Notices. Notice of final determination

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BILLING CODE 4910-9X-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018—AU77 Endangered and Threatened Wildlife and Plants; Prudency Determination for the Designation of Critical Habitat for Trichostema austromontanum ssp. compactum AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of final determination. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have reconsidered whether designating critical habitat for *Trichostema austromontanum* ssp. *compactum,* a plant, is prudent.

We listed this taxon as threatened under the Endangered Species Act of 1973, as amended (Act), in 1998; at that time, we determined that designation of critical habitat was not prudent, because designation would increase the degree of threat to the taxon and would not benefit the taxon. As a consequence of a settlement agreement, we withdrew our previous not-prudent determination, and agreed to reevaluate the prudency of designating critical habitat. However, based on our review and evaluation of the best scientific and commercial information available, we believe that designation of critical habitat continues to be not prudent for *T. a.* ssp. *compactum.* DATES:

This rule becomes effective on October 25, 2007. ADDRESSES: Comments and materials we receive, as well as supporting documentation used in the preparation of this determination, will be available for public inspection, by appointment, during normal business hours, at the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92011 (telephone 760-431-9440). The final determination will also be available via the Internet at *http://www.fws.gov/carlsbad.* FOR FURTHER INFORMATION CONTACT:

Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, telephone, 760-431-9440; facsimile, 760-431-9624. SUPPLEMENTARY INFORMATION: Background It is our intent to discuss only those topics directly relevant to the final prudency determination. For more information on biology, ecology, and taxonomy of *Trichostema austromontanum* ssp. *compactum,* refer to the final rule listing this taxon as threatened published in the **Federal Register** on September 14, 1998 (63 FR 49006), and the notice of proposed prudency determination for the designation of critical habitat for this taxon published in the **Federal Register** on September 26, 2006 (71 FR 56094).

Taxonomy and Description *Trichostema austromontanum* ssp. *compactum,* a member of the Lamiaceae (mint family), was described by F. Harlan Lewis (1945, pp. 275-303) based on specimens collected in 1941 by M. L. Hilend in Riverside County, California. The taxon occurs on the margins of a single vernal pool (Bauder 1999, p. 13; Fraga and Wall 2007, p. 11). *Trichostema austromontanum* ssp. *compactum* is a compact, soft-villous (with long, shaggy hairs) annual plant, approximately 4 inches (10 centimeters) tall, with short internodes (stem segments between leaves) (Lewis 1945, pp. 284-386, Lewis 1993, p. 732), elliptic leaves, and blue flowers in a five-lobed corolla.

The two stamens are blue. The fruit consists of four smooth, basally joined nutlets. This taxon flowers from July to November (Fraga and Wall 2007, pp. 2-5). Threats For a discussion of the threats to this species please refer to the final rule listing this taxon as threatened (September 14, 1998; 63 FR 49006), our July 28, 2006, 5-year review (available at *http://www.fws.gov/carlsbad* ), and the notice of proposed prudency determination for the designation of critical habitat for this taxon published in the **Federal Register** on September 26, 2006 (71 FR 56094).

Previous Federal Actions On September 13, 2004, the Center for Biological Diversity

(CBD)and California Native Plant Society

(CNPS)challenged our failure to designate critical habitat for this taxon and five other plant species ( *Center for Biological Diversity, et al.* v. *Gale Norton, Secretary of the Department of the Interior, et al.,* ED CV-04-1150 RT

(SGLx)C. D. California). The CBD and CNPS alleged that we failed to provide evidence in the final listing rule supporting our determination that designation of critical habitat would not be beneficial to the species, and that we failed to establish how the publication of critical habitat maps would increase the threat to the species. Without reaching any conclusions on the merits of the previous decision, we agreed to submit for publication in the **Federal Register** a withdrawal of our previous not-prudent determination, and a proposed designation of critical habitat, if prudent and determinable, on or before September 20, 2006, and a final rule by September 20, 2007. On September 26, 2006, we published a notice proposing a new not-prudent determination for the designation of critical habitat for *Trichostema austromontanum* ssp. *compactum,* and announced the opening of a 60-day public comment period on the proposed determination (71 FR 56094). This notice of final determination complies with the April 14, 2005, settlement agreement. For a discussion of the Federal actions that occurred prior to the 2006 proposed determination, please refer to the “Previous Federal Actions” section in the final rule listing this taxon as threatened (September 14, 1998; 63 FR 49006), and the notice of proposed prudency determination for the designation of critical habitat for this taxon published in the **Federal Register** on September 26, 2006 (71 FR 56094). Summary of Comments and Recommendations We requested written comments from the public during a 60-day comment period on the notice of proposed prudency determination for the designation of critical habitat for *Trichostema austromontanum* ssp. *compactum* on September 26, 2006 (71 FR 56094). We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed determination. During the comment period that opened on September 26, 2006, and closed on November 27, 2006, we received four comments directly addressing the proposed determination: three from peer reviewers and one joint comment letter from the Center for Biological Diversity and the Native Plant Conservation Campaign. In the following summary, we have addressed the comments we received; we have also incorporated these comments into the prudency determination as appropriate. We did not receive any requests for a public hearing. Peer Review In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from four knowledgable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses from three of the peer reviewers. The peer reviewers generally concurred with our methods and found our information to be accurate. Peer review comments are addressed in the following summary and incorporated into this final prudency determination as appropriate. Peer Reviewer Comments 1. *Comment:* The proposed prudency determination stated that *Trichostema austromontanum* ssp. *compactum* is distributed on the northwestern edge of its vernal pool habitat and that the plants flower in July and August. One peer reviewer commented that the plant is found most frequently along the northern margin but that the plant is also distributed on the northeastern and eastern edge of the vernal pool as well as the northwestern edge. The commenter also stated that the peak bloom for this species may be in July and August, but that the plant was also found in flower from July through November of 2006. *Our Response:* We have incorporated this information on the distribution and flowering period of this taxon into the “Taxonomy and Description” section of this final prudency determination. 2. *Comment:* The peer reviewers had differing opinions about our assertion that the publication of critical habitat could bring more visitors to the location where the plant grows. Two peer reviewers agreed that the best way to protect the species is to reduce traffic to the area and lower its visibility. However, one peer reviewer stated that the publication of critical habitat maps would not significantly increase visitation to the area because this taxon is not a showy plant, is not sought after by hobbyists or professional botanists, and is unlikely to draw casual visitors. *Our Response:* We continue to conclude that designation of critical habitat is not prudent at this time. Direct threats associated with unregulated visitation to the area have apparently decreased as a result of management actions initiated by the California Department of Parks and Recreation (CDPR). While this taxon may not be sought after by a large number of hobbyists or professional botanists, the vernal pool occupied by the taxon was impacted by recreation and plants were lost to trampling prior to the installation of barriers by the CDPR. Since the ecosystem where *Trichostema austromontanum* ssp. *compactum* grows is vulnerable to disturbance, and is the only known location where this unique ecosystem is found within the San Jacinto Mountains, all possible actions should be taken to protect this ecosystem from further degradation and disturbance. We believe that the act of designating critical habitat could bring additional visitors to the area because its location would be published with explicit geographic coordinates. An increase in visitation would increase the degree of threat to the taxon from trampling and would directly contradict the efforts of the CDPR to restrict visitation to this area and conserve this species. 3. *Comment:* One peer reviewer stated that the Service should provide quantifiable and verifiable examples of where past designations of critical habitat, or other actions that publicize the location of a listed species, have resulted in damage to a species or its habitat from tremendous increases in visitation and trampling. *Our Response:* The District Superintendent of the Inland Empire District of California State Parks

(CDPR)has expressed concern to us that the critical habitat designation process may place this plant at increased risk via increased visitation (Watts 2006). Prior to its listing under the Act, *Trichostema austromontanum* ssp. *compactum* was impacted by trampling associated with recreational use of its habitat. In recent years, this threat has been reduced by conservation measures implemented by the CDPR, which include installing barriers, removing signs, and removing the location of this area from maps of the park. Because these measures have been successful in reducing threats to the taxon, we believe that any action that contravenes these measures can be expected to increase threats to the taxon. We believe that publication of specific locations and maps associated with a critical habitat designation for this taxon, with the attendant publicity that a designation would likely generate, can be expected to increase interest in the area where the taxon is found because of the interest that the public and scientific community have in rare, threatened, and endangered species, and in unique ecosystems. We believe that this interest could lead to increased visitation to the only area where *T. a.* ssp. *compactum* is found, thereby increasing the threat of trampling to this species. We know of one specific example of a case where the designation of critical habitat resulted in higher visitation to an area and higher collection pressure. In the prudency determination for the rock gnome lichen (66 FR 51445; October 9, 2001), we cited the case of another federally listed North Carolina mountain plant for which critical habitat was designated; the taxon was severely impacted by collectors immediately after the critical habitat maps were published. This collection happened even though this plant was not previously known to be desired by rare plant collectors and had never been offered for sale in commercial trade. For the rock gnome lichen itself (66 FR 51445; October 9, 2001), we documented that after the species was listed, an illegal collection occurred at a location within a National Park, and another population outside the Park was vandalized for unknown reasons (the lichens were scraped off the rock to form graffiti). Thus, although *Trichostema austromontanum* ssp. *compactum* may not be sought after by a large number of hobbyists or professional botanists at present, critical habitat designation could increase interest and lead to increased visitation. Due to the rarity of *Trichostema austromontanum* ssp. *compactum* and its fragile nature, we do not want to increase the threats to it by drawing attention to its location. In years when climatic conditions are unfavorable to the taxon, only a few individuals may be present at any one time or location and it would be relatively easier for a small amount of activity to destroy the majority of the plants. In another study of an endangered plant, demographic modeling results indicated that when the effects of trampling and bad climatic conditions were coupled, extinction was accelerated (Maschinski et al. 1997). The fact that CDPR has invested money and effort to minimize the visibility of this area to recover this species and its unique habitat indicates that CDPR shares our concern about impacts associated with increased visitation to the area. 4. *Comment:* One peer reviewer agreed that the only way to protect *Trichostema austromontanum* ssp. *compactum* was to reduce traffic to the area and to lower its public visibility; however, the peer reviewer stated that critical habitat should be designated because a future Federal project may impact this area. While acknowledging that a Federal project in this area appears unlikely, this peer reviewer gave examples of three California State Parks where unexpected projects with a Federal nexus have been proposed: the power line through Anza-Borrego State Park (Sunrise Powerlink Project); the toll road through San Onofre State Park; and the expansion of the border fence (US/Mexico Border Infrastructure Project) in Border Field State Park. The peer reviewer stated that none of these projects were foreseen, but the presence of critical habitat could provide additional protection on State lands against unforeseen Federal projects. *Our Response:* The locations of the State Parks cited by the peer reviewer may have contributed to the “unforeseen” projects being proposed in those areas. For example, Border Fields State Park is directly on the United States/Mexico border and San Onofre State Park is adjacent to residential development and Interstate 5; the proximity of these parks to existing infrastructure may make these parks more vulnerable to the expansion of existing infrastructure. Also, the alignment for the Sunrise Powerlink Project through Anza-Borrego State Park is proposed within an existing utility easement. On the basis of a review of current infrastructure and regional planning efforts and projections, the area occupied by *Trichostema austromontanum* ssp. *compactum* is not adjacent to existing or proposed urban development or large-scale infrastructure, nor is it traversed by any existing or planned utility easements. Also, the steep terrain surrounding the State Park (on Mount San Jacinto) makes future utility and infrastructure projects unlikely. In addition, as discussed in the “Benefits to the Species from Critical Habitat Designation” section of the proposed determination, the specific area where this plant is found is a designated State of California Natural Preserve, which means that protection and management of sensitive resources is the highest priority for this area. As a result of these factors, we do not foresee any future Federal projects that would result in destruction or adverse modification of the habitat for this taxon. However, if a Federal project was proposed that could negatively impact *Trichostema austromontanum* ssp. *compactum,* a section 7 consultation would be required. The designation of critical habitat would benefit the species by ensuring that a Federal project would not result in the destruction or adverse modification of the critical habitat. However, because of the low likelihood of a project with a Federal nexus occurring in the taxon's habitat, we believe that the increased threat to the plant due to potential increased human visitation outweighs the benefits of designating critical habitat for this taxon (see “Prudency Determination” section below for a detailed discussion). 5. *Comment:* One peer reviewer commented that an alternate location with suitable habitat should be sought so that an introduced population could be created and sustained. *Our Response:* In the preparation of this determination, we asked individuals knowledgeable about the area where *Trichostema austromontanum* ssp. *compactum* is found if they knew of any additional vernal pool habitat where another population may currently exist or where a population could be introduced. No additional vernal pool habitat is known to occur within or adjacent to San Jacinto State Park. Public Comments 6. *Comment:* One commenter disagreed with our statement in the proposed determination that information on the location of *Trichostema austromontanum* ssp. *compactum* and its habitat is no longer available on the internet and provided links to two Web sites containing postings on rare plant habitat. The commenter also stated that interested parties could easily access additional information on the location on internet-accessible herbarium databases. *Our Response:* We acknowledge that information regarding the location of the taxon and its habitat is available; however, the location information has never been presented to the public at the level it would be through the publicity that accompanies the publication of a critical habitat rule. One of the Web sites the commenter cited provides aerial maps and information about user-specified locations. However, the location information provided on the Web site is somewhat general and would likely be difficult to use to find the area where the taxon occurs. Also, the information on the Web site states that there is no official State Park map because the area is a wildlife preserve and the Park tries to limit the number of visitors. The second Web site that the commenter provided contains general information about the species and only regional and county-level information about the location of the area occupied by this taxon. As noted by the commenter, online herbaria also provide textual information about the location of this species. However, location information provided by these types of databases is often general. Also, these online herbarium databases do not include mapped information and are not likely visited by the public at large. Therefore, currently available location information is limited and unlikely to be sought out by the general public. The designation of critical habitat, however, would result in a single document—including precise information about the species, where it is found, and a map with geographic coordinates—being published in the **Federal Register** . A primary purpose of the **Federal Register** is to make information readily accessible to the public, in a form that is easy to understand, regarding decisions made by the Federal government. 7. *Comment:* One commenter stated that possible increases in the number of visitors to the area where *Trichostema austromontanum* ssp. *compactum* grows following designation of critical habitat could be minimized through a variety of mechanisms after designation. *Our Response:* The commenter did not provide any suggestions of the type of mechanisms that could be used to minimize visitation following the publication of critical habitat maps. 8. *Comment:* One commenter stated that the analysis for the prudency determination does not address the issue of global climate change. The commenter stated that species like *Trichostema austromontanum* ssp. *compactum* are vulnerable to the effects of global climate change because of their small population size and their location at high altitudes (Parmesan 2006). *Our Response:* The article cited by the commenter (Parmesan 2006) reviews several cases where climate change has resulted in shifts in species' phenology, distribution, and in some cases extinction or extirpation. We are not currently aware of any species-specific information indicating that global climate change is a potential threat for *Trichostema austromontanum* ssp. *compactum,* nor did the commenter provide any species-specific information. At this time, we do not know how climate change will affect *T. a.* ssp. *compactum.* Currently, the habitat where this taxon is found is isolated and a function of the local topography. If changes in climate shift the timing or the amount of precipitation or the amount of evaporation at this location, *T. a.* ssp. *compactum* could be affected; however, we do not currently have information on how and to what extent the taxon might be affected. Furthermore, including an attempt to address any potential impacts of global climate change to *T. a.* ssp. *compactum* would not alter our critical habitat prudency analysis in this situation. An analysis of such a potential threat would not change our conclusion that the identification of critical habitat for *T. a.* ssp. *compactum* can be expected to increase the degree of threat from trampling, and that any benefits resulting from a designation are outweighed by that expected increase in human threat to the taxon. 9. *Comment:* One commenter stated that critical habitat allows for a set of checks and balances that support rare species conservation under unforeseen future changes in management. *Our Response:* If a Federal project was proposed that could negatively impact *Trichostema austromontanum* ssp. *compactum,* a section 7 consultation would be required. The designation of critical habitat would benefit the species by ensuring that a Federal project would not result in the destruction or adverse modification of the designated critical habitat. However, because of the low likelihood of a project with a Federal nexus occurring in the taxon's habitat, we believe that the increased threat to the plant due to potential increased human visitation outweighs the benefits of designating critical habitat for this taxon (see “Prudency Determination” section below for a detailed discussion). In addition, we do not foresee any changes in management that would result in destruction or adverse modification of the habitat for this taxon, based on:

(1)The considerable management effort that CDPR has already undertaken to conserve *T. a.* ssp. *compactum;*

(2)CDPR's commitment to work with us, California Department of Fish and Game, California Native Plant Society and Rancho Santa Ana Botanic Garden to establish a long-term conservation strategy for this taxon; and

(3)the fact that specific area where this plant is found is a designated State of California Natural Preserve, which means that protection and management of sensitive resources is the highest priority for this area. Summary of Changes From the Proposed Prudency Determination We made changes in this final prudency determination on the basis of public or peer review comments and information received during the open comment period. Specifically we: 1. Added information related to the distribution and time of flowering for the species (see response to Comment 1 and the “Background” section); 2. Added information about the need for future Federal projects to consult under section 7(a)(2) of the Act (see response to Comment 4); and 3. Clarified the suggestion that no information is available on the internet relating to the location where this species occurs (see response to Comment 6). These revisions added clarity and specificity to the rule; however we did not change our determination that the designation of critical habitat is not prudent at this time. Prudency Determination Background Section 4(a)(3) of the Act and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, we designate critical habitat at the time a species is determined to be endangered or threatened. Regulations under 50 CFR 424.12(a)(1) state that the designation of critical habitat is not prudent when one or both of the following situations exist:

(1)The species is threatened by taking or other human activity and the identification of critical habitat can be expected to increase the degree of threat to the species; or

(2)such designation of critical habitat would not be beneficial to the species. In our September 14, 1998 final listing rule (63 FR 49006), we determined that a designation of critical habitat could increase the degree of threat to *Trichostema austromontanum* ssp. *compactum,* and that such designation also would not be beneficial to the taxon. In the final listing rule (63 FR 49019) we stated:

(1)*Trichostema austromontanum* ssp. *compactum* occurs only in a wilderness area on State [CDPR] lands with little potential for Federal involvement. Trails, signage, map notations, and references to the habitat area have been removed by the State to reduce impacts to this highly localized taxon;

(2)Designation of critical habitat would have little benefit to this taxon and would not increase the commitment or management efforts of the State; and

(3)Designation of critical habitat likely would be detrimental to this taxon because publishing maps and descriptions of the exact locality identifies the site as a unique area. Such a distinction may encourage recreational use of the area and negatively impact the taxon. Pursuant to the Court's April 14, 2005, stipulated settlement agreement and order, and as announced in our September 26, 2006, proposed not-prudent determination (71 FR 56094), we have withdrawn our previous not-prudent determination. Consistent with the requirements of the Act and our aforementioned settlement agreement and order, we are now finalizing our new determination of not prudent for *Trichostema austromontanum* ssp. *compactum.* The determination involves a weighing of the expected increase in threats associated with a critical habitat designation against the benefits gained by a critical habitat designation. An explanation of this “balancing” evaluation follows. We listed *Trichostema austromontanum* ssp. *compactum* under the Act on the basis of threats of trampling associated with recreational activities and low numbers of individual plants. Before the CDPR took steps to minimize the visibility of the sensitive habitat that supports *T. a.* ssp. *compactum,* there was a clearly marked trail to the location. The area was used for many different types of recreational uses. These activities impacted the sensitive vegetation in the area by trampling live plants and creating multiple footprints in the wet soil around the margin of the vernal pool, further impacting habitat through soil compaction and alteration of hydrology (Hamilton 1983, pp. 75-88; 63 FR 49006). Since listing, the CDPR has continued to implement management actions designed to reduce visitation to this area. It has removed reference to the area from its trail maps and signs, and removed all markers for trails to this area in order to reduce recreational use. Although the only known location was publicly available in the past, the currently available location information is limited and unlikely to be sought out by the general public. In contrast, the public notice requirements of the Act, including publication of precise site location information and a map in the **Federal Register** and the publicity that accompanies the publication of a critical habitat rule, are intended to make information readily accessible to the general public in a form that is easy to understand. The CDPR has continued its efforts to address the threats from trampling by further excluding recreational users from the area. In 2000, CDPR erected a barrier on the trail to the area to exclude horses and pack animals from this sensitive area. In 2002, they designated the vernal pool and the surrounding area as a Natural Preserve (CDPR 2002 p. 62). A Natural Preserve is a State designation that prioritizes resource protection within the area over recreational use and, therefore, measures can be taken to ensure the long-term survival of *Trichostema austromontanum* ssp. *compactum.* Recent visits to the site by the Service suggest that there has been a decrease in equestrian use of the area as a result of the barrier installed along the trail (Snapp-Cook 2006; Wallace 2003, 2005). As part of the process of determining the prudency of designating critical habitat for *Trichostema austromontanum* ssp. *compactum,* we met with CDPR to discuss management activities now being conducted for this taxon. Ongoing and past actions that CDPR has initiated, partially due to the listing of this taxon, appear to be adequate to protect and maintain the plant's habitat. On a 2006 field visit to the site, we only found minimal signs of human use at the vernal pool, reflected in a worn trail passing the upper boundary of the vernal pool. However, we did not see evidence of more damaging activities such as trash or fire pits that would be associated with camping, nor hoof prints or horse manure that would be associated with equestrian use (Snapp-Cook 2006). This observation contrasted with the condition of the site prior to the CDPR implementing management actions for this plant and the condition of the site described at the time of listing (Hamilton 1983; 63 FR 49006). We were able to observe *T. a.* ssp. *compactum* around the margins of the vernal pool and none of the plants showed any signs of damage from trampling on that particular site visit. To support the effectiveness of the management measures that CDPR has put in place, a formal study to monitor the recreation use of the area is needed. The Service has recently helped the State of California secure funding to conduct a study to determine the condition of the population and the effectiveness of the management by CDPR. Funding has also been secured to survey and sign the legal boundaries of the established Natural Preserve so the regulations of the Natural Preserve can be enforced. In addition, a seed banking program that includes collection of seeds, a conservation strategy, and a monitoring program will be established. Through this funding, we are committed to work with CDPR, California Department of Fish and Game, California Native Plant Society and Rancho Santa Ana Botanic Garden to establish a long-term conservation strategy for *Trichostema austromontanum* ssp. *compactum.* These conservation actions were previously recommended in a research project that focused on *T. a.* ssp. *compactum* (Bauder 1999, p. 38), and should provide additional protection and help conserve this taxon. While the primary threat to *Trichostema austromontanum* ssp. *compactum* —trampling—appears to have been minimized, little information exists on the status of the taxon. To obtain all available information on this taxon, we initiated a 5-year status review in accordance with section 4 of the Act. We published a notice announcing the initiation of this 5-year review and the opening of the first 60-day comment period in the **Federal Register** on July 7, 2005 (70 FR 39327). We published another notice reopening the comment period for an additional 60 days in the **Federal Register** on November 3, 2005 (70 FR 66842). As part of our review, we evaluated the federally listed status of this taxon based on the threats to the plant and its habitat, and recommended that no change be made to the listing status until a few specific conservation actions under way by the CDPR have been concluded. The completed 5-year review for this taxon is available upon request from the Field Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES section) or for downloading from the following Web site: *http://www.fws.gov/carlsbad.* Increased Threat to the Taxon by Designating Critical Habitat The process of designating critical habitat can be expected to increase human threats to *Trichostema austromontanum* ssp. *compactum* by increasing the visibility of this plant and its location. Along with maps published in the **Federal Register** , a critical habitat designation generally results in the news media publishing articles in local newspapers and/or special interest Web sites, usually with maps of the critical habitat and photos of the rare species. This type of publicity could generate increased interest in the species by both the public and the scientific community. In this particular case, *T. a.* ssp. *compactum* occurs within a State Park with a high rate of visitation. We are concerned that the publication of maps outlining the only location of this rare taxon will result in increased visitation to the area. *Trichostema austromontanum* ssp. *compactum* is small and hard to see because it blends in with other short herbaceous plants on the ground. Careful and detailed training is needed to identify this taxon. It is likely that people visiting the critical habitat would not find the plant and, in the act of looking for it, disturb its sensitive habitat. In addition, because this area has been designated as a Natural Preserve and CDPR manages the area to minimize recreational use, no signed trails or observation areas are in place that could allow for interested persons to observe the plant from a non-intrusive location. Thus, even well-meaning and informed visitors may cause significant damage by inadvertently trampling these tiny plants and adversely affecting the habitat. The District Superintendent of the Inland Empire District of California State Parks has expressed concern to the Service that the critical habitat designation process may place this plant at increased risk via increased visitation (Watts 2006). Our publication of a critical habitat map identifying the location and subsequent publicity of this action would be counter to conservation actions taken by CDPR to make the area less visible. Prior to these actions to minimize recreational impacts to this taxon, it was apparent that the plant was in danger of going extinct as a consequence of impacts associated with visitation to the areas and recreational use of the taxon's habitat. The small size and delicate structure of this plant make it especially vulnerable to trampling by people and animals (Lewis 1945, pp. 284-386; Hamilton 1996). Adverse impacts to this taxon associated with visitation to the area and recreational use of this taxon's habitat led to the listing of *Trichostema austromontanum* ssp. *compactum* . The actions undertaken by CDPR once these concerns were evident began to reverse the negative impacts to the taxon from recreational activities. Following the listing of this plant, CDPR continued to provide measures that were designed to recover it. These actions primarily consisted of removing the location of the taxon's habitat from information available to the public at this State Park. It is important that these and further conservation efforts continue so that this taxon no longer requires the protections afforded it under the Act. We believe that identification of critical habitat for this taxon would again provide specific information to the public about the taxon's location, undermining the conservation efforts and progress achieved by CDPR, and can be expected to increase the degree of threat to this plant from human activity. In addition to increasing threats to this taxon and countering past and ongoing conservation actions by the State of California, designating critical habitat for this plant would not support our ongoing partnership with CDPR. Most federally listed species in the United States will not recover without the cooperation of non-Federal landowners. Stein *et al.* (1995, p. 400) found that only about 12 percent of listed species were found almost exclusively on Federal lands (i.e., 90 to 100 percent of their known occurrences restricted to Federal lands) and that 50 percent of federally listed species are not known to occur on Federal lands at all. Given the distribution of listed species with respect to land ownership, conservation of listed species in many parts of the United States is dependent upon working partnerships with a wide variety of entities and the voluntary cooperation of many non-Federal landowners (Wilcove and Chen 1998, p. 1407; Crouse *et al.* 2002, p. 720; James 2002, p. 271). Building partnerships and promoting voluntary cooperation of landowners are essential to understanding the status of species on non-Federal lands and are necessary to implement recovery actions such as reintroducing listed species, habitat restoration, and habitat protection. Therefore, to achieve the conservation of *Trichostema austromontanum* ssp. *compactum* , it is necessary to maintain our partnership with CDPR, and to support CDPR's conservation efforts, including the efforts to minimize the availability of information regarding the plant's location. Benefits to the Species From Critical Habitat Designation Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. Decisions by the 5th and 9th Circuit Court of Appeals have invalidated our definition of “destruction or adverse modification” (50 CFR 402.02) (see *Gifford Pinchot Task Force* v. *U.S. Fish and Wildlife Service* , 378 F. 3d 1059 (9th Cir. 2004) and *Sierra Club* v. *U.S. Fish and Wildlife Service et al.* , 245 F.3d 434, 442F (5th Cir. 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the PCEs to be functionally established) to serve its intended conservation role for the species. The regulatory effect is significantly limited in this case. First, it only applies where there is a Federal nexus—if there is no Federal nexus, designation itself does not restrict actions that destroy or adversely modify critical habitat. Second, it only limits destruction or adverse modification of critical habitat. By its nature, the prohibition on adverse modification is designed to ensure those areas that contain the physical and biological features essential to the conservation of the species or unoccupied areas that are essential to the conservation of the species are not eroded. Critical habitat designation alone, however, does not require specific steps toward recovery. In regard to the question of a Federal nexus, we are not aware of any proposed projects (with or without a Federal nexus) that would negatively impact *Trichostema austromontanum* ssp. *compactum* and its habitat, nor are any projects expected (see Response to Comment 4 above). The San Jacinto Mountains have been botanically explored for more than 100 years and only one population of this taxon has been found. Because of its association with vernal pool margins, other areas of suitable habitat likely do not exist in this mountain range. The Mount San Jacinto State Park Wilderness is protected from uses that would degrade or destroy natural resources. The specific area where this plant is found is designated by the State of California as a Natural Preserve, which means that protection and management of sensitive resources is the highest priority for this area. It is unlikely that a future project with a Federal nexus will occur within the habitat for this taxon because the habitat is within a Natural Preserve in a State Park, and no changes in land-use are planned for the foreseeable future. In fact, the Service has not engaged in any section 7 consultations for *T. a.* ssp. *compactum* since its listing in 1998. However, if a federally funded or authorized project with potential to impact this taxon or its habitat did occur, a section 7 consultation would be required. We anticipate that any Federal project that involves grading, digging, or construction that would impact the watershed of the vernal pool where this plant occurs would trigger a section 7 consultation because it would either directly or indirectly impact this taxon. Under section 7(a)(2) of the Act, project impacts would be analyzed and a determination would be made as to whether or not the project would jeopardize the continued existence of the taxon. The designation of critical habitat would ensure that a Federal project would not result in the destruction or adverse modification of the designated critical habitat. However, in the absence of critical habitat, areas that support *Trichostema austromontanum* ssp. *compactum* will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as appropriate. Federally funded or permitted projects affecting listed species outside designated critical habitat areas may still result in jeopardy findings. In this case, we believe that impacts to the taxon and its habitat associated with any Federal project would be adequately assessed and modified, if necessary, to address the conservation needs of this plant through application of the jeopardy standard under section 7(a)(2) of the Act, particularly since this taxon occurs at a single location. Another potential benefit to *Trichostema austromontanum* ssp. *compactum* from designating critical habitat is that such a designation serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. Generally, providing this information helps focus and promote conservation efforts by other parties by clearly delineating areas of high conservation value for the affected species. In this circumstance, the landowner

(CDPR)is well aware of the areas important to *T. a.* ssp. *compactum* , and is actively implementing measures to conserve this taxon. Furthermore, designation of critical habitat for *T. a.* ssp. *compactum* will likely undermine the conservation efforts by CDPR and cause harm to *T. a.* ssp. *compactum* . The designation of critical habitat often generates increased interest in a species and inspires people to study the species and visit the habitat. As discussed above, *T. a.* ssp. *compactum* is small and blends in with other short herbaceous plants. Thus, someone attempting to learn more about this plant and its habitat by visiting the site without proper training is likely to harm members of the population in the process. Therefore, we do not find that there is any benefit to the taxon derived from educating landowners, State and local governments, and the public regarding the potential conservation value of areas that would be designated as critical habitat. Increased Threat to the Species Outweighs the Benefits of Critical Habitat Designation Upon reviewing the available information, we have determined that the designation of critical habitat can be expected to increase the degree of threat from human activity to *Trichostema austromontanum* ssp. *compactum* , and that this expected increase in the degree of threat outweighs the benefits of designating critical habitat for this taxon. As discussed above, the designation of critical habitat may result in negative effects to the habitat because the dissemination of location information could be expected to result in increased trampling of the plant and its habitat. The unique area where the plant occurs was adversely impacted by a higher level of recreational use in the past. We believe that publication of specific locations and maps associated with a critical habitat designation for this taxon, with the attendant publicity that a designation would likely generate, can be expected to increase interest in the area where the taxon is found because of the interest that the public and scientific community have in rare, threatened, and endangered species, and in unique ecosystems. The sensitive nature of this taxon makes it vulnerable to even a slight increase in the amount of trampling. In a drought year, this species may have less than 100 flowering individuals and a limited amount of activity could damage the majority of the population. The CDPR has implemented measures to decrease visitation and thereby decrease impacts to the area occupied by *T. a.* ssp. *compactum* , and these measures have proven successful in reducing impacts. Designation of critical habitat will undermine the conservation actions that CDPR has already put into place for this taxon. The sensitive nature of this taxon makes it vulnerable to even a slight increase in the amount of trampling. In a drought year, this species may have less than 100 flowering individuals and a limited amount of activity could damage the majority of the population. These ongoing conservation actions appear to have minimized the primary threat to this taxon and we believe that designation of critical habitat would reverse these efforts and increase the threat of trampling to this plant. Furthermore, we have determined that there is no overall benefit of critical habitat designation to *T. a.* ssp. *compactum* because:

(1)The regulatory benefit of a critical habitat designation for this taxon is unlikely to be realized because we do not foresee any future projects (either federal or non-federal) that will negatively impact this taxon;

(2)the general educational benefits afforded by critical habitat designation are minimal for this particular taxon; and

(3)designation of critical habitat would undermine ongoing conservation efforts and hinder our partnership with CDPR. Therefore, based on our determination that critical habitat designation would increase the degree of threats to *T. a.* ssp. *compactum* and, at best, provide nominal benefits for this taxon, we find that the increased threat to *T. a.* ssp. *compactum* from the designation of critical habitat far outweighs any benefit of designation. Prudency Determination Pursuant to the Court's April 14, 2005, stipulated settlement agreement and order, and as announced in our proposed not-prudent determination (71 FR 56094), we have withdrawn our previous not-prudent determination. On the basis of our review of the best scientific and commercial information available, we again find that designation of critical habitat is not prudent for *Trichostema austromontanum* ssp. *compactum* . We came to this determination after weighing the potential increased threats associated with identifying specific areas as critical habitat against the benefits gained by a critical habitat designation. We have determined that the designation of critical habitat can be expected to increase the degree of threat to this taxon from human activity and would undermine the conservation actions that CDPR has already put into place for this taxon. These ongoing conservation actions appear to have minimized the primary threat to *T. a.* ssp. *compactum* , and as discussed above, we believe that designation of critical habitat may reverse these efforts and increase the threat of trampling to this taxon. Furthermore, we have determined that there are minimal benefits of critical habitat designation for *T. a.* ssp. *compactum* . We have concluded that, even if some benefit from designation may exist, the increased threat to the plant from human activity far outweighs any potential benefit to the taxon. We have, therefore, determined that it is not prudent to designate critical habitat for *T. a.* ssp. *compactum* at this time. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This determination does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act. This determination will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act

(NEPA)(42 U.S.C. 4321 et seq.) It is our position that, outside the Tenth Federal Circuit, we do not need to prepare environmental analyses as defined by the NEPA in connection with designating critical habitat under the Endangered Species Act of 1973, as amended. We published a notice outlining our reasons for this determination in the **Federal Register** on October 25, 1983 (48 FR 49244). This assertion was upheld in the courts of the Ninth Circuit Court of Appeals ( *Douglas County* v. *Babbitt* , 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996).] Government-to-Government Relationship With Tribes In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. Because we have determined that designation of critical habitat for *Trichostema austromontanum* ssp. *compactum* is not prudent, and because *T. a.* ssp. *compactum* and its habitat do not occur on Tribal lands, no Tribal lands will be affected by this determination. References Cited A complete list of all references cited in this finding is available upon request from the Field Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES section). Author The primary author of this document is staff of the Carlsbad Fish and Wildlife Office (see ADDRESSES section). Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). Dated: September 14, 2007. David M. Verhey, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. E7-18678 Filed 9-24-07; 8:45 am] BILLING CODE 4310-55-P 72 185 Tuesday, September 25, 2007 Proposed Rules ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2007-0381; FRL-8472-9] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Clean Air Interstate Rule Budget Trading Programs AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a revision to the Virginia State Implementation Plan

(SIP)submitted on March 30, 2007 and supplemented on April 30, 2007 and June 11, 2007. This revision addresses the requirements of EPA's Clean Air Interstate Rule (CAIR), promulgated on May 12, 2005 and subsequently revised on April 28, 2006 and December 13, 2006. EPA is proposing to determine that the SIP revision fully implements the CAIR requirements for Virginia. Therefore, as a consequence of the SIP approval, EPA will also withdraw the CAIR Federal Implementation Plans

(FIP)that address sulfur dioxide (SO 2 ), nitrogen oxides (NO X ) annual, and NO X ozone season emissions in Virginia. The CAIR FIPs for all States in the CAIR region were promulgated on April 28, 2006 and subsequently revised on December 13, 2006. The CAIR requires affected States to reduce emissions of SO 2 and NO X that significantly contribute to, and interfere with maintenance of, the national ambient air quality standards (NAAQS) for fine particulates and/or ozone in any downwind state. The CAIR establishes State budgets for SO 2 and NO X and requires States to submit SIP revisions that implement these budgets in States that EPA determined contribute to nonattainment in downwind states. States have the flexibility to choose which control measures to adopt to achieve the budgets, and may choose whether or not to participate in the EPA-administered cap-and-trade programs. In the SIP revision that EPA is proposing to approve, Virginia would meet CAIR requirements by participating in the EPA-administered cap-and-trade programs addressing SO 2 , NO X annual, and NO X ozone season emissions. DATES: Written comments must be received on or before October 25, 2007. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-0381 by one of the following methods: A. *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. B. *E-mail: powers.marilyn@epa.gov.* C. *Mail:* EPA-R03-OAR-2007-0381, Marilyn Powers, Acting Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2007-0381. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219. FOR FURTHER INFORMATION CONTACT: Marilyn Powers,

(215)814-2308, or by e-mail at *powers.marilyn@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. What Action Is EPA Proposing To Take? II. What Is the Regulatory History of CAIR and the CAIR FIPs? III. What Are the General Requirements of CAIR and the CAIR FIPs? IV. What Are the Types of CAIR SIP Submittals? V. Analysis of Virginia's CAIR SIP Submittal A. State Budgets for Allowance Allocations B. CAIR Cap-and-Trade Programs C. Applicability Provisions for Non-EGU NO X SIP Call Sources D. NO X Allowance Allocations E. Allocation of NO X Allowances From Compliance Supplement Pool

(CSP)F. Individual Opt-in Units VI. Information Pertaining to SIP Submittals From the Commonwealth of Virginia VII. Proposed Actions VIII. Statutory and Executive Order Reviews I. What Action Is EPA Proposing To Take? EPA is proposing to approve a revision to Virginia's SIP, submitted on March 30, 2007 and supplemented on April 30, 2007 and June 11, 2007. In its SIP revision, Virginia would meet CAIR requirements by requiring certain electric generating units

(EGUs)to participate in the EPA-administered CAIR cap-and-trade programs addressing SO 2 , NO X annual, and NO X ozone season emissions. EPA is proposing to determine that the Virginia SIP, as revised, will meet the applicable requirements of CAIR. Any final action approving Virginia's SIP revision will be taken by the Regional Administrator for Region 3. As a consequence of the SIP approval, the EPA Administrator will issue a final rule to withdraw the FIPs addressing SO 2 , NO X annual, and NO X ozone season emissions for Virginia, which will delete and reserve 40 CFR 52.2440 and 2441. The withdrawal of the CAIR FIPs for Virginia is a conforming amendment that must be made once the SIP is approved because EPA's authority to issue the FIPs was premised on a deficiency in the SIP for Virginia. Once the SIP to implement CAIR is fully approved, EPA no longer has authority for the FIPs. Thus, EPA will not have the option of maintaining the FIPs following the full SIP approval. Accordingly, EPA does not intend to offer an opportunity for a public hearing or an additional opportunity for written public comment on the withdrawal of the FIPs. II. What Is the Regulatory History of CAIR and the CAIR FIPs? The CAIR was published by EPA on May 12, 2005 (70 FR 25162). In this rule, EPA determined that 28 States and the District of Columbia contribute significantly to nonattainment and interfere with maintenance of the NAAQS for fine particles (PM 2.5 ) and/or 8-hour ozone in downwind States in the eastern part of the country. As a result, EPA required those upwind States to revise their SIPs to include control measures that reduce emissions of SO 2 , which is a precursor to PM 2.5 formation, and/or NO X , which is a precursor to both ozone and PM 2.5 formation. For jurisdictions that contribute significantly to downwind PM 2.5 nonattainment, CAIR sets annual State-wide emission reduction requirements (i.e., budgets) for SO 2 and annual State-wide emission reduction requirements for NO X . Similarly, for jurisdictions that contribute significantly to 8-hour ozone nonattainment, CAIR sets State-wide emission reduction requirements for NO X for the ozone season (May 1st to September 30th). Under CAIR, States may implement these reduction requirements by participating in the EPA-administered cap-and-trade programs or by adopting any other control measures. Section 110(a)(2)(D) of the CAA requires states to reduce emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS in downwind states. CAIR explains to subject States what must be included in their SIPs to address the requirements of section 110(a)(2)(D) with respect to the 8-hour ozone and PM 2.5 NAAQS. EPA made national findings, effective on May 25, 2005, that the States had failed to submit SIPs meeting the requirements of section 110(a)(2)(D). The SIPs were due in July 2000, three years after the promulgation of the 8-hour ozone and PM 2.5 NAAQS. These findings started a 2-year clock for EPA to promulgate a FIP to address the requirements of section 110(a)(2)(D). Under CAA section 110(c)(1), EPA may issue a FIP anytime after such findings are made and must do so within two years unless a SIP revision correcting the deficiency is approved by EPA before the FIP is promulgated. On April 28, 2006 (71 FR 25328), EPA promulgated FIPs for all States covered by CAIR in order to ensure the emissions reductions required by CAIR are achieved on schedule. Each CAIR State is subject to the FIPs until the State fully adopts, and EPA approves, a SIP revision meeting the requirements of CAIR. The CAIR FIPs require EGUs to participate in the EPA-administered CAIR SO 2 , NO X annual, and NO X ozone season trading programs, as appropriate. The SO 2 , NO X annual, and NO X ozone season trading programs of the CAIR FIPs impose essentially the same requirements as, and are integrated with, the respective CAIR SIP trading programs. The integration of the FIP and SIP trading programs means that these trading programs will work together to create, effectively, a single trading program for each regulated pollutant (SO 2 , NO X annual, and NO X ozone season) in all States covered by the CAIR FIP or SIP trading program for that pollutant. The CAIR FIP also allows States to submit abbreviated SIP revisions that, if approved by EPA, will automatically replace or supplement certain CAIR FIP provisions (e.g., the methodology for allocating NO X allowances to sources in the State), while the CAIR FIP remains in place for all other provisions. On April 28, 2006 (71 FR 25287 and 71 FR 25303), EPA published two additional CAIR-related final rules that added the States of Delaware and New Jersey to the list of States subject to CAIR for PM 2.5 , and announced EPA's final decisions on reconsideration of five issues, without making any substantive changes to the CAIR requirements. III. What Are the General Requirements of CAIR and the CAIR FIPs? The CAIR establishes State-wide emission budgets for SO 2 and NO X and is to be implemented in two phases. The first phase of NO X reductions starts in 2009 and continues through 2014, while the first phase of SO 2 reductions starts in 2010 and continues through 2014. The second phase of reductions for both NO X and SO 2 starts in 2015 and continues thereafter. The CAIR requires States to implement the budgets by either:

(1)Requiring EGUs to participate in the EPA-administered cap-and-trade programs; or

(2)adopting other control measures of the State's choosing and demonstrating that such control measures will result in compliance with the applicable State SO 2 and NO X budgets. The May 12, 2005 and April 28, 2006 CAIR rules provide model rules that States must adopt (with certain limited changes, if desired) if they want to participate in the EPA-administered trading programs. With two exceptions, only States that choose to meet the requirements of CAIR through methods that exclusively regulate EGUs are allowed to participate in the EPA-administered trading programs. One exception is for States that adopt the opt-in provisions of the model rules to allow non-EGUs individually to opt into the EPA-administered trading programs. The other exception is for States that include all non-EGUs from their NO X SIP Call trading programs in their CAIR NO X ozone season trading programs. IV. What Are the Types of CAIR SIP Submittals? States have the flexibility to choose the type of control measures they will use to meet the requirements of CAIR. EPA anticipates that most States will choose to meet the CAIR requirements by selecting an option that requires EGUs to participate in the EPA-administered CAIR cap-and-trade programs. For such States, EPA has provided two approaches for submitting and obtaining approval for CAIR SIP revisions. States may submit full SIP revisions that adopt the model CAIR cap-and-trade rules. If approved, these SIP revisions will fully replace the CAIR FIPs. Alternatively, States may submit abbreviated SIP revisions. These SIP revisions will not replace the CAIR FIPs; however, the CAIR FIPs provide that, when approved, the provisions in these abbreviated SIP revisions will be used instead of or in conjunction with, as appropriate, the corresponding provisions of the CAIR FIPs (e.g., the NO X allowance allocation methodology). A State submitting a full SIP revision may either adopt regulations that are substantively identical to the model rules or incorporate by reference the model rules. The CAIR provides that States may only make limited changes to the model rules if the States want to participate in the EPA-administered trading programs. A full SIP revision may change the model rules only by altering their applicability and allowance allocation provisions to: 1. Include NO X SIP Call trading sources that are not EGUs under CAIR in the CAIR NO X ozone season trading program; 2. Provide for State allocation of NO X annual or ozone season allowances using a methodology chosen by the State; 3. Provide for State allocation of NO X annual allowances from the compliance supplement pool

(CSP)using the State's choice of allowed, alternative methodologies; or 4. Allow units that are not otherwise CAIR units to opt individually into the CAIR SO 2 , NO X annual, or NO X ozone season trading programs under the opt-in provisions in the model rules. An approved CAIR full SIP revision addressing EGUs' SO 2 , NO X annual, or NO X ozone season emissions will replace the CAIR FIP for that State for the respective EGU emissions. V. Analysis of Virginia's CAIR SIP Submittal EPA believes that Virginia clearly intends, by this SIP submittal, to replace the CAIR FIP with a State plan that is based on the CAIR model rule and allow subject sources, non-EGUs from its NO X SIP Call budget trading program, and opt-in units meeting the CAIR opt-in criteria to participate in the EPA-administered regional CAIR trading program. However, EPA also believes that there are some provisions of the amendments to Virginia regulations (9 VAC 5-140) that could be interpreted in a way that might be inconsistent with the Commonwealth's intent. These specific provisions pertain to definitions associated with Virginia's participation in the regional CAIR trading program, definitions associated with the State's decision to bring its non-EGUs from its NO X SIP Call budget trading program into the CAIR trading program, and a definition of the term “most stringent state of federal NO X emissions limitation” that is based upon the model rule but has been expanded to include the situation where more than one fuel is allowed by a permit. On September 12, 2007, EPA sent a letter to the Virginia Department of Environmental Quality (VADEQ) asking the Commonwealth to confirm that EPA correctly understood how Virginia intended to interpret and implement these regulatory definitions. In response to EPA's letter, VADEQ sent a letter dated September 17, 2007, confirming in writing its interpretations of these regulatory provisions. EPA has reviewed VADEQ's interpretations and has determined that they clarify the language of the Virginia regulations and are also consistent with having the EPA-administered CAIR trading program become effective in Virginia. In addition, the letter accepts EPA's recommendation that the Commonwealth promulgate and codify clarifying amendments to these provisions of its regulations at the earliest opportunity. A. State Budgets for Allowance Allocations The CAIR NO X annual and NO X ozone season budgets were developed from historical heat input data for EGUs. Using these data, EPA calculated annual and ozone season regional heat input values, which were multiplied by 0.15 lb/MMBtu, for phase 1, and 0.125 lb/MMBtu, for phase 2, to obtain regional NO X budgets for 2009-2014 and for 2015 and thereafter, respectively. EPA derived the State NO X annual and NO X ozone season budgets from the regional budgets using State heat input data adjusted by fuel factors. The CAIR State SO 2 budgets were derived by discounting the tonnage of emissions authorized by annual allowance allocations under the Acid Rain Program under title IV of the CAA. Under CAIR, each allowance allocated in the Acid Rain Program for the years in phase 1 of CAIR (2010 through 2014) authorizes 0.5 ton of SO 2 emissions in the CAIR trading program, and each Acid Rain Program allowance allocated for the years in phase 2 of CAIR (2015 and thereafter) authorizes 0.35 ton of SO 2 emissions in the CAIR trading program. In today's action, EPA is proposing approval of Virginia's SIP revision that adopts the budgets established for the Commonwealth in CAIR. These budgets are: 36,074 tons for NO X annual emissions from 2009 through 2014, and 30,062 tons from 2015 and thereafter; 20,098 tons for NO X ozone season emissions from 2009 through 2014, and 17,432 tons from 2015 and thereafter; and 63,478 tons for SO 2 emissions from 2010 through 2014, and 44,435 tons from 2015 and thereafter. Virginia's SIP revision sets these budgets as the total amounts of allowances available for allocation for each year under the EPA-administered cap-and-trade programs. The NO X ozone season budget properly reflects the inclusion of NO X SIP Call trading program units in the CAIR NO X ozone season program. B. CAIR Cap-and-Trade Programs The CAIR NO X annual and ozone-season model trading rules both largely mirror the structure of the NO X SIP Call model trading rule in 40 CFR part 96, subparts A through I. While the provisions of the NO X annual and NO X ozone-season model rules are similar, there are some differences. For example, the NO X annual model rule (but not the NO X ozone season model rule) provides for a CSP under which allowances may be awarded for early reductions of NO X annual emissions. As a further example, the NO X ozone season model rule reflects the fact that the CAIR NO X ozone season trading program replaces the NO X SIP Call trading program after the 2008 ozone season and is coordinated with the NO X SIP Call program. The NO X ozone season model rule provides incentives for early emissions reductions by allowing banked, pre-2009 NO X SIP Call allowances to be used for compliance in the CAIR NO X ozone-season trading program. In addition, States have the option of continuing to meet their NO X SIP Call requirement by participating in the CAIR NO X ozone season trading program and including all their NO X SIP Call trading sources in that program. The provisions of the CAIR SO 2 model rule are also similar to the provisions of the NO X annual and NO X ozone season model rules. However, the SO 2 model rule is coordinated with the ongoing Acid Rain SO 2 cap-and-trade program under title IV of the CAA. The SO 2 model rule uses the title IV allowances for compliance, with each title IV allowance allocated for 2010-2014 authorizing only 0.50 ton of emissions and each allowance allocated for 2015 and thereafter authorizing only 0.35 ton of emissions. Banked title IV allowances allocated for years before 2010 can be used at any time in the CAIR SO 2 cap-and-trade program, with each such allowance authorizing 1 ton of emissions. Title IV allowances are to be freely transferable among sources covered by the Acid Rain Program and sources covered by the CAIR SO 2 cap-and-trade program. EPA also used the CAIR model trading rules as the basis for the trading programs in the CAIR FIPs. The CAIR FIP trading rules are virtually identical to the CAIR model trading rules, with changes made to account for federal rather than state implementation. The CAIR model SO 2 , NO X annual, and NO X ozone season trading rules and the respective CAIR FIP trading rules are designed to work together as integrated SO 2 , NO X annual, and NO X ozone season trading programs. In its SIP revision, Virginia chooses to implement its CAIR budgets by requiring EGUs to participate in the EPA-administered cap-and-trade programs for SO 2 , NO X annual, and NO X ozone season emissions. Virginia's full CAIR SIP revision adopts, with certain allowed changes, the CAIR model cap-and-trade rules for SO 2 , NO X annual, and NO X ozone season emissions. C. Applicability Provisions for Non-EGU NO X SIP Call Sources In general, the CAIR model trading rules apply to any stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine serving at any time, since the later of November 15, 1990 or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe producing electricity for sale. States have the option of bringing in, for the CAIR NO X ozone season program only, those units in the State's NO X SIP Call trading program that are not EGUs as defined under CAIR. EPA advises States exercising this option to add the applicability provisions in the State's NO X SIP Call trading rule for non-EGUs to the applicability provisions in 40 CFR 96.304 in order to include in the CAIR NO X ozone season trading program all units required to be in the State's NO X SIP Call trading program that are not already included under 40 CFR 96.304. Under this option, the CAIR NO X ozone season program must cover all large industrial boilers and combustion turbines, as well as any small EGUs (i.e., units serving a generator with a nameplate capacity of 25 MWe or less) that the State currently requires to be in the NO X SIP Call trading program. Virginia has chosen to expand the applicability provisions of the CAIR NO X ozone season trading program to include all non-EGUs in the Commonwealth's NO X SIP Call trading program, and has incorporated into CAIR the definitions from its NO X SIP Call trading program that are required in order to cover all the large industrial boilers and combustion turbines that are currently or may become subject to the rule. D. NO X Allowance Allocations Under the NO X allowance allocation methodology in the CAIR model trading rules and in the CAIR FIP, NO X annual and NO X ozone season allowances are allocated to units that have operated for five years, based on heat input data from a three-year period that are adjusted for fuel type by using fuel factors of 1.0 for coal, 0.6 for oil, and 0.4 for other fuels. The CAIR model trading rules and the CAIR FIP also provide a new unit set-aside from which units without five years of operation are allocated allowances based on the units' prior year emissions. States may establish in their SIP submissions a different NO X allowance allocation methodology that will be used to allocate allowances to sources in the States if certain requirements are met concerning the timing of submission of units' allocations to the Administrator for recordation and the total amount of allowances allocated for each control period. In adopting alternative NO X allowance allocation methodologies, States have flexibility with regard to: 1. The cost to recipients of the allowances, which may be distributed for free or auctioned; 2. The frequency of allocations; 3. The basis for allocating allowances, which may be distributed, for example, based on historical heat input or electric and thermal output; and 4. The use of allowance set-asides and, if used, their size. Virginia has retained most aspects of the NO X annual and NO X ozone season model trading rules pertaining to allowance allocations, but has changed the basis for allocating allowances, and the use and size of the allowance set-asides, within the flexibilities described. The Commonwealth uses a commencement of operation date of January 1, 2006 for purposes of calculating the average baseline heat input. The CAIR NO X units that commenced operation prior to this date receive allowance allocations in accordance with the model rule. The CAIR NO X units that commence operation after this date receive allocations in accordance with expanded provisions that allow for computation of an average heat input for units operating from between one to five years. Virginia chose not to adjust for fuel type in its computation of average heat input. Virginia has also chosen to modify the NO X annual and NO X ozone season model rule provisions pertaining to the set aside. It has established a new unit set aside that consists of four percent of the total Commonwealth budget from 2009 through 2013 and one percent from 2014 and after. It has also established an annual, voluntary public health set-aside that will be retired, and a one percent energy efficiency/renewable energy set-aside for each control period. E. Allocation of NO X Allowances From Compliance Supplement Pool

(CSP)The CAIR establishes a CSP to provide an incentive for early reductions in NO X annual emissions. The CSP consists of 200,000 CAIR NO X annual allowances of vintage 2009 for the entire CAIR region, and a State's share of the CSP is based upon the projected magnitude of the emission reductions required by CAIR in that State. States may distribute CSP allowances, one allowance for each ton of early reduction, to sources that make NO X reductions during 2007 or 2008 beyond what is required by any applicable State or Federal emission limitation. States also may distribute CSP allowances based upon a demonstration of need for an extension of the 2009 deadline for implementing emission controls. The CAIR NO X annual model trading rule establishes specific methodologies for allocations of CSP allowances. States may choose an allowed, alternative CSP allocation methodology to be used to allocate CSP allowances to sources in the States. The CSP for Virginia is comprised of 5,134 tons of NO X . Virginia has chosen to distribute the CSP, but has modified the provisions of the CAIR NO X annual model trading rule concerning the allocation of allowances from the CSP. Virginia requires that CAIR NO X units that are part of a group of units under single ownership, with combined emissions of NO X that exceeded 40,000 tons in 2004, collectively reduce emissions in 2007 and/or 2008 by an amount equal in number to the CSP, and establishes a methodology for allocating to such units from the CSP. This change is within the flexibility of the CAIR NO X annual model rule. F. Individual Opt-in Units The opt-in provisions of the CAIR SIP model trading rules allow certain non-EGUs (i.e., boilers, combustion turbines, and other stationary fossil-fuel-fired devices) that do not meet the applicability criteria for a CAIR trading program to participate voluntarily in (i.e., opt into) the CAIR trading program. A non-EGU may opt into one or more of the CAIR trading programs. In order to qualify to opt into a CAIR trading program, a unit must vent all emissions through a stack and be able to meet monitoring, recordkeeping, and recording requirements of 40 CFR part 75. The owners and operators seeking to opt a unit into a CAIR trading program must apply for a CAIR opt-in permit. If the unit is issued a CAIR opt-in permit, the unit becomes a CAIR unit, is allocated allowances, and must meet the same allowance-holding and emissions monitoring and reporting requirements as other units subject to the CAIR trading program. The opt-in provisions provide for two methodologies for allocating allowances for opt-in units, one methodology that applies to opt-in units in general and a second methodology that allocates allowances only to opt-in units that the owners and operators intend to repower before January 1, 2015. States have several options concerning the opt-in provisions. States may adopt the CAIR opt-in provisions entirely or may adopt them but exclude one of the methodologies for allocating allowances. States may also decline to adopt the opt-in provisions at all. For the CAIR NO X annual trading program, the CAIR NO X ozone season trading program, and the CAIR SO 2 trading program, Virginia has chosen to allow non-EGUs meeting certain requirements to opt into the CAIR NO X annual trading program. Virginia has adopted both of the methodologies for allocating allowances that are in the model rule. VI. Information Pertaining to SIP Submittals From the Commonwealth of Virginia In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege”' for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information

(1)that are generated or developed before the commencement of a voluntary environmental assessment;

(2)that are prepared independently of the assessment process;

(3)that demonstrate a clear, imminent and substantial danger to the public health or environment; or

(4)that are required by law. On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts * * *.” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.” Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law. VII. Proposed Action EPA is proposing to approve Virginia's full CAIR SIP revision submitted on March 30, 2007, and supplemented on April 30, 2007 and June 11, 2007. Under the SIP revision, Virginia is choosing to participate in the EPA-administered cap-and-trade programs for SO 2 , NO X annual, and NO X ozone season emissions. The SIP revision meets the applicable requirements in 40 CFR 51.123(o) and (aa), with regard to NO X annual and NO X ozone season emissions, and 40 CFR 51.124(o), with regard to SO 2 emissions. EPA is proposing to determine that the SIP revision will meet the requirements of CAIR. As a consequence of the SIP approval, the Administrator of EPA will issue, without providing an opportunity for a public hearing or an additional opportunity for written public comment, a final rule to withdraw the CAIR FIPs for SO 2 , NO X annual, and NO X ozone season emissions for Virginia. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. VIII. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This action proposing approval of Virginia's CAIR budget trading program does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Sulfur oxides. Authority: 42 U.S.C. 7401 *et seq.* Dated: September 19, 2007. William T. Wisniewski, Acting Regional Administrator, Region III. [FR Doc. E7-18849 Filed 9-24-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R03-OAR-2007-0605; FRL-8473-2] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Redesignation of the Scranton/Wilkes-Barre 8-Hour Ozone Nonattainment Area to Attainment and Approval of the Maintenance Plan and 2002 Base-Year Inventory AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a redesignation request and State Implementation Plan

(SIP)revision submitted by the Commonwealth of Pennsylvania. The Pennsylvania Department of Environmental Protection (PADEP) is requesting that the Scranton/Wilkes-Barre ozone nonattainment area (“Scranton/Wilkes-Barre Area” or “Area”) be redesignated as attainment for the 8-hour ozone national ambient air quality standard (NAAQS). The Scranton/Wilkes-Barre Area is comprised of Lackawanna, Luzerne, Monroe and Wyoming Counties. EPA is proposing to approve the ozone redesignation request for the Scranton/Wilkes-Barre Area. In conjunction with its redesignation request, the Commonwealth submitted a SIP revision consisting of a maintenance plan for the Scranton/Wilkes-Barre Area that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after redesignation. EPA is proposing to make a determination that the Scranton/Wilkes-Barre Area has attained the 8-hour ozone NAAQS, based upon three years of complete, quality-assured ambient air quality monitoring data for 2004-2006. EPA's proposed approval of the 8-hour ozone redesignation request is based on its determination that the Scranton/Wilkes-Barre Area has met the criteria for redesignation to attainment specified in the Clean Air Act. In addition, the Commonwealth of Pennsylvania has also submitted a 2002 base-year inventory for the Scranton/Wilkes-Barre Area, and EPA is proposing to approve that inventory for the Area as a SIP revision. EPA is also providing information on the status of its adequacy determination for the motor vehicle emission budgets (MVEBs) that are identified in the maintenance plan for the Scranton/Wilkes-Barre Area for purposes of transportation conformity, and is proposing to approve those MVEBs. EPA is proposing approval of the redesignation request, the maintenance plan, and 2002 base-year inventory SIP revisions in accordance with the requirements of the Clean Air Act. DATES: Written comments must be received on or before October 25, 2007. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-0605 by one of the following methods: A. *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. B. *E-mail: powers.marilyn@epa.gov.* C. *Mail:* EPA-R03-OAR-2007-0605, Marilyn Powers, Acting Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2007-0605. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Protection Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105. FOR FURTHER INFORMATION CONTACT: Brian Rehn,

(215)814-2176, or by e-mail at *rehn.brian@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. Table of Contents I. What Are the Clean Air Actions EPA Is Proposing To Take? II. What Is the Background for These Proposed Actions? III. What Are the Criteria for Redesignation to Attainment? IV. Why Is EPA Taking These Actions? V. What Would Be the Effect of These Actions? VI. What Is EPA's Analysis of the Commonwealth's Request? VII. Are the Motor Vehicle Emissions Budgets Established and Identified in the Maintenance Plan for the Scranton/Wilkes-Barre Area Adequate and Approvable? VIII. Proposed Actions IX. Statutory and Executive Order Reviews I. What Are the Clean Air Actions EPA Is Proposing To Take? On June 12, 2007, the PADEP formally submitted a request to redesignate the Scranton/Wilkes-Barre Area from nonattainment to attainment of the 8-hour NAAQS for ozone. Concurrently, Pennsylvania submitted a maintenance plan for the Scranton/Wilkes-Barre Area as a SIP revision to ensure continued attainment in the Area over the next 11 years. PADEP also submitted a 2002 base-year inventory for the Scranton/Wilkes-Barre Area as a SIP revision. The Scranton/Wilkes-Barre Area is comprised of Lackawanna, Luzerne, Monroe, and Wyoming Counties. It is currently designated a basic 8-hour ozone nonattainment area. EPA is proposing to determine that the Scranton/Wilkes-Barre Area has attained the 8-hour ozone NAAQS and that it has met the requirements for redesignation pursuant to section 107(d)(3)(E) of the Clean Air Act. EPA is, therefore, proposing to approve the redesignation request to change the designation of the Scranton/Wilkes-Barre Area from nonattainment to attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve the Scranton/Wilkes-Barre maintenance plan as a SIP revision for the Area (such approval being one of the Clean Air Act criteria for redesignation to attainment status). The maintenance plan is designed to ensure continued attainment in the Scranton/Wilkes-Barre Area for the next 11 years. EPA is also proposing to approve the 2002 base-year inventory for the Scranton/Wilkes-Barre Area as a SIP revision. Additionally, EPA is announcing its action on the adequacy process for the MVEBs identified in the Scranton/Wilkes-Barre maintenance plan, and proposing to approve the MVEBs identified for volatile organic compounds

(VOCs)and nitrogen oxides (NO X ) for the Area for transportation conformity purposes. II. What Is the Background for These Proposed Actions? A. General Ground-level ozone is not emitted directly by sources. Rather, emissions of NO X and VOC react in the presence of sunlight to form ground-level ozone. The air pollutants NO X and VOC are referred to as precursors of ozone. The Clean Air Act establishes a process for air quality management through the attainment and maintenance of the NAAQS. On July 18, 1997, EPA promulgated a revised 8-hour ozone standard of 0.08 parts per million (ppm). This new standard is more stringent than the previous 1-hour standard. EPA designated, as nonattainment, any area violating the 8-hour ozone NAAQS based on the air quality data for the three years of 2001-2003. These were the most recent three years of data at the time EPA designated 8-hour areas. The Scranton/Wilkes-Barre Area was designated a basic 8-hour ozone nonattainment area in a **Federal Register** notice signed on April 15, 2004 and published on April 30, 2004 (69 FR 23857), based on its exceedance of the 8-hour health-based standard for ozone during the years 2001-2003. On April 30, 2004, EPA issued a final rule (69 FR 23951, 23996) to revoke the 1-hour ozone NAAQS in the Scranton/Wilkes-Barre Area (as well as most other areas of the country), effective June 15, 2005. *See* 40 CFR 50.9(b); 69 FR at 23996 (April 30, 2004); 70 FR 44470 (August 3, 2005). However, on December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard. (69 FR 23951, April 30, 2004). *South Coast Air Quality Management Dist.* v. *EPA,* 472 F.3d 882 (D.C. Cir. 2006) (hereafter “ *South Coast* ”). On June 8, 2007, in *South Coast Air Quality Management Dist.* v. E *PA,* Docket No. 04-1201, in response to several petitions for rehearing, the D.C. Circuit clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. Therefore, the Phase 1 Rule provisions related to classifications for areas currently classified under subpart 2 of Title I, part D of the Clean Air Act as 8-hour nonattainment areas, the 8-hour attainment dates and the timing for emissions reductions needed for attainment of the 8-hour ozone NAAQS remain effective. The June 8 decision left intact the Court's rejection of EPA's reasons for implementing the 8-hour standard in certain nonattainment areas under Subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let stand EPA's revocation of the 1-hour standard and those anti-backsliding provisions of the Phase 1 Rule that had not been successfully challenged. The June 8 decision reaffirmed the December 22, 2006 decision that EPA had improperly failed to retain measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations:

(1)Nonattainment area New Source Review

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

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

(3)measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the Clean Air Act, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS. In addition, the June 8 decision clarified that the Court's reference to conformity requirements for anti-backsliding purposes was limited to requiring the continued use of 1-hour motor vehicle emissions budgets until 8-hour budgets were available for 8-hour conformity determinations, which is already required under EPA's conformity regulations. The Court thus clarified that 1-hour conformity determinations are not required for anti-backsliding purposes. Elsewhere in this document, mainly in section VI. B. “The Scranton/Wilkes-Barre Area Has Met All Applicable Requirements Under Section 110 and Part D of the Clean Air Act and has a Fully Approved SIP Under Section 110(k) of the Clean Air Act,” EPA discusses its rationale why the decision in *South Coast* is not an impediment to redesignating the Scranton/Wilkes-Barre Area to attainment of the 8-hour ozone NAAQS. The Clean Air Act, title I, Part D, contains two sets of provisions-subpart 1 and subpart 2 -that address planning and control requirements for nonattainment areas. Subpart 1 (which EPA refers to as “basic” nonattainment) contains general, less prescriptive requirements for nonattainment areas for any pollutant—including ozone—governed by a NAAQS. Subpart 2 (which EPA refers to as “classified” nonattainment) provides more specific requirements for ozone nonattainment areas. In 2004, the Scranton/Wilkes-Barre Area was classified a basic 8-hour ozone nonattainment area based on air quality monitoring data from 2001-2003. Therefore, the Scranton/Wilkes-Barre Area is subject to the requirements of subpart 1 of Part D. Under 40 CFR part 50, the 8-hour ozone standard is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). *See* 69 FR 23857 (April 30, 2004) for further information. Ambient air quality monitoring data for the 3-year period must meet data completeness requirements. The data completeness requirements are met when the average percent of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined in Appendix I of 40 CFR part 50. The ozone monitoring data indicates that the Scranton/Wilkes-Barre Area has a design value of 0.075 ppm for the 3-year period of 2004-2006, using complete, quality-assured data. Therefore, the ambient ozone data for the Scranton/Wilkes-Barre Area indicates no violations of the 8-hour ozone standard. B. The Scranton/Wilkes-Barre Area The Scranton/Wilkes-Barre Area consists of Lackawanna, Luzerne, Monroe, and Wyoming Counties in Pennsylvania. Prior to its designation as an 8-hour ozone nonattainment area, the Scranton/Wilkes-Barre Area was a marginal 1-hour ozone nonattainment Area (which included Columbia County, in addition to those counties comprising the 8-hour ozone nonattainment area). Therefore, the Scranton/Wilkes-Barre Area was subject to requirements for marginal nonattainment areas pursuant to section 182(a) of the Clean Air Act. *See* 56 FR 56694 (November 6, 1991). EPA determined that the Scranton/Wilkes-Barre 1-hour ozone nonattainment Area had attained the 1-hour ozone NAAQS by the November 15, 1993 attainment date (60 FR 3349, January 17, 1995). On June 12, 2007, the PADEP requested that the Scranton/Wilkes-Barre Area be redesignated to attainment for the 8-hour ozone standard. The redesignation request included three years of complete, quality-assured data for the period of 2004-2006, indicating that the 8-hour NAAQS for ozone had been achieved in the Scranton/Wilkes-Barre Area. The data satisfies the Clean Air Act requirements that the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration (commonly referred to as the area's design value), must be less than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). Under the Clean Air Act, a nonattainment area may be redesignated if sufficient complete, quality-assured data is available to determine that the area attained the standard and the area meets the other Clean Air Act redesignation requirements set forth in section 107(d)(3)(E). III. What Are the Criteria for Redesignation to Attainment? The Clean Air Act provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) allows for redesignation, providing that:

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

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

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

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

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

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

(SIP)Actions Submitted in Response to Clean Air Act

(Act)Deadlines,” Memorandum from John Calcagni Director, Air Quality Management Division, October 28, 1992; • “Technical Support Documents

(TSDs)for Redesignation Ozone and Carbon Monoxide

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

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

(CO)National Ambient Air Quality Standards (NAAQS) on or after November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993; • Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, to Air Division Directors, Regions 1-10, “Use of Actual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas,” dated November 30, 1993; • “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994; and • “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995. IV. Why Is EPA Taking These Actions? On June 12, 2007, the PADEP requested redesignation of the Scranton/Wilkes-Barre Area to attainment for the 8-hour ozone standard. On June 12, 2007, PADEP submitted a maintenance plan for the Scranton/Wilkes-Barre Area as a SIP revision, to ensure continued attainment of the 8-hour ozone NAAQS over the next 11 years, until 2018. PADEP also submitted a 2002 base-year inventory concurrently with its maintenance plan as a SIP revision. EPA has determined that the Scranton/Wilkes-Barre Area has attained the 8-hour ozone standard and has met the requirements for redesignation set forth in section 107(d)(3)(E). V. What Would Be the Effect of These Actions? Approval of the redesignation request would change the official designation of the Scranton/Wilkes-Barre Area from nonattainment to attainment for the 8-hour ozone NAAQS found at 40 CFR part 81. It would also incorporate into the Pennsylvania SIP a 2002 base-year inventory and a maintenance plan ensuring continued attainment of the 8-hour ozone NAAQS in the Scranton/Wilkes-Barre Area for the next 11 years, until 2018. The maintenance plan includes contingency measures to remedy any future violations of the 8-hour NAAQS (should they occur), and identifies the NOX and VOC MVEBs for transportation conformity purposes for the years 2009 and 2018. These MVEBs are displayed in the following table: Table 1.—Scranton/Wilkes-Barre Motor Vehicle Emissions Budgets, in Tons per Summer Day

(tpsd)Year VOC NO X 2009 25.2 48.3 2018 16.9 23.7 VI. What Is EPA's Analysis of the Commonwealth's Request? EPA is proposing to determine that the Scranton/Wilkes-Barre Area has attained the 8-hour ozone standard, and that all other redesignation criteria have been met. The following is a description of how the PADEP's June 12, 2007 submittal satisfies the requirements of section 107(d)(3)(E) of the Clean Air Act. A. The Scranton/Wilkes-Barre Area Has Attained the 8-Hour NAAQS EPA is proposing to determine that the Scranton/Wilkes-Barre Area has attained the 8-hour ozone NAAQS. For ozone, an area may be considered to be attaining the 8-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.10 and Appendix I of Part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain this standard, the design value, which is the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations measured at each monitor, within the area, over each year must not exceed the ozone standard of 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, Appendix I, the standard is attained if the design value is 0.084 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58, and recorded in the Air Quality System (AQS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment. In the Scranton-Wilkes-Barre Area, there were four ozone monitors that measured ambient ozone air quality between 2004 and 2006. Two of these monitors are located in Lackawanna County and two are in Luzerne County. As part of its redesignation request, Pennsylvania referenced ozone monitoring data for the years 2004-2006 for the Scranton/Wilkes-Barre Area. This data has been quality assured and is recorded in the AQS. The PADEP uses the AQS as the permanent database to maintain its data and quality assures the data transfers and content for accuracy. The fourth-high 8-hour daily maximum concentrations for the period from 2004-2006, along with the three-year average, are summarized in Table 2. Table 2.—Scranton/Wilkes-Barre Area Fourth Highest 8-Hour Average Values (2004-2006) Monitor/County/AIRS ID Annual 4th highest reading

(ppm)2004 2005 2006 Wilson Fire Company Monitor, Lackawanna County, AQS ID 42-069-0101 0.071 0.080 0.071 City of Scranton Monitor, Luzerne County AQS ID 42-069-2006 0.073 0.080 0.070 Nanticoke Monitor, Luzerne County AQS ID 42-079-1100 0.068 0.074 0.064 Wilkes-Barre Monitor, Luzerne County AQS ID 42-079-1101 0.073 0.081 0.073 The Area design value for the 3-year period 2004-2006 is 0.075 ppm (based on Wilkes-Barre Monitor/AQS ID 42-079-1101) The air quality data for 2004-2006 show that the Scranton/Wilkes-Barre Area has attained the standard with a design value of 0.075 ppm. The data collected at the Scranton/Wilkes-Barre Area monitors satisfies the Clean Air Act requirement that the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm. The PADEP's request for redesignation for the Scranton/Wilkes-Barre Area indicates that the data is complete and was quality assured in accordance with 40 CFR part 58. In addition, as discussed below with respect to the maintenance plan, PADEP has committed to continue monitoring in accordance with 40 CFR part 58. In summary, EPA has determined that the data submitted by Pennsylvania and data taken from AQS indicate that the Area has attained the 8-hour ozone NAAQS. B. The Scranton/Wilkes-Barre Area Has Met All Applicable Requirements Under Section 110 and Part D of the Clean Air Act and Has a Fully Approved SIP Under Section 110(k) of the Clean Air Act EPA has determined that the Scranton/Wilkes-Barre Area has met all SIP requirements applicable for purposes of this redesignation under section 110 of the Clean Air Act (General SIP Requirements) and that it meets all applicable SIP requirements under Part D of Title I of the Clean Air Act, in accordance with section 107(d)(3)(E)(v). In addition, EPA has determined that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these proposed determinations, EPA ascertained which requirements are applicable to the Scranton/Wilkes-Barre Area and determined that the applicable portions of the SIP meeting these requirements are fully approved under section 110(k) of the Clean Air Act. We note that SIPs must be fully approved only with respect to applicable requirements. The September 4, 1992 Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992) describes EPA's interpretation of section 107(d)(3)(E) with respect to the timing of applicable requirements. Under this interpretation, to qualify for redesignation, States requesting redesignation to attainment must meet only the relevant Clean Air Act requirements that came due prior to the submittal of a complete redesignation request. *See also,* Michael Shapiro memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of Detroit-Ann Arbor). Applicable requirements of the Clean Air Act that come due subsequent to the area's submittal of a complete redesignation request remain applicable until a redesignation is approved, but are not required as a prerequisite to redesignation. Section 175A(c) of the Clean Air Act. *Sierra Club* v. *EPA,* 375 F.3d 537 (7th Cir. 2004). *See also,* 68 FR at 25424, 25427 (May 12, 2003) (redesignation of St. Louis). This section sets forth EPA's views on the potential effect of the Court's rulings on this proposed redesignation action. For the reasons set forth below, EPA does not believe that the Court's rulings alters any requirements relevant to this redesignation action so as to preclude redesignation, and do not prevent EPA from proposing or ultimately finalizing this redesignation. EPA believes that the Court's December 22, 2006 and June 8, 2007 decisions impose no impediment to moving forward with redesignation of this area to attainment, because even in light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the Clean Air Act and longstanding policies regarding redesignation requests. 1. Section 110 General SIP Requirements Section 110(a)(2) of Title I of the Clean Air Act delineates the general requirements for a SIP, which includes enforceable emissions limitations and other control measures, means, or techniques, provisions for the establishment and operation of appropriate devices necessary to collect data on ambient air quality, and programs to enforce the limitations. The general SIP elements and requirements set forth in section 110(a)(2) include, but are not limited to the following: • Submittal of a SIP that has been adopted by the State after reasonable public notice and hearing; • Provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; • Implementation of a source permit program; provisions for the implementation of part C requirements (Prevention of Significant Deterioration (PSD)); • Provisions for the implementation of Part D requirements for New Source Review

(NSR)permit programs; • Provisions for air pollution modeling; and • Provisions for public and local agency participation in planning and emission control rule development. Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another State. To implement this provision, EPA has required certain states to establish programs to address transport of air pollutants in accordance with the NOx SIP Call, October 27, 1998 (63 FR 57356), amendments to the NOx SIP Call, May 14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25162). However, the section 110(a)(2)(D) requirements for a State are not linked with a particular nonattainment area's designation and classification in that State. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the State. Thus, we do not believe that these requirements are applicable requirements for purposes of redesignation. In addition, EPA believes that the other section 110 elements not connected with nonattainment plan submissions and not linked with an area's attainment status are not applicable requirements for purposes of redesignation. The Scranton/Wilkes-Barre Area will still be subject to these requirements after it is redesignated. The section 110 and Part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This policy is consistent with EPA's existing policy on applicability of conformity (i.e., for redesignations) and oxygenated fuels requirement. *See* Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174, October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). *See also,* the discussion on this issue in the Cincinnati redesignation (65 FR at 37890, June 19, 2000), and in the Pittsburgh redesignation (66 FR at 53099, October 19, 2001). Similarly, with respect to the NOx SIP Call rules, EPA noted in its Phase 1 Final Rule to Implement the 8-hour Ozone NAAQS, that the NOx SIP Call rules are not “an” ‘applicable requirement' for purposes of section 110(1) because the NOx rules apply regardless of an area's attainment or nonattainment status for the 8-hour (or the 1-hour) NAAQS.” 69 FR 23951, 23983 (April 30, 2004). EPA believes that section 110 elements not linked to the area's nonattainment status are not applicable for purposes of redesignation. As we explain later in this notice, no Part D requirements applicable for purposes of redesignation under the 8-hour standard became due for the Scranton/Wilkes-Barre Area prior to submission of the redesignation request 2. Part D Nonattainment Requirements Under the 8-Hour Standard Pursuant to an April 30, 2004, final rule (69 FR 23951), the Scranton/Wilkes-Barre Area was designated a basic nonattainment area under subpart 1 for the 8-hour ozone standard. Sections 172-176 of the Clean Air Act, found in subpart 1 of Part D, set forth the basic nonattainment requirements applicable to all nonattainment areas. Section 182 of the Clean Air Act, found in subpart 2 of Part D, establishes additional specific requirements depending on the area's nonattainment classification. With respect to the 8-hour standard, the court's ruling rejected EPA's reasons for classifying areas under subpart 1 for the 8-hour standard, and remanded that matter to the Agency. Consequently, it is possible that this area could, during a remand to EPA, be reclassified under subpart 2. Although any future decision by EPA to classify this area under subpart 2 might trigger additional future requirements for the area, EPA believes that this does not mean that redesignation of the area cannot now go forward. This belief is based upon

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

(2)consideration of the inequity of applying retroactively any requirements that might in the future be applied. First, at the time the redesignation request was submitted, the Scranton/Wilkes-Barre Area was classified under subpart 1 and was obligated to meet only subpart 1 requirements. Under EPA's longstanding interpretation of section 107(d)(3)(E) of the Clean Air Act, to qualify for redesignation, states requesting redesignation to attainment must meet only the relevant SIP requirements that came due prior to the submittal of a complete redesignation request. *See* September 4, 1992 Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division). *See also,* Michael Shapiro Memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995) (Redesignation of Detroit-Ann Arbor). *Sierra Club* v. *EPA,* 375 F.3d 537 (7th Cir. 2004), which upheld this interpretation. *See* 68 FR 25418, 25424, 25427 (May 12, 2003) (Redesignation of St. Louis). Moreover, it would be inequitable to retroactively apply any new SIP requirements that were not applicable at the time the request was submitted. The D.C. Circuit has recognized the inequity in such retroactive rulemaking, *Sierra Club* v. *Whitman,* 285 F. 3d 63 (D.C. Cir. 2002), in which the D.C. Circuit upheld a District Court's ruling refusing to make retroactive an EPA determination of nonattainment that was past the statutory due date. Such a determination would have resulted in the imposition of additional requirements on the area. The Court stated: “Although EPA failed to make the nonattainment determination within the statutory time frame, Sierra Club's proposed solution only makes the situation worse. Retroactive relief would likely impose large costs on the States, which would face fines and suits for not implementing air pollution prevention plans in 1997, even though they were not on notice at the time.” *Id.* at 68. Similarly here it would be unfair to penalize the area by applying to it for purposes of redesignation additional SIP requirements under subpart 2 that were not in effect at the time it submitted its redesignation request. With respect to 8-hour subpart 2 requirements, if the Scranton/Wilkes-Barre Area initially had been classified under subpart 2, the first two Part D subpart 2 requirements applicable to the Area under section 182(a) of the Clean Air Act would be: A base-year inventory requirement pursuant to section 182(a)(1) of the Clean Air Act, and, the emissions statement requirement pursuant to section 182(a)(3)(B). As stated previously, these requirements are not yet due for purposes of redesignation of the Scranton/Wilkes-Barre Area, but nevertheless, Pennsylvania already has in its approved SIP, an emissions statement rule for the 1-hour standard that covers all portions of the designated 8-hour nonattainment area and, that satisfies the emissions statement requirement for the 8-hour standard. *See,* 25 Pa. Code 135.21(a)(1), codified at 40 CFR 52.2020; 60 FR 2881, January 12, 1995. With respect to the base-year inventory requirement, in this notice of proposed rulemaking, EPA is proposing to approve the 2002 base-year inventory for the Scranton/Wilkes-Barre Area, which was submitted on June 12, 2007, concurrently with its maintenance plan SIP revision. EPA is proposing to approve the 2002 base-year inventory as fulfilling the requirements of both section 182(a)(1) and section 172(c)(3) of the Clean Air Act. A detailed evaluation of Pennsylvania's 2002 base-year inventory for the Scranton/Wilkes-Barre Area can be found in a Technical Support Document

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

(PSD)program will become effective in the area immediately upon redesignation to attainment. *See* the more detailed explanations in the following redesignation rulemakings: Detroit, MI (60 FR 12467-12468 (March 7, 1995); Cleveland-Akron-Lorrain, OH (61 FR 20458, 20469-70, May 7, 1996); Louisville, KY (66 FR 53665, 53669, October 23, 2001); Grand Rapids, MI (61 FR 31831, 31836-31837, June 21, 1996). In the case of the Scranton/Wilkes-Barre Area the Chapter 127 Part D NSR regulations in the Pennsylvania SIP (codified at 40 CFR 52.2020(c)(1)) explicitly apply the requirements for NSR in section 184 of the Clean Air Act to ozone attainment areas within the Ozone Transport Region (OTR). The OTR NSR requirements are more stringent than that required for a marginal or basic ozone nonattainment area. On October 19, 2001 (66 FR 53094), EPA fully approved Pennsylvania's NSR SIP revision consisting of Pennsylvania's Chapter 127 Part D NSR regulations that cover the Scranton/Wilkes-Barre Area. EPA has also interpreted the section 184 OTR requirements, including the NSR program, as not being applicable for purposes of redesignation. The rationale for this is based on two considerations. First, the requirement to submit SIP revisions for the section 184 requirements continues to apply to areas in the OTR after redesignation to attainment. Therefore, the State remains obligated to have NSR, as well as reasonably available control technology (RACT), and Vehicle Inspection and Maintenance programs even after redesignation. Second, the section 184 control measures are region-wide requirements and do not apply to the Scranton/Wilkes-Barre Area solely by virtue of the Area's designation and classification. *See* 61 FR 53174, 53175-53176 (October 10, 1996) and 62 FR 24826, 24830-32 (May 7, 1997). 3. Part D Nonattainment Area Requirements Under the 1-Hour Standard In its June 8, 2007 decision, the Court limited its vacatur so as to uphold those provisions of the anti-backsliding requirements that were not successfully challenged. Therefore the Scranton/Wilkes-Barre Area must meet the federal anti-backsliding requirements. *See* 40 CFR 51.900, *et seq.* ; 70 FR 30592, 30604 (May 26, 2005), which apply by virtue of the Area's classification for the 1-hour ozone NAAQS. As set forth in more detail below, the Area must also address four additional anti-backsliding provisions identified by the Court in its decisions. The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe 1-hour ozone NAAQS requirements that continue to apply after revocation of the 1-hour ozone NAAQS to former 1-hour ozone nonattainment areas. Section 51.905(a)(1)(i) provides that: “The area remains subject to the obligation to adopt and implement the applicable requirements as defined in section 51.900(f), except as provided in paragraph (a)(1)(iii) of paragraph

(b)of this section.” Section 51.900(f), as amended by 70 FR 30592, 30604 (May 26, 2005), states that: Applicable requirements means for an area the following requirements to the extent such requirements applied to the area for the area's classification under section 181(a)(1) of the Clean Air Act for the 1-hour NAAQS at the time of designation for the 8-hour NAAQS.

(1)Reasonably available control technology (RACT).

(2)Inspection and maintenance programs (I/M).

(3)Major source applicability cut-offs for purposes of RACT.

(4)Rate of Progress

(ROP)reductions.

(5)Stage II vapor recovery.

(6)Clean fuels fleet program under section 183(c)(4) of the Clean Air Act.

(7)Clean fuels for boilers under section 182(e)(3) of the Clean Air Act.

(8)Transportation Control Measures

(TCMs)during heavy traffic hours as required by section 182(e)(4) of the Clean Air Act.

(9)Enhanced (ambient) monitoring under section 182(c)(1) of the Clean Air Act.

(10)Transportation control measures

(TCMs)under section 182(c)(5) of the Clean Air Act.

(11)Vehicle miles traveled

(VMT)provisions of section 182(d)(1) of the Clean Air Act.

(12)NO X requirements under section 182(f) of the Clean Air Act.

(13)Attainment demonstration or alternative as provided under section 51.905(a)(1)(ii). Pursuant to 40 CFR 51.905(c), the Scranton/Wilkes-Barre Area is subject to the obligations set forth in 51.905(a) and 51.900(f). Prior to its designation as an 8-hour ozone nonattainment area, the Scranton/Wilkes-Barre Area was designated a marginal nonattainment area for the 1-hour standard. With respect to the 1-hour standard, the applicable requirements under the anti-backsliding provisions at 40 CFR 51.905(a)(1) for the Scranton/Wilkes-Barre Area are limited to RACT and I/M programs specified in section 182(a) of the Clean Air Act and are discussed in the following paragraphs: Section 182(a)(2)(A) required SIP revisions to correct or amend RACT for sources in marginal areas, such as the Scranton/Wilkes-Barre Area, that were subject to control technique guidelines

(CTGs)issued before November 15, 1990 pursuant to Clean Air Act section 108. On December 22, 1994, EPA fully approved into the Pennsylvania SIP all corrections required under section 182(a)(2)(A) of the Clean Air Act (59 FR 65971, December 22, 1994). EPA believes that this requirement applies only to marginal and higher classified areas under the 1-hour NAAQS pursuant to the 1990 amendments to the Clean Air Act; therefore, this is a one-time requirement. After an area has fulfilled the section 182(a)(2)(A) requirement for the 1-hour NAAQS, there is no requirement under the 8-hour NAAQS. Section 182(a)(2)(B) relates to the savings clause for vehicle inspection and maintenance (I/M). It requires marginal areas to adopt vehicle I/M programs. This provision was not applicable to the Scranton/Wilkes-Barre Area because this area did not have, and was not required to have, an I/M program before November 15, 1990. In addition the Court held that EPA should have retained four additional measures in its anti-backsliding provisions:

(1)Nonattainment area NSR;

(2)Section 185 penalty fees;

(3)contingency measures under section 172(c)(9) or 182(c)(9) of the Clean Air Act; and

(4)1-hour motor vehicle emission budgets that were yet not replaced by 8-hour emissions budgets. These requirements are addressed below: With respect to NSR, EPA has determined that areas being redesignated need not have an approved nonattainment New Source Review program, for the same reasons discussed previously with respect to the applicable Part D requirement for the 8-hour standard. The section 185 penalty fee requirement was not applicable in the Scranton/Wilkes-Barre 1-hour marginal nonattainment area. With respect to the requirement for submission of contingency measures for the 1-hour standard, section 182(a) does not require contingency measures for marginal areas. The conformity portion of the Court's ruling does not impact the redesignation request for the Scranton/Wilkes-Barre Area except to the extent that the Court in its June 8 decision clarified that for those areas with 1-hour MVEBs, anti-backsliding requires that those 1-hour budgets must be used for 8-hour conformity determinations until replaced by 8-hour budgets. To meet this requirement, conformity determinations in such areas must comply with the applicable requirements of EPA's conformity regulations at 40 CFR part 93. The court clarified that 1-hour conformity determinations are not required for anti-backsliding purposes. Thus EPA has concluded that the area has met all requirements applicable for redesignation under the 1-hour standard. 4. Transport Region Requirements All areas in the Ozone Transport Region (OTR), both attainment and nonattainment, are subject to additional control requirements under section 184 for the purpose of reducing interstate transport of emissions that may contribute to downwind ozone nonattainment. The section 184 requirements include RACT, NSR, enhanced vehicle inspection and maintenance (I/M), and Stage II vapor recovery or a comparable measure. In the case of the Scranton/Wilkes-Barre Area, which is located in the OTR, nonattainment NSR will continue to be applicable after redesignation. On October 19, 2001, EPA approved the 1-hour NSR SIP revision for the Area. *See* 66 FR 53094 (October 19, 2001). EPA has also interpreted the section 184 OTR requirements, including NSR, as not being applicable for purposes of redesignation. Reading, PA Redesignation, 61 FR 53174, (October 10, 1996), 62 FR 24826 (May 7, 1997). The rationale for this is based on two considerations. First, the requirement to submit SIP revisions for the section 184 requirements continues to apply to areas in the OTR after redesignation to attainment. Therefore, the Commonwealth remains obligated to have NSR, as well as RACT, and I/M even after redesignation. Second, the section 184 control measures are region-wide requirements and do not apply to the area by virtue of the area's nonattainment designation and classification, and thus are properly considered not relevant to an action changing an area's designation. *See* 61 FR 53174, 53175-6 (October 10, 1996) and 62 FR 24826, 24830-32 (May 7, 1997). 5. Scranton/Wilkes-Barre Has a Fully Approved SIP for Purposes of Redesignation EPA has fully approved the Pennsylvania SIP for the purposes of this redesignation. EPA may rely on prior SIP approvals in approving a redesignation request. Calcagni Memo, p. 3; *Southwestern Pennsylvania Growth Alliance* v. *Browner,* 144 F. 3d 984, 989-90 (6th Cir. 1998), *Wall* v. *EPA,* 265 F. 3d 426 (6th Cir. 2001), plus any additional measures it may approve in conjunction with a redesignation action. *See* 68 FR at 25425 (May 12, 2003) and citations therein. C. The Air Quality Improvement in the Scranton/Wilkes-Barre Area Is Due to Permanent and Enforceable Reductions in Emissions Resulting From Implementation of the SIP and Applicable Federal Air Pollution Control Regulations and Other Permanent and Enforceable Reductions EPA believes that the Commonwealth has demonstrated that the observed air quality improvement in the Scranton/Wilkes-Barre Area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal measures, and other State-adopted measures. Emissions reductions attributable to these rules are shown in Table 3. Table 3.—Total VOC and NO X Emissions for 2002 and 2004 in Tons per Summer Day

(tpsd)Year Point* Area Nonroad mobile Highway mobile Total Volatile Organic Compounds

(VOC)2002 4.6 36.0 36.6 19.0 96.2 2004 3.8 35.3 31.6 18.9 89.6 Difference (2002-04) −0.8 −0.7 −5.0 −0.1 −6.6 Nitrogen Oxides (NO X ) 2002 8.4 3.8 74.4 11.3 97.9 2004 7.0 3.9 66.1 10.9 87.9 Difference (2002-04) −1.4 +0.1 −8.3 −0.4 −10.0 * The stationary point source emissions shown do not include banked emissions reduction credits

(ERCs)for sources listed in Technical Appendix A-4 to Pennsylvania's SIP submission. The banked ERCs include the following: ○ MACtac, Scranton Facility—0.20 tpsd VOC. ○ Proctor & Gamble, Hehoopany—1.70 tpsd VOC and 0.73 tpsd NO X. ○ TECHNEGLAS, Pittston—2.11 tpsd VOC and 0.09 tpsd NO X. ○ Thomson No. 1, Dunmore—0.15 tpsd VOC and 0.02 tpsd NO X. ○ Williams Generation, Hazelton Cogeneration—2.61 tpsd NO X. Between 2002 and 2004, VOC emissions decreased by 6.6 tpsd from 96.2 tpsd to 89.6 tpsd. NO X emissions decreased over the same period by 10.0 tpsd from 97.9 tpsd to 87.9 tpsd. EPA believes that permanent and enforceable emissions reductions are the cause of the long-term improvement in ozone levels and are the cause of the Area achieving attainment of the 8-hour ozone standard. These reductions, as well as anticipated future reductions, are due to the following permanent and enforceable measures. 1. Stationary Point Sources Federal NO X SIP Call (66 FR 43795, August 21, 2001) 2. Stationary Area Sources Solvent Cleaning (68 FR 2206, January 16, 2003) Portable Fuel Containers (69 FR 70893, December 8, 2004) 3. Highway Vehicle Sources Federal Motor Vehicle Control Programs (FMVCP) —Tier 1 (56 FR 25724, June 5, 1991) —Tier 2 (65 FR 6698, February 10, 2000) —Heavy-duty Engine and Vehicle Standards (62 FR 54694, October 21, 1997, and 65 FR 59896, October 6, 2000) National Low Emission Vehicle

(NLEV)Program (64 FR 72564, December 28, 1999) PA Vehicle Emission Inspection/Maintenance Program & Changes to Vehicle Safety Inspection Program in non-I/M Counties (70 FR 58313, October 6, 2005) 4. Non-Road Sources Non-road Diesel (69 FR 38958, June 29, 2004) D. The Scranton/Wilkes-Barre Area Has a Fully Approvable Maintenance Plan Pursuant to Section 175A of the Clean Air Act In conjunction with its request to redesignate the Scranton/Wilkes-Barre ozone nonattainment Area to attainment status, Pennsylvania submitted a SIP revision to provide for maintenance of the 8-hour ozone NAAQS in the Area for at least 11 years after redesignation. The Commonwealth is requesting that EPA approve this SIP revision as meeting the requirement of Clean Air Act section 175A. Once approved, the maintenance plan for the 8-hour ozone NAAQS will ensure that the SIP for the Scranton/Wilkes-Barre Area meets the requirements of the Clean Air Act regarding maintenance of the applicable 8-hour ozone standard. What Is Required in a Maintenance Plan? Section 175 of the Clean Air Act sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after approval of a redesignation of an area to attainment. Eight years after the redesignation, the Commonwealth must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures, with a schedule for implementation, as EPA deems necessary to assure prompt correction of any future 8-hour ozone violations. Section 175A of the Clean Air Act sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The Calcagni memorandum dated September 4, 1992, provides additional guidance on the content of a maintenance plan. An ozone maintenance plan should address the following provisions:

(a)An attainment emissions inventory;

(b)A maintenance demonstration;

(c)A monitoring network;

(d)Verification of continued attainment; and

(e)A contingency plan. Analysis of the Scranton/Wilkes-Barre Area Maintenance Plan

(a)*Attainment inventory* —An attainment inventory includes the emissions during the time period associated with the monitoring data showing attainment. PADEP determined that the appropriate attainment inventory year is 2004. That year establishes a reasonable year within the three-year block of 2004-2006 as a baseline and accounts for reductions attributable to implementation of the Clean Air Act requirements to date. The 2004 inventory is consistent with EPA guidance and is based on actual “typical summer day” emissions of VOC and NO X during 2004 and consists of a list of sources and their associated emissions. The 2002 and 2004 point source data was compiled from actual sources. Pennsylvania requires owners and operators of larger facilities to submit annual production figures and emission calculations each year. Throughput data are multiplied by emission factors from Factor Information Retrieval

(FIRE)Data Systems and EPA's publication series AP-42, and are based on Source Classification Codes (SCC). The 2002 area source data was compiled using county-level activity data, from census numbers, from county numbers, etc. The 2004 area source data was projected from the 2002 inventory using temporal allocations provided by the Mid-Atlantic Regional Air Management Association (MARAMA). The on-road mobile source inventories for 2002 and 2004 were compiled using MOBILE6.2 and Pennsylvania Department of Transportation (PENNDOT) estimates for VMT. The PADEP has provided detailed data summaries to document the calculations of mobile on-road VOC and NO X emissions for 2002, as well as for the projection years of 2004, 2009, and 2018 (shown in Tables 5 and 6 below). The 2002 and 2004 emissions for the majority of non-road emission source categories were estimated using the EPA NONROAD 2005 model. The NONROAD model calculates emissions for diesel, gasoline, liquefied petroleum gasoline, and compressed natural gas-fueled non-road equipment types and includes growth factors. The NONROAD model does not estimate emissions from locomotives or aircraft. For 2002 and 2004 locomotive emissions, the PADEP projected emissions from a 1999 survey using national fuel consumption information and EPA emission and conversion factors. Emissions from commercial aircraft for 2002 and 2004 are estimated using EPA-approved Emissions & Dispersion Modeling System

(EDMS)4.20, the latest version available at the time the inventory was prepared. The Scranton/Wilkes-Barre International Airport

(AVP)accounts for all commercial air traffic in the area. Small aircraft emissions were calculated using small airport statistics from the Federal Aviation Administration's APO Terminal Area Forecast Report and the Web site *http://www.airnav.com* . More detailed information on the compilation of the 2002, 2004, 2009, and 2018 inventories can found in the Technical Appendices, which are part of the June 12, 2007 state submittal.

(b)*Maintenance Demonstration* —On June 12, 2007, the PADEP submitted a maintenance plan as required by section 175A of the Clean Air Act. The Scranton/Wilkes-Barre Area maintenance plan shows maintenance of the 8-hour ozone NAAQS by demonstrating that current and future emissions of VOC and NO X remain at or below the attainment year 2004 emissions levels throughout the Area through the year 2018. A maintenance demonstration need not be based on modeling. *See Wall* v. *EPA, supra* ; *Sierra Club* v. *EPA, supra* . *See also,* 66 FR at 53099-53100; 68 FR at 25430-32. Tables 4 and 5 specify the VOC and NO X emissions for the Scranton/Wilkes-Barre Area for 2004, 2009, and 2018. The PADEP chose 2009 as an interim year in the maintenance demonstration period to demonstrate that the VOC and NO X emissions are not projected to increase above the 2004 attainment level during the time of the maintenance period. Table 4.—Total VOC Emissions for 2004-2018

(tpsd)Source category 2004 2009 2018 Point 3.8 4.6 5.9 Area 35.3 33.7 36.3 Highway Mobile 31.6 2.2 16.9 Nonroad Mobile 18.9 16.5 13.2 Total 89.6 80.0 72.3 Table 5.—Total NO X Emissions for 2004-2018

(tpsd)Source category 2004 2009 2018 Point 7.0 9.3 10.4 Area 3.9 4.1 4.4 Highway Mobile 66.1 48.3 23.7 Nonroad Mobile 10.9 8.9 5.6 Total 87.9 70.6 44.1 Additionally, the following programs are either effective or due to become effective and will further contribute to the maintenance demonstration of the 8-hour ozone NAAQS: • The Clean Air Interstate Rule (71 FR 25328, April 28, 2006). • The Federal NO X SIP Call (66 FR 43795, August 21, 2001). • Portable Fuel Containers Rule (69 FR 70893, December 8, 2004). • Consumer Products Rule (69 FR 70895, December 8, 2004). • Architectural and Industrial Maintenance

(AIM)Coatings (69 FR 68080, November 23, 2004). • Federal Light-duty Highway Vehicle Control Program (FMVCP)—Tier 1/Tier 2 Emissions Standards (Model Year 1994/2004); (Tier 1—56 FR 25724, June 5, 1991); (Tier 2—65 FR 6698, February 10, 2000). • Federal Heavy-duty Diesel Highway Engine Standards (Model Year 2004/2007)/Low-Sulfur Highway Diesel Fuel Standards (2006); (66 FR 5002, January 18, 2001). • Federal Nonroad Engine Emission Standards (Model Year 2008) and Nonroad Diesel Fuel 2007); (69 FR 38958, June 29, 2004). • NLEV/PA Clean Vehicle Program (54 FR 72564, December 28, 1999). • PA Vehicle Emission Inspection and Maintenance Program and Changes to Vehicle Safety Inspection Program for Non-I/M Counties (70 FR 58313, October 6, 2005). Based on the comparison of the projected emissions and the attainment year emissions along with the additional measures, EPA concludes that PADEP has successfully demonstrated that the 8-hour ozone standard should be maintained in the Scranton/Wilkes-Barre Area.

(c)*Monitoring Network* —There are four ozone monitors (located in Lackawanna and Luzerne Counties) that were used to support the Commonwealth's ozone maintenance plan for the Scranton/Wilkes/Barre area. The Commonwealth has committed to continue to operate its monitoring network in accordance with 40 CFR part 58, with no reduction in the number of sites.

(d)*Verification of Continued Attainment* —In addition to maintaining the key elements of its regulatory program, the Commonwealth will track the attainment status of the ozone NAAQS in the Area by reviewing air quality and emissions data during the maintenance period. The Commonwealth will perform an annual evaluation of Vehicle Miles Traveled

(VMT)data and emissions reported from stationary sources, and compare them to the assumptions about these factors used in the maintenance plan. The Commonwealth will also evaluate the periodic (every three years) emission inventories prepared under EPA's Consolidated Emission Reporting Regulation (40 CFR 51, subpart A) to see if they exceed the attainment year inventory

(2004)by more than 10 percent. The PADEP will also continue to operate the existing ozone monitoring station in the Area pursuant to 40 CFR part 58 throughout the maintenance period and submit quality-assured ozone data to EPA through the AQS system. Section 175A(b) of the Clean Air Act states that eight years following redesignation of the Scranton/Wilkes-Barre Area, PADEP will be required to submit a second maintenance plan that will ensure attainment through 2028. PADEP has made that commitment to meet the requirement section 175A(b).

(e)*The Maintenance Plan's Contingency Measures* —The contingency plan provisions are designed to promptly correct a violation of the NAAQS that occurs after redesignation. Section 175A of the Clean Air Act requires that a maintenance plan include such contingency measures as EPA deems necessary to ensure that the Commonwealth will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the events that would “trigger” the adoption and implementation of a contingency measure(s), the contingency measure(s) that would be adopted and implemented, and the schedule indicating the time frame by which the state would adopt and implement the measure(s). The ability of the Scranton/Wilkes-Barre Area to stay in compliance with the 8-hour ozone standard after redesignation depends upon VOC and NO X emissions in the Area remaining at or below 2004 levels. The Commonwealth's maintenance plan projects VOC and NO X emissions to decrease and stay below 2004 levels through the year 2018. The Commonwealth's maintenance plan outlines the procedures for the adoption and implementation of contingency measures to further reduce emissions should a violation occur. Contingency measures will be considered if for two consecutive years the fourth highest 8-hour ozone concentration at any Scranton/Wilkes-Barre Area monitor is above 84 ppb. If this trigger point occurs, the Commonwealth will evaluate whether additional local emission control measures should be implemented in order to prevent a violation of the air quality standard. PADEP will also analyze the conditions leading to the excessive ozone levels and evaluate which measures might be most effective in correcting the excessive ozone levels. PADEP will also analyze the potential emissions effect of Federal, state and local measures that have been adopted but not yet implemented at the time the excessive ozone levels occurred. PADEP will then begin the process of implementing any selected measures. Contingency measures will also be considered in the event that a violation of the 8-hour ozone standard occurs at any Scranton/Wilkes-Barre Area monitor. In the event of a violation of the 8-hour ozone standard, PADEP will adopt additional emissions reduction measures as expeditiously as practicable in accordance with the implementation schedule listed later in this notice and in the Pennsylvania Air Pollution Control Act in order to return the Area to attainment with the standard. Contingency measures to be considered for the Scranton/Wilkes-Barre Area will include, but not be limited to the following: *Regulatory measures:* —Additional controls on consumer products. —Additional controls on portable fuel containers. *Non-Regulatory measures:* —Voluntary diesel engine “chip reflash” (installation software to correct the defeat device option on certain heavy-duty diesel engines). —Diesel retrofits, including replacement, repowering or alternative fuel use, for public or private local on-road or off-road fleets. —Idling reduction technology for Class 2 yard locomotives. —Idling reduction technologies or strategies for truck stops, warehouses and other freight handling facilities. —Accelerated turnover of lawn and garden equipment, especially commercial equipment, including promotion of electric equipment. —Additional promotion of alternative fuel (e.g., biodiesel) for home heating and agricultural use. The plan sets forth a process to have regulatory contingency measures in effect within 19 months of the trigger. The plan also lays out a process to implement non-regulatory contingency measures within 12-24 months of the trigger. VII. Are the Motor Vehicle Emissions Budgets Established and Identified in the Scranton/Wilkes-Barre Maintenance Plan Adequate and Approvable? A. What Are the Motor Vehicle Emissions Budgets? Under the Clean Air Act, States are required to submit, at various times, control strategy SIPs and maintenance plans in ozone areas. These control strategy SIPs (i.e., reasonable further progress SIPs and attainment demonstration SIPs) and maintenance plans identify and establish MVEBs for certain criteria pollutants and/or their precursors to address pollution from on-road mobile sources. In the maintenance plan, the MVEBs are termed “on-road mobile source emission budgets.” Pursuant to 40 CFR part 93 and 51.112, MVEBs must be established in an ozone maintenance plan. An MVEB is the portion of the total allowable emissions that is allocated to highway and transit vehicle use and emissions. An MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble also describes how to establish and revise the MVEBs in control strategy SIPs and maintenance plans. Under section 176(c) of the Clean Air Act, new transportation projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the part of a State's air quality plan that addresses pollution from cars and trucks. “Conformity” to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of or reasonable progress towards the NAAQS. If a transportation plan does not “conform,” most new projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and ensuring conformity of such transportation activities to a SIP. When reviewing submitted “control strategy” SIPs or maintenance plans containing MVEBs, EPA must affirmatively find the MVEB contained therein “adequate” for use in determining transportation conformity. After EPA affirmatively finds the submitted MVEB is adequate for transportation conformity purposes, the MVEB can be used by state and federal agencies in determining whether proposed transportation projects “conform” to the SIP as required by section 176(c) of the Clean Air Act. EPA's substantive criteria for determining “adequacy” of a MVEB are set out in 40 CFR 93.118(e)(4). EPA's process for determining “adequacy” consists of three basic steps: public notification of a SIP submission, a public comment period, and EPA's adequacy finding. This process for determining the adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 1999 guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” This guidance was finalized in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change” on July 1, 2004 (69 FR 40004). EPA consults this guidance and follows this rulemaking in making its adequacy determinations. The MVEBS for the Scranton/Wilkes-Barre Area are listed in Table 1 for 2009 and 2018. Table 1 presents the projected emissions for the on-road mobile sources plus any portion of the safety margin allocated to the MVEBs (safety margin allocation for 2009 and 2018 only). These emission budgets, when approved by EPA, must be used for transportation conformity determinations. B. What Is a Safety Margin? A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. The following example is for the 2018 safety margin: the Scranton/Wilkes-Barre Area first attained the 8-hour ozone NAAQS during the 2002 to 2004 time period. The Commonwealth used 2004 as the year to determine attainment levels of emissions for the Scranton/Wilkes-Barre Area. The total emissions from point, area, on-road mobile, and nonroad mobile sources in 2004 equaled 89.6 tpsd of VOC and 87.9 tpsd of NO X . The PADEP projects total emissions for the year 2018 to be 72.3 tpsd of VOC and 44.1 tpsd of NO X from all sources in the Scranton/Wilkes-Barre area. The safety margin for 2018 would be the difference between these amounts, or 17.3 tpsd of VOC and 43.8 tpsd of NO X . The emissions up to the level of the attainment year including the safety margins are projected to maintain the area's air quality consistent with the 8-hour ozone NAAQS. The safety margin is the extra emissions reduction below the attainment levels that can be allocated for emissions by various sources as long as the total emission levels are maintained at or below the attainment levels. Table 6 shows the safety margins for the 2009 and 2018 years. Table 6.—Safety Margins for Scranton/Wilkes-Barre (2009 & 2018) Inventory year VOC emissions

(tpsd)NO X emissions

(tpsd)2004 Attainment 89.6 87.9 2009 Interim 80.0 70.6 2009 Safety Margin 9.6 17.3 2004 Attainment 89.6 87.9 2018 Final 72.3 44.1 2018 Safety Margin 17.3 43.8 The PADEP allocated 1.85 tpsd VOC and 1.4 tpsd NO X of the 2009 safety margin to the 2009 interim VOC projected on-road mobile source emissions projection and the 2009 interim NO X projected on-road mobile source emissions projection to arrive at the 2009 MVEBs. For the 2018 MVEBs, the PADEP allocated 2.6 tpsd VOC and 2.1 tpsd NO X from the 2018 safety margins to arrive at the 2018 MVEBs. Once allocated to the mobile source budgets these portions of the safety margins are no longer available, and may no longer be allocated to any other source category. Table 7 shows the final 2009 and 2018 Scranton/Wilkes-Barre Area MVEBs. Table 7.—Final Motor Vehicle Emission Budgets for Scranton/Wilkes-Barre Area* (2009 & 2018) Inventory year VOC emissions

(tpsd)NO X emissions

(tpsd)2009 Projected On road Emissions 23.3 46.9 2009 Safety Margin Allocated to MVEBs 1.85 1.40 2009 MVEBs 25.2 48.3 2018 Projected On road Emissions 14.3 21.6 2018 Safety Margin Allocated to MVEBs 2.6 2.1 2018 MVEBs 16.9 23.7 *PA DEP calculates MVEBS using kilograms per summer day, and also lists the values in tons per summer day, rounded to 3 significant digits. This appears to make the totals in the table incorrect, but is merely the result of the rounded tpsd values. C. Why Are the MVEBs Approvable? The 2009 and 2018 MVEBs for the Scranton/Wilkes-Barre Area are approvable because the MVEBs for VOCs and NO X continue to maintain the total emissions at or below the attainment year inventory levels as required by the transportation conformity regulations. D. What Is the Adequacy and Approval Process for MVEBs in the Maintenance Plan? The MVEBs for the Scranton/Wilkes-Barre Area maintenance plan are being posted to EPA's conformity Web site concurrently with this proposal. The public comment period will end at the same time as the public comment period for this proposed rule. In this case, EPA is concurrently processing the Clean Air Action on the maintenance plan and the adequacy process for the MVEBs contained therein. In this proposed rule, EPA is proposing to find the MVEBs adequate and EPA is proposing to approve the MVEBs as part of the maintenance plan. The MVEBs cannot be used for transportation conformity until the maintenance plan and associated MVEBs are approved in a final **Federal Register** notice, or EPA otherwise finds the budgets adequate in a separate action following the comment period. If EPA receives adverse written comments with respect to the proposed approval of the Area's MVEBs, or any other aspect of our proposed approval of this updated maintenance plan, we will respond to the comments on the MVEBs in our final action or proceed with the adequacy process as a separate action. Our action on the Scranton/Wilkes-Barre Area MVEBs will also be announced on EPA's conformity Web site: *http://www.epa.gov/otaq/stateresources/transconf/index.htm* (from there, click on “Adequacy Review of SIP Submissions”). VIII. Proposed Actions EPA is proposing to determine that the Scranton/Wilkes-Barre Area has attained the 8-hour ozone NAAQS. EPA is also proposing to approve the redesignation of the Scranton/Wilkes-Barre Area from nonattainment to attainment for the 8-hour ozone NAAQS. EPA has evaluated Pennsylvania's redesignation request and determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the Clean Air Act. EPA believes that the redesignation request and monitoring data demonstrate that the Area has attained the 8-hour ozone standard. The final approval of this redesignation request would change the designation of the Scranton/Wilkes-Barre Area from nonattainment to attainment for the 8-hour ozone standard. EPA is also proposing to approve the associated maintenance plan for the Area, submitted on June 12, 2007, as a revision to the Pennsylvania SIP. EPA is proposing to approve the maintenance plan for the Scranton/Wilkes-Barre Area because it meets the requirements of section 175A as described previously in this notice. EPA is also proposing to approve the 2002 base-year inventory for the Scranton/Wilkes-Barre Area, and the MVEBs submitted by Pennsylvania for the Area in conjunction with its redesignation request. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. IX. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Redesignation of an area to attainment under section 107(d)(3)(e) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. Redesignation of an area to attainment under section 107(d)(3)(E) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Because this action affects the status of a geographical area or allows the state to avoid adopting or implementing other requirements and because this action does not impose any new requirements on sources, this proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Redesignation is an action that affects the status of a geographical area and does not impose any new requirements on sources. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued under the executive order. This rule, proposing to approve the redesignation of the Scranton/Wilkes-Barre Area to attainment for the 8-hour ozone NAAQS, the associated maintenance plan, the 2002 base-year inventory, and the MVEBs identified in the maintenance plan, does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. 40 CFR Part 81 Air pollution control, National parks, Wilderness areas. Authority: 42 U.S.C. 7401 *et seq.* Dated: September 14, 2007. Donald S. Welsh, Regional Administrator, Region III. [FR Doc. E7-18844 Filed 9-24-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 571 [Docket No. NHTSA-2007-28710] RIN 2127-AK02 Federal Motor Vehicle Safety Standards; Occupant Crash Protection AGENCY: National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: NHTSA is proposing to amend Federal Motor Vehicle Safety Standard (FMVSS) No. 208, “Occupant crash protection,” to update the child restraint systems

(CRSs)listed in Appendix A of the standard. The CRSs in Appendix A are used by NHTSA to test advanced air bag suppression or low risk deployment systems, to ensure that the air bag systems pose no reasonable safety risk to infants and small children in the real world. The amendments proposed today would replace some CRSs listed in Appendix A with CRSs that are more representative of the CRS fleet currently on the market. The agency proposes to delete six existing CRSs and to add five new CRSs. Since the appendix has not been revised since 2003, NHTSA also seeks comment on whether seven other CRSs in the appendix should be replaced with CRSs with essentially the same features but more recently produced. DATES: You should submit comments early enough to ensure that Docket Management receives them not later than October 25, 2007. If adopted, most of the amendments would be effective for the next model year introduced one year after the publication of a final rule. Optional early compliance would be permitted. See discussion under “Proposed Compliance Dates” section in the preamble of this NPRM. ADDRESSES: You may submit comments [identified by DOT Docket ID Number 28710] by any of the following methods: If filing comments by September 27, 2007, please use: • *Web Site: http://dms.dot.gov* . Follow the instructions for submitting comments on the Department of Transportation Docket Management System electronic docket site. No electronic submissions will be accepted between September 28, 2007, and October 1, 2007. If filing comments on or after October 1, 2007, use: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the online instructions for submitting comments. Alternatively, you can file comments using the following methods: • *Mail:* Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. • *Hand Delivery or Courier:* West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays. • *Fax:* 202-493-2251 *Instructions:* For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the Supplementary Information section of this document. Note that all comments received will be posted without change to *http://www.dms.dot.gov* or *http://www.regulations.gov* , including any personal information provided. Please see the Privacy Act heading below. *Privacy Act:* Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78). *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* until September 27, 2007, or the street address listed above. The DOT docket may be offline at times between September 28 through September 30 to migrate to the Federal Docket Management System (FDMS). On October 1, 2007, the Internet access to the docket will be at *http://www.regulations.gov* . Follow the online instructions for accessing the dockets. FOR FURTHER INFORMATION CONTACT: Ms. Carla Cuentas, Office of Crashworthiness Standards, Light Duty Vehicle Division (telephone 202-366-4583, fax 202-493-2739). For legal issues, contact Ms. Deirdre Fujita, Office of Chief Counsel (telephone 202-366-2992, fax 202-366-3820). You may send mail to these officials at the National Highway Traffic Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building, Washington, DC 20590. SUPPLEMENTARY INFORMATION: Table of Contents I. Background II. In Deciding To Update Appendix A a. Guiding Factors b. Child Restraint Data c. Additional Considerations 1. Seat Back Height 2. Handles and Sunshields 3. Non-LATCH Child Restraints III. Proposed Changes a. Deletions 1. Deletion of the Britax Handle With Care 191 From Subpart B 2. Deletion of the Century Assura 4553 From Subpart B 3. Deletion of the Century (Graco) Encore 4612 From Subpart C 4. Deletion of the Cosco Olympian 02-803 and the Safety First Comfort Ride 22-400 From Subpart C 5. Deletion of the Britax Expressway ISOFIX From Subpart C b. Additions 1. Addition of the Graco Snugride #8643 to Subpart B 2. Addition of the Peg Perego Primo Viaggio #IMCC00US to Subpart B 3. Addition of the Cosco Summit Deluxe #22-260 to Subpart C 4. Addition of the Graco SafeSeat (Step 2) #8B02 to Subpart C 5. Addition of the Evenflo Generations #352 to Subpart C c. Updating Other CRSs in Appendix A IV. Proposed Compliance Dates V. Clarity of the Tables in Appendix A VI. Public Participation VII. Rulemaking Analyses and Notices I. Background Federal Motor Vehicle Safety Standard (FMVSS) No. 208, “Occupant crash protection” (49 CFR 571.208), requires light passenger vehicles to be equipped with safety belts and frontal air bags for the protection of vehicle occupants in crashes. While air bags have been very effective in protecting people in moderate and high speed frontal crashes, there have been instances in which they have caused serious or fatal injuries to occupants who were very close to the air bag when it deployed. On May 12, 2000, NHTSA published a final rule to require that future air bags be designed to create less risk of serious air bag-induced injuries than current air bags and provide improved frontal crash protection for all occupants, by means that include advanced air bag technology (“Advanced Air Bag Rule,” 65 FR 30680, Docket No. NHTSA 00-7013). Under the Advanced Air Bag Rule, to minimize the risk to infants and small children from deploying air bags, manufacturers may suppress an air bag in the presence of a child restraint system

(CRS)or provide a low risk deployment

(LRD)system. 1 1 The LRD option involves deployment of the air bag in the presence of a Child Restraint Air Bag Interaction (CRABI) test dummy, representing a 12-month-old child, in a rear-facing child restraint. To minimize the risk to children, manufacturers choosing to rely on an air bag suppression system or LRD system must ensure that the vehicle complies with the suppression or LRD requirements when tested with the CRSs specified in Appendix A of the standard. As part of ensuring the robustness of automatic air bag suppression and LRD systems, NHTSA made sure that the appendix contained CRSs that represented a large portion of the CRS market and CRSs with unique size and weight characteristics. NHTSA also planned regular updates to Appendix A. On November 19, 2003, in response to petitions for reconsideration of the May 2000 Advanced Air Bag Rule, the agency published a final rule that revised Appendix A by adding two CRSs that were equipped with components that attach to a vehicle's LATCH 2 system (68 FR 65179, Docket No. NHTSA 03-16476). Since September 1, 2002, CRSs have been required by FMVSS No. 213, *Child Restraint Systems* (49 CFR § 571.213), to have permanently-attached components that enable the CRS to connect to a LATCH system on a vehicle. The addition of these “LATCH-equipped” CRSs to Appendix A was meant to keep the appendix up-to-date in reflecting current CRS designs. 3 2 “LATCH” stands for “Lower Anchors and Tethers for Children,” a term that was developed by child restraint manufacturers and retailers to refer to the standardized child restraint anchorage system that vehicle manufacturers must install in vehicles pursuant to FMVSS No. 225, *Child Restraint Anchorage Systems* (49 CFR 571.225). The LATCH system is comprised of two lower anchorages and one tether anchorage. Each lower anchorage is a rigid round rod or bar onto which the connector of a child restraint system can be attached. FMVSS No. 225 does not permit vehicle manufacturers to install LATCH systems in front designated seating positions unless the vehicle has an air bag on-off switch meeting the requirements of S4.5.4 of FMVSS No. 208. 3 The compliance date for the provision specifying testing with LATCH-equipped CRSs is September 1, 2008. Earlier dates were delayed (69 FR 51598, Docket 18905; 71 FR 51129, Docket 21244) because test procedures were not in place in FMVSS No. 208 to install LATCH-equipped CRSs in a repeatable manner until this year. CRSs in Appendix A Appendix A is made up of four

(4)subparts, subparts A through D. • Subpart A lists a car bed that can be used by the agency to test the suppression system of a vehicle that is manufactured on or after the effective date specified in Appendix A and that has been certified as being in compliance with 49 CFR 571.208, S19. • Subpart B lists rear-facing CRSs that can be used by the agency to test the suppression system or the low risk deployment capabilities of a vehicle that is manufactured on or after the effective date and prior to the termination date specified in the appendix and that has been certified as being in compliance with 49 CFR 571.208, S19. • Subpart C lists forward-facing toddler and forward-facing convertible 4 CRSs that can be used by the agency to test the suppression system or the low risk deployment capabilities of a vehicle that is manufactured on or after the effective date and prior to the termination date specified in the appendix and that has been certified as being in compliance with 49 CFR 571.208, S19 or S21. 4 A convertible CRS is one that converts from a rear-facing seat to a forward-facing seat. A combination CRS is one that converts from a forward-facing seat to a booster seat or a CRS that is a convertible that can also be used as a booster. • Subpart D lists forward-facing toddler/belt positioning booster systems and belt positioning booster systems that can be used by the agency to test the suppression system capabilities of a vehicle that is manufactured on or after the effective date and prior to the termination date specified in the appendix and that has been certified as being in compliance with 49 CFR 571.208, S21 or S23. There are one

(1)car bed, seven

(7)rear-facing child restraint systems, nine

(9)forward-facing toddler and forward-facing convertible CRSs 5 and four

(4)forward-facing toddler/belt positioning booster systems currently listed and deemed “effective” (i.e., may be used in compliance testing) in Appendix A. 5 Two of these nine forward-facing toddler and forward-facing convertible CRSs are effective on September 1, 2008. II. In Deciding To Update Appendix A a. Guiding Factors The November 2003 FMVSS No. 208 final rule discussed factors that the agency considers in deciding whether Appendix A should be updated (68 FR at 65188). NHTSA reviews the appendix to: Maintain a spectrum of CRSs that is representative of the CRS population in production, ensure that only relatively current restraints will be used for compliance testing, determine the availability of the CRSs and determine any change in design, other than those that are purely cosmetic. (If a change to a CRS were clearly cosmetic, such as color scheme or upholstery, the list would not be modified.) 6 In considering whether a particular restraint should be in Appendix A, the agency considers whether the restraint— 6 We also stated that, in considering whether to amend the appendix, we assess whether a variety of restraint manufacturers are represented in the appendix, and whether a combination of restraints are in the appendix. *Id.* —Has mass and dimensions *representative* of many restraints on the market, —Has mass and dimensions representing *outliers,* and —Has been a *high sales volume* model. NHTSA evaluated data, discussed in the next section, and undertook a systematic evaluation of the CRSs in Appendix A. We assessed child restraint system dimensions, weight

(mass)and sales volumes (based on confidential manufacturers' data) to identify which CRSs have dimensions that were representative of the average restraint in today's market, and which were possible outliers, with dimensions, weight 7 and/or footprints 8 markedly outside of those of the “average” CRS. In addition, the agency identified which CRSs had high production totals and, therefore, likely to have the greatest market share (highest sales volume). 7 Since the CRSs are used to test air bag suppression systems, it was important to identify which CRSs were the lightest and heaviest, and those that are representative of the average restraint in today's market in terms of weight. 8 Some air bag suppression systems may have trouble sensing a CRS if the footprint is shaped in a way that loads the air bag suppression system sensors or load cells differently than the CRSs for which the suppression system was designed to recognize. b. Child Restraint Data The data used for today's NPRM were obtained from CRS manufacturers and NHTSA's Ease-of-Use

(EOU)consumer information program. The agency's EOU program started in 2002 in response to the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act, which directed NHTSA to issue a notice to establish a child restraint safety rating consumer information program to provide practicable, readily understandable, and timely information to consumers for use in making informed decisions in the purchase of child restraints. The EOU program encourages CRS manufacturers to produce child restraints with features that make it easier for consumers to use and install correctly. The EOU program seeks to evaluate all CRSs available for sale at retail outlets. The 2006 EOU program assessed 99 different CRSs (including carryover seats from the previous year that were not changed), selected from 14 different manufacturers (Docket 25344). In addition to those 99 CRSs, data for the CRSs currently listed in Appendix A were also collected during the 2006 EOU program. These data were used to determine whether any changes to the appendix were warranted. c. Additional Considerations The agency also considered the following factors in considering changes to Appendix A. NHTSA is interested in comments on the agency's deliberations. 1. Seat Back Height Automatic air bag suppression systems suppress the air bag when a child or a child in a CRS is placed on the seat, and enable the air bag's deployment if an adult occupies the seat. The threshold for enabling the air bag's deployment is dependent on the design and calibration of the suppression system used. The agency developed Appendix A to include CRSs with a gamut of features that would robustly assess vehicle suppression technologies. With LRD systems for infants already being used in some vehicles, the agency sought to include, in Subpart B of Appendix A, rear-facing child restraints of varying seat back heights. It seemed especially prudent to have CRSs with low seat back heights. For rear-facing CRSs with relatively low seat back heights, an air bag mounted on the top of the instrument panel may not encounter any reaction surface (resistance) from the CRS seat back, so the air bag could be allowed to fully pressurize. In the real world, the deploying air bag—whose energy was not lowered because it encountered a CRS with the low seat back—may interact in a fully energized state with the child's head as the bag comes over the top of the CRS seat back. NHTSA sought to ensure that the CRSs in Subpart B would ensure that children would not be subjected to unreasonable safety risks from LRD systems. We included in Appendix A rear-facing and convertible CRSs with seat back heights that range from 12.75 to 27 in. 9 10 The rear-facing CRSs we are proposing to add to the appendix diversify the spectrum of seat back heights. 9 The upper end of the spectrum (27 in) represents convertible CRSs, which have higher seat back heights than rear-facing-only CRSs. 10 The height measurement used for the rear-facing CRSs is the height with their base. 2. Handles and Sunshields Features such as handles and sunshields of a rear-facing CRS may complicate and challenge the sensing operation of advanced air bag systems. To ensure that advanced air bags perform well with all types of rear-facing CRSs, we believe that the systems should be tested with rear-facing CRSs that have handles and sunshields. All rear-facing CRSs currently listed in the appendix have handles, and five

(5)of the seven

(7)rear-facing CRSs in the appendix have sunshields. The two rear-facing seats we are proposing to add to the appendix both have handles and sunshields. (We intend to adjust the handles and sunshields to the positions specified in the standard to ensure the robustness of the advanced air bag system.) 3. Non-LATCH Child Restraints Today's NPRM would replace some of the older non-LATCH CRSs in Appendix A with new LATCH-equipped CRSs. At the time of the November 19, 2003 final rule, the agency decided against replacing all the restraints with new LATCH restraints because it was thought at the time that such an amendment would have been a drastic change and would fail to account for the non-LATCH seats that were still being widely used. For today's NPRM, we did not find overriding reasons for retaining the non-LATCH CRSs we are proposing to delete in this NPRM. When the LATCH requirement became effective in 2002 for child restraints, it does not appear that CRS manufacturers changed CRS structures or designs. Accordingly, when tested in a condition where the LATCH restraints are not attached to the vehicle, both suppression and LRD systems would react to LATCH and non-LATCH CRSs similarly. III. Proposed Changes After considering the factors for decision-making discussed in the previous section of this preamble, we made tentative decisions about which CRSs should be replaced in Appendix A and which should remain. The following sections will discuss our proposed deletions and additions, along with corresponding rationale for these proposals. 11 Some CRSs undergo annual cosmetic changes that result in different model numbers for the new version. We are aware of one CRS that we are proposing to add that will likely change model numbers before the publication of a final rule. Therefore, the model numbers of CRSs in this NPRM will be reviewed and updated to reflect the latest information available from CRS manufacturers prior to publication of a final rule. 11 We noted in the November 2003 FMVSS No. 208 final rule that our periodic review of the child restraints in the appendix may cause the number of CRSs contained therein to change slightly as we identify different trends in the use of CRSs from prior periods. We believed that the number of CRSs should not vary by more than 10-20 percent absent any dramatic changes in the design of restraints. The agency proposes to delete six

(6)existing CRSs and to add five

(5)new CRSs. Below is Table 1 summarizing the proposed changes to the appendix. Table 1.—Summary of Proposed Deletions and Additions to Appendix A Name Type Appendix subpart DELETIONS Britax Handle With Care #191 Rear-Facing B Century Assura #4553 Rear-Facing B Century Encore #4612 Convertible C Cosco Olympian #02803 Convertible C Safety 1st Comfort Ride #22-400 Convertible C Britax Expressway ISOFIX Forward-Facing C ADDITIONS Graco Snugride Rear-Facing B Peg Perego Viaggio #IMCC00US Rear-Facing B Cosco Summit DX #22-260 Forward-Facing C Evenflo Generations #352 Convertible C Graco Safeseat (Step 2) Combination C a. Deletions Our proposed deletions were based generally on which CRSs did not offer any unique characteristics, those that were produced in the smallest quantities, or those that have not been in production for some time. If we eliminated a CRS that offered a unique characteristic, we made an attempt to replace it with a similar CRS. 1. Deletion of the Britax Handle With Care 191 From Subpart B The Britax Handle with Care 191 was one of the original CRSs listed in the appendix. The Handle with Care 191 is a rear-facing infant restraint seat with a five-point harness and no base. Because it is not LATCH-compatible, Britax discontinued this CRS on September 1, 2002 with the introduction of LATCH systems. Of all the rear-facing CRSs in Appendix A, it was the lightest (7.9 lb) and the CRS with the lowest production total. Some consumer Web sites report that few consumers purchased this CRS due to it not having a base and its high cost. 12 12 *http://www.windsorpeak.com/babybargains/bonus10.html* and *http://www.epinions.com/kifm-review-79DA-ACFDDA7-39C15E10-prod1.* After considering these findings, we tentatively conclude that this CRS is not representative of today's CRS fleet, nor does it offer any unique characteristics that are not already adequately represented in other seats remaining in or being added to the appendix (it is not an outlier). Accordingly, we propose its deletion from Appendix A. 2. Deletion of the Century Assura 4553 From Subpart B The Century Assura 4553 rear-facing CRS is representative of CRSs in today's market. However, there are CRSs on the appendix with similar characteristics which are more available than this CRS. This CRS was discontinued in 2002 and relatively few were ever produced. It became apparent during the collection of data for the CRSs currently in the appendix that the Century Assura was the same CRS as the Century Smart Fit minus the base. Accordingly, we tentatively conclude that this CRS should be deleted from Appendix A. 3. Deletion of the Century (Graco) Encore 4612 From Subpart C Graco discontinued this convertible CRS in 2001. Very few of these units were ever produced relative to other convertible CRSs. This CRS offers no unique dimensional or weight

(mass)characteristics nor does it have a unique footprint when compared to other CRSs in the appendix. Therefore, we propose deleting this CRS from Subpart C of the appendix. 4. Deletion of the Cosco Olympian 02-803 and the Safety First Comfort Ride 22-400 From Subpart C Each of the Cosco Olympian 02-803 and the Safety First Comfort Ride 22-400 is a convertible CRS with a 5-point harness. It became apparent during the collection of data for the CRSs currently in the appendix that the Cosco Touriva 02-519, Cosco Olympian 02-803, and Safety 1st Comfort Ride 22-400 were the same CRS with minor cosmetic changes. After confirming this with Dorel Juvenile Group (DJG), the manufacturer of the restraints, it was determined that these three CRSs came from the same manufacturing shell and were just cosmetically altered. To eliminate the redundancy in Appendix A testing, we propose deleting from the appendix the two CRSs with the lowest production totals, which would be the Cosco Olympian and the Safety 1st Comfort Ride. 5. Deletion of the Britax Expressway ISOFIX From Subpart C Although located in Subpart C of Appendix A, the Britax Expressway ISOFIX is a forward-facing only CRS and not a convertible. This child restraint was one of the two LATCH-equipped CRSs added by the November 19, 2003, FMVSS No. 208 final rule. On March 20, 2006, the Alliance petitioned NHTSA to remove the Britax Expressway CRS from Appendix A, arguing that the CRS is no longer available on the market, few were sold, and because its inclusion is inconsistent with the principles and criteria that the agency announced that it would use to select CRSs for Appendix A. 13 NHTSA has denied the Alliance's petition (NHTSA Docket 28707), stating that NHTSA would rather take a comprehensive evaluation of the CRSs in Appendix A in deciding whether the Britax Expressway ISOFIX should be included in the appendix, rather than focus solely on the one CRS alone. Today's NPRM is a result of the agency's comprehensive evaluation of Appendix A. 13 The Alliance also stated that there is ambiguity relating to this CRS because when it was added to the appendix there were discrepancies in the final regulatory text. First, the agency placed this CRS in Section C even though it is not a convertible CRS. In the final rule dated August 20, 2004 (69 FR 51602) we stated that, “Consistent with the goal of reflecting real world misuse, we will test the Britax ISOFIX Expressway in both directions.” Second, when it was added to the appendix, this CRS was listed as the “Britax Expressway ISOFIX,” yet in the August 20, 2004 final rule, when we amended Subpart C and Subpart D to describe more accurately the CRSs that are in those subparts, we listed this CRS as the “Britax Expressway.” This caused confusion because in the preamble of the 2004 final rule, it was still referred to as the “Britax Expressway ISOFIX,” and NHTSA never made a technical correction that explained that we inadvertently dropped the ISOFIX designation in the 2004 final rule regulatory text. After analyzing the data collected on the Britax Expressway ISOFIX, we determined that there are several factors that argue that the CRS should be maintained in the appendix. First, with respect to mass and dimensions, this CRS could be considered an outlier and thus a potential challenge to suppression systems. It is the heaviest forward-facing CRS listed in the appendix (18.6 lb with the base). It also has a wide flat base that gives it a large footprint. It has the highest base outer width measurement of the 9 forward-facing CRSs listed (13 in). Finally, it has a unique rigid LATCH design, i.e., it uses rigid, fixed metal components rather than a flexible strap to attach the CRS to the vehicle's LATCH lower anchors. At the same time, however, there are factors that have resulted in our tentative decision to remove this CRS from the appendix. In terms of sales, this CRS was never a high sales volume model. The Alliance's March 2006 petition states that only several hundred units were imported into the U.S., the majority of which were used for testing and evaluation purposes, not for retail sale. Furthermore, this CRS is no longer available for distribution. The agency has also tentatively determined that it would be acceptable to remove the Britax Expressway ISOFIX from the appendix because, at its extremely low sales volume, the CRS is not reasonably represented on the road today. Even as a dimensional and weight outlier, its inclusion is not warranted at such an insignificant level of field presence. For the reasons given above, we propose deleting the Britax Expressway ISOFIX from Appendix A. Furthermore, in this NPRM, the agency is proposing to add a CRS of similarly heavy weight and another that has a similarly large footprint to the appendix. Thus, these outlier characteristics are being maintained in the appendix with seats that are much more widely available. b. Additions We sought to include more LATCH-equipped CRSs in the appendix, while recognizing that testing and compliance burdens are impacted each time a CRS in the appendix is changed. Including more LATCH CRSs is believed to be necessary since we had not modified the appendix since November 2003 and only two CRSs listed in the appendix have LATCH attachments, while all CRSs manufactured after September 1, 2002 have been required to have LATCH attachments. 1. Addition of the Graco Snugride #8643 to Subpart B The Graco Snugride is a rear-facing infant CRS, with a detachable base, flexible LATCH attachments and a 5-point safety harness. This CRS is extremely popular and is one of the highest produced rear-facing CRSs in the U.S. It is also among the lightest rear-facing CRSs in the 2006 EOU program. The weight of the Snugride is 11.2 lb with its base (compared to an average weight of 12.1 lb for rear-facing CRSs in the 2006 EOU program) and 6.1 lb without its base (compared to the average weight of 7.7 lb for similar seats in the 2006 EOU program). We tentatively conclude that the Graco Snugride would be a good replacement for the Britax Handle with Care in terms of its light weight. Its height and width dimensions make the Snugride representative of the average rear-facing CRS in today's market. The average height and average outer base width dimensions for the rear-facing CRSs, with bases, in the 2006 EOU program are 17.9 in and 10.7 in, respectively. The height and outer base width dimensions of the Graco Snugride with its base are 16 in and 10.5 in, respectively. Because the Snugride appears to be representative of today's CRS fleet, we propose adding it to Subpart B of Appendix A. 2. Addition of the Peg Perego Primo Viaggio #IMCC00US to Subpart B The Peg Perego Primo Viaggio is a rear-facing infant CRS, with a detachable base, flexible LATCH attachments and a 5-point safety harness. It weighs 18.8 lb with its base and 11.2 lb without its base, making it heavier than any of the rear-facing CRSs currently listed in the appendix 14 and is significantly heavier than the average rear-facing CRSs in the 2006 EOU program (12.1 lb with the base and 7.7 lb without the base). Its base depth and width dimensions (19 in and 15.5 in, respectively) are significantly larger than the average base depth and width of the rear-facing CRSs in the 2006 EOU program (12.8 in and 11.7 in, respectively). For testing purposes, this CRS is also noteworthy because of the flatness of its footprint (see Technical Assessment, in docket for this NPRM). Its footprint appears unique among rear-facing CRSs in the EOU data. 14 The heaviest CRS currently in the appendix is the Britax Expressway ISOFIX that weighs 18.6 lb. The heaviest rear-facing CRS in the appendix is the Century SmartFit that weighs 10.6 lb. Based on our analysis of the data, we believe that this CRS is somewhat of an outlier in terms of its dimensions and by having a unique footprint. Therefore, we propose adding this restraint to Subpart B of Appendix A. 3. Addition of the Cosco Summit Deluxe #22-260 to Subpart C The Cosco Summit Deluxe is a forward-facing-only combination CRS with flexible LATCH attachments and a 5-point safety harness. It weighs 15.2 lb, which is just slightly over the 14 lb average weight of the forward-facing CRSs in the 2006 EOU program. It is 28.5 in tall, making it taller than any of the forward-facing CRSs currently in the appendix, the tallest of which is the Evenflo Horizon V at 27 in. The Cosco Summit Deluxe also has a large base with a width of 19.5 in and a depth of 18 in. This base width and depth measurements are significantly wider and deeper than the average base width and depth for the forward-facing CRSs in the 2006 EOU program (12.8 in and 14.9 in, respectively). After consideration of these factors, we tentatively conclude that this CRS would be a good replacement for the Britax Expressway ISOFIX in terms of its wide base and height. Therefore, we propose including the Cosco Summit Deluxe in Subpart C of Appendix A. 4. Addition of the Graco SafeSeat (Step 2) #8B02 to Subpart C The Graco SafeSeat (Step 2) is a forward-facing only CRS with flexible LATCH attachments and a 5-point safety harness. It is among the heavier forward-facing CRSs on the market. It weighs 21 lb (the average weight of the forward-facing CRSs in the 2006 EOU program is 14 lb). Its height, base width, and base depth measurements are 27.5 in, 15.5 in, and 15 in respectively, compared to the average height, base width, and base depth of 26 in, 12.8 in, and 14.9 in, respectively, for the forward-facing CRSs in the 2006 EOU program. As shown in the technical assessment accompanying this NPRM, the SafeSeat (Step 2) has a unique base configuration because of its relative flatness, and thus has a unique footprint. There are no forward-facing CRSs currently listed on the appendix with a similar footprint, and there would be no remaining forward-facing-only CRSs if the Britax Expressway ISOFIX were to be removed from the appendix. Based on our analysis, we tentatively conclude that this CRS is somewhat of an outlier because of its weight and unique footprint. We believe that if the Britax Expressway ISOFIX were deleted, a CRS with a similar or heavier weight should be added, and that this CRS appears to meet that need. Therefore, we propose adding the Graco SafeSeat (Step 2) to Subpart C of Appendix A. 5. Addition of the Evenflo Generations #352 to Subpart C The Evenflo Generations is a convertible CRS, with flexible LATCH attachments, and a 5-point safety harness. It is among the lighter forward-facing CRSs in today's market. It weighs 11.7 lb (the average weight of the forward-facing CRSs in the 2006 EOU program is 14 lb). Its height (25 in), base width (10.75 in), and base depth (26 in) appear to be representative of the average height (26 in), base width (12.8 in), and base depth (14.9 in) of the forward-facing CRSs in the 2006 EOU program. Its footprint appears to be unique, as shown in the docketed technical assessment. Also, the footprint in the forward-facing mode is different than the footprint in the rear-facing mode. Because this CRS appears to be an outlier due to its low weight and unique footprint, we propose adding the Evenflo Generations to Section C of Appendix A. c. Updating Other CRSs in Appendix A Comments are requested on changing other CRSs in Appendix A. Mindful of compliance burdens and the agency's statement in the September 2003 final rule that NHTSA anticipates changing not more than 10-20 percent of the CRSs in Appendix A in periodic updates of the appendix, these changes are of secondary importance to us compared to the proposed changes of the previous sections, and primarily would simply update the older CRSs in the appendix with newer model CRSs that have the same main physical features as the older restraints. However, it has been nearly 4 years since Appendix A was changed, and with many of the CRSs in the appendix no longer for sale and hard to find, NHTSA would like to take this opportunity to ask for comments on the possible updates to the CRSs as listed in the table below (see technical assessment for data and pictures) and the compliance burdens associated with making these additional changes to Appendix A. To obtain information on whether CRSs in Appendix A could be replaced by newer, more available models with the same relevant physical features as the Appendix A child restraints, we contacted each manufacturer of the listed CRS and asked which of their more recently-produced CRS could be considered an equivalent replacement for the Appendix A CRS. With one exception discussed below related to the Cosco Dream Ride car bed, manufacturers were able to suggest a possible replacement. (The technical assessment lists the Appendix A replacement CRSs identified by the CRS manufacturers.) With this information on possible replacement CRSs for Appendix A, we decided that the CRSs in the Appendix that have been out of production the longest (i.e., the hardest CRSs to acquire for testing purposes) should be ones we first replace with newer-model CRSs. Those CRSs which we are considering replacing with the newer-model restraints are set forth below in Table 2 for comment. If the comments on this issue indicate that making these updates in this rulemaking is warranted, we could include these additional changes to Appendix A in the final rule following today's NPRM. Table 2.—CRSs That Could Be Replaced With Similar, More Recently-Produced Restraints, and What Those Replacements Should Be Appendix A subpart CRS in Appendix A Type of CRS Replacement A Cosco Dream Ride Car bed Angel Guard Angel Ride #AA2403FOF. B Cosco Arriva 02-727 Rear-facing Cosco Arriva #22-013. C Britax Roundabout Convertible Britax Roundabout #E9L02. C Century Encore Convertible Graco ComfortSport. C Evenflo Horizon V Convertible Evenflo Tribute 5 Deluxe #379. D Century Next Step Combination Graco Cherished Cargo. D Cosco High Back Booster Booster Cosco Hi Back Booster #22-209. Cosco Dream Ride Car Bed (Subpart A) Subpart A of the appendix lists a car bed, the Cosco Dream Ride, which is no longer being manufactured for retail sale. Cosco was unable to suggest a replacement for this CRS because the manufacturer no longer sells car beds to the general public (the CRS is manufactured and sold mainly for special needs accounts). After consulting with the major CRS manufacturers, we only found one additional car bed that is being manufactured. We are proposing this latter one as our replacement choice because it is being made available to the general public. NHTSA seeks comments on replacing the Cosco Dream Ride with the Angel Guard Angel Ride. Measurements and pictures of this CRS are set forth in the technical assessment. IV. Proposed Compliance Dates Consistent with statements NHTSA made in the November 19, 2003 FMVSS No. 208 final rule regarding lead time (68 FR at 65188), the agency proposes that (except as noted below for the Britax Expressway ISOFIX) the compliance date for the proposed changes to Appendix A be the next model year introduced one year after publication of a final rule modifying Appendix A. The lead time would be sufficiently long to provide vehicle manufacturers time to procure the needed child restraints, test vehicles, and certify the air bag systems to FMVSS No. 208, while ensuring the satisfactory performance of vehicles' suppression and LRD systems in an expeditious manner. Regarding the Britax Expressway ISOFIX, we have tentatively determined this CRS to be exceptionally uncommon in the U.S. and very difficult to obtain. For those reasons, we propose that this CRS be removed from Appendix A effective on the date of publication of the final rule. This NPRM also proposes to permit manufacturers the option of early compliance with the amended list, i.e., they may choose to certify their vehicles with the updated Appendix A prior to the effective date of the provision, as long as the manufacturer notifies the agency that it is exercising this option. However, NHTSA proposes that manufacturers choosing the early compliance option would not be permitted to pick and choose among the CRSs that would be newly added by the final rule. Vehicle manufacturers choosing the early compliance option would have to ensure that their vehicles meet the advanced air bag requirements when NHTSA uses all of the newly-added CRSs (along with the CRSs that were not affected by the amendment); they may not certify with some, but not all of the newly-added restraints. The reason for this limitation would be to maintain the integrity of the appendix. The Appendix A CRSs are each a part of a comprehensive set. Each CRS in the appendix was selected for a reason, meeting a need not met by other CRSs in the appendix. Picking and choosing among the CRSs could leave a need unmet and an important performance aspect of an advanced air bag system unexplored. V. Clarity of the Tables in Appendix A This NPRM would reformat the tables of Appendix A to improve the clarity and simplicity of the tables. NHTSA believes that the current format of the tables might not be optimal in reflecting future and more frequent updates to the Appendix. Comments are requested on how the plain meaning of the tables could be further improved. VI. Public Participation How do I prepare and submit comments? Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments. Your comments must not be more than 15 pages long. (49 CFR 553.21.) We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments. Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under ADDRESSES . Comments may also be submitted to the docket electronically by logging onto the Docket Management System Web site at *http://dms.dot.gov.* Click on “Help & Information” or “Help/Info” to obtain instructions for filing the document electronically. If you are submitting comments electronically as a PDF (Adobe) file, we ask that the documents submitted be scanned using Optical Character Recognition

(OCR)process, thus allowing the agency to search and copy certain portions of your submissions. 15 15 Optical character recognition

(OCR)is the process of converting an image of text, such as a scanned paper document or electronic fax file, into computer-editable text. Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at *http://www.whitehouse.gov/omb/fedreg/reproducible.html.* DOT's guidelines may be accessed at *http://dmses.dot.gov/submit/DataQualityGuidelines.pdf.* How can I be sure that my comments were received? If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail. How do I submit confidential business information? If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT . In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under ADDRESSES . When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation. (49 CFR part 512.) Will the agency consider late comments? We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will also consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for us to consider in developing a final rule (assuming that one is issued), we will consider that comment as an informal suggestion for future rulemaking action. How can I read the comments submitted by other people? You may read the comments received by Docket Management at the address given above under ADDRESSES . The hours of the Docket are indicated above in the same location. You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:

(1)Go to the Docket Management System

(DMS)Web page of the Department of Transportation ( *http://dms.dot.gov/* ).

(2)On that page, click on “Simple Search.”

(3)On the next page ( *http://dms.dot.gov/search/* ), type in the four-digit docket number shown at the beginning of this document. Example: If the docket number were “NHTSA-2007-1234,” you would type “1234.” After typing the docket number, click on “Search.”

(4)On the next page, which contains docket summary information for the docket you selected, click on the desired comments. You may download the comments. However, since the comments are imaged documents, instead of word processing documents, the downloaded comments are not word searchable. Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material. VII. Rulemaking Analyses and Notices Executive Order 12866 and DOT Regulatory Policies and Procedures This rulemaking document was not reviewed by the Office of Management and Budget under E.O. 12866. It is not considered to be significant under E.O. 12866 or the Department's Regulatory Policies and Procedures (44 FR 11034; February 26, 1979). The costs and benefits of advanced air bags are discussed in the agency's Final Economic Assessment for the May 2000 final rule (Docket 7013). The cost and benefit analysis provided in that document would not be affected by this NPRM, since this NPRM only adjusts and updates the CRSs used in test procedures of that final rule. The minimal impacts of today's amendment do not warrant preparation of a regulatory evaluation. Regulatory Flexibility Act In compliance with the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., NHTSA has evaluated the effects of this action on small entities. I hereby certify that this proposed rule would not have a significant impact on a substantial number of small entities. The NPRM would affect motor vehicle manufacturers, multistage manufacturers and alterers, but the entities that qualify as small businesses would not be significantly affected by this rulemaking because they are already required to comply with the advanced air bag requirements. This final rule does not establish new requirements, but instead only adjusts and updates the CRSs used in test procedures of that final rule. Executive Order 13132 NHTSA has examined today's NPRM pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rulemaking would not have federalism implications because a final rule, if issued, would 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.” Further, no consultation is needed to discuss the preemptive effect of today's rulemaking. NHTSA rules can have preemptive effect in at least two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemptive provision: “When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter.” 49 U.S.C. 30103(b)(1). It is this statutory command that preempts State law, not today's rulemaking, so consultation would be inappropriate. In addition to the express preemption noted above, the Supreme Court has also recognized that State requirements imposed on motor vehicle manufacturers, including sanctions imposed by State tort law, can stand as an obstacle to the accomplishment and execution of a NHTSA safety standard. When such a conflict is discerned, the Supremacy Clause of the Constitution makes their State requirements unenforceable. See *Geier* v. *American Honda Motor Co.,* 529 U.S. 861 (2000). NHTSA has not outlined such potential State requirements in today's rulemaking, however, in part because such conflicts can arise in varied contexts, but it is conceivable that such a conflict may become clear through subsequent experience with today's standard and test regime. NHTSA may opine on such conflicts in the future, if warranted. See id. at 883-86. National Environmental Policy Act NHTSA has analyzed this NPRM for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action would not have any significant impact on the quality of the human environment. Paperwork Reduction Act Under the procedures established by the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This NPRM would not establish any new information collection requirements. National Technology Transfer and Advancement Act Under the National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113), “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.” There are no voluntary consensus standards that address the CRSs that should be included in Appendix A. Executive Order 12988 With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996) requires that Executive agencies make every reasonable effort to ensure that the regulation:

(1)Clearly specifies the preemptive effect;

(2)clearly specifies the effect on existing Federal law or regulation;

(3)provides a clear legal standard for affected conduct, while promoting simplification and burden reduction;

(4)clearly specifies the retroactive effect, if any;

(5)adequately defines key terms; and

(6)addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement. Pursuant to this Order, NHTSA notes as follows. The preemptive effect of this proposed rule is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceedings before they may file suit in court. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). This NPRM would not result in expenditures by State, local or tribal governments, in the aggregate, or by the private sector in excess of $100 million annually. Executive Order 13045 Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that:

(1)Is determined to be “economically significant” as defined under E.O. 12866, and

(2)concerns an environmental, health, or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. This rulemaking is not subject to the Executive Order because it is not economically significant as defined in E.O. 12866. Executive Order 13211 Executive Order 13211 (66 FR 28355, May 18, 2001) applies to any rulemaking that:

(1)Is determined to be economically significant as defined under E.O. 12866, and is likely to have a significantly adverse effect on the supply of, distribution of, or use of energy; or

(2)that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. This rulemaking is not subject to E.O. 13211. Plain Language Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions: • Have we organized the material to suit the public's needs? • Are the requirements in the rule clearly stated? • Does the rule contain technical language or jargon that isn't clear? • Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand? • Would more (but shorter) sections be better? • Could we improve clarity by adding tables, lists, or diagrams? • What else could we do to make the rule easier to understand? If you have any responses to these questions, please include them in your comments on this proposal. Regulation Identifier Number

(RIN)The Department of Transportation assigns a regulation identifier number

(RIN)to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda. Privacy Act Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-19478). List of Subjects in 49 CFR Part 571 Imports, Motor vehicle safety, Motor vehicles, and Tires. In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 571 as set forth below. PART 571—FEDERAL MOTOR VEHICLE SAFETY STANDARDS 1. The authority citation for part 571 continues to read as follows: Authority: 49 U.S.C. 322, 30111, 30115, 30117 and 30166; delegation of authority at 49 CFR 1.50. 2. Section 571.208 is amended by revising items A through D of Appendix A. Figures A1 and A2 at the end of Appendix A are not revised. The revised text reads as follows: § 571.208 Standard No. 208; Occupant crash protection. Appendix A to § 571.208—Selection of Child Restraint Systems A. The following car bed, manufactured on or after December 1, 1999, may be used by the National Highway Traffic Safety Administration to test the suppression system of a vehicle that is manufactured on or after the effective date and prior to the termination date specified in the table below and that has been certified as being in compliance with 49 CFR 571.208 S19: Effective date Termination date Cosco Dream Ride 02-719 1/17/2002 * * Until further notice, any vehicle manufactured after the effective date specified is still subject to testing with this child restraint system. B. Any of the following rear-facing child restraint systems, manufactured on or after December 1, 1999, may be used by the National Highway Traffic Safety Administration to test the suppression or low risk deployment

(LRD)system of a vehicle that is manufactured on or after the effective date and prior to the termination date specified in the table below and that has been certified as being in compliance with 49 CFR 571.208 S19. When the restraint system comes equipped with a removable base, the test may be run either with the base attached or without the base. Effective date Termination date Britax Handle with Care 191 1/17/2002 9/1/2009 Evenflo First Choice 204 1/17/2002 * Graco Infant 8457 1/17/2002 * Century Assura 4553 1/17/2002 9/1/2009 Century Smart Fit 4543 1/17/2002 * Cosco Arriva 02727 1/17/2002 * Evenflo Discovery Adjust Right 212 1/17/2002 * Peg Perego Primo Viaggio IMCC00US 9/1/2009 * Graco Snugride 9/1/2009 * * Until further notice, any vehicle manufactured after the effective date specified is still subject to testing with this child restraint system. C. Any of the following forward-facing child restraint systems, and forward-facing child restraint systems that also convert to rear-facing, manufactured on or after December 1, 1999, may be used by the National Highway Traffic Safety Administration to test the suppression or LRD system of a vehicle that is manufactured on or after the effective date and prior to the termination date specified in the table below and that has been certified as being in compliance with 49 CFR 571.208 S19, or S21. (Note: Any child restraint listed in this subpart that does not have manufacturer instructions for using it in a rear-facing position is excluded from use in testing in a belted rear-facing configuration under S20.2.1.1(a) and S20.4.2): Effective date Termination date Century Encore 4612 1/17/2002 9/1/2009 Cosco Olympian 02803 1/17/2002 9/1/2009 Britax Roundabout 161 1/17/2002 * Century STE 1000 4416 1/17/2002 * Cosco Touriva 02519 1/17/2002 * Evenflo Horizon V 425 1/17/2002 * Evenflo Medallion 254 1/17/2002 * Safety 1st Comfort Ride 22-400 9/1/2008 9/1/2009 Cosco Summit Deluxe 22-260 9/1/2009 * Evenflo Generations 352 9/1/2009 * Graco SafeSeat (Step 2) 9/1/2009 * * Until further notice, any vehicle manufactured after the effective date specified is still subject to testing with this child restraint system. D. Any of the following forward-facing child restraint systems and belt-positioning seats, manufactured on or after December 1, 1999, may be used by the National Highway Traffic Safety Administration as test devices to test the suppression system of a vehicle that is manufactured on or after the effective date and prior to the termination date specified in the table below and that has been certified as being in compliance with 49 CFR 571.208 S21 or S23: Effective date Termination date Britax Roadster 9004 1/17/2002 * Century Next Step 4920 1/17/2002 * Cosco High Back Booster 02-442 1/17/2002 * Evenflo Right Fit 245 1/17/2002 * * Until further notice, any vehicle manufactured after the effective date specified is still subject to testing with this child restraint system. Issued on September 14, 2007. Stephen R. Kratzke, Associate Administrator for Rulemaking. [FR Doc. E7-18716 Filed 9-24-07; 8:45 am] BILLING CODE 4910-59-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018-AU81 Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Tidewater Goby ( Eucyclogobius newberryi ) AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule; reopening of comment period, notice of availability of draft economic analysis, and amended Required Determinations. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on the proposed revised designation of critical habitat for the tidewater goby ( *Eucyclogobius newberryi* ) under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of the draft economic analysis of the proposed revised critical habitat designation and an amended Required Determinations section of the proposal. The draft economic analysis estimates post-designation costs associated with conservation efforts for the tidewater goby to be approximately $25 million (undiscounted) over the next 20 years (2007 to 2026) as a result of the proposed designation of critical habitat. Discounted future costs are estimated to be approximately $22 million ($1.5 million annualized) at a 3 percent discount rate or approximately $20 million ($1.8 million annualized) at a 7 percent discount rate. Potential cost savings in Unit VEN-2 associated with tidewater goby conservation efforts range from approximately $35 million to $90 million (undiscounted dollars). By combining these savings with the estimated costs of conservation efforts, an overall net cost savings of approximately $10 million to $65 million (undiscounted) could be realized over the next 20 years. In present value terms, net cost savings range from approximately $9.8 million to $60 million (assuming a 3 percent discount rate) or approximately $9.1 million to $54.0 million (assuming a 7 percent discount rate). We are reopening the comment period for the proposed rule to allow all interested parties an opportunity to comment simultaneously on the proposed rule, the associated draft economic analysis, and the amended Required Determinations section. Comments previously submitted need not be resubmitted as they will be incorporated into the public record as part of this comment period, and will be fully considered in preparation of the final designation. DATES: We will accept public comments until October 10, 2007. ADDRESSES: You may submit comments and materials to us by any one of the following methods:

(1)You may mail or hand-deliver written comments and information to the Field Supervisor, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003.

(2)You may fax your comments to 805/644-3958.

(3)You may send comments by electronic mail (e-mail) to: *fw8gobydea@fws.gov* . For instructions on how to file comments electronically, see the “Public Comments Solicited” section below. In the event that our Internet connection is not functional, please submit your comments by one of the alternate methods listed in this section.

(4)You may submit your comments via the Federal eRulemaking Portal at *http://www.regulations.gov* . Follow the instructions for submitting comments. FOR FURTHER INFORMATION CONTACT: Chris Dellith, Biologist, or Michael McCrary, Listing and Recovery Coordinator, Ventura Fish and Wildlife Office, at the street address listed in ADDRESSES (telephone 805/644-1766; facsimile 805/644-3958). Persons who use a telecommunications device for the deaf

(TDD)may call the Federal Information Relay Service

(FIRS)at 800-877-8339. SUPPLEMENTARY INFORMATION: Public Comments Solicited During this reopened comment period, we solicit comments on the proposed revised critical habitat designation (71 FR 68914; November 28, 2006), our draft economic analysis of the proposed revised designation, and the amended Required Determinations provided in this document. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

(1)The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 *et seq.* ), including whether the designation can be expected to result in an increase in threats to the species from human activity that outweighs the benefit of designation to the species such that the designation of critical habitat is not prudent.

(2)Specific information on the amount and distribution of tidewater goby habitat; what habitat or habitat features are essential to the conservation of this species and why, which areas occupied at the time of listing containing these features should be included in the critical habitat designation and why, and which areas not occupied at the time of listing are essential to the conservation of the species and should be included in the designation and why.

(3)Land use designations and current or planned activities in the subject areas and their possible impacts on proposed revised critical habitat.

(4)Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.

(5)Whether our general approach to determine which localities to include in proposed revised critical habitat (44 of the 106 localities that are currently occupied by tidewater gobies) could be improved or modified.

(6)Specifically with reference to those State Park lands under the jurisdiction of the California Department of Parks and Recreation

(CDPR)that are proposed for designation, information on any areas covered by conservation or management plans that we should consider for exclusion from the designation under section 4(b)(2) of the Act.

(7)Any additional proposed critical habitat areas covered by conservation or management plans that we should consider for exclusion from the designation under section 4(b)(2) of the Act. We specifically request any information on any operative or draft habitat conservation plans for the tidewater goby that have been prepared under section 10(a)(1)(B) of the Act, or any other management or other conservation plan or agreement that benefits the goby or its primary constituent elements.

(8)Any information concerning Tribal lands or trust resources that may be impacted by this proposed revision to critical habitat.

(9)Information on whether the draft economic analysis should include the voluntary cost of land acquisition by The Nature Conservancy and Trust for Public Lands in Ventura County. These organizations have and will continue to acquire lands in Ventura County to prevent structured flood control (e.g., channelization), which may threaten many species, including the tidewater goby.

(10)Information on whether the draft economic analysis identifies all State and local costs and benefits attributable to the proposed revised critical habitat designation, and information on any costs or benefits that have been inadvertently overlooked.

(11)Information on whether the draft economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes that would be imposed as a result of the revised designation of critical habitat.

(12)Information on whether the draft economic analysis correctly assesses the effect on regional costs associated with any land use controls that may derive from the revised designation of critical habitat.

(13)Information on areas that could potentially be disproportionately impacted by the revised designation of tidewater goby critical habitat. The draft economic analysis indicates the potential economic effects of undertaking conservation efforts for this species in California. Based on this information, we may consider excluding portions of these areas from the final revised designation per our discretion under section 4(b)(2) of the Act.

(14)Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities, and the benefits of including or excluding areas that exhibit these impacts; the reasons why our conclusion that the proposed designation of critical habitat would not result in a disproportionate effect on small businesses should or should not warrant further consideration; and other information that would indicate that the designation of critical habitat would or would not have any impacts on small entities.

(15)Information on whether the draft economic analysis appropriately identifies all costs that could result from the revised designation.

(16)Information on whether there are any additional quantifiable economic benefits that could result from the revised designation;

(17)Whether the benefit of excluding any particular area from the critical habitat designation under section 4(b)(2) of the Act outweighs the benefit of including the area in the designation.

(18)Economic data on the incremental effects that would result from designating any particular area as revised critical habitat, since it is our intent to include the incremental costs attributed to the revised critical habitat designation in the final economic analysis. The Secretary shall designate critical habitat on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. Under section 4(b)(2) of the Act, an area may be excluded from critical habitat if it is determined that the benefits of such exclusion outweigh the benefits of including a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species. We may exclude an area from designated critical habitat based on economic impacts, national security, or any other relevant impact. Comments and information submitted during the initial comment period on the November 28, 2006, proposed rule (71 FR 68914) need not be resubmitted. If you wish to comment, you may submit your comments and materials concerning the proposed rule, draft economic analysis, or the amended Required Determinations provided in this document by any one of several methods (see ADDRESSES ). Our final designation of critical habitat will take into consideration all comments and any additional information we receive during both comment periods. On the basis of information provided during the public comment periods on the revised critical habitat proposal and the draft economic analysis, and on the basis of the final economic analysis, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion. You may submit your comments and material concerning the above actions by any one of several methods (see ADDRESSES ). If you use e-mail to submit your comments, please include “Attn: RIN 1018-AU81” 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 Ventura Fish and Wildlife Office at 805-644-1766. Before including your address, phone number, e-mail address, or other personal identifying information in your comments, 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 from public view your personal identifying information, we cannot guarantee that we will be able to do so. Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate revised critical habitat, will be available for public inspection, by appointment during normal business hours, at the Ventura Fish and Wildlife Office at the street address listed under ADDRESSES . You may obtain copies of the proposed rule and draft economic analysis by mail from the Ventura Fish and Wildlife Office (see ADDRESSES ), or by calling 805-644-1766 extension 301, or by visiting our Web site at *http://www.fws.gov/ventura/* . Background Under the terms of a December 21, 2004, settlement agreement, we agreed to submit for publication in the **Federal Register** a proposed revised critical habitat designation for the tidewater goby by November 15, 2006. We published a proposed rule to revise critical habitat for the tidewater goby on November 28, 2006 (71 FR 68914). The proposed revised critical habitat includes approximately 10,003 acres

(ac)(4,050 hectares (ha)) for the tidewater goby in Del Norte, Humboldt, Mendocino, Sonoma, Marin, San Mateo, Santa Cruz, Monterey, San Luis Obispo, Santa Barbara, Ventura, and Los Angeles Counties, California. Critical habitat is defined in section 3 of the Act as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, in accordance with section 7(a)(2) of the Act. Draft Economic Analysis Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. Based on the November 28, 2006, proposed rule to designate revised critical habitat for the tidewater goby (71 FR 68914), we have prepared a draft economic analysis of the proposed revised critical habitat designation for the tidewater goby. The draft economic analysis is intended to quantify the economic impacts of all potential conservation efforts for the tidewater goby; some of these costs will likely be incurred regardless of whether critical habitat is designated. The draft economic analysis considers past costs associated with the conservation of the species from the time it was listed (February 4, 1994; 59 FR 5494), as well as costs of conservation-related measures that are likely to be associated with future economic activities that may adversely affect the habitat within the proposed boundaries over a 20-year period. For a further description of the methodology of the analysis, see section 1.3 (Approach to Estimating Economic Impacts) of the draft economic analysis. The draft economic analysis describes economic impacts of tidewater goby conservation efforts associated with 5 categories of activities:

(1)Water management;

(2)grazing;

(3)transportation;

(4)natural resource management; and

(5)oil and gas pipeline construction and maintenance. The draft economic analysis estimates pre-designation costs associated with the conservation of the species to be approximately $11.3 million (undiscounted). Discounted costs are estimated to be approximately $13.1 million at a 3 percent discount rate or approximately $16.3 million at a 7 percent discount rate. The draft economic analysis estimates post-designation costs associated with conservation efforts for the tidewater goby to be approximately $25 million (undiscounted) over the next 20 years (2007 to 2026). Discounted future costs are estimated to be approximately $22 million ($1.5 million annualized) at a 3 percent discount rate or approximately $20 million ($1.8 million annualized) at a 7 percent discount rate. In critical habitat Unit VEN-2, the City of Ventura's Water Reclamation Facility

(VWRF)discharges effluent into the Santa Clara River, sustaining water levels in tidewater goby habitat. Existing water quality control regulations have the potential to require VWRF to cease discharge of effluent into the estuary, which would force the City of Ventura to build a new ocean outfall facility for the effluent. The Service has recommended that the discharge be continued to protect sensitive species, including tidewater goby, for the discharge simulates a more natural environment by maintaining water levels. Potential cost savings to VWRF of installing tertiary treatment and constructing new facilities, rather than moving to an ocean outfall, ranges from $35 million to $90 million (undiscounted). The cost savings to VWRF are factored into the analysis of economic impacts associated with tidewater goby conservation. By combining these savings with the estimated post-designation costs of conservation efforts described above ($25 million), an overall net cost savings of approximately $10 million to $65 million (undiscounted) could be realized over the next 20 years. In present value terms, potential net cost savings from the designation of critical habitat for the tidewater goby range from approximately $9.8 million to $60 million (assuming a 3 percent discount rate) or approximately $9.1 million to $54.0 million (assuming a 7 percent discount rate). The draft economic analysis considers the potential economic effects of actions relating to the conservation of the tidewater goby, including costs associated with sections 4, 7, and 10 of the Act, and including those attributable to designating critical habitat. It further considers the economic effects of protective measures taken as a result of other Federal, State, and local laws that aid habitat conservation for the tidewater goby in areas containing features essential to the conservation of the species. The draft analysis considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources to comply with habitat protection measures (e.g., lost economic opportunities associated with restrictions on land use). The draft analysis also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. This information can be used by decision-makers to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, the draft analysis looks retrospectively at costs that have been incurred since the date the tidewater goby was listed as endangered (February 4, 1994; 59 FR 5494) and considers those costs that may occur in the 20 years following a designation of critical habitat. Forecasts of economic conditions and other factors beyond this point would be speculative. As stated earlier, we solicit data and comments from the public on the draft economic analysis, as well as on all aspects of the proposal. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion would not result in the extinction of the species. Required Determinations—Amended In our November 28, 2006, proposed rule (71 FR 68914), we indicated that we would be deferring our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders was available in the draft economic analysis. Those data are now available for our use in making these determinations. In this notice we are affirming the information contained in the proposed rule concerning Executive Order (E.O.) 13132; E.O. 12988; the Paperwork Reduction Act; and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). Based on the information made available to us in the draft economic analysis, we are amending our Required Determinations, as provided below, concerning E.O. 12866 and the Regulatory Flexibility Act, E.O. 13211, E.O. 12630, and the Unfunded Mandates Reform Act. Regulatory Planning and Review In accordance with Executive Order 12866, this document is a significant rule because it may raise novel legal and policy issues. Based on our draft economic analysis of the proposed revised designation of critical habitat for the tidewater goby, post-designation costs associated with conservation efforts for the tidewater goby (as described above) are estimated to be approximately $25 million (undiscounted) over the next 20 years (2007 to 2026). Discounted future costs are estimated to be approximately $22 million ($1.5 million annualized) at a 3 percent discount rate or approximately $20 million ($1.8 million annualized) at a 7 percent discount rate. In addition, potential cost savings in Unit VEN-2 associated with VWRF's continued maintenance of adequate water flows for the tidewater goby range from approximately $35 million to $90 million (undiscounted dollars). By combining these savings with the estimated post-designation costs of conservation efforts described above ($25 million), an overall net cost savings of approximately $10 million to $65 million (undiscounted) could be realized over the next 20 years. In present value terms, net cost savings from the designation range from approximately $9.8 million to $60 million (assuming a 3 percent discount rate) or approximately $9.1 million to $54.0 million (assuming a 7 percent discount rate). Therefore, based on our draft economic analysis, we have determined that the proposed revised designation of critical habitat for the tidewater goby will not result in an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the timeline for publication in the **Federal Register** , the Office of Management and Budget

(OMB)did not formally review the proposed rule. Further, Executive Order 12866 directs Federal Agencies promulgating regulations to evaluate regulatory alternatives (Office of Management and Budget, Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it has been determined that the Federal regulatory action is appropriate, the agency will then need to consider alternative regulatory approaches. Since the determination of critical habitat is a statutory requirement under the Act, we must evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat. In developing our designations of critical habitat, we consider economic impacts, impacts to national security, and other relevant impacts pursuant to section 4(b)(2) of the Act. Based on the discretion allowable under this provision, we may exclude any particular area from the designation of critical habitat provided the benefits of such exclusion outweigh the benefits of specifying the area as critical habitat and that such exclusion would not result in the extinction of the species. As such, we believe that the evaluation of the inclusion or exclusion of particular areas, or combination thereof, in a designation constitutes our regulatory alternative analysis. Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)) (SBREFA), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based upon our draft economic analysis of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments received, this determination is subject to revision as part of the final rulemaking. According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations. To determine if the proposed designation of revised critical habitat for the tidewater goby would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities. We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies; non-Federal activities are not affected by the designation. If this proposed revised critical habitat designation is made final, Federal agencies must consult with us under section 7(a)(2) of the Act if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process. In our draft economic analysis of the proposed revised critical habitat designation, we evaluate the potential economic effects on small business entities resulting from conservation actions related to the listing of the tidewater goby and proposed designation of critical habitat. Small entities were evaluated within the following types of economic activities: Water management, grazing, transportation, natural resource management, and oil and gas pipeline construction and maintenance. Based on the results of the analysis, only small entities conducting water management activities and small entities holding cattle grazing permits have the potential to be affected. The majority of water management activities are large-scale projects involving entities that are not considered small. The primary water management impacts are for expected land purchases to allow flooding and for expected flood control activities. Future conservation enabling land purchases that allow flooding to occur unimpeded are expected from the California Department of Fish and Game (CDFG), The Nature Conservancy, the Trust for Public Land, and the California Coastal Conservancy. The California Coastal Conservancy and CDFG are public agencies, and part of the government of the State of California; they are therefore not considered to be small entities. Both the Trust for Public Land and the Nature Conservancy are national organizations that are dominant in their fields and are not considered small entities. There are multiple planned flood control mitigation measures by the U.S. Army Corps of Engineers, various California State departments (e.g., Department of Fish and Game, California Coastal Commission), and by several California County governments. Del Norte County is the only County that contains proposed revised critical habitat that meets the definition of small (population less than 50,000); Del Norte County had a population of 27,507 in 2000. Expected water management impacts to Del Norte County are estimated to be $4,000 per year. Del Norte County had annual gross revenues of $51 million in 2004. Thus, impacts to Del Norte County resulting from tidewater goby conservation efforts are considered negligible (less than 0.01 percent of yearly gross revenues). Impacts to grazing activities include costs associated with fence construction and the value of lost forage. The costs of constructing fences are expected to be borne by the public agencies that manage the lands. These agencies (primarily the CDFG) are not considered small entities. Lost forage value is expected to be borne by the private ranchers that hold permits for grazing on State lands in the study area. However, because the amount of State lands available for grazing within the study area is relatively small, the impacts of lost forage value are also relatively minor. The percentage impact per small grazing entity is expected to be negligible unless all impacts are borne by a single entity. In summary, we have considered whether this proposed revised designation would result in a significant economic impact on a substantial number of small business entities. For the above reasons and based on currently available information, we certify that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, an initial regulatory flexibility analysis is not required. *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. According to the draft economic analysis, the estimated impacts of tidewater goby conservation efforts on Venoco, Inc. for planned oil and gas pipeline construction and maintenance are $145,000 (undiscounted). The operating expenses for oil and natural gas production for Venoco, Inc. were $87.5 million in 2006. Thus, the impacts of tidewater goby conservation efforts are only 0.2 percent of oil and gas production expenses for Venoco, Inc. These impacts are negligible when compared with the cost of energy production and distribution. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required. *Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)* In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 *et seq.* ), we make the following findings:

(a)This rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, Tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or Tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except

(i)A condition of Federal assistance; or

(ii)a duty arising from participation in a voluntary Federal program.” The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities who receive Federal funding, assistance, permits or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.

(b)As discussed in the draft economic analysis of the proposed designation of critical habitat for the tidewater goby, the impacts on small governments is expected to be small. As stated above, expected water management impacts to Del Norte County are estimated to be $4,000 per year. Del Norte County had annual gross revenues of $51 million in 2004. Therefore impacts to Del Norte County for water management are expected to be less than 0.01 percent of yearly gross revenues. Consequently, we do not believe that the designation of critical habitat for the tidewater goby would significantly or uniquely affect these small governmental entities. As such, a Small Government Agency Plan is not required. *Executive Order 12630* In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing revised critical habitat for the tidewater goby in a takings implications assessment. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. The takings implications assessment concludes that this proposed designation of revised critical habitat for the tidewater goby does not pose significant takings implications. References Cited A complete list of all references cited in this rulemaking is available upon request from the Field Supervisor, Ventura Fish and Wildlife Office (see ADDRESSES ). Author The primary author of this notice is the staff of the Ventura Fish and Wildlife Office. Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ). Dated: September 14, 2007. David M. Verhey, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. E7-18632 Filed 9-24-07; 8:45 am] BILLING CODE 4310-55-P 72 185 Tuesday, September 25, 2007 Notices DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0073] Notice of Request for Extension of Approval of an Information Collection; Environmental Monitoring Form AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Extension of approval of an information collection; comment request. SUMMARY: In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with environmental monitoring. DATES: We will consider all comments that we receive on or before November 26, 2007. ADDRESSES: You may submit comments by either of the following methods: *Federal eRulemaking Portal:* Go to *http://www.regulations.gov,* select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click “Submit.” In the Docket ID column, select APHIS-2007-0073 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. *Postal Mail/Commercial Delivery:* Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2007-0073, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2007-0073. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov.* FOR FURTHER INFORMATION CONTACT: For information on an information collection associated with environmental monitoring, contact Dr. Robert Baca, Team Leader, Environmental Compliance, Emergency and Domestic Programs, PPQ, 4700 River Road Unit 150, Riverdale, MD 20737;

(301)734-7592. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at

(301)734-7477. SUPPLEMENTARY INFORMATION: *Title:* Environmental Monitoring Form. *OMB Number:* 0579-0117. *Type of Request:* Extension of approval of an information collection. *Abstract:* The mission of the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture is to protect the health and value of American animal and plant resources. In carrying out this mission, APHIS ensures appropriate consideration of the potential environmental effects of its programs. In accordance with

(1)The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 *et seq.* ),

(2)regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508),

(3)USDA regulations implementing NEPA (7 CFR part 1b), and

(4)APHIS' NEPA Implementing Procedures (7 CFR part 372), APHIS engages in environmental monitoring for certain activities that we conduct to control or eradicate certain pests and diseases. We monitor those activities that have the greatest potential for harm to the human environment to ensure that the mitigation measures developed to avoid that harm are enforced and effective. In many cases, monitoring is required where APHIS programs are conducted close to habitats of endangered and threatened species. This monitoring is developed in coordination with the U.S. Department of the Interior, Fish and Wildlife Service, in compliance with the Endangered Species Act (50 U.S.C. 17.11 and 17.12). APHIS field personnel and State cooperators jointly use APHIS Form 2060, Environmental Monitoring Form, to collect information concerning the effects of pesticide use in these sensitive areas. The goal of environmental monitoring is to track the potential impact that APHIS activities may have on the environment and to use this knowledge in making any necessary adjustments in future program actions. We are asking the Office of Management and Budget

(OMB)to approve our use of APHIS Form 2060 for an additional 3 years. The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:

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

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

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

(4)Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies; e.g., permitting electronic submission of responses. *Estimate of burden:* The public reporting burden for this collection of information is estimated to average 0.5 hours per response. *Respondents:* Growers, appliers of pesticides, State department of agriculture personnel. *Estimated annual number of respondents:* 150. *Estimated annual number of responses per respondent:* 20. *Estimated annual number of responses:* 3,000. *Estimated total annual burden on respondents:* 1,500 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response). All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record. Done in Washington, DC, this 19th day of September 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-18884 Filed 9-24-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0126] Notice of Request for Extension of Approval of an Information Collection; Importation of Fruits and Vegetables AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Extension of approval of an information collection; comment request. SUMMARY: In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with regulations for the importation of fruits and vegetables. DATES: We will consider all comments that we receive on or before November 26, 2007. ADDRESSES: You may submit comments by either of the following methods: *Federal eRulemaking Portal:* Go to *http://www.regulations.gov,* select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click “Submit.” In the Docket ID column, select APHIS-2007-0126 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. *Postal Mail/Commercial Delivery:* Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2007-0126, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2007-0126. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov.* FOR FURTHER INFORMATION CONTACT: For information on regulations associated with the importation of fruits and vegetables, contact Ms. Donna L. West, Senior Import Specialist, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737;

(301)734-8758. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS* Information Collection Coordinator, at

(301)734-7477. SUPPLEMENTARY INFORMATION: *Title:* Importation of Fruits and Vegetables. *OMB Number:* 0579-0128. *Type of Request:* Extension of approval of an information collection. *Abstract:* As authorized by the Plant Protection Act (7 U.S.C. 7701 *et seq.* ) (PPA), the Secretary of Agriculture may prohibit or restrict the importation, entry, exportation, or movement in interstate commerce of any plant, plant product, biological control organism, noxious weed, means of conveyance, or other article if the Secretary determines that the prohibition or restriction is necessary to prevent a plant pest or noxious weed from being introduced into or disseminated within the United States. This authority has been delegated to the Animal and Plant Health Inspection Service (APHIS), which administers regulations to implement the PPA. The regulations in Subpart-Fruits and Vegetables (7 CFR 319.56 through 319.56-47) allow a number of fruits and vegetables to be imported into the United States, under specified conditions, from certain parts of the world. Importation of papayas from certain regions of Brazil, Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama into the continental United States, Alaska, Puerto Rico, and the U.S. Virgin Islands requires the use of certain information collection activities, including phytosanitary certificates, maintaining fruit fly monitoring records, and marking the cartons. We are asking the Office of Management and Budget

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

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

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

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

(4)Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies, e.g., permitting electronic submission of responses. *Estimate of burden:* The public reporting burden for this collection of information is estimated to average 0.9940 hours per response. *Respondents:* Producers of papayas and plant health officials in regions of Brazil, Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama. *Estimated annual number of respondents:* 50. *Estimated annual number of responses per respondent:* 10.08. *Estimated annual number of responses:* 500. *Estimated total annual burden on respondents:* 501 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.) All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record. Done in Washington, DC, this 19th day of September 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-18897 Filed 9-24-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0088] Notice of Request for Extension of Approval of an Information Collection; Karnal Bunt; Importation of Wheat and Related Articles AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Extension of approval of an information collection; comment request. SUMMARY: In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with regulations for the importation of wheat and related articles from regions affected with Karnal bunt. DATES: We will consider all comments that we receive on or before November 26, 2007. ADDRESSES: You may submit comments by either of the following methods: *Federal eRulemaking Portal:* Go to *http://www.regulations.gov,* select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click “Submit.” In the Docket ID column, select APHIS-2007-0088 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. *Postal Mail/Commercial Delivery:* Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2007-0088, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2007-0088. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov.* FOR FURTHER INFORMATION CONTACT: For information on regulations for the importation of wheat and related articles from regions affected with Karnal bunt, contact Mr. Hesham A. Abuelnaga, Import Specialist, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737;

(301)734-0627. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at

(301)734-7477. SUPPLEMENTARY INFORMATION: *Title:* Karnal Bunt; Importation of Wheat and Related Articles. *OMB Number:* 0579-0240. *Type of Request:* Extension of approval of an information collection. *Abstract:* As authorized by the Plant Protection Act (7 U.S.C. 7701 *et seq.* ) (PPA), the Secretary of Agriculture may prohibit or restrict the importation, entry, exportation, or movement in interstate commerce of any plant, plant product, biological control organism, noxious weed, means of conveyance, or other article if the Secretary determines that the prohibition or restriction is necessary to prevent a plant pest or noxious weed from being introduced into or disseminated within the United States. This authority has been delegated to the Animal and Plant Health Inspection Service (APHIS), which administers regulations to implement the PPA. To prevent the introduction and spread of various wheat diseases, including Karnal bunt (a fungal disease), APHIS' regulations in Subpart-Wheat Diseases (7 CFR 319.59-1 through 319.59-4) prohibit the importation of wheat seed, straw, and other products into the United States from regions affected with Karnal bunt. The regulations require that certain regulated articles imported from Karnal bunt-free areas within regions regulated for Karnal bunt be accompanied by a phytosanitary certificate that must be completed by an official of the national plant protection organization of the region of origin. The certificate must include a declaration stating that the regulated articles originated in areas where Karnal bunt is not known to occur, as attested to either by survey results or by testing for bunted kernels or spores. We are asking the Office of Management and Budget

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

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

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

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

(4)Minimize the burden of the information collection on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies, e.g., permitting electronic submission of responses. *Estimate of burden:* The public reporting burden for this collection of information is estimated to average 1.2 hours per response. *Respondents:* Foreign national plant protection organization officials. *Estimated annual number of respondents:* 500. *Estimated annual number of responses per respondent:* 1. *Estimated annual number of responses:* 504. *Estimated total annual burden on respondents:* 600 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.) All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record. Done in Washington, DC, this 19th day of September 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-18898 Filed 9-24-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0085] International Sanitary and Phytosanitary Standard-Setting Activities AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice and request for comments. SUMMARY: In accordance with legislation implementing the results of the Uruguay Round of negotiations under the General Agreement on Tariffs and Trade, we are informing the public of international standard-setting activities of the World Organization for Animal Health, the Secretariat of the International Plant Protection Convention, and the North American Plant Protection Organization, and we are soliciting public comment on the standards to be considered. ADDRESSES: You may submit comments by either of the following methods: *Federal eRulemaking Portal* : Go to *http://www.regulations.gov* , select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click “Submit.” In the Docket ID column, select APHIS-2007-0085 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. *Postal Mail/Commercial Delivery:* Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2007-0085, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2007-0085. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov* . FOR FURTHER INFORMATION CONTACT: For general information on the topics covered in this notice, contact Mr. John Greifer, Director, SPS Management Team, International Services, APHIS, room 1132, South Building, 14th Street and Independence Avenue SW.,Washington, DC 20250;

(202)720-7677. For specific information regarding standard-setting activities of the World Organization for Animal Health, contact Dr. Michael David, Director, Sanitary International Standards Team, National Center for Import and Export, VS, APHIS, 4700 River Road Unit 33, Riverdale, MD 20737-1231;

(301)734-5324. For specific information regarding the standard-setting activities of the International Plant Protection Convention or the North American Plant Protection Organization, contact Ms. Julie E. Aliaga, Program Director, International Phytosanitary Standards, PPQ, APHIS, 4700 River Road, Riverdale, MD 20737-1236;

(301)734-0763. SUPPLEMENTARY INFORMATION: Background The World Trade Organization

(WTO)was established as the common international institutional framework for governing trade relations among its members in matters related to the Uruguay Round Agreements. The WTO is the successor organization to the General Agreement on Tariffs and Trade. U.S. membership in the WTO was approved by Congress when it enacted the Uruguay Round Agreements Act (Pub. L. 103-465), which was signed into law by the President on December 8, 1994. The WTO Agreements, which established the WTO, entered into force with respect to the United States on January 1, 1995. The Uruguay Round Agreements Act amended Title IV of the Trade Agreements Act of 1979 (19 U.S.C. 2531 *et seq.* ). Section 491 of the Trade Agreements Act of 1979, as amended (19 U.S.C. 2578), requires the President to designate an agency to be responsible for informing the public of the sanitary and phytosanitary

(SPS)standard-setting activities of each international standard-setting organization. The designated agency must inform the public by publishing an annual notice in the **Federal Register** that provides the following information:

(1)The SPS standards under consideration or planned for consideration by the international standard-setting organization; and

(2)for each SPS standard specified, a description of the consideration or planned consideration of that standard, a statement of whether the United States is participating or plans to participate in the consideration of that standard, the agenda for U.S. participation, if any, and the agency responsible for representing the United States with respect to that standard. International Standard” is defined in 19 U.S.C. 2578b as any standard, guideline, or recommendation:

(1)Adopted by the Codex Alimentarius Commission (Codex) regarding food safety;

(2)developed under the auspices of the World Organization for Animal Health (OIE, formerly known as the Office International des Epizooties) regarding animal health and zoonoses;

(3)developed under the auspices of the Secretariat of the International Plant Protection Convention

(IPPC)in cooperation with the North American Plant Protection Organization (NAPPO) regarding plant health; or

(4)established by or developed under any other international organization agreed to by the member countries of the North American Free Trade Agreement (NAFTA) or the member countries of the WTO. The President, pursuant to Proclamation No. 6780 of March 23, 1995 (60 FR 15845), designated the Secretary of Agriculture as the official responsible for informing the public of the SPS standard-setting activities of Codex, OIE, IPPC, and NAPPO. The United States Department of Agriculture's (USDA's) Food Safety and Inspection Service

(FSIS)informs the public of Codex standard-setting activities, and USDA's Animal and Plant Health Inspection Service (APHIS) informs the public of OIE, IPPC, and NAPPO standard-setting activities. FSIS publishes an annual notice in the **Federal Register** to inform the public of SPS standard-setting activities for Codex. Codex was created in 1962 by two United Nations organizations, the Food and Agriculture Organization

(FAO)and the World Health Organization. It is the major international organization for encouraging international trade in food and protecting the health and economic interests of consumers. APHIS is responsible for publishing an annual notice of OIE, IPPC, and NAPPO activities related to international standards for plant and animal health and representing the United States with respect to these standards. Following are descriptions of the OIE, IPPC, and NAPPO organizations and the standard-setting agenda for each of these organizations. We have described the agenda that each of these organizations will address at their annual general sessions, including standards that may be presented for adoption or consideration, as well as other initiatives that may be underway at the OIE, IPPC, and NAPPO. The agendas for these meetings are subject to change, and the draft standards identified in this notice may not be sufficiently developed and ready for adoption as indicated. Also, while it is the intent of the United States to support adoption of international standards and to participate actively and fully in their development, it should be recognized that the U.S. position on a specific draft standard will depend on the acceptability of the final draft. Given the dynamic and interactive nature of the standard-setting process, we encourage any persons who are interested in the most current details about a specific draft standard or the U.S. position on a particular standard-setting issue, or in providing comments on a specific standard that may be under development, to contact APHIS. Contact information is provided at the beginning of this notice under FOR FURTHER INFORMATION CONTACT . OIE Standard-Setting Activities The OIE was established in Paris, France, in 1924 with the signing of an international agreement by 28 countries. It is currently composed of 169 member nations, each of which is represented by a delegate who, in most cases, is the chief veterinary officer of that country. The WTO has recognized the OIE as the international forum for setting animal health standards, reporting global animal disease events, and presenting guidelines and recommendations on sanitary measures relating to animal health. The OIE facilitates intergovernmental cooperation to prevent the spread of contagious diseases in animals by sharing scientific research among its members. The major functions of the OIE are to collect and disseminate information on the distribution and occurrence of animal diseases and to ensure that science-based standards govern international trade in animals and animal products. The OIE aims to achieve these through the development and revision of international standards for diagnostic tests, vaccines, and the safe international trade of animals and animal products. The OIE provides annual reports on the global distribution of animal diseases, recognizes the free status of Member countries for certain diseases, categorizes animal diseases with respect to their international significance, publishes bulletins on global disease status, and provides animal disease control guidelines to Member countries. Various OIE commissions and working groups undertake the development and preparation of draft standards, which are then circulated to Member countries for consultation (review and comment). Draft standards are revised accordingly and are then presented to the OIE International Committee (all the Member countries) during the General Session, which meets annually every May, for review and adoption. Adoption, as a general rule, is based on consensus of the OIE membership. The next OIE General Session is scheduled for May 25-30, 2008, in Paris, France. Currently, the Deputy Administrator of APHIS Veterinary Services is the official U.S. Delegate to the OIE. The Deputy Administrator of APHIS intends to participate in the proceedings and will discuss or comment on APHIS' position on any standard up for adoption. Information about OIE draft Terrestrial Animal Health Code and Aquatic Animal Health Code chapters may be found on the Internet at *http://www.aphis.usda.gov/vs/ncie/oie/* or by contacting Dr. Michael David (see FOR FURTHER INFORMATION CONTACT above). OIE Terrestrial Animal Health Code Chapters and Appendices Adopted 1. Chapter 2.2.10, Foot and Mouth Disease Guidelines for quicker recovery of status after an outbreak, and the concept of “containment zone” were added. 2. Chapter 2.2.12, Rinderpest, and Appendix 3.8.2, Surveillance for Rinderpest The Code Chapter and surveillance appendix were adopted as proposed in order to assist several African countries. 3. Chapter 2.2.13, Bluetongue Minor updates were made to this chapter. 4. Chapter 2.3.13., Bovine Spongiform Encephalopathy This chapter received only minor changes this year. Specifically, for countries that are classified as “negligible” risk for BSE, but which have had an indigenous case, live cattle and meat-and-bone meal

(MBM)should not be traded if the cattle were born or the MBM was produced prior to the implementation of an effective ruminant-to-ruminant feed ban. 5. Section 2.5, Equine Disease The following Code chapters were updated: Chapter 2.5.4, Equine infectious anemia; Chapter 2.5.5, Equine influenza; Chapter 2.5.6, Equine piroplasmosis; Chapter 2.5.7, Equine rhinopneumonitis; Chapter 2.5.8, Glanders; and Chapter 2.5.10, Equine viral arteritis. 6. Chapter 2.7.12, Avian Influenza This chapter received only a few changes this year. Backyard poultry and fighting cocks were included in the definition of “poultry.” In addition, the OIE made it explicit that countries should not impose immediate trade bans when a country reports the detection of highly pathogenic avian influenza in wild birds. 7. Appendix 3.2.1, Bovine and small ruminant semen The requirement to test for Border disease in sheep was reinstituted. 8. Appendix 3.6.6, General guidelines for the disposal of dead animals Minor changes were made to this appendix. 9. Appendix 3.7.2, Guidelines for the transport of animals by sea; Appendix 3.7.3, Guidelines for the transport of animals by land; Appendix 3.7.5, Guidelines for the slaughter of animals; and Appendix 3.7.6, Guidelines for the killing of animals for disease control These guidelines were updated. OIE Terrestrial Animal Health Code Chapters Up for Adoption Existing Terrestrial Animal Health Code chapters that may be revised and new chapters that may be drafted in preparation for the next General Session in 2008 include the following: 1. Chapter 1.3.5, Zoning and compartmentalization These guidelines were refined to clarify some of the basic criteria required to ensure the integrity of a compartment. A checklist on the practical application of compartmentalization for avian influenza and Newcastle diseases was distributed. 2. Chapter 2.5.14, African horse sickness This is a new chapter that contains draft guidelines provided by the Scientific Commission. It is being circulated to Member countries for comment. 3. Chapter 2.6.6, African swine fever This new chapter replaces the existing Chapter. 4. Chapter 2.6.7, Classical swine fever; and Appendix 3.8.8, Guidelines for the surveillance of classical swine fever This chapter and appendix have been extensively rewritten, are being circulated for comment, and will be submitted for adoption in 2008. 5. Chapter 2.7.13, Newcastle disease, and Appendix 3.8.X, Guidelines for the surveillance of Newcastle disease This draft appendix defines the principles and provides a guide for the surveillance of Newcastle disease. 6. Appendix 3.10.2, Guidelines for the detection, control, and prevention of Salmonella enteritidis and S. typimurium in poultry producing eggs for human consumption This appendix represents an ongoing complete redrafting of a current OIE Code Chapter. It is being circulated for comment. 7. Draft Appendix, General principles of identification and traceability of live animals This is a new appendix that provides that animals and products of animal origin should be traceable throughout the animal production and food chain, within the scope of relevant OIE and Codex Alimentarius standards. 8. Draft Guidelines for the control of biological hazards of animal health and public health importance through ante- and post-mortem meat inspection These new guidelines provide guidance on animal feeding in relation to animal health. They complement the guidance provided by the Codex Code of Practice on Good Animal Feeding (CAC/RCP 54-2004), which deals primarily with food safety. 9. Draft Guidelines on dog population control These guidelines will form a new chapter that provides for control of stray and feral dog populations. Code Commission Future Work Program During the next year, the OIE Code Commission is expected to address the following issues or establish ad hoc groups of experts to update and/or develop standards for the following issues: 1. The harvesting and culling of wildlife. 2. Laboratory animal welfare. 3. Bovine brucellosis. OIE Aquatic Animal Health Code Chapters and Appendices up for Adoption Existing Aquatic Animal Health Code chapters that may be revised and new chapters and appendices that have been drafted in preparation for the 2008 General Session include: Chapter 2.3.7, Crayfish Plague; Chapter 2.3.9, Infectious Myonecrosis; Chapter 2.3.10, Necrotising Hepatopancreatitis; Chapter 2.3.11, White Tail Disease; Chapter 2.3.12, Hepatopancreatic Parvovirus Disease; Chapter 2.3.13, Mourilyan Virus Disease; General Guidelines for Aquatic Animal Health Surveillance; and Guidelines for the Control of Aquatic Animal Health Hazards in Aquatic Animal Feeds. OIE Aquatic Animal Commission Future Work Program During the next few years, the OIE Aquatic Animal Commission is expected to address the following issues or establish ad hoc groups of experts to update and/or develop standards for the following issues: 1. Diseases of amphibians. 2. Biosecurity procedures. The Process The OIE Code chapters are drafted (or revised) by either the Code Commission or by ad hoc groups composed of technical experts nominated by the Director General of the OIE by virtue of their subject-area expertise. Once a new chapter is drafted or an existing one is revised, the chapter is distributed to Member countries for review and comment. The OIE attempts to provide proposed chapters by late October to allow Member countries sufficient time for comment. Comments are due by early February of the following year. The draft standard is revised by the OIE Code Commission on the basis of relevant scientific comments received from Member countries. The United States (i.e., USDA/APHIS) intends to review and, where appropriate, comment on all draft chapters and revisions once it receives them from the OIE. USDA/APHIS intends to distribute these drafts to the U.S. livestock and aquaculture industries, veterinary experts in various U.S. academic institutions, and other interested persons for review and comment. Additional information regarding these draft standards may be obtained by contacting Dr. Michael David (see FOR FURTHER INFORMATION CONTACT above). Generally, if a country has concerns with a particular draft standard, and supports those concerns with sound technical information, the pertinent OIE Code Commission will revise that standard accordingly and present the revised draft for adoption at the General Session in May. In the event that a country's concerns regarding a draft standard are not taken into account, that country may refuse to support the standard when it comes up for adoption at the General Session. However, each Member country is obligated to review and comment on proposed standards, and make decisions regarding the adoption of those standards, strictly on their scientific merits. Other OIE Topics Every year at the General Session, at least one technical item is presented. For the May 2008 General Session, the following technical item will be presented: 1. Integrating small farmers in animal health programs. The information in this notice includes all the information available to us on OIE standards currently under development or consideration. Information on OIE standards is available on the Internet at *http://www.oie.int.* Further, a formal agenda for the next General Session should be available to Member countries by March 2008, and copies will be available to the public once the agenda is published. For the most current information on meeting times, working groups, and/or meeting agendas, including information on official U.S. participation in OIE activities and U.S. positions on standards being considered, contact Dr. Michael David (see FOR FURTHER INFORMATION CONTACT above). Those wishing to provide comments on any areas of work under the OIE may do so at any time by responding to this notice (see ADDRESSES above) or by providing comments through Dr. Michael David. IPPC Standard-Setting Activities The IPPC is a multilateral convention adopted in 1952 for the purpose of securing common and effective action to prevent the spread and introduction of pests of plants and plant products and to promote appropriate measures for their control. Under the IPPC, the understanding of plant protection has been, and continues to be, broad, encompassing the protection of both cultivated and noncultivated plants from direct or indirect injury by plant pests. Activities addressed by the IPPC include the development and establishment of international plant health standards, the harmonization of phytosanitary activities through emerging standards, the facilitation of the exchange of official and scientific information among countries, and the furnishing of technical assistance to developing countries that are signatories to the IPPC. The IPPC is under the authority of the Food and Agriculture Organization (FAO), and the members of the Secretariat of the IPPC are appointed by the FAO. The IPPC is implemented by national plant protection organizations in cooperation with regional plant protection organizations; the Commission on Phytosanitary Measures ((CPM), formerly referred to as the International Commission on Phytosanitary Measures (ICPM)); and the Secretariat of the IPPC. The United States plays a major role in all standard-setting activities under the IPPC and has representation on FAO's highest governing body, the FAO Conference. The United States became a contracting party to the IPPC in 1972 and has been actively involved in furthering the work of the IPPC ever since. The IPPC was amended in 1979, and the amended version entered into force in 1991 after two-thirds of the contracting countries accepted the amendment. More recently, in 1997, contracting parties completed negotiations on further amendments that were approved by the FAO Conference and submitted to the parties for acceptance. This 1997 amendment updated phytosanitary concepts and formalized the standard-setting structure within the IPPC. The 1997 amended version of the IPPC entered into force after two-thirds of the contracting parties notified the Director General of FAO of their acceptance of the amendment. The U.S. Senate gave its advice and consent to acceptance of the newly revised IPPC on October 18, 2000. The President submitted the official letter of acceptance to the FAO Director General on October 4, 2001. The IPPC has been, and continues to be, administered at the national level by plant quarantine officials whose primary objective is to safeguard plant resources from injurious pests. In the United States, the national plant protection organization is APHIS' Plant Protection and Quarantine

(PPQ)program. The steps for developing a standard under the revised IPPC are described below. *Step 1:* Proposals for a new international standard for phytosanitary measures

(ISPM)or for the review or revision of an existing ISPM are submitted to the Secretariat of the IPPC in a standardized format on a 2-year cycle. Alternatively, the Secretariat can propose a new standard or amendments to existing standards. *Step 2:* After review by the Standards Committee and the Strategic Planning and Technical Assistance Working Group, a summary of proposals is submitted by the Secretariat to the CPM. The CPM identifies the topics and priorities for standard setting from among the proposals submitted to the Secretariat and others that may be raised by the CPM. *Step 3:* Specifications for the standards identified as priorities by the CPM are drafted by the Secretariat. The draft specifications are submitted to the Standards Committee for approval/amendment and are subsequently made available to members and regional plant protection organizations (RPPOs) for comment (60 days). Comments are submitted in writing to the Secretariat. Taking into account the comments, the Standards Committee finalizes the specifications. *Step 4:* The standard is drafted or revised in accordance with the specifications by a working group designated by the Standards Committee. The resulting draft standard is submitted to the Standards Committee for review. *Step 5:* Draft standards approved by the Standards Committee are distributed to members by the Secretariat and RPPOs for consultation (100 days). Comments are submitted in writing to the Secretariat. Where appropriate, the Standards Committee may establish open-ended discussion groups as forums for further comment. The Secretariat summarizes the comments and submits them to the Standards Committee. *Step 6:* Taking into account the comments, the Secretariat, in cooperation with the Standards Committee, revises the draft standard. The Standards Committee submits the final version to the CPM for adoption. *Step 7:* The ISPM is established through formal adoption by the CPM according to Rule X of the Rules of Procedure of the CPM. *Step 8:* Review of the ISPM is completed by the specified date or such other date as may be agreed upon by the CPM. Each member country is represented on the CPM by a single delegate. Although experts and advisers may accompany the delegate to meetings of the CPM, only the delegate (or an authorized alternate) may represent each member country in considering a standard up for approval. Parties involved in a vote by the CPM are to make every effort to reach agreement on all matters by consensus. Only after all efforts to reach a consensus have been exhausted may a decision on a standard be passed by a vote of two-thirds of delegates present and voting. Technical experts from the United States have participated directly in working groups and indirectly as reviewers of all IPPC draft standards. The United States also has a representative on the Standards Committee. In addition, documents and positions developed by APHIS and NAPPO have been sources of significant input for many of the standards adopted to date. This notice describes each of the IPPC standards currently under consideration or up for adoption. The full text of each standard will be available on the Internet at *http://www.aphis.gov/ppq/pim/standards/.* Interested individuals may review the standards posted on this Web site and submit comments via the Web site. The next CPM meeting is scheduled for April 7-11, 2008, at FAO Headquarters in Rome, Italy. The Deputy Administrator for APHIS' PPQ program is the U.S. delegate to the CPM. The Deputy Administrator intends to participate in the proceedings and will discuss or comment on APHIS' position on any standards up for adoption. The provisional agenda for the Third Session of the Interim Commission on Phytosanitary Measures is as follows: 1. Opening of the session. 2. Adoption of the agenda. 3. Report by the chairperson. 4. Report by the Secretariat. 5. Standards up for adoption in 2008. 6. Items arising from the Second Session of the CPM (see section below entitled “New Standard-Setting Initiatives, Including Those in Development” for details). 7. Work program for harmonization. 8. Other business. 9. Date and venue of the next meeting. 10. Adoption of the report. IPPC Standards Up for Adoption in 2008 It is expected that the following standards will be sufficiently developed to be considered by the CPM for adoption at its 2008 meeting. The United States, represented by APHIS' Deputy Administrator for PPQ, will participate in the consideration of these standards. The U.S. position on each of these issues will be developed prior to the CPM session and will be based on APHIS' analysis, information from other U.S. Government agencies, and relevant scientific information from interested stakeholders. *1. Developing a Strategy To Reduce or Replace the Use of Methyl Bromide for Phytosanitary Purposes* This standard provides guidance to national plant protection organizations (NPPOs) and regional plant protection organizations (RPPOs) in the development of a strategy to reduce or replace the use of methyl bromide as a phytosanitary measure in order to reduce emissions of methyl bromide. The standard outlines areas for action for developing and implementing a national strategy on the use of methyl bromide as a phytosanitary measure. *2. Establishment of Areas of Low Pest Prevalence for Fruit Flies (Tephritidae)* This standard provides guidelines for the establishment and maintenance of areas of low pest prevalence for fruit flies of economic importance (including places and sites of production of low pest prevalence) for use as a risk mitigation measure to facilitate trade of fruits and vegetables. The decision to create a fruit fly area of low pest prevalence (FF-ALPP) for export of a particular host of fruit fly is closely linked to trade opportunities and to economic and operational feasibility. *3. Sampling of Consignments* This standard provides guidance in developing sampling design and determining sampling frequency that may be used as part of the processes used for inspection or for gathering material for testing to ensure compliance with phytosanitary requirements. *4. Classification of Commodities into Phytosanitary Risk Categories* This standard provides guidance on categorizing plant and plant product commodities according to their phytosanitary risk. The categorization is based on the method and level of processing to which a commodity has been subjected and the commodity's intended uses. The standard also provides guidance for determining phytosanitary risk management measures for each category, as appropriate. 5. Supplement to ISPM No. 5 (Glossary of phytosanitary terms): Debarked and Bark-Free Wood This supplement provides practical guidance to NPPOs on differentiating between debarked wood and bark-free wood, where removal of bark is required to reduce the risk of introduction and/or spread of quarantine pests associated with bark. This supplement does not specify the effectiveness or technical justification of removal of bark. *6. Amendments to ISPM No. 5 (Glossary of phytosanitary terms)* A. The following terms and definitions will be proposed for addition to the glossary of phytosanitary terms in ISPM No. 5: • *Prevalence (of a pest):* Proportion of units in a population of plants, plant products, or other articles that is affected by a pest at a given time, or the level of occurrence of a pest in an area at a given time as expressed by a defined index or a range of values. • *Tolerance level:* Prevalence of a pest that is a threshold for action to control that pest or to prevent its spread or introduction. B. The following term and definition will be proposed to be changed as follows: • *Beneficial organisms:* Any organism directly or indirectly advantageous to plants or plant products, including biological control agents and sterile insects. C. The following terms will be proposed for deletion: • Authority • Biological pesticide (biopesticide) • Classical biological control, introduction (of a biological control agent), and establishment (of a biological control agent) • Exotic • Import permit (of a biological control agent) • Micro-organism • Specificity New Standard-Setting Initiatives, Including Those in Development A number of expert working group meetings or other technical consultations will take place during 2007 and 2008 on the topics listed below. These standard-setting initiatives were not completed before April 2007 and, therefore, will not be ready for adoption at the 2008 CPM session. Nonetheless, APHIS intends to participate actively and fully in each of these working groups. The U.S. position on each of the topics to be addressed by these various working groups will be developed prior to these working group meetings and will be based on APHIS' technical analysis, information from other U.S. Government agencies, and relevant scientific information from interested stakeholders. *1. Supplement to ISPM No. 11 (Pest risk analysis for quarantine pests including analysis of environmental risks and living modified organisms): Appropriate Level of Protection* The appropriate level of protection is a concept established beyond the scope and legal competence of the IPPC. Therefore, these guidelines focus primarily on promoting consistency in the development and use of phytosanitary measures. *2. Draft Supplement to ISPM No. 5 (Glossary of phytosanitary terms): Guidelines for the Interpretation and Application of the Term “Not Widely Distributed” in Relation to Quarantine Pests* This supplement provides guidance on the interpretation and application of the term “not widely distributed” in the context of the decision on whether a pest qualifies as a quarantine pest. *3. Systems Approach(es) for Pest Risk Management of Fruit Flies (Tephritidae)* This standard provides guidelines for the establishment and use of systems approach(es) as an option for pest risk management of fruit flies to facilitate trade of fruits. The standard applies to fruit flies (Tephritidae) of economic importance. *4. Revisions of ISPMs No. 7 and 12* Currently there are two ISPMs dealing with export: ISPM No. 7 (Export certification system) and ISPM No. 12 (Guidelines for phytosanitary certificates). These standards briefly describe the procedure to follow in case of re-export and transit shipments requiring phytosanitary certification. As international trade has expanded and means of conveyance have diversified, the need has arisen to provide clearer guidance on re-export and transit phytosanitary certification. In addition, concepts in these standards will be made consistent with other existing standards. For more detailed information on the above topics, which will be addressed by various working groups established by the CPM, contact Ms. Julie E. Aliaga (see FOR FURTHER INFORMATION CONTACT above). APHIS posts draft standards on the Internet ( *http://www.aphis.usda.gov/ppq/pim/standards/* ) as they become available and provides information on the due dates for comments. Additional information on IPPC standards is available on the FAO's Web site at *http://www.ippc.int/IPP/En/default.htm* . For the most current information on official U.S. participation in IPPC activities, including U.S. positions on standards being considered, contact Ms. Julie E. Aliaga (see FOR FURTHER INFORMATION CONTACT above). Those wishing to provide comments on any of the areas of work being undertaken by the IPPC may do so at any time by responding to this notice (see ADDRESSES above) or by providing comments through Ms. Aliaga. NAPPO Standard-Setting Activities NAPPO, a regional plant protection organization created in 1976 under the IPPC, coordinates the efforts among Canada, the United States, and Mexico to protect their plant resources from the entry, establishment, and spread of harmful plant pests, while facilitating intra- and inter-regional trade. NAPPO conducts its business through panels and annual meetings held among the three member countries. The NAPPO Executive Committee charges individual panels with the responsibility for drawing up proposals for NAPPO positions, policies, and standards. These panels are made up of representatives from each member country who have scientific expertise related to the policy or standard being considered. Proposals drawn up by the individual panels are circulated for review to Government and industry officials in Canada, Mexico, and the United States, who may suggest revisions. In the United States, draft standards are circulated to industry, States, and various Government agencies for consideration and comment. The draft standards are posted on the Internet at *http://www.aphis.usda.gov/ppq/pim/standards/* ; interested persons may submit comments via that Web site. Once revisions are made, the proposal is sent to the NAPPO working group and the NAPPO standards panel for technical reviews, and then to the Executive Committee for final approval, which is granted by consensus. The annual NAPPO meeting is scheduled for October 22-26, 2007, in St. John's Newfoundland-Labrador, Canada. The NAPPO Executive Committee meeting will take place on October 22, 2007, and a special session will be held on October 23, 2007, to solicit comment from industry groups so that suggestions can be incorporated into the NAPPO work plan for the 2008 NAPPO year. The Deputy Administrator for PPQ is a member of the NAPPO Executive Committee. The Deputy Administrator intends to participate in the proceedings and will discuss or comment on APHIS' position on any standard up for adoption or any proposals to develop new standards. The work plan for 2007 was established after the October 2006 Annual Meeting in Fort McDowell, Arizona. The Deputy Administrator for PPQ participated in establishing this NAPPO work plan (see panel assignments below). Below is a summary of current panel assignments as they relate to the ongoing development of NAPPO standards. The United States(i.e., USDA/APHIS) intends to participate actively and fully in the work of each of these panels. The U.S. position on each topic will be guided and informed by the best scientific information available on each of these topics. For each of the following panels, the United States will consider its position on any draft standard after it reviews a prepared draft. Information regarding the following NAPPO panel topics, assignments, activities, and updates on meeting times and locations may be obtained from the NAPPO homepage at *http://www.nappo.org* or by contacting Ms. Julie E. Aliaga (see FOR FURTHER INFORMATION CONTACT above). 1. Accreditation Panel The panel will conduct an in-depth audit of the Canadian system to comply with RSPM No. 8 (The Accreditation of Individuals to Sign Federal Phytosanitary Certificates). 2. Biological Control Panel The panel will complete a NAPPO discussion paper on taxonomic expertise in biological control activities. The panel will review RSPM No. 7 (Guidelines for Petition for Release of Exotic Phytophagous Agents for the Biological Control of Weeds), and RSPM No. 12 (Guidelines for Petition for Release of Exotic Entomophagous Agents for the Biological Control of Pests), to determine whether they should be archived, in light of revisions to ISPM No. 3 (Guidelines for the export, shipment, import and release of biological control agents and other beneficial organisms). 3. Biotechnology Panel This panel will continue to develop a NAPPO standard for the importation of transgenic plants into NAPPO member countries. The standard review of products of biotechnology focuses on the assessment of the potential for the new trait to increase the risk the plant could pose to other plants in agriculture or the broader environment. 4. Citrus Panel The panel will review the citrus production programs in States where Mexico and the United States share borders for compliance with RSPM No. 16 (Guidelines for the Importation of Citrus Propagative Material into a NAPPO Member Country), and RSPM No. 24 (Integrated Pest Risk Management Measures for the Importation of Plants for Planting into NAPPO Member Countries), with the goal of developing regionally harmonized nursery certification programs for citrus nursery stock. The panel is also charged with exchanging technical information on emerging citrus pests such as citrus greening. 5. Electronic Phytosanitary Certification Panel This panel will conduct a pilot project for electronic phytosanitary certification within the NAPPO region. 6. Forestry Panel This panel will draft a NAPPO standard on preventing the entry of asian gypsy moth into North America. It will continue to provide leadership in the design and delivery of NAPPO workshops on the implementation of ISPM No. 15 (Guidelines for regulating wood packaging material in international trade). The panel will investigate and report on the technical impacts of *Phytophthora ramorum* on conifer forests, and analyze collected data and report on the incidence of pests associated with bark on wood packaging that has been marked according to ISPM No. 15. In addition, the panel will provide technical support to the IPPC (International Forest Quarantine Research Group and Technical Panel on Forest Quarantine), particularly with regard to the risks associated with bark on treated wood packaging. 7. Fruit Panel The panel will develop a NAPPO standard on accreditation of laboratories for diagnostics of fruit pests and develop a NAPPO standard on equivalence in the application of detection and identification tools for fruit pests, including guidelines for quality control. 8. Fruit Tree Panel The panel will finalize the bacteria and fungi appendices for RSPM No. 25 (Guidelines for International Movement of Pome and Stone Fruit Trees into a NAPPO Member Country), and will begin to work on the insect and nematode appendices. The panel will update the appendix on viruses in RSPM No. 25 with additions or changes, host and literature references. 9. Grains Panel This panel, in collaboration with the Pest Risk Analysis Panel, will review the latest scientific information on Karnal bunt, *Tilletia indica* . The panel will develop recommended actions to harmonize the management of soybean rust ( *Phakopsora pachyrizi* ) in NAPPO member countries. In addition, the panel will develop a NAPPO strategic plan to prepare for the possible arrival of new races of black stem rust of wheat, such as *Puccinia graminis* f.sp. *tritici, race TTKS* , based on the pest risk assessment prepared by the NAPPO Pest Risk Analysis Panel. 10. Grapevine Panel The panel will complete the appendices of significant arthropod and nematode pests of grapevines for RSPM No. 15 (Guidelines for the Importation of Grapevines into a NAPPO Member Country). The panel will begin to work on the bacteria and fungi appendices for RSPM No. 15 and update the appendix on viruses. 11. Invasive Species Panel This panel will define the scope of invasive alien species in the context of NAPPO and will begin development of a NAPPO standard for evaluating the potential invasiveness of plants for planting. The panel will also begin development of a NAPPO standard for identifying and prioritizing pest introduction pathways (pathway analysis). In addition, the panel will coordinate and clarify NAPPO's invasive species efforts with those of the North American Commission for Environmental Cooperation and other North American international treaties, conventions, and trilateral activities. This year, the panel will coordinate with the NAPPO Working Group to develop the agenda and speakers for the Invasive Species Symposium at the October 2007 NAPPO Annual Meeting. 12. Pest Risk Analysis Panel The panel will prepare a NAPPO pest risk analysis on black stem rust, UG 99, *Puccinia graminis* , for the NAPPO Grains panel and, in collaboration with this panel, will review the latest scientific information on Karnal bunt, *Tilletia indica* Mitra. 13. Phytosanitary Alert System Panel This panel continuously posts timely pest alerts on the NAPPO web site, reviews automated data surveillance technologies to streamline data mining processes, and determines ways to improve official pest reporting through the Phytosanitary Alert System. 14. Plants for Planting The panel will report on progress in achieving the implementation plan for RSPM No. 24 (Integrated Pest Risk Management Measures for the Importation of Plants for Planting in NAPPO Member Countries). In addition, the panel will clarify the meaning of the term “origin” in ISPM No. 12 (Guidelines for phytosanitary certificates), in particular for re-exports of seeds. 15. Potato Panel The panel will finalize protocols for the detection and identification of *Clavibacter michiganensis* subsp. *sepedonicus* as Appendix 6 to the NAPPO Potato Standard, RSPM No. 3, and finalize the protocols for the isolation and identification of regulated nematodes of potato as Appendix 7 to the Potato Standard. The panel will determine the accuracy of Appendix 5, Per-Shipment Testing for PVYn, based on the current knowledge of the North American PVY complex, and will identify the requirements for recognition of pest freedom for golden nematode *Globodera rostochiensis* and the potato cyst nematode *Globodera pallida* , based on International Standards for Phytosanitary Measures. 16. Standards Panel The panel will coordinate and review new and amended NAPPO standards and implementation plans; provide updates on NAPPO standards and ISPMs for the NAPPO Newsletter; exchange and discuss comments on draft ISPMs within NAPPO and with other RPPOs to build consensus on draft ISPMs and other issues related to the IPPC; organize conference calls and prepare NAPPO discussion documents where possible to confirm positions on key issues for North American representatives to FAO expert working groups; update the NAPPO Glossary, taking into account new definitions and standards; and review NAPPO position papers and policy documents to verify current relevance. The PPQ Deputy Administrator, as the official U.S. delegate to NAPPO, intends to participate in the adoption of these regional plant health standards, including the work described above, once they are completed and ready for such consideration. The information in this notice includes all the information available to us on NAPPO standards currently under development or consideration. For updates on meeting times and for information on the working panels that may become available following publication of this notice, check the NAPPO Web site on the Internet at *http://www.nappo.org* or contact Ms. Julie E. Aliaga (see FOR FURTHER INFORMATION CONTACT above). Information on official U.S. participation in NAPPO activities, including U.S. positions on standards being considered, may also be obtained from Ms. Aliaga. Those wishing to provide comments on any of the topics being addressed by any of the NAPPO panels may do so at any time by responding to this notice (see ADDRESSES above) or by transmitting comments through Ms. Aliaga. Done in Washington, DC, this 19th day of September 2007. Kevin Shea, Acting Administrator,Animal and Plant Health Inspection Service. [FR Doc. E7-18877 Filed 9-24-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Commodity Credit Corporation Warehouse Rates for Peanuts Pledged as Collateral for a Marketing Assistance Loan AGENCY: Commodity Credit Corporation, USDA. ACTION: Notice. SUMMARY: This notice announces to the warehouse operators operating under a Commodity Credit Corporation

(CCC)Peanut Storage Agreement on the uniform rates that CCC will pay for storage, handling, and other associated costs for 2007 crop of peanuts. DATES: *Effective Date:* September 25, 2007. FOR FURTHER INFORMATION CONTACT: Mark Overbo, Deputy Director, Warehouse and Inventory Division, Farm Service Agency, USDA, STOP 0553, 1400 Independence Avenue, SW., Washington, DC 20250-0553; telephone:

(202)720-4647; email: *mark.overbo@usda.gov.* Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.) should contact the USDA Target Center at

(202)720-2600 (voice and TDD). SUPPLEMENTARY INFORMATION: The marketing assistance loan program for peanuts is authorized by the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171) (2002 Farm Bill). Section 1307(a)(6) of the 2002 Farm Bill (7 U.S.C. 7957(a)(6)) requires CCC to pay storage, handling, and other associated costs for the 2002 through 2006 crops of peanuts that are pledged as collateral for marketing assistance loans. This authority terminates beginning with the 2007 crop of peanuts. CCC paid storage, handling, and other associated costs for the 2002 through 2006 crop years for peanuts that were pledged as loan collateral and stored in a warehouse with an approved Peanut Storage Agreement. The statute does not authorize CCC to pay storage, handling, and other associated costs when 2007-crop peanuts are pledged as collateral for a loan. However, rates for storage and handling (in-elevation and load-out) must be established in the event that peanuts pledged as loan collateral are forfeited to CCC. For peanuts forfeited to CCC, CCC will be responsible for storage charges beginning on the day following the loan maturity date. While CCC is not responsible for storage charges incurred on or before the loan maturity date, CCC will pay to warehouse operators any amount by which the loan amount was reduced because the producer failed to pay storage or make arrangements for storage charges through the loan maturity date. Additionally, while CCC is not responsible for in-elevation charges incurred on or before the loan maturity date, CCC will pay to warehouse operators the CCC-approved in-elevation charge and collect the amount from the producer after loan forfeiture. CCC is not responsible for load out charges or other services such as inspections or grading, unless delivery is directed by CCC or such services are requested by CCC. Section 4(h) of the CCC Charter Act (15 U.S.C. 714-714p) allows CCC to contract for the physical handling, storage, processing, servicing, and transportation of the agricultural commodities subject to its control. The terms and conditions of the CCC Peanut Storage Agreement are based on the authority provided by the CCC Charter Act. CCC announces the following uniform rates that CCC will pay for storage, handling, and other associated costs for 2007-crop peanuts to warehouse operators with a CCC Peanut Storage Agreement: In-Elevation CCC will pay $8.00 per ton in-elevation charges to the receiving warehouse, only in cases where CCC directs delivery of CCC-owned peanuts from one warehouse to another location. In cases where the producer did not prepay the in-elevation charges, CCC will pay the CCC-approved in-elevation charge at a rate of $8.00 per ton to the warehouse operator and collect the amount from the producer after loan forfeiture. Storage Storage amounts may be earned at the rate of $.089 per ton per day beginning on the day following the loan maturity date, based on a monthly storage rate of $2.71 per ton. CCC will also use this rate to pay the storage amount by which the loan amount was reduced, when producers fail to pay storage or make arrangements for storage charges through the loan maturity date. Load-Out CCC will pay a load-out rate of $8.00 per ton which includes all items associated with loading out CCC-owned peanuts, such as weighing and placing peanuts aboard railcars or trucks. CCC will pay load-out charges only when this service is ordered by CCC. Grading and Inspection CCC will pay the amount of grading and inspection fees as determined by the Federal-State Inspection Service, Agriculture Marketing Service, for CCC-owned peanuts, only when CCC requests such service. Other Associated Costs CCC will negotiate rates on a case-by-case basis for other services for CCC-owned peanuts, such as cleaning, drying, or fumigation, when CCC requests such service. Signed at Washington, DC, September 20, 2007. Teresa C. Lasseter, Executive Vice President, Commodity Credit Corporation. [FR Doc. E7-18856 Filed 9-24-07; 8:45 am] BILLING CODE 3410-05-P DEPARTMENT OF COMMERCE Bureau of Industry and Security Action Affecting Privileges; Mohammad Fazeli; In the Matter of: Mohammad Fazeli, 1439 Saltair Fazeli Ave., Los Angeles, CA 90025; and With an Address at: 112 West 9th Street, Suite 1115, Los Angeles, CA 90015 Order Denying Export Privileges A. Denial of Export Privileges of Mohammad Fazeli On August 7, 2006, in the U.S. District Court in the Central District of California, following a plea of guilty, Mohammad Fazeli (“Fazeli”) was convicted of violating the International Emergency Economic Powers Act (50 U.S.C. 1701-1705 (2000)) (“IEEPA”). Fazeli pled guilty to willfully attempting to export 103 Honeywell pressure sensors to Iran, through the United Arab Emirates, without the license required from the United States Department of Treasury, Office of Foreign Assets Control. Fazeli was sentenced to one year and a day of imprisonment followed by two years of supervised release and fined $3,000. He was released from prison on July 9, 2007. Section 11(h) of the Export Administration Act of 1979, as amended (currently codified at 50 U.S.C. app. 2401-2420 (2000)) (“Act”) 1 and § 766.25 of the Export Administration Regulation 2 (“Regulations”) provide, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of * * * any regulation, license or order issued under the International Emergency Economic Powers Act,” for a period not to exceed 10 years from the date of conviction. 15 CFR 766.25(a) and (d). In addition, § 750.8 of the Regulations states that Bureau of Industry's (“BIS”) Office of Exporter Services may revoke any BIS licenses previously issued in which the person had an interest in at the time of his conviction. 1 Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), as extended by the Notice of August 15, 2007 (72 FR 46137, Aug. 16, 2007), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706 (2000)) (“IEEPA”). 2 The Regulations are currently codified at 15 CFR Parts 730-774 (2007). I have received notice of Fazeli's conviction for violating the IEEPA, and have provided notice and an opportunity for Fazeli to make a written submission to the Bureau of Industry and Security as provided in § 766.25 of the Regulations. Having received no submission from Fazeli, I, following consultations with the Office of Export Enforcement, including the Director, Office of Export Enforcement, have decided to deny Fazeli's export privileges under the Regulations for a period of six years from the date of Fazeli's conviction. Accordingly, *it is hereby ordered:* I. Until August 7, 2012, Mohammad Fazeli, 1439 Saltair Fazeli Ave., Los Angeles, CA 90025, and with an address at: 112 West 9th Street, Suite 1115, Los Angeles, CA 90015 and when acting for or on behalf of Fazeli, his representatives, assigns, agents, or employees, (collectively referred to hereinafter as the “Denied Person”) may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations, including, but not limited to: A. Applying for, obtaining, or using any license, License Exception, or export control document; B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or C. Benefiting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations. II. No person may, directly or indirectly, do any of the following: A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations; B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control; C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States; D. Obtain from the Denied Person in the United States any item subject to the regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing. III. After notice and opportunity for comment as provided in § 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Mohammad Fazeli by affiliation, ownership, control, or position of responsibility in the conduct of trade or related services may also be made subject to the provision of this Order. IV. This Order does not prohibit any export, reexport, or other transaction subject to the Regulations where the only items involved that are subject to the Regulations are foreign-produced direct product of U.S.-origin technology. V. This Order is effective immediately and shall remain in effect until August 7, 2012. VI. In accordance with Part 756 of the Regulations, Fazeli may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from date of this Order and must comply with the provisions of Part 756 of the Regulations. VII. A copy of this Order shall be delivered to Fazeli. This Order shall be published in the **Federal Register** . Dated: September 12, 2007. Eileen M. Albanese, Director, Office of Exporter Services. [FR Doc. 07-4717 Filed 9-24-07; 8:45 am]

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