Notices. Notice of proposed special conditions

33,045 words·~150 min read·/register/2007/09/18/07-4598

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

BILLING CODE 6714-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 [Docket No. CE273; Notice No. 23-07-03-SC] Special Conditions: Adam Aircraft Industries Model A700; External Fuel Tank Protection During Gear-Up or Emergency Landing AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed special conditions. SUMMARY: This notice proposes special conditions for the Adam Aircraft Industries Model A700 airplane. This airplane will have a novel or unusual design feature(s) associated with an External Centerline Fuel Tank

(ECFT)that increases the total capacity of fuel by 184 gallons. The tank is located below the fuselage pressure shell immediately below the wing. The Adam A700 ECFT is a novel, unusual and a potentially unsafe design feature that may pose a hazard to the occupants during a gear-up or emergency landing due to fuel leakage and subsequent fire. Traditional aircraft construction places the fuel tanks in a protected area within the wings and/or fuselage. Fuel tanks located in these areas are well above the fuselage skin and are inherently protected by the wing and fuselage structure. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: Comments must be received on or before November 19, 2007. ADDRESSES: Comments on this proposal may be mailed in duplicate to: Federal Aviation Administration (FAA), Regional Counsel, ACE-7, Attention: Rules Docket, Docket No. CE273, 901 Locust, Room 506, Kansas City, Missouri 64106, or delivered in duplicate to the Regional Counsel at the above address. Comments must be marked: CE273. Comments may be inspected in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m. FOR FURTHER INFORMATION CONTACT: Mr. Peter L. Rouse, Federal Aviation Administration, Aircraft Certification Service, Small Airplane Directorate, ACE-111, 901 Locust, Kansas City, Missouri, 816-329-4135, fax 816-329-4090. SUPPLEMENTARY INFORMATION: Comments Invited Interested persons are invited to participate in the making of these proposed special conditions by submitting such written data, views, or arguments, as they may desire. Communications should identify the regulatory docket or notice number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The proposals described in this notice may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Persons wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to CE273.” The postcard will be date stamped and returned to the commenter. Background On April 12, 2004, Adam Aircraft Industries applied for a type certificate for their new model A700. The model A700 aircraft is a 6-8 seat pressurized, retractable-gear, carbon composite structure, airplane with two turbofan engines mounted on the aft fuselage. The A700 aircraft is a design evolution of the previously certificated Adam A500, with the aft fuselage mounted turbofan engines replacing the two centerline thrust, turbocharged, reciprocating engines. To maintain a max cruise range similar to the A500 and consistent with other aircraft in the same class as the A700, an external fuel tank located below the fuselage pressure shell and immediately below the wing, has been incorporated in to the A700 design. The A700 and its external fuel tank location are shown in Figure 1: EP18SE07.034 The Adam A700 ECFT is a novel, unusual and a potentially unsafe design feature that may pose a hazard to the occupants during a gear-up or emergency landing due to fuel leakage and subsequent fire. Conventional aircraft construction places the fuel tanks in a protected area within the wings and/or fuselage. Fuel tanks located in these areas are well above the fuselage skin and are inherently protected by the wing and fuselage structure. The A700 ECFT must meet the inherent qualities associated with the protection of the fuel system as provided by 14 CFR part 23. The FAA requires Adam Aircraft to address the following areas with their ECFT design: 1. *Load Path:* Conventional design approaches establish independent load paths from the keel/skid plate to the airframe major structure where the fuel tanks are isolated from reacting the gear-up or emergency landing loads. The A700 ECFT design must react to the gear-up or emergency landing loads in a similar manner. 2. *Fuel Management:* Conventional design approaches use fuel tanks located outside of the wings, or wing centerbox, as auxiliary fuel tanks, and not primary fuel tanks. The fuel in the auxiliary fuel tanks is depleted before the primary fuel tanks, thus the auxiliary tanks are usually empty upon landing. In a similar manner, the A700 ECFT must be an auxiliary fuel tank, and not primary fuel tank. The A700 must deplete the fuel in the ECFT before depleting the fuel in the primary fuel tanks. 3. *Location/Geometry:* A700 must preclude the scenario where the fuel tank is the first point of contact with the ground in a gear-up or emergency landing. Regulatory Review and Discussion 14 CFR part 11, 21, 23 and 25 regulations that pertain to the location of the ECFT location are §§ 11.19, 21.16, 21.21(b)(2), 23.303, 23.473(d), 23.561, 23.721, 23.967, 23.994 and 25.963. The following rules provide a regulatory framework in which to apply additional requirements, beyond the existing requirements, in order to address novel, unusual and potentially unsafe design features. A special condition is defined in 14 CFR part 11, § 11.19: § 11.19 A special condition is a regulation that applies to a particular aircraft design. The FAA issues special conditions when we find that the airworthiness regulations for an aircraft, aircraft engine, or propeller design do not contain adequate or appropriate safety standards, because of a novel or unusual design feature. A special condition is applied via the criteria defined in 14 CFR part 21, § 21.16: § 21.16 [If the Administrator finds that the airworthiness regulations of this subchapter do not contain adequate or appropriate safety standards for an aircraft, aircraft engine, or propeller because of a novel or unusual design feature of the aircraft, aircraft engine or propeller, he prescribes special conditions and amendments thereto for the product. The special conditions are issued in accordance with Part 11 of this chapter and contain such safety standards for the aircraft, aircraft engine or propeller as the Administrator finds necessary to establish a level of safety equivalent to that established in the regulations.] An unsafe condition is spoken to in 14 CFR part 21, § 21.21(b)(2): § 21.21 An applicant is entitled to a type certificate for an aircraft in the normal, utility, acrobatic, commuter, or transport category, or for a manned free balloon, special class of aircraft, or an aircraft engine or propeller, if—

(b)The applicant submits the type design, test reports, and computations necessary to show that the product to be certificated meets the applicable airworthiness, aircraft noise, fuel venting, and exhaust emission requirements of the Federal Aviation Regulations and any special conditions prescribed by the Administrator, and the Administrator finds—

(2)For an aircraft, that no feature or characteristic makes it unsafe for the category in which certification is requested. External fuel tank installations below the wing or fuselage were not envisioned in the development of 14 CFR part 23 fuel tank (and fuel system) regulations. As such, regulations that are not directly applicable to conventional fuel tank installations, but related to the novel, unusual and potentially unsafe design features, were reviewed. The following 14 CFR part 23 certification requirements do contain regulatory language that can be used to determine the adequate or appropriate safety standards for novel, unusual and potentially unsafe design features of the Adam A700 ECFT. § 23.303 Unless otherwise provided, a factor of safety of 1.5 must be used. § 23.473(d) The selected limit vertical inertia load factor at the center of gravity of the airplane for the ground load conditions prescribed in this subpart may not be less than that which would be obtained when landing with a descent velocity (V), in feet per second, equal to 4.4 (W/S) 1/4 except that this velocity need not be more than 10 feet per second and may not be less than seven feet per second. § 23.721 [For commuter category airplanes that have a passenger seating configuration, excluding pilot seats, of 10 or more, the following general requirements for the landing gear apply:

(a)The main landing-gear system must be designed so that if it fails due to overloads during takeoff and landing (assuming the overloads to act in the upward and aft directions), the failure mode is not likely to cause the spillage of enough fuel from any part of the fuel system to constitute a fire hazard.

(b)Each airplane must be designed so that, with the airplane under control, it can be landed on a paved runway with any one or more landing-gear legs not extended without sustaining a structural component failure that is likely to cause the spillage of enough fuel to constitute a fire hazard.

(c)Compliance with the provisions of this section may be shown by analysis or tests, or both.] 14 CFR part 23, 23.303 and 23.473(d) relate to the associated margin of safety required above the limit loading condition and the required limit ground loading conditions. 14 CFR part 23, § 23.721 is applicable to commuter category airplanes; however, the intent is to ensure that the failure of the landing gear does not cause the spillage of enough fuel from any part of the fuel system to constitute a fire hazard. The location of the ECFT, in direct line behind the nose landing gear, makes it particularly vulnerable to failures of the nose landing gear. 14 CFR part 23 contains a limited scope of regulatory requirements pertaining to fuel tank (and fuel system) protection during a gear-up or emergency landing. These current regulations pertaining to the fuel tank (and fuel system) state: § 23.561(b) The structure must be designed to [give each occupant every reasonable chance of escaping serious injury when—]

(1)Proper use is made of seats, safety belts, and shoulder harnesses provided for in the design;

(2)The occupant experiences the static inertia loads corresponding to the following ultimate load factors—

(i)Upward, 3.0g for normal, utility, and commuter category airplanes, or 4.5g for acrobatic category airplanes;

(ii)Forward, 9.0g;

(iii)Sideward, 1.5g; and

(iv)Downward, 6.0g when certification to the emergency exit provisions of Sec. 23.807(d)(4) is requested; and

(3)The items of mass within the cabin, that could injure an occupant, experience the static inertia loads corresponding to the following ultimate load factors—

(i)Upward, 3.0g;

(ii)Forward, 18.0g; and

(iii)Sideward, 4.5g. § 23.561(c) Each airplane with retractable landing gear must be designed to protect each occupant in a landing—

(1)With the wheels retracted;

(2)With moderate descent velocity; and

(3)Assuming, in the absence of a more rational analysis—

(i)A downward ultimate inertia force of 3g; and

(ii)A coefficient of friction of 0.5 at the ground. § 23.967(a): Each fuel tank must be able to withstand, without failure, the vibration, inertia, fluid, and structural loads that it may be subjected to in operation. § 23.967(e): Fuel tanks must be designed, located, and installed so as to retain fuel:

(1)When subjected to the inertia loads resulting from the ultimate static load factors prescribed in § 23.561(b)(2) of this part; and

(2)Under conditions likely to occur when the airplane lands on a paved runway at a normal landing speed under each of the following conditions:

(i)The airplane in a normal attitude and its landing gear retracted.

(ii)The most critical landing gear leg collapsed and the other landing gear legs extended. § 23.994 Fuel system components in an engine nacelle or in the fuselage must be protected from damage which could result in spillage of enough fuel to constitute a fire hazard as a result of a wheels-up landing on a paved runway. The regulatory requirements of § 23.967(e)(1) refer to § 23.561(b)(2), which is an occupant protection rule. The requirements of § 23.561(b)(2) do not have a downward component for non commuter category airplanes. To comply with the requirements of § 23.967(e)(2), the moderate descent velocity identified in § 23.561(c)(2), which is also an occupant protection rule, has been used as an acceptable means of compliance for traditional fuel tank designs that do not have novel, unusual and potentially unsafe design features. These regulations have historically demonstrated an acceptable level of safety for traditional fuel tank designs that do not have novel, unusual and potentially unsafe design features. Existing aircraft designs with this satisfactory service history have the fuel tanks located well above the fuselage skin and are inherently protected by the wing and the fuselage structure, thus providing a “crush zone.” The intent of 14 CFR part 23, § 23.994 is to minimize the hazard to the airplane due to fuel system components that are affected (those which are traditionally located in the fuselage or engine nacelle) when the underside of the airplane contacts the ground in a wheels-up landing. The intent is applicable to those components below the fuselage. 14 CFR part 23 guidance materials recognize there may be situations when installing auxiliary fuel tanks that require special conditions because of a novel, unusual and potentially unsafe design feature. Advisory Circular

(AC)23-10, Auxiliary Fuel Systems for Reciprocating and Turbine Powered Part 23 Airplanes, states in paragraph 5: 5. CERTIFICATION BASIS a. New Type Certificates. For the issuance of a new type certificate, an airplane must be shown to comply with the certification basis established in accordance with § 21.17 of the Federal Aviation Regulations (FAR). If the regulations do not provide adequate or appropriate standards because of a novel or unusual design feature, special conditions will be prescribed in accordance with § 21.16. b. Other Design Changes. Not applicable for new TCs. c. Unsafe Features or Characteristics. Notwithstanding compliance with the established certification basis, § 21.21 precludes approval if there is any feature or characteristic that makes the airplane unsafe. The applicant should recognize that it may be necessary, because of such a feature or characteristic, to impose special requirements which exceed the standards of the certification basis, to eliminate the unsafe condition. Since 14 CFR part 23 airworthiness regulations do not contain adequate or appropriate safety standards for the external fuel tank design, a review of the safety standards contained in 14 CFR part 25 was conducted to evaluate their applicability to the novel, unusual and potentially unsafe design feature of the ECFT. 14 CFR part 25, § 25.963 has regulatory requirements that ensure that fuel tanks within the fuselage contour are in a protected position. § 25.963(d): Fuel tanks within the fuselage contour must be able to resist rupture, and to retain fuel, under the inertia forces prescribed for the emergency landing conditions in Sec. 25.561. In addition, these tanks must be in a protected position so that exposure of the tanks to scraping action with the ground is unlikely. § 25.963(e)(1): Fuel tank access covers must comply with the following criteria in order to avoid loss of hazardous quantities of fuel:

(1)All covers located in an area where experience or analysis indicates a strike is likely must be shown by analysis or tests to minimize penetration and deformation by tire fragments, low energy engine debris, or other likely debris. 14 CFR part 25, § 25.963(d) is applicable to transport category airplanes; however, the object is to ensure that in the event of an emergency landing, the fuel tank is in a protected position so that exposure of the tank to scraping action with the ground is unlikely. The location of the ECFT, located below the fuselage, makes it particularly vulnerable to scraping action with the ground in the event of a gear-up landing. 14 CFR part 25, § 25.963(e) is applicable to transport category airplanes, and only applies to the access panels; however, the object is to prevent a hazard as a result of the impact by tire fragments or debris. This philosophy would be applied to the ECFT (not just access panels) to prevent hazardous leakage of fuel in the event of impact from tire fragments or other likely debris. 14 CFR part 25 guidance materials also recognize the need to protect the auxiliary fuel tanks beyond the velocities used as an acceptable means of compliance. The first chapter of AC 25-8, Auxiliary Fuel Systems Installations, is titled “Fuel System Installation Integrity and Crashworthiness” and the first paragraph states the following: “Survivable accidents have occurred at vertical descent velocities greater than the 5 feet per second (f.p.s.) referenced in § 25.561. The energy from such descents is absorbed by the structure along the lower fuselage. As the limits of survivable accidents are approached, structure under the main cabin floor is crushed and deformed and the volume below the floor, where the auxiliary fuel tanks are frequently located, may be reduced and reshaped. For this reason the tank material chosen by the applicant should provide resilience and flexibility; or, in the absence of these characteristics, the tank installation should provide extra clearance from structure that can be crushed or be protected by primary structure not likely to be crushed.” Due to the concern of the Adam A700 ECFT to potentially contact the ground in a gear-up or emergency landing, we contacted the FAA Office of Accident Investigation, Safety Analysis Branch to determine the number of incidents/accident where an aircraft landed with the landing gear retracted or the landing gear collapsed on the ground. The search used was conducted over a 25 year period from January 1982 thru January 2007, and queried all N-registered aircraft that were not 14 CFR parts 121, 135, or 129 and that had at least one of the following occurrence codes: Gear Collapsed Main Gear Collapsed Nose Gear Collapsed Tail Gear Collapsed Complete Gear Collapsed Other Gear Collapsed Gear Not Extended Gear Not Retracted Gear Retraction On Ground During the queried timeframe, there were 740 reported incidents/accidents, which yields an average of about 30 reported incidents/accidents per year. There were no injuries or fatalities associated with the 740 reported incidents/accidents. All of the reported incidents/accidents involved aircraft having fuel in the center section of the wing area confined by the front and rear spars and the side of body wing ribs. The data shows a high probability for a landing gear failure, malfunction or not being extended during landing and that there is a good safety record for configurations involved in these incidents/accidents. The certification standards for the Adam A700 ECFT need to consider the placement of the ECFT outside of the protective wing area confined by the front and rear spars and the side of body wing ribs configurations, and the high probability of the ECFT contacting the ground. Because of the Adam A700 ECFT's novel, unusual and potentially unsafe design features, it is necessary to impose a specific vertical velocity requirement that exceed the 5 feet per second requirement normally imposed on conventional airplane fuel tank designs. Conventionally installed fuel tanks, located within the fuselage and wing primary structure, have used § 23.561(c)(2) as an acceptable means of compliance to the requirements of § 23.967(e)(2). Fuel tank installations are not bound by regulatory requirements to use § 23.561(c)(2) as an acceptable means of compliance to the requirements of § 23.967(e)(2). The standards contained in § 23.561(c)(2), which is an occupant protection rule, provided adequate or appropriate standards for conventionally installed fuel tanks. Initially, the FAA proposed to use the vertical velocity requirements (26.8 feet per second) contained in § 23.562 as a means of compliance to the requirements of § 23.967(e)(2), as this rule is also an occupant protection rule. The velocities cited in the two occupant protection rules range from 5 feet per second to 26.8 feet per second. The velocity cited in § 23.561(c)(2) is the velocity for a minor crash landing, where the velocity in § 23.562 is the upper limit of a survivable crash landing. The requirements contained in § 23.967(e)(2) allow for the conditions likely to occur, and the range of velocities likely to occur during a survivable crash landing is 5 feet per second-26.8 feet per second; therefore, there is ample regulatory room in which to determine an acceptable means of compliance. The FAA proposal to use the vertical velocity requirements contained in § 23.562 as a means of compliance to the requirements of § 23.967(e)(2) for the initially proposed ECFT design, was withdrawn by the FAA due to Adam Aircraft proposing to redesign the ECFT. As such, the FAA researched the standards within 14 CFR part 23 to determine a vertical velocity within the range of velocities likely to occur that provide adequate or appropriate standards, mitigate potential unsafe conditions. The normal precision approach speed for the Adam A700 will be approximately 120 KIAS. This approach speed will result in a normal vertical descent velocity of 10.6 feet per second. The normal precision approach speed is a speed that falls within the speeds that are likely to occur when the airplane lands on a paved runway at a normal landing speed. 14 CFR part 23, § 23.473(d) requires that the aircraft be able to absorb a limit load imposed by a vertical descent velocity of 10 feet per second for landing conditions. Combining the velocity requirements of § 23.473(d) and a commensurate 1.5 factor of safety, as required by § 23.303, would result in a vertical descent velocity of 12.25 feet per second. The derivation used to determine the ultimate velocity based upon the § 23.473(d) limit vertical inertia load and the factor of safety defined in § 23.303 is shown below: The relationship between velocity, acceleration and distance is shown by the equation: EP18SE07.018 The relationship between force and acceleration is shown by the equation: EP18SE07.019 The relationship between limit force

(load)and ultimate force

(load)is shown by the equation: EP18SE07.020 Assuming a constant mass of the object, an ending velocity of zero and grouping the terms: EP18SE07.021 Thus, the relationship between limit velocity and ultimate velocity is shown by the equation: EP18SE07.022 Conventional airplanes with fuel tanks located below the fuselage are designed such that the ground impact loads are not absorbed by the tanks. Fuel tanks in these locations are especially vulnerable to these ground impact loads if design precautions/mitigations are not taken. If the ECFT is designed such that it absorbs gear-up landing loads, a gear-up landing could damage the ECFT and result in the spillage of enough fuel to constitute a fire hazard. The location of the A700 ECFT should be evaluated for ground impact in a gear-up landing, and design precautions/mitigations should be taken such that load paths do not go through the fuel tanks. The location of the A700 ECFT should be evaluated for exposure of the tank to impact from runway debris or from fragments emanating from failures of the tires. The location of the ECFT, below and in direct line behind the nose landing gear, makes it particularly vulnerable to debris from failures of the nose landing gear tires. The A700 ECFT, compared to other somewhat similar designs, was the only design that contained a significant percentage of the total fuel quantity of fuel below the fuselage and the wing box. Existing somewhat similar designs have their relatively smaller percentage of the total fuel quantity in their lower fuselage tanks and it is transferred out to the primary fuel tanks, so they are emptied early in the flight. The existing somewhat similar designs use the fuel tanks below the fuselage as auxiliary fuel tanks, and they do not feed the engines directly, but rather are used to replenish the primary fuel tanks. The A700 ECFT design indicates the ECFT is an auxiliary fuel tank, does not feed the engines directly and is used to replenish the primary fuel tanks. Based on our current understanding of the A700 ECTF design, the FAA understands that Adam Aircraft may have provided the following mitigating design features: 1. The keel and truss assembly that make up the protective structure in current A700 ECFT design configuration affords the equivalent level of protection as currently certificated aircraft with fuel tanks located in the wings, or wing centerbox. 2. The ECFT is an auxiliary fuel tank, and it does not feed the engines directly and is used to replenish the primary fuel tanks. The fuel in the ECFT will be used before the fuel in the wing tanks. The mitigating features offered by Adam Aircraft: Independent load path, fuel management, and location/geometry, coupled with dynamic drop testing and a rational analysis provide the FAA with sufficient justification to reduce the descent velocity from 12.25 feet per second to no less than 5 feet per second. Type Certification Basis Under the provisions of 14 CFR 21.17, Adam Aircraft Industries must show that the model A700 meets the applicable provisions of 14 CFR part 23, as amended by Amendments 23-1 through 23-55 thereto. If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 23) do not contain adequate or appropriate safety standards for the model A700 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16. In addition to the applicable airworthiness regulations and special conditions, the model A700 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy pursuant to § 611 of Public Law 92-574, the “Noise Control Act of 1972”. Special conditions, as appropriate, as defined in § 11.19, are issued in accordance with § 11.38, and become part of the type certification basis in accordance with § 21.17(a)(2). Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101(a)(1). Novel or Unusual Design Features The model A700 will incorporate the following novel or unusual design features: External Centerline Fuel Tank (ECFT). Applicability As discussed above, these proposed special conditions are applicable to the Adam Aircraft Industries Model A700. Should Adam Aircraft Industries apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the proposed special conditions would apply to that model as well under the provisions of § 21.101(a)(1). Conclusion This action affects only certain novel or unusual design features on Adam Aircraft Industries Model A700 airplanes. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane. List of Subjects in 14 CFR Part 23 Aircraft, Aviation safety, Signs and symbols. Citation The authority citation for these proposed special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.17; and 14 CFR 11.38 and 11.19. The Proposed Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following proposed special conditions are issued as part of the type certification basis for the Adam Aircraft Industries Model A700. 1. SC 23.561(c): Each airplane with retractable landing gear and external fuel tank system(s) located beneath the fuselage must be designed to protect each occupant in a landing— 1. With the wheels retracted; 2. With descent velocity of 12.25 feet per second UNLESS mitigating design features are incorporated that address: i. Independent load path ii. Fuel management iii. Location/Geometry iv. Other safety enhancing design features as proposed by the applicant If adequate mitigation is demonstrated for all the above design features, the FAA will reduce the descent velocity to no less than 5 feet per second. and 3. By defining, based on a rational analysis, supported by tests: i. A downward ultimate inertia force; and ii. A coefficient of friction of 0.5, or a rational analysis for a coefficient of friction, at the ground. Compliance with SC 23.561(c)(2) will be demonstrated by dynamic drop test. 2. SC 23.721: The following general requirements for the landing gear apply: 1. The landing-gear system must be designed so that if it fails due to overloads during takeoff and landing (assuming the overloads to act in the upward and aft directions), the failure mode is not likely to cause the spillage of enough fuel from any part of the external fuel tank system(s) located beneath the fuselage to constitute a fire hazard. 2. The airplane must be designed so that, with the airplane under control, it can be landed on a paved runway with any one or more landing-gear legs not extended without sustaining a structural component failure that is likely to cause the spillage of enough fuel to constitute a fire hazard. 3. Compliance with the provisions of this section may be shown by analysis or tests, or both. 3. SC 23.994: Fuel system components in external fuel tank system(s) located beneath the fuselage must be protected from damage which could result in spillage of enough fuel to constitute a fire hazard as a result of a wheels-up landing on a paved runway. 4. SC 23.XXX: Fuel tanks within and below the fuselage contour must be installed in accordance with the requirements prescribed in Sec. 23.967. External fuel tank system(s) located beneath the fuselage must have the following design mitigations: 1. The external fuel tank system(s) must be in a protected position so that exposure of the tank to scraping action, or impact, with the ground is unlikely during a gear-up landing of the most critical landing gear or landing gears, when landing on a paved runway. 2. The external fuel tank system(s) must be protected by dedicated protective structure, and the protective structure load paths must be independent of the fuel system during a gear-up landing of the most critical landing gear or landing gears, when landing on a paved runway. 3. The hazard to the external fuel tank system(s) that results from impact by landing gear tire fragments or other likely debris must be minimized. 4. The fuel management of the external fuel tank system(s) must be such that fuel in the external fuel tank system(s) is to be emptied prior to fuel in the main tanks. Issued in Kansas City, Missouri on September 11, 2007. Kim Smith, Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-18342 Filed 9-17-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2007-28649; Airspace Docket No. 07-ANM-10] Proposed Establishment of Class E Airspace; Wheatland, WY AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: This action proposes to establish Class E airspace at Wheatland, WY. Additional controlled airspace is necessary to accommodate aircraft using a new Area Navigation

(RNAV)Global Positioning System

(GPS)Standard Instrument Approach Procedure

(SIAP)at Phifer Airfield. The FAA is proposing this action to enhance the safety and management of aircraft operations at Phifer Airfield, Wheatland, WY. DATES: Comments must be received on or before November 2, 2007. ADDRESSES: Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room @12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. Telephone

(202)366-9826. You must identify FAA Docket No. FAA-2007-28649; Airspace Docket No. 07-ANM-10, at the beginning of your comments. You may also submit comments through the Internet at *http://dms.dot.gov* . FOR FURTHER INFORMATION CONTACT: Eldon Taylor, Federal Aviation Administration, Western Service Area Office, System Support Group, 1601 Lind Avenue, SW., Renton, WA 98057; telephone

(425)917-6726. SUPPLEMENTARY INFORMATION: Comments Invited Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers (FAA Docket No. FAA-2007-28649 and Airspace Docket No. 07-ANM-10) and be submitted in triplicate to Docket Operations (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at *http://dms.dot.gov* . Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2007-28649 and Airspace Docket No. 07-ANM-10”. The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket. Availability of NPRM's An electronic copy of this document may be downloaded through the Internet at *http://dms.dot.gov* . Recently published rulemaking documents can also be accessed through the FAA's Web page at *http://www.faa.gov* or the **Federal Register** 's Web page at *http://www.gpoaccess.gov/fr/index.html* . You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Area, System Support Group, 1601 Lind Avenue, SW., Renton, WA 98057. Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking,

(202)267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure. The Proposal The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace at Wheatland, WY. Additional controlled airspace is necessary to accommodate aircraft using the new RNAV

(GPS)SIAP at Wheatland Phifer Airfield. This action would enhance the safety and management of aircraft operations at Phifer Airfield, Wheatland, WY. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9P, dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order. The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation;

(1)Is not a “significant regulatory action” under Executive Order 12866;

(2)is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and

(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). The Proposed Amendment Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. § 71.1 [Amended]. 2. The incorporation by reference in 14 CFR 71.1 of the FAA Order 7400.9P, Airspace Designations and Reporting Points, dated September 1, 2006, and effective September 15, 2006 is amended as follows: Paragraph 6005. Class E airspace areas extending upward from 700 feet or more above the surface of the earth. ANM WY E5 Wheatland, WY [New] Wheatland, Phifer Airfield, WY (Lat. 43°03 20 N., long. 104°55 43 W.) That airspace extending upward from 700 feet above the surface within a 9-mile radius of Phifer Airfield, WY and within 4 miles north and 4 miles south of the Phifer Airfield, WY 080° radial extending from the 9-mile radius to 12.90 miles east of the Phifer Airfield, WY. Issued in Seattle, Washington, on August 20, 2007. Clark Desing, Manager, System Support Group, Western Service Area. [FR Doc. E7-18332 Filed 9-17-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD01-07-130] RIN 1625-AA09 Drawbridge Operation Regulations; Gowanus Canal, Brooklyn, NY AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to temporarily change the drawbridge operating regulations governing the operation of the Hamilton Avenue Bridge, mile 1.2, across the Gowanus Canal at Brooklyn, New York. This proposed rule would allow the bridge owner to require a four-hour notice for bridge openings from November 5, 2007 to January 15, 2009. This rule is necessary to facilitate rehabilitation construction at the bridge. DATES: Comments and related material must reach the Coast Guard on or before October 18, 2007. The proposed amendment of 33 CFR 117.787 would be effective from November 5, 2007 to January 15, 2009. ADDRESSES: You may mail comments and related material to Commander (dpb), First Coast Guard District Bridge Branch, One South Street, Battery Park Building, New York, New York, 10004, or deliver them to the same address between 7 a.m. and 3 p.m., Monday through Friday, except, Federal holidays. The telephone number is

(212)668-7165. The First Coast Guard District, Bridge Branch, maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the First Coast Guard District, Bridge Branch, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Ms. Judy Leung-Yee, Project Officer, First Coast Guard District,

(212)668-7195. SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-07-130), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know if they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Public Meeting We do not now plan to hold a public meeting; however, you may submit a request for a meeting by writing to the First Coast Guard District, Bridge Branch, at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose The Hamilton Avenue Bridge has a vertical clearance of 19 feet at mean high water, and 23 feet at mean low water in the closed position. The existing drawbridge operating regulations listed at 33 CFR 117.5, require the bridge to open on signal at all times. The bridge owner, New York City Department of Transportation (NYCDOT), has requested a temporary rule to facilitate structural, electrical and mechanical rehabilitation at the Hamilton Avenue Bridge. Under this temporary rule the Hamilton Avenue Bridge would open on signal after at least a four-hour advance notice is given by calling

(201)400-5243. Major rehabilitation bridge repairs have been ongoing at the Hamilton Avenue Bridge since March 2007. The bridge owner NYCDOT, requested a temporary deviation from the drawbridge operation regulations to help facilitate bridge rehabilitation repairs at the Hamilton Avenue Bridge. As a result of that request the Coast Guard authorized a temporary deviation [CGD01-07-026] on March 15, 2007, which required mariners to provide a four-hour advance notice for bridge openings from April 6, 2007 through September 29, 2007. On August 7, 2007, the Coast Guard received a second request from the bridge owner NYCDOT, to extend the four-hour advance notice requirement at the Hamilton Avenue Bridge through January 15, 2009, in order to facilitate the remaining rehabilitation bridge repairs. Discussion of Proposed Rule This proposed change would allow the bridge owner to require at least a four-hour advance notice for bridge openings from November 5, 2007 through January 15, 2009, in order to facilitate bridge rehabilitation repairs. The Gowanus Canal supports both recreational and commercial navigation. The Coast Guard contacted all known facilities that normally use the Hamilton Avenue Bridge and no objections to the temporary rule were received. The Coast Guard believes the proposed temporary rule is reasonable and necessary to allow the contractor to complete the bridge rehabilitation repairs at the bridge in order to assure the safe reliable continued operation of the bridge. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS.) We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This conclusion is based on the fact that all vessel traffic will still be able to transit through the bridge at all times after providing the four-hour advance notice for bridge openings. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under section 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This conclusion is based on the fact that all vessel traffic will still be able to transit through the bridge at all times after providing the four-hour advance notice for bridge openings. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact, Commander (dpb), First Coast Guard District, Bridge Branch, One South Street, New York, NY, 10004. The telephone number is

(212)668-7165. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.1D, and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation as this action relates to the promulgation of operating regulations or procedures for drawbridges. Under figure 2-1, paragraph (32)(e) of the Instruction, an “Environmental Analysis Checklist” is not required for this rule. Comments on this section will be considered before we make the final decision on whether to categorically exclude this rule from further environmental review. List of Subjects in 33 CFR Part 117 Bridges. Regulations For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; 33 CFR 1.05-1(g); Department of Homeland Security Delegation No. 0170.1. 2. From November 5, 2007 to January 15, 2009, revise § 117.787 to read as follows: § 117.787 Gowanus Canal.

(a)The draws of the Ninth Street Bridge, mile 1.4, the Third Street Bridge, mile 1.8, the Carroll Street Bridge, mile 2.0, and the Union Street Bridge, mile 2.1, at Brooklyn, shall open on signal if at least a two-hour advance notice is given to the New York City Department of Transportation (NYCDOT), Radio Hotline, or the NYCDOT Bridge Operations Office.

(b)The draw of the Hamilton Avenue Bridge, mile 1.2, shall open on signal after at least a four-hour advance notice is given by calling

(201)400-5243. This paragraph is effective from November 7, 2007 to January 15, 2009. Dated: September 7 2007. Timothy S. Sullivan, Rear Admiral, U.S. Coast Guard Commander, First Coast Guard District. [FR Doc. E7-18302 Filed 9-17-07; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 9, 89, and 1039 [EPA-HQ-OAR-2007-0652; FRL-8467-1] RIN 2060-AO37 Nonroad Diesel Technical Amendments and Tier 3 Technical Relief Provision AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of proposed rulemaking. SUMMARY: In this proposed rulemaking, EPA is making certain technical corrections to the rules establishing emission standards for nonroad diesel engines. In addition, we are amending those rules to provide nonroad diesel equipment manufacturers with a production technical relief provision for Tier 3 equipment which is similar to the technical relief provision already available for Tier 4 equipment. Like the Tier 4 provisions, the new Tier 3 technical relief provision deals with a situation where an equipment manufacturer which is not vertically integrated with its engine supplier is unable to complete redesign of the equipment within the time required by rule (here, the Tier 3 rule). To be eligible, the equipment manufacturer must show both that its inability to furnish a compliant equipment design is due to the engine supplier, and that the equipment manufacturer has exhausted other flexibilities already provided by the Tier 3 rule. Unlike the Tier 4 technical relief provision, however, the Tier 3 Technical flexibility will apply up to a maximum of an additional 50% of production beyond the original 80% provided by the Tier 3 production flexibility provision. In addition, each grant of Tier 3 technical relief is associated with the likelihood of earlier use of Tier 4 nonroad diesel engines. The rule thus provides that for each one percent of use of Tier 3 technical relief, some percentage of the automatic Tier 4 production flexibility for the same engine power category, and some percentage of potential Tier 4 technical relief, is no longer available. The percentage varies based on the type of engine for which Tier 3 technical relief is granted, the largest Tier 4 “penalty” being associated with use of the DATES: Written comments must be received by October 18, 2007. Request for a public hearing must be received by October 3, 2007. If EPA receives adverse comment, we will publish a timely withdrawal in the **Federal Register** informing the public that the rule will not take effect. If we receive a request for a public hearing, we will publish information related to the timing and location of the hearing and the timing of a new deadline for public comments. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2007-0652, by one of the following methods: • *Federal eRulemaking Portal: http://http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *E-mail: a-and-r-Docket@epa.gov* . • *Fax:*

(202)566-9744. • *Mail:* U.S. Environmental Protection Agency, EPA Docket Center (EPA/DC), Air and Radiation Docket, Mail Code 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Deliveries are only accepted during the Docket's normal hours of operation from 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through Friday, except on government holidays. If your Docket requires the submission of multiple copies, please insert the following here: ▸ Please include a total of copies. ▸ If the comment involves an ICR that will be submitted to OMB for review and approval under 5 CFR 1320.11, then you must also include the following language pursuant to 1320.11(a): “In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St. NW., Washington, DC 20503.” • *Hand Delivery:* EPA Docket Center (Air Docket), U.S. Environmental Protection Agency, EPA West Building, 1301 Constitution Avenue, NW., Room: 3334, Mail Code 2822T, Washington, DC. Such deliveries are only accepted during the Docket's normal hours of operation from 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through Friday, except on government holidays, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2007-0652. 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* website is an “anonymous access” systems, 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. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* . *Public Hearing:* If a public hearing is held, it will be held at 10 a.m. on October 18, 2007 at the EPA NVFEL Office Building, 2000 Traverwood Drive Ann Arbor, MI, or at an alternate site nearby. Persons interested in presenting oral testimony must contact Zuimdie Guerra, Environmental Protection Agency, Office of Transportation and Air Quality, Assessment and Standards Division, 2000 Traverwood Drive Ann Arbor, MI 48105; e-mail *guerra.zuimdie@epa.gov* ; telephone

(734)214-4387; fax number

(734)214-4050, no later than October 15, 2007. Persons interested in attending the public hearing must also call Zuimdie Guerra to verify the time, date, and location of the hearing. If no one contacts Zuimdie Guerra by October 15, 2007 with a request to present oral testimony at the hearing, the hearing will be cancel. *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 whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the EPA Docket Center (EPA/DC), Air Docket, Public Reading Room, Room 3334, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through Friday, except on government holidays. You can reach the Air Docket by telephone at

(202)566-1742 and by facsimile at

(202)566-9744. You may be charged a reasonable fee for photocopying docket materials, as provided in 40 CFR part 2. FOR FURTHER INFORMATION CONTACT: Zuimdie Guerra, Environmental Protection Agency, Office of Transportation and Air Quality, Assessment and Standards Division, 2000 Traverwood Drive Ann Arbor, MI 48105; e-mail address *guerra.zuimdie@epa.gov* ; telephone

(734)214-4387; fax number

(734)214-4050. SUPPLEMENTARY INFORMATION: I. General Information A. Background In the “Rules and Regulations” section of this **Federal Register** , we are making these revisions as a direct final rule without prior proposal because we view these revisions as noncontroversial and anticipate no adverse comment. We have explained our reasons for these revisions in the preamble to the direct final rule. If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment on the rule, or on one or more distinct actions in the rule, we will withdraw the direct final rule, or the portions of the rule receiving adverse comment. We will address all public comments in a subsequent final rule based on this proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. B. Does This Action Apply to Me? This action will affect companies that manufacture and certify nonroad equipment powered by diesel engines in the United States. Category NAICS code a Examples of potentially affected entities U.S. Industry 333111 Farm Machinery and Equipment Manufacturing. U.S. Industry 333112 Lawn and Garden Tractor and Home Lawn and Garden Equipment Manufacturing. U.S. Industry 333131 Mining Machinery and Equipment Manufacturing. U.S. Industry 333132 Oil and Gas Field Machinery and Equipment Manufacturing. Industry 33341 Ventilation, Heating, Air-Conditioning, and Commercial Refrigeration Equipment Manufacturing. Industry 33361 Engine, Turbine, and Power Transmission Equipment Manufacturing. U.S. Industry 333911 Pump and Pumping Equipment Manufacturing. U.S. Industry 333912 Air and Gas Compressor Manufacturing. Industry 33392 Material Handling Equipment Manufacturing. U.S. Industry 333924 Industrial Truck, Tractor, Trailer, and Stacker Machinery Manufacturing. U.S. Industry 333991 Power-Driven Handtool Manufacturing. U.S. Industry 333992 Welding and Soldering Equipment Manufacturing. a North American Industry Classification System (NAICS). To determine whether particular activities may be affected by this action, you should carefully examine the regulations. You may direct questions regarding the applicability of this action as noted in FOR FURTHER INFORMATION CONTACT . C. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI.* Do not submit this information to EPA through *http://www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI). In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for Preparing Your Comments.* When submitting comments, remember to: i. Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). ii. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations

(CFR)part or section number. iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. iv. Describe any assumptions and provide any technical information and/or data that you used. v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. vi. Provide specific examples to illustrate your concerns, and suggest alternatives. vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. viii. Make sure to submit your comments by the comment period deadline identified. D. How Can I Get Copies of This Document and Send Comments? See the direct final rule EPA has published in the “Rules and Regulations” section of today's **Federal Register** for information about accessing these documents. The direct final rule also includes detailed instructions for sending comments to EPA. II. Summary of Rule A. EPA is making the following technical amendments to correct a variety of regulatory provisions in the regulations establishing emission standards for nonroad diesel engines: • *40 CFR 9.1:* Adding the approved information collection for nonroad diesel engines to the summary table in 40 CFR part 9. • *40 CFR 89.1:* Correcting a typographical error. • *40 CFR 89.101:* Adding a provision to allow manufacturers to start using the provisions already adopted for Tier 4 engines in the time that Tier 2 or Tier 3 standards continue to apply. We would allow this only to the extent that it does not affect our ability to ensure that manufacturers fully comply with applicable requirements. • *40 CFR 89.102:* Clarifying the legal status for equipment using engines exempted from current standards under the Transition Program for Equipment Manufacturers. The original language does not clearly exempt the equipment from the otherwise applicable prohibition in § 89.1003, which would be necessary for this whole program. • *40 CFR 89.102:* Clarifying the limitation of allowances based on engine families. Since these engines are not certified, we clarify that this term relates to the characteristics described for certifying engines in § 89.116. • *40 CFR 89.102:* Technical relief provision; discussion below in part B. • *40 CFR 89.108:* Adding a provision for engines to be adjusted outside the normal range of parameter adjustment for applications involving landfill or wellhead gas. We have already adopted this in 40 CFR part 1039 for Tier 4 engines, so this change simply allows manufacturers to implement this provision earlier. • *40 CFR 89.115:* Requiring manufacturers to name an agent for service in the United States. This simply allows us to ensure that we will have a person in the United States who is able to speak for the company and receive communication regarding any aspect of our effort to certify engines and oversee compliance of certified products. • *40 CFR 89.205:* Clarifying provisions in the nonroad diesel engine averaging, banking, and trading

(ABT)program. The text change is to clarify that these credits are considered to be Tier 2 credits. • *40 CFR 89.601:* Requiring importers to complete the EPA declaration form before importing engines, and to keep the forms for five years. This amendment simply restates the provisions that are already in place for the U.S. Customs and Border Patrol at 19 CFR 12.74. • *40 CFR 89.611:* Defining the initial dates for implementing emission standards for nonroad diesel engines below 37 kW. This corrects an earlier oversight in the definition of the scope of the exemption for importing engines that were built before emission standards started to apply. • *40 CFR 1039.102:* Clarifying provisions in the nonroad diesel engine averaging, banking, and trading

(ABT)program. • *40 CFR 1039.104:* Clarifying provisions in the nonroad diesel engine averaging, banking, and trading

(ABT)program. The change corrects an inconsistency with the existing regulatory text that effectively prevents the use of credit-using Tier 3 engines in the initial years of Tier 4 in certain situations. • *40 CFR 1039.115:* Specifying that crankcase requirements apply throughout an engine's useful life. Without this clarifying language, it is not clear how long this requirement applies, or whether it ever expires. We are also clarifying that the requirements of this section do not apply to engines that are subject to part 1039 requirements, but have been exempted from the emission standards for any reason. • *40 CFR 1039.125:* Correcting an inadvertant reference to nonroad equipment, which should refer instead to nonroad engines as is clear from the context. • *40 CFR 1039.135:* Adding clarifying language to describe when an engine's emission control information label is so obscured as to require the equipment manufacturer to apply a separate duplicate label. To be consistent with all other programs for nonroad engines, we specify that a label that is visible during normal maintenance is not obscured. We are also adding a specification that manufacturers keep records of the engine families for which they send duplicate labels. • *40 CFR 1039.205:* Requiring submission of emission results for each test mode if manufacturers conduct discrete-mode testing. This does not apply for ramped-modal testing. These measurements would be submitted for demonstrating compliance with not-to-exceed standards, so this should not include any additional testing or reporting burden. • *40 CFR 1039.205:* Requiring manufacturers to name an agent for service in the United States, as described above for § 89.115. • *40 CFR 1039.205:* Requiring that manufacturers make good-faith estimates of projected production volumes. • *40 CFR 1039.210:* Clarifying EPA's role in preliminary approvals to describe that we generally would not reverse a decision without new information supporting a different decision. • *40 CFR 1039.225:* Revising the language to avoid using the term “new nonroad engine,” since that defined term is not appropriate for this section. • *40 CFR 1039.235:* Clarifying that carryover of emission data is possible for engine families that have engine changes in a new model year, as long there are no changes that might affect emissions. • *40 CFR 1039.245:* Removing a regulatory provision that was inadvertently included in two separate paragraphs. • *40 CFR 1039.255:* Narrowing the scope of recordkeeping that would subject an engine manufacturer to an action that could result in the certificate of conformity being revoked or voided, consistent with the similar provisions in our other nonroad engine programs. • *40 CFR 1039.501:* Clarifying the emission standards to which specific test procedures apply. • *40 CFR 1039.505:* Clarifying that cycle statistics for discrete-mode testing should be based on a calculation for each mode rather than the sequence of modes. • *40 CFR 1039.605 and 40 CFR 1039.610:* Amending the regulatory language to address a variety of legal and technical clarifications. • *40 CFR 1039.625:* Amending the regulatory language to specify the proper engine power lower bound. • *40 CFR 1039.705:* Amending the description for calculating emission credits to clarify the steps in making the calculation. • *40 CFR 1039.730:* Revising the description of emission credit calculations to clarify that manufacturers need consider only those families that generate or use emission credits. The emission credit program described in this subpart for these engines is not based on fleet-average compliance. • *40 CFR 1039.735:* Clarifying the recordkeeping provisions related to emission credits and adding a requirement to keep records as long as the banked credits are considered valid for demonstrating compliance with emission standards. • *40 CFR 1039.801:* Correcting various definitions to be consistent with more recent rulemakings that used somewhat different wording. • *40 CFR 1039.810:* Removing the incorporation by reference for the document that defines our rounding conventions, since we are already relying on the same reference established in 40 CFR part 1065. • *40 CFR 1039.825:* Adding a new section to summarize the information collection requirements in part 1039. B. This rulemaking also provides nonroad diesel equipment manufacturers that are not vertically integrated with engine suppliers with a production technical relief provision for Tier 3 equipment, modeled on the comparable provision for Tier 4 equipment found in 40 CFR section 1039.625 (m). Only equipment manufacturers who do not make the engines used in the equipment for which technical relief is sought are eligible to apply for technical relief under this provision (since the engine production and equipment production segments of integrated entities would necessarily be in contact and therefore not experience the type of unexpected redesign changes which could warrant technical relief). This applies exclusively to equipment manufacturers as described in section 1039.626. Engine manufacturers and importers thus may not request this relief. The Tier 4 nonroad diesel rule applies both to diesel engine manufacturers and to equipment manufacturers who install engines made by engine manufacturers. Equipment manufacturers are ultimately responsible for producing non-road applications which comply with the rule's standards by the rule's compliance date. However, there can be circumstances when equipment manufacturers, through no fault of their own, receive engines from their suppliers too late to meet compliance dates. Although the Tier 4 rule contains a number of equipment manufacturer flexibility provisions which apply automatically (i.e. without any showing of need or any requirement to obtain EPA approval), we were convinced that some additional flexibility was needed to cover circumstances where

(a)an equipment manufacturer has exhausted its automatic flexibilities, and

(b)it demonstrates to EPA that it cannot comply with the rule because, through no fault of its own, the engine manufacturer failed to deliver a compliant engine to the equipment manufacturer in sufficient time. The provision is also to be used only as a last resort, so an equipment manufacturer is eligible for relief under the provision only after it exhausts all other flexibility provisions and implementation options. This provision (which we call “technical relief” 1 ) is explained in the Tier 4 nonroad preamble at 69 FR 3900739-008 (June 29, 2004), and (as noted) is codified at section 1039.625 (m). 1 The Tier 4 rule uses the phrase ‘technical or engineering hardship’ to describe this provision, and today's rule uses that same language. The same issue can arise for producers of Tier 3 nonroad diesel equipment, but the Tier 3 rule does not contain the technical relief provision. This rule essentially adds the same technical relief provision to the Tier 3 rule, for the same reasons EPA adopted it in Tier 4. Tier 3 equipment manufacturers may need this technical relief to address challenges that may occur as engine manufacturers choose to implement technical changes for Tier 3. If an engine manufacturer changes their plan late in the design implementation process, an equipment company with unique or complicated equipment designs could face challenges with their internal redesign process. If the equipment manufacturer has already used its other flexibilities, there thus may still be circumstances warranting technical relief for Tier 3 equipment. There are two principal differences between the Tier 3 technical relief provision, and the existing provision in Tier 4. The first is that the dirtier the substitute engine used if technical relief is granted for Tier 3 equipment, the more Tier 4 flexibilities (both automatically available flexibilities and potential technical relief) the equipment manufacturer must give up (further details are explained below). This encourages earlier use of Tier 4 engines (the cleanest), and ensures that the net emission reductions from Tier 3 and Tier 4 engines remain the greatest achievable, as required by section 213 of the Act. Another difference between the Tier 3 and Tier 4 technical relief provisions is that for the Tier 3 program, relief is limited to 50% of one year's production volume for each power category (as opposed to 70% under Tier 4). This allows for the transitional nature of this program to be realized, while limiting the potential for abuse beyond the need to facilitate a transition to cleaner engines. However, for the most part, the Tier 3 technical provision mirrors that in Tier 4. As with the parallel provision in Tier 4, this technical relief provision provides a case-by-case exemption granted by EPA to an equipment manufacturer after evaluating the equipment manufacturer's application. Any engine produced utilizing this relief must be appropriately labeled to avoid the introduction into commerce of engines that are not in compliance. A clearly visible label thus must be provided which indicates the regulatory flexibility under which these engines are being produced. The provision applies to equipment that would otherwise be required to use engines certified to the Tier 3 standard (i.e. model year 2006 to 2008 equipment with 37 to 560 kW nonroad diesel engines). The equipment manufacturer would have the burden of demonstrating existence of an extreme technical or engineering hardship condition that is outside its control, i.e. is essentially due to conduct of the (nonintegrated) engine supplier and therefore out of the equipment manufacturer's control. The equipment manufacturer must also demonstrate that it has exercised reasonable due diligence to try to avoid being in the situation. In order to meet these criteria, the equipment manufacturer needs to provide to EPA documentation, or a written explanation, addressing the following issues: • Documentation of the technical or engineering problem that was unsolvable within the lead time provided by the Tier 3 rule. • A description of the normal design cycle between the engine manufacturer and the equipment manufacturer and why that process did not work in this instance. • All information (such as written specifications, performance data, prototype engines) received by the equipment manufacturer from the engine manufacturer. • Comparison of the design process for the equipment model for which the exemption is requested versus those for which the exemption is not needed. • A description of efforts the equipment maker has made to find other compliant engines for the model. • Documentation that existing flexibilities will be fully utilized before the need for technical relief. EPA would then decide on a case by case basis what percentage, if any, of additional relief (i.e. relief above and beyond that afforded by the automatic percent of production flexibility) would be provided. Applicability of the Tier 3 technical relief provision is restricted to: • Up to a maximum of an additional 50% beyond original 80% automatic per cent of production technical flexibility (a change from Tier 4, as noted above). • Full allowance is limited to the first two

(2)years of Tier 3. • Phased-in by power category. • The Tier 3 automatic flexibility provisions continue to apply for their original seven years or until fully consumed. • Applies to 56 to 560 kW categories only for the percent of production and only available between 37 to 75 kW for the small volume. A significant feature of this Tier 3 technical relief provision, which has no counterpart in the Tier 4 provision, is that for every 1% of the equipment production using this relief provision in the Tier 3 timeframe (i.e. equipment that uses engines not conforming to the Tier 3 standard in the Tier 3 timeframe), a percentage of the (automatic) production equipment flexibility allowance for Tier 4 is sacrificed from the comparable Tier 4 power category (i.e. this per cent of the otherwise automatic flexibility is no longer available), and an additional 1% is sacrificed from any potential Tier 4 technical relief that the Agency may grant for that power category. Please see Table 1. In other words, to utilize the Tier 3 technical relief, the equipment manufacturer must give up some amount of its otherwise automatic Tier 4 flexibility and some portion of its potential Tier 4 technical relief. The Tier 4 percent of production sacrifice is based on the percentage of earlier Tier (e.g. Tier 1 or 2) engines utilized in place of Tier 3 engines. Grant of Tier 3 technical relief thus would be linked to earlier use of Tier 4 engines. Table 1.—Technical Relief Usage [In percent] Use of percent of production allowances by equipment manufacturer during implementation of Tier 2 program Offsetting deductions required for use of one percent of Tier 3 technical relief Tier 4 percent of production allowance Tier 4 technical relief 0-20 0 1 20-40 1 1 40-60 2 1 60-80 3 1 For example, if you used 45 percent of your production flexibility for equipment using Tier 2 engines of a given power category (i.e. if in the Tier 2 timeframe you used 45% of the total 80% percent of production flexibility for that power category), you must forfeit 2 percent of the (automatic) production flexibility for Tier 4 engines of that power category for every 1 percent technical relief EPA grants for Tier 3 equipment using engines of that power category. You must also forfeit 1 percent of any potential technical relief which could be granted for Tier 4 engines (i.e. for equipment using Tier 4 engines) for every 1 percent technical relief exemption EPA grants for Tier 3 engines. If you use the Tier 3 technical relief allowances for 5 percent of your equipment for two years, you have used a total allowance of 10 percent. Therefore, as shown in Table 1, you must forfeit a total of 20 percent of production flexibility for Tier 4 engines plus 10 percent of any technical relief which could be granted for Tier 4 engines. The technical relief will be further adjusted based on the sales volume by power category. Because the Tier 3 and Tier 4 rules have different power category ranges, today's rule specifies which power categories in Tier 4 correspond to those in Tier 3 for purposes of this rule. The Tier 3 power categories of 37kW to 75kW and 75kW to 130kW correspond to the Tier 4 power category of 56kW to 130kW. For the Tier 3 equipment in the 37 to 75kW category, you must only use the sales volume for equipment that uses engines with a rated power greater than 56kW. For example, if you have a Tier 3 piece of equipment that uses a 40 kW engine, the sales of the equipment are counted in the Tier 4 power category of 19kW to 56kW. If you have a Tier 3 piece of equipment that uses a 60kW engine, the sales of the equipment are counted in the Tier 4 power category of 56kW to 130kW. The Tier 3 power categories of 130kW to 225kW, 225kW to 450kW and 450kW to 560kW correspond to the Tier 4 power category of 130kW to 560kW. You will need to sum the sales of the Tier 3 power categories that correspond to the Tier 4 power category. Please see Table 2. If EPA grants technical relief, the sum of all the Tier 3 units that are so exempted are divided by the sum of all the Tier 3 units sold in the corresponding Tier 4 power category to determine the percentage of Tier 4 equipments affected. Table 2.—Power Categories Tier 3 power category Tier 4 power category 37kW to 75kW * 19kW to 56kW. 37kW to 75kW **, 75kW to 130kW 56kW to 130kW. 130kW to 225kW, 225kW to 450kW, 450kW to 560kW. 130kW to 560kW * Applies only to use of engines rated between 37kW and 56kW by small volume equipment manufacturers. ** Includes only equipment that uses engines with a rated power greater than 56kW. For example, if you produce 50 units using Tier 3 technical relief in the range of 130kW to 225kW, and you produce 50 units using Tier 3 technical relief in the range of 225 to 450kW, and no units are produced in the 450kW to 560kW range, and your overall sales volume for the power ranges of 130kW to 560kW in Tier 3 is 400 units, the amount of Tier 3 technical relief used is 100/400 or 25 percent. Because you forfeit 1 percent of your Tier 4 technical relief for every 1 percent of Tier 3 technical relief used (see Table 1 above), then you will lose 25 percent of your (potential) Tier 4 technical relief in the 130kW to 560kW power range category. If you used 45 percent of your production flexibility for Tier 2 engines, you must forfeit 2 percent of production flexibility for Tier 4 engines for every 1 percent of Tier 3 technical relief. Therefore, you will forfeit 50 percent of your Tier 4 production allowance in the 130kW to 560kW power range category. Because the technical relief provision was not originally included in the Tier 3 program, we believe it is important to maintain the emission benefits of the Tier 3 rule by requiring a consistent emission trade-off with Tier 4. EPA has already found that the greatest emissions reduction achievable industry-wide for Tier 3 and Tier 4 do not include Tier 3 technical relief plus all of the other Tier 3 and Tier 4 flexibilities. The requirement that certain otherwise-available Tier 4 flexibilities be foregone is designed to ensure protection of the environment, prevent abuse, and encourage earlier introduction of Tier 4 technology. Most basically, as noted above, the linkage is designed to assure that the Tier 3 and Tier 4 rules, in combination, continue to result in the greatest emissions reduction achievable industry-wide, as required by section 213(a) of the Act. The technical relief for small volume equipment manufacturers is similar to the equipment manufacturer technical relief with the distinction that it applies to small volume equipment manufacturers. The following criteria for small volume apply: • 100 unit cap. • Small volume technical relief is only available to the 37 to 56 kW range and the 56 to 75 kW range. III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order

(EO)12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* The Agency believes this action does not impose information collection burden because this rulemaking only provides a production technical relief provision for nonroad equipment manufactures. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act Today's proposed rule is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act

(APA)or any other statute. Although the rule is subject to the APA, the Agency has invoked the “good cause” exemption under 5 U.S.C. 553(b), therefore it is not subject to the notice and comment requirement. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. Today's final rule contains no Federal mandates for State, local, or Tribal governments or the private sector. The rule imposes no new expenditure or enforceable duty on any State, local or Tribal governments or the private sector, and EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rulemaking affects only nonroad equipment manufacturers providing them a production technical relief provision. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. This rulemaking affects only nonroad equipment manufacturers providing them a production technical relief provision. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that

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

(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, Section 5-501 of the Order directs the Agency to evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to the Executive Order because it is not economically significant, and does not involve decisions on environmental health or safety risks that may disproportionately affect children. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order

(EO)12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The technical amendments on this rule do not relax the control measures on sources regulated by the rule and therefore will not cause emissions increases from these sources. The technical relief for the Tier 3 timeframe seeks to compensate for any emissions impact by encouraging earlier use of Tier 4 engines requiring the equipment manufacturer to give up specific Tier 4 flexibilities. K. Statutory Authority The statutory authority for this action comes from section 202 of the Clean Air Act as amended (42 U.S.C. 7521). This action is a rulemaking subject to the provisions of Clean Air Act section 307(d). See 42 U.S.C. 7607(d). List of Subjects 40 CFR Part 9 Environmental protection, Administrative practice and procedure, Confidential business information, Imports, Labeling, Motor vehicle pollution, Reporting and recordkeeping requirements, Research, Vessels, Warranties. 40 CFR Part 89 Environmental protection, Administrative practice and procedure, Confidential business information, Imports, Labeling, Motor vehicle pollution, Reporting and recordkeeping requirements, Research, Vessels, Warranties. 40 CFR Part 1039 Environmental protection, Administrative practice and procedure, Air pollution control, Confidential business information, Imports, Labeling, Penalties, Reporting and recordkeeping requirements, Warranties. Dated: September 6, 2007. Stephen L. Johnson, Administrator. [FR Doc. E7-18163 Filed 9-17-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 12-month Finding on a Petition To List Sclerocactus brevispinus (Pariette cactus) as an Endangered or Threatened Species; Taxonomic Change From Sclerocactus glaucus to Sclerocactus brevispinus, S. glaucus , and S. wetlandicus AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of 12-month petition finding and proposed rule. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list *Sclerocactus brevispinus* (Pariette cactus) as an endangered or threatened species under the Endangered Species Act of 1973, as amended (Act). We also propose to change the taxonomy of the currently threatened *Sclerocactus glaucus* “complex” to three distinct species: *Sclerocactus brevispinus* , *S. glaucus* , and *S. wetlandicus.* Because these species make up what was formerly the “complex”, each will maintain its status of being listed as threatened. After review of all available scientific and commercial information, we find that reclassifying *S. brevispinus* as endangered is warranted but precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants. However, *S. brevispinus* is currently listed as threatened as part of the *S. glaucus* (Uinta Basin hookless cactus) complex. We further propose to revise the taxonomy of *S. glaucus* (Uinta Basin hookless cactus) (previously considered a “complex”), which is currently listed as a threatened species. In accordance with the best available scientific information, we propose to recognize the three distinct species: *S. brevispinus* , *S. glaucus* , and *S. wetlandicus.* Because each of these three species constitute the *S. glaucus* complex, we consider all three species to be threatened under the Act. In addition, we propose common names for *S. glaucus* and *S. wetlandicus.* DATES: The finding announced in this document was made on September 18, 2007. We will accept comments on the proposed taxonomic change from all interested parties until November 19, 2007. ADDRESSES: *Comments on Proposed Taxonomic Change:* If you wish to comment on the proposed rule to revise the taxonomy of *S. glaucus* , you may submit your comments and materials by any one of several methods: 1. *By mail or hand-delivery to:* Larry England, Utah Field Office, U.S. Fish and Wildlife Service, 2369 W. Orton Circle, Suite 50, West Valley City, UT 84119. 2. *By electronic mail (e-mail) to:* *fw6_sclerocactus@fws.gov* . Please see the Public Comments Solicited section for other information about electronic filing. 3. *By fax to:* the attention of Larry England at 801-975-3331. 4. *By the Federal eRulemaking Portal at:* *http://www.regulations.gov.* Follow the instructions for submitting comments. *Supporting Documents for 12-Month Finding:* Supporting documents for this finding are available for public inspection, by appointment, during normal business hours at the Utah Field Office, U.S. Fish and Wildlife Service, 2369 W. Orton Circle, Suite 50, West Valley City, UT 84119. The petition finding, related **Federal Register** notices, the Court Order, and other pertinent information may be obtained on the Internet at *http://www.fws.gov/mountain-prairie/species/plants/Pariettecactus/.* We ask the public to submit any new data or information concerning the status of or threats to *Sclerocactus brevispinus* to us at the above address. This information will help us monitor and encourage the ongoing conservation of this species, and formulate a future proposed listing rule, should one be necessary. FOR FURTHER INFORMATION CONTACT: Larry England, Utah Field Office (see ADDRESSES ) (telephone 801-975-3330; facsimile at 801-975-3331). Persons who use a telecommunications device for the deaf

(TDD)may call the Federal Information Relay Service

(FIRS)at 800-877-8339. SUPPLEMENTARY INFORMATION: Background This document consists of:

(1)A proposed rule to change the taxonomy of the currently threatened *Sclerocactus glaucus* “complex” to three distinct species: *Sclerocactus brevispinus* , *S. glaucus* , and *S. wetlandicus* , each of which will continue to be listed as threatened; and

(2)a 12-month finding on a petition to list *Sclerocactus brevispinus* (Pariette cactus) as an endangered or threatened species under the Endangered Species Act of 1973, as amended

(Act)(16 U.S.C. 1531 *et seq.* ). For the sake of convenience, we present the proposed taxonomic change first, followed by the 12-month finding. Proposed Rule for Taxonomic Change From Sclerocactus glaucus to Sclerocactus brevispinus , S. glaucus , and S. wetlandicus Public Comments Solicited We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we request comments or suggestions on this proposed rule. We particularly seek comments concerning *Sclerocactus* taxonomy, including any evaluations of the studies cited in this notice. You may submit your comments and materials concerning this proposal by one of several methods (see ADDRESSES ). If you use e-mail to submit your comments, please include “Attn: Pariette Cactus” in your e-mail subject header, preferably with your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your e-mail, contact us directly by calling our Utah Field Office at 801-975-3330. Please note that we must receive comments by the date specified in the DATES section in order to consider them in our final determination and that the e-mail address *fw6_sclerocactus@fws.gov* will be closed out at the termination of the public comment period. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection, by appointment, during normal business hours at the Utah Field Office, U.S. Fish and Wildlife Service, 2369 W. Orton Circle, Suite 50, West Valley City, UT 84119 (telephone 801-975-3330). Taxonomic Classification The original listing rule (44 FR 58868, October 11, 1979) included all hookless (straight central spines) *Sclerocactus* populations at the extreme periphery of the *Sclerocactus* genus' distribution in western Colorado and northeastern Utah, and referred to them as *Sclerocactus glaucus* per L. Benson (1966, pp. 50-57; 1982, pp. 728-729). This taxonomic classification is no longer supported by results of genetic and morphological research. The separation of *Sclerocactus glaucus* into three species ( *S. glaucus, S. wetlandicus* , and *S. brevispinus* ) is reinforced by recent genetic studies (Porter *et al.* 2000, pp. 14, 16; Porter *et al.* 2006, pp. 6, 7, 10), common garden experiments (Hochstatter 1993, pp. 94, 98; Welsh *et al.* 2003, p. 79), and a reevaluation of morphological characteristics (Heil and Porter 2004, pp. 200-201; Hochstatter 1993b, pp. 93, 97, 99). Revisions to the taxonomy of *S. glaucus* began in 1989 (Hochstatter 1989 in 1993, pp. 91-92; Heil and Porter 1994, pp. 25-27; Porter *et al.* 2000, pp. 8-23; Welsh *et al.* 2003, p. 79). By 2004, the *Flora of North America* recognized the plant *S. glaucus* (that we listed in 1979) as three distinct species: *S. glaucus* (Uinta Basin hookless cactus), *S. wetlandicus* (no common name), and *S. brevispinus* (Pariette cactus). Thus, we now consider the Uinta Basin hookless cactus “complex” to be comprised of three distinct species: *S. glaucus* , *S. wetlandicus* , and *S. brevispinus* , and we propose to amend the List of Endangered and Threatened Plants at 50 CFR 17.12(h) to reflect this revision to taxonomy. *Sclerocactus glaucus* is endemic to western Colorado. Its common name, Uinta Basin hookless cactus, refers to a geological area in Utah. Therefore, the common name of Uinta Basin hookless cactus is a misnomer that would be more accurately applied to *S. wetlandicus* , which currently has no common name. We believe that “Colorado hookless cactus” is a more appropriate common name for *S. glaucus* , and we propose to adopt that common name. *Sclerocactus wetlandicus* (no common name) was first described in 1989 (Hochstatter 1989 in 1993, pp. 91-92), and comprises the bulk of the previously termed Uinta Basin hookless cactus complex in Utah (in the Uinta Basin proper). It is considered a separate population. As described above, we believe that the common name “Uinta Basin hookless cactus” is more appropriate for this species, and propose to adopt that common name. *Sclerocactus brevispinus* (Pariette cactus) is a morphologically unique *Sclerocactus* population occurring only in the Pariette Draw in the central Uinta Basin in Utah. This cactus is much smaller than either *S. wetlandicus* or *S. glaucus* , and retains the vegetative characteristics of juvenile *S. wetlandicus* individuals in adult flowering plants. At the time of the species listing in 1979, these smaller-statured individuals were thought to represent an ecotypic variation of *S. glaucus* . This unique cactus from Pariette Draw has been variously named *S. wetlandicus* var. ilseae (Hochstatter 1993, pp. 95-97), *S. brevispinus* (Heil and Porter 1994, p. 26), and *S. whipplei* var. *ilseae* (Welsh *et al.* 2003, p. 79). We propose to adopt the taxonomic change accepted by the *Flora of North America* (Heil and Porter 2004, pp. 197-207) as *S. brevispinus* , and propose to adopt the common name “Pariette cactus” for this species. In summary, in the Proposed Regulation Promulgation section of this document, we propose the taxonomic change from *Sclerocactus glaucus* to *Sclerocactus brevispinus* (Pariette cactus), *Sclerocactus glaucus* (Colorado hookless cactus), and *Sclerocactus wetlandicus* (Uinta Basin hookless cactus). Peer Review In accordance with our joint policy published in the **Federal Register** on July 1, 1994 (59 FR 34270), and based on our implementation of the Office of Management and Budget's Final Information Quality Bulletin for Peer Review, dated December 16, 2004, we are to seek the expert opinions of appropriate and independent specialists regarding the science in proposed rules. Since the basis for this proposed taxonomic change has appeared in peer-reviewed journals, it is not necessary to seek additional peer review of this proposed rule. Clarity of the Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a)Be logically organized;

(b)Use the active voice to address readers directly;

(c)Use clear language rather than jargon;

(d)Be divided into short sections and sentences; and

(e)Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. Executive Order 13211 On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Since this proposed rule is simply a taxonomic change, this rule is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required. National Environmental Policy Act We have determined that we do not need to prepare an Environmental Assessment and/or an Environmental Impact Statement as defined under the authority of the National Environmental Policy Act of 1969, in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the **Federal Register** on October 25, 1983 (48 FR 49244). Government-to-Government Relationship With Tribes In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. 12-Month Finding on a Petition To List Sclerocactus brevispinus (Pariette cactus) as Endangered or Threatened Section 4(b)(3)(B) of the Act requires that, for any petition that contains substantial scientific and commercial information that listing may be warranted, we make a finding within 12 months of the date of our receipt of the petition on whether the petitioned action is:

(a)Not warranted,

(b)warranted, or

(c)warranted, but the immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether any species is threatened or endangered, and expeditious progress is being made to add or remove qualified species from the Lists of Endangered and Threatened Wildlife and Plants. Such 12-month findings are to be published promptly in the **Federal Register** . Section 4(b)(3)(C) of the Act requires that a petition for which the requested action is found to be warranted but precluded be treated as though resubmitted on the date of such finding, and requiring a subsequent finding to be made within 12 months. Previous Federal Actions On October 11, 1979, we published a final rule listing *Sclerocactus glaucus* (Uinta Basin hookless cactus) as threatened (44 FR 58868). On April 25, 2005, we received a petition, dated April 18, 2005, from the Center for Native Ecosystems and the Utah Native Plant Society, requesting that we:

(1)List *Sclerocactus brevispinus* (Pariette cactus) as an endangered or threatened species under the provisions of section 4 of the Act (independent of its current listing as threatened as part of *S. glaucus* );

(2)promulgate an emergency listing rule; and

(3)designate critical habitat concurrent with the listing. On October 10, 2005, the petitioners entered a complaint in the U.S. District Court of Colorado seeking to compel us to list *S. brevispinus* as either threatened or endangered. Per an October 11, 2006, court-ordered settlement agreement, we agreed to publish a 90-day petition finding in the **Federal Register** on or before December 8, 2006. On December 14, 2006, we published a 90-day finding on this petition (71 FR 75215) in which we concluded that emergency listing was not necessary, but that the petition provided substantial information indicating that listing *S. brevispinus* as endangered or threatened may be warranted, and we initiated a status review. Please refer to that finding for greater detail concerning the listing history of *Sclerocactus glaucus* (Uinta Basin hookless cactus). This notice constitutes the 12-month finding on the April 25, 2005, petition to list *Sclerocactus brevispinus* (Pariette cactus) as an endangered or threatened species. Species Description Cacti species of the Uinta Basin hookless cactus complex are described in the 90-day petition finding for *Sclerocactus brevispinus* (71 FR 75215, December 14, 2006). Descriptions were adapted from Heil and Porter 1994 (pp. 25-27), and Hochstatter 1993 (pp. 91, 95, and 99). Biology and Distribution *Sclerocactus brevispinus* habitat is a sparsely vegetated desert shrubland dominated by *Atriplex* , *Chrysothamnus* , and *Tetradymia* species (USFWS 1990, p. 7). The species' life history is poorly known, but it is thought to be a long-lived perennial usually flowering after 3 or 4 years. A broad assemblage of native bees, and possibly other insects including ants and beetles, pollinates *S. brevispinus* (USFWS 1990, p. 7). *Sclerocactus brevispinus* grows on fine soils in clay badlands derived from the Uinta formation (USFWS 1990, p. 7). The species is restricted to one population in an area about 16 kilometers

(km)(10 miles (mi)) long by 8 km (5 mi) wide astride the Duchesne-Uintah County boundary on Bureau of Land Management (BLM), Ute Tribe, State of Utah, and private land. We estimate the total species population to be about 8,000 individuals on approximately 7,200 hectares

(ha)(18,000 acres (ac)), distributed largely across BLM and Ute Tribal lands. We do not have recent, long-term status or trend population data for *Sclerocactus brevispinus.* A 1985 species inventory documented a population of 3,795 individuals on approximately 6,000 ha (15,000 ac) of BLM land, and minor amounts of State and private lands (BLM 1985, p. 4; Heil and Porter 1994, p. 45). BLM estimated that this population represented 75 percent of the species population on BLM-managed lands (Sinclear 1985). Based on this information, we consider the *Sclerocactus brevispinus* population on BLM lands to be comprised of approximately 5,000 individuals. BLM conducted an inventory in 2007, but its final data are not yet available. We estimate the total area of potential habitat for *S. brevispinus* on BLM lands to be approximately 6,000 ha (15,000 ac). The total population of *Sclerocactus brevispinus* on the Uintah and Ouray Reservation of the Ute Tribe, directly north and adjacent to BLM lands, is unknown. The Ute Tribe conducted an inventory in 2007, and preliminary results indicate an estimated 3,000 individuals (O'Hearn 2007). However, the Tribe's final data are not yet available. We estimate the total area of potential habitat for *S. brevispinus* on Ute Tribal lands, based on exposures of the Wagon Hound member of the Uinta formation with desert shrub vegetation, to be about 1,200 ha (3,000 ac). Summary of Factors Affecting the Species Section 4 of the Act (16 U.S.C. 1533), and implementing regulations at 50 CFR part 424, set forth procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. In making this finding, we summarize below information regarding the status and threats to *Sclerocactus brevispinus* in relation to the five factors provided in section 4(a)(1) of the Act. In making this 12-month finding, we considered all scientific and commercial information received or acquired between the time of the initial petition (April 2005) and the end of the public comment period (February 12, 2007), and additional scientific information from ongoing species surveys and studies as they became available. During the public comment period (71 FR 75215, December 14, 2006), we received four comments and information on *Sclerocactus brevispinus* and the other two species in the Uinta Basin hookless cactus complex from private citizens, organizations, and other entities. A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range The total range of *Sclerocactus brevispinus* comprises approximately 7,200 ha (18,000 ac) (USFWS 2006, p. 2; Childs 2007, p. 5), within which suitable habitat is scattered in naturally occurring mosaics (BLM 2005b, p. 3-30). The population is comprised of irregularly distributed occurrences across the landscape. Its entire known range occurs within active and pending oil and gas fields. Oil and Gas Development Seventy-two percent of the total range of the species (5,209 ha /12,865 ac) occurs within the approved Castle Peak/Eightmile Flat Oil and Gas Expansion Project (5,012 ha/12,530 ac) and the pending Gasco Uinta Basin Natural Gas Field Development Project (134 ha/335 ac) on BLM lands (USFWS 2006, p. 3). Current well-field development in these project areas has resulted in direct and indirect effects to 765 ha (1,891 ac) of *Sclerocactus brevispinus* habitat (BLM 2005b, p. 4.1-26). BLM proposes to double the number of wells and the amount of surface disturbance in cactus habitat (BLM 2005b, p. 4.2-14). An additional 848 ha (2,095 ac) of *S. brevispinus* ' range (12 percent) contains wells drilled in the Sand Wash and Greater Boundary Oil and Gas Field adjacent to the Castle Peak/Eightmile Flat Project (USFWS 2006, p. 7). In summary, 100 percent of *S. brevispinus* ' range on BLM land (84 percent of the species' total range) is included within oil and gas development project boundaries. In addition, the Ute Tribe has leased occupied *S. brevispinus* habitat north of and directly adjacent to the Castle Peak/Eightmile Flat Project for oil and gas development. Nine wells, affecting 215 *S. brevispinus* individuals, are scheduled for drilling in 2007 (Childs 2007, p. 6). The biological assessment for this project indicates that, including 12.7 km (7.9 mi) of new road, 15.6 ha (39 ac) of habitat would be disturbed, and 3.3 ha (8.2 ac) of occupied habitat would be lost (Childs 2007, p. 1). The project boundary will include 100 percent of *S. brevispinus* ' range on Ute Tribal land (16 percent of the species' total range). In its Castle Peak/Eightmile Flat Oil and Gas Expansion Project Final Environmental Impact Statement (FEIS), BLM also identifies indirect effects to *Sclerocactus brevispinus* from the Castle Peak/Eightmile Flat Project, including soil compaction, increased road access, increased off-road vehicle

(ORV)use, increased surface disturbance, and habitat fragmentation (BLM 2005b, pp. 4.1-26, 4.2-22, 4.3-14, 5-18). In this same FEIS, BLM established a range of influence for indirect effects from roads and well pads (such as fugitive dust, erosion, and impacts to pollinators) of 300 meters

(m)(984 feet (ft)). Using this range of influence, BLM calculated that approximately 5,297 ha (13,090 ac) (73 percent) of *S. brevispinus'* range within and immediately adjacent to the Castle Peak/Eightmile Flat Project area would be impacted by indirect effects (BLM 2005b, p. 5-28). Increases in well-field facilities within cactus habitat will result in some cactus populations becoming more physically isolated from each other (BLM 2005b, p. 5-27). BLM has identified 261 mi (420 km) of new and existing access roads, with adjacent parallel utility corridors for buried water pipelines, and above ground natural gas gathering pipelines, in connection with the Castle Peak/Eightmile Flat Project (BLM 2005b, ROD p. 4). Development of roads in support of oil and gas development can result in increased erosion, soil compaction, and sedimentation. Roads can cause cactus mortality in areas of high sediment movement and deposition (BLM 2005b, p. 4.1-28). Mortality of mature cactus plants, including S. *brevispinus* , has been observed when erosion of road sediments bury the plants (BLM 2005b, p. 4.1-28). Cacti seeds have been buried and lost due to erosion runoff from well-field facilities (BLM 2005b, p. 4.1-28). In addition, dust particles increase leaf temperature and reduce photosynthesis in cacti (Farmer 1993, pp. 63-75; Sharifi *et al.* 1997, p. 842); the latter may be due to reduced leaf areas and greater leaf specific masses with corresponding decreased water use efficiency and reduced photosynthesis (Sharifi *et al.* 1997, p. 843). Construction and operation of roads and well pads increase dust occurrence substantially (BLM 2005b, pp. 2-4, 2-5, 4.1-8). Increased road access results in direct loss of individual plants due to increased illegal collection of the species (BLM 2005b, p. 5-18; USFWS 1990, p .9). Illegal collection is a continuing and an ongoing threat to *Sclerocactus brevispinus* (see discussion under Factor B below). Increases in ORV use result from access provided by increased road densities connected with well-field development. Developed roads provide access to vehicles that carry ORVs into areas that are otherwise not accessible, allowing for off-loading of ORVs and off-road access within a much wider range of unroaded habitat. ORV use results in crushing of cacti, and increased erosion, soil compaction, and sedimentation (BLM 2005a, pp. 4-246, 4-265 to 4-271; USFWS 1990, pp. 8, 10). Increased surface disturbance from wells, pipelines, and roads facilitates the proliferation of noxious weeds (BLM 2005b, p. 4.1-9 to 4.1-11, 5-18). Noxious weeds alter the ecological characteristics of hookless cactus habitat, making it less suitable (USFWS 1990, pp. 9, 11; BLM 2005a, p. 3-112). Within the range of *Sclerocactus brevispinus* , a comparison of habitat on BLM land with habitat on adjacent Ute Tribal land shows that habitat on Tribal lands, which is less heavily grazed and lacks oil and gas developments, has fewer noxious weeds (O'Hearn 2007; England 2007). The combined effects of roads (including increased erosion, soil compaction, and sedimentation; overall access; ORV use; illegal cacti collection; and spread of noxious weeds) result in direct mortality of cacti and habitat fragmentation (BLM 2005b, pp. 4.1-26, 4.2-22, 4.3-14, 5-27), which decreases the ability of *Sclerocactus brevispinus* to reproduce, maintain genetic viability, and persist as a species. Rehabilitation of soils and vegetation following surface disturbance is expected to be difficult, because approximately 73 percent of soils in the Castle Peak/Eightmile Flat Project area have moderate to high revegetation constraints (BLM 2005a, p. 4.2-11). BLM estimates that successful revegetation would be expected to occur in desert shrub and sagebrush communities, but only over the long term (up to 50 years) (BLM 2005b, pp. 4.3-7, 4.2-12). Drought conditions could further extend the recovery period, and noxious weeds would persist regardless of control efforts (BLM 2005b, p. 4.3-7). Noxious weeds are difficult to eradicate and tend to out-compete native vegetation. Revegetation with native species is difficult due to the harsh environment of the lowest elevations of the Uinta Basin, which receive less than 15 centimeters (6 inches) of rainfall per year, and reach extreme hot and cold temperatures (BLM 2005a, p. 3-112; BLM 2005b, pp. 3.5-1, 3.5-5, 4.1-11; USFWS 1990, p. 11). BLM has developed and implemented conservation measures to minimize the loss of individual cactus from oil and gas activities (BLM 2005a, pp. 1-14, 2-2, 2-29, 2-30; BLM 2005b; ROD pp. 5, 18-20). These measures include preconstruction cactus surveys and application of spatial avoidance buffers. BLM maintains the 4,664 ha (11,660 ac) Pariette Wetlands Area of Critical Environmental Concern (ACEC), which emphasizes protection of *Sclerocactus brevispinus* (BLM 1994, pp. 3-20 to 3-23). Approximately 31 percent of the ACEC (1,434 ha (3,584 ac)) is within the range of *S. brevispinus* . BLM defers approval of new wells and ancillary facilities located on BLM land within the Pariette Wetlands ACEC until a comprehensive population survey for *S. brevispinus* has been completed; however, conservation measures do not preclude development over the long term (BLM 2005b; ROD p. 5). Citing valid existing lease rights and current management prescriptions in the Diamond Mountain Resource Management Plan, BLM did not stipulate a blanket “no surface occupancy” requirement for oil and gas development within the Pariette Wetlands ACEC, or within the range of *S. brevispinus* (BLM 2005b; ROD p. 5). Following cactus surveys, the leasee will expand operations of the Castle Peak/Eightmile Flat Project into the ACEC. In summary, despite its current listed status as threatened under the Act, *Sclerocactus brevispinus* and its habitat continue to be impacted by additional oil and gas development, including wells and supporting road and pipeline facilities. Losses of habitat and individual plants have occurred despite conservation efforts implemented by BLM and the oil field operator. Energy development is occurring in *S. brevispinus* habitat at a rate much greater than existed at the time of the original listing of *S. glaucus* in 1979. Due to the extent of current and pending energy development across the cactus' entire range, and the resulting direct and indirect effects to the species, *S. brevispinus* is in danger of extinction throughout its range or likely to become in danger of extinction in the foreseeable future. Habitat Fragmentation Regardless of conservation efforts related to oil and gas activities, adverse indirect effects are expected due to the loss and fragmentation of suitable habitat (BLM 2005a, pp. 4-240, 4-243, 4-244, 4-246, 4-252; BLM 2005b, pp. 3-35, 4.1-26, 4.2-22, 4.3-20, 5-27). A recent review of habitat fragmentation experiments concluded that fragmentation effects cascade through a plant community by modifying inter-specific interactions, exacerbating edge effects, and potentially affecting the genetic composition of local populations (Debinski and Holt 2002, p. 353). Low population numbers, combined with habitat fragmentation, pose a threat to rare plant species' ability to adapt genetically to changing environmental conditions (Lienert 2004, pp. 62, 63, 66; Matthies et al. 2004, pp. 481, 486). BLM has initiated monitoring of *Sclerocactus brevispinus* populations, including monitoring of impacts associated with oil and gas development. Results are preliminary, because the study was initiated in 2005. However, initial results show potential effects of oil and gas development ( *i.e.* , roads and well pads) on the survival and reproductive success of *S. brevispinus* (Ulloa 2006). For example, survival of *S. brevispinus* in plots within 100 m (328 ft) of roads associated with energy development was 17 percent, compared to 47 percent survival in plots farther than 100 m (328 ft) from a road. On plots within 100 m (328 ft) of roads, 13.8 percent of cacti reproduced, compared to 22 percent of cacti farther than 100 m (328 ft) from roads. More information is needed to determine if these effects are the result of energy development or other environmental factors (Ulloa 2006). Direct *Sclerocactus brevispinus* mortality and habitat destruction have been caused by livestock trampling and ORV use (Utah Natural Heritage Program 2006, p. 3; BLM 2005a, pp. 4-231 to 4-235, 4-238; USFWS 1990, p. 11; England 2005; Sinclear 2005; Specht 2005). Recent observations show a significant decrease in *S. brevispinus* plant density on the more heavily grazed and roaded BLM lands in the Pariette Draw drainage than on adjacent Ute Tribal lands in the same drainage (O'Hearn 2007; England 2007). As previously mentioned, invasive weeds ( *Bromus tectorum* (cheat grass) and *Halogeton glomeratus* ) are much more prevalent on the more heavily grazed BLM lands at the boundary between the two land ownerships in the range of *S. brevispinus* (O'Hearn 2007; England 2007). Conclusion for Factor A Threats from existing and planned oil and gas development occur within the entire known range of *Sclerocactus brevispinus* . These threats include direct mortality, erosion, soil compaction, sedimentation, increased road access, ORV use, surface disturbance, and habitat fragmentation. In addition, these combined effects could decrease the reproductive rate of *S. brevispinus* . Rehabilitation of habitat areas following oil and gas projects is especially difficult due to the habitat conditions and climate of the desert plant community, and is expected to meet with limited success. The same is true for conservation measures implemented to minimize the loss of individual cacti due to oil and gas activities. Due to the magnitude and extent of the combined effects of ongoing and planned oil and gas development, we find that *S. brevispinus* is in danger of extinction throughout all of its range or likely to become in danger of extinction in the foreseeable future due to destruction, modification, and curtailment of its habitat and range. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes The original listing of *Sclerocactus glaucus* concluded that the cactus will continue to be prized among collectors and, therefore, is threatened by unregulated commercial trade (44 FR 58869, October 11, 1979). This remains true for *S. brevispinus* . Illegal collecting continues, is often documented, and negatively affects the species by fragmenting plant populations and reducing population sizes which can result in limiting reproduction (USFWS 1990, p. 9). BLM recognized that additional energy development and ensuing road development in the Castle Peak/Eightmile Flat Project would result in increased potential for illegal collecting (BLM 2005b, p. 4.1-26). Approximately 56 percent of the known plant locations (40 percent of the species' range) are within 100 m (328 ft) of project-related roads or well pads in the project area (USFWS 2006, p. 4), and close proximity to a road facilitates this cactus' discovery by illegal collectors (Ulloa 2006). In 2006, BLM documented that at least 60 *Sclerocactus brevispinus* plants were illegally collected, many from existing monitoring plots within the Castle Peak/Eight Mile Flat Project area (Ulloa 2006). Illegal collection areas were all within 100 m (382 ft) of roads associated with oil and gas development (Ulloa 2006). Additional plants were lost in 2007; however, the actual number of documented plant losses has not yet been determined. Conclusion for Factor B In conclusion, we have determined that illegal collection continues to be a threat to *Sclerocactus brevispinus* throughout all of its range. The magnitude of this threat is increasing due to development, and combined with other threats to the species, contributes to its likelihood of becoming extirpated. Collection alone, however, may not cause the species to become in danger of extinction throughout all of its range or likely to become in danger of extinction in the foreseeable future. C. Disease or Predation Parasitism by the cactus-borer beetle ( *Moneilema semipunctatum* ) is a significant source of mortality to all *Sclerocactus* species on the Colorado Plateau, especially in larger, mature, reproducing individuals (USFWS 1990, p. 11; Ulloa 2006; Sinclear 2005; Specht 2005). However, additional studies are needed in order to determine the long-term, population-level effects of the cactus borer beetle to *S. brevispinus* . Conclusion for Factor C Parasitism is identified as a threat to *Sclerocactus* species, however the significance to *S. brevispinus* is not currently known. Therefore, we can draw no conclusions about the contribution of this threat to the population status of the species. D. Inadequacy of Existing Regulatory Mechanisms BLM policy regarding federally listed species includes measures to implement management plans and programs that will conserve listed species and their habitats, and to comply with the Act (BLM 2001, pp. 5-6). However, complying with the Act requires incorporating measures that minimize adverse impacts to federally listed species within reasonable and prudent guidelines. This threshold does not eliminate adverse impacts, and the policy is implemented under BLM's broader mandate for land use planning and policy that requires technologically and economically feasible implementation of existing lease rights. BLM's Diamond Mountain Resource Management Plan, approved in 1994, includes objectives and management prescriptions for the Pariette Wetlands ACEC (BLM 1994, pp. 3-20 to 3-23). The Pariette Wetlands ACEC provides protection for part of the Uinta Basin hookless cactus complex, which includes *S. brevispinus* and *S. wetlandicus* . The stated objective of the ACEC includes a goal to “enhance and protect the wetlands community and associated habitat adjacent to Pariette and Castle Peak Washes * * * while meeting the management objectives of the final recovery plans for the special status species associated with the area” (BLM 1994, p. 3-20). The Pariette Wetlands ACEC management prescriptions also state that BLM will authorize no action in suitable habitat for threatened and endangered species if it would jeopardize the continued existence of the species or result in severe modification of the habitat. However, much of the ACEC is leased for oil and gas exploration, development, and production. Of BLM's 4,664 ha (11,660 ac) in the Pariette Wetlands ACEC, about 8 ha (20 ac) are open with standard lease terms and conditions for leasable minerals; 3,152 ha (7,880 ac) are leased with stipulations; and 1,480 ha (3,700 ac) are leased with highly restricted measures, but do not include a “no surface occupancy” stipulation (BLM 1994, p. 3-21). Conservation needs of *Sclerocactus brevispinus* , as part of the Uinta Basin hookless cactus complex, are addressed through interagency consultation (section 7 requirements) between the Service and BLM. BLM maintains *S. brevispinus* as a special status species, because it is not specifically included on the Federal List of Endangered and Threatened Plants. Currently, *S. brevispinus* is federally listed as threatened as part of the greater habitat range of the Uinta Basin hookless cactus complex. Therefore, BLM is required to consult on projects that affect *S. brevispinus* . The Service is required to provide reasonable and prudent measures to be included in projects that could adversely affect a listed species. The Castle Peak/Eightmile Flat Oil and Gas Expansion Project FEIS included conservation measures to specifically protect *S. brevispinus* and its habitat (BLM 2005b, pp. 4.1-26 to 28, 4.2-22, 4.3-14, 5-7, 5-18; ROD pp. 5, 18 to 20; Appendix B pp. 2, 27, 34, 39-41). For example, BLM and the leasee have agreed to a moratorium on new oil field developments within the Pariette Wetlands ACEC until a complete re-inventory of *S. brevispinus* is completed. The Pariette Wetlands ACEC contains approximately 1,249 ha (3,086 ac) (17 percent) of the known range of *S. brevispinus* . Approximately 75 percent of the inventory was completed during the species' flowering period in spring 2007. The remainder of the inventory is tentatively scheduled for completion in 2008 (Gerbig 2007). Because of valid existing lease rights and management prescriptions, the Diamond Mountain Resource Management Plan Record of Decision did not stipulate a blanket “no surface occupancy” requirement for oil and gas development within the Pariette Wetlands ACEC (BLM 1994, p. 5). After cactus surveys are completed, the leasee will expand operations, subject to the Service's reasonable and prudent measures developed during the consultation process, of the Castle Peak/Eightmile Flat Project into the Pariette Wetlands ACEC. BLM has recently established a population monitoring program for *Sclerocactus brevispinus* to track population changes, impacts from developments within the species' habitat, and direct threats such as grazing, parasitism, and unauthorized collection (Ulloa 2006), and 3 years of monitoring data have been collected. Initial results include documentation of illegal collection, and greater population declines nearer disturbances. Correlations of declines to specific threat factors, such as dust or soil compaction, have not yet been determined. Despite this monitoring, the extent of oil and gas development projects, and resulting documented direct and indirect impacts, throughout the range of *Sclerocactus brevispinus* , indicate that existing regulatory mechanisms are insufficient to conserve *the species* . Despite implementation of conservation measures, *Sclerocactus brevispinus* is not adequately protected by the current designation (as part of the Uinta Basin hookless cactus complex) as threatened. Evaluation of impacts to *S. brevispinus* under section 7 of the Act is diluted by the fact that it is currently listed as part of the much larger distribution of the entire Uinta Basin hookless cactus complex. Therefore, actions included in determinations under section 7 of the Act are evaluated on whether they would jeopardize the continued existence of the larger listed entity rather than whether they would jeopardize the continued existence of *S. brevispinus* . *S. brevispinus* , in accordance with the best taxonomic information available, warrants evaluation of effects of proposed actions at a smaller scale, specific to it as a separate species. For example, if a project impacts 3,795 plants (last population count for *S. brevispinus* (BLM 1985, p. 4)) out of a total 10,000 plants (i.e., Uinta Basin hookless cactus complex as currently listed), it impacts 30 percent of the total population. However, if the same project occurs entirely within *S. brevispinus* habitat, it could theoretically directly or indirectly impact 100 percent of the total known population. The FEIS for the Castle Peak/Eightmile Flat Oil and Gas Expansion Project includes discussion of these concerns in its cumulative effects evaluation based in part on the overall population and distribution of the Uinta Basin hookless cactus complex (BLM 2005b, pp. 4.2-22, 5-18). The Service provided reasonable and prudent measures related to conserving *S. brevispinus* ; however, these measures result in protecting individual plants, and tend to not limit the extent of drilling within the range of the species. Oil and gas development has not yet been implemented on Ute Tribal land; however, the Tribe has leased occupied *S. brevispinus* habitat that will disturb 15.6 ha (39 ac) of habitat. These lands are not covered by regulations that apply to Federal lands; no protection under the Act is afforded plants on Tribal land. Conclusion for Factor D Despite BLM policy regarding federally listed species, existing oil and gas leases continue to directly and indirectly impact *Sclerocactus brevispinus* and its habitats. In addition, Tribal lands are not subject to regulations that restrict energy development, and are only subject to section 7 consultation for projects that have a Federal nexus, such as Federal grant money or Bureau of Indian Affairs involvement. Specifically, neither BLM nor the Tribe have regulations or policies that include “no surface occupancy” stipulations; this deficiency allows for the ongoing and planned expansion of energy developments that endanger the continued existence of *Sclerocactus brevispinus* and its habitat. The extent and magnitude of oil and gas-related threats demonstrate that existing regulatory mechanisms are not adequate to protect remaining occupied and essential *S. brevispinus* habitat. Therefore, we find *Sclerocactus brevispinus* to be in danger of extinction throughout all of its range or likely to become in danger of extinction in the foreseeable future due to the inadequacy of existing regulatory mechanisms. E. Other Natural or Manmade Factors Affecting its Continued Existence Potential threats to *Sclerocactus brevispinus* from drought are well documented (USFWS 1990, p. 11; Specht 2005; Heil 2005). In addition to plant mortality due to lack of precipitation, drought causes streams to dry up, thereby removing additional moisture from the environment. In addition, noxious weeds are often able to out-compete native species under drought conditions. Many dead *S. brevispinus* individuals were observed in the Uinta Basin after the severe drought of 1976 to 1977 (USFWS 1990, p. 11). The specific effects of climate change on *S. brevispinus* are unknown, but climate changes that lead to longer or more frequent drought in the future could potentially affect the species. *Sclerocactus brevispinus* exists in and adjacent to areas that receive pesticide treatments to remove undesirable species, such as noxious weeds and insect pests (USFWS 1990, pp. 10-11). Individual cactus are likely directly affected by use of herbicides, and indirectly by pesticides that affect pollinators (USFWS 1990, pp. 10-11). However, specifics of the species' pollination biology are currently unquantified. The inherent vulnerability of *Sclerocactus brevispinus* due to its small population size is a concern (Ellestrand and Ellam 1993, p. 228). However, no information exists to indicate that the species' range and population numbers have been significantly larger than they are currently, except for recent documented losses due to oil and gas development and illegal collection. The species' small population size, in combination with habitat fragmentation and other threat factors discussed herein, may be affecting reproductive success. Conclusion for Factor E Although several other natural or manmade factors—including drought, herbicide and pesticide application, and small population size—may affect the continued existence of *Sclerocactus brevispinus,* we cannot conclude that any one of these factors alone currently puts the species in danger of extinction throughout all or a significant portion of its range, or makes it likely to become in danger of extinction in the foreseeable future. Finding We have carefully assessed the best scientific and commercial information available regarding threats to *Sclerocactus brevispinus* (Pariette cactus). We reviewed the petition, available published and unpublished scientific and commercial information, and information submitted to us during the public comment period following the publication of our 90-day petition finding. This 12-month finding reflects and incorporates information that we received during the public comment period or that we obtained through consultation, literature research, and field visits. On the basis of this review, we find that reclassifying *S. brevispinus* as endangered is warranted, due to threats associated with habitat loss and degradation due largely to energy development (Factor A), unauthorized collection (Factor B), and the inadequacy of existing regulatory mechanisms (Factor D). However, reclassifying *S. brevispinus* as endangered is precluded at this time by pending proposals for other species with higher listing priorities based on taxonomic uniqueness (i.e., the only species described for the genus), or other species that are not currently listed (see discussion under Preclusion and Expeditious Progress). We have determined that the magnitude of threats affecting *Sclerocactus brevispinus* to be “high,” because there is a single population and 72 percent of its habitat is affected by oil and gas development. The species cannot tolerate the cumulative effects from existing and proposed energy projects, especially due to the extent of roads within *S. brevispinus* habitat. We have also determined that the immediacy of threats is “imminent,” because the species” habitat is already being impacted by oil and gas developments, and the remaining area is currently being proposed for development. Therefore, we assign a listing priority number of 2 to this species. Emergency Listing We reviewed the available information to determine if existing and foreseeable threats to *Sclerocactus brevispinus* are of sufficient extent and magnitude to require emergency listing as threatened or endangered. We have determined that an emergency listing is not warranted for this species at this time, because it is currently treated as a threatened species as part of the *S. glaucus* (Uinta Basin hookless cactus) complex. It receives protection under the Act through sections 4, 7, and 9, which provide for recovery actions, and provide some protection from habitat disturbance through interagency consultation and from illegal collection and trade. Critical Habitat We considered the need to designate critical habitat for this species, and have found that designating critical habitat for commercially-exploited species, such as rare cacti, is not prudent. Designating critical habitat requires that we identify specific and narrowly delineated geographical areas containing populations, which would make the species more vulnerable to increased unauthorized and illegal collection. There is a long and clear record that *Sclerocactus brevispinus* is not only a highly desirable species for collectors, but that significant numbers have been collected illegally. Designating critical habitat for this species would exacerbate this ongoing threat. Therefore, in accordance with the Act and its implementing regulations, we have determined that the designation of critical habitat for *S. brevispinus* is not prudent for the above mentioned reasons and the potential increased degree of threat to this species that may result from such designation. Significant Portion of the Range Under the Act and our implementing regulations, a species may warrant listing if it is threatened or endangered in a significant portion of its range. Because this 12-month finding to list the species as threatened or endangered throughout its entire range is warranted but precluded, we do not need to perform a “significant portion of the range” analysis for the species at this time. Due to the restricted nature of *Sclerocactus brevispinus'* range, we assessed its entire known range. The species is restricted to one population of an estimated 8,000 individuals, distributed across a relatively small area that is 16 km (10 mi) long by 8 km (5 mi) wide. Threats to the species' survival are similar across its range, with energy development occurring across virtually all of the species' range. Because of its relatively restricted population distribution, the threats described above, and the uniformity of threats across its range, we have determined that *S. brevispinus* should be listed as threatened or endangered throughout its entire range. Preclusion and Expeditious Progress Preclusion is a function of the listing priority of a species in relation to the resources available and competing demands for them. In any given Fiscal Year (FY), multiple factors dictate whether it will be possible to undertake work on a proposed listing regulation or whether promulgation of such a proposal is warranted but precluded by higher priority listing actions. The resources available for listing actions are determined through the annual congressional appropriations process. The appropriation for the Listing Program is available to support work involving the following listing actions: Proposed and final listing rules; 90-day and 12-month findings on petitions to add species to the Lists or to change the status of a species from threatened to endangered; resubmitted petition findings; proposed and final rules designating critical habitat; and litigation-related, administrative, and program management functions (including preparing and allocating budgets, responding to congressional and public inquiries, and conducting public outreach regarding listing and critical habitat). The work involved in preparing various listing documents can be extensive and may include, but is not limited to, gathering and assessing the best scientific and commercial data available and conducting analyses used as the basis for our decisions; writing and publishing documents; and obtaining, reviewing, and evaluating public and peer review comments on proposed rules and incorporating relevant information into final rules. The number of listing actions that we can undertake in a given year also is influenced by their complexity, i.e., more complex actions generally are more costly. For example, during the past several years, the cost (excluding publication costs) for preparing a 12-month finding, without a proposed rule, has ranged from approximately $11,000 for a species with a restricted range and involving a relatively uncomplicated analysis, to $305,000 for a species that is wide-ranging and involved a complex analysis. We cannot spend more than is appropriated for the Listing Program without violating the Anti-Deficiency Act (see 31 U.S.C. 1341(a)(1)(A)). In addition, in FY 1998 and for each FY since then, Congress has placed a statutory cap on funds that may be expended for the Listing Program, equal to the amount expressly appropriated for that purpose in that FY. This cap was designed to prevent funds appropriated for other functions under the Act, or for other Service programs, from being used for Listing Program actions (see House Report 105-163, 105th Congress, 1st Session, July 1, 1997). Recognizing that designation of critical habitat for species already listed would consume most of the overall Listing Program appropriation, Congress also put a critical habitat subcap in place in FY 2002, and has retained it each subsequent year to ensure that some funds are available for other work in the Listing Program. “The critical habitat designation subcap will ensure that some funding is available to address other listing activities” (House Report No. 107-103, 107th Congress, 1st Session, June 19, 2001). In FY 2002, and each year since then, the Service has had to use virtually the entire critical habitat subcap to address court-mandated designations of critical habitat. Consequently, none of the critical habitat subcap funds have been available for other listing activities. Through the listing cap, the critical habitat subcap, and the amount of funds needed to address court-mandated critical habitat designations, Congress and the courts have in effect determined the amount of money available for other listing activities. Therefore, the funds in the listing cap, other than those needed to address court-mandated critical habitat for already listed species, set the limits on our determinations of preclusion and expeditious progress. Congress recognized that the availability of resources was the key element in deciding whether, when making a 12-month petition finding, we would prepare and issue a listing proposal or make a “warranted but precluded” finding for a given species. The Conference Report accompanying Public Law 97-304, which established the current statutory deadlines and the warranted but precluded finding, states (in a discussion on 90-day petition findings that by its own terms also covers 12-month findings) that the deadlines were “not intended to allow the Secretary to delay commencing the rulemaking process for any reason other than that the existence of pending or imminent proposals to list species subject to a greater degree of threat would make allocation of resources to such a petition [i.e., for a lower-ranking species] unwise.” In FY 2007, “expeditious progress” is the amount that could be achieved with $5,193,000, which is the Listing Program appropriation that is not within the critical habitat subcap. Our process is to make determinations of preclusion on a nationwide basis to ensure that the species most in need of listing will be addressed first, and to allocate our listing budget on a nationwide basis. However, through court orders and court-approved settlements, Federal district courts have mandated that we must complete certain listing activities for specified species, and have established the schedules for completion of the activities. The species involved in these court-mandated listing activities are not always the ones that we have identified as being most in need of listing. A large majority of the $5,193,000 appropriation available in FY 2007 for new listings of species is being used for court-mandated listing activities; by ordering or sanctioning these actions, the courts determined that they were the highest priority actions to be undertaken with available funding. Copies of the court orders and settlement agreements referred to below are available from the Service and are part of our administrative record. The FY 2007 appropriation of $5,193,000 for listing activities, not related to critical habitat designations for species that are already listed, is fully allocated to fund work in the following categories: compliance with court orders and court-approved settlement agreements requiring that petition findings or listing determinations be completed by a specific date; section 4 (of the Act) listing actions with absolute statutory deadlines; essential litigation-related and administrative- and program-management functions; and a few high-priority listing actions. The allocations for each specific listing action are included in the Service's FY 2007 Allocation Table. Although more funds are available in FY 2007 than in previous years for work on listing actions that were not the subject of court orders or court-approved settlement agreements, limited FY 2007 funds are available for work on proposed listing determinations for the following high-priority candidate species: Two Oahu plants ( *Doryopteris takeuchii, Melicope hiiakae* ), seven Kauai plants ( *Chamaesyce eleanoriae, Charpentiera densiflora, Melicope degeneri, Myrsine mezii, Pritchardia hardyi, Psychotria grandiflora, Schiedea attenuata* ), and four Hawaiian damselflies ( *Megalagrion nesiotes, Megalagrion leptodemas, Megalagrion oceanicum, Megalagrion pacificum* ). These species have all been assigned a listing priority number

(LPN)of 2. Our decision that a proposed rule to reclassify *Sclerocactus brevispinus* as endangered is warranted but precluded includes consideration of its current listed status as threatened. One of the primary reasons that reclassifying *Sclerocactus brevispinus* as endangered is a lower priority is that it is currently listed as threatened under the Act, and therefore already receives certain protections. The Service promulgated regulations extending take prohibitions for endangered species under section 9 to threatened species (50 CFR 17.31). Protections included under section 7(a)(2) of the Act specify that Federal agencies must ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of any endangered or threatened species. We consider the priority for changing the status of *Sclerocactus brevispinus* from threatened to endangered to be lower than for candidate species in need of protection under the Act. In accordance with guidance we published on September 21, 1983, we assign a LPN to each candidate species (48 FR 43098). Such a priority ranking guidance system is required under section 4(h)(3) of the Act (16 U.S.C. 1533(h)(3)). Using this guidance, we assign each candidate a LPN of 1 to 12, depending on the magnitude of threats, imminence of threats, and taxonomic status; the lower the listing priority number, the higher the listing priority, i.e., a species with an LPN of 1 would have the highest listing priority. We currently have more than 120 species with an LPN of 2 (see Table 1 of the September 12, 2006, Notice of Review; 71 FR 53756). For the next 2 years, we have funded proposed listings for several species with an LPN of 2. We consider *Sclerocactus brevispinus* to be precluded by these high priority candidate species. A determination that listing, or changing the status from threatened to endangered, is warranted but precluded also must demonstrate that expeditious progress is being made to add qualified species to, and remove qualified species from, the Lists. Our expeditious progress made in the FY 2007 Listing Program, up to the date of this 12-month finding, included preparing and publishing the following: FY 2007 Completed Listing Actions as of 06/06/2007 Publication date Title/species Actions Federal Register pages 10/11/2006 Withdrawal of the Proposed Rule to List the Cow Head Tui Chub ( *Gila biocolor vaccaceps* ) as Endangered Final withdrawal, Threats eliminated 71 FR 59700-59711. 10/11/2006 Revised 12-Month Finding for the Beaver Cave Beetle ( *Pseudanophthalmus major* ) Notice of 12-month petition finding, Not warranted 71 FR 59711-59714. 11/14/2006 12-Month Finding on a Petition to List the Island Marble Butterfly ( *Euchloe ausonides insulanus* ) as Threatened or Endangered Notice of 12-month petition finding, Not warranted 71 FR 66292-66298. 11/14/2006 90-Day Finding for a Petition to List the Kennebec River Population of Anadromous Atlantic Salmon as Part of the Endangered Gulf of Maine Distinct Population Segment Notice of 90-day petition finding, Substantial 71 FR 66298-66301. 11/21/2006 90-Day Finding on a Petition To List the Columbian Sharp-Tailed Grouse as Threatened or Endangered Notice of 90-day petition finding, Not substantial 71 FR 67318-67325. 12/05/2006 90-Day Finding on a Petition To List the Tricolored Blackbird as Threatened or Endangered Notice of 90-day petition finding, Not substantial 71 FR 70483-70492. 12/06/2006 12-Month Finding on a Petition To List the Cerulean Warbler ( *Dendroica cerulea* ) as Threatened with Critical Habitat Notice of 12-month petition finding, Not warranted 71 FR 70717-70733. 12/6/2006 90-Day Finding on a Petition To List the Upper Tidal Potomac River Population of the Northern Water Snake ( *Nerodia sipedon* ) as an Endangered Distinct Population Segment Notice of 90-day petition finding, Not substantial 71 FR 70715-70717. 12/14/2006 90-Day Finding on a Petition to Remove the Uinta Basin Hookless Cactus From the List of Endangered and Threatened Plants; 90-Day Finding on a Petition To List the Pariette Cactus as Threatened or Endangered Notice of 5-year Review Initiation Notice of 90-day petition finding, Not substantial Notice of 90-day petition finding, Substantial 71 FR 75215-75220. 2/19/2006 Withdrawal of Proposed Rule to List *Penstemon grahamii* (Graham's beardtongue) as Threatened With Critical Habitat Notice of withdrawal, More abundant than believed, or diminished threats 71 FR 76023-76035. 12/19/2006 90-Day Finding on Petitions to List the Mono Basin Area Population of the Greater Sage-Grouse as Threatened or Endangered Notice of 90-day petition finding, Not substantial 71 FR 76057-76079. 01/09/2007 12-Month Petition Finding and Proposed Rule To List the Polar Bear ( *Ursus maritimus* ) as Threatened Throughout Its Range; Proposed Rule Notice of 12-month petition finding, Warranted Proposed Listing, Threatened 72 FR 1063-1099. 01/10/2007 Endangered and Threatened Wildlife and Plants; Clarification of Significant Portion of the Range for the Contiguous United States Distinct Population Segment of the Canada Lynx Clarification of findings 72 FR 1186-1189. 01/12/2007 Withdrawal of Proposed Rule To List *Lepidium papilliferum* (Slickspot Peppergrass) Notice of withdrawal, More abundant than believed, or diminished threats 72 FR 1621-1644. 02/02/2007 12-Month Finding on a Petition To List the American Eel as Threatened or Endangered Notice of 12-month petition finding, Not warranted 72 FR 4967-4997. 02/08/2007 Final Rule Designating the Western Great Lakes Populations of Gray Wolves as a Distinct Population Segment; Removing the Western Great Lakes Distinct Population Segment of the Gray Wolf From the List of Endangered and Threatened Wildlife Final Deferred date Final Delisting, Recovered Final Listing, Endangered 72 FR 6051-6103. 02/13/2007 90-Day Finding on a Petition To List the Jollyville Plateau Salamander as Endangered Notice of 90-day petition finding, Substantial 72 FR 6699-6703. 02/13/2007 90-Day Finding on a Petition To List the San Felipe Gambusia as Threatened or Endangered Notice of 90-day petition finding, Not substantial 72 FR 6703-6707. 02/14/2007 90-Day Finding on A Petition to List *Astragalus debequaeus* (DeBeque milkvetch) as Threatened or Endangered Notice 90-day petition finding, Not substantial 72 FR 6998-7005. 02/21/2007 90-Day Finding on a Petition To Reclassify the Utah Prairie Dog From Threatened to Endangered and Initiation of a 5-Year Review Notice of 5-year Review Initiation Notice of 90-day petition finding, Not substantial 72 FR 7843-7852. 03/08/2007 90-Day Finding on a Petition To List the Monongahela River Basin Population of the Longnose Sucker as Endangered Notice of 90-day petition finding, Not substantial 72 FR 10477-10480. 03/29/2007 Final Rule Designating the Greater Yellowstone Area Population of Grizzly Bears as a Distinct Population Segment; Removing the Yellowstone Distinct Population Segment of Grizzly Bears From the Federal List of Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List as Endangered the Yellowstone Distinct Population Segment of Grizzly Bears Final delisting, Recovered Final listing, Threatened 72 FR 14865-14938. 03/29/2007 90-Day Finding on a Petition To List the Siskiyou Mountains Salamander and Scott Bar Salamander as Threatened or Endangered Notice 90-day petition finding, Substantial 72 FR 14750-14759. 04/24/2007 Revised 12-Month Finding for Upper Missouri River Distinct Population Segment of Fluvial Arctic Grayling Notice of 12-month petition finding, Not warranted 72 FR 20305-20314. 05/02/2007 12-Month Finding on a Petition to List the Sand Mountain Blue Butterfly ( *Euphilotes pallescens* ssp. *arenamontana* ) as Threatened or Endangered with Critical Habitat Notice of 12-month petition finding, Not warranted 72 FR 24253-24263. 05/30/2007 90-Day Finding on a Petition To List the Mt. Charleston Blue Butterfly as Threatened or Endangered Notice of 90-day petition finding, Substantial 72 FR 29933-29941. 06/05/2007 Initiation of 12-Month Status Review and Request for Information on the Wolverine Initiation of status review 72 FR 31048-31049. 06/06/2007 90-Day Finding on a Petition to List the Yellow-billed Loon as Threatened or Endangered Notice of 90-day petition finding, Substantial 72 FR 31256-31264. 06/13/2007 12-Month Finding on a Petition to List the Colorado River Cutthroat Trout as Threatened or Endangered Notice of 12-month petition finding, Not warranted 72 FR 32589-32605. 06/25/2007 Amended 12-Month Finding on a Petition to List the Sierra Nevada Distinct Population Segment of the Mountain Yellow-Legged Frog as Threatened or Endangered Notice of amended 12-month petition finding, Warranted but precluded 72 FR 34657-34661. 07/05/2007 12-Month Finding on a Petition to List the Casey's June Beetle as Endangered with Critical Habitat Notice of 12-month petition finding, Warranted but precluded 72 FR 36635-36646. 08/15/2007 90-Day Finding on a Petition to List the Yellowstone National Bison Herd as Endangered Notice of 90-day petition finding, Not-substantial 72 FR 45717-45722. 08/16/2007 90-Day Finding on a Petition to List *Astragalus anserinus* (Goose Creek milk-vetch) as Threatened or Endangered Notice of 90-day petition finding, Substantial 72 FR 46023-46030. Our expeditious progress also includes work on listing actions (listed below) for 40 species that have not been completed as of the date we made this 12-month finding for *Sclerocactus brevispinus.* We are working on the actions in the top section of the table under a deadline set by a court, and on all other actions to meet statutory timelines (required under the Act). Listing Actions Funded But Not Yet Completed in FY 2007 Species Action Actions Subject to Court Order/Settlement Agreement Wolverine 12-month petition finding (remand). Western sage grouse 90-day petition finding (remand). Queen Charlotte goshawk Final listing determination. Rio Grande cutthroat trout 12-month petition finding (remand). Statutory Listing Actions Polar bear Final listing determination. Ozark chinquapin 90-day petition finding. Kokanee 90-day petition finding. Utah prairie dog 90-day petition finding. Black-footed albatross 90-day petition finding. Tucson shovel-nosed snake 90-day petition finding. Gopher tortoise—Florida population 90-day petition finding. Sacramento valley tiger beetle 90-day petition finding. Eagle lake trout 90-day petition finding. Smooth billed ani 90-day petition finding. Mojave ground squirrel 90-day petition finding. Gopher Tortoise—eastern population 90-day petition finding. Bay Springs salamander 90-day petition finding. Tehachapi slender salamander 90-day petition finding. Coaster brook trout 90-day petition finding. Mojave fringe-toed lizard 90-day petition finding. Evening primrose 90-day petition finding. Palm Springs pocket mouse 90-day petition finding. Northern leopard frog 90-day petition finding. Mountain whitefish—Big Lost River population 90-day petition finding. Giant Palouse earthworm 90-day petition finding. Shrike, Island loggerhead 90-day petition finding. Cactus ferruginous pygmy owl 90-day petition finding. High Priority 2 Oahu plants Proposed listing. 7 Kauai plants Proposed listing. 4 Hawaiian damselflies Proposed listing. We have endeavored to make our listing actions as efficient and timely as possible, given the requirements of the relevant laws and regulations, and constraints relating to workload and personnel. We are continually considering ways to streamline processes or achieve economies of scale, such as by batching related actions together. Given our limited budget for implementing section 4 of the Act, the actions described above collectively constitute expeditious progress. Conclusion We will list *Sclerocactus brevispinus* as threatened or endangered when funding is available for discretionary listing actions. We intend any listing action for *Sclerocactus brevispinus* to be as accurate as possible. Therefore, we will continue to accept additional information and comments on the status of and threats to this species from all concerned governmental agencies, the scientific community, industry, or any other interested party concerning this finding. If an emergency situation develops with this species that warrants an emergency listing, we will act immediately to provide additional protection. References Cited A complete list of all references cited is available upon request from the Supervisor at the U.S. Fish and Wildlife Service, Utah Field Office (see ADDRESSES ). Author The primary author of this document is Larry England of the Utah Field Office (see ADDRESSES ). List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation of Taxonomic Change Proposed Regulation Promulgation Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted. 2. Amend § 17.12(h) by revising the entry for “ *Sclerocactus glaucus* ” and by adding entries for “ *Sclerocactus brevispinus* ” and “ *Sclerocactus wetlandicus,* ” in alphabetical order under FLOWERING PLANTS, to the List of Threatened and Endangered Plants, to read as follows: § 17.12 Endangered and threatened plants.

(h)* * * Species Scientific name Common name Historic range Family Status When listed Critical habitat Special rules **FLOWERING PLANTS** * * * * * * * *Sclerocactus brevispinus* Pariette cactus U.S.A.

(UT)Cactaceae T 59 NA NA *Sclerocactus glaucus* Colorado hookless cactus U.S.A.

(CO)Cactaceae T 59 NA NA * * * * * * * *Sclerocactus wetlandicus* Uinta Basin hookless cactus U.S.A.

(UT)Cactaceae T 59 NA NA * * * * * * * Dated: August 31, 2007. Kenneth Stansell, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. E7-18195 Filed 9-17-07; 8:45 am] BILLING CODE 4310-55-P 72 180 Tuesday, September 18, 2007 Notices DEPARTMENT OF AGRICULTURE Forest Service Camp Four Vegetation Project AGENCY: Forest Service, USDA. ACTION: Notice of intent to prepare an environmental impact statement. SUMMARY: The USDA Forest Service, Chequamegon-Nicolet National Forest, Medford-Park Falls Ranger District intends to prepare an environmental impact statement

(EIS)to document the analysis and disclose the environmental effects of proposed land management activities, and corresponding alternatives within the Camp Four project area. The primary purpose of this proposal is to implement activities consistent with direction in the Chequamegon-Nicolet National Forests Land and Resource Management Plan (Forest Plan) and respond to specific needs identified in the project area. The project area is located on National Forest System land in the north central portion of the Park Falls landbase of the Medford-Park Falls Ranger District, approximately 9 miles east of Park Falls, Wisconsin. The legal description for the area is: Township 40 North, Range 2 East, sections 1-3, 9-17, 19-28, 35; Township 40 North, Range 3 East, sections 4, 6, 8-10, 16-20, 29; 4th Principal Meridian. DATES: Comments concerning the scope of the analysis must be received within 30 days of publication of this notice to receive timely consideration in the preparation of the draft EIS. ADDRESSES: Send written comments to Jeanne Higgins, c/o Ann Hoefferle, Medford-Park Falls Ranger District, 850 N. 8th St., Medford, Wisconsin 54451. Send electronic comments to: *ahoefferle@fs.fed.us* with a subject line that reads “Camp Four Project.” FOR FURTHER INFORMATION CONTACT: Ann Hoefferle, Camp Four Interdisciplinary Team Leader, Medford-Park Falls Ranger District, Chequamegon-Nicolet National Forest, USDA Forest Service: Telephone 715-748-4875 (or TTY: 711, National Relay System), e-mail *ahoefferle@fs.fed.us.* To mail correspondence to Ann Hoefferle, see information in ADDRESSES . Copies of documents may be obtained at the same address. Another means of obtaining information is to visit the Forest Web site at: *http://www.fs.fed.us/r9/cnnf/natres/index.html.* SUPPLEMENTARY INFORMATION: The information presented in this notice is included to help the reviewer determine if they are interested in or potentially affected by this proposed project. The information presented in this notice is summarized. Those who wish to comment on this proposal or are otherwise interested in or potentially affected by it are encouraged to review more detailed documents such as the Proposed Action for the Camp Four Project (currently available for review) and the draft EIS. See the preceding section of this notice for the person to contact for more detailed information about this project. Project Background The Camp Four project falls within the area defined in the Chequamegon-Nicolet National Forests 2004 Land and Resource Management Plan (Forest Plan) as Management Area

(MA)4A and 8D. Vegetation management in MA 4A is towards coniferous, mixed coniferous-hardwood and aspen forests. Natural and plantation conifer stands are most prevalent, but both hardwood and aspen are well represented in the landscape. MA 8D is characterized by free-flowing rivers and associated corridors in a natural condition identified for special management on federal or state level. This management area provides habitat for riparian-dependant fish and wildlife species, area for recreational activities, and wildlife viewing opportunities. Two segments of the South Fork of the Flambeau River that are included in the project area are eligible national scenic and recreation river segments. Forest Plan guidance for MA 4A includes species distribution of the aspen, balsam fir, paper birch, jack pine, red and white pine, northern hardwoods, and oak to be within a certain percentage range in order to maintain and develop a desired landscape dominated by coniferous, mixed coniferous-hardwood and aspen forests. This landscape composition would in turn benefit wildlife by providing a winter food source and thermal cover for species such as northern saw-whet owl, brown creeper, black pole warbler, chipping sparrow, pine warbler and red breasted nuthatch that are often associated with coniferous and mixed conifer-hardwood forests. Currently, the species distribution within MA 4A in the project area has more aspen than desired to meet management area objectives. Additionally, the Forest Plan recommends that certain percentages of the aspen, paper birch and jack pine be within certain age categories in order to maintain the type and provide a variety of wildlife habitat. Currently, aspen and paper birch age classes are overrepresented in the older age classes, while the younger age classes are deficit, or moving towards a deficit condition. Forest Plan guidance for vegetation within MA 8D includes treatment for the purposes of restoring or enhancing fish and wildlife habitat and visual quality. Vegetation management will be designed to create a large-tree character, and species composition that favors long-lived, large diameter trees. There are opportunities along the South Fork of the Flambeau River corridor (MA 8D) to convert mature aspen stands to long-lived tree species and maintain the health and vigor of existing red pine stands. Purpose and Need for Action The primary purpose of the Camp Four proposal is to implement activities consistent with direction in the Forest Plan and to respond to specific needs identified in the project area. The primary project-specific needs are to address maintenance of forest health and tree vigor, develop a desired landscape species distribution and adjust the age class distribution for aspen, paper birch and jack pine to the desired range within MA 4A and 8D, as identified in the Forest Plan. An associated need is to provide a safe and efficient transportation system within the project area. Proposed Action To meet the need of maintaining a healthy forest and tree vigor, proposed land management activities (proposed actions) include thinning red pine plantations on approximately 1,700 acres and treating approximately 800 acres of mixed northern hardwoods through thinning and selection harvest. To meet the desired need of developing a landscape species distribution that is dominated by conifer and coniferous hardwood and aspen forests, the following activities are proposed: Convert mature aspen through shelterwood harvest and underplanting white pine on approximately 900 acres, remove jack pine and aspen overstory on approximately 100 acres to promote the advanced regeneration of the hardwood in the understory and reforest approximately 90 acres of mixed pine species and oak within large openings in abandoned hayfields. To adjust age class distribution of aspen, paper birch and jack pine within the project area to the appropriate and desired range, the following activities are proposed: Clearcut regeneration harvest on about 190 acres of mature aspen, paper birch, jack pine and white spruce and shelterwood paper birch on approximately 65 acres. To provide a safe and efficient transportation system, the following road projects within the area are proposed: Approximately one mile of temporary road construction, one mile of permanent road construction and two miles of road reconstruction are needed to accomplish harvest activities. Temporary logging roads are roads that would be decommissioned and re-vegetated following project completion. In addition, approximately 24 miles of existing road within the project area, some of which would be utilized for the harvest activity, will be decomissioned and revegetated. These roads were identified as no longer needed for management activities and many are not Forest System roads. Most were probably utilized for past harvest activity, but since they would not be needed again for many years (20-40), they will be dropped from our road inventory following decommissioning activity. Approximately eight miles of existing road will be closed. These roads are needed to meet future access needs but were identified for closure to all motorized use, except for administrative purposes, due to resource conflicts and public safety. Roads will be closed using gates, rock or berm barriers. Preliminary Issues Included with the proposal and any action alternatives to the proposal will be the implementation of the Forest Plan standards and guides as they apply to this project. Plan standards and guides are detailed information on how the activities will be carried out or implemented and address potential impacts to brook trout habitat, heritage resources, forest age structure as it relates to forest health, wildlife species (spruce grouse, wolf, bald eagle, etc.), water, wetlands, and soils, and some potential economic and social impacts (such as visual quality, recreation). These standards and guidelines have been considered and incorporated into the proposed action. The incorporation of the Plan standards and guides is intended to reduce or eliminate potential adverse effects of the activities that may result from the proposed action. Given the inclusion of the Plan standards and guides in the development of the proposed action, the following preliminary issue was identified: Potential effects on nesting habitat for the Northern goshawk, a Regional Forester Sensitive Species (RFSS). There are several probable Northern goshawk nests within the project area and while the Forest Plan has standards and guides that minimize direct disturbance to this species' known nesting habitat, disturbance to potential nesting habitat at this time is unknown. At a minimum, this species will be evaluated to determine impacts (if any) to habitat and any subsequent impact to population viability. Possible Alternatives Alternatives to the proposed action that are currently being considered for display in the draft EIS are as follows: The required No Action alternative and the proposed action alternative. Nature of the Decision To Be Made The primary decision will be whether or not to implement the proposed projects or alternatives of the projects within the project area. The decision may also include additional resource protection measures, monitoring, and whether Forest Plan amendments are needed to implement the decision. Responsible Official Jeanne Higgins, Forest Supervisor, Chequamegon-Nicolet National Forest, 1170 4th Avenue South, Park Falls, WI 54552. Comment Requested This notice of intent initiates the scoping process which guides the development of the EIS. Comments in response to this solicitation for information should focus on

(1)The proposal;

(2)issues or impacts from the proposal; and

(3)possible alternatives for addressing issues associated with the proposal. We are especially interested in information that might identify a specific undesired result of implementing the proposed actions. Comments received in response to this solicitation and subsequent solicitations, including names and addresses of those who comment, will be considered part of the public record and will be available for public inspection. Comments submitted anonymously will be accepted and considered; however, those who submit anonymous comments will not have standing to appeal the subsequent decision under 36 CFR part 215. See the section titled ADDRESSES in this notice for location of where to send comments. Estimated Dates for Filing The draft EIS is expected to be filed with the Environmental Protection Agency and be available for public review in February 2008. A 45-day comment period will follow publication of a Notice of Availability of the draft EIS in the **Federal Register** . Comments received on the draft EIS will be used in preparation of a final EIS. We expect to file the notice of the availability of the final EIS and Record of Decision

(ROD)in the **Federal Register** in June 2008. *Early Notice of the Importance of Public Participation in Subsequent Environmental Review:* 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 the draft EIS 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 EIS stage but that are not raised until after completion of the final EIS may be waived or dismissed by the courts. *City of Angoon* v. *Hodel* , 803 F.2d 1016, 1022 (9th Cir. 1986) and *Wisconsin Heritages, Inc.* v. *Harris* , 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the 45-day comment period so that 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 EIS. To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft EIS should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft EIS. Comments may also address the adequacy of the draft EIS or the merits of the alternatives formulated and discussed in the draft EIS. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points. (Authority: 40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, section 21). Dated: September 7, 2007. Jeanne Higgins, Forest Supervisor. [FR Doc. E7-18341 Filed 9-17-07; 8:45 am] BILLING CODE 3410-11-P DEPARTMENT OF AGRICULTURE Forest Service Request for Proposals for Woody Biomass Utilization Grant—Forest Restoration Activities on National Forest System Lands AGENCY: Forest Service, USDA. ACTION: Request for proposals. SUMMARY: The USDA Forest Service, State and Private Forestry, Technology Marketing Unit, located at the Forest Products Laboratory, requests proposals for forest product projects that increase the use of woody biomass from National Forest System lands. The woody biomass utilization grant program is intended to help improve forest restoration activities by using and creating markets for small-diameter material and low-valued trees removed from forest restoration activities, such as reducing hazardous fuels, handling insect and diseased conditions, or treating forestlands impacted by catastrophic weather events. These funds are targeted to help communities, entrepreneurs, and others turn residues from forest restoration activities into marketable forest products and/or energy products. DATES: *Pre-application Deadline:* Close of business November 2, 2007. *Full application Deadline:* Close of business February 1, 2008. ADDRESSES: All pre- and full-application packages must be sent to the following address: ATTN: Patricia Brumm, Grants and Agreements Specialist, Forest Products Laboratory, One Gifford Pinchot Drive, Madison, WI 53726-2398. Detailed information regarding what to include in the pre- and full-application, definitions of terms, eligibility and federal restrictions are available at *http://www.fpl.fs.fed.us/tmu* (under Woody Biomass Grants), and at *http://www.grants.gov.* Paper copies of the information are also available by contacting the USDA Forest Service, S&PF Technology Marketing Unit, One Gifford Pinchot Drive, Madison, WI 53726-2398. FOR FURTHER INFORMATION CONTACT: For questions regarding the grant application or administrative regulations, contact Patricia Brumm, Grants and Agreements Specialist,

(608)231-9298, *pbrumm@fs.fed.us;* for program and technical questions, contact Susan LeVan, Program Manager,

(608)231-9504, *slevan@fs.fed.us.* Individuals who use telecommunication devices for the deaf

(TDD)may call the Federal Information Relay Service

(FIRS)at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. SUPPLEMENTARY INFORMATION: To meet the shared goals of Public Law 109-58, the Energy Policy Act of 2005, and the anticipated Public Law governing the Department of the Interior, Environment, and Related Agencies Appropriate Act of 2008, the agency is requesting proposals to address the nationwide challenge in dealing with low-valued material removed from hazardous fuel reduction activities, restoration of insect and diseased conditions or catastrophic weather events. The Woody Biomass Utilization Grant Program has a pre-application submission process, and upon notification, selected pre-applicants will be asked to submit a full application. Goals of the grant program are the following: • Help reduce forest management costs by increasing value of biomass and other forest products generated from forest restoration activities. • Create incentives and/or reduce business risk for increased use of biomass from national forestlands (must include National Forest System lands, however, may also include other lands such as, BLM, Tribal, State, local, and private). • Institute projects that target and help remove economic and market barriers to using small-diameter trees and woody biomass. • Help generate renewable energy from woody. • Build industry infrastructure around national forestlands where no or limited industry infrastructure exists. • Require a Forest Service letter of support for the woody biomass grant project on National Forest System lands. Woody Biomass Grants Program 1. Eligibility Information a. Eligible Applicants. Eligible applicants are State, local, and Tribal governments, school districts, communities, non-profit organizations, businesses, companies, corporations, or special purpose districts, e.g., public utilities districts, fire districts, conservation districts, or ports. Only one application per business or organization will be accepted. If applicants have received a Woody Biomass Utilization Grant within the last three years, they are not eligible. Construction projects involving a permanent building or infrastructure item, such as roads, are not allowed with federal funds; however construction funds can be part of the non-federal cost share. For Alaska, only applicants on the Seward Ranger District on the Chugach National Forest are eligible to apply for this grant. Cordova and Glacier Ranger Districts on the Chugach are not eligible. Ranger Districts on the Tongass National Forest are not eligible. b. Cost Sharing (Matching Requirement). Applicants must demonstrate at least a 20% match of the total project cost. This match must be from non-Federal sources, which can include cash or in-kind contributions. 2. Duns Number All applicants must include a Dun and Bradstreet (D&B), Data Universal Numbering System

(DUNS)number in their full application. For the purpose of this requirement, the applicant is the entity that meets the eligibility criteria and has the legal authority to apply for an award. For assistance in obtaining a DUNS number at no cost, call the DUNS number request line (1-866-705-5711) or register on-line at *http://fedgov.dnb.com/webform.* By submission of an application, the applicant acknowledges the requirement that prospective awardees shall be registered in the Central Contractor Registration

(CCR)database prior to award, during performance, and through final payment of any grant resulting from this solicitation. Further information can be found at *http://www.ccr.gov.* For assistance, contact the CCR Assistance Center (1-888-227-2423). 3. Award Information At least $4 million are available for granting under this program. Individual grants will not be less than $50,000 or more than $250,000. Funds are presently not available for this grant program. The Government's obligation under this program is contingent upon the availability of 2008 appropriated funds from which payment for grant purposes can be made. No legal liability on the part of the Government for any payment may arise until funds are made available to the Grants Officer for this program, and until the Cooperator receives notice of such availability, to be confirmed in writing by the Grants Officer. Successful applicants will be announced by March 14, 2008. The maximum length of the award is 3 years from the date of award. Written annual financial performance reports and semi-annual project performance reports shall be required. Applicants should be aware that the grant funds are regarded as taxable income and a form 1099 will be send by the Forest Service to the IRS. Awardees are expected to follow all OSHA requirements regarding safe working practices. 4. Application Review Process A two-step technical evaluation process is used for applications submitted under this solicitation. The first step requires the applicant to submit a preliminary application (pre-application). Pre-applications are evaluated on the evaluation criteria discussed in Section 5. A review panel of technical experts from Federal agencies judges the pre-applications. Panel members independently review the pre-applications according to the evaluation criteria and point system. A total of 100 points is possible. As a result of this preliminary review, successful pre-applications are invited to submit a full-application package. Unsuccessful pre-applicants are removed from further consideration for funding under this solicitation. In either case, a letter of notification is provided to each applicant. The second step requires the applicant to submit a full-application package, which is evaluated based on the same evaluation criteria as the preliminary application. The full-application package is evaluated for technical and financial feasibility. The reviewers discuss, rank, and make recommendations to Executive Steering Committee of Senior Federal officials. 5. Evaluation Criteria and Point System a. Impact on National Forest System Lands Forest Restoration Activities: Total Points 40 • Condition of the forestlands proposed for the project, such as Fire Regime Condition Class ( *http://www.frcc.gov* ), insect and disease risk conditions, or degraded forestlands due to catastrophic weather events. • Direct, tangible benefits with and without the grant (e.g., increased acres treated from forest restoration activities, increased value of raw material removed from forest restoration activities, and reduced Forest Service's cost per acre.) • Indirect, intangible benefit (such as air quality benefits, water quality benefits, socio-economic impacts, wildlife habitat, and watershed improvements). • Opportunities created for using woody biomass material around National Forest System lands in locations where no or limited industry capacity exists. b. Technical Approach Work Plan: Total Points 25 • Technical feasibility of the proposed work. • Adequacy and completeness of the proposed tasks. • Likelihood of meeting project objectives. • Timeliness and reasonableness of time schedule. • Identified deliverables/tasks. • Evaluation and monitoring plan. c. Financial feasibility: Total Points 25 • Realistic budget and timeframe. • Thorough financial documentation (see description of required documentation under financial feasibility, Section 7.c.) • Level of matching funds for the grant. d. Qualifications and Experience of Applicant: Total Points 10 • Experience, capabilities (technical and managerial). • Demonstrated capacity. If there are no technical or financial problems for the project, and there is significant impact on reducing the Forest Service's cost per acre, full points are given. If there are minor deficiencies, which could limit success, midway points are given. If there are major deficiencies, which could render the project unsuccessful, minimum points are given. Further scoring criteria can be found at *http://www.fpl.fs.fed.us/tmu* (under Woody Biomass Grants) and at *http://www.grants.gov.* Full-application packages that do not submit ALL required financial information will be disqualified. 6. Pre-Application Information a. Pre-Application Submission. Pre-applications are required. Specific content and submission requirements for the pre-application are as follows: Each submittal must be composed of two paper copies (single-sided) of the pre-application and one original copy. All proposals for the pre-application must be on 8.5 by 11-inch plain white paper with a minimum font size of 11 letters per inch. Top, bottom, and side margins must be no less than three-quarters of an inch. All pages must be clearly numbered. The paper copies of the application package should be stapled with a single staple at the upper left-hand corner. Do not staple the original. b. Pre-Application Content. SF 424 and 424A shall be submitted with the application for consideration ( *http://www.grants.gov* ). Assemble information in the following order: cover page, SF 424, SF 424A, project summary, project narrative, budget justification narrative, budget, and appendices. The project narrative consists of statement of need, project coordinator(s) and partner(s), goals and objectives, technical approach work plan, impact on national forest system forest restoration treatments, and evaluation and monitoring plan. The project narrative should provide a clear description of the work to be performed and its impact on National Forest System lands. It should address the technical approach work plan under criteria 2 in section 5. The project narrative is limited to 5 pages, and excludes cover page, budget justification, budget, or appendices. c. The discussion of the impact on National Forest System lands is a critical component because these proposals are aimed at helping the Forest Service increase the number of acres treated and decrease the cost per acre for those National Forest System lands that are at risk due to hazardous fuel buildup, insects and diseases, or catastrophic weather events. Applicants should describe qualitatively and quantitatively how the project would decrease Forest Service treatment costs and/or increase the price one might offer for the woody biomass. Specifically, proposals should address the following: • Condition of the forest or grassland, such as providing the Fire Regime Condition Class ( *http://www.frcc.gov* ), the insect and disease risk, or any catastrophic weather events and the consequences of the national forest system not being able to do treatments because of the cost. • Forest Service's current practices of handling material removed from forest restoration activities. • What would be done with this material if grant is awarded? • Anticipated outcomes and measures of success. • Documentation of costs and benefits of project as a result of the award (see project feasibility discussion at *http://www.fpl.fs.fed.us/tmu* under Woody Biomass Grants or at *http://www.grants.gov.* • Documentation of intangible benefits. Examples of tangible and intangible benefits are listed on the Technology Marketing Unit's Web site at *http://www.fpl.fs.fed.us/tmu* (under Woody Biomass Grants) or at *http://www.grants.gov.* • Long-Term Benefits of Project: Applicant should address the length of time the benefits and impacts are anticipated (e.g., project will have long-term consequences, such as equipment improvements, or a one-time benefit, such as a subsidy.) • Expansion capability: Does the project have the potential to expand the application to additional forest treatment areas or to create higher valued uses? A full description of each content item may be obtained from the Technology Marketing Unit's Web site at *http://www.fpl.fs.fed.us/tmu* (under Woody Biomass Grants) or at *http://www.grants.gov,* or by calling the telephone number in the FOR FURTHER INFORMATION CONTACT section, or by writing to the address in the ADDRESSES section of this notice. b. Pre-Application Delivery. Pre-applications must be postmarked by November 2, 2007 and received no later than 5 p.m. Central Standard Time on November 9, 2007, by Patricia Brumm at the Forest Products Laboratory. Hand-delivered or fax applications will not be accepted. E-mail applications should be submitted through *http://www.grants.gov.* No exceptions allowed. Please send pre-applications to the address listed in the ADDRESSES section of this notice. 7. Full-Application Information USDA Forest Service will request full applications only from those applicants selected in the pre-application process. a. Full-Application Submission. Specific content and submission requirements for the full application are as follows: Each submittal must be composed of two paper copies (single-sided) of the pre-application and one original copy. All proposals for the full-application must be on 8.5 by 11-inch plain white paper with a minimum font size of 11 letters per inch. Top, bottom, and side margins must be no less than three-quarters of an inch. All pages must be clearly numbered. The paper copies of the application package should be stapled with a single staple at the upper left-hand corner. Do not staple the original. Other bindings will not be accepted. b. Full-Application Content. SF 424 and 424A shall be submitted with the application for consideration. Assemble information in the following order: Cover page, SF 424, SF424A, project summary, project narrative, budget justification narrative, budget, financial feasibility, and appendices. The project narrative consists of statement of need, project coordinator(s) and partner(s), goals and objectives, technical approach work plan, impact on national forest system forest restoration activities, environmental documentation, project work plan and timeline, social impacts, evaluation and monitoring plan, and equipment description. The project narrative should provide a clear description of the work to be performed, how it will be accomplished, and its impact on National Forest System lands. It should address the technical approach work plan under criteria 2 listed in section 5. The project narrative is limited to a total of 10 pages and excludes cover page, budget justification, budget, appendices and financial documentation. c. Detailed Financial Information. Detailed financial information is requested to assess the potential and the capability of the applicant. All financial information remains confidential and is not accessible under the Freedom of Information Act. If the applicant has questions about how confidential information is handled they should contact Patricia Brumm at *pbrumm@fs.fed.us.* The financial information should provide a general overview of historical and projected (pro forma) financial performance. Standard accounting principles should be used for developing the required financial information. Strong applications have benefited from the use of a certified accountant to develop this information. Applicants should refer to the Technology Marketing Unit's Web site at *http://www.fpl.fs.fed.us/tmu* (under Woody Biomass Grants) or at *http://www.grants.gov* for the financial information requirements, as well as Web sites for standard financial templates. d. Full-Application Delivery. Full applications must be postmarked by February 1, 2008, and received no later than 5 p.m. Central Standard Time on February 8, 2008, by Patricia Brumm at the Forest Products Laboratory. Hand-delivered or fax applications will not be accepted. E-mail applications should be submitted through *http://www.grants.gov.* No exceptions allowed. Please send full applications to the address listed in the ADDRESSES section of this notice. 8. Appendices The following information must be included in the appendix of the pre-application and the full application package: a. Letter of Support and Biomass Availability From Local USDA Forest Service District Ranger or Forest Supervisor Is Required: This letter must describe the status of National Environmental Policy Act (NEPA), acres, timeframes, available volumes, and opportunities for applicant to access these volumes. These letters shall be submitted with both the pre-application and full-application. b. Letters of Support from Partners, Individuals, or Organizations: Letters of support should be included in an appendix and are intended to display the degree of collaboration occurring between the different entities engaged in the project. These letters must include commitments of cash or in-kind services from all partners and must support the amounts listed in the budget. Each letter of support is limited to one page in length. c. Key Personnel Qualifications: Qualifications of the project manager and key personnel should be included in an appendix. Qualifications are limited to two pages in length and should contain the following: Resume, biographical sketch, references, and demonstrated ability to manage the grant. Dated: September 13, 2007. Robin L. Thompson, Associate Deputy Chief, State and Private Forestry. [FR Doc. E7-18380 Filed 9-17-07; 8:45 am] BILLING CODE 3410-11-P DEPARTMENT OF COMMERCE Economic Development Administration Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance AGENCY: Economic Development Administration, Department of Commerce. ACTION: Notice and opportunity for public comment. Pursuant to Section 251 of the Trade Act of 1974 (19 U.S.C. 2341, *et seq.* ), the Economic Development Administration

(EDA)has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. EDA has initiated separate investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each firm contributed importantly to the total or partial separation of the firm's workers, or threat thereof, and to a decrease in sales or production of each petitioning firm. List of Petitions Received by EDA for Certification of Eligibility To Apply for Trade Adjustment Assistance for the Period: 8/21/2007-9/11/2007. Firm Address Date accepted for filing Products Viking Plastics 1 Viking Street, Cory, PA 16407 8/22/2007 Molded and assembled products for use in the HVAC and automotive Industries. Keystone Powdered Metal Company 251 State Street, St. Marys, PA 15857 8/30/2007 Powdered metal products. NRL & Associates, Inc 112 Log Canoe Circle, Stevensville, MD 21666 8/28/2007 Parts engineered from all types of metals & plastics, used in microwave, medical device, amusements & commercial markets. Bicron Electronics Company 5 Barlow Street, Canaan, CT 06018 9/5/2007 Solenoid, transformers, and electronic assemblies. Acme Machine Works, Inc 20001 E. Paisano Drive, El Paso, TX 79905 9/5/2007 Bolts and mechanical fasteners. L&M Precision Fabrication, Inc 13026 W. McFarlane #I-4, Airway, WA 99001 8/27/2007 Cabinets, panels and bases for electronic and electrical control apparatus. Cheetah Chassis Corporation 225 Lincoln Highway, Fairless Hills, PA 19030 9/11/2007 Container chassis which include intermodal container chassis, custom chassis and specialized flatbed trailers. Dickten Masch Plastics, LLC N44 W3341 Waterown Plank Road, Nashtoah, WI 53058 9/11/2007 Thermoplastic and thermoset products. Estee Mold & Die, Inc 1467 Stanley Ave., Dayton, OH 45404 9/11/2007 Molds for plastic, rubber and composite parts. Presair, LLC 1009 West Boston Road, Mamaroneck, NY 10543 9/5/2007 Pressure and vacuum switches. Conley Corporation 2795 E 91st St., Tulsa, OK 74137 8/27/2007 Non-corrosive plastic pipe. Kirkwood Metal Services, LLC 3153 N. Lewis Avenue, Tulsa, OK 74110 8/27/2007 Heavy steel tanks. Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Office of Performance Evaluation, Room 7009, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten

(10)calendar days following publication of this notice. Please follow the procedures set forth in Section 315.9 of EDA's final rule (71 FR 56704) for procedures for requesting a public hearing. The Catalog of Federal Domestic Assistance official program number and title of the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance. Dated: September 11, 2007. William P. Kittredge, Program Officer for TAA. [FR Doc. E7-18330 Filed 9-17-07; 8:45 am] BILLING CODE 3510-24-P DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Order No. 1524] Expansion of Foreign-Trade Zone 15, Kansas City, Missouri, Area Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board adopts the following Order: *Whereas* , the Greater Kansas City Foreign Trade Zone, Inc., grantee of Foreign-Trade Zone 15, submitted an application to the Board for authority to expand FTZ 15 to include three additional sites (Sites 10-12) in the Kansas City, Missouri, area, to restore six acres to Site 8, to establish temporary Site 8T as permanent in Chillicothe, and to delete acreage from Site 7 located in Kansas City, adjacent to the Kansas City Customs and Border Protection port of entry (FTZ Docket 47-2006; filed 12/14/06); *Whereas* , notice inviting public comment was given in the **Federal Register** (71 FR 77369, 12/26/06), and the application has been processed pursuant to the FTZ Act and the Board's regulations; and, *Whereas* , the Board adopts the findings and recommendations of the examiner's report, and finds that the requirements of the FTZ Act and Board's regulations are satisfied, and that the proposal is in the public interest; *Now, therefore* , the Board hereby orders: The application to expand FTZ 15 is approved, subject to the Act and the Board's regulations, including Section 400.28, and to the Board's standard 2,000-acre activation limit for the overall general-purpose zone project, and further subject to a sunset provision that would terminate authority on September 30, 2012, for any of the proposed sites (Sites 10-12) where no activity has occurred under FTZ procedures before that date. Signed at Washington, DC, this 7th day of September 2007. David M. Spooner, Assistant Secretary of Commerce for Import Administration, Alternate Chairman, Foreign-Trade Zones Board. Attest: Andrew McGilvray, Executive Secretary. [FR Doc. E7-18370 Filed 9-17-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Order No. 1525] Approval of Request For Manufacturing Authority Within Foreign-Trade Zone 52, Ronkonkoma, New York, TKD Industries, Inc. (Cosmetic Kits) Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order: *Whereas* , the Town of Islip, operator of Foreign-Trade Zone

(FTZ)52, has requested authority under Section 400.32(b)(2) of the Board's regulations on behalf of TKD Industries, Inc., to conduct cosmetic kit manufacturing/kitting under zone procedures within FTZ 52 in Ronkonkoma, New York (FTZ Docket 33-2006, filed 8/10/06); *Whereas* , notice inviting public comment has been given in the **Federal Register** (71 FR 48910, 8/22/06); and, *Whereas* , the Board adopts the findings and recommendations of the examiner's report, and finds that the requirements of the FTZ Act and the Board's regulations are satisfied, and that approval of the application is in the public interest; Now, therefore, the Board hereby grants authority for the manufacture/kitting of cosmetic kits within FTZ 52, as described in the application and the **Federal Register** notice, subject to the FTZ Act and the Board's regulations, including Section 400.28. Signed at Washington, DC, this 7th day of September 2007. David M. Spooner, Assistant Secretary of Commerce for Import Administration, Alternate Chairman, Foreign-Trade Zones Board. Attest: Andrew McGilvray, Executive Secretary. [FR Doc. E7-18369 Filed 9-17-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE National Institute of Standards and Technology Notice of U.S. National Work Group Meeting for Hydrogen Measurement Standards AGENCY: National Institute of Standards and Technology, Commerce. ACTION: Notice of a meeting for the U.S. National Work Group for Hydrogen Measurement Standards, October 2007. SUMMARY: The National Institute of Standards and Technology (NIST), Technology Services, Weights and Measures Division

(WMD)announces plans to hold a U.S. National Work Group Meeting (USNWG) for the development of hydrogen measurement standards for commercial equipment on October 3-4, 2007, from 9 a.m. to 5 p.m. DATES: October 3, 2007, to October 4, 2007. *Meeting Location and Registration:* The USNWG Meeting will be held at NIST, 100 Bureau Drive, Gaithersburg, Maryland 20899. The Wednesday, October 3, meeting will be held in Building 101, Lecture Room B, and the Thursday, October 4, meeting in Building 101, Lecture Room A. Those unable to attend in person may participate via teleconference; please contact WMD for details. Written comments from stakeholders unable to attend or participate in these meeting dates must be received by Friday, September 28, 2007 and sent to the attention of Ms. Juana Williams. On-line registration at *http://www.nist.gov/public_affairs/confpage/conflist.htm* closes Wednesday, September 26, 2007; after this date, contact Ms. Angela Ellis, NIST Conference Facilities, at 301-975-3881. SUPPLEMENTARY INFORMATION: As part of the NIST WMD mandate to “fix the standard of weights and measures” its staff and the USNWG will meet for the first in-person (and via audio conference) meeting to promote the development of legal metrology standards to facilitate the United States transition to a hydrogen economy. USNWG participants are technical experts working on existing related international and national standards activities, motor-fuel dispenser and component manufacturers and associated service industry, suppliers of motor-fuel products such as hydrogen, service station installers and operators, alternative fuel vehicle manufacturers, or regulatory officials enforcing legal controls over commercial devices. Establishment of these standards will ensure the selection and use of suitable, approved, and properly maintained equipment that provides accurate hydrogen measurement and sufficient valid transaction information to the buyer and seller. Historically, these standards are adopted by the states as the basis of uniform requirements used to regulate weighing and measuring devices and commodities sold on the basis of weight, measure, or count. The goal of NIST and the USNWG is to establish commercial hydrogen measurement standards that encompass:

(1)Device and related equipment codes,

(2)method of sale requirements,

(3)labeling requirements,

(4)quality standards,

(5)sampling procedures,

(6)inspection procedures,

(7)test equipment, and

(8)safety practices. These standards and related documents will be the basis for day-to-day commercial operations, training weights and measures regulatory officials and service companies, and educating consumers about hydrogen measurement. FOR FURTHER INFORMATION CONTACT: Juana Williams by mail at NIST, Weights and Measures Division, 100 Bureau Drive, Mail Stop 2600, Gaithersburg, MD 20899-2600; by e-mail at *juana.williams@nist.gov;* by telephone at 301-975-3989; or by fax at 301-975-8091. NIST is not open to the general public, and due to limited space, registration is required and should be completed by September 26, 2007. The USNWG meeting agenda will be available on September 6, 2007, to all registered participants and upon request by other interested parties by contacting the NIST WMD. Dated: September 11, 2007. James M. Turner, Acting Director. [FR Doc. E7-18368 Filed 9-17-07; 8:45 am] BILLING CODE 3510-13-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Availability of Seats for the Monterey Bay National Marine Sanctuary Advisory Council AGENCY: National Marine Sanctuary Program (NMSP), National Ocean Service (NOS), National Oceanic and Atmospheric Administration, Department of Commerce (DOC). ACTION: Notice and request for applications. SUMMARY: The Monterey Bay National Marine Sanctuary (MBNMS or Sanctuary) is seeking applicants for the following seats on its Sanctuary Advisory Council: Citizen At-Large, Diving, Education and Tourism. Applicants chosen for these seats should expect to serve until February 2011. A Business and Industry alternate is also being sought from a previous recruitment. This seat will expire in February 2010. Applicants are chosen based upon their particular expertise and experience in relation to the seat for which they are applying; community and professional affiliations; philosophy regarding the protection and management of marine resources; and possibly the length of residence in the area affected by the Sanctuary. DATES: Applications are due by October 26, 2007. ADDRESSES: Application kits may be obtained from Nicole Capps at the Monterey Bay National Marine Sanctuary, 299 Foam Street, Monterey, California 93940. Completed applications should be sent to the same address. FOR FURTHER INFORMATION CONTACT: Nicole Capps at

(831)647-4206, or *Nicole.Capps@noaa.gov.* SUPPLEMENTARY INFORMATION: The MBNMS Advisory Council was established in March 1994 to assure continued public participation in the management of the Sanctuary. Since its establishment, the Advisory Council has played a vital role in decisions affecting the Sanctuary along the central California coast. The Advisory Council's twenty voting members represent a variety of local user groups, as well as the general public, plus seven local, state and federal governmental jurisdictions. In addition, the respective managers or superintendents for the four California National Marine Sanctuaries (Channel Islands National Marine Sanctuary, Cordell Bank National Marine Sanctuary, Gulf of the Farallones National Marine Sanctuary and the Monterey Bay National Marine Sanctuary) and the Elkhorn Slough National Estuarine Research Reserve sit as non-voting members. Four working groups support the Advisory Council: The Research Activity Panel (“RAP”) chaired by the Research Representative, the Sanctuary Education Panel (“SEP”) chaired by the Education Representative, the Conservation Working Group (“CWG”) chaired by the Conservation Representative, and the Business and Tourism Activity Panel (“BTAP”) chaired by the Business/Industry Representative, each dealing with matters concerning research, education, conservation and human use. The working groups are composed of experts from the appropriate fields of interest and meet monthly, or bi-monthly, serving as invaluable advisors to the Advisory Council and the Sanctuary Superintendent. The Advisory Council represents the coordination link between the Sanctuary and the state and federal management agencies, user groups, researchers, educators, policy makers, and other various groups that help to focus efforts and attention on the central California coastal and marine ecosystems. The Advisory Council functions in an advisory capacity to the Sanctuary Superintendent and is instrumental in helping develop policies, program goals, and identify education, outreach, research, long-term monitoring, resource protection, and revenue enhancement priorities. The Advisory Council works in concert with the Sanctuary Superintendent by keeping him or her informed about issues of concern throughout the Sanctuary, offering recommendations on specific issues, and aiding the Superintendent in achieving the goals of the Sanctuary program within the context of California's marine programs and policies. Authority: 16 U.S.C. Sections 1431, *et seq.* (Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary Program) Dated: September 7, 2007. Daniel J. Basta, Director, National Marine Sanctuary Program, National Ocean Service, National Oceanic and Atmospheric Administration. [FR Doc. 07-4598 Filed 9-17-07; 8:45 am]

Connectionstraces to 28

Traces to 28 documents

CFR