation, as EPA deems necessary to assure prompt correction of any future 8-hour ozone violations. Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The Calcagni memorandum dated September 4, 1992, provides additional guidance on the content of a maintenance plan. An ozone maintenance plan should address the following provisions:

(1)An attainment emissions inventory;

(2)A maintenance demonstration;

(3)A monitoring network;

(4)Verification of continued attainment; and

(5)A contingency plan. 2. Analysis of the Franklin County Area Maintenance Plan

(a)Attainment Inventory—An attainment inventory includes the emissions during the time period associated with the monitoring data showing attainment. An attainment year of 2004 was used for the Franklin County Area since it is a reasonable year within the 3-year block of 2002-2004 and accounts for reductions attributable to implementation of the CAA requirements to date. PADEP prepared comprehensive VOC and NO X emissions inventories for the Franklin County Area, including point, area, mobile on-road, and mobile non-road sources for a base year of 2002. To develop the NO X and VOC base year emissions inventories, PADEP used the following approaches and sources of data:

(i)*Point source emissions* —Pennsylvania requires owners and operators of larger facilities to submit annual production figures and emission calculations each year. Throughput data are multiplied by emission factors from Factor Information Retrieval

(ii)*Area source emissions* —Area source emissions are generally estimated by multiplying an emission factor by some known indicator or collective activity for each area source category at the county level. Pennsylvania estimates emissions from area sources using emission factors and SCC codes in a method similar to that used for stationary point sources. Emission factors may also be derived from research and guidance documents if those documents are more accurate than FIRE and AP-42 factors. Throughput estimates are derived from county-level activity data, by apportioning national and statewide activity data to counties, from census numbers, and from county employee numbers. County employee numbers are based upon North American Industry Classification System (NAICS) codes to establish that those numbers are specific to the industry covered.

(iii)*On-road mobile sources* —PADEP employs an emissions estimation methodology that uses current EPA-approved highway vehicle emission model, MOBILE 6.2, to estimate highway vehicle emissions. The Franklin County Area highway vehicle emissions in 2004 were estimated using MOBILE 6.2 and PENNDOT estimates of vehicles miles traveled

(VMT)by vehicle type and roadway type.

(iv)*Mobile nonroad emissions* —The 2002 emissions for the majority of nonroad emission source categories were estimated using the EPA NONROAD 2005 model. The NONROAD model estimates emissions for diesel, gasoline, liquefied petroleum gasoline, and compressed natural gas-fueled nonroad equipment types and includes growth factors. The NONROAD model does not estimate emissions from aircraft or locomotives. For 2002 locomotive emissions, PADEP projected emissions from a 1999 survey using national fuel information and EPA emission and conversion factors. There are no commercial aircraft operations in the Franklin County Area. For 2002 aircraft emissions, PADEP estimated emissions using small aircraft operation statistics from *http://www.airnav.com,* and emission factors and operational characteristics in the EPA-approved model, Emissions and Dispersion Modeling System (EDMS). The 2004 attainment year VOC and NO X emissions for the Franklin County Area are summarized along with the 2009 and 2018 projected emissions for this area in Tables 4 and 5, which cover the demonstration of maintenance for this area. EPA has concluded that Pennsylvania has adequately derived and documented the 2004 attainment year VOC and NO X emissions for this area.

(b)Maintenance Demonstration—On December 14, 2006, PADEP submitted a SIP revision to supplement its December 14, 2006, redesignation request. The submittal by PADEP consists of the maintenance plan as required by section 175A of the CAA. The Franklin County Area plan shows maintenance of the 8-hour ozone NAAQS by demonstrating that current and future emissions of VOC and NO X remain at or below the attainment year 2004 emissions levels throughout the Franklin County Area through the year 2018. The Franklin County Area maintenance demonstration need not be based on modeling. *See Wall* v. *EPA, supra; Sierra Club* v. *EPA, supra. See also,* 66 FR at 53099-53100; 68 FR at 25430-32. Tables 4 and 5 specify the VOC and NO X emissions for the Franklin County Area for 2004, 2009, and 2018. PADEP chose 2009 as an interim year in the 10-year maintenance demonstration period to demonstrate that the VOC and NO X emissions are not projected to increase above the 2004 attainment level during the time of the 10-year maintenance period. Table 4.—Total VOC Emissions for 2004-2018

(tpd)Source category 2004 VOC Emissions 2009 VOC Emissions 2018 VOC Emissions Mobile* 8.6 7.3 5.1 Nonroad 2.6 2.2 1.8 Area 7.8 7.8 8.0 Point 0.8 0.6 0.8 Total 19.8 17.9 15.7 * Includes safety margin for 2009 and 2018 identified in the motor vehicle emission budgets for transportation conformity. Table 5.—Total NO X Emissions 2004-2018

(tpd)Source category 2004 NO X Emissions 2009 NO X Emissions 2018 NO X Emissions Mobile* 16.5 12.7 6.7 Nonroad 4.0 3.4 2.2 Area 0.7 0.7 0.8 Point 0.6 0.3 0.3 Total 21.8 17.0 9.9 * Includes safety margin for 2009 and 2018 identified in the motor vehicle emission budgets for transportation conformity. The following are permanent and enforceable control measures to ensure emissions during the maintenance period are equal to or less than the emissions in the attainment year: 1. Pennsylvania's Portable Fuel Containers (December 8, 2004, 69 FR 70893); 2. Pennsylvania's Consumer Products ( December 8, 2004, 69 FR 70895); and 3. Pennsylvania's Architectural and Industrial Maintenance

(AIM)Coatings (November 23, 2004, 69 FR 68080). Additionally, the following mobile programs are either effective or due to become effective and will further contribute to the maintenance demonstration of the 8-hour ozone NAAQS: 1. FMVCP for passenger vehicles and light-duty trucks and cleaner gasoline (2009 and 2018 fleet)—Tier 1 and Tier 2; 2. NLEV Program, which includes the Pennsylvania's Clean Vehicle Program for passenger vehicles and light-duty trucks (69 FR 72564, December 28, 1999); 3. Heavy duty diesel on-road (2004/2007) and low-sulfur on-road

(2006)(66 FR 5002, January 18, 2001); and 4. Non-road emissions standards

(2008)and off-road diesel fuel (2007/2010) (69 FR 38958, June 29, 2004). In addition to the permanent and enforceable measures, the Clean Air Interstate Rule (CAIR), promulgated May 12, 2005 (70 FR 25162) should have positive impacts on Pennsylvania's air quality. CAIR, which will be implemented in the eastern portion of the country in two phases (2009 and 2015) should reduce long range transport of ozone precursors, which will have a beneficial effect on the air quality in the Franklin County Area. Pennsylvania and other nearby states are required to adopt a regulation implementing the requirements of CAIR or an equivalent program. On April 28, 2006 (71 FR 25328), EPA promulgated Federal Implementation Plans

(FIPs)to reduce the interstate transport of NO X and sulfur dioxides that contribute significantly to nonattainment and maintenance 8-hour ozone and PM 2.5 NAAQS. Because Pennsylvania will not adopt its own CAIR requirements and obtain approval of the required SIP revision by September 2006, the FIP will become operative, imposing the Federal program upon CAIR-affected electric generating units in Pennsylvania. Therefore, allowances for CAIR-related sources will be limited to no more than the allowances issued pursuant to the FIP. The Franklin County Area has no sources that are directly regulated by CAIR, and therefore is not showing an emission reduction from this regulation. However, the quality of air transported from upwind sources into the county would be improved. Based upon the comparison of the projected emissions and the attainment year emissions along with the additional measures, EPA concludes that PADEP has successfully demonstrated that the 8-hour ozone standard should be maintained in the Franklin County Area.

(c)Monitoring Network—There is currently one monitor measuring ozone in the Franklin County Area. Pennsylvania will continue to operate its current air quality monitor in accordance with 40 CFR part 58.

(d)Verification of Continued Attainment—The Commonwealth will track the attainment status of the ozone NAAQS in the Franklin County Area by reviewing air quality and emissions during the maintenance period. The Commonwealth will perform an annual evaluation of two key factors, VMT data and emissions reported from stationary sources, and compare them to the assumptions about these factors used in the maintenance plan. The Commonwealth will also evaluate the periodic (every three years) emission inventories prepared under EPA's Consolidated Emission Reporting Regulation (40 CFR 51 Subpart A) to see if the area exceed the attainment year inventory

(2004)by more than 10 percent. Based on these evaluations, the Commonwealth will consider whether any further emission control measures should be implemented.

(e)The Maintenance Plan's Contingency Measures—The contingency plan provisions are designed to promptly correct a violation of the NAAQS that occurs after redesignation. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to ensure that the State will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the events that would “trigger” the adoption and implementation of a contingency measure(s), the contingency measure(s) that would be adopted and implemented, and the schedule indicating the time frame by which the state would adopt and implement the measure(s). The ability of the Franklin County Area to stay in compliance with the 8-hour ozone standard after redesignation depends upon VOC and NO X emissions in the area remaining at or below 2004 levels. The Commonwealth's maintenance plan projects VOC and NO X emissions to decrease and stay below 2004 levels through the year 2018. The Commonwealth's maintenance plan outlines the procedures for the adoption and implementation of contingency measures to further reduce emissions should a violation occur. Contingency measures will be considered if for two consecutive years the fourth highest eight-hour ozone concentrations at the Franklin County Area monitor are above 84 ppb. If this trigger point occurs, the Commonwealth will evaluate whether additional local emission control measures should be implemented in order to prevent a violation of the air quality standard. PADEP will analyze the conditions leading to the excessive ozone levels and evaluate what measures might be most effective in correcting the excessive ozone levels. PADEP will also analyze the potential emissions effect of Federal, state and local measure that have been adopted but no yet implemented at the time of excessive ozone levels occurred. PADEP will then begin the process of implementing any selected measures. Contingency measures will be considered in the event that a violation of the 8-hour ozone standard occurs at the Franklin County, Pennsylvania monitor. In the event of a violation of the 8-hour ozone standard, contingency measures will be adopted in order to return the area to attainment with the standard. Contingency measures to be considered for the Franklin County Area will include, but not limited to the following: *Regulatory measures:* —Additional controls on consumer products —Additional control on portable fuel containers *Non-regulatory measures:* —Voluntary diesel engine “chip reflash”—installation software to correct the defeat device option on certain heavy duty diesel engines. —Diesel retrofit, including replacement, repowering or alternative fuel use, for public or private local onroad or offroad fleets. —Idling reduction technology for Class 2 yard locomotives. —Idling reduction technologies or strategies for truck stops, warehouses and other freight-handling facilities. —Accelerated turnover of lawn and garden equipment, especially commercial equipment, including promotion of electric equipment. —Additional promotion of alternative fuel (e.g., biodiesel) for home heating and agricultural use. *The following schedule applies to the implementation of the regulatory contingency measures:* —Within 1 month of the trigger, submit request to begin regulatory development process. —Within 3 months of the trigger, review of regulation by Air Quality Technical Advisory Committee (AQTAC), Citizens Advisory Council

(CAC)and other advisory committees as appropriate. —Within 6 months of the trigger, Environmental Quality Board

(IRRC)comment on proposed rule. —Within 13 months of the trigger, AQTAC, CAC and other committees review responses to comments and draft final rulemaking. —Within 16 months of the trigger, EQB meeting/action. —Within 17 months of the trigger, IRRC action on rulemaking. —Within 18 months of the trigger, Attorney General's review/action. —Within 19 months of the trigger, publication in the Pennsylvania Bulletin as a final rulemaking and submit to EPA as a SIP revision. The regulation would become effective upon publication in the Pennsylvania Bulletin. *The following schedule applies to the implementation of non-regulatory contingency measures:* —Within 2 months of the trigger: Identify stakeholders for potential non-regulatory measures. —Within 3 months of the trigger, if funding is necessary, identify potential sources of funding and the timeframe under which funds would be available. In addition to non-Title V Clean Air funds, the following program may be able to provide funding: For transportation projects, the Federal Highway Administration, as allocated to the Northern Tier Rural Planning Organization; for projects which will also have an energy efficient co-benefit, the Pennsylvania Energy Harvest program; for projects which would be under taken by small business and are pollution prevention projects, the Small Business Advantage Grant and Small Business Pollution Prevention Loan programs; for projects which will involve alternative fuels for vehicles/refueling operations, the Alternative Fuel Incentive Grant program; for projects involving diesel emissions, Federal Energy Policy Act diesel reduction funds allocated to Pennsylvania or for which Pennsylvania or project sponsors may apply under a competitive process. —Within 9 months of the trigger, enter into agreements with implementing organizations if state loans or grants are involved. Quantify projected emission benefits. —Within 12months of the trigger, submit a revised SIP to EPA. —Within 12-24 months of the trigger, implement strategies and projects. VII. Are the Motor Vehicle Emissions Budgets Established and Identified in the Maintenance Plan for the Franklin County Area Adequate and Approvable? A. What Are the Motor Vehicle Emissions Budgets? Under the CAA, States are required to submit, at various times, control strategy SIPs and maintenance plans in ozone areas. These control strategy SIPs (i.e. RFP SIPs and attainment demonstration SIPs) and maintenance plans identify and establish MVEBs for certain criteria pollutants and/or their precursors to address pollution from on-road mobile sources. Pursuant to 40 CFR part 93 and 51.112, MVEBs must be established in an ozone maintenance plan. A MVEB is the portion of the total allowable emissions that is allocated to highway and transit vehicle use and emissions. A MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble also describes how to establish and revise the MVEBs in control strategy SIPs and maintenance plans. Under section 176(c) of the CAA, new transportation projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the part of the State's air quality plan that addresses pollution from cars and trucks. “Conformity” to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of or reasonable progress towards the NAAQS. If a transportation plan does not “conform,” most new projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and assuring conformity of such transportation activities to a SIP. When reviewing submitted “control strategy” SIPs or maintenance plans containing MVEBs, EPA must affirmatively find the MVEB budget contained therein “adequate” for use in determining transportation conformity. After EPA affirmatively finds the submitted MVEB is adequate for transportation conformity purposes, that MVEB can be used by State and Federal agencies in determining whether proposed transportation projects “conform” to the SIP as required by section 176(c) of the CAA. EPA's substantive criteria for determining “adequacy” of a MVEB are set out in 40 CFR 93.118(e)(4). EPA's process for determining “adequacy” consists of three basic steps: Public notification of a SIP submission, a public comment period, and EPA's adequacy finding. This process for determining the adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 1999 guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” This guidance was finalized in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM 2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change” on July 1, 2004 (69 FR 40004). EPA follows this guidance and rulemaking in making its adequacy determinations. The MVEBs for the Franklin County Area are listed in Table 1 of this document for the 2009, and 2018 years and are the projected emissions for the on-road mobile sources plus any portion of the safety margin allocated to the MVEBs. These emission budgets, when approved by EPA, must be used for transportation conformity determinations. B. What Is a Safety Margin? A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. The following example is for the 2018 safety margin: The Franklin County Area first attained the 8-hour ozone NAAQS during the 2002 to 2004 time period. The Commonwealth used 2004 as the year to determine attainment levels of emissions for the Franklin County Area. The total emissions from point, area, mobile on-road, and mobile non-road sources in 2004 equaled 19.8 tpd of VOC and 21.8 tpd of NO X . PADEP projected emissions out to the year 2018 and projected a total of 15.7 tpd of VOC and 9.9 tpd of NO X from all sources in the Franklin County Area. The safety margin for Franklin for 2018 would be the difference between these amounts. This difference is 4.1 tpd of VOC and 11.9 tpd of NO X . The emissions up to the level of the attainment year including the safety margins are projected to maintain the area's air quality consistent with the 8-hour ozone NAAQS. The safety margin is the extra emissions reduction below the attainment levels that can be allocated for emissions by various sources as long as the total emission levels are maintained at or below the attainment levels. Table 6 shows the safety margins for the 2009 and 2018 years. Table 6.— 2009 and 2018 Safety Margins for the Franklin County Area Inventory year VOC Emissions

(tpd)NO X Emissions

(tpd)2004 Attainment 19.8 21.8 2009 Interim 17.9 17.0 2009 Safety Margin 1.9 4.8 2004 Attainment 19.8 21.8 2018 Final 15.7 9.9 2018 Safety Margin 4.1 11.9 PADEP allocated 0.7 tpd of VOC and 0.4 tpd of NO X emissions to the 2009 VOC projected on-road mobile source emissions projection and the 2009 NO X projected on-road mobile source emissions projection to arrive at the 2009 MVEBs. For the 2018 MVEBs the PADEP allocated 1.0 tpd of VOC and 0.7 tpd of NO X from the 2018 safety margins to arrive at the 2018 MVEBs. Once allocated to the mobile source budgets these portions of the safety margins are no longer available, and may no longer be allocated to any other source category. Table 7 shows the final 2009 and 2018 MVEBS for the Franklin County Area. Table 7.—2009 and 2018 Final MVEBs for the Franklin County Area in Tons per Day Rounded Up to Nearest 0.1 Tons per Day Inventory year VOC Emissions

(tpd)NO X Emissions

(tpd)2009 projected on-road mobile source projected emissions 6.6 12.3 2009 Safety Margin Allocated to MVEBs 0.7 0.4 2009 MVEBs 7.3 12.7 2018 projected on-road mobile source projected emissions 4.1 6.0 2018 Safety Margin Allocated to MVEBs 1.0 0.7 2018 MVEBs 5.1 6.7 C. Why Are the MVEBs Approvable? The 2009 and 2018 MVEBs for the Franklin County Area are approvable because the MVEBs for NO X and VOC, including the allocated safety margins, continue to maintain the total emissions at or below the attainment year inventory levels as required by the transportation conformity regulations. D. What Is the Adequacy and Approval Process for the MVEBs in the Franklin County Area Maintenance Plan? The MVEBs for the Franklin County Area maintenance plan are being posted to EPA's conformity Web site concurrent with this proposal. The public comment period will end at the same time as the public comment period for this proposed rule. In this case, EPA is concurrently processing the action on the maintenance plan and the adequacy process for the MVEBs contained therein. In this proposed rule, EPA is proposing to find the MVEBs adequate and also proposing to approve the MVEBs as part of the maintenance plan. The MVEBs cannot be used for transportation conformity until the maintenance plan update and associated MVEBs are approved in a final **Federal Register** notice, or EPA otherwise finds the budgets adequate in a separate action following the comment period. If EPA receives adverse written comments with respect to the proposed approval of the Franklin County Area MVEBs, or any other aspect of our proposed approval of this updated maintenance plan, we will respond to the comments on the MVEBs in our final action or proceed with the adequacy process as a separate action. Our action on the Franklin County Area MVEBs will also be announced on EPA's conformity Web site: *http://www.epa.gov/oms/traq* , (once there, click on the “Conformity” button, then look for “Adequacy Review of SIP Submissions for Conformity”). VIII. Proposed Actions EPA is proposing to determine that the Franklin County Area has attained the 8-hour ozone NAAQS. EPA is also proposing to approve the Commonwealth's December 14, 2006, request for the Franklin County Area to be designated to attainment of the 8-hour NAAQS for ozone. EPA has evaluated Pennsylvania's redesignation request and determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes that the redesignation request and monitoring data demonstrate that the area has attained the 8-hour ozone standard. The final approval of this redesignation request would change the designation of the Franklin County Area from nonattainment to attainment for the 8-hour ozone standard. EPA is also proposing to approve the associated maintenance plan and the 2002 base year inventory for the Franklin County Area, submitted on December 14, 2006, as revisions to the Pennsylvania SIP. EPA is proposing to approve the maintenance plan for the Franklin County Area because it meets the requirements of section 175A as described previously in this notice. EPA is also proposing to approve the MVEBs submitted by Pennsylvania for the Franklin County Area in conjunction with its redesignation request. EPA is also proposing to issue a determination pursuant to section 181(b)(2) that the area has attained the 1-hour ozone NAAQS and to find that the requirements of section 172(c)(1) concerning the submission of the ozone attainment demonstration and reasonably available control measure requirements, the requirements of section 172(c)(2) concerning reasonable further progress (RFP), and the requirements of section 172(c)(9) concerning contingency measures for RFP or attainment do not apply to the area for so long as it continues to attain the 1-hour NAAQS for ozone EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. IX. 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. Redesignation of an area to attainment under section 107(d)(3)(e) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. Redesignation of an area to attainment under section 107(d)(3)(E) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. 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 affect the status of a geographical area, does not impose any new requirements on sources, or allow the state to avoid adopting or implementing other requirements, 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. Redesignation is an action that affects the status of a geographical area and does not impose any new requirements on sources. 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 rule proposing to approve the redesignation of the Franklin County Area to attainment for the 8-hour ozone NAAQS, the associated maintenance plan, the 2002 base year inventory, and the MVEBs identified in the maintenance plan, does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. 40 CFR Part 81 Air pollution control, National parks, Wilderness areas. Authority: 42 U.S.C. 7401 *et seq.* Dated: May 22, 2007. Donald S. Welsh, Regional Administrator, Region III. [FR Doc. E7-10351 Filed 5-29-07; 8:45 am] BILLING CODE 6560-50-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Chapter 1 [WT Docket No. 99-217; CC Docket No. 96-98; DA 07-1485] Parties Asked To Refresh Record Regarding Promotion of Competitive Networks in Local Telecommunications Markets AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: This document invites interested parties to update the record pertaining to issues raised in the Commission's Competitive Networks proceeding in light of marketplace and industry developments. DATES: Comments due on or before July 30, 2007, reply comments due on or before August 28, 2007. ADDRESSES: All filings must be addressed to the Commission's Secretary, Marlene H. Dortch , Office of the Secretary, Federal Communications Commission, Room 5-A266, 445 12th Street, SW., Washington, DC. Comments may be submitted, identified by WT Docket No. 99-217 and CC Docket No. 96-98, by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *Agency Web site: http://www.fcc.gov.* Follow the instructions for submitting comments on the Electronic Comment Filing System (ECFS): *http://www.fcc.gov/cgb/ecfs/.* • *E-mail:* To *jeremy.miller@fcc.gov.* Include WT Docket No. 99-217 and CC Docket No. 96-98 in the subject line of the message. • *Fax:* To the attention of Jeremy Miller at 202-418-1413. Include WT Docket No. 99-217 and CC Docket No. 96-98 on the cover page. • *Mail:* Parties should send a copy of their filings to Jeremy Miller, Competition Policy Division, Wireline Competition Bureau, Federal Communications Commission, Room 5-B145, 445 12th Street, SW., Washington, DC 20554. • *Public inspection, purchase, or download:* The full text of the document summarized here is available for inspection and copying during normal business hours in the FCC Reference Center, Portals II, 225 12th Street, SW., Room CY-A257, Washington, DC 20504. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, and may also be downloaded at: *http://www.fcc.gov.* *People with Disabilities:* To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). *Instructions:* All submissions received must include the agency name and docket number. All comments received will be posted without change to *http://www.fcc.gov/cgb/ecfs/* , including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Comment Filing Procedures” heading of the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Jeremy Miller, Wireline Competition Bureau, Competition Policy Division,

(202)418-1580. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's document in WT Docket No. 99-217 and CC Docket No. 96-98, DA No. 07-1485, released March 28, 2007. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: *http://www.fcc.gov.* By this document, the Commission establishes comment and reply comment filing dates for receiving updated comments and refreshing the record on a Further Notice of Proposed Rulemaking addressing the status of the market for the provision of telecommunications services in Multiple Tenant Environments (MTEs), and on whether the prohibition on exclusive access contracts in commercial MTEs should be extended to residential MTEs. The filing dates established replace filing dates previously established in the Competitive Networks Further Notice of Proposed Rulemaking, DA 01-750, 66 FR 2322, January 11, 2001, released by the Commission on October 25, 2000. The proceeding for which the Commission seeks to refresh the record is intended to enable the Commission to undertake appropriate review of the status of the deployment of competitive and advanced telecommunications services in MTEs, and to determine whether additional action is necessary to address the ability of premises owners to discriminate unreasonably among competing telecommunications service providers. Interested parties may file comments on or before July 30, 2007 and reply comments on or before August 28, 2007. Comments may be filed using the Commission's Electronic Comment Filing System

(ECFS)or by filing paper copies. Comments filed through the ECFS can be sent as an electronic file via the Internet to *http://www.fcc.gov/cgb/ecfs/.* Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of the proceeding, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number, in this case, WT Docket No. 99-217 and CC Docket No. 96-98. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to *ecfs@fcc.gov* , and should include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. Paper filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). Parties are strongly encouraged to file comments electronically using the Commission's ECFS. The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. Parties should also send a copy of their filings to Jeremy Miller, Competitive Policy Division, Wireline Competition Bureau, Federal Communications Commission, Room 5-B145, 445 12th Street, SW., Washington, DC 20554, or by e-mail to *Jeremy.Miller@fcc.gov.* Parties shall also serve one copy with the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554,

(202)488-5300, or via e-mail to *fcc@bcpiweb.com.* Documents in WT Docket No. 99-217 and CC Docket No. 96-98 will be available for public inspection and copying during business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The documents may also be purchased from BCPI, telephone

(202)488-5300, facsimile

(202)488-5563, TTY

(202)488-5562, e-mail *fcc@bcpiweb.com.* To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's *ex parte* rules. 47 CFR 1.1200 *et seq.* Persons making oral *ex parte* presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one-or two-sentence description of the views and arguments presented generally is required. 47 CFR 1.1206(b)(2). Other requirements pertaining to oral and written presentations are set forth in § 1.1206(b) of the Commission's rules. 47 CFR 1.1206(b). Federal Communications Commission. Kirk S. Burgee, Chief of Staff, Wireline Competition Bureau. [FR Doc. E7-10078 Filed 5-29-07; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 15 [ET Docket No. 03-237; FCC 07-78] Interference Temperature Operation AGENCY: Federal Communications Commission. ACTION: Termination of proceeding. SUMMARY: This document terminates the “Interference Temperature Model for Quantifying and Managing Interference” proceeding. While there was some support in the record for adopting an interference temperature approach, no parties provided information on specific technical rules that we could adopt to implement it. Further, with the passage of time, the NOI/NPRM and the record in this proceeding have become outdated. The Commission is therefore terminating this proceeding without prejudice to its substantive merits. DATES: This proceeding is terminated as of May 4, 2007. FOR FURTHER INFORMATION CONTACT: Hugh VanTuyl, Policy and Rules Division, Office of Engineering and Technology,

(202)418-7506, e-mail *Hugh.VanTuyl@fcc.gov.* SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Order,* ET Docket No. 03-237, FCC 07-78, adopted May 2, 2007 and released May 4, 2007. The full text of this document is available on the Commission's Internet site at *www.fcc.gov.* It is also available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The full text of this document also may be purchased from the Commission's duplication contractor, Best Copy and Printing Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554; telephone

(202)488-5300; fax

(202)488-5563; e-mail *FCC@BCPIWEB.COM.* Summary of the Order 1. On November 13, 2003, the Commission adopted a *Notice of Inquiry and Notice of Proposed Rule Making* (NOI/NPRM), 69 FR 2863, January 21, 2004, in this proceeding. The *NOI/NPRM* sought comment on the need for, development of, and implementation of, a new “interference temperature” model for managing interference. That approach would shift the current method of assessing interference which is based on transmitter operations, to an approach that takes into account the cumulative effects of all undesired radiofrequency energy, i.e., energy that may result in interference from both transmitters and noise sources, that is present at a receiver at any instance of time. The NOI/NPRM also sought comment on establishing interference temperature limits and procedures for assessing interference temperature in the 6525-6700 MHz band and portions of the 12.75-13.25 GHz band. 2. Commenting parties generally argued that the interference temperature approach is not a workable concept and would result in increased interference in the frequency bands where it would be used. While there was some support in the record for adopting an interference temperature approach, no parties provided information on specific technical rules that we could adopt to implement it. Further, with the passage of time, the NOI/NPRM and the record in this proceeding have become outdated. The Commission is therefore terminating this proceeding without prejudice to its substantive merits. 3. The Commission will not send a copy of this *Order* in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A), because the *Order* does not adopt any rules it only terminates the proceeding. Ordering Clauses 4. Pursuant to sections 4(i) and 4(j) of the Communications Act, 47 U.S.C. sections 154(i) and 154(j), ET Docket No. 03-237 is terminated, as of May 4, 2007. Federal Communications Commission Marlene H. Dortch, Secretary. [FR Doc. E7-10337 Filed 5-29-07; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 27 [WT Docket No. 06-150; WT Docket No. 06-169; PS Docket No. 06-229; WT Docket No. 96-86; DA 07-2197] Comment Sought on Google Proposals Regarding Service Rules for 700 MHz Spectrum AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: In this document, the Wireless Telecommunications Bureau seeks comments on a proposal recently submitted by Google regarding service rules for the 700 MHz spectrum that is to be auctioned. Google requests that the Commission clarify the service rules governing the 700 MHz bands and declare that the rules allow the use of “dynamic auction mechanisms” such as real-time auctions and per-device registration fees. Google also requests that the Commission posit at least whether it would be in the public interest to mandate the use of such mechanisms for some, or even all, of the commercial spectrum to be auctioned in the 700 MHz bands. The document also seeks comment on Google's proposal that the unpaired 6 megahertz E Block (722-728 MHz) in the current Lower 700 MHz band plan should be designated primarily or exclusively to be used for deployment of broadband communications platforms. Finally, the document seeks comment on the Initial Regulatory Flexibility Analysis. DATES: Comments due on or before June 6, 2007 and reply comments are due on or before June 13, 2007. ADDRESSES: You may submit comments, identified by WT Docket No. 06-150; WT Docket No. 06-169; PS Docket No. 06-229; WT Docket No. 96-86, by any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the instructions for submitting comments. • Federal Communications Commission's Web site: *http://www.fcc.gov/cgb/ecfs/.* Follow the instructions for submitting comments. • E-mail: Include the docket numbers in the subject line of the message. • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: *FCC504@fcc.gov* or phone: 202-418-0530 or TTY: 202-418-0432. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: John Branscome, Spectrum and Competition Policy Division, Wireless Telecommunications Bureau, at 202-418-8205 or by e-mail at *John.Branscome@fcc.gov.* SUPPLEMENTARY INFORMATION: This is a summary of the Public Notice released May 24, 2007, DA 07-2197. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before the date indicated on the first page of this document. Comments may be filed using:

(1)The Commission's Electronic Comment Filing System (ECFS),

(2)the Federal Government's eRulemaking Portal, or

(3)by filing paper copies. *See Electronic Filing of Documents in Rulemaking Proceedings,* 63 FR 24121 (1998). • Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: *http://www.fcc.gov/cgb/ecfs/* or the Federal eRulemaking Portal: *http://www.regulations.gov.* Filers should follow the instructions provided on the Web site for submitting comments. • For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to *ecfs@fcc.gov,* and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. • Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. • The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington DC 20554. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). Synopsis of the Public Notice On April 27, 2007, the Commission released a Report and Order (72 FR 27688) and Further Notice of Proposed Rulemaking (72 FR 24238), which addresses rules governing wireless licenses in the 698-806 MHz Band (herein, the “700 MHz Band”). This spectrum currently is occupied by television broadcasters in TV channels 52-69 and is being made available for wireless services, including public safety and commercial services, as a result of the digital television (“DTV”) transition. On May 21, 2007, Google Inc. (“Google”) filed an *ex parte* letter asking that the Commission seek immediate comment on certain proposals regarding the service rules for the 700 MHz Band spectrum that is to be auctioned. In the Public Notice, the Wireless Telecommunications Bureau seeks comment on those proposals as well as any other alternative approaches for conditioning the licenses that will be auctioned. Google requests that the Commission clarify that the Commission's existing rules governing commercial spectrum in the 700 MHz Band already allow licensees to utilize “dynamic auction mechanisms,” such as real-time auctions and per-device registration fees. In Google's real-time airwaves auction model, a licensee could bestow the right to transmit an amount of power for a unit of time, with the total amount of power in any location being limited to a specified cap. According to Google, as part of a real-time auction process, the communications device itself could become key to the payment process. For example, a consumer's price to purchase a device could include an airwaves registration fee that would grant the ability to gain unlimited use at a specified power level. The Public Notice seeks comment broadly on the extent to which the Commission's existing rules permit 700 MHz licensees to employ such “dynamic spectrum management techniques.” To the extent they are not currently permitted, the Notice asks whether the Commission should modify any of its rules to permit their use. Google also requests that the Commission posit at least whether it would be in the public interest to mandate the use of such techniques for some, or even all, of the commercial spectrum to be auctioned in the 700 MHz bands. The Public Notice seeks comment on whether the Commission should mandate such an approach, and if so, to what extent. The Public Notice also seeks comment on Google's proposal that the unpaired 6 megahertz E Block (722-728 MHz) in the current Lower 700 MHz band plan should be designated primarily or exclusively to be used for deployment of interactive, two-way broadband services; connected to the public internet; and used to support innovative software-based applications, services and devices. Initial Regulatory Flexibility Analysis As required by the Regulatory Flexibility Act of 1980, as amended (the “RFA”), the Commission has prepared this Initial Regulatory Flexibility Analysis (“IRFA”) of the possible significant economic impact of the policies and rules proposed in the Public Notice on a substantial number of small entities. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadline for comments on the Public Notice. The Commission will send a copy of the Public Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”). In addition, the Public Notice and IRFA (or summaries thereof) will be published in the **Federal Register** . Although Section 213 of the Consolidated Appropriations Act of 2000 provides that the RFA shall not apply to the rules and competitive bidding procedures for frequencies in the 746-806 MHz Band, the Commission believes that it would serve the public interest to analyze the possible significant economic impact of the proposed policy and rule changes in this band on small entities. Accordingly, this IRFA contains an analysis of this impact in connection with all spectrum that falls within the scope of this Public Notice, including spectrum in the 746-806 MHz Band. A. Need for, and Objectives of, the Proposed Rules The Public Notice seeks comments broadly on a proposal recently submitted by Google and on any other alternative approaches for conditioning the licenses that will be auctioned in the 700 MHz band. Google requests that the Commission clarify the service rules governing the 700 MHz bands and declare that the rules allow the use of “dynamic auction” mechanisms such as real-time auctions and per-device registration fees. Google also asks the Commission to consider whether it would be in the public interest to mandate such mechanisms for some, or even all, of the commercial spectrum to be auctioned in the 700 MHz bands. The Public Notice also seeks comment on Google's proposal that the unpaired 6 MHz E Block (722-728 MHz) in the current Lower 700 MHz band plan should be designated primarily or exclusively to be used for deployment of broadband communications platforms. B. Legal Basis The legal authority for the actions proposed in this Public Notice are contained in sections 1, 2, 4(i), 5(c), 7, 10, 201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 332, 333, 336, 337, 614, 615, and 710 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152, 154(i), 155(c), 157, 160, 201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 332, 333, 336, 337, 534, 535, and 610. C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which:

(1)Is independently owned and operated;

(2)is not dominant in its field of operation; and

(3)satisfies any additional criteria established by the Small Business Administration (“SBA”). *Small Businesses.* Nationwide, there are a total of approximately 22.4 million small businesses, according to SBA data. *Small Organizations.* Nationwide, there are approximately 1.6 million small organizations. *Governmental Entities.* The term “small governmental jurisdiction” is defined as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” As of 2002, there were approximately 87,525 governmental jurisdictions in the United States. This number includes 38,967 county governments, municipalities, and townships, of which 37,373 (approximately 95.9%) have populations of fewer than 50,000, and of which 1,594 have populations of 50,000 or more. Thus, we estimate the number of small governmental jurisdictions overall to be 85,931 or fewer. *Wireless Service Providers.* The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under both categories, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the majority of firms can, again, be considered small. Under this Public Notice, any of the changes to the Commission's rules which may occur as a result of the Public Notice would be limited to the 698-806 MHz spectrum band. Since this rulemaking proceeding applies to services in that band, this IRFA analyzes the number of small entities affected on a service-by-service basis. When identifying small entities that could be affected by the Commission's new rules, this IRFA provides information describing auctions results, including the number of small entities that were winning bidders. However, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily reflect the total number of small entities currently in a particular service. The Commission does not generally require that licensees later provide business size information, except in the context of an assignment or transfer of control application where unjust enrichment issues are implicated. Consequently, to assist the Commission in analyzing the total number of potentially affected small entities, the Commission requests commenters to estimate the number of small entities that may be affected by any rule changes that might result from this Public Notice. *700 MHz Guard Band Licenses.* In the 700 MHz Guard Band Order, the Commission adopted size standards for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A small business in this service is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. Additionally, a “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. SBA approval of these definitions is not required. An auction of 52 Major Economic Area

(MEA)licenses commenced on September 6, 2000, and closed on September 21, 2000. Of the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of 700 MHz Guard Band licenses commenced on February 13, 2001, and closed on February 21, 2001. All eight of the licenses auctioned were sold to three bidders. One of these bidders was a small business that won a total of two licenses. *Upper 700 MHz Band Licenses.* The Commission released a Report and Order authorizing service in the Upper 700 MHz band. An auction for these licenses, previously scheduled for January 13, 2003, was postponed. *Lower 700 MHz Band Licenses.* The Commission adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. The Commission has defined a small business as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. A very small business is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. Additionally, the Lower 700 MHz Band has a third category of small business status that may be claimed for Metropolitan/Rural Service Area (MSA/RSA) licenses. The third category is entrepreneur, which is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. The SBA has approved these small size standards. An auction of 740 licenses (one license in each of the 734 MSAs/RSAs and one license in each of the six Economic Area Groupings (EAGs)) commenced on August 27, 2002, and closed on September 18, 2002. Of the 740 licenses available for auction, 484 licenses were sold to 102 winning bidders. Seventy-two of the winning bidders claimed small business, very small business or entrepreneur status and won a total of 329 licenses. A second auction commenced on May 28, 2003, and closed on June 13, 2003, and included 256 licenses: 5 EAG licenses and 476 CMA licenses. Seventeen winning bidders claimed small or very small business status and won sixty licenses, and nine winning bidders claimed entrepreneur status and won 154 licenses. *Public Safety Radio Licensees.* As a general matter, public safety radio licensees include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. The SBA rules contain a small business size standard for cellular and other wireless telecommunications companies, which encompasses business entities engaged in wireless communications employing no more than 1,500 persons. According to Census Bureau data for 2002, in this category there were 8,863 firms that operated for the entire year. Of this total, 401 firms had 100 or more employees, and the remainder had fewer than 100 employees. With respect to local governments, in particular, since many governmental entities as well as private businesses comprise the licensees for these services, we include under public safety services the number of government entities affected. *Wireless Communications Equipment Manufacturers; Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing.* The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA has developed a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing, which is: All such firms having 750 or fewer employees. According to Census Bureau data for 2002, there were a total of 1,041 establishments in this category that operated for the entire year. Of this total, 1,010 had employment of under 500, and an additional 13 had employment of 500 to 999. Thus, under this size standard, the majority of firms can be considered small. D. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements Google requests that the Commission clarify that the existing rules governing the commercial bands of the 700 MHz spectrum already allow licensees to utilize what it describes as “dynamic spectrum management techniques.” Google provides as examples “real-time airwaves auctions” and “device-driven registration.” According to Google, in real-time airwaves auctions, a licensee can bestow the right to transmit an amount of power for a unit of time, with the total amount of power in any location being limited to a specified cap. With a per-device registration process, Google states, the communications device itself can become a key to the payment process, and that a consumer's price to purchase a device could include an airwaves registration fee that would grant the ability to gain unlimited use at a specified power level. Under its proposal, Google states that a licensee would simply purchase spectrum initially in the up-front auction, and then recover its costs over time by charging third parties for real-time and place use. The Public Notice seeks comment broadly on the extent to which the Commission's existing rules permit 700 MHz licensees to employ such “dynamic spectrum management techniques,” and on whether the Commission should modify any of its rules to permit their use. The Public Notice also seeks comment on Google's request that the Commission posit at least whether it would be in the public interest to mandate the use of such techniques for some, or even all, of the commercial spectrum to be auctioned in the 700 MHz bands. The Public Notice also seeks comment on Google's proposal that the unpaired 6 MHz E Block (722-728 MHz) in the current Lower 700 MHz band plan should be designated primarily or exclusively to be used for deployment of interactive, two-way broadband services; connected to the public internet; and used to support innovative software-based applications, services and devices. E. Steps Taken To Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;

(2)the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;

(3)the use of performance rather than design standards; and

(4)an exemption from coverage of the rule, or any part thereof, for such small entities.” The Public Notice seeks comment on the relative merits of dynamic auction techniques. The Public Notice also seeks comment on whether the Commission should designate the unpaired 6 MHz E Block (722-728 MHz) in the current Lower 700 MHz band plan primarily or exclusively for deployment of broadband communications platforms. To assist the Commission in its analysis, commenters are requested to provide information regarding how small entities would be affected if the Commission were to adopt Google's proposals. Commenters should also provide information on alternative approaches to alleviate any potential burdens on small entities. F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules None. Federal Communications Commission. James D. Schlichting, Deputy Chief. [FR Doc. E7-10417 Filed 5-29-07; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Mt. Charleston Blue Butterfly as Threatened or Endangered AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of 90-day petition finding. SUMMARY: We, the Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the Mt. Charleston blue butterfly ( *Icaricia shasta charlestonensis* ) as threatened or endangered under the Endangered Species Act of 1973, as amended (Act). We find that the petition presents substantial scientific or commercial information indicating that listing the Mt. Charleston blue butterfly may be warranted. Therefore, with the publication of this notice, we are initiating a status review of this subspecies, and we will issue a 12-month finding to determine if the petitioned action is warranted. To ensure that the status review of the Mt. Charleston blue butterfly is comprehensive, we are soliciting scientific and commercial data regarding this subspecies. A determination on critical habitat will be made if and when a listing action is initiated for this subspecies. DATES: The finding announced in the document was made on May 30, 2007. To be considered in the 12-month finding for this petition, comments and information should be submitted to us by July 30, 2007. ADDRESSES: Data, information, comments, or questions concerning this petition and our finding should be submitted to the Field Supervisor, Nevada Fish and Wildlife Office, U.S. Fish and Wildlife Service, by mail at 4701 North Torrey Pines Drive, Las Vegas, NV, 89130, or by fax at

(702)515-5231. The petition is available at *http://www.fws.gov/nevada.* The petition, supporting data, and comments will be available for public inspection, by appointment, during normal business hours at the Nevada Fish and Wildlife Office at the above address. FOR FURTHER INFORMATION CONTACT: Robert D. Williams, Field Supervisor, Nevada Fish and Wildlife Office (see ADDRESSES ) (telephone 702/515-5230; facsimile 702/515-5231). SUPPLEMENTARY INFORMATION: Public Information Solicited When we make a finding that substantial information is presented to indicate that listing a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information on the Mt. Charleston blue butterfly. We request any additional information, comments, and suggestions from the public, other concerned governmental agencies, North American tribes, the scientific community, industry, or any other interested parties concerning the status of the Mt. Charleston blue butterfly. We are seeking information regarding the subspecies' historical and current status and distribution, its ecology, ongoing conservation measures for the subspecies and its habitat, and threats to the subspecies and its habitat. We will base our 12 month finding on a review of the best scientific and commercial information available, including all information received during the public comment period. If you wish to provide comments you may submit your comments and materials concerning this finding to the Field Supervisor, Nevada Fish and Wildlife Office (see ADDRESSES section). Please note that comments merely stating support or opposition to the actions under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species shall be made “solely on the basis of the best scientific and commercial data available.” At the conclusion of the status review, we will issue the 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act. If you wish to comment or provide information, you may submit your comments and materials concerning this finding to the Field Supervisor (see ADDRESSES section). 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. Background Section 4(b)(3)(A) of the Act requires that the U.S. Fish and Wildlife Service (Service) make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. This finding is based on information contained in the petition and information otherwise available in our files at the time we make the finding. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition, and publish our notice of the finding promptly in the **Federal Register.** Our standard for substantial scientific or commercial information within the Code of Federal Regulations

(CFR)with regard to a 90-day finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly commence a status review of this subspecies, if one has not already been initiated under our internal candidate assessment process. In making this finding, we relied on information provided by the petitioner and otherwise available in our files at the time of the petition review. We evaluated this information in accordance with 50 CFR 424.14(b). The process of making a 90-day finding under section 4(b)(3)(A) of the Act is based on a determination of whether the information in the petition meets the “substantial scientific or commercial information” threshold. On October 20, 2005, we received a petition from The Urban Wildlands Group, Inc., requesting to emergency-list the Mt. Charleston blue butterfly ( *Icaricia shasta charlestonensis* ) as a threatened or endangered species. In a letter dated April 20, 2006, we responded to the petitioner that our initial review did not indicate that an emergency situation existed, but that if conditions changed an emergency rule could be developed. This correspondence also indicated that funding was provided to address this petition in Fiscal Year 2006 and that we anticipated making an initial finding early in Fiscal Year 2007 as to whether or not the petition contained substantial information. The purpose of this finding is to determine whether or not the petition presented substantial information regarding the status of this subspecies within the context of the Act. The petition clearly identified itself as such and included the requisite identification information of the petitioner, as required in 50 CFR 424.14(a). Species Information The Mt. Charleston blue butterfly is a distinctive subspecies of the wider ranging Shasta blue butterfly ( *Icaricia shasta* ), which is a member of Lycaenidae (little butterfly family). The subspecies is known only from the high elevations of the Spring Mountains, located approximately 25 miles (40 kilometers (km)) west of Las Vegas in Clark County, Nevada (Austin 1980, p. 20; Scott 1986, p. 410). Within *Icaricia shasta* there are six subspecies: *I. s. calchas, I. s. shasta, I. s. minnehaha, I. s. charlestonensis, I. s. pallidissima,* and *I. s. pitkinensis* (Scott 1986, p. 410; Murphy 2006, p. 3). The first mention of *I. s. charlestonensis* as a unique taxon was in 1928 by Garth, who recognized it as distinct from the species *shasta* (Austin 1980, p. 20). Howe in 1975 described specimens from the Spring Mountains as *I. s. shasta* form *comstocki* (Austin 1980, p. 20). However, in 1976, Ferris placed the subspecies into the wider ranging *I. s. minnehaha* (Austin 1980, p. 20). Finally, Austin

(1980)asserted that Ferris had not included populations from the Sierra Nevada in his study, and in light of the geographic isolation and distinctiveness of the Spring Mountains *shasta* population, and the presence of at least three other well defined races of butterflies endemic to the area, it was appropriate to name this population as the individual subspecies *charlestonensis* (Austin 1980, p. 20). This name and subspecies classification has been retained in the most recent treatments of butterfly taxonomy (Opler and Warren 2002, p. 79). The wing span of *Icaricia shasta* is 3/4 to 1 inch (19 to 26 millimeters (mm)) (Opler 1999, p. 251). Males and females of *Icaricia shasta* are dimorphic. The upperside of males is dark to dull iridescent blue, and females are brown with a blue overlay. The subspecies has a discal black spot on the forewing and a row of submarginal black spots on the hindwing. The underside is gray, with a pattern of black spots, brown blotches, and pale wing veins to give it a mottled appearance. The underside of the hindwing has an inconspicuous band of submarginal metallic spots (Opler 1999, p. 251). Based on morphology, *I. s. charlestonensis* appears to be most closely related to the Great Basin populations of *I. s. minnehaha* (Austin 1980, p. 23) and can be distinguished from *I. s. minnehaha* by sharper and blacker post medial spots on the underside of the hindwing (Scott 1986, p. 410). Weiss *et al.* (1997, pp. 10-11) describe the natural habitat for the Mt. Charleston blue as relatively flat ridgelines above 8,202 feet (2,500 meters); however, isolated individuals have been observed as low as 6,562 feet (2,000 meters). Like many butterfly species, the Mt. Charleston blue butterfly is dependent on plants both during larval development (larval host plants) and the adult butterfly flight period (nectar plants). The butterfly requires open habitats that support Torrey's milkvetch ( *Astragalus calycosus* var. *mancus* ), the only known larval host plant for the subspecies (Weiss *et al.* 1994, p. 3; Weiss *et al.* 1997, p. 10). Torrey's milkvetch and Clokey fleabane ( *Erigeron clokeyi* ) are the primary nectar plants for the subspecies; however, butterflies have also been observed nectaring on Lemmon's bitterweed ( *Hymenoxys lemmonii* ) and *Aster* sp. (Boyd 2005, p. 1; Weiss *et al.* 1994, p. 3). Torrey's milkvetch is a small, low growing, perennial herb that grows in open areas between 5,000-10,804 feet (1,524-3,293 meters) in subalpine, bristlecone, and mixed conifer vegetation communities of the Spring Mountains. Weiss *et al.* (1997, p. 31) describe favorable habitat for the Mt. Charleston blue butterfly as having high densities of Torrey's milkvetch, which exceed 10 plants per square meter. Good habitat contains relatively little grass cover and visible mineral soil (Boyd 2005, p. 1; Service 2006a, p. 1). The Mt. Charleston blue butterfly is generally presumed to diapause (period of suspended growth or development similar to hibernation) at the base of the larval host plant or in the surrounding substrate for at least one season (Boyd 2005, p. 1). The typical flight and breeding period for the butterfly is early July to mid-August with a peak in late July, although the species has been observed as early as mid-June and as late as mid-September (Austin 1980, p. 22; Boyd and Austin 1999, p. 17; Forest Service 2006a, p. 9). As with most butterflies, the Mt. Charleston blue butterfly typically flies during sunny conditions, which are particularly important for this subspecies given the cooler air temperatures at high elevations (Weiss *et al.* 1997, p. 31). Excessive winds also deter flight of most butterflies, although Weiss *et al.* (1997, p. 31) speculate this may not be a significant factor for the Mt. Charleston blue butterfly given its low-to-the-ground flight pattern. Other than observations by surveyors, little information is known regarding the phenology of the Mt. Charleston blue butterfly, as the key determinants for the interactions between the butterfly's flight and breeding period, larval host plant, and environmental conditions have not been specifically studied. Observations indicate that above or below average precipitation, coupled with above or below average temperatures, influence the phenology of this subspecies (Weiss *et al.* 1997, pp. 2-3 and 32; Boyd and Austin 1999, p. 8). Based on current and historic occurrences, the geographic range of the Mt. Charleston blue butterfly is on the east side of the Spring Mountains, centered on lands managed by the Forest Service in the Spring Mountains National Recreation Area of the Humboldt-Toiyabe National Forest within Kyle and Lee Canyons, Clark County, Nevada. The majority of the occurrences or observations are in the Lee Canyon area, with a few in Kyle Canyon. Table 1 identifies the fifteen separate current and historic locations of the Mt. Charleston blue butterfly that are documented in the petition or identified in the State of Nevada Natural Heritage Program database (The Urban Wildlands Group, Inc. 2005, pp. 1-3; Service 2006b, pp. 2-4). Table 1.—Locations or Occurrences of the Mt. Charleston Blue Butterfly since 1928 and the Status of the Butterfly at the Locations Location name First/last time surveyed or observed Status Primary references 1. South Loop Trail, Kyle Canyon 1995/2005 Presumed extant—core colony Weiss *et al.* 1997. 2. LVSSR #1, Lee Canyon 1995/2005 Presumed extant—core colony 1 Weiss *et al.* 1997; Boyd and Austin 2002. 3. LVSSR #2, Lee Canyon 1963/2005 Presumed extant—core colony 1 Austin 1980; Weiss *et al.* 1994; Weiss *et al.* 1997; Boyd and Austin 2002. 4. Foxtail Camp, Lee Canyon 1998/1998 Presumed extant—ephemeral Boyd and Austin 1999. 5. Youth Camp, Lee Canyon 1995/1995 Presumed extant—ephemeral Weiss *et al.* 1997. 6. Gary Abbott, Lee Canyon 1995/1995 Presumed extant—ephemeral Weiss *et al.* 1997. 7. LVSSR Parking, Lee Canyon 1995/1995 Presumed extant—ephemeral Weiss *et al.* 1997. 8. Mummy Spring, Kyle Canyon 1995/1995 Presumed extant—ephemeral 2 Weiss *et al.* 1997. 9. Lee Meadow, Lee Canyon 1965/1995 Presumed extant—ephemeral Weiss *et al.* 1997. 10. Lee Canyon holotype 1963/1976 Presumed extirpated 2 Austin 1963; Austin 1980; Weiss *et al.* 1997. 11. Cathedral Rock, Kyle Canyon 1972/1972 Presumed extirpated Austin 1980; Weiss *et al.* 1997. 12. Kyle Canyon Ski Area 1965/1972 Presumed extirpated 2 Austin 1980; Weiss *et al.* 1997. 13. Old Town, Kyle Canyon 1970s/1970s Presumed extirpated 3 The Urban Wildlands Group, Inc. 2005. 14. Deer Creek, Kyle Canyon 1950/1950 Presumed extirpated Austin 1980. 15. Willow Creek 1928/1928 Presumed extirpated Austin 1980; Weiss *et al.* 1997. 1 LVSSR = Las Vegas Ski & Snowboard Resort; LVSSR #2 is not identified as a separate site in Nevada Natural Heritage Program database (likely combined by Heritage with LVSSR #1). 2 Location is not mentioned in the petition. 3 Location is not identified in the Nevada Natural Heritage Program database. The Service presumes that the Mt. Charleston blue butterfly is extirpated from a location when it has not been sighted at that location through formal surveys or informal observation for more than twenty years. We presume the Mt. Charleston blue butterfly is extirpated from 6 of the 15 locations as noted in Table 1 (The Urban Wildlands Group, Inc. 2005, pp. 1-3; Service 2006b, pp. 8-9). The status of the Mt. Charleston blue butterfly at a location is described as presumed extant—ephemeral by the Service when the location is within the extant range of the subspecies and is within potential recruitment distance of an extant core colony. The butterfly exhibits metapopulation dynamics at these locations, likely emigrating to these smaller patches of habitat from the core colonies during years when environmental conditions are favorable (see subsequent core colonies, metapopulation dynamics, and favorable environmental conditions). At many of these ephemeral locations, the Mt. Charleston blue butterfly has not been sighted through formal surveys or informal observation since observed in 1995 by Weiss *et al.* (1997), or formal surveys have not occurred at that location since the butterfly was sighted in 1995 by Weiss *et al.* (1997). As noted in Table 1, the current status of the Mt. Charleston blue butterfly is presumed extant—ephemeral at 6 of the 15 locations or occurrences (The Urban Wildlands Group, Inc. 2005, pp. 1-3; Service 2006b, pp. 7-8). Three of the 15 historical locations are presumed to be extant core colonies of the subspecies, as adults have been identified through time and were located during formal surveys in 1995 and 2005: South Loop Trail, Las Vegas Ski and Snowboard Resort (LVSSR) #1, and LVSSR #2 (see Table 1) (Weiss *et al.* 1997; Boyd and Austin 2002; Boyd 2005, p. 1; Service 2006b, p. 7; The Urban Wildlands Group, Inc. 2005, pp. 1-3; Service 2006b, p. 2). The term “core colony” as applied to our discussion of the Mt. Charleston blue butterfly is used only to describe a specific type of habitat for the butterfly. For our analysis, we define a Mt. Charleston blue butterfly core colony as a colony that meets the following factors:

(1)Contains good quality habitat, defined as habitat containing high densities of the host plant, Torrey's milkvetch, with little grass cover, particularly nonnative grass cover (because grasses have been suggested as a reason for habitat degradation or successional changes that make habitat unsuitable for the subspecies, see discussion below); and

(2)persists as habitat that maintains the metapopulation dynamics of the subspecies, such that adults are consistently sighted through formal or informal surveys within the colony and emigrants are provided to smaller, outlying habitat patches. The amount of habitat supporting two of the three core colonies of this subspecies has been mapped using a global positioning unit and field-verified by the Service and Forest Service; the core colony at LVSSR #1 occupies 2.4 acres (0.97 hectares), and the core colony at LVSSR #2 occupies 1.3 acres (0.53 hectares), totaling 3.7 acres (1.5 hectares) (Service 2006a, p. 1). The total area of the third core Mt. Charleston blue butterfly colony (South Loop Trail) has not been field-verified and is estimated at 5 acres (2 hectares) within Kyle Canyon (The Urban Wildlands Group, Inc. 2005, p. 2). Thus across its range, current estimates indicate the Mt. Charleston blue butterfly is restricted to less than 9 acres (3.6 hectares) of core habitat, and the core habitat represents the only known occupied habitat remaining for this subspecies. Our files indicate that Boyd (2006, pp. 1-2) conducted focused surveys from late May through August of 2006 for the Mt. Charleston blue butterfly at all extant core colonies and at extant ephemeral locations. In addition to these locations, potential Mt. Charleston blue butterfly habitat along Griffith Peak, the South Loop Trail, North Loop Trail, Bristlecone Trail, and South Bonanza Trail was also surveyed in 2006. No observations of Mt. Charleston blue butterfly were made at any location, including the three core colonies (Boyd 2006, p. 1). However, Murphy (2006, p. 1) hypothesizes that the butterfly potentially may have a survival mechanism to adapt and remain in diapause, and therefore may be able to survive unfavorable or inclement conditions for at least one season. Most butterfly populations occur in roughly the same numbers from year to year, though nearly every population experiences the occasional significant increase or decline depending on environmental conditions, and desert species seem particularly prone to dramatic fluctuations in numbers (Scott 1986, pp. 108-109). The Mt. Charleston blue butterfly has been characterized as particularly rare, but common in some years as noted in the petition (Boyd and Austin 1999, p. 17; The Urban Wildlands Group, Inc. 2005, p. 2). As previously mentioned, variations in precipitation and temperature that affect both the Mt. Charleston blue butterfly and its larval host plant are likely responsible for the fluctuation in population numbers between years (Weiss *et al.* 1997, pp. 2-3 and 31-32). The specific requirements and timing of environmental conditions for larval host plant development, and in turn subspecies reproduction, is not known. Murphy *et al.* (1990, p. 43) note that in general, extreme weather (drought, late season snowstorms, unusually wet weather, etc.) often is the proximate cause of declines or extinctions of butterfly populations throughout the world. Drought has been shown to negatively impact other butterfly populations (Erlich *et al.* 1980, pp. 101-105; Thomas 1984, p. 344). Late season snowstorms have caused alpine butterfly population extinctions in Colorado (Ehrlich *et al.* 1972, p. 246), and high rainfall years have also been associated with population declines for other butterfly species in Europe (Dobkin *et al.* 1987, p. 164). Drought, late season snowstorms, unusually wet weather, and flash flooding associated with summer monsoon thunderstorms are extreme climatic phenomena that occur within the Spring Mountains at unpredictable intervals and have been reported as negatively affecting numerous butterfly species in the Spring Mountains, including the Mt. Charleston blue butterfly, in all stages of development and their host plants (Weiss *et al.* 1997, pp. 2-3 and 31-32; Boyd *et al.* 2000, p. 3). The 1995 season was a boom year for the Mt. Charleston blue butterfly (Weiss *et al.* 1997, p. 32). Weiss *et al.* (1997, p. 32) commented that in 1995 almost every patch of host plants encountered during the flight season supported butterflies, including small isolated patches. The 1995 season probably represents the maximum population size when environmental conditions were most favorable and includes both the larger core colonies and the smaller, ephemeral habitat patches. In 1928 and 1963, the subspecies also exhibited higher abundances (Austin 1980, p. 22; The Urban Wildlands Group, Inc. 2005, p. 2). In contrast, the 1996 season represents a low population size for the Mt. Charleston blue butterfly when environmental conditions were unfavorable and very few patches of habitat were occupied. Weiss *et al.* (1997, pp. 32) indicate an extremely dry winter may have caused poor larval host plant quality and, thus, low overwintering success by Mt. Charleston blue larvae in 1996. In addition, Weiss *et al.* (1997, p. 32) suggested that heavy thunderstorms in early July 1996, which delivered 3 inches of rainfall in a few hours, may have killed any Mt. Charleston blue butterflies that had emerged, as well as pupae waiting to emerge, leading to very reduced numbers observed in survey efforts that year. Similarly, there were no sightings of the Mt. Charleston blue butterfly in 2006 despite focused survey efforts. One possible explanation for the 2006 season may be extreme weather; prior to 2005, there were numerous years of drought, followed by a record snow in the winter of 2004-2005, a dry winter and spring in 2005-2006, and several localized, high rainfall events and cloudy conditions in the summer of 2006. The following possible explanations for the lack of butterfly sightings were offered by two local Mt. Charleston blue butterfly experts as indicated in our files. Boyd (2006, p. 1) theorizes that the Mt. Charleston blue butterfly's host plant, Torrey's milkvetch, experienced delayed emergence in the year 2005 due to the persistence of the snow pack well into the plant's growing season. The delayed emergence of Torrey's milkvetch in 2005 could have negatively impacted butterfly reproduction in the year 2005, which would equate to low recruitment of emerging juveniles in the year 2006. Boyd (2006, p. 1) further hypothesized that since Torrey's milkvetch flowered in early May and June in 2006 (in response to a dry winter and spring), the emergence of the butterfly (typically in July) could have again been out of synchronization with the host plant. Murphy (2006, p. 1) proposed that the localized rain events in late June and July of 2006 could have killed any butterflies that had emerged to date. Murphy (2006, p. 1) also suggests that the dry winter and spring may have prevented the Mt. Charleston blue butterfly from emerging at all. Murphy (2006, p. 1) hypothesizes that the butterfly potentially may have a survival mechanism to adapt and remain in diapause, and therefore may be able to survive unfavorable or inclement conditions for at least one season. Although individuals were not identified during surveys in 2006, we do not consider this subspecies extirpated from the three core colonies. It will be critical for the Mt. Charleston blue butterfly to successfully reproduce and pupae to emerge in 2007. Based on information in our files, most butterflies almost invariably exist as regional metapopulations (Murphy *et al.* 1990, p. 44). Metapopulation dynamics make it difficult to interpret the true extent of the distribution of Mt. Charleston blue butterfly. Small habitats tend to support small populations that are frequently extirpated by events that are part of normal variation (Murphy *et al.* 1990, p. 44). The continued existence of smaller populations requires the presence of one or more large reservoir populations or core colonies to provide emigrants to smaller, outlying habitat patches (Murphy *et al.* 1990, p. 44). Boyd and Austin (1999, p. 17) suggest smaller colonies of the Mt. Charleston blue butterfly may be ephemeral in the long term with the larger colonies of the subspecies being the only colonies to persist in poor, dry years. The Mt. Charleston blue butterfly's larval host plant, Torrey's milkvetch, is dependent on early successional habitat (Weiss *et al.* 1995, p. 5). Healthy metapopulation dynamics allow butterflies, like the Mt. Charleston blue butterfly, to establish new colonies in new habitat patches as vegetation succession renders occupied habitat unsuitable (Hanski and Simberloff 1997, p. 9). Fire and avalanches are natural disturbances that help create this mosaic of different successional states that supports the Mt. Charleston blue butterfly (Weiss *et al.* 1995, p. 5). Forty-three percent (3.7 acres (1.5 hectares)) of remaining habitat known to be occupied by the butterfly occurs on the LVSSR, which operates on Forest Service lands under a special use permit. Weiss *et al.* (1995, p. 5) observed an old avalanche chute, which supports one of the three core colonies for this subspecies on a LVSSR ski run. Large-scale, natural avalanches in the LVSSR, which could have created new habitat for the butterfly, have been prevented for more than 40 years due to the regular use of explosives in the upper portions of the avalanche chutes by the LVSSR. Fire suppression and other Forest Service management practices have also limited the formation of new replacement habitat for the Mt. Charleston blue butterfly. Similar losses of suitable habitat in woodlands and their negative effect on butterfly populations have been documented elsewhere (Thomas 1984, pp. 337-338). However, as described in the petition, because the natural processes that create and maintain successional habitat in an early state, as required by Torrey's milkvetch, have been limited, the LVSSR now provides important core habitat for the Mt. Charleston blue butterfly (The Urban Wildlands Group, Inc. 2005, p. 2). Periodic maintenance (removal of trees and shrubs) of the ski runs has effectively arrested succession on the ski slopes and maintains the early successional state favorable to the Mt. Charleston blue butterfly; however, the ski runs are not specifically managed to benefit habitat for this subspecies and operation activities regularly modify and remove butterfly habitat. Threats Analysis Section 4 of the Act and its implementing regulations (50 CFR 424) set forth the procedures for adding species to the Federal List of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:

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

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

(C)disease or predation;

(D)inadequacy of existing regulatory mechanisms; or

(E)other natural or manmade factors affecting its continued existence. In making this finding, we evaluated whether threats to the Mt. Charleston blue butterfly presented in the petition may pose a concern with respect to its survival. The Act identifies the five factors to be considered, either singly or in combination, to determine whether a species may be threatened or endangered. Our evaluation of these threats, based on information provided in the petition, is presented below. A. Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range The petitioner claims that present or threatened destruction, modification, or curtailment of the habitat or range of the Mt. Charleston blue butterfly threatens this subspecies such that listing may be warranted. The claim is detailed in the petition by multiple instances of destruction or modification of the subspecies' habitat by construction and other activities, including:

(1)Bisection of habitat by South Loop Trail and unsanctioned trails created in habitat in Kyle Canyon;

(2)resort improvements at LVSSR #1 in Lee Canyon;

(3)construction of a berm at LVSSR #2 in Lee Canyon;

(4)installation and expansion of snowmaking apparatus at LVSSR #2 in Lee Canyon;

(5)small construction activities at Foxtail Camp in Lee Canyon;

(6)expansion of the water system at the Youth Camp in Lee Canyon; and

(7)expansion of the parking lot at LVSSR in Lee Canyon (The Urban Wildlands Group, Inc. 2005, pp. 2-3). As further detailed below, information in our files supports the petitioner's claim and the examples cited.

(1)The petition describes that Mt. Charleston blue butterfly habitat along South Loop Trail in Kyle Canyon (one of three core colonies) is being impacted by recreation activity, specifically unsanctioned hiking trails. Based on information in our files, an assessment of an unsanctioned hiking trail to a plane crash site in the vicinity of butterfly habitat identified that the unsanctioned trail has disturbed (through loss and trampling) habitat for the Mt. Charleston blue butterfly as stated in the petition (Service 2006c, pp. 2-7).

(2)The petition describes replacement of a snowmaking apparatus or line that occurred within and impacted the habitat at LVSSR #1, another of the three core colonies of the Mt. Charleston blue butterfly. This claim is supported by information in our files (The Urban Wildlands Group, Inc. 2005, p. 3; Service 2006a, pp. 1-5; Forest Service 2004a, p. 1-3; Forest Service 2004b, p. 9; Forest Service 2006b, pp. 1-9). Based on the best available information in our files (habitat mapping performed by Weiss *et al.* (1995, Figure 8C) and habitat mapping performed by the Service and Forest Service in July 2006 (Service 2006a, pp. 1-5)), we calculate that 2.4 acres (0.97 hectares) of this core colony of Mt. Charleston blue butterfly habitat remains, and we estimate that the construction project associated with the replacement of the specified snowmaking line caused the loss of 0.2 acres (0.08 hectares) of the core habitat.

(3)The petition states that the construction of an avalanche deflection berm in 2000 or 2001 at the top of the northwestern-most ski run (location of the third core colony at LVSSR #2) caused loss and degradation of core butterfly habitat. The location of the earthen berm, and information in our files that maps the Mt. Charleston blue butterfly habitat on the LVSSR ski runs, verifies this assertion (Service 2006a, pp. 1-5).

(4)The petition describes further impacts to the core colony habitat at LVSSR #2 associated with the replacement of a snowmaking apparatus or line in 2005 on a ski run east of the core colony, and information in our files confirms this construction project (Forest Service 2004c, p. 8). The petition claims that lower quality peripheral habitat for the butterfly was disturbed. Based on information in our files regarding the extent of the disturbance associated with the snowmaking line and other improvements in 2005, as well as the mapping of Mt. Charleston blue butterfly habitat at LVSSR #2, the petition's assertion is accurate (Forest Service 2006b, pp. 1-9; Service 2006a, pp. 1-5). Outside of the core colony habitat at LVSSR #2, peripheral habitat of lower quality for the subspecies was impacted by the improvements.

(5)The petition does not present specific information regarding the extent of impact from small construction projects at Foxtail Camp in Lee Canyon. We do not have any information in our files to corroborate or refute the petition's claim regarding impacts to Mt. Charleston blue butterfly habitat at this location.

(6)The petitioner also claims that the expansion of the water system at the Youth Camp in Lee Canyon impacted habitat for the Mt. Charleston blue butterfly. This assertion is confirmed by a Forest Service report in our files (Forest Service 2002, pp. 16-18).

(7)The petition identifies a location on the LVSSR where Mt. Charleston blue butterfly habitat was lost due to modifications to a parking lot near the end of State Route 156 (The Urban Wildlands Group, Inc. 2005, p. 3). Based on data in our files, the Mt. Charleston blue butterfly was first recorded at this location during 1995 surveys (Weiss *et al.* 1997, p. 10), and the subspecies has not been observed in the area in recent years (Boyd 2005, p. 1). The petition states that approximately 2 acres (0.81 hectares) once supported a large number of host plants for the butterfly at this site (The Urban Wildlands Group, Inc. 2005, p. 3). The modifications likely occurred in 2004, when the parking area was used as a temporary storage pond for snowmaking water. Given our knowledge of the habitat requirements for the butterfly and remaining host plants around the margins of the parking area, the petition accurately states that Mt. Charleston blue butterfly habitat was impacted by these modifications. Present destruction, modification, or curtailment of this subspecies' habitat or range is documented by numerous activities described in the petition and verified by information in our files. Of the seven claims made in the petition regarding habitat loss or modification, six were supported by information in our files:

(1)Bisection of habitat by South Loop Trail and unsanctioned trails created in habitat in Kyle Canyon;

(2)improvements at LVSSR #1 in Lee Canyon;

(3)construction of a berm at LVSSR #2 in Lee Canyon;

(4)installation and expansion of snowmaking apparatus at LVSSR #2 in Lee Canyon;

(5)expansion of the water system at the Youth Camp in Lee Canyon; and

(6)expansion of the parking lot at LVSSR in Lee Canyon. The petition states that the current situation of the Mt. Charleston blue butterfly is perilous, with the extant colonies all at risk of extinction (The Urban Wildlands Group, Inc. 2005, p. 2). Based on the information in the petition and our files, 15 locations have been occupied by the Mt. Charleston blue butterfly since 1928. The subspecies is presumed extirpated from 6 of the 15 locations. At another 6 locations, the butterfly's occurrence is extant, but ephemeral. The butterfly exhibits metapopulation dynamics at these locations, likely emigrating to these smaller patches of habitat from the core colonies during years when environmental conditions are favorable. The Mt. Charleston blue butterfly has not been sighted at the majority of these 6 extant ephemeral locations since 1995. Finally, 3 of the 15 locations (estimated to encompass less than 9 acres (3.6 hectares) of habitat) are currently known to be extant core colonies. Habitat loss and modification threatens all three of these occupied core colonies, as documented by the petition and verified by information in our files. We conclude that the petition presents substantial information to indicate that listing may be warranted due to the present or threatened destruction or modification of habitat or range for the Mt. Charleston blue butterfly. B. Overutilization for Commercial, Recreational, Scientific or Educational Purposes Neither the petition nor information in our files provides any information pertaining to Factor B with regard to the Mt. Charleston blue butterfly. C. Disease or Predation Neither the petition nor information in our files provides any information pertaining to Factor C with regard to the Mt. Charleston blue butterfly. D. Inadequacy of Existing Regulatory Mechanisms Although the Mt. Charleston blue butterfly is not federally listed, some protections are in place, as documented in the petition. The subspecies is included in a 1998 Conservation Agreement for the Spring Mountains National Recreation Area, Clark and Nye Counties, Nevada (Conservation Agreement) signed by the State of Nevada, Forest Service, and the Service (Forest Service 1998, pp. 1-50). The Conservation Agreement described conservation actions for the butterfly on lands within the Forest Service's jurisdiction. In 2000, the 55 species that are the subject of the Conservation Agreement, including the Mt. Charleston blue butterfly, were incorporated as covered species under the Clark County Multiple Species Habitat Conservation Plan (Clark County MSHCP). The petition makes three assertions that inadequacy of existing regulatory mechanisms is a threat to the Mt. Charleston blue butterfly:

(1)Responsibilities as described by section 5.6 of the Conservation Agreement have not been met;

(2)required butterfly surveys were not conducted for a project at the LVSSR in 2005; and

(3)no mitigation for the loss of habitat from projects described in the petition has occurred to meet the measurable biological goals of no net unmitigated loss under the Clark County MSHCP (The Urban Wildlands Group, Inc. 2005, pp. 1-3). The following details these assertions.

(1)The petition alleges that responsibilities as described in section 5.6 of the Conservation Agreement have not been met (The Urban Wildlands Group, Inc. 2005, p. 1). This section states that the Forest Service and other Conservation Agreement signatories will “Work with Las Vegas Ski and Snowboard Resort to develop protective strategies for sensitive ecological resources. This will include investigating options for erosion control of the Lee Canyon ski slopes with native seed mixes, including *Astragalus calycosus* var. *mancus* to enhance butterfly habitat, management of herbicides and pesticides, and a plan for eventual elimination of nonnative seeding, and management of the Three Springs area” (The Urban Wildlands Group, Inc. 2005, p. 1; Forest Service 1998, p. 39). With a change in ownership of the LVSSR in 2004, nonnative seeding at the LVSSR was eliminated. In addition, a Forest Service decision notice dated September 13, 2004, directed the LVSSR to prepare a monitoring plan for disturbed areas, which evolved into a broader Adaptive Management Vegetation Plan (Vegetation Plan) and a specific 2005 Program of Work (Forest Service 2004a, p. 2; Forest Service 2005a, pp. 1-24; Forest Service 2005b, pp. 1-11). One purpose of this Vegetation Plan was to implement the conservation actions described in section 5.6, as well as Forest Service General Management Plan objectives to benefit numerous endemic species within the LVSSR. The Vegetation Plan will guide revegetation efforts at the LVSSR from 2005 through 2011. The objectives of this Vegetation Plan include: increase self-sustaining populations of sensitive plants species and butterfly host plants; eliminate the use and occurrence of nonnative species in the ski area; describe inventory guidelines and protocols; describe rehabilitation guidelines and protocols; describe monitoring guidelines and protocols; and facilitate maintenance, construction, and reconstruction, as well as limited expansion, of skiing opportunities and facilities (Forest Service 2005a, p. 3). Monitoring of disturbed areas and control plots, and targeted native seed collection, occurred in 2005 and 2006. On-the-ground cultivation or planting of native seed has not yet occurred. If implementation of the Vegetation Plan continues with success, the Service estimates that habitat restoration for the Conservation Agreement's species, including the Mt. Charleston blue butterfly, will be realized in 3 to 5 years (1 to 3 more years for seed collection and cultivation, and 2 additional years for establishment of habitat). This Vegetation Plan is an important step towards meeting the objectives of section 5.6 of the Conservation Agreement, however, the Vegetation Plan was initiated in 2005 and its success is yet to be determined. Thus based on information in our files, the petition is correct that some responsibilities described in section 5.6 of the Conservation Agreement have not been initiated or completed, such as management of the Three Springs area, and on-the-ground cultivation or planting of native seed for erosion control and enhancement of butterfly habitat. However, the petition is incorrect with regard to other responsibilities under Section 5.6 of the Conservation Agreement, as some have been fulfilled or have been initiated, such as elimination of nonnative seeding, and development of the Vegetation Plan to move toward establishing native seed and butterfly host plants at the LVSSR.

(2)The petitioner alleges that butterfly surveys were not completed for a project implemented in 2005 that disturbed Mt. Charleston blue butterfly habitat at the LVSSR (The Urban Wildlands Group, Inc. 2005, p. 3). Section 1.0 of the Conservation Agreement states that the Forest Service, as a general commitment, would “conduct pre-activity surveys for species of concern prior to taking an action” (Forest Service 1998, p. 29). Information in our files confirms that pre-activity surveys for butterflies were not completed before either a 2005 construction project associated with replacing a snowmaking line that affected the core colony at LVSSR #1, or other LVSSR projects implemented in 2005 (Forest Service 2004c, p. 1; Forest Service 2005c, p. 7).

(3)The petitioner also asserts that no mitigation for the loss of habitat from projects described in the petition has occurred to provide for no net unmitigated loss under the Clark County MSHCP (The Urban Wildlands Group, Inc. 2005, p. 3). As a signatory to the Implementing Agreement of the Clark County MSHCP, the Forest Service committed to implementing mitigation, minimization, and monitoring actions under the Clark County MSHCP for covered species on Forest Service lands in Clark County. The Clark County MSHCP Environmental Impact Statement identifies two measurable biological goals for the Mt. Charleston blue butterfly:

(a)“No net unmitigated loss of larval host plant or nectar plant species habitat in the Spring Mountains Natural Recreation Area,” and

(b)“Maintain stable or increasing population numbers and host and larval plant species” (RECON 2000a, Table 2.5, pp. 2-154). Information in our files confirms the petitioner's claim that mitigation did not occur for several projects noted in the petition, including:

(a)The expansion of the water system at the Youth Camp in Lee Canyon,

(b)the modification of the parking area at the LVSSR (likely in 2004), and

(c)the construction of an avalanche deflection berm located at the top of the northwestern-most ski run at the LVSSR within the LVSSR #2 core colony for the Mt. Charleston blue butterfly in 2000 or 2001 (Forest Service 2002, pp. 15-18). However, with regard to the projects implemented in 2005, there is information in our files that the Forest Service based their permitting approval for these projects on implementation of the Vegetation Plan (Forest Service 2005a, pp. 1-24). One purpose of the Vegetation Plan is to achieve mitigation for loss of habitat from various LVSSR project impacts to affected Conservation Agreement species, including the Mt. Charleston blue butterfly. As stated above, the Vegetation Plan was initiated in 2005 with monitoring of disturbed areas and control plots, as well as targeted native seed collection, in 2005 and 2006. The Forest Service and the LVSSR made the commitment to provide for habitat restoration for projects that were implemented in 2005; however, on-the-ground cultivation or planting of native seed has not yet occurred to replace the lost Mt. Charleston blue butterfly habitat. As previously stated, if implementation of the Vegetation Plan continues with success, the Service estimates that habitat restoration for the Mt. Charleston blue butterfly will be realized in 3 to 5 years (1 to 3 more years for seed collection and cultivation, and 2 additional years for establishment of habitat). Overall, it appears that there has been a current net loss of Mt. Charleston blue butterfly larval host plant or nectar plant species habitat in the Spring Mountains National Recreation Area as a result of specific projects. With successful implementation of the Vegetation Plan, measurable biological goals of the MSHCP may be met within 5 years. In summary, the petition states the following three points:

(1)Responsibilities have not been met under section 5.6 of the Conservation Agreement;

(2)pre-activity butterfly surveys were not conducted for a project implemented in 2005; and

(3)no mitigation for the loss of habitat from projects described in the petition has occurred. As described previously, certain responsibilities have been initiated or met under section 5.6 of the Conservation Agreement, although others have not yet been initiated or fully implemented. Pre-activity butterfly surveys were not conducted prior to multiple construction projects at the LVSSR in 2005, as described in the petition and verified by information in our files. Mitigation for site-specific impacts to butterfly habitat have been implemented for some projects, and not implemented for others. Now it appears that there has been a net loss of habitat containing Mt. Charleston blue butterfly larval host plant or nectar plant species in the Spring Mountains Natural Recreation Area as a result of implementation of specific projects; however, due to actions recently initiated, habitat restoration should be realized in the future. Despite these recent restoration efforts, the interim loss may still be substantial due to restricted size of the occupied habitat and the uncertain population status of the subspecies. Although there are existing agreements that intended to conserve the Mt. Charleston blue butterfly, to date these agreements either have not been implemented or the limited implementation does not appear to have provided sufficient conservation for this subspecies. Given the uncertain population status of and 2006 survey results for the Mt. Charleston blue butterfly, it is necessary for the Service to re-evaluate the mechanisms currently in place to protect this subspecies. Based on the above information, we find that the petition presents substantial information to indicate that listing may be warranted due to the inadequacy of existing regulatory mechanisms to protect the Mt. Charleston blue butterfly. E. Other Natural or Manmade Factors Affecting Its Continued Existence The petitioner describes the threat to Mt. Charleston blue butterfly habitat resulting from vegetation succession and introduced plant species (The Urban Wildlands Group, Inc. 2005, p. 2). The petition provides two illustrations of this threat:

(1)The loss of habitat near Old Town in Kyle Canyon due to shading of the larval host plant (as a result of vegetative succession) and introduction of nonnative species including alfalfa; and

(2)the loss of the butterfly from Lee Meadow in Lee Canyon (The Urban Wildlands Group, Inc. 2005, p. 3). Based on information in our files, Weiss *et al.* (1995, p. 5) concluded host plant densities in Lee Meadow appeared insufficient to support the Mt. Charleston blue butterfly. Decreases in the quality or abundance of larval host plant and nectar sources can be caused by changes in plant community composition, particularly changes associated with succession, disturbance, and grazing regimes (Murphy *et al.* 1990, p. 43). Changes in vegetation structure and composition associated with succession may have contributed to the loss of Torrey's milkvetch, and, therefore, to the loss of the Mt. Charleston blue butterfly at historic sites in Kyle Canyon (Boyd and Austin 2002, p. 13). Based on information in our files, Weiss *et al.* (1997, p. 33) describe the impact of erosion control plantings of grasses and alfalfa ( *Medicago sativa* ) on the butterfly's host plants at the LVSSR as a butterfly management issue due to competition with butterfly host plants and potential structural changes to butterfly habitat. Further information in our files confirmed that the LVSSR ski runs were seeded with both cultivated varieties of native and nonnative grasses and introduced forbs in the 1970s and 1980s (Titus and Landau 2003, pp. 1-3). The petitioner also mentions wild horse grazing as an issue and notes that wild horses are nearly always present at one of the core colonies of the butterfly (LVSSR #1) (The Urban Wildlands Group, Inc. 2005, p. 2). The petition does not provide any supporting documentation to describe this threat or the extent of impact from the threat to the Mt. Charleston blue butterfly. Based on information in our files, the Clark County MSHCP identified trampling by wild horses and livestock grazing as potential threats to the subspecies and other butterflies (RECON 2000b, p. B-158). The extent of any impact from trampling and grazing to the Mt. Charleston blue butterfly and its host plants is undocumented or unknown. There is insufficient information in the petition or our files to adequately characterize the threat of vegetation succession, nonnative plant species, or wild horses at the locations identified in the petition or across the range of the subspecies. Therefore, we conclude that there is not substantial scientific or commercial information to indicate that listing the Mt. Charleston blue butterfly may be warranted due to the other natural or manmade factors described in the petition. Finding We have reviewed and evaluated the five listing factors with regard to the Mt. Charleston blue butterfly, based on the information in the petition and in our files. On the basis of this review and evaluation, we find that the petition does present substantial information to indicate that listing the Mt. Charleston blue butterfly as threatened or endangered may be warranted. The Mt. Charleston blue butterfly is known only from the high elevations of the Spring Mountains in Clark County Nevada, where it depends upon its larval host plant, Torrey's milkvetch. The range of the Mt. Charleston blue butterfly is centered on the east side of the Spring Mountains in Kyle and Lee Canyons, on lands managed by the Forest Service in the Spring Mountains National Recreation Area of the Humboldt-Toiyabe National Forest. Based on historic records and surveys, the subspecies has occupied 15 locations since 1928. Currently, the Mt. Charleston blue butterfly is known to occupy three core colonies in Kyle and Lee Canyons. Two of the core colonies of the subspecies in Lee Canyon total 3.7 acres (1.5 hectares), while the size of the core colony in Kyle Canyon is estimated at 5 acres (2 hectares); thus, the Mt. Charleston blue butterfly is currently known to occupy less than 9 acres (3.6 hectares) of habitat. There is substantial information presented in the petition and verified by information in our files that listing may be warranted for the Mt. Charleston blue butterfly due to the present destruction, modification, or curtailment of the subspecies' habitat or range (Factor A) and the inadequacy of existing regulatory mechanisms (Factor D). Present habitat destruction and modification to the Mt. Charleston blue butterfly and Torrey's milkvetch was documented at the LVSSR in Lee Canyon from multiple projects implemented since 2000, including construction of a berm within a core colony, modifications to a parking lot, and replacement of snowmaking lines (one of which affected a core colony). In addition, expansion of the water system at the Youth Camp in Lee Canyon affected the butterfly's habitat. Finally, a core colony in Kyle Canyon is bisected by the South Loop Trail and is affected by an additional unsanctioned trail. The petition states that the current situation of the Mt. Charleston blue butterfly is perilous with the extant colonies all at risk of extinction (The Urban Wildlands Group, Inc. 2005, p. 2). Based on the information in the petition and our files, 15 locations have been occupied by the Mt. Charleston blue butterfly since 1928. The subspecies is presumed extirpated from 6 of the 15 locations. At another 6 locations, the butterfly's occurrence is extant, but ephemeral. The butterfly exhibits metapopulation dynamics at these locations, likely emigrating to these smaller patches of habitat from the core colonies during years when environmental conditions are favorable. The Mt. Charleston blue butterfly has not been sighted at the majority of these 6 extant ephemeral locations since 1995. As described in the petition and verified by information in our files, the butterfly's persistently occupied range is currently known to be restricted to three locations or colonies on approximately 9 acres (3.6 hectares), and all three locations are threatened by habitat loss and modification. We are further concerned that formal surveys in 2006 were unable to identify any adult butterflies across the subspecies' known range, including at the three core colonies. While we do not consider the species extirpated from the three core colonies, successful reproduction and emergence of pupae in 2007 is critical for this subspecies. There is substantial information presented in the petition and verified by information in our files that listing may be warranted for the Mt. Charleston blue butterfly due to the inadequacy of existing regulatory mechanisms (Factor D). The petition describes and information in our files verifies that some responsibilities under the Conservation Agreement (Sections 1.0 and 5.6) have not been met. However, some responsibilities under the Conservation Agreement, such as elimination of non-native seeding at the LVSSR, have been met and still others have recently been initiated. Furthermore, the petition describes and information in our files verifies that mitigation for site-specific impacts to butterfly habitat have been implemented for some projects, and not implemented for others. It appears that currently there has been a net loss of habitat containing Mt. Charleston blue butterfly larval host plant or nectar plant species in the Spring Mountains National Recreation Area as a result of implementation of specific projects. Due to actions recently initiated, however, habitat restoration should be realized in the future. Although there are existing agreements in place that intended to conserve the Mt. Charleston blue butterfly, to date these agreements either have not been implemented or the limited implementation does not appear to have provided sufficient conservation for this subspecies. Given the uncertain population status of and the 2006 survey results for the Mt. Charleston blue butterfly, it is necessary for the Service to re-evaluate the mechanisms currently in place to protect this subspecies. In summary, based on listing factors A and D, we conclude that the petition has presented substantial information that listing may be warranted for the Mt. Charleston blue butterfly. We will initiate a status review to determine whether listing the subspecies as threatened or endangered is warranted. References Cited A complete list of all references cited herein is available, upon request, from the Nevada Fish and Wildlife Office (see ADDRESSES ). Author The primary author of this notice is the Nevada Fish and Wildlife Office (see ADDRESSES ). Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ). Dated: May 15, 2007. H. Dale Hall, Director, U.S. Fish and Wildlife Service. [FR Doc. E7-10140 Filed 5-29-07; 8:45 am] BILLING CODE 4310-55-P 72 103 Wednesday, May 30, 2007 Notices DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0066] Notice of Request for Extension of Approval of an Information Collection; Credit Account Approval for Reimbursable Services AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Extension of approval of an information collection; comment request. SUMMARY: In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with credit account approval for reimbursable services. DATES: We will consider all comments that we receive on or before July 30, 2007. ADDRESSES: You may submit comments by either of the following methods: Federal eRulemaking Portal: Go to *http://www.regulations.gov* , select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click “Submit.” In the Docket ID column, select APHIS-2007-0066 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. Postal Mail/Commercial Delivery: Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2007-0066, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2007-0066. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov* . FOR FURTHER INFORMATION CONTACT: For information on an information collection associated with credit account approval for reimbursable services, contact Mrs. Kris Caraher, User Fees Section Head, Financial Services Branch, Financial Management Division, MRPBS, APHIS, 4700 River Road Unit 54, Riverdale, MD 20737;

(301)734-5743. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at

(301)734-7477. SUPPLEMENTARY INFORMATION: *Title:* Credit Account Approval for Reimbursable Services. *OMB Number:* 0579-0055. *Type of Request:* Extension of approval of an information collection. *Abstract:* The services of a Federal inspector to clear imported and exported agricultural commodities for animal and plant health purposes are paid for by user fees during regular working hours. If an importer wishes to have shipments cleared at other hours, such services will usually be provided on a reimbursable overtime basis, unless already covered by a user fee. Exporters wishing cargo to be certified during nonworking hours may also utilize this procedure. Many importers and exporters who require inspection services are repeat customers who request that we bill them. We need to collect certain information to conduct a credit check on prospective applicants to ensure creditworthiness prior to extending credit services and to prepare billings. Also, the Debt Collection Improvement Act of 1996, as amended (31 U.S.C. 3332), requires that agencies collect tax identification numbers from all persons doing business with the Government for purposes of collecting delinquent debts. APHIS Form 192 is used to collect this information and must be completed before credit is extended. We are asking the Office of Management and Budget

(OMB)to approve our use of this information collection activity for an additional 3 years. The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:

(1)Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;

(2)Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;

(3)Enhance the quality, utility, and clarity of the information to be collected; and

(4)Minimize the burden of the information collection on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies, e.g., permitting electronic submission of responses. *Estimate of burden:* The public reporting burden for this collection of information is estimated to average 0.25 hours per response. *Respondents:* Importers, exporters, or brokers who wish to set up an account for billing of inspection services provided during nonworking hours. *Estimated annual number of respondents:* 256. *Estimated annual number of responses per respondent:* 1. *Estimated annual number of responses:* 256. *Estimated total annual burden on respondents:* 64. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.) All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record. Done in Washington, DC, this 24th day of May 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-10323 Filed 5-29-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service [Docket No. FSIS-2007-0017] Codex Alimentarius Commission: Meeting of the Codex Alimentarius Commission AGENCY: Office of the Under Secretary for Food Safety, USDA. ACTION: Notice of public meeting and request for comments. SUMMARY: The Office of the Under Secretary for Food Safety, U.S. Department of Agriculture (USDA), is sponsoring a public meeting on June 5, 2007. The objective of the public meeting is to provide information and receive public comments on agenda items and draft United States positions that will be discussed at the Thirtieth Session of the Codex Alimentarius Commission (CAC), which will be held in Rome, Italy, July 2-7, 2007. The Under Secretary for Food Safety recognizes the importance of providing interested parties the opportunity to obtain background information on the 30th Session of CAC and to address items on the agenda. DATES: The public meeting is scheduled for Tuesday, June 5, 2007, 1-4 p.m. ADDRESSES: The public meeting will be held in Room 107-A, Jamie L. Whitten Building, USDA, 1400 Independence Avenue SW., Washington, DC 20250. Documents related to the 30th Session of CAC will be accessible via the World Wide Web at the following address: *http://www.codexalimentarius.net/current.asp.* The U.S. Manager for Codex, F. Edward Scarbrough, Ph.D., U.S. Codex Office, Food Safety and Inspection Service, USDA, invites U.S. interested parties to submit their comments electronically to the following e-mail address *uscodex@fsis.usda.gov.* *For Further Information About the 30th Session of the CAC Contact:* F. Edward Scarbrough, Ph.D., U.S. Manager for Codex, Telephone:

(202)720-2057, Fax:

(202)720-3157; e-mail: *ed.scarbrough@fsis.usda.gov.* For Further Information about the Public Meeting Contact: Jasmine Matthews, Program Analyst, U.S. Codex Office, Telephone:

(202)205-7760, Fax:

(202)720-3157, e-mail: *jasmine.matthews@fsis.usda.gov.* SUPPLEMENTARY INFORMATION: Background The Codex Alimentarius Commission (Codex) was established in 1963 by two United Nations organizations, the Food and Agriculture Organization

(FAO)and the World Health Organization (WHO). Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex seeks to protect the health of consumers and ensure that fair practices are used in trade. The Codex Alimentarius Commission is responsible for making proposals to the Directors-General of FAO and WHO on all matters pertaining to the implementation of the Joint FAO/WHO Food Standards Programme, the purpose of which is:

(a)Protecting the health of the consumers and ensuring fair practices in the food trade;

(b)promoting coordination of all food standards work undertaken by international governmental and non-governmental organizations;

(c)determining priorities and initiating and guiding the preparation of draft standards through and with the aid of appropriate organizations;

(d)finalizing standards elaborated under

(c)above and publishing them in a Codex Alimentarius either as regional or world wide standards, and \

(e)Amending published standards, after appropriate survey in the light of developments. Issues To Be Discussed at the Public Meeting The following items on the Agenda for the 30th Session of the CAC will be discussed during the public meeting: • Report by the Chairperson on the 59th Session of the Executive Committee • Reports of FAO/WHO Regional Coordinating Committees • Amendments to the Procedural Manual • Amendments to the Rules of Procedure • Other amendments to the Procedural Manual • Draft Standards and Related Texts at Step 8 of the Procedure (including those submitted at Step 5 with a recommendation to omit Steps 6 and 7 and those submitted at Step 5 of the Accelerated Procedure) • Proposed Draft Standards and Related Texts at Step 5 • Revocation of existing Codex Standards and Related Texts • Proposals for the Elaboration of new Standards and Related Texts and for the Discontinuation of Work • Financial and Budgetary Matters—Proposed Budget 2008/2009 • Proposed Schedule of Codex Meetings 2007-2009 • Strategic Planning of the Codex Alimentarius Commission • Implementation of the Joint FAO/WHO Evaluation of the Codex Alimentarius and other FAO and WHO Work on Food Standards • General Implementation Status • Review of Codex Committee Structure and Mandates of Codex Committees and Task Forces • Matters arising from the Reports of Codex Committees and Task Forces • Relations between the Codex Alimentarius Commission and other International Organizations • FAO/WHO Project and Trust Fund for Enhanced Participation in Codex • Other Matters arising from FAO and WHO • Appointment of Regional Coordinators • Election of Chairperson, Vice-Chairpersons and other Members of the Executive Committee • Designation of Countries responsible for Appointing the Chairpersons of Codex Committees and Task Forces Each issue listed will be fully described in documents distributed, or to be distributed, by the Secretariat prior to the Meeting. Members of the public may access or request copies of these documents (see For Further Information About The 30th Session of the CAC Contact). Public Meeting At the June 5, 2007 public meeting, draft U.S. positions on the agenda items will be described and discussed, and attendees will have the opportunity to pose questions and offer comments. Written comments may be offered at the meeting or sent to the U.S. Manager for Codex, F. Edward Scarbrough (see ADDRESSES ). Written comments should state that they relate to activities of the 30th Session of the CAC. Additional Public Notification Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that minorities, women, and persons with disabilities are aware of this notice, FSIS will announce it on-line through the FSIS Web page located at *http://www.fsis.usda.gov/regulations/2007_Notices_Index/.* FSIS also will make copies of this **Federal Register** publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, **Federal Register** notices, FSIS public meetings, recalls, and other types of information that could affect or would be of interest to constituents and stakeholders. The update is communicated via Listserv, a free electronic mail subscription service for industry, trade and farm groups, consumer interest groups, allied health professionals, and other individuals who have asked to be included. The update is available on the FSIS Web page. Through the Listserv and Web page, FSIS is able to provide information to a much broader and more diverse audience. In addition, FSIS offers an e-mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available at *http://www.fsis.usda.gov/news_and_events/email_subscription/.* Options range from recalls to export information to regulations, directives and notices. Customers can add or delete subscriptions themselves and have the option to password protect their account. Done at Washington, DC on May 24, 2007. F. Edward Scarbrough, U.S. Manager for Codex. [FR Doc. E7-10326 Filed 5-29-07; 8:45 am] BILLING CODE 3410-DM-P DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service [Docket No. FSIS-2007-0019] National Advisory Committee on Microbiological Criteria for Foods AGENCY: Food Safety and Inspection Service, USDA. ACTION: Notice of public meeting. SUMMARY: This notice announces that the National Advisory Committee on Microbiological Criteria for Foods (NACMCF) will hold public meetings of the full Committee and subcommittees on June 4-8, 2007. The Committee will discuss:

(1)Determination of Cooking Parameters for Safe Seafood for Consumers,

(2)Assessment of the Food Safety Importance of *Mycobacterium avium* subspecies paratuberculosis,

(3)Determination of the Most Appropriate Technologies for the Food Safety and Inspection Service to Adopt in Performing Routine and Baseline Microbiological Analyses, and

(4)Parameters for Inoculated Pack Challenge Study Protocols. DATES: The full Committee will hold open meetings on Monday, June 4, 2007, 1 p.m. to 2:30 p.m., and Friday, June 8, 9 a.m. to 1 p.m. The Subcommittee on Determination of Cooking Parameters for Safe Seafood for Consumers will hold an open meeting on Tuesday, June 5, 2007, from 8:30 a.m. to 5 p.m. The Subcommittee on Determination of the Most Appropriate Technologies for the Food Safety and Inspection Service to Adopt in Performing Routine and Baseline Microbiological Analyses will hold open meetings on Tuesday and Wednesday, June 5-6, 2007, from 8:30 a.m. to 5 p.m. The Subcommittee on Assessment of the Food Safety Importance of *Mycobacterium avium* subspecies *paratuberculosis* will hold open meetings on Wednesday and Thursday, June 6-7, 2007, from 8:30 a.m. to 5 p.m. ADDRESSES: The June 5-7, 2007, subcommittee meetings will be held at the Aerospace Building, 901 “D” St., SW., Rooms 369-371, Washington, DC 20024. The June 4 and June 8, 2007, full Committee meetings will be held in the conference room at the south end of the U. S. Department of Agriculture

(USDA)cafeteria located in the South Building, 1400 Independence Avenue, SW., Washington, DC 20250. All documents related to the full Committee meetings will be available for public inspection in the Food Safety and Inspection Service

(FSIS)Docket Room, 300 12th Street, SW., Room 102, Cotton Annex Building, Washington, DC 20250, between 8:30 a.m. and 4:30 p.m., Monday through Friday, as soon as they become available. The NACMCF documents will also be available on the Internet at *http://www.fsis.usda.gov/regulations/2007_Notices_Index/.* FSIS will finalize an agenda on or before the meeting dates and post it on the FSIS Internet Web page at *http://www.fsis.usda.gov/News/Meetings_&_Events/.* Please note that the meeting agenda is subject to change due to the time required for Committee discussions, thus, sessions could start or end earlier or later than anticipated. Please plan accordingly if you would like to attend a particular session or participate in a public comment period. Also, the official transcripts of the June 4 and 8, 2007, full Committee meetings, when they become available, will be kept in the FSIS Docket Room at the above address and will also be posted on *http://www.fsis.usda.gov/About/NACMCF_Meetings/.* The mailing address for the contact person below, Karen Thomas-Sharp is: Food Safety and Inspection Service, U. S. Department of Agriculture, Office of Public Health Science, Aerospace Center, Room 333, 1400 Independence Avenue, SW., Washington, DC 20250-3700. FOR FURTHER INFORMATION CONTACT: Persons interested in making a presentation, submitting technical papers, or providing comments at the June 4 and/or June 8, plenary sessions should contact Karen Thomas-Sharp, phone

(202)690-6620, Fax

(202)690-6334, e-mail address: *karen.thomas-sharp@fsis.usda.gov* , or at the mailing address above. Persons requiring a sign language interpreter or other special accommodations should notify Mrs. Thomas-Sharp by May 29, 2007. SUPPLEMENTARY INFORMATION: Background The NACMCF was established in 1988, in response to a recommendation of the National Academy of Sciences for an interagency approach to microbiological criteria for foods, and in response to a recommendation of the U.S. House of Representatives Committee on Appropriations, as expressed in the Rural Development, Agriculture, and Related Agencies Appropriation Bill for fiscal year 1988. The Charter for the NACMCF is available for viewing on the FSIS Internet Web page at *http://www.fsis.usda.gov/About/NACMCF_Charter/.* The NACMCF provides scientific advice and recommendations to the Secretary of Agriculture and the Secretary of Health and Human Services on public health issues relative to the safety and wholesomeness of the U.S. food supply, including development of microbiological criteria and review and evaluation of epidemiological and risk assessment data and methodologies for assessing microbiological hazards in foods. The Committee also provides advice to the Centers for Disease Control and Prevention and the Departments of Commerce and Defense. Dr. Curt Mann, Deputy Under Secretary for Food Safety, USDA, is the Committee Chair; Dr. Robert E. Brackett, Director of the Food and Drug Administration's Center for Food Safety and Applied Nutrition (CFSAN), is the Vice-Chair; and Gerri Ransom, FSIS, is the Executive Secretariat. At the subcommittee meetings the week of June 5-7, 2007, the groups will discuss: • The determination of cooking parameters for safe seafood for consumers, • Assessment of the food safety importance of *Mycobacterium avium* subspecies *paratuberculosis,* and • The determination of the most appropriate technologies for the Food Safety and Inspection Service to adopt in performing routine and baseline microbiological analyses. Documents Reviewed by NACMCF FSIS intends to make available to the public all materials that are reviewed and considered by NACMCF regarding its deliberations. Generally, these materials will be made available as soon as possible after the full Committee meeting. Further, FSIS intends to make these materials available in electronic format on the FSIS Web page, as well as in hard copy format in the FSIS Docket Room. Often, an attempt is made to make the materials available at the start of the full Committee meeting when sufficient time is allowed in advance to do so. *Disclaimer:* NACMCF documents and comments posted on the FSIS Web site are electronic conversions from a variety of source formats. In some cases, document conversion may result in character translation or formatting errors. The original document is the official, legal copy. In order to meet the electronic and information technology accessibility standards in Section 508 of the Rehabilitation Act, NACMCF may add alternate text descriptors for non-text elements (graphs, charts, tables, multimedia, etc.). These modifications only affect the online copies of the documents. Copyrighted documents will not be posted on the FSIS Web site, but will be available for inspection in the FSIS Docket Room. Additional Public Notification Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that minorities, women, and persons with disabilities are aware of this notice, FSIS will announce it on-line through the FSIS Web page located at *http://www.fsis.usda.gov/regulations/2007_Notices_Index/.* FSIS will also make copies of this **Federal Register** publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, **Federal Register** notices, FSIS public meetings, recalls and other types of information that could affect or would be of interest to constituents and stakeholders. The update is communicated via Listserv, a free electronic mail subscription service for industry, trade and farm groups, consumer interest groups, allied health professionals, and other individuals who have asked to be included. The update is available on the FSIS Web page. Through the Listserv and Web page, FSIS is able to provide information to a much broader and more diverse audience. In addition, FSIS offers an e-mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available at *http://www.fsis.usda.gov/news_and_events/email_subscription/.* Options range from recalls to export information to regulations, directives, and notices. Customers can add or delete subscriptions themselves and have the option to password protect their account. Done at Washington, DC on May 24, 2007. David P. Goldman, Acting Administrator. [FR Doc. E7-10321 Filed 5-29-07; 8:45 am] BILLING CODE 3410-DM-P DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service [Docket No. FSIS 2007-0018] Disposition of Hogs and Chickens From Farms Identified as Having Received Pet Food Scraps Contaminated With Melamine and Melamine-Related Compounds and Offered for Slaughter AGENCY: Food Safety and Inspection Service (FSIS), USDA. ACTION: Notice and request for comments. SUMMARY: The Food Safety and Inspection Service

(FSIS)is publishing this notice to articulate its position on the slaughter for human food of hogs and chickens from farms identified as having purchased or otherwise received pet food scraps that contain melamine and melamine-related compounds. The contaminated pet food scraps were used to supplement animal feed on farms in several States. The results of an interim safety/risk assessment indicate that, based on currently available data and information, the consumption of pork, poultry, eggs, and domestic fish products from animals inadvertently fed animal feed contaminated with melamine and melamine-related compounds is very unlikely to pose a human health risk. Based on the findings of the interim safety/risk assessment, as well as the results of validated testing for melamine concentration that has been conducted on tissue samples of hogs and chickens exposed to the adulterated feed, FSIS has determined that pork and poultry products from all animals identified as having been fed animal feed containing contaminated pet food scraps are “not adulterated” and are thus eligible to receive the mark of inspection. All such animals that were being held on farms have been released and may be offered for slaughter for human food. DATES: Comments on this **Federal Register** notice must be received by August 28, 2007. ADDRESSES: FSIS invites interested persons to submit comments on the findings in this notice. Comments may be submitted by any of the following methods: • Federal eRulemaking Portal: This Web site provides the ability to type short comments directly into the comment field on this Web page or attach a file for lengthier comments. Go to *http://www.regulations.gov* and, in the “Search for Open Regulations” box, select “Food Safety and Inspection Service” from the agency drop-down menu, then click on “Submit.” In the Docket ID column, select FDMS Docket Number FSIS-2007-0018 to submit or view public comments and to view supporting and related materials available electronically. • Mail, including floppy disks or CD-ROM's, and hand-or courier-delivered items: Send to Docket Clerk, U.S. Department of Agriculture, Food Safety and Inspection Service, 300 12th Street, SW., Room 102 Cotton Annex, Washington, DC 20250. • Electronic mail: *fsis.regulationscomments@fsis.usda.gov.* Individuals who do not wish FSIS to post their personal contact information — mailing address, e-mail address, telephone number — on the Internet may leave the information off their comments. All submissions received by mail or electronic mail must include the Agency name and docket number FSIS-2007-0018. All comments submitted in response to this notice, as well as research and background information used by FSIS in developing this document, will be available for public inspection in the FSIS Docket Room at the address listed above between 8:30 a.m. and 4:30 p.m., Monday through Friday. Comments will also be posted on the Agency's Web site at *http://www.fsis.usda.gov/* . FOR FURTHER INFORMATION CONTACT: Dr. Daniel Engeljohn, Deputy Assistant Administrator, Office of Policy, Program, and Employee Development (OPPED),

(202)205-0495. SUPPLEMENTARY INFORMATION: Background FSIS is responsible for ensuring that meat and poultry products are safe, wholesome, and accurately labeled. FSIS enforces the Federal Meat Inspection Act

(FMIA)(21 U.S.C. 601 *et seq.* ) and the Poultry Products Inspection Act

(PPIA)(21 U.S.C. 451 *et seq.* ). These two statutes require Federal inspection and provide for Federal regulation of meat and poultry products prepared for distribution in commerce for use as human food. Under the Acts, FSIS inspection personnel apply the mark of inspection to meat and poultry products if they find upon inspection that these articles are not adulterated (21 U.S.C. 455, 457; 21 U.S.C. 604, 606, 607). The Acts prohibit the sale or transportation in commerce of meat and poultry products capable of use as human food that are adulterated or misbranded or that have not been inspected and passed (21 U.S.C. 458 (a)(2); 21 U.S.C. 610(c)). The Acts also authorize FSIS to take certain actions to remove from commerce meat or poultry products that the Agency has reason to believe are adulterated or misbranded, or that have not been inspected (21 U.S.C. 467(a),467(b); 21 U.S.C. 672,673). Under the Acts, a meat or poultry product is adulterated if, among other circumstances, it bears or contains any poisonous or deleterious substance that may render it injurious to health (21 U.S.C. 453(g)(1), 601(m)(1)); it bears or contains (by reason of administration of any substance to the live animal or poultry, or otherwise) any added poisonous or added deleterious substance which may in the judgment of the Secretary render it unfit for human food (21 U.S.C. 453(g)(2), 601(m)(2)); if it is for any reason unsound, unhealthful, unwholesome, or unfit for human food (21 U.S.C. 453(g)(3), 601(m)(3)); or if it has been prepared, packaged, or held under insanitary conditions whereby it may have been rendered injurious to health (21 U.S.C. 453(g)(4), 601(m)(4)). On April 26, 2007, FSIS and the U.S. Food and Drug Administration

(FDA)announced that hogs on farms in certain States had consumed animal feed supplemented with pet food scraps contaminated with melamine and melamine-related compounds. On April 30, 2007, the agencies announced that chickens on certain farms in Indiana had also been fed poultry feed supplemented with melamine-contaminated pet food scraps. FSIS learned of the adulterated feed during the course of an ongoing FDA investigation of pet food associated with illnesses and deaths in cats and dogs. The pet food was found to contain melamine or melamine-related compounds (cyanuric acid, ammelide, and ammeline). Based on the available science and information, FDA investigators believed that the combination of melamine and melamine-related compounds, particularly cyanuric acid, caused the formation of crystals in the kidneys that led to kidney failure in some of the pets that had consumed the adulterated pet food. The investigation found that the source of the melamine and melamine-related compounds in the pet food was products, labeled as rice protein concentrate and as wheat gluten, which had been imported from China. The investigation also revealed that scraps from the adulterated pet food had been sold to hog and chicken producers and feed mills, where they were used to supplement animal feed. FDA then notified FSIS of its findings regarding animal feed. When FSIS and FDA announced that they had learned that hog and chicken farms in various States had purchased or otherwise received pet food scraps contaminated with melamine and melamine-related compounds, the agencies noted that some of the hogs and chickens that had consumed feed supplemented with the contaminated pet food scraps may have been slaughtered and their products distributed in commerce. At that time, the agencies also explained that they would work with States and industry to take the appropriate action with regard to the disposition of these products. Actions Taken Based on Data Concerning the Consumption of Feed Supplemented With Adulterated Pet Food When FSIS learned that hogs and chickens had consumed feed that had been supplemented with pet food scraps contaminated with melamine and melamine-related compounds, the Agency concluded that risk to human health from consuming pork or poultry products from these animals was likely to be very low. This conclusion was based on information that indicated that the concentration of melamine and melamine-related compounds in the adulterated feed was likely very low due to dilution. However, because the animal feed in question was adulterated, and given the information that was available at the time, FSIS could not rule out the possibility that pork and poultry products produced from hogs and chickens that consumed the adulterated feed could also be adulterated. Therefore, all animals that had been identified as having consumed feed supplemented with pet food scraps contaminated with melamine and melamine-related compounds and that were not yet offered for slaughter were placed under State quarantine or voluntarily held by the producers. In a press release issued on May 7, 2007, FDA and FSIS announced the results of a human health risk assessment estimating the risk to human health from melamine and melamine-related compounds through the consumption of edible animal products derived from poultry, pork, and fish. This human health risk assessment has since been updated with new information and is hereafter referred to as the interim safety/risk assessment. The interim safety/risk assessment concludes that, based on currently available data and information, the consumption of pork, poultry, eggs, and domestic fish products from animals inadvertently fed animal feed contaminated with melamine and melamine-related compounds is very unlikely to pose a human health risk. In a Notice of Availability published in this issue of the **Federal Register** , FDA is announcing the availability of this “Interim Melamine and Analogues Safety/Risk Assessment.” In the May 7, 2007, press release, FDA and FSIS also announced that several samples of feed from farms identified as having received contaminated pet food scraps had been tested by Federal laboratories or state laboratories using approved methods and the tests did not detect the presence of melamine and melamine-related compounds. The negative tests most likely reflected the fact that, because of dilution, the amount of melamine and melamine-related compounds present in the feed was so small that the compounds were no longer detectable by the approved testing method. After considering the new information presented in the interim safety/risk assessment, together with the recent test results that found that melamine concentrations in some of the adulterated feed was below the level of detection, FSIS determined that it would be appropriate at that time for the Agency to permit, under certain conditions, hogs and chickens that had been identified as having consumed adulterated feed to be offered for slaughter. Therefore, at that time, FSIS decided to allow hogs and chickens identified as having consumed adulterated feed to be offered for slaughter for human food if the feed had been tested by a Federal laboratory or state laboratory using approved methods and the test did not detect the presence of melamine and melamine-related compounds. FSIS concluded that under these conditions, FSIS would be able to find that pork and poultry products from animals that had consumed adulterated feed were “not adulterated” and thus eligible to receive the mark of inspection. At that time, hogs and chickens that had been identified as having consumed feed that had tested positive for melamine and melamine-related compounds, as well as animals that had been identified as having consumed feed supplemented with contaminated pet food scraps but none of the adulterated feed was available for testing, continued to be held under State quarantine or voluntarily by the producers. The disposition of these animals was to be determined on the basis of information from on-going investigations of hogs and chickens identified as having consumed adulterated feed. As part of these investigations, samples of animal feed, urine, and tissues were collected and analyzed for melamine concentration. In addition, based on the information that was available at the time, including information in the interim safety/risk assessment, FSIS concluded that it did not have sufficient evidence to demonstrate that the pork or poultry products that had already been distributed in commerce were injurious to health, unfit for human food, or otherwise adulterated under the FMIA or PPIA. Therefore, FSIS decided that it would not take action to remove from commerce any pork or poultry products that were produced from hogs and chickens that had consumed feed supplemented with pet food scraps contaminated with melamine and melamine-related compounds, but that had been slaughtered and processed prior to May 7, 2007. Thus, FSIS did not request that companies voluntarily recall the affected products from commerce. Information on the safety of pork and poultry from animals inadvertently fed adulterated feed that has become available since that time and is now reported in the interim safety/risk assessment further affirms this decision. Actions Taken in Response to Tissue Test Results As discussed above, as part of the on-going investigations of hogs and chickens identified as having consumed feed supplemented with pet food scraps contaminated with melamine and melamine-related compounds, samples of animal feed, urine, and tissues were collected and analyzed for melamine concentration. Information from these ongoing investigations is being used to examine the relationship between melamine levels in feed and the levels in animal tissues, assess the changes in melamine level in the animals over time, and compare the level found in animals and feed with concentrations that could pose a risk to humans. On May 12, 2007, FSIS completed its validation of the methodology used to detect melamine concentration in pork tissues. The current analytical method for measuring melamine concentrations in pork can screen for melamine concentrations in pork tissue at 50 ppb and above. It should be noted that 50 ppb represents a conservative estimate for the method employed. All pork samples analyzed to date have had melamine concentrations below the validated 50 ppb screening level (ranges measured were estimated to be from 9 to 12 ppb), including samples from hogs identified as having consumed the highest percentage of pet food scraps, as to which the hog feed was composed primarily, if not exclusively, of the contaminated pet food scraps. On May 15, 2007, USDA issued a press release that announced that results of testing conducted on tissue samples from hogs confirm that meat from hogs fed animal feed supplemented with pet food scraps containing melamine and melamine-related compounds is safe for human consumption. The press release also announced that hogs being held on farms because they had consumed adulterated feed would be released and approved for slaughter and processing into human food. The press release explained that the interim safety/risk assessment had been updated to reflect the melamine concentration for pork of 50 ppb screening level. The conclusion of the interim safety/risk assessment did not change. Subsequent to the development of the validated testing method for hog tissue, FSIS validated the test methodology used to screen for melamine concentration levels in poultry tissue at the 50 ppb level. All poultry tissue samples analyzed to date have had melamine concentrations below 50 ppb. On May 18, 2007, a USDA press release announced that the validated test for poultry confirms the safety of eating meat from chickens fed poultry feed supplemented with pet food scraps containing melamine and melamine-related compounds. The press release also announced that, based on the results of the tests, approximately 80,000 birds that were being held on farms in Indiana were to be released and approved for slaughter and processing into human food. Thus, as announced on May 15, 2007, regarding hogs, and on May 18, 2007, regarding chickens, FSIS has decided to allow all animals identified as having consumed pet food scraps contaminated with melamine and melamine-related compounds to be offered for slaughter. Based on the results of the measured melamine concentration in pork and poultry tissue samples from animals exposed to adulterated feed, together with the findings of the interim safety/risk assessment, FSIS had determined that it is able to find that pork and poultry products from animals that have consumed feed that contains pet food scraps contaminated with melamine and melamine-related compounds are “not adulterated” and thus eligible to receive the mark of inspection as required under the FMIA and PPIA. At the time of publication of this **Federal Register** notice, all hogs and chickens that were previously under State quarantine or being held voluntarily by the producers because they had been identified as having consumed adulterated feed have been released. Request for Comments FSIS requests comments on the findings articulated by FSIS in this **Federal Register** notice, and specifically on whether the FSIS findings are appropriate to protect public health. Comments on the interim safety/risk assessment should be submitted to FDA as instructed elsewhere in this issue of the **Federal Register** . Additional Public Notification Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that minorities, women, and persons with disabilities are aware of this document, FSIS will announce it on-line through the FSIS Web page located at *http://www.fsis.usda.gov/regulations_&_policies/2007_Notices_Index/index.asp* . FSIS will also make copies of this **Federal Register** publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, **Federal Register** notices, FSIS public meetings, recalls, and other types of information that could affect or would be of interest to constituents and stakeholders. The update is communicated via Listserv, a free electronic mail subscription service for industry, trade and farm groups, consumer interest groups, allied health professionals, and other individuals who have asked to be included. The update is available on the FSIS Web page. Through the Listserv and Web page, FSIS is able to provide information to a much broader and more diverse audience. In addition, FSIS offers an e-mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available at *http://www.fsis.usda.gov/news_and_events/email_subscription/* . Options range from recalls to export information to regulations, directives and notices. Customers can add or delete subscriptions themselves and have the option to password-protect their account. Done at Washington, DC, on May 23, 2007. David Goldman, Acting Administrator. [FR Doc. 07-2649 Filed 5-25-07; 8:45 am]

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