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Code · REGISTER · 2007-07-27 · PROPOSED RULES · Unknown

Unknown. Interim rule with request for comments

66,387 words·~302 min read·/register/2007/07/27/07-3674

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--- schema: federal-register doc_type: fedreg source_file: FR-2007-07-27.xml --- 72 144 Friday, July 27, 2007 Contents Agriculture Agriculture Department See Animal and Plant Health Inspection Service See Food and Nutrition Service See Forest Service NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-14561 41285-41287 E7-14562 E7-14564 E7-14565 Animal Animal and Plant Health Inspection Service RULES Plant-related quarantine, domestic: Gypsy moth, 41216 E7-14527 PROPOSED RULES Plant-related quarantine, domestic:
Citrus canker, 41239 E7-14530 Army Army Department See Engineers Corps NOTICES Patent licenses; non-exclusive, exclusive, or partially exclusive: Artillery rocket trajectory correction kit; correction, 41300 07-3673 Blind Blind or Severely Disabled, Committee for Purchase From People Who Are See Committee for Purchase From People Who Are Blind or Severely Disabled Bonneville Bonneville Power Administration NOTICES Reports and guidance documents; availability, etc.: Pacific Northwest power supply after 2011; long-term regional dialogue policy, 41307 E7-14529 Centers Centers for Disease Control and Prevention NOTICES Committees; establishment, renewal, termination, etc.:
National Center for Environmental Health/Agency for Toxic Substances and Disease Registry— Scientific Counselors Board, 41327 E7-14537 Meetings: Clinical Laboratory Improvement Advisory Committee, 41388-41389 E7-14571 Centers Centers for Medicare & Medicaid Services RULES Health care access: Group health insurance market requirements; mental health parity, 41230-41232 E7-14097 NOTICES Agency information collection activities; proposals, submissions, and approvals, 41328-41330 E7-14481 07-3647 Medicaid:
State plan amendments, reconsideration; hearings— Virginia, 41330-41331 E7-14607 Medicare and Medicaid: Deeming authority applications, approvals, denials, etc.— American Osteopathic Association, 41331-41333 E7-14100 Meetings: Practicing Physicians Advisory Council, 41333-41334 E7-14072 Civil Civil Rights Commission NOTICES Meetings; Sunshine Act, 41290 07-3690 Commerce Commerce Department See Economic Development Administration See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration See Patent and Trademark Office NOTICES Meetings:
Cross Border Data Flows, Data Protection, and Privacy; joint conference, 41290 E7-14499 Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement list; additions and deletions, E7-14521 41289-41290 E7-14522 Defense Defense Department See Army Department See Engineers Corps NOTICES Grants and cooperative agreements; availability, etc.: Local educational agencies in vicinity of United States Service Academy; special assistance, 41298-41300 E7-14520 Economic Economic Development Administration NOTICES Adjustment assistance; applications, determinations, etc.:
Lakeside Manufacturing Co. et al., 41290-41291 E7-14541 Education Education Department NOTICES Grants and cooperative agreements; availability, etc.: Vocational and adult education— Ready for College: Adult Education Transitions Program, 41301-41307 E7-14539 Employee Employee Benefits Security Administration NOTICES Committees; establishment, renewal, termination, etc.: Employee Welfare and Pension Benefit Plans Advisory Council, 41355 E7-14469 Employment Employment and Training Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 41355-41357 E7-14519 Energy Energy Department See Bonneville Power Administration See Western Area Power Administration Engineers Engineers Corps NOTICES Environmental statements; availability, etc.:
Parker, CO; Rueter-Hess Reservoir Expansion Project, 41300-41301 E7-14524 EPA Environmental Protection Agency RULES Pesticides; tolerances in food, animal feeds, and raw agricultural commodities: Chlorthalonil, 41224-41230 E7-14567 PROPOSED RULES Air quality implementation plans; approval and promulgation; various States; air quality planning purposes; designation of areas: Pennsylvania, 41246-41258 E7-14589 Air quality implementation plans; approval and promulgation; various States:
Pennsylvania, 41245-41246 E7-14599 NOTICES Environmental statements; availability, etc.: Agency comment availability, 41322-41324 E7-14569 Agency weekly receipts, 41324-41325 E7-14568 Reports and guidance documents; availability, etc.: Lead; risk assessment report, 41325-41326 E7-14601 Toxic and hazardous substances control: Interagency Testing Committee report— Receipt, 41414-41418 E7-14575 Executive Executive Office of the President See Presidential Documents FAA Federal Aviation Administration RULES Airworthiness standards:
Special conditions— Cessna Model 650 airplanes, 41216-41218 E7-14593 Standard instrument approach procedures, 41218-41221 E7-14077 NOTICES Meetings: RTCA, Inc., 41385 07-3677 FCC Federal Communications Commission NOTICES Meetings; Sunshine Act, 41326-41327 07-3704 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 41327 07-3707 Federal Highway Federal Highway Administration NOTICES Environmental statements; notice of intent: Cole County, MO, 41385-41386 E7-14572 Fish Fish and Wildlife Service PROPOSED RULES Endangered and threatened species:
Critical habitat designations— Peirson's milk-vetch, 41258-41284 07-3674 NOTICES Endangered and threatened species: Eastern prairie fringed orchid, etc.; 5-year reviews, 41348-41350 E7-14535 Recovery plans— Apache trout, 41350-41351 E7-14550 Food Food and Drug Administration RULES Advisory committees: Risk Communication Advisory Committee; establishment, 41221-41222 E7-14498 NOTICES Meetings: Medical Devices Advisory Committee, 41334-41335 E7-14600 Food Food and Nutrition Service NOTICES Food distribution programs:
Emergency Food Assistance Program; commodities availability, 41287-41288 E7-14526 Forest Forest Service NOTICES Environmental statements; availability, etc.: Survey and manage mitigation measure standards and guidelines; OR, WA, and CA; removal or modification, 41288-41289 E7-14665 Health Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Food and Drug Administration See Health Resources and Services Administration See National Institutes of Health RULES Health care access:
Individual health insurance market requirements— Qualified high risk pools operation; State grants, 41232-41238 E7-14361 Health Health Resources and Services Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 41335 E7-14525 Meetings: Interdisciplinary, Community-Based Linkages Advisory Committee, 41336 E7-14528 Homeland Homeland Security Department See U.S. Customs and Border Protection Housing Housing and Urban Development Department NOTICES Environmental statements; availability, etc.:
New York, NY; East River Waterfront Esplanade and Piers Project; conformity determination, 41342-41344 E7-14579 Grants and cooperative agreements; availability, etc.: Homeless assistance; excess and surplus Federal properties, 41344-41348 E7-14318 Reports and guidance documents; availability, etc.: Alternative Fuel Vehicle Acquisition Report (2006 FY), 41348 E7-14582 Industry Industry and Security Bureau NOTICES National Defense Stockpile: Beryllium metal; potential market impact of increasing proposed 2008 FY disposal level, 41291-41292 E7-14559 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau IRS Internal Revenue Service RULES Excise taxes:
Taxable fuel entry, 41222-41224 E7-14491 PROPOSED RULES Income taxes: Limitations on estates or trusts; section 67 guidance, 41243-41245 E7-14489 International International Trade Administration NOTICES Antidumping: Forged stainless steel flanges from— India, 41292 E7-14596 Glycine from— China, 41292-41293 E7-14598 Export trade certificates of review, 41293 E7-14540 Labor Labor Department See Employee Benefits Security Administration See Employment and Training Administration See Occupational Safety and Health Administration Land Land Management Bureau NOTICES Meetings:
Resource Advisory Councils— Dakotas, 41351 07-3694 Oil and gas leases: Wyoming, E7-14547 41352-41354 E7-14551 E7-14552 E7-14553 E7-14556 E7-14557 E7-14558 Resource management plans, etc.: Oregon and California Districts; survey and manage mitigation measure standards and guidelines removed, 41354-41355 E7-14664 Marine Marine Mammal Commission NOTICES Meetings; Sunshine Act, 41359-41360 07-3703 NIH National Institutes of Health NOTICES Inventions, Government-owned; availability for licensing, 41336-41338 E7-14500 E7-14501 Meetings:
National Heart, Lung, and Blood Institute, 41338 07-3668 National Institute of Biomedical Imaging and Bioengineering, 41339 07-3669 National Institute of Neurological Disorders and Stroke, 41339 07-3670 National Institute on Aging, 41339 07-3671 National Institute on Alcohol Abuse and Alcoholism, 41338 07-3667 Reports and guidance documents; availability, etc.: National Children's Study 2007 Research Plan, 41339-41340 E7-14514 NOAA National Oceanic and Atmospheric Administration PROPOSED RULES Fishery conservation and management:
Atlantic highly migratory species— Atlantic shark, 41392-41412 E7-14536 NOTICES Fishery conservation and management: Alaska; fisheries of Exclusive Economic Zone— Bering Sea and Aleutian Islands Crab Rationalization Cost Recovery Program, 41293-41294 E7-14574 Marine mammal permit applications, determinations, etc., 41294 E7-14588 Marine mammals: Incidental taking; authorization letters, etc.— PRBO Conservation Science; central California seabird research operations; California sea lions, etc., 41294-41298 E7-14584 Nuclear Nuclear Regulatory Commission NOTICES Export and import license applications for nuclear facilities and materials:
Diversified Scientific Services, Inc., 41360 E7-14566 Reports and guidance documents; availability, etc.: MTC Surveillance for Startup Test Activity Reduction Program, 41360-41365 E7-14573 Occupational Occupational Safety and Health Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 41357-41359 E7-14516 E7-14531 Patent Patent and Trademark Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 41298 E7-14542 Personnel Personnel Management Office RULES Veterans’ preference:
Active duty; definition change, 41215 E7-14490 Presidential Presidential Documents PROCLAMATIONS *Special observances:* Americans With Disabilities Act; anniversary (Proc. 8163), 41419-41422 07-3709 SEC Securities and Exchange Commission NOTICES Meetings; Sunshine Act, 41365 E7-14597 Self-regulatory organizations; proposed rule changes: Chicago Board Options Exchange, Inc., 41365-41369 E7-14505 E7-14507 International Securities Exchange, LLC, 41369-41375 E7-14502 National Association of Securities Dealers, Inc., 41375-41377 E7-14504 National Stock Exchange, Inc., 41377 E7-14506 New York Stock Exchange LLC, 41377-41380 E7-14503 SBA Small Business Administration PROPOSED RULES Small business size standards:
Calculation of the number of employees, 41239-41243 E7-14492 NOTICES Disaster loan areas: Kansas, E7-14515 41380 E7-14517 Massachusetts, 41380-41381 E7-14590 New York, 41381 E7-14518 Vermont, 41381 E7-14591 *Applications, hearings, determinations, etc.:* Emergence Capital Partners SBIC, L.P., 41380 E7-14592 State State Department NOTICES Environmental statements; notice of intent: Enbridge Energy, L.P.; floodplain and wetland involvement; public scoping meetings, 41381-41383 E7-14486 Enbridge Pipelines (Southern Lights) L.L.C.; floodplain and wetland involvement; public scoping meetings, 41383-41385 E7-14488 Surface Surface Transportation Board NOTICES Railroad operation, acquisition, construction, etc.:
Michigan Central Railway, LLC, 41386-41387 E7-14310 E7-14351 Railroad services abandonment: CSX Transportation, Inc., 41387-41388 E7-14440 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Surface Transportation Board Treasury Treasury Department See Internal Revenue Service MISSING FOR: U.S. Customs and Border Protection U.S. Customs and Border Protection NOTICES Agency information collection activities; proposals, submissions, and approvals, 41340-41342 E7-14493 E7-14494 Meetings:
Commercial Operations of Customs and Border Protection and Related Homeland Security Functions Departmental Advisory Committee, 41342 E7-14495 Veterans Veterans Affairs Department NOTICES Meetings: Veteran's Disability Benefits Commission, 41388 07-3675 Western Western Area Power Administration NOTICES Environmental statements; notice of intent: NextGen Energy Facility Project, SD; construction and operation, 41307-41309 E7-14532 Resource adequacy plans: California Independent System Operator Corporation's Balancing Authority Area transactions, 41309-41322 E7-14533 Separate Parts In This Issue Part II Commerce Department, National Oceanic and Atmospheric Administration, 41392-41412 E7-14536 Part III Environmental Protection Agency, 41414-41418 E7-14575 Part IV Executve Office of the President, Presidential Documents, 41419-41422 07-3709 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 72 144 Friday, July 27, 2007 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 211 RIN 3206-AL33 Veterans' Preference AGENCY: Office of Personnel Management. ACTION: Interim rule with request for comments. SUMMARY:
The Office of Personnel Management
(OPM)is issuing interim regulations to implement a change to the definition of “active duty” contained in § 211.102(f) of title 5, Code of Federal Regulations. We are making this change in response to a Merit System Protection Board
(MSPB)decision that affects eligibility for veterans' preference based on a service-connected disability. This action will conform OPM's regulations with MSPB's decision. DATES: Interim rule effective July 27, 2007; comments must be received on or before September 25, 2007. ADDRESSES: Send or deliver written comments to Mark Doboga, Deputy Associate Director for Talent and Capacity Policy, U.S. Office of Personnel Management, Room 6551, 1900 E Street, NW., Washington, DC 20415-9700; e-mail: *employ@opm.gov;* fax:
(202)606-2329. Comments may also be sent through the Federal eRulemaking Portal at: *http://www.regulations.gov.* All submissions received through the Portal must include the agency name and docket number or Regulation Identifier Number
(RIN)for this rulemaking. FOR FURTHER INFORMATION CONTACT: Scott A. Wilander by telephone at
(202)606-0960; by fax at
(202)606-0390; TTY at
(202)606-3134; or by e-mail at *Scott.Wilander@opm.gov.* SUPPLEMENTARY INFORMATION: On February 6, 2007, the Merit Systems Protection Board (the Board) issued a decision in *Edward Thomas Hesse* v. *Department of the Army* (AT-3443-05-0936-I-1) that affects the eligibility criteria for veterans' preference based on a service-connected disability under 5 U.S.C. 2108(2). The Board decided that, for the purposes of entitlement to veterans' preference, the term “active duty” as used in 5 U.S.C. 2108(2) “* * * may consist entirely of service for training purposes.” OPM is revising the definition of “active duty” in § 211.102(f) consistent with MSPB's decision. Former National Guard and Reserve members who served on active duty, including active duty for training, who were discharged or released from active duty under honorable conditions, and who establish the present existence of a service-connected disability or are receiving compensation, disability retirement benefits, or pension under the laws of the Department of Veterans Affairs or a military department are entitled to veterans' preference under 5 U.S.C. 2108(2). Waiver of Notice of Proposed Rulemaking Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists for waiving the general notice of proposed rulemaking. Waiver of advance notice is necessary to ensure that the regulations become effective immediately and agencies understand completely their obligations under 5 U.S.C. 2108(2) and do not unwittingly deny veterans' preference based upon existing regulations. If OPM's regulations were permitted to remain as written while OPM solicited comments upon its proposed revisions, there is a possibility that Reservists or National Guard members with a service-connected disability who are released or discharged from active duty may be denied veterans' preference based upon the current language in regulations. The revised language in this interim regulation will ensure service-connected disabled individuals discharged or released from active duty in the armed forces receive the veterans' preference. E.O. 12866, Regulatory Review This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866. Regulatory Flexibility Act I certify that this regulation would not have a significant economic impact on a substantial number of small entities because it affects only Federal employees. List of Subjects in 5 CFR Part 211 Government employees, Veterans. U.S. Office of Personnel Management. Linda M. Springer, Director. Accordingly, OPM is amending part 211 of title 5, Code of Federal Regulations, as follows: PART 211—VETERAN PREFERENCE 1. The authority for part 211 continues to read as follows: Authority: 5 U.S.C. 1302. 2. In § 211.102, revise paragraph
(f)to read as follows: § 211.102 Definitions. 211.102(f) Active duty or military duty.
(1)*Active duty or active military duty* for a veteran defined in paragraph
(a)of this section means full-time duty with military pay and allowances in the armed forces, except for training or for determining physical fitness and except for service in the Reserves or National Guard.
(2)*Active duty or active military duty* for a disabled veteran defined in paragraph
(b)of this section means active duty with military pay and allowances in the armed forces, including training or for determining physical fitness and including service in the Reserves or National Guard. [FR Doc. E7-14490 Filed 7-26-07; 8:45 am] BILLING CODE 6325-39-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 301 [Docket No. APHIS-2006-0116] Gypsy Moth Generally Infested Areas; Addition of Counties in Ohio and West Virginia AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Affirmation of interim rule as final rule. SUMMARY: We are adopting as a final rule, without change, an interim rule that amended the gypsy moth regulations by adding Delaware and Franklin Counties in Ohio and Monroe County in West Virginia to the list of generally infested areas based upon the detection of infestations of gypsy moth in those counties. As a result of the interim rule, the interstate movement of regulated articles from those areas is restricted. The interim rule was necessary to prevent the artificial spread of the gypsy moth to noninfested States. DATES: Effective on July 27, 2007, we are adopting as a final rule the interim rule published at 71 FR 53546-53547 on September 12, 2006. FOR FURTHER INFORMATION CONTACT: Dr. Weyman Fussell, Program Manager, Pest Detection and Management Programs, PPQ, APHIS, 4700 River Road Unit 134, Riverdale, MD 20737-1231;
(301)734-5705. SUPPLEMENTARY INFORMATION: Background The gypsy moth, *Lymantria dispar* (Linnaeus), is a destructive pest of forest and shade trees. The gypsy moth regulations (contained in 7 CFR 301.45 through 301.45-12 and referred to below as the regulations) restrict the interstate movement of regulated articles from generally infested areas to prevent the artificial spread of the gypsy moth. In an interim rule 1 effective and published in the **Federal Register** on September 12, 2006 (71 FR 53546-53547, Docket No. APHIS-2006-0116), we amended the gypsy moth regulations by adding Delaware and Franklin Counties in Ohio and Monroe County in West Virginia to the list of generally infested areas. Comments on the interim rule were required to be received on or before November 13, 2006. We did not receive any comments. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule. 1 To view the interim rule, go to *http://www.regulations.gov,* click on the “Advanced Search” tab, and select “Docket Search.” In the Docket ID field, enter APHIS-2006-0116, then click “Submit.” Clicking on the Docket ID link in the search results page will produce the document in the docket. [Comment1]Two of the three counties? This action also affirms the information contained in the interim rule concerning Executive Orders 12866, 12372, and 12988, and the Paperwork Reduction Act. Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866. Regulatory Flexibility Act The following analysis addresses the economic effects of the interim rule on small entities, as required by the Regulatory Flexibility Act. The rule affected the interstate movement of regulated articles, including forest products (logs, pulpwood, wood chips) and Christmas trees, nursery stock, and mobile homes and outdoor household articles from and through Delaware and Franklin Counties in Ohio and Monroe County in West Virginia. Most of the area of the three counties now considered generally infested are on the fringe of generally infested areas and do not have high levels of infestation. In the three newly quarantined counties, there are 161 establishments that produce and ship regulated articles. Many of the establishments are in areas where there is negligible or no infestation. Of these, 38 are Christmas tree growers and 123 are nurseries. Nearly 99 percent of the establishments are considered to be small businesses. Sales of forest products and Christmas trees in the affected counties in 2002 were valued at $33 million, representing about 6.7 percent of the total values of such sales in the two States. There were 950 shipments of shrubs and trees, nursery items, and Christmas trees. Of those, only 200 shipments were to non-regulated areas. The regulatory requirements of the regulations are expected to cause a slight increase in the costs of business for affected entities. However, any negative economic effects are small when compared with the potential for harm to the forest industry and the U.S. economy as a whole that would result from the spread of the pest. Since the total value of regulated articles moved from the affected counties to non-regulated areas is a small fraction of the national total, the regulatory effect on national prices is expected to be insignificant. Additionally, since the regulations do not prohibit movement of regulated articles, articles that meet the requirements of the regulations can continue to enter the market. The overall impact upon price and competitiveness is expected to be insignificant. Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities. List of Subjects in 7 CFR Part 301 Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation. PART 301—DOMESTIC QUARANTINE NOTICES Accordingly, we are adopting as a final rule, without change, the interim rule that amended 7 CFR part 301 and that was published at 71 FR 53546-53547 on September 12, 2006. Done in Washington, DC, this 23rd day of July 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-14527 Filed 7-26-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. NM380; Special Conditions No. 25-361-SC] Special Conditions: Cessna Model 650 Airplanes; High-Intensity Radiated Fields
(HIRF)AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final special conditions; request for comments. SUMMARY: These special conditions are issued for Cessna Model 650 airplanes modified by Columbia Avionics, Inc. These modified airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. The modification consists of installing an Electronic Flight Instrument System
(EFIS)with the options for the Universal Avionics Vision 1 Synthetic Vision System. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for the protection of these systems from the effects of high- intensity radiated fields (HIRF). These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: The effective date of these special conditions is July 18, 2007. We must receive your comments by August 27, 2007. ADDRESSES: You must mail two copies of your comments to: Federal Aviation Administration, Transport Airplane Directorate, Attention: Rules Docket (ANM-113), Docket No. NM380, 1601 Lind Avenue SW., Renton, Washington 98057-3356. You may deliver two copies to the Transport Airplane Directorate at the above address. You must mark your comments: Docket No. NM380. You can inspect comments in the Rules Docket weekdays, except Federal Holidays, between 7:30 a.m. and 4 p.m. FOR FURTHER INFORMATION CONTACT: Greg Dunn, FAA, Airplane and Flight Crew Interface Branch, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone
(425)227-2799; facsimile
(425)227-1320. SUPPLEMENTARY INFORMATION: Comments Invited The FAA has determined that notice and opportunity for prior public comment is impracticable because these procedures would significantly delay certification of the airplane and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance; however, we invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments. We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel about these special conditions. You may inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays. We will consider all comments we receive by the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive. If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you. Background On March 15, 2007, Columbia Avionics, Inc., 11200 Airport Road, Columbia, Missouri, 65201, applied for a supplemental type certificate
(STC)to modify Cessna Model 650 airplanes. The Cessna Model 650 is a low-wing, pressurized, transport category airplane with two fuselage-mounted jet engines. It can seat up to 19 passengers, with a crew of two pilots. The modification consists of installing an electronic flight instrument system
(EFIS)with the options for the Universal Avionics Vision 1 Synthetic Vision System. These systems have the potential to be vulnerable to high-intensity radiated fields
(HIRF)external to the airplane. Type Certification Basis Under 14 CFR 21.101, Columbia Avionics, Inc., must show that the Cessna Model 650 airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A9NM, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. A9NM include the following: Part 25 of the Federal Aviation Regulations
(FAR)effective February 1, 1965, as amended by Amendments 25-1 through 25-39. In addition, the following regulations apply: §§ 25.901(c) and 25.1199, as amended by Amendments 25-1 through 25-40; §§ 25.1309 and 25.1351(d), as amended by Amendments 25-1 through 25-41; §§ 25.177, 25.255, and 25.703, as amended by Amendments 25-1 through 25-42; § 25.1326, as amended by Amendments 25-1 through 25-43; § 25.1413, as amended by Amendments 25-1 through 25-44; and §§ 25.1305 and 25.1529, as amended by Amendments 25-1 through 25-54. In addition, the certification basis includes certain special conditions, exemptions, equivalent levels of safety, or later amended sections of the applicable part 25 regulations that are not relevant to these special conditions. These special conditions will form an additional part of the supplemental type certification basis. If the Administrator finds that the applicable airworthiness regulations (i.e., part 25, as amended) do not contain adequate or appropriate safety standards for the Cessna Model 650 airplanes because of a novel or unusual design feature, special conditions are prescribed under § 21.16. Besides the applicable airworthiness regulations and special conditions, the Cessna Model 650 airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. Special conditions, as defined in 14 CFR 11.19, are issued under § 11.38 and become part of the type certification basis under § 21.101. Special conditions are initially applicable to the model for which they are issued. Should Columbia Avionics apply later for a supplemental type certificate to modify any other model included on Type Certificate No. A9NM to incorporate the same or similar novel or unusual design feature, these special conditions would also apply to the other model under § 21.101. Novel or Unusual Design Features As noted earlier, the Cessna Model 650 airplanes modified Columbia Avionics will incorporate dual Electronic Primary Flight Displays that will perform critical functions. This system may be vulnerable to high-intensity radiated fields external to the airplane. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards for the protection of this equipment from the adverse effects of HIRF. Accordingly, this system is considered to be a novel or unusual design feature. Discussion There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection. To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Cessna 650 airplanes modified by Columbia Avionics. These special conditions require that new avionics/electronics and electrical systems that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF. High-Intensity Radiated Fields
(HIRF)With the trend toward increased power levels from ground-based transmitters, and the advent of space and satellite communications coupled with electronic command and control of the airplane, the immunity of critical avionics/electronics and electrical systems to HIRF must be established. It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1 OR 2 below: 1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 kHz to 18 GHz. a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding. b. Demonstration of this level of protection is established through system tests and analysis. 2. A threat external to the airframe of the field strengths identified in the table below for the frequency ranges indicated. Both peak and average field strength components from the table are to be demonstrated. Frequency Field strength (volts per meter) Peak Average 10 kHz-100 kHz 50 50 100 kHz-500 kHz 50 50 500 kHz-2 MHz 50 50 2 MHz-30 MHz 100 100 30 MHz-70 MHz 50 50 70 MHz-100 MHz 50 50 100 MHz-200 MHz 100 100 200 MHz-400 MHz 100 100 400 MHz-700 MHz 700 50 700 MHz-1 GHz 700 100 1 GHz-2 GHz 2000 200 2 GHz-4 GHz 3000 200 4 GHz-6 GHz 3000 200 6 GHz-8 GHz 1000 200 8 GHz-12 GHz 3000 300 12 GHz-18 GHz 2000 200 18 GHz-40 GHz 600 200 The field strengths are expressed in terms of peak of the root-mean-square
(rms)over the complete modulation period. The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee. Applicability As discussed above, these special conditions are applicable to Cessna Model 650 airplanes modified by Columbia Avionics. Should Columbia Avionics apply later for a supplemental type certificate to modify any other model included on Type Certificate No. A9NM to incorporate the same or similar novel or unusual design feature, these special conditions would apply to that model as well under § 21.101. Conclusion This action affects only certain novel or unusual design features on Cessna Model 650 airplanes modified by Columbia Avionics. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane. The substance of these special conditions has been subjected to the notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above. List of Subjects in 14 CFR Part 25 Aircraft, Aviation safety, Reporting and recordkeeping requirements. The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704. The Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the supplemental type certification basis for the Cessna Model 650 airplanes modified by Columbia Avionics. 1. *Protection from Unwanted Effects of High-Intensity Radiated Fields (HIRF)* . Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high-intensity radiated fields. 2. For the purpose of these special conditions, the following definition applies: *Critical Functions:* Functions whose failure would contribute to or cause a failure condition that would prevent the continued safe flight and landing of the airplane. Issued in Renton, Washington, on July 18, 2007. Stephen P. Boyd, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-14593 Filed 7-26-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 30560 Amdt. No. 3227] Standard Instrument Approach Procedures, Weather Takeoff Minimums; Miscellaneous Amendments AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This amendment establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and/or Weather Takeoff Minimums for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports. DATES: This rule is effective July 27, 2007. The compliance date for each SIAP and/or Weather Takeoff Minimums is specified in the amendatory provisions. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 27, 2007. ADDRESSES: Availability of matters incorporated by reference in the amendment is as follows: *For Examination* — 1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; 2. The FAA Regional Office of the region in which the affected airport is located; 3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or, 4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html* . *For Purchase* —Individual SIAP and Weather Takeoff Minimums copies may be obtained from: 1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or 2. The FAA Regional Office of the region in which the affected airport is located. *By Subscription* —Copies of all SIAPs and Weather Takeoff Minimums mailed once every 2 weeks, are for sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. FOR FURTHER INFORMATION CONTACT: Donald P. Pate, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone:
(405)954-4164. SUPPLEMENTARY INFORMATION: This amendment to Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), establishes, amends, suspends, or revokes SIAPs and/or Weather Takeoff Minimums. The complete regulatory description of each SIAP and/or Weather Takeoff Minimums is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, 8260-5 and 8260-15A. Materials incorporated by reference are available for examination or purchase as stated above. The large number of SIAPs and/or Weather Takeoff Minimums, their complex nature, and the need for a special format make their verbatim publication in the **Federal Register** expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs and/or Weather Takeoff Minimums but refer to their depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP and/or Weather Takeoff Minimums contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR sections, with the types and effective dates of the SIAPs and/or Weather Takeoff Minimums. This amendment also identifies the airport, its location, the procedure identification and the amendment number. The Rule This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and/or Weather Takeoff Minimums as contained in the transmittal. Some SIAP and/or Weather Takeoff Minimums amendments may have been previously issued by the FAA in a Flight Data Center
(FDC)Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP, and/or Weather Takeoff Minimums amendments may require making them effective in less than 30 days. For the remaining SIAPs and/or Weather Takeoff Minimums, an effective date at least 30 days after publication is provided. Further, the SIAPs and/or Weather Takeoff Minimums contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and/or Weather Takeoff Minimums, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and/or Weather Takeoff Minimums and safety in air commerce, I find that notice and public procedure before adopting these SIAPs and/or Weather Takeoff Minimums are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs and/or Weather Takeoff Minimums effective in less than 30 days. Conclusion The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and
(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. List of Subjects in 14 CFR Part 97 Air traffic control, Airports, Incorporation by reference, and Navigation (air). Issued in Washington, DC, on July 13, 2007. James J. Ballough, Director, Flight Standards Service. Adoption of the Amendment Accordingly, pursuant to the authority delegated to me, under Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and Weather Takeoff Minimums effective at 0901 UTC on the dates specified, as follows: PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722. 2. Part 97 is amended to read as follows: * * * Effective 30 AUG 2007 Bettles, AK, Bettles, RNAV
(GPS)RWY 1, Orig Bettles, AK, Bettles, RNAV
(GPS)RWY 19, Orig Bettles, AK, Bettles, LOC/DME RWY 1, Amdt 5 Bettles, AK, Bettles, VOR/DME RWY 1, Amdt 1 Bettles, AK, Bettles, GPS RWY 01, Orig, CANCELLED Bettles, AK, Bettles, Takeoff Minimums and Obstacle DP, Amdt 2 Soldontna, AK, Soldontna, RNAV
(GPS)RWY 7, Orig Soldontna, AK, Soldontna, RNAV
(GPS)RWY 25, Orig Soldontna, AK, Soldontna, GPS RWY 07, Orig-A, CANCELLED Soldontna, AK, Soldontna, GPS RWY 25, Orig, CANCELLED Soldontna, AK, Soldontna, Takeoff Minimums and Obstacle DP, Amdt 2 Auburn, AL, Auburn-Opelika Robert G. Pitts, RNAV
(GPS)RWY 36, Amdt 1 Pell City, AL, St Clair County, RNAV
(GPS)RWY 2, Amdt 1 Pell City, AL, St Clair County, RNAV
(GPS)RWY 20, Amdt 1 Pell City, AL, St Clair County, VOR-A, Amdt 8 Pell City, AL, St Clair County, Takeoff Minimums and Obstacle DP, Amdt 1 Mountain View, AR, Mountain View Wilcox Memorial Field, RNAV
(GPS)RWY 27, Orig Mountain View, AR, Mountain View Wilcox Memorial Field, NDB-A, Amdt 2B, CANCELLED Grand Canyon, AZ, Grand Canyon National Park, Takeoff Minimums and Obstacle DP, Orig Atwater, CA, Castle, ILS OR LOC/DME RWY 31, Amdt 1 Groveland, CA, Pine Mountain Lake, RNAV
(GPS)RWY 9, Orig Groveland, CA, Pine Mountain Lake, GPS RWY 9, Orig-A, CANCELLED Apalachicola, FL, Apalachicola Muni, RNAV
(GPS)RWY 6, Orig Apalachicola, FL, Apalachicola Muni, RNAV
(GPS)RWY 13, Amdt 1 Apalachicola, FL, Apalachicola Muni, RNAV
(GPS)RWY 24, Orig Apalachicola, FL, Apalachicola Muni, RNAV
(GPS)RWY 31, Amdt 1 Apalachicola, FL, Apalachicola Muni, Takeoff Minimums and Obstacle DP, Orig Pompano Beach, FL, Pompano Beach Airpark, Takeoff Minimums and Obstacle DP, Amdt 3 Adel, GA, Cook County, RNAV
(GPS)RWY 23, Orig Adel, GA, Cook County, Takeoff Minimums and Obstacle DP, Amdt 1 Cordele, GA, Crisp County-Cordele, RNAV
(GPS)RWY 10, Orig Cordele, GA, Crisp County-Cordele, RNAV
(GPS)RWY 28, Orig Cordele, GA, Crisp County-Cordele, Takeoff Minimums and Obstacle DP, Amdt 2 Dublin, GA, W. H. `Bud' Barron, ILS OR LOC RWY 2, Amdt 1 Dublin, GA, W. H. `Bud' Barron, Takeoff Minimums and Obstacle DP, Amdt 1 Toccoa, GA, Toccoa RG Letourneau Field, RNAV
(GPS)RWY 2, Orig Toccoa, GA, Toccoa RG Letourneau Field, RNAV
(GPS)RWY 20, Orig Toccoa, GA, Toccoa RG Letourneau Field, GPS RWY 02, Orig, CANCELLED Toccoa, GA, Toccoa RG Letourneau Field, Takeoff Minimums and Obstacle DP, Amdt 3 Waynesboro, GA, Burke County, Takeoff Minimums and Obstacle DP, Orig Winder, GA, Winder-Barrow, RNAV
(GPS)RWY 13, Orig Winder, GA, Winder-Barrow, RNAV
(GPS)RWY 31, Orig Winder, GA, Winder-Barrow, Takeoff Minimums and Obstacle DP, Orig Chicago, IL, Chicago-O'Hare Intl, ILS OR LOC RWY 9R, Amdt 8 Chicago, IL, Chicago-O'Hare Intl, ILS OR LOC RWY 27L, Amdt 27, ILS RWY 27L (CAT II), ILS RWY 27L (CAT III) Chicago, IL, Chicago-O'Hare Intl, RNAV
(GPS)RWY 4L, Amdt 1 Chicago, IL, Chicago-O'Hare Intl, RNAV
(GPS)RWY 9R, Amdt 1 Chicago, IL, Chicago-O'Hare Intl, RNAV
(GPS)RWY 22R, Amdt 1 Chicago, IL, Chicago-O'Hare Intl, RNAV
(GPS)RWY 27L, Amdt 1 Chicago, IL, Chicago-O'Hare Intl, RNAV
(GPS)Y RWY 22R, Orig-B, CANCELLED Chicago, IL, Chicago-O'Hare Intl, LOC RWY 4L, Amdt 20 Chicago, IL, Chicago-O'Hare Intl, Takeoff Minimums and Obstacle DP, Amdt 15 Flora, IL, Flora Muni, RNAV
(GPS)RWY 3, Amdt 1 Flora, IL, Flora Muni, RNAV
(GPS)RWY 21, Amdt 1 Marion, IL, Williamson County Regional, RNAV
(GPS)RWY 2, Orig Marion, IL, Williamson County Regional, RNAV
(GPS)RWY 20, Orig Marion, IL, Williamson County Regional, NDB RWY 20, Amdt 10 Marion, IL, Williamson County Regional, VOR RWY 2, Amdt 13 Marion, IL, Williamson County Regional, VOR RWY 20, Amdt 17 Qunicy, IL, Quincy Rgnl Baldwin Field, RNAV
(GPS)RWY 22, Orig Qunicy, IL, Quincy Rgnl Baldwin Field, VOR/DME RWY 22, Amdt 8 Qunicy, IL, Quincy Rgnl Baldwin Field, VOR/DME RNAV OR GPS RWY 31, Amdt 3A, CANCELLED Qunicy, IL, Quincy Rgnl Baldwin Field, Takeoff Minimums and Obstacle DP, Orig Fort Scott, KS, Fort Scott Muni, RNAV
(GPS)RWY 18, Orig Fort Scott, KS, Fort Scott Muni, RNAV
(GPS)RWY 36, Orig Fort Scott, KS, Fort Scott Muni, Takeoff Minimums and Obstacle DP, Orig Topeka, KS, Forbes Field, ILS OR LOC RWY 31, Amdt 9C Frankfort, KY, Capital City, LOC RWY 24, Amdt 2 Alexandria, LA, Alexandria Intl, RNAV
(GPS)RWY 18, Amdt 1 Alexandria, LA, Alexandria Intl, RNAV
(GPS)RWY 36, Orig Alexandria, LA, Alexandria Intl, VOR/DME RWY 32, Amdt 1 Alexandria, LA, Alexandria Intl , Takeoff Minimums and Textual DP's, Orig Kalamazoo, MI, Kalamazoo/Battle Creek Intl, ILS OR LOC RWY 35, Amdt 22 Kalamazoo, MI, Kalamazoo/Battle Creek Intl, RNAV
(GPS)RWY 35, Orig Kalamazoo, MI, Kalamazoo/Battle Creek Intl, NDB RWY 35, Amdt 19 Kalamazoo, MI, Kalamazoo/Battle Creek Intl, VOR RWY 35, Amdt 17 Kalamazoo, MI, Kalamazoo/Battle Creek Intl, Takeoff Minimums and Textual DP, Amdt 9 Lee's Summit, MO, Lee's Summit Municipal, RNAV
(GPS)RWY 11,Orig Lee's Summit, MO, Lee's Summit Municipal, RNAV
(GPS)RWY 18, Amdt 1 Lee's Summit, MO, Lee's Summit Municipal, RNAV
(GPS)RWY 29, Amdt 1 Lee's Summit, MO, Lee's Summit Municipal, RNAV
(GPS)RWY 36, Amdt 1 Pascagoula, MS, Trent Lott Intl, ILS OR LOC RWY 17, Amdt 1 Pascagoula, MS, Trent Lott Intl, RNAV
(GPS)RWY 17, Orig Pascagoula, MS, Trent Lott Intl, RNAV
(GPS)RWY 35, Orig Pascagoula, MS, Trent Lott Intl, GPS RWY 17, Orig-A, CANCELLED Pascagoula, MS, Trent Lott Intl, GPS RWY 35, Orig, CANCELLED Jamestown, ND, Jamestown Regional, RNAV
(GPS)RWY 4, Orig Jamestown, ND, Jamestown Regional, RNAV
(GPS)RWY 13, Orig Jamestown, ND, Jamestown Regional, RNAV
(GPS)RWY 22, Orig Jamestown, ND, Jamestown Regional, VOR RWY 13, Amdt 8 Jamestown, ND, Jamestown Regional, Takeoff Minimums and Obstacle DP, Amdt 1 Albuquerque, NM, Albuquerque Intl Sunport, VOR OR TACAN RWY 8, Amdt 20A Reno, NV, Reno/Tahoe Intl, ILS OR LOC/DME RWY 34L, Orig Buffalo, NY, Buffalo Niagra Intl, Takeoff Minimums and Obstacle DP, Amdt 5 Norman, OK, University of Oklahoma Westheimer, RNAV
(GPS)RWY 3, Orig Norman, OK, University of Oklahoma Westheimer, RNAV
(GPS)RWY 17, Orig Norman, OK, University of Oklahoma Westheimer, NDB RWY 3, Amdt 1 Norman, OK, University of Oklahoma Westheimer, GPS RWY 3, Orig-B, CANCELLED Norman, OK, University of Oklahoma Westheimer, GPS RWY 17, Amdt 1A, CANCELLED Oklahoma City, OK, Wiley Post, RNAV
(GPS)RWY 17L, Orig Oklahoma City, OK, Wiley Post, GPS RWY 17L, Orig, CANCELLED Marion, SC, Marion County, RNAV
(GPS)RWY 4, Orig Marion, SC, Marion County, NDB RWY 4, Amdt 4 Mobridge, SD, Mobridge Muni, RNAV
(GPS)RWY 12, Orig Mobridge, SD, Mobridge Muni, RNAV
(GPS)RWY 30, Orig Mobridge, SD, Mobridge Muni, NDB RWY 12, Amdt 2 Watertown, SD, Watertown Regional, RNAV
(GPS)RWY 12, Orig Watertown, SD, Watertown Regional, RNAV
(GPS)RWY 17, Orig Watertown, SD, Watertown Regional, RNAV
(GPS)RWY 30, Orig Watertown, SD, Watertown Regional, VOR OR TACAN RWY 17, Amdt 17 Watertown, SD, Watertown Regional, Takeoff Minimums and Obstacle DP, Orig Wichita Falls, TX, Sheppard AFB/Wichita Falls Muni, ILS OR LOC RWY 33L, Amdt 12F, CANCELLED Wichita Falls, TX, Sheppard AFB/Wichita Falls Muni, RNAV
(GPS)RWY 15R, Amdt 1, CANCELLED Wichita Falls, TX, Sheppard AFB/Wichita Falls Muni, RNAV
(GPS)RWY 33L, Amdt 1A, CANCELLED Wichita Falls, TX, Sheppard AFB/Wichita Falls Muni, NDB RWY 33L, Amdt 11B, CANCELLED Wichita Falls, TX, Sheppard AFB/Wichita Falls Muni, VOR-D, Amdt 14, CANCELLED Wichita Falls, TX, Sheppard AFB/Wichita Falls Muni, Takeoff Minimums and Obstacle DP, Amdt 2, CANCELLED Front Royal, VA, Front Royal-Warren County, Takeoff Minimums and Obstacle DP, Orig Quinton, VA, New Kent County, Takeoff Minimums and Obstacle DP, Orig Pasco, WA, Tri-Cities, VOR RWY 21R, Amdt 5 Seattle, WA, Seattle-Tacoma Intl, ILS OR LOC RWY 16L, Amdt 3B ILS RWY 16L (CAT II), ILS RWY 16L (CAT III) Boscobel, WI, Boscobel, RNAV
(GPS)RWY 7, Orig Boscobel, WI, Boscobel, RNAV
(GPS)RWY 25, Orig Boscobel, WI, Boscobel, VOR/DME RWY 25, Orig Boscobel, WI, Boscobel, VOR/DME OR GPS-A, AMDT 3A, CANCELLED Madison, WI, Dane County Regional-Truax Field, ILS OR LOC/DME RWY 18, Orig-A Madison, WI, Dane County Regional-Truax Field, ILS OR LOC/DME RWY 36, Orig-B Merrill, WI, Merrill Muni, RNAV
(GPS)RWY 7, Amdt 1 Merrill, WI, Merrill Muni, RNAV
(GPS)RWY 25, Amdt 1 Merrill, WI, Merrill Muni, Takeoff Minimums and Obstacle DP, Orig Sturgeon Bay, WI, Door County Cherryland, RNAV
(GPS)RWY 2, Amdt 1 Sturgeon Bay, WI, Door County Cherryland, RNAV
(GPS)RWY 20, Amdt 1 Sturgeon Bay, WI, Door County Cherryland, Takeoff Minimums and Obstacle DP, Orig * * * Effective 25 OCT 2007 Houghton Lake, MI, Roscommon County-Blodgett Memorial, RNAV
(GPS)RWY 9, Amdt 1 Houghton Lake, MI, Roscommon County-Blodgett Memorial, RNAV
(GPS)RWY 27, Orig Houghton Lake, MI, Roscommon County-Blodgett Memorial, VOR RWY 9, Amdt 4 Houghton Lake, MI, Roscommon County-Blodgett Memorial, VOR RWY 27, Amdt 3 Houghton Lake, MI, Roscommon County-Blodgett Memorial, Takeoff Minimums and Obstacle DP, Amdt 1 Kalamazoo, MI, Kalamazoo/Battle Creek Intl, RNAV
(GPS)RWY 17, Orig Kalamazoo, MI, Kalamazoo/Battle Creek Intl, RADAR-1, Amdt 9 Kalamazoo, MI, Kalamazoo/Battle Creek Intl, LOC BC RWY 17, Amdt 19 Kalamazoo, MI, Kalamazoo/Battle Creek Intl, VOR RWY 17, Amdt 18 [FR Doc. E7-14077 Filed 7-26-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 14 Advisory Committee; Risk Communication Advisory Committee; Establishment AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is announcing the establishment of the Risk Communication Advisory Committee in the Office of Planning, Office of the Commissioner. This document adds the Risk Communication Advisory Committee to the agency's list of standing advisory committees. DATES: This rule is effective July 27, 2007. Authority for the committee being established will end on June 19, 2009, unless the Commissioner formally determines that renewal is in the public interest. FOR FURTHER INFORMATION CONTACT: Lee Zwanziger, Office of Planning, Office of Commissioner (HFP-1), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-2895, Fax 301-827-5260 or *rcac@fda.hhs.gov* SUPPLEMENTARY INFORMATION: Under the Federal Advisory Committee Act of October 6, 1972 (Public Law 92-463 (5 U.S.C. app. 2)); section 904 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 394), as amended by the Food and Drug Administration Revitalization Act (Public Law 101-635); and 21 CFR 14.40(b), FDA is announcing the establishment of the Risk Communication Advisory Committee by the Commissioner. The committee advises the Commissioner of Food and Drugs (the Commissioner) and designees on strategies and programs designed to communicate with the public about the risks and benefits of FDA-regulated products so as to facilitate optimal use of these products. The committee also reviews and evaluates research relevant to such communication to the public by both FDA and other entities. It also facilitates interactively sharing risk and benefit information with the public to enable people to make informed independent judgments about use of FDA-regulated products. The Risk Communication Advisory Committee will be composed of a core of 15 voting members including the Chair. Members and the chair are selected by the Commissioner or designee from among authorities knowledgeable in the fields of risk communication, social marketing, health literacy, cultural competency, journalism, bioethics, and other relevant behavioral and social sciences. Some members will be selected to provide experiential insight on the communication needs of the various groups who use FDA-regulated products. The latter may include patients and patients' family members, health professionals, communicators in health, medicine and science, persons affiliated with consumer, specific disease, or patient safety advocacy groups. Depending on the meeting topic(s), at least one nonvoting member identified with relevant industry interests may be invited from existing members of other FDA Advisory Committees. Under 5 U.S.C. 553(b)(3)(B) and
(d)and 21 CFR 10.40
(d)and (e), the agency finds good cause to dispense with notice and public comment procedures and to proceed to an immediate effective date on this rule. Notice and public comment and a delayed effective date are unnecessary and are not in the public interest as this final rule merely adds the name of the Risk Communication Advisory Committee, already established by charter, to the list of standing advisory committees in 21 CFR 14.100. Therefore, the agency is amending 21 CFR 14.100(a) as set forth below. List of Subjects in 21 CFR Part 14 Administrative practice and procedure, Advisory committees, Color additives, Drugs, Radiation protection. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 14 is amended as follows: PART 14—PUBLIC HEARING BEFORE A PUBLIC ADVISORY COMMITTEE 1. The authority citation for 21 CFR part 14 continues to read as follows: Authority: 5 U.S.C. App. 2; 15 U.S.C. 1451-1461, 21 U.S.C. 41-50, 141-149, 321-394, 467f, 679, 821, 1034; 28 U.S.C. 2112; 42 U.S.C. 201, 262, 263b 264; Pub. L. 107-109; Pub. L. 108-155. 2. Section 14.100 is amended by adding paragraph (a)(4). § 14.100 List of standing advisory committees.
(a)* * *
(4)*Risk Communication Advisory Committee* .
(i)Date established: June 19, 2007.
(ii)Function: The committee advises the Commissioner and designees on strategies and programs designed to communicate to the public the risks and benefits of FDA-regulated products so as to facilitate optimal use of these products. The committee also reviews and evaluates research relevant to such communication to the public by both FDA and other entities. It also facilitates interactively sharing risk and benefit information with the public to enable people to make informed independent judgments about use of FDA-regulated products. Dated: July 17, 2007. Randall W. Lutter, Deputy Commissioner for Policy. [FR Doc. E7-14498 Filed 7-26-07; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Parts 48 and 602 [TD 9346] RIN 1545-BC08 Entry of Taxable Fuel AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations and removal of temporary regulations. SUMMARY: This document contains final regulations relating to the tax on the entry of taxable fuel into the United States. The final regulations affect enterers of taxable fuel, other importers of record, and certain sureties. DATES: *Effective Date:* These regulations are effective July 27, 2007. *Applicability Dates:* For dates of applicability, see §§ 48.4081-1(f) and 48.4081-3(j). FOR FURTHER INFORMATION CONTACT: Celia Gabrysh at
(202)622-3130 (not a toll-free number). SUPPLEMENTARY INFORMATION: Paperwork Reduction Act The collection of information contained in these final regulations has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) under control number 1545-1897. The collection of information in these final regulations is in § 48.4081-3(c)(2)(iii) and (iv). This collection of information allows certain importers of record and sureties to avoid liability for the tax on the entry of taxable fuel into the United States. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget. The estimated annual burden per respondent and/or recordkeeper varies from 15 minutes to 2.25 hours, depending on individual circumstances, with an estimated average of 1.25 hours. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be sent to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224, and the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503. Books or records relating to this collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103. Background This document amends the Manufacturers and Retailers Excise Tax Regulations (26 CFR part 48) to provide rules relating to the tax that section 4081 of the Internal Revenue Code
(Code)imposes on the entry of taxable fuel into the United States. On July 30, 2004, a temporary regulation (TD 9145, 69 FR 45587) relating to this topic was published in the **Federal Register** . A notice of proposed rulemaking (REG-120616-03, 69 FR 45631) cross-referencing the temporary regulations was published in the **Federal Register** on the same day. Written and electronic comments were received and a public hearing was held on January 12, 2005. After considering the written comments and the comments made at the public hearing, the proposed regulations are adopted as revised by this Treasury decision, and the corresponding temporary regulations are removed. *The temporary and proposed regulations.* Effective September 28, 2004, the temporary regulations provide that the importer of record (under Customs law) of taxable fuel is jointly and severally liable with the enterer for the tax imposed on the entry of taxable fuel if the importer of record is not the enterer (that is, the importer of record is a customs broker engaged by the enterer) and the enterer is not a taxable fuel registrant. Under the law in effect before September 28, 2004, an importer of record's Customs bond could have been charged for any unpaid tax imposed on the entry of fuel imported under the bond. The preamble of the temporary regulations stated, however, that the IRS would not charge the Customs bond for the tax imposed on an entry of fuel occurring before September 28, 2004. In addition, the temporary regulations provide that the Customs bond posted with respect to the importation of fuel will not be charged for the tax imposed on an entry of fuel occurring after September 27, 2004, if the enterer is a taxable fuel registrant or the surety believes, based on the enterer's certification, that the enterer is a taxable fuel registrant. *Public comments* . One commentator that represents an association of road builders supported the proposed and temporary regulations, calling them one of a series of important initiatives necessary to combat fuel tax evasion and finance the Highway Trust Fund. Several commentators that represent tribal interests in the state of New York opposed the regulations. They maintained that the regulations will cause fuel prices to increase at service stations located on tribal reservations. These higher fuel prices will reduce sales and result in the loss of several hundred tribal jobs. In addition, a reduction in sales at these stations would cause a decrease in receipts from the tribal tax on fuel sold on the reservations. This tax funds general tribal government services, including police, health, and welfare programs. Many of these commentators also suggested that the Treasury Department and the IRS failed to comply with section 5 of Executive Order 13175 (65 FR 6724) and Executive Order 12866 (58 FR 51735), which generally requires each Federal agency to consult with tribal officials before the promulgation of any regulation that “has tribal implications” or that “imposes substantial direct compliance costs on Indian tribal governments.” *The final regulations* . This Treasury decision adopts the proposed rules as final regulations without substantive change. Because the cross-reference notice of proposed rulemaking referred to the text of temporary rules, the Treasury decision includes the nonsubstantive, clerical changes need to incorporate the temporary rule text into the final regulations. The rules in these regulations address the nonpayment of tax on fuel that is entered into the United States. An enterer's failure to pay this tax not only gives it a competitive price advantage over its compliant competitors, but it also deprives the United States Treasury of revenue intended for the Highway Trust Fund. The final regulations do not impose a new tax burden on enterers of taxable fuel. Instead, the regulations simply provide the IRS with an additional enforcement tool to collect the tax that is owed under existing law and give an additional incentive for enterers to be registered. The imposition of tax on the entry of fuel sold on reservations results not from these regulations but from the statute, which does not provide an exemption from the tax for fuel sold on reservations. The only effect of these regulations is to improve the ability of the IRS to apply the tax consistently and fairly with respect to all taxpayers subject to the tax, without regard to whether or not the fuel is ultimately sold on tribal reservations. The Treasury Department and IRS determined that these regulations are not subject to Executive Order 13175 (65 FR 67249) which obligates an agency to consult with tribal officials when developing “policies that have tribal implications.” This executive order defines “policies that have tribal implications,” in part, as regulations that have substantial direct effects on one or more Indian tribes. The regulations do not have tribal implications, as specified in Executive Order 13175, because they do not significantly or uniquely affect the communities of Indian tribal governments, nor do they impose direct compliance costs on them. Any economic effect of the fuel tax on tribal economies is a consequence of the statutory imposition of the tax, not the manner in which the regulations operate to implement the statute. Thus, Executive Order 13175 does not apply to the final or temporary regulations. Special Analyses It has been determined that these regulations are not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that the collection of information in these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based upon the fact that any burden on taxpayers is minimal. Accordingly, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding these final regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on the impact of the regulations on small business. Drafting Information The principal author of these regulations is Celia Gabrysh, Office of Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS, the Treasury Department, and the Bureau of Customs and Border Protection, Department of Homeland Security, participated in their development. List of Subjects 26 CFR Part 48 Excise taxes, Reporting and recordkeeping requirements. 26 CFR Part 602 Reporting and recordkeeping requirements. Adoption of Amendments to the Regulations Accordingly, 26 CFR parts 48 and 602 are amended as follows: PART 48—MANUFACTURERS AND RETAILERS EXCISE TAXES **Paragraph 1.** The authority citation for part 48 continues to read, in part, as follows: Authority: 26 U.S.C. 7805 * * * **Par. 2.** Section 48.4081-1 is amended as follows: 1. Paragraph
(b)is amended by revising the definition of *Enterer.* 2. The first sentence of paragraph (f)(2) is revised. The revisions read as follows: § 48.4081-1 Taxable fuel; definitions.
(b)* * * *Enterer* generally means the importer of record (under customs law) with respect to the taxable fuel, except that—
(1)If the importer of record is a customs broker engaged by the owner of the taxable fuel, the person for whom the broker is acting is the enterer; and
(2)If there is no importer of record for taxable fuel entered into the United States, the owner of the taxable fuel at the time it is brought into the United States is the enterer.
(f)* * *
(2)In paragraph
(b)of this section the definition of *aviation gasoline* and the third sentence in the definition of *terminal* are applicable after January 1, 1998, the definition of *kerosene* , *excluded liquid* , and *taxable fuel* are applicable after June 30, 1998, and the definition of *enterer* is applicable to entries of taxable fuel after September 27, 2004. * * * § 48.4081-1T [Removed] **Par. 3.** Section 48.4081-1T is removed. **Par. 4.** Section 48.4081-3 is amended by revising paragraphs (c)(2)(ii) through (iv), and
(j)to read as follows: § 48.4081-3 Taxable fuel; taxable events other than removal at the terminal rack.
(c)* * *
(2)* * *
(ii)*Joint and several liability of the importer of record.* The importer of record with respect to the taxable fuel is jointly and severally liable with the enterer for the tax imposed under paragraph (c)(1) of this section if—
(A)The importer of record is not the enterer of the taxable fuel; and
(B)The enterer is not a taxable fuel registrant.
(iii)*Conditions for avoidance of liability.* The importer of record is not liable for the tax under paragraph (c)(2)(ii) of this section if, at the time of the entry, the importer of record—
(A)Has an unexpired notification certificate (as described in § 48.4081-5) from the enterer; and
(B)Has no reason to believe that any information in the notification certificate is false.
(iv)*Customs bond.* The Customs bond posted with respect to the importation of the fuel will not be charged for the tax imposed on the entry of the fuel if the enterer is a taxable fuel registrant. A Customs bond will not be charged for the tax imposed on the entry of the fuel covered by the bond, if at the time of entry, the surety—
(A)Has an unexpired notification certificate (as described in § 48.4081-5) from the enterer; and
(B)Has no reason to believe that any information in the notification certificate is false.
(j)*Effective/applicability date:* This section is applicable January 1, 1994, except that paragraphs (c)(2)(ii) through
(iv)of this section are applicable to entries of taxable fuel after September 27, 2004. § 48.4081-3T [Removed] **Par. 5.** Section 48.4081-3T is removed. § 48.4081-5 [Amended] **Par. 6.** Section 48.4081-5 is amended by revising paragraph
(a)to read as follows:
(a)*Overview.* This section sets forth requirements for the notification certificate under §§ 48.4081-2(c)(2)(ii), 48.4081-3(c)(2)(iii) and (iv), 48.4081-3(d)(2)(iii), 48.4081-3(e)(2)(iii), 48.4081-3(f)(2)(ii), and 48.4081-4(c) to notify another person of the taxable fuel registrant's registration status. PART 602—OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT **Par. 7.** The authority citation for part 602 continues to read as follows: Authority: 26 U.S.C. 7805. **Par. 8.** In § 602.101, paragraph
(b)is amended by removing the entry for § 48.4081-3T, and revising the entry for § 48.4081-3 in the table to read as follows: § 602.101 OMB control numbers.
(b)* * * CFR part or section where identified and described Current OMB control No. * * * * * 48.4081-3 1545-1270 1545-1418 1545-1897 Kevin M. Brown, Deputy Commissioner for Services and Enforcement. Approved: July 16, 2007. Eric Solomon, Assistant Secretary of the Treasury (Tax Policy). [FR Doc. E7-14491 Filed 7-26-07; 8:45 am] BILLING CODE 4830-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2004-0257; FRL-8127-9] Chlorthalonil; Pesticide Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes a tolerance for the combined residues of chlorothalonil and its metabolite, 4-hydroxy-2,5,6-trichloroisophthalonitrile, in or on pea, edible podded. The Snowpea Commission of Guatemala requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA). DATES: This regulation is effective July 27, 2007. Objections and requests for hearings must be received on or before September 25, 2007, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION) . ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2004-0257. All documents in the docket are listed in the index for the docket. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(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 in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Tony Kish, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: 703-308-9443; e-mail address: *kish.tony@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . To access the OPPTS Harmonized Guidelines referenced in this document, go directly to the guidelines at *http://www.epa.gpo/opptsfrs/home/guidelin.htm.* C. Can I File an Objection or Hearing Request? Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2004-0257 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before September 25, 2007. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2004-0257, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Drive, Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is
(703)305-5805. II. Background and Statutory Findings In the **Federal Register** of August 20, 2004 (69 FR 51672) (FRL-7674-2), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 3E6795) by the Snowpea Commission of Guatemala, Guatemala City, Guatemala; GB Bioscience TM Corporation of Greensboro, NC serves as the agent for the Snowpea Commission of Guatemala. The petition requested that 40 CFR 180.275 be amended by establishing a tolerance for combined residues of the fungicide chlorothalonil, and its metabolite, 4-hydroxy-2,5,6-trichloroisophthalonitrile, in or on pea, edible podded (to include snowpea, and sugar snap pea) at 5 parts per million (ppm). That notice included a summary of the petition prepared by GB Bioscience TM Corporation, the registrant. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C. Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see • *http://www.epa.gov/oppfead1/trac/science* . • *http://www.epa.gov/pesticides/factsheets/riskassess.htm* . • *http://www.epa.gov/pesticides/trac/science/aggregate.pdf* . III. Aggregate Risk Assessment and Determination of Safety Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of FFDCA, for a tolerance for the combined residues of chlorothalonil and its metabolite, 4-hydroxy-2,5,6-trichloroisophthalonitrile on pea, edible podded at 5 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the toxic effects caused by chlorothalonil and its metabolite, 4-hydroxy-2,5,6-trichloroisophthalonitrile, as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies can be found at *http://www.regulations.gov* . The referenced document is available in Docket ID EPA-HQ-OPP-2004-0257. B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, the dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor
(UF)is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify non-threshold hazards such as cancer. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk, estimates risk in terms of the probability of occurrence of additional cancer cases. More information can be found on the general principles EPA uses in risk characterization at: • *http://www.epa.gov/pesticides/health/human.htm* . • *http://www.epa.gov/pesticides/facsheets/riskassess.htm* . • *http://www.eap.gov/oppfead1/trac/science/* . The chronic dietary endpoint used in this rule 0.003 milligrams/kilogram/day (mg/kg/day) is based on new toxicity data the Agency received, and is approximately 6.6 fold less than the endpoint of 0.02 mg/kg/day used in the chlorothalonil risk assessment for the April 1999 RED. The Agency has received and is reviewing additional information which could change this lower chronic dietary endpoint. A summary of the toxicological endpoints for chlorothalonil used for human risk assessment is shown in Table 1: **Table 1.—Summary of Toxicological Dose and Endpoints for Use in Human Risk Assessment** Exposure/Scenario Dose Used in Risk Assessment, Interspecies and Intraspecies and any Traditional UF Special FQPA SF and Level of Concern for Risk Assessment Study and Toxicological Effects Chronic Dietary (All populations) NOAEL= <0.9 mg/kg/day UF = 300 Chronic RfD = 0.003 mg/kg/day Special FQPA SF = 1X cPAD = chronic RfD/Special FQPA SF = 0.003 mg/kg/day *Rat Chronic* LOAEL = 0.9 mg/kg/day based on an increased incidence and severity of epithelial hyperplasia, hyperkeratosis and ulceration of the non-glandular region of the stomach in females Short-Term Oral (1 to 7 days) (Residential) Oral study NOAEL= <30.8 mg/kg/day LOC for Margin of Exposure
(MOE)= 1,000 (Residential) *Rat Two-Generation* LOAEL = 30.8 mg/kg/day based on thickening and/or roughening of the forestomach with depressions in the epithelial aspect, and hyperplasia and hyperkeratosis of the non-glandular epithelium of the stomach Short-Term Inhalation (1 to 30 days) (Residential) Inhalation (or oral) study NOAEL= 30.8 mg/kg/day (inhalation absorption rate = 100% LOC for MOE = 1,000 (Residential) *Rat Reproduction Study* LOAEL = 30.8 mg/kg/day based on thickening and/or roughening of the forestomach with depressions in the epithelial aspect, and hyperplasia and hyperkeratosis of the non-glandular epithelium of the stomach Intermediate-Term Inhalation (1-6 months) (Residential) Oral study NOAEL = 30.8 mg/kg/day inhalation absorption rate = 100% LOC for MOE = 1,000 (Residential) *Rat Reproduction Study* LOAEL = 30.8 mg/kg/day based on thickening and/or roughening of the forestomach with depressions in the epithelial aspect, and hyperplasia and hyperkeratosis of the non-glandular epithelium of the stomach Cancer (oral, dermal, inhalation) NA NA *Classification* : “Likely” to be a human carcinogen by all routes of exposure. The Science Advisory Panel decision (6/30/98) supports the use of an MOE approach to adequately quantify cancer risk for chlorothalonil C. Exposure Assessment 1. *Dietary exposure from food and feed uses* . Tolerances have been established (40 CFR 180.275) for the combined residues of chlorothalonil and its metabolite, 4-hydroxy-2,5,6-trichloroisophthalonitrile, in or on a variety of raw agricultural commodities. Tolerances currently exist on almond; apricot; asparagus; banana; bean, dry; bean, snap; blueberry; broccoli; Brussels sprouts; cabbage; carrot; cauliflower; celery; cherry, sweet; cherry, tart; cocoa bean; coffee bean, corn, sweet; cranberry; cucumber; mango; melon; mushroom; nectarine; onion, dry bulb; onion, green; papaya; parsnip; passionfruit; peach; peanut; pepper, nonbell; pistachio; plum; plum, prune; potato; pumpkin; soybean; squash, summer; squash, winter; tomato; and various animal commodities for cattle; goat; hog; horse; milk; and sheep. There is also a time-limited tolerance on ginseng and tolerances with regional registration on filbert and mint, hay. Risk assessments were conducted by EPA to assess dietary exposures from chlorothalonil and its metabolite, 4-hydroxy-2,5,6-trichloroisophthalonitrile in food as follows: i. *Acute exposure* . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1 day or single exposure. No such effects were identified in the toxicological studies for chlorothalonil and its metabolite, 4-hydroxy-2,5,6-trichloroisophthalonitrile; therefore, a quantitative acute dietary exposure assessment is unnecessary. ii. *Chronic exposure* . In conducting the chronic dietary exposure assessment, EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID TM ), which incorporates food consumption data as reported by respondents in the USDA 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII), and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: A Tier 3, chronic dietary-exposure assessment was refined by making use of anticipated residues derived from monitoring data from the Pesticide Data Program
(PDP)and Food and Drug Administration surveillance monitoring, percent crop treated estimates, and the processing factors used in the Reregistration Eligibility Decision for Chlorothalonil (Document number EPA 738-R-99-004, April 1999). Drinking water was incorporated directly into the dietary assessment using the estimated maximum allowable Estimated Drinking Water Concentration
(EDWC)of 42 ppb. iii. *Cancer* . EPA has determined that a non-linear approach to cancer risk assessment is appropriate. Therefore the chronic RfD is considered to be protective for this effect. iv. *Anticipated residue and percent crop treated
(PCT)information* . Section 408(b)(2)(E) of the FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide chemicals that have been measured in food. If EPA relies on such information, EPA must pursuant to section 408(f)(1) require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. Following the initial data submission, EPA is authorized to require similar data on a time frame it deems appropriate. For the present action, EPA will issue such Data Call-Ins
(DCIs)for information relating to anticipated residues as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Such DCIs will be required to be submitted no later than 5 years from the date of issuance of this tolerance. Mean anticipated residues were estimated from PDP monitoring data for apricot; asparagus; banana and plantain; bean, green; bean/pea, dry; broccoli, Brussels sprouts; carrot; cauliflower; celery; cherry; corn, sweet; cucumber; melon; milk; mushroom; nectarine, parsnip; peach; pepper, non-bell; potato; plum; pumpkin; prune; squash; and tomato. Mean anticipated residues were estimated from FDA monitoring data for blueberry; cabbage; cranberry; mango; onion, dry bulb; papaya; peanut; and soybean. Empirical processing factors were used for bean, green, cooked, canned, or frozen; cabbage; carrot, processed or cooked; cherry, processed; cocoa; coffee; cucumber, pickled; peach, cooked and canned; peanut, oil; pea, edible podded, cooked and processed; prunes; pumpkin; soybean, oil; squash, winter, cooked; and tomato, processed. Default processing factors were used for all other food commodities. Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if the Agency can make the following findings: Condition 1, that the data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain such pesticide residue; Condition 2, that the exposure estimate does not underestimate exposure for any significant subpopulation group; and Condition 3, if data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by section 408(b)(2)(F) of FFDCA, EPA may require registrants to submit data on PCT. The Agency used PCT information as follows: Almond, 100%; apricot, 10%; asparagus; 15%; banana and plantain, 100%; bean, green, 20%; bean/pea, dry, 1%; blueberry, 15%; broccoli, 10%; Brussels sprouts, 68%; cabbage, 40%; carrot, 45%; cattle, 100%; cauliflower, 10%; celery, 65%; cherry, 35%; cocoa, 100%; coffee, 100%; corn, sweet, 100%; cranberry, 100%; cucumber, 45%; filbert, 100%; ginseng, 100%; goat, 100%; hog, 100%; horse, 100%; mango, 100%; melon, cantaloupe, 60%; melon, honeydew, 18%; melon, watermelon and other, 84%; milk, 100%; mushroom, 100%; nectarine, 100%; onion, dry bulb, 50%; onion, green, 100%; papaya, 100%; parsnip, 100%; passionfruit, 100%; peach, 15%; peanut, 65%; pea, edible podded, 100%; pepper, non-bell, 100%; pistachio, 100%; potato, 60%; plum and prune, 5%; pumpkin, 40%; sheep, 100%; soybean, 100%; squash, 35%; and tomato, 45%. The Agency believes that the three conditions listed above have been met. With respect to Condition 1, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions 2 and 3, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available information on the regional consumption of food to which chlorothalonil may be applied in a particular area. 2. *Dietary exposure from drinking water* . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for chlorothalonil and its metabolite, 4-hydroxy-2,5,6-trichloroisophthalonitrile in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of chlorothalonil and its metabolite, 4-hydroxy-2,5,6-trichloroisophthalonitrile. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at *http://www.epa.gov/oppefed1/models/water/index.htm.* The modeling showed that chronic drinking water levels of chlorothalonil from the most intensive use (i.e., sodfarms) would, in combination with other exposures, raise a risk of concern. EPA believes that this modeling estimate significantly overstates exposure not only because its surface water model is generally conservative, but due to several factors unique to this risk assessment. First, the EDWC for chlorothalonil and its major metabolite was estimated using the mobility factor for chlorothalonil's major metabolite, which is considered more mobile than the parent. EPA does not have a method to calculate model input values for mobility of combined toxic residues; therefore, the most conservative value was used for the model. Second, EPA assumed use of maximum sodfarm application rates, application intervals, and agronomic practices which are not always employed. Third, EPA assumed that 100% of a watershed consists of sodfarm turf, compared with recent preliminary data showing that 50% or less is a more realistic number. Fourth, EPA assumed that all sodfarms in any given watershed area would be treated with chlorothalonil in the same season, and at the same time, which is unlikely to occur. Despite EPA's conclusion that the predicted EDWC overstates exposure, EPA conducted a sensitivity analysis to determine what sodfarm usage rate would lower predicted drinking water levels by a sufficient amount to eliminate any risk concerns. EPA's analysis showed that the maximum allowable EDWC to be 42 ppb, and that reducing the maximum application rate for sodfarms from 26 lbs of active ingredient/acre/year to 13 lbs active ingredient/acre/year would result in acceptable EDWC of less than 42 ppb. This reduction in the maximum sodfarm application rate is being incorporated on all affected chlorothalonil product labels. 3. *From non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Chlorothalonil is currently registered for use on the following residential non-dietary sites: Golf courses and additive for paints. The risk assessment was conducted using the following residential exposure assumptions: There is potential for residential exposure from treated golf courses and from using treated paint. All other turf uses involving chlorothalonil exposure to toddlers and children have been canceled. EPA has determined that there is no hazard via the dermal route; therefore, quantification of a dermal risk assessment is not required. Inhalation post-application exposures for golf courses were not assessed since inhalation exposures are thought to be negligible in outdoor post-application scenarios. Consequently, only inhalation and incidental oral exposures from the use of treated paint were assessed. The short- and intermediate-term inhalation and incidental oral MOEs are greater than the target MOE of 1000 and, therefore, do not exceed EPA's level of concern (LOC). 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to chlorothalonil and any other substances and chlorothalonil does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that chlorothalonil has a common mechanism of toxicity with other substances. In the chlorothalonil RED, chlorothalonil was grouped in the polychlorinated fungicide class of pesticides. Other members of this class include hexachlorobenzene (HCB), pentachlorophenol (PCP), and pentachloronitrobenzene (PCNB). This is considered a weak classification, with the only point of commonality is that they are polychlorinated compounds used as fungicides. Available data do not support a finding for a common mechanism of toxicity for chlorothalonil and the other pesticides in the polychlorinated fungicide class. Chlorothalonil produces renal (kidney) tubular adenomas and carcinomas and papillomas of the stomach in rats. Chlorothalonil also produces gastric lesions and kidney toxicity due to perturbation of mitochondrial respiration. The other pesticides in the class do not have the same toxic effects and do not have the same mode of action.For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at *http://www.epa.gov/pesticides/cumulative* . D. Safety Factor for Infants and Children 1. *In general* . Section 408 of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional safety factor value based on the use of traditional uncertainty factors and/or special FQPA safety factors, as appropriate. 2. *Prenatal and postnatal sensitivity* . EPA has concluded that there is no increased susceptibility following prenatal or postnatal exposure to chlorothalonil in rats. There is equivocal evidence of increased susceptibility in rabbits; however, the degree of concern for prenatal susceptibility is low. There is a well-defined NOAEL in the rabbit developmental toxicity study protecting from these effects. In addition, developmental effects were observed in only one of the two developmental toxicity studies conducted in the same strain of rabbit at the same dose levels. Therefore, based on overall weight-of-evidence, EPA concluded that there is no increased susceptibility following exposure to chlorothalonil or its 4-hydroxy-2,5,6-trichloroisophthalonitrile metabolite. 3. *Conclusion* . There is a complete toxicity data base for chlorothalonil and its metabolite, 4-hydroxy-2,5,6-trichloroisophthalonitrile, and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures. The acute, subchronic, developmental, reproduction and chronic studies were sufficient to determine whether human hazard could exist within the context of dose, duration, timing, and route-of-exposure. The uncertainty factor used in determining the chronic reference dose
(cRfD)was 300 (10X for interspecies animal-to-human extrapolation; 10X for intraspecies human variations; and 3X for use of a LOAEL instead of a NOAEL). The uncertainty factor of 3X for use of the LOAEL instead of the NOAEL is considered appropriate because an increased incidence and severity of epithelial hyperplasia, hyperkeratosis and ulceration of the non-glandular region of the stomach in females were seen in few animals and were minimal in severity and observed in one sex only. The chlorothalonil FQPA safety factor was reduced to 3X for chronic risk assessment but retained at 10X for residential assessments. The data from the chronic toxicity study in rats show that a 3X factor in the chronic risk assessment is protective of infants and children despite the lack of a NOAEL in that study. As to the residential risk assessment, there are insufficient reliable data to conclude that a reduction of the 10X FQPA safety factor is safe for infants and children given the lack of a NOAEL in the study upon which the residential risk assessment is based. Other than the lack of NOAELs in these two critical studies, other considerations raise no concern for the safety of infants and children. Specifically,
(1)the hazard and exposure databases are complete;
(2)there are low concerns for prenatal and/or postnatal toxicity;
(3)there are no residual uncertainties with regard to prenatal and/or postnatal toxicity; and
(4)there are no neurotoxic concerns. E. Aggregate Risks and Determination of Safety 1. *Acute risk* . No acute effects were identified in the toxicological studies for chlorothalonil and its metabolite, 4-hydroxy-2,5,6-trichloroisophthalonitrile; therefore, a quantitative acute dietary exposure assessment is unnecessary. In the 1999 Chlorothalonil Registration Elibibility Document, the acute RfD was based on the results of a of 90-day study in rats in which gastric renal lesions were observed beginning at 7 days of continuous dosing. These type of lesions and in particular, the time frame at which they occurred (after 7 days of continuous high-dose administrations), do not meet the criteria of a single-dose effect. 2. *Chronic risk* . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to chlorothalonil and its metabolite, 4-hydroxy-2,5,6-trichloroisophthalonitrile from food will utilize 3% of the cPAD for the U.S. population, 2% of the cPAD for all infants, and 8% of the cPAD for children 1-2 years old. There are no residential uses for chlorothalonil that result in chronic residential exposure to chlorothalonil and its metabolite, 4-hydroxy-2,5,6-trichloroisophthalonitrile. Based on approved use pattern, chronic residential exposure to residues of chlorothalonil are not expected. In addition, there is potential for chronic dietary exposure to chlorothalonil in drinking water. Analyses by the Agency indicate that 42 ppb is the maximum residue concentration (parent plus metabolite) in drinking water which results in acceptable levels of chronic aggregrate risk. However, as explained prior in Unit III.C.2., this 42 ppb EDWC is considered conservative. EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in Table 2: **Table 2.—Aggregate Risk Assessment for Chronic (Non-Cancer) Exposure to Chlorothalonil** Population/Subgroup cPAD/mg/kg/day %/cPAD/(Food plus water) Surface Water EEC/(ppb) Ground/Water EEC/(ppb) Chronic/DWLOC
(ppb)U.S. Population 0.003 33 N/A (Not Applicable) N/A N/A All infants (<1 year old) 0.003 99 N/A N/A N/A Children 1-2 years old 0.003 52 N/A N/A N/A Adults 20-49 years old 0.003 30 N/A N/A N/A 3. *Short-term and intermediate-term risk.* Short-term and intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Chlorothalonil is currently registered for use that could result in short-term and intermediate-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and short-term and intermediate-term exposures for chlorothalonil and its metabolite, 4-hydroxy-2,5,6-trichloroisophthalonitrile. Using the exposure assumptions described in this unit for short-term and intermediate-term exposures, EPA has concluded that food, water, and residential exposures aggregated result in aggregate MOEs of 8,600 for adults 20-49 years old. These aggregate MOEs do not exceed the Agency's level of concern for aggregate exposure to food, water, and residential uses. Dietary exposure was calculated assuming residues in water of 42 ppb. 5. *Aggregate cancer risk for U.S. population* . EPA has determined that a non-linear approach to cancer risk assessment is appropriate and that the chronic RfD is considered to be protective for this effect. 6. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to chlorothalonil and its metabolite, 4-hydroxy-2,5,6-trichloroisophthalonitrile residues. IV. Other Considerations A. Analytical Enforcement Methodology Adequate residue analytical methods are available for purposes of registration. The Pesticide Analytical Manual
(PAM)Vol. II lists Method I, a gas chromatography
(GC)method with electron-capture detection (ECD), for the enforcement of tolerances for plant commodities. B. International Residue Limits There are no conflicts between existing U.S. tolerances and MRLs established by the CODEX Alimentarius Commission. C. Response to Comments One comment dated September 4, 2004, was received from B. Sachau. Ms. Sachau's comments regarding general exposure to pesticides contained no scientific data or evidence to rebut the Agency's conclusion that there is a reasonable certainty that no harm will result from aggregate exposure to chlorothalonil, including all anticipated dietary exposures and other exposures for which there is reliable information. This comment, as well as her comments regarding animal testing, has been responded to by the Agency on several occasions. For example, January 7, 2005 (70 FR 1349) (FRL-7691-4) and October 29, 2004 (69 FR 63083) (FRL-7681-9). V. Conclusion Therefore, the tolerance is established for the combined residues of chlorothalonil, and its metabolite, 4-hydroxy-2,5,6-trichloroisophthalonitrile, in or on pea, edible podded (includes snow pea and sugar snap pea) at 5 ppm. VI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq.* , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled * Protection of Children from Environmental Health Risks and Safety Risks * (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq.* ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on 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, entitled *Federalism* (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule. VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: July 13, 2007. Lois Rossi, Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.275 is amended by alphabetically adding the following commodity to the table in paragraph (a)(1) to read as follows: §180.275 Chlorothalonil; tolerances for residues.
(a)* * *
(1)* * * Commodity Parts per million * * * * * Pea, edible podded 5 * * * * * [FR Doc. E7-14567 Filed 7-26-07; 8:45 am] BILLING CODE 6560-50-S DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 45 CFR Part 146 [CMS-4094-F5] RIN 0938-AO83 Amendment to the Interim Final Regulation for Mental Health Parity AGENCY: Centers for Medicare & Medicaid Services (CMS), DHHS. ACTION: Amendment to interim final regulation. SUMMARY: This document amends the interim final regulation that implements the Mental Health Parity Act of 1996
(MHPA)to conform the sunset date of the regulation to the sunset date of the statute under legislation passed on December 9, 2006. DATES: *Effective date:* The amendment to the regulation is effective August 27, 2007. *Applicability dates:* Under the amendment, the requirements of the MHPA interim final regulation apply to group health plans and health insurance coverage offered in connection with a group health plan during the period commencing August 27, 2007 through December 31, 2007. FOR FURTHER INFORMATION CONTACT: Adam Shaw, Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services, at 1-877-267-2323, ext. 61091. SUPPLEMENTARY INFORMATION: I. Background The Mental Health Parity Act of 1996
(MHPA)was enacted on September 26, 1996 (Pub. L. 104-204). MHPA amended the Public Health Service Act (PHS Act) and the Employee Retirement Income Security Act of 1974 (ERISA) to provide for parity in the application of annual and lifetime dollar limits on mental health benefits and the application of dollar limits on medical/surgical benefits. Provisions implementing MHPA were later added to the Internal Revenue Code of 1986
(Code)under the Taxpayer Relief Act of 1997 (Pub. L. 105-34). The provisions of MHPA are set forth in Title XXVII of the PHS Act, Part 7 of Subtitle B of Title I of ERISA, and Chapter 100 of Subtitle K of the Code. The Secretaries of Health and Human Services, Labor, and the Treasury share jurisdiction over the MHPA provisions. These provisions are substantially similar, except for jurisdictional differences. See for example, the amendment to the interim final rule published July 22, 2005 (70 FR 42276). II. Overview of MHPA The MHPA provisions are set forth in section 2705 of the PHS Act, section 712 of ERISA, and section 9812 of the Code. MHPA applies to a large group health plan (or health insurance coverage offered in connection with a large group health plan) that provides both medical/surgical benefits and mental health benefits. MHPA's original text included a sunset provision specifying that MHPA's provisions would not apply to benefits for services furnished on or after September 30, 2001. On December 22, 1997, the Departments of Health and Human Services, Labor, and the Treasury issued interim final regulations under MHPA in the **Federal Register** (62 FR 66931). The interim final regulations included this statutory sunset date. The sunset date has been extended on a yearly basis by subsequent statutory provisions, which are described in detail in the amendment to the interim final rule published July 22, 2005 (70 FR 42276). The Department has published changes to the interim final mental health parity regulations to conform the expiration date of the regulation to each new statutory sunset date. (See 70 FR 42276, (July 22, 2005); 71 FR 25092 (April 28, 2006).) On December 20, 2006, President Bush signed The Tax Relief and Health Care Act of 2006 (Pub. L. 109-432). That legislation further extended MHPA's sunset date under the PHS Act, ERISA, and the Code so that MHPA's provisions apply to any services furnished through December 31, 2007. This statutory amendment has not altered MHPA's scope. It continues to apply to a large group health plan (or health insurance coverage offered in connection with a large group health plan) that provides both medical/surgical benefits and mental health benefits. To assist plan sponsors, health insurance issuers, and covered individuals, the Department is publishing this amendment to the interim final regulations, conforming the regulatory sunset date to the new statutory sunset date. The Department is making the effective date of this amendment to the interim final regulations effective as of August 27, 2007. Since the extension of this sunset date is essentially self-implementing, this amendment to the MHPA regulations is published on an interim final basis under section 2792 of the PHS Act. III. Collection of Information Requirements This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995. IV. Regulatory Impact Statement Overall Impact We have examined the impacts of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act
(RFA)(September 16, 1980, Pub. L. 96-354), the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132. Executive Order 12866 (as amended by Executive Order 13258, which merely reassigns responsibility of duties) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis
(RIA)must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). According to the terms of the Executive Order, it has been determined that this action is not a “significant regulatory action” within the meaning of the Executive Order. Rather, it is an amendment to the 1997 interim final regulations that makes no substantive changes to those regulations, and merely extends the regulatory sunset date to conform to the new statutory sunset date added by Pub. L. 109-432. Because it is not a major rule, we are not required to perform an assessment of the costs and savings. The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and government agencies. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6 million to $29 million in any 1 year. Individuals and States are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined, and we certify, that this rule will not have a significant economic impact on a substantial number of small entities. Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in expenditure in any 1 year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million. This rule will have no consequential effect on the governments mentioned or on the private sector. Executive Order 13132 establishes certain requirements that an agency must meet when it publishes a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. We have reviewed this final rule and have determined that it will not have a substantial effect on State or local governments. We have reviewed this rule and determined that, under the provisions of Pub. L. 104-121, the Contract with America Act, it is not a major rule. List of Subjects in 45 CFR Part 146 Health care, Health insurance, Reporting and recordkeeping requirements, State regulation of health insurance. For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services amends 45 CFR part 146 as follows: PART 146—REQUIREMENTS FOR THE GROUP HEALTH INSURANCE MARKET 1. The authority citation for part 146 is amended to read as follows: Authority: Secs. 2705, 2791, and 2792 of the PHS Act (42 U.S.C. 300gg-5, 300gg-91, and 300gg-92). § 146.136 [Amended] 2. In § 146.136, the following amendments are made: a. The last sentence of paragraph (f)(1) is amended by removing the date “December 31, 2006” and adding in its place the date “December 31, 2007.” b. Paragraph (g)(2) is amended by removing the date “January 1, 2007” and adding in its place the date “January 1, 2008.” c. Paragraph
(i)is revised to read as follows: § 146.136 Parity in the application of certain limits to mental health benefits.
(i)*Sunset.* This section does not apply to benefits for services furnished after December 31, 2007. Dated: March 15, 2007. Leslie V. Norwalk, Acting Administrator, Centers for Medicare & Medicaid Services. Dated: April 11, 2007. Michael O. Leavitt, Secretary, Department of Health and Human Services. [FR Doc. E7-14097 Filed 7-26-07; 8:45 am] BILLING CODE 4120-01-P DEPARTMENT OF HEALTH AND HUMAN SERVICES 45 CFR Part 148 [CMS-2260-IFC] RIN 0938-A046 High Risk Pools AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS. ACTION: Interim final rule with comment period. SUMMARY: This interim final rule with comment period will amend our regulations regarding grants to States for operation of qualified high risk pools to conform to provisions of the Deficit Reduction Act of 2005 and the State High Risk Pool Funding Extension Act of 2006. Those provisions extended funding for seed and operational grants for State High Risk Pools and amended section 2745 of the Public Health Service Act. DATES: *Effective date:* These regulations are effective on August 27, 2007. *Comment date:* To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on August 27, 2007. ADDRESSES: In commenting, please refer to file code CMS-2260-IFC. Because of staff and resource limitations, we cannot accept comments by facsimile
(FAX)transmission. You may submit comments in one of four ways (no duplicates, please): 1. *Electronically.* You may submit electronic comments on specific issues in this regulation to *http://www.cms.hhs.gov/eRulemaking.* Click on the link “Submit electronic comments on CMS regulations with an open comment period.” (Attachments should be in Microsoft Word, WordPerfect, or Excel; however, we prefer Microsoft Word.) 2. *By regular mail.* You may mail written comments (one original and two copies) to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, *Attention:* CMS-2260-IFC, P.O. Box 8016, Baltimore, MD 21244-8016. Please allow sufficient time for mailed comments to be received before the close of the comment period. 3. *By express or overnight mail.* You may send written comments (one original and two copies) to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, *Attention:* CMS-2260-IFC, Mail Stop C4-26-05,00, 7500 Security Boulevard, Baltimore, MD 21244-1850. 4. *By hand or courier.* If you prefer, you may deliver (by hand or courier) your written comments (one original and two copies) before the close of the comment period to one of the following addresses. If you intend to deliver your comments to the Baltimore address, please call telephone number
(410)786-7195 in advance to schedule your arrival with one of our staff members. Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201; or 7500 Security Boulevard, Baltimore, MD 21244-1850. (Because access to the interior of the HHH Building is not readily available to persons without Federal Government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.) Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period. *Submission of comments on paperwork requirements.* You may submit comments on this document's paperwork requirements by mailing your comments to the addresses provided at the end of the “Collection of Information Requirements” section in this document. For information on viewing public comments, see the beginning of the SUPPLEMENTARY INFORMATION section. FOR FURTHER INFORMATION CONTACT: Paul Youket,
(410)786-7528, or John Young,
(410)786-0505. SUPPLEMENTARY INFORMATION: *Submitting Comments:* We welcome comments from the public on all issues set forth in this rule to assist us in fully considering issues and developing policies. You can assist us by referencing the file code CMS-2260-IFC and the specific “issue identifier” that precedes the section on which you choose to comment. *Inspection of Public Comments:* All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following Web site as soon as possible after they have been received: *http://www.cms.hhs.gov/eRulemaking.* Click on the link “Electronic Comments on CMS Regulations” on that Web site to view public comments. Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951. I. Background The Trade Adjustment Assistance Reform Act of 2002 (Pub. L. 107-210) added section 2745 of the Public Health Service Act (PHS Act) to provide for two types of grants to States for the promotion of “qualified high risk pools.” These pools provide health coverage to high-risk individuals who may find private health insurance unavailable or unaffordable. Under this provision, a pool could meet the definition of a “qualified” high risk pool for purposes of section 2745 only if it met the definition of a qualified high risk pool in section 2744(c)(2) of the PHS Act. Section 2744 deals with how States can satisfy the requirement of section 2741 of the PHS Act to guarantee access to health coverage for individuals who meet the definition of an “eligible individual” under section 2741, as added by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). These individuals are commonly referred to as “HIPAA-eligible” individuals. Under section 2744(c)(2) of the PHS Act, a qualified high risk pool must provide health coverage without a pre-existing condition exclusion to “all” HIPAA-eligible individuals. This meant that State high risk pools that did not allow all HIPAA-eligible individuals into the pool without a pre-existing condition exclusion could not meet the definition of a “qualified” risk pool. The two types of grants authorized by the legislation were “seed grants” for States that had not yet created a high risk pool, and “operational” grants to offset losses incurred by States that operate a qualified high risk pool. Under the prior law, in order for a risk pool to qualify for an operational grant, it could not charge premiums that exceeded 150 percent of the premium for applicable standard risk rates. Moreover, the amount of the grants was limited to 50 percent of the losses incurred by a State. Section 6202 of the Deficit Reduction Act of 2005 (Pub. L. 109-171)
(DRA)and the State High Risk Pool Funding Extension Act of 2006 (Pub. L. 109-172) (Extension Act) extended funding for seed and operational grants for State High Risk Pools and amended section 2745 of the PHS Act. The Extension Act made the following changes: 1. Expanded the definition of a “qualified high risk pool.” As noted above, section 2745(d) of the PHS Act previously defined the term to have the same meaning as in section 2744(c)(2) of the PHS Act, which required that the risk pool provide coverage to “all” HIPAA-eligible individuals (as defined in § 148.103), without any pre-existing condition exclusion. The revised definition specifies that, for purposes of grants under section 2745, a risk pool can be qualified even if the State uses other mechanisms beyond the risk pool to ensure that health coverage is provided to all HIPAA-eligibles. 2. Expanded the definition of “State.” Section 2745 of the PHS Act previously defined this term to include only the 50 States and the District of Columbia, but has now been amended to include U.S. Territories. 3. Increased the amount of premiums that a risk pool can charge and still qualify for an operational grant. Section 2745 of the PHS Act previously required that the premiums charged under the pool not exceed 150 percent of the premium for applicable standard risk rates. As amended, it permits grants to States with premiums of up to 200 percent of the standard risk rates, as long as States with premiums greater than 150 percent of the standard rate use at least half of the grant funds to reduce high risk pool premiums for enrollees. 4. Removed the limitation that a State's grant not exceed 50 percent of its operating losses. 5. Changed the funding allotment formula. Previously, the grant funds were to be allotted to States under a relatively simple formula based on the number of uninsured individuals in the State. Under the new legislation, the allotment formula is more complex. Of the total appropriation for a given year—if money is appropriated—two-thirds would be available for grants to cover operational losses. Of these funds, 40 percent is to be equally divided among any of the 50 States and the District of Columbia that apply. Another 30 percent of that amount is allotted among all States that apply for grants based on the ratio of uninsured individuals in the State to uninsured individuals in all States that apply. The final 30 percent is to be allotted based on the ratio of the number of individuals enrolled in a State's risk pool to the number enrolled through the risk pools of all the qualifying States that apply. (Territories are eligible for the proportional allotments, but only up to a total of $1 million for all Territories combined.) 6. Provided authority for “bonus grants” to States (not including Territories) that qualify for operational grants. One-third of a total yearly appropriation will be used to provide grants to enable States to provide specified supplemental consumer benefits to enrollees or potential enrollees of the qualified high risk pool. (A bonus grant is not to exceed 10 percent of the total for any one State.) This interim final rule with comment period updates our regulations at 45 CFR part 148, subpart E, Grants to States for Operation of Qualified High Risk Pools, to implement the changes made by the Deficit Reduction Act of 2005 and the State High Risk Pool Funding Extension Act of 2006. II. Provisions of This Interim Final Rule [If you choose to comment on issues in this section, please include the caption “Provisions of this Interim Final Rule” at the beginning of your comments.] We are revising the regulation text in 45 CFR part 148 to conform with the State High Risk Pool Funding Extension Act of 2006 and the DRA. These revisions are discussed in detail below. A. Definitions (§ 148.308) We are amending § 148.308 (Definitions) to • Add a definition of “bonus grants.” • Revise the definition of “qualified high risk pool;” and • Revise the definition of “State.” 1. Bonus Grant We are adding the following definition for Bonus Grants—Funds that the Secretary provides from the appropriated grant funds to be used to provide supplemental consumer benefits to enrollees or potential enrollees in qualified high risk pools. 2. Qualified High Risk Pool We are amending the definition at § 148.308 to reflect the exception added by the Extension Act in section 2745(g)(1)(A) of the PHS Act. Specifically, a State may elect to meet the definition of a qualified high risk pool under § 148.128(a)(2)(ii)(A) by providing for enrollment of eligible individuals through an acceptable alternative mechanism (as defined for purposes of section 2744 of the PHS) that includes a high risk pool as a component. 3. State In accordance with the Extension Act, we are amending the definition to include any of the 50 States and the District of Columbia, and the U.S. Territories of Puerto Rico, the Virgin Islands, Guam, American Samoa and the Northern Mariana Islands. B. Grants for Operational Losses (§ 148.310) 1. Eligibility Requirements for an Operational Grant This section specifies the eligibility requirements for operational grants. A State must meet all of the following requirements to be eligible for a grant: a. Maximum premium. We are amending § 148.310 to reflect that the statute has increased the maximum premium that a risk pool can charge and still qualify for a grant. The maximum has been changed from 150 percent to 200 percent of the premium for applicable standard risk rates for the State. b. Continued funding. The statute previously required that the pool have in effect a mechanism reasonably designed to ensure continued funding of losses incurred by the State after the end of fiscal year 2004, which was the last year that grants were authorized under the prior appropriation. The statute, as revised by the Extension Act, now requires that a risk pool have such a mechanism to ensure funding after the end of the last fiscal year for which a grant is provided. We interpret this to mean that the pool has capacity or mechanisms in place that can reasonably be expected to ensure that it may operate in the future without the benefit of Federal funding. In the case of a qualified high risk pool of a State that charges premiums that exceed 150 percent of the premium for applicable standard risks, the State must use at least 50 percent of the amount of the grant provided to the State to reduce premiums for enrollees. The application should demonstrate/attest that the funds will be used this way. 2. Amount of Grant Payment (§ 148.312) Two-thirds of any amounts appropriated are made available for operational grants. An eligible State may receive a grant to fund up to 100 percent of the losses incurred in the operation of its qualified high risk pool during the fiscal year for which it is applying. The grant may be less than 100 percent after the allotment limits are applied, but in no case will it be more than 100 percent. Funds will be allocated in accordance with § 148.312 to each State that meets the eligibility requirements of § 148.310 and files an application in accordance with § 148.316. Specifically: • Forty percent of funds made available under that section will be equally divided among any of the 50 States and the District of Columbia that meet the eligibility criteria for an operational grant; • Thirty percent of funds made available will be divided among States (including territories) based on the number of uninsured residents in the State during the specified year as compared to the total number of uninsured residents in all States that apply for grants; • Thirty percent will be divided among States (including territories) based on the number of people in State high risk pools during the specified year as compared to all States that apply. In accordance with the statute, in no case will the aggregate amount allotted and made available to the U.S. Territories for a fiscal year exceed $1 million. We will calculate the number of uninsured individuals for each eligible State by taking a 3-year average of the number of uninsured individuals in that State in the Current Population Survey
(CPS)of the Census Bureau. The 3-year average will be calculated using numbers available as of March 1 of each year for the preceding 3-year period. C. Bonus Grants One-third of the total appropriation will be available for the bonus grants. These grants will be available to any one of the 50 States and the District of Columbia that receives an operational grant under § 148.310. The grants must be used to provide one or more of the following benefits:
(1)Low income premium subsidies;
(2)Reduction in premium trends, actual premium or other cost-sharing requirements;
(3)An expansion or broadening of the pool of individuals eligible for coverage, such as through eliminating waiting lists, increasing enrollment caps, or providing flexibility in enrollment rules;
(4)Less stringent rules or additional waiver authority with respect to coverage of pre-existing conditions;
(5)Increased benefits; and
(6)The establishment of disease management programs. In no case will a State receive bonus grants that exceed 10 percent of the total funds allotted for bonus grants in that fiscal year. D. Periods During Which Eligible States May Apply for a Grant (§ 148.314) Funds are currently appropriated for Federal fiscal year 2006 and authorized for fiscal years 2007 through 2010. Funding for FY 2007 through 2010 under Pub. L. 109-172 requires subsequent enactment of appropriations authority. States will be unable to apply for grants unless and until such funding becomes available. A State that meets the eligibility requirements in § 148.310 may apply for a grant to fund losses that were incurred during the State's or pool's fiscal year ending prior to or during any federal fiscal year, 2007 through 2010 for which authorized funds are appropriated, in connection with the operation of its qualified high risk pool. Grant funding is administered on a retrospective basis (for example, pools with losses incurred in 2005 may apply for Federal Fiscal Year 2006 grant funds). If a State becomes eligible for a grant in the middle of its fiscal year, a State may apply for losses incurred in a partial fiscal year if a partial year audit is done. Only losses that are incurred after it is established that a pool is eligible (i.e., that it is a qualified high risk pool as defined by § 148.128(a)(2)(ii)) will qualify for a grant. An eligible State must apply for a grant no later than June 30 following the end of the State fiscal year during which it incurred losses. Each State may only be awarded one grant per fiscal year. A grant for a partial fiscal year counts as a full grant. States that meet all of the eligibility requirements in § 148.310 and submit timely requests in accordance with paragraph
(c)of § 148.314 will receive distribution of grant funds using the following methodology: • Grant applications for losses will be on a retrospective basis. For example, grant applications for 2006 funds are based on the State's fiscal year 2005 incurred losses. • Grant allocations for each fiscal year will be determined by taking all grant applications received by June 30 of the Federal fiscal year and allocating grant funds in accordance with § 148.312. In no case will a State receive funds greater than 100 percent of its losses. If any excess funds remain after the initial calculation, these excess funds will be proportionately redistributed to the States whose allocations have not exceeded 100 percent of their losses. This process will occur at the time of the initial calculation and there will be one annual allocation and distribution by September 30 of each year. Grant Application Instructions (§ 148.316) We are amending § 148.316 to reflect the addition of application requirements for bonus grants. We are changing the heading of § 148.316(a), “Application package,” to “Application for operational losses.” We are inserting a bonus grants section by redesignating § 148.316(a)(3) as § 148.316(a)(4) and adding new paragraph (a)(3), the bonus grants requirements. The individual State applying for a bonus grant must provide:
(i)A narrative description with detailed information about each one of the following supplemental consumer benefits to be provided to enrollees and/or potential enrollees in the high risk pool:
(A)Low income premium subsidies;
(B)Reduction in premium trends, actual premium or other cost-sharing requirements;
(C)An expansion or broadening of the pool of individuals eligible for coverage, such as through eliminating waiting lists, increasing enrollment caps, or providing flexibility in enrollment;
(D)Less stringent rules, or additional waiver authority with respect to coverage of pre-existing conditions;
(E)Increased benefits; and
(F)The establishment of disease management programs.
(ii)A description of the population or subset population that will be eligible for the supplemental consumer benefits.
(iii)A projected budget for the use of bonus grant funds using the SF 424 and SF 424 A. We are revising the “Standard forms application kit” in § 148.316(b). We are eliminating the text “Additional Assurances” in “Standard forms application kit,” paragraph (b)(1)(i). We are also changing the Web site URL address for the “Standard forms kit” download at paragraph (b)(1)(ii) to *http://www.grants.gov.* There are no other changes to the content of the “Standard forms application kit.” In § 148.316(c), “Submission of application package,” we are deleting paragraphs (c)(1) and (c)(2) and replacing with text that will read: All applications should be submitted electronically via *http://www.grants.gov.* In § 148.316(d), “Application deadlines,” we are changing the applications deadlines text to read: The deadline for States to submit an application for losses incurred in a State fiscal year is *June 30 of the next Federal fiscal year that begins after the end of the State fiscal year.* In § 148.316(e), “Where to submit an application,” we are changing the text to read: Applications must be submitted to *http://www.grants.gov.* Funding Mechanism (§ 148.318) We are amending § 148.318, dealing with continued funding of a risk pool. The State must outline funding sources, such as assessments and State general revenues, which can cover the projected costs and are reasonably designed to ensure continued funding of losses a State incurs in connection with the operation of the qualified high risk pool after the last fiscal year for which it is applying for grant funds. Grant Awards (§ 148.320) We are amending this section to specify that the grantee will be required to submit quarterly progress and financial reports under part 92 of this title and in accordance with section 2745(f) of the Public Health Service Act, requiring the Secretary to make an annual report to Congress that includes information on the use of these grant funds by the States. III. Collection of Information Requirement Under the Paperwork Reduction Act of 1995, we are required to provide 30-day notice in the **Federal Register** and solicit public comment before a collection of information requirement is submitted to the Office of Management and Budget
(OMB)for review and approval. In order to fairly evaluate whether an information collection should be approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 requires that we solicit comment on the following issues: • The need for the information collection and its usefulness in carrying out the proper functions of our agency. • The accuracy of our estimate of the information collection burden. • The quality, utility, and clarity of the information to be collected. • Recommendations to minimize the information collection burden on the affected public, including automated collection techniques. We are soliciting public comment on each of these issues for the following sections of this document that contain information collection requirements (ICRs): Section 148.316 Grant Application Instructions Section 148.316(a) requires each State to compile an application package that documents that it has met the requirements for a grant. If a risk pool entity applies on behalf of a State, it must provide documentation that it has been delegated appropriate authority by the State. The burden associated with this requirement is subject to the PRA; however, the structure of the application collection and grant monitoring reporting requirements of the grants has not been changed from the original grants program and is currently approved under OMB control number 0938-0887 “Matching Grants to States for the Operation of High Risk Pools and Supporting Regulations at 42 CFR 148.316, 148.318, and 148.320” with a current expiration date of 01/31/2010. We are, however, revising this package to include the additional request under 148.316(a)(3) for
(1)description of Type of Consumer Benefits;
(2)Description of the Eligible Population for the consumer benefits; and,
(3)Projected Budget for the use of Bonus Grants. We believe the burden associated with the additional information is already captured in the currently approved OMB package (#0938-0887). Section 148.320 Grant Awards Section 148.320(a)(2)(iii) states that a grantee is required to submit quarterly progress and financial reports under part 92 of this title and in accordance with section 2745(f) of the Public Health Service Act, requiring the Secretary to make an annual report to Congress that includes information on the use of these grant funds by States. The burden associated with this requirement is the time it would take for a grantee to submit quarterly progress and financial reports. We estimate it will take one grantee 1 hour per quarter to comply with this requirement. If you comment on these information collection and record keeping requirements, please mail copies directly to the following: Centers for Medicare & Medicaid Services, Office of Strategic Operations and Regulatory Affairs Division of Regulations Development, *Attn.:* Melissa Musotto, CMS-2260-IFC, Room C5-14-03, 7500 Security Boulevard, Baltimore, MD 21244-1850. Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503, Attn: Katherine Astrich, CMS Desk Officer, CMS-2260-IFC, *katherine_astrich@omb.eop.gov* . Fax
(202)395-6974. IV. Response to Comments Because of the large number of public comments we normally receive on **Federal Register** documents, we are not able to acknowledge or respond to them individually. We will consider all comments we receive by the date and time specified in the DATES section of this preamble, and, when we proceed with a subsequent document, we will respond to the comments in the preamble to that document. V. Waiver of Notice of Proposed Rulemaking and the 60-Day Delay in the Effective Date [If you choose to comment on issues in this section, please include the caption “Waiver of Notice of Proposed Rulemaking and the 60-Day Delay in the Effective Date” at the beginning of your comments.] We ordinarily publish a notice of proposed rulemaking in the **Federal Register** and invite public comment on the proposed rule in accordance with 5 U.S.C. section 553(b) of the Administrative Procedure Act (APA). The notice of proposed rulemaking includes a reference to the legal authority under which the rule is proposed, and the terms and substance of the proposed rule or a description of the subjects and issues involved. This procedure can be waived, however, if an agency finds good cause that a notice-and-comment procedure is impracticable, unnecessary, or contrary to the public interest and incorporates a statement of the finding and its reasons in the rule issued. In this case, we believe that a notice-and-comment procedure is unnecessary because the regulation is only being amended to conform directly to the provisions of the Deficit Reduction Act of 2005 and the State High Risk Pool Funding Extension Act of 2006. The statutory effective date was the date of enactment, February 10, 2006. The law amends section 2745 of the Public Health Service Act, and the rule updates 45 CFR Subchapter B, Part 148, Subpart E—Grants to States for Operation of Qualified High Risk Pools to conform to the new and changed provisions of the law. In addition, we ordinarily provide a 30-day delay in the effective date of the provisions of an interim final rule. Section 553(d) of the APA (5 U.S.C. section 553(d)) ordinarily requires a 30-day delay in the effective date of final rules after the date of their publication in the **Federal Register** . This 30-day delay in effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the finding and its reasons in the rule issued. All revisions are to update the current sections of the regulation. The only new section added is § 148.316(a)(3), bonus grants for supplement consumer benefits, which is a new provision of the Extension Act. Other revisions include an expanded definition of “qualified high risk pool,” an updated definition of “States” to include U.S. Territories, and changes to the funding formula and updating dates to reflect new census measure periods and application deadlines. Although the grant solicitation clearly conforms to the provisions of the law and a grant cycle has already been completed under the provisions of this law, we believe that this action will better accommodate the implementation of the statute before the end of the second funding cycle. VI. Regulatory Impact Statement [If you choose to comment on issues in this section, please include the caption “Regulatory Impact Statement” at the beginning of your comments.] We have examined the impact of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act
(RFA)(September 19, 1980, Pub. L. 96-354), the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132. Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis
(RIA)must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This rule does not reach the economic threshold and thus is not considered a major rule. The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6 million to $29 million in any 1 year. Individuals and States are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined that this rule will not have a significant economic impact on a substantial number of small entities. Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. That threshold level is currently approximately $120 million. This rule will have no consequential effect on State, local, or tribal governments or on the private sector. Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. Since this regulation does not impose any costs on State or local governments, the requirements of E.O. 13132 are not applicable. In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget. List of Subjects in 45 CFR Part 148 Administrative practice and procedure, Health care, Health insurance, Penalties, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services amends 45 CFR chapter IV as set forth below: PART 148—REQUIREMENTS FOR THE INDIVIDUAL HEALTH INSURANCE MARKET 1. The authority citation for part 148 continues to read as follows: Authority: Secs. 2741 through 2763, 2791, and 2792 of the Public Health Service Act (42 U.S.C. 300gg-41 through 300gg-63, 300gg-91, and 300gg-92). Subpart E—Grants to States for Operation of Qualified High Risk Pools 2. Section 148.306 is revised to read as follows: § 148.306 Basis and scope. This subpart implements section 2745 of the Public Health Service Act (PHS Act). It extends grants to States that have qualified high risk pools that meet the specific requirements described in § 148.310. It also provides specific instructions on how to apply for the grants and outlines the grant review and grant award processes. 3. Section 148.308 is amended by— A. Adding the definition for “bonus grants.” B. Revising the definition of “qualified high risk pool.” C. Revising the definition of “State.” The addition and revisions read as follows: § 148.308 Definitions. *Bonus grants* means funds that the Secretary provides from the appropriated grant funds to be used to provide supplemental consumer benefits to enrollees or potential enrollees in qualified high risk pools. *Qualified high risk pool* as defined in sections 2744(c)(2) and 2745(g) of the PHS Act means a risk pool that—
(1)Provides to all eligible individuals health insurance coverage (or comparable coverage) that does not impose any preexisting condition exclusion with respect to such coverage for all eligible individuals, except that it may provide for enrollment of eligible individuals through an acceptable alternative mechanism (as defined for purposes of section 2744 of the PHS Act) that includes a high risk pool as a component; and
(2)Provides for premium rates and covered benefits for such coverage consistent with standards included in the NAIC Model Health Plan for Uninsurable Individuals Act that was in effect at the time of the enactment of the Health Insurance Portability and Accountability Act of 1996 (August 21, 1996) but only if the model has been revised in State regulations to meet all of the requirements of this part and title 27 of the PHS Act. *State* means any of the 50 States and the District of Columbia and includes the U.S. Territories of Puerto Rico, the Virgin Islands, Guam, American Samoa and the Northern Mariana Islands. 4. Section 148.310 is amended by— A. Republishing the introductory text to the section. B. Revising paragraph (b). C. Revising paragraph (d). D. Adding paragraphs (f), (g), and (h). The republication, revisions, and additions read as follows: § 148.310 Eligibility requirements for a grant. A State must meet all of the following requirements to be eligible for a grant:
(b)The pool restricts premiums charged under the pool to no more than 200 percent of the premium for applicable standard risk rates for the State.
(d)The pool has in effect a mechanism reasonably designed to ensure continued funding of losses incurred by the State after the end of each fiscal year for which the State applies for Federal Funding in fiscal years 2005-2010 in connection with the operation of the pool.
(f)In the case of a qualified high risk pool in a State that charges premiums that exceed 150 percent of the premium for applicable standard risks, the State will use at least 50 percent of the amount of the grant provided to the State to reduce premiums for enrollees.
(g)In no case will the aggregate amount allotted and made available to the U.S. Territories for a fiscal year exceed $1,000,000 in total.
(h)Bonus grant funding must be used for one or more of the following benefits:
(1)Low income premium subsidies;
(2)Reduction in premium trends, actual premium or other cost-sharing requirements;
(3)An expansion or broadening of the pool of individuals eligible for coverage, such as through eliminating waiting lists, increasing enrollment caps, or providing flexibility in enrolment rules;
(4)Less stringent rules or additional waiver authority with respect to coverage of pre-existing conditions;
(5)Increased benefits; and
(6)The establishment of disease management programs. 5. Section 148.312 is amended by— A. Revising paragraph (a). B. Revising paragraph (b). C. Adding a new paragraph (d). The revisions and addition read as follows: § 148.312 Amount of grant payment.
(a)An eligible State may receive a grant to fund up to 100 percent of the losses incurred in the operation of its qualified high risk pool during the period for which it is applying or a lesser amount based on the limits of the allotment under the formula.
(b)Funds will be allocated in accordance with this paragraph to each State that meets the eligibility requirements of § 148.310 and files an application in accordance with § 148.316. The amount will be divided among the States that apply and are awarded grants according to the allotment rules that generally provide that: 40 percent will be equally divided among those States; 30 percent will be divided among States and territories based on their number of uninsured residents in the State during the specified year as compared to all States that apply; and 30 percent will be divided among States and territories based on the number of people in State high risk pools during the specified year as compared to all States that apply. For the purposes of this paragraph:
(1)The number of uninsured individuals is calculated for each eligible State by taking a 3-year average of the number of uninsured individuals in that State in the Current Population Survey
(CPS)of the Census Bureau during the period for which it is applying. The 3-year average will be calculated using numbers available as of March 1 of each year.
(2)The number of individuals enrolled in health care coverage through the qualified high risk pool of the State will be determined by attestation by the State in its grant application and verified for reasonability by the Secretary through acceptable industry data sources.
(d)One-third of the total appropriation will be available for the bonus grants. In no case will a State for a fiscal year receive bonus grants that exceed 10 percent of the total allotted funds for bonus grants. 6. Section 148.314 is revised to read as follows: § 148.314 Periods during which eligible States may apply for a grant.
(a)*General rule.* A State that meets the eligibility requirements in § 148.310 may apply for a grant to fund losses that were incurred during the State's fiscal year 2005, 2006, 2007, 2008 and 2009 in connection with the operation of its qualified high risk pool. Funding for FY 2007 through 2010 under Pub. L. 109-172 requires subsequent enactment of appropriations authority. States will be unable to apply for grants unless and until such funding becomes available. Grants funding is on a retrospective basis and applies to the States previous fiscal year. If a State becomes eligible for a grant in the middle of its fiscal year, a State may apply for losses incurred in a partial fiscal year if a partial year audit is done. Only losses that are incurred after eligibility is established will qualify for a grant.
(b)*Maximum number of grants.* An eligible State may only be awarded a maximum of five grants, with one grant per fiscal year. A grant for a partial fiscal year counts as a full grant.
(c)*Deadline for submitting grant applications.* The deadlines for submitting grant applications are stated in § 148.316(d).
(d)*Distribution of grant funds.* States that meet all of the eligibility requirements in § 148.310 and submit timely requests in accordance with paragraph
(c)of this section will receive an initial distribution of grant funds using the following methodology: Grant applications for losses will be on a retrospective basis. For example, grant applications for 2006 funds are based on the State's fiscal year 2005 incurred losses. Grant funding is appropriated for Federal fiscal year 2006 and authorized to be appropriated for Federal fiscal years 2007 through 2010.
(e)*Grant allocations.* Grant allocations for each fiscal year will be determined by taking all grant applications during the period for which States are applying and allocating the funds in accordance with § 148.312.
(1)In no case will a State receive funds greater than 100 percent of their losses.
(2)If any excess funds remain after the initial calculation, these excess funds will be proportionately redistributed to the States whose allocations have not exceeded 100 percent of their losses. 7. Section 148.316 is amended by— A. Adding new introductory text to the section. B. Amending paragraph
(a)introductory text by revising the heading. C. Redesignating paragraph (a)(3) as paragraph (a)(4). D. Adding a new paragraph (a)(3). E. Revising paragraph (b). F. Revising paragraph (c). G. Revising paragraph (d). H. Revising paragraph (e). The republication, revisions, and addition read as follows: § 148.316 Grant application instructions. Funding for FY 2007 through FY 2010 under Pub. L. 109-172 requires the subsequent enactment of appropriations. States will be unable to apply for grants unless and until such funding becomes available.
(a)*Application for operational losses.* * * *
(3)*Bonus grants for supplemental consumer benefits.* Provide detailed information about the following supplemental consumer benefits for which the entity is applying:
(i)A narrative description of one or more of the following of the supplemental consumer benefits to be provided to enrollees and/or potential enrollees in the high risk pool:
(A)Low income premium subsidies;
(B)Reduction in premium trends, actual premium or other cost-sharing requirements;
(C)An expansion or broadening of the pool of individuals eligible for coverage, such as through eliminating waiting lists, increasing enrollment caps, or providing flexibility in enrollment;
(D)Less stringent rules, or additional waiver authority with respect to coverage of pre-existing conditions;
(E)Increased benefits; and
(F)The establishment of disease management programs.
(ii)A description of the population or subset population that will be eligible for the supplemental consumer benefits.
(iii)A projected budget for the use of bonus grant funds using the SF 424 A.
(b)Standard form application kit—(1) Forms.
(i)The following standard forms must be completed with an original signature and enclosed as part of the application package: SF-424 Application for Federal Assistance. SF-424A Budget Information. SF-424B Assurances Non-Construction Program. SF-LLL Disclosure of Lobbying Activities Biographical Sketch.
(ii)These forms can be accessed from the following Web site: *http://www.grants.gov* .
(2)*Other narrative.* All other narrative in the application must be submitted on 8 1/2 x 11 inch white paper.
(c)*Application submission.* Submission of application package is through *http://www.grants.gov.* Submissions by facsimile
(fax)transmissions will not be accepted.
(d)*Application deadlines.*
(1)The deadline for States to submit an application for losses incurred in a State fiscal year is June 30 of the next Federal fiscal year that begins after the end of the State fiscal year. Funding for FY 2007 through 2010 under Pub. L. 109-172 requires subsequent enactment of appropriations authority. States will be unable to apply for grants unless and until such funding becomes available.
(2)*Deadline for States to submit an application for losses incurred in their fiscal year 2005.* States had to submit an application to CMS no later than June 30, 2006.
(3)*Deadline for States to submit an application for losses incurred in their fiscal year 2006.* States must submit an application to CMS by no later than June 30, 2007.
(4)*Deadline for States to submit an application for losses incurred in their fiscal year 2007.* States must submit an application to CMS by no later than June 30, 2008.
(5)*Deadline for States to submit an application for losses incurred in their fiscal year 2008.* States must submit an application to CMS by no later than June 30, 2009.
(6)*Deadline for States to submit an application for losses incurred in their fiscal year 2009.* States must submit an application to CMS by no later than June 30, 2010.
(e)*Where to submit an application.* Applications must be submitted to *http://www.grants.gov.* Submissions by facsimile
(fax)transmissions will not be accepted. 8. Section 148.318 is amended by revising paragraph (d)(2) to read as follows: § 148.318 Grant application review.
(d)* * *
(2)*Funding mechanism.* The State has outlined funding sources, such as assessments and State general revenues, which can cover the projected costs and are reasonably designed to ensure continued funding of losses a State incurs in connection with the operation of the qualified high risk pool after each fiscal year for which it is applying for grant funds. 9. Section 148.320 is amended by revising paragraph (a)(2)(iii) to read as follows: § 148.320 Grant awards.
(a)* * *
(2)* * *
(iii)The grantee will be required to submit quarterly progress and financial reports under part 92 of this title and in accordance with section 2745(f) of the Public Health Service Act, requiring the Secretary to make an annual report to Congress that includes information on the use of these grant funds by States. (Catalog of Federal Domestic Assistance Program No. 93.778, Medical Assistance Program) Dated: March 22, 2007. Leslie V. Norwalk, Acting Administrator, Centers for Medicare & Medicaid Services. Approved: April 17, 2007. Michael O. Leavitt, Secretary. [FR Doc. E7-14361 Filed 7-26-07; 8:45 am] BILLING CODE 4120-01-P 72 144 Friday, July 27, 2007 Proposed Rules DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 301 [Docket No. APHIS-2007-0022] RIN 0579-AC34 Citrus Canker; Movement of Fruit From Quarantined Areas AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Proposed rule; reopening of comment period. SUMMARY: We are reopening the comment period for our proposed rule that would amend the citrus canker regulations by modifying the conditions under which fruit may be moved interstate from quarantined areas. This action will allow interested persons additional time to prepare and submit comments. DATES: We will consider all comments that we receive on or before August 7, 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-2007-0022 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-2007-0022, 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-2007-0022. *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: Mr. Stephen Poe, Senior Operations Officer, Emergency Domestic Programs, Plant Protection and Quarantine, APHIS, 4700 River Road Unit 137, Riverdale, MD 20737-1231;
(301)734-4387. SUPPLEMENTARY INFORMATION: On June 21, 2007, we published in the **Federal Register** (72 FR 34180-34191, Docket No. APHIS-2007-0022) a proposal to amend the citrus canker regulations by modifying the conditions under which fruit may be moved interstate from quarantined areas. Under this proposed rule, we would eliminate the requirement that the groves in which the fruit is produced be inspected and found free of citrus canker, and instead require that fruit produced in the quarantined area be treated with a surface disinfectant treatment in a packinghouse operating under a compliance agreement and that each lot of finished fruit be inspected at the packinghouse and found free of visible symptoms of citrus canker. We would, however, retain the current prohibition on the movement of fruit from a quarantined area into commercial citrus-producing States. Comments on the proposed rule were required to be received on or before July 23, 2007. We are reopening the comment period on Docket No. APHIS-2007-0022 for an additional 15 days. This action will allow interested persons additional time to prepare and submit comments. We will also consider all comments received between July 24, 2007, and the date of this notice. We have allowed comments to be submitted through Regulations.gov (see ADDRESSES block) during that period. Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, and 371.3. Done in Washington, DC, this 24th day of July 2007. W. Ron DeHaven, Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-14530 Filed 7-26-07; 8:45 am] BILLING CODE 3410-34-P SMALL BUSINESS ADMINISTRATION 13 CFR Part 121 RIN 3245-AF60 Small Business Size Standards; Calculation of the Number of Employees AGENCY: U.S. Small Business Administration. ACTION: Proposed rule. SUMMARY: The U.S. Small Business Administration
(SBA)proposes to change the way it calculates a concern's number of employees in determining its small business size status. SBA proposes to alter the period used for calculating average number of employees from the current method, which uses a rolling average over the preceding 12 months, to an average over the last 3 completed calendar years. This proposal simplifies the calculation of the average number of employees, reduces the burden on small businesses, and better defines the size of a small business where number of employees is the measure for the size standard. DATES: Comments must be received by SBA on or before September 25, 2007. ADDRESSES: You may submit comments, identified by RIN 3245-AF60 by one of the following methods:
(1)*Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments; or
(2)*Mail/Hand Delivery/Courier:* Gary M. Jackson, Division Chief for Size Standards, 409 Third Street, SW., Mail Code 6530, Washington, DC 20416. FOR FURTHER INFORMATION CONTACT: Diane Heal, Office of Size Standards,
(202)205-6618 or *sizestandards@sba.gov.* SUPPLEMENTARY INFORMATION: SBA is proposing to revise its method of calculating the number of employees of a business concern from a 12-month rolling average to an average over the last 3 completed calendar years. Calculation of size would be based on, and coincide with, a concern's calendar year submission of Form W-3, “Transmittal of Wage and Tax Statement,” to the Internal Revenue Service
(IRS)(found at *http://www.irs.gov/pub/irs-pdf/fw3.pdf* ). This policy would also coincide with the regulatory requirement for a concern to update its size status on an annually basis in the Central Contractor Registration
(CCR)and On-line Certifications and Representations
(ORCA)databases. Using the IRS W-3 Form would also give SBA a government-validated document to use in verifying employment size. Currently, SBA reviews a concern's payroll records to determine size where the size standard is number of employees. For receipts-based size standards, SBA requires concerns to submit their IRS tax returns (13 CFR 121.104). This method of validating receipts has worked well. If a concern has been in business for less than 3 calendar years, average annual number of employees will be calculated based on an annualized figure for the time it has been in operation. For example, a concern that has been in business for 1 year and 3 months will divide its total number of employees by 1.25 (1 year + 3 months/12 months). For this calculation, the time period includes all completed pay periods as of the date of self-certification. If a concern has not filed an IRS Form W-3 for a period that must be included within the period of measurement, SBA may calculate the concern's average annual using other information. SBA prefers to use other relevant government documents reporting the number of employee of a concern, such as IRS Form 941, Employer's Quarterly Federal Tax Return. In lieu of government documents, SBA will consider any other available information, such as payroll records, which show the total number of employees for the relevant period. *Why is SBA proposing a 3-year average:* SBA is proposing to revise its method of calculating the number of employees of a business concern because it considers the current method to be burdensome to small businesses, and because of changes in the Federal procurement process regarding the development of e-government and the acquisition process. This proposal is also in the spirit of SBA's efforts to simplify its size standards where possible. With the current system of calculating employees, a concern's size can fluctuate from pay period to pay period, necessitating a new calculation after each pay period. SBA's proposal to calculate the number of employees of a concern as an average over the concern's last 3 calendar years provides consistency and stability in calculating size. The proposed calculation, if adopted, would require a concern to calculate its employment size only once a year and it would apply until the beginning of the next calendar year. The time period for calculation would also be similar to the method used for calculating receipts for size purposes, *i.e.* , an average annual receipts over the concern's last 3 completed fiscal years. Furthermore, for those concerns with fiscal years that end at the calendar year, both employment and receipts averages would be calculated at the same time. With the advent of e-government systems in the Federal acquisition process, a concern must update its CCR and ORCA information at least once a year and every time its small business size status changes, which could occur many times during the year using the current employee calculation method. This is extremely burdensome on small businesses, especially if a concern has different pay periods for different types of employees ( *e.g.* , bi-weekly for hourly employees and monthly for salaried employees). The proposed method of calculation would also be less burdensome and costly to small businesses and the Federal Government. Currently, if a concern's small business size status is protested, the concern must provide to SBA its own, and all of its affiliates, extensive payroll records for the 12 months preceding the date of self-certification. By going to an average number of employees over a calendar year basis, a concern could supply SBA with copies of its own and its affiliates' IRS Form W-3, along with other requested documents as needed, that would show the concern's total number of employees for each of the 3 preceding calendar years. *What SBA is not proposing:* On December 3, 2004, SBA published an Advanced Notice of Proposed Rulemaking (ANPRM) in the **Federal Register** (69 FR 70197) that sought comments from the public on issues raised during the public comment period concerning SBA's withdrawn proposal to simplify and restructure its small business size standards (69 FR 13130, dated March 19, 2004). Many comments received as a result of the withdrawn proposal recommended that SBA modify its method for calculating the number of employees of a business concern. In the December 3, 2004, ANPRM, SBA sought additional comments on alternative methods of calculating the size of a business concern based on number of employees, including the feasibility of using full-time equivalents (FTEs). SBA also requested comments on whether the period for calculating average employment should be modified from SBA's current method, which uses a rolling average over the preceding 12 months. During June of 2005, SBA conducted 11 hearings throughout the country to receive additional comments on the ANPRM issues. SBA received more than 5,000 comments addressing or mentioning the subject of calculating a concern's number of employees; however, only 10 commenters made substantive comments regarding this subject. The remaining commenters gave one-sentence responses without providing any reasoning for their position. All but 86 of the comments were from organizations that submitted as their own a form comment prepared by and representing the position of a particular small business association. Of the remaining 86 commenters, there were 11 business or trade associations, 2 Alaskan Native Corporations, 1 Community Development Corporation, and one large business prime contractor. Many commenters misunderstood the request for comments on the employee issue to be a request for a single employee-based size standard to be used government-wide. SBA received recommendations of 25 employees and $100,000; 25 employees and $5 million; 50 employees; 75 employees; 100 employees; 500 employees, and 1,500 employees. One commenter recommended two size standards of 100 and 750 employees, but gave no reasoning for the selection of the two numbers. Most of the comments received supported the concept of FTEs, with only three commenters discussing how to calculate FTEs. One commenter believed that FTEs should be based upon the number of man hours divided by the average work year for a small business within a given industry and recommended that a man-year equate to 1,080 hours. One commenter recommended SBA define FTEs for a week, month, or full-time year, because it would add consistency between companies. The other recommended that SBA use a 1,920 hours per year standard. The remainder of the commenters just stated their support for the idea. Six commenters stated their opposition to FTEs. Of the six, four discussed their reasons. Two trade associations strongly opposed the use of FTEs because their industry relies heavily on part-time, temporary and seasonal employees. They believed that this change would place a tremendous administrative recordkeeping burden on their member firms. One of the other commenters believed the use of FTEs would lead to endless disputes and size status protest concerning how to compute the number of FTEs. Another believed that FTEs would create incentives to increase temporary jobs and reduce full time jobs. SBA did not receive any substantive comments on FTEs from concerns in industries that would be impacted by this change, *i.e.* , industries that calculate their size by number of employees. Rather, all of the substantive commenters that addressed FTEs were from concerns and trade associations in industries where the size standards are calculated in receipts and not employees. Based on these comments, SBA has decided not to convert any industries where the size standard is measured by average annual receipts to employee-based size standards. Also, the voluminous supportive comments provided no basis for SBA to justify a significant change in policy of this nature. Therefore, SBA will not make any changes to the way it calculates number of employees to include FTEs. Thirteen commenters advocated no change to the way SBA calculates the number of employees. Only one of the commenters gave a reason, *i.e.* , he believed the current method was not complex. SBA believes that the calculation is not complicated, but the current method is burdensome to small businesses, as they need to recalculate their size from pay period to pay period. As part of SBA's review of comments from the ANPRM on the FTE issue, it explored alternative data sources besides payroll records by which to calculate a concern's number of employees. For the reasons discussed above, SBA believes the use of IRS Form W-3 is a viable alternative to payroll records and lessens the burdens on small businesses and the Federal Government. SBA had decided to propose this change pertaining to employment size rather than other changes offered by the commenters. *Alternative Methods for Calculating Number of Employees:* As an alternative, SBA considered using a concern's total number of employees for only its last calendar year. This method would also lessen the burden and instability of the current method that fluctuates pay period to pay period. However, trends in the economy fluctuate over a period of years. SBA's use of a 3-year average for calculating receipts has always taken these fluctuations into account, which provides for a more stable measure of a concern's size. By extending the 3-year period to the calculations of number of employees, SBA is providing consistency in the way it determines size by both receipts and employees. For this reason, SBA has determined that a 3-year average for calculating the number of employees of a concern is more appropriate. SBA welcomes public comments on its proposal to adopt a 3 calendar year average to calculate a concern's number of employees and the use of IRS Form W-3. Comments on alternatives, including the option of retaining the current method of calculating employment size, should explain why the alternative would be preferable to the proposed method of calculating the number of employees. Compliance With Executive Orders 12866, 12988, and 13132, the Paperwork Reduction Act (44 U.S.C. Ch. 35), and the Regulatory Flexibility Act (5 U.S.C. 601-612) The Office of Management and Budget
(OMB)has determined that this proposed rule is a significant regulatory action for purposes of Executive Order 12866. Accordingly, the next section contains SBA's Regulatory Impact Analysis. This is not a major rule, however, under the Congressional Review Act, 5 U.S.C. 800. Regulatory Impact Analysis 1. Is there a need for the regulatory action? SBA's mission is to aid and assist small businesses through a variety of financial, procurement, business development, and advocacy programs. To assist effectively the intended beneficiaries of these programs, SBA must establish distinct definitions of which businesses are deemed small businesses. The Small Business Act (15 U.S.C. 632(a)) delegates to SBA's Administrator the responsibility for establishing small business definitions. The supplementary information section of this proposed rule explains SBA's reasons for revising the way it defines small businesses in industries where the size standards are employee-based. SBA believes that it can simplify the calculation of employee size and lessen the burden on small businesses. 2. What are the potential benefits and costs of this regulatory action? The most significant benefit to businesses in industries that calculate their size in number of employees is the lessening of the burdens placed upon these businesses when they calculate their small business size status for eligibility for Federal small business assistance programs and retaining small business status for a longer period of time. These programs include SBA's financial assistance programs; economic injury disaster loans; and Federal procurement preference programs for small businesses, including 8(a) concerns, small disadvantaged businesses, small businesses located in Historically Underutilized Business Zones (HUBZone), and service disabled veteran-owned small businesses. HUBZone small businesses are also eligible for Federal contracts awarded through full and open competition after application of the HUBZone price evaluation preference. Other Federal agencies also may use SBA size standards for a variety of regulatory and program purposes. Through the assistance of these programs, small businesses become more knowledgeable, stable, and competitive businesses. The benefits of redefining how the number of employees is calculated would accrue to two groups: businesses that use small business assistance programs and SBA officials that make formal size determinations. Besides reducing the burden on businesses, this proposed rule would reduce the burden on SBA officials performing size determinations. SBA officials could use a concern's IRS Form W-3 and not have to review a concern's payroll records, unless necessary. SBA estimates that on average a business spends approximately 4 hours preparing size information in response to a size determination. In some cases where a concern must provide extensive payroll records to substantiate its employment size, preparation and copying expenses may be much greater than 4 hours. SBA's proposal to utilize the IRS W-3 Form could significantly reduce these expenses by allowing businesses to provide already prepared information. SBA estimates that preparation time may decrease by at least 1 hour for size determinations based on employment size. SBA would also expend less time on size determinations by use of the IRS W-3 Form rather than verifying and calculating employment size from payroll records. This may save from a few hours to a few days in review time, depending on the complexity of the case. 3. What are the alternatives to this proposed rule? SBA considered two alternative approaches to the proposed rule. First, it considered other sources of information on a concern's employment, such as from the U.S. Department of Labor and the Social Security Administration. SBA found that the IRS' W-3 Form provides the most reliable and cost effective alternative source of employment information from payroll records. In addition, SBA would require that a concern calculate both its average annual receipts and number of employees from information submitted to the same Federal agency—the IRS. Second, SBA considered calculating employment size on an annual basis instead of over a 3-year period as a viable alternative. As explained above, a 3-year period has the advantages of providing more stability in small business status and of achieving consistency in policy with the 3-year average used to calculate average annual receipts. SBA's proposal could potentially impact up to 2,000 businesses, but the actual number is likely to be significantly less than this number. In the Dynamic Small Business Search, approximately 1,800 small businesses out of over 300,000 are near or above 500 employees that could grow or downsize to qualify as small under one of the SBA's employee-based size standards that range between 500 employees to 1,500 employees. In addition, another 200 businesses are near or slightly above the 150-employee size standard for information technology value added resellers. Employment levels of businesses tend to be more stable than revenues, which limits the number of businesses that may become small or retain small business status if this proposal were adopted. SBA invites comment on the impact this proposed rule would have on the number of firms that could potentially do business with the Federal Government or on data to estimate the effect this change would have on the Federal contracting programs. Under SBA's 7(a) Guaranteed Loan Program, SBA estimates that potentially 10 additional loans totaling $8 million in new Federal loan guarantees could be made to businesses newly-defined as small or those retaining small business status. Additional loans under this program would likely be limited to businesses in the wholesale trade sector, which are subject to a 100-employee size standard. Using the relationships between SBA loan data and the 2002 Economic Census, approximately one-half of one percent of the 1,900 newly eligible small businesses will seek SBA financial assistance. On average, small businesses between 50 to 100 employees obtain 7(a) loans between $700,000 and $800,000 in value. Any newly defined small businesses could also benefit from SBA's Economic Injury Disaster Loan
(EIDL)Program. Since this program is contingent upon the occurrence and severity of a disaster, no meaningful estimate of benefits can be projected for future disasters. SBA's proposed simplification of the way it calculates small business size standards in terms of number of employees is consistent with SBA's statutory mandate to assist small business. This regulatory action promotes the Administration's objectives. One of SBA's goals in support of the Administration's objectives is to help individual small businesses succeed through fair and equitable access to capital and credit, Government contracts, and management and technical assistance. Reviewing and modifying size standards and related eligibility criteria, when appropriate, ensures that intended beneficiaries have access to small business programs designed to assist them. For purposes of Executive Order 12988, SBA has determined that this rule is drafted, to the extent practicable, in accordance with the standards set forth in that Order. For purposes of Executive Order 13132, SBA has determined that this rule does not have any federalism implications warranting the preparation of a federalism assessment. For the purpose of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA has determined that this rule would not impose new reporting or record keeping requirements. Initial Regulatory Flexibility Analysis Under the Regulatory Flexibility Act (RFA), this rule, if finalized, may have a significant impact on a substantial number of small entities in industries where the size standard is measured in number of employees. As described above, this rule may affect small entities seeking Federal contracts, SBA 7(a) Loans, SBA Economic Impact Disaster Loans, and assistance from other Federal small business programs. Immediately below, SBA sets forth an initial regulatory flexibility analysis
(IRFA)of this proposed rule addressing the following questions:
(1)What is the need for and objective of the rule,
(2)what is SBA's description and estimate of the number of small entities to which the rule will apply,
(3)what is the projected reporting, record keeping, and other compliance requirements of the rule,
(4)what are the relevant Federal rules which may duplicate, overlap or conflict with the rule, and
(5)what alternatives will allow the Agency to accomplish its regulatory objectives while minimizing the impact on small entities? 1. What is the need for and objective of the rule? SBA believes a change in the method of calculating the number of employees will simplify size standards and lessen the burden on small businesses in calculating their size status. 2. What is SBA's description and estimate of the number of small entities to which the rule will apply? The impact of this rule will almost exclusively be related to Federal contracting programs. The Dynamic Small Business Search contains more than 300,000 registrants. Of these, SBA's estimates that about 2,000 businesses near or above the current employee size standards may benefit from this proposal if adopted. However, the actual number is likely to be significantly less than this number because not all of these businesses will experience a sufficient change in size to alter their small business status or to have been awarded Federal contracts. SBA invites comment on the impact this proposed rule would have on the number of firms that could potentially do business with the Federal Government or on data to estimate the effect this change would have on these contracting programs. 3. What are the projected reporting, record keeping, and other compliance requirements of the rule and an estimate of the classes of small entities which will be subject to the requirements? A revised method of calculating the employment size of a concern does not impose any additional reporting, record keeping or compliance requirements on small entities. Changing the way the number of employees of a business is calculated does not impose a regulatory burden as they neither regulate nor control business behavior. 4. What are the relevant Federal rules which may duplicate, overlap or conflict with the rule? This proposed rule overlaps with other Federal rules that use SBA's size standards to define a small business. Under sec. 3(a)(2)(C) of the Small Business Act, 15 U.S.C. 632(a)(2)(c), Federal agencies must use SBA's size standards to define a small business, unless specifically authorized by statute. In 1995, SBA published in the **Federal Register** a list of statutory and regulatory size standards that identified the application of SBA's size standards as well as other size standards used by Federal agencies (60 FR 57988-57991, dated November 24, 1995). SBA is not aware of any Federal rule that would duplicate or conflict with established size standards. Redefining the way size standards based on number of employees are calculated may also affect small businesses participating in programs of other agencies that use SBA size standards. As a practical matter, however, SBA cannot estimate the impact of this proposed change on each Federal program that uses its size standards. In cases where an SBA size standard is not appropriate, the Small Business Act and SBA's regulations allow Federal agencies to develop different size standards with the approval of the SBA Administrator (13 CFR 121.902). For purposes of a regulatory flexibility analysis, agencies must consult with SBA's Office of Advocacy when developing different size standards for their programs (13 CFR 121.902(b)(4)). 5. What alternatives will allow the Agency to accomplish its regulatory objectives while minimizing the impact on small entities? As an alternative, SBA considered using a concern's total number of employees for only its last calendar year. This method would also lessen the burden and instability of the current method that fluctuates pay period to pay period. However, trends in the economy fluctuate over a period of years. SBA's use of a 3-year average for calculating receipts has always taken these fluctuations into account, which provides for a more stable measure of a concern's size. By utilizing the 3-year period to calculate a concern's number of employees, SBA is providing consistency in the way it determines size by both receipts and employees. For this reason, SBA has determined that a 3-year average for calculating the number of employees of a concern is more appropriate. List of Subjects in 13 CFR Part 121 Administrative practice and procedure, Government procurement, Government property, Grant programs—business, Individuals with disabilities, Loan programs—business, Reporting and recordkeeping requirements, Small businesses. For the reasons set forth in the preamble, SBA proposes to amend 13 CFR part 121 as follows. PART 121—SMALL BUSINESS SIZE REGULATIONS 1. The authority citation for part 121 continues to read as follows: Authority: 15 U.S.C. 632, 634(b)(6), 636(b), 637(a), 644, and 662(5); and Pub. L. 105-135, sec. 401 *et seq.* , 111 Stat. 2592. 2. Revise § 121.106 to read as follows: § 121.106 How does SBA calculate annual number of employees?
(a)*Employees* include all individuals employed on a full-time, part-time, or other basis. This includes employees obtained from a temporary employee agency, professional employer organization or leasing concern. Part-time and temporary employees are counted the same as full-time employees. SBA will consider the totality of the circumstances, including criteria used by the IRS for Federal income tax purposes, in determining whether individuals are employees of a concern. Volunteers ( *i.e.* , individuals who receive no compensation, including no in-kind compensation, for work performed) are not considered employees.
(b)*Average annual number of employees.*
(1)Where the size standard is number of employees, a concern's size is based on an average annual number of employees.
(2)Average annual number of employees means the total number of employees of the concern (including the employees of its domestic and foreign affiliates) for the preceding 3 calendar years divided by 3.
(3)Average annual number of employees for a concern that has been in business for less than 3 years means the total number of employees over the period the concern has been in business divided by the number of completed calendar years and fraction of the calendar year the concern has been in business. For example, a concern that has been in business for 1 year and 3 months divides its total number of employees by 1.25 (1 year +3 months/12 months).
(4)SBA will use a concern's IRS Form W-3, Transmittal of Wage and Tax Statement, and any corrections thereof, to calculate average annual number of employees. For purposes of counting employees obtained from a temporary employment agency, professional employer organization, or leasing concern, SBA will use contractual documents or invoices between the parties showing the number of individuals provided to the concern.
(5)Where a concern has not filed an IRS Form W-3 for a period which must be included within the period of measurement, SBA may calculate the concern's average annual number of employees using IRS Form 941, Employer's Quarterly Federal Tax Returns, other accredited governmental documents or any other available information, such as payroll records, which show the total number of employees for that relevant period.
(c)*Employees of Affiliates.*
(1)The employee size of a business concern with affiliates is calculated by adding the average annual number of employees of the business concern with the average annual number of employees of each affiliate.
(2)If a concern has acquired an affiliate or been acquired as an affiliate during the applicable period of measurement or before the date on which it self-certified as small, the employees counted in determining size status include the employees of the acquired or acquiring concern. Furthermore, this aggregation applies for the entire period of measurement, not just the period after the affiliation arose.
(3)The employees of a former affiliate are not counted if affiliation ceased before the date used for determining size. This exclusion of employees of a former affiliate applies during the entire period of measurement, rather than only for the period after which affiliation ceased. Dated: April 30, 2007. Steven C. Preston, Administrator. [FR Doc. E7-14492 Filed 7-26-07; 8:45 am] BILLING CODE 8025-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-128224-06] RIN 1545-BF80 Section 67 Limitations on Estates or Trusts AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking and notice of public hearing. SUMMARY: This document contains proposed regulations that provide guidance on which costs incurred by estates or non-grantor trusts are subject to the 2-percent floor for miscellaneous itemized deductions under section 67(a). The regulations will affect estates and non-grantor trusts. This document also provides notice of a public hearing on these proposed regulations. DATES: Written and electronic comments must be received by October 25, 2007. Outlines of topics to be discussed at the public hearing scheduled for November 14, 2007 must be received by October 24, 2007. ADDRESSES: Send submissions to CC:PA:LPD:PR (REG-128224-06), room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-128224-06), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at *http://www.regulations.gov/* (indicate IRS and REG-128224-06). The public hearing will be held in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, Jennifer N. Keeney,
(202)622-3060; concerning submissions of comments, the hearing, or to be placed on the building access list to attend the hearing, Richard A. Hurst,
(202)622-7180 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background This document contains proposed amendments to 26 CFR part 1. Section 67(a) of the Internal Revenue Code
(Code)provides that, for an individual taxpayer, miscellaneous itemized deductions are allowed only to the extent that the aggregate of those deductions exceeds 2 percent of adjusted gross income. Section 67(b) excludes certain itemized deductions from the definition of “miscellaneous itemized deductions.” Section 67(e) provides that, for purposes of section 67, the adjusted gross income of an estate or trust shall be computed in the same manner as in the case of an individual. However, section 67(e)(1) provides that the deductions for costs paid or incurred in connection with the administration of the estate or trust and which would not have been incurred if the property were not held in such estate or trust shall be treated as allowable in arriving at adjusted gross income. Therefore, deductions described in section 67(e)(1) are not subject to the 2-percent floor for miscellaneous itemized deductions under section 67(a). United States courts of appeals have interpreted the language of section 67(e)(1) differently in determining whether costs incurred by trustees are subject to the 2-percent floor. The issue in each case has been whether the trust's costs (specifically, investment advisory fees) “would not have been incurred if the property were not held in such trust or estate.” In *O'Neill* v. *Commissioner* , 994 F.2d 302 (6th Cir. 1993), the Court of Appeals for the Sixth Circuit held that investment advisory fees paid for professional investment services were fully deductible under section 67(e)(1) where the trustees lacked experience in managing large sums of money. The court found that, under state law, the trustee was required to engage an investment advisor to meet its fiduciary obligations and to incur fees that the trust would not have incurred if the property were not held in trust. The court held that estate or trust expenditures that are necessary to meet specific fiduciary obligations under state law are not subject to the 2-percent floor. In contrast, in *Mellon Bank, N.A.* v. *United States* , 265 F.3d 1275 (Fed. Cir. 2001), *Scott* v. *United States* , 328 F.3d 132 (4th Cir. 2003), and *Rudkin* v. *Commissioner* , 467 F.3d 149 (2d Cir. 2006), the courts held that investment advisory fees are subject to the 2-percent floor. These courts read the language of section 67(e)(1) differently than the Sixth Circuit. Specifically, the courts in *Scott* and *Mellon Bank* concluded that a trust expense is subject to the 2-percent floor if it is an expense “commonly” or “customarily” incurred by individuals; and the court in *Rudkin* looked to whether such an expense was “peculiar to trusts” and “could not” be incurred by an individual. The result of this lack of consistency in the case law is that the deductions of similarly situated taxpayers may or may not be subject to the 2-percent floor, depending upon the jurisdiction in which the executor or the trustee is located. The IRS and the Treasury Department believe that similarly situated taxpayers should be treated consistently by having section 67(e)(1) construed and applied in the same way in all jurisdictions. The proposed regulations are intended to provide a uniform standard for identifying the types of costs that are not subject to the 2-percent floor under section 67(e)(1). Explanation of Provisions These proposed regulations provide that costs incurred by estates or non-grantor trusts that are unique to an estate or trust are not subject to the 2-percent floor. For this purpose, a cost is unique to an estate or trust if an individual could not have incurred that cost in connection with property not held in an estate or trust. To the extent that expenses paid or incurred by an estate or non-grantor trust do not meet this standard, they are subject to the 2-percent floor of section 67(a). (Neither section 67 nor this rule applies to expenses that are excluded under section 67(b) from the definition of miscellaneous itemized deductions, or to expenses related to a trade or business.) Under the proposed regulations, whether costs are subject to the 2-percent floor on miscellaneous itemized deductions depends on the type of services provided, rather than on taxpayer characterizations or labels for such services. Thus, taxpayers may not circumvent the 2-percent floor by “bundling” investment advisory fees and trustees’ fees into a single fee. The regulations provide that, if an estate or non-grantor trust pays a single fee that includes both costs that are unique to estates and trusts and costs that are not, then the estate or non-grantor trust must use a reasonable method to allocate the single fee between the two types of costs. The regulations also provide a non-exclusive list of services for which the cost is either exempt from or subject to the 2-percent floor. The IRS and the Treasury Department invite comments on whether any safe harbors or other guidance, concerning allocation methods or otherwise, would be helpful. Proposed Effective Date The regulations, as proposed, apply to payments made after the date final regulations are published in the **Federal Register** . Special Analyses It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. Comments and Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight
(8)copies) or electronic comments that are submitted timely to the IRS. The IRS and Treasury Department request comments on the proposed rules, as well as their clarity and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing has been scheduled for November 14, 2007, beginning at 10 a.m. in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 15 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble. The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written or electronic comments and an outline of the topics to be discussed and the time to be devoted to each topic (signed original and eight
(8)copies) by October 24, 2007. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the schedule of speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing. Drafting Information The principal author of these regulations is Jennifer N. Keeney, Office of the Office of Associate Chief Counsel (Passthroughs and Special Industries). List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Proposed Amendments to the Regulations Accordingly, 26 CFR part 1 is proposed to be amended as follows: PART 1—INCOME TAXES **Paragraph 1.** The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * **Par. 2.** Section 1.67-4 is added to read as follows: § 1.67-4 Costs paid or incurred by estates or non-grantor trusts.
(a)*In general.* Section 67(e) provides an exception to the 2-percent floor on miscellaneous itemized deductions for costs that are paid or incurred in connection with the administration of an estate or a trust not described in § 1.67-2T(g)(1)(i) (a non-grantor trust) and which would not have been incurred if the property were not held in such estate or trust. To the extent that a cost incurred by an estate or non-grantor trust is unique to such an entity, that cost is not subject to the 2-percent floor on miscellaneous itemized deductions. To the extent that a cost included in the definition of miscellaneous itemized deductions and incurred by an estate or non-grantor trust is not unique to such an entity, that cost is subject to the 2-percent floor.
(b)*Unique.* For purposes of this section, a cost is unique to an estate or a non-grantor trust if an individual could not have incurred that cost in connection with property not held in an estate or trust. In making this determination, it is the type of product or service rendered to the estate or trust, rather than the characterization of the cost of that product or service, that is relevant. A non-exclusive list of products or services that are unique to an estate or trust includes those rendered in connection with: Fiduciary accountings; judicial or quasi-judicial filings required as part of the administration of the estate or trust; fiduciary income tax and estate tax returns; the division or distribution of income or corpus to or among beneficiaries; trust or will contest or construction; fiduciary bond premiums; and communications with beneficiaries regarding estate or trust matters. A non-exclusive list of products or services that are not unique to an estate or trust, and therefore are subject to the 2-percent floor, includes those rendered in connection with: Custody or management of property; advice on investing for total return; gift tax returns; the defense of claims by creditors of the decedent or grantor; and the purchase, sale, maintenance, repair, insurance or management of non-trade or business property.
(c)*“Bundled fees.”* If an estate or a non-grantor trust pays a single fee, commission or other expense for both costs that are unique to estates and trusts and costs that are not, then the estate or non-grantor trust must identify the portion (if any) of the legal, accounting, investment advisory, appraisal or other fee, commission or expense that is unique to estates and trusts and is thus not subject to the 2-percent floor. The taxpayer must use any reasonable method to allocate the single fee, commission or expense between the costs unique to estates and trusts and other costs.
(d)*Effective/applicability date.* These regulations are proposed to be effective for payments made after the date final regulations are published in the **Federal Register** . Kevin M. Brown, Deputy Commissioner for Services and Enforcement. [FR Doc. E7-14489 Filed 7-26-07; 8:45 am] BILLING CODE 4830-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2006-0280; FRL-8446-8] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; VOC and NO X RACT Determinations for Seven Individual Sources; Partial Withdrawal of Proposed Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Partial withdrawal of proposed rule. SUMMARY: EPA is withdrawing two individual sources that were included as part of a proposed rule to approve Pennsylvania's State Implementation Plan
(SIP)pertaining to source-specific volatile organic compounds
(VOC)and nitrogen oxides (NO <sup>X</sup> ) RACT determinations for seven individual sources located in Pennsylvania. The proposed rule was published on May 4, 2006 (71 FR 26297). Subsequently, EPA is withdrawing the two provisions of that proposed rule. DATES: The proposed additions of the entries for Merck & Company, Inc. and The Frog, Switch & Manufacturing Company published at 71 FR 26297 are withdrawn as of July 27, 2007. FOR FURTHER INFORMATION CONTACT: Rose Quinto at
(215)814-2182, or by e-mail at *quinto.rose@epa.gov.* SUPPLEMENTARY INFORMATION: See the information provided in the proposed rule, entitled, “Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; VOC and NO <sup>X</sup> RACT Determinations for Seven Individual Sources,” located in the Proposed Rules section of the May 4, 2006 **Federal Register** (71 FR 26297). EPA is withdrawing only the provisions for two individual sources, namely, Merck & Co., Inc., Northumberland County, Pennsylvania; and The Frog, Switch & Manufacturing Co., Cumberland County, Pennsylvania. The other actions in the May 4, 2006 **Federal Register** are not affected. List of Subjects in 40 CFR Part 52 Environmental protection, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: July 18, 2007. James W. Newsom, Acting Regional Administrator, Region III. [FR Doc. E7-14599 Filed 7-26-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R03-OAR-2007-0344; FRL-8447-1] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Redesignation of the Mercer County Portion of the Youngstown-Warren-Sharon, OH-PA 8-Hour Ozone Nonattainment Area to Attainment and Approval of the Associated 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 State Implementation Plan
(SIP)revision submitted by the Commonwealth of Pennsylvania. The Pennsylvania Department of Environmental Protection (PADEP) is requesting that the Mercer County portion of the Youngstown-Warren-Sharon, OH-PA ozone nonattainment area (“Youngstown Area” or “Area”) be redesignated as attainment for the 8-hour ozone national ambient air quality standard (NAAQS). The Area is comprised of Mercer County, Pennsylvania and Trumbull, Mahoning, and Columbiana Counties, Ohio. In this rulemaking action EPA is proposing to approve the ozone redesignation request, maintenance plan, and 2002 base year inventory for Mercer County. In a separate rulemaking action (72 FR 19435, April 18, 2007) EPA proposed to approve the ozone redesignation request for Trumbull, Mahoning, and Columbiana Counties. In conjunction with its redesignation request, the Commonwealth submitted a SIP revision consisting of a maintenance plan for Mercer County 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 Mercer County has attained the 8-hour ozone NAAQS, based upon three years of complete, quality-assured ambient air quality monitoring data for 2004-2006. EPA's proposed approval of the 8-hour ozone redesignation request is based on its determination that the Area has met the criteria for redesignation to attainment specified in the Clean Air Act (CAA). In addition, the Commonwealth of Pennsylvania has also submitted a 2002 base-year inventory for Mercer County, and EPA is proposing to approve that inventory for Mercer County 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 maintenance plan for Mercer County for purposes of transportation conformity, and is also proposing to approve those MVEBs. Note that separate conformity budgets are being established by Ohio for Trumbull, Mahoning, and Columbiana Counties. EPA is proposing approval of the redesignation request and of the maintenance plan and 2002 base-year inventory SIP revisions in accordance with the requirements of the CAA. DATES: Written comments must be received on or before August 27, 2007. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-0344 by one of the following methods: A. *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. *B. E-mail:* *Cripps.Christopher@epa.gov.* C. *Mail:* EPA-R03-OAR-2007-0344, Christopher Cripps, 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-2007-0344. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Protection Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105. FOR FURTHER INFORMATION CONTACT: Amy Caprio,
(215)814-2156, or by e-mail at *caprio.amy@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. Table Of Contents I. What Are the Actions EPA Is 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 Commonwealth's Request? VII. Are the Motor Vehicle Emissions Budgets Established and Identified in the Maintenance Plan for Mercer County Adequate and Approvable? VIII. Proposed Actions IX. Statutory and Executive Order Reviews I. What Are the Actions EPA Is Proposing To Take? On March 27, 2007, the PADEP formally submitted a request to redesignate Mercer County from nonattainment to attainment of the 8-hour NAAQS for ozone. Concurrently, Pennsylvania submitted a maintenance plan for Mercer County as a SIP revision to ensure continued attainment throughout the Youngstown Area over the next 11 years. PADEP also submitted a 2002 base-year inventory for Mercer County as a SIP revision. The Youngstown Area is comprised of Mercer County, Pennsylvania and Trumbull, Mahoning, and Columbiana Counties, Ohio. It is currently designated a basic 8-hour ozone nonattainment area. EPA is proposing to determine that Mercer County 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 Mercer County from nonattainment to attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve the Mercer County maintenance plan as a SIP revision for Mercer County (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to ensure continued attainment in Mercer County for the next 11 years. EPA is also proposing to approve the 2002 base-year inventory for Mercer County as a SIP revision. Additionally, EPA is announcing its action on the adequacy process for the MVEBs identified in the Mercer County maintenance plan, and proposing to approve the MVEBs identified for volatile organic compounds
(VOCs)and nitrogen oxides (NO <sup>X</sup> ) for Mercer County for transportation conformity purposes. Note that in a separate rulemaking action (72 FR 19435, April 18, 2007) EPA is proposing to approve Trumbull, Mahoning, and Columbiana Counties, Ohio MVEBs. II. What Is the Background for These Proposed Actions? A. General Ground-level ozone is not emitted directly by sources. Rather, emissions of NO <sup>X</sup> and VOC react in the presence of sunlight to form ground-level ozone. The air pollutants NO <sup>X</sup> 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 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 Youngstown Area was designated a basic 8-hour ozone nonattainment area 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 Youngstown 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); 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 (DC Cir. 2006) (hereafter “ *South Coast* ”). On June 8, 2007, in *South Coast Air Quality Management Dist.* v. *EPA,* Docket No. 04-1201, in response to several petitions for rehearing, the DC Circuit clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. Therefore, the Phase 1 Rule provisions related to classifications for areas currently classified under subpart 2 of Title I, part D of the Act as 8-hour nonattainment areas, the 8-hour attainment dates and the timing for emissions reductions needed for attainment of the 8-hour ozone NAAQS remain effective. The June 8 decision left intact the Court's rejection of EPA's reasons for implementing the 8-hour standard in certain nonattainment areas under Subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let stand EPA's revocation of the 1-hour standard and those anti-backsliding provisions of the Phase 1 Rule that had not been successfully challenged. The June 8 decision reaffirmed the December 22, 2006 decision that EPA had 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)certain transportation conformity requirements for certain types of federal actions. The June 8 decision clarified that the Court's reference to conformity requirements was limited to requiring the continued use of 1-hour motor vehicle emissions budgets until 8-hour budgets were available for 8-hour conformity determinations. Elsewhere in this document, mainly in section VI.B. “Mercer County 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 Mercer County 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. In 2004, the Youngstown Area was classified a basic 8-hour ozone nonattainment area based on air quality monitoring data from 2001-2003. Therefore, the Youngstown Area 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 indicates that the Youngstown Area has a design value of 0.083 ppm for the 3-year period of 2004-2006, using complete, quality-assured data. Therefore, the ambient ozone data for the Youngstown Area indicates no violations of the 8-hour ozone standard. B. The Youngstown Area The Youngstown Area consists of Mercer County, Pennsylvania and Mahoning, Trumbull, and Columbiana Counties, Ohio. Prior to its designation as an 8-hour ozone nonattainment area, the Youngstown Area was a marginal 1-hour ozone nonattainment area, and therefore, was subject to requirements for marginal nonattainment areas pursuant to section 182(a) of the CAA. *See* 56 FR 56694 (November 6, 1991). EPA determined that the Youngstown Area has attained the 1-hour ozone NAAQS by the November 15, 1993 attainment date (60 FR 3349, January 17, 1995). The Ohio counties were subsequently redesignated as attainment (Mahoning and Trumbull Counties on January 31, 1996 (61 FR 3319) and Columbiana County on February 8, 1995 (60 FR 7453)). On March 27, 2007, the PADEP requested that Mercer County be redesignated to attainment for the 8-hour ozone standard. The redesignation request included three years of complete, quality-assured data for the period of 2004-2006, indicating that the 8-hour NAAQS for ozone had been achieved in the Youngstown Area. The data satisfies the CAA requirements that 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), must be 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 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 redesignations 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
(TSDs)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 March 27, 2007, the PADEP requested redesignation of Mercer County to attainment for the 8-hour ozone standard. On March 27, 2007, PADEP submitted a maintenance plan for Mercer County as a SIP revision, to ensure continued attainment of the 8-hour ozone NAAQS over the next 11 years, until 2018. PADEP also submitted a 2002 base-year inventory concurrently with its maintenance plan as a SIP revision. EPA has determined that Mercer County has attained the 8-hour ozone 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 official designation of Mercer County 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 Mercer County for the next 11 years, until 2018. The maintenance plan includes contingency measures to remedy any future violations of the 8-hour NAAQS (should they occur), and identifies the NO <sup>X</sup> and VOC MVEBs (Mercer County only) for transportation conformity purposes for the years 2009 and 2018. These MVEBs are displayed in the following table: Table 1.—Mercer County Motor Vehicle Emissions Budgets in Tons per Summer Day
(tpsd)Year VOC NO <sup>X</sup> 2009 4.2 11.2 2018 2.6 4.9 VI. What Is EPA's Analysis of the Commonwealth's Request? EPA is proposing to determine that Mercer County has attained the 8-hour ozone standard, and that all other redesignation criteria have been met. The following is a description of how the PADEP's March 27, 2007 submittal satisfies the requirements of section 107(d)(3)(E) of the CAA. A. Mercer County Has Attained the 8-Hour NAAQS EPA is proposing to determine that Mercer County 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, 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 the 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 Youngstown Area, there are four ozone monitors, one located in Mahoning County, Ohio, two located in Trumbull County, Ohio and one in Mercer County, Pennsylvania that measure air quality with respect to ozone. As part of its redesignation request, Pennsylvania referenced ozone monitoring data for the years 2004-2006 for the Youngstown Area. This data has been quality assured and is recorded in the AQS. The 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 Tables 2-5. Table 2.—Youngstown Area Fourth Highest 8-hour Average Values Mercer County, Pennsylvania Monitor/AQS ID 42-085-0100 Year Annual 4th highest reading
(ppm)2004 0.076 2005 0.087 2006 0.079 The average for the 3-year period 2004-2006 is 0.079 ppm Table 3.—Youngstown Area Fourth Highest 8-hour Average Values Mahoning County, Ohio Monitor/AQS ID 39-099-0013 Year Annual 4th highest reading
(ppm)2004 0.074 2005 0.083 2006 0.076 The average for the 3-year period 2004-2006 is 0.077 ppm Table 4.—Youngstown Area Fourth Highest 8-hour Average Values Trumbull County, Ohio Monitor/AQS ID 39-155-0009 Year Annual 4th highest reading
(ppm)2004 0.078 2005 0.083 2006 0.074 The average for the 3-year period 2004-2006 is 0.078 ppm Table 5.—Youngstown Area Fourth Highest 8-hour Average Values Trumbull County, Ohio Monitor/AQS ID 39-155-0011 Year Annual 4th highest reading
(ppm)2004 0.080 2005 0.087 2006 0.082 The average for the 3-year period 2004-2006 is 0.083 ppm The air quality data for 2004-2006 show that the Youngstown Area has attained the standard with a design value of 0.083 ppm. The data collected at the Youngstown Area monitors satisfy 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. The PADEP's request for redesignation for Mercer County indicates that the data is complete and 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 data taken from AQS indicate that the Youngstown Area has attained the 8-hour ozone NAAQS. B. Mercer County 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 Mercer County 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 which requirements are applicable to Mercer County 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 came due prior to the submittal of a complete redesignation request. *See also,* Michael Shapiro memorandum, September 17, 1993, and 60 FR 12459, 12465-12466 (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 at 25424, 25427 (May 12, 2003) (redesignation of St. Louis). This section sets forth EPA's views on the potential effect of the Court's rulings on this proposed redesignation action. For the reasons set forth below, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation, and do not prevent EPA from proposing or ultimately finalizing this redesignation. EPA believes that the Court's December 22, 2006 and June 8, 2007 decisions impose no impediment to moving forward with redesignation of this area to attainment, because even in light of the Court's decisions, 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 includes 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 requirements (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 <sup>X</sup> SIP Call, October 27, 1998 (63 FR 57356), amendments to the NO <sup>X</sup> 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 are 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 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, October 10, 1996), (62 FR 24826, 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 53099, October 19, 2001). Similarly, with respect to the NO <sup>X</sup> SIP Call rules, EPA noted in its Phase 1 Final Rule to Implement the 8-hour Ozone NAAQS, that the NO <sup>X</sup> SIP Call rules are not “an” 'applicable requirement' for purposes of section 110(1) because the NO <sup>X</sup> 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. As we explain later in this notice, no Part D requirements applicable for purposes of redesignation under the 8-hour standard became due for Mercer County prior to submission of the redesignation request. 2. Part D Nonattainment Requirements Under the 8-Hour Standard Pursuant to an April 30, 2004, final rule (69 FR 23951), the Youngstown Area was designated a basic nonattainment area under subpart 1 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 applicable to 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, Mercer County was classified under subpart 1 and was obligated to meet only 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, 12465-12466 (March 7, 1995) (Redesignation of Detroit-Ann Arbor); *Sierra Club* v. *EPA,* 375 F.3d 537 (7th Cir. 2004), which upheld this interpretation. *See* 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 8-hour subpart 2 requirements, if Mercer County initially had been classified under subpart 2, the first two Part D subpart 2 requirements applicable to Mercer County 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). As stated previously, these requirements are not yet due for purposes of redesignation of Mercer County, 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 Mercer County, which was submitted on March 27, 2007, 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 Mercer County 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 Mercer County 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 that the general conformity and NSR requirements do not require 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 the 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 Mercer County, EPA has also determined that before being redesignated, Mercer County 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, 20469-20470, 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 Mercer County 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 marginal or basic 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 Mercer County. EPA has also interpreted the section 184 OTR requirements, including the NSR program, as not being applicable for purposes of 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 Vehicle Inspection and Maintenance (I/M) programs even after redesignation. Second, the section 184 control measures are region-wide requirements and do not apply to Mercer County by virtue of the Area's designation and classification. *See* 61 FR 53174, 53175-53176 (October 10, 1996) and 62 FR 24826, 24830-24832 (May 7, 1997). 3. Part D Nonattainment Area Requirements Under the 1-Hour Standard In its June 8, 2007 decision the Court limited its vacatur so as to uphold those provisions of the anti-backsliding requirements that were not successfully challenged. Therefore the Area must meet the federal anti-backsliding requirements, *see* 40 CFR 51.900, *et seq.* ; 70 FR 30592, 30604 (May 26, 2005) which apply by virtue of the area's classification for the 1-hour ozone NAAQS. As set forth in more detail below, the area must also address four additional anti-backsliding provisions identified by the Court in its decisions. The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe 1-hour ozone NAAQS requirements that continue to apply after revocation of the 1-hour ozone NAAQS to former 1-hour ozone nonattainment areas. Section 51.905(a)(1)(i) provides that: The area remains subject to the obligation to adopt and implement the applicable requirements as defined in section 51.900(f), except as provided in paragraph (a)(1)(iii) of paragraph
(b)of this section. * * * Section 51.900(f), as amended by 70 FR 30592, 30604 (May 26, 2005), states that: Applicable requirements means for an area the following requirements to the extent such requirements applied to the area for the area's classification under section 181(a)(1) of the CAA for the 1-hour NAAQS at the time of designation for the 8-hour NAAQS.
(1)Reasonably available control technology (RACT).
(2)Inspection and maintenance programs (I/M).
(3)Major source applicability cut-offs for purposes of RACT.
(4)Rate of Progress
(ROP)reductions.
(5)Stage II vapor recovery.
(6)Clean fuels fleet program under section 183(c)(4) of the CAA.
(7)Clean fuels for boilers under section 182(e)(3) of the CAA.
(8)Transportation Control Measures
(TCMs)during heavy traffic hours as provided section 182(e)(4) of the CAA.
(9)Enhanced (ambient) monitoring under section 182(c)(1) of the CAA.
(10)Transportation control measures
(TCMs)under section 182(c)(5) of the CAA.
(11)Vehicle miles traveled
(VMT)provisions of section 182(d)(1) of the CAA.
(12)NO <sup>X</sup> requirements under section 182(f) of the CAA.
(13)Attainment demonstration or alternative as provided under § 51.905(a)(1)(ii). Pursuant to 40 CFR 51.905(c), the Area is subject to the obligations set forth in §§ 51.905(a) and 51.900(f). Prior to its designation as an 8-hour ozone nonattainment area, the Youngstown Area was designated a marginal nonattainment area for the 1-hour standard. With respect to the 1-hour standard, the applicable requirements under the anti-backsliding provisions at 40 CFR 51.905(a)(1) for the Youngstown Area are limited to RACT and I/M programs specified in section 182(a) of the CAA and are discussed in the following paragraphs: Section 182(a)(2)(A) required SIP revisions to correct or amend RACT for sources in marginal areas, such as the Youngstown Area, that were subject to control technique guidelines
(CTGs)issued before November 15, 1990 pursuant to CAA section 108. 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) (this covers the Mercer County, PA portion of the Youngstown Area). EPA believes that this requirement applies only to marginal and higher classified 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 182(a)(2)(B) relates to the savings clause for vehicle inspection and maintenance (I/M). It requires marginal areas to adopt vehicle I/M programs. This provision was not applicable to the Youngstown Area because this Area did not have and was not required to have an I/M program before November 15, 1990. In addition the Court held that EPA should have retained four additional measures in its anti-backsliding provisions:
(1)Nonattainment area NSR;
(2)Section 185 penalty fees;
(3)contingency measures under section 172(c)(9) or 182(c)(9) of the Act; and
(4)1-hour motor vehicle emission budgets that were yet not replaced by 8-hour emissions budgets. These requirements are addressed below: With respect to NSR, EPA has determined that areas being redesignated need not have an approved nonattainment New Source Review program, for the same reasons discussed previously with respect to the applicable Part D requirement for the 8-hour standard. The section 185 penalty fee requirement applies only in severe and extreme nonattainment areas, and therefore was never applicable in the Youngstown 1-hour marginal nonattainment area. With respect to the requirement for submission of contingency measures for the 1-hour standard, section 182(a) does not require contingency measures for marginal areas. The conformity portion of the Court's ruling does not impact the redesignation request for Mercer County except to the extent that the Court in its June 8 decision clarified that for those areas with 1-hour MVEBs, anti-backsliding requires that those 1-hour budgets must be used for 8-hour conformity determinations until replaced by 8-hour budgets. There are no applicable 1-hour MVEBs for Mercer County. (As discussed elsewhere in this document, EPA is only proposing to approve 8-hour MVEBs for the Mercer County portion of the Youngstown Area.) To meet this requirement, conformity determinations in such areas must comply with the applicable requirements of EPA's conformity regulations at 40 CFR part 93. The court clarified that 1-hour conformity determinations are not required for anti-backsliding purposes. Thus EPA has concluded that Mercer County has met all requirements applicable for redesignation under 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 Mercer County, which is located in the OTR, nonattainment NSR will continue to be applicable after redesignation. On October 19, 2001, EPA approved the 1-hour NSR SIP revision for the Area. *See* 66 FR 53094 (October 19, 2001). EPA has also interpreted the section 184 OTR requirements, including NSR, as not being applicable for purposes of redesignation. Reading, PA Redesignation, 61 FR 53174, (October 10, 1996), 62 FR 24826 (May 7, 1997). 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, 53175-53176 (October 10, 1996) and 62 FR 24826, 24830-24832 (May 7, 1997). 5. Mercer County Has a Fully Approved SIP for Purposes of Redesignation EPA has fully approved the Pennsylvania SIP for the purposes of this 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. C. The Air Quality Improvement in Mercer County 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 Mercer County 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 6. Table 6.—Total VOC and NO <sup>X</sup> Emissions for 2002 and 2004 in Tons per Summer Day
(TPSD)Year Pennsylvania Ohio Total Volatile Organic Compounds
(VOC)2002 20.8 70.5 91.3 2004 19.0 64.6 83.6 Difference (02-04) −1.8 −5.9 −7.7 Nitrogen Oxides (NO <sup>X</sup> ) 2002 25.5 95.5 121.0 2004 22.4 82.5 104.9 Difference (02-04) −3.1 −13.0 −16.1 Between 2002 and 2004, VOC emissions throughout the Area decreased by 7.7 tpsd from 91.3 tpsd to 83.6 tpsd; NO <sup>X</sup> emissions throughout the Area decreased by 16.1 tpsd from 121.0 tpsd to 104.9 tpsd. These reductions, and anticipated future reductions, are due to the following permanent and enforceable measures. 1. Stationary Point Sources Federal NO <sup>X</sup> SIP Call (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 Engine and Vehicle Standards (62 FR 54694, October 21, 1997, and 65 FR 59896, October 6, 2000). National Low Emission Vehicle
(NLEV)Program
(PA)(64 FR 72564, December 28, 1999). Vehicle Emission Inspection/Maintenance Program (70 FR 58313, October 6, 2005). 4. Non-Road Sources Non-road Diesel (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 Mercer County achieving attainment of the 8-hour ozone standard. D. Mercer County Has a Fully Approvable Maintenance Plan Pursuant to Section 175A of the CAA In conjunction with its request to redesignate Mercer County to attainment status, Pennsylvania submitted a SIP revision to provide for maintenance of the 8-hour ozone NAAQS in the Area for at least 11 years after redesignation. The Commonwealth is requesting that EPA approve this SIP revision as meeting the requirement of CAA 175A. Once approved, the maintenance plan for the 8-hour ozone NAAQS will ensure that the SIP for Mercer County meets the requirements of the CAA regarding maintenance of the applicable 8-hour ozone standard. What Is Required in a Maintenance Plan? Section 175 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 Commonwealth must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years 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:
(a)an attainment emissions inventory;
(b)a maintenance demonstration;
(c)a monitoring network;
(d)verification of continued attainment; and
(e)a contingency plan. Analysis of the Mercer County Maintenance Plan
(a)Attainment inventory—An attainment inventory includes the emissions during the time period associated with the monitoring data showing attainment. PADEP determined that the appropriate attainment inventory year is 2004. That year establishes a reasonable year within the three-year block of 2004-2006 as a baseline and accounts for reductions attributable to implementation of the CAA requirements to date. The 2004 inventory is consistent with EPA guidance and is based on actual “typical summer day” emissions of VOC and NO <sup>X</sup> during 2004 and consists of a list of sources and their associated emissions. The 2002 and 2004 point source data was compiled from actual sources. 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 Systems and EPA's publication series AP-42, and are based on Source Classification Codes (SCC). The 2002 area source data was compiled using county-level activity data, from census numbers, from county numbers, etc. The 2004 area source data was projected from the 2002 inventory using temporal allocations provided by the Mid-Atlantic Regional Air Management Association (MARAMA). The on-road mobile source inventories for 2002 and 2004 were compiled using MOBILE6.2 and Pennsylvania Department of Transportation (PENNDOT) estimates for VMT. The PADEP has provided detailed data summaries to document the calculations of mobile on-road VOC and NO <sup>X</sup> emissions for 2002, as well as for the projection years of 2004, 2009, and 2018 (shown in Table 8 below). The 2002 and 2004 emissions for the majority of non-road emission source categories were estimated using the EPA NONROAD 2005 model. The NONROAD model calculates emissions for diesel, gasoline, liquefied petroleum gasoline, and compressed natural gas-fueled non-road equipment types and includes growth factors. The NONROAD model does not estimate emissions from locomotives or aircraft. For 2002 and 2004 locomotive emissions, the PADEP projected emissions from a 1999 survey using national fuel consumption information and EPA emission and conversion factors. There are no significant commercial aircraft operations (aircraft that can seat over 60 passengers) in Mercer County. Mercer County airports do not support enough flights or the type of aircraft to create measurable emissions from these sources. Emissions from airport ground support equipment are considered to be zero. For 2002 and 2004 aircraft emissions, PADEP estimated emissions using small airport operations statistics from *http://www.airnav.com,* and emission factors and operational characteristics in the EPA-approved model, Emissions and Dispersion Modeling System (EDMS). More detailed information on the compilation of the 2002, 2004, 2009, and 2018 inventories can be found in the Technical Appendices, which are part of PADEP's March 27, 2007 state submittal.
(b)Maintenance Demonstration—On March 27, 2007, the PADEP submitted a maintenance plan as required by section 175A of the CAA. The Mercer County maintenance plan shows maintenance of the 8-hour ozone NAAQS by demonstrating that current and future emissions of VOC and NO <sup>X</sup> remain at or below the attainment year 2004 emissions levels throughout Mercer County through the year 2018. A 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 25430-25432. Table 7 specifies the VOC and NO <sup>X</sup> emissions for the Youngstown Area for 2004, 2009, and 2018. The PADEP chose 2009 as an interim year in the maintenance demonstration period to demonstrate that the VOC and NO <sup>X</sup> emissions are not projected to increase above the 2004 attainment level during the time of the maintenance period. Table 7.—VOC and NO <sup>X</sup> Emissions for The Youngstown Area (TPSD); 2004, 2009, 2018 2004 PA OH Total 2009 PA OH Total 2018 PA OH Total Point. VOC 1.7 6.0 7.8 2.7 6.4 9.1 3.7 7.8 11.4 NO X 2.9 20.3 23.2 4.3 8.3 12.6 5.5 12.7 18.2 Area. VOC 7.6 24.1 31.7 7.4 22.9 30.2 7.8 23.0 30.9 NO X 0.8 2.5 3.3 0.9 2.8 3.7 0.9 3.0 3.9 Mobile. VOC 5.9 26.2 32.1 4.5 19.6 24.1 3.0 10.4 13.4 NO X 15.8 43.5 59.3 11.6 33.7 45.3 5.3 13.3 18.5 Nonroad. VOC 3.8 8.3 12.1 3.4 6.5 9.9 2.6 5.2 7.8 NO X 2.8 16.3 19.1 2.3 12.5 14.8 1.4 8.2 9.6 Total. VOC 19.1 64.6 83.6 18.0 55.4 73.4 17.1 46.3 63.4 NO X 22.4 82.5 104.9 19.1 57.4 76.4 13.1 37.2 50.2 Additionally, the following programs are either effective or due to become effective and will further contribute to the maintenance demonstration of the 8-hour ozone NAAQS: • The Clean Air Interstate Rule
(CAIR)(71 FR 25328, April 28, 2006). • The Federal NO <sup>X</sup> SIP Call (66 FR 43795, August 21, 2001). • Area VOC regulations concerning portable fuel containers (69 FR 70893, December 8, 2004), consumer products (69 FR 70895, December 8, 2004), and architectural and industrial maintenance coatings
(AIM)(69 FR 68080, November 23, 2004). • Federal Motor Vehicle Control Programs (light-duty ) (Tier 1, Tier 2; 56 FR 25724, June 5, 1991; 65 FR 6698, February 10, 2000). • Vehicle emission/inspection/maintenance program (70 FR 58313, October 6, 2005). • Heavy duty diesel on-road (2004/2007) and low sulfur on-road (2006); 66 FR 5002 (January 18, 2001). • Non-road emission standards
(2008)and off-road diesel fuel (2007/2010); 69 FR 38958 (June 29, 2004). • NLEV/PA Clean Vehicle Program (54 FR 72564, December 28, 1999)—Pennsylvania will implement this program in car model year 2008 and beyond. • Pennsylvania Heavy-Duty Diesel Emissions Control Program (May 10, 2002). Based on 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 Mercer County.
(c)Monitoring Network—There are four ozone monitors located throughout the Youngstown Area, one located in Mahoning County, Ohio, two located in Trumbull County, Ohio and one in Mercer County, Pennsylvania that measure air quality with respect to ozone, in accordance with 40 CFR part 58.
(d)Verification of Continued Attainment—In addition to maintaining the key elements of its regulatory program, the Commonwealth will track the attainment status of the ozone NAAQS in the Youngstown Area by reviewing air quality and emissions data during the maintenance period. The Commonwealth will perform an annual evaluation of Vehicle Miles Traveled
(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 part 51, subpart A) to see if they exceed the attainment year inventory
(2004)by more than 10 percent. The PADEP will also continue to operate the existing ozone monitoring station in Mercer County pursuant to 40 CFR part 58 throughout the maintenance period and submit quality-assured ozone data to EPA through the AQS system. Section 175A(b) of the CAA states that eight years following redesignation of Mercer County, PADEP will be required to submit a second maintenance plan that will ensure attainment through 2028. PADEP has made the commitment to meet the requirement section 175A(b).
(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 Commonwealth 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 Mercer County to stay in compliance with the 8-hour ozone standard after redesignation depends upon VOC and NO <sup>X</sup> emissions in the Youngstown Area remaining at or below 2004 levels. The Commonwealth's maintenance plan projects VOC and NO <sup>X</sup> 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 8-hour ozone concentrations at any of the Youngstown Area monitors are above 84 ppb. If this trigger point occurs, the Commonwealth will evaluate, in cooperation with the Ohio Environmental Protection Agency, whether additional local emission control measures should be implemented in order to prevent a violation of the air quality standard. PADEP will also analyze the conditions leading to the excessive ozone levels and evaluate which measures might be most effective in correcting the excessive ozone levels. PADEP will also analyze the potential emissions effect of Federal, state (including states upwind of Pennsylvania), and local measures that have been adopted but not yet implemented at the time the excessive ozone levels occurred. PADEP will then begin the process of implementing any selected measures. Contingency measures will also be considered in the event that a violation of the 8-hour ozone standard occurs at any of the Youngstown Area monitors. In the event of a violation of the 8-hour ozone standard, PADEP will adopt additional emissions reduction measures as expeditiously as practicable in accordance with the implementation schedule listed later in this notice and in the Pennsylvania Air Pollution Control Act in order to return the Youngstown Area to attainment with the standard. Contingency measures to be considered for Mercer County will include, but not be limited to the following: *Regulatory measures:* —Additional controls on consumer products. —Additional controls 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 on-road or off-road 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 plan lays out a process to have any regulatory contingency measures in effect within 19 months of the trigger. The plan also lays out a process to implement the non-regulatory contingency measures within 12-24 months of the trigger. VII. Are the Motor Vehicle Emissions Budgets Established and Identified in the Mercer County Maintenance Plan 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. In the maintenance plan, the MVEBs are termed “on-road mobile source emission budgets.” Pursuant to 40 CFR part 93 and § 51.112, MVEBs must be established in an ozone maintenance plan. An MVEB is the portion of the total allowable emissions that is allocated to highway and transit vehicle use and emissions. An 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 ensuring 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 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 consults this guidance and follows this rulemaking in making its adequacy determinations. The MVEBs for Mercer County are listed in Table 1 of this document for 2009 and 2018, and are the projected emissions for the on-road mobile sources plus any portion of the safety margin allocated to the MVEBs (safety margin allocation for 2009 and 2018 only). Note that in a separate rulemaking action (72 FR 19435, April 18, 2007) EPA proposed approval of Trumbull, Mahoning, and Columbiana Counties, Ohio 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: Mercer County first attained the 8-hour ozone NAAQS during the 2004 to 2006 time period. The Commonwealth used 2004 as the year to determine attainment levels of emissions for Mercer County. The total emissions from point, area, mobile on-road, and mobile non-road sources in 2004 equaled 19.0 tpsd of VOC and 22.4 tpsd of NO <sup>X</sup> . The PADEP projected emissions out to the year 2018 and projected a total of 17.1 tpsd of VOC and 13.1 tpsd of NO <sup>X</sup> from all sources in Mercer County. The safety margin for 2018 would be the difference between these amounts, or 1.9 tpsd of VOC and 9.3 tpsd of NO <sup>X</sup> . 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 8 shows the safety margins for the 2009 and 2018 years. Table 8.—2009 and 2018 Safety Margins for Mercer County Inventory year VOC emissions
(tpsd)NO <sup>X</sup> emissions
(tpsd)2004 Attainment 19.0 22.4 2009 Interim 18.0 19.1 2009 Safety Margin 1.0 3.3 2004 Attainment 19.0 22.4 2018 Final 17.1 13.1 2018 Safety Margin 1.9 9.3 The PADEP allocated 0.3 tpsd VOC and 0.4 tpsd NO <sup>X</sup> to the 2009 interim VOC projected on-road mobile source emissions projection and the 2009 interim NO <sup>X</sup> projected on-road mobile source emissions projection to arrive at the 2009 MVEBs. For the 2018 MVEBs the PADEP allocated 0.4 tpsd VOC and 0.4 tpsd NO <sup>X</sup> 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 9 shows the final 2009 and 2018 MVEBs for Mercer County. Table 9.—2009 and 2018 Final MVEBs for Mercer County Inventory year VOC emissions
(tpsd)NO <sup>X</sup> emissions
(tpsd)2009 projected on-road mobile source projected emissions 4.2 11.2 2009 Safety Margin Allocated to MVEBs 0.3 0.4 2009 MVEBs 4.5 11.6 2018 projected on-road mobile source projected emissions 2.6 4.9 2018 Safety Margin Allocated to MVEBs 0.4 0.4 2018 MVEBs 3.0 5.3 C. Why Are the MVEBs Approvable? The 2009 and 2018 MVEBs for Mercer County are approvable because the MVEBs for VOCs and NO <sup>X</sup> continue to maintain the total emissions at or below the attainment year inventory levels as required by the transportation conformity regulations. Note that in a separate rulemaking action (72 FR 19435, April 18, 2007) EPA proposed approval of Trumbull, Mahoning, and Columbiana Counties, Ohio MVEBs. D. What Is the Adequacy and Approval Process for the MVEBs in the Mercer County Maintenance Plan? The MVEBs for the Mercer County maintenance plan are being posted to EPA's conformity Web site concurrently 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 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 Mercer County 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 Mercer County MVEBs will also be announced on EPA's conformity Web site: *http://www.epa.gov/otaq/stateresources/transconf/index.htm* (once there, click on “Adequacy Review of SIP Submissions”). VIII. Proposed Actions EPA is proposing to determine that Mercer County has attained the 8-hour ozone NAAQS. EPA is also proposing to approve the redesignation of Mercer County from nonattainment to attainment for the 8-hour ozone NAAQS. 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 Mercer County has attained the 8-hour ozone standard. The final approval of this redesignation request would change the designation of Mercer County from nonattainment to attainment for the 8-hour ozone standard. EPA is also proposing to approve the associated maintenance plan for Mercer County, submitted on March 27, 2007, as a revision to the Pennsylvania SIP. EPA is proposing to approve the maintenance plan for Mercer County because it meets the requirements of section 175A as described previously in this notice. EPA is also proposing to approve the 2002 base-year inventory for Mercer County, and the MVEBs submitted by Pennsylvania for Mercer County 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. 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 Mercer County 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: July 16, 2007. Donald S. Welsh, Regional Administrator, Region III. [FR Doc. E7-14589 Filed 7-26-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018-AU98 Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for Astragalus magdalenae var. peirsonii AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule; notice of availability of the draft economic analysis; notice of public hearings. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to revise currently designated critical habitat for *Astragalus magdalenae* var. *peirsonii* (Peirson's milk-vetch) pursuant to the Endangered Species Act of 1973, as amended (Act). In total, approximately 16,108 acres
(ac)(6,519 hectares (ha)) in Imperial County, California, fall within the boundaries of the proposed revised critical habitat designation. Lands being proposed as critical habitat are under Federal (15,857 ac (6,418 ha)), private (240 ac (97 ha)), and State (11 ac (4 ha)) ownership. Section 4 of the Act requires us to consider the economic and other relevant impacts of specifying any area as critical habitat. We have conducted an analysis of the economic impacts of designating the aforementioned areas as critical habitat for *Astragalus magdalenae* var. *peirsonii* , and are announcing the availability of the draft economic analysis for public review. We hereby solicit data and comments from the public on all aspects of this revised proposal, including data on the economic and other impacts of the designation. We are also announcing that public hearings will be held on both the proposed critical habitat rule and the draft economic analysis. DATES: We will accept comments from all interested parties until September 25, 2007. The public hearings will take place on August 23, 2007, from 1 p.m. to 3 p.m. and from 6 p.m. to 8 p.m. at the Carlsbad Fish and Wildlife Office in Carlsbad, California (see ADDRESSESS ). ADDRESSES: *Public Hearings.* The public hearings will be held at the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, California, 92011. *Comments.* If you wish to comment on the proposed rule and/or the draft economic analysis, you may submit your comments and materials, identified by RIN 1018-AU98, by any of the following methods:
(1)You may send comments by electronic mail (e-mail) to *fw8cfwocomments@fws.gov.* Include “RIN 1018-AU98” in the subject line.
(2)You may fax your comments to Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office at 760-431-5901.
(3)You may mail or hand-deliver your written comments and information to Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office at the address above.
(4)You may submit your comments at the Federal eRulemaking Portal, *http://www.regulations.gov.* Follow the instructions for submitting comments. Comments and materials received, as well as supporting documentation used in the preparation of this proposed rule, will be available for public inspection, by appointment, during normal business hours at the Carlsbad Fish and Wildlife Office at the above address (telephone 760-431-9440). Copies of the draft economic analysis are available for downloading from the Internet at *http://www.fws.gov/carlsbad/* or by contacting the Carlsbad Fish and Wildlife Office directly at the above phone number or address. FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, at the address listed under ADDRESSES (telephone 760-431-9440; facsimile 760-431-5901). Persons who use a telecommunications device for the deaf
(TDD)may call the Federal Information Relay Service
(FIRS)at 800-877-8339, 24 hours a day, 7 days a week. SUPPLEMENTARY INFORMATION: Public Comments Solicited We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed critical habitat rule and its associated draft economic analysis are hereby solicited. On the basis of public comment, during the development of the final rule we may find that areas proposed are not essential or are appropriate for exclusion under section 4(b)(2) in which case they would be removed from the final critical habitat designation. *Comments particularly are sought concerning:*
(1)The reasons any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefit of designation will outweigh any threats to the taxon caused by designation.
(2)Specific information on the amount and distribution of *Astragalus magdalenae* var. *peirsonii* habitat, and what areas that were occupied at the time of listing that contain features essential for the conservation of the taxon should be included in the designation and why, and what areas that were not occupied at the time of listing are essential to the conservation of the taxon and why.
(3)Additional information on the specific physical and biological features (primary constituent elements) that are essential to the conservation of *Astragalus magdalenae* var. *peirsonii (see “Primary Constituent Elements” section of this proposed rule for more details).*
(4)Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(5)Information on how many of the State and local environmental protection measures referenced in the draft economic analysis were adopted largely as a result of the listing of *Astragalus magdalenae* var. *peirsonii* , and how many were either already in place or enacted for other reasons.
(6)Whether the draft economic analysis identifies all State and local costs attributable to the revised proposed critical habitat designation, and information on any costs that have been inadvertently overlooked.
(7)Whether the draft economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the designation of critical habitat.
(8)Whether the draft economic analysis correctly assesses the effect on regional costs associated with land use controls that derive from the designation of critical habitat.
(9)Whether the economic analysis indicated potentially disproportionate impacts to any areas included in the proposed designation. Based on this information, we may consider excluding portions of these areas from the final designation per our discretion under section 4(b)(2) of the Act.
(10)Whether the economic analysis appropriately identifies all costs that could result from the designation, in particular, any impacts on small entities or families; and whether it is appropriate that the analysis does not include the cost of project modifications that are the result of informal consultation only.
(11)Whether the economic analysis appropriately identifies the benefits that could result from the designation.
(12)Whether there is information about areas that could be used as substitutes for the economic activities planned in critical habitat areas that would offset the costs and allow for the conservation of critical habitat areas.
(13)Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments. If you wish to comment on the proposed rule and/or the draft economic analysis, you may submit your comments and materials by any one of several methods (see ADDRESSES section). Please submit e-mail comments to *fw8cfwocomments@fws.gov.* Please include “Attn: RIN 1018-AU98” in your e-mail subject line and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your message, contact us directly by calling our Carlsbad Fish and Wildlife Office at phone number 760-431-9440. Please note that comments must be received by the date specified in DATES in order to be considered. 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 This proposed rule addresses revised critical habitat for *Astragalus magdalenae* var. *peirsonii.* For additional information on the taxonomy, biology, and ecology of this taxon, refer to the final rule listing the taxon as threatened, published in the **Federal Register** on October 6, 1998 (63 FR 53596), or the proposed and final rules designating critical habitat for this taxon published in the **Federal Register** on August 5, 2003 (68 FR 46143), and on August 4, 2004 (69 FR 47330), respectively. It is our intention to discuss only those topics directly relevant to the revised designation of critical habitat in this proposed rule. *Astragalus magdalenae* var. *peirsonii* is an erect to spreading, herbaceous member of the Fabaceae (legume family) (Barneby 1959, p. 879; 1964, p. 862) that occurs on bowls, swales, and slopes of intact, active windblown sand dunes of the Algodones Dunes of Imperial County, California and the northeastern Estado de Baja California and Gran Desierto of northwestern Sonora, Mexico (Felger 2000, p. 300; Spellenberg 1993, p. 598; Willoughby 2005a, p. 2). Please refer to the “Primary Constituent Elements” section below for additional discussion on habitat requirements of this taxon. Plants may reach 8 to 27 inches
(in)(20 to 70 centimeters (cm)) in height and develop tap roots (Barneby 1964, pp. 863-864) that penetrate deeply to the moister sand and that anchor plants in the shifting sand dunes. The root crown is often exposed by wind action moving the sand away from the base of the plants. Seeds are enclosed in fruits or pods and are either dispersed locally by falling out of partly opened fruits on the parent plant, “salt-shaker” style, or are dispersed further if blown across the sand after falling from the parent plant. Thus seeds can be transported from one favorable site to another, or remain near the parent plant, depending on winds (Phillips *et al.* 2001, p. 11). Seeds require no pre-treatment to induce germination, but germination success has been shown to improve dramatically when the outer seed coat is scarified ( *e.g.* , scratched, chipped) (Porter *et al.* 2005, p. 29). Germination appears to be more successful in the cooler months of the year when temperatures are less than 86 °F (30 °C) (Romspert and Burk 1979, pp. 45-46). Therefore, based on our current understanding of the taxon's life history, sufficient rain in conjunction with cool temperatures and wetter-than-average fall weather appears to trigger germination events. Depending upon conditions, *Astragalus magdalenae* var. *peirsonii* is capable of flowering before it is one year old (Barneby 1964, p. 862; Romspert and Burk 1979, p. 16; Phillips et. al 2001, p. 10; Phillips and Kennedy 2005, p. 22). Porter *et al.* (2005, pp. 31-32) hypothesized that if rains occur early in the growing season, then flowering can begin in as little as 3 months after germination. If, on the other hand, rains (and germination) do not occur until late February, then flowering is delayed until the next rainy season. In dry years, individuals die and are not replaced by new seedlings. This variability in annual abundance of above-ground plants has caused this taxon to be considered variously as an annual (completing its life cycle in a year or growing season) or a perennial (living for more than 2 years) (Munz 1932, p. 7; Munz 1974, p. 432; Barneby 1959, p. 879; Barneby 1964, p. 862; Spellenberg 1993, p. 598; Willoughby 2001, p. 21). Recent evidence has confirmed that this species is a short-lived perennial (Phillips *et al.* 2001, p. 10; Porter *et al.* 2005, pp. 31, 34). This taxon likely depends on the production of seeds in wetter years and the persistence of the seed bank from previous years to survive until appropriate conditions for germination occur again. Porter *et al.* (2005, p. 29) identified the primary dormancy mechanism in *Astragalus magdalenae* var. *peirsonii* as the impermeability of the seed coat to water and demonstrated little loss of viability in seeds stored for 5 years. This dormancy mechanism is consistent with species having a seed bank (Given 1994, p. 67). Dispersed seeds in a given year that do not germinate during the subsequent growing season become part of the soil seed bank (Given 1994, p. 67). Species Distribution and Abundance In the United States, *Astragalus magdalenae* var. *peirsonii* is restricted to about 53,000 acres
(ac)(21,500 hectares (ha)) in a narrow band running 40 miles
(mi)(64 kilometers (km)) northwest to southeast along the western portion of the Algodones Dunes of eastern Imperial County, California, which is the largest sand dune field in North America. *Astragalus magdalenae* var. *peirsonii* has also been documented from the Gran Desierto of Sonora, Mexico (Felger 2000, p. 300) from an area south and southeast of the Sierra Pinacate lava field, but the Service has no additional information on the size of the population or extent of area occupied (63 FR 53599). The taxon was noted from the Borrego Valley, California, by Barneby (1959, p. 879) but no verified, reproducing population exists (Porter *et al.* 2005, pp. 9-10). Other observations from Yuma, Arizona, and San Felipe, Baja California, Mexico, were based on misidentified specimens (see Porter *et al.* 2005, pp. 9-10, and Phillips *et al.* 2001, p. 7, for detailed accounts). The Algodones Dunes are one of the largest sand dune fields in North America, extending about 40 mi (64 km), trending from northwest to southeast (Norris and Norris 1961, p. 608). Please refer to the 2003 proposed critical habitat rule for a more detailed discussion on the geomorphology of the Algodones Dunes (68 FR 46143). These dunes are often referred to as the Imperial Sand Dunes, a designation derived from their inclusion in the Imperial Sand Dunes Recreation Area (ISDRA) established by the Bureau of Land Management (BLM). The majority of the Algodones Dunes is managed by BLM within 8 management areas, of which 7 are occupied by *Astragalus magdalenae* var. *peirsonii* (Mammoth Wash, North Algodones Wilderness, Glamis, Gecko, Adaptive Management Area (AMA), Ogilby, and Buttercup). The State of California and private individuals own some small inholdings in the Mammoth Wash management area. The ISDRA is the most popular off-highway vehicle
(OHV)area in the southwest United States, with a specified major focus to ensure that OHV recreation opportunities are continuously available while responding to increased need for protection of plant and animal species in the dunes (Willoughby 2003, pp. 1-3). As a result of a settlement agreement reached in 2000, the BLM agreed to establish 5 interim closure areas within the Algodones Dunes, temporarily closing these areas to OHV recreation (see Index Map in “Rule Promulgation” section). As a result of a June 3, 2005, lawsuit, these temporary closures are still in place (see “Previous Federal Actions” section below for more information about the 2005 lawsuit). The Algodones Dunes are in one of the driest and hottest regions in the United States. The rainfall is often described as scattered or patchy with amounts differing from place to place and from year to year, with areas to the northwest being generally dryer than those to the southeast (Willoughby 2001, p. 20). Romspert and Burk (1979, p. 11) reported average yearly rainfall during the period 1941-1970 was 2.6 in (66 millimeters (mm)). Average yearly rainfall between 1997 and 2002 at seven weather stations in the vicinity of the dunes ranged from a low of 0.1 in (3.3 mm) during the 2001-2002 growing season to a high of 6.1 in (155 mm) in the 1997-1998 growing season (Willoughby 2004, p.13). Average yearly rainfall between 2002 and 2006 at two weather stations on the dunes ranged from a low of 0.2 in (5.3 mm) during the 2005-2006 growing season to a high of 4.8 in (122 mm) during the 2004-2005 growing season (Willoughby 2006, p.18). The distribution and abundance of *Astragalus magdalenae* var. *peirsonii* has been recorded during several ongoing survey efforts. As discussed in the 2004 final critical habitat rule (69 FR 47330), the 1977 dunes-wide survey for *A. m.* var. *peirsonii* and four other rare psammophytic (sand-loving) scrub species (WESTEC 1977) was considered the most extensive survey of the Algodones Dunes conducted at that time. The BLM conducted rare plant surveys for 5 consecutive years from 1998 through 2002, generally repeating the methodology used by WESTEC in its 1977 survey (Willoughby 2001, p. iii). Raw data from the 2001 and 2002 surveys were provided by the BLM to the Service for use in the development of the 2004 final critical habitat rule. However, a written report of the 2001 and 2002 surveys (Willoughby 2004) was completed in October 2004, after the publication of the August 4, 2004, final critical habitat rule. As also discussed in the 2004 final critical habitat rule, Phillips and Kennedy (2002, 2003) conducted surveys for *A. m.* var. *peirsonii* from 2001 through 2003. Since publication of the 2004 final critical habitat rule, both the BLM (Willoughby 2005a, 2005b, 2006) and Phillips and Kennedy (2004, 2005, 2006) continued to conduct annual surveys for this species through 2006. Table 1 below summarizes all of the various survey efforts, including the number of sampling points or transects and the effective area surveyed by each effort as well as the estimated population by the survey methodology and the actual number of plants counted. **Table 1.—Comparison of Survey Data Collected for** *Astragalus magdalenae* **var.** *peirsonii* **in the Algodones Dunes; Data Taken From 13 Unpublished Reports** Year Surveyor Number of plants counted Estimated population Number samples Effective area 1977 WESTEC N/A N/A 542 53,000 ac 1998 BLM 1 5,064 N/A 542 53,000 ac 1999 BLM 1 942 N/A 542 53,000 ac 2000 BLM 1 86 N/A 542 53,000 ac 2001 BLM 1 5,930 N/A 542 53,000 ac 2002 BLM 1 2,297 N/A 542 53,000 ac 2001 Phillips 2 3 71,926 N/A 127 ~35,000 ac 2001 Phillips 2 30,771 N/A 25 138 ac 2003 Phillips 2 33,202 N/A 25 138 ac 2005 Phillips 2 77,922 4 173,328 25 138 ac 2006 Phillips 2 1,233 4 2,035 25 138 ac 2004 BLM 1 25,798 286,374 37,169 53,000 ac 2005 BLM 1 739,805 1,831,076 123,488 53,000 ac 2006 BLM 1 N/A 83,451 775 53,000 ac
(1)BLM reports cited as Willoughby;
(2)Phillips reports cited as Phillips et al. or Phillips and Kennedy;
(3)reconnaissance of unspecified area;
(4)estimated population for 60 specific sample sites. Since different methodologies and survey effort were used by the BLM as compared to Phillips and Kennedy, it is difficult to compare the annual estimates of dunes-wide species abundance reported from the two different survey efforts. Early surveys conducted by WESTEC in 1977 (WESTEC 1977) and by BLM from 1998 through 2002 (Willoughby 2001, 2004) incorporated a methodology [whereby plants encountered along driving transects were qualitatively indexed to an abundance value] and represented in quadrants measuring 0.45 mi on each side. Analysis of these coarse, dune-wide surveys could only provide relative comparisons of mean abundance values between years. In 2004, the BLM embarked on a new sampling methodology that sampled a larger portion of the dunes in greater detail (Willoughby 2005a, pp. 1-5). Unlike previous surveys, the recent BLM surveys were scientifically and statistically designed to estimate the standing *Astragalus magdalenae* var. *peirsonii* population (Willoughby 2005a, 2005b, 2006). Data were compiled in adjacent 25 x 25-meter
(m)cells along 4-5 km transects covering the full length of the dunes, and all micro-habitats were sampled along each transect (Willoughby 2005b, pp. 1-3). Within these 25 x 25-m cells, surveyors noted: The total number of plants; age class of plants; number of seedlings; number of flowering versus non-flowering plants; number of plants exhibiting damage from OHVs; and the number of plants showing damage from other sources (Willoughby 2005b, p. 3). The recent BLM surveys also increased the number of sample transects to 135 in 2004, and to 510 for the spring 2005 surveys; the increased transect numbers and more detailed survey methodology increased their overall sample count to 37,169 and 123,488, respectively (Willoughby 2005b). In 2006, the BLM used a randomized sample of 2005 known occupied cells during the very dry winter and spring of 2006 to yield a population estimate for the 2005-2006 survey year (Willoughby 2006, p. 6). Both the WESTEC and BLM surveys covered an effective area of about 53,000 ac (21,200 ha) and encompassed all management areas containing *Astragalus magdalenae* var. *peirsonii* (Willoughby 2005a, p. 2). By comparison, Phillips *et al.* (2001, p. 6) counted individual *Astragalus magdalenae* var. *peirsonii* from 127 specific locations covering an unspecified area of about 35,000 ac (14,165 ha) (Phillips and Kennedy 2002, Appendix A). Phillips and Kennedy (2002, 2003, 2004, 2005, 2006) then established 25 monitoring sites from these 127 locations for their multi-year survey effort, which had an effective area of about 138 ac (56 ha). The disparity between these three survey methods and the data collected makes it difficult to assess status and trends of the *Astragalus magdalenae* var. *peirsonii* population. However, we consider the surveys conducted by BLM to be the most extensive and precise effort to determine overall population abundance and distribution for this species, because this effort covered an effective area of about 53,000 ac (21,200 ha) and encompassed all management areas containing *Astragalus magdalenae* var. *peirsonii.* Also, the amount of data gathered in 2005 was the result of an exceptionally good rainfall year and extraordinary monitoring effort. We agree with the BLM that the 2005 survey effort represents the best estimate to date of distribution and abundance of the species on the Algodones Dunes (Willoughby 2006, p. v). The 2005-2006 survey year was an exceptionally dry year, with no *A. m.* var. *peirsonii* germination reported (Willoughby 2006, p. vi). While direct comparison of annual estimates of *Astragalus magdalenae* var. *peirsonii* abundance reported by BLM and Phillips and Kennedy is difficult due to differences in survey methodologies and effort used by the surveyors, some comparisons can be made which illustrate the wide variation in numbers of standing individuals found in any given year and in any given area of the dunes depending on abundance and distribution of rainfall. If we compare BLM data from 1998 with BLM 2000 data and compare Phillips and Kennedy's 2001 data with their 2003 data, we see the annual variation in species abundance at occupied sites. Along the same series of west to east transects, BLM counted a total of 5,064 plants in 1998, a heavy rainfall year, and 86 plants in 2000, a low rainfall year (Willoughby 2004, p. 36). The record of steep decline of the cohort counted by Phillips *et al.* in 2001 was tracked by Phillips and Kennedy (2002, p. 18), who reported that only 26 percent of the plants seen in spring of 2001 were present in late 2001. Phillips and Kennedy (2003, p. 12) also reported that only 0.26 percent of the plants counted in spring 2001 survived to spring 2003. This wide variation in numbers of standing individuals is also evident when comparing results of the BLM's dunes-wide surveys conducted in 2004, 2005, and 2006. In 2004, estimated dunes-wide abundance was 286,374 plants (5.5 plants/ac (13.5/ha)) (Willoughby 2005a, p. 37). In 2005, estimated dunes-wide abundance was 1,831,076 plants (39.8 plants/ac (86/ha)) (Willoughby 2005b, pp. 9-11). In 2006, estimated dunes-wide abundance was 83,451 plants (1.6 plants/ac (3.9/ha)) (Willoughby 2006, p. vi). Differences in densities (plants per acre) are likely due to differences in rainfall between years. An above average amount of rainfall was recorded during the 2004-2005 growing season, resulting in the greatest abundance of plants to date, while the 2005-2006 growing season was considered an exceptionally dry year, resulting in zero reported germination. Density in 2004 may have also been decreased due to higher average monthly maximum temperatures recorded during the survey period, potentially impacting germination (Willoughby 2005a, p. 12). In any given year, *Astragalus magdalenae* var. *peirsonii* may be present as standing plants, as a “soil seed bank” in the sand dunes, or as plants persisting as perennial root crowns in the sand dunes. During any given year, the suitable habitat for *A. m* . var. *peirsonii* may be occupied by various combinations of these three life history phases. The dynamics of dune morphology, local rainfall patterns and amounts, and the spatial distribution of the soil seed bank contribute to the patchy or mosaic nature of the distribution of standing plants of *A. m.* var. *peirsonii* . As discussed above, local rainfall patterns and amounts are likely to cause shifts in the proportions of these three life history phases. This species was federally listed as threatened due to threats of increasing habitat loss from OHV use and associated recreational development, destruction of plants, and lack of protection afforded the plant under State law (63 FR 53596). Impacts to individual plants and their habitat associated with OHV activities and recreation development continue to be the primary threat to this species in the United States. Please refer to the final listing rule (63 FR 53596) for a detailed discussion of the threats to the species and to the “Special Management Considerations or Protection” section of this proposed rule for a more detailed discussion on threats to this species' habitat. Previous Federal Actions For more information on previous Federal actions related to the designation of critical habitat for *Astragalus magdalenae* var. *peirsonii* , refer to the final listing rule published in the **Federal Register** on October 6, 1998 (63 FR 53596), and the proposed designation of critical habitat for this species published in the **Federal Register** on August 5, 2003 (68 FR 46143). On August 4, 2004 (69 FR 47330), we designated approximately 21,836 acres
(ac)(8,848 hectares (ha)) of land in Imperial County, California, as critical habitat for this species. On June 3, 2005, the Center for Biological Diversity, Sierra Club, Public Employees for Environmental Responsibility, and Desert Survivors filed suit against the BLM and the Service alleging, among other violations related to the protection of *Astragalus magdalenae* var. *peirsonii* and desert tortoise ( *Gopherus agassizii* ), that the Service did not properly consider and weigh the benefits and costs associated with designating critical habitat for *A. m.* var. *peirsonii* . In a September 25, 2006, order and injunction regarding final relief, the court ordered the Service to submit a new final critical habitat rule to the **Federal Register** for publication no later than February 1, 2008. In addition, the Court ordered that the August 4, 2004 final critical habitat designation remain in full force and effect pending completion of the new final rule, and that the August 5, 2003 proposed designation of critical habitat be reinstated and remain effective pending completion of the new final rule or the issuance of a new proposed critical habitat rule for *A. m. peirsonii* . Therefore, under the Court's order, this proposed rule replaces the August 5, 2003 proposed critical habitat designation, and the August 5, 2003 proposed rule is no longer in effect. All areas currently designated under the August 4, 2004 final rule remain designated pending completion of the new final critical habitat rule. On November 30, 2005, we published a notice of 90-day finding on a petition to delist this species and an initiation of a status review in the **Federal Register** (70 FR 71795). Please see the notice of 90-day finding for a discussion of the previous Federal actions related to the delisting petition history of this species. We are currently completing a status review of *Astragalus magdalenae* var. *peirsonii* and will publish our 12-month finding on the delisting petition in the **Federal Register** later this year. Critical Habitat Critical habitat is defined in section 3 of the Act as—(i) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(I)essential to the conservation of the species and
(II)that may require special management considerations or protection; and
(ii)specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act means to use and the use of all methods and procedures that are necessary to bring any endangered species or threatened species to the point at which the measures provided under the Act are no longer necessary. Critical habitat receives protection under section 7(a)(2) of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7(a)(2) of the Act requires consultation on Federal actions that are likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow government or public access to private lands. Section 7(a)(2) of the Act is a purely protective measure and does not require implementation of restoration, recovery, or enhancement measures. To be included in a critical habitat designation, the habitat within the area occupied by the species at the time of listing must first have features that are essential to the conservation of the species. Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species (areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)). Occupied habitat that contains the features essential to the conservation of the species meets the definition of critical habitat only if the essential features thereon may require special management considerations or protection. Thus, we do not include areas where existing management is sufficient to conserve the species. (As discussed below, such areas may also be excluded from critical habitat under section 4(b)(2) of the Act.) Unoccupied areas can be designated as critical habitat. However, when the best available scientific data do not demonstrate that the conservation needs of the species require additional areas, we will not designate critical habitat in areas outside the geographical area occupied by the species. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, the Service's Policy on Information Standards Under the Endangered Species Act, published in the **Federal Register** on July 1, 1994 (59 FR 34271); Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658); and the associated Information Quality Guidelines issued by the Service provide criteria, establish procedures, and provide guidance to ensure that decisions made by the Service represent the best scientific data available. They require Service biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information is generally the listing package for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge. All information is used in accordance with the provisions of Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery. Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome. Methods As required by section 4(b)(2) of the Act and regulations at 50 CFR 424.12, we used the best scientific and commercial information available in determining areas that contain the features essential to the conservation of *Astragalus magdalenae* var. *peirsonii* , areas that are essential to the conservation of *A. m.* var. *peirsonii* , or both. This included data from unpublished research and survey reports, such as WESTEC (1977); Porter *et al.* (2005); BLM surveys conducted from 1998 to 2006 (Willoughby 2001, 2004, 2005a, 2005b, 2006); peer-reviewed journal articles; site visits; and discussions with species experts. We are not including in this proposed critical habitat rule any areas outside the geographical area presently occupied by the species. Primary Constituent Elements In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to propose as critical habitat, we consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species, and that may require special management considerations or protection. These include, but are not limited to:
(1)Space for individual and population growth and for normal behavior;
(2)food, water, air, light, minerals, or other nutritional or physiological requirements;
(3)cover or shelter;
(4)sites for breeding, reproduction, and rearing (or development) of offspring; and
(5)habitats that are protected from disturbance or are representative of the historic, geographical, and ecological distributions of a species. The specific primary constituent elements
(PCEs)required for *Astragalus magdalenae* var. *peirsonii* are derived from the biological needs of A. m. var. peirsonii as described in the “Background” section of this proposed rule, and also in the final listing rule (63 FR 53596) and in the ``Background'' section of the 2003 proposed critical habitat rule (68 FR 46143). Space for Individual and Population Growth, Including Sites for Germination, Reproduction, Seed Dispersal, Seed Bank, and Pollination *Astragalus magdalenae* var. *peirsonii* is found on active sand dunes between active faces (so-called slip faces) of the dunes, in bowls, or on semi-stabilized shallow slopes, facing the slip-faces of active dunes (Porter *et al.* 2005, p. 14). Active sand dunes provide the space needed for individual and population growth, including sites for germination, reproduction, seed dispersal, seed bank, and pollination of *A. m.* var. *peirsonii* . Active sand dunes are characterized by bowls (hollows among the dunes), swales (low area), and slip faces (areas so steep that the loose sand naturally cascades downward) that run transverse to the primary ridge line. *A. m.* var. *peirsonii* generally occurs on west-facing slopes where there is relative substrate stability from the floor of the dune basin to beyond the ridge; the greatest concentrations are generally above the middle of the slope (WESTEC 1977, p. 75; Porter *et al.* 2001, pp. 12-13). Sand movement, dune-building, and dune migration are likely determined by the wind regime (Norris and Norris 1961, p. 609). Winds from the northwest are prevalent in the winter, while in the summer the winds are from the southeast (Romspert and Burk 1979, p. 11). Muhs *et al.* (1995, pp. 43-44) found, during a study of the sand source for the Algodones Dunes, that dominant sand-moving winds are as follows: Prevailing from the northwest all year at Indio, California; from the west or southwest all year at El Centro, California; and from the northwest in winter and from the southeast in summer at Yuma, Arizona. These winds are responsible for the local dispersal of seeds that either fall out of partly opened fruits or pods on the parent plant or that are released from fruits blown across the sand after falling from the parent plant (Phillips *et al.* 2001, p. 11). Seed germination patterns likely reflect the horizontal and vertical distribution of the seed bank in the shifting sand dunes (seeds will not effectively germinate if buried more than 3 in (8 cm) below the surface of the dune (Bowers 1996, p. 69)). As an adaptation to shifting sands and low soil moisture, this species has developed extremely long tap roots (Barneby 1964, p. 862) that penetrate deeply to the moister sand and that anchor the plants in the shifting dunes. According to Porter *et al.* (2005, p. 28), seedlings may have roots descending only 4 in (10 cm), whereas older plants (e.g., 4 years or older) are likely to have roots ``many meters deep.'' Seeds buried in the sand function as the seed bank and allow for growth when suitable conditions, such as adequate rainfall, scarification, and suitable sand depths, are met. Wind-driven sand appears to provide the primary mechanism for seed scarification (e.g., scratching or chipping of outer cover). While seeds require no pre-germination treatment to induce germination, scarification appears to significantly increase germination success. Porter *et al.* (2005, p. 29) conducted germination trials of *Astragalus magdalenae* var. *peirsonii* seeds collected from Algodones Dunes and found that, averaging over all germination trials, scarified seeds had 99.1 percent germination whereas unscarified seeds displayed 5.3 percent germination. In germination trials conducted by Romspert and Burk (1979, pp. 45-46), 92 percent or more seeds germinated within 29 days at temperatures of 77 °F (25 °C) or less, and no seeds germinated at temperatures of 86 °F (30 °C) or higher. This observation indicates that seeds on the dunes likely germinate in the cooler months of the year. Porter *et al.* (2005, p. 29) identified the primary dormancy mechanism in *A. m.* var. *peirsonii* as the impermeability of the seed coat to water and demonstrated little loss of viability in seeds stored for 5 years. Seedlings may be generally present in suitable habitat throughout the dunes, especially during above-normal precipitation years. In intervening dry years, plant numbers decrease as individuals die and are not replaced by new seedlings. Porter ( *et al.* 2005, p. 35) estimated that a total- or near-total failure of seedling recruitment occurs 20 percent of the time (1 of every 5 years). This species likely depends on the production of seeds in the wetter years and the persistence of the seed bank from previous years to survive until appropriate conditions for germination occur again. *Astragalus magdalenae* var. *peirsonii* occurs only in a vegetation community referred to as psammophytic (sand-loving) scrub, characterized by *Croton wigginsii* (Dunes croton), *Eriogonum deserticola* (Desert buckwheat), *Helianthus niveus* ssp. *Tephrodes* (Algodones Dunes sunflower), *Palafoxia arida* var. *gigantean* (Giant Spanish-needle), *Pholisma sonorae, Tiquilia plicata* (Plicate coldenia), *Petalonyx thurberi* (Thurber's sandpaper plant), and *Panicum urvilleanum* (Dunes panic grass) (WESTEC 1977, p. 58; Porter *et al.* 2005, p. 14). However, none of these species truly dominates the landscape (Porter *et al.* 2005, p. 14). In areas where the sand dunes are more stabilized (less sand dune building and movement), such as along the margins of the dune fields, the open canopy psammophytic scrub community is replaced by the sandier phases of the creosote bush scrub community. *Astragalus magdalenae* var. *peirsonii* is apparently excluded from the relatively more closed canopy, creosote bush scrub community. The presence of this associated co-adapted psammophytic scrub plant community is important for population growth of *A. m.* var. *peirsonii* , because it provides habitat for insect pollinators required by *A. m.* var. *peirsonii* for fruit production (Porter *et al.* 2005, p. 35). The white-faced digger bee ( *Habropoda pallida* ) has been found to be the most frequent visitor on and may be the primary pollinator for this taxon (Porter *et al.* 2005, p. 32). Intervening Areas for Gene Flow and Connectivity Within the Population The active sand dunes are continuous along the northwest-to-southeast axis. The continuity of the sand dunes provides connectivity and facilitates gene flow within the population by allowing the movement of pollinators and the wind dispersal of fruit and seeds. Therefore, areas of the sand dunes between bowls occupied by *Astragalus magdalenae* var. *peirsonii* are important for maintaining gene flow within the population. Areas That Provide the Basic Requirements for Growth (Such as Water, Light, and Minerals) A soil survey for the Imperial Valley area of Imperial County did not include the areas east of the Coachella Canal, but did depict a few adjacent portions of the Algodones Dunes as Rositas fine sand with 9 to 30 percent slopes (Zimmerman 1981, p. 32). Rositas fine sand is described as deep, somewhat excessively drained, sloping soils formed in wind-blown sands of diverse origin. Dean (1978, p. 65) describes the sand as quartz with a mean grain size of 0.006 in (0.17 mm). The dunes contain 60 to 70 percent quartz and 30 to 40 percent feldspar sand (Norris and Norris 1961, p. 610). Porter *et al.* 2005 (pp. 26-27) describes the sand as containing very little organic material (less than 1 percent). They also found that following rainfall, the dune surface held considerable moisture. Within two to three weeks of a rainfall event, moist sand was found 1 in (3 cm) below the dune surface and later in the season (e.g., April) moist sand was found 7 in (19 cm) below the surface (Porter *et al.* 2005, pp. 26-27). Therefore, Rositas fine sands are required by this species to provide the basic requirements for growth. Based on the best available information at this time, the primary constituent elements required by *Astragalus magdalenae* var. *peirsonii* are:
(1)West and/or northwest-facing sides of bowls, swales, and slopes consisting of Rositas fine sands within intact, active sand dune systems (defined as sand areas that are subject to sand-moving winds) in the existing range of the species that provide space needed for individual and population growth, including sites for germination, reproduction, seed dispersal, seed bank, and pollination;
(2)The associated co-adapted psammophytic scrub plant community characterized by *Croton wigginsii, Eriogonum deserticola, Helianthus niveus* ssp. *tephrodes, Palafoxia arida* var. *gigantean, Pholisma sonorae, Tiquilia plicata, Petalonyx thurberi,* and *Panicum urvilleanum* that provides habitat for insect pollinators, particularly the white-faced digger bee ( *Habropoda pallida* ), required for reproduction; and
(3)Areas within intact, active sand dune systems between occupied bowls, swales, and slopes that allow for pollinator movement and wind dispersal of fruit and seeds. This proposed revision to the critical habitat designation is designed for the conservation of those areas containing PCEs necessary to support the life history functions that were the basis for the proposal and the areas containing those PCEs. Because not all life history functions require all the PCEs, not all proposed critical habitat units will contain all the PCEs. Units are designated based on sufficient PCEs being present to support at least one of the species' life history functions. Some units contain all PCEs and support multiple life processes, while some units contain only a portion of the PCEs necessary to support the species' particular use of that habitat. Special Management Considerations or Protection When designating critical habitat, we assess whether the areas determined to be occupied at the time of listing contain primary constituent elements that may require special management considerations or protection. We have also considered how revising the current designation highlights habitat that needs special management consideration or protection. *Astragalus magdalenae* var. *peirsonii* was listed due to destruction of plants and modification of habitat associated with OHV activity and associated recreational development (63 FR 53596). OHVs can impact habitat for *A. m.* var. *peirsonii* by:
(1)Disrupting the natural processes that support dune formation, movement, and structure which could disrupt the available habitat needed for individual and population growth (PCE 1 and 3);
(2)Causing the collapse of dune faces and ridges, which could result in burial of the seed bank (PCE 1);
(3)Disturbing surface sand, thereby decreasing soil moisture needed for individual and population growth (PCE 1); and
(4)Degrading the psammophytic scrub plant community that provides habitat for pollinators required for reproduction (PCE 2). In the 2004 final critical habitat rule, we stated that OHVs may also increase sand compaction (69 FR 47330). However, Porter *et al.* (2005, p. 27) measured soil compaction associated with undisturbed dunes, OHV-traversed sand dunes, and dunes disturbed by foot traffic, and found that soil compaction on the undisturbed dunes was significantly higher. They state that winds and rains cause the sand grains on the surface of the dune to sort and pack in undisturbed areas, thereby potentially reducing evaporative water loss from the dunes. They theorize that OHV activity or walking disturbs the surface and may result in increased evaporative water loss in the dunes (Porter *et al.* 2005, p. 27). Special management considerations or protection may be required to minimize impacts to *Astragalus magdalenae* var. *peirsonii* habitat resulting from OHV recreation. The BLM (2003, Appendix 1 p. 13) listed the following possible management options to protect *A. m.* var. *peirsonii* and its habitat:
(1)Use restrictions based on a permit system that would allow a specified level of use (high, medium, low, no use);
(2)temporally based closures or limitations (open during some months or years, closed in others);
(3)recognition and management of certain areas within a management area; and/or
(4)increased education and outreach to OHV users to avoid certain areas. Special management considerations needed may also include additional enforcement to ensure visitor compliance with these management options. Criteria Used To Identify Critical Habitat All proposed revised critical habitat units are within areas that we have determined were occupied at the time of listing, and that contain sufficient primary constituent elements
(PCEs)to support life history functions essential for the conservation of the species. Lands were proposed for designation based on sufficient PCEs being present to support the life processes. Some lands contain only a portion of the PCEs necessary to support the particular use of that habitat. We consider BLM's 2005 (Willoughby 2005b) survey data to be the best available information on the distribution and range of *Astragalus magdalenae* var. *peirsonii* on the Algodones Dunes. As discussed in the ``Background'' section of this proposed rule, an exceptional amount of rainfall was recorded during the 2004-2005 growing season, resulting in the highest recorded abundance of the species to date with an estimated 1,831,076 plants (39.8 plants/ac (86 plants/ha)) in the dunes (Willoughby 2005b, pp. 9-11). This rainfall event coincided with the start of BLM's revised survey methodology, which consisted of a more detailed survey approach, as previously described in the “Background” section, and covered a larger portion of the dunes (Willoughby 2005a, pp. 1-5). The 2005 survey contained 123,488 sample points covering an effective area of 53,000 acres. Because these surveys occurred under the best possible growth and germination conditions for the plant and covered the largest area and greatest number of sample point locations, we relied on BLM's raw 2005 survey data as the basis for our criteria and GIS model to delineate proposed critical habitat for *A. m.* var. *peirsonii* . As discussed in further detail below, we used the following criteria to delineate proposed critical habitat:
(1)Areas occupied by the species at the time of listing;
(2)areas occupied at a density greater than 100 plants per ha according to BLM's 2005 survey data (Willoughby 2005b); and
(3)areas containing the features essential to the conservation of the species. As stated in the final listing rule (63 FR 53596), the Algodones Dunes was, and continues to be, the only area in the United States known to be occupied by *Astragalus magdalenae* var. *peirsonii* . We delineated the revised proposed critical habitat boundaries using the following GIS model:
(1)We selected occupied cells (defined in Willoughby (2005b) as 25-m 2 survey areas) with a plant density greater than 100 plants per ha (6 plants per cell) as core areas. About half of the plants observed in 2005 were in cells with a density more than or equal to 100 plants per ha. We used a density of 100 plants per ha since this captured the majority of the large clusters of standing plants. We believe these higher density core areas contain a larger extent of high quality habitat (e.g., suitable dune morphology and soil moisture) and therefore the PCEs required by this species. Also, since these core areas contain higher numbers of standing plants in proximity to each other, we believe that these areas likely support relatively large seed banks (a greater number of seeds being contributed by a greater number of standing plants). Therefore, based on our assumptions that these core areas contain a larger extent of high quality habitat and larger seed banks, we considered these areas most likely to contribute to the recovery of the species.
(2)We expanded each core area to 1 ha then merged 1-ha core areas within 100-m distances of each other to form aggregated core areas. We expanded core areas to one ha to capture the entire population and seed bank in a dune bowl, based on our field observations that most occupied dune bowls are approximately one ha in size. We aggregated the 1-ha core areas within 100 m of each other to maintain space for wind dispersal of seeds between occupied dune bowls. This 100-m distance is a dunes-wide approximation of the average distance between aggregated core areas.
(3)We then eliminated outlying or remote core areas greater than 400 meters (4 bowls) from adjacent core areas and core areas less than 400 m away but with a plant density less than approximately 370 plants (= 0.0005 of the total observed population of 739,805) within the aggregated core area. This step allowed us to remove core areas with low numbers of plants considered not essential to the conservation of the species. Since these areas are a greater distance from aggregated core areas and/or contain relatively fewer standing plants, we believe these areas either contain a smaller extent of high quality habitat (e.g., suitable dune morphology and soil moisture) and/or support relatively small seed banks. Since we were not able to determine the importance of these outlying or remote areas to the long-term conservation of the species, we did not include them in the proposed designation.
(4)We then overlaid a 100-m 2 grid onto the final core areas to define the legal boundaries of the proposed critical habitat. We removed remaining small polygons less than 400 m from the core habitat in which the plant density was low. Since these polygons contained a low number of standing plants, we believe these areas contain a smaller extent of high quality habitat (e.g., suitable dune morphology and soil moisture) and/or support relatively small seed banks. Since we are not able to determine the importance of these lower density areas to the long-term conservation of the species at this time, we did not include them in the proposed designation. This methodology captured approximately 92 percent of the 2005 observed population and includes areas we believe contain high density core populations, a large extent of high quality habitat, and a large seed bank and therefore important for the recovery of the species. Areas meeting the proposed critical habitat boundaries were then analyzed to determine if any existing conservation or management plans exist that benefit the taxon and its PCEs. As discussed in the 2004 final critical habitat rule (69 FR 47330), BLM released a proposed Recreation Area Management Plan
(RAMP)for the ISDRA in 2003 (BLM 2003). The RAMP includes an intensive monitoring/study plan that the BLM has implemented (BLM 2003). As a result of the September 25, 2006, order and injunction regarding final relief, referenced in the “Background” section of this proposed rule, the Environmental Impact Statement associated with the 2003 RAMP was remanded back to the BLM for further consideration. When determining proposed critical habitat boundaries within this proposed rule, we made every effort to avoid including developed areas such as buildings, paved areas, and other structures that lack PCEs for *Astragalus magdalenae* var. *peirsonii* . The scale of the maps prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed areas. Any such structures and the land under them inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, Federal actions limited to these areas would not trigger section 7 consultation, unless they affect the species or primary constituent elements in adjacent critical habitat. Summary of Changes From Previously Designated Critical Habitat The areas identified in this proposed rule constitute a proposed revision of the areas we proposed to designate as critical habitat for *Astragalus magdalenae* var. *peirsonii* on August 5, 2003 (68 FR 46143), and designated on August 4, 2004 (69 FR 47330). The main differences include the following: 1. This proposed revision includes 16,108 ac (6,519 ha) of land in Imperial County, California, a reduction of 36,672 acre (14,840 ha) from the 2003 proposed rule (68 FR 46143) and 5,728 ac (2,329 ha) from the 2004 final critical habitat rule (69 FR 47330). The differences in data and selection criteria between the currently designated critical habitat and this proposed revision are described further below. 2. The reduction in total acreage from the 2003 proposed critical habitat designation is primarily the result of a revised methodology to delineate critical habitat. The model used to delineate critical habitat boundaries in the 2003 proposed rule was based primarily on species survey data collected by the BLM from 1998 through 2002 along transects throughout the areas of the Algodones Dunes occupied by *Astragalus magdalenae* var. *peirsonii* . Each transect was composed of a series of grid squares measuring approximately 0.45 mi 2 . In order to create the model, we used the coarse scale BLM survey data to extrapolate the values for four variables:
(1)The presence or absence of standing plants of *A* . *m* . var. *peirsonii* ;
(2)the abundance of *A* . *m* . var. *peirsonii* ;
(3)the frequency of occurrence of *A* . *m* . var. *peirsonii* over the survey years; and
(4)the number of associated rare psammophytic plant taxa present. These variables were scored, then standardized, and finally compiled. Because of the dynamic nature of the distribution of this plant, the cyclic nature of suitable climatic regimes, and the presence of a seed bank for *A* . *m* . var. *peirsonii* , grid squares where this plant was not found were included in critical habitat if they were contiguous with occupied grid squares (68 FR 46143). The data used to create the 2003 model was considered the best available at that time and allowed us to identify areas known to be occupied by *A* . *m* . var. *peirsonii* as well as areas likely to be occupied based on the presence of suitable habitat ( *e.g.* presence of associated psammophytic plant taxa). As discussed in the “Background” and “Criteria Used to Identify Critical Habitat” sections of this proposed rule, the model used to delineate revised critical habitat boundaries in this revised proposed rule is based on survey data collected by BLM in 2005 (Willoughby 2005b). A higher than average rainfall occurred during the 2004-2005 growing season, resulting in the highest *Astragalus magdalenae* var. *peirsonii* densities to date. Based on these survey data, our revised model uses occupancy and density to outline areas known to be occupied by the species. The model used to delineate the revised proposed critical habitat is based on data collected along a larger number of transects (510 versus 34) during a year of the highest recorded *A* . *m* . var. *peirsonii* abundance. Therefore, the data are more robust, relying primarily on occupancy documented over a larger area of the dunes and at a finer spatial resolution (25 m 2 grid cells) during optimal environmental conditions instead of on the presence of suitable habitat (e.g., the presence of associated rare psammophytic plant taxa) as did the 2003 model. In summary, we consider the model used to delineate revised critical habitat boundaries in this proposed rule to more accurately depict the areas known to be occupied by the species than the model used to delineate the 2003 proposed critical habitat boundaries. We believe that the 2003 designation was more inclusive due to limited data and the rough spatial scale of the data, and the 2005 data now provide more specific and reliable information regarding abundance and distribution, allowing us to more precisely identify habitat essential to the conservation of the species associated with core population areas. Based on the new model, we determined that 36,535 ac (14,785 ha) previously proposed as critical habitat in 2003 are not essential to the conservation of the taxon, and therefore did not include these areas in the revised proposed critical habitat designation. 3. Of the 16,108 ac (6,519 ha) included in this proposed revision to critical habitat, 14 ac (6 ha) in Subunit 3B, 331 ac (134 ha) in Subunit 3C, and 75 ac (30 ha) in Unit 4 were not included in the 2003 proposed critical habitat rule. Also, 9,573 ac (3,874 ha) in Subunits 2A, 2B, 3A, 3B, 3C and all of Unit 4 (218 ac (88 ha)) were not included in the 2004 final rule (see Table 2 below). These 9,573 ac (3,874 ha) were excluded in the 2004 final rule under section 4(b)(2) of the Act as the Secretary determined that the economic benefits of excluding these lands outweighed the conservation benefits of including these lands in the designation due to the large potential economic and human costs of the designation (69 FR 47330). These lands are again under consideration for critical habitat in this proposed revision to critical habitat. All lands proposed for critical habitat have been re-evaluated in a revised economic analysis, consistent with the lawsuit discussed in the “Previous Federal Actions” section of this proposed rule. The new draft economic analysis is available for public review and comment concurrently with this rule (see “Economic Analysis” section below). Based on public comment and information in the economic analysis, habitat being proposed as critical habitat herein may be excluded from final critical habitat by the Secretary under the provisions of section 4(b)(2) of the Act and in our implementing regulations at 50 CFR 424.19. Table 2 below outlines the changes in Unit/Subunit number and area between the 2003 proposed critical habitat rule, the 2004 final critical habitat rule, and the 2007 revised proposed critical habitat rule for *Astragalus magdalenae* var. *peirsonii* . Table 2.—Changes in Unit/Subunit Numbering and Area (in acres
(ac)and Hectares (ha)) Between the 2003 Proposed Critical Habitat Rule, the 2004 Final Critical Habitat Rule, and the 2007 Revised Proposed Critical Habitat Rule for *Astragalus magdalenae* var. *peirsonii* 2003 proposed rule (68 FR 46143) Unit/ Subunit Area (ac (ha)) 2004 Final rule (69 FR 47330) Unit/ Subunit Area (ac (ha)) 2007 revised proposed rule Unit/ Subunit Area (ac (ha)) 1A 16,510 (6,681) 1A 16,509 (6,681) 1A, 1B, 1C, 1D 4,675 (1,892) 1B 34,333 (13,894) 1B 1 5,355 (2,167) 2A, 2B, 3A, 3B, 3C 4 11,215 (4,539) 1C 1,490
(603)1C 2 0
(0)4 5 218
(88)1D 447
(181)1D 3 0
(none)Totals 52,780 (21,359) 21,863 (8,848) 16,108 (6,519) 1 28,978 ac (11,727 ha) excluded from final designation under section 4(b)(2) of the Act. 2 Excluded from the final designation under section 4(b)(2) of the Act. 3 Removed from the final designation; not essential to the conservation of the species. 4 Includes 331 ac (134 ha) not included in the 2004 final designation. 5 Includes 75 ac (30 ha) not designated in the 2004 final designation. Proposed Revisions to the Critical Habitat Designation We are proposing approximately 16,245 ac (6,574 ha) as critical habitat for *Astragalus magdalenae* var. *peirsonii* within 4 units further divided into 9 subunits. These lands are under Federal (15,995 ac (6,473 ha)), private (239 ac (97 ha)), and State (11 ac (4 ha)) ownership. The approximate area (ac (ha)) encompassed within each proposed critical habitat unit/subunit and landownership is shown in Table 3 below. We are not proposing to exclude under section 4(b)(2) any areas from the final designation (see “Exclusions Under Section 4(b)(2) of the Act” for a detailed discussion). These units generally correspond to those units in the 2004 designation (see Table 2), and if finalized would entirely replace the current critical habitat designation for *A. m.* var. *peirsonii* in 50 CFR 17.95(a). The critical habitat areas described below constitute our best current assessment of areas determined to be occupied at the time of listing on which are found the primary constituent elements that may require special management considerations or protection. Table 3.—Proposed Critical Habitat (acres (ac), Hectares (ha)) for *Astragalu magdalenae* var. *peirsonii* [Area estimates reflect all land within critical habitat unit boundaries.] Critical habitat unit Critical habitat subunit Land ownership 1 Total area (ac (ha)) Unit 1—Mammoth Wash/North Algodones Dunes Wilderness 4,675 (1,892) Subunit 1A BLM 203
(82)Private 218
(88)Subunit 1B BLM 1,389
(562)Private 22
(9)Subunit 1C BLM 730
(296)State 11
(4)Subunit 1D BLM 2,103
(851)Unit 2—Gecko/Glamis 4,003 (1,620) Subunit 2A BLM 2,716 (1,099) Subunit 2B BLM 1,287
(521)Unit 3—Adaptive Management Area/Ogilby 7,212 (2,919) Subunit 3A BLM 4,487 (1,816) Subunit 3B BLM 1,176
(476)Subunit 3C BLM 1,549
(627)Unit 4—Buttercup BLM 218
(88)Total 16,108 (6,519) 1 BLM = Bureau of Land Management; State = California State Lands Commission. We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for *Astragalus magdalenae* var. *peirsonii* , below. Unit 1—Mammoth Wash/North Algodones Dunes Wilderness (4,675 ac (1,892 ha)) Unit 1 consists of 4,675 ac (1,892 ha) of land, further divided into 4 subunits (1A, 1B, 1C, 1D), primarily under BLM ownership (Table 2). This unit includes land in the BLM's Mammoth Wash and North Algodones Dunes Wilderness Management Areas. Subunits 1A (421 ac (170 ha)) and 1B (1,411 ac (571 ha)) Subunits 1A and 1B are in the Mammoth Wash area. About half of the land in Subunit 1A is under BLM ownership, and the other half is under private ownership (Table 2). The majority of the land in Subunit 1B is owned by the BLM (Table 2). Both subunits were occupied at the time of listing, are currently occupied, and contain all of the features (PCEs 1, 2, and 3) essential to the conservation of the species. Additionally, habitat in Subunits 1A and 1B supports the largest numbers of *Astragalus magdalenae* var. *peirsonii* in the Mammoth Wash Management Area, with approximately 8,002 plants observed in Subunit 1A and 24,623 plants observed in Subunit 1B (based on our calculations using BLM's 2005 raw survey data). Habitat within these subunits contains a higher density of standing plants and is likely to support a large seed bank based on our analysis of BLM's 2004 survey data in addition to containing the PCEs required by the species. The Mammoth Wash Management Area is used for camping, hunting, rights of way, motion picture/television filming, and OHV recreation (BLM 2003, p. 67). The majority of Subunit 1B is within an interim closure area, temporarily closed to OHV activity. Because the area outside of the interim closure area is remote and difficult to access, OHV recreationists give it relatively light visitation on holiday weekends and minimal visitation during the week (BLM 2003, p. 67). This management area had the lowest average annual visitation (approximately 80 vehicles) of all management areas open for OHV use during the 2003-2004, 2004-2005, and 2005-2006 seasons (BLM 2006). The PCEs found in Subunit 1A may require special management considerations or protection such as use restrictions and/or additional enforcement to minimize impacts associated with OHV use and associated recreational activity. The majority of the habitat in Subunit 1B is currently being managed by the BLM to minimize impacts associated with OHV use through an interim closure of the area. However, regardless of the future status of this interim closure area, the PCEs found in this subunit may require special management considerations or protection, such as OHV-use restrictions and/or additional enforcement in the future to minimize impacts associated with OHV recreation (see “Special Management Considerations or Protection” section). Subunits 1C (741 ac (300 ha)) and 1D (2,103 ac (851 ha)) The majority of land in Subunit 1C and all of the land in Subunit 1D is owned by the BLM (Table 2). Both subunits were occupied at the time of listing, are currently occupied, and contain all of the features (PCEs 1, 2, and 3) essential to the conservation of the species. Additionally, habitat in Subunits 1C and 1D retains the most natural and pristine features of the Algodones Dunes ecosystem, and includes the best remaining example of a dune system undisturbed by intensive OHV recreation in the ISDRA. These areas also support the largest numbers of *Astragalus magdalenae* var. *peirsonii* in the North Algodones Dunes Wilderness Management Area with approximately 15,519 plants observed in Subunit 1C and 42,673 plants observed in Subunit 1D (based on our calculations using BLM's 2005 raw survey data. Habitat within these subunits contains a higher density of standing plants and is likely to support a large seed bank based on our analysis of BLM's 2004 survey data in addition to containing the PCEs required by the species. The North Algodones Dunes Wilderness Management Area is a 32,000-ac (12,955 ha) area that was designated as a wilderness area in 1994 to protect a number of rare and endemic plant and animal species, including *Astragalus magdalenae* var. *peirsonii* . Activities in this area include photographic activities, sightseeing, walking, hiking, backpacking, camping, nature study, horseback riding, hunting, rights-of-way, and wildlife viewing (BLM 2003, p. 71). No recreational use of mechanized vehicles of any kind (OHVs, motorcycles, bicycles, hang gliders, motorized equipment, or motorboats) is allowed in the wilderness area; management takes the form of “minimal and subtle on-site controls and restrictions” (Willoughby 2003). However, people occasionally trespass with motorized vehicles, and the BLM acknowledges that the amount of motorized trespasses in this area should be reduced (BLM 2003, p. 71). The PCEs found in both subunits may require special management considerations or protection, such as additional enforcement to minimize impacts associated with unauthorized trespass by motorized vehicles (see “Special Management Considerations or Protection” section). Unit 2—Gecko/Glamis (4,003 ac (1,620 ha)) Unit 2 consists of 4,003 ac (1,620 ha) of land further divided into 2 subunits (2A and 2B) entirely under BLM ownership (Table 2). This unit includes lands in the BLM's Gecko and Glamis Management Areas, with the majority being in the Gecko Management Area. Subunits 2A (2,716 ac (1,099 ha)) and 2B (1,287 ac (521 ha)) Both subunits were occupied at the time of listing, are currently occupied, and contain all of the features (PCEs 1, 2, and 3) essential to the conservation of the species. Additionally, habitat in Subunits 2A and 2B supports the largest numbers of *Astragalus magdalenae* var. *peirsonii* in the Gecko/Glamis Management Areas with approximately 37,234 plants observed in Subunit 2A and 20,865 plants observed in Subunit 2B (based on our calculations using BLM's 2005 raw survey data). Habitat within these subunits contains a higher density of standing plants and is likely to support a large seed bank based on our analysis of BLM's 2004 survey data in addition to containing the PCEs required by the species. Subunits 2A and 2B are almost entirely within BLM's Gecko Management Area, the most developed of the eight management areas within the ISDRA. It contains campgrounds, toilets, trash stations, camping pads, overlooks, commercial vending, and a ranger station (BLM 2003, pp. 75-76). The Gecko Management Area had the highest average annual visitation (approximately 144,421 vehicles) of the management areas open for OHV use during the 2003-2004, 2004-2005, and 2005-2006 seasons (BLM 2006). However, the majority of Subunit 2B is within an interim closure area, temporarily closed to OHV activity. The PCEs found in Subunit 2A may require special management considerations or protection, such as use restrictions and/or additional enforcement to minimize impacts associated with intensive OHV activity. The majority of the habitat in Subunit 2B is currently being managed by the BLM to minimize impacts associated with OHV-use through an interim closure of the area. However, regardless of the future status of this interim closure area, the PCEs found in this subunit may require special management considerations or protection such as OHV-use restrictions and/or additional enforcement in the future to minimize impacts associated with OHV recreation (see “Special Management Considerations or Protection” section). Unit 3—Adaptive Management Area (AMA)/Ogilby (7,212 ac (2,919 ha)) Unit 3 consists of (7,212 ac (2,919 ha)) of land further divided into 3 subunits (3A, 3B, 3C) entirely under BLM ownership (Table 2). This unit includes lands in the BLM's AMA and Ogilby Management Area. Subunits 3A (4,487 ac (1,816 ha)), 3B (1,176 ac (476 ha)), and 3C (1,549 ac (627 ha)) All three subunits were occupied at the time of listing, are currently occupied, and contain all of the features (PCEs 1, 2, and 3) essential to the conservation of the species. Additionally, habitat in Subunits 3A, 3B, and 3C represents the largest, widest, and highest sand dune fields within the Algodones Dunes and supports the largest numbers of *Astragalus magdalenae* var. *peirsonii* dunes-wide, with approximately 200,021 plants observed in Subunit 3A; 178,837 plants observed in Subunit 3B; and 125,526 plants observed in Subunit 3C (based on our calculations using BLM's 2005 raw survey data). Habitat within these subunits contains a higher density of standing plants and is likely to support a large seed bank based on our analysis of BLM's 2004 survey data in addition to containing the PCEs required by the species. All of Subunit 3A and about half of Subunit 3B are in the BLM's AMA. The other half of Subunit 3B and all of Subunit 3C are in the Ogilby Management Area. The AMA is intended primarily for OHV recreation, although there is also rights-of-way use (BLM 2003, p. 84). However, the entire AMA, including all of Subunit 3A and most of Subunit 3B, is within an interim closure area, temporarily closed to OHV activity. The Ogilby Management Area is used for camping, OHV recreation, and rights-of-way (BLM 2003, p. 90). A portion of the Ogilby Management Area, including a small portion of Subunit 3C, is within an interim closure area, temporarily closed to OHV activity. Areas of the Ogilby Management Area open to OHV use had average annual visitation of approximately 12,951 vehicles during the 2003-2004, 2004-2005, and 2005-2006 seasons (BLM 2006). The PCEs found in Subunit 3C not within the interim closure area may require special management considerations or protection such as use restrictions and/or additional enforcement to minimize impacts associated with OHV recreation. Habitat in Subunits 3A and 3B, and a small portion of Subunit 3C, are currently being managed by the BLM to minimize impacts associated with OHV use through an interim closure of the area. However, regardless of the future status of this interim closure area, the PCEs found in these subunits may require special management considerations or protection such as OHV-use restrictions and/or additional enforcement in the future to minimize impacts associated with OHV recreation (see “Special Management Considerations or Protection” section). Unit 4—Buttercup (218 ac (88 ha)) Unit 4 consists of 218 ac (88 ha) of land entirely under BLM ownership (Table 2). This unit includes lands in the BLM's Buttercup Management Area. This unit was occupied at the time of listing, is currently occupied, and contains all of the features (PCEs 1, 2, and 3) essential to the conservation of the species. Additionally, habitat in Unit 4 supports the largest number of *Astragalus magdalenae* var. *peirsonii* in the Buttercup Management Area with approximately 30,011 plants observed (based on our calculations using BLM's 2005 raw survey data). Habitat within these subunits contains a higher density of standing plants and is likely to support a large seed bank based on our analysis of BLM's 2004 survey data in addition to containing the PCEs required by the species. This area is used for camping, OHV recreation, sightseeing, commercial vending, education, filming and rights of way (BLM 2003, p. 97). The Buttercup Management Area had the second highest average annual visitation (approximately 78,629 vehicles) of the management areas open for OHV use during the 2003-2004, 2004-2005, and 2005-2006 seasons (BLM 2006). Due to its proximity to Mexico, there are also many United States—Mexico international border issues (e.g. illegal border crossings and smuggling of goods and contraband) in this management area requiring frequent patrol by the U.S. Border Patrol (BLM 2003, p. 97). The PCEs found in Unit 4 may require special management considerations or protection such as use restrictions and/or additional enforcement to minimize impacts associated with intensive OHV activity (see “Special Management Considerations or Protection” section). Effects of Critical Habitat Designation Section 7 Consultation Section 7(a) of the Act requires Federal agencies, including the Service, to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is proposed or designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. Decisions by the 5th and 9th Circuit Court of Appeals have invalidated our definition of adversely modify (see *Gifford Pinchot Task Force* v. *U.S. Fish and Wildlife Service,* 378 F. 3d 1059 (9th Cir 2004) and *Sierra Club* v. *U.S. Fish and Wildlife Service et al.,* 245 F.3d 434, 442F (5th Cir 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Pursuant to current national policy and the statutory provisions of the Act, destruction or adverse modification is determined on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the primary constituent elements to be functionally established) to serve its intended conservation role for the species. Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. This is a procedural requirement only. However, once a proposed species becomes listed, or proposed critical habitat is designated as final, the full prohibitions of section 7(a)(2) apply to any Federal action. The primary utility of the conference procedures is to maximize the opportunity for a Federal agency to adequately consider proposed species and critical habitat and avoid potential delays in implementing their proposed action because of the section 7(a)(2) compliance process, should those species be listed or the critical habitat designated. Under conference procedures, the Service may provide advisory conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The Service may conduct either informal or formal conferences. Informal conferences are typically used if the proposed action is not likely to have any adverse effects to the proposed species or proposed critical habitat. Formal conferences are typically used when the Federal agency or the Service believes the proposed action is likely to cause adverse effects to proposed species or critical habitat, inclusive of those that may cause jeopardy or adverse modification. The results of an informal conference are typically transmitted in a conference report, while the results of a formal conference are typically transmitted in a conference opinion. Conference opinions on proposed critical habitat are typically prepared according to 50 CFR 402.14, as if the proposed critical habitat were designated. We may adopt the conference opinion as the biological opinion when the critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)). As noted above, any conservation recommendations in a conference report or opinion are strictly advisory. If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. As a result of this consultation, compliance with the requirements of section 7(a)(2) will be documented through the Service's issuance of:
(1)A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2)a biological opinion for Federal actions that are likely to adversely affect listed species or critical habitat. When we issue a biological opinion concluding that a project is likely to result in jeopardy to a listed species or the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. “Reasonable and prudent alternatives” are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid jeopardy to the listed species or destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in certain instances, including where a new species is listed or critical habitat is subsequently designated that may be affected by the Federal action and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions may affect subsequently listed species or designated critical habitat or adversely modify or destroy proposed critical habitat. Federal activities that may affect the *Astragalus magdalenae* var. *peirsonii* or its designated critical habitat require section 7(a)(2) consultation under the Act. Activities on State, Tribal, local or private lands requiring a Federal permit (such as a permit from the Corps under section 404 of the Clean Water Act or a permit under section 10(a)(1)(B) of the Act from the Service) or involving some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency) are also subject to the section 7(a)(2) consultation process. Federal actions not affecting listed species or critical habitat, and actions on State, Tribal, local or private lands that are not federally funded, authorized, or permitted, do not require section 7(a)(2) consultations. Application of the Jeopardy and Adverse Modification Standards for Actions Involving Effects to the Astragalus magdalenae var. peirsonii and Its Critical Habitat Jeopardy Standard Prior to and following designation of critical habitat, the Service has applied an analytical framework for *Astragalus magdalenae* var. *peirsonii* jeopardy analyses that relies heavily on the importance of core area populations to the survival and recovery of *A. m.* var. *peirsonii* . The section 7(a)(2) analysis is focused not only on these populations but also on the habitat conditions necessary to support them. The jeopardy analysis usually expresses the survival and recovery needs of the *Astragalus magdalenae* var. *peirsonii* in a qualitative fashion without making distinctions between what is necessary for survival and what is necessary for recovery. Generally, if a proposed Federal action is incompatible with the viability of the affected core area population(s), inclusive of associated habitat conditions, a jeopardy finding is warranted because of the relationship of each core area population to the survival and recovery of the species as a whole. Adverse Modification Standard For the reasons described in the Director's December 9, 2004, memorandum, the key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the primary constituent elements to be functionally established) to serve its intended conservation role for the species. Generally, the conservation role of *Astragalus magdalenae* var. *peirsonii* critical habitat units is to support viable core populations. Section 4(b)(8) of the Act requires us to briefly evaluate and describe in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat would be those that alter the primary constituent elements to the extent that the value of critical habitat for the conservation of *Astragalus magdalenae* var. *peirsonii* is appreciably reduced. Such activities may also jeopardize the continued existence of the species. Nearly the entire designated critical habitat is on BLM lands. Activities on BLM lands or by Federal agencies that may affect *Astragalus magdalenae* var. *peirsonii* or its critical habitat require section 7(a)(2) consultation. Activities on private or State lands requiring a permit from BLM or any other activity requiring Federal action (i.e., funding or authorization) that may affect this species or its critical habitat will also continue to be subject to the section 7(a)(2) consultation requirement. Federal actions not affecting *A. m.* var. *peirsonii* or its critical habitat, as well as actions on non-Federal lands that are not federally funded or permitted, will not require section 7(a)(2) consultations for this species. The areas proposed to be designated as critical habitat are occupied by either above-ground plants or a soil seed bank of *Astragalus magdalenae* var. *peirsonii.* BLM and other Federal agencies already consult with us on activities where the species may be present to ensure that their actions do not jeopardize the continued existence of the species or destroy or adversely modify its currently designated critical habitat. Actions on which Federal agencies consult with us on effects to *A. m.* var. *peirsonii* or its critical habitat include, but are not limited to:
(1)Development of the Recreational Area Management Plan for the Imperial Sand Dunes Recreation Area by the Bureau of Land Management;
(2)Issuance of permits for private actions (e.g. filming) on Federal lands within the Algodones Dunes by the Bureau of Land Management;
(3)Modifications to the All American Canal by the Bureau of Reclamation; and
(4)Construction and maintenance of facilities by the U.S. Border Patrol. Activities that, when carried out, funded, or authorized by a Federal agency, may affect critical habitat and require that a section 7(a)(2) consultation be conducted include, but are not limited to:
(1)Activities that disrupt the natural processes that support dune formation, movement, and structure; or otherwise change the morphology of the dunes (e.g., ridges, slip faces, bowls, swales); and
(2)Activities that degrade or diminish psammophytic scrub, including activities that
(a)disturb the sand such that soil moisture is lost resulting in decreased seed germination or desiccation of plants resulting in premature death, or
(b)bury or expose seeds resulting in decreased seed germination; or
(c)physically impact or dislodge plants resulting in premature death. We consider all of the units proposed as critical habitat to contain features essential to the conservation of *Astragalus magdalenae* var. *peirsonii.* All units are within the geographic range of this taxon, all were occupied by the species at the time of listing, and are currently occupied by the *A. m.* var. *peirsonii.* Federal agencies already consult with us on activities in areas currently occupied by *A. m.* var. *peirsonii,* or if the species or its currently designated critical habitat may be affected by the action, to ensure that their actions do not jeopardize the continued existence of *A. m.* var. *peirsonii* or destroy or adversely modify its designated critical habitat. Exclusions Under Section 4(b)(2) of the Act Section 4(b)(2) of the Act states that critical habitat shall be designated, and revised, on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the Congressional Record is clear that the Secretary is afforded broad discretion regarding which factor(s) to use and how much weight to give to any factor. However, we are not proposing to exclude any lands under provisions of section 4(b)(2) in this proposed rule. Economic Analysis An analysis of the economic impacts of the revised proposal of critical habitat for *Astragalus magdalenae* var. *peirsonii* is available for review and comment. The comment period for the draft economic analysis runs concurrently with the comment period for this proposed rule. Copies of the draft economic analysis are available for downloading from the Internet at *http://www.fws.gov/carlsbad/* or by contacting the Carlsbad Fish and Wildlife Office directly (see ADDRESSES section). The draft economic analysis considers the potential economic effects of actions relating to the conservation of *Astragalus magdalenae* var. *peirsonii,* including costs associated with sections 4, 7, and 10 of the Act, and specifying the incremental effects attributable to designating critical habitat. It further considers the economic effects of protective measures taken as a result of other Federal, State, and local laws that aid habitat conservation for *A. m.* var. *peirsonii* in habitat areas with features essential to the conservation of this taxon. The analysis considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources to comply with habitat protection measures (e.g., lost economic opportunities associated with restrictions on land use). This analysis also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. This information can be used by decision-makers to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, this analysis looks retrospectively at costs that have been incurred since the date the species was listed as an endangered species and considers those costs that may occur in the 20 years following the designation of critical habitat (i.e., 2008-2027). This analysis quantifies potential economic impacts that may result from the designation of critical habitat. Specifically, the analysis quantifies the impact of a loss of OHV trips that could result from the potential closures of portions of the critical habitat as a result of the designation, as well as expected administrative and project modification costs attributable to critical habitat designation. Additionally, the analysis provides information on the full value of OHV use of the ISDRA in the absence of closures resulting from critical habitat. The analysis also quantifies administrative costs attributable to critical habitat designation, potential project modification costs attributable to critical habitat, and potential public cost savings. At the lower bound, in the absence of closures to OHV use resulting from critical habitat, only impacts related to administrative efforts are expected. At the upper bound, the forecast impacts assume this designation will result in restrictions in OHV use, and that as a result of these restrictions, some OHV recreationists may no longer visit the ISDRA, potentially resulting in a consumer surplus loss. Specifically, upper bound impacts reflect a potential loss of visitation in portions of the area proposed for critical habitat. Within the upper bound scenario, a range of impacts is estimated, representing differing assumptions underlying the forecast visitation growth rate for the ISDRA. The total potential post-designation efficiency impacts for 2008-2027 range from a lower bound of zero to an upper bound range of $91.8 million in undiscounted dollars. In annualized terms, the impacts range from zero to $4.59 million. At a three percent discount rate, the impacts range from zero to $67.7 million over 20 years. At a seven percent discount rate, the impacts range from zero to $47.6 million over 20 years. We solicit data and comments from the public on these draft documents, as well as on all aspects of the proposal. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species. Peer Review In accordance with our joint policy published in the **Federal Register** on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure that our critical habitat designation is based on scientifically sound data, assumptions, and analyses. We will send copies of this proposed rule to these peer reviewers immediately following publication in the **Federal Register** . We will invite these peer reviewers to comment during the public comment period on the specific assumptions and conclusions regarding the proposed designation of critical habitat. We will consider all comments and information received during the comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final decision may differ from this proposal. Public Hearings The Act provides for one or more public hearings on this proposal, if requested. Upon publication of this proposed rule, we are announcing that public hearings will be held on both the proposed critical habitat rule and the draft economic analysis on August 23, 2007, from 1 p.m. to 3 p.m. and 6 p.m. to 8 p.m. at the Carlsbad Fish and Wildlife Office in Carlsbad, California (see ADDRESSES ). The location, date, and times of these public hearings will also be announced in local newspapers at least 15 days prior to the first hearing. Clarity of the Rule Executive Order 12866 (Regulatory Planning and Review) requires each agency to write regulations and notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following:
(1)Are the requirements in the proposed rule clearly stated?
(2)Does the proposed rule contain technical jargon that interferes with the clarity?
(3)Does the format of the proposed rule (grouping and order of the sections, use of headings, paragraphing, and so forth) aid or reduce its clarity?
(4)Is the description of the notice in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the proposed rule?
(5)What else could we do to make this proposed rule easier to understand? Send a copy of any comments on how we could make this proposed rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may e-mail your comments to this address: *Exsec@ios.doi.gov* . Required Determinations Regulatory Planning and Review In accordance with Executive Order 12866, this revised proposed designation of critical habitat is a significant rule in that it may raise novel legal and policy issues. Based on our draft economic analysis of the proposed revised critical habitat designation, the total potential post-designation efficiency impacts for 2008-2027 range from a lower bound of zero impact to an upper bound of $91.8 million in undiscounted dollars. In annualized terms, the impacts would range from zero to $4.59 million. At a three percent discount rate, the impacts would be zero to 67.7 million over 20 years. At a seven percent discount rate, the impacts would be zero to $47.6 million over 20 years. Therefore, based on our draft economic analysis, we have determined that the proposed revised critical habitat designation for *Astragalus magdalenae* var. *peirsonii* will not result in an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the tight timeline for publication in the **Federal Register** , the Office of Management and Budget
(OMB)has not formally reviewed this rule. Further, E.O. 12866 directs Federal agencies promulgating regulations to evaluate regulatory alternatives (Office of Management and Budget, Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it has determined that the Federal regulatory action is appropriate, the agency will then need to consider alternative regulatory approaches. Since the determination of critical habitat is a statutory requirement pursuant to the Act, we must then evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat. In developing our designations of critical habitat, we consider economic impacts, impacts to national security, and other relevant impacts pursuant to section 4(b)(2) of the Act. Based on the discretion allowable under this provision, we may exclude any particular area from the designation of critical habitat providing that the benefits of such exclusion outweigh the benefits of specifying the area as critical habitat and that such exclusion would not result in the extinction of the species. As such, we believe that the evaluation of the inclusion or exclusion of particular areas, or combination thereof, in a designation constitutes our regulatory alternative analysis. Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act
(RFA)to require Federal agencies to provide a statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. Based upon our draft economic analysis of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments received, this determination is subject to revision as part of the final rulemaking. According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations. To determine if this proposed designation of critical habitat for *Astragalus magdalenae* var. *peirsonii* would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (e.g., OHV recreation). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies; non-Federal activities are not affected by the designation. Typically, when proposed critical habitat designations are made final, Federal agencies must consult with us if their activities may affect that designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process. In our economic analysis of this proposed designation, we evaluated the potential economic effects on small business entities resulting from conservation actions related to proposed designation of critical habitat for *Astragalus magdalenae* var. *peirsonii* . In our analysis of impacts to small entities (appendix A of draft economic analysis, we estimated that a total of up to 827 small entities in OHV-related sectors could be impacted by critical habitat designation, with 398 of those businesses in Imperial County and 429 in Yuma County. Exhibit A-4 of our Draft Economic Analysis (on page A-8) presents an estimated “per business impact to small entities.” In Imperial County, the average impact per small entity is estimated to be $44,300, which is 3.22% of the estimated average per business annual sales of $1,370,000. In Yuma County the average impact per small entity is estimated to be $7,400, which is 0.51% of the estimated average per business annual sales of $1,440,000. The composite average for both Counties is estimated to be $25,400 per small entity, which is 1.78% of the estimated average per business annual sales of $1,410,000. Although a number of small entities will be affected by the designation, we do not believe the economic impact will be significant. Therefore, we certify that this proposed regulation will not result in a significant economic impact on a substantial number of small business entities. Please refer to our draft economic analysis of this designation for a more detailed discussion of potential economic impacts. Executive Order 13211 On May 18, 2001, the President issued an Executive Order (E.O. 13211; Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Energy-related impacts associated with the proposed *A. m.* var. *peirsonii* critical habitat are not expected. As noted by BLM, the likelihood of any energy-related activity occurring within the proposed critical habitat is minimal for a number of reasons. First, utility corridors exist outside of the proposed critical habitat area. Second, areas of the ISDRA likely to experience development are not included in the proposed designation. Third, the construction and maintenance of projects (such as utility lines) away from current roads, canals, and railways and through the central, more remote portions of the dunes is likely to be economically infeasible. Thus, this proposed designation is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:
(a)This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government’s responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except
(i)a condition of Federal assistance or
(ii)a duty arising from participation in a voluntary Federal program.” The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.
(b)We do not believe that this rule will significantly or uniquely affect small governments, because the majority of the lands (98 percent) involved in the proposed designation are federally owned. As such, Small Government Agency Plan is not required. However, we will, further evaluate this issue as we conduct our economic analysis and review and revise this assessment as warranted. Takings In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of designating critical habitat for the *Astragalus magdalenae* var. *peirsonii* in a takings implications assessment. The takings implications assessment concludes that this designation of critical habitat for *A. m.* var. *peirsonii* does not pose significant takings implications. However, we will, further evaluate this issue as we conduct our economic analysis and review and revise this assessment as warranted. Federalism In accordance with Executive Order 13132 (Federalism), the rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this proposed critical habitat designation with appropriate State resource agencies in California. The majority of the lands (98 percent) involved in the proposed designation are federally owned and, therefore, the proposed designation has little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments in that the areas that contain the features essential to the conservation of the species are more clearly defined, and the primary constituent elements of the habitat necessary to the conservation of the species are specifically identified. While making this definition and identification does not alter where and what federally sponsored activities may occur, it may assist these local governments in long-range planning (rather than waiting for case-by-case section 7 consultations to occur). Civil Justice Reform In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Endangered Species Act. This proposed rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of *Astragalus magdalenae* var. *peirsonii* . Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act It is our position that, outside the Tenth Circuit, we do not need to prepare environmental analyses as defined by the NEPA in connection with designating critical habitat under the Endangered Species Act of 1973, as amended. We published a notice outlining our reasons for this determination in the **Federal Register** on October 25, 1983 (48 FR 49244). This assertion was upheld in the courts of the Ninth Circuit ( *Douglas County* v. *Babbitt* , 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996)). Government-to-Government Relationship With Tribes In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We have determined that there are no Tribal lands occupied at the time of listing that contain the features essential for the conservation and no Tribal lands that are unoccupied areas that are essential for the conservation of *Astragalus magdalenae* var. *peirsonii.* Therefore, designation of critical habitat for *A. m.* var. *peirsonii* has not been designated on Tribal lands. References Cited A complete list of all references cited in this rulemaking is available for downloading from the Internet at *http://www.fws.gov/carlsbad/* or by contacting the Carlsbad Fish and Wildlife Office directly (see ADDRESSES section). Author(s) The primary authors of this package are Tannika Engelhard and Lloyd B. McKinney of the Carlsbad Fish and Wildlife Office. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted. 2. In § 17.96 (h), revise the entry for “Fabaceae: *Astragalus magdalenae* var. *peirsonii* (Peirson's milk-vetch)” under “FLOWERING PLANTS” to read as follows: § 17.96 Critical habitat—plants.
(a)*Flowering plants.* Family Fabaceae: *Astragalus magdalenae* var. *peirsonii* (Peirson's milk-vetch)
(1)Critical habitat units are depicted for this species are found in Imperial County, California, on the maps below.
(2)The primary constituent elements of critical habitat for *Astragalus magdalenae* var. *peirsonii* are the habitat components that provide:
(i)West and/or northwest-facing sides of bowls, swales, and slopes consisting of Rositas fine sands within intact, active sand dune systems (defined as sand areas that are subject to sand-moving winds) in the existing range of the species that provide space needed for individual and population growth, including sites for germination, reproduction, seed dispersal, seed bank, and pollination;
(ii)The associated co-adapted psammophytic scrub plant community characterized by *Croton wigginsii, Eriogonum deserticola, Helianthus niveus* ssp. *tephrodes, Palafoxia arida* var. *gigantean, Pholisma sonorae, Tiquilia plicata, Petalonyx thurberi,* and *Panicum urvilleanum* that provides habitat for insect pollinators, particularly the white-faced digger bee ( *Habropoda pallida* ), required for reproduction; and
(iii)Areas within intact, active sand dune systems between occupied bowls, swales, and slopes that allow for pollinator movement and wind dispersal of fruit and seeds.
(3)Critical habitat does not include manmade structures, such as buildings, aqueducts, airports, roads, and the land on which such structures are located existing on the effective date of this rule and not containing one or more of the primary constituent elements.
(4)Critical habitat map units. Data layers defining map units were created using USGS 1:24,000 quadrangles.
(5)Note: Index map (Map 1) follows: BILLING CODE 4310-55-P EP27JY07.000 BILLING CODE 4310-55-C
(6)Unit 1: Imperial County, California.
(i)Subunit 1A, Mammoth Wash, Imperial County, California. From USGS 1:24,000 quadrangles Amos and Tortuga, lands bounded by the following UTM NAD83 coordinates (E, N): 657000, 3668000; 657300, 3668000; 657300, 3667900; 657400, 3667900; 657400, 3667800; 657500, 3667800; 657500, 3667700; 657600, 3667700; 657600, 3667400; 657800, 3667400; 657800, 3667200; 657900, 3667200; 657900, 3667100; 658000, 3667100; 658000, 3666900; 658100, 3666900; 658100, 3666700; 658200, 3666700; 658200, 3666500; 658100, 3666500; 658100, 3666400; 658200, 3666400; 658200, 3666300; 658300, 3666300; 658300, 3666200; 658400, 3666200; 658400, 3665900; 657900, 3665900; 657900, 3666000; 657700, 3666000; 657700, 3666100; 657600, 3666100; 657600, 3666200; 657400, 3666200; 657400, 3666500; 657300, 3666500; 657300, 3666600; 657100, 3666600; 657100, 3667000; 657000, 3667000; 657000, 3667200; 656900, 3667200; 656900, 3667400; 656800, 3667400; 656800, 3667500; 656700, 3667500; 656700, 3667700; 656800, 3667700; 656800, 3667800; 657000, 3667800; thence returning to 657000, 3668000.
(ii)Subunit 1B, Mammoth Wash, Imperial County, California. From USGS 1:24,000 quadrangle Amos, lands bounded by the following UTM NAD83 coordinates (E, N): 658700, 3665900; 659100, 3665900; 659100, 3665800; 659200, 3665800; 659200, 3665500; 659100, 3665500; 659100, 3665400; 659300, 3665400; 659300, 3665300; 659600, 3665300; 659600, 3665200; 659700, 3665200; 659700, 3665100; 659800, 3665100; 659800, 3665000; 659700, 3665000; 659700, 3664800; 659600, 3664800; 659600, 3664600; 659500, 3664600; 659500, 3664500; 659800, 3664500; 659800, 3664600; 659900, 3664600; 659900, 3664800; 660300, 3664800; 660300, 3664300; 660200, 3664300; 660200, 3664200; 660300, 3664200; 660300, 3664100; 660600, 3664100; 660600, 3663700; 660700, 3663700; 660700, 3663600; 660900, 3663600; 660900, 3663500; 661000, 3663500; 661000, 3663400; 661200, 3663400; 661200, 3663000; 661300, 3663000; 661300, 3662900; 661600, 3662900; 661600, 3662800; 661700, 3662800; 661700, 3662600; 662000, 3662600; 662000, 3662500; 662600, 3662500; 662600, 3662300; 662500, 3662300; 662500, 3662200; 662300, 3662200; 662300, 3662000; 662600, 3662000; 662600, 3661900; 663000, 3661900; 663000, 3661700; 663100, 3661700; 663100, 3661500; 663200, 3661500; 663200, 3661200; 663100, 3661200; 663100, 3661100; 663000, 3661100; 663000, 3661000; 662700, 3661000; 662700, 3660800; 662500, 3660800; 662500, 3660900; 662400, 3660900; 662400, 3661100; 661900, 3661100; 661900, 3661300; 661800, 3661300; 661800, 3661600; 661700, 3661600; 661700, 3662100; 661300, 3662100; 661300, 3662000; 661100, 3662000; 661100, 3662400; 661000, 3662400; 661000, 3662300; 660700, 3662300; 660700, 3662500; 660500, 3662500; 660500, 3662600; 660400, 3662600; 660400, 3662700; 660300, 3662700; 660300, 3663100; 660200, 3663100; 660200, 3663400; 659900, 3663400; 659900, 3663500; 659800, 3663500; 659800, 3663800; 659600, 3663800; 659600, 3664200; 659500, 3664200; 659500, 3664300; 659400, 3664300; 659400, 3664100; 659100, 3664100; 659100, 3664200; 659000, 3664200; 659000, 3664500; 658900, 3664500; 658900, 3664800; 658800, 3664800; 658800, 3664700; 658600, 3664700; 658600, 3664800; 658500, 3664800; 658500, 3665200; 658300, 3665200; 658300, 3665400; 658000, 3665400; 658000, 3665500; 657900, 3665500; 657900, 3665700; 658600, 3665700; 658600, 3665800; 658700, 3665800; thence returning to 658700, 3665900.
(iii)Subunit 1C, North Algodones Wilderness Area, Imperial County, California. From USGS 1:24,000 quadrangles Acolita and Amos, lands bounded by the following UTM NAD83 coordinates (E, N): 663400, 3661100; 663700, 3661100; 663700, 3661000; 663800, 3661000; 663800, 3660900; 664000, 3660900; 664000, 3660800; 664100, 3660800; 664100, 3660700; 664200, 3660700; 664200, 3660600; 664400, 3660600; 664400, 3660300; 664500, 3660300; 664500, 3659900; 664600, 3659900; 664600, 3659800; 664700, 3659800; 664700, 3659700; 664800, 3659700; 664800, 3659600; 665000, 3659600; 665000, 3659300; 665200, 3659300; 665200, 3659200; 665300, 3659200; 665300, 3659100; 665400, 3659100; 665400, 3658900; 665600, 3658900; 665600, 3658400; 665800, 3658400; 665800, 3658300; 665900, 3658300; 665900, 3658100; 666200, 3658100; 666200, 3657900; 666100, 3657900; 666100, 3657800; 666000, 3657800; 666000, 3657900; 665400, 3657900; 665400, 3658000; 665300, 3658000; 665300, 3658200; 665200, 3658200; 665200, 3658300; 665000, 3658300; 665000, 3658700; 664800, 3658700; 664800, 3658900; 664700, 3658900; 664700, 3659000; 664300, 3659000; 664300, 3659200; 664100, 3659200; 664100, 3659300; 663900, 3659300; 663900, 3659400; 663800, 3659400; 663800, 3659500; 663700, 3659500; 663700, 3659800; 663600, 3659800; 663600, 3660000; 663500, 3660000; 663500, 3660100; 663400, 3660100; 663400, 3660200; 663300, 3660200; 663300, 3660300; 663100, 3660300; 663100, 3660500; 663000, 3660500; 663000, 3660800; 663100, 3660800; 663100, 3660900; 663400, 3660900; thence returning to 663400, 3661100.
(iv)Subunit 1D, North Algodones Wilderness Area, Imperial County, California. From USGS 1:24,000 quadrangles Acolita and Glamis NW, lands bounded by the following UTM NAD83 coordinates (E, N): 666500, 3657900; 666700, 3657900; 666700, 3657700; 666800, 3657700; 666800, 3657600; 667100, 3657600; 667100, 3657300; 667300, 3657300; 667300, 3657000; 667600, 3657000; 667600, 3656600; 668100, 3656600; 668100, 3656400; 668300, 3656400; 668300, 3656000; 668700, 3656000; 668700, 3655900; 668800, 3655900; 668800, 3655800; 669500, 3655800; 669500, 3655700; 669600, 3655700; 669600, 3655800; 669800, 3655800; 669800, 3655500; 669600, 3655500; 669600, 3655400; 669400, 3655400; 669400, 3655300; 669300, 3655300; 669300, 3655100; 669600, 3655100; 669600, 3655000; 669500, 3655000; 669500, 3654900; 669700, 3654900; 669700, 3654700; 669900, 3654700; 669900, 3654500; 670100, 3654500; 670100, 3654300; 670200, 3654300; 670200, 3654400; 670500, 3654400; 670500, 3654300; 670600, 3654300; 670600, 3653900; 670900, 3653900; 670900, 3653800; 671200, 3653800; 671200, 3653400; 671300, 3653400; 671300, 3653300; 671500, 3653300; 671500, 3653600; 671600, 3653600; 671600, 3653700; 671800, 3653700; 671800, 3653400; 671900, 3653400; 671900, 3653300; 672100, 3653300; 672100, 3653200; 672200, 3653200; 672200, 3653000; 672600, 3653000; 672600, 3652600; 672700, 3652600; 672700, 3652700; 673000, 3652700; 673000, 3652200; 673100, 3652200; 673100, 3652100; 673700, 3652100; 673700, 3651800; 673400, 3651800; 673400, 3651700; 673300, 3651700; 673300, 3651600; 673400, 3651600; 673400, 3651500; 673300, 3651500; 673300, 3651400; 673100, 3651400; 673100, 3651300; 672900, 3651300; 672900, 3651000; 672700, 3651000; 672700, 3650800; 672600, 3650800; 672600, 3650700; 672400, 3650700; 672400, 3650800; 672300, 3650800; 672300, 3651300; 672200, 3651300; 672200, 3651400; 671600, 3651400; 671600, 3651500; 671500, 3651500; 671500, 3652000; 671400, 3652000; 671400, 3651900; 671200, 3651900; 671200, 3652200; 671300, 3652200; 671300, 3652400; 671500, 3652400; 671500, 3652600; 671400, 3652600; 671400, 3652900; 671100, 3652900; 671100, 3653100; 670900, 3653100; 670900, 3653000; 670700, 3653000; 670700, 3653100; 670600, 3653100; 670600, 3653200; 670400, 3653200; 670400, 3653300; 670300, 3653300; 670300, 3653500; 670100, 3653500; 670100, 3653700; 669800, 3653700; 669800, 3653900; 669500, 3653900; 669500, 3653800; 669300, 3653800; 669300, 3653900; 669200, 3653900; 669200, 3654000; 669100, 3654000; 669100, 3654200; 669400, 3654200; 669400, 3654100; 669800, 3654100; 669800, 3654400; 669600, 3654400; 669600, 3654500; 669500, 3654500; 669500, 3654700; 669400, 3654700; 669400, 3654800; 669200, 3654800; 669200, 3654900; 669100, 3654900; 669100, 3655000; 668900, 3655000; 668900, 3655100; 668700, 3655100; 668700, 3655300; 668600, 3655300; 668600, 3655400; 668500, 3655400; 668500, 3655300; 668300, 3655300; 668300, 3655400; 668100, 3655400; 668100, 3655500; 668000, 3655500; 668000, 3655600; 667900, 3655600; 667900, 3656100; 667700, 3656100; 667700, 3656000; 667400, 3656000; 667400, 3656100; 667000, 3656100; 667000, 3656300; 666600, 3656300; 666600, 3656400; 666500, 3656400; 666500, 3656800; 666300, 3656800; 666300, 3657000; 666000, 3657000; 666000, 3657100; 665900, 3657100; 665900, 3657400; 666200, 3657400; 666200, 3657600; 666300, 3657600; 666300, 3657800; 666500, 3657800; thence returning to 666500, 3657900.
(v)Note: Map of Unit 1 (Map 2) follows: BILLING CODE 4310-55-P EP27JY07.001 BILLING CODE 4310-55-C
(7)Unit 2: Imperial County, California.
(i)Subunit 2A, Gecko, Imperial County, California. From USGS 1:24,000 quadrangles Glamis and Glamis NW, lands bounded by the following UTM NAD83 coordinates (E, N): 674500, 3648700; 674700, 3648700; 674700, 3648600; 674800, 3648600; 674800, 3648500; 674700, 3648500; 674700, 3648300; 674800, 3648300; 674800, 3648100; 675000, 3648100; 675000, 3647900; 674900, 3647900; 674900, 3647800; 675100, 3647800; 675100, 3647600; 675200, 3647600; 675200, 3647400; 675800, 3647400; 675800, 3647200; 676100, 3647200; 676100, 3647100; 676500, 3647100; 676500, 3647300; 676700, 3647300; 676700, 3647400; 676400, 3647400; 676400, 3647700; 676500, 3647700; 676500, 3647800; 676700, 3647800; 676700, 3647700; 676800, 3647700; 676800, 3647600; 676700, 3647600; 676700, 3647500; 677200, 3647500; 677200, 3647300; 677400, 3647300; 677400, 3647400; 677600, 3647400; 677600, 3647500; 677700, 3647500; 677700, 3647600; 677800, 3647600; 677800, 3647700; 678000, 3647700; 678000, 3647400; 677900, 3647400; 677900, 3647200; 677800, 3647200; 677800, 3647000; 677900, 3647000; 677900, 3647100; 678300, 3647100; 678300, 3646800; 678200, 3646800; 678200, 3646700; 677900, 3646700; 677900, 3646400; 677600, 3646400; 677600, 3646200; 677900, 3646200; 677900, 3646300; 678100, 3646300; 678100, 3645900; 678400, 3645900; 678400, 3646100; 678600, 3646100; 678600, 3646300; 678900, 3646300; 678900, 3646100; 678700, 3646100; 678700, 3645900; 678800, 3645900; 678800, 3645700; 678700, 3645700; 678700, 3645600; 678600, 3645600; 678600, 3645500; 678700, 3645500; 678700, 3645300; 678900, 3645300; 678900, 3645400; 678800, 3645400; 678800, 3645600; 679000, 3645600; 679000, 3645700; 678900, 3645700; 678900, 3646000; 679100, 3646000; 679100, 3646100; 679000, 3646100; 679000, 3646200; 679100, 3646200; 679100, 3646300; 679400, 3646300; 679400, 3646500; 679600, 3646500; 679600, 3646300; 679700, 3646300; 679700, 3646100; 679600, 3646100; 679600, 3646000; 679500, 3646000; 679500, 3645900; 679300, 3645900; 679300, 3645800; 679400, 3645800; 679400, 3645600; 679100, 3645600; 679100, 3645300; 679200, 3645300; 679200, 3645200; 679400, 3645200; 679400, 3645000; 679300, 3645000; 679300, 3644400; 679100, 3644400; 679100, 3644200; 679300, 3644200; 679300, 3643900; 679500, 3643900; 679500, 3643700; 679400, 3643700; 679200, 3643700; 679200, 3643900; 679100, 3643900; 679100, 3643800; 679000, 3643800; 679000, 3643900; 678900, 3643900; 678900, 3643800; 678800, 3643800; 678800, 3643600; 678900, 3643600; 678900, 3643300; 678800, 3643300; 678800, 3643100; 678600, 3643100; 678600, 3643200; 678400, 3643200; 678400, 3643300; 678600, 3643300; 678600, 3643600; 678400, 3643600; 678400, 3643500; 678300, 3643500; 678300, 3643600; 678200, 3643600; 678200, 3643400; 677900, 3643400; 677900, 3643200; 677800, 3643200; 677800, 3643100; 677500, 3643100; 677500, 3643400; 677700, 3643400; 677700, 3643500; 677900, 3643500; 677900, 3643700; 677200, 3643700; 677200, 3644000; 677300, 3644000; 677300, 3644300; 677100, 3644300; 677100, 3644200; 676800, 3644200; 676800, 3644500; 676900, 3644500; 676900, 3644800; 676800, 3644800; 676800, 3645000; 676600, 3645000; 676600, 3644900; 676500, 3644900; 676500, 3644800; 676400, 3644800; 676400, 3644900; 676300, 3644900; 676300, 3645100; 676500, 3645100; 676500, 3645200; 676600, 3645200; 676600, 3645300; 677000, 3645300; 677000, 3645500; 676700, 3645500; 676700, 3645400; 676500, 3645400; 676500, 3645600; 676400, 3645600; 676400, 3645300; 676300, 3645300; 676300, 3645200; 676100, 3645200; 676100, 3645300; 676000, 3645300; 676000, 3645500; 676200, 3645500; 676200, 3645600; 676300, 3645600; 676300, 3645800; 676200, 3645800; 676200, 3645900; 676000, 3645900; 676000, 3645800; 675800, 3645800; 675800, 3645900; 675600, 3645900; 675600, 3645800; 675400, 3645800; 675400, 3645900; 675300, 3645900; 675300, 3646500; 675700, 3646500; 675700, 3646600; 675600, 3646600; 675600, 3646800; 675500, 3646800; 675500, 3647000; 675100, 3647000; 675100, 3647500; 674900, 3647500; 674900, 3647700; 674800, 3647700; 674800, 3647500; 674500, 3647500; 674500, 3647700; 674300, 3647700; 674300, 3648000; 674500, 3648000; 674500, 3648300; 674300, 3648300; 674300, 3648400; 674200, 3648400; 674200, 3648600; 674500, 3648600; thence returning to 674500, 3648700.
(ii)Subunit 2B, Gecko, Imperial County, California. From USGS 1:24,000 quadrangle Glamis, lands bounded by the following UTM NAD83 coordinates (E, N): 679400, 3643700; 679500, 3643700; 679700, 3643700; 679700, 3643600; 679800, 3643600; 679800, 3643400; 679700, 3643400; 679700, 3643300; 679800, 3643300; 679800, 3643000; 679600, 3643000; 679600, 3642900; 679500, 3642900; 679500, 3642800; 679300, 3642800; 679300, 3642600; 679200, 3642600; 679200, 3642400; 679600, 3642400; 679600, 3642200; 679500, 3642200; 679500, 3642000; 679800, 3642000; 679800, 3642200; 679900, 3642200; 679900, 3642300; 680100, 3642300; 680100, 3642200; 680400, 3642200; 680400, 3642100; 680700, 3642100; 680700, 3641800; 680500, 3641800; 680500, 3641900; 680300, 3641900; 680300, 3641800; 680100, 3641800; 680100, 3641900; 680000, 3641900; 680000, 3641800; 679800, 3641800; 679800, 3641600; 679900, 3641600; 679900, 3641500; 680000, 3641500; 680000, 3641400; 680100, 3641400; 680100, 3641300; 680700, 3641300; 680700, 3641400; 681000, 3641400; 681000, 3641700; 681300, 3641700; 681300, 3641800; 681500, 3641800; 681500, 3641600; 681900, 3641600; 681900, 3641800; 682100, 3641800; 682100, 3641700; 682200, 3641700; 682200, 3641400; 681800, 3641400; 681800, 3641200; 681700, 3641200; 681700, 3640800; 681900, 3640800; 681900, 3640600; 682100, 3640600; 682100, 3640700; 682200, 3640700; 682200, 3640800; 682400, 3640800; 682400, 3640400; 682100, 3640400; 682100, 3640300; 681900, 3640300; 681900, 3640200; 681700, 3640200; 681700, 3640000; 681400, 3640000; 681400, 3640100; 681200, 3640100; 681200, 3640000; 681100, 3640000; 681100, 3639900; 681300, 3639900; 681300, 3639700; 681000, 3639700; 681000, 3639600; 680700, 3639600; 680700, 3639700; 680600, 3639700; 680600, 3639800; 680400, 3639800; 680400, 3639900; 680300, 3639900; 680300, 3640500; 680400, 3640500; 680400, 3640600; 680500, 3640600; 680500, 3640500; 680600, 3640500; 680600, 3640300; 680500, 3640300; 680500, 3640200; 680600, 3640200; 680600, 3640000; 680800, 3640000; 680800, 3640100; 680900, 3640100; 680900, 3640200; 680800, 3640200; 680800, 3640500; 681200, 3640500; 681200, 3640800; 681400, 3640800; 681400, 3641100; 681500, 3641100; 681500, 3641500; 681400, 3641500; 681400, 3641300; 681200, 3641300; 681200, 3640900; 680900, 3640900; 680900, 3641100; 680800, 3641100; 680800, 3641200; 680700, 3641200; 680700, 3641100; 680400, 3641100; 680400, 3641000; 680200, 3641000; 680200, 3641100; 680100, 3641100; 680100, 3640900; 680300, 3640900; 680300, 3640600; 680000, 3640600; 680000, 3640300; 679800, 3640300; 679800, 3640400; 679700, 3640400; 679700, 3640600; 679800, 3640600; 679800, 3640700; 679700, 3640700; 679700, 3641100; 679400, 3641100; 679400, 3641200; 679300, 3641200; 679300, 3641500; 679100, 3641500; 679100, 3641400; 678900, 3641400; 678900, 3641500; 678800, 3641500; 678800, 3641700; 678700, 3641700; 678700, 3641800; 678600, 3641800; 678600, 3642000; 678500, 3642000; 678500, 3641800; 678200, 3641800; 678200, 3642100; 678300, 3642100; 678300, 3642500; 678600, 3642500; 678600, 3642800; 678700, 3642800; 678700, 3643000; 678900, 3643000; 678900, 3643200; 679000, 3643200; 679000, 3643300; 679300, 3643300; 679300, 3643400; 679400, 3643400; thence returning to 679400, 3643700; and lands bounded by 680500, 3640900; 680700, 3640900; 680700, 3640800; 680800, 3640800; 680800, 3640600; 680500, 3640600; thence returning to 680500, 3640900.
(iii)Note: Map of Unit 2 (Map 3) follows: BILLING CODE 4310-55-P EP27JY07.002 BILLING CODE 4310-55-C
(8)Unit 3: Imperial County, California.
(i)Subunit 3A, AMA, Imperial County, California. From USGS 1:24,000 quadrangles Cactus, Glamis and Glamis SE, lands bounded by the following UTM NAD83 coordinates (E, N): 682600, 3639800; 682900, 3639800; 682900, 3639700; 683100, 3639700; 683100, 3639600; 683200, 3639600; 683200, 3639400; 683400, 3639400; 683400, 3639100; 683100, 3639100; 683100, 3639000; 683200, 3639000; 683200, 3638800; 683300, 3638800; 683300, 3638700; 683900, 3638700; 683900, 3638600; 684100, 3638600; 684100, 3638500; 684300, 3638500; 684300, 3638400; 684400, 3638400; 684400, 3638100; 684100, 3638100; 684100, 3637700; 684300, 3637700; 684300, 3637400; 684600, 3637400; 684600, 3637100; 684700, 3637100; 684700, 3637000; 685000, 3637000; 685000, 3637100; 685300, 3637100; 685300, 3637000; 685400, 3637000; 685400, 3636800; 685100, 3636800; 685100, 3636400; 685200, 3636400; 685200, 3636300; 685400, 3636300; 685400, 3636100; 685700, 3636100; 685700, 3636000; 685900, 3636000; 685900, 3635900; 686400, 3635900; 686400, 3635700; 686700, 3635700; 686700, 3635200; 687300, 3635200; 687300, 3635300; 687500, 3635300; 687500, 3635400; 687600, 3635400; 687600, 3635500; 687700, 3635500; 687700, 3635600; 687900, 3635600; 687900, 3635500; 688000, 3635500; 688000, 3635300; 687700, 3635300; 687700, 3635000; 687600, 3635000; 687600, 3634700; 687700, 3634700; 687700, 3634500; 687800, 3634500; 687800, 3634300; 687900, 3634300; 687900, 3634100; 688100, 3634100; 688100, 3634000; 688200, 3634000; 688200, 3633900; 688300, 3633900; 688300, 3633700; 688400, 3633700; 688400, 3633600; 688500, 3633600; 688500, 3633500; 688600, 3633500; 688600, 3633300; 688500, 3633300; 688500, 3633200; 688400, 3633200; 688400, 3632900; 688500, 3632900; 688500, 3632600; 688600, 3632600; 688600, 3632200; 688700, 3632200; 688700, 3632100; 688800, 3632100; 688800, 3631900; 688900, 3631900; 688900, 3631800; 688800, 3631800; 688800, 3631700; 688900, 3631700; 688900, 3631500; 689500, 3631500; 689500, 3631300; 689800, 3631300; 689800, 3631000; 689500, 3631000; 689500, 3630600; thence southwestward to y-coordinate 3630000 at the Management Area boundary; thence northwestward along the Management Area boundary to x-coordinate 686700; thence to 686700, 3632800; 686600, 3632800; 686600, 3632900; 686500, 3632900; 686500, 3633000; 686400, 3633000; 686400, 3633400; 686300, 3633400; 686300, 3633500; 686200, 3633500; 686200, 3633600; 686100, 3633600; 686100, 3633800; 685900, 3633800; 685900, 3633900; 685800, 3633900; 685800, 3634000; 685700, 3634000; 685700, 3634200; 685600, 3634200; 685600, 3634300; 685300, 3634300; 685300, 3634700; 685200, 3634700; 685200, 3634800; 685000, 3634800; 685000, 3634900; 684900, 3634900; 684900, 3635200; 684800, 3635200; 684800, 3635300; 684700, 3635300; 684700, 3635400; 684500, 3635400; 684500, 3635500; 684400, 3635500; 684400, 3635600; 684300, 3635600; 684300, 3635800; 684100, 3635800; 684100, 3635900; 684000, 3635900; 684000, 3636000; 683900, 3636000; 683900, 3636100; 683500, 3636100; 683500, 3636200; 683400, 3636200; 683400, 3636500; 683300, 3636500; 683300, 3636600; 683200, 3636600; 683200, 3636700; 683100, 3636700; 683100, 3636800; 682800, 3636800; 682800, 3636900; 682700, 3636900; 682700, 3637100; 682800, 3637100; 682800, 3637500; 682300, 3637500; 682300, 3637700; 682000, 3637700; 682000, 3638000; 681900, 3638000; 681900, 3638500; 681600, 3638500; 681600, 3638800; 681800, 3638800; 681800, 3639000; 681900, 3639000; 681900, 3639100; 682000, 3639100; 682000, 3639200; 682100, 3639200; 682100, 3639300; 682500, 3639300; 682500, 3639500; 682400, 3639500; 682400, 3639700; 682600, 3639700; thence returning to 682600, 3639800.
(ii)Subunit 3B, AMA/Ogilby, Imperial County, California. From USGS 1:24,000 quadrangle Cactus, lands bounded by the following UTM NAD83 coordinates (E, N): 691900, 3631300; 692300, 3631300; 692300, 3630800; 691900, 3630800; 691900, 3630700; 691800, 3630700; 691800, 3630600; 691500, 3630600; 691500, 3630500; 691200, 3630500; 691200, 3630100; 691100, 3630100; 691100, 3629900; 691200, 3629900; 691200, 3629600; 691100, 3629600; 691100, 3629400; 691400, 3629400; 691400, 3629700; 691600, 3629700; 691600, 3629800; 691700, 3629800; 691700, 3629700; 691800, 3629700; 691800, 3629500; 691700, 3629500; 691700, 3629400; 691500, 3629400; 691500, 3629300; 691600, 3629300; 691600, 3628700; 691700, 3628700; 691700, 3628600; thence southwestward to the Management Area boundary at y-coordinate 3627650; thence northwestward along the Management Area boundary to y-coordinate 3630000; thence northeastward to 689500, 3630600; thence to 689600, 3630600; 689600, 3630500; 689700, 3630500; 689700, 3630400; 690000, 3630400; 690000, 3630300; 690200, 3630300; 690200, 3630200; 690700, 3630200; 690700, 3630100; 690900, 3630100; 690900, 3630400; 691000, 3630400; 691000, 3630700; 691200, 3630700; 691200, 3630800; 691300, 3630800; 691300, 3630900; 691500, 3630900; 691500, 3631000; 691600, 3631000; 691600, 3631100; 691800, 3631100; 691800, 3631200; 691900, 3631200; thence returning to 691900, 3631300.
(iii)Subunit 3C, Ogilby, Imperial County, California. From USGS 1:24,000 quadrangle Cactus and Grays Well, lands bounded by the following UTM NAD83 coordinates (E, N): 693100, 3629300; 693400, 3629300; 693400, 3629100; 693500, 3629100; 693500, 3628700; 693300, 3628700; 693300, 3628600; 693200, 3628600; 693200, 3628500; 692400, 3628500; 692400, 3628200; 692300, 3628200; 692300, 3628100; 691900, 3628100; 691900, 3627600; 692300, 3627600; 692300, 3627500; 692800, 3627500; 692800, 3627200; 692700, 3627200; 692700, 3627100; 692500, 3627100; 692500, 3627000; 692600, 3627000; 692600, 3626700; 692700, 3626700; 692700, 3626600; 693800, 3626600; 693800, 3626500; 693900, 3626500; 693900, 3626300; 693800, 3626300; 693800, 3625700; 694400, 3625700; 694400, 3625600; 695000, 3625600; 695000, 3625300; 694700, 3625300; 694700, 3625200; 694400, 3625200; 694400, 3625100; 694300, 3625100; 694300, 3625000; 694000, 3625000; 694000, 3625100; 693900, 3625100; 693900, 3625200; 693700, 3625200; 693700, 3624500; thence westward to the Management Area boundary at y-coordinate 3624500; thence northwestward along the Management Area boundary at x-coordinate 693000; thence to 693000, 3625400; 693100, 3625400; 693100, 3625600; 692900, 3625600; 692900, 3625700; 692800, 3625700; 692800, 3625800; 692700, 3625800; 692700, 3626100; 692500, 3626100; 692500, 3626300; 692100, 3626300; 692100, 3626800; thence westward to the Management Area boundary at y-coordinate 3626800; thence northwestward to y-coordinate 3627650; thence to 691700, 3628600; 692700, 3628600; 692700, 3628700; 692800, 3628700; 692800, 3628800; 692900, 3628800; 692900, 3628900; 693000, 3628900; 693000, 3629000; 693100, 3629000; thence returning to 693100, 3629300; and lands bounded by 696500, 3625500; 696800, 3625500; 696800, 3625300; 697000, 3625300; 697000, 3625000; 696900, 3625000; 696900, 3624800; 696500, 3624800; 696500, 3624600; 696300, 3624600; 696300, 3624400; 696100, 3624400; 696100, 3624500; 695800, 3624500; 695800, 3624200; 695700, 3624200; 695700, 3624000; 695600, 3624000; 695600, 3623900; 695400, 3623900; 695400, 3624000; 695200, 3624000; 695200, 3623900; 695000, 3623900; 695000, 3623800; 694600, 3623800; 694600, 3624300; 694800, 3624300; 694800, 3624400; 694900, 3624400; 694900, 3624500; 695300, 3624500; 695300, 3624400; 695400, 3624400; 695400, 3624600; 695600, 3624600; 695600, 3624700; 695700, 3624700; 695700, 3624800; 696100, 3624800; 696100, 3625000; 696300, 3625000; 696300, 3625100; 696400, 3625100; 696400, 3625400; 696500, 3625400; thence returning to 696500, 3625500. Subunit 3C, Ogilby, Imperial County, California. From USGS 1:24,000 quadrangle Cactus and Grays Well, lands bounded by the following UTM NAD83 coordinates (E, N): 693100, 3629300; 693400, 3629300; 693400, 3629100; 693500, 3629100; 693500, 3628700; 693300, 3628700; 693300, 3628600; 693200, 3628600; 693200, 3628500; 692400, 3628500; 692400, 3628200; 692300, 3628200; 692300, 3628100; 691900, 3628100; 691900, 3627600; 692300, 3627600; 692300, 3627500; 692800, 3627500; 692800, 3627200; 692700, 3627200; 692700, 3627100; 692500, 3627100; 692500, 3627000; 692600, 3627000; 692600, 3626700; 692700, 3626700; 692700, 3626600; 693800, 3626600; 693800, 3626500; 693900, 3626500; 693900, 3626300; 693800, 3626300; 693800, 3625700; 694400, 3625700; 694400, 3625600; 695000, 3625600; 695000, 3625300; 694700, 3625300; 694700, 3625200; 694400, 3625200; 694400, 3625100; 694300, 3625100; 694300, 3625000; 694000, 3625000; 694000, 3625100; 693900, 3625100; 693900, 3625200; 693700, 3625200; 693700, 3624500; 693400, 3624500; 693400, 3624700; 693300, 3624700; 693300, 3624800; 693200, 3624800; 693200, 3624900; 693100, 3624900; 693100, 3625000; 693000, 3625000; 693000, 3625400; 693100, 3625400; 693100, 3625600; 692900, 3625600; 692900, 3625700; 692800, 3625700; 692800, 3625800; 692700, 3625800; 692700, 3626100; 692500, 3626100; 692500, 3626300; 692100, 3626300; 692100, 3626800; 691400, 3626800; 691400, 3627000; 691300, 3627000; 691300, 3627100; 691200, 3627100; 691200, 3627400; 690900, 3627400; 690900, 3627500; 690800, 3627501; 691700, 3628600; 692700, 3628600; 692700, 3628700; 692800, 3628700; 692800, 3628800; 692900, 3628800; 692900, 3628900; 693000, 3628900; 693000, 3629000; 693100, 3629000; thence returning to 693100, 3629300; and lands bounded by 696500, 3625500; 696800, 3625500; 696800, 3625300; 697000, 3625300; 697000, 3625000; 696900, 3625000; 696900, 3624800; 696500, 3624800; 696500, 3624600; 696300, 3624600; 696300, 3624400; 696100, 3624400; 696100, 3624500; 695800, 3624500; 695800, 3624200; 695700, 3624200; 695700, 3624000; 695600, 3624000; 695600, 3623900; 695400, 3623900; 695400, 3624000; 695200, 3624000; 695200, 3623900; 695000, 3623900; 695000, 3623800; 694600, 3623800; 694600, 3624300; 694800, 3624300; 694800, 3624400; 694900, 3624400; 694900, 3624500; 695300, 3624500; 695300, 3624400; 695400, 3624400; 695400, 3624600; 695600, 3624600; 695600, 3624700; 695700, 3624700; 695700, 3624800; 696100, 3624800; 696100, 3625000; 696300, 3625000; 696300, 3625100; 696400, 3625100; 696400, 3625400; 696500, 3625400; thence returning to 696500, 3625500.
(iv)Note: The map depicting Unit 3 is found at paragraph (9)(ii) of this entry.
(9)Unit 4: Buttercup, Imperial County, California.
(i)From USGS 1:24,000 quadrangle Grays Well, lands bounded by the following UTM NAD83 coordinates (E, N): 697900, 3622100; 698300, 3622100; 698300, 3621900; 698200, 3621900; 698200, 3621700; 698300, 3621700; 698300, 3621600; 698500, 3621600; 698500, 3621500; 698600, 3621500; 698600, 3621200; 698500, 3621200; 698500, 3621100; 698400, 3621100; 698400, 3621000; 698300, 3621000; 698300, 3620970; 697900, 3620925; 697900, 3621000; 697800, 3621000; 697800, 3621100; 697700, 3621100; 697700, 3621300; 697600, 3621300; 697600, 3621400; 697500, 3621400; 697500, 3621500; 697400, 3621500; 697400, 3621800; 697600, 3621800; 697600, 3621900; 697900, 3621900; thence returning to 697900, 3622100.
(ii)Note: Map of Units 3 and 4 (Map 4) follows: BILLING CODE 4310-55-P EP27JY07.003 Dated: July 19, 2007. Todd Willens, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 07-3674 Filed 7-26-07; 8:45 am]
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  • 5 CFR 211
  • 7 CFR 301
  • 7 CFR 301.45
  • 14 CFR 25
  • 14 CFR 34
  • 14 CFR 36
  • 14 CFR 97
  • 1 CFR 51
  • 21 CFR 14
  • Pub. L. 92-463
  • Pub. L. 101-635
  • 15 USC 1451-1461
  • 21 USC 41-50
  • Pub. L. 107-109
  • Pub. L. 108-155
  • T.D. 9346
  • 26 CFR 48
  • T.D. 9145
  • 26 CFR 602
  • 40 CFR 180
  • 40 CFR 178
  • 40 CFR 2
  • 40 CFR 180.275
  • Pub. L. 104-4
  • Pub. L. 104-113
  • 45 CFR 146
  • Pub. L. 104-204
  • Pub. L. 105-34
  • Pub. L. 109-432
  • Pub. L. 96-354
  • Pub. L. 104-121
  • 45 CFR 148
  • Pub. L. 107-210
  • Pub. L. 109-171
  • Pub. L. 109-172
  • 42 CFR 148.316
  • 7 USC 7701-7772
  • 7 CFR 2.22
  • 13 CFR 121
  • 5 USC 601-612
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U.S.C.§ 106
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F. App'x994 F.2d 302
F. App'x265 F.3d 1275
F. App'x328 F.3d 132
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