Rules and Regulations. Notice of proposed rulemaking (NPRM)

56,130 words·~255 min read·/register/2007/09/11/07-4427

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

BILLING CODE 3510-22-S 72 175 Tuesday, September 11, 2007 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-29172; Directorate Identifier 2006-NM-285-AD] RIN 2120-AA64 Airworthiness Directives; Fokker Model F27 Mark 050, 200, 300, 400, 500, 600, and 700 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Subsequent to accidents involving Fuel Tank System explosions in flight * * * and on ground, * * * Special Federal Aviation Regulation 88 (SFAR88) * * * required a safety review of the aircraft Fuel Tank System * * *. Fuel Airworthiness Limitations are items arising from a systems safety analysis that have been shown to have failure mode(s) associated with an ‘unsafe condition' * * *. These are identified in Failure Conditions for which an unacceptable probability of ignition risk could exist if specific tasks and/or practices are not performed in accordance with the manufacturers' requirements. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by October 11, 2007. ADDRESSES: You may send comments by any of the following methods: • *DOT Docket Web Site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Fax:*

(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. Examining the AD Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone

(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-1137; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-29172; Directorate Identifier 2006-NM-285-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2006-0207, dated July 12, 2006, and EASA Airworthiness Directive 2006-0209, dated July 12, 2006 (corrected September 1, 2006) (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: Subsequent to accidents involving Fuel Tank System explosions in flight * * * and on ground, the FAA published Special Federal Aviation Regulation 88 (SFAR 88) in June 2001. SFAR 88 required a safety review of the aircraft Fuel Tank System to determine that the design meets the requirements of FAR (Federal Aviation Regulation) § 25.901 and § 25.981(a) and (b). A similar regulation has been recommended by the JAA (Joint Aviation Authorities) to the European National Aviation Authorities in JAA letter 04/00/02/07/03-L024 of 3 February 2003. The review was requested to be mandated by NAA's (National Aviation Authorities) using JAR (Joint Aviation Regulation) § 25.901(c), § 25.1309. In August 2005 EASA published a policy statement on the process for developing instructions for maintenance and inspection of Fuel Tank System ignition source prevention (EASA D 2005/CPRO, *http://www.easa.eu.int/home/cert_policy_statements_en.html* ) that also included the EASA expectations with regard to compliance times of the corrective actions on the unsafe and the not unsafe part of the harmonised design review results. On a global scale the TC (type certificate) holders committed themselves to the EASA published compliance dates (see EASA policy statement). The EASA policy statement has been revised in March 2006: the date of 31-12-2005 for the unsafe related actions has now been set at 01-07-2006. Fuel Airworthiness Limitations are items arising from a systems safety analysis that have been shown to have failure mode(s) associated with an ``unsafe condition'' as defined in FAA's memo 2003-112-15 ``SFAR 88—Mandatory Action Decision Criteria''. These are identified in Failure Conditions for which an unacceptable probability of ignition risk could exist if specific tasks and/or practices are not performed in accordance with the manufacturers' requirements. This EASA Airworthiness Directive mandates the Fuel System Airworthiness Limitations, comprising maintenance/inspection tasks and Critical Design Configuration Control Limitations (CDCCL) for the type of aircraft, that resulted from the design reviews and the JAA recommendation and EASA policy statement mentioned above. The corrective action includes revising the Airworthiness Limitations Section of the Instructions for Continued Airworthiness to incorporate new limitations for fuel tank systems. You may obtain further information by examining the MCAI in the AD docket. The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design (i.e., type certificate

(JAA)has issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference

(ALI)and Critical Design Configuration Control Limitations (CDCCL) Report SE-671, Issue 1, dated January 31, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 24 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,920, or $80 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Fokker Services B.V.:** Docket No. FAA-2007-29172; Directorate Identifier 2006-NM-285-AD. Comments Due Date

(a)We must receive comments by October 11, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to Fokker Model F27 Mark 050 airplanes, all serial numbers; and Fokker F27 Mark 200, 300, 400, 500, 600, and 700 airplanes, serial numbers 10102 through 10692; certificated in any category. Note 1: This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph

(g)of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane. Subject

(d)Air Transport Association

(ATA)of America Code 28: Fuel. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: Subsequent to accidents involving Fuel Tank System explosions in flight * * * and on ground, the FAA published Special Federal Aviation Regulation 88 (SFAR 88) in June 2001. SFAR 88 required a safety review of the aircraft Fuel Tank System to determine that the design meets the requirements of FAR (Federal Aviation Regulation) § 25.901 and § 25.981(a) and (b). A similar regulation has been recommended by the JAA (Joint Aviation Authorities) to the European National Aviation Authorities in JAA letter 04/00/02/07/03-L024 of 3 February 2003. The review was requested to be mandated by NAA's (National Aviation Authorities) using JAR (Joint Aviation Regulation) § 25.901(c), § 25.1309. In August 2005 EASA published a policy statement on the process for developing instructions for maintenance and inspection of Fuel Tank System ignition source prevention (EASA D 2005/CPRO, *http://www.easa.eu.int/home/cert_policy_statements_en.html* ) that also included the EASA expectations with regard to compliance times of the corrective actions on the unsafe and the not unsafe part of the harmonised design review results. On a global scale the TC (type certificate) holders committed themselves to the EASA published compliance dates (see EASA policy statement). The EASA policy statement has been revised in March 2006: The date of 31-12-2005 for the unsafe related actions has now been set at 01-07-2006. Fuel Airworthiness Limitations are items arising from a systems safety analysis that have been shown to have failure mode(s) associated with an `unsafe condition' as defined in FAA's memo 2003-112-15 `SFAR 88—Mandatory Action Decision Criteria'. These are identified in Failure Conditions for which an unacceptable probability of ignition risk could exist if specific tasks and/or practices are not performed in accordance with the manufacturers' requirements. This EASA Airworthiness Directive mandates the Fuel System Airworthiness Limitations, comprising maintenance/inspection tasks and Critical Design Configuration Control Limitations (CDCCL) for the type of aircraft, that resulted from the design reviews and the JAA recommendation and EASA policy statement mentioned above. The corrective action includes revising the Airworthiness Limitations Section of the Instructions for Continued Airworthiness to incorporate new limitations for fuel tank systems. Actions and Compliance

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

(1)Within 3 months after the effective date of this AD, revise the Airworthiness Limitations Section

(ALS)of the Instructions for Continued Airworthiness to incorporate Fokker 50/60 Fuel Airworthiness Limitation Items

(ALI)and Critical Design Configuration Control Limitations (CDCCL) Report SE-671, Issue 1, dated January 31, 2006; or Fokker Service Bulletin F27/28-070, dated June 30, 2006; as applicable. For all tasks identified in Report SE-671 or Service Bulletin F27/28-070, the initial compliance times are as specified in Table 1 or Table 2 of this AD, as applicable. The repetitive inspections must be accomplished thereafter at the intervals specified in Report SE-671 or Service Bulletin F27/28-070, as applicable, except as provided by paragraph (f)(3) of this AD. Table 1.—Initial Compliance Times for ALS Revision for Model F27 Mark 050 Airplanes For— The later of— Task 280000-01 102 months after the effective of this AD; or 102 months after the date of issuance of the original Dutch standard airworthiness certificate or the date of issuance of the original Dutch export certificate of airworthiness. Task 280000-02 30 months after the effective of this AD; or 30 months after the date of issuance of the original Dutch standard airworthiness certificate or the date of issuance of the original Dutch export certificate of airworthiness. Table 2.—Initial Compliance Times for ALS Revision for Model F27 Mark 200, 300, 400, 500, 600, and 700 Airplanes For— The later of— Task 280000-01 78 months after the effective of this AD; or 78 months after the date of issuance of the original Dutch standard airworthiness certificate or the date of issuance of the original Dutch export certificate of airworthiness. Task 280000-02 18 months after the effective of this AD; or 18 months after the date of issuance of the original Dutch standard airworthiness certificate or the date of issuance of the original Dutch export certificate of airworthiness.

(2)Within 3 months after the effective date of this AD, revise the ALS of the Instructions for Continued Airworthiness to incorporate the CDCCLs as defined in Fokker 50/60 Fuel Airworthiness Limitations Items

(ALI)and Critical Design Configuration Control Limitations (CDCCL) Report SE-671, Issue 1, dated January 31, 2006; or Fokker Service Bulletin F27/28-070, dated June 30, 2006; as applicable.

(3)Where Fokker 50/60 Fuel Airworthiness Limitation Items

(ALI)and Critical Design Configuration Control Limitations (CDCCL) Report SE-671, Issue 1, dated January 31, 2006; or Fokker Service Bulletin F27/28-070, dated June 30, 2006; as applicable; allow for exceptional short-term extensions, an exception is acceptable to the FAA if it is approved by the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.

(4)Except as provided by paragraph (g)(1) of this AD: After accomplishing the actions specified in paragraphs (f)(1) and (f)(2) of this AD, no alternative inspection, inspection intervals, or CDCCLs may be used. FAA AD Differences Note 2: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

(g)The following provisions also apply to this AD:

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-1137; fax

(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

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

(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.

(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget

(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information

(h)Refer to MCAI EASA Airworthiness Directive 2006-0207, dated July 12, 2006; EASA Airworthiness Directive 2006-0209, dated July 12, 2006 (corrected September 1, 2006); Fokker 50/60 Fuel Airworthiness Limitation Items

(ALI)and Critical Design Configuration Control Limitations (CDCCL) Report SE-671, Issue 1, dated January 31, 2006; and Fokker Service Bulletin F27/28-070, dated June 30, 2006; for related information. Issued in Renton, Washington, on August 31, 2007. Stephen P. Boyd, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-17831 Filed 9-10-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-29171; Directorate Identifier 2007-NM-154-AD] RIN 2120-AA64 Airworthiness Directives; Saab Model SAAB 2000 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Subsequent to accidents involving Fuel Tank System explosions in flight * * * and on ground, * * * Special Federal Aviation Regulation 88 (SFAR88) * * * required a safety review of the aircraft Fuel Tank System * * *, * * * Fuel Airworthiness Limitations are items arising from a systems safety analysis that have been shown to have failure mode(s) associated with an ‘unsafe condition’ * * *. These are identified in Failure Conditions for which an unacceptable probability of ignition risk could exist if specific tasks and/or practices are not performed in accordance with the manufacturers' requirements. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by October 11, 2007. ADDRESSES: You may send comments by any of the following methods: • *DOT Docket Web Site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Fax:*

(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal:* *http://www.regulations.gov.* Follow the instructions for submitting comments. Examining the AD Docket You may examine the AD docket on the Internet at *http://dms.dot.gov;* or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone

(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Mike Borfitz, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-2677; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-29171; Directorate Identifier 2007-NM-154-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2006-0199, dated July 11, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: Subsequent to accidents involving Fuel Tank System explosions in flight * * * and on ground, the FAA published Special Federal Aviation Regulation 88 (SFAR 88) in June 2001. SFAR 88 required a safety review of the aircraft Fuel Tank System to determine that the design meets the requirements of FAR (Federal Aviation Regulation) § 25.901 and § 25.981(a) and (b). A similar regulation has been recommended by the JAA (Joint Aviation Authorities) to the European National Aviation Authorities in JAA letter 04/00/02/07/03-L024 of 3 February 2003. The review was requested to be mandated by NAA's (National Aviation Authorities) using JAR (Joint Aviation Regulation) § 25.901(c), § 25.1309. In August 2005, EASA published a policy statement on the process for developing instructions for maintenance and inspection of Fuel Tank System ignition source prevention (EASA D 2005/CPRO, *http://www.easa.eu.int/home/cert_policy_statements_en.html* ) that also included the EASA expectations with regard to compliance times of the corrective actions on the unsafe and the not unsafe part of the harmonised design review results. On a global scale the TC (type certificate) holders committed themselves to the EASA published compliance dates (see EASA policy statement). The EASA policy statement has been revised in March 2006: The date of 31-12-2005 for the unsafe related actions has now been set at 01-07-2006. Fuel Airworthiness Limitations are items arising from a systems safety analysis that have been shown to have failure mode(s) associated with an ‘unsafe condition’ as defined in FAA's memo 2003-112-15 ‘SFAR 88—Mandatory Action Decision Criteria’. These are identified in Failure Conditions for which an unacceptable probability of ignition risk could exist if specific tasks and/or practices are not performed in accordance with the manufacturers' requirements. This EASA Airworthiness Directive mandates the Fuel System Airworthiness Limitations (comprising maintenance/inspection tasks and Critical Design Configuration Control Limitations (CDCCL)) for the type of aircraft, that resulted from the design reviews and the JAA recommendation and EASA policy statement mentioned above. The corrective action is revising the Airworthiness Limitations Section of the Instructions for Continued Airworthiness to incorporate new limitations for fuel tank systems. You may obtain further information by examining the MCAI in the AD docket. The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design (i.e., type certificate

(JAA)has issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference

(ECAC)representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Relevant Service Information Saab has issued Fuel Airworthiness Limitations 2000 LKS 009032, dated February 14, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 7 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $560, or $80 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **SAAB Aircraft AB:** Docket No. FAA-2007-29171; Directorate Identifier 2007-NM-154-AD. Comments Due Date

(a)We must receive comments by October 11, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to all Saab Model SAAB 2000 airplanes, certificated in any category, all serial numbers. Note 1: This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph

(g)of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane. Subject

(d)Air Transport Association

(ATA)of America Code 28: Fuel. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: Subsequent to accidents involving Fuel Tank System explosions in flight * * * and on ground, the FAA published Special Federal Aviation Regulation 88 (SFAR 88) in June 2001. SFAR 88 required a safety review of the aircraft Fuel Tank System to determine that the design meets the requirements of FAR (Federal Aviation Regulation) § 25.901 and § 25.981(a) and (b). A similar regulation has been recommended by the JAA (Joint Aviation Authorities) to the European National Aviation Authorities in JAA letter 04/00/02/07/03-L024 of 3 February 2003. The review was requested to be mandated by NAA's (National Aviation Authorities) using JAR (Joint Aviation Regulation) § 25.901(c), § 25.1309. In August 2005 EASA (European Aviation Safety Agency) published a policy statement on the process for developing instructions for maintenance and inspection of Fuel Tank System ignition source prevention (EASA D 2005/CPRO, *http://www.easa.eu.int/home/cert_policy_statements_en.html* ) that also included the EASA expectations with regard to compliance times of the corrective actions on the unsafe and the not unsafe part of the harmonised design review results. On a global scale the TC (type certificate) holders committed themselves to the EASA published compliance dates (see EASA policy statement). The EASA policy statement has been revised in March 2006: the date of 31-12-2005 for the unsafe related actions has now been set at 01-07-2006. Fuel Airworthiness Limitations are items arising from a systems safety analysis that have been shown to have failure mode(s) associated with an `unsafe condition' as defined in FAA's memo 2003-112-15 `SFAR 88—Mandatory Action Decision Criteria'. These are identified in Failure Conditions for which an unacceptable probability of ignition risk could exist if specific tasks and/or practices are not performed in accordance with the manufacturers' requirements. This EASA Airworthiness Directive mandates the Fuel System Airworthiness Limitations (comprising maintenance/inspection tasks and Critical Design Configuration Control Limitations (CDCCL)) for the type of aircraft, that resulted from the design reviews and the JAA recommendation and EASA policy statement mentioned above. The corrective action is revising the Airworthiness Limitations Section of the Instructions for Continued Airworthiness to incorporate new limitations for fuel tank systems. Actions and Compliance

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

(1)Within 3 months after the effective date of this AD, revise the Airworthiness Limitations Section

(ALS)of the Instructions for Continued Airworthiness to incorporate the maintenance and inspection instructions in Part 1 of Saab Fuel Airworthiness Limitations 2000 LKS 009032, dated February 14, 2006. For all tasks identified in Part 1 of Saab Fuel Airworthiness Limitations 2000 LKS 009032, dated February 14, 2006, the initial compliance times start from the effective date of this AD, and the repetitive inspections must be accomplished thereafter at the interval specified in Part 1 of Saab Fuel Airworthiness Limitations 2000 LKS 009032, dated February 14, 2006.

(2)Within 12 months after the effective date of this AD, revise the ALS of the Instructions for Continued Airworthiness to incorporate the CDCCLs as defined in Part 2 of Saab Fuel Airworthiness Limitations 2000 LKS 009032, dated February 14, 2006.

(3)Except as provided by paragraph

(g)of this AD: After accomplishing the actions specified in paragraphs (f)(1) and (f)(2) of this AD, no alternative inspection, inspection intervals, or CDCCLs may be used.

(4)Where Saab Fuel Airworthiness Limitations 2000 LKS 009032, dated February 14, 2006, allows for exceptional short-term extensions, an exception is acceptable to the FAA if it is approved by the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office. FAA AD Differences Note 2: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

(g)The following provisions also apply to this AD:

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Mike Borfitz, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, FAA, 1601 Lind, Avenue SW., Renton, Washington 98057-3356; telephone

(425)227-2677; fax

(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

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

(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget

(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information

(h)Refer to MCAI European Aviation Safety Agency

(EASA)Airworthiness Directive 2006-0199, dated July 11, 2006, and Saab Fuel Airworthiness Limitations 2000 LKS 009032, dated February 14, 2006, for related information. Issued in Renton, Washington, on September 4, 2007. Stephen P. Boyd, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-17832 Filed 9-10-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-29173; Directorate Identifier 2006-NM-283-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 767 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive

(AD)for all Boeing Model 767 airplanes. This proposed AD would require installing an automatic shutoff system for the auxiliary fuel tank pump, revising the airplane flight manual

(AFM)to advise the flight crew of certain operating restrictions for airplanes equipped with an automatic auxiliary fuel tank pump shutoff control, revising the Airworthiness Limitations

(AWLs)section of certain maintenance documents to include new inspections of the automatic shutoff system for the auxiliary fuel tank boost pumps, and, for certain airplanes, installing a placard to alert the flight crew of certain fuel usage restrictions. This proposed AD results from a design review of the fuel tank systems. We are proposing this AD to prevent an overheat condition outside the pump explosion-resistance area that is open to the pump inlet, which could cause an ignition source for the fuel vapors in the fuel tank and result in fuel tank explosions and consequent loss of the airplane. DATES: We must receive comments on this proposed AD by October 26, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Fax:*

(202)493-2251. • *Hand Delivery:* Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Judy Coyle, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)917-6497; fax

(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2007-29173; Directorate Identifier 2006-NM-283-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov.* Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov,* or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Operations office (telephone

(800)647-5227) is located on the ground floor of the West Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design (i.e., type certificate

(TC)and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews. In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action. Initial results from the SFAR 88 analysis show that fuel pumps that run dry could cause an overheat condition outside the pump explosion-resistance area that is open to the pump inlet, which could cause an ignition source for the fuel vapors in the fuel tank. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Relevant Service Information We have reviewed Boeing Alert Service Bulletins 767-28A0083 and 767-28A0084, both Revision 1, dated April 26, 2007. The service bulletins describe procedures for installing an automatic shutoff system for the auxiliary fuel tank pump. The actions involve installing new relay brackets and relays in the P36 and P37 panels, and, for certain airplanes, in the P33 panels; changing the wiring in the panels; and installing wiring between the panels. We have also reviewed Section 9, “Airworthiness Limitations

(AWLs)and Certification Maintenance Requirements (CMRs),” of Boeing 767 Maintenance Planning Data

(MPD)Document D622T001-9, Revision March 2006. That revision adds new fuel system Airworthiness Limitations Instruction

(ALI)28-AWL-20 to Subsection G, “AIRWORTHINESS LIMITATIONS—FUEL SYSTEM AWLs, of Section 9, which includes periodic inspections of the automatic shutoff system for the auxiliary tank fuel boost pumps to detect latent failures that could contribute to an ignition source. That revision also adds critical design configuration control limitation (CDCCL) 28-AWL-19, which includes a post-maintenance inspection of certain wiring in the fuel quantity indicating system. CDCCLs are limitation requirements to preserve a critical ignition source prevention feature of the fuel tank system design that is necessary to prevent the occurrence of an unsafe condition. The purpose of a CDCCL is to provide instruction to retain the critical ignition source prevention feature during configuration change that may be caused by alterations, repairs, or maintenance actions. A CDCCL is not a periodic inspection. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously. For certain airplanes, this proposed AD would also require installing a placard to alert the flight crew of certain fuel usage restrictions imposed by AD 2001-15-08. This proposed AD would also allow accomplishing the AWL revision in accordance with later revisions of the MPD as an acceptable method of compliance if they are approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA. Costs of Compliance There are about 941 airplanes of the affected design in the worldwide fleet; of these, 414 are U.S. registered. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. The total fleet cost could be as high as $4,655,016. Estimated Costs Affected airplanes Affected airplane groups Work hours Average hourly labor rate Parts Cost per airplane 767-200, 767-300, 767-300F 1-39 29 $80 $8,924 $11,244 40-79 25 80 8,495 10,495 80-81 3 80 420 660 767-400ER All 23 80 7,911 9,751 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration

(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2007-29173; Directorate Identifier 2006-NM-283-AD. Comments Due Date

(a)The FAA must receive comments on this AD action by October 26, 2007. Affected ADs

(b)Accomplishment of certain requirements of this AD terminates certain requirements of AD 2001-15-08, amendment 39-12342. Applicability

(c)This AD applies to all Boeing Model 767-200, -300, -300F, and -400ER series airplanes, certificated in any category. Unsafe Condition

(d)This AD results from a design review of the fuel tank systems. We are issuing this AD to prevent an overheat condition outside the pump explosion-resistance area that is open to the pump inlet, which could cause an ignition source for the fuel vapors in the fuel tank and result in fuel tank explosions and consequent loss of the airplane. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Note 1: This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph

(m)of this AD. Installation

(f)Within 36 months after the effective date of this AD, install an automatic shutoff system for the auxiliary fuel tank pump, in accordance with Boeing Alert Service Bulletin 767-28A0083 (for Model 767-200, -300, and -300F airplanes) or 767-28A0084 (for Model 767-400ER airplanes), both Revision 1, dated April 26, 2007; as applicable. Installation According to Previous Issue of Service Bulletin

(g)Installing an automatic shutoff system is also acceptable for compliance with the requirements of paragraph

(f)of this AD if done before the effective date of this AD in accordance with Boeing Alert Service Bulletin 767-28A0083 or 767-28A0084, both dated May 3, 2006; as applicable. Revision of Airplane Flight Manual

(h)Concurrently with accomplishing the actions required by paragraph

(f)of this AD: Revise the Boeing 767 AFM as specified in paragraphs (h)(1) and (h)(2) of this AD. This may be done by inserting a copy of this AD into the AFM.

(1)Revise Section 1, Certificate Limitations, to include the following: “Intentional dry running of a center tank fuel pump (CTR L FUEL PUMP or CTR R FUEL PUMP message displayed on EICAS) is prohibited. Do not reset a tripped fuel pump or fuel pump control circuit breaker.”

(2)Revise Section 3.1, Normal Procedures, to include the following: “CENTER TANK FUEL PUMPS Center tank fuel pumps must not be “ON” unless personnel are available in the flight deck to monitor low PRESS lights. For ground operations prior to engine start: The center tank fuel pump switches must not be positioned ON unless the center tank contains usable fuel. With center tank fuel pump switches ON, verify both center tank fuel pump low PRESS lights are illuminated and EICAS CTR L FUEL PUMP and CTR R FUEL PUMP messages are displayed. For ground operations after engine start and flight operations: The center tank fuel pump switch must be selected OFF when the respective CTR L FUEL PUMP or CTR R FUEL PUMP message displays. Both center tank fuel pump switches must be selected OFF when either the CTR L FUEL PUMP or CTR R FUEL PUMP message displays if the center tank is empty. During cruise flight, both center tank pump switches may be reselected ON whenever center tank usable fuel is indicated. DE-FUELING AND FUEL TRANSFER When transferring fuel or de-fueling center or main wing tanks, the center fuel pump low PRESS must be monitored and the fuel pump switches positioned to “OFF” at the first indication of low pressure. Prior to transferring fuel or de-fueling, conduct a lamp test of the respective fuel pump low PRESS lights.” Note 2: When statements identical to those in paragraph

(g)of this AD have been included in the general revisions of the AFM, the general revisions may be inserted into the AFM, and the copy of this AD may be removed from the AFM. Revision of Airworthiness Limitations

(i)Concurrently with accomplishing the actions required by paragraph

(f)of this AD: Revise Section 9 of the Boeing 767 Maintenance Planning Data

(MPD)Document D622T001-9, “Airworthiness Limitations

(AWLs)and Certification Maintenance Requirements (CMRs),” to incorporate Revision March 2006. Accomplishing the revision in accordance with a later revision of the MPD is an acceptable method of compliance if the revision is approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA. Placard Installation

(j)For Model 767-200, -300, or -300F airplanes that meet the conditions of paragraphs (j)(1) and (j)(2) of this AD: Within 30 days after the effective date of this AD, install a placard in the flight deck adjacent to each pilot's primary flight display, to alert the flight crew to follow the procedures required by paragraph

(b)of AD 2001-15-08. The placard must include the following statement: “AD 2001-15-08 fuel usage restrictions required.” Alternative placard wording may be used if approved by an appropriate FAA Principal Operations Inspector. Alternative placard methods and alternative methods of mixed fleet configuration control may be used if submitted for review in accordance with the procedures specified in paragraph

(l)of this AD.

(1)The airplane is operated in a fleet of airplanes on which the actions specified in paragraph

(f)of this AD have been done on at least one of the fleet's airplanes.

(2)The actions specified in paragraph

(i)of AD 2001-15-08 (installation of modified center tank override and override/jettison fuel pumps that are not subject to the unsafe condition described in this AD) or paragraph

(f)of this AD have not been done on the airplane. Note 3: If the actions specified in paragraph

(f)of this AD have been done on all airplanes operated within an operator's fleet, or if operation according to the fuel usage restrictions of AD 2001-15-08 is maintained until automatic shutoff systems are installed on all airplanes in an operator's fleet: No placard is necessary before removal of the wet shutoff restrictions of AD 2001-15-08. Terminating Action for AD 2001-15-08

(k)For airplanes that have automatic shutoff systems installed: Accomplishment of paragraphs

(f)and

(j)of this AD terminates the requirements of paragraphs

(b)and

(c)of AD 2001-15-08. Alternative Methods of Compliance (AMOCs) (l)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.

(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Issued in Renton, Washington, on August 31, 2007. Stephen P. Boyd, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-17830 Filed 9-10-07; 8:45 am] BILLING CODE 4910-13-P FEDERAL TRADE COMMISSION 16 CFR Part 435 Mail or Telephone Order Merchandise AGENCY: Federal Trade Commission. ACTION: Request for public comments. SUMMARY: The Federal Trade Commission (“FTC” or “Commission”) requests public comment on the overall costs, benefits, and regulatory and economic impact of its Mail or Telephone Order Merchandise Rule (“MTOR” or “Rule”), as part of the Commission’s systematic review of all current Commission regulations and guides. The Commission has made no determination respecting retention of the Rule. Assuming, for the sake of seeking comment, the record supports retaining the Rule, the Commission also requests public comment on possible changes to the Rule to bring it into conformity with changed market conditions. DATES: Comments will be accepted until November 7, 2007. ADDRESSES: Interested parties are invited to submit written comments. Comments should refer to “16 CFR Part 435 Comment - Mail or Telephone Order Merchandise Rule, Project No. P924214” to facilitate the organization of comments. A comment filed in paper form should include this reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission/Office of the Secretary, Room H-135 (Annex K), 600 Pennsylvania Avenue, NW., Washington, DC 20580. Comments containing confidential material, however, must be clearly labeled “Confidential,” and must comply with Commission Rule 4.2(d), 16 CFR 4.2(d). 1 The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible, because postal mail in the Washington area and at the Commission is subject to delay due to heightened security precautions. 1 The comment must be accompanied by an explicit request for confidential treatment, including the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. The request will be granted or denied by the Commission’s General Counsel, consistent with applicable law and the public interest. *See* Commission Rule 4.9(c), 16 CFR 4.9(c). Comments filed in electronic form should be submitted by following the instructions on the web-based form at *https://secure.commentworks.com/ftc-MTORComment* . To ensure that the Commission considers an electronic comment, you must file it on that web-based form. You may also visit *http://www.regulations.gov* to read this notice, and may file an electronic comment through that website. The Commission will consider all comments that *www.regulations.gov* forwards to it. The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives, whether filed in paper or electronic form. Comments received will be available to the public on the FTC website, to the extent practicable, at *http://www.ftc.gov.* As a matter of discretion, the FTC makes every effort to remove home contact information for individuals from the public comments it receives before placing those comments on the FTC website. More information, including routine uses permitted by the Privacy Act, may be found in the FTC’s privacy policy, at *http://www.ftc.gov/ftc/privacy.htm.* FOR FURTHER INFORMATION CONTACT: Joel N. Brewer, Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Washington, DC, 20580;

(202)326-2967. SUPPLEMENTARY INFORMATION: I. Background The FTC promulgated the Mail Order Rule (as the Rule was then called) in 1975 in response to consumer complaints that many merchants had failed to ship merchandise ordered by mail on time, failed to ship at all, or failed to provide prompt refunds for unshipped merchandise. 2 A second proceeding in 1993 demonstrated that consumers who ordered merchandise by telephone experienced the same delayed shipment and refund problems. Accordingly, under authority of Section 18 of the FTC Act, 15 U.S.C. 57a, the Commission amended the Rule, effective March 1, 1994, to cover merchandise ordered by telephone, including by telefax or by computer through the use of a modem ( *e.g.* , Internet sales), and renamed it the “Mail or Telephone Order Merchandise Rule.” 3 2 40 FR 51582 (Oct. 22, 1975). The FTC initiated the rulemaking in 1971 under Section 6(g) of the FTC Act, 15 U.S.C. 46(g), and substantially completed the rulemaking when Congress amended the FTC Act by adopting Section 18, 15 U.S.C. 57a. By operation of law, the Commission treated the Mail Order Rule as having been promulgated under authority of Section 18. The Mail Order Rule took effect February 2, 1976. 3 58 FR 49095 (Sept. 21, 1993). Generally, the MTOR requires a merchant to:

(1)have a reasonable basis for any express or implied shipment representation made in soliciting a sale;

(2)ship within the time period promised and, if no time period is promised, within 30 days;

(3)notify the consumer of, and obtain the consumer's consent to, any delay in shipment; and

(4)make prompt and full refunds when the consumer exercises a cancellation option or the merchant is unable to meet the Rule’s shipment or notification requirements. II. Changing Conditions With changes in technology and commercial practices, some of the Rule’s provisions may no longer fully achieve the Commission’s original goals. This section discusses these market changes and possible changes in the Rule’s language to address them. The Commission has not concluded whether the changes discussed in this part are substantive or non-substantive, and it seeks comment on this subject. 4 The first such change concerns the uses of technologies other than the telephone to access the Internet. The second and third changes relate to the growing availability of alternative payment and refund methods. 4 Section 18 (a)(2) of the FTC Act, 15 U.S.C. 57a(a)(2), provides that in making substantive changes to rules that define with specificity unfair or deceptive acts or practices, the Commission must follow the procedures set forth in section 18(b)(1), 15 U.S.C. 57a(b)(1). Section 18(a)(2) also provides that, in making non-substantive rules (including interpretive rules) and general statements of policy, the Commission need not follow these procedures. Thus, the Commission could make non-substantive changes in accordance with sections 1.21 *et seq.* of the Commission’s Rules of Practice, 16 CFR 1.21 *et seq.* , relating to rules promulgated under authority other than section 18(a)(1)(B) of the FTC Act. A. Consumer Access To The Internet By Means Other Than The Telephone The Rule covers purchases of most merchandise ordered by telephone. 5 Section 435.2(b) of the Rule defines “telephone” as “any direct or indirect use of the telephone to order merchandise, regardless of whether the telephone is activated by, or the language used is that of human beings, machines, or both.” In promulgating this definition, the Commission made clear that it intended to cover all orders made by computer, including Internet orders. 6 The Commission’s definition of “telephone” accomplished this goal because at the time, consumers necessarily accessed the Internet through the telephone. 7 As the Internet became an increasingly popular means of ordering merchandise, however, alternative means of access ( *e.g.* , cable and wireless) replaced some telephone dial-up services, blurring the Rule’s coverage. 5 *See* Section 435.1(a)(1). The only exceptions, listed in Part 435.3, include:

(1)subscriptions (other than the initial installment);

(2)seeds and growing plants;

(3)C.O.D. orders; and

(4)negative option sales covered by 16 CFR Part 425. None of the proposed changes would alter these exceptions. 6 The Commission noted that rulemaking participants understood that the definition of “telephone” was meant to “cover orders taken by mechanical means over the phone, orders placed by computers, and orders placed by fax transmission.” 58 FR 49095, 49113. 7 Since then, it appears that many industry members and trade associations have treated the Rule as applicable to all orders by computer. For example, the Direct Marketing Association (DMA), a national trade association for the direct marketing industry, advises members that the Rule applies to merchandise ordered by computer. *See www.the-dma.org/guidlines/30dayrule* . Because the Commission intended that the Rule cover all Internet ordering, regardless of the consumer’s means of access, the Commission seeks comment on whether it should propose amending the Rule expressly to cover merchandise ordered by computer and/or via the Internet. 8 8 If the Commission amends the Rule to address this issue, it could also change the name of the Rule by adding the words “computer” and/or “Internet” to the title, or by replacing it with a title used by some industry members, the “Distance Shopping Rule.” B. Consumer Payment By Demand Draft, Debit Card, Or Other Means Consumers’ payments for goods trigger all of the merchants’ obligations under the Rule. For example, the merchant’s obligation to ship within the promised time (or within 30 days, if no time is promised) begins with its receipt of the consumer’s “properly completed order,” comprised of “all information needed to process the order” and “full or partial payment in the proper amount.” 9 Moreover, different obligations ensue depending upon whether consumers pay by credit card or other means. 10 9 Section 435.2(d). 10 Section 435.1(c) requires the merchant to make a “prompt refund” under certain circumstances. Section 435.2(f) defines a “prompt refund” depending on whether the buyer paid for the merchandise by charging it or paying with cash, check, or money order. It is, therefore, important that the Rule clearly delineate which payments trigger the merchant’s obligations. Unfortunately, the advent of new payment methods has created some ambiguity on this issue. This ambiguity arises from the Rule’s definitions. On the one hand, in promulgating Section 435.2(a) of the Rule, the Commission attempted to make clear that the Rule applied to all payment methods. Specifically, Section 435.2(a) defines “mail or telephone order sales” as “sales in which the buyer has ordered merchandise from the seller by mail or telephone, *regardless of the method of payment* . . .” (emphasis added). On the other hand, the definitions of “receipt of a properly completed order,” “refund,” and “prompt refund,” only include payment by “cash, check, money order,” or “authorization from the buyer to charge an existing charge account.” At the time the Commission adopted Section 435.2(a) no potential conflict existed because consumers paid for virtually all mail and telephone order purchases by the means enumerated in Sections 435.2(d)-(f). Consumers’ current use of non-enumerated payments systems such as debit cards or demand drafts, however, requires the Commission to revisit the issue. To effectuate its clear intent as expressed in Section 435.2(a), the Commission now seeks comment on whether to propose amending Sections 435.2(d) and

(e)11 to eliminate the phrase “cash, check, money order” wherever it appears and substitute the words “other than credit.” 12 This change, however, would not end the inquiry. The MTOR creates different responsibilities depending on whether a consumer pays by a traditional means ( *i.e.* , cash, check, or money order) or by credit. For example, Section 435.2(f)(1) provides that the merchant must make refunds in the form of cash, check, or money order within seven working days of the buyer’s right to a refund vesting, while Section 435.2(f)(2) provides that the merchant must make credit refunds within one billing cycle of the buyer’s right to a refund vesting. Payment by a new method, such as debit card or a demand draft, does not explicitly fall into either category. If the Commission proposes to change the Rule, it must determine into which of the two categories the new payment methods best fall, or whether they should be placed in a third category. 11 Section 435.2(f) incorporates by reference the payment methods enumerated in Sections 435.2(d) and (e). Therefore, by amending Sections 435.2(d) and (e), the Commission will effectively amend Section 435.2(f) as well. 12 Thus Section 435.2(e)(1) could read: “‘Refund’ shall mean:

(1)Where the buyer tendered full payment for the unshipped merchandise in any form other than credit, a return of the amount tendered in the form it was tendered.” The Commission could treat these new payment methods in the same manner as cash, checks, and money orders. The different time period for providing refunds to consumers who have paid with credit is based on the unique features of the credit card payment system. Specifically, merchants using the credit card payment system use this system to reverse charges as well. Their actions can only be realized by consumers after at least one billing cycle. In contrast, debit cards and demand drafts allow merchants to access consumers’ bank accounts in the same manner as traditional checks. It, therefore, seems appropriate to treat demand drafts and debit cards in the same manner as check payment methods. C. Making Refunds Using Means Other Than First Class Mail When it adopted the refund provisions of the Rule in 1975, the Commission expressed concern that consumers receive their Rule-required refunds “as soon as possible while not putting an unobtainable or unreasonable time constraint on sellers.” 13 Thus Section 435.2(f)(1) requires that merchants subject to the Rule provide refunds (other than credit card refunds) by first class mail within seven business days of the consumer’s right to a refund vesting. More recently, new, practicable means of sending refunds at least as quickly and reliably as first class mail may have been developed ( *e.g.* , electronic funds transfer). However, merchants may feel constrained by the language of the Rule to use only first class mail for making refunds. Similarly, for purchases paid by credit card, Section 435.2(f)(2) provides that merchants making refunds must send a credit memorandum to the consumer or other notice by first class mail within one billing cycle. Appropriate e-mail notification of a charge reversal, however, may be just as fast and reliable as providing notice by first class mail. 13 40 FR 51582, 51593. It may be appropriate, therefore, for the Rule to allow merchants increased flexibility in choosing the means by which they transmit cash refunds or notify consumers of charge reversals. The FTC could accomplish this change by replacing the words “first class mail” with the words “by any means at least as fast and reliable as first class mail” in Sections 435.2(f)(1) and (2). This would make it clear to merchants that they could use other means, such as private courier or electronic transfer, to provide refunds as long as the means are at least as fast and reliable as first class mail. The Commission has no basis for believing that such changes would affect current industry compliance practice. III. Possible Renumbering To comport with recent rules and to make the Rule easier to navigate, the Commission may prefer to organize the Rule by placing its definitions first, followed by the Rule’s substance. Additionally, the Commission may prefer to organize its definitions alphabetically. If the Commission decides to retain the Rule, it may propose, therefore, to reverse and renumber Sections 435.1 and 435.2, and array each of the terms defined in alphabetical order. IV. Regulatory Review Program The Commission has determined to review all current Commission rules and guides periodically. These reviews seek information about the costs and benefits of the Commission’s rules and guides and their regulatory and economic impact. The information obtained assists the Commission in identifying rules and guides that warrant modification or rescission. Therefore, the Commission solicits comment on, among other things, the economic impact of the Mail or Telephone Order Merchandise Rule; possible conflict between the Rule and state, local, or federal laws; and the effect on the Rule of any technological, economic, or other industry changes. V. Request For Comment The Commission solicits written public comment on the following questions:

(1)Is there a continuing need for the Rule as currently promulgated?

(2)What costs has the Rule imposed on, and what benefits has the Rule provided to, purchasers of merchandise ordered by mail or telephone?

(3)In what respects has the Rule affected the operation of third-party dispute mediation agencies such as the Better Business Bureau (hereafter, “mediation agencies”), or state law enforcement agencies?

(4)What costs or benefits would amending the Rule explicitly to cover all computer and Internet orders impose on or provide to consumers, merchants, mediation agencies, or state law enforcement agencies? If the Commission decides to propose such a change, how should it revise the text of the Rule?

(5)What costs or benefits would amending the Rule to refer to payment by means other than cash, check, money order, or credit card impose on or provide to merchants, consumers, mediation agencies, or state law enforcement agencies? If the Commission decides to propose such a change, how should it revise the text of the Rule? Should the text provide an expanded list of payment methods, general classifications of payment methods (such as credit card vs. all other methods), or some other alternative?

(6)What costs or benefits would amending the Rule to permit Rule-required refunds or notices of charge reversals by means at least as fast and reliable as first class mail impose on or provide to merchants, consumers, mediation agencies, or state law enforcement agencies?

(7)What changes, if any, should the FTC make to the Rule to increase the benefits of the Rule to purchasers? How would these changes affect the costs the Rule imposes on firms subject to its requirements? How would these changes affect the benefits to purchasers?

(8)What burdens or costs, including costs of compliance, has the Rule imposed on firms subject to its requirements? Has the Rule provided benefits to such firms? If so, what benefits?

(9)What changes, if any, should the FTC make to the Rule to reduce the burdens or costs imposed on firms subject to its requirements? How would these changes affect the benefits provided by the Rule?

(10)How could any of the changes suggested in Part II of this notice be modified to reduce the burdens or costs imposed on firms subject to its requirements? How would these modifications affect the benefits provided to merchants, consumers, mediation agencies, or state law enforcement agencies?

(11)Does the Rule overlap or conflict with other federal, state, or local laws or regulations?

(12)Would any of the changes to the Rule suggested in Part II of this notice overlap or conflict with other federal, state, or local laws or regulations?

(13)Since the FTC issued the Rule in its current form, what effects, if any, have changes in relevant technology, commercial practices or economic conditions had on the Rule? To what extent would the changes to the Rule suggested in Part II of this notice accommodate these changes?

(14)To what extent are the changes discussed in Part II of this notice either substantive or non-substantive?

(15)Should the Commission make any of the changes suggested in Part III of this notice? VI. Communications by Outside Parties to Commissioners or Their Advisors Written communications and summaries or transcripts of oral communications respecting the merits of this proceeding from any outside party to any Commissioner or Commissioner’s advisor will be placed on the public record. *See* 16 CFR 1.26(b)(5). List of Subjects in 16 CFR Part 435 Mail order merchandise, Telephone order merchandise, Trade practices. Authority: 15 U.S.C. 41-58. By direction of the Commission. Donald S. Clark Secretary [FR Doc. E7-17778 Filed 9-10-07: 8:45 am] BILLING CODE 6750-01-S DEPARTMENT OF HOMELAND SECURITY Bureau of Customs and Border Protection 19 CFR Part 122 [USCBP-2007-0017] Addition of San Antonio International Airport to List of Designated Landing Locations for Certain Aircraft AGENCY: Customs and Border Protection; Department of Homeland Security. ACTION: Proposed rule. SUMMARY: This document proposes to amend the Customs and Border Protection

(CBP)Regulations by adding the San Antonio International Airport (SAT), located in San Antonio, Texas, to the list of designated airports at which certain aircraft arriving in the continental United States from certain areas south of the United States must land for CBP processing. This proposed amendment is made to improve the effectiveness of CBP enforcement efforts to combat the smuggling of contraband by air into the United States from the south. DATES: Comments must be received on or before November 13, 2007. ADDRESSES: You may submit comments, identified by docket number, by one of the following methods: • *Federal eRulemaking Portal:* *http://www.regulations.gov* . Follow the instructions for submitting comments via docket number USCBP-2007-0017. • *Mail:* Border Security Regulations Branch, Office of Regulations and Rulings, Customs and Border Protection, 1300 Pennsylvania Avenue, NW., (Mint Annex), Washington, DC 20229. *Instructions:* All submissions received must include the agency name and docket number for this rulemaking. All comments received will be posted without change to *http://www.regulations.gov* , including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* For access to the docket to read background documents or comments received, go to *http://www.regulations.gov* . Submitted comments may also be inspected during regular business days between the hours of 9 a.m. and 4:30 p.m. at the Office of Regulations and Rulings, Customs and Border Protection, 799 9th Street, NW., 5th Floor, Washington, DC. Arrangements to inspect submitted comments should be made in advance by calling Mr. Joseph Clark at

(202)572-8768. FOR FURTHER INFORMATION CONTACT: Fred Ramos, Program Manager, Traveler Security and Facilitation, Office of Field Operations, Customs and Border Protection at

(202)344-3726. SUPPLEMENTARY INFORMATION: Public Participation Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the proposed rule. CBP also invites comments that relate to the economic, environmental, or federalism affects that might result from this proposed rule. Comments that will provide the most assistance to CBP will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. Background As part of CBP's efforts to combat drug-smuggling activities, CBP air commerce regulations were amended in 1975 by Treasury Decision (T.D.) 75-201, to impose special reporting requirements and control procedures on certain aircraft arriving in the continental United States via the U.S./Mexican border, the Pacific Coast, the Gulf of Mexico, or the Atlantic Coast from certain locations in the southern portion of the Western Hemisphere. These special reporting requirements apply to all aircraft except the following: Public aircraft; those aircraft operated on a regularly published schedule, pursuant to a certificate of public convenience and necessity or foreign aircraft permit issued by the Department of Transportation authorizing interstate, overseas air transportation; and those aircraft with a seating capacity of more than 30 passengers or a maximum payload capacity of more than 7,500 pounds which are engaged in air transportation for compensation or hire on demand (see 19 CFR 122.23(a)). Thus, since 1975, commanders of such aircraft have been required to furnish CBP with timely notice of their intended arrival, and required to land at the nearest airport to the point of crossing designated by CBP for processing. Specifically, the regulations (19 CFR 122.23) provide that subject aircraft arriving in the continental United States from certain areas south of the United States must furnish a notice of intended arrival to the designated airport located nearest the point of crossing. Section 122.24(b) (19 CFR 122.24(b)) provides that, unless exempt, such aircraft must land at designated airports for CBP processing and delineates the airports designated for reporting and processing purposes for these aircraft. During the previous six years, aircraft subject to the special reporting requirements entering the United States from the specified foreign areas at a point of crossing near San Antonio, were required to land at San Antonio International Airport

(SAT)for processing by CBP. These international flights have been arriving at SAT since November 2000, when SAT was temporarily designated as an airport where aircraft arriving from certain southern areas could land pursuant to section 1453 of the Tariff Suspension and Trade Act of 2000 (Pub. L. 106-476, Nov. 9, 2000). The Miscellaneous Trade and Technical Corrections Act of 2004 (Pub. L. 108-429, Dec. 3, 2004) effectively extended the airport's designation through November 9, 2006. This statutory designation has now expired. Community officials from San Antonio, Texas and the surrounding region have written CBP requesting that SAT be designated by regulation as an airport where aircraft arriving from certain southern areas must land. During the six years that SAT has been statutorily designated as an airport at which these aircraft arriving from the south may land for customs processing, CBP has reported no incidents or problems arising from this designation. Such a designation will impose no additional burdens on CBP as CBP already has a significant presence at SAT, processing international passengers arriving on scheduled commercial airliners as a landing rights airport. These same CBP personnel have been processing passengers arriving from the south since SAT was temporarily designated as an airport where aircraft arriving from the south could land pursuant to the Tariff Suspension and Trade Act of 2000. SAT provides facilities and security and law enforcement support services, at no charge to CBP, to assist in the processing of aircraft. Consequently, by this document CBP is proposing to permanently designate SAT as an airport where certain aircraft, arriving in the United States from south of the United States, are authorized to land for CBP processing. Proposed Amendment to Regulations If the proposed airport designation is adopted, the list of designated airports, at which certain aircraft arriving in the continental United States from certain areas south of the United States must land for CBP processing, at 19 CFR 122.24(b), will be amended to include San Antonio International Airport, located in San Antonio, Texas. Authority This change is proposed under the authority of 5 U.S.C. 301, 19 U.S.C. 1433(d), 1644a, and 1624, and the Homeland Security Act of 2002, Public Law 107-296 (November 25, 2002). Signing Authority This amendment to the regulations is being issued in accordance with 19 CFR 0.2(a) pertaining to the authority of the Secretary of Homeland Security (or his or her delegate) to prescribe regulations not related to customs revenue functions. The Regulatory Flexibility Act and Executive Order 12866 This proposed amendment seeks to expand the list of designated airports at which certain aircraft may land for customs processing. As described in this document, certain international flights have been arriving at SAT, pursuant to statute, from November 2000, through November 9, 2006. The expansion of the list of designated airports to include SAT will not result in any new impact on affected parties but will result in a continuation of the previous situation. Therefore, CBP certifies that the proposed rule will not have significant economic impact on a substantial number of small entities. Accordingly, the document is not subject to the regulatory analysis or other requirements of 5 U.S.C. 603 and 604 of the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). The Office of Management and Budget has determined that this regulatory proposal is not a significant regulatory action as defined under Executive Order 12866. Dated: September 4, 2007. Michael Chertoff, Secretary. [FR Doc. E7-17802 Filed 9-10-07; 8:45 am] BILLING CODE 9111-14-P DEPARTMENT OF THE TREASURY Alcohol and Tobacco Tax and Trade Bureau 27 CFR Parts 4, 5, and 7 [Notice No. 74] RIN 1513-AB36 Modification of Mandatory Label Information for Wine, Distilled Spirits, and Malt Beverages AGENCY: Alcohol and Tobacco Tax and Trade Bureau, Treasury. ACTION: Notice of proposed rulemaking; solicitation of comments. SUMMARY: In this notice, the Alcohol and Tobacco Tax and Trade Bureau

(TTB)proposes to amend its regulations regarding the mandatory labeling requirements for alcoholic beverages. The proposed regulatory changes would permit alcohol content to appear on other labels affixed to the container rather than on the brand label as currently required. These regulatory changes will provide greater flexibility in alcoholic beverage labeling, and will conform the TTB wine labeling regulations to the recent agreement reached by members of the World Wine Trade Group regarding the presentation of certain information on wine labels. DATES: Comments must be received on or before November 13, 2007. ADDRESSES: You may send comments on this notice to one of the following addresses: • *http://www.regulations.gov* (Federal e-rulemaking portal; follow the instructions for submitting comments); or • Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412. See the Public Participation section of this notice for specific instructions and requirements for submitting comments, and for information on how to request a public hearing. You may view copies of this notice and any comments we receive about this proposal at *http://www.regulations.gov.* You also may view copies of this notice and any comments we receive about this proposal by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. To make an appointment, call 202-927-2400. FOR FURTHER INFORMATION CONTACT: Mari A. Kirrane, Wine Trade and Technical Advisor, Alcohol and Tobacco Tax and Trade Bureau, 221 Main Street, Suite 1340, San Francisco, CA 94105; telephone

(415)625-5793. SUPPLEMENTARY INFORMATION: Background TTB Authority Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau

(TTB)administers the regulations promulgated under the FAA Act. Current TTB Mandatory Brand Labeling Requirements for Wine Part 4 of the TTB regulations (27 CFR part 4) sets forth the requirements for labeling and advertising wine promulgated under the FAA Act. Section 4.10 (27 CFR 4.10) defines a brand label as the label carrying, in the usual distinctive design, the brand name of the wine. Section 4.32 (27 CFR 4.32) prescribes mandatory label information. Section 4.32(a) requires a statement of the following on the brand label: • The brand name, in accordance with § 4.33; • The class, type, or other designation, in accordance with § 4.34; • The alcohol content, in accordance with § 4.36; and • On blends consisting of American and foreign wines, if any reference is made to the presence of foreign wine, the exact percentage by volume. In addition, § 4.32(b) lists other mandatory label information, which may appear on any label affixed to the container. Current TTB Mandatory Brand Labeling Requirements for Distilled Spirits Part 5 of the TTB regulations (27 CFR part 5) sets forth the requirements for labeling and advertising distilled spirits promulgated under the FAA Act. Section 5.11 (27 CFR 5.11) defines a brand label as the principal display panel that is most likely to be displayed, presented, shown, or examined under normal and customary conditions of display for retail sale, and any other label appearing on the same side of the bottle as the principal display panel. The principal display panel appearing on a cylindrical surface is that 40 percent of the circumference which is most likely to be displayed, presented, shown, or examined under normal and customary conditions of display for retail sale. Section 5.32 (27 CFR 5.32) prescribes mandatory label information. Section 5.32(a) requires a statement of the following on the brand label: • The brand name; • The class and type, in accordance with § 5.35; and • The alcohol content, in accordance with § 5.37. In addition, § 5.32(b) lists the mandatory label information that must appear on either the brand label or the back label, including net contents and the country of origin of imported spirits. Current TTB Mandatory Brand Labeling Requirements for Malt Beverages Part 7 of the TTB regulations (27 CFR part 7) sets forth the requirements for labeling and advertising malt beverages promulgated under the FAA Act. Section 7.10 (27 CFR 7.10) defines a brand label as the label carrying, in the usual distinctive design, the brand name of the malt beverage. Section 7.22 (27 CFR 7.22) prescribes mandatory label information. Section 7.22(a) requires a statement of the following on the brand label: • The brand name, in accordance with § 7.23; • The class, in accordance with § 7.24; • The name and address (except when branded or burned in the container) in accordance with § 7.25, except as provided in § 7.22(b); • The net contents (except when blown, branded, or burned, in the container) in accordance with § 7.27; and • The alcohol content in accordance with § 7.71, for malt beverages that contain any alcohol derived from added flavors or other added nonbeverage ingredients (other than hops extract) containing alcohol. In addition, § 7.22(b) lists mandatory label information that must appear on either the brand label or on a separate label (front or back). World Wine Trade Group Agreement The World Wine Trade Group

(WWTG)is a six-member informal group composed of both government officials and industry representatives from Argentina, Australia, Canada, Chile, New Zealand, and the United States. The WWTG was formed to discuss and address issues relating to international wine trade, including reducing and preventing non-tariff barriers to wine trade. An inter-agency team composed of representatives from, among others, TTB, the Food and Drug Administration, and the Departments of Commerce, State, and Agriculture, represents the U.S. Government during WWTG discussions. The Office of the U.S. Trade Representative heads the inter-agency team. The WWTG recently concluded negotiations on a wine labeling agreement intended to facilitate further wine trade among members. The WWTG Agreement on Requirements for Wine Labelling, hereinafter referred to as the “Agreement,” was initialed on September 20, 2006, and was signed in Canberra, Australia, on January 23, 2007. A full copy of the Agreement can be viewed at *http://www.ita.doc.gov/td/ocg/WWTG-wine%20Labelling%20Agreement.pdf* . These negotiations proceeded from the view that common labeling requirements would provide industry members with the opportunity to use the same label when shipping wine to each of the WWTG member countries. In the course of the negotiations, it was recognized that certain items of information are considered mandatory by most members. Referred to as “Common Mandatory Information” in the WWTG Agreement (hereinafter CMI), these four items are country of origin, alcohol content (by percentage of volume), net contents, and product name. The negotiated Agreement also incorporates the “Single Field of Vision” concept for the placement of the CMI. A “Single Field of Vision” is any part of the surface of the container, excluding its base and cap, that can be seen without having to turn the container. Under this approach, as long as all four of the CMI elements are visible at the same time, they will meet the placement requirements (if any) of each member country. According to the terms of the Agreement, each country must permit the CMI for an imported wine to appear on any label anywhere on the wine container (except the base or cap), provided all four CMI items are in a Single Field of Vision. Conforming TTB Regulations to the WWTG Agreement The United States will not be in compliance with the Agreement if the TTB regulations are in conflict with the CMI terms of the Agreement. Accordingly, TTB has reviewed its regulations to determine if any change is necessary in order for the United States to meet its obligation to permit these four pieces of information to appear in a single field of vision on labels of imported wines, as outlined in the Agreement. The TTB regulations do not require the inclusion of the country of origin on wine labels. This requirement is contained in statutory and regulatory provisions administered by the U.S. Bureau of Customs and Border Protection (CBP; see 19 U.S.C. 1304 and 19 CFR part 134). Consistent with these requirements, the country of origin may appear on any label affixed to a container of imported wine. The product name under the Agreement is the word “wine” and the TTB regulations contain no specific requirements for, or restrictions on, the use of “wine” alone on wine labels. As already noted in this document, the TTB regulations permit net contents to appear on any label affixed to the container. Thus, the only conflict that the TTB wine label regulations have with the CMI terms of the Agreement is in the regulatory requirement for alcohol content to appear on the brand label. Although the Agreement applies only to imported wine, we note that the provisions in the TTB regulations described above that concern the labeling of wine, distilled spirits, and malt beverages all contain similar provisions regarding the placement of alcohol content on the brand label. TTB considered the question of whether allowing alcohol content to appear on a label other than the brand label for all three beverage groups would continue to provide consumers with adequate information regarding product identity and quality, as required under the FAA Act. In this regard, TTB notes that consumers currently may have to look beyond the brand label for alcohol beverage product identity and quality information. Specifically, under § 4.32, the required FD&C Yellow No. 5 statement may appear on a brand label or back label, the required declaration of sulfites may appear on a front, back, strip, or neck label, and the net contents generally may appear on any label affixed to the container. Under § 5.32, the required FD&C Yellow No. 5 statement may appear on the brand label or back label, the required declaration of sulfites may appear on a strip label or neck label in lieu of appearing on the front or back label, and the net contents may appear on the brand label or on a back label in the case of distilled spirits packaged in containers conforming to the standards of fill prescribed in § 5.47 or § 5.47a. Under § 7.22, the required FD&C Yellow No. 5 statement may appear on the brand label or on a separate label on the back or front. We believe that it is preferable, to the greatest extent possible, to have consistency among the labeling regulations for wine, distilled spirits, and malt beverages. Accordingly, we are proposing corresponding changes to all of those provisions regarding alcohol content statements on brand labels. In this document, we are proposing to move the alcohol content requirements from paragraph

(a)of §§ 4.32, 5.32, and 7.22 (label information required to appear on a brand label) to paragraph

(b)of each of those sections, which prescribes in each case mandatory label requirements for information that need not appear on the brand label. The change in § 4.32 will allow industry members to apply the WWTG “Single Field of Vision” concept concerning the placement of CMI on labels. The additional changes in §§ 5.32, and 7.22 will foster consistency in the labeling requirements among all TTB-regulated alcohol beverage products. This proposal is limited to removing the placement requirement for alcohol content. All other formatting requirements, such as type size and legibility, would remain the same. As previously noted, consumers are already looking beyond the brand label for product information. Moreover, the proposed rule would provide industry members with the flexibility to place alcohol content on container labels in close proximity to other consumer information, such as sulfite and FD&C Yellow No. 5 information. Finally, we note that alcohol beverage industry members would not be required to make any changes to their current labels as a result of this regulatory change because, under the proposal, alcohol content information could still be placed on the brand label. The Agreement does not require that U.S. wine producers or importers place the four CMI elements in a Single Field of Vision, only that each country accept imported wines labeled in that way. The Single Field of Vision concept is an optional labeling format and the proposed changes to our regulations will accommodate those who wish to label their wines in that manner. Effect on Currently Approved Labels Sections 4.40, 4.50, 5.51, 5.55, 7.31 and 7.41 of the TTB regulations (27 CFR 4.40, 4.50, 5.51, 5.55, 7.31 and 7.41) generally require that regulated industry members obtain a certificate of label approval

(COLA)from TTB prior to the bottling or removal of domestic wines, distilled spirits, or malt beverages, or the release of imported wines, distilled spirits, or malt beverages, in containers, from customs custody for consumption. No COLA is required for alcoholic beverages labeled for export. It is the position of TTB that, if the proposed regulatory amendment is adopted as a final rule, a new COLA would not be required if the only change made to the labels appearing on a previously issued COLA is moving the alcohol content to a label other than the brand label. Public Participation Comments Invited We invite comments from interested members of the public on this proposed rulemaking. Submitting Comments You may submit comments on this notice by one of the following two methods: • *Federal e-Rulemaking Portal:* To submit a comment on this notice using the online Federal e-rulemaking portal, visit *http://www.regulations.gov.* and select “Alcohol and Tobacco Tax and Trade Bureau” from the agency drop-down menu and click “Submit.” In the resulting docket list, click the “Add Comments” icon for the appropriate Docket number and complete the resulting comment form. You may attach supplemental files to your comment. More complete information on using Regulations.gov., including instructions for accessing open and closed dockets and for submitting comments, is available through the site's “User Tips” link. • *Mail* : You may send written comments to the Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412. Please submit your comments by the closing date shown above in this notice. Your comments must include this notice number and your name and mailing address. Your comments must be legible and written in language acceptable for public disclosure. We do not acknowledge receipt of comments, and we consider all comments as originals. If you are commenting on behalf of an association, business, or other entity, your comment must include the entity's name as well as your name and position title. If you comment via *http://www.regulations.gov.* , please enter the entity's name in the “Organization” blank of the comment form. If you comment via mail, please submit your entity's comment on letterhead. You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing. Confidentiality All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure. Public Disclosure On the Federal e-rulemaking portal, we will post, and you may view, copies of this notice and any electronic or mailed comments we receive about this proposal. To view a posted document or comment, go to *http://www.regulations.gov.* and select “Alcohol and Tobacco Tax and Trade Bureau” from the agency drop-down menu and click “Submit.” In the resulting docket list, click the appropriate docket number, then click the “View” icon for any document or comment posted under that docket number. All submitted and posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including e-mail addresses. We may omit voluminous attachments or material that we consider unsuitable for posting. You also may view copies of this notice and any electronic or mailed comments we receive about this proposal by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. You may also obtain copies at 20 cents per 8.5- x 11-inch page. Contact our information specialist at the above address or by telephone at 202-927-2400 to schedule an appointment or to request copies of comments or other materials. Regulatory Analysis and Notices Executive Order 12866 We have determined that this proposed rule is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. Regulatory Flexibility Act Pursuant to the requirements of the Regulatory Flexibility Act (5 U.S.C. chapter 6), we certify that this notice of proposed rulemaking will not have a significant economic impact on a substantial number of small entities. The propose rule will not impose, or otherwise cause, a significant increase in reporting, recordkeeping, or other compliance burdens on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required. Paperwork Reduction Act The collection of information in this rule has been previously approved by the Office of Management and Budget

(OMB)under the title “Labeling and Advertising Requirements Under the Federal Alcohol Administration Act,” and assigned control number 1513-0087. This proposed regulation would not result in a substantive or material change in the previously approved collection action, since the nature of the mandatory information that must appear on labels affixed to the container remains unchanged. Drafting Information Maria Mahone of the Knowledge Management Staff drafted this document. List of Subjects 27 CFR Part 4 Advertising, Customs duties and inspection, Imports, Labeling, Packaging and containers, Reporting and recordkeeping requirements, Trade practices, Wine. 27 CFR Part 5 Advertising, Customs duties and inspection, Imports, Labeling, Liquors, Packaging and containers, Reporting and recordkeeping requirements, Trade practices. 27 CFR Part 7 Advertising, Beer, Customs duties and inspection, Imports, Labeling, Reporting and recordkeeping requirements, Trade practices. Amendment to the Regulations For the reasons discussed in the preamble, TTB proposes to amend 27 CFR, parts 4, 5, and 7, as follows: PART 4—LABELING AND ADVERTISING OF WINE 1. The authority citation for part 4 continues to read as follows: Authority: 27 U.S.C. 205, unless otherwise noted. 2. In § 4.32: a. Paragraph (a)(3) is removed and reserved; and b. A new paragraph (b)(3) is added to read as follows: § 4.32 Mandatory label information.

(b)* * *

(3)Alcohol content, in accordance with § 4.36. PART 5—LABELING AND ADVERTISING OF DISTILLED SPIRITS 3. The authority citation for part 5 continues to read as follows: Authority: 26 U.S.C. 5301, 7805, 27 U.S.C. 205. 4. In § 5.32: a. Paragraph (a)(3) is removed and reserved; and b. Paragraph (b)(6) is added to read as follows: § 5.32 Mandatory label information.

(b)* * *

(6)Alcohol content, in accordance with § 5.37. PART 7—LABELING AND ADVERTISING OF MALT BEVERAGES 5. The authority citation for part 7 continues to read as follows: Authority: 27 U.S.C. 205. 6. In § 7.22: a. Paragraph (a)(5) is removed and reserved; and b. Paragraph (b)(3) is revised to read as follows: § 7.22 Mandatory label information.

(b)* * *

(3)Alcohol content, in accordance with § 7.71, when required by State law or for malt beverages that contain any alcohol derived from added flavors or other added nonbeverage ingredients (other than hops extract) containing alcohol. Signed: January 8, 2007. John J. Manfreda, Administrator. Approved: May 21, 2007. Timothy E. Skud, Deputy Assistant Secretary (Tax, Trade, and Tariff Policy). Editorial Note: This document was received at the Office of the Federal Register on September 6, 2007. [FR Doc. E7-17909 Filed 9-10-07; 8:45 am] BILLING CODE 4810-31-P DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1910 [Docket No. H-010] RIN 1218-AC17 Emergency Response and Preparedness AGENCY: Occupational Safety and Health Administration (OSHA), Department of Labor. ACTION: Request for information. SUMMARY: Elements of emergency responder health and safety are currently regulated by OSHA primarily under the following standards: The Hazardous Waste Operations and Emergency Response Standard; the personal protective equipment general requirements standard; the respiratory protection standard; the permit-required confined space standard; the fire brigade standard; and the bloodborne pathogens standard. Some of these standards were promulgated decades ago, and none was designed as a comprehensive emergency response standard. Consequently, they do not address the full range of hazards or concerns currently facing emergency responders, nor do they reflect major changes in performance specifications for protective clothing and equipment. Current OSHA standards also do not reflect all the major improvements in safety and health practices that have already been accepted by the emergency response community and incorporated into industry consensus standards. OSHA is requesting information and comment from the public to evaluate what action, if any, the Agency should take to further address emergency response and preparedness. The Agency will be considering emergency response and preparedness at common emergencies (e.g., fires or emergency medical and other rescue situations), as well as large scale emergencies (e.g., natural and intentional disasters). OSHA's areas of interest are primarily: personal protective equipment; training and qualifications; medical evaluation and health monitoring; and safety management. The agency will also be evaluating the types of personnel who would constitute either emergency responders or skilled support employees at such events, as well as the range of activities that might constitute emergency response and preparedness. DATES: Comments must be submitted by the following dates: *Hard copy:* Your comments must be submitted (postmarked or sent) by December 10, 2007. *Facsimile and electronic transmission:* Your comments must be sent by December 10, 2007. ADDRESSES: You may submit comments, requests for hearings and additional materials by any of the following methods: *Electronically:* You may submit comments, requests for hearings, and attachments electronically at *http://www.regulations.gov,* which is the Federal eRulemaking Portal. Follow the instructions on-line for making electronic submissions. *Fax:* If your submissions, including attachments, are not longer than 10 pages, you may fax them to the OSHA Docket Office at

(202)693-1648. *Mail, hand delivery, express mail, messenger or courier service:* You must submit three copies of your comments, requests for hearings and attachments to the OSHA Docket Office, Docket No. S-023B, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210. Deliveries (hand, express mail, messenger and courier service) are accepted during the Department of Labor's and Docket Office's normal business hours, 8:15 a.m.-4:45 p.m., e.t. *Instructions:* All submissions must include the Agency name and the OSHA docket number for this rulemaking (OSHA Docket No. S-023B). Submissions, including any personal information you provide, are placed in the public docket without change and may be made available online at *http://www.regulations.gov.* *Docket:* To read or download submissions or other material in the docket, go to *http://www.regulations.gov* or the OSHA Docket Office at the address above. All documents in the docket are listed in the *http://www.regulations.gov* index, however, some information (e.g., copyrighted material) is not publicly available to read or download through the Web site. All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. FOR FURTHER INFORMATION CONTACT: *Press Inquiries:* Kevin Ropp, Director, OSHA Office of Communications, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone:

(202)693-1999. *General and Technical Information:* Carol Jones, Acting Director, Office of Biological Hazards, OSHA Directorate of Standards and Guidance, Room N-3718, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone:

(202)693-2299. SUPPLEMENTARY INFORMATION: Table of Contents I. Background II. Request for Data, Information and Comments A. The Scope of Emergency Response B. Personal Protective Equipment C. Training and Qualifications D. Medical Evaluation and Health Monitoring E. Safety F. Additional Information III. Public Participation IV. Authority and Signature I. Background There were more than 21 million emergency response incidents in 2002 (see Table 1). Emergency responders include: Firefighters, emergency medical service personnel, hazardous material employees, and technical rescue specialists. Law enforcement officers are also usually considered emergency responders and are often called to assist in emergency response incidents. OSHA notes, however, that it has not promulgated standards specifically addressing occupational hazards that are inherently and uniquely related to law enforcement activities. Many emergency responders are cross-trained and may serve in multiple roles depending upon the nature of the emergency incident. The hazards that emergency responders face will also vary depending upon the type of incident. In addition to emergency responders, skilled support employees can also play an important role in emergency response. Skilled support employees are not emergency responders, but nonetheless have specialized training that can be important to the safe and successful resolution of an emergency incident, such as operating heavy equipment or shutting down electrical power or natural gas. Emergency response, which includes firefighting, is one of the most hazardous occupations in America. The United States Fire Administration has recently reported that 111 firefighters died in 2003, and that, on average, 100 firefighters have died each year for the last ten years (excluding the fatalities attributable to the terrorist attacks of September 11, 2001) (Ex. 1-2). Furthermore, the National Fire Protection Association

(NFPA)reported that during the 10-year period of 1993-2002, approximately 594,000 firefighters were injured in the line of duty at emergency response incidents. The average annual rate of firefighter injuries is more than 59,000 per year for this period (Ex. 1-2). Table 1.—Distribution of 2002 U.S. Emergency Incidents as Reported by the National Fire Protection Association Emergency response Number Fires 1,687,500 Medical Aid 12,903,000 False Alarms 2,116,000 Mutual Aid/Assistance 888,500 Hazmat 361,000 Other Hazardous (Arcing wires, bomb removal, etc.) 603,500 All Other (Smoke scares, lock-outs, etc.) 2,744,000 Total 21,303,500 ( *Source:* Ex. 1-3) While the preceding statistics concern firefighters, this Request for Information is intended to gather information about all emergency responders and skilled support employees. However, injury and illness rates for other facets of emergency response are difficult to determine due to the multiple roles of some responders (e.g., many firefighters are also EMTs) and a lack of specific data (e.g., injury and illness rates of skilled support employees, such as heavy equipment operators, arising directly from emergency response activities). OSHA is interested in receiving information about the number and types of responder fatalities, injuries, and illnesses incurred during emergency incidents. A recent report by the U.S. Fire Administration, *A Needs Assessment of the U.S. Fire Service,* examined the condition of the fire service and its ability to respond to incidents, both large and small (Ex. 1-4). The report found that fire departments of all sizes have unmet needs relating to both their traditional firefighting responsibilities and their new homeland security-related responsibilities. In addition, another report by the U.S. Fire Administration and the National Fallen Firefighters Foundation, *Firefighter Life Safety Summit Initial Report,* found that there are many significant health and safety concerns among the fire service (Ex. 1-5). The report recognized the need for national standards on training, qualifications, medical and physical fitness, as well as for emergency response policies and procedures. A series of three joint reports by the National Institute for Occupational Safety and Health (NIOSH) and the RAND Corporation

(RAND)have also recognized a need for further standards in order to improve the operational response to terrorist attacks and better protect the health and safety of emergency responders ( *Protecting Emergency Responders: Lessons Learned from Terrorist Attacks; Protecting Emergency Responders (Ex. 1-6); Volume 2: Community Views of Safety and Health Risks and Personal Protection Needs; and Protecting Emergency Responders (Ex. 1-7); Volume 3: Safety Management in Disaster and Terrorism Response* (Ex. 1-8)). Furthermore, the Homeland Security Act of 2002 (6 U.S.C. 101) and Homeland Security Presidential Directive #8 (HSPD#8), which were established to strengthen the preparedness of the United States to prevent and respond to threatened or actual domestic terrorist attacks, major disasters, and other emergencies, have changed the Federal approach to emergency response and preparedness capabilities at Federal, State, and local entities (Ex. 1-9). In March of 2004, the Department of Homeland Security published the National Incident Management System

(NIMS)(Ex. 1-10). This system provides a consistent nationwide approach for Federal, State, local and tribal governments to work effectively and efficiently together to prepare for, prevent, respond to, and recover from domestic incidents, regardless of cause, size, or complexity. Homeland Security Presidential Directive #5 (HSPD#5) requires all Federal agencies to implement NIMS, and also requires Federal agencies to make the NIMS a required element for receiving State and local preparedness grant funding (Ex. 1-11). Additionally, in January 2005, the Department of Homeland Security released the National Response Plan (NRP), which establishes a comprehensive all-hazards approach to enhance the ability of the United States to manage domestic incidents (Ex. 1-12). The NRP incorporates best practices and procedures from incident management disciplines—homeland security, emergency management, law enforcement, firefighting, public works, public health, responder and recovery worker health and safety, emergency medical services, and the private sector—and integrates them into a unified structure. The NRP forms the basis of how Federal departments and agencies will work together and how the Federal government will coordinate with State, local, and tribal governments and the private sector during incidents. In addition, the NRP establishes protocols that are applicable to emergency responders and skilled support employees in order to help protect the nation from terrorist attacks and other natural and manmade hazards; save lives; protect public health, safety, property, and the environment; and reduce adverse psychological consequences and disruptions to the American way of life. OSHA addresses the elements of emergency responder health and safety primarily by the following OSHA standards: The hazardous waste operations and emergency response standard (29 CFR 1910.120); the personal protective equipment general requirements standard (29 CFR 1910.132); the respiratory protection standard (29 CFR 1910.134); the permit-required confined space standard (29 CFR 1910.146); the fire brigade standard (29 CFR 1910.156); and the bloodborne pathogens standard (29 CFR 1910.1030). These standards were designed to address the health and safety needs of employees over a broad cross-section of industries and workplaces. None of these standards was designed as a comprehensive emergency response standard, and as a result, specific hazards are addressed in a piecemeal manner, and important concepts in emergency management are not addressed at all. In addition, the OSHA standards do not address the full range of hazards or concerns currently facing emergency responders. Some of these standards rely on outdated performance specifications for protective equipment. For example, the current standard on firefighters' protective clothing is based on the 1975 edition of the NFPA 1971 standard. Current OSHA standards do not reflect many of the major developments in safety and health practices that have already been accepted by the emergency response community and incorporated into the consensus standards promulgated by the NFPA and other standards development organizations. For example, the use of an incident management system is currently required only by the Hazardous Waste Operations and Emergency Response Standard (29 CFR 1910.120). While the Hazardous Waste Operations and Emergency Response Standard does cover hazardous materials incidents, it does not cover most types of emergency incidents (e.g., fires, technical rescue, structural collapse or natural disasters). In addition, coverage issues impact the Agency's activities in these areas. Many emergency responders are state and local government employees who are covered by requirements in State or local laws, either under the authority of an OSHA-approved state plan or through voluntarily established State protection programs rather than under Federal rules. In the case of the Hazardous Waste Operations and Emergency Response Standard, State and local employees in States without an OSHA-approved plan are also covered under an Environmental Protection Agency standard (40 CFR 311) that incorporates the OSHA requirements by reference. State and local government employees are excluded from OSHA coverage under the Occupational Safety and Health Act of 1970 (the “OSH Act”). However, pursuant to Section 18 of the OSH Act, there are 26 States and territories operating their own workplace safety and health programs under plans approved by OSHA (“State plans”), which are required to extend their coverage to public sector (State and local government) employees and employers in those jurisdictions, including many emergency responders. The 21 States and one territory covering both private sector and State and local government employment have primary responsibility for the OSHA program in their jurisdictions. All State plans, including the 4 covering only State and local government, are responsible for adopting and enforcing standards which are “at least as effective as” Federal OSHA standards, and for providing compliance assistance to employers and employees under their jurisdiction. Some State plans have adopted different or supplemental standards or guidance regarding emergency response and preparedness that exceed the existing Federal OSHA standards. Some States have established public employer employee protection programs without OSHA State Plan approval and funding. Many other public sector employers still rely on the OSHA standards as an important guide in safety and health matters, even though they are not legally required to do so. OSHA has significant experience and expertise on matters related to emergency responder health and safety. OSHA personnel, as well as personnel from the OSHA-approved State plans, routinely respond to emergencies to provide technical assistance and assure employee safety. Following the terrorist attacks at the World Trade Center on September 11, 2001, OSHA helped establish a strong and effective public-private partnership to help ensure protection for the employees at the site. At the national level, the Department of Labor, OSHA, has been designated the coordinating agency for employee safety and health under the National Response Plan (NRP). Additionally, many of the OSHA-approved State plans are working to establish a parallel role within their State emergency response structure and have implemented or assisted in the development of emergency preparedness and homeland security related initiatives and guidance materials at the State level. The Agency has developed a wide range of technical assistance and guidance documents about the issue of emergency response as well as emergency responder health and safety ( *http://www.osha.gov/SLTC/emergencypreparedness/index.html* ). The OSHA Training Institute offers a variety of courses on topics essential to the safety and health of both uniformed emergency responders and skilled support employees ( *http://www.osha.gov/dcsp/ote/index.html* ). In addition, OSHA, in collaboration with the National Institute of Environmental Health Sciences (NIEHS), has developed a pre-event hazards awareness course for Disaster Site Workers who may respond as skilled support employees to natural or man-made emergencies (e.g., heavy equipment operators, construction workers, and electrical power or natural gas utility employees). This course is taught by OSHA Training Institute Education Centers and OSHA-authorized trainers. On August 29, 2005, Hurricane Katrina devastated the Gulf Coast of the southeastern United States; the City of New Orleans was particularly affected. The emergency response to Hurricane Katrina underscored the importance of planning and preparedness, as well as the multidisciplinary nature of emergency response. OSHA expects that the lessons learned from this incident will be represented in the responses to this Request for Information alongside the lessons learned from both more common events as well as other events of national significance. OSHA is requesting information and comment from the public to evaluate what action, if any, the Agency should take to further address emergency response and preparedness. II. Request for Data, Information and Comments The following questions have been provided to facilitate the collection of the needed information and to make it easier for the public to comment on relevant issues. The questions are grouped into five broad categories: The scope of emergency response; personal protective equipment; training and qualifications; medical evaluation and health monitoring; and safety. However, commenters are encouraged to address any aspect of emergency response and preparedness that they feel would assist the Agency in considering appropriate action on the matter. The Agency is particularly interested in ways to incorporate flexibility into its standards to make them more suited to the demands of emergency response activities. A detailed response to questions, as well as your rationale or reasoning for the position, rather than simply replying “yes” or “no,” is requested. Also, relevant data that may be useful to OSHA's deliberations, or in conducting an analysis of impacts of future Agency actions, should be submitted. In order to assess the costs, benefits or feasibility of any possible regulatory intervention, the Agency needs specific quantitative information on various safety measures being discussed. Therefore, for those instances where you recommend a specific intervention, any data in terms of costs and benefits that helps form the recommendation would be valuable. The usefulness of your response will be increased if they are tied to the categories and sections. Please label your responses with the lettered category and question number. A. The Scope of Emergency Response The terms “emergency response” and “emergency responder” have been defined and used differently in various government laws and regulations as well as industry consensus standards and reports. Additionally, emergency response work is unlike many other types of employment, in that the actual work site and hazards will vary based upon the location and nature of the incident. As the Agency considers the issue of emergency response, it is important to define the scope and nature of work activities that might be called emergency response and preparedness, as well as the types of employees and work activities that might be associated with emergency response and preparedness. 1. Emergency response and preparedness activities occur at both common incidents (e.g., fires, car accidents, or structural collapses) and rare or unexpected incidents (e.g., natural disasters, terrorist attacks, or special events that require enhanced preparedness). If the Agency takes action on emergency response and preparedness, should it consider either all types of emergency incidents (e.g., both common and rare events) or should certain types of incidents be excluded? If you believe a limited range is appropriate, what types of incidents or activities should be included or excluded? 2. Emergency response and preparedness activities have historically included a range of events from pre-planning for an emergency, to the actual emergency response, and, ultimately, to remediation/recovery. Should OSHA consider the full continuum of activities to be considered “emergency response and preparedness”? If not, what is an appropriate range of activities for the Agency to consider, and why? 3. What are the factors that should indicate when the emergency response to an event has fully transitioned into remediation/recovery? 4. What types of work tasks (e.g., interior structural firefighting, exterior firefighting, pre-hospital emergency medical work, technical rescue, heavy equipment operation) should be considered emergency response or skilled support work? What are the hazards associated with each type of work task? Are there any specific work tasks that should be excluded from consideration (e.g., work that is inherently and exclusively performed by law enforcement officers)? 5. Are there any new data that describe the nature, magnitude, or impact of emergency response and preparedness operations (e.g., type and number of incidents, type and quantity of employees considered emergency responders, financial costs, or occupational injuries, illnesses, and fatalities) that OSHA should consider when evaluating the issue of emergency response and preparedness? In particular, are there relevant data on skilled support employees at emergency incidents or during preparedness activities? 6. Many emergency responders are State, county or municipal employees in States with OSHA-approved safety and health plans who are subject to the requirements of the State Plan-equivalent of the current OSHA standards in the same manner as private sector employees. As OSHA considers the necessity for further action on the safety and health of emergency responders, are there issues or concerns that are specific to such employers or employees that the Agency should consider? If your State has promulgated standards or issued guidance on emergency response and preparedness that differs from the existing OSHA standards and guidance, please describe the action taken as well as the impact and effect on the user community. Are there any concerns specific to the State agencies administering OSHA approved safety and health plans regarding OSHA's consideration of action in this area? 7. In States that do not have OSHA-approved workplace safety and health plans, to what extent are OSHA standards used as guidance for emergency responders who are public sector employees or as guidance for voluntary State public sector protection programs (e.g., personal protective clothing and equipment, training, and safety procedures)? B. Personal Protective Equipment Since a great deal of emergency response work occurs in an uncontrolled and dynamic work environment, personal protective equipment is a particularly important aspect of assuring the responding employees' health and safety. This section addresses a variety of types of personal protective equipment that emergency responders might use, depending on the nature of the hazards they face. The Agency is particularly interested in determining appropriate national consensus standards on the design and construction of such equipment as it considers the issue of emergency response and preparedness. 8. The current OSHA standard for firefighters' protective clothing is based upon the 1975 edition of “NFPA 1971, *Standard on Protective Ensemble for Structural Fire Fighting.* ” The NFPA standard specifies the minimum design, performance, and certification requirements, and test methods for structural firefighting protective ensembles that include protective coats, protective trousers, protective coveralls, helmets, gloves, footwear, and interface components. The OSHA standard still allows treated fabrics as an acceptable outer shell material in firefighters' protective clothing, rather than fabrics that are inherently flame resistant. More recent editions of NFPA 1971, recently renamed the *Standard on Protective Ensemble for Structural Fire Fighting and Proximity Fire Fighting,* require the use of fabrics that are inherently flame resistant. Inherently flame resistant fabrics are made from fibers where the flame resistance is an intrinsic property of the material, whereas treated materials are only made flame resistant by the application of a secondary chemical that can wear off or wash off over time (Ex. 1-13). Is the 1975 edition of NFPA 1971 still an appropriate standard for firefighters' protective clothing? Is the current edition of the NFPA standard, including the requirement for inherently flame resistant material, appropriate to consider? Should OSHA consider other standards, such as those issued by the International Standards Organization (ISO)? 9. With the exception of the shipyard fire protection standard (29 CFR 1915.505), OSHA standards do not require the use of a personal alert safety system

(PASS)device by firefighters in order to help locate missing, trapped, or incapacitated firefighters. Is such a device necessary and appropriate for firefighters' safety in non-shipyard situations? If so, under what circumstances is it to be used? Is the current edition of “NFPA 1982, *Standard on Personal Alert Safety Systems (PASS)* ” an appropriate standard to consider (Ex. 1-14)? This standard specifies the NFPA minimum design, performance, and certification requirements and test methods for all PASS to be used by firefighters and other emergency services personnel who engage in rescue, firefighting, and other hazardous duties. Are there additional features of a personnel accountability system, other than these safety devices, that should be an element of an emergency response system? Are there emergency response situations, other than firefighting, that should necessitate the use of a PASS device? Are emergency responders at your workplace provided with PASS devices? What are the costs of PASS devices or an alternate system? What is the expected service life of such a device in your work environment? Are there any data on their effectiveness? 10. It has been OSHA policy to enforce the use of “NFPA 1976, *Standard on Protective Ensemble for Proximity Fire Fighting* ” compliant protective clothing and equipment for proximity firefighting (e.g., jet fuel fires) ( *Standard Interpretations 04/03/1997—Appropriate protective clothing for aircraft firefighting* ) The NFPA 1976 standard has recently been subsumed in the NFPA 1971 standard on firefighter's protective clothing (Ex. 1-13). This standard contains the NFPA minimum design, performance, and certification requirements and the test methods for proximity protective ensembles, including protective coats, protective trousers, protective coveralls, helmets, gloves, footwear, and interface components. Does the NFPA 1971 standard adequately protect employees performing such proximity firefighting tasks? If not, what other standards should OSHA consider? 11. Under the respiratory protection standard (29 CFR 1910.134), OSHA requires that all self-contained breathing apparatus

(SCBA)be certified by the National Institute for Occupational Safety and Health (NIOSH) (42 CFR part 84). Because NIOSH does not test SCBA for exposure to heat and flame, is this certification adequate? Would it be appropriate for all SCBAs used for firefighting or emergency response to be certified by NIOSH and also certified as compliant with the current edition of “NFPA 1981, *Standard on Open-Circuit Self-Contained Breathing Apparatus

(SCBA)Emergency Services* ” (Ex. 1-15)? NFPA 1981 specifies the minimum requirements for the design, performance, testing, and certification of open-circuit SCBA and combination open-circuit self-contained breathing apparatus and supplied air respirators (SCBA/SAR) for fire and emergency services personnel and includes tests for heat and flame resistance. NIOSH requires this in its new Chemical, Biological, Radiological, and Nuclear

(CBRN)certification (42 CFR part 84). Are the SCBA currently used in your workplace compliant with the NFPA 1981 standard? 12. Emergency response to weapons of mass destruction such as chemical, biological, radiological, or nuclear

(CBRN)agents has increasingly become viewed as a component of a local emergency response. The U.S. Department of Homeland Security

(DHS)has adopted NIOSH and NFPA standards for CBRN personal protective equipment (PPE). For example, DHS requires CBRN chemical protective clothing to meet “NFPA 1994, *Standard on Protective Ensembles for CBRN Terrorism Incidents* ” (Ex. 1-16). This standard specifies the NFPA minimum requirements for the design, performance, testing, documentation, and certification of protective ensembles designed to protect fire and emergency services personnel from chemical/biological terrorism agents. These standards provide more detailed and stringent performance testing requirements for PPE than the OSHA Hazardous Waste Operations and Emergency Response Standard (29 CFR 1910.120), which requires only minimal testing for chemical resistance and garment integrity. Under what circumstances is protective clothing tested to meet the NIOSH and NFPA standards necessary (e.g., all emergency responses, or emergency response to a known or suspected CBRN agent, or only during remediation or recovery)? Similarly, the Department of Homeland Security has adopted “NFPA 1991, *Standard on Vapor-Protective Ensembles for Hazardous Materials Emergencies* ” for use against toxic industrial chemical

(TICs)and toxic industrial materials

(TIMs)(Ex. 1-17). Are there emergency response situations that would necessitate the use of chemical protective clothing that was certified to NFPA chemical protective clothing standards, which involves more thorough testing than chemical protective clothing currently specified under the Hazardous Waste Operations and Emergency Response Standard? Are there any other standards on chemical protective clothing that OSHA should consider? 13. Emergency medical service providers may be exposed to hazards not common to other employees that have exposure to blood or body fluids (e.g., jagged metal or broken glass from motor vehicle accidents). Currently, OSHA's bloodborne pathogens standard (29 CFR 1910.1030) and respiratory protection standard (29 CFR 1910.134) require personal protective equipment such as gloves, gowns, eye protection, respirators, and surgical masks. Is there any PPE for pre-hospital emergency medical service personnel (EMS), not currently required by the bloodborne pathogens standard or the respiratory protection standard (29 CFR 1910.134), which may be necessary to protect EMS employees (e.g., “ *NFPA 1999, Standard on Protective Clothing for Emergency Medical Operations* ”) (Ex. 1-18)? NFPA 1999 specifies the NFPA minimum design, performance, testing, and certification requirements for emergency medical clothing used by fire and EMS personnel during EMS operations. Is such equipment currently used in your workplace? What would such PPE cost and what is the expected life of the equipment? 14. Is there any PPE for emergency responders providing technical rescue services (e.g., vehicle extrication, high-angle rescue, swift-water rescue) that may be necessary for protecting employees providing such services? If so, under what circumstances should the use of such equipment be considered necessary? Please describe specific tasks and associated equipment that OSHA should consider. What would such PPE cost and what is the expected life of the equipment? 15. Employees performing urban search and rescue

(USAR)tasks may be exposed to a variety of physical hazards from building debris as well as incidental exposure to thermal, chemical, or biological hazards. The Department of Homeland Security has adopted “NFPA 1951, *Standard on Protective Ensemble for Technical Rescue Incidents* ” for emergency responders conducting USAR operations (Ex. 1-19). NFPA 1951 establishes the NFPA minimum requirements for garments, head protection, gloves, and footwear, for fire and emergency services personnel operating at technical rescue incidents involving building or structural collapse, vehicle/person extrication, confined space entry, trench/cave-in rescue, rope rescue, and similar incidents. What PPE may be necessary for protecting these emergency responders? Is NFPA 1951 an appropriate standard for OSHA to consider on the subject? Are there other standards that OSHA should consider? What equipment is being used currently in your workplace? What does the PPE cost, and how many responders are equipped with it? What is the expected life of the equipment? 16. Is there any other PPE, not already identified, that may be necessary for emergency responders or skilled support personnel? What is the equipment, what would it cost, and how many responders would need to be equipped with it? What is the expected life of the equipment? C. Training and Qualifications The knowledge, skills and abilities of emergency responders and skilled support employees will depend largely on the training and qualifications for required work tasks. Training and qualifications typically include both initial training as well as any periodic training (e.g., annual refresher training) that may be necessary to maintain an appropriate level of functional capability. 17. The OSHA Fire Brigade standard (29 CFR 1910.156(c)) contains broadly worded requirements on training and education and requires the quality of such training to be “similar to” a number of State fire training schools. Is this standard adequate to ensure firefighters are appropriately trained to perform required tasks safely? If not, what level of initial training and qualification is necessary to safely perform fire fighting tasks? Is “NFPA 1001, *Standard for Fire Fighter Professional Qualifications* ” an appropriate standard to consider (Ex. 1-20)? NFPA 1001 identifies the minimum job performance requirements for two levels of progression of firefighters whose duties are primarily structural in nature. Are there other standards or recommendations that OSHA should consider? What amount and type of periodic refresher training should be considered the minimum necessary for firefighters? What is the appropriate format for acquiring this training? What are the training practices in your workplace? 18. The U.S. Department of Transportation (DOT), National Highway Traffic Safety Administration (NHTSA), develops the National Standard Curricula for all levels of EMS personnel. What level of initial occupational health and safety training and qualification is necessary to safely perform emergency medical services? Are there any additional initial training requirements beyond the NHTSA standards appropriate for OSHA to consider (e.g., training on emergency vehicle operation or incident scene safety)? What amount and type of periodic refresher training is necessary for EMS personnel? What are the current training practices in your workplace? 19. OSHA does not currently require any specific training for rescue technicians. What level of initial training and qualification is necessary to safely perform technical rescue tasks? Is “NFPA 1006, *Standard for Rescue Technician Professional Qualifications* ” an appropriate standard to consider (Ex. 1-21)? NFPA 1006 establishes the NFPA minimum requirements necessary for fire service and other emergency response personnel who perform technical rescue operations. These include rope rescue, surface water rescue, vehicle and machinery rescue, confined space rescue, structural collapse rescue, and trench rescue. Are there other standards or recommendations that OSHA should consider? What amount and type of annual refresher training should be considered the minimum necessary for such emergency responders? What is the appropriate format for acquiring this training (e.g., does this require travel to a specialized training facility)? What are the current training practices in your workplace? 20. Skilled support work at emergency incidents is work that is not performed by an emergency responder (e.g., firefighter or EMS provider) but is nonetheless a critical element of a safe and successful emergency response, such as heavy equipment operation, utility shut-off, and cutting and removal of iron work. The role of skilled support employees at emergency incidents is only directly addressed in the Hazardous Waste Operations and Emergency Response Standard (HAZWOPER) (29 CFR 1910.120), which does not apply to all types of emergency incidents. The standard requires skilled support employees that are needed on a temporary basis for immediate emergency support work to be given an initial briefing on necessary information but does not require them to receive the full training provisions of the standard (29 CFR 1910.120(q)(4)). What level of initial training and qualification is necessary to safely perform skilled support jobs? Should specific training for skilled support personnel, other than the initial briefing, be considered? Should refresher training on an annual or other basis for such responders be considered? The OSHA Training Institute has developed a 16-hour Disaster Site Worker Course (#7600) which emphasizes knowledge, precautions and personal protection essential to maintaining an employee's personal safety and health at a disaster site. Should skilled support personnel take the OSHA Disaster Site Worker training course, or something similar, before responding to a disaster or is just-in-time training sufficient and appropriate? What are the current training practices in your workplace? 21. OSHA standards do not address the training or qualifications for either emergency responders who operate emergency apparatus or those personnel who may have to work on an active roadway during an emergency response (e.g., responding to a car crash). Traffic accidents involving emergency apparatus, as well as incidents where emergency responders are struck by passing vehicles at incident scenes, constitute a major source of injuries for emergency responders (Ex. 1-22). Is there any training or qualifications on emergency vehicle safety or incident scene safety (e.g., “NFPA 1002, *Standard for Fire Apparatus Driver/Operator Professional Qualifications* ”) that should be considered for emergency responders as a whole or for individual groups of emergency responders, such as emergency vehicle drivers (Ex. 1-23)? What is the appropriate format for acquiring this training? What are the current training practices in your workplace? 22. The Hazardous Waste Operations and Emergency Response Standard (29 CFR 1910.120), which does not apply to all types of emergency incidents, requires that incident commanders have specialized training beyond that of other employees. However, the Fire Brigade standard (29 CFR 1910.156) does not require any additional or specialized training for fire officers that will manage or supervise the emergency response incident. Should the training and qualifications for fire officers be different than for firefighters? If so, what level of training is appropriate for officers? Is “NFPA 1021, *Standard for Fire Officer Professional Qualifications* ,” an appropriate standard to consider in evaluating this issue (Ex. 1-24)? NFPA 1021 identifies the performance requirements necessary to perform the duties of a fire officer and specifically identifies four levels of training that progress with increasing rank and increasing responsibility. Are there other standards or recommendations OSHA should consider? What are the current training practices in your workplace? 23. OSHA's Fire Brigade standard (29 CFR 1910.156) does not distinguish between industrial fire brigades and other types of fire departments that may respond to a wider range of emergency incidents at a variety of locations. Should the minimum training and qualifications for industrial fire brigade members be different than for other firefighters? If so, what is an appropriate training standard for OSHA to consider (e.g., “NFPA 1081, *Standard for Industrial Fire Brigade Member Professional Qualifications* ”) (Ex. 1-25)? NFPA 1081 identifies the NFPA minimum job performance requirements necessary to carry out the duties of an individual who is a member of an organized industrial fire brigade providing services at a specific facility or site. Are there other standards or recommendations for fire brigades OSHA should consider? What are the current training practices in your workplace? 24. During an emergency response the Hazardous Waste Operations and Emergency Response Standard (29 CFR 1910.120), which does not cover all emergency incidents, requires that the individual in charge of the incident command system

(ICS)designate a safety official. The safety official has the authority to alter, suspend, or terminate any activities that are deemed to be an imminent danger to employees. The Hazardous Waste Operations and Emergency Response Standard does not establish minimum training and qualifications for a safety official, but the person must be knowledgeable in the operations being implemented and able to identify and evaluate hazards with respect to the operational safety. While the Hazardous Waste Operations and Emergency Response Standard uses the term “safety official,” the National Response Plan

(NRP)and National Incident Management System

(NIMS)use the term “safety officer.” In practical application, is there a distinction between these two individuals or do they essentially perform the same function? The NIMS describes the duties and functions of the safety officer at an emergency incident as monitoring incident operations and advising the Incident Commander on all matters relating to operational safety, including the health and safety of emergency responder personnel. The NIMS also does not specify the minimum training and qualifications to assume the role of safety officer. What are the minimum training and qualifications that a safety officer needs? Aside from responsibilities at an emergency incident, should a safety officer have a role in the management of an emergency response and preparedness program? If so, what should be a safety officer's non-emergency duties and functions and how would they relate to emergency response and preparedness? 25. Recently, there has been a greater emphasis on assuring continuity of incident management from the local and state responder level to the national level at incidents of national significance managed under the National Response Plan (e.g., large natural disasters). What training at the state and local level, if any, is necessary to facilitate seamless emergency operations at a joint field office

(JFO)or area field office (AFO)? 26. What is the best way for OSHA to specify training for a given emergency response role? For example: • By specifying a minimum number of hours of training; • By specifying training content based on job tasks; • By specifying that training be adequate to demonstrate specified competencies; • By a combination of these methods; or • By some other method. Additionally, the Federal Emergency Management Agency has been working on a national credentialing system to verify training and qualifications. Should the Agency consider credentialing systems in its evaluation of training and qualifications? D. Medical Evaluation/Health Monitoring Emergency responders work in an environment where they may be exposed to a variety of physical, chemical, or biological hazards. The personal protective clothing and equipment that they use, as well as the inherent nature of their work, can pose an additional physiologic burden on emergency responders. Medical evaluation and health monitoring is an important factor in assuring the health and safety of emergency responders. 27. OSHA requires that hepatitis B vaccinations be made available to employees potentially occupationally exposed to blood or other body fluids in its bloodborne pathogen standard (29 CFR 1910.1030). Are other vaccinations necessary for emergency responders? If so, which vaccinations? What would these vaccinations cost? Would they need to be repeated at some point? Would they be recommended for all emergency responders or a particular subset? What are the current vaccination practices in your workplace? 28. There are currently available vaccinations for anthrax and smallpox, and other vaccinations could be developed in the future for diseases such as hepatitis C. Employers can determine, based upon their own risk assessment, if such vaccines are necessary and should be offered to their employees. If vaccines other than the hepatitis B vaccination are determined by the employer to be necessary for emergency responders, should OSHA consider non-disease specific administrative and recordkeeping procedures similar to those required for the hepatitis B vaccine (29 CFR 1910.1030(f))? These procedures could include requirements that the vaccine be made available at no cost to the employee, available to the employee at a reasonable time and place, and subject to appropriate medical screening. Are there any elements of an assessment process that should be implemented before an employer can determine that a vaccine is necessary, for example, a determination by the Centers for Disease Control and Prevention's Advisory Committee on Immunization Practices

(ACIP)or other appropriate medical recommendation? 29. Medical evaluations for emergency responders are currently regulated under the Fire Brigade (29 CFR 1910.156), Respiratory Protection (29 CFR 1910.134), and Hazardous Waste Operations and Emergency Response (29 CFR 1910.120) standards. The Fire Brigade Standard requires that employers not permit employees with known heart disease, epilepsy, or emphysema to perform emergency response work unless approved by a physician. The respiratory protection standard requires that a physician or other licensed health care professional evaluate an employees' ability to use a respirator. Such an evaluation may consist solely of a medical questionnaire. The Hazardous Waste Operations and Emergency Response Standard has more extensive requirements for an annual medical evaluation. Is “NFPA 1582, *Comprehensive Occupational Medical Program for Fire Departments* ” an appropriate medical evaluation for firefighters (Ex. 1-26)? NFPA 1582 contains descriptive requirements for a comprehensive occupational medical program to ensure that fire department members are medically capable of performing their required duties. Are there other medical evaluation standards that are appropriate for either firefighters or emergency responders who perform tasks other than firefighting? For emergency responders who do not perform firefighting tasks, what elements of a medical evaluation are necessary to assure that they are physically capable of performing essential job tasks while wearing an array of possibly physically burdensome personal protective clothing and equipment? How often should a medical evaluation for emergency responders be conducted? Please address the following types of medical evaluation: Pre-placement, return-to-work, annual fitness for duty evaluation, and periodic medical surveillance. What is the cost to the employer of these recommended medical evaluations for emergency responders? How is the medical evaluation of emergency responders addressed in your workplace? 30. The physiologic burden caused by performing emergency response activities and wearing PPE can be extreme (e.g., over-exertion, heat stress or dehydration). Additionally, cardiovascular fatalities represent a large percentage of firefighters' fatalities. Is on-scene rehabilitation and providing appropriate assistance (e.g., monitoring workers' temperature, blood pressure, hydration levels) an appropriate method of preventing or reducing the number of these injuries and fatalities? Is “NFPA 1584, *Rehabilitation of Members Operating at Incident Scene Operations and Training Exercises* ” an appropriate standard for such practices (Ex. 1-27)? NFPA 1584 describes recommended practices for developing and implementing an incident scene rehabilitation program, including: Medical evaluations, re-hydration, and protection from environmental conditions. Are there other methods of protection that are available, such as adjusting work/rest regimens or physical training? Are there other standards or recommendations that OSHA should consider? Should defibrillators (either a defibrillator or an automated external defibrillator (AED)) be available at emergency incident scenes in case an emergency responder or skilled support worker has a cardiac event? Do you currently have a defibrillator or AED at emergency events? E. Safety The safety of emergency responders and skilled support employees is affected by the employer's policies and procedures established to govern emergency response operations. Also, the tools and equipment used by emergency responders may affect their ability to detect and monitor hazards as well as communicate those hazards to others at the emergency scene. 31. The use of an incident management system as a means to assure the health and safety of employees is required by the OSHA Hazardous Waste Operations and Emergency Response Standard (29 CFR 1910.120) for emergency response to hazardous materials incidents and OSHA's Fire Brigades in Shipyards standard (29 CFR 1915.505). Is an incident management system appropriate for managing all other emergency incidents? 32. The NIMS specifies that a unified command structure be employed for all employees at an incident when there are multiple jurisdictions and agencies involved. Since each employer is responsible for the health and safety of his or her employees at emergency incidents and may affect the safety and health of other employers' employees, how can a safety management structure be developed that incorporates a multi-employer response that is commanded within a single incident command system for all types of incidents? 33. The NIMS describes the duties and functions of the safety officer at an emergency incident. However, the NIMS does not address non-emergency functions for the safety officer that may be necessary to assure the health and safety of emergency responders and skilled support personnel when an emergency does occur (e.g., assuring training requirements are met, assuring that protective clothing and equipment is adequately maintained, or reviewing and updating standard operating procedures). What are the non-emergency duties and functions that are necessary to assure the proper management of an emergency response and preparedness program? Is a designated safety program manager or administrator needed? 34. Do emergency responders need hazard detection and monitoring equipment capabilities, such as 4-gas monitors, thermal imaging cameras, or chemical, biological, and radiological detection equipment? If so, for each type of job task what abilities and equipment are needed? How much would these devices typically cost to own and operate? What are the devices' expected service life? 35. Should emergency response organizations establish written standard operating procedures

(SOPs)or standard operating guidelines

(SOGs)for expected emergency response activities? If so, what types of issues should be addressed in the SOPs or SOGs? How should employers determine what activities are within the expected range of operations and what activities might be outside the range of expected planning? How should employers plan and prepare for special hazards within their area of operations (e.g., high-rise buildings, industrial facilities, or open-pit mines)? 36. How can communication at emergency incidents be maintained? Is a certain type of communications hardware, such as radio systems, or handheld radios, needed by all emergency responders? What training in communications is needed? Is there evidence that portable radios are necessary for either each individual emergency responder or each team of emergency responders? If new equipment and training would be necessary, how much would they cost? 37. The Hazardous Waste Operations and Emergency Response Standard (29 CFR 1910.120) gives the incident commander broad authority in managing risk by determining the scope of operations possible at a given incident. The “two in/two out” provision of the Respiratory Protection Standard (29 CFR 1910.134 (g)(4)) for interior structural firefighting implies, but does not directly address, the concept of risk management. How can OSHA more thoroughly address the concept of risk management at emergency incidents? What guidance should be given in weighing the health and safety of emergency responders against victim's lives, against property loss, or in situations where concerns about immediate safety may have negative consequences for long-term health, such as lung damage? How should risk management guidelines address the various phases of an emergency response from rescue, incident stabilization, through remediation/recovery? How does your workplace address the concept of risk management during emergency response and preparedness activities? 38. Are there specific features of an occupational health and safety program not addressed in previous questions that are necessary for emergency responder health and safety (e.g., any elements contained in “NFPA 1500, *Fire Department Occupational Safety and Health Program* ” such as life-safety rope systems) (Ex. 1-28)? NFPA 1500 provides the NFPA requirements for a fire service occupational safety and health program for fire departments. The Hazardous Waste Operations and Emergency Response Standard (29 CFR 1910.120(b)) requires that employers develop and implement a written safety and health program for their employees involved in hazardous waste operations (e.g., safety and health training, medical surveillance, necessary interface between general program and site specific activities). Would a health and safety program similar to that required in 29 CFR 1910.120(b) be appropriate for emergency response activities? 39. Are there any other issues or concerns related to the health or safety of all emergency responders, or any particular group of emergency responders, that should be considered? Are there any issues related to the health and safety of skilled support personnel at emergency incidents that should be considered? F. Additional Information 40. In addition to the specific questions above, the Agency is seeking general information on the cost of safety and health measures undertaken by municipal emergency response agencies (e.g., fire departments) and any other first responders or skilled support employees. From what levels of government are revenues derived to support emergency response and preparedness? What other sources of revenue are available? How are increased costs of operation dealt with (e.g., reduction in service, increase in response time, or increased revenue sources)? How are these issues different for smaller emergency response operations or rural areas than for larger or mid-sized operations? How often are emergency response operations contracted out to specialists, either by companies or communities? 41. Are there any existing OSHA standards, guidelines, or recommendations that, when viewed in conjunction with other Federal, State or local codes and/or the recommendation of consensus standards organizations such as, but not limited to NFPA, ANSI or ASTM, create conflict or uncertainty in the practice of emergency responding, safety and health planning, in the selection of protective equipment, in the procurement of emergency response equipment, or in the provision of training? If so, what could OSHA do to remedy these situations? III. Public Participation You may submit comments in response to this document by

(1)hard copy,

(2)fax transmission (facsimile), or

(3)electronically through the Federal Rulemaking Portal. Because of security-related problems, there may be a significant delay in the receipt of comments by regular mail. Contact the OSHA Docket Office at

(202)693-2350 for information about security procedures concerning the delivery of materials by express delivery, hand delivery and messenger service. All comments and submissions are available for inspection and copying at the OSHA Docket Office at the above address. Comments and submissions are also available at *http://www.regulations.gov* . OSHA cautions you about submitting personal information such as social security numbers and birth dates. Contact the OSHA Docket Office at

(202)693-2350 for information about accessing materials in the docket. Electronic copies of this **Federal Register** notice, as well as news releases and other relevant documents, are available at OSHA's Web page: *http://www.osha.gov/index.html.* IV. Authority and Signature This document was prepared under the direction of Edwin G. Foulke, Jr., Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor. It is issued pursuant to sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), 29 CFR 1911, and Secretary's Order 5-2002 (67 FR 65008). Signed at Washington, DC, this 4th day of September, 2007. Edwin G. Foulke, Jr., Assistant Secretary of Labor for Occupational Safety and Health. Table of Exhibits 1-1 Emergency Response and Preparedness Request for Information 1-2 Fire Fighter Fatalities in the United States in 2003, U.S. Fire Administration Report FA-283, August 2004 1-3 NFPA Report: Fire Loss in the United States During 2002 and U.S. Fire Department Profile Through 2002) 1-4 U.S. Fire Administration, A Needs Assessment of the U.S. Fire Service, (USFA Report FA-240, December 2002 authorized by U.S. Public Law 106-398, Sec. 33(b)) 1-5 U.S. Fire Administration and the National Fallen Firefighters Foundation, Firefighter Life Safety Summit Initial Report (April 2004) 1-6 NIOSH/RAND Protecting Emergency Responders: Lessons Learned from Terrorist Attacks; Protecting Emergency Responders 1-7 NIOSH / RAND Volume 2: Community Views of Safety and Health Risks and Personal Protection Needs 1-8 NIOSH / RAND Volume 3: Safety Management in Disaster and Terrorism Response 1-9 Homeland Security Presidential Directive #8 (HSPD#8) 1-10 The National Incident Management System

(NIMS)1-11 Homeland Security Presidential Directive #5 (HSPD#5) 1-12 National Response Plan 1-13 NFPA 1971, Standard on Protective Ensemble for Structural Fire Fighting and Proximity Fire Fighting 1-14 NFPA 1982, Standard on Personal Alert Safety Systems

(PASS)1-15 NFPA 1981, Standard on Open-Circuit Self-Contained Breathing Apparatus

(SCBA)Emergency Services 1-16 NFPA 1994, Standard on Protective Ensembles for First Responders to CBRN Terrorism Incidents 1-17 NFPA 1991, Standard on Vapor-Protective Ensembles for Hazardous Materials Emergencies 1-18 NFPA 1999, Standard on Protective Clothing for Emergency Medical Operations 1-19 NFPA 1951, Standard on Protective Ensemble for Technical Rescue Incidents 1-20 NFPA 1001, Standard for Fire Fighter Professional Qualifications 1-21 NFPA 1006, Standard for Rescue Technician Professional Qualifications 1-22 U.S. Fire Administration, Firefighter Fatality Retrospective Study. April 2002 FA-220 1-23 NFPA 1002, Standard for Fire Apparatus Driver/Operator Professional Qualifications 1-24 NFPA 1021, Standard for Fire Officer Professional Qualifications 1-25 NFPA 1081, Standard for Industrial Fire Brigade Member Professional Qualifications 1-26 NFPA 1582, Comprehensive Occupational Medical Program for Fire Departments 1-27 NFPA 1584, Rehabilitation of Members Operating at Incident Scene Operations and Training Exercises 1-28 NFPA 1500, Fire Department Occupational Safety and Health Program [FR Doc. E7-17771 Filed 9-10-07; 8:45 am] BILLING CODE 4510-26-P NATIONAL ARCHIVES AND RECORDS ADMINISTRATION 36 CFR Part 1250 [NARA-07-0003] RIN 3095-AB42 Public Availability and Use of Federal Records AGENCY: National Archives and Records Administration. ACTION: Proposed rule. SUMMARY: The National Archives and Records Administration

(NARA)is proposing to revise its regulations implementing the Freedom of Information Act (FOIA). The proposed revisions update the regulations for access and release of information under the FOIA among NARA's archival holdings and NARA's own operational records. DATES: Comments are due by November 13, 2007. ADDRESSES: NARA invites interested persons to submit comments on this proposed rule. Comments may be submitted by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:* Submit comments by facsimile transmission to 301-837-0319. • *Mail:* Send comments to Regulations Comments Desk (NPOL), Room 4100, Policy and Planning Staff, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. • *Hand Delivery or Courier:* Deliver comments to 8601 Adelphi Road, College Park, MD. FOR FURTHER INFORMATION CONTACT: Laura McCarthy at

(301)837-3023 or via fax number 301-837-0319. SUPPLEMENTARY INFORMATION: The proposed revisions to NARA's regulations on public availability and use of Federal records modify several of the procedures and responsibilities of NARA staff in response to requests submitted under the provisions of the Freedom of Information Act (FOIA). The proposed revisions update NARA's regulations to incorporate changes that have occurred since the last revision of 36 CFR part 1250, including: • Reflecting the legal transfer of certain official military personnel records to the National Archives of the United States in 2005. The transfer of these records to NARA expands the application of 36 CFR part 1250 to twentieth-century military personnel records that are archival records; those military personnel records that have not been transferred to NARA remain under the legal custody of the agency that created them. • Incorporating the provisions of Executive Order 13392, “Improving Agency Disclosure of Information,” by revising § 1250.22 to include the establishment of FOIA Customer Service Centers and the designation of FOIA Public Liaisons. The proposed rule also advises the public of a new e-mail address for the submission of FOIA requests to NARA. • Extending the time the former and incumbent President have to respond to notification of the proposed release of presidential records consistent with E.O. 13233, Further Implementation of the Presidential Records Act (issued November 1, 2001). Executive Order 13233 allows the Presidents at least 90 days to make a determination concerning the release of presidential records. • Incorporating changes to the fee schedule for self-service copies. • Revising NARA's procedures for identifying records containing confidential commercial information in § 1250.82. We propose to provide a 10 day response time for the submitter, instead of the current five day period, to respond to notification of the release of confidential commercial information in the records. We also propose to change our public notification procedures to include a method of notifying multiple submitters by posting on our Web site or publishing a notice concerning the release of confidential commercial information. This proposed rule is not a significant regulatory action for the purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget. As required by the Regulatory Flexibility Act, I certify that this rule will not have a significant impact on a substantial number of small entities because this regulation will affect only persons and organizations who file FOIA requests with NARA. This regulation does not have any federalism implications. List of Subjects in 36 CFR Part 1250 Archives and records, Confidential business information, Freedom of information. For the reasons set forth in the preamble, NARA proposes to amend part 1250 of title 36, Code of Federal Regulations, as follows: PART 1250—PUBLIC AVAILABILITY AND USE OF FEDERAL RECORDS 1. Revise the authority citation for part 1250 to read as follows: Authority: 44 U.S.C. 2104(a); 5 U.S.C. 552; E.O. 12958, 60 FR 19825, 3 CFR, 1995 Comp., p. 333, as amended by E.O. 13292, 68 FR 15315, March 28, 2003; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235., E.O 13392, 70 FR 75371, 3 CFR, 2006 Comp., p. 216. 2. Revise the section heading of § 1250.1 to read as follows: § 1250.1 What is the scope of this part? 3. Amend § 1250.2 by revising the section heading; redesignating paragraph

(k)as paragraph (l); and adding a new paragraph

(k)to read as follows: § 1250.2 What definitions apply to this part?

(k)*Search* means the process of looking for and retrieving records or information responsive to a request. It includes page-by-page or line-by-line identification of information within records and also includes reasonable efforts to locate and retrieve information from records maintained in electronic form or format. 4. Amend § 1250.6 by revising paragraph

(c)in the table to read as follows: § 1250.6 Does FOIA cover all the records at NARA? If you want access to . . . Then access is governed by . . . * * * * * * *

(c)Records of Congress and legislative branch agencies Parts 1254 through 1260 of this chapter. FOIA does not apply to these records. * * * * * * * 5. Revise § 1250.8 to read as follows: § 1250.8 Does NARA provide access to all the executive branch records housed at NARA facilities?

(a)NARA provides access to the following records:

(1)NARA operational records; and

(2)Archival records, including those Official Military Personnel Files that have been transferred to the legal custody of NARA.

(b)NARA does not provide access to the following records:

(1)Other military and civilian records that remain in the legal custody of the agencies that created them; access to such records is governed by the FOIA, Privacy Act, and other access regulations of the creating agencies. Military personnel records that are less than 62 years old from the date of the individual's separation from the military and medical records of former members of the military are held at NARA's National Personnel Records Center (NPRC), located in St. Louis, Missouri. The NPRC also houses the records of former civilian employees of the Federal government. The NPRC processes FOIA requests for these records under authority delegated by the originating agencies, not under the provisions of this part; and

(2)In our national and regional records centers, NARA stores records that agencies no longer need for day-to-day business. These records remain in the legal custody of the agencies that created them. Access to these records is through the originating agency; NARA does not process FOIA requests for these records. 6. Amend § 1250.10 by revising paragraphs

(a)and

(b)to read as follows: § 1250.10 Do I need to use FOIA to gain access to records at NARA?

(a)Most archival records held by NARA have no restrictions to access and are available to the public for research without filing a FOIA request. You may either visit a NARA facility as a researcher to view and copy records or you may write to request copies of specific records.

(b)If you seek access to archival records that are restricted and not available to the public, you must file either a FOIA request or, if the records are restricted because they contain classified national security information, a mandatory declassification review request (see part 1256 of this chapter for procedures to request access to information) to gain access to these materials. See 36 CFR 1256.76 for information on filing mandatory declassification review requests. 7. Amend § 1250.12 by revising paragraph

(c)to read as follows: § 1250.12 What types of records are available in NARA's FOIA Reading Room?

(c)Any of this material that was created after October 31, 1996, will also be placed on NARA's Web site at *http://www.archives.gov/foia/electronic-reading-room.html* . 8. Revise § 1250.14 to read as follows: § 1250.14 If I do not use FOIA to request records, will NARA treat my request differently? If you request executive branch agency records that contain restrictions under the provisions of the FOIA, you must submit a FOIA request. Alternatively, you may submit a mandatory review request for those records that are restricted because they contain national security classified information. If you request records that are publicly available we will respond to your request as promptly as possible, whether you invoke FOIA or not. 9. Amend § 1250.20 to revise paragraph

(a)and add new paragraph

(d)to read as follows: § 1250.20 What do I include in my FOIA request?

(a)Describe the records you wish to access with enough detail for NARA staff to find them with a reasonable amount of effort. The more information you provide, the better possibility NARA has of finding the records you requested. Information that helps us find records includes:

(1)The agencies, offices, or individuals involved; and

(2)The approximate date when the records were created.

(d)You may find NARA's “Freedom of Information Act Reference Guide” helpful in making your request. The “Guide” is available on our Web site at *http://www.archives.gov/foia/foia-guide.html* . You may request a paper copy of the “Guide” by writing the NARA FOIA officer at the address provided in 36 CFR 1250.22(d). For additional information about the FOIA, you may refer directly to the statute (5 U.S.C. 552, as amended). 10. Add new paragraph

(g)to § 1250.22 to read as follows: § 1250.22 Where do I send my FOIA request?

(g)In accordance with the provisions of Executive Order 13392, NARA has established FOIA Customer Service Centers and designated FOIA Public Liaisons at all NARA facilities that process FOIA requests. If you have questions about the processing of your FOIA request, you may contact the designated FOIA Customer Service Center for the facility processing your request. If you continue to have concerns after that initial contact, you may wish to contact the designated FOIA Public Liaison for the facility processing your request. A list of NARA's FOIA Customer Service Centers and Public Liaisons can be found at *http://www.archives.gov/foia/contacts.html* . You may request a paper copy of the list by writing to the NARA FOIA Officer at the address provided in paragraph

(d)of this section. 11. Revise § 1250.24 to read as follows: § 1250.24 Will you accept a FOIA request electronically? Yes, you may submit a FOIA electronically to *foia@nara.gov* . The body of the message must contain all of the information listed in § 1250.20. 12. Amend § 1250.26 by revising paragraphs

(a)and

(e)to read as follows: § 1250.26 How quickly will NARA respond to my FOIA request?

(a)NARA will acknowledge all FOIA requests within 20 working days. We will inform you if a response to your request may take longer than the usual amount of time because of its complexity.

(e)If you have requested Presidential records and NARA grants you access, we must inform the incumbent and former Presidents of our intention to disclose information from those records. After receiving the notice, and pursuant to the provisions of the current Executive Order on the implementation of the Presidential Records Act, the incumbent and former president have at least 90 days in which to invoke Executive Privilege to deny access to the requested information. NARA will send you an initial response to your FOIA request within 20 working days and inform you of the status of your request. However, the final response to your FOIA request can only be made at the end of the Presidential notification period. 13. Amend § 1250.28 by revising the section heading and paragraph

(b)to read as follows: § 1250.28 Will NARA ever expedite the review of the records I requested under the FOIA?

(b)We can expedite only those requests, or segments of requests, for records under our control. If another agency controls the records you requested, NARA must refer the request to that agency for processing. If your request is referred to another agency, we will inform you and suggest that you seek expedited review from that agency. Similarly, some records under our control contain information that remains under the control of another agency, such as classified national security information, which may require referral to the classifying agency for declassification review. NARA cannot expedite the review of national security classified records nor can we shorten the Presidential notification period described in § 1250.26(e). 14. Revise § 1250.32 to read as follows: § 1250.32 How quickly will NARA process an expedited request? We will respond to your request for expedited processing within 10 calendar days of our receipt of your request. If we grant your request, the NARA office responsible for the review of the requested records will process your request as quickly as possible. We will inform you if we deny your request for expedited processing. If you decide to appeal that denial, we will also expedite our review of your appeal. 15. Amend § 1250.56 by revising paragraph (c)(1)to read as follows: § 1250.56 Fee schedule for NARA operational records.

(c)*Reproduction fees* —(1) Self-service photocopying. At NARA facilities with self-service photocopiers, you may make reproductions of released paper documents. For reproductions made at NARA facilities in the Washington, DC area the cost is 25 cents per page. For reproductions made in NARA field locations the cost is 20 cents per page. 16. Revise § 1250.60 to read as follows: § 1250.60 How will NARA determine if I am eligible for a fee waiver or fee reduction for NARA operational records?

(a)If you request a fee waiver, NARA considers furnishing the requested records without charge or at a fee below those listed in § 1250.56. To be eligible for a fee waiver or reduction you must explain:

(1)How the requested records pertain to the operations and activities of the Federal Government. There must be a clear connection between the identifiable operations or activities of the federal government and the subject of your request.

(2)How the release will reveal meaningful information about Federal Government activities that is not already publicly known.

(3)How the disclosure to you will advance the understanding of the general public on the issue.

(4)Your expertise or understanding of the requested records.

(5)How you intend to disseminate the requested information to a broad spectrum of the public.

(6)How disclosure will lead to a significantly greater understanding of the Government by the public.

(b)After reviewing your request and determining that there is a substantial public interest in release, NARA also reviews your request to determine if the disclosure will further your commercial interests. If it does, you are not eligible for a fee waiver or reduction. 17. Amend § 1250.74 by revising paragraph

(c)to read as follows: § 1250.74 Where do I send my appeal?

(c)If you invoke FOIA and are denied access to national security information accessioned into the National Archives of the United States, you must appeal determinations that the records remain classified for reasons of national security to the agency with responsibility for declassifying that information. Only designated officials of the originating agency or responsible agency, or by NARA under a written authority, may allow access to accessioned records that contain classified national security information. NARA provides you with the necessary appeal information in those cases. You can find additional information on access to national security classified records at NARA in 36 CFR part 1256. 18. Revise § 1250.76 to read as follows: § 1250.76 May I submit my FOIA appeal electronically? Yes, you may submit a FOIA appeal to *nara@foia.gov.* The body of the message must contain all of the information listed in § 1250.72(b). 19. Revise § 1250.78 to read as follows: § 1250.78 How does NARA handle appeals?

(a)NARA will respond to your appeal within 20 working days after its receipt by the appropriate designated appeal official. If we reverse or modify our initial decision, we will inform you in writing and reprocess your request. If we do not change our initial decision, our response to you will explain the reasons for our decision, any FOIA exemptions that apply, and your right to judicial review of our decision.

(b)An adverse determination by the Archivist or Deputy Archivist is the final action by NARA.

(c)An appeal ordinarily will not be acted on if it becomes a matter of FOIA litigation.

(d)If you wish to seek review by a court of any adverse determination, you must first appeal it under this section. 20. Revise § 1250.80 to read as follows: § 1250.80 How does a submitter identify records containing confidential commercial information? A submitter of confidential commercial information must use good-faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portions of its submission that it considers to be protected from disclosure under exemption (b)(4) of the FOIA. These designations will expire 10 years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period. 21. Amend § 1250.82 by revising the introductory paragraph and paragraphs

(a)and (b); redesignating paragraphs

(c)through

(e)as paragraphs

(e)through

(g)respectively; and adding new paragraphs

(c)and

(d)to read as follows: § 1250.82 How will NARA handle a FOIA request for confidential commercial information? If NARA receives a FOIA request for records containing confidential commercial information or for records that we believe may contain confidential commercial information, we will follow these procedures:

(a)If, after reviewing the records in response to a FOIA request, we believe that the records may be released, we will make reasonable efforts to inform the original submitter of the confidential commercial information of our decision. The notice to the submitter will describe the confidential commercial information requested or include copies of the requested records.

(b)When the request is for information from a single or small number of submitters, NARA will send a notice via registered mail to the submitter's last known address. Our notice to the submitter will include a copy of the FOIA request and will tell the submitter the time limits and procedures for objecting to the release of the requested material.

(c)When the request is for information from multiple submitters, notification may be made by posting on our Web site or publishing the notice in a place reasonably likely to inform the submitters of the proposed disclosure.

(d)Submitters have 10 working days from the receipt of our notice or the date of posting or publishing the notice to object to the release and to explain the basis for the objection. The NARA FOIA Officer may extend this period as appropriate. 22. Amend § 1250.84 by revising the section heading and revising paragraph

(c)to read as follows: § 1250.84 How do you serve a subpoena or other legal demand for NARA operational records?

(c)Regulations concerning service of a subpoena duces tecum or other legal demand for archival records accessioned into the National Archives of the United States, records of other agencies in the custody of the Federal records centers, and donated historical materials are located at 36 CFR 1256.4. Dated: September 4, 2007. Allen Weinstein, Archivist of the United States. [FR Doc. E7-17913 Filed 9-10-07; 8:45 am] BILLING CODE 7515-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2006-1023; FRL-8464-9] Approval and Promulgation of Air Quality Implementation Plans; Minnesota AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a site specific revision to the Minnesota State Implementation Plan

(SIP)for particulate matter less than 10 microns (PM-10) for Lafarge North America Corporation (Lafarge), Childs Road Terminal located in Saint Paul, Ramsey County, Minnesota. In its December 18, 2006, submittal, the Minnesota Pollution Control Agency

(MPCA)requested that EPA approve Lafarge's federally enforceable state operating permit into the Minnesota PM SIP, and to revoke the previously approved Administrative Order for Lafarge from the PM-10 SIP. DATES: Comments must be received on or before October 11, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-OAR-2006-1023, by one of the following methods: • *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: mooney.john@epa.gov.* • *Fax:*

(312)886-5824. • *Mail:* John M. Mooney, Chief, Criteria Pollutant Section, (AR-18J), Air Programs Branch, Air and Radiation Division, U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. • *Hand Delivery:* John M. Mooney, Chief, Criteria Pollutant Section, (AR-18J), Air Programs Branch, Air and Radiation Division, U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays. Please see the direct final rule which is located in the Rules section of this **Federal Register** for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Christos Panos, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,

(312)353-8328, *panos.christos@epa.gov.* SUPPLEMENTARY INFORMATION: In the Rules section of this **Federal Register** , EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules section of this **Federal Register** . Dated: August 29, 2007. Bharat Mathur, Acting Regional Administrator, Region 5. [FR Doc. E7-17715 Filed 9-10-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R03-OAR-2007-0533; FRL-8465-8] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Redesignation of the Centre County 8-Hour Ozone Nonattainment Area to Attainment and Approval of the Area's Maintenance Plan and 2002 Base Year Inventory AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a redesignation request and State Implementation Plan

(SIP)revisions submitted by the Commonwealth of Pennsylvania. The Pennsylvania Department of Environmental Protection (PADEP) is requesting that the Centre County ozone nonattainment area (State College Area) be redesignated as attainment for the 8-hour ozone national ambient air quality standard (NAAQS). EPA is proposing to approve the ozone redesignation request for State College Area. In conjunction with its redesignation request, PADEP submitted a SIP revision consisting of a maintenance plan for State College Area that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after redesignation. EPA is proposing to make a determination that the State College Area has attained the 8-hour ozone NAAQS, based upon three years of complete, quality-assured ambient air quality ozone monitoring data for 2004-2006. EPA's proposed approval of the 8-hour ozone redesignation request is based on its determination that the State College Area has met the criteria for redesignation to attainment specified in the Clean Air Act. In addition, PADEP submitted a 2002 base year inventory for the State College Area which EPA is proposing to approve as a SIP revision. EPA is also providing information on the status of its adequacy determination for the motor vehicle emission budgets (MVEBs) that are identified in the State College Area maintenance plan for purposes of transportation conformity, which EPA is also proposing to approve. EPA is proposing approval of the redesignation request, and the maintenance plan and the 2002 base year inventory SIP revisions in accordance with the requirements of the Clean Air Act. DATES: Written comments must be received on or before October 11, 2007. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-0533 by one of the following methods: A. *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. B. *E-mail: powers.marilyn@epa.gov* C. *Mail:* EPA-R03-OAR-2007-0533, Marilyn Powers, 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-2007-0533. 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, P.O. Box 8468, Harrisburg, Pennsylvania 17105. FOR FURTHER INFORMATION CONTACT: Rose Quinto,

(215)814-2182, or by e-mail at *quinto.rose@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 State's Request? VII. Are the Motor Vehicle Emissions Budgets Established and Identified in the Maintenance Plan for the State College Area Adequate and Approvable? VIII. Proposed Action IX. Statutory and Executive Order Reviews I. What Are the Actions EPA Is Proposing To Take? On June 12, 2007, PADEP formally submitted a request to redesignate the State College Area from nonattainment to attainment of the 8-hour NAAQS for ozone. Concurrently, on June 12, 2007, PADEP submitted a maintenance plan for the State College Area as a SIP revision to ensure continued attainment for at least 10 years after redesignation. PADEP also submitted a 2002 base year inventory as a SIP revision on June 12, 2007. The State College Area is currently designated as a basic 8-hour ozone nonattainment area. EPA is proposing to determine that the State College Area has attained the 8-hour ozone NAAQS and that it has met the requirements for redesignation pursuant to section 107(d)(3)(E) of the Clean Air Act. EPA is, therefore, proposing to approve the redesignation request to change the designation of the State College Area from nonattainment to attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve the State College Area maintenance plan as a SIP revision, such approval being one of the Clean Air Act criteria for redesignation to attainment status. The maintenance plan is designed to ensure continued attainment in the State College Area for the next ten years. EPA is also proposing to approve the 2002 base year inventory for the State College Area as a SIP revision. Additionally, EPA is announcing its action on the adequacy process for the MVEBs identified in the State College Area maintenance plan, and proposing to approve the MVEBs identified for volatile organic compounds

(VOC)and nitrogen oxides (NO X ) for transportation conformity purposes. II. What Is the Background for These Proposed Actions? A. General Ground-level ozone is not emitted directly by sources. Rather, emissions of NO X and VOC react in the presence of sunlight to form ground-level ozone. The air pollutants NO X and VOC are referred to as precursors of ozone. The Clean Air Act establishes a process for air quality management through the attainment and maintenance of the NAAQS. On July 18, 1997, EPA promulgated a revised 8-hour ozone standard of 0.08 parts per million (ppm). This new standard is more stringent than the previous 1-hour ozone standard. EPA designated, as nonattainment, any area violating the 8-hour ozone NAAQS based on the air quality data for the three years of 2001-2003. These were the most recent three years of data at the time EPA designated 8-hour areas. The State College Area was designated as basic 8-hour ozone nonattainment status in a **Federal Register** notice signed on April 15, 2004 and published on April 30, 2004 (69 FR 23857), based on its exceedance of the 8-hour health-based standard for ozone during the years 2001-2003. On April 30, 2004, EPA issued a final rule (69 FR 23951, 23996) to revoke the 1-hour ozone NAAQS in the State College Area (as well as most other areas of the country) effective June 15, 2005. *See* , 40 CFR 50.9(b); 69 FR at 23966 (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). 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 Clean Air 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 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; and

(3)measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the Clean Air 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. In addition, the June 8 decision clarified that the Court's reference to conformity requirements for anti-backsliding purposes 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, which is already required under EPA's conformity regulations. The Court thus clarified that 1-hour conformity determinations are not required for anti-backsliding purposes. The Court upheld EPA's authority to revoke the 1-hour standard provided there were adequate anti-backsliding provisions. Elsewhere in this document, mainly in section VI.B. “The State College Area Has Met All Applicable Requirements Under Section 110 and Part D of the Clean Air Act and Has Fully Approved SIP under Section 110(k) of the Clean Air Act,” EPA discusses its rationale why the decision in *South Coast* is not an impediment to redesignating the State College Area to attainment of the 8-hour ozone NAAQS. The Clean Air Act, Title I, Part D, contains two sets of provisions—subpart 1 and subpart 2—that address planning and control requirements for nonattainment areas. Subpart 1 (which EPA refers to as “basic” nonattainment) contains general, less prescriptive requirements for nonattainment areas for any pollutant—including ozone—governed by a NAAQS. Subpart 2 (which EPA refers to as “classified” nonattainment) provides more specific requirements for ozone nonattainment areas. Some 8-hour ozone nonattainment areas are subject only to the provisions of subpart 1. Other areas are also subject to the provisions of subpart 2. Under EPA's 8-hour ozone implementation rule, an area was classified under subpart 2 based on its 8-hour ozone design value (i.e., the 3-year average annual fourth-highest daily maximum 8-hour average ozone concentration), if it had a 1-hour design value at or above 0.121 ppm (the lowest 1-hour design value in the Clean Air Act for subpart 2 requirements). All other areas are covered under subpart 1, based upon their 8-hour design values. In 2004, State College Area was designated a basic 8-hour ozone nonattainment area based upon air quality monitoring data from 2001-2003, and therefore, is subject to the requirements of subpart 1 of Part D. Under 40 CFR part 50, the 8-hour ozone standard is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). *See* 69 FR 23857, (April 30, 2004) for further information. Ambient air quality monitoring data for the 3-year period must meet data completeness requirements. The data completeness requirements are met when the average percent of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined in Appendix I of 40 CFR part 50. The ozone monitoring data from the 3-year period of 2004-2006 indicates that the State College Area has a design value of 0.076 ppm. Therefore, the ambient ozone data for the State College Area indicates no violations of the 8-hour ozone standard. B. The State College Area The State College Area consists of Centre County, Pennsylvania. Prior to its designation as an 8-hour ozone nonattainment area, State College Area was an attainment/unclassifiable area for the 1-hour ozone nonattainment NAAQS. *See* 56 FR 56694 (November 6, 1991). On June 12, 2007, PADEP requested that the State College Area be redesignated to attainment for the 8-hour ozone standard. The redesignation request included 3 years of complete, quality-assured data for the period of 2004-2006, indicating that the 8-hour NAAQS for ozone had been achieved in the State College Area. The data satisfies the Clean Air Act requirements when the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration (commonly referred to as the area's design value) is less than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). Under the Clean Air Act, a nonattainment area may be redesignated if sufficient complete, quality-assured data is available to determine that the area has attained the standard and the area meets the other Clean Air Act redesignation requirements set forth in section 107(d)(3)(E). III. What Are the Criteria for Redesignation to Attainment? The Clean Air Act provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the Clean Air Act, allows for redesignation, providing that:

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

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

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

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

(5)The State containing such area has met all requirements applicable to the area under section 110 and Part D. EPA provided guidance on redesignation in the General Preamble for the Implementation of Title I of the Clean Air Act 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 Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992; • “Technical Support Documents (TSD's) for Redesignation Ozone and Carbon Monoxide

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

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

(CO)National Ambient Air Quality Standards (NAAQS) On or After November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993; • Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, to Air Division Directors, Regions 1-10, “Use of Actual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas,” dated November 30, 1993; • “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994; and • “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995. IV. Why Is EPA Taking These Actions? On June 12, 2007, PADEP requested redesignation of the State College Area to attainment for the 8-hour ozone standard. On June 12, 2007, PADEP submitted a maintenance plan for the State College Area as a SIP revision to assure continued attainment at least 10 years after redesignation. EPA has determined that the State College Area has attained the standard and has met the requirements for redesignation set forth in section 107(d)(3)(E). PADEP also submitted a 2002 base year inventory concurrently with its maintenance plan as a SIP revision. V. What Would Be the Effect of These Actions? Approval of the redesignation request would change the designation of the State College Area from nonattainment to attainment for the 8-hour ozone NAAQS found at 40 CFR part 81. It would also incorporate into the Pennsylvania SIP a 2002 base year inventory and a maintenance plan ensuring continued attainment of the 8-hour ozone NAAQS in the State College Area for the next 10 years. The maintenance plan includes contingency measures to remedy any future violations of the 8-hour NAAQS (should they occur), and identifies the MVEBs for NO X and VOC for transportation conformity purposes for the years 2004, 2009 and 2018. These motor vehicle emissions

(2004)and MVEBs (2009 and 2018) are displayed in the following table: Table 1.—Motor Vehicle Emissions Budgets in Tons per Day

(tpd)Year NO X VOC 2009 12.5 5.4 2018 6.0 3.7 VI. What Is EPA's Analysis of the State's Request? EPA is proposing to determine that State College Area has attained the 8-hour ozone standard and that all other redesignation criteria have been met. The following is a description of how PADEP's June 12, 2007 submittal satisfies the requirements of section 107(d)(3)(E) of the Clean Air Act. A. The State College Area Has Attained the 8-Hour Ozone NAAQS EPA is proposing to determine that the State College Area has attained the 8-hour ozone NAAQS. For ozone, an area may be considered to be attaining the 8-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.10 and Appendix I of part 50, based on three complete and consecutive calendar years of quality-assured air quality monitoring data. To attain this standard, the design value, which is the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations, measured at each monitor within the area over each year must not exceed the ozone standard of 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, Appendix I, the standard is attained if the design value is 0.084 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58, and recorded in 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 State College Area, there is one monitor that measures air quality with respect to ozone. As part of its redesignation request, Pennsylvania submitted ozone monitoring data for the years 2004-2006 (the most recent three years of data available as of the time of the redesignation request) for the State College Area. This data has been quality assured and is recorded in AQS. The fourth-high 8-hour daily maximum concentrations, along with the three-year average, are summarized in Table 2. Table 2.—State College County Nonattainment Area Fourth Highest 8-Hour Average Values; State College County Monitor, AQS ID 42-027-0100 Year Annual 4th high reading

(ppm)2004 0.069 2005 0.083 2006 0.078 The average for the 3-year period 2004 through 2006 is 0.076 ppm. The air quality data for 2004-2006 show that the State College Area has attained the standard with a design value of 0.076 ppm. The data collected at the State College Area monitor satisfies the Clean Air Act requirement that the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm. PADEP's request for redesignation for the State College Area indicates that the data was quality assured in accordance with 40 CFR part 58. PADEP uses the AQS as the permanent database to maintain its data and quality assures the data transfers and content for accuracy. In addition, as discussed below with respect to the maintenance plan, PADEP has committed to continue monitoring in accordance with 40 CFR part 58. In summary, EPA has determined that the data submitted by Pennsylvania and taken from AQS indicates that State College Area has attained the 8-hour ozone NAAQS. B. The State College Area Has Met All Applicable Requirements Under Section 110 and Part D of the Clean Air Act and Has a Fully Approved SIP Under Section 110(k) of the Clean Air Act EPA has determined that the State College Area has met all SIP requirements applicable for purposes of this redesignation under section 110 of the Clean Air Act (General SIP Requirements) and that it meets all applicable SIP requirements under Part D of Title I of the Clean Air Act, in accordance with section 107(d)(3)(E)(v). In addition, EPA has determined that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these proposed determinations, EPA ascertained what requirements are applicable to the area and determined that the applicable portions of the SIP meeting these requirements are fully approved under section 110(k) of the Clean Air Act. 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 Clean Air Act requirements that come due prior to the submittal of a complete redesignation request. *See also* , Michael Shapiro memorandum, September 17, 1993, and 60 FR 12459, 12465-66, (March 7, 1995) (redesignation of Detroit-Ann Arbor). Applicable requirements of the Clean Air Act 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 Clean Air Act. *Sierra Club* v. *EPA* , 375 F.3d 537 (7th Cir. 2004). *See also* , 68 FR 25424, 25427 (May 12, 2003) (redesignation of St. Louis). This action also 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 Clean Air Act and longstanding policies regarding redesignation requests. 1. Section 110 General SIP Requirements Section 110(a)(2) of Title I of the Clean Air Act delineates the general requirements for a SIP, which include enforceable emissions limitations and other control measures, means, or techniques, provisions for the establishment and operation of appropriate devices necessary to collect data on ambient air quality, and programs to enforce the limitations. The general SIP elements and requirements set forth in section 110(a)(2) include, but are not limited to, the following: • Submittal of a SIP that has been adopted by the State after reasonable public notice and hearing; • Provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; • Implementation of a source permit program; provisions for the implementation of Part C requirement (Prevention of Significant Deterioration (PSD)); • Provisions for the implementation of Part D requirements for New Source Review

(NSR)permit programs; • Provisions for air pollution modeling; and • Provisions for public and local agency participation in planning and emission control rule development. Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a State from significantly contributing to air quality problems in another State. To implement this provision, EPA has required certain States to establish programs to address transport of air pollutants in accordance with the NO X SIP Call, October 27, 1998 (63 FR 57356), amendments to the NO X SIP Call, May 14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25162). However, the section 110(a)(2)(D) requirements for a State are not linked with a particular nonattainment area's designation and classification in that State. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a State regardless of the designation of any one particular area in the State. Thus, we do not believe that these requirements 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 State College Area will still be subject to these requirements after it is redesignated. The section 110 and Part D requirements, which are linked with a particular area's designation and classification, are the relevant measures to evaluate in reviewing a redesignation request. This policy is consistent with EPA's existing policy on applicability of conformity ( *i.e.* , for redesignations) and oxygenated fuels requirement. *See* , Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24816, May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). *See also* , the discussion on this issue in the Cincinnati redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh redesignation (66 FR 50399, October 19, 2001). Similarly, with respect to the NO X SIP Call rules, EPA noted in its Phase 1 Final Rule to Implement the 8-hour Ozone NAAQS, that the NO X SIP Call rules are not “an ‘applicable requirement' for purposes of section 110(l) because the NO X rules apply regardless of an area's attainment or nonattainment status for the 8-hour (or the 1-hour) NAAQS.” 69 FR 23951, 23983 (April 30, 2004). EPA believes that section 110 elements not linked to the area's nonattainment status are not applicable for purposes of redesignation. Any section 110 requirements that are linked to the Part D requirements for 8-hour ozone nonattainment areas are not yet due, because, as we explain later in this notice, no Part D requirements applicable for purposes of redesignation under the 8-hour standard became due prior to submission of the redesignation request. Because the Pennsylvania SIP satisfies all of the applicable general SIP elements and requirements set forth in section 110(a)(2), EPA concludes that Pennsylvania has satisfied the criterion of section 107(d)(3)(E) regarding section 110 of the Clean Air Act. 2. Part D Nonattainment Area Requirements Under the 1-Hour and 8-Hour Standards The State College Area was designated a basic nonattainment area for the 8-hour ozone standard. Sections 172-176 of the Clean Air Act, found in subpart 1 of Part D, set forth the basic nonattainment requirements for all nonattainment areas. As discussed previously, because the State College Area was designated unclassifiable/attainment under the 1-hour standard, and was never designated nonattainment for the 1-hour standard, there are no outstanding 1-hour nonattainment area requirements it would be required to meet. Thus, we find that the Court's ruling does not result in any additional 1-hour requirements for purposes of redesignation. With respect to the 8-hour standard, EPA notes that 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 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 requirements 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. At the time the redesignation request was submitted, the State College Area was classified under subpart 1 and was obligated to meet subpart 1 requirements. Under EPA's longstanding interpretation of section 107(d)(3)(E) of the Clean Air Act, to qualify for redesignation, states requesting redesignation to attainment must meet only the relevant SIP requirements that came due prior to the submittal of a complete redesignation request. *See* September 4, 1992 Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division). *See also* , Michael Shapiro Memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995) (Redesignation of Detroit-Ann Arbor); *Sierra Club* v. *EPA* , 375 F.3d 537 (7th Cir. 2004) (which upheld this interpretation); 68 FR 25418, 25424, 25427 (May 12, 2003) (redesignation of St. Louis). Moreover, it would be inequitable to retroactively apply any new SIP requirements that were not applicable at the time the request was submitted. The DC Circuit recognized the inequity in such retroactive rulemaking. *See, Sierra Club* v. *Whitman* , 285 F. 3d 63 (DC Cir. 2002), in which the DC 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 plan 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 the 8-hour standard, EPA proposes to determine that Pennsylvania's SIP meets all applicable SIP requirements under Part D of the Clean Air Act, because no 8-hour ozone standard Part D requirements applicable for purposes of redesignation became due prior to submission of the redesignation request for the State College Area. Because the Commonwealth submitted a complete redesignation request for the State College Area prior to the deadline for any submissions required under the 8-hour standard, we have determined that the Part D requirements do not apply to the State College Area for the purposes of redesignation. In addition to the fact that no Part D requirements applicable under the 8-hour standard became due prior to submission of the redesignation request, EPA believes it is reasonable to interpret the general conformity and NSR requirements of Part D as not requiring approval prior to redesignation. With respect to section 176, Conformity Requirements, section 176(c) of the Clean Air Act 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 Clean Air Act required EPA to promulgate. EPA believes it is reasonable to interpret the conformity SIP requirements as not applying for purposes of evaluating the redesignation request under section 107(d) since State conformity rules are still required after redesignation and Federal conformity rules apply where State rules have not been approved. *See, Wall* v. *EPA,* 265 F. 3d 426, 438-440 (6th Cir. 2001), upholding this interpretation. *See also,* 60 FR 62748 (December 7, 1995). In the case of the State College Area, EPA has also determined that before being redesignated, the State College Area need not comply with the requirement that a NSR program be approved prior to redesignation. EPA has also 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 of 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 the State College Area, the Chapter 127 Part D NSR regulations in the Pennsylvania SIP (codified at 40 CFR 52.2020(c)(1)) explicitly apply the requirements for NSR in section 184 of the Clean Air Act to ozone attainment areas within the ozone transport region (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 the State College Area. All areas in the OTR, both attainment and nonattainment, are subject to additional control requirements under section 184 for the purpose of reducing interstate transport of emissions that may contribute to downwind ozone nonattainment. The section 184 requirements include reasonably Available control technology (RACT), NSR, enhanced vehicle inspection and maintenance (I/M), and Stage II vapor recovery or a comparable measure. 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 I/M programs even after redesignation. Second, the section 184 control measures are region-wide requirements and do not apply to the State College Area 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). In the case of the State College Area, which is located in the OTR, nonattainment NSR will be applicable after redesignation. As discussed previously, EPA fully approved Pennsylvania's NSR SIP revision which applies the requirements for NSR of section 184 of the Clean Air Act to attainment areas within the OTR. 3. The State College Area Has a Fully Approved SIP for the Purposes of Redesignation EPA has fully approved the Pennsylvania SIP for the purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request. Calcagni Memo, p. 3; *Southwestern Pennsylvania Growth Alliance* v. *Browner,* 144 F. 3d 984, 989-90 (6th Cir. 1998); *Wall* v. *EPA,* 265 F.3d 426 (6th Cir. 2001), plus any additional measures it may approve in conjunction with a redesignation action. *See also,* 68 FR at 25425 (May 12, 2003) and citations therein. The State College Area was a 1-hour attainment/unclassifiable area at the time of its designation as a basic 8-hour ozone nonattainment area on April 30, 2004 (69 FR 23857). Because the State College Area was a 1-hour attainment/unclassifiable area, there are no previous Part D SIP submittal requirements. Also, no Part D submittal requirements have come due prior to the submittal of the 8-hour maintenance plan for the area. Therefore, all Part D submittal requirements have been fulfilled. Because there are no outstanding SIP submission requirements applicable for the purposes of redesignation of the State College Area, the applicable implementation plan satisfies all pertinent SIP requirements. As indicated previously, EPA believes that the section 110 elements not connected with Part D nonattainment plan submissions and not linked to the area's nonattainment status are not applicable requirements for purposes of redesignation. EPA also believes that no 8-hour Part D requirements applicable for purposes of redesignation have yet become due for the State College Area, and therefore they need not be approved into the SIP prior to redesignation. C. The Air Quality Improvement in the State College Area Is Due to Permanent and Enforceable Reductions in Emissions Resulting From Implementation of the SIP and Applicable Federal Air Pollution Control Regulations and Other Permanent and Enforceable Reductions EPA believes that the Commonwealth has demonstrated that the observed air quality improvement in the State College Area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal measures, and other State-adopted measures. Emissions reductions attributable to these rules are shown in Table 3. Table 3.—Total VOC and NO X Emissions for 2002 and 2004 in Tons per Day

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

(VOC)Year 2002 0.1 6.8 3.1 8.1 18.1 Year 2004 0.1 6.7 3.1 7.0 16.9 Diff. (02-04) 0.0 -0.1 0.0 -1.1 -1.2 Nitrogen Oxides (NO x ) Year 2002 5.8 0.8 4.0 18.8 29.4 Year 2004 3.8 0.9 3.8 16.8 25.3 Diff. (02-04) -2.0 0.1 -0.2 -2.0 -4.1 Between 2002 and 2004, VOC emissions were reduced by 1.2 tpd, and NO X emissions were reduced by 4.1 tpd. These reductions and anticipated future reductions are due to the following permanent and enforceable measures implemented or in the process of being implemented in the State College Area: 1. Stationary Point Sources Federal NO X 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 Engines and Vehicles Standards (62 FR 54694, October 21, 1997 and 65 FR 59896, October 6, 2000). National Low Emission Vehicle

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

(1)An attainment emissions inventory;

(2)A maintenance demonstration;

(3)A monitoring network;

(4)Verification of continued attainment; and

(5)A contingency plan. Analysis of the State College Area Maintenance Plan

(a)Attainment Inventory—An attainment inventory includes the emissions during the time period associated with the monitoring data showing attainment. An attainment year of 2004 was used for the State College Area since it is a reasonable year within the 3-year block of 2002-2004 and accounts for reductions attributable to implementation of the Clean Air Act requirements to date. The 2004 inventory is consistent with EPA guidance and is based on actual “typical summer day” emissions of VOC and NO X during 2004 and consists of a list of sources and their associated emissions. PADEP prepared comprehensive VOC and NO X emissions inventories for the State College Area, including point, area, mobile on-road, and mobile non-road sources for a base year of 2002. To develop the NO X and VOC base year emissions inventories, PADEP used the following approaches and sources of data:

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

(FIRE)Data System and EPA's publication series AP-42 and are based on Source Classification Code (SCC). Each process has at least one SCC assigned to it. If the owners and operators of facilities provide more accurate emission data based upon other factors, these emission estimates supersede those calculated using SCC codes.

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

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

(VMT)by vehicle type and roadway type.

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

(b)Maintenance Demonstration—On June 12, 2007, PADEP submitted a SIP revision to supplement its June 12, 2007 redesignation request. The submittal by PADEP consists of the maintenance plan as required by section 175A of the Clean Air Act. The State College Area plan shows maintenance of the 8-hour ozone NAAQS by demonstrating that current and future emissions of VOC and NO X remain at or below the attainment year 2004 emissions levels throughout the State College Area 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. Tables 4 and 5 specify the VOC and NO X emissions for the State College Area for 2004, 2009, and 2018. PADEP chose 2009 as an interim year in the 10-year maintenance demonstration period to demonstrate that the VOC and NO X emissions are not projected to increase above the 2004 attainment level during the time of the 10-year maintenance period. Table 4.—Total VOC Emissions for 2004-2018

(tpd)Source category 2004 VOC emissions 2009 VOC emissions 2018 VOC emissions Mobile* 7.0 5.4 3.7 Nonroad 3.1 2.7 2.1 Area 6.7 6.4 6.7 Point 0.1 0.1 0.1 Total 16.9 14.6 12.6 * Includes safety margin identified in the motor vehicle emission budgets for transportation conformity. Table 5.—Total NO X Emissions 2004-2018

(tpd)Source category 2004 NO X emissions 2009 NO X emissions 2018 NO X emissions Mobile* 16.8 12.5 6.0 Nonroad 3.8 3.2 1.9 Area 0.9 0.9 0.9 Point 3.8 6.7 7.7 Total 25.3 23.3 16.5 * Includes safety margin identified in the motor vehicle emission budgets for transportation conformity. 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: 1. Pennsylvania's Portable Fuel Containers (69 FR 70893, December 8, 2004). 2. Pennsylvania's Consumer Products (69 FR 70895, December 8, 2004). 3. Pennsylvania's Architectural and Industrial Maintenance

(AIM)Coatings (69 FR 68080, November 23, 2004). 4. Federal NO X SIP Call (66 FR 43795, August 21, 2001). 5. Federal Clean Air Interstate Rule (71 FR 25328, April 28, 2006). 6. FMVCP for passenger vehicles and light-duty trucks and cleaner gasoline (2009 and 2018 fleet)—Tier 1 and Tier 2 (56 FR 25724, June 5, 1991 and 65 FR 6698, February 10, 2000). 7. NLEV Program, which includes the Pennsylvania's Clean Vehicle Program for passenger vehicles and light-duty trucks (69 FR 72564, December 28, 1999)—proposed amendments to move the implementation to model year

(MY)2008. 8. Heavy duty diesel on-road (2004/2007) and low-sulfur on-road

(2006)(66 FR 5002, January 18, 2001). 9. Non-road emissions standards

(2008)and off-road diesel fuel (2007/2010) (69 FR 38958, June 29, 2004). Based upon the comparison of the projected emissions and the attainment year emissions along with the additional measures, EPA concludes that PADEP has successfully demonstrated that the 8-hour ozone standard should be maintained in the State College Area.

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

(d)Verification of Continued Attainment—The Commonwealth will track the attainment status of the ozone NAAQS in the State College Area by reviewing air quality and emissions during the maintenance period. The Commonwealth will perform an annual evaluation of two key factors, 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 the area exceeds the attainment year inventory

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

(e)The Maintenance Plan's Contingency Measures—The contingency plan provisions are designed to promptly correct a violation of the NAAQS that occurs after redesignation. Section 175A of the Clean Air Act requires that a maintenance plan include such contingency measures as EPA deems necessary to ensure that the State will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the events that would “trigger” the adoption and implementation of a contingency measure(s), the contingency measure(s) that would be adopted and implemented, and the schedule indicating the time frame by which the state would adopt and implement the measure(s). The ability of the State College Area to stay in compliance with the 8-hour ozone standard after redesignation depends upon VOC and NO X emissions in the area remaining at or below 2004 levels. The Commonwealth's maintenance plan projects VOC and NO X emissions to decrease and stay below 2004 levels through the year 2018. The Commonwealth's maintenance plan outlines the procedures for the adoption and implementation of contingency measures to further reduce emissions should a violation occur. Contingency measures will be considered if for two consecutive years the fourth highest eight-hour ozone concentrations at the State College Area monitor are above 84 ppb. If this trigger point occurs, the Commonwealth will evaluate whether additional local emission control measures should be implemented in order to prevent a violation of the air quality standard. PADEP will analyze the conditions leading to the excessive ozone levels and evaluate what measures might be most effective in correcting the excessive ozone levels. PADEP will also analyze the potential emissions effect of Federal, State and local measure that have been adopted but not yet implemented at the time of excessive ozone levels occurred. PADEP will then begin the process of implementing any selected measures. Contingency measures will be considered in the event that a violation of the 8-hour ozone standard occurs at the State College County, Pennsylvania monitor. In the event of a violation of the 8-hour ozone standard, contingency measures will be adopted in order to return the area to attainment with the standard. Contingency measures to be considered for the State College Area will include, but not limited to the following: *Non-regulatory measures:* —Voluntary diesel engine “chip reflash”—installation software to correct the defeat device option on certain heavy duty diesel engines. —Diesel retrofit, including replacement, repowering or alternative fuel use, for public or private local onroad or offroad fleets. —Idling reduction technology for Class 2 yard locomotives. —Idling reduction technologies or strategies for truck stops, warehouses and other freight-handling facilities. —Accelerated turnover of lawn and garden equipment, especially commercial equipment, including promotion of electric equipment. —Additional promotion of alternative fuel (e.g., biodiesel) for home heating and agricultural use. *Regulatory measures:* —Additional controls on consumer products. —Additional control on portable fuel containers. 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 Maintenance Plan for the State College Area Adequate and Approvable? A. What Are the Motor Vehicle Emissions Budgets? Under the Clean Air Act, States are required to submit, at various times, control strategy SIPs and maintenance plans in ozone areas. These control strategy SIPs (i.e. RFP SIPs and attainment demonstration SIPs) and maintenance plans identify and establish MVEBs for certain criteria pollutants and/or their precursors to address pollution from on-road mobile sources. Pursuant to 40 CFR part 93 and § 51.112, MVEBs must be established in an ozone maintenance plan. A MVEB is the portion of the total allowable emissions that is allocated to highway and transit vehicle use and emissions. A MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble also describes how to establish and revise the MVEBs in control strategy SIPs and maintenance plans. Under section 176(c) of the Clean Air Act, 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 budget contained therein “adequate” for use in determining transportation conformity. After EPA affirmatively finds the submitted MVEB is adequate for transportation conformity purposes, that MVEB can be used by State and Federal agencies in determining whether proposed transportation projects “conform” to the SIP as required by section 176(c) of the Clean Air Act. 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 the State College Area are listed in Table 1 of this document for the 2004, 2009, and 2018 years and are the projected emissions for the on-road mobile sources plus any portion of the safety margin allocated to the MVEBs. These emission budgets, when approved by EPA, must be used for transportation conformity determinations. B. What Is a Safety Margin? A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. The following example is for the 2018 safety margin: The State College Area first attained the 8-hour ozone NAAQS during the 2002 to 2004 time period. The Commonwealth used 2004 as the year to determine attainment levels of emissions for the State College Area. The total emissions from point, area, mobile on-road, and mobile non-road sources in 2004 equaled 16.9 tpd of VOC and 25.3 tpd of NO X . PADEP projected emissions out to the year 2018 and projected a total of 12.6 tpd of VOC and 16.5 tpd of NO X from all sources in the State College Area. The safety margin for the State College Area for 2018 would be the difference between these amounts, or 4.3 tpd of VOC and 8.8 tpd of NO X . The emissions up to the level of the attainment year including the safety margins are projected to maintain the area's air quality consistent with the 8-hour ozone NAAQS. The safety margin is the extra emissions reduction below the attainment levels that can be allocated for emissions by various sources as long as the total emission levels are maintained at or below the attainment levels. Table 6 shows the safety margins for the 2009 and 2018 years. Table 6.—2009 and 2018 Safety Margins for the State College Area Inventory year VOC emissions

(tpd)NO X emissions

(tpd)2004 Attainment 16.9 25.3 2009 Interim 14.6 23.3 2009 Safety Margin 2.3 2.0 2004 Attainment 16.9 25.3 2018 Final 12.6 16.5 2018 Safety Margin 4.3 8.8 PADEP allocated 0.4 tpd NO X and 0.3 tpd VOC to the 2009 interim VOC projected on-road mobile source emissions projection and the 2009 interim NO X projected on-road mobile source emissions projection to arrive at the 2009 MVEBs. For the 2018 MVEBs the PADEP allocated 0.5 tpd NO X and 0.4 tpd VOC from the 2018 safety margins to arrive at the 2018 MVEBs. Once allocated to the mobile source budgets these portions of the safety margins are no longer available, and may no longer be allocated to any other source category. Table 7 shows the final 2009 and 2018 MVEBs for the State College Area. Table 7.—2009 and 2018 Final MVEBs for the State College Area Inventory year VOC emissions

(tpd)NO X emissions

(tpd)2009 projected on-road mobile source projected emissions 5.1 12.1 2009 Safety Margin Allocated to MVEBs 0.3 0.4 2009 MVEBs 5.4 12.5 2018 projected on-road mobile source projected emissions 3.3 5.5 2018 Safety Margin Allocated to MVEBs 0.4 0.5 2018 MVEBs 3.7 6.0 C. Why Are the MVEBs Approvable? The 2004, 2009 and 2018 MVEBs for the State College Area are approvable because the MVEBs for NO X and VOC, including the allocated safety margins, continue to maintain the total emissions at or below the attainment year inventory levels as required by the transportation conformity regulations. D. What Is the Adequacy and Approval Process for the MVEBs in the State College Area Maintenance Plan? The MVEBs for the State College Area maintenance plan are being posted to EPA's conformity Web site concurrent with this proposal. The public comment period will end at the same time as the public comment period for this proposed rule. In this case, EPA is concurrently processing the action on the maintenance plan and the adequacy process for the MVEBs contained therein. In this proposed rule, EPA is proposing to find the MVEBs adequate and also proposing to approve the MVEBs as part of the maintenance plan. The MVEBs cannot be used for transportation conformity until the maintenance plan update and associated MVEBs are approved in a final **Federal Register** notice, or EPA otherwise finds the budgets adequate in a separate action following the comment period. If EPA receives adverse written comments with respect to the proposed approval of the State College Area MVEBs, or any other aspect of our proposed approval of this updated maintenance plan, we will respond to the comments on the MVEBs in our final action or proceed with the adequacy process as a separate action. Our action on the State College Area 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 the State College Area has attained the 8-hour ozone NAAQS. EPA is also proposing to approve the Commonwealth's June 12, 2007 request for the State College Area to be redesignated to attainment of the 8-hour NAAQS for ozone. EPA has evaluated Pennsylvania's redesignation request and determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the Clean Air Act. EPA believes that the redesignation request and monitoring data demonstrate that the area has attained the 8-hour ozone standard. The final approval of this redesignation request would change the designation of the State College Area from nonattainment to attainment for the 8-hour ozone standard. EPA is also proposing to approve the associated maintenance plan and the 2002 base year inventory for State College Area, submitted on June 12, 2007, as revisions to the Pennsylvania SIP. EPA is proposing to approve the maintenance plan for the State College Area because it meets the requirements of section 175A as described previously in this notice. EPA is also proposing to approve the MVEBs submitted by Pennsylvania for the State College Area in conjunction with its redesignation request. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. IX. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Redesignation of an area to attainment under section 107(d)(3)(e) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. Redesignation of an area to attainment under section 107(d)(3)(E) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Because this action affects the status of a geographical area, does not impose any new requirements on sources, or allows the state to avoid adopting or implementing other requirements, 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 the State College Area to attainment for the 8-hour ozone NAAQS, the associated maintenance plan, the 2002 base year inventory, and the MVEBs identified in the maintenance plan, does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. 40 CFR Part 81 Air pollution control, National parks, Wilderness areas. Authority: 42 U.S.C. 7401 *et seq.* Dated: August 30, 2007. Donald S. Welsh, Regional Administrator, Region III. [FR Doc. E7-17890 Filed 9-10-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 300 [EPA-HQ-SFUND-1990-0011; FRL-8465-3] National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List AGENCY: Environmental Protection Agency. ACTION: Notice of intent for partial deletion of a portion of the Seneca Army Depot Activity Superfund Site from the National Priorities List. SUMMARY: The United States Environmental Protection Agency

(EPA)announces its intent to delete from the National Priorities List

(NPL)all media (surface soils, subsurface soils, structures, surface water, and ground water) within the following two specific parcels of real property located at the Seneca Army Depot Activity

(SEDA)Superfund Site (Site), Romulus, New York: Real Estate Parcel 1, except for a portion of this parcel known as SEAD-24; and the entirety of Real Estate Parcel 2. EPA requests public comment on this action. The NPL constitutes Appendix B to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR Part 300, which EPA promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended. EPA and the State of New York, through its Department of Environmental Conservation (the State), have determined that all appropriate CERCLA response actions related to Parcel 1 (except the SEAD-24 portion) and Parcel 2 have been implemented. This partial deletion pertains only to Parcel 1 (except the SEAD-24 portion) and Parcel 2, and does not include any other portions of the Site. The portion of Parcel 1 known as SEAD-24 is not proposed for deletion at this time. Figure one (in the deletion docket) shows a map of Real Estate Parcels 1 and 2, and delineates between those areas being proposed for deletion and those areas that will remain on the NPL. The purpose of the proposed deletion of Parcel 1 (except the SEAD-24 portion) and Parcel 2 is to remove uncontaminated and potentially useful property from the NPL, thereby making the land more desirable for re-development. EPA has compiled the documents, such as soil sample results and locations, maps, pollution reports, and other relevant deletion documentation which were used by EPA in its determination to propose deletion of these Parcels. These documents are located in the deletion docket at the locations indicated below. DATES: EPA will accept comments concerning its proposal for partial deletion until October 11, 2007 and a local newspaper of record. ADDRESSES: Submit your comments, identified by Docket No. EPA-HQ-SFUND-1990-0011, by one of the following methods: • *http://www.regulations.gov* . Follow on-line instructions for submitting comments. • *E-mail:* vazquez.julio@epa.gov. • *Fax:*

(212)637-3256. • *Mail:* USEPA—Region 2, Emergency and Remedial Response Division, 290 Broadway—New York, NY 10007. • *Hand delivery:* USEPA—Region 2, Emergency and Remedial Response Division, Federal Facilities Section, 290 Broadway, 18th Floor, New York, NY 10007. 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 No. EPA-HQ-SFUND-1990-0011. EPA's policy is to include in the public docket all comments received, without change, and to make them 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 through *http://www.regulations.gov* or e-mail that you consider to be CBI or otherwise protected. 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 because of 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 they should be free of any defects or viruses. *Docket:* All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, *e.g.* , CBI or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in the hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at: Regional Repository, U.S. EPA Region 2 Records Center, 290 Broadway—18th Floor, New York, NY 10007-1866, *Hours:* 9 a.m. to 5 p.m.—Monday through Friday.

(212)637-4308. Local Site Repository, Seneca Army Depot Activity, 5786 State Route 96, Building 123, Romulus, NY 14541, *Hours:* 9 a.m. to 3:30 p.m.—Monday through Thursday,

(607)869-1494. FOR FURTHER INFORMATION CONTACT: Mr. Julio F. Vazquez, Remedial Project Manager, U.S. EPA Region 2, 290 Broadway, 18th Floor, New York, NY 10007-1866,

(212)637-4323. SUPPLEMENTARY INFORMATION: Table of Contents I. Introduction II. NPL Deletion Criteria III. Deletion Procedures IV. Basis for Intended Partial Site Deletion I. Introduction EPA announces its intention to delete from the NPL all media (surface soils, subsurface soils, structures, surface water, and ground water) related to a portion of Real Estate Parcel 1 and all of Real Estate Parcel 2 at the Seneca Army Depot Activity Superfund Site, located in Romulus, New York, and requests public comments on this action. The [Comment 1] NPL constitutes Appendix B of the NCP, 40 CFR Part 300, which EPA promulgated pursuant to Section 105 of CERCLA. This partial deletion is proposed in accordance with 40 CFR 300.425(e) and the Notice of Policy Change: Partial Deletion of Sites listed on the National Priorities List, 60 FR 55466 (Nov. 1, 1995). EPA and the State have determined that all appropriate CERCLA response actions related to a portion of Real Estate Parcel 1 and all of Real Estate Parcel 2 have been implemented. This partial deletion pertains only to the designated areas in Parcels 1 and 2 and does not include other portions of the Site. In addition, there is one area located within Parcel 1, known as SEAD-24, which is not proposed for deletion at this time. Boundaries of the Parcels proposed for deletion, as well as the boundaries of SEAD-24, can be reviewed at the Site's information repositories. The following Parcels, either wholly or in part, are proposed for deletion: Parcels Acres deleted Parcel 1—Empire Biofuels Redevelopment 368.6 Parcel 2—Seneca County Public Safety Building and Jail 25.2 Parcel 1, also known as the Empire Biofuels Redevelopment area, is located midway on the western edge of SEDA. Most of this Parcel did not require remedial investigations under CERCLA. The two areas within Parcel 1 that were investigated under CERCLA are known as SEAD-58 and SEAD-24 [Comment 2]. SEAD-58 includes two debris disposal areas that have been found to require no active remediation under CERCLA. SEAD-24 is a two-acre area that is not included in this proposed deletion and will remain on the NPL. SEAD-24 underwent a soil removal action in 2004 and is awaiting a determination by EPA that all appropriate response actions have been implemented. Parcel 2, also known as the Seneca County Public Safety Building and Jail area, is located along the eastern perimeter of the SEAD Site in the southeast quadrant. The parcel encompasses two sub-parcel areas designated as SEAD-50 and SEAD-54, both of which have been remediated. Subsequent sampling of these two areas confirmed that all appropriate CERCLA response actions were performed. However, SEAD-50 and -54 are subject to Institutional Controls

(ICs)because they are part of the encompassing Planned Industrial Development

(PID)area [Comment 3]. SEDA, which encompasses approximately 10,634 acres, includes property owned by the U. S. Department of Army, the Seneca County Industrial Development Agency (SCIDA), the local redevelopment authority, New York State Department of Corrections, U.S. Department of Homeland Security, Seneca County, and private entities. As part of the Base Realignment and Closure Act (BRAC), the Federal government has entered into agreements with SCIDA to transfer selected properties for public and private reuse. Parcels 1 and 2 are currently owned by SCIDA. Seneca County, Empire Biofuels, Inc., and Flaum Management Company, Inc. requested this partial deletion to facilitate reuse of these Parcels. Summary reports submitted to EPA and the State have shown that all appropriate response actions with regard to the soil, soil vapor, structures, surface water, and ground water media for Parcels 1 and 2 (with the exception of SEAD-24 area in Parcel 1) have been performed or that the conditions pose no significant threat to public health or the environment and therefore remedial measures are not appropriate. This notice is only for the Parcels specified herein and does not include any other real properties within the Site. Ongoing remedial investigations, remedial designs, and other soil, structures, surface water, and ground water cleanup activities will continue at the portions of the Site not included in this notice of intent to delete. All of those other portions of the Site remain on the NPL, including SEAD-24 within Parcel 1. The NPL is a list maintained by EPA of sites that EPA has determined present a significant risk to human health or welfare, or to the environment. Pursuant to 40 CFR 300.425(e) of the NCP, any site or portion of a site deleted from the NPL remains eligible for Superfund-financed remedial actions if conditions at a site warrant such action. EPA will accept public comments concerning this notice of intention to partially delete portions of the Site for a period of thirty

(30)days after publication of this notice in the **Federal Register** and a local newspaper of record. II. NPL Deletion Criteria The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425 (e), sites may be deleted from the NPL where all appropriate response actions have been performed or no significant threat to public health and the environment exists. In making this determination, EPA, in consultation with the State, will consider whether any of the following criteria have been met: • Section 300.425(e)(1)(i). Responsible parties or other persons have implemented all appropriate response actions required; or • Section 300.425(e)(1)(ii). All appropriate Fund-financed responses under CERCLA have been implemented and no further cleanup by responsible parties is appropriate; or • Section 300.425(e)(1)(iii). The remedial investigation has shown that the release of hazardous substances poses no significant threat to public health or the environment and, therefore, taking of remedial measures is not appropriate. Parcel 1, with the exception of SEAD-24, is proposed for deletion from the NPL because remedial investigations have shown that no significant threat to public health or the environment exists and therefore no remedial measures are appropriate. Parcel 2 is proposed for deletion from the NPL as all appropriate CERCLA response actions have been implemented at this area, and area-related studies or remedial investigations have shown that no further cleanup is appropriate or necessary to protect public health or the environment. This partial deletion does not affect or impede any CERCLA response activities at areas of the Site that are not deleted and that remain on the NPL. Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any person's rights or obligations. The NPL is designed primarily for informational purposes and to assist EPA management. III. Deletion Procedures The following procedures were used for the intended deletion of Parcels 1 (excluding the SEAD-24 portion) and 2 from the Site:

(1)The Site was listed on the NPL on August 30, 1990.

(2)Historic records, field investigations, and other information at the Site were used to establish Areas of Concern which were later designated as Solid Waste Management Units (SWMUs), which are referred to at the Site as “SEAD-#.” Over 100 SWMUs have been identified at the Site.

(3)It has been determined that many areas of the Site did not experience any release of hazardous substances, did not require further investigations, and did not require designation as a SWMU. Some of the areas within Parcels 1 and 2 have not been identified as areas of concern and do not have a SEAD number designation.

(4)Parcels 1 and 2 include four SWMUs: SEAD-24, -50, -54, and -58. SEAD-24, which lies within Parcel 1, is not proposed for deletion at this time. EPA has determined, however, that all appropriate response actions at SEAD-50, -54, and -58 have been implemented. These determinations were documented in Records of Decisions (RODs [Comment 4]).

(5)To facilitate transfer of property to the public and development of certain Parcels of the former SEDA facility, Empire Biofuels, Seneca County, and Flaum Management Company submitted a Draft Notice of Intent to Partial Deletion (NOIPD) package for Parcels 1 and 2, excluding the SEAD-24 portion of Parcel 1.

(6)Seneca County Industrial Development Agency has requested the deletion of the identified portions of Parcels 1 and 2.

(7)EPA recommends this partial deletion and has prepared the relevant documents.

(8)The State concurred with the deletion of these Parcels in a letter dated April 10, 2007.

(9)Concurrent with this Notice of Intent for Partial Deletion, a notice has been published in a local newspaper of record and has been distributed to appropriate Federal, State, and local officials and to other interested parties. These notices announce a thirty

(30)day public comment period on the partial deletion package, which commences on the date of publication of this notice in the **Federal Register** and a local newspaper of record, whichever period is later.

(10)EPA has made all relevant documents available at the information repositories listed above. Upon completion of the thirty

(30)day public comment period, EPA will evaluate any comments received before the issuing a final decision on the partial deletion. If appropriate, EPA will prepare a Responsiveness Summary to address comments received during the public comment period responding to concerns presented in the comments. The Responsiveness Summary will be made available to the public at the information repositories listed above. If, after review of all public comments, EPA determines that this partial deletion from the NPL is appropriate, EPA will publish a final notice of deletion in the **Federal Register** . Deletion of the Parcels does not actually occur until the final Notice of Partial Deletion is published in the **Federal Register** . IV. Basis for Intended Partial Site Deletion Background SEDA encompasses approximately 10,634 acres, including all real property within the “fence-line” that surrounds SEDA. The military mission of the Site has varied over the years. In 1942, it was activated as the Seneca Ordnance Depot. The mission of the Depot included the storage, maintenance, and shipment of material for the U.S. Army, the demilitarization of conventional ammunition, and the training of Reserve and National Guard units. The Depot was designated for closure in 1995 under the Base Realignment and Closure Act, resulting in deactivation of all military activities. The Depot's military mission officially ended in 2000. The Site was investigated by means of Areas of Concern which were later designated as SWMUs, which are referred to at the Site as SEAD-#s. The SEADs were identified based upon historic information and field investigations. Over 100 SWMUs have been identified at the Site. One or more SWMUs are located within each of the Parcels proposed for deletion. To be deleted from the NPL, EPA must determine that no response action or no further response action is appropriate. Over the years, various hazardous substances were used at the Site, and hazardous wastes were generated, stored, or disposed there. Numerous studies and investigations have been performed to locate, assess, and quantify the past storage, disposal, and spill areas of hazardous substance at the Site. These investigations include: records searches; interviews with base personnel; field inspections; compilation of waste inventory; evaluation of disposal practices; assessments to determine the nature and extent of site contamination; soil and groundwater analysis; a base-wide health assessment; base-specific hydrology investigations; and various Site-specific investigations. Based upon such studies and information, the Site was included on the NPL on August 30, 1990. On January 21, 1993, the U.S. Army entered into a Site-specific Federal Facility Agreement with EPA and NYSDEC under Section 120 of CERCLA. By the terms of that Agreement, the Army was required to submit various reports concerning the Site to the State and EPA for review and comment. These reports addressed remedial activities required under CERCLA and included: The identification of SWMUs; scoping workplans, site inspections

(SI)and remedial investigation (RI); sampling and analysis plans, quality assurance plans; baseline and mini-risk assessments; a community relations plan; and proposed plans and records of decisions. Environmental studies pertinent to this NOIPD relied on the following documents which were completed to facilitate the characterization and evaluation process required for deletion of selected parcels. These investigations/reports included: • SWMU Classification Report, Final, September 1994; • Expanded Site Inspection Eight Moderately Low Priority Areas of Concern—SEADs 5, 9, 12 (A/B), (43, 56, 69), 44 (A/B), 50, 58 and 59, Draft—Final, December 1995; • Environmental Baseline Survey Report Final, March 1997; • Action Memorandum and Decision Document for Time-Critical Removal Actions Four Metals Sites (SEADs 24, 50/54 & 67), Final, August 2002; • Finding of Suitability to Transfer

(FOST)for the PID and Warehouse Area, July 2003; • FOST for the Conservation/Recreation Area, July 2003; • Deed for SEAD-50/54, April 2004; • Final ROD for the PID and Warehouse Area at Seneca Army Depot Activity, September 2004; • Amendment 1 to the FOST for the PID and Warehouse Area, December 2003; • Final Completion Removal Report, Time Critical Removal Action Metal Sites, SEAD-50/54, December 2003; • Final ROD for no Further Action SWMUs (SEAD-50/54) at Seneca Army Depot Activity, September 2005; • Final ROD for No Action SWMU (SEAD-58) and No Further Action SWMU (SEAD-63) at Seneca Army Depot Activity, September 2006; • Request package for Partial Deletion from SCIDA, November 2006; • State concurrence letter, April 2007. [Comment 5] Based on the findings of the environmental studies documented in the reports above, the parcels proposed for deletion meet the deletion criteria. The history and current status of each SWMU within the Parcels proposed for deletion are summarized below. Parcel 1—Empire Biofuels Redevelopment [Comment 6 ] This Parcel is comprised of approximately 368.6 acres and contains a portion (SEAD-58) that has been addressed under CERCLA [Comment 7]. A second area (SEAD-24), situated wholly within the boundaries of Parcel 1, is not proposed for deletion at this time. SEAD-24 has undergone a soil removal action and is awaiting a final determination as to whether all appropriate response action has been implemented. A summary of SEAD-58 is provided as follows: SEAD-58 Debris Area Near Booster Station Characterized as a debris area, SEAD-58 is located in the western-central portion of SEDA and is the northern-most SWMU in the Empire Biofuels Redevelopment parcel. SEAD-58 encompasses two distinct debris disposal areas that vary in size from 200-300 feet in diameter. These areas were used for the disposal of miscellaneous waste purported to include the pesticide DDT. In 1994, an RI and supplemental Expanded Site Inspection

(ESI)were initiated to characterize the full extent of environmental impacts specific to SEAD-58 and determine potential threats to human health and the environment. The investigations entailed the completion of a geophysical survey, a drilling program, test pit excavations, and an environmental sampling program designed to collect surface soil, surface water, sediment, subsurface soil, and groundwater media. Based upon the area specific analytical results evaluated for the May 2002 Mini-Risk Assessment, the Army proposed “No Action” as a remedy. Subsequent to review by EPA and the State, the Final May 2002 Decision Document was modified to incorporate technical comments deleting the need for land use restrictions for the two debris disposal areas. In September 2006, EPA, with the concurrence of the State, approved the May 2002 document in which it was determined that SEAD-58, with no land use restrictions, posed no significant risk to the human health or the environment. Approval of the “No Action” decision forms the basis to delete SEAD-58 from the NPL, and it affects all media (surface soils, subsurface soils, structures, surface water, and ground water). SEAD-24 Abandoned Powder Burning Pit (Not To Be Delisted) SEAD-24, the Abandoned Powder Burning Pit, is located in the west-central portion of SEDA. The burning pit comprises an area measuring approximately 325 feet by 150 feet that is surrounded on the east, south, and west by a berm approximately 4 feet high. The area is bounded to the north by West Kendaia Road and by open grassland and brush. The Abandoned Powder Burning Pit was active during the 1940s and 1950s. Although operating practices at this area are undocumented, it is presumed that black powder, M10 and M16 solid propellants, and explosive trash were disposed here through controlled burning. It was further presumed that petroleum hydrocarbon fuel was used to ignite the burn. An ESI was performed at SEAD-24 between 1993 and 1994. The ESI combined geophysical surveys and intrusive methods to characterize the nature and extent of the contaminants present there. During intrusive operations, environmental samples of soil and groundwater were collected. Of the fifty-seven different analytes for soil, three semi-volatile organic compounds and fourteen metals were present at concentrations that exceeded cleanup objectives. The highest concentrations were primarily limited to surface soil samples. The ground water sampling results suggested no impact to the ground water near the Abandoned Powder Burning Pit. A time-critical removal action was conducted between 2002 and 2006 to reduce metal and carcinogenic PAHs contamination in soils. Regulatory review of this action is in progress. Parcel 2—Seneca County Jail [Comment 8] This 25.2 acre parcel is located in the southeast quadrant of SEDA, along its eastern perimeter. The parcel encompasses two SMWUs designated SEAD-50 and SEAD-54, of which 22 acres have been remediated under CERCLA. Investigations were completed to identify potential environmental impacts at each SWMU and were supplemented with risk evaluations that ultimately determined no further action was required for these SWMUs. Based on investigations and remedial activities performed with EPA and State approval and oversight, the SWMUs described below are proposed for deletion from the NPL. SEAD-50 and SEAD-54 Tank Farm Area Characterized as a former tank farm area, approximately 160 above-ground storage tanks were once located within the triangular shaped land tract known as SEAD-50/54. The preliminary investigation of the area, which was performed in 1993, was reported in the SWMU Classification Report, and as a result it was identified as a SWMU. The area which was subsequently identified as SEAD-50 was used for dry material storage that included stockpiles of strategic ores such as antimony, rutile, and silicon carbide. One storage tank (Tank #88) contained asbestos ore material and was assigned a separate SEAD designation (SEAD-54). All tanks were removed prior to implementing a phased program of investigation, evaluation, and remediation. In 1994, an RI and supplemental ESI were performed to characterize the full extent of environmental impacts specific to the SEAD-50/54 area and determine potential threats to human health and the environment. The investigations entailed the completion of a geophysical survey, a drilling program, test pit excavations, and an environmental sampling program designed to collect surface soil, subsurface soil, surface water, sediment, and groundwater media. Analytical results identified elevated concentrations of selected metals (arsenic, lead, manganese, potassium, and zinc) in tank farm soil materials that were determined to represent a potential environmental threat. A time-critical removal action was performed from late 2002 to early 2003 to excavate, remove, and dispose of impacted soil material from SEAD-50/54. The “Final Completion Report” for SEAD-50/54, which documented findings of the removal action and confirmatory sampling results, presented data supporting a determination that SEAD-50/54 no longer poses a threat to human health and the environment. EPA, with the concurrence of the State, approved a remedy in September 2005 which required “No Further Action” for SEADs-50/54. The remedy required that the PID and Warehouse Areas, including SEADs-50/54, be subject to controls restricting future residential development and groundwater use. Accordingly, the recorded deed for this Parcel contains the land use restrictions on land and groundwater use. [Comment 9] These land use controls are considered CERCLA actions and are included among the documents which are the basis for this action. Major Community Involvement Activities The Army published its Community Relations Plan in October 1992 and created a Restoration Advisory Board to facilitate participation of and input from the public throughout the CERCLA cleanup process. Each decision document at the Site has been made available for public comment, discussed at public meetings, and placed in the information repository before the decision document was finalized. List of Subjects in 40 CFR Part 300 Environmental protection, Chemicals, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements, Superfund. Dated: August 17, 2007. Alan J. Steinberg, Regional Administrator, Region 2. [FR Doc. E7-17750 Filed 9-10-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 [Docket No. FEMA-B-7734 & D-7818] Proposed Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Proposed rule. SUMMARY: Technical information or comments are requested on the proposed Base (1% annual chance) Flood Elevations

(BFEs)and proposed BFEs modifications for the communities listed below. The BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). DATES: The comment period is ninety

(90)days following the second publication of this proposed rule in a newspaper of local circulation in each community. ADDRESSES: The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Section, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,

(202)646-3151. SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency

(FEMA)proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a). These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. *National Environmental Policy Act.* This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. *Regulatory Flexibility Act.* As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Regulatory Classification.* This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism.* This proposed rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform.* This proposed rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is proposed to be amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.4 [Amended] 2. The tables published under the authority of § 67.4 are proposed to be amended as follows: Flooding source(s) Location of referenced elevation * Elevation in feet

(NGVD)+ Elevation in feet

(NAVD)# Depth in feet above ground Effective Modified Communities affected Larimer County, Colorado, and Incorporated Areas Dry Creek (North of Canal) Just upstream of the confluence with Larimer and Weld Canal +4994 +4993 Unincorporated Areas of Larimer County. Approximately 900 feet downstream of Shields Street +5017 +5016 (South of Canal) Just upstream of the confluence with the Cache La Poudre River +4919 +4916 City of Fort Collins, Unincorporated Areas of Larimer County. Approximately 850 feet upstream of Redwood Street +4965 +4964 East Vine Diversion Just upstream of the confluence with Dry Creek (South of Canal) None +4944 City of Fort Collins, Unincorporated Areas of Larimer County. Just downstream of Larimer and Weld Canal None +4983 East Vine Diversion Left Overbank Flow Just upstream of Vine Drive None +4944 City of Fort Collins, Unincorporated Areas of Larimer County. Approximately 1900 feet upstream of Vine Drive None +4948 Larimer and Weld Canal At the confluence with East Vine Diversion None +4983 City of Fort Collins, Unincorporated Areas of Larimer County. At the upstream diversion from Dry Creek (North of Canal) None +4993 Old Dry Creek (Historic Channel) Just downstream of Mulberry Street +4921 +4919 Unincorporated Areas of Larimer County. Approximately 800 feet downstream of Dry Creek (South of Canal) +4931 +4930 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Fort Collins Maps are available for inspection at Stormwater Utilities Department, 700 Wood Street, Fort Collins, CO 80521. Send comments to Doug Hutchinson, Mayor, City of Fort Collins, 300 LaPorte Avenue, Fort Collins, CO 80522-0580. Unincorporated Areas of Larimer County Maps are available for inspection at 200 West Oak Street, Fort Collins, CO 80521. Send comments to Karen Wagner, Chair, Larimer County Board of Commissioners, P.O. Box 1190, Fort Collins, CO 80522. Graham County, North Carolina, and Incorporated Areas Anderson Creek At the confluence with Tulula Creek None +2,255 Graham County. Approximately 0.4 mile upstream of State Road 1103 None +2,643 Atoah Creek At the confluence with Long Creek None +2,045 Graham County. Approximately 230 feet upstream of Lewis Nelson Road None +2,329 Bear Creek (near Dentons) At the confluence with Little Snowbird Creek None +2,510 Graham County. Approximately 1.5 miles upstream of the confluence with Little Snowbird Creek None +3,093 Beech Creek At the confluence with Sweetwater Creek None +2,196 Graham County. Approximately 1,920 feet upstream of the confluence of South Fork Beech Creek None +2,363 Bert Creek At the confluence with Tulula Creek None +2,185 Graham County. Approximately 1,100 feet upstream of Berts Creek Road None +2,344 Buffalo Creek At the confluence with Cheoah River None +1,942 Graham County. At the confluence of West Buffalo Creek None +1,942 Cheoah River At the confluence with Little Tennessee River None +1,088 Graham County, Town of Robbinsville. At the confluence of Tulula Creek and Sweetwater Creek None +1,982 Cochran Creek Approximately 0.4 mile upstream of Cochrans Creek Road (State Road 1250) None +1,930 Graham County. At the confluence with Cheoah River None +1,963 Cooloska Branch At the confluence with Snowbird Creek None +1,942 Graham County, Eastern Band of Cherokee Indians. Approximately 900 feet upstream of Massey Branch Road (State Road 1116) None +1,965 Tributary 1 At the confluence with Cooloska Branch None +1,961 Eastern Band of Cherokee Indians. Approximately 30 feet downstream of Jackson Branch Road (State Road 1149) None +2,008 Dry Creek At the confluence with Stecoah Creek None +2,050 Graham County. Approximately 1,630 feet upstream of Collins Cove None +2,629 East Buffalo Creek At the confluence with Cheoah River None +1,942 Graham County, Town of Lake Santeetlah. Approximately 0.4 mile upstream of Buffalo Lane None +2,066 Eller Mill Creek At the confluence with Little Snowbird Creek None +2,317 Graham County. Approximately 0.5 mile upstream of the confluence with Little Snowbird Creek None +2,540 Fontana Lake Entire shoreline within Graham County None +1,710 Graham County. Franks Creek At the confluence with Tulula Creek None +2,126 Graham County. Approximately 1,000 feet upstream of Franks Creek Road (State Road 1207) None +2,315 Gladdens Creek At the confluence with Cheoah River None +1,722 Graham County. Approximately 0.5 mile upstream of Gladdens Creek Road (State Road 1135) None +1,917 Hares Creek At the confluence with Tulula Creek None +2,278 Graham County. Approximately 700 feet downstream of Carpenter Drive None +2,602 Hooper Mill Creek At the confluence with West Buffalo Creek None +2,114 Graham County. Approximately 20 feet downstream of the confluence of Seven Springs Branch None +2,672 Hyde Mill Creek At the confluence with Tulula Creek None +2,084 Graham County. Approximately 1,870 feet upstream of Floyd Carpenter Road (State Road 1132) None +2,433 Juanita Branch At the confluence with Little Snowbird Creek None +2,985 Graham County. Approximately 0.7 mile upstream of the confluence with Little Snowbird Creek None +3,255 Juts Creek At the confluence with Tulula Creek None +2,425 Graham County. Approximately 0.5 mile upstream of U.S. Highway 129 None +2,580 Little Buffalo Creek At the confluence with West Buffalo Creek and Squally Creek None +2,361 Graham County. Approximately 1.5 miles upstream of the confluence with West Buffalo Creek and Squally Creek None +2,928 Little Snowbird Creek At the confluence with Snowbird Creek None +2,108 Graham County, Eastern Band of Cherokee Indians. Approximately 800 feet upstream of the confluence of Hornet Nest Branch None +3,288 Little Tennessee River Approximately 1.7 miles downstream of the confluence of Cheoah River None +1,088 Graham County. At the downstream side of the Fontana Dam None +1,277 Long Creek At the confluence with Cheoah River None +1,968 Graham County, Town of Robbinsville. Approximately 1.4 miles upstream of Springwood Lake Road None +2,393 Mountain Creek At the confluence with Cheoah River None +1,945 Graham County, Eastern Band of Cherokee Indians. Approximately 50 feet downstream of Mountain Creek Road (State Road 1214) None +2,397 Mouse Branch At the confluence with Panther Creek None +1,710 Graham County. Approximately 2.0 miles upstream of the confluence with Panther Creek None +1,713 North Fork Tuskeegee Creek At the confluence with Tuskeegee Creek None +1,953 Graham County. Approximately 1,420 feet upstream of Upper Tuskeegee NP (State Road 1242) None +2,031 Ollie Branch At the confluence with East Buffalo Creek None +1,943 Graham County. Approximately 180 feet upstream of Ollies Creek Road (State Road 1253) None +2,246 Panther Creek At the confluence with Little Tennessee River None +1,710 Graham County. Approximately 0.4 mile upstream of Shell Stand Road (State Road 1268) None +1,886 Santeetlah Creek At the confluence with Cheoah River None +1,942 Graham County. Approximately 1.8 miles upstream of the confluence with Cheoah River None +1,942 Sawyer Creek At the confluence with Stecoah Creek None +1,710 Graham County. Approximately 0.4 mile upstream of Upper Sawyers Creek NP (State Road 1240) None +2,284 Snowbird Creek At the confluence with Cheoah River None +1,942 Graham County, Eastern Band of Cherokee Indians. Approximately 0.6 mile downstream of the confluence of Chestnut Flat Branch None +2,207 South Fork Beech Creek At the confluence with Beech Creek None +2,283 Graham County. Approximately 1.6 miles upstream of Beech Creek Road (State Road 1223) None +2,845 Squally Creek At the confluence with West Buffalo Creek and Little Buffalo Creek None +2,361 Graham County. Approximately 0.9 mile upstream of the confluence of South Fork Squally Creek None +3,922 Stecoah Creek At the confluence with Little Tennessee River None +1,710 Graham County. Approximately 0.7 mile upstream of Cody Branch (State Road 1226) None +2,328 Sweetwater Creek At the confluence with Cheoah River and Tulula Creek None +1,982 Graham County, Town of Robbinsville. Approximately 80 feet downstream of NC Highway 143 None +2,356 Town Branch At the confluence with Panther Creek None +1,710 Graham County. Approximately 0.5 mile upstream of the confluence of Town Branch Tributary 1 None +1,729 Tributary 1 At the confluence with Town Branch None +1,710 Graham County. Approximately 0.5 mile upstream of the confluence with Town Branch None +1,712 Tulula Creek At the confluence with Cheoah River and Sweetwater Creek None +1,982 Graham County, Town of Robbinsville. Approximately 0.8 mile upstream of the confluence of Juts Creek None +2,506 Tuskeegee Creek At the confluence with Little Tennessee River None +1,710 Graham County. At the confluence of North Fork Tuskeegee Creek None +1,953 West Buffalo Creek At the confluence with Buffalo Creek None +1,942 Graham County. At the confluence of Squally Creek and Little Buffalo Creek None +2,361 Wolf Creek At the confluence with Panther Creek None +1,710 Graham County. Approximately 0.5 mile upstream of Little Bear Lane None +1,855 Yellow Creek At the confluence with Cheoah River None +1,447 Graham County. Approximately 0.9 mile upstream of Yellow Creek Road (State Road 1242) None +2,338 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Eastern Band of Cherokee Indians Maps are available for inspection at Ginger Lynn Welch Complex, 810 Aquona Road, Cherokee, North Carolina. Send comments to Mr. Michell Hicks, Principal Chief for the Eastern Band of Cherokee Indians, P.O. Box 455, Cherokee, North Carolina 28719. Graham County Maps are available for inspection at Graham County Mapping Department, 12 North Main Street, Robbinsville, North Carolina. Send comments to Mrs. Sandra Smith, Graham County Manager, 12 North Main Street, Robbinsville, North Carolina 28771. Town of Lake Santeetlah Maps are available for inspection at Lake Santeetlah Town Hall, 4 Marina Drive, Lake Santeetlah, North Carolina. Send comments to The Honorable Harding Hohenschutz, Mayor of the Town of Lake Santeetlah, 4 Marina Drive, Lake Santeetlah, North Carolina 28771. Town of Robbinsville Maps are available for inspection at Robbinsville Town Hall, 4 Court Street, Robbinsville, North Carolina. Send comments to The Honorable Bobby Cagle, Jr., Mayor of the Town of Robbinsville, P.O. Box 129, Robbinsville, North Carolina 28771. Moody County, South Dakota, and Incorporated Areas Big Sioux River Just upstream of County Highway 32 2500 feet upstream of First Avenue None None +1532 +1543 Unincorporated Areas of Moody County, City of Flandreau. * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Flandreau Maps are available for inspection at 1005 W. Elm Avenue, Planning and Zoning Department, Flandreau, SD 57028. Send comments to The Honorable Warren Ludeman, Mayor, City of Flandreau, 1005 W. Elm Avenue, PO Box 343, Flandreau, SD 57028. Unincorporated Areas of Moody County Maps are available for inspection at 101 E. Pipestone Avenue, Suite E, Flandreau, SD 57028. Send comments to Ms. Brenda Duncan, Planning and Zoning Secretary, 101 E. Pipestone Avenue, Suite E, Flandreau, SD 57028. (Catalog of Federal Domestic Assistance No. 97.022, “Flood Insurance.”) Dated: August 31, 2007. David I. Maurstad, Federal Insurance Administrator of the National Flood Insurance Program, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E7-17821 Filed 9-10-07; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List Kenk's Amphipod, Virginia Well Amphipod, and the Copepod Acanthocyclops columbiensis as Endangered AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of 90-day petition finding. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the Kenk's amphipod ( *Stygobromus kenki* ), the Virginia well amphipod ( *Stygobromus phreaticus* ), and the copepod *Acanthocyclops columbiensis* as endangered under the Endangered Species Act of 1973, as amended. We find the petition does not provide substantial scientific or commercial information indicating that listing of these three crustaceans may be warranted. Therefore, we will not initiate a further status review in response to this petition. We ask the public to submit to us any new information that becomes available concerning the status of these species, or threats to them or their habitat, at any time. This information will help us monitor and encourage the conservation of these species. DATES: The finding announced in this document was made on September 11, 2007. ADDRESSES: The supporting file for this finding is available for public inspection, by appointment, during normal business hours at the Chesapeake Bay Field Office, U.S. Fish and Wildlife Service, 177 Admiral Cochrane Drive, Annapolis, MD 21401. New information, materials, comments, or questions concerning this species may be submitted to us at any time at the above address. FOR FURTHER INFORMATION CONTACT: John Wolflin, Field Supervisor, Chesapeake Bay Field Office (see ADDRESSES ) (telephone 410-573-4574; facsimile 410-269-0832). People who use a telecommunications device for the deaf

(TDD)may call the Federal Information Relay Service

(FIRS)at 800-877-8339. SUPPLEMENTARY INFORMATION: Background Section 4(b)(3)(A) of the Endangered Species Act, as amended

(Act)(16 U.S.C. 1531 *et seq.* ), requires that the Service make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We base this finding on information provided in the petition, supporting information submitted with the petition (and determined to be reliable after review), and information available in our files or otherwise available to us at the time we make the determination. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and promptly publish our notice of the finding in the **Federal Register** . Our standard for substantial scientific or commercial information within the Code of Federal Regulations

(CFR)with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly commence a status review of the species. In making this finding, we relied on information provided by Dr. Richard Mitchell and Mr. Rob Gordon (herein referred to as “the petitioners”) in the initial petition and petition supplement that we determined to be reliable after reviewing sources referenced in the petition, and information otherwise available in our files at the time of the petition review. We evaluated this information in accordance with 50 CFR 424.14(b). Our process of making a 90-day finding under section 4(b)(3)(A) of the Act and § 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial [scientific or commercial] information” threshold. The substantiality test is applied only to the reliable information supporting the petition. On March 27, 2001, we received a petition dated March 20, 2001, from Dr. Richard Mitchell to list as endangered: Kenk's amphipod ( *Stygobromus kenki* ); Virginia well amphipod ( *Stygobromus phreaticus* ); and a copepod with no common name ( *Acanthocyclops columbiensis* ), which we refer to by its scientific name in this document. In this document, we will collectively refer to these three crustaceans as the three invertebrates. The Service received a supplement to this petition dated June 26, 2001, from Mr. Rob Gordon of the National Wilderness Institute. Action on the petition and supplement was precluded by court orders and settlement agreements for other listing actions that required nearly all of our listing funds for fiscal year 2001. However, the Service did evaluate the need for emergency listing based on the information provided in the initial petition and the supplement and determined that the threats described did not constitute immediate threats of a magnitude that would justify emergency listing. The Service sent letters to Dr. Mitchell on April 17 and June 14, 2001, and to Mr. Gordon on August 1, 2001, explaining this determination. Species Information Amphipods of the genus *Stygobromus* occur in groundwater or groundwater-related habitats (for example, caves, seeps, small springs, wells, interstices, and rarely deep lakes). They are small crustaceans modified for survival in these subterranean habitats; they are generally eyeless and unpigmented (Holsinger 1978, pp. 1-2). Members of this genus occur only in fresh water and belong to the family Crangonyctidae, the largest family of freshwater amphipods in North America. Both Kenk's amphipod and Virginia well amphipod were described by Dr. John R. Holsinger (Holsinger 1978, pp. 39-42, 98-101) and occur in seeps and springs. The Kenk's amphipod was historically reported (tentative identification) from a well in northern Virginia, and the Virginia well amphipod was reported historically from two wells in northern Virginia. The specific name *phreaticus* indicates that this species is most likely to be found in deeper groundwater habitats. Both species can be found in dead leaves or fine sediment submerged in the waters of their spring-seep outflows (Holsinger 1978, p. 130). The two sites mentioned in the petitions and the additional four known sites for Kenk's amphipod are seeps in the Rock Creek drainage in Washington, DC, and Montgomery County, MD (Feller 2005, p. 11). The only known extant site for Virginia well amphipod is a seep in a ravine on Fort Belvoir, a U.S. Army installation in Fairfax County, VA. *Acanthocyclops columbiensis* is a crustacean of the subclass Copepoda. Copepods are generally microscopic and, as a group, are widely distributed in a variety of freshwater and marine habitats. *A. columbiensis* was described by Dr. Janet W. Reid (Reid 1990, pp. 175-180). The species has been found in acidic pools below seeps or springs at two locations in Prince Georges County, MD: a spring at Oxon Hill Farm Park and a seep at Fort Stanton Park. Both parks are administered by the National Park Service (NPS). No status survey has been conducted for the species, and it is likely that it will be found at additional locations, as were related species in brackish wetlands (Reid 2001; Palmer 2001). To our knowledge, the taxonomy of the three invertebrates has never been challenged, indicating that they are valid species. Threats Analysis Section 4 of the Act and its implementing regulations (50 CFR Part 424) set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:

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

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

(C)disease or predation;

(D)inadequacy of existing regulatory mechanisms; or

(E)other natural or manmade factors affecting its continued existence. In making this finding, we evaluated whether threats to the three invertebrates presented in the petition and identified in other information available to us may pose a concern with respect to the species' survival. Our evaluation of these threats is presented below. In the discussion below, we have placed the threats listed in the petition under the most appropriate listing factor. A. Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range General The petitioners state that rapid commercial and residential development over the last 20 years in the metropolitan Washington, DC, area has destroyed numerous seeps, springs, and bogs associated with the Coastal Plain and Piedmont elements of the Upper Potomac River and its tributaries. Associated with this development are runoff and pollution that further degrade the habitat of these unique endemic invertebrates. The petitioners assert that the groundwater table has lowered drastically and wells, springs, and seeps have dried in the last 100 years. The petitioners claim that, currently, little habitat remains for the three invertebrates except in heavily used parks and on military reservations. The petitioners assert that given their limited distribution and highly restricted habitats, the three invertebrates could be driven to extinction by relatively small human disturbances such as a single construction project. Kenk's Amphipod The petition supplement states that *S. kenki* is currently known from only two sites (East Spring and Sherrill Drive Spring) in Rock Creek Park (administered by NPS), and it indicates that a species existing in a park is not, of itself, adequate protection. The petitioners state that a macroinvertebrate survey of Rock Creek (no citation provided, but identified by the Service as Feller 1997) described both sites as highly threatened and believed the existence of *S. kenki* is equally as tenuous to *S. hayi,* a listed species that occurs within the park boundary. The petitioners also state that according to the NPS (no citation provided): Long-term threats exist within and outside the borders of Rock Creek Park. The East Spring site could be threatened by additional development of the recreation area located up slope. The Sherrill Drive Spring site could be threatened by any changes in open space at Walter Reed Hospital or surrounding homes. An example is the plan Walter Reed Hospital has for building an additional Research facility on its grounds. The petitioners assert that rebuilding the stormwater infrastructure of the city by the District of Columbia threatens the species (Twomey 2001). The petitioners state that unusually high flood levels from Rock Creek reach the level of the spring habitat of Kenk's amphipod, and this spring habitat has been flooded with increasing frequency in recent years. They indicate that flood waters may adversely affect spring habitat by washing away leaf litter and fine sediments, which form the microhabitat utilized by *S. kenki* . Virginia Well Amphipod The petitioners state that *S. phreaticus* is known from only one current location and that until its rediscovery at Fort Belvoir, there was concern that it was extinct (no citation provided). The petitioners cite Terwilliger (1991, p. 185) to support their claim that it is unlikely that the species exists elsewhere. This claim is further supported in the petition by Holsinger

(1978)who hypothesizes that the very distinctive morphological structure of the Virginia well amphipod makes it unlikely to be overlooked in other collections. The petitioners state that there are an increasing number of activities at Fort Belvoir that could affect *S. phreaticus* . In the Fort, in addition to constant activity such as military exercises and training, there is the prospect of greatly increased building activities, including creation of the Army Museum with its attendant construction activities and increased visitation. The petitioners also state that planning is underway for additional bridges crossing the Potomac River near Washington and conclude that the cumulative result of these ongoing and increasing activities for *S. phreaticus* will be imminent extinction in the absence of the Act's protection. Acanthocyclops columbiensis The petitioners state that *A. columbiensis* , unless protected, could likewise be extirpated at any moment. They indicate that it is known from only two locations, Fort Stanton and Oxon Hill Parks. They further assert that *A. columbiensis'* occurrence in a National Park affords it little specific protection. Rob Gordon (author of the petition supplement) has not seen the Fort Stanton site but indicates that at Oxon Hill, where it is found in a small, brick-lined spring, *A. columbiensis* is vulnerable to extirpation. Gordon cites impacts from humans (such as, litter and discarded harmful substances) and a current major Federal construction project (Wilson Bridge), which includes a 12-lane, two-span drawbridge and expansive network of approaches, as threats to this species. He asserts that the highway project alone could massively alter the hydrologic regime, altering ground water recharge and introducing pollution from the project area. Evaluation of Information in the Petition The citations provided in the petition do not support the petitioner's claims for any of the three species. Furthermore, the assertion that the three invertebrates could be driven to extinction by a single construction project is not plausible for Kenk's amphipod, which occurs at six different sites (Feller 2005, p. 11), or for *A. columbiensis* , which is known from two different sites and may occur in many more areas (Reid 2001). It is more plausible for Virginia well amphipod, which, at present, is only known from a single site on Fort Belvoir. However, the petition provides no information about, nor are we aware of, any projects planned within the recharge area for this species as delineated by the hydrogeologic study funded by Fort Belvoir (MACTEC 2003, p. 19). Kenk's amphipod is known from six sites, not two as the petitioner asserts. Four of the sites are within Rock Creek Park in the District of Columbia, and two are in Montgomery County, MD: one in a county park and one on private property (Feller 2005, p. 11). The macroinvertebrate study (Feller 1997, pp. 8, 24-25, 37) that was referenced in the petition supplement does support the petitioners' claim that the East Spring and Sherill Drive Spring sites are highly threatened; however, the petition does not refer to any of the other four sites supporting the species. Although the information attributed to NPS regarding the threats to East Spring and Sherrill Drive Spring appears plausible, no specific source is cited by the petitioners, and this information relates to only two of the six known sites. The planned stormwater infrastructure project in the District of Columbia mentioned by the petitioners is unlikely to have an effect on this species, as it only affects a section of the Rock Creek drainage well downstream of all Kenk's amphipod sites (Yeaman 2001). The petitioners provide no citation to support their statement that there is an increasing level and frequency of flooding in Rock Creek and that this increased flooding is affecting Kenk's amphipod. As stated by the petitioners, Virginia well amphipod is currently known to be extant at only a single location (Chazal and Hobson 2003, p. iii). The petition correctly states that there is an increasing number of activities occurring on Fort Belvoir, but presents no evidence that the referenced activities will affect the recharge area, as delineated by MACTEC (2003, p. 19), for the seep supporting this species. The one activity described in detail in the petition, the construction of the Army Museum, will occur near Route 1, approximately 2 miles (3.2 kilometers) from the seep and its recharge area (Keough 2001), making this activity unlikely to affect this species. Although the petitioners state that planning is underway for additional Potomac River bridges near Washington, DC, they provide no supporting information for this claim, and the Service is not aware of any planning currently underway (Zepp 2006). As stated in the petition supplement, *Acanthocyclops columbiensis* is currently known to be extant at only two locations, Fort Stanton Park and Oxon Hill Farm Park, both in Prince Georges County, MD. The petitioners provided information concerning threats at the Oxon Hill site only; no information is provided for the Fort Stanton Park site. Their evidence concerning the threat of pollution of the Oxon Hill spring from public littering is speculative and not supported by any independent sources. The potential for impacts to this copepod from upgrades to the Washington

(DC)Beltway and the construction of a new access road to Oxon Hill Farm Park (which are part of the Wilson Bridge Project) appears plausible, given the potential impact area for the project shown in the Environmental Impact Statement for the Wilson Bridge (Federal Highway Administration 2000, Figure 3-13). However, construction of these features is now complete, and we are aware of no evidence that spring flows have been affected. Based on the information in the petition and information readily available to us, we conclude that present or threatened destruction, modification, or curtailment of habitats or ranges has not affected the status of the three invertebrates to the extent that listing under the Act as a threatened or endangered species may be warranted. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes The petitioners assert that even moderate collection of the three species for scientific or educational purposes would pose a threat to these species due to their rarity and limited occurrence in small locales. Evaluation of Information in the Petition The petitioners provide no documentation that collecting for scientific or educational purposes is a threat, nor are we aware of any such information. Collections involved very low numbers of the three invertebrates, and effects on their populations are unlikely. Therefore, we find that the petition does not contain substantial scientific or commercial information concerning collecting for scientific or educational purposes to indicate that listing of the three invertebrates may be warranted. C. Disease and Predation The petitioners speculate that it is reasonable to assume that the three invertebrates could possibly be prey for large aquatic insects and their predacious larvae. Evaluation of Information in the Petition The petitioners provide no documentation that such predators are present in the spring-seep habitats of the three invertebrates or that their predation constitutes a threat. Therefore, we find that the petition does not present substantial scientific or commercial information concerning that disease or predation to indicate that listing of the three invertebrates may be warranted. D. Inadequacy of Existing Regulatory Mechanisms The petitioners indicate that Kenk's amphipod receives some protection from NPS, which administers Rock Creek Park, but that such protection was not considered adequate for the federally listed Hay's Spring amphipod ( *Stygobromus hayi* ), which also occurs there. In support of the latter statement, the petitioners cite the rule listing the Hay's Spring amphipod (47 FR 5425, February 5, 1982). The petitioners also assert that manmade or small natural events could destroy the only known habitat for Virginia well amphipod at Fort Belvoir and the Fort Stanton and Oxon Hill Farm habitats for *A. columbiensis* . Evaluation of Information in the Petition We also note that Hay's Spring amphipod was not known to occur on NPS lands (its only occurrence was on the adjacent National Zoological Park), so the protections (or lack thereof) that now apply to Rock Creek Park were not a consideration in the listing decision (47 FR 5425, February 5, 1982). Therefore, we find that the petition does not present substantial scientific or commercial information concerning the inadequacy of existing regulatory mechanisms to indicate that listing of the three invertebrates may be warranted. E. Other Natural or Manmade Factors Affecting Its Continued Existence The petitioners indicate that “any activities affecting the Upper Potomac and its tributaries, especially the ground water level and its characteristics could be detrimental to the survival of these three invertebrates.” The petitioners also assert that manmade or small natural events could destroy the only known habitat for the Virginia well amphipod at Fort Belvoir and Fort Stanton and Oxon Hill Farm habitats for *A. columbiensis* Evaluation of Information in the Petition Activities in the Upper Potomac and its tributaries have previously been covered under Factor A. Except for the proposed Army Museum, discussed under Factor A, the petitioners have provided no documentation of specific threats at Fort Belvoir. Specific manmade or natural events potentially affecting *A. columbiensis* were discussed under Factors A and D. No additional information or documentation is provided on this point by the petitioners. Therefore, we find that the petition does not present substantial scientific or commercial information concerning other natural or manmade factors, to indicate that listing of the three invertebrates may be warranted. Significant Portion of the Range Under section 4(b)(1) of the Act, we are required to make a finding as to whether the petition presents substantial information “that the petitioned action may be warranted” (emphasis added). The petition asserts that the three invertebrates (Kenk's amphipod, Virginia well amphipod, and *Acanthocyclops columbiensis* ) require listing throughout their current, respective ranges; the petitioned action was to list each of the invertebrates throughout all of its range. As discussed above, we have determined that the petition did not present substantial information that the petitioned action may be warranted. Although we have no obligation under section 4(b)(1) to address the separate question of whether any of the three invertebrates is threatened or endangered in a significant portion of its range, we note that nothing in the petition or our files lead us to the conclusion that we should at this time, undertake a candidate assessment of any of the three invertebrates to determine whether it is threatened or endangered in a significant portion of its range. If the Service obtains sufficient information in the future that suggests that any of the three invertebrates may warrant listing due to threats in all or a significant portion of its range, we will initiate a candidate assessment, subject to availability of resources, and if appropriate, add the species to the candidate list or propose its listing where threatened or endangered. Finding We reviewed the petition, the petition supplement, and supporting information provided with these documents and evaluated that information in relation to other pertinent literature and information available in our files at the time of petition review. After this review and evaluation, we find the petition does not present substantial scientific or commercial information to demonstrate that listing of Kenk's amphipod, Virginia well amphipod, or the copepod *Acanthocyclops columbiensis* may be warranted at this time, nor do we have other information available to us that indicates that a listing proposal may be warranted. We encourage interested parties to continue to gather data that will assist with the conservation of these species. Information regarding the three invertebrates may be submitted to the Field Supervisor, Chesapeake Bay Field Office (see ADDRESSES ), at any time. References Cited A complete list of all references cited herein is available upon request from the Chesapeake Bay Field Office (see ADDRESSES ). Author The primary author of this document is the Chesapeake Bay Field Office, Annapolis, MD. Authority The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ). Dated: August 31, 2007. Kenneth Stansell, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. E7-17716 Filed 9-10-07; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018-AV39 Endangered and Threatened Wildlife and Plants; Proposed Revision of Special Regulation for the Central Idaho and Yellowstone Area Nonessential Experimental Populations of Gray Wolves in the Northern Rocky Mountains AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of availability of draft environmental assessment; reopening of comment period on proposed revision. SUMMARY: We, the U.S. Fish and Wildlife Service (Service) have prepared a draft environmental assessment

(EA)of our proposal to revise the 2005 special rule for the central Idaho and Yellowstone area nonessential experimental populations of the gray wolf ( *Canis lupus* ) in the northern Rocky Mountains. The Service is reopening the comment period for the proposed revisions to the 2005 special rule to allow all interested parties to comment simultaneously on the proposed revisions and the draft EA. If you have previously submitted comments on the proposed revisions, you do not need to resubmit them because those comments have been incorporated into the public record and will be fully considered in our final decision. DATES: We will accept public comments on the draft EA and the proposal to revise the special regulation through October 11, 2007. Comments received after the closing date will not be considered in our final decision. ADDRESSES: Draft EA You may obtain a copy of the draft EA by writing us at: U.S. Fish and Wildlife Service, Western Gray Wolf Recovery Coordinator, 585 Shepard Way, Helena, MT 59601 or by visiting our Web site at: *http://www.fws.gov/mountain-prairie/species/mammals/wolf/* . If you wish to comment on the draft EA, you may submit comments and materials, identified by “RIN 1018-AV39,” by any of the following methods: 1. You may mail or hand-deliver comments to the U.S. Fish and Wildlife Service, Western Gray Wolf Recovery Coordinator, 585 Shepard Way, Helena, MT 59601. 2. You may send comments by electronic mail (e-mail) directly to the Service at *EA-WolfRuleChange@fws.gov* . Include “RIN 1018-AV39” in the subject line of the message. Proposal To Revise 10(j) Special Rule You may also obtain a copy of the proposal to revise the 2005 special regulation by writing us at: U.S. Fish and Wildlife Service, Western Gray Wolf Recovery Coordinator, 585 Shepard Way, Helena, MT 59601 or by visiting our Web site at: *http://www.fws.gov/mountain-prairie/species/mammals/wolf/* or *http://www.fws.gov/mountain-prairie/species/mammals/wolf/72FR36942.pdf* . If you wish to comment on the proposal to revise the special regulation, you may submit comments and materials, identified by “RIN 1018-AV39,” by any of the following methods: 1. You may mail or hand deliver written comments to the U.S. Fish and Wildlife Service, Western Gray Wolf Recovery Coordinator, 585 Shepard Way, Helena, MT 59601. 2. You may send comments by electronic mail (e-mail) directly to the Service at *WolfRuleChange@fws.gov* . Include “RIN 1018-AV39” in the subject line of the message. 3. You may submit your comments through the Federal e-Rulemaking Portal— *http://www.regulations.gov* . Follow the instructions for submitting comments. FOR FURTHER INFORMATION CONTACT: Edward E. Bangs, Western Gray Wolf Recovery Coordinator, U.S. Fish and Wildlife Service, at our Helena office (see ADDRESSES ) or telephone

(406)449-5225, extension 204. Persons who use a Telecommunications Device for the Deaf may call the Federal Information Relay Service 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 the proposal to revise the 2005 special rule (see 72 FR 36942, July 6, 2007) for the central Idaho and Yellowstone area populations of gray wolves in the northern Rocky Mountains will be as accurate and as effective as possible. Therefore, we are requesting data, comments, new information, or suggestions from the public, other concerned governmental agencies, Tribes, the scientific community, industry, or any other interested party concerning the draft EA and proposed rule. We particularly seek comments concerning

(1)our draft EA as it analyzes effects of the proposed rule;

(2)our proposed modifications to the 2005 experimental population rule to allow private citizens in States with approved post-delisting wolf management plans to take wolves in the act of attacking their stock animals or dogs; and

(3)our proposal to establish a reasonable process for States and Tribes with approved post-delisting wolf management plans to allow removal of wolves that are scientifically demonstrated to be impacting ungulate populations to the degree that they are not meeting respective State and Tribal management goals. We specifically ask for comments regarding whether our draft EA accurately analyzes impacts and alternatives. We are also specifically requesting comments addressing whether the proposed rule modifications would:

(1)Reasonably address conflicts between wolves and domestic animals or wild ungulate populations;

(2)provide sufficient safeguards to prevent misuse of the modified rule;

(3)provide an appropriate and transparent public process that ensures decisions are science-based; and

(4)provide adequate guarantees that wolf recovery will not be compromised. The draft EA has been prepared under the requirements of the National Environmental Policy Act of 1969, as amended (NEPA). The purpose of the EA is to analyze potential effects to physical and biological resources and social and economic conditions that may result from revisions to the special regulation for the management of gray wolves introduced as nonessential experimental populations in the northern Rocky Mountains. Furthermore, the EA serves to assist in deciding whether the proposed action has a significant impact on the human environment. If we determine that the proposed action results in a significant impact, we will prepare an environmental impact statement (EIS). Additionally, the EA describes the alternatives to the proposed revisions, affected environment, and environmental consequences of each of the alternatives. Background On November 22, 1994, the Service designated unoccupied portions of Idaho, Montana, and Wyoming as two nonessential experimental population areas for the gray wolf (59 FR 60252) under section 10(j) of the Endangered Species Act of 1973, as amended

(Act)(16 U.S.C. 1531 *et seq.* ). These special rules also provided management flexibility to address potential negative impacts and concerns regarding wolf reintroduction. In 1995 and 1996, the Service reintroduced gray wolves into the two experimental population areas. This reintroduction and accompanying management programs greatly expanded the numbers and distribution of wolves in the northern Rocky Mountains. By the end of 2000, the northern Rocky Mountain population met its numerical and distributional recovery goals and continued to exceed it through 2006. On January 6, 2005, the Service published a revised nonessential experimental population special rule increasing management flexibility for these populations (70 FR 1286; 50 CFR 17.84(i) and (n)). The 2005 special rule included a mechanism for States and Tribes to resolve conflicts when wolves were the primary cause of “unacceptable impacts” to wild ungulate populations. Our definition of “ *Unacceptable impact* ” set a threshold that has not provided the intended flexibility to allow States and Tribes to resolve conflicts between wolves and ungulate populations. In order to set a more reasonable standard, the Service is proposing to redefine the term “Unacceptable impact” to achieve the intended management flexibility (72 FR 36942). Under the proposed definition, lethal control of wolves would be allowed if wolves are among the major causes of unacceptable impacts to ungulate populations, rather than wolf predation being the primary cause as in the 2005 special rule. A State or Tribe must have a Service-approved post-delisting wolf management plan in place before proposing to lethally control wolves that are among the major causes of unacceptable impacts to ungulate populations. The State or Tribe then must prepare a science-based document that describes:

(1)What data indicate that the ungulate herd is below management objectives,

(2)what data indicate the impact of wolf predation on the ungulate population,

(3)why wolf removal is a warranted solution to help restore the ungulate herd to State or Tribal management objectives,

(4)the level and duration of wolf removal being proposed, and

(5)how the State or Tribe will measure ungulate population response to wolf removal . The document also must identify possible remedies or conservation measures in addition to wolf removal. The State or Tribe must provide the opportunity for peer review and public comment on its proposal before submitting it to the Service. The Service then would determine whether such actions are scientifically based and would not reduce the wolf population below 20 breeding pair and 200 wolves in the state before authorizing lethal wolf removal. The Service also proposes to allow legally present private citizens to take wolves that are in the act of attacking their “stock animals” (including horses, mules, donkeys, and llamas used to carry people or possessions) or dogs on private and public land (72 FR 36942, July 6, 2007). National Environmental Policy Act The draft EA describes the purpose of, and need for, the proposed modifications to the 2005 10(j) special regulation, the Proposed Action and alternatives, and an evaluation of the direct, indirect, and cumulative effects of the alternatives under the requirements of NEPA. The scope of the draft EA includes issues and resources within areas of the two nonessential experimental populations of the gray wolf in the northern Rocky Mountains. The Service will use the EA to decide whether or not the 2005 10(j) special regulation will be modified as proposed, if the Proposed Action requires refinement, or if further analyses are needed through preparation of an EIS. If the Proposed Action as described, or with minimal changes, is selected and no further environmental analyses are needed, we will issue a Finding of No Significant Impact for the EA. The Service's analyses in the draft EA indicate that no significant impacts are likely to occur to wolf populations, ungulate populations, associated ecosystems, or socio-economic factors as a result of the proposed action. The alternatives that the Service has considered include the following:

(1)Alternative A (No Action Alternative);

(2)Alternative B (Proposed Action and Preferred Alternative), which modifies the 2005 special regulation, establishing a more flexible definition of “Unacceptable impact” on ungulate populations resulting from wolf activity. Further modification is proposed to allow private citizens to take wolves that are in the act of attacking their stock animals or dogs; and

(3)Alternative C, which modifies the definition of “Unacceptable impact” as in Alternative B, but not to include the modification regarding wolves in conflict with stock animals and dogs. Authority: 16 U.S.C. 1531 *et seq.* ; 83 Stat. 852; 42 U.S.C. 4321 *et seq.* Dated: August 31, 2007. Jim Mosher, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. E7-17823 Filed 9-10-07; 8:45 am] BILLING CODE 4310-55-P 72 175 Tuesday, September 11, 2007 Notices DEPARTMENT OF AGRICULTURE Forest Service Black Hills National Forest Travel Management Plan AGENCY: Forest Service, USDA. ACTION: Notice of intent to prepare an environmental impact statement. SUMMARY: The Forest Service proposes to designate which routes (roads and trails) on federal lands administered by the Forest Service within the Black Hills National Forest are open to motorized travel. In so doing, the agency will comply with requirements of the Forest Service 2005 Travel Management Rule. Some areas were considered for cross-country travel designation, but no areas are included in this proposal. As a result of these travel management decisions, the Forest Service will produce a Motorized Vehicle Use Map

(MVUM)depicting those routes on the Black Hills National Forest that will remain open to motorized travel. The MVUM will be the primary tool used to determine compliance and enforcement with motorized vehicle use designations on the ground. Those existing routes and other user-created routes not designated open on the MVUM will be legally closed to motorized travel. The decisions on motorized travel do not include over-snow travel or existing winter-use recreation. DATES: Comments concerning the scope of the analysis must be received by November 9, 2007. The draft environmental impact statement is expected to be released in April 2008 and the final environmental impact statement is expected in September 2008. ADDRESSES: Send written comments to Travel Management, Black Hills National Forest, 1019 North 5th Street, Custer, SD 57730. Electronic comments may be sent to *comments-rocky-mountain-black-hills@fs.fed.us* , with “Travel Management” in the subject line. Comments must be readable in Microsoft Word, rich text or pdf formats. FOR FURTHER INFORMATION CONTACT: Tom Willems, Team Leader, at *twillems@fs.fed.us* or

(605)673-9200. Purpose and Need for Action The purpose and need for this action is to improve management of motorized vehicle use on National Forest System lands within the Black Hills National Forest in accordance with provisions of 36 CFR Parts 212, 251, 261, and *295 Travel Management; Designated Routes and Areas for Motor Vehicle Use; Final Rule.* Proposed Action The proposed action is to designate selected roads and trails open to motorized travel (wheeled vehicles only) on lands administered by the Black Hills National Forest. Where it is appropriate and necessary, the designations will also set specific seasons of use and type of use for those roads and trails. In doing so, the Forest will comply with requirements of the Forest Service 2005 Travel Management Rule (36 CFR part 212). Some areas were considered for cross-country travel designation, but no areas are included in this proposal. As a result of these travel management decisions, the Black Hills National Forest will produce a Motor Vehicle Use Map

(MVUM)depicting those routes and areas on the Forest that will remain open to motorized travel. The MVUM will be the primary tool used to determine compliance and enforcement with motorized travel designations on the ground. Those existing Forest Service routes, as well as other user-created routes, not designated open on the MVUM will be legally closed to motorized travel. In order to implement the proposed action, it would be necessary to amend some existing direction and terminology in the Revised Forest Plan for the Black Hills National Forest. These changes to Plan direction would be enduring changes and would apply to this decision and all subsequent project decisions unless and until further modified. Proposed travel management-related changes to the *1997 Black Hills National Forest Revised Land and Resource Management Plan* are based on elements of the travel management rule, public meeting comments, District and Core Travel Management Team recommendations, Forest Leadership Team decisions, and the Black Hills National Forest Advisory Board (NFAB), Travel Management Subcommittee, recommendations. The goal is to provide a transportation system that is within the Black Hills National Forest's ability to manage (operate and maintain) and provides a variety of users with a diverse experience while minimizing impacts to resources. The proposed transportation system open to motorized travel under this proposal would be a total of 3,998 miles. This is a change of 298 miles from the existing condition of approximately 3,700 miles. New project decisions could change this system without amending the Forest Plan. The proposed transportation system was developed with extensive public input over a period of three years and addresses a variety of concerns, including access to private lands within the National Forest boundary, funding, access to the Forest for motorized and non-motorized recreation, and roads under the jurisdiction of county, state, and other federal agencies. Specifically, this transportation system would allow for a balance between various recreational uses of the Forest. It would provide for various forms of reasonable motorized use on a designated system of routes. The proposed transportation system is depicted in detail on the *Black Hills National Forest Travel Management Plan Proposed Action* map

(Map)located on the Forest Web site: *http://www.fs.fed.us/r2/blackhills/recreation/travel_management/ohv.shtml.* Other existing routes not shown on this map would not be open to public motorized travel. New routes would not be created except by written decision of an authorized Forest Service official. Unauthorized new routes would not be approved for public motorized travel. If this proposal is selected for implementation, the information on this map would become the Motor Vehicle Use Map

(MVUM)required by regulation and agency policy. A proposed Off Highway Vehicle

(OHV)trail system is a significant element of the total transportation system in this proposal. It would accommodate the desire for a mix of different motorized recreation uses by a variety of motorized vehicles including All Terrain Vehicles (ATVs), motorcycles, and full-size off-road vehicles. The system would provide for a variety of different uses, including multi-scale looped routes, destination sites, and challenges such as rock crawling. This proposal follows the recommendation of the NFAB Travel Subcommittee. This proposal is preparatory to a system of looped routes at several scales, with some dead-end routes leading to destination sites (such as cultural or special activity sites), or portal sites at municipal boundaries. Some of these loops are single-type use, but the majority are designated for mixed use. Mixed use is defined as use of a designated route by both highway legal and non-highway legal motor vehicles. The proposed OHV trail system is depicted on the Map. Some roads and trails on this system are designated to accommodate more than one type of use. These mixed-use routes are designated on the Map. If this proposal is selected for implementation, the information on this map would become the Motor Vehicle Use Map

(MVUM)required by regulation and agency policy. Only those routes shown on the MVUM would be authorized for motorized travel. Under this proposal most of the route mileage would occur on existing Forest System routes currently open to motorized travel. However, this proposal also includes construction of short connector routes and designation of some currently unauthorized routes between existing Forest System routes. It is our long-term goal to locate the majority of these designated routes away from communities and subdivisions. This would help reduce noise impacts to residents, as well as reduce the occurrence of single or privileged access by adjacent landowners. However, use on some routes would probably be audible to those living nearby. Approximately 2,213 miles of Forest System roads would be designated for mixed-use, as “roads open to all vehicles,” and considered part of the proposed OHV Trail System. Forest System roads not considered for mixed-use would be designated as “roads open to highway legal vehicles only.” This would apply to approximately 1,075 miles of Forest Service roads that were not proposed to be part of the OHV Trail System. This proposal would allow cross-country motorized game retrieval of legally harvested downed elk, within 300 feet from the centerline of specific designated routes, providing resource damage does not occur. Designated routes would be limited to only those routes located within management areas where off-route motorized travel is currently allowed by the Forest Plan. This includes and is limited to routes located within Management Areas 5.1, 5.1A, 5.3A, and 5.6. Game retrieval would not be allowed along routes located in management areas that do not currently allow off-route motorized travel, such as Wilderness, Norbeck Wildlife Preserve, Research Natural Areas, and Botanical Areas. The intent of this proposal would be to provide reasonable access to downed elk that are difficult to move long distances without motorized assistance. Motorized cross-country retrieval of deer, bighorn sheep, mountain goats, pronghorn, turkey, and other game animals would not be allowed under this proposal because these animals are small enough to retrieve without motorized assistance. This proposal is consistent with the recommendation of the NFAB Travel Subcommittee, the Rocky Mountain Region Consistency letter, 36CFR Part 212.51(8)(b), and recommendations from the South Dakota Department of Game, Fish and Parks. Designated routes off of which game retrieval would be allowed will be delineated on the MVUM. This proposal would allow dispersed camping off designated routes, in certain areas, under certain conditions. In all cases where allowed, motorized vehicles would be restricted to within 100 feet for dispersed camping from the centerline of specific designated routes, using the most direct route to the camp site. This would allow for reasonable recreational use of the Forest while minimizing the potential for resource damage. This proposal follows the recommendation of the NFAB Travel Subcommittee. Designated routes along which dispersed camping would be allowed will be shown on the MVUM. Under this proposal, off-road parking would be allowed along designated routes under certain conditions. Primary considerations in designating this policy were user safety and resource protection. Draft proposed FSM direction would allow parking off designated routes, not to exceed a distance of one vehicle length. Public comments by other recreationists and private landowners during the past three years have identified excessive OHV sound as a major concern within the Forest. To adequately address these potential user conflicts in the future, a stationary sound limit of 96 dB(A) is proposed for OHVs operating on lands administered by the Black Hills National Forest. The Society of American Engineers

(SAE)J1287 stationary sound test procedure will be used for determining compliance with OHV sound-level standards. Responsible Official The Responsible Official is Craig Bobzien, Forest Supervisor, Black Hills National Forest, 1019 North Street, Custer, SD 57730. Nature of Decision To Be Made Based on the purpose and need for the proposed action, the Forest Supervisor will evaluate the Proposed Action and other alternatives in order to make the following decisions for the specific National Forest System lands under his authority: • Whether to designate certain routes as open to the public for motorized use; • Whether to allow game retrieval; dispersed camping; off-road parking; • The conditions of any such use, including the allowed season and/or type of use for those routes open to motorized travel; • Whether to amend the Forest Plan direction for travel management. Federal land managers are directed (Executive Order 11644, 36 CFR 212, and 43 CFR 8342.1) to ensure that the use of motorized vehicles and off-road vehicles will be controlled and directed so as to protect the resources of those lands, to promote the safety of users, minimize conflicts among the various uses of the federal lands, and to provide for public use of routes designated as open. Public Involvement Preliminary public involvement was initiated in 2003 in an effort to familiarize the public and stakeholders throughout the Black Hills region with the objectives of travel management. Between 2003 and 2007, the Black Hills National Forest hosted and participated in numerous public meetings and workshops in Wyoming and South Dakota. Between 2004 and 2006, the OHV and Travel Management subcommittees of the Black Hills National Forest Advisory Board conducted a number of public meetings to solicit general comments on travel management. The meetings were held in South Dakota and Wyoming to discuss and review Subcommittee objectives and the current Forest Service national OHV policy direction, and outline plans for the future. The purpose of these meetings was to gather input to help develop recommendations for future OHV policy planning. The Travel Management subcommittee also distributed a * User Needs Assessment Questionaire * solicit comments from both OHV and non-OHV users to evaluate the potential for establishing a designated Off-Highway Vehicle

(OHV)trail system on the Black Hills National Forest. The 559 comments submitted helped the Subcommittee define opportunities for an OHV trail system and understand potential conflicts with other users. The National Off-Highway Vehicle Conservation Council (NOHVCC) in cooperation with the Black Hills National Forest conducted an OHV Route Designation Workshop in October 2006 for agency personnel and the public. The purpose of this workshop was to assist the Forest Service and the public in effective implementation of the USFS Travel Management Rule. Four “Travelways” Workshops were conducted by the Forest during November, 2006. The purpose of these workshops was to gather public input and ideas for the development of a proposed action. A product from these workshops was a collection of forest site specific information from participants after they completed a mapping exercise. The public was also asked to provide input to the Forest Service on routes they wanted to remain open and/or those routes that may be in conflict with other desired conditions sought by the public on National Forest System lands. This initial public involvement ended in 2007 with the agency receiving numerous comments on individual routes, a large number of general comments, and some area-wide comments. This preliminary public input helped the Forest Service to develop this proposed action. Scoping Process The Forest Service will conduct meetings to solicit comments from the public and interested parties on this proposal. The meetings are scheduled from 7 p.m. to 9 p.m. at the following locations: Sundance, WY—September 10, 2007 (Monday), Crook County Courthouse, 309 Cleveland Street. Rapid City, SD—September 11, 2007 (Tuesday), Best Western Ramkota Hotel (Rushmore Room), 2111 North LaCrosse Street. Spearfish, SD—September 12, 2007 (Wednesday), Wilbur S. Tretheway Pavilion, 115 South Canyon Street. Custer SD—September 13, 2007 (Thursday), Crazy Horse Memorial (Mountain View Room), Avenue of the Chiefs. Notices of those meetings and requests for comments have been published in local newspapers. Based on comments received as a result of this notice and after the Forest Service has conducted public meetings and afforded the public sufficient time to respond to the proposed action, the agency will use the public scoping comments along with resource related input for the interdisciplinary team and other agency resource specialists to develop a set of significant issues to carry forward into the environmental analysis process. Preliminary Issues The agency has received some indications of potential issues from the initial public involvement process conducted during the last several years. Those expected issues include:

(1)Resource damage caused by inappropriate types of vehicle use: (e.g. motorized vehicles in fragile or steep terrain), Proliferation of routes (e.g. parallel trails or roads, illegal travel off designated routes), and unrestricted season of use (e.g. routes open to motorized travel too long into the wet or muddy seasons).

(2)Disturbing or harming wildlife by using routes in important or critical wildlife habitat areas, too many roads in wildlife habitat areas, and disturbance to wildlife during critical lifecycle periods.

(3)Concerns about recreational opportunities, including loss of recreational opportunities when existing routes are closed to motorized travel, loss of semi-primitive and primitive recreational opportunity if more routes or areas are open to motorized travel, and how to appropriately and reasonably accommodate the fast growing number of motorized users desiring to use federal lands for recreational riding of OHVs.

(4)Concerns on how the system might be designed to facilitate effective enforcement.

(5)Safety concerns on routes where multiple vehicle types (e.g. full-sized trucks and cars, ATVs, motorcycles) are allowed. The Forest Service recognizes that this list of issues is not complete and will be further defined and refined as scoping continues. The Forest service intends to develop a comprehensive list of significant issues before the full range of alternatives is developed and the environmental analysis is begun. Comment Requested This notice of intent initiates the scoping process which guides the development of the environmental impact statement for the Black Hills National Forest Travel Management Plan. Early Notice of Importance of Public Participation in Subsequent Environmental Review A draft environmental impact statement will be prepared for comment. The comment period on the draft environmental impact statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the **Federal Register** . The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions. *Vermont Yankee Nuclear Power Corp.* v. *NRDC,* 435 U.S. 519, 553 (1978). also environmental objections that could be raised at the draft environmental impact statement stage but that are not raised until after completion of the final environmental impact statement may be waived or dismissed by the courts. *City of Angoon* v. *Hodel,* 803 F.2d 1016, 1022 (9th Cir. 1986) and *Wisconsin Heritages, Inc.* v. *Harris,* 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the comment period so that substantive comments and objections are made available to the Forest Service at a time when it can meaningfully consider them and respond to them in the final environmental impact statement. To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act of 40 CFR 1503.3 in addressing these points. Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection. (Authority: 40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21) Dated: September 5, 2007. Dennis Jaeger, Deputy Forest Supervisor, Black Hills National Forest. [FR Doc. 07-4427 Filed 9-10-07; 8:45 am]

Connectionstraces to 58

Traces to 58 documents