Rules and Regulations. Notice and request for comments

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

BILLING CODE 4909-60-M DEPARTMENT OF THE TREASURY Internal Revenue Service Proposed Collection; Comment Request for Form 8925 AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice and request for comments. SUMMARY: The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).

Currently, the IRS is soliciting comments concerning Form 8925, Report of Employer-Owned Life Insurance Contracts. DATES: Written comments should be received on or before March 24, 2008 to be assured of consideration. ADDRESSES: Direct all written comments to R. Joseph Durbala, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224. FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the form and instructions should be directed to Glenn Kirkland,

(202)622-3428, at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet at *Glenn.P.Kirkland@irs.gov.* SUPPLEMENTARY INFORMATION: Title: Report of Employer-Owned Life Insurance Contracts. *OMB Number:* 1545-2089. *Form Number:* Form 8925. *Abstract:* Form 8925, Report of Employer-Owned Life Insurance Contracts, is used by a policyholder (who is engaged in a trade or business which employs the person insured and who is a direct or indirect beneficiary) to report certain information concerning the number of employees covered by employer-owned life insurance in force on those employees at the end of the tax year. *Current Actions:* There is no change in the paperwork burden previously approved by OMB. This form is being submitted for renewal purposes only. *Type of Review:* Extension of a currently approved collection. *Affected Public:* Businesses and other for-profit organizations, Farms. *Estimated Number of Respondents:* 16,000. *Estimated Time per Respondent:* 4 hours 28 minutes. *Estimated Total Annual Burden Hours:* 71,360. The following paragraph applies to all of the collections of information covered by this notice: An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103. *Request for Comments:* Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on:

(a)Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;

(b)the accuracy of the agency's estimate of the burden of the collection of information;

(c)ways to enhance the quality, utility, and clarity of the information to be collected;

(d)ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and

(e)estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Approved: January 14, 2008. R. Joseph Durbala, IRS Reports Clearance Officer. [FR Doc. E8-1146 Filed 1-23-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service Art Advisory Panel of the Commissioner of Internal Revenue AGENCY: Internal Revenue Service, Treasury. ACTION: Notice of determination of necessity for renewal of the Art Advisory Panel. SUMMARY: It is in the public interest to continue the existence of the Art Advisory Panel. The current charter of the Art Advisory Panel will be renewed for a period of two years. FOR FURTHER INFORMATION CONTACT: Karen E. Carolan, AP:ART, 1099 14th Street, NW., Room 4200E, Washington, DC 20005, Telephone No.

(202)435-5609, (not a toll free number). Pursuant to the Federal Advisory Committee Act, 5 U.S.C. App. (2000), the Commissioner of Internal Revenue announces the renewal of the following advisory committee: *Title* . The Art Advisory Panel of the Commissioner of Internal Revenue. *Purpose* . The Panel assists the Internal Revenue Service by reviewing and evaluating the acceptability of property appraisals submitted by taxpayers in support of the fair market value claimed on works of art involved in Federal Income, Estate or Gift taxes in accordance with sections 170, 2031, and 2512 of the Internal Revenue Code of 1986. In order for the Panel to perform this function, Panel records and discussions must include tax return information. Therefore, the Panel meetings will be closed to the public since all portions of the meetings will concern matters that are exempted from disclosure under the provisions of section 552b(c)(3), (4),

(6)and

(7)of Title 5 of the U.S. Code. This determination, which is in accordance with section 10(d) of the Federal Advisory Committee Act, is necessary to protect the confidentiality of tax returns and return information as required by section 6103 of the Internal Revenue code. *Statement of Public Interest* . It is in the public interest to continue the existence of the Art Advisory Panel. The Secretary of Treasury, with the concurrence of the General Services Administration, has also approved renewal of the Panel. The membership of the Panel is balanced between museum directors and curators, art dealers and auction representatives to afford differing points of view in determining fair market value. Authority for this Panel will expire two years from the date the Charter is approved by the Assistant Secretary for Management and Chief Financial Officer and filed with the appropriate congressional committees unless, prior to the expiration of its Charter, the Panel is renewed. The Commissioner of Internal Revenue has determined that this document is not a major rule as defined in Executive Order 12291 and that a regulatory impact analysis therefore is not required. Neither does this document constitute a rule subject to the Regulatory Flexibility Act (5 U.S.C. Chapter 6). Linda E. Stiff, Acting Commissioner of Internal Revenue. [FR Doc. E8-1165 Filed 1-23-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Office of Thrift Supervision Proposed Agency Information Collection Activities; Comment Request—Savings Associations Holding Company Application AGENCY: Office of Thrift Supervision (OTS), Treasury. ACTION: Notice and request for comment. SUMMARY: The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on proposed and continuing information collections, as required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3507. The OTS within the Department of the Treasury will submit the proposed information collection requirement described below to the Office of Management and Budget

(OMB)for review, as required by the Paperwork Reduction Act. Today, OTS is soliciting public comments on its proposal to extend this information collection. DATES: Submit written comments on or before March 24, 2008. ADDRESSES: Send comments, referring to the collection by title of the proposal or by OMB approval number, to Information Collection Comments, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552; send a facsimile transmission to

(202)906-6518; or send an e-mail to *infocollection.comments@ots.treas.gov.* OTS will post comments and the related index on the OTS Internet Site at *http://www.ots.treas.gov.* In addition, interested persons may inspect comments at the Public Reading Room, 1700 G Street, NW., by appointment. To make an appointment, call

(202)906-5922, send an e-mail to *public.info@ots.treas.gov,* or send a facsimile transmission to

(202)906-7755. FOR FURTHER INFORMATION CONTACT: You can request additional information about this proposed information collection from Patricia D. Goings

(202)906-5668, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552. SUPPLEMENTARY INFORMATION: OTS may not conduct or sponsor an information collection, and respondents are not required to respond to an information collection, unless the information collection displays a currently valid OMB control number. As part of the approval process, we invite comments on the following information collection. Comments should address one or more of the following points: a. Whether the proposed collection of information is necessary for the proper performance of the functions of OTS; b. The accuracy of OTS's estimate of the burden of the proposed information collection; c. Ways to enhance the quality, utility, and clarity of the information to be collected; d. Ways to minimize the burden of the information collection on respondents, including through the use of information technology. We will summarize the comments that we receive and include them in the OTS request for OMB approval. All comments will become a matter of public record. In this notice, OTS is soliciting comments concerning the following information collection. *Title of Proposal:* Savings Associations Holding Company Application. *OMB Number:* 1550-0015. *Form Number:* H-(E). *Description:* OTS analyzes each holding company application to determine whether the applicant meets the statutory criteria set forth in section 10(e) of the Act to become a savings and loan holding company. The forms are reviewed for adequacy of answers to items and completeness in all material respects. *Type of Review:* Extension of a currently approved collection. *Affected Public:* Business or other for-profit institutions; Federal Government. *Estimated Number of Respondents:* 50. *Estimated Frequency of Response:* Other; when seeking regulatory activity request. *Estimated Burden Hours per Response:* 500 hours. *Estimated Total Burden:* 25,000. *Clearance Officer:* Ira L. Mills,

(ICR)described below has been submitted to the Office of Management and Budget

(OMB)for review and approval, as required by the Paperwork Reduction Act of 1995. OTS is soliciting public comments on the proposal. DATES: Submit written comments on or before February 25, 2008. A copy of this ICR, with applicable supporting documentation, can be obtained from RegInfo.gov at *http://www.reginfo.gov/public/do/PRAMain.* ADDRESSES: Send comments, referring to the collection by title of the proposal or by OMB approval number, to OMB and OTS at these addresses: Office of Information and Regulatory Affairs, Attention: Desk Officer for OTS, U.S. Office of Management and Budget, 725-17th Street, NW., Room 10235, Washington, DC 20503, or by fax to

(202)395-6974; and Information Collection Comments, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552, by fax to

(202)906-6518, or by e-mail to *infocollection.comments@ots.treas.gov.* OTS will post comments and the related index on the OTS Internet Site at *http://www.ots.treas.gov.* In addition, interested persons may inspect comments at the Public Reading Room, 1700 G Street, NW., by appointment. To make an appointment, call

(202)906-5922, send an e-mail to *public.info@ots.treas.gov,* or send a facsimile transmission to

(202)906-7755. FOR FURTHER INFORMATION CONTACT: For further information or to obtain a copy of the submission to OMB, please contact Ira L. Mills at, *ira.mills@ots.treas.gov*

(202)906-6531, or facsimile number

(202)906-6518, Regulations and Litigation Division, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552. SUPPLEMENTARY INFORMATION: OTS may not conduct or sponsor an information collection, and respondents are not required to respond to an information collection, unless the information collection displays a currently valid OMB control number. As part of the approval process, we invite comments on the following information collection. *Title of Proposal:* Notice of Hiring or Indemnifying Senior Executive Officers or Directors. *OMB Number:* 1550-0047. *Form Number:* OTS Form 1606. *Description:* Pursuant to 12 U.S.C. 1817(j), persons who proposed to acquire control of a savings association or savings and loan holding company must provide prior written notice to the Office of Thrift Supervision (OTS). That notice will now be made on the “Interagency Notice of Change in Director or Senior Executive Officer” and supplemented, as necessary, by information on the “Interagency Biographical and Financial Report.” Required notices must include at a minimum the information described in 12 U.S.C. 1817(j)(6)(A). OTS is required to make a determination as to the hiring or appointment of senior executive officers or directors at savings institutions or thrift holding companies. The OTS's determination must be based upon an evaluation of the individual's competence, experience, character, and integrity. The information required by the collection is necessary to make this determination. Without this information, the OTS cannot accomplish the statutory requirement designed to protect the interests of the Savings Association Insurance Fund. *Type of Review:* Extension without change of currently approved collection. *Affected Public:* Business or other for profit. *Estimated Number of Respondents:* 100. *Estimated Burden Hours per Response:* 100 hours. *Estimated Frequency of Response:* Other; As required per transaction. *Estimated Total Burden:* 233 hours. *Clearance Officer:* Ira L. Mills,

(202)906-6531, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552. Dated: January 18, 2008. Deborah Dakin, Senior Deputy Chief Counsel, Regulations and Legislation Division. [FR Doc. E8-1207 Filed 1-23-08; 8:45 am] BILLING CODE 6720-01-P 73 16 Thursday, January 24, 2008 Rules and Regulations Part II Environmental Protection Agency 40 CFR Parts 72 and 75 Revisions to the Continuous Emissions Monitoring Rule for the Acid Rain Program, NO X Budget Trading Program, Clean Air Interstate Rule, and the Clean Air Mercury Rule; Final Rule ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 72 and 75 [EPA-HQ-OAR-2005-0132; FRL-8511-1] RIN 2060-AN16 Revisions to the Continuous Emissions Monitoring Rule for the Acid Rain Program, NO X Budget Trading Program, Clean Air Interstate Rule, and the Clean Air Mercury Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is finalizing rule revisions that modify existing requirements for sources affected by the federally administered emission trading programs including the NO X Budget Trading Program, the Acid Rain Program, the Clean Air Interstate Rule, and the Clean Air Mercury Rule. The revisions are prompted primarily by changes being implemented by EPA's Clean Air Markets Division in its data systems in order to utilize the latest modern technology for the submittal of data by affected sources. Other revisions address issues that have been raised during program implementation, fix specific inconsistencies in rule provisions, or update sources incorporated by reference. These revisions do not impose significant new requirements upon sources with regard to monitoring or quality assurance activities. DATES: This final rule is effective on January 24, 2008, for good cause found as explained in this rule. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of January 24, 2008, for good cause found as explained in this rule. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2005-0132. All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, *e.g.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Air and Radiation Docket, EPA/DC, EPA West Building, EPA Headquarters Library, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202)566-1744, and the telephone number for the Air and Radiation Docket is

(202)566-1742. FOR FURTHER INFORMATION CONTACT: Matthew Boze, Clean Air Markets Division, U.S. Environmental Protection Agency, Clean Air Markets Division, MC 6204J, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, telephone

(202)343-9211, e-mail at *boze.matthew@epa.gov.* Electronic copies of this document can be accessed through the EPA Web site at: *http://www.epa.gov/airmarkets.* SUPPLEMENTARY INFORMATION: *Regulated Entities.* Entities regulated by this action primarily are fossil fuel-fired boilers, turbines, and combined cycle units that serve generators that produce electricity, generate steam, or cogenerate electricity and steam. Some trading programs include process sources, such as process heaters or cement kilns. Although Part 75 primarily regulates the electric utility industry, certain State and Federal NO X mass emission trading programs rely on subpart H of Part 75, and those programs may include boilers, turbines, combined cycle, and certain process units from other industries. Regulated categories and entities include: Category NAICS code Examples of potentially regulated industries Industry 221112 and others Electric service providers Process sources with large boilers, turbines, combined cycle units, process heaters, or cement kilns where emissions exhaust through a stack. This table is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities which EPA is now aware could potentially be regulated by this action. Other types of entities not listed in this table could also be regulated. To determine whether your facility, company, business, organization, etc., is regulated by this action, you should carefully examine the applicability provisions in §§ 72.6, 72.7, and 72.8 of title 40 of the Code of Federal Regulations and in 40 CFR Parts 96 and 97. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. *World Wide Web (WWW).* In addition to being available in the docket, an electronic copy of the final rule is also available on the WWW through the Technology Transfer Network Web site (TTN Web). Following signature, a copy of the rule will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at *http://www.epa.gov/ttn/oarpg.* The TTN provides information and technology exchange in various areas of air pollution control. *Judicial Review.* Under CAA section 307(b), judicial review of this final action is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit on or before March 24, 2008. Under CAA section 307(d)(7)(B), only those objections to the final rule that were raised with specificity during the period for public comment may be raised during judicial review. Moreover, under CAA section 307(b)(2), the requirements established by today's final rule may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements. Section 307(d)(7)(B) also provides a mechanism for the EPA to convene a proceeding for reconsideration if the petitioner demonstrates that it was impracticable to raise an objection during the public comment period or if the grounds for such objection arose after the comment period (but within the time for judicial review) and if the objection is of central relevance to the rule. Any person seeking to make such a demonstration to EPA should submit a Petition for Reconsideration, clearly labeled as such, to the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., Washington, DC 20460, with a copy to the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel, Mail Code 2344A, U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Outline I. Detailed Discussion of Rule Revisions A. Rule Definitions B. General Monitoring Provisions C. Certification Requirements D. Missing Data Substitution E. Recordkeeping and Reporting F. Subpart H (NO X Mass Emissions) G. Subpart I (Hg Mass Emissions) H. Appendix A I. Appendix B J. Appendix D K. Appendix E L. Appendix F M. Appendix G N. Appendix K O. Other Rule Revisions II. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order: 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act L. Petition for Judicial Review M. Determination Under Section 307(d) I. Detailed Discussion of Rule Revisions EPA is in the process of re-engineering the data systems associated with the collection and processing of emissions, monitoring plan, quality assurance, and certification data. The re-engineering project includes the creation of a client tool, provided by EPA that sources will use to evaluate and submit their Part 75 monitoring data. This process change will enable sources to assess the quality of their data prior to submitting the data using EPA established checking criteria. The process will also allow sources to report their data directly to a database. Having the data in a true database will allow the Agency to implement and assess the program more efficiently and will streamline access to the data. Also, this database structure will enable EPA to implement process changes that will reduce the redundant reporting of certain types of data. The re-engineered systems will be supported by a new extensible markup language

(XML)data format that will replace the record type/column format currently used by EPA to collect electronic data. EPA intends to transition existing sources to the new XML electronic data report (XML-EDR) format during the 2008 reporting year. For sources reporting in 2008 for the first time, the new XML-EDR format should be used. All sources will be required to use the new process beginning in 2009. Therefore, EPA finds good cause to determine that the final rule is effective on January 24, 2008. EPA normally issues final regulations with at least a 30-day effective date after **Federal Register** publication. However, this provision of the rule which pertains to the re-engineering of the Clean Air Markets Division's data systems and to implementation of the Clean Air Mercury Regulation (CAMR), must be effective by January 1, 2008. Today's rule allows sources the option of reporting emissions data in the new XML data reporting format in 2008, one year before the use of XML becomes mandatory. The final rule provides the necessary record keeping and reporting requirements to support the XML format. Second, sources subject to CAMR are required to install and certify continuous mercury

(Hg)monitoring systems by January 1, 2009. To meet this deadline, companies with multiple CAMR-affected units will begin monitor certification testing in the first quarter of 2008. As described in Sections I.C.3 and I.O.3., today's rule adds two recently-published Hg test methods, *i.e.* , Methods 30A and 30B, to Part 75 as alternatives to the Ontario Hydro Method. For many sources, 30A and 30B will be the test methods of choice. Third, as discussed in Section I.A., today's rule defers until January 1, 2010 the requirement for the calibration standards used to certify Hg continuous emission monitoring systems

(CEMS)under CAMR to be traceable to the National Institute of Standards and Technology (NIST). Fourth, for CAMR units that seek to qualify as low mass emitting units under § 75.81, Hg emission testing is required in 2008. As discussed in Section G.2., today's rule adds considerable flexibility to the way in which this testing is conducted, particularly for common stack configurations and groups of identical units. The use of Methods 30A and 30B for this testing is also desirable. Absent this determination of good cause, sources would not be able to begin scheduled monitoring certification activities until the necessary provisions of this rule became effective. A thirty day delay would significantly decrease the overall amount of time available for industry to comply with the certification deadline of January 1, 2009. Such a delay could result in sources not being able to meet the certification deadline, since industry would lose some of its ability to spread utilization of various certification resources ( *i.e.* , test teams, equipment, and vendor support) over the entire course of 2008. For these reasons, EPA believes it has good cause to expedite the effective date of this final rule. A. Rule Definitions Background EPA proposed to add several new definitions to Part 72, including definitions for: “Long-term cold storage” (to mean the complete shutdown of a unit intended to last for at least two calendar years); “EPA Protocol Gas Verification Program” (to support the proposed calibration gas audit program); “Air Emission Testing Body (AETB)” and “Qualified Individual” (to support the proposed stack tester accreditation program). EPA also proposed to modify the definitions of “Capacity factor”, “EPA protocol gas,” and “Excepted monitoring system”, and to remove the definition of “Calibration gas” and related definitions describing the various types of gas standards that are classified as calibration gas. Summary of Rule Changes All of the proposed new and modified definitions have been finalized without substantive changes. However, one commenter cautioned that removing the definitions of the calibration gas standards from Part 72 might have consequences that could necessitate further rule revisions. In view of this, the Agency reconsidered these proposed changes and the final rule retains all but one of the definitions. The definition of “Research gas material” was found to be identical to the definition of “Research gas mixture” and has been removed from the rule. Further, for consistency with Method 30A, the new instrumental reference method for mercury

(Hg)(which, as noted in sections I.C.3 and I.O.3 of this preamble has been added to the list of acceptable Hg reference methods in § 75.22), and in light of other changes in today's rule related to the certification of Hg monitoring systems, EPA is adding definitions of “NIST traceable elemental Hg standards” and “NIST traceable source of oxidized Hg” to § 72.2. These definitions pertain to Hg calibration gas standards and are deemed necessary for implementation of the continuous monitoring requirements of the Clean Air Mercury Regulation (CAMR). Affected units under CAMR are required to install and certify Part 75-compliant Hg monitoring systems by January 1, 2009. To meet this requirement, the vast majority of the certification testing will be performed in 2008. When CAMR was first proposed, only one reference test method (the Ontario Hydro

(OH)Method) was prescribed for the relative accuracy test audits (RATAs) of the required Hg monitoring systems. However, the OH method is wet chemistry-based, and is both difficult and expensive to perform. Also, the laboratory analysis required to obtain the test results can take a week or more, making the OH method incompatible with the Hg emissions trading program described in the CAMR model rule. In a cap and trade program, the RATA results must be known while the test team is still on-site, so that any necessary corrective actions can be taken and retesting performed without delay. With the OH method, if the results of the lab analysis indicate a RATA failure, a retest must be rescheduled and the Hg monitoring system is considered out-of-control until a subsequent RATA is passed. This can result in an extended missing data period and loss of Hg allowances. Thus, it became apparent during the CAMR rulemaking that an alternative to the OH method was needed. An instrumental Hg reference method was put forth as the logical choice, because it would provide real-time Hg concentration data, allowing the RATA results to be known on the day of the test. When CAMR was published on May 18, 2005, EPA stated its intention to “propose and promulgate” an instrumental Hg reference method (see 70 FR 28636). In support of the final CAMR rule, Hg monitoring provisions were added to Part 75. Among these was an amendment to § 75.22, allowing the use of either the OH method or an “instrumental reference method * * * subject to the approval of the Administrator” for the certification testing of Hg continuous monitoring systems. Method 30A was published on September 7, 2007 in a direct-final rulemaking, and became effective on November 6, 2007 ( *see* 72 FR 51494). Method 30A represents the fulfillment of the Agency's commitment to publish an instrumental reference method for Hg. One of the most important Part 75 requirements for the certification of Hg continuous emission monitoring systems

(CEMS)is that the concentrations of the elemental and oxidized Hg calibration gas standards used for the 7-day calibration error tests, linearity checks, and system integrity checks of the CEMS must be traceable to the National Institute of Standards and Technology

(NIST)( *see* Part 75, Appendix A, Section 5.1.9). This NIST traceability requirement for Hg standards is modeled after the NIST traceability requirements in Section 5 of Appendix A for SO 2 , NO X , and diluent gas (CO 2 and O 2 ) calibration gas standards. For the SO 2 , NO X , CO 2 , and O 2 compressed gas standards used in Part 75 applications, “NIST traceability” means that the calibration gases have been prepared according to the EPA-approved protocol cited in Section 5.1.4 of Appendix A. Further, § 75.22(c)(1) requires NIST-traceable gas standards to be used to calibrate the instrumental reference methods used for relative accuracy testing of SO 2 , NO X , CO 2 , and O 2 CEMS ( *i.e.* , Methods 6C, 7E and 3A). Prior to today's rulemaking, no NIST traceability protocols for Hg calibration standards were referenced in Part 75. The new definitions of “NIST traceable elemental Hg standards” and “NIST traceable source of oxidized Hg” address this deficiency and cite the EPA protocols that must be followed to ensure that the elemental and oxidized Hg standards are traceable to NIST. However, these protocols, which are referenced in Section 16.0 of Method 30A, are not yet fully developed, and are not expected to be ready for use until the latter part of 2008. A cooperative field demonstration program that will include representatives from EPA, NIST, industry, equipment vendors, and other key personnel is planned for the coming months, to gather the data necessary to refine and finalize the traceability protocols. Once these traceability protocols are finalized, they will be posted on the Agency's Technology Transfer Network Web site ( *http://www.epa.gov/ttn/emc/* ) and on the Agency's Clean Air Markets Division Web site ( *http://www.epa.gov/airmarkets/* ). In view of this, EPA is temporarily deferring (until January 1, 2010) the requirement for elemental and oxidized Hg standards to be NIST traceable. The deferral affects both initial certifications of the CEMS and routine quality-assurance tests of the CEMS performed prior to January 1, 2010. Note that only the NIST traceability requirement for the Hg calibration standards is being waived, not the requirement to perform the calibration error tests, linearity checks, and system integrity checks of the Hg monitoring systems by January 1, 2009. Beginning on January 1, 2010, all daily calibration error tests, linearity checks, and system integrity checks of Hg CEMS must be performed using NIST traceable elemental and oxidized Hg calibration standards, as defined in § 72.2. Section 5.1.9 of Appendix A to Part 75 has been revised to reflect this. In view of this, EPA strongly recommends that in 2009, all CAMR-affected sources should take the necessary steps to ensure that the NIST traceability requirement is met. In most cases, this will involve the certification of elemental and oxidized Hg generators, according to the traceability protocols. If a source elects to perform daily calibrations and/or linearity checks using compressed gas cylinders instead of an elemental Hg generator, the owner or operator will have to obtain cylinder gases that conform to the EPA traceability protocol for gaseous calibration standards. Finally, note that EPA is conditionally allowing Method 30A to be used for Part 75 Hg emission testing and RATA applications prior to finalization of the traceability protocols in section 16.0 of the method. The condition is that interim traceability protocols are developed and posted on the Agency's Technology Transfer Network Web site ( *http://www.epa.gov/ttn/emc/* ), as “broadly applicable alternative test method approvals” that will expire when the final protocols are issued. EPA's authority to approve such test method alternatives is described in 72 FR 4257, January 30, 2007. EPA believes that a phased-in approach to NIST traceability is appropriate and necessary, in light of the additional time needed to finalize the traceability protocols and the time required for the affected sources and equipment vendors to set up the necessary infrastructure to implement the protocols. The Agency also believes that this approach will not compromise the quality of the data for the emissions trading program under CAMR, since in 2010, the first year in which Hg emissions count against allowances held, NIST traceability of the Hg calibration standards is mandatory. B. General Monitoring Provisions 1. Update of Incorporation by Reference (§ 75.6) Background Section 75.6 identifies a number of methods and other standards that are incorporated by reference into Part 75. This section includes standards published by the American Society for Testing and Materials (ASTM), the American Society of Mechanical Engineers (ASME), the American National Standards Institute (ANSI), the Gas Processors Association (GPA), and the American Petroleum Institute (API). EPA proposed changes to § 75.6 that would reflect the need to incorporate recent updates for many of the referenced standards. The proposed revisions would recognize or adhere to these newer standards by updating references for the standards listed in §§ 75.6(a) through 75.6(f). Additionally, new §§ 75.6(a)(45) through 75.6(a)(48) and 75.6(f)(4) would incorporate by reference additional ASTM and API standards that are relevant to Part 75 implementation. Summary of Rule Changes The updates and additions to § 75.6 have been finalized as proposed. One commenter requested that an additional ASTM method for analyzing the sulfur content of low-sulfur fuel oil, i.e., ASTM D5453-06, “Standard Test Method for Determination of Total Sulfur in Light Hydrocarbons, Spark Ignition Engine Fuel, Diesel Engine Fuel, and Engine Oil by Ultraviolet Fluorescence”, be added to the list of acceptable methods in § 75.6. This method has been incorporated by reference as § 75.6(a)(49) and has been added to section 2.2.5 of Appendix D. 2. Default Emission Rates for Low Mass Emissions

(LME)Units Background EPA proposed to allow LME units to use site-specific default SO 2 emission rates for fuel oil combustion, in lieu of using the “generic” default SO 2 emission rates specified in Table LM-1 of § 75.19. To use this option, a federally enforceable permit condition would have to be in place for the unit, limiting the sulfur content of the oil. This revision, if made, would allow more representative, yet still conservatively high, SO 2 emissions data to be reported from oil-burning LME units. As proposed, the site-specific default SO 2 emission rate would be calculated using an equation from EPA publication AP-42. The sulfur content used in the calculations would be the maximum weight percent sulfur allowed by the federally-enforceable permit. Sources choosing to implement this option would be required to perform periodic oil sampling using one of the four methodologies described in Section 2.2 of Appendix D to Part 75, and would be required to keep records documenting the sulfur content of the fuel. The Agency also proposed to revise § 75.19(c)(1)(iv)(G) to clarify that fuel-and-unit-specific default NO X emission rates for LME units may be determined using data from a Continuous Emissions Monitoring System

(CEMS)that has been quality-assured according to either Appendix B of Part 75 or Appendix F of Part 60, or comparably quality-assured under a State CEMS program. Lastly, the Agency proposed technical revisions to the Equations LM-5 and LM-6 changing the units of rate to units of measure to make the equations correct as units of rate cannot technically be summed. Summary of Rule Changes Commenters were generally supportive of the proposed revisions to § 75.19, and they have been finalized with only one substantive change. EPA has incorporated one commenter's suggestion not to restrict the allowable fuel oil sampling options to those described in Appendix D. The final rule allows the use of other consensus standard fuel sampling methods (e.g., ASTM, API, etc.) specified in applicable State or Federal regulations or in the unit's operating permit, to determine the sulfur content of the oil. Another commenter requested that EPA go beyond its proposal for SO 2 and consider providing a similar, more reasonable site-specific alternative to reporting the generic NO X emission rates in Table LM-2. Specifically, the commenter suggested that for units with very low annual capacity factors, the Agency should waive the testing requirements of §§ 75.19(c)(1)(iv) and allow emission test data that was generated more than 5 years ago (e.g., from a Part 60 performance test) to be used to determine fuel-specific default NO X emission rates. The commenter asserted that the cost of additional testing could impose a financial burden on smaller affected sources. After careful consideration, EPA decided against allowing infrequently-operated units to use emission test data older than 5 years for Part 75 reporting. However, § 75.19(c)(1)(iv)(I) has been amended to provide reduced emission testing requirements for very low capacity factor LME units. The final rule allows single-load testing, between 75 and 100 percent of maximum load, to be performed (both for the initial Appendix E testing and for retests) if, for the 3 years prior to the year of the test, the unit's average capacity factor was 2.5 percent or less and did not exceed 4.0 percent in any of those three years. Alternatively, for combustion turbines, the emission test may be done at the maximum attainable load corresponding to the season of the year in which the test is performed. For a group of identical units, the single-load testing option may be used for any unit(s) in the group that meet the very low capacity factor requirements. For a more detailed discussion of this issue, refer to section 2.3.2 of the Response to Comments

(RTC)document. 3. Default Moisture Value for Natural Gas Background EPA proposed to allow gas-fired boilers equipped with CEMS to use default moisture values in lieu of continuously monitoring the stack gas moisture content. Two conservative default values were proposed: 14.0% H 2 O under § 75.11(b), and 18.0% H2O under § 75.12(b). The Agency also proposed that the higher default value would apply only when Equation 19-3, 19-4, or 19-8 (from Method 19 in appendix A-7 to part 60 of this chapter) is used to determine the NO X emission rate. The proposed default values represent the 10th and 90th percentile values from two sets of supplemental moisture data provided to the Agency, which is consistent with the approach that the Agency has used in responding to past petitions under § 75.66 for site-specific default moisture values. Summary of Rule Changes No adverse comments were received on these proposed rule changes and they have been finalized. 4. Expanded Use of Equation F-23 Background EPA proposed to revise § 75.11(e)(1) to remove the current restrictions on the use of Equation F-23 to determine the SO 2 mass emission rate, by allowing Equation F-23 to be used whether or not the unit has an SO 2 monitor and to expand its use to fuels other than natural gas. The proposal would allow Equation F-23 to be used for any gaseous fuel that qualifies for a default SO 2 emission rate under Section 2.3.6(b) of Appendix D. Further, Equation F-23 could be used for the combustion of liquid and solid fuels that meet the definition of “very low sulfur fuel” in § 72.2, if a petition for a fuel-specific default SO 2 emission rate is submitted to the Administrator under § 75.66 and the Administrator approves the petition. Under the proposed rule, petitions would also be accepted for the combustion of mixtures of these fuels and for the co-firing of these fuels with gaseous fuel. Summary of Rule Changes Commenters were supportive of the expanded use of Equation F-23 and the revisions to § 75.11(e) and corresponding changes to section 7 of Appendix F have been finalized as proposed. 5. Calculation of NO X Emission Rate—LME Units Background EPA proposed to re-title § 75.19(c)(4)(ii) as “NO X mass emissions and NO X emission rate” and to add a new subparagraph

(D)to § 75.19 (c)(4)(ii), providing instructions for determining quarterly and cumulative NO X emission rates for a LME unit. The NO X emission rate for each hour (lb/mmBtu) would simply be the appropriate generic or unit-specific default NO X emission rate defined in the monitoring plan for the type of fuel being combusted and (if applicable) the NO X emission control status. Then, the Agency proposed that the quarterly NO X emission rate would be determined by averaging all of the hourly NO X emission rates and the cumulative (year-to-date) NO X emission rate would be the arithmetic average of the quarterly values. Summary of Rule Changes No adverse comments were received on these proposed rule changes and the revisions to § 75.19(c)(4)(ii) have been finalized as proposed. 6. LME Units—Scope of Applicability Background EPA proposed to revise § 75.19(a)(1) to clarify that the low mass emissions

(LME)methodology is a stand-alone alternative to a CEMS and/or the “excepted” monitoring methodologies in Appendices D, E, and G. In other words, if a unit qualifies for LME status, the owner or operator is required either to use the LME methodology for all parameters or not to use the method at all. No mixing-and-matching of other monitoring methodologies with LME is permitted. Parallel revisions to §§ 75.11(d)(3), 75.12(e)(3), and 75.13(d)(3), consistent with the changes to § 75.19(a)(1), were also proposed to clarify the Agency's intent. Summary of Rule Changes No adverse comments were received on the proposed changes and they have been finalized. 7. Use of Maximum Controlled NO X Emission Rate When Using Bypass Stacks Background Revisions to § 75.17(d)(2) were proposed that would allow a maximum controlled NO X emission rate

(MCR)to be reported instead of the maximum potential NO X emission rate

(MER)whenever an unmonitored bypass stack is used, provided that the add-on controls are not bypassed and are documented to be operating properly. For example, for a coal-fired unit equipped with FGD and SCR add-on emission controls, if the SCR is documented to be working during an FGD malfunction and the effluent gases are routed through an unmonitored bypass stack after passing through the SCR, then the MCR, rather than the MER, would be the more appropriate NO X emission rate to report for the bypass hour(s). Documentation of proper add-on control operation for such hours of operation would be required as described in § 75.34(d). The MCR would be calculated in a manner similar to the calculation of the MER, except that the maximum expected NO X concentration

(MEC)would be used instead of the maximum potential NO X concentration (MPC). Summary of Rule Changes Commenters were generally supportive of the proposed rule changes and they have been finalized. One commenter recommended that parallel language be added to § 75.72(c)(3), to cover non-Acid Rain Program units that are subject to the NO X mass emissions monitoring provisions of Subpart H. EPA agrees with this comment and has added the necessary language to § 75.72(c)(3). C. Certification Requirements 1. Alternative Monitoring System Certification Background EPA proposed to delete §§ 75.20(f)(1) and

(2)from the rule, thereby removing the requirement for the Administrator to publish each request for certification of an alternative monitoring system in the **Federal Register** , with an associated 60-day public comment period. This rule provision is considered unnecessary, in view of the Agency's authority under Subpart E to approve alternative monitoring systems and the rigorous requirements in §§ 75.40 through 75.48 that alternative monitoring systems must meet in order to be certified. Summary of Rule Changes Commenters were supportive of the proposed amendments to § 75.20(f), and they have been finalized. 2. Part 60 Reference Test Methods Background On May 15, 2006, EPA promulgated final revisions to EPA reference test methods 6C, 7E, and 3A, which are found in Appendix A of 40 CFR Part 60. (See 71 FR 28082, May 15, 2006). These test methods are prescribed for Part 75 emission testing and RATAs. Three new testing options that were added to the methods were deemed unacceptable for use under Part 75. These include:

(1)Section 7.1 of revised EPA Method 7E, allowing for custom calibration gas concentrations to be produced by diluting EPA protocol gases, in accordance with Method 205 in Appendix M of 40 CFR Part 51.

(2)Section 8.4 of revised EPA Method 7E, allowing the use of a multi-hole “rake” probe to satisfy the multipoint traverse requirement of the method.

(3)Section 8.6 of revised EPA Method 7E, allowing for the use of “dynamic spiking” as an alternative to the interference and system bias checks of the method. Although revised Method 7E states that for use under Part 75 the three options above require approval by the Administrator, EPA proposed to add similar language to § 75.22(a)(5) to reinforce its position regarding these testing alternatives. Summary of Rule Changes No adverse comments were received on the proposed amendments to § 75.22(a)(5) and they have been finalized. However, one commenter brought to EPA's attention another revision to the Part 60 reference methods that impacts Part 75. EPA Method 20 was also revised on May 15, 2006. Method 20 has been the NO X emission test method prescribed for combustion turbines

(CTs)in section 2.1.2.2 of Appendix E. Method 20 has also been used to determine fuel-specific NO X emission rates for combustion turbines that qualify as low mass emissions

(LME)units under § 75.19. The original Method 20 required testing at 8 sampling points per run, with typical run times averaging about 15 to 20 minutes. However, the revised Method 20 no longer specifies the minimum number of test points per run, but rather requires sampling point selection to be done according to Method 7E. Revised Method 7E requires 12 traverse points for an emission test run (which would suffice for Appendix E testing), but the method also allows the results of stratification testing to be used to justify using three or, in some cases, one sample point instead. This raises questions about the required length of an Appendix E test run. For instance, if testing were required at only one point, each Appendix E test run would be reduced from 15-20 minutes to as little as 2 minutes (depending on the system response time). The commenter stated that such short sampling runs seem inadequate to develop a substantial correlation curve for emission reporting. The commenter recommended that EPA modify Appendix E or Method 20 and either set a minimum run time of 20 minutes (providing an hour of data at each load) or specify a minimum number of sampling points for an Appendix E test of a CT. EPA has incorporated the commenter's recommendations into Part 75. First, § 75.22(a)(5) has been amended to prohibit the use of Method 7E to determine the required number of sample points for the emission testing of a combustion turbine. Section 75.22(a)(5)(ii) requires the sample points to be determined according to section 2.1.2.2 of Appendix E, instead. Second, for the emission test of a CT, section 2.1.2.2 of Appendix E has been revised to require a minimum of 12 test points per run, located according to EPA Method 1. Third, amendments have been made to § 75.22(a)(6), § 75.19(c)(1)(iv)(A), section 6.5.10 of Appendix A, and sections 2.1.2.2 and 2.1.2.3 of Appendix E, to remove all references to EPA Method 20 from Part 75. Fourth, for the testing of an Appendix E boiler, the text of section 2.1.2.1 of Appendix E has been revised to require 12 traverse points per run, making it consistent with revised section 2.1.2.2 (note that this is not a new requirement—section 2.1.2.1 has always required 12 test points, located according to section 8.3.1 of Method 3, and that section refers back to Method 1). Finally, in section 2.1.2.3 of Appendix E, the references to the measurement system response time in section 5.5 of Method 20 (which section no longer exists) have been replaced with references to the response time provisions in sections 8.2.5 and 8.2.6 of Method 7E. Appendix E tests performed on CTs prior to the effective date of these amendments are grandfathered from the revised test point location requirements. 3. Mercury Reference Methods Background EPA proposed to add an alternative relative deviation

(RD)specification for the results of mercury

(Hg)emission data collected with paired Ontario Hydro

(OH)reference method sampling trains. The principal RD specification in § 75.22(a)(7) is 10 percent. However, this acceptance criterion may be too stringent for sources with low Hg emissions. Therefore, for average Hg concentrations of 1.0 μg/m 3 or less, EPA proposed an alternative RD specification of 20 percent. This is consistent with the acceptance criteria for data from paired OH trains, as specified in Performance Specification 12A in Appendix B of 40 CFR Part 60. EPA also proposed amendments to §§ 75.22(a)(7), 75.59(a)(7), 75.81(c)(1), and to sections 6.5.10 and 7.6.1 of Appendix A, allowing EPA Method 29 (back-half impinger catch, only) to be used as an alternative to the OH method, both for RATA testing and for periodic emission testing of units with low Hg mass emissions (≤29 lb/yr). Two caveats on the use of Method 29 were proposed. First, sources electing to use Method 29 (which is similar to the OH method, but somewhat simpler and more familiar to stack testers) would be required to use paired sampling trains (i.e., two trains sampling the source effluent simultaneously), and the RD specifications in § 75.22(a)(7) would have to be met for each run. Second, certain analytical and quality assurance

(QA)procedures in the OH method (ASTM D6784-02) would have to be followed instead of the corresponding procedures in Method 29 (because the analytical and quality assurance/quality control (QA/QC) requirements of the OH method are more detailed and rigorous than those in Method 29), and testers could opt to follow several of the sample recovery and preparation procedures in the OH method instead of the Method 29 procedures. Finally, the Agency solicited comment on the use of sorbent traps for reference method testing. Members of the regulated community had expressed an interest in using portable sorbent trap monitoring systems for Hg reference method testing, as an alternative to the OH method. EPA proposed to accommodate a possible future sorbent-based reference method by adding language to § 75.22(a)(7) that would allow an “other suitable” reference method approved by the Administrator to be used for Hg emission testing and RATAs. Summary of Rule Changes Commenters were generally supportive of the proposed amendments that would add Method 29 as an alternative Hg reference method, and those provisions have been finalized without substantive change. One commenter objected to the requirement to use paired sampling trains for OH and Method 29 tests, asserting that this adds to the cost of testing and may result in significant numbers of test runs being discarded. However, EPA does not agree with the commenter. The Agency believes rather that paired sampling trains provide added assurance of data quality when these test methods are used. The decision to require paired trains for the OH method was made during the rulemaking that led to publication of the Clean Air Mercury Regulation

(CAMR)( *see* 70 FR 28636-28639, May 18, 2005). Two commenters supported the proposed 20 percent alternative RD specification for low emitters, and that provision has been finalized. However, one of the commenters noted that even a 20 percent RD specification may be too stringent for extremely low Hg concentrations. EPA agrees that when Hg concentrations are exceptionally low (0.1 μg/m 3 or less), the 20 percent RD specification may be difficult to meet. Therefore, the final rule adds a third tier to the RD specifications in § 75.22. The paired train agreement is also considered to be acceptable if the absolute difference between the two measured Hg concentrations does not exceed 0.03 μg/m 3 . Several commenters strongly supported the proposal to allow the use of a sorbent-based reference method for Hg emission testing and for the RATAs of Hg monitoring systems. Since publication of the proposed rule, a great deal of progress has been made in this area. First, EPA conducted a Method 301 analysis of available data comparing sorbent trap sampling to the OH method. The results of this analysis showed that a sorbent-based sampling method can be a viable alternative reference method. Second, EPA drafted “Method 30B”, a reference method that uses iodated carbon traps to measure vapor phase Hg emissions. Finally, as part of a direct final rulemaking, Method 30B was published on September 7, 2007 ( *see* 72 FR 51494-51531), along with Method 30A, an instrumental Hg reference method. Today's final rule allows both Methods 30A and 30B to be used. D. Missing Data Substitution 1. Block Versus Step-Wise Approach Background Historically, EPA's policy has required sources to use a “block” approach for CEMS missing data substitution. The percent monitor data availability

(PMA)at the end of the missing data period has been used to determine which mathematical algorithm applies, and the substitute data value or values prescribed by that one algorithm have been reported for each hour of the missing data period. However, EPA has recently reconsidered and revised its missing substitution data policy, to allow sources to apply the missing data algorithms in a stepwise manner instead of using the block approach. Under the stepwise methodology, the various missing data algorithms are applied sequentially. That is, the least conservative algorithm is applied to the missing data hours until the PMA drops below 95%. Then, the next algorithm is applied until the PMA has dropped below 90%, and so on. Since Part 75 is not clear about which of the two methods should be used for missing data substitution, EPA proposed to amend §§ 75.33 and 75.32(b), to clarify that the stepwise, hour-by-hour method is the preferred one, and that use of that method would be required for all CEMS data recorded on and after January 1, 2009, and for any CEMS data recorded in XML-format during the transition year of 2008. Summary of Rule Changes Commenters unanimously supported the proposal to adopt stepwise missing data substitution and the proposed amendments to §§ 75.32 and 75.33 have been finalized. 2. Substitute Data Values for Controlled Units Background For units with add-on emission controls, when the PMA for SO 2 or NO X is below 90.0 percent, § 75.34(a)(3) has historically allowed the designated representative

(DR)to petition the Administrator under § 75.66 for permission to report the maximum controlled concentration or emission rate recorded in a specified lookback period instead of reporting the maximum value recorded in that lookback period, for each missing data hour in which the add-on controls are documented to be operating properly. After more than ten years of implementing the Acid Rain Program, EPA no longer believes that such special petitions are necessary, because sources with add-on controls are required to implement a quality assurance/quality control (QA/QC) program that includes the recording of parametric data to document the hourly operating status of the emission controls. This parametric information must be made available to inspectors and auditors upon request. Therefore, any claim that the emission controls were operating properly during a particular missing data period can be easily verified through the audit process. In view of this, the Agency proposed to remove from § 75.34(a)(3) and § 75.66(f) the requirement to petition the Administrator to use the maximum controlled SO 2 or NO X concentration (or maximum controlled NO X emission rate) from the applicable lookback period. The proposed revisions would simply allow the maximum controlled values to be reported whenever parametric data are available to document that the emission controls are operating properly. The proposed rule would further clarify that this reporting option applies only to the third missing data tier, when the PMA is greater than or equal to 80.0 percent, but less than 90.0 percent. EPA also proposed to add a new paragraph (a)(5) to § 75.34, which would allow units with add-on emission controls to report alternative substitute data values for missing data periods in the fourth missing data tier, when the PMA is below 80.0 percent. Proposed § 75.34(a)(5) would allow the owner or operator to replace the maximum potential SO 2 or NO X concentration

(MPC)or the maximum potential NO X emission rate

(MER)with a less conservative substitute data value, for missing data hours where parametric data, (as described in §§ 75.34(d) and 75.58(b)) are available to verify proper operation of the add-on controls. Specifically, for SO 2 and NO X concentration, the replacement value for the MPC would be the greater of:

(a)The maximum expected concentration (MEC); or

(b)1.25 times the maximum controlled value in the standard missing data lookback period. For NO X emission rate, the replacement value for the MER would be the greater of:

(a)The maximum controlled NO X emission rate (MCR); or

(b)1.25 times the maximum controlled value in the standard missing data lookback period. The NO X MCR would be calculated in the same manner as the NO X MER, except that the MEC, rather than the MPC, would be used in the calculation. The proposed alternative data substitution methodology in § 75.34(a)(5) would ensure that the substitute data values for the fourth missing data tier are always higher than the corresponding substitute data values for the third tier. Finally, EPA proposed to revise § 75.38(c) to extend the alternative missing data options for the third and fourth tiers to mercury

(Hg)concentration, and § 75.58(b)(3) would be revised to be consistent with the proposed revisions to §§ 75.34(a)(3), 75.34(a)(5), and 75.38(c). Summary of Rule Changes Comments on the proposed alternative missing data substitution values for controlled units were generally supportive and these provisions have been finalized. Two commenters requested that parallel language be added to § 75.72(c)(3), to extend the use of the new missing data provisions to ozone season-only reporters. Another commenter asked EPA to clarify that the MCR may be implemented on a fuel-specific basis. EPA has incorporated both of these suggestions in the final rule. Two other commenters suggested that, for common stack configurations, EPA should allow the substitute data values to be apportioned or prorated in some way instead of requiring maximum potential values to be reported, in cases where the emission controls installed on some of the units sharing the stack are documented to be operating properly, but such documentation cannot be provided for the controls on the other units. The Agency believes that this approach would unnecessarily complicate the missing data substitution process and would provide no assurance that emissions are not being underestimated. Therefore, this suggestion was not incorporated in the final rule. 3. Substitute Data Values for Hg Background EPA proposed to revise the Hg missing data procedures. First, for Hg CEMS, the text of § 75.38(a) would be amended to clarify that the PMA “trigger conditions” for Hg monitoring systems are different from the trigger conditions for all other parameters. For all parameters except Hg, the trigger points that define the boundaries of the four missing data tiers are 95 percent, 90 percent, and 80 percent PMA. However, for Hg the corresponding trigger points are 90 percent, 80 percent and 70 percent, respectively. Second, EPA proposed to completely revise the missing data provisions in § 75.39 for sorbent trap monitoring systems, to make them the same as for Hg CEMS, so that. the initial missing data procedures of § 75.31(b) and the standard Hg missing data provisions of § 75.38 would be followed for sorbent trap systems. EPA believes that this proposed missing data approach greatly simplifies the missing data substitution process for Hg monitoring systems. The hourly Hg concentration data stream from a sorbent trap system will look essentially the same as the data stream from a CEMS, except that the Hg concentration will “flat-line” (i.e., will not change) during each data collection period. Therefore, under the proposal, when the owner or operator elects to use a primary Hg CEMS and a backup sorbent trap system (or vice-versa), the appropriate substitute data values would be derived from a lookback through the previous 720 hours of quality-assured data, irrespective of whether they were from the primary monitoring system or from the backup system. Summary of Rule Changes Commenters were supportive of the proposed changes to the sorbent trap missing data procedures in § 75.39, and these provisions have been finalized. 4. Correction of Cross-References Background For sources that report emissions data on an ozone season-only basis, EPA proposed to revise § 75.74(c)(3)(xi) and (c)(3)(xii) by replacing references to specific missing data sections with more general references to the entire block of CEMS missing data sections, i.e., §§ 75.31 through 75.37. Summary of Rule Changes No adverse comments were received on these proposed rule changes and they have been finalized, as proposed. E. Recordkeeping and Reporting Background To accommodate its new, re-engineered XML reporting format, which will replace the current electronic data reporting

(EDR)format in 2009, EPA proposed to revise the monitoring plan recordkeeping requirements in § 75.53, with corresponding revisions to § 75.73(c)(3) (for sources reporting NO X mass emissions under Subpart H) and to § 75.84 (for sources reporting Hg mass emissions under Subpart I). EPA proposed to add two new paragraphs,

(g)and (h), to § 75.53, which describe the required monitoring plan data elements in EPA's re-engineered XML data structure. Under this proposal, the provisions of paragraphs

(g)and

(h)would be followed instead of the existing recordkeeping requirements of paragraphs

(e)and (f), on and after January 1, 2009. In 2008, sources would be allowed to choose between the EDR format and XML, but new sources reporting for the first time in 2008 would be strongly encouraged to use the XML format. Included among the proposed monitoring plan changes would be mandatory recording and reporting of the key rectangular duct wall effects data elements using these record types. The proposed requirements to record and report the results of wall effects adjustment factor

(WAF)determinations in the monitoring plan are found in §§ 75.53

(e)and

(g)and in § 75.64. EPA also proposed to make a series of modifications to §§ 75.58 and 75.59 to support the new XML data structure. The proposed changes to the monitoring plan and recordkeeping sections were presented, section-by-section, in Tables 1, 2, and 3 in the preamble to the August 22, 2006 proposed rule. Summary of Rule Changes No significant adverse comments were received on the proposed changes and they have been finalized. 1. Other Reporting Issues a. Long-Term Cold Storage and Deferred Units Background EPA proposed changes to Part 75 to clarify the meaning of the term “long-term cold storage (LTCS)”, found in § 75.4(d). First, a proposed definition of long-term cold storage would be added to § 72.2. LTCS would mean that the unit has been completely shut down and placed in storage and that the shutdown is intended to last for an extended period of time (at least two calendar years). Second, the Agency proposed to add a new paragraph, (a)(7), to § 75.61, requiring the owner or operator to provide notifications when a unit is placed in LTCS and when the unit re-commences operation. Third, modifications to § 75.20(b) were proposed, requiring recertification of all monitoring systems when a unit re-commences operations after a period of long-term cold storage. If a source claiming LTCS status re-commenced operation sooner than two years after being placed in LTCS, the notification and recertification requirements would apply. Fourth, the proposed rule would exempt a unit in LTCS from quarterly emissions reporting under § 75.64 until the unit recommences operation. Parallel LTCS rule provisions and appropriate cross-references regarding quarterly reporting requirements for Subpart H and Subpart I units would be added to §§ 75.73(f)(1) and 75.84(f)(1), respectively, for consistency. EPA also proposed to revise the provisions of §§ 75.4(d) and 75.61(a)(3) pertaining to “deferred” units, i.e., units for which a planned or unplanned outage prevents the required continuous monitoring systems from being certified by the compliance date. The proposed revisions would broaden the scope of § 75.4(d) beyond the Acid Rain Program, to include units in State or Federal pollutant mass emissions reduction programs that adopt the monitoring and reporting provisions of Part 75. Examples of such programs include the Clean Air Interstate Regulation (CAIR), which is scheduled to begin in 2008 and the Clean Air Mercury Regulation (CAMR), which goes into effect in 2009. The proposed revisions to §§ 75.4(d) and 75.61(a)(3) were deemed necessary because the CAIR and CAMR rules do not address deferred units. The proposed revisions to § 75.4(d) would require the owner or operator of a deferred unit to provide notice of unit shutdown and recommencement of commercial operation, either according to § 75.61(a)(3) (for planned shutdowns such as scheduled maintenance outages and for unplanned, forced unit outages) or § 75.61(a)(7) (for units in long-term cold storage). For all of these circumstances involving deferred units, EPA proposed that the Part 75 continuous monitoring systems would have to be certified within 90 unit operating days or 180 calendar days (whichever comes first) of the date that the unit recommences commercial operation. In the time interval between the unit re-start and the completion of the required certification tests, the owner or operator would be required to report emissions data, using either:

(1)Maximum potential values;

(2)the conditional data validation procedures of § 75.20(b)(3);

(3)EPA reference methods; or

(4)another procedure approved by petition to the Administrator under § 75.66. Finally, the Agency proposed to revise the notification requirements of § 75.61(a)(3) to be consistent with the proposed changes to § 75.4(d). Summary of Rule Changes Commenters were generally supportive of the proposed long-term cold storage provisions, requesting only minor clarifications. These provisions have been finalized with no substantive changes. One commenter encouraged EPA to adopt the proposed amendments to broaden the scope of § 75.4(d), to ensure that deferred units under programs such as CAIR and CAMR are provided with a reasonable window of time in which to certify the required monitoring systems, when the units resume operation. EPA has finalized these amendments to § 75.4(d), as proposed. b. Notice of Initial Certification Deadline Background EPA proposed to add a new paragraph (a)(8) to § 75.61, to require new and newly affected sources to notify EPA when the monitoring system certification deadline is reached. Depending on the program(s) to which the unit is subject, this date will always be a particular number of calendar days or unit operating days after a unit either:

(a)Commences commercial operation;

(b)commences operation; or

(c)becomes an affected unit. For Acid Rain Program sources, the Agency must know this date to correctly assess when to begin counting emissions against allowances pursuant to § 72.9. Knowing this date also confirms that the monitoring systems either have or have not been certified by the legal deadline. Summary of Rule Changes One commenter asserted that the requirement for sources to submit to EPA a notification of the deadline for initial monitoring system certification is unnecessarily burdensome and should not be incorporated into Part 75. Another commenter requested that the information be reported in the electronic monitoring plan, rather than requiring a separate notification. EPA does not agree that reporting this information will be burdensome or that it is appropriate to report the date of the initial certification deadline in the electronic monitoring plan. Rather, this date is an essential data element that will be managed using the web-based CAMD Business System (CBS). Therefore, the notification requirement can be met electronically using the CBS. In view of this, the amendment to § 75.61 has been finalized, as proposed. c. Monitoring Plan Submittal Deadline Background EPA proposed to amend § 75.62(a) by changing the submittal deadline for the initial monitoring plan for new and newly-affected units from 45 days to 21 days prior to the initial certification testing, in order to synchronize the initial monitoring plan submittal with the initial test notice. Corresponding changes to Subpart H (§ 75.73(e)) and to Subpart I (§ 75.84(e)) were proposed, for consistency. EPA also proposed to remove the requirement from § 75.62(a)(1) that the electronic monitoring plan must be submitted “in each electronic quarterly report”. Rather, inclusion of the monitoring plan in the report would be optional, and monitoring plan updates would be made either prior to or concurrent with (but not later than) the date of submission of the quarterly report. These proposed revisions would allow sources to maintain their monitoring plan information separate from the quarterly report, but this option would only be available to sources reporting in the new XML format under the re-engineered data submission process. Summary of Rule Changes No adverse comments were received on these proposed rule changes and they have been finalized, as proposed. d. EPA Form 7610-14 Background EPA proposed to amend §§ 75.63(a)(1) and (a)(2), to remove the requirement to submit hardcopy EPA form 7610-14 along with every certification or recertification application. Significant upgrades to EPA's data systems have been made in recent years, and Form 7610-14 is no longer needed to process these applications. Summary of Rule Changes No adverse comments were received on these proposed rule changes and they have been finalized, as proposed. e. LME Applications Background EPA proposed to remove the requirement from § 75.63(a)(1)(ii)(A) for a hardcopy LME certification application to be submitted to the Administrator. The proposal would require only the electronic portion of the application, including the monitoring plan and LME qualification records, to be sent to EPA's Clean Air Markets Division. The hardcopy portion of the LME application would be sent to the State and to the EPA Regional Office. Summary of Rule Changes No adverse comments were received on these proposed rule changes and they have been finalized, as proposed. f. Reporting Test Data for Diagnostic Events Background EPA proposed to revise § 75.63(a)(2)(iii) to make the reporting of the results of diagnostic tests more flexible. Rather than requiring these test results to be reported in the electronic quarterly report for the quarter in which the tests are performed, they could either be submitted prior to or concurrent with that quarterly report. However, this proposed flexibility in the reporting of diagnostic test results would only be available to sources reporting in the new XML format under the re-engineered data submission process. Summary of Rule Changes No adverse comments were received on these proposed rule changes and they have been finalized, as proposed. g. Modifications to § 75.64 Background As part of its data systems re-engineering effort, EPA proposed to revise § 75.64(a) to describe the transition from the existing EDR reporting requirements to the reporting requirements of the new XML format. The Agency proposed to renumber several paragraphs, to replace paragraphs (a)(1) and (a)(2) with new paragraphs (a)(3) through (a)(7), and to remove existing paragraph (a)(8). Summary of Rule Changes No adverse comments were received on these proposed rule changes. These amendments to § 75.64(a) have been finalized, as proposed. h. Steam Load Reporting Background EPA proposed to add a third option to Part 75 for reporting load data in units of mmBtu/hr of steam thermal output. This option is needed to accommodate emissions trading programs in which allowance allocations are made on an electrical or thermal output basis, rather than a heat input basis. The Agency proposed to add text to several sections in the main body of Part 75 and to the Appendices, to accommodate the new reporting option. Summary of Rule Changes No adverse comments were received on these proposed rule changes and they have been finalized, as proposed. i. Test Notification Requirements—Hg Low Mass Emission Units Background Section 75.61(a)(5) requires the owner or operator or the designated representative to provide 21-day advance notice for various periodic quality-assurance tests, including the semiannual or annual relative accuracy tests of CEMS, and for the re-tests of Appendix E peaking units and low mass emissions

(LME)units. Test notices must be provided to the Administrator, to the appropriate EPA Regional Office and to the State or local agency (unless a particular agency issues a waiver from the requirement). Under Subpart I of Part 75, certain low-emitting units covered by the Clean Air Mercury Regulation

(CAMR)may qualify under §§ 75.81(b) through

(d)to perform periodic (semiannual or annual) Hg emission testing in lieu of operating and maintaining continuous Hg monitoring systems. EPA proposed to expand the notification requirements of § 75.61(a)(5) and to add corresponding introductory text to § 75.61(a)(1), requiring the owner or operator or the designated representative to provide at least 21 days notice of the scheduled dates of these periodic Hg emission tests. Summary of Rule Changes No adverse comments were received on this proposed rule change and this test notification requirement has been finalized, as proposed. j. Hardcopy Reports for Retests of Hg Low Mass Emission Units Background Sections 75.60(b)(6) and (b)(7) require the designated representative

(DR)to submit the results of certain periodic quality-assurance tests to the appropriate EPA Regional Office or to the State or local agency, when the test results are requested in writing (or by electronic mail). In particular, the results of semiannual or annual RATAs of CEMS and the routine re-tests of Appendix E units may be requested. If requested, the test results must be submitted within 45 days after the test is completed or within 15 days of the request, whichever is later. EPA proposed to add a new paragraph (b)(8) to § 75.60, requiring the DR to provide, upon request from EPA or the State, the results of the semiannual or annual Hg emission tests required under § 75.81(d)(4) for low-emitting units covered by CAMR. The proposed time frame for submitting these Hg emission test results would be the same as the current one for the RATAs and Appendix E re-tests. Summary of Rule Changes No adverse comments were received and this provision has been finalized, as proposed. k. Wall Effects Adjustment Factors Background For sources with flow monitors installed on circular stacks, reporting of wall effects information is currently required by §§ 75.64(a)(2)(xiii), 75.73(f)(1)(ii)(K) and 75.84(f)(1)(ii)(I), when Method 2H is used in conjunction with Method 2, 2F or 2G. The specific wall effects data elements that must be reported are found in § 75.59(a)(7)(ii) and (a)(7)(iii). These data are submitted along with flow RATA results, as supplementary information. For rectangular stacks and ducts, some of the same supporting data elements in § 75.59(a)(7)(ii) and (a)(7)(iii) are needed for flow RATAs performed using Method 2F or 2G, when wall effects corrections are applied. Additional supporting data elements, not in the current rule, are also needed for Method 2 flow RATAs when wall effects adjustments are made. In view of this, EPA proposed to revise the text of §§ 75.64(a)(2)(xiii), 75.73(f)(1)(ii)(K) and 75.84(f)(1)(ii)(I) and to add RATA support data elements to a new paragraph, (vii), in § 75.59(a)(7), to clarify which wall effects data elements must be reported for circular stacks, which ones are reported for rectangular stacks and ducts, and which data elements must be reported for both types of stacks. Summary of Rule Changes No adverse comments were received on these proposed rule changes and they have been finalized, as proposed. F. Subpart H (NO X Mass Emissions) 1. Subpart H Diluent Monitoring Systems Background For coal-fired Subpart H units that calculate NO X mass emissions as the product of NO X concentration and flow rate and are required to monitor and report the unit heat input, § 75.71(a)(2) requires the installation of an “O 2 or CO 2 diluent gas monitor”. Consistent with the definition of a CEMS in § 72.2, this diluent monitor, which is only used for the heat input determination, should be described as an “O 2 or CO 2 monitoring system”. EPA proposed to revise the text of § 75.71(a)(2) accordingly. Summary of Rule Changes No adverse comments were received. This clarification of § 75.71(a)(2) has been finalized, as proposed. 2. Identifying a NO X Mass Methodology Background EPA proposed to revise § 75.72 to require that only one NO X mass emissions methodology be identified in the monitoring plan at any given time, and to disallow the designation of primary and secondary NO X mass calculation methodologies. EPA believes that one methodology for NO X mass emissions is sufficient. If a source is subject to both Subpart H and to the Acid Rain Program

(ARP)and is concerned about losing NO X data when the diluent component of the NO X emission rate system is out-of-control, that source should choose the NO X concentration times flow rate calculation method as the NO X mass calculation methodology. This would require a NO X concentration system to be identified in the monitoring plan, in addition to the NO X emission rate system. The NO X concentration system would be used only to determine NO X mass emissions, and the NO X emission rate system would be used only to meet the ARP requirement to report NO X in lb/mmBtu. Summary of Rule Changes No adverse comments were received. This provision has been finalized, as proposed. 3. Reporting of Subpart H Facility Information Background Consistent with the proposed revisions to § 75.64, EPA proposed to revise § 75.73(f)(1), to phase out the requirement of § 75.73(f)(1)(i)(B) to include facility location information in each quarterly report. Summary of Rule Changes No adverse comments were received. This provision has been finalized, as proposed. 4. Linearity Check Requirements for Ozone Season-Only Reporters Background For Subpart H sources that report emissions data on an ozone season-only

(OSO)basis, EPA proposed to revise the linearity check provisions in § 75.74(c)(2), (c)(2)(i), (c)(2)(ii), (c)(3)(ii), (c)(3)(vi), and (c)(3)(viii). Historically, OSO reporters have been required to do a pre-season linearity check, an in-season second quarter linearity check (in May or June, if the unit operates for ≥ 168 hours in May and June), and a third quarter linearity check, if the unit operates for ≥ 168 hours in that quarter. Many sources have misunderstood these rule provisions, particularly the requirement to perform an in-season linearity check in the second quarter. In some cases, this has resulted in CEMS out-of-control periods and has required the use of missing data substitution. OSO reporters have also been required to operate and maintain each CEMS and to perform daily calibration error tests, in the time period extending from the hour of completion of the pre-season linearity check through April 30. EPA has found that this rule provision is also not well-understood by the affected sources and assessing compliance with the provision has been difficult, since sources have not been required to report the results of any off-season calibration error tests done prior to April. In view of these considerations, EPA proposed to revise § 75.74(c)(2) to require the pre-season linearity checks to be conducted in the month of April, and to delete all references to performing the pre-season linearity checks at other times. The Agency also proposed to remove the conditional grace period provision from § 75.74(c)(2)(i)(D), and to address (in § 75.74(c)(3)(ii)(E)) data validation in the case where the April linearity check is not completed prior to the start of the ozone season. In that case, data from the monitor would be considered invalid as of May 1, unless the conditional data validation procedures of § 75.20(b)(3) are applied. A 168 unit operating hour period of conditional data validation would be allowed, in which to perform the required linearity check. Passing the linearity check on the first attempt within the allotted time would result in the conditionally valid data becoming quality-assured. Failing the linearity check would result in all data from the monitor be invalidated back to the beginning of the ozone season and the data would remain invalid until a linearity check is passed. Performing the linearity check after the 168-hour period expires would require the data validation provisions in § 75.20(b)(3)(viii) to be applied, subject to the restrictions of § 75.74(c)(3)(xii). EPA proposed to add a new paragraph

(F)to § 75.74(c)(3)(ii), stating that a pre-season linearity check done in April fulfills the second quarter linearity check requirement, and to remove and reserve related Section 75.74(c)(3)(viii). Further, proposed § 75.74(c)(3)(ii)(B) would require the third quarter linearity check to be conducted either by July 30 or within a 168 operating hour period of conditional data validation thereafter. Finally, the Agency proposed that § 75.74(c)(3)(ii)(G) would address the case where a unit operates infrequently and the 168 operating hour conditional data validation period associated with the April linearity check extends through the second quarter, into the third quarter. In that case, if a linearity check is performed and passed in the third quarter, before the 168 operating hour window expires, EPA proposed that this one linearity check would satisfy all three of the ozone season linearity check requirements, i.e., for the pre-season, for the second quarter, and for the third quarter. Summary of Rule Changes The amendments to § 75.74(c) have been finalized, as proposed. Commenters supported EPA's proposal to allow a linearity check performed in April to satisfy both the pre-season and second quarter linearity check requirements. However, several commenters requested that the Agency allow greater flexibility in the timing of the required linearity checks. The proposed amendments requiring the pre-season linearity check to be performed April and the 3rd quarter test to be done in July were perceived as being too restrictive. EPA does not agree with these commenters that the revised quality assurance requirements for ozone season-only reporters lack flexibility. The amendments allow sources to use conditional data validation for up to 168 unit or stack operating hours, in situations where the linearity check cannot be completed by the prescribed deadline. If the required test is performed and passed within the allotted window of time, the source will incur no data loss. OSO reporters desiring greater flexibility in scheduling quality assurance tests should seriously consider switching to year-round reporting. Doing so would provide many benefits, such as grace periods, test deadline extensions, and in some cases, test exemptions. 5. RATA Requirements for Ozone Season Only Reporters Background For Subpart H sources that report NO X mass emission data on an ozone season-only

(OSO)basis, Part 75 has required, for quality-assurance purposes, that at the start of each ozone season each required CEMS must be within the “window” of data validation of a current, non-expired RATA. In past years, this requirement has been met either by performing a RATA in the pre-season (between October 1 and April 30) or, in some instances, by relying on the results of a RATA done in the previous ozone season. The rule has further required each CEMS to be operated, calibrated and maintained in the time period extending from the completion of the RATA, through April 30. Many sources choosing the OSO reporting option find this operation and maintenance (O&M) requirement to be counter intuitive, because they expect to be required to meet Part 75 monitoring obligations only during the ozone season. In view of these considerations, EPA proposed to restrict the window of time in which pre-season RATAs may be performed. As proposed, § 75.74(c)(2)(ii) would require the RATAs to be done either in the first quarter of the year or in the month of April. That restriction would prohibit RATAs done in the previous year from being used to validate data in the current ozone season. EPA also proposed to revise § 75.74(c)(2)(ii)(F), to address data validation. The proposed data validation rules for RATAs are similar to those proposed for linearity checks, in that a period of conditional data validation (720 operating hours) would be allowed when the pre-season RATA is not completed by the April 30th deadline. Consistent with these revisions, the Agency proposed to delete the data validation and conditional grace period provisions in § 75.74(c)(2)(ii)(G) and (c)(2)(ii)(H) and to remove and reserve § 75.74(c)(3)(vi), (vii), and (viii). Summary of Rule Changes The amendments to § 75.74(c) have been finalized, as proposed. One commenter objected to the proposed restriction on the timing of the RATAs and requested that the existing flexibility in the rule be retained. The commenter expressed a strong preference to perform RATAs in the autumn, rather than in the January-April time frame proposed by EPA. A second commenter stated that EPA should remove the requirement to keep records of off-season daily calibration and interference check records in a format suitable for inspection from § 75.74(c)(2)(ii)(E)( *1* ). Regarding the first commenter's assertion that the proposed RATA time frame for OSO reporters is too restrictive, EPA recommends that the owner or operator seriously consider switching to year-round reporting. Year-round reporting allows complete freedom to schedule RATAs at any convenient time during the year and provides many benefits, such as grace periods, test deadline extensions, and in some cases, test exemptions. Even if EPA had decided not to amend the RATA provisions for OSO reporters, § 75.74(c)(2)(ii)(E)( *1* ) would still require the CEMS to be operated, maintained and calibrated in the time period between the RATA and the start of the next ozone season. Thus, if the RATAs are performed in the autumn (e.g., November), the CEMS would have to be maintained and calibrated for at least 10 months of the year; in this case, OSO reporting offers no clear advantage over year-round reporting. EPA did not incorporate the second commenter's suggestion to remove the recordkeeping requirement from § 75.74(c)(2)(ii)(E)( *1* ). However, the text of § 75.74(c)(6)(iii) has been revised to remove the requirement to report the daily calibrations and interference checks done in the month of April. The requirement to record these data remains intact, but the reporting has been made optional. 6. Determining Peaking Status for Ozone Season Only Reporters Background EPA proposed to revise § 75.74(c)(11) to clarify that when peaking unit status for ozone season-only reporters is determined, 3,672 hours (i.e., the number of hours in the ozone season) should be used instead of 8,760 hours in the capacity factor equation. Summary of Rule Changes No adverse comments were received. This provision has been finalized, as proposed. 7. Calculation of Ozone Season NO X Mass Emissions—LME Units Background EPA proposed to correct an organizational error in Subpart H of Part 75. The proposal would remove § 75.72(f), which describes ozone season NO X mass calculations for units using the low mass emission

(LME)methodology under § 75.19, and the basic content of § 75.72(f) would be relocated to § 75.71(e). The LME provision in § 75.72 appears to have been inadvertently placed in that section. The monitoring provisions of § 75.72 apply to common and multiple stack configurations, whereas § 75.71 addresses unit-level monitoring. LME is a unit-level monitoring methodology. Summary of Rule Changes No adverse comments were received. This provision has been finalized, as proposed. G. Subpart I (Hg Mass Emissions) 1. Heat Input Provisions for Common and Multiple Stacks Background Due to an apparent oversight, the heat input monitoring provisions for certain monitoring configurations in Subpart I of Part 75 were inadvertently omitted when Subpart I was promulgated. In particular, EPA found the heat input methodologies for common stacks shared by affected and non-affected units and for multiple stack or duct configurations to be missing. In view of this, the Agency proposed to add three new paragraphs, (b)(3), (c)(4) and (d)(3) to § 75.82 to correct this deficiency. For the common stack shared by affected and non-affected units, proposed § 75.82(b)(3) would require the owner or operator to either measure the total heat input rate at the common stack and apportion it to the individual units by load, according to § 75.16(e)(3), or to determine the heat input rate at the individual units by installing a flow monitor and a diluent monitor on the duct leading from each unit to the common stack. For multiple stack configurations, proposed § 75.82(c)(4) and (d)(3) would require the owner or operator to determine the hourly unit heat input by measuring the hourly heat input rate (mmBtu/hr) at each stack, multiplying each stack heat input rate by the stack operating time

(hr)to convert it to heat input (mmBtu), and then summing the hourly stack heat input values. Summary of Rule Changes No adverse comments were received. These provisions have been finalized, as proposed. 2. Low Mass Emission Alternative Background Section 75.81(b) of Subpart I provides an alternative (“excepted”) monitoring methodology for units with low Hg mass emissions. To qualify to use this methodology, emission testing is required to demonstrate that the unit has the potential to emit no more than 29 lb (464 ounces) of Hg per year. Once a unit qualifies, periodic retesting (semiannual or annual, depending on the emission level) is required to demonstrate that the unit is actually emitting less than 29 lb/yr of Hg. Section 75.81(e), as originally published, allowed the low mass emission alternative to be used for common stacks, provided that the units sharing the stack are tested individually and each one qualifies as a low-emitter. Though not explicitly stated in the rule, it was implied that the periodic retests for common stack configurations would also have to be done at the unit level. EPA has reconsidered this approach, believing it to be overly restrictive, unnecessarily difficult, and costly to implement. Therefore, EPA proposed to revise § 75.81(e) to require Hg testing of the individual units that share the common stack only for the initial demonstration that the units individually qualify as low emitters. Once this has been satisfactorily demonstrated, the required semiannual or annual retests could then be done at the common stack, at a normal load level for the configuration. The proposed revisions to § 75.81(e) would also allow the initial low mass emitter qualification for a group of identical units sharing a common stack to be based on emission testing of a subset of those units. To exercise this proposed option, the group of units would first have to qualify as identical under § 75.19(c)(1)(iv)(B). Then, the number of units required to be tested would be determined from Table LM-4 in § 75.19. The proposed amendments allowed one exception to the requirement to test the individual units sharing a common stack, in order to demonstrate that the units qualify for low mass emitter status, i.e., the case where the gas streams from the individual units are combined together and routed through emission controls that reduce the Hg concentration (e.g., a wet scrubber) before entering the common stack. Owners or operators electing to use this option would be required to perform the testing with all of the units that share the stack in operation, and the combined load during the testing would have to be “normal”, as defined in Section 6.5.2.1 of Appendix A. EPA also proposed to revise § 75.81(c)(1), to specify the acceptable time frame in which to perform the initial certification testing for the low mass emission option. As originally published, the rule simply states that this testing must be done “prior to the compliance date in § 75.80(b)”, but does not specify how far in advance of that date the testing may be done and still be considered acceptable. Further, § 75.81(d)(1) requires the test results to be submitted as a certification application, no later than 45 days after completing the testing. And § 75.81(d)(4) requires periodic Hg retesting to commence within two or four “QA operating quarters” after the quarter of the certification testing. If there is too long a gap between the certification testing and the start of the program, it becomes problematic. For instance, if the testing is done too early, the requirement to submit a certification application within 45 days could result in applications being submitted long before the regulatory agencies are ready to receive and process them. Also, the periodic retesting requirements of § 75.81(d)(4), which become active on the certification test date, could result in several Hg retests being done before the program begins. This is clearly contrary to the purpose of the retests, which, like the periodic relative accuracy tests of CEMS, are intended to commence after the compliance date, when Hg emissions reporting has begun. This also raises questions about which default emission rate to use for the initial reporting. In view of these considerations, EPA proposed to revise § 75.81(c)(1), to require that the Hg testing for initial certification be done no more than 1 year before the compliance date. Sections 75.81(d)(2) and 75.81(d)(5) would also be revised, to address the case where a retest may be required before the compliance date (e.g., when § 75.81(d)(4) requires a retest within two QA operating quarters, following a certification test that was done 9 to 12 months before the compliance date). In such cases, the default Hg emission rate used at the beginning of the program would be the value that was obtained in the retest. Finally, EPA proposed to amend §§ 75.81(d)(4) and (d)(5) to address the emission testing requirements when the fuel supply is changed. The proposed revisions would require additional Hg retesting within 720 unit operating hours, following a change in the fuel supply. The results of this retest would then be applied retrospectively, back to the time of the fuel switch. The Agency also proposed to revise § 75.81(c)(1) to require that the fuel combusted during the initial certification testing be from the same source of supply as the fuel combusted when the program starts. The proposed revisions only addressed the emission testing and reporting requirements for one case, i.e., where the source of supply for the primary fuel (assumed to be coal) changes. EPA solicited comments and suggestions on how to apply the Hg low mass emitter option in situations where the coal supply does not change, but the unit sometimes burns other types of fuel besides coal or co-fires mixtures of coal and other fuels (i.e., what emission testing and reporting requirements might be appropriate). Summary of Rule Changes Commenters were generally supportive of the proposed amendments that would reduce the testing requirements for Hg low mass emission units in common stack configurations. The final rule differs somewhat from the proposal, however, in that it also allows the initial qualifying test to be performed at the common stack, if certain conditions are met. The conditions are:

(1)Testing must be done at a combined load corresponding to the designated normal load level (low, mid, or high) defined in the monitoring plan;

(2)all of the units that share the stack must be operating in a normal, stable manner and at typical load levels during the emission testing;

(3)the coal combusted in each unit during the testing must be representative of the coal that will be combusted in that unit at the start of the Hg mass emission reduction program (preferably from the same source(s) of supply); and

(4)if flue gas desulfurization and/or add-on Hg emission controls are used to reduce the level of emissions exiting from the common stack, these emission controls must be operating normally during the emission testing and the owner or operator must record parametric data or SO 2 concentration data in accordance with § 75.58(b)(3)(i) to document proper operation of the controls. For retests, provided that the required load level is attained and that all of the units sharing the stack are fed from the same on-site coal supply during normal operation, it is not necessary for all of the units sharing the stack to be in operation during a retest. However, if two or more of the units that share the stack are fed from different on-site coal supplies (e.g., one unit burns low-sulfur coal for compliance and the other combusts higher-sulfur coal), then the owner or operator must either:

(1)Perform the retest with all units in normal operation; or

(2)if this is not possible, due to circumstances beyond the control of the owner or operator (e.g., a forced unit outage), perform the retest with the available units operating and assess the test results as follows. The Hg concentration obtained in the retest is used for reporting purposes if the concentration is greater than or equal to the value obtained in the most recent test. However, if the retested value is lower than the Hg concentration from the previous test, then the higher value from the previous test continues to be used for reporting purposes, and that same higher Hg concentration is used in Equation 1 to determine the due date for the next retest. The final rule expands the testing of groups of identical units beyond identical units that share a common stack. Section 75.81(c)(1)(iv) has been amended to allow a subset of any group of identical units to be tested according to Table LM-4 in § 75.19, whether or not the units share a common stack. This amendment is modeled after the provisions of § 75.19(c)(1)(iv)(B) for testing groups of identical LME units. Several commenters objected to the proposed requirement to perform retesting of low mass emission units when the fuel supply is changed. Concerns were expressed that the term “change in fuel supply” is not clearly defined and could be interpreted to require frequent, unnecessary retesting, especially in light of the variation in coal supplies from day to day in competitive wholesale power markets. A number of the commenters recommended that retesting be limited to changes in coal rank or classification (e.g., changing from bituminous coal to sub-bituminous coal). EPA has incorporated the commenters' suggestion into the final rule. Section 75.81(d)(4) of the final rule clarifies what constitutes a “change in fuel supply” that will trigger LME retesting. If a unit switches to a different rank of coal as the primary fuel for the unit, in-between the scheduled LME retests (where coal rank is defined by ASTM D388-99), an additional LME retest is required within 720 operating hours of the change. The results of this retest are then applied retrospectively back to the date and hour of the fuel switch. The four principal coal ranks are anthracitic, bituminous, subbituminous, and lignitic. The ranks of anthracite coal refuse

(culm)and bituminous coal refuse

(gob)are considered to be anthracitic and bituminous, respectively. Equation 1 in § 75.81(c )(2), which is used to demonstrate that a unit qualifies as a Hg low mass emissions unit, conservatively estimates the unit's potential annual Hg emissions by assuming that it operates at the maximum potential flow rate for 8,760 hours per year. One commenter requested that EPA consider modifying Equation 1 to conditionally allow a number of hours less than 8,760 to be used in the calculations, the condition being that there is a Federally-enforceable permit provision in place, limiting the unit's annual operating hours. EPA has incorporated this suggestion into the final rule. The term “8,760” in Equation 1 has been replaced with “N”, which will either be 8,760 or the maximum number of operating hours per year allowed by the unit's Federally-enforceable operating permit (if less than 8,760). If the operating permit restricts the unit's annual heat input but not the number of annual unit operating hours, the owner or operator may divide the allowable annual heat input (mmBtu) by the design rated heat input capacity of the unit (mmBtu/hr) to determine the value of “N”. Finally, no comments were received on the proposal to require that the Hg emission testing for initial certification of a low mass emission unit be done no more than 1 year prior to the applicable compliance date. Therefore, this provision has been finalized, as proposed. For units subject to the Clean Air Mercury Regulation (CAMR), the certification deadline is January 1, 2009. In view of this, only those Hg emission tests of candidate low mass emission units that are performed on and after January 1, 2008 will be accepted for initial certification. 3. Harmonization of Subpart I With Other Proposed Rule Revisions Background Subpart I of Part 75 also contains a recordkeeping and reporting section (§ 75.84). which, for the most part, cross-references the primary monitoring plan, recordkeeping, notification and reporting sections of the rule (i.e., §§ 75.53, 75.57 through 75.59, 75.61, and 75.64) and other sections of Subpart I. To make Subpart I consistent with the proposed revisions to the monitoring plan, recordkeeping, notification, and reporting sections of Part 75, EPA proposed to make a number of minor adjustments to the text of §§ 75.84(c)(3), (e)(1), (e)(2), and (f)(1). Summary of Rule Changes No adverse comments were received. These provisions have been finalized, as proposed. H. Appendix A 1. CO 2 Span Values Background EPA proposed to revise Section 2.1.3 of Appendix A, to allow the use of CO 2 spans less than 6.0 percent CO 2 if a technical justification is provided in the hardcopy monitoring plan. This added flexibility in the CO 2 span value mirrors a similar provision in Section 2.1.3 for O 2 span values. Summary of Rule Changes No adverse comments were received. This provision has been finalized, as proposed. 2. Protocol Gas Audit Program Background EPA is responsible for implementing air quality programs that rely heavily on the accuracy of calibration gas standards. Section 2.1.10 of “EPA Traceability Protocol for Assay and Certification of Gaseous Calibration Standards” (Protocol Procedures), September 1997 (EPA-600/R-97/121) states that EPA will periodically assess the accuracy of calibration gases and publish the results. Between 1978 and 1996, EPA conducted several performance audits of calibration gases from various manufacturers. One notable result of these audits was a steady, significant reduction in the failure rate of the audited gas cylinders, from about 27% in 1992 down to 5% in 1996. The annual audits were discontinued after 1996. Then, in 2003, EPA conducted a “surprise” audit of 14 national specialty gas producers and found that the failure rate had risen to 11%. In view of this, EPA proposed to establish a Protocol Gas Verification Program

(PGVP)and would require that EPA Protocol Gases being used for 40 CFR Part 75 purposes be obtained from specialty gas producers who participate in the PGVP. As proposed, the rule would allow only program participants to market their gas standards as “EPA Protocol Gases.” EPA proposed to maintain a web site, listing the PGVP participants and the audit results, in order to provide calibration gas users with detailed information about the quality of EPA Protocol Gases. EPA also proposed to:

(1)Add a definition of “specialty gas producer” to § 72.2;

(2)delete several calibration gas standards and reference materials from section 5.1 of appendix A (believing them to be prohibitively expensive and not used in practice by Part 75 sources);

(3)remove from § 72.2 the corresponding definitions of the deleted calibration gas standards; and

(4)consolidate the remaining calibration gas standards under section 5.1 of appendix A. Finally, EPA requested comment on the appropriate accuracy specification to apply to Hg cylinder gases and other Hg calibration standards (e.g., gases from NIST-traceable generators). Currently, EPA requires that accuracy of other EPA Protocol gases to be within 2 percent of the certified tag values. Summary of Rule Changes Only one organization commented on the proposed protocol gas verification program (PGVP). The commenter stated that a transition period is needed to implement the program. Sources need time to communicate with their gas vendors regarding their participation in the PGVP. The commenter further asserted that the PGVP would be disruptive and costly, both in the short-term and in the long-term, and that the affected sources would bear the brunt of the cost impact. EPA agrees with the commenter regarding the need for a transition period. The final rule amends section 5.1.4

(c)to have the Protocol Gas Verification Program

(PGVP)take effect on January 1, 2009. As the commenter has stated, the costs of the PGVP will be borne by the Part 75 sources using the calibration gases, and the Agency notes that these minimal costs ($5 to $10 added to a $500 to $1,000 cylinder) will be offset by the savings generated by fewer failed calibration error tests, linearity checks, and relative accuracy test audits. 3. Requirements for Air Emission Testing Bodies Background Since the inception of the Acid Rain Program, field audits of Part 75-affected facilities have brought to EPA's attention a number of improperly-performed RATAs and other QA/QC tests. In view of this, EPA proposed to revise Section 6.1 of Appendix A to require all individuals who perform the emission tests and CEMS performance evaluations required by Part 75 to demonstrate conformance with ASTM D7036-04 “Standard Practice for Competence of Air Emission Testing Bodies”. ASTM D7036-04 specifies the general requirements for demonstrating that an air emission testing body

(AETB)is competent to perform emission tests of stationary sources. Proposed revisions to Section 6.1.2 of Appendix A, Section 2.1 of Appendix E, and Section 1 of Appendix B make it clear that this requirement would apply only to AETBs that perform RATAs, NO X emission tests of Appendix E and LME units, or Hg emission tests of low-emitting units. It would not be applicable to the daily operation, daily QA/QC (daily calibration error check, daily flow interference check, etc.), weekly QA/QC (i.e., Hg system integrity checks), quarterly QA/QC (linearity checks, etc.), and routine maintenance of the CEMS. EPA also proposed to incorporate ASTM Method D7036-04 by reference in § 75.6(a)(45), and to add a definition of “Air Emission Testing Body” to § 72.2. Summary of Rule Changes The amendments to Section 6.1.2 of Appendix A, Section 2.1 of Appendix E, and to Section 1 of Appendix B, requiring AETBs to conform to ASTM D7036-04, have been finalized, as proposed. Two commenters strongly supported the proposed revisions. However, several others objected to them, believing they would be costly and burdensome, without producing any noticeable improvement in data quality. EPA does not agree with these commenters, for the following reasons. The experience of the State and Federal regulators in the ASTM work group indicates that implementation of the ASTM Practice will result in improved data quality. EPA believes the evidence is abundant that unqualified, under-trained and inexperienced testers are often deployed on testing projects. The Agency has had experiences with tests that have been invalidated or called into question due to poor performance by testing contractors (see Docket Items OAR-2005-0132-0009, -0021, and -0035). Conformance with ASTM D7036-04 does not guarantee that every test will be performed properly. However, it will reduce the likelihood of problems. Furthermore, it provides a guideline for both regulatory agencies and affected sources to evaluate and select competent testing firms. One of the cornerstones of the Practice is that AETBs must collect performance data on how well they plan and execute test projects. These data must be shared with regulators and clients upon request. In response to claims that ASTM D7036-04 will significantly increase the cost and burden of Part 75 testing, EPA notes that no data were provided to support these claims. The ISO 17025 standard upon which the ASTM standard is based has been implemented in Europe for many years. Mark Elliot, Chairman of the Stack Testing Association

(STA)of Great Britain, has provided the following information on the costs of their programs. Their certification program (for individuals) is called MCERTS. • MCERTS testing fees: Level 1 $350; Level 2 $940 • Technical endorsements (1-4): $350 each The Level 2 certification requires a personal interview with the applicant. Please note that according to Mr. Elliot, this program has been successfully implemented in the UK with no small companies going out of business and no complaints of being overly burdensome on industry. In fact, many large companies such as Mobil, Dow, Pfizer, and 3M are members of the STA and fully support the program because, according to Mr. Elliot, they believe it improves the quality of the data provided by testing companies. Even major UK utility companies such as Drax Power, Energy Power Resources, the Electricity Supply Board, PB Power, Scottish and Southern Energy, and Scottish Power participate in the program. And they do this voluntarily because they have found it to their benefit to do so. There are several differences between the program described in the final rule and the UK program. First, the final rule does not require accreditation. The individual testing requirements in the rule are less expensive and less stringent than the UK program. In the US, The Source Evaluation Society is currently providing Qualified Individual testing. The fees are $155 for the first test (including a one-time $15 SES membership) and $89 for any subsequent tests taken during the same testing session). It should also be noted that ASTM D7036-04 does not require that every individual be tested. Only one “Qualified Individual” need be present on-site during a test. Therefore, even this minimal cost and burden is considerably less than the successful UK program. The costs of coming into initial compliance with the ASTM D7036-04 standard depend on the current state of an AETB's quality program. Those that do not currently have an organized quality program will most likely incur greater costs than those who do. In any case, the burden will be no greater than that experienced by the UK companies who successfully went through the same process. The main costs to comply with the ASTM D7036-04 standard are associated with taking a stack test QSTI (qualified stack test individual) competency exam, and developing or revising a quality assurance

(QA)manual. A nationwide compliance cost estimate may be obtained using the following estimates: • 450 stack test companies in U.S. (The number of private (external) stack test companies came from *www.epa.gov/ttn/emc/software.html#testfirm* . RMB Consulting, Inc. estimated 10 in-house utility RATA test teams in the U.S.); • On average, 10 people per company (Source: *www.epa.gov/ttn/emc/software.html#testfirm* ); • QSTI exam (required by ASTM) costs $150 and must be taken every 5 years (Source: December 11, 2006 letter from the Source Evaluation Society in Docket OAR-2005-0132); and • Roughly 1 QSTI is required for every 3 people in a stack test company. Using these inputs, the Agency estimates the cost to comply with ASTM D7036-04 at about $100 per yr per company to cover the QSTI exam. There is also approximately a $4,000 one time cost per company, whether a large or small entity as defined by the Small Business Administration's

(SBA)regulations at 13 CFR 121.201, to develop a QA manual (estimate provided by Air Tech, see Docket Item # EPA-HQ-OAR-2005-0132-0093). However, the costs will be borne by the Part 75 sources using the air emission testing bodies, and the Agency notes that these costs will be offset by the savings generated by fewer failed or incorrectly performed relative accuracy test audits, and fewer repeat tests required. Therefore, the effect of this revision is to actually relieve a regulatory burden on these entities. Regarding the issue of the financial impact on smaller companies and the request to provide funds to these companies, EPA notes that small stack test companies were represented on the ASTM work group. At least one small stack test company (3 people) has already complied with ASTM D7036-04, is supportive of the requirement, and expects to actually realize an increase in business because of their compliance with ASTM D7036-04. As stated in another response, the costs to comply with ASTM D7036-04 are reasonable. Similar requirements have been successfully implemented for many years in the UK with no small companies going out of business and no complaints of being overly burdensome on industry. EPA does not expect to provide funds to support small stack test companies in meeting the requirements of ASTM D7036-04. EPA notes that virtually the same program has been in place in Europe for several years and is functioning very well with the support of stack testers, the government, and industry. The ASTM standard is actually less stringent in some areas than the European program. Based on this extensive experience in Europe, EPA believes that this program can be successfully implemented here in the U.S. with very little additional burden. In summary, there is an abundance of both data and experience showing that this program can be implemented without an unreasonable burden, and also (according to UK industry participants) that it will improve the quality of data. Two commenters asserted that the existing infrastructure is not adequate for testers to comply with the ASTM method. EPA disagrees with these claims. The Source Evaluation Society is currently offering qualification exams in several areas. The commenters may be concerned that the SES website used to state that their exams may not specifically satisfy the requirements of the ASTM Practice (because they were not developed specifically for that purpose). However, SES has updated the wording on their Web site to say that their qualification exams do meet the exam requirement of the ASTM Practice. The Stack Testing Accreditation Council

(STAC)also recognizes that not only does the SES program meet the requirements of the ASTM standard—it actually exceeds them. It requires more experience than the ASTM standard and also requires letters of recommendation. Both EPA and STAC accept an SES certification as meeting the external testing and experience requirements of the ASTM Practice. If an external QSTI test is not available to a company, an internal test may be used to meet the requirements of ASTM D7036-04 until an external test becomes available. EPA is aware of at least one large stack test company that has developed a training module for mercury methods meeting the requirements of the ASTM D7036-04, and has trained and tested their people according to the internal qualification exam provision of ASTM D7036-04. When a third party test becomes available, this company has indicated that they will re-certify their people according to the requirements of ASTM D7036-04. The Source Evaluation Society is reviewing steps to improve and expand the QSTI examination process. Four commenters asked EPA to clarify how compliance with ASTM D7036-04 would be determined. Section 6.1.2 in Appendix A of the final rule specifically states that there are two ways an AETB can certify compliance:

(1)A certificate of accreditation, or

(2)a letter of certification signed by senior management. The latter option is similar to the way major sources certify compliance with their Title V permits. However, AETBs are under much more direct regulatory scrutiny than a Title V source. Every state has a field test observer program. In the case of one large stack testing company, Clean Air Engineering, about half of their compliance tests are directly observed by state regulators. This oversight provides an on-going check of whether an AETB remains in conformance. In co-operation with the New Jersey DEP, a standardized state observer checklist is being developed that will facilitate incorporating state observer assessments into the ASTM process. EPA expects to treat non-compliance with this standard in the same way it treats noncompliance with any other standard—using its enforcement discretion. EPA does not anticipate invalidating test results because of minor infractions. The proper way to deal with these issues, if either the regulatory authority or the client discovers them, is to notify the AETB that a problem has been found. The AETB is then obligated to initiate a corrective action to address the problem. This becomes part of the AETB's Performance Data required by the Practice. The Agency recommends that the client also ask the AETB to report back on what corrective actions were taken. In the case of serious infractions, EPA may exercise the same authority it has always had to reject the test. EPA encounters deviations in test methodology routinely in reviewing stack test reports. Minor deviations are noted and reported back to the source but the underlying results are accepted. Major deviations result in a rejection of the test. This situation is no different. This Practice should be treated much like a test method in this regard. Minor deviations may be of the type the commenters cite in their examples. Major deviations may include (for example) not having a Qualified Individual on-site, not having proper calibration records for the equipment used, or failing to follow through with corrective actions when required. There will undoubtedly be some discussions between EPA, affected sources and AETB's as this program unfolds that will help define the implementation of the Practice. But this is the case with every new rule and standard. There is always a balance in standard writing between being overly detailed and prescriptive and being too loose and flexible. The stakeholders involved in the consensus process of ASTM determined that the proper balance had been achieved. It is important to keep in mind that ASTM D7036-04 is essentially an international standard that has been used successfully in countries all over the world. Three commenters requested that EPA provide a 1-2 year transition period after promulgation of the final rule, to allow AETBs sufficient time to conform to ASTM D7036-04. Particular concerns were expressed about the availability of Qualified Individuals

(QIs)for Hg emission testing. EPA agrees that a transition period is appropriate, given the testers' relative unfamiliarity with Hg test methods. Therefore, the final rule gives AETBs until January 1, 2009 to comply with ASTM D7036-04. A number of other comments were received on the proposed AETB certification program. These are addressed in detail in the Response to Comments

(RTC)document. 4. Linearity Requirements for Dual-Span Applications Background In May 1999, EPA revised the linearity check provisions in Part 75, Appendix A, section 6.2, to exempt SO 2 and NO X span values of 30 ppm or less from performing linearity checks. Since the May 1999 revisions became effective, some have questioned whether the linearity exemption applies only to ongoing QA or whether it applies also to initial certification. Others have asked whether the exemption applies only to a particular measurement range or to all of the linearity check requirements for a monitoring system. In view of this, EPA proposed to revise Section 6.2 of Appendix A to make it clear that the 30 ppm linearity exemption:

(1)Is range-specific;

(2)covers both initial certification and ongoing QA;

(3)does not remove the requirement to perform linearity checks of the high range (if > 30 ppm) for dual span applications; and

(4)does not take away the linearity check requirements for the diluent monitor component of a NO X -diluent monitoring system. Summary of Rule Changes The proposed amendments to Section 6.2 of Appendix A have been finalized, without substantive change. At the request of one commenter, the final rule clarifies that the low-span linearity exemption applies to recertification as well as to initial certification and ongoing QA. 5. Dual Span Applications-Data Validation Background EPA proposed to clarify the relationship between the quality-assured

(QA)status of the low and high ranges of a gas monitor in a dual-span application. Sections 2.1.1.5(b) and 2.1.2.5(b) of Appendix A have provided instructions for reporting SO 2 and NO X concentration data when the full-scale range of the monitor is exceeded. For single-range applications, reporting a value of 200 percent of the range has been required when a full-scale exceedance occurs. For dual range applications, if the low range is exceeded, no special reporting has been necessary, provided that the high range is “available and not out-of-control or out-of-service for any reason”. However, if the high range is “not able to provide quality-assured data” during the low-range exceedance, then sources have been required to report the maximum potential concentration (MPC). Believing that the two phrases used to describe the QA status of the high range during low-scale exceedances, *i.e.* , “available and not out-of-control or out-of-service for any reason” and “not able to provide quality assured data” to be too general, the Agency proposed to revise these rule texts by defining the QA status of the high range in terms of its most recent calibration error and linearity checks. Provided that both of these QA tests are still “active”, *i.e.* , their windows of data validation have not expired, the high range would be considered in-control and able to provide quality-assured data. However if either of the tests has expired, data recorded on the high range would be considered invalid until the expired test was repeated and passed. The MPC would be reported until the expired high-range test is redone or until the data return to the low scale. Thus, the proposed revisions would clarify that when the low range is up-to-date on its QA tests but the high range is not, the QA status of each range is evaluated separately. Summary of Rule Changes No adverse comments were received. These provisions have been finalized, as proposed. 6. Cycle Time Test-Stability Criteria Background The cycle time test described in Section 6.4 of Appendix A is required for the initial certification and recertification of gas monitoring systems, and occasionally as a diagnostic test. The test is designed to determine how long it takes for a monitor to respond to step changes in gas concentration. Two calibration gases (zero- and high-level) are used for the test, which has both an upscale and a downscale component. Section 6.4 has specified criteria for determining when a stable gas concentration reading has been obtained. The reading is considered stable if it changes by less than 2.0 percent of the span value for 2 minutes or less than 6.0 percent from the average concentration over 6 minutes. These criteria are reasonable when the source effluent concentrations are moderate or high. However, when concentrations are very low, the criteria can become overly stringent and difficult to meet. In view of this, the Agency proposed to add alternative stability criteria to Section 6.4 of Appendix A. By the alternative criteria, an SO 2 or NO X reading would be considered stable if it changed by no more than 0.5 ppm for 2 minutes or, for a diluent monitor, if it changed by no more than 0.2% CO 2 or O 2 for 2 minutes. Summary of Rule Changes Substantive changes have been made to the cycle time test procedure, in response to comments received. The sequence of the test has been reversed, *i.e.* , it now begins with a stable reading of stack emissions and ends with a stable reading of calibration gas concentration (see section 2.6 of the Response to Comments document for further discussion). Commenters were generally supportive of the proposed alternative stability criteria, and these have been incorporated into the final rule. One commenter noted the absence of corresponding alternative stability criteria for Hg monitors. To correct this apparent oversight, the final rule includes an alternative specification of 0.5 μg/m 3 for Hg CEMS. The same commenter also expressed concerns about temporal variations in stack gas concentration (particularly for Hg) that can make it difficult to meet the stability criteria, and recommended that the order of the cycle time test be reversed, *i.e.* , begin the test by measuring stack gas emissions and then inject the calibration gas. EPA agrees with this comment and has revised the cycle time test procedure and Figure 6 in Appendix A accordingly. EPA believes this change in the test procedure (which is closer to the way in which the test was originally presented in the January 1993 rule) gives a more accurate indication of the monitor's true response time and will help to prevent “false positive” test failures. EPA has also revised the reporting requirement (in Appendix A § 6.4) for cycle time tests of dual range monitors in light of the transition to the revised XML format. The change requires that cycle time for both ranges of a component be reported separately (consistent with the reporting of other component level tests for CEMS), rather than only reporting the results from the range with the longer cycle time. This change is consistent with the proposed changes that required reporting of certain test at the component level rather than at a system/component level, which overall reduces redundant reporting of test data from shared components. No adverse comments were received on those similar proposed changes. This revision was necessary for consistency with those other proposed changes which EPA is finalizing. 7. System Integrity and Linearity Checks of Hg CEMS Background The required certification tests for a Hg CEMS include a 3-level system integrity check, using a NIST-traceable source of oxidized Hg and a 3-level linearity check, using elemental Hg standards. The performance specification for the system integrity check, which is found in paragraph (3)(iii) of Appendix A, Section 3.2, has been that the system measurement error must not exceed 5.0 percent of the span value at any of the three calibration gas levels. However no explanation of how to calculate the measurement error has been provided. EPA proposed to restructure paragraph

(3)of Section 3.2, to add the necessary mathematical procedure. Believing that the performance specification for the linearity check (which is done with elemental Hg) should be at least as stringent as the performance for the system integrity check (which is done with oxidized Hg), the Agency also proposed to make the linearity and system integrity check specifications for Hg monitors the same, *i.e.* , 5.0 percent of the span value, with an alternative specification to 0.6 μg/m 3 absolute difference between the reference gas value and the monitor response. Summary of Rule Changes In the final rule, the performance specifications for the linearity checks and system integrity checks of Hg monitors have been made the same, but the proposed 5.0 percent of span criterion (with an alternative specification of 0.6 μg/m 3 ) has not been adopted. The commenters did not take issue with the proposal to equalize the performance specifications for the two QA tests, but several commenters objected to the proposed values of the specifications, citing a lack of supporting data to demonstrate that the specifications are achievable. Two commenters favored setting both specifications at the existing values for the linearity check, *i.e.* , 10.0 percent of the reference gas value, with an alternative specification of 1.0 μg/m 3 . In response to these comments, EPA analyzed data from two recent field studies in which elemental and oxidized Hg calibration gases were injected into commercially-available Hg CEMS, at different concentration levels (low, mid, high). Based on the results of the data analysis, the Agency has concluded that equalizing the performance specifications for linearity checks and system integrity checks of Hg monitors at 10.0 percent of the reference gas value, with an alternate specification of 0.8 μg/m 3 absolute difference is appropriate, and the final rule incorporates these specifications. A total of 97 data points from the two field studies were analyzed. Data recorded during known periods of probe malfunction and excessive analyzer drift were excluded from the analysis. Eighteen of the 97 data points analyzed were elemental Hg injections, and the rest were oxidized Hg injections. Each gas injection was evaluated on a pass/fail basis against six candidate sets of performance specifications. These were:

(1)The proposed performance specifications, *i.e.* , 5.0 percent of span, with an alternative specification of 0.6 μg/m 3 ;

(2)the existing linearity specifications, *i.e.* , 10.0 percent of the reference gas value, with alternative specification of 1.0 μ/m 3 ;

(3)the existing system integrity specification, *i.e.* , 5.0 percent of span, with no alternative specification;

(4)5.0 percent of span, with an alternative specification of 0.8 μg/m 3 ;

(5)5.0 percent of span, with an alternative specification of 1.0 μg/m 3 ; and

(6)10.0 percent of the reference gas value, with alternative specification of 0.8 μg/m 3 . For each set of performance specifications, the pass rate of the 97 gas injections was determined. The two highest pass rates (96.9% and 95.9%) were attained with sets

(2)and (5), respectively, which have the widest alternative specification of 1.0 μg/m 3 . Similarly high pass rates (93.8% and 94.8%) were also attained with sets

(4)and (6), both of which have an alternative specification of 0.8 μg/m 3 . The lowest pass rates (85.5% and 75.3%) were attained with sets

(1)and (3), the proposed performance specifications and the existing system integrity check specification. From these results, EPA concludes, on the one hand, that both the proposed performance specifications (set 1) and existing system integrity check specifications (set 3) may be too stringent. On the other hand, very high pass rates were achieved with the four sets having the wider alternate specifications of 1.0 μg/m 3 and 0.8 μg/m 3 , *i.e.* , sets (2), (5), (4), and (6). For these four sets, it seems to make little or no difference whether the main specification is 5.0 percent of span or 10.0 percent of the reference gas value. In view of these considerations, EPA has selected the main specification for the system integrity and linearity checks to be 10.0 percent of the reference gas value, and the alternative specification to be the more stringent value of 0.8 μg/m 3 . These values have been incorporated into paragraph

(3)of Section 3.2 in Appendix A. 8. Correction of Hg Calibration Gas Concentrations for Moisture Background When calibration error tests and linearity checks of SO 2 , NO X , and diluent gas monitors are performed, EPA protocol gases are used. The protocol gases are essentially moisture-free. However, when mercury monitors are calibrated, moisture is sometimes added to the calibration gas. This creates a potential source of error in the calculations. In view of this, EPA proposed to revise the calibration error procedures in section 6.3.1 of Appendix A, to require that when moisture is added to the Hg calibration gas, the moisture content of the gas must be accounted for. The proposed revisions would also require the calibration gas concentration to be converted to a dry basis for purposes of performing the calibration error calculations. The Agency also proposed to add parallel language to Section 6.2 of Appendix A, in a new paragraph “(h)”, to address this issue for the linearity checks and system integrity checks of Hg monitors. Summary of Rule Changes No comments were received on the proposal. Therefore, the provisions have been finalized, but there is one notable change. The proposed rule inappropriately limited the requirement to account for added moisture in the calibration gas to dry-basis Hg CEMS. In the final rule text, this restriction has been removed. This is simply a technical correction of a misstatement in the proposal. 9. Correction of Cross-References Background EPA proposed to correct a number of cross-references in Appendix A, Sections 6.2(g), 6.5.6(b)(3) and 6.5.6.3. Regarding the system integrity checks of Hg monitors, Section 6.2(g) of Appendix A incorrectly only referred to Section 2.6 of Appendix B, which only describes weekly, single-level system integrity checks. The proposed revisions would also refer to Sections 2.1.1 and 2.2.1 of Appendix B, which describe the 3-level system integrity checks. Finally, corrections to sections 6.5.6(b)(3) and 6.5.6.3 of Appendix A were proposed, changing references to Section 3.2 of Performance Specification No. 2

(PS2)to Section 8.1.3, of PS2. Summary of Rule Changes No adverse comments were received. These corrections have been finalized, as proposed. I. Appendix B 1. 3-Load Flow RATA Frequency and RATA Grace Period Background On May 26, 1999, EPA revised Appendix B of Part 75, to reduce the required frequency of 3-load flow RATAs from annually to “at least once every 5 consecutive calendar years”. As written, this rule provision actually allows more than five years (20 calendar quarters) to elapse between 3-load flow RATAs. For instance, if successive 3-load flow RATAs are performed in the 1st quarter of 2002 and in the 4th quarter of 2007, this satisfies the “once every 5 consecutive calendar years” requirement, but there would be 23 calendar quarters between the two tests. In light of this, EPA proposed to revise Section 2.3.1.3(c)(4) of Appendix B, to require 3-load flow RATAs to be done at least once every 20 calendar quarters. This is consistent with both the other 5-year testing requirements in Part 75 (i.e., for Appendix E and LME units) and the maximum allowable interval between successive accuracy tests of Appendix D fuel flowmeters. EPA also proposed to revise the RATA grace period provisions in Section 2.3.3, by removing the method of determining the deadline for the next RATA after a grace period test from paragraph

(c)of Section 2.3.3 and replacing it with a different method described in new paragraph (d). Paragraph

(d)proposed a change to the methodology for determining RATA deadlines, without changing the end result. The intent of paragraph

(c)in Section 2.3.3 had always been for the source to return to its original RATA schedule following a grace period test, in order to prevent the grace period provisions from being abused. However, for infrequently operated units (e.g., many combustion turbines), the grace period sometimes spans across many calendar quarters, which effectively eliminates the possibility of establishing a meaningful relationship between the original RATA due date and the deadline for the next test. In view of these considerations, EPA proposed a simpler methodology for determining RATA deadlines that will work for both base load units and combustion turbines that seldom operate. The deadline for the next RATA following a grace period test would be two QA operating quarters after the quarter of the test, if the RATA results trigger a semiannual test frequency, and three QA operating quarters after the quarter of the test if the RATA qualifies for an annual test frequency. As proposed, there was one exception to these rules. Regardless of the number of QA operating quarters that have elapsed following the grace period test, the maximum allowable interval between a grace period RATA and the next RATA would be eight calendar quarters. This is consistent with Section 2.3.1.1(a) of Appendix B. Finally, EPA proposed to amend paragraph (c ) of Section 2.3.3, to state that when a RATA is performed after the expiration of a grace period, the “clock” is reset, and the deadline for the next RATA is determined in the usual manner, *i.e.* , the next test would be due within two QA operating quarters (for semiannual frequency) or four QA operating quarters (for annual frequency), not to exceed eight calendar quarters. Summary of Rule Changes Commenters were supportive of the proposed amendments to the RATA grace period provisions, and no comments were received on the proposal to determine 3-load flow RATA deadlines on a calendar quarter basis. Therefore, these provisions have been finalized, as proposed. 2. RATA Requirement for Shared Components Background EPA proposed to amend paragraph

(g)in section 2.3.2 of Appendix B, to specify the consequences of a failed RATA, in the case where a particular NO X pollutant concentration monitor is a component of both a NO X concentration monitoring system and a NO X -diluent monitoring system. In such cases, the Agency proposed that if the NO X concentration system RATA is failed, both the NO X concentration monitoring system and the associated NO X -diluent monitoring system would be considered out-of-control, and successful RATAs of both monitoring systems would be required to get them back in-control. Summary of Rule Changes No adverse comments were received. This amendment has been finalized, as proposed. 3. AETB Requirements Background EPA proposed to amend Appendix B by adding a new Section, 1.1.4, to require that an Air Emissions Testing Body

(AETB)that performs emission testing or RATAs for on-going quality-assurance under Part 75 must conform to ASTM D7036-04. Summary of Rule Changes No adverse comments were received. This provision has been finalized, as proposed. 4. Calibration Error Tests and Linearity Checks-Dual Range Applications Background EPA proposed to revise Sections 2.1.1, 2.1.1.2, 2.1.5.1 and 2.2.3(e) of Appendix B, to clarify the data validation requirements for daily calibration error tests and linearity checks of gas monitors when two span values and two measurement ranges are required for a particular parameter ( *e.g.* , SO 2 or NO X ). The proposed revisions to Section 2.1.1 of Appendix B would require that “sufficient” calibration error tests be performed on the low and high monitor ranges to validate the data recorded on each range, in accordance with Section 2.1.5 of Appendix B. EPA also proposed to add a new paragraph, (3), to Section 2.1.5.1 of Appendix B, to clarify how the QA status of the low and high ranges is determined when:

(a)a calibration error test on one of the ranges is failed; or

(b)the most recent calibration error test of one of the ranges has expired. Under proposed paragraph (3), when separate analyzers are used for the two ranges, a failed or expired calibration error test on one of the ranges would not affect the QA status of the other range. For a dual-range analyzer ( *i.e.* , a single analyzer with two scales), a failed calibration error test on either range would result in an out-of-control period, and data from the monitor would remain invalid until corrective actions are taken, followed by successful “hands-off” calibrations of both ranges. However, if the most recent calibration error test on one range of a dual-range analyzer was successful, but its data validation window expires, this would have no effect on the QA status of the other range. Further, the Agency proposed to amend Section 2.2.3(e) of Appendix B to make it clear that “hands-off” linearity checks of both ranges of a dual-range analyzer are required whenever a linearity check on either range fails or is aborted (unless, of course, a particular range is exempted from linearity checks under Section 6.2 of Appendix A). Summary of Rule Changes These provisions have been finalized, as proposed. Two commenters did not understand why failure of a calibration error test or a linearity check on one scale of a dual-range analyzer should invalidate data on both ranges, and asked for EPA to more fully explain the technical basis for this requirement. The requirement to perform calibration error tests or linearity checks on both scales of a dual-range analyzer to resolve an out-of-control period does not reflect a change in Agency policy. Rather, EPA's proposal intended to clarify the existing requirement that each range of a dual-range monitor must be known to be in-control in order to validate data from the monitor. The final rule allows data to be considered valid from a particular measurement range that has passed a calibration error check when the calibration error test for the other measurement range has expired. In such instances, since there is no indication that the monitor is not functioning properly, but there is evidence that the measurement range being used is properly calibrated, EPA is allowing that range to be considered quality assured. However, whenever a monitor fails any required daily, quarterly, semi-annual or annual quality assurance test, regardless of range, EPA maintains that data from that monitor must be considered invalid until the required quality assurance tests are passed. A failed test on either range of a dual range monitor indicates a problem with the monitor's ability to accurately measure emissions. While it is possible that in some instances, the problem causing the failure of a test on one range does not affect the accuracy of the monitor's measurements on the other range, it is far from certain. Therefore, the Agency's firm position is that whenever a calibration error test or linearity check is failed on either measurement scale of a dual-range analyzer, it is necessary to calibrate both ranges following corrective actions (which usually involve adjustments to the monitor), to verify that the monitor is back in-control and is able to generate quality-assured data on both ranges. 5. Off-Line Calibration Error Tests Background Section 2.1.1.2 of Appendix B allows the owner or operator to make limited use of off-line calibration error tests to validate data if an off-line calibration demonstration test is performed and passed. If the off-line calibration error demonstration is successful, then off-line calibrations may be used to validate up to 26 unit operating hours of data before an on-line calibration error test is required. The off-line calibration provisions in Appendix B have not been well-understood by many affected sources. Through the years, EPA has received numerous requests for a more detailed explanation and/or examples of how to apply these rule provisions. In view of this, the Agency proposed to revise Sections 2.1.1.2 and 2.1.5.1 of Appendix B to clarify the data validation rules for off-line calibration error tests. EPA proposed to revise paragraph

(2)in Section 2.1.1.2 to state that sources may make limited use of off-line calibrations if the off-line calibration demonstration has been performed and passed. The proposed changes to paragraph

(2)of Section 2.1.5.1 would explain what “limited use” of off-line calibrations means. Off-line calibrations could be used to validate up to 26 consecutive unit operating hours of data before an on-line test is required. Each individual off-line calibration would be valid only for 26 clock hours, and if the sequence of consecutive operating hours validated by off-line calibrations is broken before reaching the 26th consecutive unit operating hour, data from the monitor would become invalid until an on-line calibration is performed and passed. Summary of Rule Changes Numerous commenters objected to the proposed revisions to Section 2.1.5.1 of Appendix B. The commenters found the proposed rule language to be confusing rather than clarifying, and several of them asserted that EPA appeared to be placing new restrictions on the use of off-line calibration error tests. After careful consideration of these comments, EPA agrees that the proposed rule language, particularly the term “sequence of consecutive unit operating hours” can be misinterpreted. However, the Agency's intent was (and is) simply to clarify the existing procedures for using off-line calibrations to validate CEMS data. That is, a source desiring to use the off-line calibration provisions in paragraph

(2)of Appendix B, section 2.1.5.1 must first pass the off-line calibration demonstration described in section 2.1.1.2. After successfully completing this demonstration, off-line calibrations may be used on a limited basis for data validation. In particular, off-line calibrations may be used to validate data for up to 26 consecutive unit operating hours following a passed on-line calibration error test. The term “consecutive unit operating hours” does not mean consecutive clock hours. For example, two consecutive unit operating hours could be separated by several hours, days, weeks, etc., due to a unit outage. Each off-line calibration error test has the same prospective, 26 clock hour window of data validation as an on-line calibration error test. Therefore, for a source that has passed the off-line calibration demonstration, EPA considers the data for a particular operating hour to be valid if there is:

(1)A passed on-line calibration within the 26 *unit operating* hours preceding that operating hour; and

(2)a passed off-line calibration within the 26 *clock* hours immediately preceding that operating hour. The Agency has revised the proposed rule language to clarify these requirements. For each hour of unit operation, these criteria will be used to evaluate each monitoring system's control status with respect to daily calibrations. 6. Weekly System Integrity Check—Data Validation Background For a Hg CEMS that is equipped with a converter and that uses elemental Hg for daily calibrations, Section 2.6 of Part 75, Appendix B requires a weekly system integrity check, using a NIST-traceable source of oxidized Hg. This “weekly” test is required once every 168 unit operating hours. However, due to an apparent oversight, Section 2.6 did not explain the consequences of either failing the test or failing to perform the test on schedule. In view of this, EPA proposed to add the following data validation rules for the weekly system integrity check to Section 2.6 of Appendix B:

(a)If the test fails, it would trigger an out-of-control period until a subsequent system integrity check is passed; and

(b)if the test is not performed within 168 unit operating hours of the previous successful system integrity check, data from the CEMS would become invalid, starting with the 169th unit operating hour and continuing until a system integrity check is passed. The Agency also proposed to correct a typographical error in Section 2.6 of Appendix B. The performance specification for the weekly system integrity check was incorrectly referenced as Section 3.2 (c)(3) of Appendix A. The correct citation is Appendix A, Section 3.2, paragraph (3)(iii). Summary of Rule Changes The revision has been finalized as proposed. Several commenters objected to the proposed data validation rules for weekly system integrity checks of Hg CEMS. Commenters expressed concern that the specified test frequency, i.e., once every 168 unit operating hours, will cause scheduling difficulties, due to the limited availability of qualified technicians and other factors. The commenters requested that EPA provide a grace period of 72 to 96 hours for this QA test, to minimize the possibility of data loss. EPA does not agree with the commenters' assertions that the 168 operating hour requirement will be difficult to implement and that a grace period should be added. The number of operating hours since the last weekly system integrity check can (and should) be tracked by the data acquisition and handling system (DAHS). An alarm or prompt could be activated when the deadline for the next test is near (e.g., when 120 or 144 operating hours have elapsed since the last test). EPA favors basing the interval between successive tests on operating hours rather than clock hours in a week, primarily for reasons of simplicity. The Agency acknowledges that this is distinctly different from the way in which the deadlines for RATAs and linearity checks are determined. For a RATA or linearity check, the deadline is always at the end of a calendar quarter. Grace periods are provided for these tests because the deadlines can pass while the unit is either off-line or experiencing operational abnormalities that prevent the monitors from being tested on time. Also, a limited number of RATA deadline extensions and linearity check exemptions are provided for “non-QA operating quarters”, i.e., calendar quarters in which the unit operates for < 168 hours. However, the required frequency for the system integrity checks of a Hg CEMS is weekly, not quarterly. This is the only weekly QA test required by Part 75. Therefore, the existing “QA operating quarter” model and grace period scheme cannot be directly applied to the system integrity check. A new concept, perhaps a “QA operating week” would have to be introduced and an appropriate grace period determined. EPA considered this approach and decided against it, believing that it would unnecessarily complicate the process of QA status tracking for Hg CEMS. The Agency believes that if the DAHS is programmed to track the number of unit operating hours since the last system integrity check and if an alert is provided to let plant personnel know when the test deadline is approaching, there will seldom, if ever be a missed test. Furthermore, the Agency believes that as experience is gained with Hg monitors, it may be possible to automate the weekly system integrity check so that during the 168th hour of operation since the last system integrity check, the check is automatically initiated by the DAHS computer system or other appropriate programmable logic controller

(PLC)systems. Such automation would further reduce the probability of a missed test. 7. Correction of Hg Units of Measure—Figure 2 Background EPA proposed to correct a minor error in the units of measure for Hg concentration in Figure 2 of Appendix B, changing the units of micrograms per dry standard cubic meter (μg/dscm) to micrograms per standard cubic meter (μg/scm). This change was proposed because not all Hg monitoring systems measure Hg concentration on a dry basis. Summary of Rule Changes No adverse comments were received. The proposed correction to Figure 2 has been made. J. Appendix D 1. Update of Incorporation by Reference Background As previously noted, EPA proposed to update the list of test methods, sampling and analysis procedures, and other items that are incorporated by reference in § 75.6. As such, the proposed rule included corresponding updates to the references in Appendix D. EPA also proposed to add to Section 2.1.5.1 of Appendix D, the American Petroleum Institute's

(API)Manual of Petroleum Measurement Standards Chapter 22—Testing Protocol: Section 2—Differential Pressure Flow Measurement Devices (First Edition, August 2005) as a new standard procedure for verifying flowmeter accuracy. Summary of Rule Changes These provisions have been finalized, as proposed. Note that in response to a comment, EPA has also incorporated by reference ASTM D5453-06, “Standard Test Method for Determination of Total Sulfur in Light Hydrocarbons, Spark Ignition Engine Fuel, Diesel Engine Fuel, and Engine Oil by Ultraviolet Fluorescence” 1 , and has added ASTM D5453-06 to the list of acceptable oil sampling methods in Section 2.2.5 of Appendix D (see section 2.7 of the Response to Comments document for further discussion). In addition, the equation for Hourly SO 2 Mass Emissions from the Combustion of all Fuels in Appendix D, section 3.5.1 has been revised to be consistent with the new XLM format. This change is considered to be insignificant and was made to be consistent with the proposed changes to harmonize the units of measure for reporting hourly mass emissions. 1 ASTM D5453-05 is no longer available. EPA is thus adding ASTM D5453-06, the version currently available. EPA considers this a minor ministerial correction. 2. Pipeline Natural Gas—Method of Qualification and Monthly GCV Values Background For a unit which combusts a fuel that meets the definition of “pipeline natural gas”

(PNG)in § 72.2, Section 2.3.1.1 of Appendix D allows the owner or operator to estimate the unit's SO 2 mass emissions using a default SO 2 emission rate of 0.0006 lb/mmBtu. To qualify to use this SO 2 emission rate, the owner or operator must document that the natural gas has a total sulfur content of 0.5 grains per 100 standard cubic foot or less. Section 2.3.1.4 describes three ways to initially demonstrate that the gas meets this total sulfur requirement:

(1)Based on the gas quality characteristics specified in a purchase contract, tariff sheet, or pipeline transportation contract; or

(2)based on historical fuel sampling data from the previous 12 months; or

(3)based on at least one representative sample of the gas, if the requirements of

(1)or

(2)cannot be met. When fuel sampling data are used to qualify, the rule has required that each individual sample result must meet the total sulfur limit. Once a fuel has qualified as pipeline natural gas, Section 2.3.1.4(e) of Appendix D requires annual sampling of the total sulfur content to demonstrate that the fuel still meets the definition of PNG. At least one sample per year must be taken and if multiple samples are taken, the rule has required each one to meet the 0.5 gr/100 scf total sulfur limit. Many suppliers of natural gas regularly sample the total sulfur content of the gas (in many cases, daily) and provide that data to their customers upon request. Sources desiring to use this data to meet the initial or ongoing total sulfur sampling requirements of Appendix D have asked whether the gas would be disqualified from using the 0.0006 lb/mmBtu SO 2 emission rate if the total sulfur content of one of these daily samples exceeded 0.5 gr/100 scf. EPA has been handling these requests individually, on a case-by-case basis. However, the Agency believes it will be more efficient to address the issue through rulemaking. In view of this, amendments to Sections 2.3.1.4(a)(2) and

(e)of Appendix D were proposed. For the initial documentation that the gas meets the 0.5 gr/100 scf total sulfur limit, the proposed revisions to Section 2.3.1.4(a)(2) would allow sources with at least 100 total sulfur samples from the previous 12 months to reduce the data to monthly averages. Then, if all monthly averages meet the 0.5 gr/100 scf limit, the fuel would qualify as pipeline natural gas, and the source could use the 0.0006 lb/mmBtu default SO 2 emission rate. Alternatively, if at least 98 percent of the 100 (or more) samples from the previous 12 months have a total sulfur content of 0.5 gr/100 scf or less, the fuel would qualify as pipeline natural gas. The proposed revisions to Section 2.3.1.4(e) would allow this same calculation methodology to be used for the annual total sulfur sampling requirement. That is, each year, if the results of at least 100 total sulfur samples from the past 12 months are obtained, the data could either be reduced to monthly averages, or the percentage of the samples that meet the 0.5 gr/100 scf limit could be determined. EPA also proposed to clarify the gross calorific value

(GCV)sampling requirements for pipeline natural gas in Section 2.3.4.1 of Appendix D. The current rule requires monthly GCV sampling for PNG. However, Section 2.3.4.1 refers only to the “monthly sample” (singular), whereas affected sources may collect and analyze multiple GCV samples each month, or may receive the results of multiple GCV samples from the fuel supplier each month. In view of this, the Agency proposed to revise Section 2.3.4.1 to require that the monthly average GCV value be used for Part 75 reporting, for any month in which multiple samples are taken and analyzed. To implement this provision in the case where the owner or operator has elected to use the actual monthly GCV value in the emission calculations, revisions to Section 2.3.7(c) of Appendix D were proposed, requiring the monthly average GCV value to be applied starting from the latest date of any of the individual GCV samples used to calculate the monthly average. In the case where an assumed GCV value is used in the calculations (i.e., either a contract value or the highest monthly average from the previous year), the assumed value would continue to be used unless superseded by a higher monthly average GCV value. Summary of Rule Changes The provisions pertaining to documentation that a particular gaseous fuel qualifies as pipeline natural gas have been finalized, with only minor editorial changes. Regarding the proposed requirement to average the results of all GCV samples of natural gas taken in each calendar month, one commenter asked whether the monthly average would be used to back-calculate the heat input values for each day in that month. The proposed revisions to Section 2.3.7(c) of Appendix D specified that when the option to use the actual monthly GCV in the calculations is selected and multiple samples are taken, each monthly average GCV would be applied prospectively, starting on the date of the last sample taken during the month. However, in light of the commenter's question, EPA has reconsidered this approach. The final rule requires instead that each monthly GCV value be applied to every day in that month. The Agency believes that this approach provides a more representative estimate of the unit's true monthly heat input. Note that the text of paragraph (b)(2) in section 2.3.7 has also been modified to address the new alternative methodology for making annual assessments of the sulfur content of natural gas. 3. Requirement to Split Oil Samples Background For affected units that combust fuel oil and use the Appendix D methodology to quantify SO 2 mass emissions and/or unit heat input, Section 2.2 of Appendix D requires the owner or operator to perform periodic sampling of the sulfur content, gross calorific value and density of the oil (as applicable). Section 2.2.5 of Appendix D requires each oil sample to be split and a portion (at least 200 cc) of it to be maintained for at least 90 days after the end of the allowance accounting period. The requirement to split and maintain a portion of each oil sample has been in Appendix D since it was first promulgated on January 11, 1993. At that time, on-site fuel oil sampling was required on every day that the unit combusted oil. Later, on May 17, 1995, an option to sample each shipment upon delivery was added for diesel fuel. Then, on May 26, 1999, the four basic oil sampling options in the current rule were put in place. However, the requirement to split and maintain a portion of each sample has remained unchanged through all of these rulemakings. Believing that the requirement to split and maintain oil samples should only apply to samples that are taken at the affected facility, EPA proposed to revise Section 2.2.5 of Appendix D to limit this requirement to samples that are taken on-site. If this proposed amendment were finalized, sources electing to sample each fuel lot would no longer be required to split and maintain oil samples in cases where the samples are taken off-site, from the fuel supplier's storage container. Summary of Rule Changes No adverse comments were received. This provision has been finalized, as proposed. K. Appendix E 1. AETB Requirements Background EPA proposed to revise Section 2.1 of Appendix E to require that any Air Emissions Testing Body

(AETB)performing emission measurements to develop an Appendix E correlation curve or to derive a default emission rate for a LME unit, would have to conform to ASTM D7036-04. Summary of Rule Changes No adverse comments were received. This provision has been finalized, as proposed. 2. Reporting Data When the Correlation Curve Expires Background For oil and gas-fired peaking units using the Appendix E methodology to estimate NO X emissions, the owner or operator is required, for each fuel type, to perform four-load emission testing for initial certification in order to develop a correlation curve of NO X emission rate versus heat input rate. Each correlation curve is programmed into the data acquisition and handling system (DAHS), and retesting is required every five years (20 calendar quarters) to develop a new curve. If the 20 calendar quarter test deadline passes without a retest having been performed, the previous correlation curve expires and is no longer valid. However, the appropriate missing data procedure to follow when a correlation curve expires has been conspicuously absent from Section 2.5 of Appendix E. To address this deficiency, EPA proposed to add a new Section, 2.5.2.4, to Appendix E, requiring the fuel-specific maximum potential NO X emission rate

(MER)to be reported, from the date and hour in which a baseline correlation curve expires until a new correlation curve is generated. Summary of Rule Changes No adverse comments were received. This provision has been finalized, as proposed. L. Appendix F 1. NO X Mass Calculations Background EPA proposed to revise the manner in which NO X mass data are collected under the XML format that will be required in 2009 as part of EPA's effort to re-engineer the Agency's data collection systems. To achieve this, the hourly NO X mass emission rate (lb/hr) would be reported instead of hourly NO X mass emission (lb), when the source transitions from EDR reporting format to the XML format. To effect this, Equations F-24, and F-27 in Appendix F of Part 75 would have to be modified and Equation F-26 removed. However, since the current EDR reporting format will continue to be supported through 2008, these equations must remain in the rule until the transition to XML is complete. Therefore, EPA proposed to revise Section 8 of Appendix F by adding Equations F-24a for the reporting of hourly NO X mass emission rate (lb/hr) and Equation F-27a , for the calculation of cumulative NO X mass emissions. In 2009, the use of Equations F-24a and F-27a would become mandatory for all sources and Equations F-24 and F-27 would no longer be applicable. EPA also proposed to revise Section 8.2 of Appendix F, by splitting it into two subsections, 8.2.1 and 8.2.2. Section 8.2 had described a procedure for calculating the NO X mass emission rate in lb/hr, when NO X mass emissions are determined using a NO X concentration monitoring system and a flow monitor. However, Section 8.2 simply cross-referenced other parts of the rule, rather than showing the actual equations used. To correct this, the Agency proposed to add Equation F-26a to subsection 8.2.1 and Equation F-26b to subsection 8.2.2, clearly showing how the NO X mass emission rate is calculated on a wet and dry basis, and to renumber Equation F-26 in Section 8.3 as Equation F-26c. Proposed Equations F-26a and F-26b have been used since 2002 by sources in the NO X Budget Program, and the equations have been represented in the EDR reporting instructions as Equations N-1 and N-2, respectively. Summary of Rule Changes No adverse comments were received. These provisions have been finalized, as proposed. 2. Use of the Diluent Cap Background EPA proposed to restrict the use of the diluent cap to NO X emission rate determinations. The original purpose for allowing the diluent cap to be used was to keep calculated NO X emission rates from approaching infinity during periods of unit startup and shutdown, when the diluent gas (CO 2 or O 2 ) concentration is close to the level in the ambient air. However, since 1999, Part 75 has allowed the diluent cap to be used for heat input rate calculations, CO 2 mass emission calculations, and calculation of hourly CO 2 concentration from measured O 2 concentrations, in addition to being used for NO X emission rate. Sources have been allowed to use the cap value for some of these calculations and not others, which greatly complicates the data collection process. EPA has also found that using the diluent cap for other parameters besides NO X emission rate always leads to over-reporting of these parameters, which is clearly contrary to the intended purpose of the diluent cap. Therefore, the Agency proposed to remove all of the references in Sections 4 and 5 of Appendix F that allow the diluent cap to be used for other parameters besides NO X emission rate. Summary of Rule Changes No adverse comments were received. These provisions have been finalized, as proposed. 3. Negative Emission Values Background EPA proposed to provide special reporting instructions to account for situations where the equations prescribed by the rule yield negative values. First, when Equation 19-3 or 19-5 (from EPA Method 19 in 40 CFR Part 60, Appendix A) is used to calculate NO X emission rate, modified forms of these equations, designated as Equations 19-3D and 19-5D, would be used whenever the diluent cap is applied. Second, for any hour where Equation F-14b results in a negative hourly average CO 2 value, EPA proposed to require 0.0% CO 2 to be reported as the average CO 2 value for that hour. Third, the Agency proposed to require a default heat input rate value of 1 mmBtu/hr to be reported for any hour in which Equation F-17 results in a negative hourly heat input rate. These changes would be accomplished by modifying Sections, 3.3.4, 4.4.1, and 5.2.3 of Appendix F. Summary of Rule Changes These provisions have been finalized, with one notable change. The final rule will require a default heat input rate value of 1 mmBtu/hr to be reported for any hour in which Equation F-17 results in a hourly heat input rate that is less than or equal to zero. 4. Calculation of Stack Gas Moisture Content Background EPA proposed to add Equation F-31 to a new Section 10 in Appendix F, to be used to calculate stack gas moisture values from wet and dry oxygen measurements, as described in Appendix A, Section 6.5.7(a). Sources have been using this equation for many years and it has been represented in the EDR reporting instructions as Equation M-1. Summary of Rule Changes No adverse comments were received. This provision has been finalized, as proposed. 5. Site-Specific F-Factors (Single Fuel) Background For units that use CEMS to measure the NO X emission rate in lb/mmBtu and/or the unit heat input rate in mmBtu/hr, an equation from Appendix F of Part 75 or from Method 19 of 40 CFR Part 60 is required to convert the raw CEMS data into the proper units of measure. Each of these equations contains an F-factor, which represents either the total volume of flue gas or the volume of CO 2 generated per million Btu of heat input. The F-factor is fuel-specific. Sections 3.3.5 and 3.3.6 of Appendix F allow the owner or operator to use either a default F-factor from Table 1 in Appendix F, or use Equation F-7a or F-7b in Appendix F to calculate a site-specific F-factor, based on the composition of the fuel. However, Appendix F has never specified how much fuel sampling data is required to develop a site-specific F-factor or how often the F-factor must be updated. To address this issue, EPA proposed to revise the introductory text of Appendix F, Section 3.3.6 to require each site-specific F-factor to be based on a minimum of 9 samples of the fuel. Fuel samples taken during the 9 runs of an annual RATA would be acceptable for this purpose. Further, re-determination of the F-factor would be required at least annually, and the value from the most recent determination would be used in the emission calculations. Summary of Rule Changes No adverse comments were received. These provisions have been finalized, as proposed. 6. Prorated F-Factors Background For affected units that co-fire combinations of fossil fuels or fossil fuels and wood residue and that use CEMS to monitor the NO X emission rate or unit heat input rate, Section 3.3.6.4 of Appendix F has required a prorated F-factor to be used in the emission calculations. The prorated F-factor is calculated using Equation F-8 in Appendix F. In applying Equation F-8, the F-factor for each type of fuel is weighted according to the fraction of the total heat input contributed by the fuel. However, Equation F-8 has never specified how the total unit heat input and the fraction of the heat input contributed by each fuel are determined. Data from the CEMS cannot be used for this purpose because the prorated F-factor must be known before the unit heat input rate can be calculated. To correct this situation, EPA proposed to revise the definition of “X i ” (the fraction of the total heat input derived from each fuel) in the Equation F-8 nomenclature. The proposed revision would require sources to determine X i from the best available information on the quantity of each fuel combusted and its GCV value over a specified time period. The value of X i would be updated periodically, either hourly, daily, weekly, or monthly, and the prorated F-factor used in the emission calculations would be derived from the X i values from the most recent update. The owner or operator would be required to document in the hard copy portion of the monitoring plan the method used to determine the X i values. Summary of Rule Changes The revisions to Section 3.3.6.4 of Appendix F regarding the prorating of F-factors have been finalized, with only minor changes. However, several commenters requested that EPA consider allowing the use of the “worst-case” (i.e., highest) F-factor as an alternative to prorating, when combinations of fuels are co-fired. After careful consideration of these comments, EPA is persuaded by the commenters' arguments in favor of this option and has decided to incorporate this suggestion into the final rule (see section 2.4 of the Response to Comments document). New Section 3.3.6.5 of Appendix F allows sources that burn combinations of fuels listed in Table 1 of Appendix F to use the highest (“worst-case”) F-factor for any unit operating hour, in lieu of prorating the F-factor. Note that in view of the revisions to Section 3.3.6.4, Agency has deemed it necessary to modify the language in Section 3.3.6.3 of Appendix F. Administrative approval of the F-factor is no longer required when combinations of fossil fuels with wood or bark are combusted, since F-factors for these fuels are listed in Table 1. Rather, revised Section 3.3.6.3 requires Administrative approval of the F-factor only when a fuel not listed in Table 1 is co-fired with a fuel (or fuels) listed in the Table. 7. Default F-Factors Background In recent years, petroleum coke and tires have begun to be used as primary or secondary fuels by a number of affected sources. In view of this, EPA proposed to add default F-factors for petroleum coke and tire-derived fuels to Table 1 in Section 3.3.5 of Appendix F. The proposed values were 9,832 dscf/mmBtu for F d and 1,853 scf CO 2 /mmBtu for F c for petroleum coke and 10,261 dscf/mmBtu for F d and 1,803 scf CO 2 /mmBtu for F c for tire-derived fuels. The Agency also proposed F-factors of 9,819 dscf/mmBtu (for F d ) and 1,840 scf CO 2 /mmBtu (for F c ) for sub-bituminous coal. All of the proposed F-factors were calculated using Equations F-7a and F-7b and representative composition and gross calorific value

(GCV)data for each fuel. Summary of Rule Changes These provisions have been finalized, with minor editorial changes. One commenter recommended that the proposed F-factor values be rounded off to the nearest multiple of 10, to be consistent with the other values in Table 1. EPA agrees with this comment and has rounded off the F-factors accordingly. 8. Revisions to Equation F-23 Background Consistent with the proposed changes to § 75.11(e), expanding the applicability of Equation F-23, EPA proposed to amend Section 7 of Appendix F (introductory text), and the Equation F-23 nomenclature. Summary of Rule Changes No adverse comments were received. These provisions have been finalized, as proposed. M. Appendix G *Background* Consistent with the changes to other parts of the rule, EPA proposed to update the current ASTM standards listed in Sections 2.1.2, 2.2.1, and 2.2.2, of Appendix G, citing the newer versions. Summary of Rule Changes No adverse comments were received. These provisions have been finalized, as proposed. N. Appendix K Background EPA proposed to addresses several issues regarding the use of sorbent trap monitoring systems for the measurement and reporting of Hg mass emissions. When this monitoring option is selected, paired sorbent traps are required to measure the effluent Hg concentration. If the two Hg concentrations measured by the paired traps meet the required relative deviation

(RD)specification in Appendix K of Part 75, and if each trap individually meets certain other QA requirements of Appendix K, then the two Hg concentrations are averaged arithmetically and the average value is used to determine the Hg mass emissions in each hour of the data collection period. However, in cases where either or both of the traps fails to meet the acceptance criteria, § 75.15(h) and Table K-1 in Appendix K specify consequences of varying severity. In the months following promulgation of these rule provisions, EPA revisited them and concluded that some of the consequences were too lenient and others unnecessarily severe. The Agency therefore proposed to revise them to make them more consistent and equitable. Whenever one of the paired traps is accidentally lost, damaged, or broken and cannot be analyzed, § 75.15(h) has allowed the owner or operator to use the remaining trap to determine the Hg concentration for the data collection period, provided that the remaining trap meets all of the QA requirements of Appendix K. But no adjustment of the data has been required to compensate for the loss of one of the samples. In view of this, EPA proposed to revise § 75.15(h) to require that the Hg concentration measured by the remaining valid trap be multiplied by a “single trap adjustment factor”

(STAF)of 1.222. The STAF represents the maximum amount by which the Hg concentration from the lost, damaged or broken trap could have exceeded the concentration measured by the valid trap and still met the 10% RD specification. The Agency also proposed to revise Table K-1 in Appendix K, to extend the use of the STAF to cases where one of the paired sorbent traps either:

(a)fails a post-test leak check;

(b)has excessive breakthrough in the second section; or

(c)is unable to meet the required percent recovery of the third section elemental Hg spike. In all three of these cases, provided that the other trap meets all Appendix K requirements, rather than invalidating the sorbent trap system data for the entire collection period, the Hg concentration measured by the valid trap, multiplied by the STAF, could be used for Part 75 reporting. Section 7.2.3 of Appendix K requires that for each hour of the data collection period, the ratio of the stack gas flow rate to the sample flow rate through each sorbent trap must be maintained within ±25 percent of the initial ratio established in the first hour of the data collection period. However, the rule has stated that when this criterion is not met, the appropriate consequences are to be determined on a “case-by-case” basis. EPA has reconsidered this approach and now believes that it allows for inconsistent application of the sorbent trap monitoring methodology. Therefore, the Agency proposed to revise Table K-1 to specify that a sample is invalidated if either:

(a)More than 5 percent of the hourly ratios; or

(b)more than 5 hourly ratios in the data collection period (whichever is less restrictive) fail to meet the ±25 percent acceptance criterion. Further, if only one of the paired traps is able to meet the specification, provided that it also meets the rest of the Appendix K QA criteria, the valid trap could be used for Part 75 reporting, if the STAF value of 1.222 is applied to the measured Hg concentration. Appendix K has required data from a sorbent trap monitoring system to be invalidated whenever the relative deviation between the Hg concentrations measured by the paired traps is greater than 10 percent. EPA proposed to revise this requirement, to allow sources to report the higher of the two Hg concentrations measured by a pair of sorbent traps whenever the RD specification is not met, rather than invalidating the sorbent trap system data for the entire collection period. The Agency also proposed, for consistency with the proposed changes § 75.22(a), to revise Table K-1 to include an alternative relative deviation specification of 20 percent for paired sorbent traps, when low effluent concentrations of Hg (≤ 1 μg/m 3 ) are encountered. EPA further proposed to add two new paragraphs,

(k)and (l), to § 75.15. Proposed § 75.15(k) would have required that whenever the RATA of a sorbent trap system is performed, the sorbent traps used to collect the RATA run data must be the same size as the traps used for daily operation of the monitoring system. Likewise, the sorbent material must be the same type that is used for daily operation. Proposed § 75.15(l) would have required a diagnostic RATA of the sorbent trap system whenever either the size of the sorbent traps or the type of sorbent material was changed. Data from the modified sorbent trap system would not have been acceptable for Part 75 reporting until the RATA is passed, with one exception, i.e., data collected during a successful diagnostic RATA test period could be reported as quality-assured. Finally, revisions to section 7.2.3 of Appendix K were proposed, requiring that the sample flow rate through a sorbent trap monitoring system must be zero when the unit is not operating. EPA believes this clarification is needed to prevent the system from sampling ambient air during periods when the combustion unit is off-line, which would artificially lower the Hg concentrations measured by the sorbent traps, resulting in under-reporting of Hg mass emissions. Summary of Rule Changes The commenters generally favored the proposal to add a 20 percent alternative relative deviation

(RD)specification for sources with low Hg emissions (≤ 1.0 μg/m 3 ). However, concerns were expressed that even a 20 percent RD specification might be difficult to meet when emissions are exceptionally low. For instance, following a flue gas desulfurization system, the Hg emission levels can be as low as 0.1 to 0.2 μg/m 3 . One commenter suggested that the allowable RD for low emitters should be either 20 percent or 0.03 μg/m 3 absolute difference, whichever is less restrictive (see section 2.9.2 of the Response to Comments document). EPA agrees with this comment and has incorporated the 0.03 μg/m 3 alternative RD specification into both Appendix K (for sorbent trap monitoring systems), and § 75.22 (for the Ontario Hydro Method and EPA Method 29). The commenters were divided on the proposed single trap adjustment factor

(STAF)provisions. Two commenters supported the proposed amendments and four others objected to them. Those objecting expressed concern that applying the proposed STAF value of 1.222 in cases where one trap meets all of the QA requirements is unnecessarily punitive. Several of the commenters recommended that the STAF value should be 1.111, which would be consistent with the averaging that is performed when the results of both traps are available and would appropriately weight the results of the valid trap (see section 4.3 of the Response to Comments document for further discussion). After careful consideration of the comments, EPA has decided to incorporate the commenters' suggestion regarding the value of the STAF. Therefore, the single-trap adjustment factor provisions have been finalized as proposed, except that the value of the STAF is 1.111. Regarding proposed paragraphs

(k)and

(l)in § 75.15, EPA has reconsidered its position and has withdrawn the requirement for the sorbent traps used for RATA testing to be the same size as the traps used for daily operation of the monitoring system. Accordingly, the proposed requirement to perform a diagnostic RATA when the trap size is changed has also been withdrawn. The Agency is finalized paragraph

(k)as part of a direct-final rulemaking on September 7, 2007 (72 FR 51494-51531). Paragraph

(k)requires only that the type of sorbent material used for the RATAs be the same as the sorbent material used for daily operation. Today's rule finalizes paragraph

(l)of § 75.15, to require a diagnostic RATA within 720 operating hours whenever a new type of sorbent material begins to be used in the traps (e.g., using brominated carbon instead of iodated carbon). Commenters on proposed paragraph

(l)questioned why data collected by the modified sorbent trap system are considered invalid prior to the diagnostic RATA. The commenters requested that EPA revise paragraph

(l)to allow data collected prior to the diagnostic RATA to be reported as valid if the RATA is passed. The commenters' suggestion is reasonable and has been incorporated into the final rule. A passed diagnostic RATA demonstrates that the change in sorbent material has not significantly affected the monitoring system's ability to accurately measure Hg emissions. Therefore, § 75.15(l) allows the data from the modified sorbent trap system to be considered conditionally valid according to § 75.20(b)(3), for up to 720 unit or stack operating hours after switching to a new type of sorbent material. If the diagnostic RATA is passed within the 720 operating hour window, the data recorded by the modified system prior to the RATA may be reported as quality-assured. If the RATA is failed, no data from the modified system may be reported as quality-assured until a subsequent RATA is passed. If the diagnostic RATA is not completed within the allotted 720 operating hour window but is passed on the first attempt, data from the modified system are considered to be invalid from the first hour after the expiration of the 720 operating hour window until the completion of the RATA. No comments were received on the following proposed amendments:

(1)The proposal to allow the higher Hg concentration to be reported when the RD criterion for the paired sorbent traps is not met;

(2)the proposed acceptance criteria for the hourly ratios of stack gas flow rate to sample flow rate; and

(3)the proposal to require the sample flow rate through a sorbent trap monitoring system to be zero when the affected unit is off-line. Therefore, these provisions have been finalized, as proposed. O. Other Rule revisions 1. Particulate Matter Monitoring Systems Background EPA received a comment that was outside the scope of the proposed rule, requesting that units with installed particulate matter

(PM)monitoring systems be exempted from the opacity monitoring requirements of § 75.14. Summary of Rule Changes Although the comment was outside the scope of this rulemaking and no response is required, EPA believes that it has merit in light of June 13, 2007 amendments to Subparts Da and Db of 40 CFR Part 60 (see: 72 FR p.32710). For certain affected units (some of which are also subject to Part 75), these rule revisions either require or allow a particulate matter

(PM)monitoring system to be used in lieu of an opacity monitor (e.g., see §§ 60.49Da(t), and 60.48b(j)). Summary of Rule Changes Today's rule incorporates the commenter's recommendation, as new paragraph

(e)in § 75.14. The Agency believes that this revision to Part 75 is non-controversial and is consistent with EPA's ongoing commitment to harmonization of the Part 60 and Part 75 continuous monitoring regulations. 2. Default Moisture Values for Hg Monitoring Background For dry-basis Hg CEMS and sorbent trap monitoring systems, the hourly Hg emissions data must be corrected for the stack gas moisture content. This requirement can be met by using one of the fuel-specific default moisture values specified in Part 75. Several places in § 75.80, § 75.81, and Appendix K state that for the purposes of Hg monitoring, a default moisture value from § 75.11(b) or § 75.12(b) may be used in lieu of installing a continuous moisture monitoring system. However, the reference to § 75.12(b) is incorrect. Only the default moisture values in § 75.11(b) are appropriate for Hg monitoring applications. Equation F-29, the only Hg mass emissions equation with a moisture correction term, is structurally similar to Equation F-2 for SO 2 mass emissions. The default moisture values in § 75.11(b) are the ones that apply to Equation F-2. Hence, they apply also to Equation F-29. The default moisture values in § 75.12(b) are used for NO X emission rate calculations, and several of them are not applicable to Hg mass emissions monitoring. Summary of Rule Changes All references to the default moisture values in § 75.12(b) have been removed from § 75.80, § 75.81, and Appendix K. 3. Hg Stratification Testing Background To support the Clean Air Mercury Regulation (CAMR), which was published in 2005 ( *see:* 70 FR 28606, May 18, 2005), EPA added Hg monitoring provisions to Part 75, among which were revisions to § 75.22(a) and to section 6.5.10 of Appendix A, specifying ASTM D6784-02, the “Ontario Hydro Method”, as the appropriate reference method for measuring Hg concentration. On August 22, 2006 EPA proposed to add Method 29 (which is similar to Ontario Hydro) to Part 75, as an alternative Hg reference method. Most recently, in a direct-final action on September 7, 2007. EPA published two more alternative reference methods

(RMs)for measuring vapor phase Hg emissions, Method 30A (an instrumental method) and Method 30B (a sorbent-based method). Today's rule allows the use of Methods 29, 30A, and 30B as alternatives to the Ontario Hydro Method (see the revisions to § 75.22(a) and Section 6.5.10 of Appendix A). EPA anticipates that in 2008 and beyond, all four of the Hg reference methods in Part 75 will be used, to a greater or lesser extent, for the Hg emission testing required under §§ 75.81(c) and

(d)and for RATAs of Hg monitoring systems. For Hg emission tests, Methods 30A and 30B require 12 sampling points (located according to EPA Method 1) for each test run, unless the results of a Hg stratification test justify using fewer points. The Ontario Hydro Method and Method 29 each require a minimum of 12 sample points and do not include any stratification test provisions or alternative sampling point location criteria. For the RATAs of Part 75 Hg monitoring systems, when Methods 30A and 30B are used, both methods defer to the RM point selection and location procedures described in Part 75, Appendix A, section 6.5.6 and Performance Specification 2

(PS2)in Appendix B of 40 CFR Part 60. This is the familiar sampling approach that allows the use of a “short” 3-point measurement line at locations where stratification is not expected, but requires the use of a 3-point “long” measurement line (which includes a point at the center of the stack) at locations where stratification is suspected (e.g., after a wet scrubber), unless the results of a stratification test justify using the 3-point short line (or perhaps a single sampling point). As an alternative, Part 75 allows the use of six Method 1 sampling points located along a diameter, at any test location (including those where stratification is suspected). This same RM sampling point location methodology applies to Hg RATAs in which the Ontario Hydro Method or Method 29 is used as the reference method. However, when testing is performed downstream of a scrubber, measuring at the center of a large-diameter stack is extremely difficult logistically, and testing at 6 points along a diameter may not be possible for certain test platform and test port configurations. Therefore, historically, most testers have opted to perform stratification testing at scrubbed stacks to justify sampling along a 3-point short line (or at a single point), which greatly simplifies the test procedures, in that all measurements can be made at one test port, using a probe of reasonable length. Unfortunately, Part 75 does not have a stratification test procedure for Hg, and, as previously noted, neither the Ontario Hydro Method nor Method 29 has any stratification test provisions—but there is a Hg stratification test procedure in Method 30A. Summary of Rule Changes In view of these considerations, EPA has deemed it necessary to revise Section 6.5.6(c) of Appendix A, to cross-reference the Hg stratification test provisions in Sections 8.1.3 through 8.1.3.5 of Method 30A. Further, § 75.22(a)(7) has been revised to address RM sample point location and stratification testing when the Ontario Hydro Method or Method 29 is used for the Hg low mass emission testing required under §§ 75.81(c) and (d). For that particular application, revised § 75.22(a)(7) requires the sampling points to be located according to Section 8.1 of Method 30A and cross-references the stratification test provisions in sections 8.1.3 through 8.1.3.5 of Method 30A. These amendments to Appendix A and § 75.22 provide a consistent approach to stratification testing and RM sampling point location for Hg emission testing and Hg monitoring system RATAs, irrespective of which Hg reference method is used for the testing. II. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order

(EO)12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. B. Paperwork Reduction Act The information collection requirements in the final rule have been submitted for approval to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The Information Collection Request

(ICR)document prepared by EPA has been assigned EPA ICR number 2203.02. The information collection requirements are not enforceable until OMB approves them. The information requirements are based on the revisions to the monitoring, recordkeeping, and reporting requirements in 40 CFR Part 75, which are mandatory for all sources subject to the Acid Rain Program under Title IV of the Clean Air Act and certain other emissions trading programs administered by EPA. All information submitted to EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to Agency policies set forth in 40 CFR Part 2, subpart B. The preexisting Part 75 rule requirements amended in this final rule are covered by existing ICRs for the Acid Rain Program (EPA ICR number 1633.14; OMB control number 2060-0258), the NO X SIP Call (EPA ICR number 1857.04; OMB number 2060-0445), and the Clean Air Interstate Rule (EPA ICR number 2152.02; OMB number 2060-0570). The separate ICR for the final rule revisions addresses the one-time costs necessary for sources to review the rule revisions and adapt their recordkeeping and reporting systems to the revised requirements. The EPA believes that the long term implications of the rule revisions will be to reduce the ongoing burdens and costs associated with Part 75 compliance, but those impacts will be addressed as EPA renews the individual program ICRs. The annual monitoring, reporting, and recordkeeping burden for this collection (averaged over the first 3 years after the effective date of the final rule) is estimated to be 124,976 labor hours per year at a total annual cost of $8,581,420. This estimate includes burdens for rule review, recordkeeping and reporting software upgrades, and software debugging activities, as well as the capital costs of upgrading recordkeeping and reporting software. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR Part 9. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the **Federal Register** to display the OMB control number for the approved information collection requirements contained in this final rule. C. Regulatory Flexibility Act The Regulatory Flexibility Act

(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as:

(1)A small business as defined by the SBA's regulations at 13 CFR 121.201;

(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and

(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analysis is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden or otherwise has a positive economic effect on all of the small entities subject to the rule. These final rule revisions represent minor changes to existing monitoring requirements used in EPA emission trading programs and we expect these revisions to reduce the economic burden for affected entities in the long term. Although there will be some small level of up front costs to reprogram existing electronic data reporting software used under this program, the long term effects of these revisions will be to allow continued efficient electronic data submittals that should act to relieve some of the long term reporting burdens for affected sources, which include some small entities. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that this final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments in the aggregate, or to the private sector in any 1 year, nor does this rule significantly or uniquely impact small governments, because it contains no requirements that impose new obligations upon them. Thus, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. The revisions primarily make certain changes EPA has determined are necessary as part of upgrading the data systems used to manage data submitted under the program and to streamline the methods for sources to report their information. The revisions also clarify certain issues that have been raised during ongoing implementation of the existing rule and update the information on various voluntary consensus standards incorporated by reference in the rule. Some States do have programs that rely on the monitoring provisions in 40 CFR Part 75, and States may incur some costs associated with reviewing the modifications to Part 75, but the rule revisions and the impact on the States are not significant. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. These rule revisions represent minor adjustments to existing regulations. The revisions primarily make certain changes EPA has determined are necessary as part of upgrading the data systems used to manage data submitted under the program and to streamline the methods for sources to report their information. The revisions also clarify certain issues that have been raised during ongoing implementation of the existing rule and update the information on various voluntary consensus standards incorporated by reference in the rule. Some States do have programs that rely on the monitoring provisions in 40 CFR Part 75, and States may incur some costs associated with reviewing the modifications to Part 75, but the rule revisions and the impact on the States are not significant. Thus, Executive Order 13132 does not apply to this final rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination With Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Thus, Executive Order 13175 does not apply to this final rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045: “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:

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

(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rule includes updated information on a number of voluntary consensus standards previously included in 40 CFR Part 75, as well as the addition of certain other voluntary consensus standards. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This final rule does not affect or relax the control measures on sources impacted by emission trading programs that rely on monitoring under 40 CFR Part 75. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the Agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective on January 24, 2008 for good cause found as explained in this rule. L. Petitions for Judicial Review Under Clean Air Act section 307(b)(1), petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 24, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review, nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such a rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2) of the Administrative Procedures Act.) M. Determination Under Section 307(d) Pursuant to Clean Air Act section 307(d)(1)(U), the Administrator determines that this action is subject to the provisions of section 307(d). Section 307(d)(1)(U) provides that the provisions of section 307(d) apply to “such other actions as the Administrator may determine.” While the Administrator did not make this determination earlier, the Administrator believes that all of the procedural requirements, e.g., docketing, hearing and comment periods, of section 307(d) have been complied with during the course of this rulemaking. List of Subjects in 40 CFR Parts 72 and 75 Environmental protection, Acid rain, Administrative practice and procedure, Air pollution control, Carbon dioxide, Continuous emission monitoring, Electric utilities, Incorporation by reference, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur oxides. Dated: December 19, 2007. Stephen L. Johnson, Administrator. For the reasons set forth in the preamble, parts 72 and 75 of chapter I of title 40 of the Code of Federal Regulations are amended as follows: PART 72—PERMITS REGULATION 1. The authority citation for part 72 continues to read as follows: Authority: 42 U.S.C. 7601 and 7651, *et seq.* Subpart A—Acid Rain Program General Provisions 2. Section 72.2 is amended as follows: a. Revising the definition of “Capacity factor”; b. In the definition of “Diluent cap”, by removing the words “, CO 2 mass emission rate, or heat input rate,” after the words “NO X emission rate”; c. In the definition of “EPA protocol gas”, by adding a new sentence to the end of the definition; d. Revising the definition of “Excepted monitoring system”; e. Adding the new definitions in alphabetical order for “Air Emission Testing Body (AETB)”, “EPA Protocol Gas Verification Program”, “Long-term cold storage”, “NIST traceable elemental Hg standards”, “NIST traceable source of oxidized Hg”, “Qualified Individual”, and “Specialty gas producer”; and f. Removing the definition for “Research gas material (RGM)” The revisions and additions read as follows: § 72.2 Definitions. *Air Emission Testing Body (AETB)* means a company or other entity that conducts Air Emissions Testing as described in ASTM D7036-04 (incorporated by reference under § 75.6 of this part). *Capacity factor* means either:

(1)The ratio of a unit's actual annual electric output (expressed in MWe/hr) to the unit's nameplate capacity (or maximum observed hourly gross load (in MWe/hr) if greater than the nameplate capacity) times 8760 hours; or

(2)The ratio of a unit's annual heat input (in million British thermal units or equivalent units of measure) to the unit's maximum rated hourly heat input rate (in million British thermal units per hour or equivalent units of measure) times 8,760 hours. *EPA protocol gas* * * * On and after January 1, 2009, vendors advertising certification with the EPA Traceability Protocol *or* distributing gases as “EPA Protocol Gas” must participate in the EPA Protocol Gas Verification Program. Non-participating vendors may not use “EPA” in any form of advertising for these products, unless approved by the Administrator. *EPA Protocol Gas Verification Program* means the EPA Protocol Gas audit program described in Section 2.1.10 of the “EPA Traceability Protocol for Assay and Certification of Gaseous Calibration Standards,” September 1997, EPA-600/R-97/121 (EPA Protocol Procedure) or such revised procedure as approved by the Administrator. *Excepted monitoring system* means a monitoring system that follows the procedures and requirements of § 75.15 of this chapter, § 75.19 of this chapter, § 75.81(b) of this chapter or of appendix D, or E to part 75 for approved exceptions to the use of continuous emission monitoring systems. *Long-term cold storage* means the complete shutdown of a unit intended to last for an extended period of time (at least two calendar years) where notice for long-term cold storage is provided under § 75.61(a)(7). *NIST traceable elemental Hg standards* means either:

(1)Compressed gas cylinders having known concentrations of elemental Hg, which have been prepared according to the “EPA Traceability Protocol for Assay and Certification of Gaseous Calibration Standards”; or

(2)Calibration gases having known concentrations of elemental Hg, produced by a generator that fully meets the performance requirements of the “EPA Traceability Protocol for Qualification and Certification of Elemental Mercury Gas Generators”. *NIST traceable source of oxidized Hg* means a generator that: Is capable of providing known concentrations of vapor phase mercuric chloride (HgCl 2 ), and that fully meets the performance requirements of the “EPA Traceability Protocol for Qualification and Certification of Oxidized Mercury Gas Generators”. *Qualified Individual* means an individual who meets the requirements as described in ASTM D7036-04, “Standard Practice for Competence of Air Emission Testing Bodies” (incorporated by reference under § 75.6 of this part). *Specialty gas producer* means an organization that prepares and analyzes compressed gas mixtures for use as calibration gases and that offers the mixtures for sale to end users or to third-party vendors for resale to end users. PART 75—CONTINUOUS EMISSION MONITORING 3. The authority citation for Part 75 continues to read as follows: Authority: 42 U.S.C. 7601, and 7651k, and 7651k note. Subpart A—General 4. Section 75.4 is amended by revising paragraph

(d)to read as follows: § 75.4 Compliance dates.

(d)This paragraph, applies to affected units under the Acid Rain Program and to units subject to a State or Federal pollutant mass emissions reduction program that adopts the emission monitoring and reporting provisions of this part. In accordance with § 75.20, for an affected unit which, on the applicable compliance date, is either in long-term cold storage (as defined in § 72.2 of this chapter) or is shut down as the result of a planned outage or a forced outage, thereby preventing the required continuous monitoring system certification tests from being completed by the compliance date, the owner or operator shall provide notice of such unit storage or outage in accordance with § 75.61(a)(3) or § 75.61(a)(7), as applicable. For the planned and unplanned unit outages described in this paragraph, the owner or operator shall ensure that all of the continuous monitoring systems for SO 2 , NO X , CO 2 , Hg, opacity, and volumetric flow rate required under this part (or under the applicable State or Federal mass emissions reduction program) are installed and that all required certification tests are completed no later than 90 unit operating days or 180 calendar days (whichever occurs first) after the date that the unit recommences commercial operation, notice of which date shall be provided under § 75.61(a)(3) or § 75.61(a)(7), as applicable. The owner or operator shall determine and report SO 2 concentration, NO X emission rate, CO 2 concentration, Hg concentration, and flow rate data (as applicable) for all unit operating hours after the applicable compliance date until all of the required certification tests are successfully completed, using either:

(1)The maximum potential concentration of SO 2 (as defined in section 2.1.1.1 of appendix A to this part), the maximum potential NO X emission rate, as defined in § 72.2 of this chapter, the maximum potential flow rate, as defined in section 2.1.4.1 of appendix A to this part, the maximum potential Hg concentration, as defined in section 2.1.7.1 of appendix A to this part, or the maximum potential CO 2 concentration, as defined in section 2.1.3.1 of appendix A to this part; or

(2)The conditional data validation provisions of § 75.20(b)(3); or

(3)Reference methods under § 75.22(b); or

(4)Another procedure approved by the Administrator pursuant to a petition under § 75.66. 5. Section 75.6 is amended by: a. Removing “D129-91” and adding in its place “D129-00”, in paragraph (a)(1); b. Removing “D240-87 (Reapproved 1991)” and adding in its place “D240-00”, in paragraph (a)(2); c. Removing “D287-82 (Reapproved 1987)” and adding in its place “D287-92 (Reapproved 2000)”, in paragraph (a)(3); d. Removing “D388-92” and adding in its place “D388-99”, in paragraph (a)(4); e. Removing and reserving paragraph (a)(5); f. Removing “D1072-90” and adding in its place “D1072-06”, and also by adding the phrase “by Combustion and Barium Chloride Titration” after the word “Gases”, in paragraph (a)(6); g. Removing “D1217-91” and adding in its place “D1217-93 (Reapproved 1998)”, in paragraph (a)(7); h. Removing the phrase “(Reapproved 1990)”, and by removing “D1250-80” and adding in its place “D1250-07”, and also by adding the phrase “Use of the” after the first occurrence of the word “for”, in paragraph (a)(8); i. Removing the phrase “D1298-85 (Reapproved 1990), Standard Practice for Density, Relative Density (Specific Gravity)” and adding in its place “D1298-99, Standard Test Method for Density, Relative Density (Specific Gravity),”, in paragraph (a)(9); j. Removing “D1480-91” and adding in its place “D1480-93 (Reapproved 1997)”, in paragraph (a)(10); k. Removing “D1481-91” and adding in its place “D1481-93 (Reapproved 1997)”, in paragraph (a)(11); l. Removing “D1552-90” and adding in its place “D1552-01”, and also by removing the phrase, “High Temperature” and adding in its place “High-Temperature”, in paragraph (a)(12); m. Removing “D1826-88” and adding in its place “D1826-94 (Reapproved 1998)”, in paragraph (a)(13); n. Removing “D1945-91” and adding in its place “D1945-96 (Reapproved 2001)”, in paragraph (a)(14); o. Adding the phrase “(Reapproved 2006)” after “D1946-90”, in paragraph (a)(15); p. Removing and reserving paragraph (a)(16); q. Removing “D2013-86” and adding in its place “D2013-01”, and also by removing the phrase, “Method of”, and adding in its place, “Practice for”, in paragraph (a)(17); r. Removing and reserving paragraph (a)(18); s. Removing “D2234-89” and adding in its place “D2234-00”, and also by removing the phrase “Test Methods”, and adding in its place, “Practice”, in paragraph (a)(19); t. Removing and reserving paragraph (a)(20); u. Removing “D2502-87” and adding in its place “D2502-92 (Reapproved 1996)”, in paragraph (a)(21); v. Removing “D2503-82 (Reapproved 1987)” and adding in its place “D2503-92 (Reapproved 1997)”, and also by removing the phrase “Molecular Weight (Relative Molecular Mass)”, and by adding in its place, “Relative Molecular Mass (Molecular Weight)”, in paragraph (a)(22); w. Removing “D2622-92” and adding in its place “D2622-98”, and also by removing the phrase “X-Ray Spectrometry”, and adding in its place “Wavelength Dispersive X-ray Fluorescence Spectrometry”, in paragraph (a)(23); x. Removing “D3174-89” and adding in its place “D3174-00”, and also by removing the word “From” and adding in its place “from”, in paragraph (a)(24); y. Adding the phrase “(Reapproved 2002)” after “D3176-89”, in paragraph (a)(25); z. Removing “D3177-89” and adding in its place the phrase “ D3177-02 (Reapproved 2007)” in paragraph (a)(26); aa. Removing “ D3178-89 (1997), “Standard Test Methods for Carbon and Hydrogen in the Analysis Sample of Coal and Coke” and adding in its place “D5373-02 (Reapproved 2007) Standard Test Methods for Instrumental Determination of Carbon, Hydrogen, and Nitrogen in Laboratory Samples of Coal and Coke” in paragraph (a)(27); bb. Removing “D3238-90” and adding in its place “D3238-95 (Reapproved 2000)”, in paragraph (a)(28); cc. Removing “D3246-81 (Reapproved 1987)” and adding in its place “D3246-96”, and also by removing the word “By” and adding in its place, “by”, in paragraph (a)(29); dd. Removing and reserving paragraph (a)(30); ee. Removing “D3588-91” and adding in its place “D3588-98”, and also by removing the phrase, “(Specific Gravity)”, in paragraph (a)(31); ff. Removing “D4052-91” and adding in its place “D4052-96 (Reapproved 2002)”, in paragraph (a)(32); gg. Removing “D4057-88” and adding in its place “D4057-95 (Reapproved 2000)”, in paragraph (a)(33); hh. Removing “D4177-82 (Reapproved 1990)” and adding in its place “D4177-95 (Reapproved 2000)”, in paragraph (a)(34); ii. Removing “D4239-85” and adding in its place “D4239-02”, and also by removing the phrase “High Temperature”, and adding in its place “High-Temperature”, in paragraph (a)(35); jj. Removing “D4294-90” and adding in its place “D4294-98”, adding the words “and Petroleum” after the word “Petroleum”, by removing the word “X-Ray” and adding in its place, “X-ray”, and by removing the word “Spectroscopy” and adding in its place, “Spectrometry” in paragraph (a)(36); kk. Removing the phrase “(Reapproved 1989)” and adding in its place the phrase “(Reapproved 2006)”, in paragraph (a)(37); ll. Removing “(reapproved 2004)”, and adding in its place, “(Reapproved 2004)”, in paragraph (a)(38); mm. Adding the phrase “(Reapproved 2006)” after “D4891-89”, in paragraph (a)(39); nn. Removing “D5291-92” and adding in its place “D5291-02”, in paragraph (a)(40); oo. Removing “D5373-93”, and adding in its place “D5373-02 (Reapproved 2007)” and adding the word “Test” after the word “Standard”, in paragraph (a)(41); pp. Removing “D5504-94” and adding in its place “D5504-01”, in paragraph (a)(42); qq. Adding new paragraphs (a)(45), (a)(46), (a)(47), (a)(48), and (a)(49); rr. Removing the phrase “ASME MFC-3M-1989 with September 1990 Errata” and adding in its place the phrase “ASME MFC-3M-2004 (Revision of ASME MFC-3M-1989 (R1995))”, in paragraph (b)(1); ss. Removing the date “1990” and adding in its place the date “1997” in the parenthetical, in paragraph (b)(2); tt. Adding the phrase “(Reaffirmed 1994)” after “ASME-MFC-5M-1985,”, in paragraph (b)(3); uu. Removing the phrase “1987 with June 1987 Errata” and adding in its place the number “1998” at the end of “MFC-6M-”, and also by removing “Flow Meters” and adding in its place, “Flowmeters”, in paragraph (b)(4); vv. Removing the phrase “with December 1989 Errata” and adding in its place the phrase “(Reaffirmed 2001)”, in paragraph (b)(6); ww. Removing the number “86” and adding in its place the number “96” at the end of “GPA Standard 2172-”, in paragraph (d)(1); xx. Removing the number “90” and adding in its place the number “00” at the end of “GPA Standard 2261-00”, in paragraph (d)(2); yy. Revising paragraphs (f)(1) and (f)(3); and zz. Adding new paragraph (f)(4). The revisions and additions read as follows: § 75.6 Incorporation by reference.

(a)* * *

(45)ASTM D6667-04, Standard Test Method for Determination of Total Volatile Sulfur in Gaseous Hydrocarbons and Liquefied Petroleum Gases by Ultraviolet Fluorescence, for appendix D of this part.

(46)ASTM D4809-00, Standard Test Method for Heat of Combustion of Liquid Hydrocarbon Fuels by Bomb Calorimeter (Precision Method), for appendices D and F of this part.

(47)ASTM D5865-01a, Standard Test Method for Gross Calorific Value of Coal and Coke, for appendices A, D, and F of this part.

(48)ASTM D7036-04, Standard Practice for Competence of Air Emission Testing Bodies, for appendices A, B, and E of this part.

(49)ASTM D5453-06, Standard Test Method for Determination of Total Sulfur in Light Hydrocarbons, Spark Ignition Engine Fuel, Diesel Engine Fuel, and Engine Oil by Ultraviolet Fluorescence, for appendix D of this part.

(f)* * *

(1)American Petroleum Institute

(API)Manual of Petroleum Measurement Standards, Chapter 3—Tank Gauging, Section 1A, Standard Practice for the Manual Gauging of Petroleum and Petroleum Products, Second Edition, August 2005; Section 1B—Standard Practice for Level Measurement of Liquid Hydrocarbons in Stationary Tanks by Automatic Tank Gauging, Second Edition June 2001; Section 2—Standard Practice for Gauging Petroleum and Petroleum Products in Tank Cars, First Edition, August 1995 (Reaffirmed March 2006); Section 3—Standard Practice for Level Measurement of Liquid Hydrocarbons in Stationary Pressurized Storage Tanks by Automatic Tank Gauging, First Edition June 1996; Section 4—Standard Practice for Level Measurement of Liquid Hydrocarbons on Marine Vessels by Automatic Tank Gauging, First Edition April 1995 (Reaffirmed, March 2006); and Section 5—Standard Practice for Level Measurement of Light Hydrocarbon Liquids Onboard Marine Vessels by Automatic Tank Gauging, First Edition March 1997 (Reaffirmed, March 2003); for § 75.19.

(3)American Petroleum Institute

(API)Manual of Petroleum Measurement Standards, Chapter 4—Proving Systems, Section 2—Pipe Provers (Provers Accumulating at Least 10,000 Pulses), Second Edition, March 2001, and Section 5—Master-Meter Provers, Second Edition, May 2000, for appendix D to this part.

(4)American Petroleum Institute

(API)Manual of Petroleum Measurement Standards, Chapter 22—Testing Protocol, Section 2—Differential Pressure Flow Measurement Devices (First Edition, August 2005), for appendix D to this part. 6. Section 75.11 is amended by: a. Revising the heading of the section; b. Adding the phrase “and 14.0% for natural gas (boilers, only);” after the word “wood;”, in paragraph (b)(1); c. Revising paragraph (d)(3); d. Revising paragraphs

(e)introductory text and (e)(1); e. Removing and reserving paragraph (e)(2); f. Revising paragraph (e)(3) introductory text; g. Add new paragraph (e)(4); and h. Revising paragraph (f). The revisions and additions read as follows: § 75.11 Specific provisions for monitoring SO 2 emissions.

(d)* * *

(3)By using the low mass emissions excepted methodology in § 75.19(c) for estimating hourly SO 2 mass emissions if the affected unit qualifies as a low mass emissions unit under § 75.19(a) and (b). If this option is selected for SO 2 , the LME methodology must also be used for NO X and CO 2 when these parameters are required to be monitored by applicable program(s).

(e)*Special considerations during the combustion of gaseous fuels.* The owner or operator of an affected unit that uses a certified flow monitor and a certified diluent gas (O 2 or CO 2 ) monitor to measure the unit heat input rate shall, during any hours in which the unit combusts only gaseous fuel, determine SO 2 emissions in accordance with paragraph (e)(1) or (e)(3) of this section, as applicable.

(1)If the gaseous fuel qualifies for a default SO 2 emission rate under Section 2.3.1.1, 2.3.2.1.1, or 2.3.6(b) of appendix D to this part, the owner or operator may determine SO 2 emissions by using Equation F-23 in appendix F to this part. Substitute into Equation F-23 the hourly heat input, calculated using the certified flow monitoring system and the certified diluent monitor (according to the applicable equation in section 5.2 of appendix F to this part), in conjunction with the appropriate default SO 2 emission rate from section 2.3.1.1, 2.3.2.1.1, or 2.3.6(b) of appendix D to this part. When this option is chosen, the owner or operator shall perform the necessary data acquisition and handling system tests under § 75.20(c), and shall meet all quality control and quality assurance requirements in appendix B to this part for the flow monitor and the diluent monitor; or

(2)[Reserved]

(3)The owner or operator may determine SO 2 mass emissions by using a certified SO 2 continuous monitoring system, in conjunction with the certified flow rate monitoring system. However, if the gaseous fuel is very low sulfur fuel (as defined in § 72.2 of this chapter), the SO 2 monitoring system shall meet the following quality assurance provisions when the very low sulfur fuel is combusted:

(4)The provisions in paragraph (e)(1) of this section, may also be used for the combustion of a solid or liquid fuel that meets the definition of very low sulfur fuel in § 72.2 of this chapter, mixtures of such fuels, or combinations of such fuels with gaseous fuel, if the owner or operator submits a petition under § 75.66 for a default SO 2 emission rate for each fuel, mixture or combination, and if the Administrator approves the petition.

(f)*Other units.* The owner or operator of an affected unit that combusts wood, refuse, or other material in addition to oil or gas shall comply with the monitoring provisions for coal-fired units specified in paragraph

(a)of this section, except where the owner or operator has an approved petition to use the provisions of paragraph (e)(1) of this section. 7. Section 75.12 is amended by: a. Revising the section heading; b. Removing the word “and” before the number “15.0%”, and by adding the phrase “; and 18.0% for natural gas (boilers, only)” after the word “wood”, in paragraph (b); and c. Revising paragraph (e)(3). The revisions read as follows: § 75.12 Specific provisions for monitoring NO X emission rate.

(e)* * *

(3)Use the low mass emissions excepted methodology in § 75.19(c) for estimating hourly NO X emission rate and hourly NO X mass emissions, if applicable under § 75.19(a) and (b). If this option is selected for NO X , the LME methodology must also be used for SO 2 and CO 2 when these parameters are required to be monitored by applicable program(s). 8. Section 75.13 is amended by revising paragraph (d)(3) to read as follows: § 75.13 Specific provisions for monitoring CO 2 emissions.

(d)* * *

(3)Use the low mass emissions excepted methodology in § 75.19(c) for estimating hourly CO 2 mass emissions, if applicable under § 75.19(a) and (b). If this option is selected for CO 2 , the LME methodology must also be used for NO X and SO 2 when these parameters are required to be monitored by applicable program(s). 9. Section 75.14 is amended by adding paragraph

(e)to read as follows: § 75.14 Specific provisions for monitoring opacity.

(e)Unit with a certified particulate matter

(PM)monitoring system. If, for a particular affected unit, the owner or operator installs, certifies, operates, maintains, and quality-assures a continuous particulate matter

(PM)monitoring system in accordance with Procedure 2 in appendix F to part 60 of this chapter, the unit shall be exempt from the opacity monitoring requirement of this part. 10. Section 75.15 is amended by: a. Removing the reference “(j)” and adding the reference “(l)” in its place in the introductory paragraph; b. Revising paragraph (h); and c. Adding paragraph (l). The revisions and additions read as follows: § 75.15 Special provisions for measuring Hg mass emissions using the excepted sorbent trap monitoring methodology.

(h)The hourly Hg mass emissions for each collection period are determined using the results of the analyses in conjunction with contemporaneous hourly data recorded by a certified stack flow monitor, corrected for the stack gas moisture content. For each pair of sorbent traps analyzed, the average of the two Hg concentrations shall be used for reporting purposes under ( 75.84(f). Notwithstanding this requirement, if, due to circumstances beyond the control of the owner or operator, one of the paired traps is accidentally lost, damaged, or broken and cannot be analyzed, the results of the analysis of the other trap may be used for reporting purposes, provided that:

(1)The other trap has met all of the applicable quality-assurance requirements of this part; and

(2)The Hg concentration measured by the other trap is multiplied by a factor of 1.111.

(l)Whenever the type of sorbent material used by the traps is changed, the owner or operator shall conduct a diagnostic RATA of the modified sorbent trap monitoring system within 720 unit or stack operating hours after the date and hour when the new sorbent material is first used. If the diagnostic RATA is passed, data from the modified system may be reported as quality-assured, back to the date and hour when the new sorbent material was first used. If the RATA is failed, all data from the modified system shall be invalidated, back to the date and hour when the new sorbent material was first used, and data from the system shall remain invalid until a subsequent RATA is passed. If the required RATA is not completed within 720 unit or stack operating hours, but is passed on the first attempt, data from the modified system shall be invalidated beginning with the first operating hour after the 720 unit or stack operating hour window expires and data from the system shall remain invalid until the date and hour of completion of the successful RATA. 11. Section 75.16 is amended by: a. Revising paragraph (b)(1)(ii); b. Adding the word “rate” after the phrase “report heat input” in the last sentence, in paragraph (e)(1); and c. In the second sentence of paragraphs (e)(3) by removing both occurrences of the phrase “steam flow” and adding in its place the phrase “steam load” and adding the phrase “or mmBtu/hr thermal output” inside the parentheses, after the phrase “in 1000 lb/hr”, in paragraph (e)(3). The revisions read as follows: § 75.16 Special provisions for monitoring emissions from common, bypass, and multiple stacks for SO 2 emissions and heat input determinations.

(b)* * *

(1)* * *

(ii)Install, certify, operate, and maintain an SO 2 continuous emission monitoring system and flow monitoring system in the common stack and combine emissions for the affected units for recordkeeping and compliance purposes. 12. Section 75.17 is amended by revising paragraph (d)(2) to read as follows: § 75.17 Special provisions for monitoring emissions from common, bypass, and multiple stacks for NO X emission rate.

(d)* * *

(2)Install, certify, operate, and maintain a NO X -diluent CEMS only on the main stack. If this option is chosen, it is not necessary to designate the exhaust configuration as a multiple stack configuration in the monitoring plan required under § 75.53, with respect to NO X or any other parameter that is monitored only at the main stack. For each unit operating hour in which the bypass stack is used and the emissions are either uncontrolled (or the add-on controls are not documented to be operating properly), report the maximum potential NO X emission rate (as defined in § 72.2 of this chapter). The maximum potential NO X emission rate may be specific to the type of fuel combusted in the unit during the bypass (see § 75.33(c)(8)). Alternatively, for a unit with NO X add-on emission controls, for each unit operating hour in which the bypass stack is used and the add-on NO X emission controls are not bypassed, the owner or operator may report the maximum controlled NO X emission rate

(MCR)instead of the maximum potential NO X emission rate provided that the add-on controls are documented to be operating properly, as described in the quality assurance/quality control program for the unit, required by section 1 in appendix B of this part. To provide the necessary documentation, the owner or operator shall record parametric data to verify the proper operation of the NO X add-on emission controls as described in § 75.34(d). Furthermore, the owner or operator shall calculate the MCR using the procedure described in section 2.1.2.1(b) of appendix A to this part where the words “maximum potential NO X emission rate (MER)” shall apply instead of the words “maximum controlled NO X emission rate (MCR)” and by using the NO X MEC in the calculations instead of the NO X MPC. 13. Section 75.19 is amended by: a. Revising paragraph (a)(1); b. Revising paragraph (c)(1)(i); c. Revising paragraph (c)(1)(iv)(A)(3); d. Removing the words “Method 20” from paragraph (c)(1)(iv)(A)(4); e. Removing the words “Method 20” from the definition of NO X obs in the nomenclature for Equation LM-1a under paragraph (c)(1)(iv)(A); f. Adding the phrase, “that meets the quality assurance requirements of either: this part, or appendix F to part 60 of this chapter, or a comparable State CEM program,” after the abbreviation “CEMS”, in paragraph (c)(1)(iv)(G); g. Adding paragraphs (c)(1)(iv)(I)(3), (4),

(5)and (6); h. Revising paragraph (c)(3)(ii)(B)(2); i. Revising paragraph (c)(3)(ii)(H); j. Removing the words “from Table LM-1 of this section” from the first sentence of paragraph (c)(4)(i)(A); k. Revising the heading for paragraph (c)(4)(ii); and l. Adding paragraph (c)(4)(ii)(D). The revisions and additions read as follows: § 75.19 Optional SO 2 , NO X , and CO 2 emissions calculation for low mass emissions units.

(a)* * *

(1)For units that meet the requirements of this paragraph (a)(1) and paragraphs (a)(2) and

(b)of this section, the low mass emissions

(LME)excepted methodology in paragraph

(c)of this section may be used in lieu of continuous emission monitoring systems or, if applicable, in lieu of methods under appendices D, E, and G to this part, for the purpose of determining unit heat input, NO X , SO 2 , and CO 2 mass emissions, and NO X emission rate under this part. If the owner or operator of a qualifying unit elects to use the LME methodology, it must be used for all parameters that are required to be monitored by the applicable program(s). For example, for an Acid Rain Program LME unit, the methodology must be used to estimate SO 2 , NO X , and CO 2 mass emissions, NO X emission rate, and unit heat input.

(c)* * *

(1)* * *

(i)If the unit combusts only natural gas and/or fuel oil, use Table LM-1 of this section to determine the appropriate SO 2 emission rate for use in calculating hourly SO 2 mass emissions under this section. Alternatively, for fuel oil combustion, a lower, fuel-specific SO 2 emission factor may be used in lieu of the applicable emission factor from Table LM-1, if a federally enforceable permit condition is in place that limits the sulfur content of the oil. If this alternative is chosen, the fuel-specific SO 2 emission rate in lb/mmBtu shall be calculated by multiplying the fuel sulfur content limit (weight percent sulfur) by 1.01. In addition, the owner or operator shall periodically determine the sulfur content of the oil combusted in the unit, using one of the oil sampling and analysis options described in section 2.2 of appendix D to this part, and shall keep records of these fuel sampling results in a format suitable for inspection and auditing. Alternatively, the required oil sampling and associated recordkeeping may be performed using a consensus standard (e.g., ASTM, API, etc.) that is prescribed in the unit's Federally-enforceable operating permit, in an applicable State regulation, or in another applicable Federal regulation. If the unit combusts gaseous fuel(s) other than natural gas, the owner or operator shall use the procedures in section 2.3.6 of appendix D to this part to document the total sulfur content of each such fuel and to determine the appropriate default SO2 emission rate for each such fuel.

(iv)* * *

(A)* * *

(3)Do not correct the NO X concentration to 15% O 2 .

(I)* * * ( *3* ) The initial appendix E testing may be performed at a single load, between 75 and 100 percent of the maximum sustainable load defined in the monitoring plan for the unit, if the average annual capacity factor of the LME unit, when calculated according to the definition of “capacity factor” in § 72.2 of this chapter, is 2.5 percent or less for the three calendar years immediately preceding the year of the testing, and that the annual capacity factor does not exceed 4.0 percent in any of those three years. Similarly, for a LME unit that reports emissions data on an ozone season-only basis, the initial appendix E testing may be performed at a single load between 75 and 100 percent of the maximum sustainable load if the 2.5 and 4.0 percent capacity factor requirements are met for the three ozone seasons immediately preceding the date of the emission testing (see § 75.74(c)(11)). For a group of identical LME units, any unit(s) in the group that meet the 2.5 and 4.0 percent capacity factor requirements may perform the initial appendix E testing at a single load between 75 and 100 percent of the maximum sustainable load. ( *4* ) The retest of any LME unit may be performed at a single load between 75 and 100 percent of the maximum sustainable load if, for the three calendar years immediately preceding the year of the retest (or, if applicable, the three ozone seasons immediately preceding the date of the retest), the applicable capacity factor requirements described in paragraph (c)(1)(iv)(I)( *3* ) of this section are met. ( *5* ) Alternatively, for combustion turbines, the single-load testing described in paragraphs (c)(1)(iv)(I)( *3* ) and (c)(1)(iv)(I)( *4* ) of this section may be performed at the highest attainable load level corresponding to the season of the year in which the testing is conducted. ( *6* ) In all cases where the alternative single-load testing option described in paragraphs (c)(1)(iv)(I)( *3* ) through (c)(1)(iv)(I)( *5* ) of this section is used, the owner or operator shall keep records documenting that the required capacity factor requirements were met.

(3)* * *

(ii)* * *

(B)* * * ( *2* ) American Petroleum Institute

(API)Manual of Petroleum Measurement Standards, Chapter 3-Tank Gauging, Section 1A, Standard Practice for the Manual Gauging of Petroleum and Petroleum Products, Second Edition, August 2005; Section 1B-Standard Practice for Level Measurement of Liquid Hydrocarbons in Stationary Tanks by Automatic Tank Gauging, Second Edition June 2001; Section 2-Standard Practice for Gauging Petroleum and Petroleum Products in Tank Cars, First Edition, August 1995 (Reaffirmed March 2006); Section 3-Standard Practice for Level Measurement of Liquid Hydrocarbons in Stationary Pressurized Storage Tanks by Automatic Tank Gauging, First Edition June 1996 (Reaffirmed, March 2001); Section 4-Standard Practice for Level Measurement of Liquid Hydrocarbons on Marine Vessels by Automatic Tank Gauging, First Edition April 1995 (Reaffirmed, September 2000); and Section 5-Standard Practice for Level Measurement of Light Hydrocarbon Liquids Onboard Marine Vessels by Automatic Tank Gauging, First Edition March 1997 (Reaffirmed, March 2003); for § 75.19; Shop Testing of Automatic Liquid Level Gages, Bulletin 2509 B, December 1961 (Reaffirmed August 1987, October 1992) (all incorporated by reference under § 75.6 of this part); or

(H)For each low mass emissions unit or each low mass emissions unit in a group of identical units, the owner or operator shall determine the cumulative quarterly unit load in megawatt hours or thousands of pounds of steam. The quarterly cumulative unit load shall be the sum of the hourly unit load values recorded under paragraph (c)(2) of this section and shall be determined using Equations LM-5 or LM-6. For a unit subject to the provisions of subpart H of this part, which is not required to report emission data on a year-round basis and elects to report only during the ozone season, the quarterly cumulative load for the second calendar quarter of the year shall include only the unit loads for the months of May and June. ER24JA08.016 ER24JA08.017 Where: MW qtr = Sum of all unit operating loads recorded during the quarter by the unit (MWh). ST fuel-qtr = Sum of all hourly steam loads recorded during the quarter by the unit (klb of steam/hr). MW = Unit operating load for a particular unit operating hour (MWh). ST = Unit steam load for a particular unit operating hour (klb of steam).

(4)* * *

(ii)NO X mass emissions and NO X emission rate.

(D)The quarterly and cumulative NO X emission rate in lb/mmBtu (if required by the applicable program(s)) shall be determined as follows. Calculate the quarterly NO X emission rate by taking the arithmetic average of all of the hourly EF NO X values. Calculate the cumulative (year-to-date) NO X emission rate by taking the arithmetic average of the quarterly NO X emission rates. 14. Section 75.20 is amended by: a. Adding a new sentence after the third sentence of paragraph

(b)introductory text; b. Revising paragraph (c)(1)(v); and c. Removing paragraphs (f)(1) and (f)(2). The revisions and additions read as follows: § 75.20 Initial certification and recertification procedures.

(b)* * * The owner or operator shall also recertify the continuous emission monitoring systems for a unit that has recommenced commercial operation following a period of long-term cold storage as defined in § 72.2 of this chapter. * * *

(c)* * *

(1)* * *

(v)A cycle time test, (where, for the NO X -diluent continuous emission monitoring system, the test is performed separately on the NO X pollutant concentration monitor and the diluent gas monitor); and § 75.21 [Amended] 15. Section 75.21 is amended by removing the words “or (e)(2)” at the end of the first sentence of paragraph (a)(4). 16. Section 75.22 is amended by: a. Revising paragraph

(a)introductory text; b. Revising paragraphs (a)(5), (a)(6), and (a)(7); c. Revising paragraph

(b)introductory text; d. Removing the word “and” at the end of paragraph (b)(3); e. Revising paragraph (b)(5); f. Adding paragraphs (b)(6), (b)(7), and (b)(8); and g. Revising paragraph (c)(1) introductory text. The revisions and additions read as follows: § 75.22 Reference test methods.

(a)The owner or operator shall use the following methods, which are found in appendix A-4 to part 60 of this chapter or have been published by ASTM, to conduct the following tests: monitoring system tests for certification or recertification of continuous emission monitoring systems and excepted monitoring systems under appendix E to this part; the emission tests required under § 75.81(c) and (d); and required quality assurance and quality control tests:

(5)Methods 6, 6A, 6B or 6C, and 7, 7A, 7C, 7D or 7E in appendix A-4 to part 60 of this chapter, as applicable, are the reference methods for determining SO 2 and NO X pollutant concentrations. (Methods 6A and 6B in appendix A-4 to part 60 of this chapter may also be used to determine SO 2 emission rate in lb/mmBtu.) Methods 7, 7A, 7C, 7D, or 7E in appendix A-4 to part 60 of this chapter must be used to measure total NO X emissions, both NO and NO 2 , for purposes of this part. The owner or operator shall not use the following sections, exceptions, and options of method 7E in appendix A-4 to part 60 of this chapter:

(i)Section 7.1 of the method allowing for use of prepared calibration gas mixtures that are produced in accordance with method 205 in Appendix M of 40 CFR Part 51;

(ii)The sampling point selection procedures in section 8.1 of the method, for the emission testing of boilers and combustion turbines under appendix E to this part. The number and location of the sampling points for those applications shall be as specified in sections 2.1.2.1 and 2.1.2.2 of appendix E to this part;

(iii)Paragraph

(3)in section 8.4 of the method allowing for the use of a multi-hole probe to satisfy the multipoint traverse requirement of the method;

(iv)Section 8.6 of the method allowing for the use of “Dynamic Spiking” as an alternative to the interference and system bias checks of the method. Dynamic spiking may be conducted (optionally) as an additional quality assurance check.

(6)Method 3A in appendix A-2 and method 7E in appendix A-4 to part 60 of this chapter are the reference methods for determining NO X and diluent emissions from stationary gas turbines for testing under appendix E to this part.

(7)ASTM D6784-02, Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury in Flue Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method) (incorporated by reference under § 75.6 of this part) is the reference method for determining Hg concentration.

(i)Alternatively, Method 29 in appendix A-8 to part 60 of this chapter may be used, with these caveats: The procedures for preparation of Hg standards and sample analysis in sections 13.4.1.1 through 13.4.1.3 ASTM D6784-02 (incorporated by reference under § 75.6 of this part) shall be followed instead of the procedures in sections 7.5.33 and 11.1.3 of Method 29 in appendix A-8 to part 60 of this chapter, and the QA/QC procedures in section 13.4.2 of ASTM D6784-02 (incorporated by reference under § 75.6 of this part) shall be performed instead of the procedures in section 9.2.3 of Method 29 in appendix A-8 to part 60 of this chapter. The tester may also opt to use the sample recovery and preparation procedures in ASTM D6784-02 (incorporated by reference under § 75.6 of this part) instead of the Method 29 in appendix A-8 to part 60 of this chapter procedures, as follows: sections 8.2.8 and 8.2.9.1 of Method 29 in appendix A-8 to part 60 of this chapter may be replaced with sections 13.2.9.1 through 13.2.9.3 of ASTM D6784-02 (incorporated by reference under § 75.6 of this part); sections 8.2.9.2 and 8.2.9.3 of Method 29 in appendix A-8 to part 60 of this chapter may be replaced with sections 13.2.10.1 through 13.2.10.4 of ASTM D6784-02 (incorporated by reference under § 75.6 of this part); section 8.3.4 of Method 29 in appendix A-8 to part 60 of this chapter may be replaced with section 13.3.4 or 13.3.6 of ASTM D6784-02 (as appropriate) (incorporated by reference under § 75.6 of this part); and section 8.3.5 of Method 29 in appendix A-8 to part 60 of this chapter may be replaced with section 13.3.5 or 13.3.6 of ASTM D6784-02 (as appropriate) (incorporated by reference under § 75.6 of this part).

(ii)Whenever ASTM D6784-02 (incorporated by reference under § 75.6 of this part) or Method 29 in appendix A-8 to part 60 of this chapter is used, paired sampling trains are required. To validate a RATA run or an emission test run, the relative deviation (RD), calculated according to section 11.7 of appendix K to this part, must not exceed 10 percent, when the average concentration is greater than 1.0 μg/m 3 . If the average concentration is ≤1.0 μg/m 3 , the RD must not exceed 20 percent. The RD results are also acceptable if the absolute difference between the Hg concentrations measured by the paired trains does not exceed 0.03 μg/m 3 . If the RD criterion is met, the run is valid. For each valid run, average the Hg concentrations measured by the two trains (vapor phase, only).

(iii)Two additional reference methods that may be used to measure Hg concentration are: Method 30A, “Determination of Total Vapor Phase Mercury Emissions from Stationary Sources (Instrumental Analyzer Procedure)” and Method 30B, “Determination of Total Vapor Phase Mercury Emissions from Coal-Fired Combustion Sources Using Carbon Sorbent Traps”.

(iv)When Method 29 in appendix A-8 to part 60 of this chapter or ASTM D6784-02 (incorporated by reference under § 75.6 of this part) is used for the Hg emission testing required under §§ 75.81(c) and (d), locate the reference method test points according to section 8.1 of Method 30A, and if Hg stratification testing is part of the test protocol, follow the procedures in sections 8.1.3 through 8.1.3.5 of Method 30A.

(b)The owner or operator may use any of the following methods, which are found in appendix A to part 60 of this chapter or have been published by ASTM, as a reference method backup monitoring system to provide quality-assured monitor data:

(5)ASTM D6784-02, Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury in Flue Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method) (incorporated by reference under § 75.6 of this part) for determining Hg concentration;

(6)Method 29 in appendix A-8 to part 60 of this chapter for determining Hg concentration;

(7)Method 30A for determining Hg concentration; and

(8)Method 30B for determining Hg concentration. (c)(1) Instrumental EPA Reference Methods 3A, 6C, and 7E in appendices A-2 and A-4 of part 60 of this chapter shall be conducted using calibration gases as defined in section 5 of appendix A to this part. Otherwise, performance tests shall be conducted and data reduced in accordance with the test methods and procedures of this part unless the Administrator: 17. Section 75.31 is amended by adding a sentence to the end of paragraph (c)(3) to read as follows: § 75.31 Initial missing data procedures.

(c)* * *

(3)* * * Alternatively, where a unit with add-on NO X emission controls can demonstrate that the controls are operating properly during the hour, as provided in § 75.34(d), the owner or operator may substitute, as applicable, the maximum controlled NO X emission rate

(MCR)or the maximum expected NO X concentration (MEC). 18. Section 75.32 is amended by revising paragraph

(b)to read as follows: § 75.32 Determination of monitor data availability for standard missing data procedures.

(b)The monitor data availability shall be calculated for each hour during each missing data period. The owner or operator shall record the percent monitor data availability for each hour of each missing data period to implement the missing data substitution procedures. 19. Section 75.33 is amended by: a. Revising the section heading; b. Removing the word “Whenever” and adding in its place the word “If”, and by removing the words “each hour of each” and adding in its place the words “that hour of the”, in paragraph (b)(1) introductory text; c. Removing the word “Whenever” and adding in its place the word “If”, and by removing the words “each hour of each” and adding in its place the words “that hour of the”, in paragraph (b)(2) introductory text; d. Removing the word “Whenever” and adding in its place the word “If”, and by removing the word “each” and adding in its place the words “that hour of the”, in paragraphs (b)(3) and (b)(4); e. Removing the word “Whenever” and adding in its place the word “If”, and by removing the words “each hour of each” and adding in its place the words “that hour of the”, in paragraphs (c)(1) introductory text, (c)(2) introductory text, (c)(3), and (c)(4); f. Revising paragraph (c)(8)(iii); g. Revising Tables 1 and 2 in paragraph (c)(8)(iv); h. Removing the word “Whenever” and adding in its place the word “If”, and by removing the words “each hour of each” and adding in its place the words “that hour of the”, in paragraphs (d)(1) introductory text, (d)(2) introductory text, (d)(3) introductory text, and (d)(4) introductory text. i. Revising Table 3 in paragraph (e)(3); and The revisions and additions read as follows: § 75.33 Standard missing data procedures for SO 2 , NO X , Hg, and flow rate.

(c)* * *

(8)* * *

(iii)For the purposes of providing substitute data under paragraph (c)(4) of this section, a separate, fuel-specific maximum potential concentration (MPC), maximum potential NO X emission rate (MER), or maximum potential flow rate

(MPF)value (as applicable) shall be determined for each type of fuel combusted in the unit, in a manner consistent with § 72.2 of this chapter and with section 2.1.2.1 or 2.1.4.1 of appendix A to this part. For co-firing, the MPC, MER or MPF value shall be based on the fuel with the highest emission rate or flow rate (as applicable). Furthermore, for a unit with add-on NO X emission controls, a separate fuel-specific maximum controlled NO X emission rate

(MCR)or maximum expected NO X concentration

(MEC)value (as applicable) shall be determined for each type of fuel combusted in the unit. The exact methodology used to determine each fuel-specific MPC, MER, MEC, MCR or MPF value shall be documented in the monitoring plan for the unit or stack.

(iv)* * * Table 1.—Missing Data Procedure for SO 2 CEMS, CO 2 CEMS, Moisture CEMS, Hg CEMS, and Diluent (CO 2 or O 2 ) Monitors for Heat Input Determination Trigger conditions Monitor data availability (percent) Duration

(N)of CEMS outage (hours) 2 Calculation routines Method Lookback period 95 or more (90 or more for Hg) N ≤ 24 Average HB/HA. N > 24 For SO 2 , CO 2 , Hg, and H 2 O **, the greater of: Average HB/HA. 90th percentile 720 hours.* For O 2 and H 2 O X , the lesser of: 10th percentile HB/HA. 720 hours.* 90 or more, but below 95 (> 80 but < 90 for Hg) N ≤ 8 Average HB/HA. N > 8 For SO 2 , CO 2 , Hg, and H 2 O **, the greater of: Average HB/HA. 95th percentile 720 hours.* For O 2 and H 2 O X , the lesser of: Average HB/HA. 5th Percentile 720 hours.* 80 or more, but below 90 (> 70 but < 80 for Hg) N > 0 For SO 2 , CO 2 , Hg, and H 2 O: ** Maximum value 1 720 hours.* For O 2 and H 2 O X : Minimum value 1 720 hours.* Below 80 (Below 70 for Hg) N > 0 Maximum potential concentration 3 or % (for SO 2 , CO 2 , Hg, and H 2 O **) *or* Minimum potential concentration or % (for O 2 and H 2 O X ) None. HB/HA = hour before and hour after the CEMS outage. * Quality-assured, monitor operating hours, during unit operation. May be either fuel-specific or non-fuel-specific. For units that report data only for the ozone season, include only quality assured monitor operating hours within the ozone season in the lookback period. Use data from no earlier than 3 years prior to the missing data period. 1 Where a unit with add-on SO 2 or Hg emission controls can demonstrate that the controls are operating properly during the missing data period, as provided in § 75.34, the unit may use the maximum controlled concentration from the previous 720 quality-assured monitor operating hours. 2 During unit operating hours. 3 Alternatively, where a unit with add-on SO 2 or Hg emission controls can demonstrate that the controls are operating properly during the missing data period, as provided in § 75.34, the unit may report the greater of:

(a)the maximum expected SO 2 or Hg concentration or

(b)1.25 times the maximum controlled value from the previous 720 quality-assured monitor operating hours. X Use this algorithm for moisture except when Equation 19-3, 19-4 or 19-8 in Method 19 in appendix A-7 to part 60 of this chapter is used for NO X emission rate. ** Use this algorithm for moisture *only* when Equation 19-3, 19-4 or 19-8 in Method 19 in appendix A-7 to part 60 of this chapter is used for NO X emission rate. Table 2.—Load-Based Missing Data Procedure for NO X -Diluent CEMS, NO X Concentration CEMS and Flow Rate CEMS Trigger conditions Monitor data availability (percent) Duration

(N)of CEMS outage (hours) 2 Calculation routines Method Lookback period Load ranges 95 or more N ≤ 24 Average 2,160 hours * Yes. N > 24 The greater of: Average HB/HA No. 90th percentile 2,160 hours * Yes. 90 or more, but below 95 N ≤ 8 Average 2,160 hours * Yes. N > 8 The greater of: Average HB/HA No. 95th percentile 2,160 hours * Yes. 80 or more, but below 90 N > 0 Maximum value 1 2,160 hours * Yes. Below 80 N > 0 Maximum potential NO X emission rate 3 ; or maximum potential NO X concentration 3 ; or maximum potential flow rate None No. HB/HA = hour before and hour after the CEMS outage. * Quality-assured, monitor operating hours, using data at the corresponding load range (“load bin”) for each hour of the missing data period. May be either fuel-specific or non-fuel-specific. For units that report data only for the ozone season, include only quality assured monitor operating hours within the ozone season in the lookback period. Use data from no earlier than three years prior to the missing data period. 1 Where a unit with add-on NO X emission controls can demonstrate that the controls are operating properly during the missing data period, as provided in § 75.34, the unit may use the maximum controlled NO X concentration or emission rate from the previous 2,160 quality-assured monitor operating hours. Units with add-on controls that report NO X mass emissions on a year-round basis under subpart H of this part may use separate ozone season and non-ozone season data pools to provide substitute data values, as described in § 75.34(a)(2). 2 During unit operating hours. 3 Alternatively, where a unit with add-on NO X emission controls can demonstrate that the controls are operating properly during the missing data period, as provided in § 75.34, the unit may report the greater of:

(a)the maximum expected NO X concentration (or maximum controlled NO X emission rate, as applicable); or

(b)1.25 times the maximum controlled value at the corresponding load bin, from the previous 2,160 quality-assured monitor operating hours.

(e)* * *

(3)* * * Table 3.—Non-load-based Missing Data Procedure for NO X -Diluent CEMS and NO X Concentration CEMS Trigger conditions Monitor data availability (percent) Duration

(N)of CEMS outage (hours) 1 Calculation routines Method Lookback period 95 or more N ≤ 24 Average 2,160 hours.* N > 24 90th percentile 2,160 hours.* 90 or more, but below 95 N ≤ 8 Average 2,160 hours.* N > 8 95th percentile 2,160 hours.* 80 or more, but below 90 N > 0 Maximum value 3 2,160 hours.* Below 80, or operational bin indeterminable N > 0 Maximum potential NO X emission rate 2 or maximum potential NO X concentration 2 None. * If operational bins are used, the lookback period is 2,160 quality-assured, monitor operating hours, and data at the corresponding operational bin are used to provide substitute data values. If operational bins are not used, the lookback period is the previous 2,160 quality-assured monitor operating hours. For units that report data only for the ozone season, include only quality-assured monitor operating hours within the ozone season in the lookback period. Use data from no earlier than three years prior to the missing data period. 1 During unit operation. 2 Alternatively, where a unit with add-on NO X emission controls can demonstrate that the controls are operating properly, as provided in § 75.34, the unit may report the greater of:

(a)the maximum expected NO X concentration, (or maximum controlled NO X emission rate, as applicable); or

(b)1.25 times the maximum controlled value at the corresponding operational bin (if applicable), from the previous 2,160 quality-assured monitor operating hours. 3 Where a unit with add-on NO X emission controls can demonstrate that the controls are operating properly during the missing data period, as provided in § 75.34, the unit may use the maximum controlled NO X concentration or emission rate from the previous 2,160 quality-assured monitor operating hours. Units with add-on controls that report NO X mass emissions on a year-round basis under subpart H of this part may use separate ozone season and non-ozone season data pools to provide substitute data values, as described in § 75.34(a)(2). 20. Section 75.34 is amended by: a. Revising paragraph

(a)introductory text; b. In paragraph (a)(2)(ii) by removing the words “and (c)(3)” and adding in its place the words “, (c)(3) and (c)(5) of this section, and § 75.38(c),” c. Revising paragraph (a)(3); d. Adding paragraph (a)(5); and e. In paragraph

(d)by removing the words “paragraphs (a)(1) and (a)(3) of this section,” and adding in its place the words “paragraphs (a)(1), (a)(3) and (a)(5) of this section; and §§ 75.31(c)(3), 75.38(c), and 75.72(c)(3),”. The revisions and additions read as follows: § 75.34 Units with add-on emission controls.

(a)The owner or operator of an affected unit equipped with add-on SO 2 and/or NO X emission controls shall provide substitute data in accordance with paragraphs (a)(1), through (a)(5) of this section for each hour in which quality-assured data from the outlet SO 2 and/or NO X monitoring system(s) are not obtained.

(3)For each missing data hour in which the percent monitor data availability for SO 2 or NO X , calculated in accordance with § 75.32, is less than 90.0 percent and is greater than or equal to 80.0 percent; and parametric data establishes that the add-on emission controls were operating properly ( *i.e.* within the range of operating parameters provided in the quality assurance/ quality control program) during the hour, the owner or operator may:

(i)Replace the maximum SO 2 concentration recorded in the 720 quality-assured monitor operating hours immediately preceding the missing data period, with the maximum controlled SO2 concentration recorded in the previous 720 quality-assured monitor operating hours; or

(ii)Replace the maximum NO X concentration(s) or NO X emission rate(s) from the appropriate load bin(s) (based on a lookback through the 2,160 quality-assured monitor operating hours immediately preceding the missing data period), with the maximum controlled NO X concentration(s) or emission rate(s) from the appropriate load bin(s) in the same 2,160 quality-assured monitor operating hour lookback period.

(5)For each missing data hour in which the percent monitor data availability for SO 2 or NO X , calculated in accordance with § 75.32, is below 80.0 percent and parametric data establish that the add-on emission controls were operating properly ( *i.e.* within the range of operating parameters provided in the quality assurance/quality control program),in lieu of reporting the maximum potential value, the owner or operator may substitute, as applicable, the greater of:

(i)The maximum expected SO 2 concentration or 1.25 times the maximum hourly controlled SO 2 concentration recorded in the previous 720 quality-assured monitor operating hours;

(ii)The maximum expected NO X concentration or 1.25 times the maximum hourly controlled NO X concentration recorded in the previous 2,160 quality-assured monitor operating hours at the corresponding unit load range or operational bin;

(iii)The maximum controlled hourly NO X emission rate

(MCR)or 1.25 times the maximum hourly controlled NO X emission rate recorded in the previous 2,160 quality-assured monitor operating hours at the corresponding unit load range or operational bin;

(iv)For the purposes of implementing the missing data options in paragraphs (a)(5)(i) through (a)(5)(iii) of this section, the maximum expected SO 2 and NO X concentrations shall be determined, respectively, according to sections 2.1.1.2 and 2.1.2.2 of appendix A to this part. The MCR shall be calculated according to the basic procedure described in section 2.1.2.1(b) of appendix A to this part, except that the words “maximum potential NO X emission rate (MER)” shall be replaced with the words “maximum controlled NO X emission rate (MCR)” and the NO X MEC shall be used instead of the NO X MPC. 20. Section 75.38 is amended by revising paragraphs

(a)and

(c)to read as follows. § 75.38 Standard missing data procedures for Hg CEMS.

(a)Once 720 quality assured monitor operating hours of Hg concentration data have been obtained following initial certification, the owner or operator shall provide substitute data for Hg concentration in accordance with the procedures in ( 75.33(b)(1) through (b)(4), except that the term “Hg concentration'' shall apply rather than “SO 2 concentration,'' the term “Hg concentration monitoring system'' shall apply rather than “SO 2 pollutant concentration monitor,'' the term “maximum potential Hg concentration, as defined in section 2.1.7 of appendix A to this part'' shall apply, rather than “maximum potential SO 2 concentration'', and the percent monitor data availability trigger conditions prescribed for Hg in Table 1 of § 75.33 shall apply rather than the trigger conditions prescribed for SO 2 .

(c)For units with FGD systems or add-on Hg emission controls, when the percent monitor data availability is less than 80.0 percent and is greater than or equal to 70.0 percent, and a missing data period occurs, consistent with § 75.34(a)(3), for each missing data hour in which the FGD or Hg emission controls are documented to be operating properly, the owner or operator may report the maximum controlled Hg concentration recorded in the previous 720 quality-assured monitor operating hours. In addition, when the percent monitor data availability is less than 70.0 percent and a missing data period occurs, consistent with § 75.34(a)(5), for each missing data hour in which the FGD or Hg emission controls are documented to be operating properly, the owner or operator may report the greater of the maximum expected Hg concentration

(MEC)or 1.25 times the maximum controlled Hg concentration recorded in the previous 720 quality-assured monitor operating hours. The MEC shall be determined in accordance with section 2.1.7.1 of appendix A to this part. 21. Section 75.39 is amended by: a. Revising paragraph (a); b. Revising paragraph (b); c. Revising paragraph (c); d. Revising paragraph (d); and e. Adding paragraph (f). The revisions and additions read as follows: § 75.39 Missing data procedures for sorbent trap monitoring systems.

(a)If a primary sorbent trap monitoring system has not been certified by the applicable compliance date specified under a State or Federal Hg mass emission reduction program that adopts the requirements of subpart I of this part, and if quality-assured Hg concentration data from a certified backup Hg monitoring system, reference method, or approved alternative monitoring system are unavailable, the owner or operator shall report the maximum potential Hg concentration, as defined in section 2.1.7 of appendix A to this part, until the primary system is certified.

(b)For a certified sorbent trap system, a missing data period will occur in the following circumstances, unless quality-assured Hg concentration data from a certified backup Hg CEMS, sorbent trap system, reference method, or approved alternative monitoring system are available:

(1)A gas sample is not extracted from the stack during unit operation (e.g., during a monitoring system malfunction or when the system undergoes maintenance); or

(2)The results of the Hg analysis for the paired sorbent traps are missing or invalid (as determined using the quality assurance procedures in appendix K to this part). The missing data period begins with the hour in which the paired sorbent traps for which the Hg analysis is missing or invalid were put into service. The missing data period ends at the first hour in which valid Hg concentration data are obtained with another pair of sorbent traps (i.e., the hour at which this pair of traps was placed in service), or with a certified backup Hg CEMS, reference method, or approved alternative monitoring system.

(c)*Initial missing data procedures.* Use the missing data procedures in § 75.31(b) until 720 hours of quality-assured Hg concentration data have been collected with the sorbent trap monitoring system(s), following initial certification.

(d)*Standard missing data procedures.* Once 720 quality-assured hours of data have been obtained with the sorbent trap system(s), begin reporting the percent monitor data availability in accordance with § 75.32 and switch from the initial missing data procedures in paragraph

(c)of this section to the standard missing data procedures in § 75.38.

(f)In cases where the owner or operator elects to use a primary Hg CEMS and a certified redundant (or non-redundant) backup sorbent trap monitoring system (or vice-versa), when both the primary and backup monitoring systems are out-of-service and quality-assured Hg concentration data from a temporary like-kind replacement analyzer, reference method, or approved alternative monitoring system are unavailable, the previous 720 quality-assured monitor operating hours reported in the electronic quarterly report under § 75.64 shall be used for the required missing data lookback, irrespective of whether these data were recorded by the Hg CEMS, the sorbent trap system, a temporary like-kind replacement analyzer, a reference method, or an approved alternative monitoring system. 22. Section 75.53 is amended by: a. Revising paragraph (a)(1); b. Removing the phrase “(d) or (f)” and adding in its place the phrase “(f) or (h)” in the second sentence of paragraph (a)(2); c. Adding paragraph (e)(1)(xiv); and d. Adding paragraphs

(g)and (h). The revisions and additions read as follows: § 75.53 Monitoring plan.

(a)* * *

(1)The provisions of paragraphs

(e)and

(f)of this section shall be met through December 31, 2008. The owner or operator shall meet the requirements of paragraphs (a), (b), (e), and

(f)of this section through December 31, 2008, except as otherwise provided in paragraph

(g)of this section. On and after January 1, 2009, the owner or operator shall meet the requirements of paragraphs (a), (b), (g), and

(h)of this section only. In addition, the provisions in paragraphs

(g)and

(h)of this section that support a regulatory option provided in another section of this part must be followed if the regulatory option is used prior to January 1, 2009.

(e)* * *

(1)* * *

(xiv)For each unit with a flow monitor installed on a rectangular stack or duct, if a wall effects adjustment factor

(WAF)is determined and applied to the hourly flow rate data:

(A)Stack or duct width at the test location, ft;

(B)Stack or duct depth at the test location, ft;

(C)Wall effects adjustment factor (WAF), to the nearest 0.0001;

(D)Method of determining the WAF;

(E)WAF Effective date and hour;

(F)WAF no longer effective date and hour (if applicable);

(G)WAF determination date;

(H)Number of WAF test runs;

(I)Number of Method 1 traverse points in the WAF test;

(J)Number of test ports in the WAF test; and

(K)Number of Method 1 traverse points in the reference flow RATA.

(g)*Contents of the monitoring plan.* The requirements of paragraphs

(g)and

(h)of this section shall be met on and after January 1, 2009. Notwithstanding this requirement, the provisions of paragraphs

(g)and

(h)of this section may be implemented prior to January 1, 2009, as follows. In 2008, the owner or operator may opt to record and report the monitoring plan information in paragraphs

(g)and

(h)of this section, in lieu of recording and reporting the information in paragraphs

(e)and

(f)of this section. Each monitoring plan shall contain the information in paragraph (g)(1) of this section in electronic format and the information in paragraph (g)(2) of this section in hardcopy format. Electronic storage of all monitoring plan information, including the hardcopy portions, is permissible provided that a paper copy of the information can be furnished upon request for audit purposes.

(1)*Electronic.*

(i)The facility ORISPL number developed by the Department of Energy and used in the National Allowance Data Base (or equivalent facility ID number assigned by EPA, if the facility does not have an ORISPL number). Also provide the following information for each unit and (as applicable) for each common stack and/or pipe, and each multiple stack and/or pipe involved in the monitoring plan:

(A)A representation of the exhaust configuration for the units in the monitoring plan. Provide the ID number of each unit and assign a unique ID number to each common stack, common pipe multiple stack and/or multiple pipe associated with the unit(s) represented in the monitoring plan. For common and multiple stacks and/or pipes, provide the activation date and deactivation date (if applicable) of each stack and/or pipe;

(B)Identification of the monitoring system location(s) (e.g., at the unit-level, on the common stack, at each multiple stack, etc.). Provide an indicator (“flag”) if the monitoring location is at a bypass stack or in the ductwork (breeching);

(C)The stack exit height

(ft)above ground level and ground level elevation above sea level, and the inside cross-sectional area (ft 2 ) at the flue exit and at the flow monitoring location (for units with flow monitors, only). Also use appropriate codes to indicate the material(s) of construction and the shape(s) of the stack or duct cross-section(s) at the flue exit and (if applicable) at the flow monitor location;

(D)The type(s) of fuel(s) fired by each unit. Indicate the start and (if applicable) end date of combustion for each type of fuel, and whether the fuel is the primary, secondary, emergency, or startup fuel;

(E)The type(s) of emission controls that are used to reduce SO 2 , NO X , Hg, and particulate emissions from each unit. Also provide the installation date, optimization date, and retirement date (if applicable) of the emission controls, and indicate whether the controls are an original installation;

(F)Maximum hourly heat input capacity of each unit; and

(G)A non-load based unit indicator (if applicable) for units that do not produce electrical or thermal output.

(ii)For each monitored parameter (e.g., SO 2 , NO X , flow, etc.) at each monitoring location, specify the monitoring methodology and the missing data approach for the parameter. If the unmonitored bypass stack approach is used for a particular parameter, indicate this by means of an appropriate code. Provide the activation date/hour, and deactivation date/hour (if applicable) for each monitoring methodology and each missing data approach.

(iii)For each required continuous emission monitoring system, each fuel flowmeter system, each continuous opacity monitoring system, and each sorbent trap monitoring system (as defined in § 72.2 of this chapter), identify and describe the major monitoring components in the monitoring system (e.g., gas analyzer, flow monitor, opacity monitor, moisture sensor, fuel flowmeter, DAHS software, etc.). Other important components in the system (e.g., sample probe, PLC, data logger, etc.) may also be represented in the monitoring plan, if necessary. Provide the following specific information about each component and monitoring system:

(A)For each required monitoring system: ( *1* ) Assign a unique, 3-character alphanumeric identification code to the system; ( *2* ) Indicate the parameter monitored by the system; ( *3* ) Designate the system as a primary, redundant backup, non-redundant backup, data backup, or reference method backup system, as provided in § 75.10(e); and ( *4* ) Indicate the system activation date/hour and deactivation date/hour (as applicable).

(B)For each component of each monitoring system represented in the monitoring plan: ( *1* ) Assign a unique, 3-character alphanumeric identification code to the component; ( *2* ) Indicate the manufacturer, model and serial number; ( *3* ) Designate the component type; ( *4* ) For dual-span applications, indicate whether the analyzer component ID represents a high measurement scale, a low scale, or a dual range; ( *5* ) For gas analyzers, indicate the moisture basis of measurement; ( *6* ) Indicate the method of sample acquisition or operation, (e.g., extractive pollutant concentration monitor or thermal flow monitor); and ( *7* ) Indicate the component activation date/hour and deactivation date/hour (as applicable).

(iv)Explicit formulas, using the component and system identification codes for the primary monitoring system, and containing all constants and factors required to derive the required mass emissions, emission rates, heat input rates, etc. from the hourly data recorded by the monitoring systems. Formulas using the system and component ID codes for backup monitoring systems are required only if different formulas for the same parameter are used for the primary and backup monitoring systems (e.g., if the primary system measures pollutant concentration on a different moisture basis from the backup system). Provide the equation number or other appropriate code for each emissions formula (e.g., use code F-1 if Equation F-1 in appendix F to this part is used to calculate SO 2 mass emissions). Also identify each emissions formula with a unique three character alphanumeric code. The formula effective start date/hour and inactivation date/hour (as applicable) shall be included for each formula. The owner or operator of a unit for which the optional low mass emissions excepted methodology in § 75.19 is being used is not required to report such formulas.

(v)For each parameter monitored with CEMS, provide the following information:

(A)Measurement scale (high or low);

(B)Maximum potential value (and method of calculation). If NO X emission rate in lb/mmBtu is monitored, calculate and provide the maximum potential NO X emission rate in addition to the maximum potential NO X concentration;

(C)Maximum expected value (if applicable) and method of calculation;

(D)Span value(s) and full-scale measurement range(s);

(E)Daily calibration units of measure;

(F)Effective date/hour, and (if applicable) inactivation date/hour of each span value;

(G)An indication of whether dual spans are required; and

(H)The default high range value (if applicable) and the maximum allowable low-range value for this option.

(vi)If the monitoring system or excepted methodology provides for the use of a constant, assumed, or default value for a parameter under specific circumstances, then include the following information for each such value for each parameter:

(A)Identification of the parameter;

(B)Default, maximum, minimum, or constant value, and units of measure for the value;

(C)Purpose of the value;

(D)Indicator of use, i.e., during controlled hours, uncontrolled hours, or all operating hours;

(E)Type of fuel;

(F)Source of the value;

(G)Value effective date and hour;

(H)Date and hour value is no longer effective (if applicable); and

(I)For units using the excepted methodology under § 75.19, the applicable SO 2 emission factor.

(vii)Unless otherwise specified in section 6.5.2.1 of appendix A to this part, for each unit or common stack on which hardware CEMS are installed:

(A)Maximum hourly gross load (in MW, rounded to the nearest MW, or steam load in 1000 lb/hr (i.e., klb/hr), rounded to the nearest klb/hr, or thermal output in mmBtu/hr, rounded to the nearest mmBtu/hr), for units that produce electrical or thermal output;

(B)The upper and lower boundaries of the range of operation (as defined in section 6.5.2.1 of appendix A to this part), expressed in megawatts, thousands of lb/hr of steam, mmBtu/hr of thermal output, or ft/sec (as applicable);

(C)Except for peaking units, identify the most frequently and second most frequently used load (or operating) levels (i.e., low, mid, or high) in accordance with section 6.5.2.1 of appendix A to this part, expressed in megawatts, thousands of lb/hr of steam, mmBtu/hr of thermal output, or ft/sec (as applicable);

(D)Except for peaking units, an indicator of whether the second most frequently used load (or operating) level is designated as normal in section 6.5.2.1 of appendix A to this part;

(E)The date of the data analysis used to determine the normal load (or operating) level(s) and the two most frequently-used load (or operating) levels (as applicable); and

(F)Activation and deactivation dates and hours, when the maximum hourly gross load, boundaries of the range of operation, normal load (or operating) level(s) or two most frequently-used load (or operating) levels change and are updated.

(viii)For each unit for which CEMS are not installed:

(A)Maximum hourly gross load (in MW, rounded to the nearest MW, or steam load in klb/hr, rounded to the nearest klb/hr, or steam load in mmBtu/hr, rounded to the nearest mmBtu/hr);

(B)The upper and lower boundaries of the range of operation (as defined in section 6.5.2.1 of appendix A to this part), expressed in megawatts, mmBtu/hr of thermal output, or thousands of lb/hr of steam;

(C)Except for peaking units and units using the low mass emissions excepted methodology under § 75.19, identify the load level designated as normal, pursuant to section 6.5.2.1 of appendix A to this part, expressed in megawatts, mmBtu/hr of thermal output, or thousands of lb/hr of steam;

(D)The date of the load analysis used to determine the normal load level (as applicable); and

(E)Activation and deactivation dates and hours, when the maximum hourly gross load, boundaries of the range of operation, or normal load level change and are updated.

(ix)For each unit with a flow monitor installed on a rectangular stack or duct, if a wall effects adjustment factor

(WAF)is determined and applied to the hourly flow rate data:

(A)Stack or duct width at the test location, ft;

(B)Stack or duct depth at the test location, ft;

(C)Wall effects adjustment factor (WAF), to the nearest 0.0001;

(D)Method of determining the WAF;

(E)WAF Effective date and hour;

(F)WAF no longer effective date and hour (if applicable);

(G)WAF determination date;

(H)Number of WAF test runs;

(I)Number of Method 1 traverse points in the WAF test;

(J)Number of test ports in the WAF test; and

(K)Number of Method 1 traverse points in the reference flow RATA.

(2)*Hardcopy.*

(i)Information, including (as applicable): Identification of the test strategy; protocol for the relative accuracy test audit; other relevant test information; calibration gas levels (percent of span) for the calibration error test and linearity check; calculations for determining maximum potential concentration, maximum expected concentration (if applicable), maximum potential flow rate, maximum potential NO X emission rate, and span; and apportionment strategies under §§ 75.10 through 75.18.

(ii)Description of site locations for each monitoring component in the continuous emission or opacity monitoring systems, including schematic diagrams and engineering drawings specified in paragraphs (e)(2)(iv) and (e)(2)(v) of this section and any other documentation that demonstrates each monitor location meets the appropriate siting criteria.

(iii)A data flow diagram denoting the complete information handling path from output signals of CEMS components to final reports.

(iv)For units monitored by a continuous emission or opacity monitoring system, a schematic diagram identifying entire gas handling system from boiler to stack for all affected units, using identification numbers for units, monitoring systems and components, and stacks corresponding to the identification numbers provided in paragraphs (g)(1)(i) and (g)(1)(iii) of this section. The schematic diagram must depict stack height and the height of any monitor locations. Comprehensive and/or separate schematic diagrams shall be used to describe groups of units using a common stack.

(v)For units monitored by a continuous emission or opacity monitoring system, stack and duct engineering diagrams showing the dimensions and location of fans, turning vanes, air preheaters, monitor components, probes, reference method sampling ports, and other equipment that affects the monitoring system location, performance, or quality control checks.

(h)*Contents of monitoring plan for specific situations.* The following additional information shall be included in the monitoring plan for the specific situations described:

(1)For each gas-fired unit or oil-fired unit for which the owner or operator uses the optional protocol in appendix D to this part for estimating heat input and/or SO 2 mass emissions, or for each gas-fired or oil-fired peaking unit for which the owner/operator uses the optional protocol in appendix E to this part for estimating NO X emission rate (using a fuel flowmeter), the designated representative shall include the following additional information for each fuel flowmeter system in the monitoring plan:

(i)*Electronic.*

(A)Parameter monitored;

(B)Type of fuel measured, maximum fuel flow rate, units of measure, and basis of maximum fuel flow rate (i.e., upper range value or unit maximum) for each fuel flowmeter;

(C)Test method used to check the accuracy of each fuel flowmeter;

(D)Monitoring system identification code;

(E)The method used to demonstrate that the unit qualifies for monthly GCV sampling or for daily or annual fuel sampling for sulfur content, as applicable; and

(F)Activation date/hour and (if applicable) inactivation date/hour for the fuel flowmeter system;

(ii)*Hardcopy.*

(A)A schematic diagram identifying the relationship between the unit, all fuel supply lines, the fuel flowmeter(s), and the stack(s). The schematic diagram must depict the installation location of each fuel flowmeter and the fuel sampling location(s). Comprehensive and/or separate schematic diagrams shall be used to describe groups of units using a common pipe;

(B)For units using the optional default SO 2 emission rate for “pipeline natural gas” or “natural gas” in appendix D to this part, the information on the sulfur content of the gaseous fuel used to demonstrate compliance with either section 2.3.1.4 or 2.3.2.4 of appendix D to this part;

(C)For units using the 720 hour test under 2.3.6 of Appendix D of this part to determine the required sulfur sampling requirements, report the procedures and results of the test; and

(D)For units using the 720 hour test under 2.3.5 of Appendix D of this part to determine the appropriate fuel GCV sampling frequency, report the procedures used and the results of the test.

(2)For each gas-fired peaking unit and oil-fired peaking unit for which the owner or operator uses the optional procedures in appendix E to this part for estimating NO X emission rate, the designated representative shall include in the monitoring plan:

(i)*Electronic.* Unit operating and capacity factor information demonstrating that the unit qualifies as a peaking unit, as defined in § 72.2 of this chapter for the current calendar year or ozone season, including: capacity factor data for three calendar years (or ozone seasons) as specified in the definition of peaking unit in § 72.2 of this chapter; the method of qualification used; and an indication of whether the data are actual or projected data.

(ii)*Hardcopy.*

(A)A protocol containing methods used to perform the baseline or periodic NO X emission test; and

(B)Unit operating parameters related to NO X formation by the unit.

(3)For each gas-fired unit and diesel-fired unit or unit with a wet flue gas pollution control system for which the designated representative claims an opacity monitoring exemption under § 75.14, the designated representative shall include in the hardcopy monitoring plan the information specified under § 75.14(b), (c), or (d), demonstrating that the unit qualifies for the exemption.

(4)For each unit using the low mass emissions excepted methodology under § 75.19 the designated representative shall include the following additional information in the monitoring plan that accompanies the initial certification application:

(i)*Electronic.* For each low mass emissions unit, report the results of the analysis performed to qualify as a low mass emissions unit under § 75.19(c). This report will include either the previous three years actual or projected emissions. The following items should be included:

(A)Current calendar year of application;

(B)Type of qualification;

(C)Years one, two, and three;

(D)Annual and/or ozone season measured, estimated or projected NO X mass emissions for years one, two, and three;

(E)Annual measured, estimated or projected SO 2 mass emissions (if applicable) for years one, two, and three; and

(F)Annual or ozone season operating hours for years one, two, and three.

(ii)*Hardcopy.*

(A)A schematic diagram identifying the relationship between the unit, all fuel supply lines and tanks, any fuel flowmeter(s), and the stack(s). Comprehensive and/or separate schematic diagrams shall be used to describe groups of units using a common pipe;

(B)For units which use the long term fuel flow methodology under § 75.19(c)(3), the designated representative must provide a diagram of the fuel flow to each affected unit or group of units and describe in detail the procedures used to determine the long term fuel flow for a unit or group of units for each fuel combusted by the unit or group of units;

(C)A statement that the unit burns only gaseous fuel(s) and/or fuel oil and a list of the fuels that are burned or a statement that the unit is projected to burn only gaseous fuel(s) and/or fuel oil and a list of the fuels that are projected to be burned;

(D)A statement that the unit meets the applicability requirements in § 75.19(a) and (b); and

(E)Any unit historical actual, estimated and projected emissions data and calculated emissions data demonstrating that the affected unit qualifies as a low mass emissions unit under § 75.19(a) and 75.19(b).

(5)For qualification as a gas-fired unit, as defined in § 72.2 of this part, the designated representative shall include in the monitoring plan, in electronic format, the following: Current calendar year, fuel usage data for three calendar years (or ozone seasons) as specified in the definition of gas-fired in § 72.2 of this part, the method of qualification used, and an indication of whether the data are actual or projected data.

(6)For each monitoring location with a stack flow monitor that is exempt from performing 3-load flow RATAs (peaking units, bypass stacks, or by petition) the designated representative shall include in the monitoring plan an indicator of exemption from 3-load flow RATA using the appropriate exemption code. 23. Section 75.57 is amended by: a. Adding the phrase “, or mmBtu/hr of thermal output, rounded to the nearest mmBtu/hr” after the phrase “rounded to the nearest 1000 lb/hr”, in paragraph (b)(3); b. Revising Table 4a in paragraph (c)(4)(iv); c. Removing the word “hundredth” and adding in its place the word “tenth” in paragraph (i)(1)(iv); and d. Removing the words “, § 75.12(b),” from paragraphs (i)(2) and (j)(2). The revisions read as follows: § 75.57 General recordkeeping provisions.

(c)* * *

(4)* * *

(iv)* * * Table 4a.—Codes for Method of Emissions and Flow Determination Code Hourly emissions/flow measurement or estimation method 1 Certified primary emission/flow monitoring system. 2 Certified backup emission/flow monitoring system. 3 Approved alternative monitoring system. 4 Reference method: SO 2 : Method 6C. Flow: Method 2 or its allowable alternatives under appendix A to part 60 of this chapter. NO X : Method 7E. CO 2 or O 2 : Method 3A. 5 For units with add-on SO 2 and/or NO X emission controls: SO 2 concentration or NO X emission rate estimate from Agency preapproved parametric monitoring method. 6 Average of the hourly SO 2 concentrations, CO 2 concentrations, O 2 concentrations, NO X concentrations, flow rates, moisture percentages or NO X emission rates for the hour before and the hour following a missing data period. 7 Initial missing data procedures used. Either:

(a)the average of the hourly SO 2 concentration, CO 2 concentration, O 2 concentration, or moisture percentage for the hour before and the hour following a missing data period; or

(b)the arithmetic average of all NO X concentration, NO X emission rate, or flow rate values at the corresponding load range (or a higher load range), or at the corresponding operational bin (non-load-based units, only); or

(c)the arithmetic average of all previous NO X concentration, NO X emission rate, or flow rate values (non-load-based units, only). 8 90th percentile hourly SO 2 concentration, CO 2 concentration, NO X concentration, flow rate, moisture percentage, or NO X emission rate or 10th percentile hourly O 2 concentration or moisture percentage in the applicable lookback period (moisture missing data algorithm depends on which equations are used for emissions and heat input). 9 95th percentile hourly SO 2 concentration, CO 2 concentration, NO X concentration, flow rate, moisture percentage, or NO X emission rate or 5th percentile hourly O 2 concentration or moisture percentage in the applicable lookback period (moisture missing data algorithm depends on which equations are used for emissions and heat input). 10 Maximum hourly SO 2 concentration, CO 2 concentration, NO X concentration, flow rate, moisture percentage, or NO X emission rate or minimum hourly O 2 concentration or moisture percentage in the applicable lookback period (moisture missing data algorithm depends on which equations are used for emissions and heat input). 11 Average of hourly flow rates, NO X concentrations or NO X emission rates in corresponding load range, for the applicable lookback period. For non-load-based units, report either the average flow rate, NO X concentration or NO X emission rate in the applicable lookback period, or the average flow rate or NO X value at the corresponding operational bin (if operational bins are used). 12 Maximum potential concentration of SO 2 , maximum potential concentration of CO 2 , maximum potential concentration of NO X maximum potential flow rate, maximum potential NO X emission rate, maximum potential moisture percentage, minimum potential O 2 concentration or minimum potential moisture percentage, as determined using § 72.2 of this chapter and section 2.1 of appendix A to this part (moisture missing data algorithm depends on which equations are used for emissions and heat input). 13 Maximum expected concentration of SO 2 , maximum expected concentration of NO X , maximum expected Hg concentration, or maximum controlled NO X emission rate. ( *See* § 75.34(a)(5)). 14 Diluent cap value (if the cap is replacing a CO 2 measurement, use 5.0 percent for boilers and 1.0 percent for turbines; if it is replacing an O 2 measurement, use 14.0 percent for boilers and 19.0 percent for turbines). 15 1.25 times the maximum hourly controlled SO 2 concentration, Hg concentration, NO X concentration at the corresponding load or operational bin, or NO X emission rate at the corresponding load or operational bin, in the applicable lookback period ( *See* § 75.34(a)(5)). 16 SO 2 concentration value of 2.0 ppm during hours when only “very low sulfur fuel”, as defined in § 72.2 of this chapter, is combusted. 17 Like-kind replacement non-redundant backup analyzer. 19 200 percent of the MPC; default high range value. 20 200 percent of the full-scale range setting (full-scale exceedance of high range). 21 Negative hourly CO 2 concentration, SO 2 concentration, NO X concentration, percent moisture, or NO X emission rate replaced with zero. 22 Hourly average SO 2 or NO X concentration, measured by a certified monitor at the control device inlet (units with add-on emission controls only). 23 Maximum potential SO 2 concentration, NO X concentration, CO 2 concentration, NO X emission rate or flow rate, or minimum potential O 2 concentration or moisture percentage, for an hour in which flue gases are discharged through an unmonitored bypass stack. 24 Maximum expected NO X concentration, or maximum controlled NO X emission rate for an hour in which flue gases are discharged downstream of the NO X emission controls through an unmonitored bypass stack, and the add-on NO X emission controls are confirmed to be operating properly. 25 Maximum potential NO X emission rate (MER). (Use only when a NO X concentration full-scale exceedance occurs and the diluent monitor is unavailable.) 26 1.0 mmBtu/hr substituted for Heat Input Rate for an operating hour in which the calculated Heat Input Rate is zero or negative. 32 Hourly Hg concentration determined from analysis of a single trap multiplied by a factor of 1.111 when one of the paired traps is invalidated or damaged ( *See* Appendix K, section 8). 33 Hourly Hg concentration determined from the trap resulting in the higher Hg concentration when the relative deviation criterion for the paired traps is not met ( *See* Appendix K, section 8). 40 Fuel specific default value (or prorated default value) used for the hour. 54 Other quality assured methodologies approved through petition. These hours are included in missing data lookback and are treated as unavailable hours for percent monitor availability calculations. 55 Other substitute data approved through petition. These hours are not included in missing data lookback and are treated as unavailable hours for percent monitor availability calculations. 24. Section 75.58 is amended by: a. Revising paragraph (b)(3) introductory text; b. Removing paragraphs (b)(3)(iii) and (b)(3)(iv); c. Removing the word “and” from paragraph (c)(1)(xii); d. Removing the period and adding in its place a semicolon and adding the word “and” to the end of the paragraph, in paragraph (c)(1)(xiii); e. Adding paragraph (c)(1)(xiv); f. Removing the period and adding in its place a semicolon and adding the word “and” to the end of the paragraph, in paragraph (c)(4)(x); g. Adding paragraph (c)(4)(xi); h. Removing the words “rounded to the nearest hundredth for diesel fuel” and adding in its place the words “rounded to either the nearest hundredth, or nearest ten-thousandth for diesel fuels” in paragraph (c)(5)(ii); i. Removing the word “and” after the semicolon in paragraph (d)(1)(ix). j. Removing the period and adding in its place a semicolon and adding the word “and” to the end of the paragraph, in paragraph (d)(1)(x); k. Adding paragraph (d)(1)(xi); l. Removing the word “and” after the semicolon in paragraph (d)(2)(ix); m. Removing the period and adding in its place a semicolon and adding the word “and” to the end of the paragraph, in paragraph (d)(2)(x); n. Adding paragraph (d)(2)(xi); o. Revising paragraph (f)(1)(iii); p. Removing the word “and” at the end of paragraph (f)(1)(xi); q. Removing the period and adding in its place a semicolon at the end of paragraph (f)(1)(xii); r. Adding paragraphs (f)(1)(xiii) and (f)(1)(xiv); and s. Removing the word “Component” and adding in its place the word “Monitoring”, in paragraph (f)(2)(x). The revisions and additions read as follows: § 75.58 General recordkeeping provisions for specific situations.

(b)* * *

(3)Except as otherwise provided in § 75.34(d), for units with add-on SO 2 or NO X emission controls following the provisions of § 75.34(a)(1), (a)(2), (a)(3) or (a)(5), and for units with add-on Hg emission controls, the owner or operator shall record:

(c)* * *

(1)* * *

(xiv)Heat input formula ID and SO 2 Formula ID (required beginning January 1, 2009).

(4)* * *

(xi)Heat input formula ID and SO 2 Formula ID (required beginning January 1, 2009).

(d)* * *

(1)* * *

(xi)Heat input rate formula ID (required beginning January 1, 2009).

(2)* * *

(xi)Heat input rate formula ID (required beginning January 1, 2009).

(f)* * *

(1)* * *

(iii)Fuel type (pipeline natural gas, natural gas, other gaseous fuel, residual oil, or diesel fuel). If more than one type of fuel is combusted in the hour, either:

(A)Indicate the fuel type which results in the highest emission factors for NO X (this option is in effect through December 31, 2008); or

(B)Indicate the fuel type resulting in the highest emission factor for each parameter (SO 2 , NO X emission rate, and CO 2 ) separately (this option is required on and after January 1, 2009);

(xiii)Base or peak load indicator (as applicable); and

(xiv)Multiple fuel flag. 25. Section 75.59 is amended by: a. Adding the phrase “(on and after January 1, 2009, only the component identification code is required)” after the word “code”, in paragraph (a)(1)(i); b. Revising paragraph (a)(1)(viii); c. Removing the phrase “For the qualifying test for off-line calibration, the owner or operator shall indicate” and adding in its place the phrase “Indication of”, in paragraph (a)(1)(xi); d. Adding the phrase “(after January 1, 2009, only the component identification code is required)” after the word “code”, in paragraph (a)(2)(i); e. Adding the phrase “(on and after January 1, 2009, only the component identification code is required)” after the word “code”, in paragraph (a)(3)(i); f. Adding the phrase “(only span scale is required on and after January 1, 2009)” after the word “scale”, in paragraph (a)(3)(ii); g. Adding the phrase “(on and after January 1, 2009, only the system identification code is required)” after the word “code”, in paragraph (a)(4)(i); h. Removing the word “and” after the semicolon at the end of paragraph (a)(4)(vi)(L); i. Removing the period and adding in its place a semicolon and adding the word “and” at the end of paragraph (a)(4)(vi)(M); j. Adding paragraph (a)(4)(vi)(N); k. Removing the word “and” after the semicolon, at the end of paragraph (a)(4)(vii)(K); l. Removing the period and adding in its place a semicolon and adding the word “and” at the end of paragraph (a)(4)(vii)(L); m. Adding paragraph (a)(4)(vii)(M); n. Revising paragraph (a)(6) introductory text; o. Adding the phrase “(on and after January 1, 2009, only the component identification code is required)” after the word “code”, in paragraph (a)(6)(i); p. Removing the phrase “Cycle time result for the entire system” and adding in its place the phrase “Total cycle time”, in paragraph (a)(6)(ix); q. Revising the heading of reserved paragraph (a)(7)(viii); r. Adding paragraphs (a)(7)(ix) and (a)(7)(x); s. Revising paragraph (a)(8); t. Removing and reserving paragraph (a)(12)(iii); u. Removing the number “(2)” from the paragraph identifier “§ 75.64(a)(2)” in the second sentence of paragraph (a)(13); v. Adding the phrase “(on and after January 1, 2009, only the component identification code is required)” after the word “tested”, in paragraphs (b)(1)(ii) and (b)(2)(i); w. Adding the phrase “(on and after January 1, 2009, only the monitoring system identification code is required)” after the word “code”, in paragraph (b)(4)(i)(A); x. Removing the word “and” after the semicolon at the end of paragraph (b)(4)(i)(H); y. Removing the period and adding in its place a semicolon and adding the word “and” at the end of paragraph (b)(4)(i)(I); z. Adding paragraph (b)(4)(i)(J); aa. Revising paragraphs (b)(4)(ii)(A), (b)(4)(ii)(B), and (b)(4)(ii)(F); bb. Removing the word “and” after the semicolon at the end of paragraph (b)(4)(ii)(L); cc. Removing the period and adding in its place a semicolon and adding the word “and” at the end of paragraph (b)(4)(ii)(M); dd. Adding paragraph (b)(4)(ii)(N); ee. Adding the phrase “(on and after January 1, 2009, component identification codes shall be reported in addition to the monitoring system identification code)” after the second occurrence of the word “system” in paragraphs (b)(5)(i)(B), (b)(5)(ii)(B), and (b)(5)(iii)(B); ff. Adding the phrase “This requirement remains in effect through December 31, 2008” after the word “run;”, in paragraph (b)(5)(i)(H); gg. Adding the phrase “(as applicable). This requirement remains in effect through December 31, 2008” after the word “level”, in paragraph (b)(5)(iv)(A); hh. Removing the word “and” after the semicolon at the end of paragraph (b)(5)(iv)(G); ii. Removing the period and adding in its place a semicolon and adding the word “and” at the end of paragraph (b)(5)(iv)(H); jj. Adding paragraph (b)(5)(iv)(I); kk. Removing the word “and” after the semicolon at the end of paragraph (d)(1)(xi); ll. Removing the period and adding in its place a semicolon and adding the word “and” at the end of paragraph (d)(1)(xii); mm. Adding paragraph (d)(1)(xiii); nn. Removing the phrase “, multiplied by 1.15, if appropriate” from paragraph (d)(2)(iii); oo. Removing the word “and” after the semicolon at the end of paragraph (d)(2)(iv); pp. Removing the period and adding in its place a semicolon at the end of paragraph (d)(2)(v); and qq. Adding paragraphs (d)(2)(vi), (d)(2)(vii),

(e)and (f). The revisions and additions read as follows: § 75.59 Certification, quality, assurance, and quality control record provisions.

(a)* * *

(1)* * *

(viii)For 7-day calibration error tests, a test number and reason for test;

(4)* * *

(vi)* * *

(N)Test number.

(vii)* * *

(M)An indicator (“flag”) if separate reference ratios are calculated for each multiple stack.

(6)For each SO 2 , NO X , Hg, or CO 2 pollutant concentration monitor, each component of a NO X -diluent continuous emission monitoring system, and each CO 2 or O 2 monitor used to determine heat input, the owner or operator shall record the following information for the cycle time test:

(7)* * *

(viii)Data elements for Methods 30A and 30B. [Reserved]

(ix)For a unit with a flow monitor installed on a rectangular stack or duct, if a site-specific default or measured wall effects adjustment factor

(WAF)is used to correct the stack gas volumetric flow rate data to account for velocity decay near the stack or duct wall, the owner or operator shall keep records of the following for each flow RATA performed with EPA Method 2 in appendices A-1 and A-2 to part 60 of this chapter, subsequent to the WAF determination:

(A)Monitoring system ID;

(B)Test number;

(C)Operating level;

(D)RATA end date and time;

(E)Number of Method 1 traverse points; and

(F)Wall effects adjustment factor (WAF), to the nearest 0.0001.

(x)For each RATA run using Method 29 in appendix A-8 to part 60 of this chapter to determine Hg concentration:

(A)Percent CO 2 and O 2 in the stack gas, dry basis;

(B)Moisture content of the stack gas (percent H 2 O);

(C)Average stack gas temperature (°F);

(D)Dry gas volume metered (dscm);

(E)Percent isokinetic;

(F)Particulate Hg collected in the front half of the sampling train, corrected for the front-half blank value (μg); and

(G)Total vapor phase Hg collected in the back half of the sampling train, corrected for the back-half blank value (μg).

(8)For each certified continuous emission monitoring system, continuous opacity monitoring system, excepted monitoring system, or alternative monitoring system, the date and description of each event which requires certification, recertification, or certain diagnostic testing of the system and the date and type of each test performed. If the conditional data validation procedures of § 75.20(b)(3) are to be used to validate and report data prior to the completion of the required certification, recertification, or diagnostic testing, the date and hour of the probationary calibration error test shall be reported to mark the beginning of conditional data validation.

(b)* * *

(4)* * *

(i)* * *

(J)Test number.

(ii)* * *

(A)Completion date and hour of most recent primary element inspection or test number of the most recent primary element inspection (as applicable); (on and after January 1, 2009, the test number of the most recent primary element inspection is required in lieu of the completion date and hour for the most recent primary element inspection);

(B)Completion date and hour of most recent flow meter of transmitter accuracy test or test number of the most recent flowmeter or transmitter accuracy test (as applicable); (on and after January 1, 2009, the test number of the most recent flowmeter or transmitter accuracy test is required in lieu of the completion date and hour for the most recent flowmeter or transmitter accuracy test);

(F)Average load, in megawatts, 1000 lb/hr of steam, or mmBtu/hr thermal output;

(N)Monitoring system identification code.

(5)* * *

(iv)* * *

(I)Component identification code (required on and after January 1, 2009).

(d)* * *

(1)* * *

(xiii)An indicator (“flag”) if the run is used to calculate the highest 3-run average NO X emission rate at any load level.

(2)* * *

(vi)Indicator of whether the testing was done at base load, peak load or both (if appropriate); and

(vii)The default NO X emission rate for peak load hours (if applicable).

(e)*Excepted monitoring for Hg low mass emission units under § 75.81(b).* For qualifying coal-fired units using the alternative low mass emission methodology under § 75.81(b), the owner or operator shall record the data elements described in § 75.59(a)(7)(vii), § 75.59(a)(7)(viii), or § 75.59(a)(7)(x), as applicable, for each run of each Hg emission test and re-test required under § 75.81(c)(1) or § 75.81(d)(4)(iii).

(f)*DAHS Verification.* For each DAHS (missing data and formula) verification that is required for initial certification, recertification, or for certain diagnostic testing of a monitoring system, record the date and hour that the DAHS verification is successfully completed. (This requirement only applies to units that report monitoring plan data in accordance with § 75.53(g) and (h).) 26. Section 75.60 is amended by adding paragraph (b)(8) to read as follows: § 75.60 General provisions.

(b)* * *

(8)*Routine retest reports for Hg low mass emissions units.* If requested in writing (or by electronic mail) by the applicable EPA Regional Office, appropriate State, and/or appropriate local air pollution control agency, the designated representative shall submit a hardcopy report for a semiannual or annual retest required under § 75.81(d)(4)(iii) for a Hg low mass emissions unit, within 45 days after completing the test or within 15 days of receiving the request, whichever is later. The designated representative shall report, at a minimum, the following hardcopy information to the applicable EPA Regional Office, appropriate State, and/or appropriate local air pollution control agency that requested the hardcopy report: a summary of the test results; the raw reference method data for each test run; the raw data and results of all pretest, post-test, and post-run quality-assurance checks of the reference method; the raw data and results of moisture measurements made during the test runs (if applicable); diagrams illustrating the test and sample point locations; a copy of the test protocol used; calibration certificates for the gas standards or standard solutions used in the testing; laboratory calibrations of the source sampling equipment; and the names of the key personnel involved in the test program, including test team members, plant contact persons, agency representatives and test observers. 27. Section 75.61 is amended by: a. Revising the first sentence of paragraph (a)(1) introductory text; b. Revising paragraph (a)(3); c. Revising the first sentence of paragraph (a)(5) introductory text; and d. Adding paragraphs (a)(7) and (a)(8) The revisions and additions read as follows: § 75.61 Notifications.

(a)* * *

(1)** * ** The owner or operator or designated representative for an affected unit shall submit written notification of initial certification tests and revised test dates as specified in § 75.20 for continuous emission monitoring systems, for the excepted Hg monitoring methodology under § 75.81(b), for alternative monitoring systems under subpart E of this part, or for excepted monitoring systems under appendix E to this part, except as provided in paragraphs (a)(1)(iii), (a)(1)(iv) and (a)(4) of this section. * * *

(3)*Unit shutdown and recommencement of commercial operation.* For an affected unit that will be shut down on the relevant compliance date specified in § 75.4 or in a State or Federal pollutant mass emissions reduction program that adopts the monitoring and reporting requirements of this part, if the owner or operator is relying on the provisions in § 75.4(d) to postpone certification testing, the designated representative for the unit shall submit notification of unit shutdown and recommencement of commercial operation as follows:

(i)For planned unit shutdowns (e.g., extended maintenance outages), written notification of the planned shutdown date shall be provided at least 21 days prior to the applicable compliance date, and written notification of the planned date of recommencement of commercial operation shall be provided at least 21 days in advance of unit restart. If the actual shutdown date or the actual date of recommencement of commercial operation differs from the planned date, written notice of the actual date shall be submitted no later than 7 days following the actual date of shutdown or of recommencement of commercial operation, as applicable;

(ii)For unplanned unit shutdowns (e.g., forced outages), written notification of the actual shutdown date shall be provided no more than 7 days after the shutdown, and written notification of the planned date of recommencement of commercial operation shall be provided at least 21 days in advance of unit restart. If the actual date of recommencement of commercial operation differs from the expected date, written notice of the actual date shall be submitted no later than 7 days following the actual date of recommencement of commercial operation.

(5)* * * The owner or operator or designated representative of an affected unit shall submit written notice of the date of periodic relative accuracy testing performed under section 2.3.1 of appendix B to this part, of periodic retesting performed under section 2.2 of appendix E to this part, of periodic retesting of low mass emissions units performed under § 75.19(c)(1)(iv)(D), and of periodic retesting of Hg low mass emissions units performed under § 75.81(d)(4)(iii), no later than 21 days prior to the first scheduled day of testing. * * *

(7)*Long-term cold storage and recommencement of commercial operation.* The designated representative for an affected unit that is placed into long-term cold storage that is relying on the provisions in § 75.4(d) or § 75.64(a), either to postpone certification testing or to discontinue the submittal of quarterly reports during the period of long-term cold storage, shall provide written notification of long-term cold storage status and recommencement of commercial operation as follows:

(i)Whenever an affected unit has been placed into long-term cold storage, written notification of the date and hour that the unit was shutdown and a statement from the designated representative stating that the shutdown is expected to last for at least two years from that date, in accordance with the definition for long-term cold storage of a unit as provided in § 72.2 of this chapter.

(ii)Whenever an affected unit that has been placed into long-term cold storage is expected to resume operation, written notification shall be submitted 45 calendar days prior to the planned date of recommencement of commercial operation. If the actual date of recommencement of commercial operation differs from the expected date, written notice of the actual date shall be submitted no later than 7 days following the actual date of recommencement of commercial operation.

(8)*Certification deadline date for new or newly affected units.* The designated representative of a new or newly affected unit shall provide notification of the date on which the relevant deadline for initial certification is reached, either as provided in § 75.4(b) or § 75.4(c), or as specified in a State or Federal SO 2 , NO X , or Hg mass emission reduction program that incorporates by reference, or otherwise adopts, the monitoring, recordkeeping, and reporting requirements of subpart F, G, H, or I of this part. The notification shall be submitted no later than 7 calendar days after the applicable certification deadline is reached. 28. Section 75.62 is amended by: a. Revising paragraph (a)(1); and b. Removing the number “45” and adding in its place the number “21” before the phrase “days prior”, in paragraph (a)(2). The revisions read as follows: § 75.62 Monitoring plan submittals.

(a)* * *

(1)*Electronic.* Using the format specified in paragraph

(c)of this section, the designated representative for an affected unit shall submit a complete, electronic, up-to-date monitoring plan file (except for hardcopy portions identified in paragraph (a)(2) of this section) to the Administrator as follows: no later than 21 days prior to the initial certification tests; at the time of each certification or recertification application submission; and (prior to or concurrent with) the submittal of the electronic quarterly report for a reporting quarter where an update of the electronic monitoring plan information is required, either under § 75.53(b) or elsewhere in this part. 29. Section 75.63 is amended by: a. Removing the phrase “and a hardcopy certification application form (EPA form 7610-14)” from paragraph (a)(1)(i)(A); b. Revising paragraph (a)(1)(ii)(A); c. Adding the phrase “or § 75.53(h)(4)(ii) (as applicable)” after the identifier “§ 75.53(f)(5)(ii)”, in paragraph (a)(1)(ii)(B); d. Removing the phrase “and a hardcopy certification application form (EPA form 7610-14)” after the word “section”, in paragraph (a)(2)(i); e. Revising paragraph (a)(2)(iii); f. Removing and reserving paragraph (b)(2)(iii); g. Revising paragraph (b)(2)(iv). The revisions read as follows: § 75.63 Initial certification or recertification application.

(a)* * *

(1)* * *

(ii)* * *

(A)To the Administrator, the electronic low mass emission qualification information required by § 75.53(f)(5)(i) or § 75.53(h)(4)(i) (as applicable) and paragraph (b)(1)(i) of this section; and

(2)* * *

(iii)Notwithstanding the requirements of paragraphs (a)(2)(i) and (a)(2)(ii) of this section, for an event for which the Administrator determines that only diagnostic tests ( *see* § 75.20(b)) are required rather than recertification testing, no hardcopy submittal is required; however, the results of all diagnostic test(s) shall be submitted prior to or concurrent with the electronic quarterly report required under § 75.64. Notwithstanding the requirement of § 75.59(e), for DAHS (missing data and formula) verifications, no hardcopy submittal is required; the owner or operator shall keep these test results on-site in a format suitable for inspection.

(b)* * *

(2)* * *

(iv)Designated representative signature certifying the accuracy of the submission. 30. Section 75.64 is amended by: a. Revising paragraph

(a)introductory text; b. Redesignate paragraph (a)(2)(xiv) as paragraph (a)(2)(xiii); c. Revise newly designated paragraph (a)(2)(xiii); d. Removing paragraph (a)(8); e. Redesignating paragraphs (a)(9) through (a)(11) as paragraphs (a)(13) through (a)(15), and redesignating paragraphs (a)(3) through (a)(7) as paragraphs (a)(8) through (a)(12); f. Adding new paragraphs (a)(3) through (a)(7); and g. Removing the citation “§ 75.59”, and adding in its place “§ 75.58(f)(2)” at the end of newly designated paragraph (a)(14). The revisions and additions read as follows: § 75.64 Quarterly reports.

(a)*Electronic submission.* The designated representative for an affected unit shall electronically report the data and information in paragraphs (a), (b), and

(c)of this section to the Administrator quarterly, beginning with the data from the earlier of the calendar quarter corresponding to the date of provisional certification or the calendar quarter corresponding to the relevant deadline for initial certification in § 75.4(a), (b), or (c). The initial quarterly report shall contain hourly data beginning with the hour of provisional certification or the hour corresponding to the relevant certification deadline, whichever is earlier. For an affected unit subject to § 75.4(d) that is shutdown on the relevant compliance date in § 75.4(a) or has been placed in long-term cold storage (as defined in § 72.2 of this chapter), quarterly reports are not required. In such cases, the owner or operator shall submit quarterly reports for the unit beginning with the data from the quarter in which the unit recommences commercial operation (where the initial quarterly report contains hourly data beginning with the first hour of recommenced commercial operation of the unit). For units placed into long-term cold storage during a reporting quarter, the exemption from submitting quarterly reports begins with the calendar quarter following the date that the unit is placed into long-term cold storage. For any provisionally-certified monitoring system, § 75.20(a)(3) shall apply for initial certifications, and § 75.20(b)(5) shall apply for recertifications. Each electronic report must be submitted to the Administrator within 30 days following the end of each calendar quarter. Prior to January 1, 2008, each electronic report shall include for each affected unit (or group of units using a common stack), the information provided in paragraphs (a)(1), (a)(2), and (a)(8) through (a)(15) of this section. During the time period of January 1, 2008 to January 1, 2009, each electronic report shall include, either the information provided in paragraphs (a)(1), (a)(2), and (a)(8) through (a)(15) of this section or the information provided in paragraphs (a)(3) through (a)(15) of this section. On and after January 1, 2009, the owner or operator shall meet the requirements of paragraphs (a)(3) through (a)(15) of this section only. Each electronic report shall also include the date of report generation.

(2)* * *

(xiii)Supplementary RATA information required under § 75.59(a)(7), except that:

(A)The applicable data elements under § 75.59(a)(7)(ii)(A) through

(T)and under § 75.59(a)(7)(iii)(A) through

(M)shall be reported for flow RATAs at circular or rectangular stacks (or ducts) in which angular compensation for yaw and/or pitch angles is used (i.e., Method 2F or 2G in appendices A-1 and A-2 to part 60 of this chapter), with or without wall effects adjustments;

(B)The applicable data elements under § 75.59(a)(7)(ii)(A) through

(T)and under § 75.59(a)(7)(iii)(A) through

(C)The data under § 75.59(a)(7)(ii)(T) shall be reported for all flow RATAs at circular stacks in which Method 2 in appendices A-1 and A-2 to part 60 of this chapter is used and a default wall effects adjustment factor is applied; and

(D)The data under § 75.59(a)(7)(ix)(A) through

(F)shall be reported for all flow RATAs at rectangular stacks or ducts in which Method 2 in appendices A-1 and A-2 to part 60 of this chapter is used and a wall effects adjustment factor is applied.

(3)Facility identification information, including:

(i)Facility/ORISPL number;

(ii)Calendar quarter and year for the data contained in the report; and

(iii)Version of the electronic data reporting format used for the report.

(4)In accordance with § 75.62(a)(1), if any monitoring plan information required in § 75.53 requires an update, either under § 75.53(b) or elsewhere in this part, submission of the electronic monitoring plan update shall be completed prior to or concurrent with the submittal of the quarterly electronic data report for the appropriate quarter in which the update is required.

(5)Except for the daily calibration error test data, daily interference check, and off-line calibration demonstration information required in § 75.59(a)(1) and (2), which must always be submitted with the quarterly report, the certification, quality assurance, and quality control information required in § 75.59 shall either be submitted prior to or concurrent with the submittal of the relevant quarterly electronic data report.

(6)The information and hourly data required in §§ 75.57 through 75.59, and daily calibration error test data, daily interference check, and off-line calibration demonstration information required in § 75.59(a)(1) and (2).

(7)Notwithstanding the requirements of paragraphs (a)(4) through (a)(6) of this section, the following information is excluded from electronic reporting:

(i)Descriptions of adjustments, corrective action, and maintenance;

(ii)Information which is incompatible with electronic reporting (e.g., field data sheets, lab analyses, quality control plan);

(iii)Opacity data listed in § 75.57(f), and in § 75.59(a)(8);

(iv)For units with SO 2 or NO X add-on emission controls that do not elect to use the approved site-specific parametric monitoring procedures for calculation of substitute data, the information in § 75.58(b)(3);

(v)Information required by § 75.57(h) concerning the causes of any missing data periods and the actions taken to cure such causes;

(vi)Hardcopy monitoring plan information required by § 75.53 and hardcopy test data and results required by § 75.59;

(vii)Records of flow monitor and moisture monitoring system polynomial equations, coefficients, or “K” factors required by § 75.59(a)(5)(vi) or § 75.59(a)(5)(vii);

(viii)Daily fuel sampling information required by § 75.58(c)(3)(i) for units using assumed values under appendix D of this part;

(ix)Information required by §§ 75.59(b)(1)(vi), (vii), (viii), (ix), and (xiii), and (b)(2)(iii) and

(iv)concerning fuel flowmeter accuracy tests and transmitter/transducer accuracy tests;

(x)Stratification test results required as part of the RATA supplementary records under § 75.59(a)(7);

(xi)Data and results of RATAs that are aborted or invalidated due to problems with the reference method or operational problems with the unit and data and results of linearity checks that are aborted or invalidated due to problems unrelated to monitor performance; and

(xii)Supplementary RATA information required under § 75.59(a)(7)(i) through § 75.59(a)(7)(v), except that:

(A)The applicable data elements under § 75.59(a)(7)(ii)(A) through

(T)and under § 75.59(a)(7)(iii)(A) through

(B)The applicable data elements under § 75.59(a)(7)(ii)(A) through

(T)and under § 75.59(a)(7)(iii)(A) through

(D)The data under § 75.59(a)(7)(vii)(A) through

(F)shall be reported for all flow RATAs at rectangular stacks or ducts in which Method 2 in appendices A-1 and A-2 to part 60 of this chapter is used and a wall effects adjustment factor is applied. § 75.66 [Amended] 31. Section 75.66 is amended by removing and reserving paragraph (f). 32. Section 75.71 is amended by: a. Revising the section heading; b. In paragraph (a)(1), by removing the second occurrence of the phrase “CO 2 diluent gas monitor” and adding in its place the phrase “CO 2 diluent gas monitoring system”; c. Removing the phrase “O 2 or CO 2 diluent gas monitor” and adding in its place the phrase “O 2 or CO 2 monitoring system”, in paragraph (a)(2); and d. Revising paragraph (e). The revision reads as follows: § 75.71 Specific provisions for monitoring NO X and heat input for the purpose of calculating NO X mass emissions.

(e)*Low mass emissions units.* Notwithstanding the requirements of paragraphs

(c)and

(d)of this section, for an affected unit using the low mass emissions

(LME)unit under § 75.19 to estimate hourly NO X emission rate, heat input and NO X mass emissions, the owner or operator shall calculate the ozone season NO X mass emissions by summing all of the estimated hourly NO X mass emissions in the ozone season, as determined under § 75.19 (c)(4)(ii)(A), and dividing this sum by 2000 lb/ton. 33. Section 75.72 is amended by: a. Revising the section heading and the introductory text; b. Revising paragraph (c)(3); and c. Removing and reserving paragraph (f). The revisions read as follows: § 75.72 Determination of NO X mass emissions for common stack and multiple stack configurations. The owner or operator of an affected unit shall either: calculate hourly NO X mass emissions (in lbs) by multiplying the hourly NO X emission rate (in lbs/ mmBtu) by the hourly heat input rate (in mmBtu/hr) and the unit or stack operating time (as defined in § 72.2), or, as provided in paragraph

(e)of this section, calculate hourly NO X mass emissions from the hourly NO X concentration (in ppm) and the hourly stack flow rate (in scfh). Only one methodology for determining NO X mass emissions shall be identified in the monitoring plan for each monitoring location at any given time. The owner or operator shall also calculate quarterly and cumulative year-to-date NO X mass emissions and cumulative NO X mass emissions for the ozone season (in tons) by summing the hourly NO X mass emissions according to the procedures in section 8 of appendix F to this part.

(c)* * *

(3)Install, certify, operate, and maintain a NO X -diluent CEMS and a flow monitoring system only on the main stack. If this option is chosen, it is not necessary to designate the exhaust configuration as a multiple stack configuration in the monitoring plan required under § 75.53, since only the main stack is monitored. For each unit operating hour in which the bypass stack is used and the emissions are either uncontrolled (or the add-on controls are not documented to be operating properly), report NO X mass emissions as follows. If the unit heat input is determined using a flow monitor and a diluent monitor, report NO X mass emissions using the maximum potential NO X emission rate, the maximum potential flow rate, and either the maximum potential CO 2 concentration or the minimum potential O 2 concentration (as applicable). The maximum potential NO X emission rate may be specific to the type of fuel combusted in the unit during the bypass (see § 75.33(c)(8)). If the unit heat input is determined using a fuel flowmeter, in accordance with appendix D to this part, report NO X mass emissions as the product of the maximum potential NO X emission rate and the actual measured hourly heat input rate. Alternatively, for a unit with NO X add-on emission controls, for each unit operating hour in which the bypass stack is used but the add-on NO X emission controls are not bypassed, the owner or operator may report the maximum controlled NO X emission rate

(f)[Reserved] 34. Section 75.73 is amended by: a. Revising paragraph (c)(3); b. Removing the number “45” and adding in its place the number “21” in paragraphs (e)(1) and (e)(2); c. Revising paragraph (f)(1) introductory text; d. Removing the phrase “paragraph (a)” and adding in its place the phrase “paragraphs

(a)and (b)” in paragraph (f)(1)(ii) introductory text; and e. Revising paragraph (f)(1)(ii)(K). The revisions read as follows: § 75.73 Recordkeeping and reporting.

(c)* * *

(3)*Contents of the monitoring plan for units not subject to an Acid Rain emissions limitation.* Prior to January 1, 2009, each monitoring plan shall contain the information in § 75.53(e)(1) or § 75.53(g)(1) in electronic format and the information in § 75.53(e)(2) or § 75.53(g)(2) in hardcopy format. On and after January 1, 2009, each monitoring plan shall contain the information in § 75.53(g)(1) in electronic format and the information in § 75.53(g)(2) in hardcopy format, only. In addition, to the extent applicable, prior to January 1, 2009, each monitoring plan shall contain the information in § 75.53(f)(1)(i), (f)(2)(i), and (f)(4) or § 75.53(h)(1)(i), and (h)(2)(i) in electronic format and the information in § 75.53(f)(1)(ii) and (f)(2)(ii) or § 75.53(h)(1)(ii) and (h)(2)(ii) in hardcopy format. On and after January 1, 2009, each monitoring plan shall contain the information in § 75.53(h)(1)(i), and (h)(2)(i) in electronic format and the information in § 75.53(h)(1)(ii) and (h)(2)(ii) in hardcopy format, only. For units using the low mass emissions excepted methodology under § 75.19, prior to January 1, 2009, the monitoring plan shall include the additional information in § 75.53(f)(5)(i) and (f)(5)(ii) or § 75.53(h)(4)(i) and (h)(4)(ii). On and after January 1, 2009, for units using the low mass emissions excepted methodology under § 75.19 the monitoring plan shall include the additional information in § 75.53(h)(4)(i) and (h)(4)(ii), only. Prior to January 1, 2008, the monitoring plan shall also identify, in electronic format, the reporting schedule for the affected unit (ozone season or quarterly), and the beginning and end dates for the reporting schedule. The monitoring plan also shall include a seasonal controls indicator, and an ozone season fuel-switching flag.

(f)* * *

(1)*Electronic submission.* The designated representative for an affected unit shall electronically report the data and information in this paragraph (f)(1) and in paragraphs (f)(2) and

(3)of this section to the Administrator quarterly, unless the unit has been placed in long-term cold storage (as defined in § 72.2 of this chapter). For units placed into long-term cold storage during a reporting quarter, the exemption from submitting quarterly reports begins with the calendar quarter following the date that the unit is placed into long-term cold storage. In such cases, the owner or operator shall submit quarterly reports for the unit beginning with the data from the quarter in which the unit recommences operation (where the initial quarterly report contains hourly data beginning with the first hour of recommenced operation of the unit). Each electronic report must be submitted to the Administrator within 30 days following the end of each calendar quarter. Except as otherwise provided in § 75.64(a)(4) and (a)(5), each electronic report shall include the information provided in paragraphs (f)(1)(i) through (1)(vi) of this section, and shall also include the date of report generation. Prior to January 1, 2009, each report shall include the facility information provided in paragraphs (f)(1)(i)(A) and

(B)of this section, for each affected unit or group of units monitored at a common stack. On and after January 1, 2009, only the facility identification information provided in paragraph (f)(1)(i)(A) of this section is required.

(ii)* * *

(K)Supplementary RATA information required under § 75.59(a)(7), except that: ( *1* ) The applicable data elements under § 75.59(a)(7)(ii)(A) through

(T)and under § 75.59(a)(7)(iii)(A) through

(M)shall be reported for any flow RATA run at a circular stack in which Method 2 in appendices A-1 and A-2 to part 60 of this chapter is used and a wall effects adjustment factor is determined by direct measurement; ( *3* ) The data under § 75.59(a)(7)(ii)(T) shall be reported for all flow RATAs at circular stacks in which Method 2 in appendices A-1 and A-2 to part 60 of this chapter is used and a default wall effects adjustment factor is applied; and ( *4* ) The data under § 75.59(a)(7)(ix)(A) through

(F)shall be reported for all flow RATAs at rectangular stacks or ducts in which Method 2 in appendices A-1 and A-2 to part 60 of this chapter is used and a wall effects adjustment factor is applied. 35. Section 75.74 is amended by: a. Removing the phrase “In the time period prior to the start of the current ozone season (i.e., in the period extending from October 1 of the previous calendar year through April 30 of the current calendar year), the”, and adding in its place the word “The”, in paragraph (c)(2) introductory text; b. Adding the words “in the second calendar quarter no later than April 30” to the end of paragraph (c)(2)(i) introductory text; c. Removing the phrase “of the current calendar year” from the first sentence, and removing the last sentence of paragraph (c)(2)(i)(C); d. Revising paragraph (c)(2)(i)(D); e. Adding the words “in the first or second calendar quarter, but no later than April 30” to the end of the first sentence, and by removing the second sentence of paragraph (c)(2)(ii) introductory text; f. Removing the words “of the current calendar year” from paragraph (c)(2)(ii)(E); g. Revising paragraph (c)(2)(ii)(F); h. Removing paragraphs (c)(2)(ii)(G) and (c)(2)(ii)(H); i. Revising paragraph (c)(3)(ii); j. Removing and reserving paragraphs (c)(3)(vi) through (viii); k. Removing all occurrences of the words “§ 75.31, § 75.33, or § 75.37” and adding in their place the words “§§ 75.31 through 75.37” in paragraphs (c)(3)(xi), (c)(3)(xii)(A), and (c)(3)(xii)(B); l. Revising paragraph (c)(6)(iii); m. Removing the words “October 1 of the previous calendar year” and adding in its place the words “January 1” in paragraph (c)(6)(v); n. Revising paragraph (c)(7)(iii)(L); o. Revising paragraph (c)(8)(ii); and p. Revising paragraph (c)(11). The revisions read as follows: § 75.74 Annual and ozone season monitoring and reporting requirements.

(c)* * *

(2)* * *

(i)* * *

(D)If the linearity check is not completed by April 30, data validation shall be determined in accordance with paragraph (c)(3)(ii)(E) of this section.

(ii)* * *

(F)*Data Validation.* For each RATA that is performed by April 30, data validation shall be done according to sections 2.3.2(a)-(j) of appendix B to this part. However, if a required RATA is not completed by April 30, data from the monitoring system shall be invalid, beginning with the first unit operating hour on or after May 1. The owner or operator shall continue to invalidate all data from the CEMS until either: ( *1* ) The required RATA of the CEMS has been performed and passed; or ( *2* ) A probationary calibration error test of the CEMS is passed in accordance with § 75.20(b)(3)(ii). Once the probationary calibration error test has been passed, the owner or operator shall perform the required RATA in accordance with the conditional data validation provisions and within the 720 unit or stack operating hour time frame specified in § 75.20(b)(3) (subject to the restrictions in paragraph (c)(3)(xii) of this section), and the term “quality assurance” shall apply instead of the term “recertification.” However, in lieu of the provisions in § 75.20(b)(3)(ix), the owner or operator shall follow the applicable provisions in paragraphs (c)(3)(xi) and (c)(3)(xii) of this section.

(3)* * *

(ii)For each gas monitor required by this subpart, linearity checks shall be performed in the second and third calendar quarters, as follows:

(A)For the second calendar quarter, the pre-ozone season linearity check required under paragraph (c)(2)(i) of this section shall be performed by April 30.

(B)For the third calendar quarter, a linearity check shall be performed and passed no later than July 30.

(C)Conduct each linearity check in accordance with the general procedures in section 6.2 of appendix A to this part, except that the data validation procedures in sections 6.2(a) through

(f)of appendix A do not apply.

(D)Each linearity check shall be done “hands-off,” as described in section 2.2.3(c) of appendix B to this part.

(E)*Data Validation.* For second and third quarter linearity checks performed by the applicable deadline (i.e., April 30 or July 30), data validation shall be done in accordance with sections 2.2.3(a), (b), (c), (e), and

(h)of Appendix B to this part. However, if a required linearity check for the second calendar quarter is not completed by April 30, or if a required linearity check for the third calendar quarter is not completed by July 30, data from the monitoring system (or range) shall be invalid, beginning with the first unit operating hour on or after May 1 or July 31, respectively. The owner or operator shall continue to invalidate all data from the CEMS until either: ( *1* ) The required linearity check of the CEMS has been performed and passed; or ( *2* ) A probationary calibration error test of the CEMS is passed in accordance with § 75.20(b)(3)(ii). Once the probationary calibration error test has been passed, the owner or operator shall perform the required linearity check in accordance with the conditional data validation provisions and within the 168 unit or stack operating hour time frame specified in § 75.20(b)(3) (subject to the restrictions in paragraph (c)(3)(xii) of this section), and the term “quality assurance” shall apply instead of the term “recertification.” However, in lieu of the provisions in § 75.20(b)(3)(ix), the owner or operator shall follow the applicable provisions in paragraphs (c)(3)(xi) and (c)(3)(xii) of this section.

(F)A pre-season linearity check performed and passed in April satisfies the linearity check requirement for the second quarter.

(G)The third quarter linearity check requirement in paragraph (c)(3)(ii)(B) of this section is waived if: ( *1* ) Due to infrequent unit operation, the 168 operating hour conditional data validation period associated with a pre-season linearity check extends into the third quarter; and ( *2* ) A linearity check is performed and passed within that conditional data validation period.

(6)* * *

(iii)For the time periods described in paragraphs (c)(2)(i)(C) and (c)(2)(ii)(E) of this section, hourly emission data and the results of all daily calibration error tests and flow monitor interference checks shall be recorded. The owner or operator may opt to report unit operating data, daily calibration error test and flow monitor interference check results, and hourly emission data in the time period from April 1 through April 30. However, only the data recorded in the time period from May 1 through September 30 shall be used for NO X mass compliance determination;

(7)* * *

(iii)* * *

(L)In § 75.34(a)(3) and (a)(5), the phrases “720 quality-assured monitor operating hours within the ozone season” and “2160 quality-assured monitor operating hours within the ozone season” apply instead of “720 quality-assured monitor operating hours” and “2160 quality-assured monitor operating hours”, respectively.

(8)* * *

(ii)For units with add-on emission controls, using the missing data options in §§ 75.34(a)(1) through 75.34(a)(5), the range of operating parameters for add-on emission controls (as defined in the quality assurance/quality control program for the unit required by section 1 in appendix B to this part) and information for verifying proper operation of the add-on emission controls during missing data periods, as described in § 75.34(d).

(11)Units may qualify to use the optional NO X mass emissions estimation protocol for gas-fired and oil-fired peaking units in appendix E to this part on an ozone season basis. In order to be allowed to use this methodology, the unit must meet the definition of “peaking unit” in § 72.2 of this chapter, except that the words “year”, “calendar year” and “calendar years” in that definition shall be replaced by the words “ozone season”, “ozone season”, and “ozone seasons”, respectively. In addition, in the definition of the term “capacity factor” in § 72.2 of this chapter, the word “annual” shall be replaced by the words “ozone season” and the number “8,760” shall be replaced by the number “3,672”. § 75.80 [Amended] 36. Section 75.80(f)(1)(iii) is amended by removing the words “or § 75.12(b),”. 37. Section 75.81 is amended by: a. Removing the words “or § 75.12(b)” and “or § 75.12,” from paragraph (a)(3); b. Revising paragraph (a)(4); c. Revising paragraph (c)(1); d. Revising paragraph (c)(2); e. Removing Eq. 1 from paragraph (d)(1); f. Revising paragraph (d)(2); g. Adding paragraph (d)(4)(iv); and h. Revising paragraphs (d)(5) and (e)(1). The revisions and additions read as follows: § 75.81 Monitoring of Hg mass emissions and heat input at the unit level.

(a)* * *

(4)If heat input is required to be reported under the applicable State or Federal Hg mass emission reduction program that adopts the requirements of this subpart, the owner or operator must meet the general operating requirements for a flow monitoring system and an O 2 or CO 2 monitoring system to measure heat input rate.

(c)* * *

(1)The owner or operator must perform Hg emission testing one year or less before the compliance date in § 75.80(b), to determine the Hg concentration (i.e., total vapor phase Hg) in the effluent.

(i)The testing shall be performed using one of the Hg reference methods listed in § 75.22(a)(7), and shall consist of a minimum of 3 runs at the normal unit operating load, while combusting coal. The coal combusted during the testing shall be representative of the coal that will be combusted at the start of the Hg mass emissions reduction program (preferably from the same source(s) of supply).

(ii)The minimum time per run shall be 1 hour if Method 30A is used. If either Method 29 in appendix A-8 to part 60 of this chapter, ASTM D6784-02 (the Ontario Hydro method) (incorporated by reference under § 75.6 of this part), or Method 30B is used, paired samples are required for each test run and the runs must be long enough to ensure that sufficient Hg is collected to analyze. When Method 29 in appendix A-8 to part 60 of this chapter or the Ontario Hydro method is used, the test results shall be based on the vapor phase Hg collected in the back-half of the sampling trains (i.e., the non-filterable impinger catches). For each Method 29 in appendix A-8 to part 60 of this chapter, Method 30B, or Ontario Hydro method test run, the paired trains must meet the relative deviation

(RD)requirement specified in § 75.22(a)(7) or Method 30B, as applicable. If the RD specification is met, the results of the two samples shall be averaged arithmetically.

(iii)If the unit is equipped with flue gas desulfurization or add-on Hg emission controls, the controls must be operating normally during the testing, and, for the purpose of establishing proper operation of the controls, the owner or operator shall record parametric data or SO 2 concentration data in accordance with § 75.58(b)(3)(i).

(iv)If two or more of units of the same type qualify as a group of identical units in accordance with § 75.19(c)(1)(iv)(B), the owner or operator may test a subset of these units in lieu of testing each unit individually. If this option is selected, the number of units required to be tested shall be determined from Table LM-4 in § 75.19. For the purposes of the required retests under paragraph (d)(4) of this section, EPA strongly recommends that (to the extent practicable) the same subset of the units not be tested in two successive retests, and that every effort be made to ensure that each unit in the group of identical units is tested in a timely manner. (2)(i) Based on the results of the emission testing, Equation 1 of this section shall be used to provide a conservative estimate of the annual Hg mass emissions from the unit: ER24JA08.018 Where: E = Estimated annual Hg mass emissions from the affected unit, (ounces/year) K = Units conversion constant, 9.978 x 10 −10 oz-scm/μg-scf N = Either 8,760 (the number of hours in a year) or the maximum number of operating hours per year (if less than 8,760) allowed by the unit's Federally-enforceable operating permit. C Hg = The highest Hg concentration (μg/scm) from any of the test runs or 0.50 μg/scm, whichever is greater Q max = Maximum potential flow rate, determined according to section 2.1.4.1 of appendix A to this part,

(ii)Equation 1 of this section assumes that the unit operates at its maximum potential flow rate, either year-round or for the maximum number of hours allowed by the operating permit (if unit operation is restricted to less than 8,760 hours per year). If the permit restricts the annual unit heat input but not the number of annual unit operating hours, the owner or operator may divide the allowable annual heat input (mmBtu) by the design rated heat input capacity of the unit (mmBtu/hr) to determine the value of “N” in Equation 1. Also, note that if the highest Hg concentration measured in any test run is less than 0.50 μg/scm, a default value of 0.50 μg/scm must be used in the calculations.

(d)* * *

(2)Following initial certification, the same default Hg concentration value that was used to estimate the unit's annual Hg mass emissions under paragraph

(c)of this section shall be reported for each unit operating hour, except as otherwise provided in paragraph (d)(4)(iv) or (d)(6) of this section. The default Hg concentration value shall be updated as appropriate, according to paragraph (d)(5) of this section.

(4)* * *

(iv)An additional retest is required when there is a change in the coal rank of the primary fuel (e.g., when the primary fuel is switched from bituminous coal to lignite). Use ASTM D388-99 (incorporated by reference under § 75.6 of this part) to determine the coal rank. The four principal coal ranks are anthracitic, bituminous, subbituminous, and lignitic. The ranks of anthracite coal refuse

(culm)and bituminous coal refuse

(gob)shall be anthracitic and bituminous, respectively. The retest shall be performed within 720 unit operating hours of the change.

(5)The default Hg concentration used for reporting under § 75.84 shall be updated after each required retest. This includes retests that are required prior to the compliance date in § 75.80(b). The updated value shall either be the highest Hg concentration measured in any of the test runs or 0.50 μg/scm, whichever is greater. The updated value shall be applied beginning with the first unit operating hour in which Hg emissions data are required to be reported after completion of the retest, except as provided in paragraph (d)(4)(iv) of this section, where the need to retest is triggered by a change in the coal rank of the primary fuel. In that case, apply the updated default Hg concentration beginning with the first unit operating hour in which Hg emissions are required to be reported after the date and hour of the fuel switch.

(e)* * *

(1)The methodology may not be used for reporting Hg mass emissions at a common stack unless all of the units using the common stack are affected units and the units' combined potential to emit does not exceed 464 ounces of Hg per year times the number of units sharing the stack, in accordance with paragraphs

(c)and

(d)of this section. If the test results demonstrate that the units sharing the common stack qualify as low mass emitters, the default Hg concentration used for reporting Hg mass emissions at the common stack shall either be the highest value obtained in any test run or 0.50 μg/scm, whichever is greater.

(i)The initial emission testing required under paragraph

(c)of this section may be performed at the common stack if the following conditions are met. Otherwise, testing of the individual units (or a subset of the units, if identical, as described in paragraph (c)(1)(iv) of this section) is required:

(A)The testing must be done at a combined load corresponding to the designated normal load level (low, mid, or high) for the units sharing the common stack, in accordance with section 6.5.2.1 of appendix A to this part;

(B)All of the units that share the stack must be operating in a normal, stable manner and at typical load levels during the emission testing. The coal combusted in each unit during the testing must be representative of the coal that will be combusted in that unit at the start of the Hg mass emission reduction program (preferably from the same source(s) of supply);

(C)If flue gas desulfurization and/or add-on Hg emission controls are used to reduce level the emissions exiting from the common stack, these emission controls must be operating normally during the emission testing and, for the purpose of establishing proper operation of the controls, the owner or operator shall record parametric data or SO 2 concentration data in accordance with § 75.58(b)(3)(i);

(D)When calculating E, the estimated maximum potential annual Hg mass emissions from the stack, substitute the maximum potential flow rate through the common stack (as defined in the monitoring plan) and the highest concentration from any test run (or 0.50 μg/scm, if greater) into Equation 1;

(E)The calculated value of E shall be divided by the number of units sharing the stack. If the result, when rounded to the nearest ounce, does not exceed 464 ounces, the units qualify to use the low mass emission methodology; and

(F)If the units qualify to use the methodology, the default Hg concentration used for reporting at the common stack shall be the highest value obtained in any test run or 0.50 μg/scm, whichever is greater; or

(ii)The retests required under paragraph (d)(4) of this section may also be done at the common stack. If this testing option is chosen, the testing shall be done at a combined load corresponding to the designated normal load level (low, mid, or high) for the units sharing the common stack, in accordance with section 6.5.2.1 of appendix A to this part. Provided that the required load level is attained and that all of the units sharing the stack are fed from the same on-site coal supply during normal operation, it is not necessary for all of the units sharing the stack to be in operation during a retest. However, if two or more of the units that share the stack are fed from different on-site coal supplies (e.g., one unit burns low-sulfur coal for compliance and the other combusts higher-sulfur coal), then either:

(A)Perform the retest with all units in normal operation; or

(B)If this is not possible, due to circumstances beyond the control of the owner or operator (e.g., a forced unit outage), perform the retest with the available units operating and assess the test results as follows. Use the Hg concentration obtained in the retest for reporting purposes under this part if the concentration is greater than or equal to the value obtained in the most recent test. If the retested value is lower than the Hg concentration from the previous test, continue using the higher value from the previous test for reporting purposes and use that same higher Hg concentration value in Equation 1 to determine the due date for the next retest, as described in paragraph (e)(1)(iii) of this section.

(iii)If testing is done at the common stack, the due date for the next scheduled retest shall be determined as follows:

(A)Substitute the maximum potential flow rate for the common stack (as defined in the monitoring plan) and the highest Hg concentration from any test run (or 0.50 μg/scm, if greater) into Equation 1;

(B)If the value of E obtained from Equation 1, rounded to the nearest ounce, is greater than 144 times the number of units sharing the common stack, but less than or equal to 464 times the number of units sharing the stack, the next retest is due in two QA operating quarters;

(C)If the value of E obtained from Equation 1, rounded to the nearest ounce, is less than or equal to 144 times the number of units sharing the common stack, the next retest is due in four QA operating quarters. 38. Section 75.82 is amended by: a. Adding paragraph (b)(3); b. Removing the word “or” at the end of paragraph (c)(2); c. Removing the period at the end of paragraph (c)(3), and adding in its place the phrase “; or”; d. Adding paragraph (c)(4); e. Removing the word “or” at the end of paragraph (d)(1); f. Removing the period at the end of paragraph (d)(2), and adding in its place the phrase “; or”; and g. Adding paragraph (d)(3). The revisions and additions read as follows: § 75.82 Monitoring of Hg mass emissions and heat input at common and multiple stacks.

(b)* * *

(3)If the monitoring option in paragraph (b)(2) of this section is selected, and if heat input is required to be reported under the applicable State or Federal Hg mass emission reduction program that adopts the requirements of this subpart, the owner or operator shall either:

(i)Apportion the common stack heat input rate to the individual units according to the procedures in § 75.16(e)(3); or

(ii)Install a flow monitoring system and a diluent gas (O 2 or CO 2 ) monitoring system in the duct leading from each affected unit to the common stack, and measure the heat input rate in each duct, according to section 5.2 of appendix F to this part.

(c)* * *

(4)If the monitoring option in paragraph (c)(1) or (c)(2) of this section is selected, and if heat input is required to be reported under the applicable State or Federal Hg mass emission reduction program that adopts the requirements of this subpart, the owner or operator shall:

(i)Use the installed flow and diluent monitors to determine the hourly heat input rate at each stack (mmBtu/hr), according to section 5.2 of appendix F to this part; and

(ii)Calculate the hourly heat input at each stack (in mmBtu) by multiplying the measured stack heat input rate by the corresponding stack operating time; and

(iii)Determine the hourly unit heat input by summing the hourly stack heat input values.

(d)* * *

(3)If the monitoring option in paragraph (d)(1) or (d)(2) of this section is selected, and if heat input is required to be reported under the applicable State or Federal Hg mass emission reduction program that adopts the requirements of this subpart, the owner or operator shall:

(i)Use the installed flow and diluent monitors to determine the hourly heat input rate at each stack or duct (mmBtu/hr), according to section 5.2 of appendix F to this part; and

(ii)Calculate the hourly heat input at each stack or duct (in mmBtu) by multiplying the measured stack (or duct) heat input rate by the corresponding stack (or duct) operating time; and

(iii)Determine the hourly unit heat input by summing the hourly stack (or duct) heat input values. 39. Section 75.84 is amended by: a. Removing “§ 75.53(e)(1)” and “§ 75.53(e)(2)” and adding in their place “§ 75.53(g)(1)” and “§ 75.53(g)(2)”, in paragraph (c)(3); b. Removing the number “45” and adding in its place the number “21” in paragraphs (e)(1) and (e)(2); c. Revising paragraph (f)(1) introductory text; d. Removing “§ 75.64(a)(1)” and adding in its place “§ 75.64(a)(3)” in paragraph (f)(1)(i); e. Removing the phrase “paragraph (a)” and adding in its place the phrase “paragraphs

(a)and (b)” in paragraph (f)(1)(ii) introductory text; and f. Revising paragraph (f)(1)(ii)(I). The revisions read as follows: § 75.84 Recordkeeping and reporting.

(f)* * *

(1)*Electronic submission.* Electronic quarterly reports shall be submitted, beginning with the calendar quarter containing the compliance date in § 75.80(b), unless otherwise specified in the final rule implementing a State or Federal Hg mass emissions reduction program that adopts the requirements of this subpart. The designated representative for an affected unit shall report the data and information in this paragraph (f)(1) and the applicable compliance certification information in paragraph (f)(2) of this section to the Administrator quarterly, except as otherwise provided in § 75.64(a) for units in long-term cold storage. Each electronic report must be submitted to the Administrator within 30 days following the end of each calendar quarter. Except as otherwise provided in § 75.64(a)(4) and (a)(5), each electronic report shall include the date of report generation and the following information for each affected unit or group of units monitored at a common stack:

(ii)* * *

(I)Supplementary RATA information required under § 75.59(a)(7), except that: ( *1* ) The applicable data elements under § 75.59(a)(7)(ii)(A) through

(T)and under § 75.59(a)(7)(iii)(A) through

(c)of section 2.1.1.1; b. Revising paragraph (b)(2) of section 2.1.1.5; c. Revising paragraph (b)(2) of section 2.1.2.5; d. Adding a new fourth sentence after the third sentence of section 2.1.3; e. Revising paragraph

(3)of section 3.2; f. Removing the phrase “continuous emission monitoring system(s)” and adding in its place the phrase “monitoring component of a continuous emission monitoring system that is” in section 3.5; g. Adding the words “that meet the definition for a NIST Traceable Reference Material

(NTRM)provided in § 72.2.” after the word “gases” in section 5.1.3; h. Revising sections 5.1.4 and 5.1.9; i. Redesignating section 6.1 as section 6.1.1 and adding a new heading for 6.1; j. Adding section 6.1.2; k. Revising the second and third sentences and adding a new fourth sentence to section 6.2, introductory text; l. Revising section 6.2(g); m. Adding paragraph

(h)to section 6.2; n. Adding a new fourth sentence to section 6.3.1, introductory text; o. Revising the introductory text of section 6.4; p. Revising paragraph

(e)in section 6.5; q. Removing the words “that uses CEMS to account for its emissions and for each unit that uses the optional fuel flow-to-load quality assurance test in section 2.1.7 of appendix D to this part” from paragraph

(a)of section 6.5.2.1; r. Adding the words “or mmBtu/hr” after the words “klb/hr of steam production”, and by adding the words “or mmBtu/hr of thermal output” after the words “thousands of lb/hr of steam load” in paragraph (a)(1) of section 6.5.2.1; s. Adding the words “and units using the low mass emissions

(LME)excepted methodology under § 75.19” after the words “(except for peaking units” in the second sentence in paragraph

(c)of section 6.5.2.1; t. Adding the words “and LME units” after the words “For peaking units” in the third sentence in paragraph (d)(1) of section 6.5.2.1; u. Revising paragraph

(e)of section 6.5.2.1; v. Revising paragraph

(c)in section 6.5.6; w. Removing all occurrences of the words “section 3.2” and adding in its place the words “section 8.1.3” in paragraph (b)(3) of section 6.5.6, paragraph

(a)of section 6.5.6.2, and paragraph

(a)of section 6.5.6.3; x. Revising section 6.5.10; y. Adding two sentences at the end of section 7.6.1; z. Revising the terms R ref and L avg , in paragraph

(a)of section 7.7; aa. Revising the terms

(GHR)ref and L avg , in paragraph

(c)of section 7.7; and bb. Removing Figure 6 and adding in its place Figures 6a and 6b and revising A through F and adding G at the end of appendix A. The revisions and additions read as follows: Appendix A to Part 75—Specifications and Procedures 2. Equipment Specifications 2.1.1.1 Maximum Potential Concentration

(c)When performing fuel sampling to determine the MPC, use ASTM Methods: ASTM D3177-02 (Reapproved 2007), Standard Test Methods for Total Sulfur in the Analysis Sample of Coal and Coke; ASTM D4239-02, Standard Test Methods for Sulfur in the Analysis Sample of Coal and Coke Using High-Temperature Tube Furnace Combustion Methods; ASTM D4294-98, Standard Test Method for Sulfur in Petroleum and Petroleum Products by Energy-Dispersive X-ray Fluorescence Spectrometry; ASTM D1552-01, Standard Test Method for Sulfur in Petroleum Products (High-Temperature Method); ASTM D129-00, Standard Test Method for Sulfur in Petroleum Products (General Bomb Method); ASTM D2622-98, Standard Test Method for Sulfur in Petroleum Products by Wavelength Dispersive X-ray Fluorescence Spectrometry, for sulfur content of solid or liquid fuels; ASTM D3176-89 (Reapproved 2002), Standard Practice for Ultimate Analysis of Coal and Coke; ASTM D240-00, Standard Test Method for Heat of Combustion of Liquid Hydrocarbon Fuels by Bomb Calorimeter; or ASTM D5865-01a, Standard Test Method for Gross Calorific Value of Coal and Coke (all incorporated by reference under § 75.6 of this part). 2.1.1.5 * * *

(b)* * *

(2)For units with two SO 2 spans and ranges, if the low range is exceeded, no further action is required, provided that the high range is available and its most recent calibration error test and linearity check have not expired. However, if either of these quality assurance tests has expired and the high range is not able to provide quality assured data at the time of the low range exceedance or at any time during the continuation of the exceedance, report the MPC as the SO 2 concentration until the readings return to the low range or until the high range is able to provide quality assured data (unless the reason that the high-scale range is not able to provide quality assured data is because the high-scale range has been exceeded; if the high-scale range is exceeded follow the procedures in paragraph (b)(1) of this section). 2.1.2.5 * * *

(b)* * *

(2)For units with two NO X spans and ranges, if the low range is exceeded, no further action is required, provided that the high range is available and its most recent calibration error test and linearity check have not expired. However, if either of these quality assurance tests has expired and the high range is not able to provide quality assured data at the time of the low range exceedance or at any time during the continuation of the exceedance, report the MPC as the NO X concentration until the readings return to the low range or until the high range is able to provide quality assured data (unless the reason that the high-scale range is not able to provide quality assured data is because the high-scale range has been exceeded; if the high-scale range is exceeded, follow the procedures in paragraph (b)(1) of this section). 2.1.3 CO 2 and O 2 Monitors * * * An alternative CO 2 span value below 6.0 percent may be used if an appropriate technical justification is included in the hardcopy monitoring plan. 3.2 * * *

(3)For the linearity check and the 3-level system integrity check of an Hg monitor, which are required, respectively, under § 75.20(c)(1)(ii) and (c)(1)(vi), the measurement error shall not exceed 10.0 percent of the reference value at any of the three gas levels. To calculate the measurement error at each level, take the absolute value of the difference between the reference value and mean CEM response, divide the result by the reference value, and then multiply by 100. Alternatively, the results at any gas level are acceptable if the absolute value of the difference between the average monitor response and the average reference value, *i.e.* , |R−A| in Equation A-4 of this appendix, does not exceed 0.8 μg/m 3 . The principal and alternative performance specifications in this section also apply to the single-level system integrity check described in section 2.6 of appendix B to this part. 5.1 *Reference Gases* 5.1.4 EPA Protocol Gases

(a)An EPA Protocol Gas is a calibration gas mixture prepared and analyzed according to Section 2 of the “EPA Traceability Protocol for Assay and Certification of Gaseous Calibration Standards,” September 1997, EPA-600/R-97/121 or such revised procedure as approved by the Administrator (EPA Traceability Protocol).

(b)An EPA Protocol Gas must have a specialty gas producer-certified uncertainty (95-percent confidence interval) that must not be greater than 2.0 percent of the certified concentration (tag value) of the gas mixture. The uncertainty must be calculated using the statistical procedures (or equivalent statistical techniques) that are listed in Section 2.1.8 of the EPA Traceability Protocol.

(c)On and after January 1, 2009, a specialty gas producer advertising calibration gas certification with the EPA Traceability Protocol or distributing calibration gases as “EPA Protocol Gas” must participate in the EPA Protocol Gas Verification Program

(PGVP)described in Section 2.1.10 of the EPA Traceability Protocol or it cannot use “EPA” in any form of advertising for these products, unless approved by the Administrator. A specialty gas producer not participating in the PGVP may not certify a calibration gas as an EPA Protocol Gas, unless approved by the Administrator.

(d)A copy of EPA-600/R-97/121 is available from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA, 703-605-6585 or *http://www.ntis.gov,* and from *http://www.epa.gov/ttn/emc/news.html* or *http://www.epa.gov/appcdwww/tsb/index.html.* 5.1.9 Mercury Standards For 7-day calibration error tests of Hg concentration monitors and for daily calibration error tests of Hg monitors, either NIST-traceable elemental Hg standards (as defined in § 72.2 of this chapter) or a NIST-traceable source of oxidized Hg (as defined in § 72.2 of this chapter) may be used. For linearity checks, NIST-traceable elemental Hg standards shall be used. For 3-level and single-point system integrity checks under § 75.20(c)(1)(vi), sections 6.2(g) and 6.3.1 of this appendix, and sections 2.1.1, 2.2.1 and 2.6 of appendix B to this part, a NIST-traceable source of oxidized Hg shall be used. Alternatively, other NIST-traceable standards may be used for the required checks, subject to the approval of the Administrator. Notwithstanding these requirements, Hg calibration standards that are not NIST-traceable may be used for the tests described in this section until December 31, 2009. However, on and after January 1, 2010, only NIST-traceable calibration standards shall be used for these tests. 6.1 *General Requirements* 6.1.2 *Requirements for Air Emission Testing Bodies*

(a)On and after January 1, 2009, any Air Emission Testing Body

(AETB)conducting relative accuracy test audits of CEMS and sorbent trap monitoring systems under this part must conform to the requirements of ASTM D7036-04 (incorporated by reference under § 75.6 of this part). This section is not applicable to daily operation, daily calibration error checks, daily flow interference checks, quarterly linearity checks or routine maintenance of CEMS.

(b)The AETB shall provide to the affected source(s) certification that the AETB operates in conformance with, and that data submitted to the Agency has been collected in accordance with, the requirements of ASTM D7036-04 (incorporated by reference under § 75.6 of this part). This certification may be provided in the form of:

(1)A certificate of accreditation of relevant scope issued by a recognized, national accreditation body; or

(2)A letter of certification signed by a member of the senior management staff of the AETB.

(c)The AETB shall either provide a Qualified Individual on-site to conduct or shall oversee all relative accuracy testing carried out by the AETB as required in ASTM D7036-04 (incorporated by reference under § 75.6 of this part). The Qualified Individual shall provide the affected source(s) with copies of the qualification credentials relevant to the scope of the testing conducted. 6.2 *Linearity Check (General Procedures)* * * * Notwithstanding these requirements, if the SO 2 or NO X span value for a particular monitor range is ≤ 30 ppm, that range is exempted from the linearity check requirements of this part, for initial certification, recertification, and for on-going quality-assurance. For units with two measurement ranges (high and low) for a particular parameter, perform a linearity check on both the low scale (except for SO 2 or NO X span values ≤ 30 ppm) and the high scale. Note that for a NO X -diluent monitoring system with two NO X measurement ranges, if the low NO X scale has a span value ≤ 30 ppm and is exempt from linearity checks, this does not exempt either the diluent monitor or the high NO X scale (if the span is > 30 ppm) from linearity check requirements.

(g)For Hg monitors, follow the guidelines in section 2.2.3 of this appendix in addition to the applicable procedures in section 6.2 when performing the system integrity checks described in § 75.20(c)(1)(vi) and in sections 2.1.1, 2.2.1 and 2.6 of appendix B to this part.

(h)For Hg concentration monitors, if moisture is added to the calibration gas during the required linearity checks or system integrity checks, the moisture content of the calibration gas must be accounted for. Under these circumstances, the dry basis concentration of the calibration gas shall be used to calculate the linearity error or measurement error (as applicable). 6.3.1 *Gas Monitor 7-day Calibration Error Test* * * * Also for Hg monitors, if moisture is added to the calibration gas, the added moisture must be accounted for and the dry-basis concentration of the calibration gas shall be used to calculate the calibration error. 6.4. *Cycle Time Test* Perform cycle time tests for each pollutant concentration monitor and continuous emission monitoring system while the unit is operating, according to the following procedures. Use a zero-level and a high-level calibration gas (as defined in section 5.2 of this appendix) alternately. For Hg monitors, the calibration gas used for this test may either be the elemental or oxidized form of Hg. To determine the downscale cycle time, measure the concentration of the flue gas emissions until the response stabilizes. Record the stable emissions value. Inject a zero-level concentration calibration gas into the probe tip (or injection port leading to the calibration cell, for in situ systems with no probe). Record the time of the zero gas injection, using the data acquisition and handling system (DAHS). Next, allow the monitor to measure the concentration of the zero gas until the response stabilizes. Record the stable ending calibration gas reading. Determine the downscale cycle time as the time it takes for 95.0 percent of the step change to be achieved between the stable stack emissions value and the stable ending zero gas reading. Then repeat the procedure, starting with stable stack emissions and injecting the high-level gas, to determine the upscale cycle time, which is the time it takes for 95.0 percent of the step change to be achieved between the stable stack emissions value and the stable ending high-level gas reading. Use the following criteria to assess when a stable reading of stack emissions or calibration gas concentration has been attained. A stable value is equivalent to a reading with a change of less than 2.0 percent of the span value for 2 minutes, or a reading with a change of less than 6.0 percent from the measured average concentration over 6 minutes. Alternatively, the reading is considered stable if it changes by no more than 0.5 ppm, 0.5 μg/m 3 (for Hg), or 0.2% CO 2 or O 2 (as applicable) for two minutes. (Owners or operators of systems which do not record data in 1-minute or 3-minute intervals may petition the Administrator under § 75.66 for alternative stabilization criteria). For monitors or monitoring systems that perform a series of operations (such as purge, sample, and analyze), time the injections of the calibration gases so they will produce the longest possible cycle time. Refer to Figures 6a and 6b in this appendix for example calculations of upscale and downscale cycle times. Report the slower of the two cycle times (upscale or downscale) as the cycle time for the analyzer. Prior to January 1, 2009 for the NO X -diluent continuous emission monitoring system test, either record and report the longer cycle time of the two component analyzers as the system cycle time or record the cycle time for each component analyzer separately (as applicable). On and after January 1, 2009, record the cycle time for each component analyzer separately. For time-shared systems, perform the cycle time tests at each probe locations that will be polled within the same 15-minute period during monitoring system operations. To determine the cycle time for time-shared systems, at each monitoring location, report the sum of the cycle time observed at that monitoring location plus the sum of the time required for all purge cycles (as determined by the continuous emission monitoring system manufacturer) at each of the probe locations of the time-shared systems. For monitors with dual ranges, report the test results for each range separately. Cycle time test results are acceptable for monitor or monitoring system certification, recertification or diagnostic testing if none of the cycle times exceed 15 minutes. The status of emissions data from a monitor prior to and during a cycle time test period shall be determined as follows: 6.5 * * *

(e)Complete each single-load relative accuracy test audit within a period of 168 consecutive unit operating hours, as defined in § 72.2 of this chapter (or, for CEMS installed on common stacks or bypass stacks, 168 consecutive stack operating hours, as defined in § 72.2 of this chapter). Notwithstanding this requirement, up to 336 consecutive unit or stack operating hours may be taken to complete the RATA of a Hg monitoring system, when ASTM 6784-02 (incorporated by reference under § 75.6 of this part) or Method 29 in appendix A-8 to part 60 of this chapter is used as the reference method. For 2-level and 3-level flow monitor RATAs, complete all of the RATAs at all levels, to the extent practicable, within a period of 168 consecutive unit (or stack) operating hours; however, if this is not possible, up to 720 consecutive unit (or stack) operating hours may be taken to complete a multiple-load flow RATA. 6.5.2.1 * * *

(e)The owner or operator shall report the upper and lower boundaries of the range of operation for each unit (or combination of units, for common stacks), in units of megawatts or thousands of lb/hr or mmBtu/hr of steam production or ft/sec (as applicable), in the electronic monitoring plan required under § 75.53. Except for peaking units and LME units, the owner or operator shall indicate, in the electronic monitoring plan, the load level (or levels) designated as normal under this section and shall also indicate the two most frequently used load levels. 6.5.6 * * *

(c)For Hg monitoring systems, use the same basic approach for traverse point selection that is used for the other gas monitoring system RATAs, except that the stratification test provisions in sections 8.1.3 through 8.1.3.5 of Method 30A shall apply, rather than the provisions of sections 6.5.6.1 through 6.5.6.3 of this appendix. 6.5.10 *Reference Methods* The following methods are from appendix A to part 60 of this chapter or have been published by ASTM, and are the reference methods for performing relative accuracy test audits under this part: Method 1 or 1A in appendix A-1 to part 60 of this chapter for siting; Method 2 in appendices A-1 and A-2 to part 60 of this chapter or its allowable alternatives in appendix A to part 60 of this chapter (except for Methods 2B and 2E in appendix A-1 to part 60 of this chapter) for stack gas velocity and volumetric flow rate; Methods 3, 3A or 3B in appendix A-2 to part 60 of this chapter for O 2 and CO 2 ; Method 4 in appendix A-3 to part 60 of this chapter for moisture; Methods 6, 6A or 6C in appendix A-4 to part 60 of this chapter for SO 2 ; Methods 7, 7A, 7C, 7D or 7E in appendix A-4 to part 60 of this chapter for NO X , excluding the exceptions of Method 7E in appendix A-4 to part 60 of this chapter identified in § 75.22(a)(5); and for Hg, either ASTM D6784-02 (the Ontario Hydro Method) (incorporated by reference under § 75.6 of this part), Method 29 in appendix A-8 to part 60 of this chapter, Method 30A, or Method 30B When using Method 7E in appendix A-4 to part 60 of this chapter for measuring NO X concentration, total NO X , both NO and NO 2 , must be measured. 7.6 *Bias Test and Adjustment Factor* 7.6.1 * * * To calculate bias for a Hg monitoring system when using the Ontario Hydro Method or Method 29 in appendix A-8 to part 60 of this chapter, “d” is, for each data point, the difference between the average Hg concentration value (in μg/m 3 ) from the paired Ontario Hydro or Method 29 in appendix A-8 to part 60 of this chapter sampling trains and the concentration measured by the monitoring system. For sorbent trap monitoring systems, use the average Hg concentration measured by the paired traps in the calculation of “d”. 7.7 * * *

(a)* * * R ref = Reference value of the flow-to-load ratio, from the most recent normal-load flow RATA, scfh/megawatts, scfh/1000 lb/hr of steam, or scfh/(mmBtu/hr of steam output). L avg = Average unit load during the normal-load flow RATA, megawatts, 1000 lb/hr of steam, or mmBtu/hr of thermal output.

(c)* * *

(GHR)ref = Reference value of the gross heat rate at the time of the most recent normal-load flow RATA, Btu/kwh, Btu/lb steam load, or Btu heat input/mmBtu steam output. L avg = Average unit load during the normal-load flow RATA, megawatts, 1000 lb/hr of steam, or mmBtu/hr thermal output. ER24JA08.000 ER24JA08.001 A. To determine the upscale cycle time (Figure 6a), measure the flue gas emissions until the response stabilizes. Record the stabilized value (see section 6.4 of this appendix for the stability criteria). B. Inject a high-level calibration gas into the port leading to the calibration cell or thimble (Point B). Allow the analyzer to stabilize. Record the stabilized value. C. Determine the step change. The step change is equal to the difference between the final stable calibration gas value (Point D) and the stabilized stack emissions value (Point A). D. Take 95% of the step change value and add the result to the stabilized stack emissions value (Point A). Determine the time at which 95% of the step change occurred (Point C). E. Calculate the upscale cycle time by subtracting the time at which the calibration gas was injected (Point B) from the time at which 95% of the step change occurred (Point C). In this example, upscale cycle time = (11−5) = 6 minutes. F. To determine the downscale cycle time (Figure 6b) repeat the procedures above, except that a zero gas is injected when the flue gas emissions have stabilized, and 95% of the step change in concentration is subtracted from the stabilized stack emissions value. G. Compare the upscale and downscale cycle time values. The longer of these two times is the cycle time for the analyzer. 41. Appendix B to Part 75 is amended by: a. Adding section 1.1.4; b. Revising section 2.1.1; c. Revising paragraph

(2)of section 2.1.1.2; d. Revising paragraph

(2)of section 2.1.5.1; e. Adding paragraph

(3)to section 2.1.5.1; f. Adding a new fourth sentence to paragraph

(e)of section 2.2.3; g. Revising the terms “R h ” and “L h ” in paragraph

(a)of section 2.2.5; h. Revising the terms “(GHR) h ” and “L h ” in paragraph (a)(2) of section 2.2.5; i. Removing the word “five” and adding in its place the word “twenty”, and by removing the word “years” and adding in its place the word “quarters”, in paragraph (c)(4) of section 2.3.1.3; j. Revising paragraphs

(d)and

(g)of section 2.3.2; k. Revising paragraphs (a)(2) and

(c)of section 2.3.3; l. Adding paragraph

(d)to section 2.3.3; m. Revising section 2.6; n. Revising Figure 1; and o. Revising Figure 2. The revisions and additions read as follows: Appendix B to Part 75—Quality Assurance and Quality Control Procedures 1. Quality Assurance/Quality Control Program 1.1.4 The requirements in section 6.1.2 of appendix A to this part shall be met by any Air Emissions Testing Body

(AETB)performing the semiannual/annual RATAs described in section 2.3 of this appendix and the Hg emission tests described in §§ 75.81(c) and 75.81(d)(4). 2. Frequency of Testing 2.1.1 Calibration Error Test Except as provided in section 2.1.1.2 of this appendix, perform the daily calibration error test of each gas monitoring system (including moisture monitoring systems consisting of wet- and dry-basis O 2 analyzers) according to the procedures in section 6.3.1 of appendix A to this part, and perform the daily calibration error test of each flow monitoring system according to the procedure in section 6.3.2 of appendix A to this part. When two measurement ranges (low and high) are required for a particular parameter, perform sufficient calibration error tests on each range to validate the data recorded on that range, according to the criteria in section 2.1.5 of this appendix. 2.1.1.2 * * *

(2)For each monitoring system that has passed the off-line calibration demonstration, off-line calibration error tests may be used on a limited basis to validate data, in accordance with paragraph

(2)in section 2.1.5.1 of this appendix. 2.1.5.1 * * *

(2)For a monitor that has passed the off-line calibration demonstration, a combination of on-line and off-line calibration error tests may be used to validate data from the monitor, as follows. For a particular unit (or stack) operating hour, data from a monitor may be validated using a successful off-line calibration error test if:

(a)An on-line calibration error test has been passed within the previous 26 unit (or stack) operating hours; and

(b)the 26 clock hour data validation window for the off-line calibration error test has not expired. If either of these conditions is not met, then the data from the monitor are invalid with respect to the daily calibration error test requirement. Data from the monitor shall remain invalid until the appropriate on-line or off-line calibration error test is successfully completed so that both conditions

(a)and

(b)are met.

(3)For units with two measurement ranges (low and high) for a particular parameter, when separate analyzers are used for the low and high ranges, a failed or expired calibration on one of the ranges does not affect the quality-assured data status on the other range. For a dual-range analyzer (i.e., a single analyzer with two measurement scales), a failed calibration error test on either the low or high scale results in an out-of-control period for the monitor. Data from the monitor remain invalid until corrective actions are taken and “hands-off” calibration error tests have been passed on both ranges. However, if the most recent calibration error test on the high scale was passed but has expired, while the low scale is up-to-date on its calibration error test requirements (or vice-versa), the expired calibration error test does not affect the quality-assured status of the data recorded on the other scale. 2.2.3 * * *

(e)* * * For a dual-range analyzer, “hands-off” linearity checks must be passed on both measurement scales to end the out-of-control period. * * * 2.2.5 * * *

(a)* * * R h = Hourly value of the flow-to-load ratio, scfh/megawatts, scfh/1000 lb/hr of steam, or scfh/(mmBtu/hr thermal output). L h = Hourly unit load, megawatts, 1000 lb/hr of steam, or mmBtu/hr thermal output; must be within + 10.0 percent of L avg during the most recent normal-load flow RATA.

(2)* * *

(GHR)h = Hourly value of the gross heat rate, Btu/kwh, Btu/lb steam load, or 1000 mmBtu heat input/mmBtu thermal output. L h = Hourly unit load, megawatts, 1000 lb/hr of steam, or mmBtu/hr thermal output; must be within + 10.0 percent of L avg during the most recent normal-load flow RATA. 2.3.2 * * *

(d)For single-load (or single-level) RATAs, if a daily calibration error test is failed during a RATA test period, prior to completing the test, the RATA must be repeated. Data from the monitor are invalidated prospectively from the hour of the failed calibration error test until the hour of completion of a subsequent successful calibration error test. The subsequent RATA shall not be commenced until the monitor has successfully passed a calibration error test in accordance with section 2.1.3 of this appendix. Notwithstanding these requirements, when ASTM D6784-02 (incorporated by reference under § 75.6 of this part) or Method 29 in appendix A-8 to part 60 of this chapter is used as the reference method for the RATA of a Hg CEMS, if a calibration error test of the CEMS is failed during a RATA test period, any test run(s) completed prior to the failed calibration error test need not be repeated; however, the RATA may not continue until a subsequent calibration error test of the Hg CEMS has been passed. For multiple-load (or multiple-level) flow RATAs, each load level (or operating level) is treated as a separate RATA ( *i.e.* , when a calibration error test is failed prior to completing the RATA at a particular load level (or operating level), only the RATA at that load level (or operating level) must be repeated; the results of any previously-passed RATA(s) at the other load level(s) (or operating level(s)) are unaffected, unless re-linearization of the monitor is required to correct the problem that caused the calibration failure, in which case a subsequent 3-load (or 3-level) RATA is required), except as otherwise provided in section 2.3.1.3(c)(5) of this appendix.

(g)Data validation for failed RATAs for a CO 2 pollutant concentration monitor (or an O 2 monitor used to measure CO 2 emissions), a NO X pollutant concentration monitor, and a NO X -diluent monitoring system shall be done according to paragraphs (g)(1) and (g)(2) of this section:

(1)For a CO 2 pollutant concentration monitor (or an O 2 monitor used to measure CO 2 emissions) which also serves as the diluent component in a NO X -diluent monitoring system, if the CO 2 (or O 2 ) RATA is failed, then both the CO 2 (or O 2 ) monitor and the associated NO X -diluent system are considered out-of-control, beginning with the hour of completion of the failed CO 2 (or O 2 ) monitor RATA, and continuing until the hour of completion of subsequent hands-off RATAs which demonstrate that both systems have met the applicable relative accuracy specifications in sections 3.3.2 and 3.3.3 of appendix A to this part, unless the option in paragraph (b)(3) of this section to use the data validation procedures and associated timelines in § 75.20(b)(3)(ii) through (b)(3)(ix) has been selected, in which case the beginning and end of the out-of-control period shall be determined in accordance with § 75.20(b)(3)(vii)(A) and (B).

(2)This paragraph (g)(2) applies only to a NO X pollutant concentration monitor that serves both as the NO X component of a NO X concentration monitoring system (to measure NO X mass emissions) and as the NO X component in a NO X -diluent monitoring system (to measure NO X emission rate in lb/mmBtu). If the RATA of the NO X concentration monitoring system is failed, then both the NO X concentration monitoring system and the associated NO X -diluent monitoring system are considered out-of-control, beginning with the hour of completion of the failed NO X concentration RATA, and continuing until the hour of completion of subsequent hands-off RATAs which demonstrate that both systems have met the applicable relative accuracy specifications in sections 3.3.2 and 3.3.7 of appendix A to this part, unless the option in paragraph (b)(3) of this section to use the data validation procedures and associated timelines in § 75.20(b)(3)(ii) through (b)(3)(ix) has been selected, in which case the beginning and end of the out-of-control period shall be determined in accordance with § 75.20(b)(3)(vii)(A) and (B). 2.3.3 RATA Grace Period

(a)* * *

(2)A required 3-load flow RATA has not been performed by the end of the calendar quarter in which it is due; or

(c)If, at the end of the 720 unit (or stack) operating hour grace period, the RATA has not been completed, data from the monitoring system shall be invalid, beginning with the first unit operating hour following the expiration of the grace period. Data from the CEMS remain invalid until the hour of completion of a subsequent hands-off RATA. The deadline for the next test shall be either two QA operating quarters (if a semiannual RATA frequency is obtained) or four QA operating quarters (if an annual RATA frequency is obtained) after the quarter in which the RATA is completed, not to exceed eight calendar quarters.

(d)When a RATA is done during a grace period in order to satisfy a RATA requirement from a previous quarter, the deadline for the next RATA shall determined as follows:

(1)If the grace period RATA qualifies for a reduced, (i.e., annual), RATA frequency the deadline for the next RATA shall be set at three QA operating quarters after the quarter in which the grace period test is completed.

(2)If the grace period RATA qualifies for the standard, (i.e., semiannual), RATA frequency the deadline for the next RATA shall be set at two QA operating quarters after the quarter in which the grace period test is completed.

(3)Notwithstanding these requirements, no more than eight successive calendar quarters shall elapse after the quarter in which the grace period test is completed, without a subsequent RATA having been conducted. 2.6 *System Integrity Checks for Hg Monitors* For each Hg concentration monitoring system (except for a Hg monitor that does not have a converter), perform a single-point system integrity check weekly, i.e., at least once every 168 unit or stack operating hours, using a NIST-traceable source of oxidized Hg. Perform this check using a mid- or high-level gas concentration, as defined in section 5.2 of appendix A to this part. The performance specifications in paragraph

(3)of section 3.2 of appendix A to this part must be met, otherwise the monitoring system is considered out-of-control, from the hour of the failed check until a subsequent system integrity check is passed. If a required system integrity check is not performed and passed within 168 unit or stack operating hours of last successful check, the monitoring system shall also be considered out of control, beginning with the 169th unit or stack operating hour after the last successful check, and continuing until a subsequent system integrity check is passed. This weekly check is not required if the daily calibration assessments in section 2.1.1 of this appendix are performed using a NIST-traceable source of oxidized Hg. Figure 1 to Appendix B of Part 75.—Quality Assurance Test Requirements Test Basic QA test frequency requirements * Daily * Weekly Quarterly * Semiannual * Annual Calibration Error Test (2 pt.) z Interference Check

(flow)z Flow-to-Load Ratio z Leak Check (DP flow monitors) z Linearity Check or System Integrity Check ** (3 pt.) z Single-point System Integrity Check ** z RATA (SO 2 , NO X , CO 2 , O 2 , H 2 O) 1 z RATA (All Hg monitoring systems) z RATA

(flow)1 2 z * “Daily” means operating days, only. “Weekly” means once every 168 unit or stack operating hours. “Quarterly” means once every QA operating quarter. “Semiannual” means once every two QA operating quarters. “Annual” means once every four QA operating quarters. ** The system integrity check applies only to Hg monitors with converters. The single-point weekly system integrity check is not required if daily calibrations are performed using a NIST-traceable source of oxidized Hg. The 3-point quarterly system integrity check is not required if a linearity check is performed. 1 Conduct RATA annually (i.e., once every four QA operating quarters), if monitor meets accuracy requirements to qualify for less frequent testing. 2 For flow monitors installed on peaking units, bypass stacks, or units that qualify for single-level RATA testing under section 6.5.2(e) of this part, conduct all RATAs at a single, normal load (or operating level). For other flow monitors, conduct annual RATAs at two load levels (or operating levels). Alternating single-load and 2-load (or single-level and 2-level) RATAs may be done if a monitor is on a semiannual frequency. A single-load (or single-level) RATA may be done in lieu of a 2-load (or 2-level) RATA if, since the last annual flow RATA, the unit has operated at one load level (or operating level) for ≥85.0 percent of the time. A 3-level RATA is required at least once every five calendar years and whenever a flow monitor is re-linearized, except for flow monitors exempted from 3-level RATA testing under section 6.5.2(b) or 6.5.2(e) of appendix A to this part. Figure 2 to Appendix B of Part 75.—Relative Accuracy Test Frequency Incentive System RATA Semiannual W (percent) Annual W SO 2 or NO X Y 7.5% <RA ≤10.0% or ±15.0 ppm X RA ≤ 7.5% or ±12.0 ppm X . SO 2 -diluent 7.5% <RA ≤10.0% or ±0.030 lb/mmBtu X RA ≤7.5% or ±0.025 lb/mmBtu =G5X. NO X -diluent 7.5% <RA ≤10.0% or ±0.020 lb/mmBtu X RA ≤ 7.5% or ±0. 015 lb/mmBtu X . Flow 7.5% < RA ≤ 10.0% or ±2.0 fps X RA ≤ 7.5% or ±1.5 fps X . CO 2 or O 2 7.5% < RA ≤ 10.0% or ±1.0% CO 2 /O 2 X RA ≤ 7.5% or ±0.7% CO 2 /O 2 X . Hg X N/A RA < 20.0% or ± 1.0 μg/scm X . Moisture 7.5% <RA ≤10.0% or ±1.5% H 2 O X RA ≤7.5% or ±1.0% H 2 O X . W The deadline for the next RATA is the end of the second (if semiannual) or fourth (if annual) successive QA operating quarter following the quarter in which the CEMS was last tested. Exclude calendar quarters with fewer than 168 unit operating hours (or, for common stacks and bypass stacks, exclude quarters with fewer than 168 stack operating hours) in determining the RATA deadline. For SO 2 monitors, QA operating quarters in which only very low sulfur fuel as defined in § 72.2, is combusted may also be excluded. However, the exclusion of calendar quarters is limited as follows: the deadline for the next RATA shall be no more than 8 calendar quarters after the quarter in which a RATA was last performed. X The difference between monitor and reference method mean values applies to moisture monitors, CO 2 , and O 2 monitors, low emitters of SO 2 , NO X , or Hg, or and low flow, only. The specifications for Hg monitors also apply to sorbent trap monitoring systems. Y A NO X concentration monitoring system used to determine NO X mass emissions under § 75.71. 42. Appendix D to Part 75 is amended by: a. Revising section 2.1.5.1; b. Removing all “±” symbols from paragraph

(c)of section 2.1.6.1; c. Revising the R base and L avg variable definitions in paragraph

(a)of section 2.1.7.1; d. Revising the terms “(GHR) base ” and “L avg ” in paragraph

(c)of section 2.1.7.1; e. Revising the terms “R h ” and “L h ” in paragraph

(a)of section 2.1.7.2; f. Revising the terms “(GHR) h ” and “L h ” in paragraph

(c)of section 2.1.7.2; g. Removing “D4177-82 (Reapproved 1990)” and adding in its place “D4177-95 (Reapproved 2000)”, in the first sentence of section 2.2.3; h. Removing “D4057-88 ‘Standard Practice for Manual Sampling of Petroleum and Petroleum Products’ (incorporated by reference under § 75.6)” and adding in its place, “ASTM D4057-95 (Reapproved 2000), Standard Practice for Manual Sampling of Petroleum and Petroleum Products (incorporated by reference under § 75.6 of this part)”, in sections 2.2.4.1 and 2.2.4.2, and in paragraph

(c)of section 2.2.4.3; i. Revising sections 2.2.5, 2.2.6, and 2.2.7; j. Revising paragraphs (a)(2) and

(e)of section 2.3.1.4; k. Revising section 2.3.3.1.2; l. Revising section 2.3.4; m. Adding two sentences at the end of section 2.3.4.1; n. Revising paragraphs (b)(2) and

(c)of section 2.3.7; o. Revising section 3.2.2; and p. Revising section 3.5.1. The revisions and additions read as follows: Appendix D to Part 75—Optional SO 2 Emissions Data Protocol for Gas-Fired and Oil-Fired Units. 2. Procedure 2.1.5.1 Use the procedures in the following standards to verify flowmeter accuracy or design, as appropriate to the type of flowmeter: ASME MFC-3M-2004, Measurement of Fluid Flow in Pipes Using Orifice, Nozzle, and Venturi; ASME MFC-4M-1986 (Reaffirmed 1997), Measurement of Gas Flow by Turbine Meters; American Gas Association Report No. 3, Orifice Metering of Natural Gas and Other Related Hydrocarbon Fluids Part 1: General Equations and Uncertainty Guidelines (October 1990 Edition), Part 2: Specification and Installation Requirements (February 1991 Edition), and Part 3: Natural Gas Applications (August 1992 edition) (excluding the modified flow-calculation method in part 3); Section 8, Calibration from American Gas Association Transmission Measurement Committee Report No. 7: Measurement of Gas by Turbine Meters (Second Revision, April 1996); ASME-MFC-5M-1985, (Reaffirmed 1994), Measurement of Liquid Flow in Closed Conduits Using Transit-Time Ultrasonic Flowmeters; ASME MFC-6M-1998, Measurement of Fluid Flow in Pipes Using Vortex Flowmeters; ASME MFC-7M-1987 (Reaffirmed 1992), Measurement of Gas Flow by Means of Critical Flow Venturi Nozzles; ISO 8316: 1987(E) Measurement of Liquid Flow in Closed Conduits-Method by Collection of the Liquid in a Volumetric Tank; American Petroleum Institute

(API)Manual of Petroleum Measurement Standards, Chapter 22—Testing Protocol, Section 2—Differential Pressure Flow Measurement Devices, First Edition, August 2005; or ASME MFC-9M-1988 (Reaffirmed 2001), Measurement of Liquid Flow in Closed Conduits by Weighing Method, for all other flowmeter types (all incorporated by reference under § 75.6 of this part). The Administrator may also approve other procedures that use equipment traceable to National Institute of Standards and Technology standards. Document such procedures, the equipment used, and the accuracy of the procedures in the monitoring plan for the unit, and submit a petition signed by the designated representative under § 75.66(c). If the flowmeter accuracy exceeds 2.0 percent of the upper range value, the flowmeter does not qualify for use under this part. 2.1.7.1

(a)* * * Where: R base = Value of the fuel flow rate-to-load ratio during the baseline period; 100 scfh/MWe, 100 scfh/klb per hour steam load, or 100 scfh/mmBtu per hour thermal output for gas-firing; (lb/hr)/MWe, (lb/hr)/klb per hour steam load, or (lb/hr)/mmBtu per hour thermal output for oil-firing. L avg = Arithmetic average unit load during the baseline period, megawatts, 1000 lb/hr of steam, or mmBtu/hr thermal output.

(c)* * * Where:

(GHR)base = Baseline value of the gross heat rate during the baseline period, Btu/kwh, Btu/lb steam load, or 1000mmBtu heat input/mmBtu thermal output. L avg = Average

(mean)unit load during the baseline period, megawatts, 1000 lb/hr of steam, or mmBtu/hr thermal output. 2.1.7.2

(a)* * * Where: R h = Hourly value of the fuel flow rate-to-load ratio; 100 scfh/MWe, (lb/hr)/MWe, 100 scfh/1000 lb/hr of steam load, (lb/hr)/1000 lb/hr of steam load, 100 scfh/(mmBtu/hr of steam load), or (lb/hr)/(mmBtu/hr thermal output). L h = Hourly unit load, megawatts, 1000 lb/hr of steam, or mmBtu/hr thermal output.

(c)* * * Where:

(GHR)h = Hourly value of the gross heat rate, Btu/kwh, Btu/lb steam load, or mmBtu heat input/mmBtu thermal output. L h = Hourly unit load, megawatts, 1000 lb/hr of steam, or mmBtu/hr thermal output. 2.2.5 For each oil sample that is taken on-site at the affected facility, split and label the sample and maintain a portion (at least 200 cc) of it throughout the calendar year and in all cases for not less than 90 calendar days after the end of the calendar year allowance accounting period. This requirement does not apply to oil samples taken from the fuel supplier's storage container, as described in section 2.2.4.3 of this appendix. Analyze oil samples for percent sulfur content by weight in accordance with ASTM D129-00, Standard Test Method for Sulfur in Petroleum Products (General Bomb Method), ASTM D1552-01, Standard Test Method for Sulfur in Petroleum Products (High-Temperature Method), ASTM D2622-98, Standard Test Method for Sulfur in Petroleum Products by Wavelength Dispersive X-ray Fluorescence Spectrometry, ASTM D4294-98, Standard Test Method for Sulfur in Petroleum and Petroleum Products by Energy-Dispersive X-ray Fluorescence Spectrometry, or ASTM D5453-06, Standard Test Method for Determination of Total Sulfur in Light Hydrocarbons, Spark Ignition Engine Fuel, Diesel Engine Fuel, and Engine Oil by Ultraviolet Fluorescence (all incorporated by reference under § 75.6 of this part). Alternatively, the oil samples may be analyzed for percent sulfur by any consensus standard method prescribed for the affected unit under part 60 of this chapter. 2.2.6 Where the flowmeter records volumetric flow rate rather than mass flow rate, analyze oil samples to determine the density or specific gravity of the oil. Determine the density or specific gravity of the oil sample in accordance with ASTM D287-92 (Reapproved 2000), Standard Test Method for API Gravity of Crude Petroleum and Petroleum Products (Hydrometer Method), ASTM D1217-93 (Reapproved 1998), Standard Test Method for Density and Relative Density (Specific Gravity) of Liquids by Bingham Pycnometer, ASTM D1481-93 (Reapproved 1997), Standard Test Method for Density and Relative Density (Specific Gravity) of Viscous Materials by Lipkin Bicapillary Pycnometer, ASTM D1480-93 (Reapproved 1997), Standard Test Method for Density and Relative Density (Specific Gravity) of Viscous Materials by Bingham Pycnometer, ASTM D1298-99, Standard Test Method for Density, Relative Density (Specific Gravity), or API Gravity of Crude Petroleum and Liquid Petroleum Products by Hydrometer Method, or ASTM D4052-96 (Reapproved 2002), Standard Test Method for Density and Relative Density of Liquids by Digital Density Meter (all incorporated by reference under § 75.6 of this part). Alternatively, the oil samples may be analyzed for density or specific gravity by any consensus standard method prescribed for the affected unit under part 60 of this chapter. 2.2.7 Analyze oil samples to determine the heat content of the fuel. Determine oil heat content in accordance with ASTM D240-00, Standard Test Method for Heat of Combustion of Liquid Hydrocarbon Fuels by Bomb Calorimeter, ASTM D4809-00, Standard Test Method for Heat of Combustion of Liquid Hydrocarbon Fuels by Bomb Calorimeter (Precision Method), or ASTM D5865-01a, Standard Test Method for Gross Calorific Value of Coal and Coke (all incorporated by reference under § 75.6 of this part) or any other procedures listed in section 5.5 of appendix F of this part. Alternatively, the oil samples may be analyzed for heat content by any consensus standard method prescribed for the affected unit under part 60 of this chapter. 2.3.1.4 * * *

(a)* * *

(2)Historical fuel sampling data for the previous 12 months, documenting the total sulfur content of the fuel and the GCV and/or percentage by volume of methane. The results of all sample analyses obtained by or provided to the owner or operator in the previous 12 months shall be used in the demonstration, and each sample result must meet the definition of pipeline natural gas in § 72.2 of this chapter, except where the results of at least 100 daily (or more frequent) total sulfur samples are provided by the fuel supplier. In that case you may opt to convert these data to monthly averages and then if, for each month, the average total sulfur content is 0.5 grains/100 scf or less, and if the GCV or percent methane requirement is also met, the fuel qualifies as pipeline natural gas. Alternatively, the fuel qualifies as pipeline natural gas if ≥ 98 percent of the 100 (or more) samples have a total sulfur content of 0.5 grains/100 scf or less and if the GCV or percent methane requirement is also met; or

(e)If a fuel qualifies as pipeline natural gas based on the specifications in a fuel contract or tariff sheet, no additional, on-going sampling of the fuel's total sulfur content is required, provided that the contract or tariff sheet is current, valid and representative of the fuel combusted in the unit. If the fuel qualifies as pipeline natural gas based on fuel sampling and analysis, on-going sampling of the fuel's sulfur content is required annually and whenever the fuel supply source changes. For the purposes of this paragraph (e), sampling “annually” means that at least one sample is taken in each calendar year. If the results of at least 100 daily (or more frequent) total sulfur samples have been provided by the fuel supplier since the last annual assessment of the fuel's sulfur content, the data may be used as follows to satisfy the annual sampling requirement for the current year. If this option is chosen, all of the data provided by the fuel supplier shall be used. First, convert the data to monthly averages. Then, if, for each month, the average total sulfur content is 0.5 grains/100 scf or less, and if the GCV or percent methane requirement is also met, the fuel qualifies as pipeline natural gas. Alternatively, the fuel qualifies as pipeline natural gas if the analysis of the 100 (or more) total sulfur samples since the last annual assessment shows that ≥ 98 percent of the samples have a total sulfur content of 0.5 grains/100 scf or less and if the GCV or percent methane requirement is also met. The effective date of the annual total sulfur sampling requirement is January 1, 2003. 2.3.3.1.2 Use one of the following methods when using manual sampling (as applicable to the type of gas combusted) to determine the sulfur content of the fuel: ASTM D1072-06, Standard Test Method for Total Sulfur in Fuel Gases by Combustion and Barium Chloride Titration, ASTM D4468-85 (Reapproved 2006), Standard Test Method for Total Sulfur in Gaseous Fuels by Hydrogenolysis and Rateometric Colorimetry, ASTM D5504-01, Standard Test Method for Determination of Sulfur Compounds in Natural Gas and Gaseous Fuels by Gas Chromatography and Chemiluminescence, ASTM D6667-04, Standard Test Method for Determination of Total Volatile Sulfur in Gaseous Hydrocarbons and Liquefied Petroleum Gases by Ultraviolet Fluorescence, or ASTM D3246-96, Standard Test Method for Sulfur in Petroleum Gas by Oxidative Microcoulometry, (all incorporated by reference under § 75.6 of this part). Alternatively, the gas samples may be analyzed for percent sulfur by any consensus standard method prescribed for the affected unit under part 60 of this chapter. 2.3.4 Gross Calorific Values for Gaseous Fuels Determine the GCV of each gaseous fuel at the frequency specified in this section, using one of the following methods: ASTM D1826-94 (Reapproved 1998), ASTM D3588-98, ASTM D4891-89 (Reapproved 2006), GPA Standard 2172-96, Calculation of Gross Heating Value, Relative Density and Compressibility Factor for Natural Gas Mixtures from Compositional Analysis, or GPA Standard 2261-00, Analysis for Natural Gas and Similar Gaseous Mixtures by Gas Chromatography (all incorporated by reference under § 75.6 of this part). Use the appropriate GCV value, as specified in section 2.3.4.1, 2.3.4.2, or 2.3.4.3 of this appendix, in the calculation of unit hourly heat input rates. Alternatively, the gas samples may be analyzed for heat content by any consensus standard method prescribed for the affected unit under part 60 of this chapter. 2.3.4.1 GCV of Pipeline Natural Gas * * * If multiple GCV samples are taken and analyzed in a particular month, the GCV values from all samples shall be averaged arithmetically to obtain the monthly GCV. Then, apply the monthly average GCV value as described in paragraph

(c)in section 2.3.7 of this appendix. 2.3.7 * * *

(b)* * *

(2)For natural gas, if only one sample is taken, apply the results beginning at the date on which the sample was taken. If multiple samples are taken and averaged, apply the results beginning at the date on which the last sample used in the annual assessment was taken;

(c)For monthly samples of the fuel GCV:

(1)If the actual monthly value is to be used in the calculations and only one sample is taken, apply the results starting from the date on which the sample was taken. If multiple samples are taken and averaged, apply the monthly average GCV value to the entire month; or

(2)If an assumed value (contract maximum or highest value from previous year's samples) is to be used in the calculations, apply the assumed value to all hours in each month of the quarter unless a higher value is obtained in a monthly GCV sample (or, if multiple samples are taken and averaged, if the monthly average exceeds the assumed value). In that case, if only one monthly sample is taken, use the sampled value, starting from the date on which the sample was taken. If multiple samples are taken and averaged, use the average value for the entire month in which the assumed value was exceeded. Consider the sample (or, if applicable, monthly average) results to be the new assumed value. Continue using the new assumed value unless and until one of the following occurs (as applicable to the reporting option selected): The assumed value is superseded by a higher value from a subsequent monthly sample (or by a higher monthly average); or the assumed value is superseded by a new contract in which case the new contract value becomes the assumed value at the time the fuel specified under the new contract begins to be combusted in the unit; or both the calendar year in which the new sampled value (or monthly average) exceeded the assumed value and the subsequent calendar year have elapsed. 3.2.2 Convert density, specific gravity, or API gravity of the oil sample to density of the oil sample at the sampling location's temperature using ASTM D1250-07, Standard Guide for Use of the Petroleum Measurement Tables (incorporated by reference under (§ 75.6 of this part). 3.5.1 Hourly SO 2 Mass Emissions from the Combustion of all Fuels. Determine the total mass emissions for each hour from the combustion of all fuels using Equation D-12 (On and after January 1, 2009, determine the total mass emission rate (in lbs/hr) for each hour from the combustion of all fuels by dividing Equation D-12 by the actual unit operating time for the hour): ER24JA08.019 Where: MSO 2 -hr = Total mass of SO 2 emissions from all fuels combusted during the hour, lb. SO 2 rate−I = SO 2 mass emission rate for each type of gas or oil fuel combusted during the hour, lb/hr. ti = Time each gas or oil fuel was combusted for the hour (fuel usage time), fraction of an hour (in equal increments that can range from one hundredth to one quarter of an hour, at the option of the owner or operator). 43. Appendix E to part 75 is amended by: a. Adding a new sentence to the end of section 2.1; b. Revising the seventh sentence of section 2.1.2.1; c. Revising sections 2.1.2.2 and 2.1.2.3; d. Removing the phrase “(MWge or steam load in 1000 lb/hr)” and adding in its place the phrase “(MWge or steam load in 1000 lb/hr, or mmBtu/hr thermal output)”, in section 2.4.1; e. Revising section 2.5.2; and f. Adding section 2.5.2.4. The revisions and additions read as follows: Appendix E to Part 75—Optional NO X Emissions Estimation Protocol for Gas-Fired Peaking Units and Oil-Fired Peaking Units 2.1 *Initial Performance Testing* * * * The requirements in section 6.1.2 of appendix A to this part shall be met by any Air Emissions Testing Body

(AETB)performing O 2 and NO X concentration measurements under this appendix, either for units using the excepted methodology in this appendix or for units using the low mass emissions excepted methodology in § 75.19. 2.1.2.1 * * * Use a minimum of 12 sample points, located according to Method 1 in appendix A-1 to part 60 of this chapter. 2.1.2.2 For stationary gas turbines, sample at a minimum of 12 points per run at each load level. Locate the sample points according to Method 1 in appendix A-1 to part 60 of this chapter. For each fuel or consistent combination of fuels (and, optionally, for each combination of fuels), measure the NO X and O 2 concentrations at each sampling point using methods 7E and 3A in appendices A-4 and A-2 to part 60 of this chapter. For diesel or dual fuel reciprocating engines, select the sampling site to be as close as practicable to the exhaust of the engine. 2.1.2.3 Allow the unit to stabilize for a minimum of 15 minutes (or longer if needed for the NO X and O 2 readings to stabilize) prior to commencing NO X , O 2 , and heat input measurements. Determine the measurement system response time according to sections 8.2.5 and 8.2.6 of method 7E in appendix A-4 to part 60 of this chapter. When inserting the probe into the flue gas for the first sampling point in each traverse, sample for at least one minute plus twice the measurement system response time (or longer, if necessary to obtain a stable reading). For all other sampling points in each traverse, sample for at least one minute plus the measurement system response time (or longer, if necessary to obtain a stable reading). Perform three test runs at each load condition and obtain an arithmetic average of the runs for each load condition. During each test run on a boiler, record the boiler excess oxygen level at 5 minute intervals. 2.5.2 Substitute missing NO X emission rate data using the highest NO X emission rate tabulated during the most recent set of baseline correlation tests for the same fuel or, if applicable, combination of fuels, except as provided in sections 2.5.2.1, 2.5.2.2, 2.5.2.3, and 2.5.2.4 of this appendix. 2.5.2.4 Whenever 20 full calendar quarters have elapsed following the quarter of the last baseline correlation test for a particular type of fuel (or fuel mixture), without a subsequent baseline correlation test being done for that type of fuel (or fuel mixture), substitute the fuel-specific NO X MER (as defined in § 72.2 of this chapter) for each hour in which that fuel (or mixture) is combusted until a new baseline correlation test for that fuel (or mixture) has been successfully completed. For fuel mixtures, report the highest of the individual MER values for the components of the mixture. 44. Appendix F to Part 75 is amended by: a. Removing the second and third sentences from the introductory text of section 2; b. Removing the phrase “method 19 in appendix A of part 60 of this chapter” and adding in its place the phrase “Method 19 in appendix A-7 to part 60 of this chapter”, in the last sentence of section 3.1 and in the last sentence of section 3.2; c. Adding the phrase “, or (if applicable) in the equations in Method 19 in appendix A-7 to part 60 of this chapter” after the words “of this appendix”, in section 3.3; d. Removing the second and third sentences from section 3.3.4; e. Adding sections 3.3.4.1 and 3.3.4.2; f. Revising Table 1; g. Revising the text preceding Equation F-7a, in section 3.3.6; h. Revising section 3.3.6.1; i. Revising section 3.3.6.2; j. Revising sections 3.3.6.3 and 3.3.6.4; k. Adding section 3.3.6.5; l. Adding the words “either measured directly with a CO 2 monitor or calculated from wet-basis O 2 data using Equation F-14b,” after the words “wet basis,” in the first sentence of the C h variable definition, and by removing the second and third sentences from the C h variable definition, in section 4.1; m. Revising section 4.4.1; n. Removing the second and third sentences from the %CO 2w variable definition in 5.2.1; o. Removing the second and third sentences from the %CO 2d variable definition in 5.2.2; p. Removing the second and third sentences from the %O 2w variable definition, and by adding a new sentence at the end of the paragraph, in section 5.2.3; q. Removing the second and third sentences from the %O 2d variable definition, in section 5.2.4; r. Revising the definition of “GCV o ” in paragraph

(a)of section 5.5.1; s. Revising the definition of “GCV g ” in section 5.5.2; t. Revising section 5.5.3.1; u. Revising section 5.5.3.2; v. Removing the phrase “as measured by ASTM D3176-89, D1989-92, D3286-91a, or D2015-91, Btu/lb” and adding in its place the phrase “as measured by ASTM D3176-89 (Reapproved 2002), or ASTM D5865-01a, Btu/lb. (incorporated by reference under § 75.6 of this part).” in the definition of the GCV c variable in Equation F-21; w. Removing the word “lb/hr” and adding in its place the phrase “lb/hr, or mmBtu/hr” in the definition of the SF variable in Equation F-21b; x. Revising the heading and text of section 7; y. Adding the words “of this appendix” after the words “section 8.1, 8.2, or 8.3” and after the words “section 8.4” in the introductory text for section 8; z. Revising sections 8.1 and 8.1.1; aa. Revising section 8.2; bb. Adding sections 8.2.1 and 8.2.2; cc. Revising section 8.3; dd. Revising section 8.4; and ee. Adding section 10. The revisions and additions read as follows: Appendix F to Part 75—Conversion Procedures. 3.3.4 * * * 3.3.4.1 For boilers, a minimum concentration of 5.0 percent CO 2 or a maximum concentration of 14.0 percent O 2 may be substituted for the measured diluent gas concentration value for any operating hour in which the hourly average CO 2 concentration is < 5.0 percent CO 2 or the hourly average O 2 concentration is > 14.0 percent O 2 . For stationary gas turbines, a minimum concentration of 1.0 percent CO 2 or a maximum concentration of 19.0 percent O 2 may be substituted for measured diluent gas concentration values for any operating hour in which the hourly average CO 2 concentration is < 1.0 percent CO 2 or the hourly average O 2 concentration is > 19.0 percent O 2 . 3.3.4.2 If NO X emission rate is calculated using either Equation 19-3 or 19-5 in Method 19 in appendix A-7 to part 60 of this chapter, a variant of the equation shall be used whenever the diluent cap is applied. The modified equations shall be designated as Equations 19-3D and 19-5D, respectively. Equation 19-3D is structurally the same as Equation 19-3, except that the term “%O 2w ” in the denominator is replaced with the term “%O 2dc × [(100−% H 2 O)/100]”, where %O 2dc is the diluent cap value. The numerator of Equation 19-5D is the same as Equation 19-5; however, the denominator of Equation 19-5D is simply “20.9−%O 2dc ”, where %O 2dc is the diluent cap value. Table 1.—F- and F c -Factors 1 Fuel F-factor (dscf/mmBtu) F C -factor (scf CO 2 /mmBtu) Coal (as defined by ASTM D388-99 2 ): Anthracite 10,100 1,970 Bituminous 9,780 1,800 Subbituminous 9,820 1,840 Lignite 9,860 1,910 Petroleum Coke 9,830 1,850 Tire Derived Fuel 10,260 1,800 Oil 9,190 1,420 Gas: Natural gas 8,710 1,040 Propane 8,710 1,190 Butane 8,710 1,250 Wood: Bark 9,600 1,920 Wood residue 9,240 1,830 1 Determined at standard conditions: 20 °C (68 °F) and 29.92 inches of mercury. 2 Incorporated by reference under § 75.6 of this part. 3.3.6 Equations F-7a and F-7b may be used in lieu of the F or F c factors specified in Section 3.3.5 of this appendix to calculate a site-specific dry-basis F factor (dscf/mmBtu) or a site-specific F c factor (scf CO 2 /mmBtu), on either a dry or wet basis. At a minimum, the site-specific F or F c factor must be based on 9 samples of the fuel. Fuel samples taken during each run of a RATA are acceptable for this purpose. The site-specific F or F c factor must be re-determined at least annually, and the value from the most recent determination must be used in the emission calculations. Alternatively, the previous F or F c value may continue to be used if it is higher than the value obtained in the most recent determination. The owner or operator shall keep records of all site-specific F or F c determinations, active for at least 3 years. (Calculate all F- and F c factors at standard conditions of 20 °C (68 °F) and 29.92 inches of mercury). 3.3.6.1 H, C, S, N, and O are content by weight of hydrogen, carbon, sulfur, nitrogen, and oxygen (expressed as percent), respectively, as determined on the same basis as the gross calorific value

(GCV)by ultimate analysis of the fuel combusted using ASTM D3176-89 (Reapproved 2002), Standard Practice for Ultimate Analysis of Coal and Coke, (solid fuels), ASTM D5291-02, Standard Test Methods for Instrumental Determination of Carbon, Hydrogen, and Nitrogen in Petroleum Products and Lubricants, (liquid fuels) or computed from results using ASTM D1945-96 (Reapproved 2001), Standard Test Method for Analysis of Natural Gas by Gas Chromatography, or ASTM D1946-90 (Reapproved 2006), Standard Practice for Analysis of Reformed Gas by Gas Chromatography, (gaseous fuels) as applicable. (All of these methods are incorporated by reference under § 75.6 of this part.) 3.3.6.2 GCV is the gross calorific value (Btu/lb) of the fuel combusted determined by ASTM D5865-01a, Standard Test Method for Gross Calorific Value of Coal and Coke, and ASTM D240-00, Standard Test Method for Heat of Combustion of Liquid Hydrocarbon Fuels by Bomb Calorimeter, or ASTM D4809-00, Standard Test Method for Heat of Combustion of Liquid Hydrocarbon Fuels by Bomb Calorimeter (Precision Method) for oil; and ASTM D3588-98, Standard Practice for Calculating Heat Value, Compressibility Factor, and Relative Density of Gaseous Fuels, ASTM D4891-89 (Reapproved 2006), Standard Test Method for Heating Value of Gases in Natural Gas Range by Stoichiometric Combustion, GPA Standard 2172-96 Calculation of Gross Heating Value, Relative Density and Compressibility Factor for Natural Gas Mixtures from Compositional Analysis, GPA Standard 2261-00 Analysis for Natural Gas and Similar Gaseous Mixtures by Gas Chromatography, or ASTM D1826-94 (Reapproved 1998), Standard Test Method for Calorific (Heating) Value of Gases in Natural Gas Range by Continuous Recording Calorimeter, for gaseous fuels, as applicable. (All of these methods are incorporated by reference under § 75.6 of this part). 3.3.6.3 For affected units that combust a combination of a fuel (or fuels) listed in Table 1 in section 3.3.5 of this appendix with any fuel(s) not listed in Table 1, the F or F c value is subject to the Administrator's approval under § 75.66. 3.3.6.4 For affected units that combust combinations of fuels listed in Table 1 in section 3.3.5 of this appendix, prorate the F or F c factors determined by section 3.3.5 or 3.3.6 of this appendix in accordance with the applicable formula as follows: ER24JA08.020 Where, X i = Fraction of total heat input derived from each type of fuel ( *e.g.* , natural gas, bituminous coal, wood). Each X i value shall be determined from the best available information on the quantity of fuel combusted and the GCV value, over a specified time period. The owner or operator shall explain the method used to calculate X i in the hardcopy portion of the monitoring plan for the unit. The X i values may be determined and updated either hourly, daily, weekly, or monthly. In all cases, the prorated F-factor used in the emission calculations shall be determined using the X i values from the most recent update. F i or (F c ) i = Applicable F or Fc factor for each fuel type determined in accordance with Section 3.3.5 or 3.3.6 of this appendix. n = Number of fuels being combusted in combination. 3.3.6.5 As an alternative to prorating the F or Fc factor as described in section 3.3.6.4 of this appendix, a “worst-case” F or F c factor may be reported for any unit operating hour. The worst-case F or F c factor shall be the highest F or F c value for any of the fuels combusted in the unit. 4. Procedure for CO 2 Mass Emissions 4.4.1 If the owner or operator elects to use data from an O 2 monitor to calculate CO 2 concentration, the appropriate F and F C factors from section 3.3.5 of this appendix shall be used in one of the following equations (as applicable) to determine hourly average CO 2 concentration of flue gases (in percent by volume) from the measured hourly average O 2 concentration: ER24JA08.021 Where: CO 2d = Hourly average CO 2 concentration during unit operation, percent by volume, dry basis. F, F C = F-factor or carbon-based F c -factor from section 3.3.5 of this appendix. 20.9 = Percentage of O 2 in ambient air. O 2d = Hourly average O 2 concentration during unit operation, percent by volume, dry basis. ER24JA08.022 Where: CO 2w = Hourly average CO 2 concentration during unit operation, percent by volume, wet basis. O 2w = Hourly average O 2 concentration during unit operation, percent by volume, wet basis. F, F c = F-factor or carbon-based FC-factor from section 3.3.5 of this appendix. 20.9 = Percentage of O 2 in ambient air. %H 2 O = Moisture content of gas in the stack, percent. For any hour where Equation F-14a or F-14b results in a negative hourly average CO 2 value, 0.0% CO 2w shall be recorded as the average CO 2 value for that hour. 5. Procedures for Heat Input 5.2.3 * * * For any operating hour where Equation F-17 results in an hourly heat input rate that is ≤ 0.0 mmBtu/hr, 1.0 mmBtu/hr shall be recorded and reported as the heat input rate for that hour. 5.5.1

(a)* * * GCV o = Gross calorific value of oil, as measured by ASTM D240-00, ASTM D5865-01a, or ASTM D4809-00 for each oil sample under section 2.2 of appendix D to this part, Btu/unit mass (all incorporated by reference under (§ 75.6 of this part). 5.5.2 * * * GCV g = Gross calorific value of gaseous fuel, as determined by sampling (for each delivery for gaseous fuel in lots, for each daily gas sample for gaseous fuel delivered by pipeline, for each hourly average for gas measured hourly with a gas chromatograph, or for each monthly sample of pipeline natural gas, or as verified by the contractual supplier at least once every month pipeline natural gas is combusted, as specified in section 2.3 of appendix D to this part) using ASTM D1826-94 (Reapproved 1998), ASTM D3588-98, ASTM D4891-89 (Reapproved 2006), GPA Standard 2172-96 Calculation of Gross Heating Value, Relative Density and Compressibility Factor for Natural Gas Mixtures from Compositional Analysis, or GPA Standard 2261-00 Analysis for Natural Gas and Similar Gaseous Mixtures by Gas Chromatography, Btu/100 scf (all incorporated by reference under § 75.6 of this part). 5.5.3.1 Perform coal sampling daily according to section 5.3.2.2 in Method 19 in appendix A to part 60 of this chapter and use ASTM D2234-00, Standard Practice for Collection of a Gross Sample of Coal, (incorporated by reference under § 75.6 of this part) Type I, Conditions A, B, or C and systematic spacing for sampling. (When performing coal sampling solely for the purposes of the missing data procedures in § 75.36, use of ASTM D2234-00 is optional, and coal samples may be taken weekly.) 5.5.3.2 All ASTM methods are incorporated by reference under § 75.6 of this part. Use ASTM D2013-01, Standard Practice for Preparing Coal Samples for Analysis, for preparation of a daily coal sample and analyze each daily coal sample for gross calorific value using ASTM D5865-01a, Standard Test Method for Gross Calorific Value of Coal and Coke. On-line coal analysis may also be used if the on-line analytical instrument has been demonstrated to be equivalent to the applicable ASTM methods under §§ 75.23 and 75.66. 7. Procedures for SO 2 Mass Emissions, Using Default SO 2 Emission Rates and Heat Input Measured by CEMS The owner or operator shall use Equation F-23 to calculate hourly SO 2 mass emissions in accordance with § 75.11(e)(1) during the combustion of gaseous fuel, for a unit that uses a flow monitor and a diluent gas monitor to measure heat input, and that qualifies to use a default SO 2 emission rate under section 2.3.1.1, 2.3.2.1.1, or 2.3.6(b) of appendix D to this part. Equation F-23 may also be applied to the combustion of solid or liquid fuel that meets the definition of very low sulfur fuel in § 72.2 of this chapter, combinations of such fuels, or mixtures of such fuels with gaseous fuel, if the owner or operator has received approval from the Administrator under § 75.66 to use a site-specific default SO 2 emission rate for the fuel or mixture of fuels. ER24JA08.023 Where: E h = Hourly SO 2 mass emission rate, lb/hr. ER = Applicable SO 2 default emission rate for gaseous fuel combustion, from section 2.3.1.1, 2.3.2.1.1, or 2.3.6(b) of appendix D to this part, or other default SO 2 emission rate for the combustion of very low sulfur liquid or solid fuel, combinations of such fuels, or mixtures of such fuels with gaseous fuel, as approved by the Administrator under § 75.66, lb/mmBtu. HI = Hourly heat input rate, determined using the procedures in section 5.2 of this appendix, mmBtu/hr. 8. Procedures for NO X Mass Emissions 8.1 The own or operator may use the hourly NO X emission rate and the hourly heat input rate to calculate the NO X mass emissions in pounds or the NO X mass emission rate in pounds per hour, (as required by the applicable reporting format), for each unit or stack operating hour, as follows: 8.1.1 If both NO X emission rate and heat input rate are monitored at the same unit or stack level (e.g., the NO X emission rate value and the heat input rate value both represent all of the units exhausting to the common stack), then (as required by the applicable reporting format) either:

(a)Use Equation F-24 to calculate the hourly NO X mass emissions (lb). ER24JA08.024 Where: M (NO X ) h = NO X mass emissions in lbs for the hour. ER (NO X ) h = Hourly average NO X emission rate for hour h, lb/mmBtu, from section 3 of this appendix, from Method 19 in appendix A-7 to part 60 of this chapter, or from section 3.3 of appendix E to this part. (Include bias-adjusted NO X emission rate values, where the bias-test procedures in appendix A to this part shows a bias-adjustment factor is necessary.) HI h = Hourly average heat input rate for hour h, mmBtu/hr. (Include bias-adjusted flow rate values, where the bias-test procedures in appendix A to this part shows a bias-adjustment factor is necessary.) t h = Monitoring location operating time for hour h, in hours or fraction of an hour (in equal increments that can range from one hundredth to one quarter of an hour, at the option of the owner or operator). If the combined NO X emission rate and heat input are monitored for all of the units in a common stack, the monitoring location operating time is equal to the total time when any of those units was exhausting through the common stack; or

(b)Use Equation F-24a to calculate the hourly NO X mass emission rate (lb/hr). ER24JA08.025 Where: E (NO X ) h = NO X mass emissions rate in lbs/hr for the hour. ER (NO X ) h = Hourly average NO X emission rate for hour h, lb/mmBtu, from section 3 of this appendix, from Method 19 in appendix A-7 to part 60 of this chapter, or from section 3.3 of appendix E to this part. (Include bias-adjusted NO X emission rate values, where the bias-test procedures in appendix A to this part shows a bias-adjustment factor is necessary.) HI h = Hourly average heat input rate for hour h, mmBtu/hr. (Include bias-adjusted flow rate values, where the bias-test procedures in appendix A to this part shows a bias-adjustment factor is necessary.) 8.2 Alternatively, the owner or operator may use the hourly NO X concentration (as measured by a NO X concentration monitoring system) and the hourly stack gas volumetric flow rate to calculate the NO X mass emission rate (lb/hr) for each unit or stack operating hour, in accordance with section 8.2.1 or 8.2.2 of this appendix (as applicable). If the hourly NO X mass emissions are to be reported in lb, Equation F-26c in section 8.3 of this appendix shall be used to convert the hourly NO X mass emission rates to hourly NO X mass emissions (lb). 8.2.1 When the NO X concentration monitoring system measures on a wet basis, first calculate the hourly NO X mass emission rate (in lb/hr) during unit (or stack) operation, using Equation F-26a. (Include bias-adjusted flow rate or NO X concentration values, where the bias-test procedures in appendix A to this part shows a bias-adjustment factor is necessary.) ER24JA08.026 Where: E (NO X ) h = NO X mass emissions rate in lb/hr. K = 1.194 x 10 −7 for NO X , (lb/scf)/ppm. C hw = Hourly average NO X concentration during unit operation, wet basis, ppm. Q h = Hourly average volumetric flow rate during unit operation, wet basis, scfh. 8.2.2 When NO X mass emissions are determined using a dry basis NO X concentration monitoring system and a wet basis flow monitoring system, first calculate hourly NO X mass emission rate (in lb/hr) during unit (or stack) operation, using Equation F-26b. (Include bias-adjusted flow rate or NO X concentration values, where the bias-test procedures in appendix A to this part shows a bias-adjustment factor is necessary.) ER24JA08.027 Where: E (NO X ) h = NO X mass emissions rate, lb/hr. K = 1.194 x 10 −7 for NO X , (lb/scf)/ppm. C hd = Hourly average NO X concentration during unit operation, dry basis, ppm. Q h = Hourly average volumetric flow rate during unit operation, wet basis, scfh. %H 2 O = Hourly average stack moisture content during unit operation, percent by volume. 8.3 When hourly NO X mass emissions are reported in pounds and are determined using a NO X concentration monitoring system and a flow monitoring system, calculate NO X mass emissions

(lb)for each unit or stack operating hour by multiplying the hourly NO X mass emission rate (lb/hr) by the unit operating time for the hour, as follows: ER24JA08.028 Where: M (NO X ) h = NO X mass emissions for the hour, lb. E h = Hourly NO X mass emission rate during unit (or stack) operation from Equation F-26a in section 8.2.1 of this appendix or Equation F-26b in section 8.2.2 of this appendix (as applicable), lb/hr. t h = Unit operating time or stack operating time (as defined in § 72.2 of this chapter) for hour “h”, in hours or fraction of an hour (in equal increments that can range from one hundredth to one quarter of an hour, at the option of the owner or operator). 8.4 Use the following procedures to calculate quarterly, cumulative ozone season, and cumulative yearly NO X mass emissions, in tons:

(a)When hourly NO X mass emissions are reported in lb., use Eq. F-27. ER24JA08.029 Where: M (NO X ) time period = NO X mass emissions in tons for the given time period (quarter, cumulative ozone season, cumulative year-to-date). M (NO X ) h = NO X mass emissions in lb for the hour. p = The number of hours in the given time period (quarter, cumulative ozone season, cumulative year-to-date).

(b)When hourly NO X mass emission rate is reported in lb/hr, use Eq. F-27a. ER24JA08.030 Where: M (NO X ) time period = NO X mass emissions in tons for the given time period (quarter, cumulative ozone season, cumulative year-to-date). E (NO X ) h = NO X mass emission rate in lb/hr for the hour. p = The number of hours in the given time period (quarter, cumulative ozone season, cumulative year-to-date). t h = Monitoring location operating time for hour h, in hours or fraction of an hour (in equal increments that can range from one hundredth to one quarter of an hour, at the option of the owner or operator). 10. Moisture Determination From Wet and Dry O 2 Readings If a correction for the stack gas moisture content is required in any of the emissions or heat input calculations described in this appendix, and if the hourly moisture content is determined from wet- and dry-basis O 2 readings, use Equation F-31 to calculate the percent moisture, unless a “K” factor or other mathematical algorithm is developed as described in section 6.5.7(a) of appendix A to this part: ER24JA08.031 Where: % H 2 O = Hourly average stack gas moisture content, percent H 2 O O 2d = Dry-basis hourly average oxygen concentration, percent O 2 O 2w = Wet-basis hourly average oxygen concentration, percent O 2 45. Appendix G to Part 75 is amended by: a. Revising section 2.1.2; b. Removing “D3174-89 `Standard Test Method for Ash in the Analysis Sample of Coal and Coke From Coal' ” and by adding in its place, “D3174-00, Standard Test Method for Ash in the Analysis Sample of Coal and Coke from Coal” in section 2.2.1; and c. Removing “D3178-89 (1997), `Standard Test Methods for Carbon and Hydrogen in the Analysis Sample of Coal and Coke' ” and adding in its place “D5373-02 (Reapproved 2007), Standard Test Methods for Instrumental Determination of Carbon, Hydrogen, and Nitrogen in Laboratory Samples of Coal and Coke” in section 2.2.2. The revisions read as follows: Appendix G to Part 75—Determination of CO 2 Emissions. 2.1.2 Determine the carbon content of each fuel sample using one of the following methods: ASTM D3178-89 (Reapproved 2002) or ASTM D5373-02 (Reapproved 2007) for coal; ASTM D5291-02, Standard Test Methods for Instrumental Determination of Carbon, Hydrogen, and Nitrogen in Petroleum Products and Lubricants, ultimate analysis of oil, or computations based upon ASTM D3238-95 (Reapproved 2000) and either ASTM D2502-92 (Reapproved 1996) or ASTM D2503-92 (Reapproved 1997) for oil; and computations based on ASTM D1945-96 (Reapproved 2001) or ASTM D1946-90 (Reapproved 2006) for gas (all incorporated by reference under § 75.6 of this part). 46. Appendix K to Part 75 is amended by: a. Removing the words “(see §§ 75.11(b) and 75.12(b))” and adding in its place the words “(see § 75.11(b))” in section 5; b. Adding a sentence to the end of section 7.2.3; c. Removing the words “or § 75.12(b)” and “or § 75.12,” from section 7.2.4; d. Revising Table K-1 of section 8; and e. Adding the words “or in Table K-1” following the words “§ 75.15(h)” in the second sentence of section 11.8. The revisions and additions read as follows: Appendix K to Part 75—Quality Assurance and Operating Procedures for Sorbent Trap Monitoring Systems 7.2.3 * * * The sample flow rate through a sorbent trap monitoring system during any hour (or portion of an hour) in which the unit is not operating shall be zero. Table K-1.—Quality Assurance/Quality Control Criteria for Sorbent Trap Monitoring Systems QA/QC test or specification Acceptance criteria Frequency Consequences if not met Pre-test leak check ≤4% of target sampling rate Prior to sampling Sampling shall not commence until the leak check is passed. Post-test leak check ≤4% of average sampling rate After sampling ** See *Note* , below. Ratio of stack gas flow rate to sample flow rate No more than 5% of the hourly ratios or 5 hourly ratios (whichever is less restrictive) may deviate from the reference ratio by more than ± 25% Every hour throughout data collection period ** See *Note* , below. Sorbent trap section 2 break-through ≤5% of Section 1 Hg mass Every sample ** See *Note* , below. Paired sorbent trap agreement ≤10% Relative Deviation

(RD)if the average concentration is > 1.0 μg/m 3 ≤ 20% RD if the average concentration is ≤ 1.0 μg/m 3 Results are also acceptable if absolute difference between concentrations from paired traps is ≤ 0.03 μg/m 3 Every sample Either invalidate the data from the paired traps or report the results from the trap with the higher Hg concentration. Spike Recovery Study Average recovery between 85% and 115% for each of the 3 spike concentration levels Prior to analyzing field samples and prior to use of new sorbent media Field samples shall not be analyzed until the percent recovery criteria has been met Multipoint analyzer calibration Each analyzer reading within ± 10% of true value and r 2 ≥ 0.99 On the day of analysis, before analyzing any samples Recalibrate until successful. Analysis of independent calibration standard Within ± 10% of true value Following daily calibration, prior to analyzing field samples Recalibrate and repeat independent standard analysis until successful. Spike recovery from section 3 of sorbent trap 75-125% of spike amount Every sample ** See *Note* , below. RATA RA ≤ 20.0% *or* Mean difference ≤ 1.0 μg/dscm for low emitters For initial certification and annually thereafter Data from the system are invalidated until a RATA is passed. Gas flow meter calibration Calibration factor

(Y)within ± 5% of average value from the most recent 3-point calibration At three settings prior to initial use and at least quarterly at one setting thereafter. For mass flow meters, initial calibration with stack gas is required Recalibrate the meter at three orifice settings to determine a new value of Y. Temperature sensor calibration Absolute temperature measured by sensor within ± 1.5% of a reference sensor Prior to initial use and at least quarterly thereafter Recalibrate. Sensor may not be used until specification is met. Barometer calibration Absolute pressure measured by instrument within ± 10 mm Hg of reading with a mercury barometer Prior to initial use and at least quarterly thereafter Recalibrate. Instrument may not be used until specification is met. ** Note: If both traps fail to meet the acceptance criteria, the data from the pair of traps are invalidated. However, if only one of the paired traps fails to meet this particular acceptance criterion and the other sample meets all of the applicable QA criteria, the results of the valid trap may be used for reporting under this part, provided that the measured Hg concentration is multiplied by a factor of 1.111. When the data from both traps are invalidated and quality-assured data from a certified backup monitoring system, reference method, or approved alternative monitoring system are unavailable, missing data substitution must be used. [FR Doc. E7-25071 Filed 1-23-08; 8:45 am] BILLING CODE 6560-50-P 73 16 Thursday, January 24, 2008 Proposed Rules Part III Department of the Interior Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the Siskiyou Mountains Salamander (Plethodon stormi) and Scott Bar Salamander (Plethodon asupak) as Threatened or Endangered; Proposed Rule DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [FWS-R8-ES-2008-0002; 1111 FY07 MO;ABC Code: B2] Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the Siskiyou Mountains Salamander (Plethodon stormi) and Scott Bar Salamander (Plethodon asupak) as Threatened or Endangered AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of 12-month petition finding. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the Siskiyou Mountains salamander ( *Plethodon stormi* ) and Scott Bar salamander ( *Plethodon asupak* ) as threatened or endangered, under the Endangered Species Act of 1973, as amended (Act). After a thorough review of all available scientific and commercial information, we find that listing the Siskiyou Mountains salamander and Scott Bar salamander is not warranted. We ask the public to continue to submit to us any new information concerning the status of, and threats to, these species. This information will help us to monitor and encourage the ongoing management of these species. DATES: We made the finding announced in this document on January 24, 2008. ADDRESSES: This finding is available on the Internet at *http://www.regulations.gov* and *http://www.fws.gov/yreka/.* Supporting documentation we used in preparing this finding is available for public inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Yreka Fish and Wildlife Office, 1829 S. Oregon Street, Yreka, CA 96097; telephone 530-842-5763; facsimile 530-842-4517. Please submit any new information, materials, comments, or questions concerning this finding to the above address or via electronic mail (e-mail) at *Siskiyou_salamander@fws.gov* . FOR FURTHER INFORMATION CONTACT: Phil Detrich, Field Supervisor, U.S. Fish and Wildlife Service, Yreka Fish and Wildlife Office (see ADDRESSES section). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service

(FIRS)at 800-877-8339. SUPPLEMENTARY INFORMATION: Background Section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.) requires that, for any petition to revise the Lists of Endangered and Threatened Wildlife and Plants that contains substantial scientific and commercial information that listing may be warranted, we make a finding within 12 months of the date of our receipt of the petition on whether the petitioned action is:

(a)Not warranted,

(b)warranted, or

(c)warranted, but the immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether any species is threatened or endangered. Such 12-month findings are to be published promptly in the **Federal Register** . Section 4(b)(3)(C) of the Act requires that we treat a petition for which the requested action is found to be warranted but precluded as though resubmitted on the date of such finding, and we must make a subsequent finding within 12 months. Previous Federal Actions On June 18, 2004, we received a petition dated June 16, 2004, from the Center for Biological Diversity, Klamath-Siskiyou Wildlands Center, and Noah Greenwald, to list the Siskiyou Mountains salamander ( *Plethodon stormi* ) as a threatened or endangered species on behalf of themselves and five other organizations. The petition clearly identified itself as such and included the requisite identification information for the petitioners, as required in 50 CFR 424.14(a). In their petition, the petitioners assert that there are three separate distinct population segments

(DPSs)of the Siskiyou Mountains salamander, one of which consists of the Scott Bar salamander. Alternatively, the petitioners assert that the Scott Bar salamander is a separate species and request that it be considered independently for listing. Since the time the petition was submitted, the Scott Bar salamander ( *Plethodon asupak* ) has been recognized as a species separate from the Siskiyou Mountains salamander (Mead et al. 2005, pp. 169-171), and we have reviewed it separately in making this finding. The petitioners also requested the Service to consider whether the Siskiyou Mountains salamander (and therefore the Scott Bar salamander, as well) warrants listing throughout a significant portion of its range, and requested designation of critical habitat for both species concurrent with their listing. In a July 19, 2004, letter to the petitioners, we responded that we reviewed the petition for both species and determined that an emergency listing was not warranted, and that because of inadequate funds for listing and critical habitat designation, we would not be able to otherwise address the petition to list the Siskiyou Mountains salamander and Scott Bar salamander at that time. On June 23, 2005, we received a 60-day notice of intent to sue and on August 23, 2005, the Center for Biological Diversity and four other groups filed a Complaint for Declaratory and Injunctive Relief in Federal District Court for the District of Oregon ( *Center for Biological Diversity et al.* v. *Norton et al.* , No. 3:05-CV-1311-BR), challenging our failure to issue a 90-day finding on the petition to list the Siskiyou Mountains salamander and Scott Bar salamander. On December 28, 2005, we reached an agreement with the plaintiffs to complete the 90-day finding by April 15, 2006, and if we determined that the petition presented substantial information that listing may be warranted, to complete the 12-month finding by January 15, 2007. On April 17, 2006, the Service made its 90-day finding (71 FR 23886, April 25, 2006), concluding that the petition did not present substantial scientific or commercial information to indicate that listing the Siskiyou Mountains salamander and Scott Bar salamander may be warranted. On July 6, 2006, the Center for Biological Diversity and others filed suit in the United States District Court for the Northern District of California ( *Center for Biological Diversity et al.* v. *Dirk Kempthorne et al.* , No. C-06-4186-WHA), challenging the merits of that finding. On January 19, 2007, the District Court determined the 90-day finding was arbitrary and capricious, vacated and remanded the finding, and ordered the Service to make a new finding by March 23, 2007. A new 90-day finding was signed on March 22, 2007, and we published it in the **Federal Register** on March 29, 2007 (72 FR 14750). In that 90-day finding, we concluded that the petition presented substantial scientific or commercial information to indicate that listing the Siskiyou Mountains salamander and Scott Bar salamander may be warranted, announced the initiation of a status review of these taxa, and solicited comments and information to be provided in connection with the status review by May 29, 2007. This notice constitutes our 12-month finding regarding the petition to list these two species. To ensure that this finding is based on the latest information and incorporates the opinions of the scientific community, the Service entered into a Cooperative Agreement with the U.S. Geological Survey, Forest and Rangeland Ecosystem Science Center, in Corvallis, Oregon, to provide a technical report addressing taxonomy, biology, habitat associations, detectability, and effects of habitat alteration on the salamanders. The technical report was authored by Douglas DeGross and R. Bruce Bury, and reviewed by species experts in the U.S. Geological Survey, Forest and Rangeland Ecosystem Science Center; U.S. Forest Service

(USFS)Pacific Northwest Research Station and Pacific Southwest Research Station; and Rogue River-Siskiyou National Forest. The technical report (DeGross and Bury 2007), information provided by the public, and additional information and data in our files provided the basis for this status review for the Siskiyou Mountains salamander and Scott Bar salamander. In addition, Service staff involved in the development of this finding have several years of combined experience surveying for and researching the distribution and habitat associations of Siskiyou Mountains salamander. Foreseeable Future The principal difference between an “endangered” and a “threatened” species under the Act is whether the species is currently in danger of extinction, or if it is likely to become so “within the foreseeable future.” The Act does not define the term foreseeable future; however, we consider the foreseeable future to be affected by the biological and demographic characteristics of the species, as well as our ability to predict or extrapolate the effects of threats facing the species in the future. Quantification of the time period corresponding to the forseeable future is challenging because it necessitates making predictions about inherently dynamic political, legal, and social mechanisms that influence the degree and immediacy of potential threats to the species. Population dynamics of the Siskiyou Mountains salamander and Scott Bar salamander are poorly known, and we are unaware of data sufficient to support estimates of longevity, generation times, or recruitment rates for these species. For example, *Nussbaum et al.* (1983, p. 103) state that both sexes “are thought to” mature at 5 to 6 years of age, but provide no basis for this estimate. Likewise, estimates of population and genetically effective population (N e ) size are unavailable for these species (DeGross and Bury 2007, p. 9). Because the demographic and biological characteristics of these species are so poorly understood, we must base our estimate of foreseeable future on our ability to predict or extrapolate the effects of the future threats facing these species. Our ability to predict the effects of future threats is limited to our knowledge of the time frame of the threats potentially facing the species (e.g., timber harvest, wildfire, roads and road construction, mining and rock quarrying, disease, stochastic events, and climate change) and of any conservation activities taking place to address these threats. For example, the rate of timber harvest has declined on Federal lands (which constitute over 85 percent of the combined ranges of both species) during the last 30 years (USDA and USDI 1994, 2005) and we have no information that would lead us to predict a dramatic increase in the rate and intensity of timber harvest such that large areas of habitat will be affected to such a great degree that these species will suffer adverse impacts. In the event that the rate and intensity of timber harvesting were to increase dramatically, it would take some period of time (depending on the actual increase of the rate and intensity, and the impact of the harvesting at issue on the salamanders) for the cumulative impact of the timber harvesting to have a significant effect on the species. Because the available evidence suggests that the salamanders recover for even intensive disturbances such as clearcutting (from 11 years (Bull et al. 2006, p. 21) to 30 years (Welsh et al. 2007b) for Siskiyou Mountains salamanders), the species would only become in danger of extinction if that increased level and intensity of harvest lasted long enough to effect sufficient habitat at nearly the same time such that it overcame the apparent resiliency of the species to such disturbances. Further, while scientists predict that the rate of temperature change will continue to increase throughout the present century (EPRI 2003, p. 3; Hayhoe et al. 2004, p. 12423; Cayan et al. 2006, pp. 11-14, 31; Maurer 2007, p. 317), the effects of climate change on these species are uncertain and estimation of the timing of potential effects would be speculative. We do not have sufficient demographic information on Siskiyou Mountains salamanders or Scott Bar salamanders, nor on the trajectory of potential threats when combined with existing regulatory mechanisms, on which to base a precise definition of foreseeable future. Given the stability of Federal Land and Resource Management Plans and the Northwest Forest Plan

(NWFP)since its establishment in 1994, we assume that significant changes to current land management practices on Federal lands are not likely to occur within 20 years. We note that the changes in Federal land management that we can anticipate may happen in the short term, including termination of the Survey and Manage Program and Western Oregon Plan Revision, discussed below, are unlikely to result in the sort of significant changes that might have an important effect on the conservation status of the species. If a significant change were to occur, we estimate that, because of logistical and regulatory limitations imposed on the rate of planning and implementing significant land management actions, actual management activities could take an additional 20 years to reach a magnitude of effect that would measurably affect salamander populations. Therefore, we conclude that the foreseeable future for the salamanders does not extend beyond 40 years. In other words, we have sufficient confidence in our estimates of the threats and reaction of the two species to those threats to draw a conclusion as to the likelihood of endangerment over only at most 40 years. Beyond that period, our level of confidence is such that any conclusions we drew would be too speculative on which to base current action. We find that this estimate of the foreseeable future is both reasonable and appropriate because it focuses this status review on the time frame in which current social and political change may affect species management, which we consider to have the most likely potential for meaningful near-term influence on the status of these species. Species Descriptions Like others in the Family Plethodontidae (the lungless salamanders), the Siskiyou Mountains salamander and Scott Bar salamander are completely terrestrial, medium-sized, slender-bodied salamanders with short limbs and a dorsal stripe. Both species are found in or near talus (loose surface rock) and fissured rock outcrops where moisture and humidity are high enough to allow respiration through their skin (Feder 1983, p. 296; Nussbaum et al. 1983, pp. 73, 90, and 102; Stebbins 2003, p. 168). Both species are endemic to the Klamath-Siskiyou Mountains of southern Oregon and northern California, where they are considered as part of a species complex that includes and is named for the similar Del Norte salamander ( *Plethodon elongatus* ). Members of the *Plethodon elongatus* Complex differ physically from other regional members of the genus *Plethodon.* Species in the *Plethodon elongatus* Complex have webbed toes, while Dunn's salamander ( *P. dunni* ) and western red-backed salamander ( *P. vehiculum* ) do not (Highton 1962, pp. 255-256). The larger number of trunk vertebrae and costal grooves (vertical creases along the side of the body), as well as the smaller number of vomerine teeth (teeth on the vomer bone in the roof of the mouth) further distinguish the *Plethodon elongatus* Complex from the rest of the western *Plethodon* species (Highton and Brame 1965, p. 1; Brodie 1970, pp. 503-505; Nussbaum et al. 1983, p. 102; Mead et al. 2005, pp. 163-166). The Siskiyou Mountains salamander was described in 1965, two years after it was first identified (Highton and Brame 1965, p. 1). It is characterized by a modal number of 17 costal grooves and 4 to 5.5 intercostal folds (folds of skin between the costal grooves) between the toes of adpressed limbs (limbs firmly pressed against the sides of the body) (Nussbaum et al. 1983, p. 102; Leonard et al. 1993, p. 78). Adults have a light- to purplish-brown dorsum, and the body is sprinkled with a moderate to dense array of white to yellow flecks, concentrated on the sides and limbs and away from the light-brown dorsal stripe (Highton and Brame 1965, p. 1; Nussbaum et al. 1983, p. 102). Juveniles are black and have an olive-tan dorsal stripe that extends onto the tail. The Scott Bar salamander is more robust and has a wider head and longer limbs than the Del Norte salamander and Siskiyou Mountains salamander. It has fewer intercostal folds between adpressed limbs (2.5 to 3.5) than either the Del Norte salamander (5 to 6) or Siskiyou Mountains salamander (4 to 5.5), and the modal number of costal grooves

(17)is one less than in the Del Norte salamander (18). The Scott Bar salamander has a longer body relative to its tail length and longer forelimbs and hindlimbs than the Siskiyou Mountains salamander or Del Norte salamander. The coloration of the Scott Bar salamander is similar to that of the Siskiyou Mountains salamander and is described in Mead et al. (2005, p. 170). Despite the morphological differences described in Mead et al. (2005, pp. 169-171), the two species are difficult to distinguish in the field. Taxonomy The Siskiyou Mountains salamander was first identified in 1963, adding the second form to what is now referred to as the *Plethodon elongatus* Complex (Highton and Brame 1965, p. 1). Early distinctions between Siskiyou Mountains salamanders and Del Norte salamanders were based on morphological traits and coloration (Highton and Brame 1965, p. 1; Brodie 1970, pp. 503-505; Bury 1973, p. 57). However, it is now clear that field identification of these species based on coloration is unreliable because both species exhibit geographic variation in coloration (Brodie 1970, p. 503; Bury 1999, pp. 9-10). Researchers have cited morphological differences as evidence of a taxonomic distinction between Siskiyou Mountains salamanders and Del Norte salamanders. Perhaps the most convincing support for distinguishing between these forms was provided by Mead et al. (2005, pp. 165-166), who found that all three species in the *Plethodon elongatus* Complex differed in average measurements of male snout-vent length, forelimb length, and head width; and female snout-vent length, forelimb length, and internarial distance. Additionally, both Siskiyou Mountains salamanders and Scott Bar salamanders have a smaller modal number of costal folds and proportionally larger forelimbs than Del Norte salamanders, contributing to their more robust appearance (Highton and Brame 1965, p. 1; Mead et al. 2005, p. 170). Phylogenetic studies of the *Plethodon elongatus* Complex have provided further support for classifying Siskiyou Mountains salamanders and Del Norte salamanders as closely related species (Mahoney 2001, p. 183; Mahoney 2004, pp. 155-161; Bury and Welsh 2005, p. 842; Mead et al. 2005, p. 166). Phylogenetic studies of these species have also shown that early studies of the morphology of Del Norte salamanders along the Klamath River between Happy Camp and Seiad Valley, California, were in fact describing Siskiyou Mountains salamanders (Pfrender and Titus 2001, p. 15; DeGross 2004, pp. 17-18; Mahoney 2004, p. 5; Mead et al. 2005, p. 173; Mead 2006, pp. 15-16). In fact, Bury (1973, p. 57) proposed possible intergradation between these two species, and Stebbins (1985, p. 47; 2003, pp. 173-174) demoted the Siskiyou Mountains salamander to a subspecies of Del Norte salamander. However, recent research suggests that little gene flow occurs between these species across their zone of contact in the Indian Creek drainage in western Siskiyou County, California (DeGross 2004, p. 40; DeGross et al. unpublished). Phylogenetic studies of the Siskiyou Mountains salamander have indicated that this species consists of two distinct genetic lineages: North Clade (populations within the Applegate River drainage and on the crest of the Siskiyou Mountain Range) and South Clade (populations south of the Siskiyou Mountain Range crest and adjacent to the Klamath River) (Pfrender and Titus 2001, pp. 5-6; DeGross 2004, pp. 24-44; Mahoney 2004, p. 8; Mead et al. 2005, pp. 163-166). A third, more divergent, group was also identified and is now recognized as a separate species, the Scott Bar salamander. Based on levels of genetic divergence between species in the *Plethodon elongatus* Complex, researchers estimated that the Del Norte salamander and Siskiyou Mountains salamander lineages diverged approximately 4 million years ago and that their shared ancestral lineage diverged from that of the Scott Bar salamander between 20 and 26 million years ago (Mahoney 2004, p. 15; Mead et al. 2005, p. 165). Therefore, the Scott Bar salamander lineage appears to be the basal (most primitive, from which others are derived) lineage of the *Plethodon elongatus* Complex. Given the time periods during which these species diverged, speciation within this complex was probably influenced by Pleistocene glaciation (Soltis et al. 1997, pp. 369-370; Bury 1999, p. 22; DeGross and Bury unpublished). Differences between Scott Bar salamanders and the other members of the *Plethodon elongatus* Complex are not limited to their genetic divergence. As noted above, Mead et al. (2005, pp. 165-166) found differences in morphological measurements of all three species. Nonetheless, questions about the validity of the current classification of these species persist (sensu Wake and Jockusch 2000, p. 117). Further, the ranges of the Scott Bar salamander and Siskiyou Mountains salamander abut each other north of the Klamath River and south of Horse Creek, so it is possible that these species interbreed in this area. Measurements of gene flow between these species would be helpful to further clarify the taxonomy of southern populations of Siskiyou Mountains salamanders and Scott Bar salamanders and define the interspecific boundaries for each species range (DeGross and Bury 2007, p. 4; Wake and Jockusch 2000, p. 117). The Service recognizes that questions about the taxonomy of the *Plethodon elongatus* Complex remain and that research on this topic is ongoing. However, for the purpose of this finding, we evaluated the threats to the Siskiyou Mountains salamander and Scott Bar salamander separately because the preponderance of available evidence currently supports recognition of these forms as separate species. Even so, the ecological research on these species was conducted prior to recognition of the Scott Bar salamander as a separate species, and since both species are members of the Family Plethodontidae, their life histories and habitat associations appear to be similar. Therefore, for the purpose of this finding, we use the current literature describing the biological characteristics and ecology of the Siskiyou Mountains salamander for both species. For the purposes of this finding, we use the following hierarchy of taxonomic names:

(1)*Plethodon elongatus* Complex: Plethodon salamanders within the geographic region occupied by Del Norte salamander, Siskiyou Mountains salamander, and Scott Bar salamander.

(2)Siskiyou Mountains salamander Complex: The three known genetic entities previously classified as Siskiyou Mountains salamander, consisting of the Scott Bar salamander, Siskiyou Mountains salamander North Clade, and Siskiyou Mountains salamander South Clade.

(3)Siskiyou Mountains salamander (North and South Clades combined), not including the Scott Bar salamander.

(4)Individual genetic subunits of Siskiyou Mountains salamander: North Clade (hereafter referred to as the Applegate salamander) and South Clade (hereafter referred to as the Grider salamander). Biology Like other members of the Family Plethodontidae, Siskiyou Mountains and Scott Bar salamanders require contact with moisture for respiration through their permeable skin (Feder 1983, pp. 292-293). Desiccation is lethal to *Plethodon* species and therefore, surface activity by Siskiyou Mountains and Scott Bar salamanders primarily occurs at night, when the air is cool and moist (Nussbaum 1974, p. 3; Nussbaum et al. 1983, p. 103; Clayton and Nauman 2005, p. 139; Mead et al. 2005, p. 118). Peak periods of surface activity occur during the rainy season (usually late fall and spring) (Clayton and Nauman 2005, p. 139; Mead et al. 2005, p. 118). These salamanders retreat to underground refugia during the extreme climatic conditions common during summer and winter in the eastern Klamath Mountains (Nussbaum 1974, p. 3). They may forage at the surface during the summer (Nussbaum et al. 1983, p. 103) but probably only in sites with relatively cool, moist microclimates. Little is known about these species' behavior, but many researchers assume that they are inactive underground and that foraging and reproduction only occur during brief periods of surface activity (Feder 1983, p. 305). However, it is possible that these activities also occur below the surface (Welsh and Lind 1992, p. 433). The limited surface activity by these species is reflected in survey protocols for Siskiyou Mountains salamanders, which require that surveys be restricted to periods of relative humidity above 65 percent, air temperatures between 39.2 and 68 °F (4 to 20 °C), soil temperatures between 38.3 and 64.4 °F (3.5 to 18 °C), and moist soil conditions (Clayton et al. 1999, p. 133). *Plethodon* salamanders are fully terrestrial amphibians and do not need standing or flowing water for any stage of their life cycle (Zug et al. 2001, p. 383). Eggs are thought to be laid in small clusters deep in moist, rocky substrates, but this has not been observed by researchers. Females have clutches of 2 to 18 eggs, with an average of 9 eggs per clutch (Nussbaum et al. 1983, pp. 21-23). Juveniles emerge in late fall and early spring. Welsh and Lind (1992, p. 432) reported that juveniles captured in mid-spring were significantly larger than would be expected if newly hatched. These salamanders appear to become reproductively mature at 5 to 6 years and are relatively long-lived (up to 15 years) (Nussbaum et al. 1983, p. 103; Clayton and Nauman 2005, p. 139). Females appear to breed every other year (Nussbaum 1974, p. 22). Siskiyou Mountains and Scott Bar salamanders are `lie-and-wait' predators that prey on a variety of small terrestrial invertebrates, including spiders, pseudoscorpions, mites, ants, collembolans, and beetles (Nussbaum et al. 1983, p. 103). Seasonal changes in diet have been reported for these species (Nussbaum 1974, p. 24). Predators of these species have not been identified but may include snakes, shrews, or animals that opportunistically forage in spring leaf litter and debris (e.g., ground-foraging birds). Several researchers have hypothesized that interspecific and intraspecific competition are important factors in the population ecology of Siskiyou Mountains and Scott Bar salamanders (Nishikawa 1985, p. 1290; Mathis 1989, p. 790; Griffis and Jaeger 1998, p. 2500). These species' ranges overlap with those of ensatina ( *E. eschscholtzii oregonensis* ) and black salamanders ( *Aneides flavipunctatus* ), and a recent study described one site where they are sympatric with Del Norte salamanders (Mead 2006, p. 8). We are not aware of any information about parasites or diseases affecting these species or information about symbiotic or mutualistic interactions with other organisms. Habitat Associations Siskiyou Mountains salamanders and Scott Bar salamanders occur on slopes with rocky soils or talus (loose surface rock) outcrops. These substrates provide interstitial spaces into which these animals can retreat from the climatic extremes of the eastern Klamath Mountains. These salamanders are occasionally found under other types of cover, such as bark, limbs, or logs, but only during wet weather when moisture is high and only in close proximity to suitable rocky substrates (Nussbaum 1974, p. 13; Nussbaum et al. 1983, p. 102). Like other plethodontids, Siskiyou Mountains salamanders and Scott Bar salamanders require contact with moisture for respiration through their skin. Therefore, habitat characteristics that influence forest microclimates, especially relative humidity and soil surface moisture, are likely important to these species. Based on these species' similar natural histories and physiologies (see “Biology” section), occurrence in the same region, and previous designation as one species, we assume that Siskiyou Mountains salamanders and Scott Bar salamanders have similar habitat requirements. As noted above, nearly all of the available information on these species comes from studies conducted on both species, prior to recognition of Scott Bar salamander as a separate species. Early observational studies of Siskiyou Mountains salamanders found that these animals are highly associated with talus and other rocky substrates (Highton and Brame 1965, p. 1; Storm 1966, p. 1; Nussbaum 1974, p. 13; Clayton and Nauman 2005, p. 139; Mead et al. 2005, p. 118). Nussbaum (1974, p. 13) found that the densest populations were on heavily wooded, north-facing slopes that also had talus deposits or fissured rock outcrops. Many of the earliest known populations of Siskiyou Mountains salamanders occurred in talus road cuts, where the underlying rock substrate was exposed and detection of salamanders was facilitated (Nussbaum 1974, p. 13). The degree to which Siskiyou Mountains salamanders and Scott Bar salamanders are associated with late-seral forest conditions has been the subject of considerable uncertainty and debate among scientists and land managers. Understanding this debate is essential to understanding the Service's finding for these species. The debate is exemplified by the salamander population at Muck-a-Muck Creek, the type locality from which the Scott Bar salamander was described (Mead et al. 2005, p. 169). Biologists and researchers use Muck-a-Muck as a “reference site,” a location with reliable salamander detections that can be checked prior to conducting surveys in other nearby areas to confirm that current weather conditions are within proper limits to conduct these surveys. However, even when survey conditions are adequate, salamanders may not be detected at this known reference site on any given single visit. Located adjacent to a road, the site experienced hydraulic mining in the late 1800s and currently supports a sparse overstory of young and early mature trees. These habitat conditions are representative of habitat at many locations occupied by apparently viable populations of Siskiyou Mountains salamanders (Bull et al. 2006, pp. 19-22; CDFG 2005, p. 24; Farber 2007a, pp. 3-4). The regularly reported existence of salamander populations at sites like the Muck-a-Muck Creek site undercuts the conclusion of some researchers (based on the results of a single study) that the species is dependent on old-growth forest (Ollivier et al. 2001, pp. 26-29; Welsh et al. 2007a, p. 31). The results of studies of habitat relationships conducted to date are equivocal or provide limited inferences. Limited inferences result from either

(1)lack of a random or systematic sampling design that allows inference to a larger population, or

(2)single-visit sampling that fails to incorporate the low and variable detection rates associated with these species. Two analyses of a single, relatively large-scale, single-visit, random, sampling-based study suggested an association with closed-canopy, older forest (Ollivier et al. 2001; Welsh et al. 2007a), whereas field studies evaluating habitat attributes at known (not randomly or systematically selected) locations demonstrated that the species are found in a wide range of forest structural conditions (Farber et al. 2001; Bull et al. 2006; Farber 2007a). We are not aware of any rigorous studies evaluating the species' demographic responses to forest conditions. The most rigorous research of these species' habitat associations was conducted by Ollivier et al.

(2001)and Welsh et al. (2007a). These studies used the same data set and somewhat different analytical techniques. The data used in both analyses were collected at 61 sites occupied by Siskiyou Mountains salamanders and possibly Scott Bar salamanders (a few sites were located within the range of what were later recognized as Scott Bar salamanders). These sites were compared with sites classified as unoccupied by salamanders (see below). These studies found that salamander populations on either side of the Siskiyou Crest appeared to occupy habitat based on different environmental factors (Welsh et al. 2007a, p. 28). The authors primarily attributed this result to geographic differences in precipitation, illumination (topographic variation in sunlight or shading), and vegetation (Welsh et al. 2007a, pp. 19, and 28). Based on these differences, they suggested that suitable habitat is less abundant and more patchily distributed on the south side of the crest than on the north side (Welsh et al. 2007a, p. 28). Although these results differed somewhat for salamanders on either side of the Siskiyou Crest, they generally indicated that sites occupied by salamanders contained attributes that likely moderate surface microclimates for these animals (e.g., greater canopy closure, more leaf litter cover, more decaying logs) or that are associated with moist, cool microclimates (e.g., less grass cover, more sword fern cover) (Ollivier et al. 2001, pp. 17-21, 26-29; Welsh et al. 2007a, pp. 24, 27). Both analyses concluded that Siskiyou Mountains (and possibly Scott Bar) salamanders are “a mature to old-growth-forest-associated species that exists at its biological optimum under conditions found primarily in later seral stages of mixed conifer-hardwood forests in northwestern California and southwestern Oregon” (Ollivier et al. 2001, p. 42; Welsh et al. 2007a, p. 31). However, the authors also state that “[t]oday, information on the habitat requirements of this species is incomplete and conflicting” (Welsh et al. 2007a, p. 16) and “[m]any of the biotic and abiotic requirements necessary for long-term viability for the Siskiyou Mountains salamander remain undetermined” (Welsh et al. 2007a, p. 31). It is important to note that the results of these studies only indicate correlations between forest attributes and the presence of salamanders; they do not actually demonstrate that these species select habitat based on older-forest characteristics (Welsh et al. 2007a, p. 31). For example, these salamanders may select habitat based on other factors (e.g., suitable microclimates) that often occur within older forests but that can also occur in other areas such as deep drainages and north-facing slopes. Our understanding of the habitat associations of Siskiyou Mountains salamander and their degree of ecological dependence on specific habitat conditions is hampered by the difficulty in detecting this species during surveys. Their brief, intermittent periods of surface activity, nocturnal habits, and secretive behavior make detection of Siskiyou Mountains salamanders and Scott Bar salamanders difficult (Nussbaum 1974, p. 3; Olson et al. 2007, pp. 7-8). Welsh et al. (2007a, p. 25) estimated that their detection rates for these species were 20 and 28 percent on the south and north slopes of the Siskiyou Crest, respectively. Detection rates for other *Plethodon* species are similarly low: 15 percent (Bailey et al. 2004, p. 21) and 2 to 32 percent (Taub 1961, p. 695). Because detection rates are low for these species, repeated surveys and estimation of the probability of false negatives during surveys are required to minimize or account for the probability of classifying occupied sites as unoccupied. The survey protocol developed for the NWFP Survey and Manage Guidelines (Clayton et al. 1999, p. 141) requires three survey visits to determine presence or absence of Siskiyou Mountains salamanders. Classifying occupied sites as unoccupied, or failing to account for the probability of doing so, can bias conclusions about relationships between salamanders and habitat characteristics. The presence or absence data analyzed by Ollivier et al.

(2001)and Welsh et al. (2007a) were collected with a single-visit protocol, so these studies cannot reliably infer absence at sites where detections were not obtained. In fact, the California Department of Fish and Game

(CDFG)used a more intensive survey protocol to resurvey 13 clear-cut or precanopy (0 to 30 years-old) sites classified as unoccupied by Ollivier et al.

(2001)and Welsh et al. (2007a) and found Siskiyou Mountains salamanders at 5 sites, Scott Bar salamanders at 2 sites, and Del Norte salamanders at 1 site (Bull et al. 2006, p. 25). While this finding does not appear to change the general conclusion described by Ollivier et al.

(2001)and Welsh et al. (2007a) that salamanders were more likely to be detected in closed-canopied older forest than in more open sites, it acts to substantially weaken the inference of Ollivier et al. (2001, p. 42) and Welsh et al. (2007a, p. 31), that these species are ecologically dependent on conditions primarily found in mature or late-seral stage forests. Two other studies have examined potential relationships between habitat attributes and abundances of Siskiyou Mountains salamanders and Scott Bar salamanders. Farber (2007a) described sites occupied by Scott Bar salamanders on private timber company property and adjacent National Forest land. This study compared salamander abundances and habitat characteristics at 26 sites within a relatively small area (29 acres

(ac)(11.7 hectares (ha))) and found that salamander abundance was only significantly related to percent rock cover. A large proportion of the occupied sites (94 percent) had evidence of at least one previous manmade or natural disturbance (Farber 2007a, p. 3). Bull et al.

(2006)described CDFG surveys at 68 sites occupied by Siskiyou Mountains or Scott Bar salamanders. Eighty-seven percent of these sites were on private timberlands, and the remaining sites were on Federal lands (Bull et al. 2006, p. 24). Like Farber (2007a), CDFG found evidence of previous disturbance at most (82 percent) occupied sites (Bull et al. 2006, p. 24). Roughly 83 percent of the sites occurred in forest stands with relatively open canopies (less than 60 percent canopy closure). They also found that salamander sites occurred within a wide range of environmental conditions, including all slope aspects and nearly all (16 of 18) California Wildlife Habitat Relationships tree size and canopy classes (Bull et al. 2006, p. 24). These studies' sampling designs preclude inferences about the habitat preferences of other Siskiyou Mountains salamander populations because they were focused on known salamander sites and did not take into account the broad range of habitat that is potentially available to these salamander species. However, both studies showed that Siskiyou Mountains salamanders and Scott Bar salamanders occur within a relatively wide range of forest conditions, and were not extirpated by the disturbances (timber harvest) that created those conditions. To support their argument that the Siskiyou Mountains salamander is critically imperiled by habitat loss, the petitioners rely heavily on statements made by Welsh et al. (2007a) as providing new scientific information that the salamanders are highly associated with, and ecologically dependent on, old-growth forest conditions, and the petitioners highlight an ongoing debate between Dr. Welsh and the CDFG (Greenwald and Curry 2007, pp. 4-7). As discussed above, we conclude that the survey methodology employed by Ollivier et al.

(2001)and Welsh et al. (2007a, p. 18) was inadequate to rigorously determine salamander absence as required for the presence-absence statistical modeling method used to analyze the data. The single-visit sampling methodology these authors employed is more appropriate for comparisons of relative abundance among habitat types, which is how we interpreted their results. The fact that salamanders were subsequently detected by CDFG at over half of the `absent' sites analyzed by Welsh et al. (2007a) does not negate the importance of this study or the habitat associations it describes; it does, however, limit the strength of inference regarding the degree to which Siskiyou Mountains salamanders may require old-growth forest conditions. We do not consider the field studies conducted by CDFG (Bull et al. 2006) as providing competing scientific research requiring reconciliation with the statistical design of the Welsh et al. (2007a) study. The CDFG field studies do, however, provide habitat results from a large sample of occupied salamander locations, which, in combination with similar data sets from Farber et al. (2001), constitute a significant source of information on these species. A model was recently developed for predicting the occurrence of Siskiyou Mountains salamanders north of the Siskiyou Crest (Reilly et al. 2007). This model incorporated three variables reported by Ollivier et al.

(2001)and Welsh et al. (2007a) to be positively related to occupancy by Siskiyou Mountains salamanders: rocky soil types, forest canopy closures above 70 percent, and conifer forest with average tree sizes greater than 17 inches (43 centimeters) in diameter at breast height

(DBH)(Reilly et al. 2007, p. 1). An additional variable modeling topographical variation in sunlight or shading was also incorporated (Reilly et al. 2007, p. 2). Strategic surveys of sites that were predicted by the model to be occupied had 65 percent detection rates (34 of 52 sites were occupied), the highest ever reported for this species (Nauman and Olson 2004, p. 3). In addition to indicating the usefulness of presence or absence modeling as a scientific and management tool, this relatively high detection rate seems to support the associations described by Ollivier et al.

(2001)and Welsh et al. (2007a). Summary of Habitat Associations Few studies of the habitat associations of Siskiyou Mountains salamanders and Scott Bar salamanders have been conducted. These include only a single large, systematic sample effort, from which two analyses were conducted (Ollivier et al. 2001 and Welsh et al. 2007a). These analyses found positive relationships between detection of Siskiyou Mountains salamanders (and possibly Scott Bar salamanders) and habitat characteristics that likely moderate surface microclimates for them (e.g., high canopy closure, more leaf litter cover, more decaying logs). Studies by Farber et al. (2001), Farber (2007a), and CDFG (Bull et al. 2006) were smaller and less rigorous than the analyses by Ollivier et al.

(2001)and Welsh et al. (2007a). However, they clearly showed that Siskiyou Mountains salamanders and Scott Bar salamanders occur within a wide range of habitat conditions, including clear-cuts and young forest. The limited available evidence suggests that these species are highly associated with talus and fissured rock outcrops and are generally associated with moist, cool surface microclimates. These salamanders are likely more common in mature and old-growth forest than in other forest classes, but many salamander sites occur in other habitat types. Potential differences in the size and viability of populations in open or disturbed habitat and mature or old-growth habitat are discussed below under Factor A. Range and Extant Distribution Range Currently known populations within the Siskiyou Mountains salamander Complex occur within Jackson County and the extreme southeast portion of Josephine County in southwestern Oregon, and in northern Siskiyou County in northwestern California. In Oregon, known populations occur in the Applegate Valley watershed north of the Siskiyou Crest. In California, the species complex occurs in the Klamath River drainage, south of the Siskiyou Crest, in the area bounded to the west by Indian Creek and the headwaters of Grider Creek, Kelsey Creek, and Canyon Creek; to the south by Scott Bar Mountain; and to the east by the headwaters of Mill Creek and the Horse Creek drainage. This range is subdivided into three areas based on genetically distinct populations. Siskiyou Mountains salamander North Clade (or Applegate Population) occupies the area north of the Siskiyou Crest; Siskiyou Mountains salamander South Clade (or Grider Population) occurs south of the Siskiyou Crest; and the Scott Bar salamander is found in the southeastern portion of the former range of Siskiyou Mountain salamander South Clade. Boundary lines for the ranges of the members of the Siskiyou Mountains salamander Complex have been variously estimated by several authors (DeGross 2004, p. 15; Nauman and Olson 2004, p. 2; 2007, p. 4) and have changed through time as additional populations were discovered and results of genetic analyses were obtained. For the purposes of this finding, we delineated species' ranges and calculated landscape statistics based on range boundaries proposed by Nauman and Olson (2007, p. 4) but we slightly modified these boundaries based on new species locations, watershed boundaries, and distribution of suitable habitat. Based on the locations of genetic samples of Scott Bar salamanders, we estimated its range to incorporate the southeastern portion of the former Siskiyou Mountains salamander's range. However, the uneven distribution of surveys and small number of locations with genetic confirmation creates uncertainty as to the actual extent of the Scott Bar salamander. The resulting estimated range (136,740 ac (55,335 ha)) is considerably larger than previous estimates that were based on a small number of genetically confirmed locations; some of this expansion is the result of confirmation of one Scott Bar salamander location in the Walker Creek drainage (DeGross 2007). Several watersheds in the southern portion of the estimated range delineated by Nauman and Olson (2007, p. 4) do not have records of Siskiyou Mountains or Scott Bar salamander locations. Review of these areas by species experts (Cuenca 2007; Clayton 2007) indicated that surveys have not been conducted there, but suitable habitat is widespread. Additional surveys and genetic analyses are necessary to adequately delineate the southern boundary of the Scott Bar salamander and Siskiyou Mountains salamander. Our estimates of species' ranges are intended for use in evaluating species' distribution across various land ownership and Federal land allocations; they are not intended to represent precise estimates of occupied habitat. Our understanding of the range and distribution of the Siskiyou Mountains salamander Complex is dynamic; the known range has roughly tripled between 1980 and 2007, doubling between 1993 and 1998 (Olson et al. 2007, p. 20). Biologists familiar with the species believe that the currently known range is well-defined to the east by xeric conditions and unsuitable soil types, and to the west by the range of the Del Norte salamander (Olson et al. 2007, p. 19). However, it is likely that the known range will continue to be refined and expanded through discovery of additional populations to the south in the Scott River, Canyon Creek, Kelsey Creek, and Upper Grider Creek drainages, and to the north in the Applegate River drainage. For example, two detections of salamanders described as Siskiyou Mountains salamanders were reported by a Survey and Manage Guidelines survey crew near the town of Rogue River in 2006 (DeGross 2007). If confirmed, these detections would represent a range expansion of roughly 5 miles

(mi)(8.45 kilometers (km)). We were unable to find any information suggesting that the occupied range of any member of the Siskiyou Mountains salamander Complex is different from its historical range. Many occupied locations exist within watersheds that have sustained considerable physical modification by historical mining, roadbuilding, and logging. As described above, the species' ranges appear to be defined by climatic conditions, soil and parent material type, and the adjacent Del Norte salamander (Olson et al. 2007, p. 19). Distribution The distribution of Siskiyou Mountains and Scott Bar salamander populations within their respective species' ranges is poorly known. With the exception of systematic surveys conducted by Ollivier et al.

(2001)and Nauman and Olson (2004a and 2004b), the majority of surveys have been opportunistic or conducted in support of timber management planning activities. Large areas within the species' known ranges remain unsurveyed due to poor access or lack of planned projects requiring surveys. The lack of systematic surveys may result in biased estimates of population distribution. For example, because CDFG requires surveys for Siskiyou Mountains salamanders and Scott Bar salamanders during the Timber Harvest Plan

(THP)review process, a high proportion (40 percent) of known Scott Bar salamander locations have been reported on private timberlands, which accounts for only 22 percent of the known range of the species (see Table 1 below). Table 1.—Proportion of Land Ownership Within the Estimated Ranges of Siskiyou Mountains Salamanders

(SMS)and Scott Bar Salamanders

(SBS)Applegate SMS (%) Grider SMS (%) Scott Bar salamander (%) SMS-SBS complex (%) Private Lands 15 9 22 15 Federal Lands: USFS 66 91 78 76 BLM 19 0 0 9 Total Area

(ac)248,870 174,285 136,740 559,895 Total Area

(ha)100,712 70,529 55,335 226,578 Population distribution is strongly influenced by the abundance and distribution of suitable talus habitat. Using a Geographic Information System (GIS)-based predictive model, the Survey and Manage Guidelines Species Review Panel for Siskiyou Mountains salamanders estimated that roughly 30 percent of the known range north of the Siskiyou Crest consisted of high-quality talus habitat (USDA and USDI Species Review Panel 2002), but pre-disturbance surveys conducted in the same area found that 3 to 14 percent of a given planning area (10,000 to 15,000 ac (4,047 to 6,070 ha)) consisted of suitable rock substrate (USDA and USDI Species Review Panel 2001). Based on surveys and mapping of rock habitat, Timber Products Company estimated that approximately 18 percent of their surveyed lands within the range of the Scott Bar salamander was composed of suitable talus habitat (Farber 2006). Using a similar methodology, Fruit Growers Supply Company

(2007)estimated that 19 percent of 2,615 ac (1,058 ha) surveyed within the range of the Applegate Population of the Siskiyou Mountains salamander was composed of suitable talus habitat. The Siskiyou Mountains salamander Complex occurs within a roughly 500,000 ac (202,346 ha) area dominated by Federal lands (see Table 1). The range of the Applegate Population (North Clade) of the Siskiyou Mountains salamander occurs within 248,870 ac (100,712 ha), consisting primarily (85 percent) of Federal lands, and more than 90 percent of the 174,285 ac (70,529 ha) range of the Grider Population (South Clade) of the Siskiyou Mountains salamander occurs on Federal lands (see Table 1). The Scott Bar salamander has the smallest range, covering approximately 136,740 ac (55,335 ha), and occurs on the smallest proportion of Federal lands (78 percent) within the complex (see Table 1). Known populations appear to be well-distributed across their respective species' ranges. To evaluate spatial distribution of salamander locations within each species' range at a coarse scale, we compared known locations to watershed boundaries within each species' range. Site locations of the Applegate Population of the Siskiyou Mountains salamander occur within 19 of the 21 watersheds that constitute the range of this group. The range of the Grider Population of the Siskiyou Mountains salamander is composed of 36 watersheds of which 23 (64 percent) contain known populations. The 13 watersheds without known salamander locations are primarily situated in Wilderness and Roadless areas where access is difficult and few surveys have been conducted. Known locations of Scott Bar salamanders occupy 17 of the 25 watersheds within their range. Of the eight watersheds without known locations, six are within Wilderness and Roadless areas where suitable habitat exists but surveys have not been conducted. Nauman and Olson

(2007)conducted surveys at a stratified random sample of points located on Federal lands within the range of the Grider Population of the Siskiyou Mountains salamander and the Scott Bar salamander. They found occupancy rates (presence or absence) to be similar at high-elevation (greater than 4,000 feet

(ft)(1,219 meters (m)) sites and low-elevation (less than 4,000 ft (1,219 m)) sites, but relative abundance (captures per person, per hour) at low-elevation sites was roughly twice that at high elevation. The authors conducted a single survey visit per site during one season, and did not evaluate the potential effect of variable detection probabilities at different elevations on their results, which, as noted above, may underestimate the number of animals actually present; however, their findings suggest that these salamanders may be less abundant or less detectable at higher elevations. Population Size and Trend Evaluation of potential population sizes for the Siskiyou Mountains salamander and Scott Bar salamander is strongly influenced by the species' low detectability and the amount and distribution of potentially suitable habitat. Because of their secretive habits, detection rates for these salamanders are very low, even though the species may be locally quite abundant (Nussbaum 1974, p. 3; Clayton et al. 1999, p. 133). Results of surveys within habitat known to be occupied are frequently negative (Clayton et al. 2004, p. 10; CDFG 2005, p. 10). Individual populations likely range in size from a few individuals to thousands of individuals (Nussbaum 1974, p. 16; Welsh and Lind 1992, p. 96). Based on extrapolation of salamander densities obtained during intensive field surveys, Nussbaum (1974, p. 16) provided a species-wide “conservative estimate” of over 3 million Siskiyou Mountains salamanders, and opined that the actual abundance could be 10 times as high. While the author acknowledged that a number of methodological problems may affect this estimate, it nonetheless suggests that the perceived rarity of this species may be more related to low detectability than to actual population size. Our current understanding of population sizes for Siskiyou Mountains salamander and Scott Bar salamander is based primarily on the cumulative number of occupied sites or locations that have been reported over time. However, these numbers may be misleading for several reasons. At many locations, particularly sites detected during project surveys under Survey and Manage Guidelines, no attempt was made to determine population size; detection of a single individual was adequate to define an occupied site. Because of this, large habitat patches potentially supporting many individual salamanders are counted as equivalent to small habitat patches or detections of dispersing individuals. In addition, large areas of suitable habitat remain unsurveyed, particularly in Wilderness, Roadless Areas, and Late-successional Reserves where access is poor or project surveys are typically not conducted (Late-successional Reserves are a NWFP land allocation designed to serve as habitat for late-successional- and old-growth-related species). For example, approximately 10 percent and 26 percent of the range of the Scott Bar salamander and Grider salamander, respectively, is classified as “Roadless Area.” Finally, known locations are frequently spatially clumped, and no uniform effort to distinguish between individual populations has been undertaken. Agencies and researchers involved with these species employ several criteria (e.g., 164 to 492 ft (50 to 150 m) spacing, presence of perennial stream or area of unsuitable habitat) to imply separation between occupied locations or “populations.” For these reasons, the currently known numbers of Siskiyou Mountains salamanders and Scott Bar salamanders are more representative of the distribution and intensity of survey efforts than of actual salamander populations. The numbers of known locations of Siskiyou Mountains salamanders and Scott Bar salamanders have increased steadily since the discovery of these species. For example, the number of known locations of Scott Bar salamanders on lands managed by Timber Products Company increased from 8 in 1997 to 36 in 2007 (Farber 2007c). To describe the number and distribution of known salamander locations, we obtained location data from Federal and State agencies and private timber companies and combined them into a single GIS layer. Because of variability in methods used by various agencies to delineate individual locations (many locations were clumped less than 328 ft (100 m) apart), we evaluated the proximity of adjacent locations and retained only locations greater than 328 ft (100 m) apart, to minimize the inclusion of multiple records at discrete locations. The resulting numbers are intended to represent individual populations, but likely still contain multiple records from large habitat patches and likely differ from previous estimates based on dissimilar mapping methods. Within each of the genetic subunits in the Siskiyou Mountains salamander Complex, the number of locations with individuals that have been genetically confirmed to the species level is much smaller than the overall number of known locations. For example, the estimated range of the Scott Bar salamander is defined on the basis of 23 genetically confirmed locations from the samples of Mahoney, Mead, and DeGross; however, the defined range of the species contains 98 additional salamander locations previously attributed to the Grider salamander. Because populations of the two species tend not to overlap (Mead 2006, p. 10), it is reasonable to conclude that all salamander detections within what is now known to be the range of the Scott Bar salamander are Scott Bar salamanders. For the purposes of this finding, we used the total number of individual locations within each species' range, recognizing that ongoing genetic studies may modify the boundaries of these subunits, and therefore the number of known individual sites within each genetic subgroup. Table 2.—Number of Known Locations and Percent of Total Known Siskiyou Mountains Salamanders

(SMS)and Scott Bar Salamanders

(SBS)on Federal and Private Lands Applegate SMS Grider SMS Scott Bar salamander 1 SMS-SBS complex Federal lands 376 (85%) 74 (97%) 69 (60%) 519 (82%) Private Lands 64 (14%) 2 (3%) 46 (40%) 112 (18%) Total 440 76 115 631 1 Number of known *Plethodon* sp. locations within the presumed range of the Scott Bar salamander. Density Population densities for the Siskiyou Mountains salamander Complex are poorly known. Estimation of population density for these salamanders is hindered by low detectability and highly variable environmental or habitat conditions during surveys (Nussbaum 1974, p. 15). Densities recorded during the habitat associations study conducted by Ollivier et al. (2001, p. 16) ranged from 1 to 13 animals per 527-ft 2 (49-m 2 ) search plot (i.e., 0.02 to 0.33 animals per m 2 ); whereas Nussbaum (1974, p. 16) recorded 0.53 animals per m 2 during an intensive field study. Nauman and Olson (2007, p. 19) reported an average of 0.01 salamanders per m 2 and 2.39 salamanders per person, per hour in California, with capture rates ranging from 2.83 salamanders per person, per hour at lower elevations to 1.25 salamanders per person, per hour at higher elevation sites. An inventory of all known Siskiyou Mountains salamander sites on the Applegate Ranger District in 1992 reported abundances of salamanders ranging from 0.3 to 11 salamanders per person, per hour (Olson et al. 2007, p. 13). None of these studies was designed to estimate salamander density, and mark-recapture studies that would permit estimation of density have not been conducted. Population Trend We were unable to locate any information describing population trends for the Scott Bar salamander or Siskiyou Mountains salamander (or either of its constituent populations). Several authors have inferred population declines based on observations of habitat modification within occupied areas (Ollivier et al. 2001, p. 5; Welsh 2005, pp. 5-7), but their study design did not support this type of inference. Land Management Populations of Siskiyou Mountains salamanders and Scott Bar salamanders receive an added layer of security from several conservation efforts on Federal lands. The majority of the Siskiyou Mountains salamander Complex occurs within lands administered under the provisions of the NWFP (USDA and USDI 1994) (see Table 1 above), which was established to provide an ecosystem-based management strategy for late-successional forests and the wildlife species that inhabit them (USDA and USDI 1994). The NWFP consists of two primary parts that concern salamander conservation:

(1)A system of land-use allocations with associated Standards and Guidelines to guide land management; and,

(2)until recently, the Survey and Manage Mitigation Measure Standards and Guidelines, which provided species-specific management guidance for certain groups of species. The NWFP Record of Decision

(ROD)was implemented as amendments to all existing land and resource management plans for the Bureau of Land Management

(BLM)and USFS within the range of the northern spotted owl. Lands administered by the USFS and BLM are divided into five primary categories of land management under the NWFP: Late-successional Reserves, Congressionally Reserved Areas, Riparian Reserves, Adaptive Management Areas, and Matrix. Late-successional Reserves are established with an objective to protect and enhance conditions of late-successional and old-growth forest ecosystems, which serve as habitat for late-successional, forest-related species. Forest management activities are highly restricted within Late-successional Reserves. Congressionally Reserved Areas, such as Wilderness Areas, Wild and Scenic Rivers, and National Monuments, are incorporated into the design of the Late-successional Reserve System. Riparian Reserves provide an area along all streams, wetlands, lakes, ponds, and unstable areas where riparian-dependant resources receive primary management emphasis. Maintenance of forested conditions in Riparian Reserves for shading and water quality is also expected to contribute to dispersal and breeding habitat for late-successional species. Adaptive Management Areas

(AMAs)are established to develop and test new management approaches and timber harvest methods to integrate and achieve ecological and economic health, and other social objectives. Matrix lands consist of those Federal lands outside of the four other categories described above. Production of timber and other commodities is an important objective for Matrix lands. However, forests in the Matrix also provide connectivity between Late-successional Reserves and function as habitat for a variety of forest-dwelling species. The NWFP Matrix Standards and Guidelines are designed to provide for important ecological functions such as dispersal of organisms, carryover of some species from one stand to the next, and maintenance of ecologically valuable structural components such as logs, snags, and large trees. The Matrix also provides ecological diversity by providing early-successional habitat. Within Matrix, other land use allocations such as Visual Emphasis Areas, Managed Wildlife Areas, and Retention Areas carry additional restrictions on timber harvest and to some degree function as reserves. Table 3.—Federal Land Allocations Within the Estimated Ranges of the Siskiyou Mountains Salamander

(SMS)and Scott Bar Salamander

(SBS)Applegate SMS Grider SMS Scott Bar salamander SMS-SBS complex Total area in ac

(ha)248,870 (100,712) 174,285 (70,529) 136,740 (55,335) 559,895 (226,578) Private Lands (%) 15 9 22 15 Federal Lands (%): Reserves 33 73 51 50 Adaptive Management Area 1 42 0 0 19 Matrix-retention 2 1 13 19 9 Matrix-general forest 3 9 5 8 7 1 Experimental management to meet ecological, economic, and social goals. 2 Timber harvest restricted to accommodate various other management goals. 3 Timber production is a high priority. Roughly 33 percent of the range of the Applegate salamander occurs within reserves (Late-successional Reserves, Wilderness, Riparian Reserves, and other land allocations withdrawn from scheduled timber harvest), 42 percent of the range within the Applegate Adaptive Management Area, 9 percent in Matrix, and 15 percent on private lands (see Table 3 above). Nearly three-quarters of the range of the Grider salamander is in reserves, and 18 percent is in Matrix; however, almost three-fourths of the Matrix is in land-use allocations (retention areas) where timber harvest is restricted (USDA 1994, pp. 4-73 to 4-176). Fifty-one percent of the Scott Bar salamander's range is in reserves, and an additional 19 percent occurs within retention areas (Wild and Scenic Rivers, Retention Visual Quality Objective). Overall, only approximately 14 percent of the range of the Applegate salamander, 24 percent of the range of the Grider salamander, and 30 percent of the range of the Scott Bar salamander are composed of Matrix-General Forest and private timberlands, where intensive timber management would be expected to occur. However, because varying levels of timber management occur within the Applegate Adaptive Management Area in the range of the Applegate salamander, up to about 66 percent of this species' range is available for various levels of timber harvest and cannot be considered to be reserve lands. Little is known about the actual distribution of salamander populations among the land-use allocations described above. Nauman and Olson

(2007)attempted to evaluate the occurrence of Grider salamanders and Scott Bar salamanders by conducting surveys at a stratified random sample of points in reserved and matrix land allocations at high (greater than 4,000 ft (1,219 m)) versus low (less than 4,000 ft (1,219 m)) elevation. They found that capture rates for these species were higher on matrix lands, likely because a higher proportion of reserved lands occur at higher elevations, which are less suitable for the species. The authors concluded that reserved land allocations may not provide adequately for conservation of the species but described a number of sampling issues (single-visit protocol, unequal sampling of strata) that may weaken this conclusion. Survey and Manage Mitigation Measure Standards and Guidelines In addition to the NWFP's system of land-use allocations and management standards and guidelines, specific mitigation measures were included for about 400 rare or poorly known species. We refer to this broadly as the Survey and Manage Program. The Survey and Manage Program contains an adaptive management provision, establishing the Species Review Process wherein species experts (“taxa teams”) evaluate and synthesize the latest information about each species. Reports from the taxa teams are then used by the agencies to propose changes to management of these taxa, as appropriate. The Siskiyou Mountains salamander was included in the original list of Survey and Manage species under Survey Strategies 1 and 2 (USDA and USDI 1994, pp. C-59, C-45). Survey and Manage guidelines for these salamanders required that known salamander sites be managed via protection buffers (Strategy 1), and that surveys be conducted prior to ground-disturbing activities such as timber harvest (Strategy 2). Protection buffer standards and guidelines for Siskiyou Mountains salamanders required the retention of all overstory trees within a buffer of at least the height of one site-potential tree or 100 feet horizontal distance, whichever is greater, surrounding the location. As a result of the 1999 Species Review Process, the Siskiyou Mountains salamander was reclassified as a Category C species in the Final Supplemental Environmental Impact Statement (FSEIS) for the NWFP (USDA and USDI 2000, Appendix F; p. 101). Criteria for including a taxon in Category C are:

(1)There is not a high concern for persistence;

(2)it is likely that not all known sites are necessary for reasonable assurance of persistence of the taxon;

(3)the taxon is uncommon (as opposed to rare); and

(4)pre-disturbance surveys are required until a population network is established. The management objective for the Siskiyou Mountains salamander under Category C is to identify and manage high-priority sites to provide for reasonable assurance of persistence. The current status of the Siskiyou Mountains salamander was assigned in the March 14, 2003, Implementation of the 2002 Annual Species Review Memorandum (USDA and USDI 2003). Because of their smaller number of known sites and patchy distribution, salamander populations south of the Siskiyou Crest were assigned to Category A, requiring pre-disturbance surveys and management of protection buffers for all known sites. Northern populations were assigned to Category D. Management objectives for Category D species are to identify and manage high-priority sites to provide for a reasonable assurance of species persistence; pre-disturbance surveys are not required. The USFS and BLM have determined to remove the Survey and Manage Program, and in July 2007 published their Record of Decision (2007 ROD) to implement this decision (see “Summary of Factors Affecting the Species: Factor D”). Therefore, at this time, the Survey and Manage Program has been eliminated for project planning and new decisions. However, because of the lag time in implementation of the 2007 ROD, most new Federal land management decisions issued in 2008 will be compliant with the Survey and Management guidance for the Siskiyou Mountains salamander (West 2007); implementation of new projects compliant with the 2007 ROD is unlikely until 2009. We therefore view the Survey and Manage guidelines as existing habitat management until after 2008. Unless the 2007 ROD is successfully challenged in court, project decisions after 2008 will no longer contain protections currently provided by the Survey and Manage provisions. The Survey and Manage guidelines have provided additional security for salamander populations across the vast majority of the range of the Siskiyou Mountains salamander. With the removal of the Survey and Manage Guidelines under the 2007 ROD, management of these species will be based on the USFS's Special Status Species Program and the BLM's Sensitive Species Program (Hughes 2007). The Special Status Species and Sensitive Species programs are anticipated to provide less stringent protections than those in the Survey and Manage Program; however, they include provisions for development of Conservation Strategies and Conservation Agreements. Based on ecological and management information in the Annual Species Reviews and strategic surveys, the taxa team joined with additional species experts to formalize the Survey and Manage Program objectives for Siskiyou Mountains salamander. In anticipation of the eventual removal of the Survey and Manage Program, they developed their management recommendations into a Conservation Strategy for Siskiyou Mountains Salamanders in the Northern Portion of the Range (Olson et al. 2007). The USFS and BLM committed to implement this Conservation Strategy in the August 16, 2007, Conservation Agreement for the Siskiyou Mountains Salamander ( *Plethodon stormi* ) in Jackson and Josephine Counties of southwest Oregon and in Siskiyou County of northern California (USDA and USDI 2007; USDI 2007b). In accordance with management objectives for Category D species, the Conservation Strategy relies on long-term management of a subset of known salamander sites. A panel of scientists and resource managers selected high-priority sites and considered a number of criteria including existing Federal Standards and Guidelines for the planning area, distribution and quality of habitat, known locations of salamanders, and potential risk factors such as fire hazard, road density, and land ownership. To ensure the existence of well-distributed, interacting subpopulations, these criteria were evaluated at three spatial scales: The entire Applegate River watershed, 19 smaller watersheds within the Applegate River watershed, and individual sites. Of 316 known salamander locations on Federal lands, 151 (48 percent) were included in the 110 high-priority salamander management areas selected (some management areas encompassed multiple salamander sites). Of the 110 selected sites, 44 are on BLM lands and 66 are on the Rogue River-Siskiyou National Forest. Each high-priority salamander-management site is intended to maintain a subpopulation of Siskiyou Mountains salamanders over the long term (100 years). Because habitat-disturbing activities are regulated to varying degrees across the entire NWFP area occupied by the salamanders, the scientists who developed the strategy anticipate that many additional populations will continue to persist in reserved lands and in Matrix where habitat is retained for other reasons (Olson et al. 2007, p. 21). Each high-priority salamander-management site was evaluated for application of one of two management strategies. The first strategy focuses on maintaining habitat conditions for salamanders at the site by limiting activities that may have adverse effects on substrate, ground cover, forest condition, or microhabitat and microclimate. The second strategy allows for greater latitude in activities at the high-priority site by applying the existing National Fire Plan Fire Management Recommendations to the high-priority site. This two-tiered approach attempts to integrate the fire ecology of the area, current forest conditions, fuel loads, and proximity to populated areas while providing for the persistence of Applegate salamander populations over the long term. The Conservation Strategy contains a rigorous risk assessment (Olson et al. 2007, p. 22 and Appendix 2), which concludes that implementation of the Strategy presents an extremely low risk to the species' persistence at the range-wide scale. This conclusion is based on evaluation of the comparative risk of losses of individuals or subpopulations due to fuels management activities versus higher risk of losses if high-intensity wildfires occur at untreated sites. Other risks posed by other forest management activities are ameliorated by the protection-buffer approach adopted from current Survey and Manage guidance. Redundancy of protected sites and a mix of protective and restoration approaches across the entire range of the Applegate salamander also act to increase the likelihood of persistence over the long term. The Conservation Strategy was authored by four of the most published scientific experts on this species (D. Olson, D. Clayton, H. Welsh, and R. Nauman, among others), and incorporates habitat modeling and risk assessment in the evaluation of species persistence and distribution within the strategy area. The Conservation Strategy also contains provisions to support monitoring and strategic surveys to address gaps in our knowledge of the species and its conservation. Funding for these efforts is anticipated to come from the USFS and BLM's Special Status Species programs. Implementation and effectiveness of this Conservation Strategy will be reviewed every five years by BLM, USFS, and the Service. Based on these regular reviews, or significant information that may become available between the five-year reviews, the Conservation Strategy may be revised to refine the plan or address emerging issues. In anticipation of the discontinuation of the Survey and Manage Program, biologists from the Klamath National Forest

(KNF)and the Service's Yreka Fish and Wildlife Office

(YFWO)are developing a Conservation Strategy to guide management of both Grider and Scott Bar salamander populations on lands administered by the KNF. This Strategy would apply to over 90 percent of the range of the Grider salamander DPS, and 78 percent of the Scott Bar salamander's range. The draft KNF Strategy does not require surveys to be conducted prior to ground-disturbing activities; instead, all suitable salamander habitat (talus substrate) is assumed to be occupied and managed for long-term persistence of salamander populations. Similar to the Conservation Strategy for Applegate salamanders (Olson et al. 2007), the draft KNF Strategy balances protection of existing suitable habitat with active management of risks such as hazardous fuels. Small habitat patches (less than 5 ac (2 ha)) and locations with high likelihood of occupancy by salamanders (lower slopes, northerly exposures) receive strict protective guidelines; whereas habitat patches on upper slopes with southerly exposures may receive fuels reduction treatments that reduce canopy closure to a limited degree. As discussed below in Factor D, we are not relying on implementation of the Conservation Strategies in making our determination that listing the Siskiyou Mountains salamander and Scott Bar salamander is not warranted. We have included this discussion solely as background for the public and to acknowledge USFS and BLM efforts to further reduce possible threats to the species. Summary of Factors Affecting the Species Section 4 of the Act (16 U.S.C. 1533) and implementing regulations at 50 CFR part 424 set forth procedures for adding species to the Federal List of Endangered and Threatened Wildlife. In making this finding, we summarize below, information regarding the status and threats to this species in relation to the five factors in section 4(a)(1) of the Act. In making our 12-month finding, we considered and evaluated all scientific and commercial information in our files, including information received during the public-comment period that ended May 29, 2007. Siskiyou Mountains Salamander Factor A: The Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range Like other plethodontids, Siskiyou Mountains salamanders require moisture for respiration (Nussbaum et al. 1983, pp. 73, and 90). This physiological requirement limits the time during which they are active at the soil's surface to relatively brief, rainy periods in the spring and fall (Nussbaum et al. 1983, pp. 102-103; Clayton et al. 1999, p. 133). These salamanders engage in important behaviors, including foraging and breeding, during periods of surface activity (Feder 1983, p. 296). During the remainder of the year, they retreat into rocky substrates, which provide refuge from the climatic extremes of the eastern Klamath Mountains (Nussbaum et al. 1983, p. 102). Given their physiology and life histories, disturbances that reduce surface and soil moisture, relative humidity, or suitable rocky substrates may negatively affect these species. Disturbances that possibly impact Siskiyou Mountains salamanders include timber harvesting, fires, road construction, mining, and quarrying. Effects of Timber Harvesting on Siskiyou Mountains Salamanders Timber harvesting may impact Siskiyou Mountains salamander by killing individuals or by reducing habitat quality. Ollivier et al. (2001, pp. 41-42) and Welsh et al. (2007a, p. 28) found that Siskiyou Mountains salamanders were associated with characteristics found in mature forests, such as dense canopy cover, large-diameter trees, and mossy ground cover. Other studies have shown that Siskiyou Mountains salamanders occur within a wide range of forest conditions, including in recently clear-cut sites and in open-canopy forest (e.g., Bull et al. 2006, p. 24; Farber et al. 2001, p. 13; Farber 2007, p. 3). The conclusions of these studies do not necessarily conflict since it is possible that these salamanders occur within a wide range of habitat conditions while selectively using or receiving greater fitness from a subset of them, or are more easily detected in a subset of them. Alternatively, these species may select habitat based on attributes that are not dependent on forest age or structural class. For example, they may select habitat with cool, moist microclimates, which are common in mature forests but also occur under other conditions (e.g., in deep drainages or on north-facing slopes). The paucity of rigorous scientific information about Siskiyou Mountains salamanders makes an accurate evaluation of their habitat associations (see Habitat Associations section above) and sensitivities to timber harvesting difficult. Information about the effects of timber harvesting on this species is currently limited to inferences based on the physiology of this species, two studies of the effects of timber harvesting on Siskiyou Mountains salamanders, and extrapolation of inferences from studies of the effects of timber harvesting on other species of plethodontid salamanders. Timber harvesting may negatively affect Siskiyou Mountains salamander by reducing soil moisture and increasing soil temperature. Studies by Chen et al. (1993, pp. 233-234; 1995, pp. 77-82; 1999, pp. 292-294) in Pacific Northwest Douglas fir forests found that both soil and air were drier and warmer in clear cuts and clear-cut forest edges than in adjacent old-growth forest. These results indirectly suggest that clear-cutting may negatively affect these animals. We are not aware of any studies on the effects of other silvicultural techniques on forest microclimates. However, alternative even-age harvesting techniques (shelterwood and seed-tree cuts), uneven-age harvesting (single tree and group selection harvesting), and thinning retain more canopy cover than does clear-cutting and, therefore, probably have lower impacts on forest microclimates. The effects of timber harvesting also strongly depend on the silvicultural prescription (e.g., the volume of wood removed and the size, volume, and distribution of retained trees, snags, and logs) and on site-specific factors (e.g., climate and slope aspect). We expect that the effects of silviculture on Siskiyou Mountains salamander depend primarily on the intensity and scale of the disturbance. We are aware of two studies analyzing the effects of timber harvesting on Siskiyou Mountain salamanders. The first was conducted in Siskiyou County, California by the USFS (D. Clayton, cited in Bull et al. 2006, p. 21; Olson et al. 2007, p. 16). This study compared abundances of Siskiyou Mountains salamanders through time at a clear-cut site and an adjacent selectively cut site. In the clear-cut site, the researchers found 40 salamanders (10 salamanders per person, per hour) the spring after the harvest, one juvenile the following year, no animals in the subsequent 7 years, and one juvenile during an opportunistic survey in the tenth year. In comparison, they consistently found 3 to 6 salamanders per person, per hour in the selectively cut site during the same years sampled (Bull et al. 2006, p. 21). The CDFG resurveyed the same clear-cut site in the spring and fall of the eleventh year post-harvest (Bull et al. 2006, p. 21). Single surveyors found 10.6 salamanders per person, per hour in the spring and 4.25 salamanders per person, per hour in the fall. This result suggests that, while Siskiyou Mountains salamanders may be negatively impacted by intensive timber management practices such as clear-cutting, they are able to recover in, or recolonize, some clear-cuts as vegetation recovers. As importantly, less intensive harvest methods may have less impact on salamander abundance. However, inferences from both sets of surveys are highly limited because the surveys did not include pre-harvest data and were conducted in only one pair of plots. In a nearby area, Fruit Growers Supply Company monitored Siskiyou Mountains salamanders on the Elliot Fly Timber Harvesting Plan. They monitored salamanders on 39 plots (35 harvested and 4 controls). The harvesting method was a selective cut, and logs were removed by helicopter, a method which significantly reduces the amount of ground disturbance. Plots were surveyed prior to harvest, 1 year post-harvest, and 10 years post-harvest (Taylor 2007, p. 1). Estimates of relative abundance (count data) in the harvested plots ranged from 1.8 to 2.0 captures per survey compared to 2.0 to 3.2 captures per survey in unharvested controls, and did not significantly change during the study. These results suggest that the harvest did not significantly adversely affect the salamanders (Taylor 2007, p. 3). The determination of no significant difference between treatments and control plots was likely influenced by the high variability observed within and between plots. All Siskiyou Mountains salamander life stages were found in the harvested plots, likely indicating that these populations continued to reproduce following harvesting. Although this study used a more rigorous design and was larger than the nearby USFS paired-plot study, its inferences are also limited because pre-harvest data were only collected one year prior to harvest and the study plots were not randomly selected. All life-history stages of Siskiyou Mountains salamander, including gravid females (carrying eggs), have been found in open-canopy forest and recent clear-cuts (Farber et al. 2001, p. 13; Bull et al. 2006, p. 24; Farber 2007, p. 3). However, little is known about relationships between forest conditions and the population dynamics of the Siskiyou Mountains salamander. Welsh et al. (2007b) analyzed relationships between forest age class and the age structure and body condition of both Siskiyou Mountains salamanders and Scott Bar salamanders. All salamander age classes were found in pre-canopy (0 to 33 years) sites, but 8 of 11 individuals detected in those sites were juveniles or subadults. If representative of population age structure, this observation could indicate that pre-canopy sites function as ‘sink’ or dispersal habitat for non-reproductive individuals. Alternatively, high proportions of juveniles could indicate high reproductive rates and population recovery following logging. Sample sizes were too small to test these hypotheses. Welsh et al. (2007b) also found that Siskiyou Mountains salamanders in mature (100 to 199 years) sites had significantly higher median body condition (ratio of body mass to length) than those in young sites (31 to 99 years). This could indicate that young forest stands provide lower quality habitat than mature stands. Timber harvesting could also affect Siskiyou Mountains salamanders at spatial scales larger than individual salamander sites. The petition to list the Siskiyou Mountains salamander (Center for Biological Diversity et al. 2004, p. 8) asserts that timber harvesting creates gaps in the distribution of this species because it is rarely able to recolonize habitat after local populations are extirpated. Indirectly supporting this hypothesis, studies of the closely related Del Norte salamander showed that it is highly sedentary and, therefore, likely to have limited dispersal abilities. Welsh and Lind (1992, p. 427) reported that the longest movement by an individual Del Norte salamander was 119 ft (36.2 m) over 6 months, and Lowe (2001, p. 27) found that the longest movement was 129.9 ft (39.6 m) over 2 years. Average movements were substantially smaller than these: 22 ft (6.7 m) over 2 years (Lowe 2001, p. 27) and 16.7 ft (5.1 m) over 6 months (Karraker and Welsh 2006, p. 136). Siskiyou Mountains salamanders, and in particular Scott Bar salamanders, have relatively longer limbs than Del Norte salamanders and may be capable of longer movements, but their dispersal abilities are still likely limited. Some researchers have suggested that dispersing juvenile Siskiyou Mountains salamanders readily colonize logged sites (Welsh 2005, pp. 1-2) and road cutbanks (Nussbaum 1974, p. 13). Alternatively, it is possible that salamanders in regenerating logged sites and road cutbanks are indicative of population persistence and recovery following disturbance, rather than extirpation and subsequent recolonization. Welsh and Ollivier (1995, pp. 8-9) suggested that tractor yarding of logs during timber harvesting may impact Siskiyou Mountains salamanders by compacting, breaking, or realigning talus. If tractor yarding has these effects, it could reduce the interstitial spaces in talus and thereby reduce habitat quality for these species. Although it is reasonable to conclude that tractor yarding may disturb talus substrates, research has not demonstrated how this affects salamander populations. In summary, rigorous research of the effects of timber harvesting on Siskiyou Mountains salamanders is needed, but intensive timber harvesting practices, such as clear-cutting and tractor yarding, appear to have negative short-term (30 years or less) effects on abundance, population structure, and body condition of these species (Welsh et al. 2007b). Intensive timber harvesting likely affects these salamanders by changing forest characteristics that influence microclimates for them, for example, by opening the forest overstory and understory canopies and reducing coverage of down wood and leaf litter. Despite these effects, it is also clear that the salamanders frequently persist in intensively harvested habitats, and there is no information suggesting that populations are permanently extirpated by timber harvest. It is unknown whether these salamanders may be temporarily extirpated from severely disturbed sites or simply retreat underground during the initial period of post-disturbance recovery. Alternative silvicultural techniques, such as thinning, selective harvesting, and helicopter yarding, appear to be less harmful to these salamanders than more intensive harvesting methods. Timber Harvesting Effects on Other Plethodontids To support their assertion that the Siskiyou Mountains salamander is threatened by timber harvesting, the petitioners cite studies of other closely related species. Most studies of the closely related Del Norte salamander indicate that this salamander is more abundant in mature forest than in other forest age classes (Raphael 1988, p. 27; Welsh and Lind 1991, p. 400; Welsh and Lind 1995, p. 208). In contrast, Diller and Wallace (1994, p. 316) did not detect a relationship between forest age and the presence of Del Norte salamanders near the northern California coast. It is possible that forest structural characteristics (e.g., canopy cover) more strongly influence microclimates for salamanders in the interior of the Klamath Mountains than near the coast, where temperatures are more moderate and moisture is less limiting. Karraker and Welsh (2006, p. 137) found lower abundances of Del Norte salamanders in clear-cuts than in mature stands. All salamander life stages were observed in clear-cuts, indicating that reproduction was occurring in them. Abundances were similar in commercially thinned and mature stands. Welsh et al. (2007b) found significant positive relationships between forest age class and presence and abundance of Del Norte salamanders. Adult salamanders accounted for a larger proportion of individuals observed in old-growth (older than 200 years) and mature (100 to 199 years) stands than they did in young (31 to 99 years) stands. The authors suggested that higher proportions of adult salamanders are indicative of greater population stability for this species. In contrast, salamanders at pre-canopy (0 to 33 years), young, and old-growth sites had higher median body condition than those in mature stands or the reference site (thought to be a high-quality site). The authors speculated that the apparent inconsistencies in their results were related to greater competition and poorer body condition in sites with higher salamander abundances, but more research is needed to test this hypothesis. Biek et al. (2002, p. 137) found similar abundances of Del Norte salamanders in clear-cuts and mature forests in Oregon, apparently contradicting the results of the studies discussed above. Evaluation of studies of the effects of timber harvesting on plethodontids outside the *Plethodon elongatus* Complex may improve our understanding of the effects of harvesting on Siskiyou Mountains salamanders. However, these studies should be cautiously considered due to differences in the natural histories of these species. Most plethodontids occupy soil, surface litter, and woody debris in mesic environments (e.g., where it frequently rains during summer), whereas Siskiyou Mountains salamanders occupy talus substrates, which provide refuge from the temperature extremes and dry conditions that characterize the eastern Klamath Mountains. Grialou et al. (2000, pp. 108-110) found that western red-backed salamanders in mesic forests in southwestern Washington occupied recent clear-cuts (2 to 4 years post-harvest) but at significantly lower abundances than in adjacent older stands. Body sizes of salamanders (subadults and juveniles) were smaller the year after harvesting but were normal by the second year. Gravid females were captured on clear-cut plots before and after harvest. Grialou et al. (2000, p. 111) suggested that reduced abundances of western red-backed salamanders in clear-cuts were related to soil compaction, loss of woody debris, and decreased leaf litter cover associated with harvesting. Bury and Corn (1988, p. 171) reported plethodontid salamanders to be absent in four clear-cut study sites, but their results were equivocal because detection rates were very low in all of the habitats studied. In contrast to the above studies, Corn and Bury (1991, p. 311) found that abundances of western red-backed salamanders were not significantly different in recent clear-cuts (less than 10 years old) and old-growth forest. Studies of plethodontids in the mid-western and eastern United States (Ash 1997, p. 985; deMaynadier and Hunter 1998, pp. 344-345; Herbeck and Larsen 1999, p. 626) and western Canada (Dupuis et al. 1995, p. 648) indicated that clear-cutting can have significant short-term impacts on plethodontid salamander abundance. Dupuis et al. (1995, p. 648), Ash (1997, p. 987), and Herbeck and Larsen (1999, p. 626) reported that plethodontid salamanders were frequently absent from 2- to 5-year-old clear-cut stands. However, the impact of clear-cutting on these salamanders may be temporary, as one study (Ash 1997, pp. 985-986) showed that salamanders returned to clear-cut areas 4 to 6 years after cutting, and their return was followed by rapid increases in their numbers. Statistical modeling of salamander abundances on clear-cut plots indicated that salamanders would equal or exceed numbers on forested plots by 20 to 24 years after cutting (Ash 1997, pp. 985-986). Knapp et al. (2003, pp. 754-758) used a randomized, replicated design to quantify plethodontid salamander populations on harvested timberlands of the Appalachian Mountains in Virginia and West Virginia. While salamander abundances were lower in clear-cuts than in control plots, there were no differences in the proportion of gravid females or in the average number of eggs in gravid females. Moreover, there were no differences in the proportion of juvenile animals, except in one plethodontid species, which had a higher proportion of juveniles in uncut treatments. Extent of Timber Harvesting Within the Range of the Siskiyou Mountains Salamander Evaluation of the threat potentially posed by modification or loss of habitat via timber harvest must be based on an assessment of the biological mechanisms involved, as well as quantification of the likelihood of those mechanisms occurring to an extent and magnitude reasonably expected to result in the threat of extinction. The extent and magnitude of potential effects caused by timber harvest are strongly influenced by existing land management regulations on the majority of the species' ranges. Approximately 85 percent of the range of the Siskiyou Mountains salamander occurs on Federal lands managed under the NWFP (USDA and USDI 1994) (see Table 3 above). In general the system of reserves and management guidelines provided by the NWFP provide a substantial reduction in the likelihood of widespread habitat alteration due to timber harvesting. The rate and extent of timber harvest has declined dramatically on Federal lands within the NWFP area during the past 30 years (USDA and USDI 2005), particularly on the Klamath National Forest, which comprises roughly 91 percent of the range of the Grider salamander. These reductions have been primarily due to the implementation of the NWFP and other Federal land management regulations. During the 6-year period from 2000 to 2005, the Klamath National Forest sold and removed an average of 15.9 million board feet of timber annually, compared with 187.8 million board feet per year during 1985 to 1990 (inclusive), and 238.2 million board feet per year from 1979 to 1984; this marks a reduction of roughly 93 percent from the 1979 to 1984 period (USDA 2006a). Perhaps more importantly, the amount of intensive timber management (regeneration harvests, overstory removal) has declined sharply, from an average of 3,733 ac per year from 1988 to 1991, to 38 ac per year from 2000 to 2006. Intensive harvest prescriptions such as clear-cutting were not used in 2001 or 2002, nor in 2004 to 2006 (USDA 2007b). Likewise, timber harvest on the Rogue River National Forest (which comprises roughly 66 percent of the range of the Applegate Population of the Siskiyou Mountains salamander (Clayton 2007b) declined by 96 percent during the last 30 years. Annual timber harvest during the 1980s averaged 182 million board feet, compared with 8 million board feet per year from 2000 to 2006 (USDA 2007c). Since 1996, only one timber sale has been sold and harvested on the Rogue River National Forest's Applegate Ranger District. Timber harvest, particularly intensive harvest methods, has also declined dramatically on lands administered by the BLM within the range of Applegate salamander. Mean annual harvest on the BLM's Ashland Resource Area have declined from 2,240 ac (907 ha) per year between 1995 and 2000, to 664 ac (269 ha) per year between 2001 and 2007 (USDI 2007a). Less than 270 ac (109 ha) per year have been harvested since 2003 (USDI 2007a). Intensive harvest methods, such as clear-cuts and shelterwood harvests, have declined from 54 percent of acres harvested in the mid-1990s, to less than 1 percent of the annual harvest since 2001. The implementation of the NWFP and subsequent declines in timber harvest levels on Federal lands, particularly intensive harvests thought to potentially affect salamanders, greatly reduces the likelihood that a substantial proportion of the salamanders' populations will be affected by logging. We anticipate that reduced levels of timber harvest will continue into the foreseeable future because this has been the trend for the last 30 years and we have no substantial information that indicates that this trend will be reversed in the foreseeable future. In addition, the essential goals of the NWFP remain in effect and we have no information that would lead us to anticipate changes to the overall goals of this ecosystem management strategy. The removal of the Survey and Manage guidelines is relevant only to occupied salamander sites that overlap with Federal forest management projects; this comprises a very small fraction of the NWFP area and will have an insignificant effect on the overall levels of timber harvest within the range of the Siskiyou Mountains salamander. Intensive timber harvest methods such as clear-cutting are extremely limited in extent on Federal lands within the ranges of these salamanders, but where they occur they may reasonably be expected to have negative impacts on salamander populations. The available evidence does not demonstrate that the less-intensive harvest methods commonly employed on Federal lands have had substantial impacts to salamander populations, and we do not anticipate such impacts in the future. However, we acknowledge that the relationship between degree of management intensity and effects to salamanders requires further investigation. Intensive timber harvesting practices on private timberlands affect only 10 percent of the Siskiyou Mountains salamander's range. The majority of private lands within the salamander's range occur as small parcels (typically one square mile or less) in a checkerboard pattern surrounded by Federal lands. Salamander populations on private lands may be negatively affected by timber harvesting but are dispersed among populations on Federal lands where management is more favorable. This acts to maintain redundancy, distribution, and connectivity among Siskiyou Mountains salamander populations within the mix of Federal and private lands. In addition, surveys and monitoring of Siskiyou Mountains salamanders on private timberlands demonstrate that numerous populations of Siskiyou Mountains salamanders continue to exist post-harvest and some exhibit evidence of normal population structure (Farber et al. 2001, p. 13; Bull et al. 2006, p. 24; Farber 2007, p. 3), indicating that extirpation of salamander populations on harvested private timberlands is not a substantial threat to the species. Wildfire Wildfire is thought to be a potential threat to Siskiyou Mountains salamander habitat (Olson et al. 2007, pp. 15, 25-26). Fire suppression and logging have altered forest structure and increased fuel loading in much of the Klamath-Siskiyou region (Skinner et al. 2006, pp. 178-179). Fire regimes within the ranges of the species have largely shifted from frequent, low-to-moderate or mixed-severity fires to less frequent, more severe fires (Agee 1993, pp. 388-389; Taylor and Skinner 1998, p. 298; USDA 1999, pp. 2-76 and 2-82; Skinner et al. 2006, p. 191). However, debate exists concerning the extent to which this effect is operating in the Klamath and Siskiyou Mountains (Odion et al. 2004, pp. 933-934). Climate changes associated with global warming are expected to increase the frequency of large, severe fires in this region (see Factor E discussion below). However, fire modeling suggests that the level of tree mortality would be highly variable within the geographic ranges of these species (USDA 1999, pp. 2-76 and 2-82; Suzuki and Olson 2007, p. 8), resulting in a mosaic pattern of habitat effects. Similar mosaics of effects have been documented for large fires in other regions (e.g., Eberhart and Woodard 1987, pp. 1207-1212). In addition, the talus outcrops inhabited by these salamanders may modify the behavior of fire (e.g., Major 2005, p. 95) by acting as minor fuel breaks and influencing the mosaic of burned and unburned areas. The direct effects of fire on these species are unknown but interstitial spaces in deeper talus habitat likely provide underground refugia for these salamanders during fires (DeGross and Bury 2007, p. 7). In addition, wildfires typically burn during the dry summer and fall months when the salamanders are not on the surface; the period of surface activity coincides with wet climatic conditions prohibitive to wildfire. The indirect effects of fire on these species are also unknown. Severe wildfires, by definition, remove or significantly reduce canopy cover; consume moss, duff, and forest litter; and may sterilize surface soil layers. Siskiyou Mountains salamanders occasionally use woody debris as cover during surface activity, and canopy and leaf litter cover may influence habitat quality for them (see Habitat Associations section), so these habitat changes likely affect salamanders during some period of post-fire recovery. We are unaware of any studies of the effects of prescribed burning on Siskiyou Mountains salamanders. Prescribed fires are usually applied in the spring or fall, when moisture levels minimize the risk of damage to mature trees and unacceptable spreading of fire. Moisture levels during periods of surface activity by these species are higher than those that are appropriate for prescribed burning, so the risk of direct mortality during prescribed fires is likely low. Prescribed fires could temporarily reduce the quality of habitat for these species by consuming understory vegetation, down wood, litter, and duff. Conversely, the benefits of prescribed fires may outweigh their costs to salamanders in some areas by reducing the risk of severe wildfires. Roads and Road Construction Research suggests that forest roads may significantly restrict movements and local abundances of plethodontid salamanders (deMaynadier and Hunter 2000, pp. 63-64; Marsh et al. 2005, p. 2006; Semlitsch et al. 2007, p. 159). Forest roads may reduce dispersal by salamanders, leading to lower gene flow and reduced long-term persistence of populations (Marsh et al. 2005, p. 2007). Conversely, Nussbaum (1974, p. 13) found numerous salamander locations within road cuts, and suggested that the road construction provided habitat in the form of newly exposed fissured rock, or at least did not render the adjacent habitat unsuitable. Within the ranges of the Siskiyou Mountains salamander, roads are typically constructed for access to timber harvest operations. While road densities are high in some areas within the ranges of the salamanders (USDA 1999, pp. 2-31), the amount of road construction activity has declined sharply as timber harvest levels have dropped. Road decommissioning projects may have short-term localized effects to rock substrates, but are designed to re-create a natural substrate. The small area affected by road construction and the linear nature of habitat impacts, combined with the ability of salamander populations to occupy road cuts, suggest that forest roads do not pose a significant threat to populations of Siskiyou Mountains salamanders (Olson et al. 2007, p. 17). We are not aware of any other information that suggests that the presence of roads or road construction presents a substantial threat to the Siskiyou Mountains salamander. Mining and Rock Quarrying Some sites occupied by the Siskiyou Mountains salamander have evidence of previous mining activity. It is unclear whether or how salamanders in those sites may have been affected by these activities. Rock quarrying could pose a greater threat to individual populations because of the potentially greater intensity of the disturbance. However, this activity occurs within an extremely small proportion of this species' range, and is unlikely to have more than localized effects (Olson et al. 2007, p. 17). We are not aware of any information that suggests that mining or rock quarrying presents a substantial threat to the Siskiyou Mountains salamander. Summary of Factor A While intensive timber management practices such as clear-cutting appear to have negative impacts on the abundance of Siskiyou Mountains salamanders, this practice is severely restricted on Federal lands that constitute the vast majority of the species' range. Less intensive harvest practices appear to have relatively minor or short-term impacts to salamander abundance, and the available evidence suggests that salamander populations persist in a broad range of forest habitat conditions and under different management practices. Current management on Federal lands under the provisions of the NWFP protects salamanders via a system of reserves and land management guidelines (see Background Information: Land Management) that dramatically reduce the likelihood of large-scale reduction of suitable or occupied habitat. Until recently, the Survey and Manage guidelines also served to protect occupied salamander sites from disturbance from management activities. In the northern portion of the range, a Conservation Strategy has been implemented that will essentially continue the Survey and Manage Protections for Applegate salamander. However, even without Survey and Manage or Conservation Strategy protections, the available evidence does not show that timber harvest practices on Federal lands, either alone or in combination with other habitat disturbing activities such as mining, road building or wildfire, have substantially reduced the habitat or range of this species or are likely to do so in the foreseeable future. Intensive timber harvesting practices, such as clear-cutting and shelterwood removal, are more likely to occur on private timberlands. While it is reasonable to assume that abundance and population structure of Siskiyou Mountains salamander populations on private timberlands may be negatively affected by timber harvesting and other habitat disturbances, these lands constitute less than 10 percent of the species' range. Other factors combine to greatly reduce the likelihood that Siskiyou Mountains salamander populations will be threatened by management activities on private lands:

(1)The majority of private lands within the species' range occur as small parcels (typically one square mile or less) in a checkerboard pattern surrounded by Federal lands; and

(2)many salamander populations have persisted on private timberlands in spite of a history of timber harvest. We, therefore, conclude that timber harvesting and other management practices on private lands do not constitute a substantial threat to the Siskiyou Mountains salamander. Wildfires are expected to occur and may reduce habitat quality for some salamander populations; however, the effects of wildfires on salamander habitat are temporary and populations appear to recover as vegetation recovers. Wildfires typically burn in a mosaic pattern of intensities, leaving a variety of habitat conditions for salamanders within burned areas. In summary:

(1)There is no evidence that the range of the Siskiyou Mountains salamander has changed from its historical size.

(2)Despite over a century of mining, road building, and intensive timber harvest, salamander populations remain well-distributed in a wide variety of habitat conditions.

(3)Results of field studies and surveys indicate that salamander populations recover following intensive habitat disturbances.

(4)On Federal lands, which constitute the majority of this species' range, NWFP land allocations and Standards and Guidelines (excepting the Survey and Manage program) and other regulations contained in Land and Resource Management Plans provide a broad range of protections for salamander habitat.

(5)The rate and intensity of timber harvest has declined dramatically on Federal lands and there is no reliable information suggesting that harvest rates or intensity will increase substantially in the foreseeable future.

(6)While more intense harvesting may occur on private lands, these lands are patchily distributed among Federal land holdings and taken together constitute less than 10 percent of the species' range.

(7)Available evidence does not indicate that other potential habitat threats to salamanders, individually or in combination with timber harvest (i.e., wildfire, mining and rock quarrying, and road building) have resulted in, or are likely in the foreseeable future to result in, significant habitat loss that would pose a threat to salamanders. Therefore, we conclude that the Siskiyou Mountains salamander is not now or in the foreseeable future, threatened by destruction, modification, or curtailment of its habitat or range. Factor B: Overutilization for Commercial, Recreational, Scientific, or Educational Purposes We are not aware of any information that indicates overutilization for commercial, recreational, scientific, or educational purposes threatens now, or in the foreseeable future, the Siskiyou Mountains salamander across its range. Factor C: Disease or Predation Chytridiomycosis is a relatively recently described epidermal infection of amphibians caused by the chytrid fungus *Batrachochytrium dendrobatidis.* Chytridiomycosis has been implicated in mass mortalities, population declines, and extinctions of some amphibian species, but species appear to vary in their susceptibility to the disease (Daszak et al. 1999; Blaustein et al. 2005; Ouellet et al. 2005; Pearl et al. 2007). This disease is most likely transmitted to amphibians by contact with infected water or other amphibians (Johnson and Speare 2003, p. 922). *Batrachochytrium dendrobatidis* requires moisture for survival (Johnson and Speare 2003, p. 922) and is therefore more likely to pose a threat to aquatic amphibians than to terrestrial ones. However, a chytrid infection was recently found in a terrestrial salamander, the Jemez Mountains salamander ( *Plethodon neomexicanus* ), living in a wet meadow (Cummer et al. 2005, p. 248). Infected aquatic amphibians appeared to be the most likely source of transmission of the disease to this individual. Bullfrogs ( *Rana catesbeiana* ) infected with *B. dendrobatidis* were recently found in a pond in Trinity County, California (Bettaso and Rachwicz 2006, p. 162), so it is possible that the disease occurs, or will soon occur, within the range of the Siskiyou Mountains salamander. Nonetheless, we do not anticipate that the Siskiyou Mountains salamander will be exposed to this disease or that exposure would lead to transmission through a significant portion of its range. This species is not associated with bodies of water, occurs in a characteristically dry environment, is only active above ground for brief and intermittent periods during the year, and appears to have limited dispersal abilities. Given these restrictions, we believe that the Siskiyou Mountains salamander is unlikely to be exposed to diseased water or infected aquatic amphibians and, if infected, is unlikely to transmit the disease between populations. The Service is not aware of any predators that potentially pose a threat to the species. Therefore, we find disease or predation does not threaten now, or in the foreseeable future, the Siskiyou Mountains salamander across its range. Factor D: Inadequacy of Existing Regulatory Mechanisms To the extent that we identify possibly significant threats in the other factors, we consider under this factor whether those threats are adequately addressed by existing regulatory mechanisms. Thus, if a threat is minor, listing may not be warranted even if existing regulatory mechanisms provide little or no protection to counter the threat. As described above in the “Background: Land Management” section, habitats occupied by Siskiyou Mountains salamanders receive protection from a number of sources such as the NWFP and other Federal land management regulations. Until recently, protections for the Siskiyou Mountains salamander on Federal lands included the Survey and Manage Mitigation Measure Standards and Guidelines portion of the NWFP. On private lands in California, the species complex receives protection pursuant to the California Endangered Species Act (CESA). The future of some of these regulations (Survey and Manage Program and State Protections) is in flux. Federal Lands Survey and Manage Mitigation Measure Standards and Guidelines Siskiyou Mountains salamanders and their habitat have received an additional layer of security from the Survey and Manage Mitigation Measure Standards and Guidelines (Survey and Manage Program) under the NWFP (USDA and USDI 1994). The Survey and Manage Program provided specific guidance for management of both genetic subunits of the Siskiyou Mountains salamander. Management guidance for Applegate salamander populations included identification of high-priority sites that will be managed to provide a reasonable assurance of long-term species persistence. In the southern portion of the range (Grider and Scott Bar salamanders), protections included the requirement of surveys prior to land management activities, and restrictions of habitat-altering activities such as timber harvesting at occupied sites (see “Background: Land Management”). The USFS and BLM decided to remove the Survey and Manage Program from the NWFP, and published their ROD entitled “To Remove or Modify the Survey and Manage Mitigation Measures Standards and Guidelines in Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl” in March 2004 (March 2004 ROD). The FSEIS for the March 2004 ROD identified potential mitigation measures, including sensitive species programs, for species affected by the removal of the Survey and Manage Program. In January 2006, the court in *Northwest Ecosystem Alliance* v. *Rey,* 2006 U.S. Dist. Lexis 1846 (N.D. Wash.) ordered the March 2004 ROD set aside for failure to comply with the National Environmental Policy Act. With this order, the court reinstated the 2001 Survey and Manage ROD, which had modified the original Survey and Manage Program but maintained protections for the salamanders. At the end of July 2007, the USFS and BLM issued a new ROD (2007 ROD) to remove the Survey and Manage Mitigation Measure Standards and Guidelines portion of the Northwest Forest Plan. Following issuance of the 2007 ROD, the USFS and BLM petitioned the court to lift or modify the injunction against projects that relied on the 2004 ROD. In its November 21, 2007, order, the court denied the agencies' request ( *Conservation Northwest* v. *Mark E. Rey* 2007 U. S. Dist. Lexis 88541 (N. D. Wash.)), but did not rule on the sufficiency of the 2007 ROD. With issuance of the 2007 ROD, the Survey and Manage Program has been eliminated for new project planning and decisions. However, because of the lag time in implementation of the 2007 ROD, most new Federal land management decisions issued in 2008 will be compliant with the former Survey and Management guidance for the Siskiyou Mountains salamander (West 2007); implementation of new projects compliant with the 2007 ROD is unlikely until 2009. Although judicial challenge to the removal of the Survey and Manage Program in the 2007 ROD is very likely, we assume for purposes of this finding that the Survey and Manage Program will not remain in effect in the future. Assuming the removal of the Survey and Manage Program, management of this species will be based on the USFS's Special Status Species Program and the BLM's Sensitive Species Program (Hughes 2007). The Special Status Species and Sensitive Species programs are anticipated to provide less stringent protections than those in the Survey and Manage Program; however, they include provisions for development of conservation strategies and Conservation Agreements, which, as discussed previously under “Land Management,” has already occurred with regard to the Applegate salamander, and is under development for the Grider salamander and Scott Bar salamander. It is important to note that, while the Service recognizes the added layer of security provided by Survey and Manage Protections for the Siskiyou Mountains salamander, our evaluation of the potential threats to this species does not indicate that the Survey and Manage Protections are key to the species' persistence. The petitioners cite statements in the 2004 FSEIS (USDA and USDI 2004) indicating that loss of the Survey and Manage Protections could result in gaps in the distribution of Siskiyou Mountains salamander. In addition, the Species Review Panel (USDA and USDI 2001, p. 16) concluded that “[i]t is likely that non-protected land allocations will be required in order to ensure persistence for the species, both in the northern and southern portions of the range” indicating that current reserves may be inadequate. We have carefully evaluated this information, and we find that these conclusions are no longer consistent with the current scientific knowledge about the Siskiyou Mountains salamander and Scott Bar salamander, because:

(1)The conclusions were made based on a much smaller number of known populations

(161)than what is known today (631);

(2)they are based on a single unpublished habitat-associations study by Ollivier et al. (2001); and

(3)they assumed extirpation of populations that experience any degree of timber harvesting. As described previously under “Summary of Factors Affecting the Species: Factor A,” the best available evidence indicates that Siskiyou salamanders persist in areas affected by timber harvest, and in particular, in areas subject to the less intensive harvesting methods employed on the vast majority of Federal lands that make up the species range and there is little evidence to support the speculation that the rate and intensity of timber harvest on Federal lands will increase in the foreseeable future, with or without the Survey and Manage protections. Conservation Strategies Conservation Strategy for the Siskiyou Mountains Salamander—Northern Portion of the Range As discussed in detail above under the Species Information: Land Management section, in anticipation of the eventual removal of the Survey and Manage Program, a team of researchers and biologists from USFS Pacific Northwest Research Station and the Service formalized the existing Survey and Manage Category D objectives for the Siskiyou Mountains salamander in the northern portion of its range (Applegate salamander) in a Conservation Strategy (Olson et al. 2007). The USFS and BLM committed to implement this Conservation Strategy in the August 16, 2007, Conservation Agreement for the Siskiyou Mountains Salamander ( *Plethodon stormi* ) in Jackson and Josephine Counties of southwest Oregon and in Siskiyou County of northern California (USDA and USDI 2007; Olson et al. 2007). However, because of the limited nature of the threats addressed by the conservation Strategy, we did not rely on it in determining whether listing the Siskiyou Mountains salamander is warranted. The petitioners (Greenwald and Curry 2007, p. 9) questioned whether the BLM will adhere to the Conservation Agreement because it is not incorporated into the proposed Western Oregon Plan Revision

(WOPR)Draft Environmental Impact Statement (DEIS), a proposal to modify the NWFP land allocations and standards and guidelines on BLM lands in Oregon, which could potentially increase timber harvest levels on BLM lands within the range of the salamanders. Because we did not rely on the Conservation Strategy in reaching our determination, the petitioners' concern is not relevant. In any case, the timing of development and release of the WOPR DEIS precluded inclusion of the then-unsigned Conservation Agreement; the BLM has subsequently provided a letter to the Service clarifying the BLM's commitment to implement the Conservation Strategy regardless of the eventual outcome of the WOPR proposal (USDI 2007b). The petitioners also question the ability of the Conservation Agreement to conserve the Siskiyou Mountains salamander because it protects only roughly half of the currently known salamander locations and allows management of fire risk at 48 locations (Greenwald and Curry 2007, pp. 10-11). Petitioners apparently assume that only the selected high-priority sites will receive any degree of protection, management guidelines designed to reduce fire risk at 48 sites will harm populations, and significant losses of Applegate salamander populations not specifically protected by the strategy are likely. Although we did not rely on the Conservation Strategy in reaching our conclusion, we note that the available information does not support these assumptions. It is unlikely that a high proportion of the non-network sites are at risk because of other protections in place. For example, many of the 289 Siskiyou Mountain salamander locations not selected for the population network fall within NWFP reserves and other areas not likely to experience intensive disturbance, and, as described above under Factor A, there is little evidence to suggest that substantial losses of populations will occur as a result of foreseeable forest management activities. The Conservation Strategy was authored by four of the most-published scientific experts on this species (D. Olson, D. Clayton, H. Welsh, and R. Nauman, among others), and incorporates habitat modeling and risk assessment in the evaluation of species persistence and distribution within the strategy area. The petitioners present no information or analysis to support their contention that the expert team somehow erred in the development of the Conservation Strategy. The petitioners assert that the Conservation Strategy is unlikely to be effective because it contains management recommendations that appear to lack regulatory force (Greenwald and Curry 2007, p. 10) and further claim that the Conservation Strategy does not meet the standards of the Service's Policy for Evaluating Conservation Efforts

(PECE)(68 FR 15100; March 28, 2003) (Greenwald and Curry 2007, p. 11). In response to the petitioners' first concern, we have no basis to conclude that the Federal parties to the Conservation Agreement will fail to comply with their own management guidance, and note that the Service will be a participant in the 5-year reviews described in the Strategy under Adaptive Management (Olson et al. 2007, p. 39-40). As described under “Background: Land Management,” the Conservation Strategy for the Siskiyou Mountains Salamander, Northern Portion of the Range is simply the formalization of existing Survey and Manage guidance for northern populations of Siskiyou Mountains salamanders; guidance deemed adequate by the petitioners (Center for Biological Diversity et al. 2003, p. 17) and the Survey and Manage taxa team experts. In response to petitioners' reliance on PECE, we emphasize that application of the PECE is inappropriate here. The Service may rely on conservation efforts that meet the standards of PECE in making listing determinations. In other words, a conservation effort relied on consistent with PECE can be dispositive as to the Service's ultimate finding on the status of a species. The policy therefore requires a high level of certainty that conservation efforts will be implemented and will be effective to ameliorate threats that would otherwise warrant listing of a species. Even in the absence of the Conservation Strategy, we do not consider the threats to the Siskiyou Mountains salamander under factors A through E of Section 4(a)(1) of the Act, now or in the foreseeable future, substantial enough to warrant its listing under the Act. Therefore, although implementation of the Conservation Strategy may be beneficial for the Siskiyou salamander, we did not rely on it in making our determination that the species does not warrant listing. Western Oregon Plan Revisions The WOPR are a proposal by the BLM to revise six resource management plans

(RMPs)that cover all BLM-administered lands in western Oregon. In August 2003, the American Forest Resource Council, the Association of Oregon and California Counties, and the Secretaries of Interior and Agriculture entered into a settlement agreement requiring the BLM to revise its RMPs to meet the mandated requirements of the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act of 1937. In accordance with this agreement, the BLM is proposing to revise existing RMPs to replace the NWFP land-use allocations and management direction. In its August 16, 2007, DEIS for the Revision of the Western Oregon RMPs, the BLM describes three action alternatives designed to meet the purpose and need of the plan revisions, and a no-action alternative. Each of the action alternatives includes a range of management strategies; however, none of the action alternatives propose to retain NWFP late-successional reserves, and all action alternatives would result in a reduction in riparian reserve areas. While these proposed revisions have the potential to increase timber harvesting within the range of the Siskiyou Mountains salamander, we cannot at this time predict which alternative, including the no action alternative, will be selected or evaluate the potential effects to the 11 percent of the range of the Siskiyou Mountains salamander that occurs on lands administered by BLM in Oregon. While the potential effects of possible RMP changes on the small percentage of Siskiyou Mountains salamander's range that occurs on BLM lands are unknown, NWFP land-use allocations and management direction provides substantial protection for the Siskiyou Mountains salamander and its habitat. If existing Federal management for the Siskiyou Mountains salamander is modified in the future, the Service can consider any such changes in the context of the degree and immediacy of potential threats to the Siskiyou Mountains salamander at that time. State Regulations In California, the Siskiyou Mountains salamander is listed as a threatened species and receives substantial protection pursuant to CESA. On private timberlands, this protection includes a requirement for pre-project surveys and prohibitions on timber harvest in established buffers around occupied suitable habitat. In May 2005, CDFG submitted a petition to the California Fish and Game Commission to delist the Siskiyou Mountains salamander throughout its entire range in California. In August 2005, CDFG amended the petition by removing that portion of the Siskiyou Mountains salamander's range that is now known to be occupied by the recently described Scott Bar salamander. The private lands affected by the amended petition consititute only 9 percent of the known range of the Siskiyou Mountains salamander in California. The final determination on whether to delist the Siskiyou Mountains salamander was scheduled to be made at the Fish and Game Commission's January 31, 2007, meeting; however, that decision has been postponed pending completion of environmental documents. Because of controversy surrounding the proposed delisting, it is uncertain whether the existing regulatory protections will be removed in the foreseeable future. If existing State regulations are modified in the future, the Service can consider such changes in the context of the degree and immediacy of potential threats to the Siskiyou Mountains salamander at that time. However, because of the small proportion of the species' range that occurs on private lands in California, combined with evidence that Siskiyou Mountains salamander populations persist in disturbed habitats, we find that removal of CESA protections would not pose a substantial threat to the species. No specific regulatory mechanisms to protect the Siskiyou Mountains salamander exist on the approximately seven percent of the species' range that occurs on private lands in Oregon. However, most of these lands occur as small (one square mile or less) parcels distributed in a checkerboard pattern or as isolated parcels within Federal lands where management is more favorable for salamanders and serves to maintain redundancy, distribution, and connectivity among Siskiyou Mountains salamander populations. In addition, research indicates that populations of Siskiyou Mountains salamander persist following timber harvesting and recover as vegetation is re-established (see Factor A). Therefore, the Service believes that the lack of regulatory protections on a small proportion of the species' range in Oregon does not pose a threat to the species in the foreseeable future. Summary of Factor D The adequacy of existing regulatory mechanisms to protect Siskiyou Mountains salamander populations must be evaluated in light of the degree of threat potentially posed by the actions being regulated. As described above under Factor A, Siskiyou Mountains salamander populations may find optimum habitat conditions in mature forest, but also occupy a wide range of forest conditions and have been shown to persist and recover following disturbances such as timber harvesting and fire. Although not specifically aimed at conservation of Siskiyou Mountains salamanders, land management guidance such as the NWFP and other regulations provide protection of salamander habitat on Federal lands which constitute the vast majority of the species' range. Although we have determined that the species does not warrant listing even in the absence of any reduction in threat resulting from implementation of the Conservation Strategy for the Siskiyou Mountains salamander (Plethodon stormi) in the Northern Portion of the Range (Olson et al. 2007), that Conservation Strategy may provide an added layer of security to the Northern Clade of Siskiyou Mountains salamander populations. Current California regulations provide substantial protection for the Siskiyou Mountains salamander on the small percentage of the species' range in California that occurs on private lands. The California Fish and Game Commission is currently evaluating a petition to delist the Siskiyou Mountains salamander, but has not reached a decision regarding this action. However, we find that the removal of CESA protections would not pose a substantial threat to the species, because of the small proportion of the species' range that occurs on private lands in California, combined with evidence that Siskiyou Mountains salamander populations persist in disturbed habitats. Oregon does not provide regulatory protections for the Siskiyou Mountains salamander on private lands. However, private lands in Oregon comprise only seven percent of the Siskiyou Mountains salamander's entire range (both clades) and are scattered among Federal lands that compose the vast majority of the species' range. Under Section 4(a)(1)(D) the Service must evaluate the adequacy of existing regulatory mechanisms rather than speculate about future changes to those mechanisms. With the exception of the Survey and Manage guidelines, which have been eliminated for future projects on Federal lands, we assume that the NWFP and other land management regulations will continue as existing regulatory mechanisms that provide adequate conservation of Siskiyou Mountains salamanders. If Federal or State regulatory mechanisms are modified or eliminated in the future, the Service can consider that information when evaluating the adequacy of then existing regulatory mechanisms to protect the Siskiyou Mountains salamander in the context of the degree and immediacy of potential threats to the Siskiyou Mountains salamander at that time. In light of the ability for Siskiyou Mountains salamander populations to persist in managed landscapes, we find that existing Federal regulatory mechanisms such as the NWFP and other provisions of Federal Land and Resource Management Plans, in combination with the Federal Special Status Species programs, offer adequate protection for the Siskiyou Mountains salamander and its habitat over the vast majority of its range, and conclude that this species is not now, or in the foreseeable future, threatened by inadequate regulatory mechanisms. Factor E: Other Natural or Manmade Factors Affecting the Continued Existence of the Species Other natural or manmade factors that may affect the persistence of the Siskiyou Mountains salamander within all or a significant portion of its range are climate changes associated with global warming and stochastic events, which are rare, chance events, such as epidemics and large, severe wildfires. Climate Change There is considerable uncertainty associated with projecting future climate changes. This uncertainty is partly due to uncertainties about future emissions of greenhouse gases and to differences among climate models and simulations (Stainforth et al. 2005, pp. 403-406; Duffy et al. 2006, p. 874). We are not aware of any climate change simulations for the Klamath-Siskiyou region, but the results of numerous climate change simulations for California and the Pacific Northwest have been published (see below). Together, these simulations describe a range of plausible outcomes from increased emissions of greenhouse gases. All studies we reviewed predicted continued increases in average surface temperatures in California and the Pacific Northwest in response to increased emissions of greenhouse gases (Leung and Ghan 1999, p. 2031; Snyder et al. 2002, p. 1; EPRI 2003, p. 95; Hayhoe et al. 2004, p. 12422; Cayan et al. 2006, p. 11; Duffy et al. 2006, p. 873; Maurer 2007, p. 317; Salathé et al. submitted, pp. 8-9). The magnitude of projected increases in annual average temperature varied widely among studies, depending on the models and emissions scenarios used, from 3 to 10.4 degrees Farenheit (°F) (1.5 to 5.8 degrees Celsius (°C)), by the year 2100 (EPRI 2003, p. 3; Hayhoe et al. 2004, p. 12423; Cayan et al. 2006, pp. 11-14; Maurer 2007, p. 317). Simulations consistently project more pronounced temperature increases in California during the summer months than during other times of the year, 3.9 to 14.9 °F (2.2 to 8.3 °C) by 2100 (Hayhoe et al. 2004, p. 12422; Cayan et al. 2006, p. 14; Maurer 2007, p. 317). Some simulations projected more rapid temperature increases at higher elevations than at lower ones (Leung and Ghan 1999, p. 2047; Salathé et al. submitted, pp. 10-12). Most researchers attributed this difference to a snow-albedo feedback effect; this occurs when increased surface temperatures cause earlier and faster snow melt, which, in turn, allows more absorption of heat by the ground and further increases in surface temperatures. Increased average surface temperatures could cause soils used by Siskiyou Mountains salamanders to become warmer, and possibly drier, during the dry season. If this occurs, it could negatively affect these species because they are associated with cool, moist soil conditions (see Habitat Associations above). However, we expect that the Siskiyou Mountains salamanders will be somewhat buffered from changes to soil surface conditions because they are primarily active below ground during the dry season. Salamanders at shallow sites may be more negatively affected by drying and heating of the soil surface than those at deeper sites since they will be less able to respond to changing soil microclimates with vertical movements. Increased surface temperatures could have unpredictable indirect effects on these species: For example, through effects on vegetation, disturbance regimes, competitors, predators, or prey. Reviews of a large number and variety of climate change simulations found that projected changes to precipitation in California were highly variable but clustered around no change or a slight increase in annual precipitation (Cayan et al. 2006, p. 17; Maurer 2007, p. 317). Warming temperatures are consistently projected to increase the proportion of precipitation that falls as rain rather than as snow in California and the Pacific Northwest (Leung and Ghan 1999, p. 2041; Snyder et al. 2002, p. 3; Hayhoe et al. 2004, p. 12425; Cayan et al. 2006, p. 31; Maurer 2007, p. 319). Earlier and more rapid snowmelt and decreases in the proportion of precipitation that falls as snow are expected to cause declines in spring snowpacks (Hayhoe et al. 2004, p. 12422; Cayan et al. 2006, p. 31; Maurer 2007, p. 309). Declines in spring snowpacks have already occurred in some areas and are correlated with global warming trends (Mote 2003, pp. 1-4). Some areas will experience increased cloud cover as surface temperatures continue to increase (Croke et al. 1999, pp. 2128-2134). One model projected a greater increase in low cloud cover during spring in the Pacific Northwest, especially near the coast (Salathé et al. submitted, pp. 14-16). Lower proportions of snow versus rain and earlier and faster snowmelt could enable the Siskiyou Mountains salamanders to become surface active earlier in the spring. We currently do not know whether or how a shift in the timing of surface activity might affect the viability of these species. Little is known about the physiological sensitivities of the Siskiyou Mountains salamanders to temperature, but an increase in spring cloud cover could directly benefit them by moderating daily temperature ranges during their periods of surface activity. Superficially, increased precipitation might also directly benefit the species, while decreased precipitation might negatively affect it. For example, changes to the timing and amount of precipitation could alter the length or frequency of the species' periods of surface activity or the size or location of its geographic range. Changes to cloud cover or the amounts, timing, and form of precipitation could also have complex indirect effects on the species; for example, through influences on vegetation, disturbance regimes, competitors, predators, or prey. Evaluation of the potential effects of changes to precipitation on the Siskiyou Mountains salamander should become more meaningful as emissions scenarios, climate change models, and our knowledge of these species continue to improve. Vegetation modeling by Lenihan et al. (2003a, pp. 1-41; 2003b, pp. 1667-1681) projected that increased emissions of greenhouse gases will cause large-scale replacement of evergreen conifer forest (e.g., Douglas fir-white fir) with mixed evergreen forest (e.g., Douglas-fir-tanoak) in the Klamath-Siskiyou region. This redistribution of vegetation types is predicted to occur under conditions created by two contrasting climate change models (Lenihan et al. 2003a, pp. 23-25). Because Siskiyou Mountains salamanders already occur within mixed evergreen forest, we do not anticipate a direct negative effect to the species from this potential change. However, the species may shift its range to higher elevations, following elevational changes in climate and vegetation. Numerous indirect effects of community composition shifts on the Siskiyou Mountains salamander could occur, but the net effect of these shifts is currently impossible to predict owing to the lack of information about this species' ecology. Despite variability in climate change simulations, consistent projections for warmer summers, reduced spring snowpacks, and earlier and more rapid snowmelt suggest that forests in California and the Pacific Northwest will experience longer fire seasons and more frequent, extensive, and severe fires in the future (Flannigan et al. 2000, pp. 221-229; Lenihan et al. 2003a, p. 18; Whitlock et al. 2003, pp. 13-14; McKenzie et al. 2004, pp. 897-898). However, inconsistent predictions for precipitation, including increased cloud cover and rainfall, make this outcome uncertain. The Siskiyou Mountains salamander has experienced other large changes to global and regional climates during its history. For example, global temperatures during the Pliocene warm period (5 to 3 million years ago) were approximately 5.4 °F (3 °C) higher than today (Ravelo et al. 2004, p. 263). More recently, several large changes to climate, fire regimes, and vegetation occurred in the Klamath-Siskiyou region during the Holocene (approximately 12,000 years to present day) (e.g., Mohr et al. 2000). Little is known about how the Siskiyou Mountains salamander responded to prehistoric climate changes or how those responses might inform us about the impacts of future changes. Stochastic Events Siskiyou Mountains salamanders have relatively small geographic ranges and limited dispersal abilities. Analyses of the fossil record and of currently threatened species suggest that species with these characteristics are at a higher risk of extinction than are mobile, widely distributed species (Jablonksi 1986; Manne et al. 1999; Dynesius and Jansson 2000; Jones et al. 2003; Payne and Finnegan 2007). Stochastic (rare, chance) events such as epidemics or large, severe fires can threaten the persistence of species with restricted ranges because a single event can occur within all or a large portion of their ranges. Species that are relatively sedentary are probably less able than mobile animals to escape stochastic events and their effects, or to recolonize parts of their range where they have been extirpated. Some researchers have suggested that the Siskiyou Mountains salamander is rare and patchily distributed, which could further increase the species' risks of extinction. However, the evidence cited above suggests that this salamander is in fact well distributed within its range, that it likely occurs at high densities in some areas, and that it persists in areas that have experienced disturbances (see Range and Distribution, and Factor A). Epidemics and large, severe fires are two kinds of stochastic events that could negatively affect populations of the Siskiyou Mountains salamander. However, these events are unlikely to threaten the persistence of the species across its range. The only lethal disease we are aware of that could behave as an epidemic in populations of this salamander is chytridiomycosis ( *Batrachochytrium dendrobatidis* ), but this species does not appear likely to contract this disease and the Siskiyou Mountains salamander's life history makes it unlikely that this disease would spread as an epidemic (see Factor C above). The Siskiyou Mountains salamander is probably more likely to experience large, severe wildfires than epidemics in the foreseeable future. Wildfires can occur over large areas relative to the range of the Siskiyou Mountains salamander. For example, 499,965 ac (202,329 ha) burned during the 2002 Biscuit Fire in southwestern Oregon and northwestern California, largely outside of the range of the salamanders. Approximately 44 percent of the area (219,985 ac (89,025 ha)) was severely burned (USDA and USDI 2004). In comparison, the species range of the Siskiyou Mountains salamander is 423,155 ac (171,241 ha). However, Siskiyou Mountains salamanders appear to be relatively resilient to disturbances (see Factor A above), having evolved in a region where large wildfires are characteristic. Further, past fire behavior and modeling of future fire behavior suggest that large, severe fires in this region will have a mosaic of effects, leaving unburned and lightly burned patches of suitable habitat for the species in some areas (see Factor A above). Summary of Factor E Uncertainty is associated with predicting future climate changes, but simulations have consistently projected continued increases in average surface temperatures, reduced spring snowpacks, and a lower proportion of precipitation falling as snow during this century. Given its physiology, this species may be strongly affected, positively or negatively, by changes to precipitation patterns. However, projections of future patterns of precipitation are highly variable for northern California and southern Oregon, precluding any reliable prediction of future effects on salamander populations. The Siskiyou Mountains salamander has a relatively small geographic range, restricted habitat associations, and limited dispersal abilities, which could make it more vulnerable to stochastic events such as large, severe fires than species without these characteristics. Large, severe fires are also expected to increase in frequency in the Klamath-Siskiyou region due to global warming and other anthropogenic factors. However, the high variability of wildfire effects at landscape scales, coupled with the apparent ability of the species to persist and eventually recover following habitat disturbance (see Factor A above), indicates that the Siskiyou Mountains salamander has a high likelihood of persistence in the foreseeable future. In addition, land management agencies within the ranges of the salamanders are actively conducting fuels management treatments to reduce the likelihood of wide-scale catastrophic fire. The future effectiveness of these treatments is unknown, but evidence suggests that at least local reductions in fire severity will be achieved. Therefore, we conclude that the Siskiyou Mountains salamander is not now, or in the foreseeable future, threatened by the individual or cumulative effects of climate change, or stochastic events such as epidemics or large, severe wildfires across its range. Finding We have carefully assessed the best scientific and commercial information available regarding threats faced by the Siskiyou Mountains salamander. We have reviewed the petition, information available in our files, and all information submitted to us following our 90-day petition finding (72 FR 14750; March 29, 2007). We also consulted with recognized salamander experts and Federal land managers, and arranged for researchers to initiate field studies to assess the distribution of genetic entities within the salamander complex, and demographic response of these species to forest structure. The petitioners' primary argument for listing the Siskiyou Mountains salamander is founded on a chain of inferences, which may be simplified into the following:

(1)The salamanders are highly dependent on old growth forest conditions;

(2)disturbances such as timber harvesting that modify forest structure will extirpate populations;

(3)the extent and magnitude of such disturbances are sufficient to threaten the species with extinction in the immediate future;

(4)therefore, highly restrictive regulatory mechanisms are critical to prevent extirpation of populations by timber harvesting or wildfire; and, finally,

(5)existing regulatory mechanisms are inadequate to ameliorate the perceived threats to the species. We find that there is little evidence to support any of the five above-mentioned assertions. The available information indicates that, while habitat conditions associated with dense mature forests may be optimal for the Siskiyou Mountains salamander, populations occupy a wide range of habitats that provide the requisite elements of shading, moisture, and cover. Salamander populations are found in a wide variety of forest conditions, including areas with evidence of past disturbances. Local abundance and fitness of populations may be negatively affected by more intensive timber harvesting and wildfires, but salamander populations appear to persist and recover as vegetation is re-established following such intense disturbances, and these intensive timber harvest practices such as clear-cutting are severely restricted on the Federal lands that constitute the majority of the species' range. Less-intensive harvest practices appear to have relatively minor or short-term impacts on salamander abundance, and there are many known populations on managed timberlands. There is no reliable evidence that indicates loss of populations or curtailment of the species' ranges has occurred. Federal lands managed under the provisions of the NWFP comprise the majority of the Siskiyou Mountains salamander's range. The NWFP acts to protect salamanders and their habitat via a system of reserves and land management guidelines that dramatically reduce the likelihood of large-scale reduction of suitable habitat. Additional land allocations and management guidance in Federal land management planning documents (retention areas, Roadless Areas) and the Federal agencies' Special Status Species programs provide additional layers of security against any long-term threats posed by timber harvesting or other land management activities. Private lands comprise only about 10 percent of the species' range, and receive a relatively greater amount of timber harvesting. Currently, the Siskiyou Mountains salamander is listed under CESA and receives substantial protection on private lands in California; however, the future of these protections is uncertain. Regardless of the eventual CESA status of the species in California, habitat impacts on private land are not expected to pose a substantial threat to the Siskiyou Mountains salamander, because:

(1)Private lands constitute a small minority of the species' range;

(2)private lands exist in a checkerboard pattern of small (less than one square mile) parcels interspersed among Federal lands where management is more favorable and therefore, acts to maintain redundancy, distribution, and connectivity among populations within the mix of Federal and private lands;

(3)salamander populations appear to persist and recover following timber harvesting; and

(4)many salamander populations are known to occur on private timberlands despite a long history of timber harvesting. Wildfires are expected to occur and may reduce habitat quality for some salamander populations; however, the effects of wildfire on salamander habitat are temporary and populations appear to recover as vegetation recovers. Wildfires in the Klamath-Siskiyou region typically burn in a mosaic pattern of intensities, leaving a variety of habitat conditions for salamanders within burned areas. We also note that Federal Federal land management agencies are actively planning and conducting fuels reduction treatments to reduce the threat of large, stand-replacing wildfires within the range of the Siskiyou Mountains salamander. Within its relatively small range, populations of Siskiyou Mountains salamanders are well distributed, and abundance within populations can be high. There are 516 known locations for this species, and large areas supporting suitable habitat have not been surveyed. These population characteristics, combined with the species' apparent ability to persist and recover following habitat disturbance, indicate that the Siskiyou Mountains salamander is resilient to stochastic events such as large wildfires. Our evaluation of climate change modeling for the geographic area inhabited by the salamanders does not support the contention that climate change poses a substantial threat to Siskiyou Mountains salamanders. Although most of the available models predict increases in average temperatures, models were inconsistent with regard to future precipitation; increases in annual precipitation and cloud cover are a plausible outcome and could act to ameliorate any negative impacts caused by increased temperatures. It is not currently possible to forecast the specific effects of future climate on salamander populations. Our evaluation of the threats to the Siskiyou Mountains salamander leads us to the conclusion that several factors act cumulatively to assure the continued existence of well-distributed, viable populations of this species into the foreseeable future. These are:

(1)Populations are demonstrated to persist in a wide variety of habitat conditions;

(2)populations appear to be somewhat resilient to habitat disturbances such as timber harvesting and fire;

(3)to the extent that habitat disturbances have negative effects to salamander populations, 90 percent of the species' range is protected from substantial negative impacts by existing Federal land management regulations such as the NWFP and other regulations that provide protection for their habitat;

(4)private timberlands constitute only 10 percent of the species' range, and currently support numerous salamander populations; and

(5)the 516 currently known locations of this species are well-distributed spatially and large areas of suitable habitat have yet to be surveyed. Therefore, we do not find that the Siskiyou Mountains salamander is in danger of extinction (endangered) now, nor is it likely to become endangered within the foreseeable future (threatened) across its range. Therefore, listing the species range-wide as threatened or endangered under the Act is not warranted at this time. Distinct Population Segment As stated above, the Siskiyou Mountains salamander can be separated into two clades, the Applegate salamander and the Grider salamander and, therefore, may be considered as two distinct population segments (DPSs), if indeed, they meet the criteria to be defined as such. Section 2(16) of the Act defines “species” to include “any species or subspecies of fish and wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature” (16 U.S.C. 1532 (16)). To interpret and implement the DPS provisions of the Act and Congressional guidance, the Service and the National Marine Fisheries Service (now the National Oceanic and Atmospheric Administration—Fisheries), published a Policy Regarding the Recognition of Distinct Vertebrate Population Segments in the **Federal Register** (DPS Policy) on February 7, 1996, (61 FR 4722). Under the DPS policy, three factors are considered in the decision concerning the establishment and classification of a possible DPS. These are applied similarly for additions to the list of endangered and threatened species. These factors are

(1)the discreteness of a population in relation to the remainder of the species to which it belongs,

(2)the significance of the population segment to the species to which it belongs, and

(3)the population segment's conservation status in relation to the Act's standards for listing, delisting, or reclassification (i.e., is the population segment endangered or threatened?). Discreteness Citing the Services' DPS policy (61 FR 4722) and the best available information, the June 2006 petition suggests that the Siskiyou Mountains salamander can be separated into two discrete populations based on reproductive isolation. Under the DPS policy, a population segment of a vertebrate taxon may be considered discrete if it satisfies either one of the following conditions:

(1)It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.

(2)It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status,or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act. Phylogenetic studies of the Siskiyou Mountains salamander demonstrate that this species consists of two distinct genetic lineages: the Applegate salamander (populations within the Applegate River drainage and north of the Siskiyou Crest) and the Grider salamander (populations south of the Siskiyou Crest and adjacent to the Klamath River) (Pfrender and Titus 2001, pp. 5-6; DeGross 2004, pp. 24-44; Mahoney 2004, p. 8; Mead et al. 2005, pp. 163-166). Mead et al. (2005, p. 168) describe these lineages as “a major phylogenetic subdivision within *P. stormi.* ” Mead et al. (2005, p. 168) estimated an average of 2.22 percent mitochondrial DNA sequence divergence between the Applegate and Grider salamanders, compared with 11.5 percent and 11.68 percent sequence divergence between Scott Bar salamander and the Applegate and Grider salamanders, respectively. An additional genetic distinction between the two lineages is the almost complete lack of genetic variation within and among Applegate populations, likely the result of range expansion and genetic bottleneck as individuals dispersed into the southern reaches of the Applegate watershed (Pfrender and Titus 2001, pp. 5-6). The geographic ranges occupied by the Applegate and Grider salamanders are separated by the Siskiyou Crest, a high-elevation ridge system unlikely to permit population connectivity between the groups. Analyses of mitochondrial DNA indicate that, while the ancestral lineage of the Applegate salamander originated south of the Siskiyou Crest, the two groups diverged over four million years ago (DeGross and Bury 2007, p. 3), further supporting the conclusion that the Siskiyou Crest constitutes an effective barrier between the groups. The Applegate and Grider salamanders are markedly separated as a consequence of physical (geographic) features, and as a consequence exhibit genetic divergence as well. We, therefore, conclude that the two groups are discrete under our DPS policy. Significance If a population segment is considered discrete under one or more of the conditions described in our DPS policy, its biological and ecological significance will be considered in light of Congressional guidance that the authority to list DPSs be used “sparingly” while encouraging the conservation of genetic diversity. In making this determination, we consider available scientific evidence of the discrete population segment's importance to the taxon to which it belongs. Since precise circumstances are likely to vary considerably from case to case, the DPS policy does not describe all the classes of information that might be used in determining the biological and ecological importance of a discrete population. However, the DPS policy does provide four possible reasons why a discrete population may be significant. As specified in the DPS policy (61 FR 4722), this consideration of the population segment's significance may include, but is not limited to, the following:

(1)Persistence of the discrete population segment in an ecological setting unusual or unique to the taxon;

(2)Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon;

(3)Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; or

(4)Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. A population segment needs to satisfy only one of these criteria to be considered significant. Furthermore, the list of criteria is not exhaustive; other criteria may be used as appropriate. The ranges and population distribution of the Applegate and Grider salamanders suggest that the loss of either group would result in a significant gap in the range of the Siskiyou Mountains salamander. The estimated ranges of the Applegate and Grider salamanders constitute about 59 percent and 41 percent, respectively, of the overall range of the Siskiyou Mountains salamander. Loss of such a substantial portion of the species' range, coupled with the dispersal barrier posed by the Siskiyou Crest, would be significant to the distribution of the species. An additional consideration is the metapopulation-level redundancy that the two groups provide each other. Climatic conditions and fire regimes differ on either side of the Siskiyou Crest, and the elevation of the Crest itself serves as a barrier to wildfires. Large-scale disturbances such as catastrophic wildfire may therefore act independently on either clade; allowing the continued persistence of the species in the event of substantial losses of one group. The uneven distribution of genetic variation across the range of the Siskiyou Mountains salamander places a disproportionate significance on each group for the maintenance of genetic diversity in the species. The Applegate salamander exhibits a strikingly low level of genetic variation, and is divergent from the more variable Grider salamander (Pfrender and Titus 2001, pp. 5-6; Mead et al. 2005, pp. 166-169). Loss of either genetically distinct group would pose a substantial reduction in genetic diversity of Siskiyou Mountains salamander. Therefore, we consider the Applegate and Grider salamanders significant to the taxon as a whole under our DPS policy. Conclusion of Distinct Population Segment Review Based on the best scientific and commercial information available, as described above, we find that under our DPS policy, the Applegate and Grider salamander groups of the Siskiyou Mountains salamander are discrete and each are significant to the overall species. Because the Applegate and Grider salamanders are both discrete and significant, they warrant recognition as separate DPSs under the Act. Since we have identified the Applegate and Grider salamanders as two separate, valid DPSs, we will evaluate each DPS with regard to its potential for listing as threatened or endangered using the five listing factors enumerated in Section 4(a) of the Act. Our evaluation of the Applegate salamander DPS follows. Applegate Salamander Distinct Population Segment As described above, Section 4 of the Act (16 U.S.C. 1533) and implementing regulations (50 CFR part 424) describe procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a), we may list a species on the basis of any of five factors:

(A)The present or threatened destruction, modification, or curtailment of its habitat or range;

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

(C)disease or predation;

(D)the inadequacy of existing regulatory mechanisms; or

(E)other natural or manmade factors affecting its continued existence. An endangered species is defined by the Act, with exception, as “any species which is in danger of extinction throughout all or a significant portion of its range.” A threatened species is defined as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” A species is defined by the Act to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” Factor A: The Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range Our understanding of the habitat associations of the Applegate salamander DPS, and the potential effects of habitat perturbations such as timber harvest and fire on this salamander, is based primarily on research conducted across the range of the entire Siskiyou Mountains salamander Complex. The available information indicates that the members of the Complex have similar physiological and behavioral characteristics, and consequently similar habitat associations. This conclusion is supported by Welsh et al. (2007a, p. 31), who state that the genetic subunits of Siskiyou Mountains salamander “do little if anything to alter their basic eco-physiological limits (e.g., Spotila 1972; Feder 1983) and consequent similar environmental requirements imposed by the plethodontid life form.” We recognize that the range of the Applegate salamander DPS is roughly 60 percent of the area occupied by the entire Siskiyou Mountains salamander, and that the relative magnitude of effects caused by habitat perturbations may be different at this smaller spatial scale. We have incorporated these differences of scale into our analysis. Given this caveat, we believe that the potential effects of timber harvesting, fire, and other habitat perturbations on the Applegate salamander DPS are the same as those described previously for the Siskiyou Mountains salamander. To avoid redundancy, these effects are summarized below; further detail and citations may be found in the Factor A analysis for the Siskiyou Mountains salamander. Effects of Timber Harvesting on the Applegate Salamander DPS Rigorous research of the effects of timber harvesting on these salamanders is lacking, but the available evidence suggests that intensive timber harvest practices such as clear-cutting have a short-term (30 years) negative impact on abundance, age structure, and body condition of this DPS. However, it is also clear that the salamanders frequently persist in intensively harvested areas, and that populations recover as vegetation is re-established (Welsh et al. 2007b). There is no information indicating that populations are extirpated in intensively harvested sites. Alternative timber harvesting methods such as thinning and helicopter yarding have not been shown to have negative effects on populations of this DPS. Extent and Magnitude of Timber Harvesting Effects on the Applegate Salamander DPS The extent and magnitude of potential effects caused by timber harvesting are strongly limited by existing land management regulations on the majority of the range of this DPS. Approximately 85 percent of the range of the Applegate salamander DPS consists of Federal lands managed under the provisions of the NWFP; 66 percent is administered by the USFS and 19 percent by the BLM. Roughly 33 percent of the range occurs within reserves (Late-successional Reserves, Wilderness, Riparian Reserves) withdrawn from scheduled timber harvesting; 42 percent of the range is in the Applegate Adaptive Management Area; and 9 percent is in Matrix. Of the three members within the Siskiyou Mountains salamander Complex, the Applegate salamander DPS has the lowest proportion of its range protected in reserves. The rate and intensity of timber harvesting has declined substantially on Federal lands within the range of the Applegate salamander DPS during the past 20 years. Annual timber harvesting on the Rogue River National Forest, which comprises 66 percent of the DPS range, declined from an average of 182 million board feet during the 1980s to 8 million board feet per year from 2000 to 2006, a decrease of 96 percent (USDA 2007c). The Applegate Ranger District, which comprises roughly 66 percent of the DPS range, has completed only one timber sale since 1996 (Clayton 2007b). Similarly, the rate of timber harvest has declined substantially on BLM lands within the range of the Applegate salamander DPS. Mean annual harvest on the BLM Ashland Resource Area declined from 2,240 ac (907 ha) per year between 1995 and 2000, to 664 ac (269 ha) per year between 2001 and 2007; less than 270 ac (109 ha) per year have been harvested since 2003 (USDI 2007a). The intensity of timber harvest practices on Federal lands has declined dramatically as well. For example, on the BLM's Ashland Resource Area, intensive harvest methods such as clear-cutting have declined from 54 percent of acres harvested in the mid-1990s, to less than one percent of annual harvest since 2001 (USDI 2007a). The likelihood that a substantial proportion of the Applegate salamander DPS will be affected by intensive timber harvesting is greatly reduced by the long-term declining trend in the rate and intensity of timber harvesting. The BLM's proposal to increase timber harvest levels by revising their RMPs has an uncertain outcome, and we see no reason to forecast a significant increase in timber harvest levels in the foreseeable future. Intensive timber harvesting practices such as clear-cutting and shelterwood removal are more prevalent on private timberlands, which comprise only 15 percent of the range of the Applegate salamander DPS. Approximately 12 percent of the DPS range occurs on private timberlands in Oregon; 3 percent lies in California. The majority of private lands within the range of the Applegate salamander DPS occur as small parcels (typically one square mile or less) in a checkerboard pattern surrounded by Federal lands, or as small isolated parcels. Populations of the Applegate salamander DPS on private lands may be affected by timber harvesting but are dispersed among populations on Federal lands where management is more favorable. Since the distribution of private lands occurs within a larger matrix of Federal lands, this acts to disperse any negative impacts of timber harvesting on Applegate salamander DPS populations and maintains redundancy, distribution, and connectivity among salamander populations. Therefore, no one area within the range of the Applegate salamander DPS has significantly greater threats from timber harvesting on private lands. Wildfire Based on the best scientific and commercial information available, we believe the potential effects of wildfire on the Applegate salamander DPS are similar to those described previously for the Siskiyou Mountains salamander. When they occur, wildfires typically burn in a range of intensities, resulting in a mosaic of habitat effects. Intense, stand-replacing fire likely reduces habitat quality for this DPS by reducing overstory cover and consuming moss, duff and forest floor litter, thereby modifying suitable microclimate habitat. However, as shown for the effects of intensive timber harvesting, Siskiyou Mountains salamander populations appear to persist and recover as vegetation is re-established after severe habitat disturbances. The degree to which wildfires affect the viability of salamander populations is unknown, but it is likely that large-scale intense wildfires may negatively affect some populations. The potential threat posed by wildfire to the Applegate salamander DPS was evaluated by Olson et al. (2007, p. 25, Appendix 2 p. 5). The authors combined a habitat suitability model (Reilly et al. 2007) with spatial data on various risk factors such as wildfire hazard and NWFP land use allocations into a GIS and developed a range-wide map depicting risk to persistence of salamander populations. Extensive areas of highly suitable habitat and lower fire hazard were predicted on north-facing slopes, such as the north slope of the Siskiyou Crest (Olson et al. 2007, Appendix 2 p. 8). While there is uncertainty concerning the potential population-level effects of wildfire on the Applegate salamander DPS, we expect that wildfires will occur and may reduce habitat quality for some salamander populations. However, the effects of wildfire are unlikely to result in widespread loss of population viability because:

(1)Fires typically burn in a mosaic of effects, leaving a variety of habitat conditions for salamanders occupying burned areas; and

(2)these salamanders persist in disturbed areas and recover as vegetation recovers, allowing for persistence and recovery of local salamander populations. In addition, land management agencies within the range of this DPS are actively conducting fuels management treatments to reduce the likelihood of wide-scale catastrophic fire. The future effectiveness of these treatments is unknown, but evidence suggests that at least local reductions in fire severity will be achieved. Direct Disturbance: Roads and Road Construction, Mining, and Rock Quarrying As described under Factor A for the Siskiyou Mountains salamander, activities that physically alter the talus substrates occupied by the Applegate salamander DPS have the potential to reduce habitat quality or remove habitat. In addition, some research suggests that forest roads may pose a barrier to these salamanders, reducing dispersal and connectivity among populations. We find that, while it may reasonably be expected that crushing or removal of talus habitat during road construction, mining, or rock quarrying could negatively affect Applegate salamander populations, these activities affect only a very small area of the DPS's range. Further, numerous records exist of the salamanders occupying road cuts and sites with historical mining activity, and the rate of road construction, which is typically associated with access for timber harvesting, has declined significantly as timber harvest levels have decreased. There is little potential for a substantial portion of Applegate salamander DPS populations to be affected by direct disturbance from road construction, mining, or rock quarrying. For these reasons, we conclude that road construction, mining and rock quarrying do not pose a substantial threat to this DPS; a conclusion echoed by species experts (Olson et al. 2007, p. 17). Summary of Factor A While intensive timber management practices such as clear-cutting appear to have short-term negative effects on abundance of Applegate salamanders, this practice is severely restricted on Federal lands, which constitute the majority of the DPS's range. Less-intensive harvest practices appear to have relatively minor or short-term impacts to salamander abundance, and the available evidence suggests that salamander populations persist in a broad range of forest habitat conditions and under different management practices. Current management on Federal lands under the provisions of the NWFP protects salamander habitat via a system of reserves and management guidelines that dramatically reduce the likelihood of large-scale reduction of suitable or occupied habitat; additional Federal land management direction and the Special Status Species programs provide additional security to salamander populations on non-reserved Federal lands. Management practices on private timberlands may negatively affect some populations of the Applegate salamander DPS; however, due to the patchy distribution of private lands within the larger matrix of Federal lands, and the ability of these salamanders to persist in managed habitats, we conclude that habitat modifications on this small portion of the Applegate salamander DPS's range do not constitute a substantial threat to the DPS. Wildfires are expected to occur and may reduce habitat quality for some salamander populations; however, the effects of wildfires on salamander habitat are temporary and populations appear to recover as vegetation recovers. Wildfires typically burn in a mosaic pattern of intensities, leaving a variety of habitat conditions for salamanders within burned areas. In addition, Federal land management agencies are planning and conducting fuels reduction treatments to reduce the threat of stand-replacing wildfires within the range of the Applegate salamander. Although relatively undisturbed mature forests may provide optimum habitat for Applegate salamanders; these salamanders have been shown to exist in a range of habitat conditions that have experienced timber harvesting, wildfire, and other disturbances such as mining and quarrying, and evidence suggest that populations persist and recover following habitat disturbance. Intense disturbances such as clear-cutting are highly limited by current land-use regulations, and along with rock quarrying and road construction constitute a tiny fraction of the DPS's habitat. Therefore, we conclude that the Applegate salamander DPS is not now, or in the foreseeable future, threatened by destruction, modification, or curtailment of its habitat across its range. Factor B: Overutilization for Commercial, Recreational, Scientific, or Educational Purposes We are not aware of any information that indicates overutilization for commercial, recreational, scientific, or educational purposes threatens the Applegate salamander DPS, now or in the foreseeable future, across its range. Factor C: Disease or Predation Chytridiomycosis is a relatively recently described epidermal infection of amphibians caused by the chytrid fungus *Batrachochytrium dendrobatidis* . This fungus requires moisture for survival (Johnson and Speare 2003, p. 922) and is therefore more likely to pose a threat to aquatic amphibians than to terrestrial ones. As described for the Siskiyou Mountains salamander, we do not anticipate that the Applegate salamander DPS will be exposed to this disease or that exposure would lead to transmission through significant portions of its range. Salamanders composing this DPS are not associated with bodies of water, occur in a characteristically dry environment, are only active above ground for brief and intermittent periods during the year, and appear to have limited dispersal abilities. Given these circumstances, we believe that the Applegate salamander DPS is unlikely to be exposed to diseased water or infected aquatic amphibians and, if infected, salamanders are unlikely to transmit the disease between populations. The Service is not aware of any predators that potentially pose a threat to the species. We, therefore, conclude that the Applegate salamander DPS is not now, or in the foreseeable future, threatened by disease or predation across its range. Factor D: Inadequacy of Existing Regulatory Mechanisms Federal Lands Federal lands managed under the provisions of the NWFP comprise the majority of the Applegate salamander's range. The NWFP acts to protect salamanders and their habitat via a system of reserves and land management guidelines that dramatically reduce the likelihood of large-scale reduction of suitable habitat. Northwest Forest Plan Survey and Manage Mitigation Measure Standards and Guidelines The provisions and current status of the Survey and Manage Program are described under Factor D for the Siskiyou Mountains salamander. The Survey and Manage Program contains specific guidance for the Applegate salamander DPS, requiring the identification of high-priority sites that will be managed to provide a reasonable assurance of species persistence. While the Survey and Manage Program currently provides protection for the Applegate salamander DPS on Federal lands, we assume for purposes of this finding that the Survey and Management Program is eliminated for future projects on Federal lands and management of the Applegate salamander DPS will be conducted under the USFS's Special Status Species Program and the BLM's Sensitive Species Program. While these programs do not specify protections for the Applegate salamander DPS, they contain provisions for development of Conservation Strategies that provide a reasonable assurance of species persistence. Conservation Agreements The final Conservation Strategy for the Siskiyou Mountains Salamander, Northern Portion of the Range (Olson et al. 2007), is currently being implemented by the USFS and BLM on Federal lands occupied by the Applegate salamander DPS. The Conservation Strategy was authored by four of the most-published scientific experts on this species (D. Olson, D. Clayton, H. Welsh, and R. Nauman, among others), and incorporates habitat modeling and risk assessment in the evaluation of species persistence and distribution within the strategy area. The Conservation Strategy is described in detail in the Background section and under Factor D for the Siskiyou Mountains salamander, which is incorporated by reference here. However, because of the limited nature of the threats addressed by the Conservation Strategy, we did not rely on it in determining whether listing the Applegate salamander is warranted. Western Oregon Plan Revisions The BLM's proposed changes to its existing Resource Management Plans through the WOPR contain provisions that have the potential to increase timber harvesting within the range of the Applegate salamander DPS (see Factor D for Siskiyou Mountains salamander). The WOPR proposal affects only Federal lands administered by the BLM, which constitute approximately 19 percent of the range of the Applegate salamander DPS. The WOPR DEIS is currently in the public review period, and we cannot at this time predict which alternative, including the no-action alternative, will be selected or evaluate the potential effects to Applegate salamander populations on BLM lands. While the potential effects of possible RMP changes on the 19 percent of Applegate salamander DPS' range that occurs on BLM lands are unknown, NWFP land-use allocations and management direction provides substantial protection for the DPS and its habitat. If existing Federal management for the Applegate salamander DPS is modified in the future, the Service can consider any such changes in the context of the degree and immediacy of potential threats to the DPS at that time. Private Lands and State Regulations Approximately 12 percent of the range of the Applegate salamander DPS occurs on private lands located in Oregon, and 3 percent occurs on private lands located in California. In Oregon, no regulatory mechanisms exist to protect this DPS on private lands. In California, the Siskiyou Mountains salamander (both Applegate and Grider populations) is listed as a threatened species and receives substantial protections pursuant to CESA. These protections include the requirement of surveys prior to project implementation and prohibitions on timber harvest in established buffers around occupied suitable habitat. There is some uncertainty concerning the future of CESA protections for Applegate salamander DPS populations on the small fraction of the DPS's range that occurs in California (see Factor D for Siskiyou Mountains salamander). Regardless of the future status of protections for the Siskiyou Mountains salamander under CESA, those protections only apply to 3 percent of the Applegate salamander DPS's range, and the potential removal of these protections will not pose a significant threat to this DPS. As described under Factor A, we find that there is little evidence to suggest that members of the Applegate salamander DPS are extirpated by timber harvesting and other habitat disturbances. Research indicates that populations of these salamanders persist following intensive timber harvest and recover as vegetation is re-established. Less intensive harvest practices appear to have little effect on populations. Therefore, we find that the lack of regulatory protections on state lands, a limited proportion of the range of the Applegate salamander DPS, does not pose a threat to this genetic subunit in the foreseeable future. Summary of Factor D Existing Federal regulations currently provide substantial protection on Federal lands for the Applegate salamander DPS through the NWFP land use categories and management provisions. For the purposes of this finding, we assume that the NWFP's Survey and Manage Program, which provides additional protection for the Applegate salamander DPS, is eliminated for future projects on Federal lands within the range of the DPS. Regulatory protection for this DPS will consist of the Standards and Guidelines of the NWFP, other Federal land management regulations, and the Special status Species programs, which will continue to provide adequate protection for the DPS across the 85 percent of its range that occurs on Federal lands. While the petitioners have cited the proposed WOPR as posing a significant reduction to these protections (Greenwald and Curry 2007, p. 7), we cannot at this time speculate about what impact, if any, the proposal, if finalized in the future by BLM, may have on salamander populations or their habitat. We find that the current Federal regulations and land management planning guidelines and the Special status Species programs provide substantial protection for the DPS across the vast majority of its range. The lack of regulatory mechanisms to protect the Applegate salamander DPS on private lands in Oregon does not pose a substantial threat because:

(1)Private lands comprise a small portion of the DPS's range and are distributed in small parcels interspersed among Federal lands where management is more favorable and therefore, acts to maintain redundancy, distribution, and connectivity among populations within the mix of Federal and private lands; and

(2)salamander populations have been shown to persist in managed landscapes. While there is some uncertainty concerning the future of CESA protections for Applegate salamander DPS populations in California, the potential removal of CESA protections will not pose a significant threat to the DPS due to the very small percentage of the DPS's range that occurs in the state and the interspersed pattern of private and state lands. We, therefore, conclude that the Applegate salamander DPS is not now, or in the foreseeable future, threatened by inadequate existing regulatory mechanisms across its range. Factor E: Other Natural or Manmade Factors Affecting the Continued Existence of the Species Other natural or manmade factors that could potentially affect the persistence of the Applegate salamander DPS within all or significant portion of its range are climate changes associated with global warming and stochastic events, which are rare, chance events, such as epidemics and large, severe wildfires. Climate Change The similarities in physiology, ecology, and habitat associations between the Applegate salamander DPS and other members of the Siskiyou Mountains salamander Complex, combined with the large scales at which climate change studies are conducted, lead us to conclude that our analysis of the potential effects of climate change under Factor E for the Siskiyou Mountains salamander applies to the Applegate DPS as well. Given its physiology, this species may be strongly affected by changes to precipitation patterns. Although most of the available climate models predict increases in average temperatures, models were inconsistent with regard to future precipitation; increases in annual precipitation and cloud cover are a plausible outcome and could act to ameliorate negative impacts caused by increased temperatures. We are unable to predict the potential effects of future climate change on the Applegate salamander DPS at this time. Stochastic Events Like other members of the Siskiyou Mountains salamander Complex, the Applegate salamander DPS occupies a relatively small geographic range (248,870 ac (100,712 ha)) and exhibits limited dispersal abilities. These traits act to increase a species' vulnerability to stochastic (rare, chance) events such as epidemics or large, severe fires because a single event can occur within all or a large portion of the range, and individuals may be unable to escape the disturbance or recolonize habitat following extirpation. However, as described in the “Range and Distribution” section and Factor A for the Siskiyou Mountains salamander, current research suggests that Applegate salamanders are in fact well-distributed within their range, that they occur at high densities in some areas, and that they persist in areas that have experienced disturbances. These traits act to decrease the potential vulnerability conferred on this DPS by its small range. While it may be reasonably expected that negative effects to abundance or population structure may follow severe disturbances (as described under Factor A for the Siskiyou Mountains salamander), there is no evidence that they result in significant losses of populations. A large wildfire that affects the majority of the range of the Applegate salamander DPS is a plausible description of a significant stochastic event. For example, 499,965 ac (202,329 ha) burned during the 2002 Biscuit Fire in southwestern Oregon and northwestern California. Approximately 44 percent of the area (219,985 ac (89,025 ha)) was severely burned (USDA and USDI 2004). In comparison, the species range of the Applegate salamander DPS is 248,870 ac (100,712 ha). Although there is evidence that fire size and intensity may have increased in the Klamath-Siskiyou region, large fires with mixed severity are characteristic of the natural disturbance regime (Odion et al. 2004, p. 933; Agee 1993, pp. 388-389) within which these salamanders have evolved. The mosaic pattern of fire effects, combined with the salamanders' ability to remain protected underground and persist during postfire vegetation recovery, indicates that the threat posed by this stochastic event is unlikely to result in large-scale extirpation of populations. Summary of Factor E Because of the uncertain nature of climate change predictions, particularly predictions of future precipitation patterns, we are unable to evaluate the potential for climate change to impact Applegate salamander DPS populations in the future. We find that, although stochastic events such as large wildfires may occur within a large portion of this salamanders' restricted range, Applegate salamanders appear to persist following wildfires and other disturbances, to recover as vegetation is re-established following disturbance, and have adequate numbers of well-distributed populations throughout their range to allow for persistence and viability of this DPS. We, therefore, conclude that the Applegate salamander DPS is not now, or in the foreseeable future, threatened by the individual or cumulative effects of climate change or stochastic events such as epidemics or large, severe wildfires. Finding We assessed the best available scientific and commercial information regarding threats faced by the Applegate salamander DPS. We have reviewed the petition, information available in our files, and information submitted to us following our 90-day petition finding (72 FR 14750; March 29, 2007). We also consulted with recognized salamander experts and Federal land managers, and arranged for researchers to initiate field studies to assess the distribution of genetic entities within the salamander complex, and demographic response of these species to forest structure. We find little support for the petitioners' claim that the Applegate salamander DPS is threatened by habitat destruction caused by timber harvesting and wildfire, and that existing regulatory mechanisms are inadequate to protect the DPS. While the available information suggests that Applegate salamanders may be positively associated with older forest conditions, the majority of studies and available field data show the species occupying a wide range of forest conditions, including previously harvested areas. Recent research indicates that even in severely disturbed habitats, the salamanders persist and populations recover as vegetation is re-established over time. Less intensive disturbances such as forest thinning and mixed-effects wildfire appear to have minor or short-term impacts on salamander abundance. There is no reliable evidence that indicates loss of populations or curtailment of this DPS's range has occurred. We acknowledge that intensive timber harvesting practices such as clear-cutting may have short-term negative impacts on abundance and population structure of Applegate salamanders. The extent and magnitude of such practices, however, are severely limited by a number of regulatory mechanisms and other factors operating within the salamanders' range, as evidenced by the steep decline in timber harvest levels on Federal lands that constitute 85 percent of the DPS's range. Over the past 20 years, timber harvest levels, particularly of intensive harvest methods, on Federal lands within the range of the Applegate salamander have declined by over 90 percent. Levels of timber harvesting are higher on private lands, which constitute only 15 percent of the DPS's range and occur as small parcels interspersed among Federal lands. Due to the small proportion of the range consisting of private lands, coupled with the ability of Applegate salamanders to persist in managed landscapes, we conclude that management activities on private lands do not pose a substantial threat to this DPS. There are a number of existing regulatory mechanisms that provide protection for Applegate salamanders and their habitats. The system of land use allocations and Standards and Guidelines of the NWFP act to limit the amount and intensity of land management activities on Federal lands, as evidenced by the dramatic decline in timber harvest levels observed since the NWFP was implemented. The Survey and Manage Mitigation Measure Standards and Guidelines are one aspect of the NWFP that has provided protection specifically to occupied salamander locations. However, we anticipate the elimination of the Survey and Manage Guidelines within the range of the Applegate salamander DPS. Federal land management agencies have implemented a Conservation Strategy founded on the Survey and Management guidelines for this DPS, to help provide for well-distributed, viable populations of Applegate salamanders over the long term. The Conservation Strategy uses an approach similar to that required by the Survey and Manage Program for this DPS (i.e., identification of a network of high-priority salamander populations for protection and management). However, because of the limited nature of the threats addressed by the Conservation Strategy, we did not rely on it in determining whether listing the Applegate salamander DPS is warranted. The BLM's proposal to revise WOPR on 19 percent of the Applegate salamander DPS's range is in draft form and undergoing public review. We cannot reliably predict the outcome of this process or what effect, if any, any future changes to the WOPR might eventually have on salamanders or their habitat. The NWFP land-use allocations, other federal land management, and the special Status Species programs constitute existing regulatory mechanisms that currently provide substantial protection for the Applegate DPS and it habitat on Federal lands and are anticipated to continue to provide such protection in the foreseeable future. Should regulatory protections change in the future, the Service can consider such changes in the context of the degree and immediacy of potential threats to the Siskiyou Mountains salamander at that time. Populations of Applegate salamanders are well distributed, and abundance within populations can be high. There are 440 known locations for this DPS, and many areas supporting suitable habitat have not been surveyed. These population characteristics, combined with the species' apparent ability to persist and recover following habitat disturbance, indicates that Applegate salamanders are resilient to stochastic events such as wildfire. Our evaluation of climate change modeling for the geographic area inhabited by the salamanders does not support the contention that climate change poses a threat to Applegate salamanders. While increases in average daily temperatures are reliably predicted for the Klamath-Siskiyou region, predictions regarding timing and amount of precipitation are inconsistent, precluding any meaningful evaluation of future effects to these salamanders. It is not currently possible to forecast the specific effects of future climate on salamander populations. Our evaluation of the five listing factors does not support the contention that there are threats of sufficient imminence, intensity, or magnitude as to cause substantial threats to the DPS, losses of population distribution, or viability of the Applegate salamander DPS. Therefore, we do not find that the Applegate salamander DPS is in danger of extinction (endangered), nor is it likely to become endangered within the foreseeable future (threatened) throughout its range. Therefore listing the Applegate salamander DPS as threatened or endangered under the Act is not warranted at this time. Grider Salamander Distinct Population Segment Factor A: The Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range Our current knowledge of the habitat associations of the Grider salamander DPS, and the potential effects of habitat perturbations such as timber harvest and fire on this salamander, are based primarily on research conducted across the range of the entire Siskiyou Mountains salamander Complex. The members of the complex have similar physiological and behavioral characteristics, and consequently similar habitat associations. This conclusion is supported by Welsh et al. (2007a, p. 31), who state that the genetic subunits of Siskiyou Mountains salamander “do little if anything to alter their basic eco-physiological limits (e.g., Spotila 1972; Feder 1983) and consequent similar environmental requirements imposed by the plethodontid life form.” We recognize that the range of the Grider salamander DPS is roughly 40 percent of the area occupied by the entire Siskiyou Mountains salamander, and that the relative magnitude of effects caused by habitat perturbations may be greater at this smaller spatial scale. We have incorporated these differences of scale into our analysis. Given this caveat, we believe that the potential effects of timber harvesting, fire, and other habitat perturbations on the Grider salamander DPS are similar to those described previously for the Siskiyou Mountains salamander. To avoid redundancy, these effects are summarized below; details and citations may be found in the Factor A analysis for Siskiyou Mountains salamander. Effects of Timber Harvesting on the Grider Salamander DPS Although rigorous research of the effects of timber harvesting on Grider salamanders is lacking, the available evidence suggests that intensive timber harvest practices such as clear-cutting have a short-term (30 years) negative impact on abundance, age structure, and body condition of these salamanders. However, it is also clear that the salamanders frequently persist in intensively harvested areas, and that populations recover as vegetation is re-established. Alternative timber harvesting methods such as thinning and helicopter yarding have not been shown to have negative effects on populations of this DPS. Extent and Magnitude of Timber Harvesting Effects on the Grider Salamander DPS The extent and magnitude of potential effects caused by timber harvesting are strongly limited by existing land management regulations on the majority of the range of this DPS. Approximately 91 percent of the range of the Grider salamander DPS consists of Federal lands managed by the Klamath National Forest

(KNF)under the provisions of the NWFP. Approximately 73 percent of the range occurs within reserves (Late-successional Reserves, Wilderness, Riparian Reserves) withdrawn from scheduled timber harvesting; an additional 13 percent of the range is within Matrix-retention areas where timber harvest is restricted. Less than 5 percent of the Grider salamanders' range lies within the Matrix-General Forest land allocation where intensive timber harvesting is anticipated to occur. Primarily as a result of implementation of the NWFP, the rate and intensity of timber harvesting has declined substantially on Federal lands within the range of the Grider salamander DPS. During the period from 1979 to 1984, the KNF sold and removed an average of 238.2 million board feet of timber per year; harvest levels declined to 187.8 million board feet per year during 1985 to 1990, and fell to 15.9 million board feet annually between 2000 and 2005; a decrease of roughly 93 percent (USDA 2006a). The proportion of intensive timber management practices such as clear-cutting and overstory removal has declined even more abruptly; from an annual average of 3,733 ac (1,511 ha) per year from 1988 to 1991 to roughly 38 ac (15.4 ha) per year during 2000 to 2006 (USDA 2007b). We conclude that the land management regulations responsible for this long-term declining trend in the rate and intensity of timber harvesting greatly reduces the likelihood that a substantial proportion of the Grider salamander DPS will be negatively affected by intensive timber harvesting. Less than 10 percent of the Grider salamander's range consists of private timberlands where intensive timber harvesting practices such as clear-cutting and shelterwood removal are likely to occur. Virtually all of these lands are in California; only about 1 percent occurs in Oregon. The majority of private lands within the range of the Grider salamander DPS occur as small parcels (typically one square mile or less) in a checkerboard pattern surrounded by Federal lands. Salamander populations on private lands may be affected by timber harvesting but are dispersed among populations on Federal lands where management is more favorable and serves to effectively reduce the impacts of intensive private land timber harvest practices and maintain redundancy, distribution, and connectivity among Grider DPS populations. Wildfire We assume that the potential effects of wildfire on the Grider salamander DPS are similar to those described under Factor A for the Siskiyou Mountains salamander. It is likely that intense, stand-replacing fires reduce habitat quality for this salamander by reducing overstory cover and consuming moss, duff and forest floor litter; affecting the microclimate conditions. However, Siskiyou Mountains salamanders appear to be behaviorally adapted to dry-season fires because they are underground during summer and fall when most wildfires occur. While it is likely that large-scale intense wildfires may negatively impact some populations, at least in the short term, populations appear to persist and recover as vegetation is re-established after severe habitat disturbances. Fire regimes within the Klamath-Siskiyou region are characterized by mixed-severity fires that burn in a range of intensities, resulting in a mosaic of habitat effects. Fire effects are frequently moderated on lower slopes with northerly exposures and topographic conditions frequently associated with salamander locations. Direct Disturbance: Roads and Road Construction, Mining, and Rock Quarrying We assume that the effects of activities that physically alter the talus substrates occupied by Grider salamanders are similar to those described under Factor A for the Siskiyou Mountains salamander. Although research to evaluate salamander response to physical disturbance is lacking, it is reasonable to assume that these activities likely reduce habitat quality or remove habitat. In addition, some research suggests that forest roads may pose a barrier to these salamanders, reducing dispersal and connectivity among populations. We find that, while it may reasonably be expected that crushing or removal of talus habitat during road construction, mining, or rock quarrying could negatively affect Grider salamander populations, these activities affect a very small area of the DPS range. For this reason, Olson et al. (2007, p. 17) conclude that these disturbances do not pose a primary threat to the species. Numerous records exist of the salamanders occupying road cuts and sites with historical mining activity, suggesting that these disturbances do not eliminate populations. The rate of road construction, which is typically associated with access for timber harvesting, has declined significantly as timber harvest levels have dropped. Surface mining rarely occurs within the range of the DPS, and rock quarrying consists of a small number of sites encompassing an insignificant proportion of the range (less than 100 ac (40.5 ha)). Summary of Factor A We find that, while the abundance and population structure of Grider salamanders appear to suffer short-term negative effects from intensive timber management practices such as clear-cutting, these practices are severely restricted on Federal lands, which constitute over 90 percent of the DPS's range. Less than five percent of the Grider salamander's range lies within the Matrix-General Forest land allocation where intensive timber harvesting is anticipated to occur. Less intensive harvest practices appear to have relatively minor or short-term impacts to salamander abundance, and the available evidence suggests that salamander populations persist in a broad range of forest habitat conditions and under different management practices. The system of NWFP reserves and management guidelines in effect on Federal lands, in combination with other Federal land management direction and the Special Status Species programs, provide substantial protection for Grider salamander habitat, dramatically reducing the likelihood of large-scale reduction of suitable or occupied habitat due to timber harvesting. Even without Survey and Manage protections, the available evidence does not show that timber harvest practices on Federal lands, either alone or in combination with other habitat disturbing activities such as mining, road building or wildfire, have reduced the habitat or range of this species or are likely to do so in the foreseeable future. Management practices on private timberlands may negatively affect some populations of the Grider salamander DPS; however, due to the patchy distribution of private lands within the larger matrix of Federal lands, and the ability of these salamanders to persist in managed habitats, we conclude that habitat modifications on this small portion of the Grider salamander DPS's range do not constitute a substantial threat to the DPS. Wildfires are a naturally occurring disturbance factor in the Klamath-Siskiyou region, and are expected to influence the abundance and distribution of salamander habitats. However, the effects of most wildfires on salamander habitat are temporary and populations appear to recover as vegetation recovers. Wildfires typically burn in a mosaic pattern of intensities, leaving a variety of habitat conditions for salamanders within burned areas. Grider salamander populations have been shown to exist in a range of habitat conditions that have experienced timber harvesting, wildfire, and other disturbances, and there is little evidence to suggest that populations are extirpated followed the land management activities such as thinning and salvage harvesting typically employed on KNF lands. Intense disturbances such as clear-cutting are highly limited by current land-use regulations, and along with rock quarrying and road construction constitute a tiny fraction of the DPS's habitat. Therefore, we conclude that the Grider salamander DPS is not now, or in the foreseeable future, threatened by destruction, modification, or curtailment across its range. Factor B: Overutilization for Commercial, Recreational, Scientific, or Educational Purposes We are not aware of any information that indicates overutilization for commercial, recreational, scientific, or educational purposes threatens, now or in the foreseeable future, the Grider salamander DPS across its range. Factor C: Disease or Predation Chytridiomycosis is a relatively recently described epidermal infection of amphibians caused by the chytrid fungus *Batrachochytrium dendrobatidis.* This fungus requires moisture for survival (Johnson and Speare 2003, p. 922) and is therefore more likely to pose a threat to aquatic amphibians than to terrestrial ones. As described for the Siskiyou Mountains salamander, we do not anticipate that the Grider salamander DPS will be exposed to this disease or that exposure would lead to transmission through significant portions of its range. This DPS is not associated with bodies of water, occurs in a characteristically dry environment, is only active above ground for brief and intermittent periods during the year, and appears to have limited dispersal abilities. Given these restrictions, we believe that the Grider salamander DPS is unlikely to be exposed to diseased water or infected aquatic amphibians and, if infected, these salamanders are unlikely to transmit the disease between populations. The Service is not aware of any predators that potentially pose a threat to the species. We therefore conclude that the Grider salamander DPS is not now, or in the foreseeable future, threatened by disease or predation across its range. Factor D: Inadequacy of Existing Regulatory Mechanisms Federal Lands Existing Federal regulations currently provide substantial protection on Federal lands for the Grider salamander DPS through the NWFP land use allocations and their management provisions. The NWFP management provisions and current status of the Survey and Manage Program are described under Factor D for the Siskiyou Mountains salamander. The Survey and Manage Program contains specific guidance for the Grider salamander DPS, requiring surveys of potentially suitable talus habitat and restricting management activities at occupied salamander locations. For purposes of this finding, we assume that NWFP's Survey and Manage Program is eliminated for future projects on Federal lands within the range of the DPS. Given the high proportion of KNF lands in reserved land allocations (86 percent), the low rate of timber harvest, and the low intensity of harvest practices typically employed by the KNF, we conclude that the removal of Survey and Manage guidelines does not pose a substantial threat to the species. Management of the Grider salamander DPS will be conducted under the USFS's Sensitive Species Program, which does not specify protections, but contains provisions for development of conservation strategies that are anticipated to provide an additional layer of security for the DPS. Private Lands and State Regulations The Siskiyou Mountains salamander is listed as a threatened species in California and receives substantial protections pursuant to CESA. These protections include the requirement of surveys prior to project implementation and prohibitions on timber harvest in established buffers around occupied suitable habitat (see Factor D for Siskiyou Mountains salamander). The future of CESA protections for Grider salamander populations on private timberlands is uncertain. However, any future changes in the status of CESA protections for the Grider salamander DPS would affect only nine percent of the range of the Grider salamander DPS, and this area consists of small parcels interspersed among Federal lands. This, combined with evidence that Grider salamander populations persist in disturbed habitats, suggests that the removal of CESA protections will not pose a substantial threat to the species. Summary of Factor D The Grider salamander DPS receives substantial protection based on the land allocations and Standards and Guidelines of the NWFP and KNF Land and Resource Management Plan. Future protection of the Grider salamander DPS will also occur through the USFS Sensitive Species Program. The high proportion the DPS's range within reserved land allocations, combined with the overall low rate and intensity of timber harvest on Federal lands leads us to conclude that elimination of the Survey and Manage guidelines does not pose a substantial threat to this DPS. We find that the combination of Federal regulations and land management planning guidelines provide adequate existing regulatory mechanisms across the vast majority of the DPS's range. The Grider salamander DPS also receives protection on private lands in California under CESA. The uncertainty of future CESA protections for Grider salamander populations on private lands does not pose a substantial threat to the DPS because:

(1)Private lands comprise a small portion of the DPS's range and generally consist of small parcels interspersed among Federal lands; and

(2)salamander populations have been shown to persist in managed landscapes. We therefore conclude that the Grider salamander DPS is not now, or in the foreseeable future, threatened by inadequate existing regulatory mechanisms. Factor E: Other Natural or Manmade Factors Affecting the Continued Existence of the Species Other natural or manmade factors that may affect the persistence of the Grider salamander DPS within all or significant portion of its range are climate changes associated with global warming and stochastic events, which are rare, chance events, such as epidemics and large, severe wildfires. Climate Change Because the physiology, ecology, and habitat associations of the Grider salamander DPS are similar to other members of the Siskiyou Mountains salamander Complex, we conclude that our analysis of the potential effects of climate change and stochastic events under Factor E for the Siskiyou Mountains salamander applies to the Grider salamander DPS as well. Most of the climate change models available for the Pacific Northwest predicted increases in average temperatures; however, models were inconsistent with regard to future precipitation. Some models predicted significant increases in annual precipitation and cloud cover, which could act to ameliorate any negative impacts caused by increased temperatures. Given the inconsistency of climate change predictions available to us, we are unable to predict the potential effects of future climate change on the Grider salamander DPS at this time. Stochastic Events The relatively small geographic range (174,285 ac (70,529 ha)) and limited dispersal abilities of the Grider salamander DPS may increase its vulnerability to stochastic (rare, chance) events such as epidemics or large, severe fires because a single event can occur within all or a large portion of the range, and individuals may be unable to escape the disturbance or recolonize habitat following extirpation. The petitioners claim that these salamanders are rare, patchily distributed, and easily extirpated by disturbances, making them highly vulnerable to extinction (Greenwald and Curry 2007, p. 1). However, as described under “Range and Distribution” and Factor A for the Siskiyou Mountains salamander, current research suggests that Grider salamanders are in fact well-distributed within their range, that they occur at high densities in some areas, and that they persist in areas that have experienced disturbances. These traits act to decrease the potential vulnerability conferred on this DPS by its small range. While it may be reasonably expected that negative effects to abundance or population structure may follow severe disturbances (as described under Factor A for the Siskiyou Mountains salamander), there is no evidence that they result in significant losses of populations. A large wildfire that affects the majority of the range of the Grider salamander DPS is a plausible description of a significant stochastic event. For example, 499,965 ac (202,329 ha) burned during the 2002 Biscuit Fire in southwestern Oregon and northwestern California. Approximately 44 percent of the area (219,985 ac (89,025 ha)) was severely burned (USDA and USDI 2004). In comparison, the species range of the Grider salamander is 174,285 ac (70,529 ha). Although there is evidence that fire size and intensity may have increased in the Klamath-Siskiyou region, large fires with mixed severity are characteristic of the natural disturbance regime (Odion et al. 2004, p. 933; Agee 1993, pp. 388-389) within which these salamanders have evolved. The mosaic pattern of fire effects, combined with the salamanders' ability to remain protected underground and persist during postfire vegetation recovery, indicates that the threat posed by this stochastic event is unlikely to result in large-scale extirpation of populations. Summary of Factor E Because of the uncertain nature of climate change predictions, particularly predictions of future precipitation patterns, we are unable to evaluate the potential for climate change to impact Grider salamander populations in the foreseeable future. We find that, although stochastic events such as large wildfires may occur within a large portion of this salamanders' restricted range, Grider salamanders appear to persist following wildfires and other disturbances, to recover as vegetation is re-established following disturbance, and have adequate numbers of well-distributed populations throughout their range to allow for persistence and viability of this DPS. We therefore conclude that the Grider salamander DPS is not now, or in the foreseeable future, threatened by the individual or cumulative effects of climate change or stochastic events such as epidemics or large, severe wildfires. Finding We assessed the best available scientific and commercial information regarding threats faced by the Grider salamander DPS. We have reviewed the petition, information available in our files, and information submitted to us following our 90-day petition finding (72 FR 14750; March 29, 2007). We also consulted with recognized salamander experts and Federal land managers, and arranged for researchers to initiate field studies to assess the distribution of genetic entities within the salamander complex, and demographic response of these species to forest structure. We find little support for the petitioners' claim that the Grider salamander DPS is threatened by habitat destruction caused by timber harvesting and wildfire, and that existing regulatory mechanisms are inadequate to protect the DPS from this habitat loss. While the available information suggests that Grider salamanders may be positively associated with older forest conditions, the majority of studies and available field data show the species occupying a wide range of forest conditions, including previously harvested areas. Recent research indicates that even in severely disturbed habitats, the salamanders persist and populations recover as vegetation is re-established over time. Less intensive disturbances such as forest thinning and mixed-effects wildfire appear to have minor or short-term impacts on salamander abundance. There is no reliable evidence that indicates that loss of populations or curtailment of this DPS's range has occurred. We acknowledge that intensive timber harvesting practices such as clear-cutting may have short-term negative impacts on abundance and population structure of Grider salamanders. The extent and magnitude of such practices, however, are severely limited by a number of regulatory mechanisms and other factors operating within the salamanders' range, as evidenced by the steep decline in timber harvest levels on Federal lands that constitute 91 percent of the DPS' range. Over the past 20 years, timber harvest levels, particularly of intensive harvest methods, on Federal lands within the range of the Grider salamander have declined by over 93 percent. Levels of timber harvesting are higher on private lands, which constitute only nine percent of the DPS's range and occur as small parcels interspersed among Federal lands. Due to the small proportion of the DPS's range that consists of private lands, the scattered small size of private land parcels, and the ability of Grider salamanders to persist in managed landscapes, we conclude that management activities on private lands do not pose a substantial threat to this DPS. There are a number of existing regulatory mechanisms that provide protection for the Grider salamanders and its habitat. The system of land use allocations under the NWFP act to limit the amount and intensity of land management activities on Federal lands, as evidenced by the dramatic decline in timber harvest levels observed since the NWFP was implemented. The Survey and Manage Mitigation Measure Standards and Guidelines are one aspect of the NWFP that, in the past, has provided protection specifically to occupied salamander locations. While the Survey and Manage Program has been eliminated for future projects on Federal lands, we find that existing land management regulations are adequate given the low degree of threat posed by land management activities. Populations of Grider salamanders are well distributed, and abundance within populations can be high. There are 76 known locations for this DPS, and many areas supporting suitable habitat have not been surveyed. These population characteristics, combined with the species' apparent ability to persist and recover following habitat disturbance, indicates that Grider salamanders are resilient to stochastic events such as wildfire. Our evaluation of climate change modeling for the geographic area inhabited by the salamanders does not support the contention that climate change poses a threat to Grider salamanders. While increases in average daily temperatures are reliably predicted for the Klamath-Siskiyou region, predictions regarding timing and amount of precipitation are inconsistent, precluding any meaningful evaluation of future effects to these salamanders. It is not currently possible to forecast the specific effects of future climate on salamander populations. Our evaluation of the five listing factors does not support the contention that there are threats of sufficient imminence, intensity, or magnitude as to cause substantial losses of population distribution or viability of the Grider salamander DPS. Therefore, we do not find that the Grider salamander DPS is in danger of extinction (endangered), nor is it likely to become endangered within the foreseeable future (threatened) throughout its range. Therefore listing the Grider salamander DPS as threatened or endangered under the Act is not warranted at this time. Scott Bar Salamander Summary of Factors Affecting the Species Factor A: The Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range The Service believes that the potential effects of habitat perturbations such as timber harvest and fire on the Scott Bar salamander are the same as those previously described for the entire Siskiyou Mountains salamander Complex. This conclusion is based on:

(1)Our understanding of the behavior, physiology, and habitat associations of the Scott Bar salamander based primarily on research conducted across the range of the entire Siskiyou Mountains salamander Complex; and

(2)available information which indicates that members of the complex have similar physiological and behavioral characteristics, and consequently similar habitat associations (Welsh et al. 2007a, p. 31). Because the range of the Scott Bar salamander is roughly 32 percent of the area occupied by the Siskiyou Mountains salamander, the relative magnitude of effects caused by habitat perturbations may be greater at this smaller spatial scale. Despite differences in scale, we believe that the potential effects of timber harvesting, fire, and other habitat perturbations on the Scott Bar salamander are the same as those described previously for the Siskiyou Mountains salamander. To avoid redundancy, these effects are summarized below; further detail and citations may be found in the Factor A analysis for Siskiyou Mountains salamander. Effects of Timber Harvesting on the Scott Bar Salamander Our evaluation of recent research results and survey information indicates that, while abundance of Scott Bar salamanders may be greater at sites with dense, mature forest cover, this species also occupies a wide range of forest age and density conditions. Intensive timber harvesting practices such as clear-cutting likely have negative effects on habitat quality and subsequent abundance and population structure of salamanders. However, recent research suggests that Scott Bar salamanders persist in disturbed sites and their populations recover as vegetation is re-established and habitat conditions improve (Welsh et al. 2007b). Roughly 40 percent of known Scott Bar salamander locations occur on private timberlands where intensive timber management has been conducted for decades. Farber (2007a, p. 3) evaluated population structure and habitat characteristics at all Scott Bar salamander sites known to be occupied on and adjacent to Timber Products Company

(TPC)lands. Ninety-four percent of the sites exhibited evidence of at least one habitat disturbance such as roads, logging activity, wildfire, and mining; 53 percent had evidence of recent or historic timber harvest. None of the salamander sites were in old-growth or late-seral habitat; all were in relatively young forests and over 50 percent occurred in stands with open canopies. At 26 sites on TPC lands where a minimum of two surveys were conducted, 96 percent supported adult salamanders, and 65 percent exhibited all life stages (adults, subadults, and juveniles); gravid females were detected at 54 percent of sites. While these results cannot be inferred to the entire species' range, they clearly suggest that Scott Bar salamander populations persist and appear to be viable within the range of habitat conditions found on managed timberlands. Extent and Magnitude of Timber Harvesting Effects on the Scott Bar Salamander Existing land management regulations place substantial limits on the extent and magnitude of potential effects caused by timber harvesting on populations of Scott Bar salamanders. Approximately 78 percent of the Scott Bar salamanders' range consists of Federal lands managed by the KNF under the provisions of the NWFP. Approximately 51 percent of the range occurs within reserves (Late-successional Reserves, Wilderness, and Riparian Reserves) withdrawn from scheduled timber harvesting; an additional 19 percent of the range is within Matrix-Retention areas where timber harvest is restricted. Only about eight percent of the Scott Bar salamanders' range lies within the Matrix-General Forest land allocation where intensive timber harvesting is anticipated to occur. The rate and intensity of timber harvesting has declined substantially on Federal lands within the range of the Scott Bar salamander, primarily due to NWFP provisions. The amount of timber sold and removed on the Klamath National Forest declined by roughly 93 percent between 1984 and 2005, from an average of 238.2 million board feet of timber per year in 1979 to 1984, to 15.9 million board feet annually between 2000 and 2005 (USDA 2006a). The proportion of intensive timber management practices such as clear-cutting and overstory removal has also declined sharply, from an annual average of 3,733 ac (1,511 ha) per year from 1988 to 1991, to roughly 38 ac (15.4 ha) per year during 2000 to 2006 (USDA 2007b). We conclude that the land management regulations responsible for this long-term declining trend in the rate and intensity of timber harvesting greatly reduces the likelihood that a substantial proportion of the Scott Bar salamander will be affected by intensive timber harvesting. Private timberlands comprise 22 percent of the range of the Scott Bar salamander. State of California regulations under the California Endangered Species Act currently protect Scott Bar salamanders on private lands by requiring surveys and prohibiting habitat modification at occupied sites, timber harvesting, and other habitat disturbances. Private timberlands within the range of the Scott Bar salamander occur as small (one square mile) parcels distributed in a checkerboard pattern surrounded by KNF lands. This pattern acts to maintain the distribution of, and connectivity among, salamander populations at larger spatial scales, subsequently reducing the overall impact of habitat losses on private lands. Salamander populations occupying the private portions of this landscape pattern may experience fluctuations in the amount or quality of habitat through time but likely receive demographic support from adjacent populations on Federal lands where management is more favorable. Although the rate and intensity of timber harvest is greater on privately owned timberlands within the range of the Scott Bar salamander, not all private lands are expected to receive intensive treatments. Timber Products Company, the primary industrial landowner within the species' range, estimates that roughly 31 percent of the company's land base within the range of the Scott Bar salamander in Siskiyou County consists of land unsuitable for harvest (e.g., montane hardwoods, watercourse protection zones, rock outcrops). On the remaining 69 percent, 31 percent of projected timber harvest prescriptions consist of less-intensive harvest prescriptions such as thinning and selection, and 69 percent are more intensive treatments such as clear-cut, shelterwood removal, and seed tree harvest (Farber 2007c); suggesting that about 50 percent of TPC lands are anticipated to receive intensive harvesting. Of the 25 Scott Bar salamander locations currently known on TPC lands, 4 (16 percent) occur in riparian areas where timber harvest is restricted by State regulations, and 7 (28 percent) are located in previously harvested areas where additional timber harvesting is not anticipated over the next 20 to 30 years (Farber 2007b, pp. 1-2). This information, combined with data indicating that salamander populations persist within managed timberlands, further suggests that even in the absence of State protections for this species, intensive timber harvest would not be expected to impact a majority of populations within the 22 percent of the species' range that occurs on private lands or pose a substantial threat to the species. Wildfire Based on the best scientific information available, we believe the potential effects of wildfire on the Scott Bar salamander are similar to those described previously for the Siskiyou Mountains salamander. Fire regimes within the Klamath-Siskiyou region are characterized by mixed-severity fires that burn in a range of intensities, resulting in a mosaic of habitat effects at both fine and landscape-level spatial scales. Fire effects are frequently moderated on lower slopes with northerly exposures, topographic conditions frequently associated with salamander locations. Intense, stand-replacing fires likely reduce habitat quality for these salamanders by reducing overstory cover and consuming moss, duff, and forest floor litter, thereby modifying the microclimate conditions. It is likely that large-scale intense wildfires may negatively affect some populations, at least in the short term, but the degree to which more typical mixed-severity wildfires affect the viability of salamander populations is unknown. However, Scott Bar salamanders appear to be behaviorally adapted to dry-season fires because they are underground during summer and fall when most wildfires occur. Populations appear to persist and recover as vegetation is re-established after severe habitat disturbances (Bull et al. 2006, p. 24; Welsh et al. 2007b). Direct Disturbance: Roads and Road Construction, Mining, and Rock Quarrying As described under Factor A for the Siskiyou Mountains salamander, activities that physically alter the talus substrates occupied by the Scott Bar salamander have the potential to reduce habitat quality or remove habitat. While some of these activities such as rock quarrying may completely remove habitat, evidence suggests that salamander populations continue to occupy areas that show evidence of previous mining and road construction. In particular, numerous Scott Bar salamander locations occur in road cuts where rock substrate has been exposed. Although the ease of accessing and surveying such sites may influence the probability of detecting salamanders, the frequent presence of salamanders in road cuts suggests that this species can persist in or recolonize disturbed substrates. Despite these potential effects, road construction and rock quarrying are extremely limited in spatial extent, affecting a very small fraction of the salamander's range, and are not considered a substantial threat to these salamanders (Olson et al. 2007, p. 17). Summary of Factor A The abundance and population structure of Scott Bar salamanders appear to exhibit short-term negative effects from intensive timber management practices such as clear-cutting, but these practices are severely restricted on Federal lands, which constitute 78 percent of the species' range. Less intensive harvest practices appear to have relatively minor or short-term impacts to salamander abundance, and the available evidence suggests that salamander populations persist in a broad range of forest habitat conditions and under different management practices. Scott Bar salamander populations receive substantial protection from the system of NWFP reserves and management guidelines in effect on Federal lands, in combination with other land management direction (e.g. Roadless Areas, retention areas) and the Special Status Species programs, dramatically reducing the likelihood of substantial negative impacts to suitable or occupied habitat due to timber harvesting. Even without Survey and Manage protections, the available evidence does not show that timber harvest practices on Federal lands, either alone or in combination with other habitat disturbing activities such as mining, road building or wildfire, have reduced the habitat or range of this species or are likely to do so in the foreseeable future. Although timber harvest levels on private timberlands are greater than on Federal lands, current State regulations restrict management activities at occupied Scott Bar salamander locations. Known salamander locations on private timberlands occur in a variety of habitat conditions, including previously harvested areas and naturally open sites, demonstrating that populations persist in these managed landscapes. The dispersed pattern of private land parcels among Federal lands acts to maintain well-distributed populations, and may allow demographic support between adjacent populations. Wildfires are a naturally-occurring disturbance factor in the Klamath-Siskiyou region, and are expected to influence the quality, abundance and distribution of Scott Bar salamander habitat. However, the effects of most wildfires on salamander habitat appear to be temporary and populations recover as vegetation is re-established on burned areas. Wildfires typically burn in a mosaic pattern of intensities, leaving a variety of habitat conditions for salamanders within burned areas. In summary, Scott Bar salamander populations have been shown to exist in a range of habitat conditions that have experienced timber harvesting, wildfire, and other disturbances, and there is evidence suggesting that populations persist and recover following habitat disturbances. Current land-use regulations, including State regulations protecting the Scott Bar salamander on private timberlands, strongly limit intense disturbances such as clear-cutting, rock quarrying, and road construction. Therefore, we conclude that the Scott Bar salamander is not now, or in the foreseeable future, threatened by destruction, modification, or curtailment across its range. Factor B: Overutilization for Commercial, Recreational, Scientific, or Educational Purposes We are not aware of any information that indicates overutilization for commercial, recreational, scientific, or educational purposes threatens the Scott Bar salamander, now or in the foreseeable future, across its range. Factor C: Disease or Predation Chytridiomycosis is a relatively recently described epidermal infection of amphibians caused by the chytrid fungus *Batrachochytrium dendrobatidis.* This fungus requires moisture for survival (Johnson and Speare 2003, p. 922) and is therefore more likely to pose a threat to aquatic amphibians than to terrestrial ones. As described for the Siskiyou Mountains salamander, we do not anticipate that the Scott Bar salamander will be exposed to this disease or that exposure would lead to transmission through significant portions of its range. This species is not associated with bodies of water, occurs in a characteristically dry environment, is only active above ground for brief and intermittent periods during the year, and appears to have limited dispersal abilities. Given these restrictions, we believe that the Scott Bar salamander is unlikely to be exposed to diseased water or infected aquatic amphibians and, if infected, is unlikely to transmit the disease between populations. The Service is not aware of any predators that potentially pose a threat to the species. We therefore conclude that the Scott Bar salamander is not now, or in the foreseeable future, threatened by disease or predation across its range. Factor D: Inadequacy of Existing Regulatory Mechanisms Federal Lands Existing Federal regulations currently provide substantial protection on Federal lands for the Scott Bar salamander through the NWFP land use allocations and their management requirements. The provisions and current status of the Survey and Manage Program are described under Factor D for the Siskiyou Mountains salamander. The KNF extended Survey and Manage Program guidance to the Scott Bar salamander, since this species cannot be easily distinguished from the Siskiyou Mountains salamander in the field (USDA 2006b, p. 2). The Survey and Manage Program requires surveys of potentially suitable talus habitat and restricting management activities at occupied Scott Bar salamander sites. For purposes of this finding, we assume that NWFP's Survey and Manage Program is eliminated for future projects on Federal lands within the range of the Scott Bar salamander. Given the high proportion of the species range in reserved land allocations (70 percent), the low rate of timber harvest, and the low intensity of harvest practices typically employed by the KNF, we conclude that the removal of Survey and Manage guidelines will not constitute a substantial threat to the species. Management of the Scott Bar salamander will be conducted under the USFS's Sensitive Species Program, which does not specify protections for the Scott Bar salamander but contains provisions for development of conservation strategies that are anticipated to provide an additional layer of security for the species. The low proportion of KNF lands in land allocations where intensive timber harvest is anticipated to occur (8 percent), combined with the low degree and immediacy of potential threats to the Scott Bar salamander, lead us to conclude that existing regulatory mechanisms are adequate to maintain the viability of the Scott Bar salamander on Federal lands throughout the species' range. Private Lands and State Regulations In July 2005, CDFG described the Scott Bar salamander as a “newly discovered species from what was part of the range of *Plethodon stormi* ” (CDFG 2005, p. 31). Based on this change of taxonomic status, CDFG took the position that the Siskiyou Mountains salamander populations now recognized as Scott Bar salamanders were no longer protected under CESA. That position was successfully challenged by three environmental organizations in state court ( *Environmental Protection Information Center* v. *California Department of Fish and Game,* (No. CPF-06-506585)). The court concluded that, “[b]y virtue of its having been accorded protection as a subgroup of a listed, protected species, the Scott Bar salamander's protection under the California Endangered Species Act cannot be withdrawn by the California Department of Fish and Game without action first being taken by the California Fish and Game Commission.” On October 3, 2006, the California Fish and Game Commission received a petition to list the Scott Bar salamander under CESA. The Commission rejected the petition due to the protections already provided the species under CESA. The Scott Bar salamander is recognized by the Commission as protected under CESA as a sub-group or sub-population of the listed Siskiyou Mountains salamander (Cal. Code Regs. tit. 14, § 670.5, subd. (b)(3)(A).). However, the California Office of Administrative Law recently rejected for procedural reasons a formal effort by the Commission to recognize the protected status of the Scott Bar salamander under CESA in State regulations (Cal. Reg. Notice Register 2007, No. 28-Z, p. 1191). The Scott Bar salamander, therefore, is not specifically listed under CESA, but retains the same protections afforded the Siskiyou Mountains salamander. The Service is not aware of any other formal action by the Commission to recognize the protected status of Scott Bar salamander under CESA. The CDFG petition to delist the Siskiyou Mountains salamander does not include the historic portion of this species' range known to be occupied by the Scott Bar salamander. Therefore, the Service believes that regardless of the California Fish and Game Commission's decision on whether to delist the Siskiyou Mountains salamander, current State protections for the Scott Bar salamander will remain in effect until a formal rule-making process to remove these protections is undertaken. To our knowledge, there is no formal process currently underway to remove protections for the Scott Bar salamander. We recognize the uncertainty surrounding the future of State protections for Scott Bar salamanders on private lands and have evaluated the threat potentially posed by timber harvesting on private lands if protections were absent. As described under Factor A, we find that there is little evidence to suggest that timber harvesting on private lands threatens Scott Bar salamander populations because:

(1)Numerous populations are currently known to occur in a variety of managed habitat conditions on private timberlands;

(2)research indicates that populations of these salamanders persist following intensive timber harvest and recover as vegetation is re-established, and less intensive harvest practices appear to have minor or short-term effects on salamander abundance; and

(3)private lands constitute only 22 percent of the species' range, and are distributed in a dispersed pattern among Federal lands where conditions are more favorable and thus acts to maintain the distribution of, and connectivity among, salamander populations at larger spatial scales and reduce the impacts of intensive timber harvest on adjacent private lands. Therefore, we find that in the event that State protections for the Scott Bar salamander are removed, the lack of regulatory protections on private lands would not pose a substantial threat to this species in the foreseeable future. Summary of Factor D The Scott Bar salamander receives substantial protection based on the land allocations and Standards and Guidelines of the NWFP and KNF Land and Resource Management Plan. Future protection of the Scott Bar salamander will likely also occur through the USFS Sensitive Species Program. The high proportion the species' range within reserved land allocations, combined with the overall low rate and intensity of timber harvest on Federal lands leads us to conclude that elimination of the Survey and Manage guidelines does not pose a substantial threat to this species. We find that the combination of Federal regulations and land management planning guidelines provide adequate existing regulatory mechanisms across the vast majority of the species' range. The Scott Bar salamander also receives protection on private lands in California under CESA. While there presently is no effort underway to remove State protections for the Scott Bar salamander, the continued protection of the species under CESA for the foreseeable future is not certain. However, we find that the uncertain future of CESA protections for Scott Bar salamander populations on private lands does not pose a substantial threat because:

(1)Private lands comprise a small portion of the species' range and are distributed in small parcels interspersed among Federal lands; and

(2)salamander populations have been shown to persist in managed landscapes. We therefore conclude that the Scott Bar salamander is not now, or in the foreseeable future, threatened by inadequate regulatory mechanisms. Factor E: Other Natural or Manmade Factors Affecting the Continued Existence of the Species Other natural or manmade factors that may affect the persistence of the Scott Bar salamander across its range are climate changes associated with global warming and stochastic events, which are rare, chance events such as epidemics and large, severe wildfires. Climate Change The similarities in physiology, ecology, and habitat associations between the Scott Bar salamander and other members of the Siskiyou Mountains salamander Complex, combined with the large scales at which climate change studies are conducted, lead us to conclude that our analysis of the potential effects of climate change under Factor E for the Siskiyou Mountains salamander applies to the Scott Bar salamander as well. Given its physiology, this species may be strongly affected by changes to precipitation patterns. Although most of the available climate models predict increases in average temperatures, models were inconsistent with regard to future precipitation; increases in annual precipitation and cloud cover are a plausible outcome and could act to ameliorate any negative impacts caused by increased temperatures. We are unable to predict the potential effects of future climate change on the Scott Bar salamander at this time. Stochastic Events The Scott Bar salamander is an endemic species with a relatively small geographic range (136,740 ac (55,335 ha)) and limited dispersal abilities. These traits may increase its vulnerability to stochastic (rare, chance) events such as epidemics or large, severe fires because a single event can occur within all or a large portion of the range, and individuals may be unable to escape the disturbance or recolonize habitat following extirpation. The petitioners claim that these salamanders are rare, patchily distributed, and easily extirpated by disturbances, making them highly vulnerable to extinction (Greenwald and Curry 2007, p. 1). However, current research suggests that Scott Bar salamanders are in fact well-distributed within their range, that they occur at high densities in some areas, and that populations persist in managed landscapes (see “Range and Distribution” and Factor A for the Siskiyou Mountains salamander). These traits act to decrease the potential vulnerability conferred on this species by its small range. Severe disturbances such as clear-cutting or intense wildfires may result in negative effects to abundance or population structure of this species (as described under Factor A for the Siskiyou Mountains salamander), but there is no evidence that they result in significant losses of populations, and populations appear to recover over time. Although there is evidence that fire size and intensity may have increased in the Klamath-Siskiyou region, large fires with mixed severity are characteristic of the natural disturbance regime (Odion et al. 2004, p. 933; Agee 1993, pp. 388-389) within which these salamanders have evolved. However, a large wildfire that affects the majority of the range of the Scott Bar salamander is a plausible description of a significant stochastic event. Large fires such as the 2002 Biscuit Fire in southern Oregon may encompass an area similar to or larger than the range of this species. This does not, however, demonstrate that a fire of this magnitude is likely to threaten the Scott Bar salamander in the foreseeable future. The diverse topography and patchy distribution of habitats within the salamanders' range suggests that a large fire would be unlikely to have homogeneous effects at a large scale. The resulting mosaic pattern of fire effects, combined with the salamanders' ability to remain protected underground and persist during postfire vegetation recovery, indicates that the threat posed by such a stochastic event would be unlikely to result in large-scale extirpation of populations. Summary of Factor E The uncertain nature of climate change predictions, particularly predictions of future precipitation patterns, precludes a meaningful evaluation of potential impacts to Scott Bar salamander populations resulting from future climate conditions. We find that, although stochastic events such as large wildfires may occur within a large portion of this salamanders' restricted range, Scott Bar salamanders appear to persist following wildfires and other disturbances, to recover as vegetation is re-established following disturbance, and have adequate numbers of well-distributed populations throughout their range to allow for persistence and viability of this species. We therefore conclude that the Scott Bar salamander is not now, or in the foreseeable future, threatened by the individual or cumulative effects of climate change or stochastic events such as epidemics or large, severe wildfires. Finding We assessed the best available scientific and commercial information regarding threats faced by the Scott Bar salamander. We have reviewed the petition, information available in our files, and information submitted to us following our 90-day petition finding (72 FR 14750; March 29, 2007). We also consulted with recognized salamander experts, and Federal and private land managers, and arranged for researchers to initiate field studies to assess the distribution of genetic entities within the salamander complex and demographic response of these species to forest structure and management practices. We find little support for the petitioners' claim that the Scott Bar salamander is threatened by habitat destruction caused by timber harvesting and wildfire, and that existing regulatory mechanisms are inadequate to protect the species. While the available information suggests that Scott Bar salamanders may be positively associated with older forest conditions, the majority of studies and available field data show the species occupying a wide range of forest conditions, including previously harvested areas. Recent research indicates that these salamanders persist and populations recover as vegetation is re-established in intensively disturbed habitats. Less-intensive disturbances such as forest thinning and mixed-effects wildfire appear to have minor or short-term impacts on salamander abundance. There is no reliable evidence that indicates loss of populations or curtailment of this species' range has occurred. We acknowledge that the abundance and population structure of Scott Bar salamander populations may be negatively affected by intensive timber harvesting practices such as clear-cutting. The extent and magnitude of such practices, however, are severely limited by a number of regulatory mechanisms and other factors operating within the salamanders' range, as evidenced by the steep decline in timber harvest levels on Federal lands that constitute 78 percent of the species' range. Although levels of timber harvesting are higher on private timberlands, such lands constitute only 22 percent of the species' range and occur as small parcels interspersed among Federal lands. The small proportion of the range consisting of private lands, coupled with the ability of Scott Bar salamanders to persist in managed landscapes, leads us to conclude that forest management activities on Federal or private lands do not pose a substantial threat to this species. Several complementary regulatory mechanisms provide protection for Scott Bar salamanders and their habitats. On Federal lands constituting 78 percent of the species' range, the NWFP's system of land use allocations and management guidelines impose substantial limitations on the amount and intensity of land management activities, as evidenced by the dramatic decline in timber harvest levels observed since the NWFP was implemented. For this reason, the elimination of the Survey and Manage Program, which has provided protection specifically to occupied salamander locations, does not pose a substantial threat to the species. As a species, the Scott Bar salamander exhibits several characteristics that, when combined, suggest that Scott Bar salamanders are resilient to stochastic events such as large wildfires. Populations of Scott Bar salamanders are distributed among several watersheds, and abundance within populations can be high. There are 115 known locations within the estimated range of this species, and the majority of suitable habitat has not been surveyed. These population characteristics, combined with the species' apparent ability to persist and recover following habitat disturbance, acts to reduce any potential threat posed by stochastic events. Our evaluation of climate change modeling for the geographic area inhabited by the salamanders does not support the contention that future climate poses a threat to Scott Bar salamanders, because it is not currently possible to forecast future precipitation regimes. Our evaluation of the five listing factors does not support the contention that there are threats of sufficient imminence, intensity, or magnitude as to cause substantial losses of population distribution or viability of the Scott Bar salamander. Therefore, we do not find that the Scott Bar salamander is in danger of extinction (endangered), nor is it likely to become endangered within the foreseeable future (threatened) across its range. Therefore, listing the species as threatened or endangered under the Act is not warranted at this time. Under the Services' DPS policy, (61 FR 4722, February 7, 1996) three elements are considered in the decision concerning the establishment and classification of a possible DPS. These are applied similarly for additions to the Lists of Endangered and Threatened Wildlife and Plants. These elements include:

(1)The discreteness of a population in relation to the remainder of the species to which it belongs;

(2)the significance of the population segment to the species to which it belongs; and

(3)the population segment's conservation status in relation to the Act's standards for listing, delisting, or reclassification (i.e., is the population segment endangered or threatened). We are not aware of any information that would lead us to conclude that the Scott Bar salamander is comprised of population segments that are either discrete or significant. Therefore, we have not analyzed the Scott Bar salamander under the Services' DPS policy. Significant Portion of the Range Analysis Having determined that the Siskiyou Mountains salamander, the Applegate salamander DPS of Siskiyou Mountains salamander, the Grider DPS of Siskiyou Mountains salamander, and the Scott Bar salamander do not meet the definition of a threatened or endangered species, we must next consider whether there are any significant portions of their ranges where the species or DPS is in danger of extinction or is likely to become endangered in the foreseeable future. On March 16, 2007, a formal opinion was issued by the Solicitor of the Department of the Interior, “The Meaning of ‘In Danger of Extinction Throughout All or a Significant Portion of Its Range’ ” (USDI 2007c). We have summarized our interpretation of that opinion and the underlying statutory language below. A portion of a species' range (in this case, “species” refers to the Siskiyou Mountains salamander, the Scott Bar salamander, and both Siskiyou Mountains salamander DPSs) is significant if it is part of the current range of the species and it contributes substantially to the representation, resiliency, or redundancy of the species. The contribution must be at a level such that its loss would result in a decrease in the ability to conserve the species. We acknowledge that the Ninth Circuit Court of Appeals decision in *Defenders of Wildlife* v. *Norton* , 258 F.3d 1136

(2001)can be interpreted to require that in determining whether a species is threatened or endangered throughout a significant portion of its range, the Service should consider whether lost historical range (as opposed to current range) constitutes a significant portion of the range of the species at issue. While this is not our interpretation of the case or the statute, we conclude that there are no such areas for the Siskiyou Mountains salamander, the Applegate DPS of the Siskiyou salamander, the Grider DPS of the Siskiyou salamander, or the Scott Bar salamander. As we discussed in detail in our assessment of threats to each species, there is no evidence of range contraction for any of the species. We have no evidence to suggest that the occupied range of any member of the Siskiyou Mountains salamander Complex is different from its historical range. In determining whether a species is threatened or endangered in a significant portion of its range, we first identify any portions of the range of the species that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be significant and threatened or endangered. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that

(i)The portions may be significant and

(ii)the species may be in danger of extinction there or likely to become so within the foreseeable future. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the range that are unimportant to the conservation of the species, such portions will not warrant further consideration. If we identify any portions that warrant further consideration, we then determine whether in fact the species is threatened or endangered in any significant portion of its range. Depending on the biology of the species, its range, and the threats it faces, it may be more efficient for the Service to address the significance question first, or the status question first. Thus, if the Service determines that a portion of the range is not significant, the Service need not determine whether the species is threatened or endangered there. If the Service determines that the species is not threatened or endangered in a portion of its range, the Service need not determine if that portion is significant. If the Service determines that both a portion of the range of a species is significant and the species is threatened or endangered there, the Service will specify that portion of the range as threatened or endangered pursuant to section 4(c)(1) of the Act. The terms “resiliency,” “redundancy,” and “representation” are intended to be indicators of the conservation value of portions of the range. Resiliency of a species allows the species to recover from periodic disturbance. A species will likely be more resilient if large populations exist in high-quality habitat that is distributed throughout the range of the species in such a way as to capture the environmental variability found within the range of the species. In addition, the portion may contribute to resiliency for other reasons—for instance, it may contain an important concentration of certain types of habitat that are necessary for the species to carry out its life-history functions, such as breeding, feeding, migration, dispersal, or wintering. Redundancy of populations may be needed to provide a margin of safety for the species to withstand catastrophic events. This does not mean that any portion that provides redundancy is a significant portion of the range of a species. The idea is to conserve enough areas of the range such that random perturbations in the system act on only a few populations. Therefore, each area must be examined based on whether that area provides an increment of redundancy is important to the conservation of the species. Adequate representation ensures that the species' adaptive capabilities are conserved. Specifically, the portion should be evaluated to see how it contributes to the genetic diversity of the species. The loss of genetically based diversity may substantially reduce the ability of the species to respond and adapt to future environmental changes. A peripheral population may contribute meaningfully to representation if there is evidence that it provides genetic diversity due to its location on the margin of the species' habitat requirements. Siskiyou Mountains Salamander The Applegate and Grider DPSs together constitute the entirety of the range of the Siskiyou Mountains salamander. We have previously determined, however, that neither DPS is threatened or endangered across its range. Therefore, according to the formal opinion on significant portion of the range (USDOI 2007), we should then evaluate whether any significant portion of the range of a DPS may warrant listing. Applegate Salamander DPS of Siskiyou Mountains Salamander To determine whether the Applegate salamander DPS is threatened in a significant portion of its range, we first addressed whether any portions of the range of the Applegate salamander DPS warrant further consideration. Our analysis indicates that the conservation status of the species is essentially the same throughout its range; there is no area within the range of the Applegate salamander DPS where potential threats to this species are significantly concentrated or are substantially greater than in other portions of the range. And, as we explained in detail in our analysis of the status of the species, none of the threats faced by the species, alone or in combination, are sufficient to place it in danger of extinction now (endangered) or in the foreseeable future (threatened). We found no evidence that populations of Applegate salamander DPS are concentrated in any geographic portion of the range that would increase the vulnerability of this DPS to a particular threat. The 440 known Applegate salamander locations and suitable habitat are widely distributed across the DPS's range, and large areas of suitable habitat remain unsurveyed. We have analyzed the threats to the Applegate salamander DPS and have determined that they are not concentrated within any geographic portion of the range, and no significant areas within the DPS's range have been determined to face any greater threats. Potential threats to the DPS on Federal lands are addressed by existing land use regulations such as the NWFP, in combination with the Special Status Species program, such that no areas face significant threats which are not being managed. We find that private timberlands do not constitute a significant proportion of the Applegate salamander DPS's range because

(1)Private lands constitute a minor proportion (15 percent) of the range of the Applegate salamander, and

(2)private lands within the range of the species occur as small parcels in a “checkerboard” pattern with Federal lands or as isolated parcels, reducing the potential for threats to be concentrated in a geographic portion of the larger range. For these reasons, we find that there are no portions of the Applegate salamander DPS's range that warrant further consideration as significant portions of the range. We do not find that the Applegate salamander DPS is in danger of extinction (endangered) now, nor is it likely to become endangered within the foreseeable future (threatened) throughout all or a significant portion of its range. Therefore, listing the Applegate salamander DPS as threatened or endangered under the Act is not warranted at this time. Grider Salamander DPS of Siskiyou Mountains Salamander Applying the process described above for determining whether a species is threatened in a significant portion of its range, we also addressed whether any portions of the range of the Grider salamander DPS warrant further consideration. Our evaluation of the distribution of Grider salamander DPS populations and potential threats indicates that the conservation status of the species is essentially the same throughout its range; there is no area within the range of the Grider salamander DPS where potential threats to this species are significantly concentrated or are substantially greater than in other portions of the range. And, as we explained in detail in our analysis of the status of the species, none of the threats faced by the species, alone or in combination, are sufficient to place it in danger of extinction now (endangered) or in the foreseeable future (threatened). We found no evidence that populations of this DPS are concentrated in any geographic portion of the range that would increase the vulnerability of this DPS to a particular threat. The 76 known Grider salamander locations and suitable habitat are widely distributed across the DPS's range, and large areas of suitable habitat remain unsurveyed. We have analyzed the threats to the Grider salamander DPS and have determined that they are not concentrated within any geographic portion of the range, and no significant areas within the DPS's range have been determined to face any greater threats. Potential threats to the DPS on Federal lands are addressed by existing land use regulations such as the NWFP, such that no areas face significant threats which are not being managed. We find that private timberlands do not constitute a significant proportion of the Grider salamander DPS's range because

(1)Private lands constitute a minor proportion (9 percent) of the range of the Grider salamander DPS, and

(2)private lands within the range of the DPS occur as small parcels in a “checkerboard” pattern with Federal lands or as isolated parcels, reducing the potential for threats to be concentrated in a geographic portion of the larger range. Based on the reasons described above, we find that there are no portions of the Grider salamander DPS's range that warrant further consideration as significant portions of the range. We do not find that the Grider salamander DPS is in danger of extinction (endangered) now, nor is it likely to become endangered within the foreseeable future (threatened) throughout all or a significant portion of its range. Therefore, listing the Grider salamander DPS as threatened or endangered under the Act is not warranted at this time. Scott Bar Salamander To determine whether the Scott Bar salamander is threatened in a significant portion of its range, we first addressed whether any portions of the range of the Scott Bar salamander warrant further consideration. Our evaluation of the distribution of Scott Bar salamander populations and potential threats indicates that the conservation status of the species is essentially the same throughout its range; there is no area within the range of the Scott Bar salamander where potential threats to this species are significantly concentrated or are substantially greater than in other portions of the range. And, as we explained in detail in our analysis of the status of the species, none of the threats faced by the species, alone or in combination, are sufficient to place it in danger of extinction now (endangered) or in the foreseeable future (threatened). We found no evidence that populations of Scott Bar salamanders are concentrated in any geographic portion of the range that would increase the vulnerability of this species to a particular threat. The 115 known Scott Bar salamander locations and suitable habitat are widely distributed across the species' range, and large areas of suitable habitat remain unsurveyed. The higher numbers of salamander locations on private lands is the result of mandatory surveys, and does not suggest the presence of larger or more concentrated populations on private lands. Existing land use regulations, such as the NWFP, provide protection for the Scott Bar salamander on Federal lands while CESA provides substantial protection for the salamander on private lands in California. Further, even if the CESA protections on private lands were eliminated, the threats facing the Scott Bar salamander would not significantly increase because the private lands are not concentrated in a particular geographical area, but rather occur in a “checkerboard” pattern interspersed with Federal lands. This pattern of landownership serves to reduce the potential impacts on the salamander of timber harvest and other habitat disturbing activities on the relatively small portion (22 percent) of the species range that occurs on private lands, and to maintain redundancy, distribution, and connectivity among Scott Bar salamander populations. For these reasons, we conclude that there are no portions of the Scott Bar salamander's range that warrant further consideration as significant portions of the range. We do not find that the Scott Bar salamander is in danger of extinction (endangered) now, nor is it likely to become endangered within the foreseeable future (threatened) throughout all or a significant portion of its range. Therefore, listing the species as threatened or endangered under the Act is not warranted at this time. We make this finding at a time when Federal conservation efforts focused specifically on Applegate, Grider, and Scott Bar salamanders are in flux. Given the very recent discontinuation of the Survey and Manage Program and the fact that Survey and Manage guidelines are still applicable to ongoing Federal projects for at least another year, Federal agencies have had little time to develop and implement conservation strategies under their Special Status Species Programs. The Conservation Strategy for the Siskiyou Mountains Salamander, Northern Portion of the Range (Olson et al. 2007) covers the entire range of the Applegate salamander; the KNF is currently finalizing a Conservation Strategy for the Grider salamander and Scott Bar salamander. Both of these conservation strategies are modeled closely after the existing Survey and Manage guidance for the salamanders, but neither was evaluated as an existing conservation effort under PECE, or considered in our evaluation of threats to the species. Despite the fact that we did not rely on these existing and potential conservation efforts in our determination that the Siskiyou Mountains salamander group does not warrant protection under the Act, we note that these efforts by Federal agencies may in the future play an important role in the conservation of the species by acting as a hedge against uncertainty associated with future land management policies and our understanding of the ecology of these species. This finding represents our evaluation of the best currently available scientific information on the poorly known species, the environment they inhabit, and land management practices that may affect them, but we recognize the dynamic nature of our knowledge and land management policy. Through our participation in the development, implementation, and monitoring of these Conservation Strategies, as well as in ongoing field research of the species' habitat relationships, the Service will play a direct role in the future management and status of these salamanders. We will continue to assess the status of both clades of the Siskiyou Mountains salamander and Scott Bar salamander by working with the USFS, BLM, and other parties to the existing Conservation Strategy; research scientists; and other individuals or groups interested in contributing to the conservation of these species. Through our participation in regular reviews of the Conservation Strategy for the Siskiyou Mountains salamander, Northern Portion of the Range, we will monitor its effectiveness in eliminating and reducing threats to the Applegate salamander over the foreseeable future. We are continuing our involvement in the evaluation of habitat associations and effects of forest management on the Grider and Scott Bar salamanders. In 2005, the Service's Yreka Fish and Wildlife Office (YFWO), in cooperation with the USFS Redwood Sciences Laboratory and Humboldt State University, initiated research into the comparative abundance, population structure, and body condition of 60 Grider and Scott Bar salamander populations across a gradient of habitat conditions. We request that you submit any new information concerning the status of, or threats to, these species to our Yreka Fish and Wildlife Office (see ADDRESSES section) whenever it becomes available. New information will help us monitor these species and encourage their conservation. If an emergency situation develops for these or any other species, we will act to provide immediate protection. References Cited A complete list of all references cited herein is available, upon request, from the Yreka Fish and Wildlife Office (see ADDRESSES section). Author The primary authors of this notice are the staff of the Yreka Fish and Wildlife Office (see ADDRESSES ). Authority The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). Dated: January 14, 2008. Kenneth Stansell, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. E8-918 Filed 1-23-08; 8:45 am] BILLING CODE 4310-55-P 73 16 Thursday, January 24, 2008 Rules and Regulations Part IV Environmental Protection Agency 40 CFR Parts 51 and 93 Transportation Conformity Rule Amendments To Implement Provisions Contained in the 2005 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU); Final Rule ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 51 and 93 [EPA-HQ-OAR-2006-0612; FRL-8516-6] RIN 2060-AN82 Transportation Conformity Rule Amendments To Implement Provisions Contained in the 2005 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: In this action, EPA is amending the transportation conformity rule to finalize provisions that were proposed on May 2, 2007. The Clean Air Act requires federally supported transportation plans, transportation improvement programs, and projects to be consistent with (“conform to”) the purpose of the state air quality implementation plan. Most of these amendments are necessary to make the rule consistent with Clean Air Act section 176(c) as amended by SAFETEA-LU on August 10, 2005 (Pub. L. 109-59), including changes to the regulations to reflect that the Clean Air Act now provides more time for state and local governments to meet conformity requirements, provides a one-year grace period before the consequences of not meeting certain conformity requirements apply, allows the option of shortening the timeframe of conformity determinations, and streamlines other provisions. This final rule also includes minor amendments that are not related to SAFETEA-LU, such as allowing the Department of Transportation

(DOT)to make categorical hot-spot findings for appropriate projects in carbon monoxide nonattainment and maintenance areas. EPA has consulted with DOT, and they concur with this final rule. DATES: *Effective Date:* This final rule is effective on February 25, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2006-0612. All documents in the docket are listed on the *www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, e.g., confidential business information

(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy at the Air Docket, EPA/DC, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202)566-1744, and the telephone number for the Air Docket is

(202)566-1742. FOR FURTHER INFORMATION CONTACT: Laura Berry, State Measures and Conformity Group, Transportation and Regional Programs Division, Environmental Protection Agency, 2000 Traverwood Road, Ann Arbor, MI 48105, e-mail address: *berry.laura@epa.gov* , telephone number:

(734)214-4858, fax number:

(734)214-4052, or Rudy Kapichak, State Measures and Conformity Group, Transportation and Regional Programs Division, Environmental Protection Agency, 2000 Traverwood Road, Ann Arbor, MI 48105, e-mail address: *kapichak.rudolph@epa.gov* , telephone number:

(734)214-4574, fax number:

(734)214-4052. SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in the following outline: I. General Information II. Background III. Frequency of Conformity Determinations IV. Deadline for Conformity Determinations When a New Budget Is Established V. Lapse Grace Period VI. Timeframes for Conformity Determinations VII. Conformity SIPs VIII. Transportation Control Measure Substitutions and Additions IX. Categorical Hot-Spot Findings for Projects in Carbon Monoxide Nonattainment and Maintenance Areas X. Removal of Regulation 40 CFR 93.109(e)(2)(v) XI. Miscellaneous Revisions XII. Statutory and Executive Order Reviews I. General Information A. Does This Action Apply to Me? Entities potentially regulated by the conformity rule are those that adopt, approve, or fund transportation plans, programs, or projects under title 23 U.S.C. or title 49 U.S.C. Regulated categories and entities affected by today's action include: Category Examples of regulated entities Local government Local transportation and air quality agencies, including metropolitan planning organizations (MPOs). State government State transportation and air quality agencies. Federal government Department of Transportation (Federal Highway Administration

(FHWA)and Federal Transit Administration (FTA)). This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this final rule. This table lists the types of entities of which EPA is aware that potentially could be regulated by the transportation conformity rule. Other types of entities not listed in the table could also be regulated. To determine whether your organization is regulated by this action, you should carefully examine the applicability requirements in 40 CFR 93.102. If you have questions regarding the applicability of this action to a particular entity, consult the persons listed in the preceding FOR FURTHER INFORMATION CONTACT section. B. How Can I Get Copies of This Document? 1. Docket EPA has established an official public docket for this action under Docket ID No. EPA-HQ-OAR-2006-0612. You can get a paper copy of this **Federal Register** document, as well as the documents specifically referenced in this action, any public comments received, and other information related to this action at the official public docket. See ADDRESSES section for its location. 2. Electronic Access You may access this **Federal Register** document electronically through EPA's Transportation Conformity Web site at *http://www.epa.gov/otaq/stateresources/transconf/index.htm* . You may also access this document electronically under the **Federal Register** listings at *http://www.epa.gov/fedrgstr/* . An electronic version of the official public docket is available through *www.regulations.gov* . You may use *www.regulations.gov* to view public comments, access the index listing of the contents of the official public docket, and access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket identification number. Certain types of information are not placed in the electronic public docket. Information claimed as CBI and other information for which disclosure is restricted by statute is not available for public viewing in the electronic public docket. EPA's policy is that copyrighted material is not placed in the electronic public docket but is available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in the electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in the electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Section I.B.1. above. EPA intends to work towards providing electronic access in the future to all of the publicly available docket materials through the electronic public docket. For additional information about the electronic public docket, visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* . II. Background A. What Is Transportation Conformity? Transportation conformity is required under Clean Air Act section 176(c) (42 U.S.C. 7506(c)) to ensure that federally supported highway and transit project activities are consistent with (“conform to”) the purpose of the state air quality implementation plan (SIP). Conformity currently applies to areas that are designated nonattainment and those redesignated to attainment after 1990 (“maintenance areas” with plans developed under Clean Air Act section 175A) for the following transportation-related criteria pollutants: Ozone, particulate matter (PM 2.5 and PM 10 ), 1 carbon monoxide (CO), and nitrogen dioxide (NO 2 ). Conformity to the purpose of the SIP means that transportation activities will not cause or contribute to new air quality violations, worsen existing violations, or delay timely attainment of the relevant national ambient air quality standards (NAAQS or “standards”). 1 40 CFR 93.102(b)(1) defines PM 2.5 and PM 10 as particles with an aerodynamic diameter less than or equal to a nominal 2.5 and 10 micrometers, respectively. EPA's transportation conformity rule establishes the criteria and procedures for determining whether transportation activities conform to the SIP. EPA first promulgated the transportation conformity rule on November 24, 1993 (58 FR 62188), and subsequently published several other amendments. See EPA's Web site at *http://www.epa.gov/otaq/stateresources/transconf/index.htm* for further information. B. Why Are We Issuing This Final Rule? On August 10, 2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) was signed into law (Pub. L. 109-59). SAFETEA-LU section 6011 amended Clear Air Act section 176(c) by: • Changing the required frequency of transportation conformity determinations from three years to four years; • Providing two years to determine conformity after new SIP motor vehicle emissions budgets are either found adequate, approved or promulgated; • Adding a one-year grace period before the consequences of a conformity lapse apply; • Providing an option for reducing the time period addressed by conformity determinations; • Streamlining requirements for conformity SIPs; and • Providing procedures for areas to use in substituting or adding transportation control measures

(TCMs)to approved SIPs. SAFETEA-LU section 6011(g) requires that EPA revise the transportation conformity rule as necessary to address the new statutory provisions. This final rule addresses the relevant changes that SAFETEA-LU made to the Clean Air Act. This final rule replaces the joint EPA-DOT interim guidance issued February 14, 2006, which provided guidance to areas subject to transportation conformity on implementing the changes to the Clean Air Act made by SAFETEA-LU. 2 This final rule is consistent with the February 2006 guidance. 2 Note that the TCM portion of the February 14, 2006, guidance is not covered in today's final rule, but in an updated guidance document that will be available on EPA's Web site at *http://www.epa.gov/otaq/stateresources/transconf/policy.htm* . DOT is our federal partner in implementing the transportation conformity regulations. EPA has consulted with DOT on the development of this final rule, and DOT concurs with its content. EPA received comments on the proposed rule from 16 different entities, though some commenters submitted comments jointly. Commenters included state DOTs, MPOs, state and local air quality agencies, government associations, and industry associations. The majority of commenters supported EPA's proposal in general, and specific provisions in particular, which are discussed below. EPA is addressing these and other comments in the relevant sections of the preamble and in the responses to comments document, which can be found in the public docket for this final rule. III. Frequency of Conformity Determinations A. Description of Final Rule EPA is changing § 93.104(b)(3) to require that the MPO and DOT determine conformity of a transportation plan at least every four years, and § 93.104(c)(3) to require that the MPO and DOT determine conformity of a transportation improvement program

(TIP)at least every four years. The pre-existing regulations required these determinations to be made at least every three years. B. Rationale and Response to Comments These changes to § 93.104 are needed to make the conformity regulation consistent with the law. In SAFETEA-LU, Congress amended Clean Air Act section 176(c)(4)(D)(ii) to require that conformity be determined with a frequency of four years, unless the MPO decides to update its transportation plan or TIP more frequently, or the MPO is required to determine conformity in response to a trigger (see Section IV.). The Clean Air Act previously required transportation plan and TIP conformity to be determined every three years. These Clean Air Act provisions have been in effect as of August 10, 2005. Several commenters voiced support for this change because it is consistent with the Clean Air Act, as amended by SAFETEA-LU. One commenter noted that this change will be helpful particularly to small communities. One commenter opposed the proposal because the commenter believes that having more frequent conformity determinations may be important in areas with significant on-road mobile source emissions. As already stated, and as other commenters noted, this change is necessary to make the regulation consistent with the law. Furthermore, EPA believes that despite this change in the required frequency of conformity determinations, the transportation conformity program still achieves its purpose in ensuring transportation actions conform to the SIP. Transportation plans and TIPs must still conform before they are adopted. Several commenters suggested that EPA also change “three years” to “four years” in § 93.104(d) of the conformity rule. This provision describes the circumstances when a conformity determination for a project is needed, one of which is when more than three years have elapsed since the most recent major step to advance the project. Commenters requested that three years be changed to four years to be consistent with SAFETEA-LU provisions of determining conformity on TIPs and transportation plans every four years. EPA is not changing § 93.104(d) in this rulemaking. First, this change was not proposed, as it was not required by the Clean Air Act as amended by SAFETEA-LU. SAFETEA-LU aligned transportation plan, TIP, and the frequency of transportation plan and TIP conformity determinations to create efficiencies in the overall planning process, rather than to allow more time when project phases are delayed. Second, the conformity rule requires that a new conformity determination be done for a project if more than three years have elapsed since a major step has occurred to be consistent with the regulations under the National Environmental Policy Act (NEPA), rather than with the frequency of conformity determinations for transportation plans and TIPs. The NEPA regulations require reevaluation of NEPA documents for projects which have not had major action for three years. Please refer to “H. Time Limit on Project-Level Determinations” in the preamble of the November 24, 1993, conformity rule (58 FR 62200) for more explanation of this point. C. Overlap With Transportation Planning Frequency Requirements In addition to changing the required frequency of conformity determinations from at least every three years to every four years, SAFETEA-LU also changed the required frequency for updating transportation plans and TIPs for transportation planning purposes. Prior to SAFETEA-LU, transportation plans in nonattainment and maintenance areas had to be updated every three years and TIPs updated every two years; now both transportation plans and TIPs must be updated every four years in these areas. However, MPOs can voluntarily update their transportation plans and TIPs more frequently. Consequently, conformity may still need to be determined more frequently than every four years, because an updated or amended transportation plan or TIP still must conform before it is adopted, regardless of the last time a conformity determination was done. Further discussion of the implementation of the SAFETEA-LU statewide and metropolitan transportation planning requirements can be found in DOT's February 14, 2007, final rulemaking on metropolitan and statewide transportation planning (72 FR 7224). Today's change to the required frequency of transportation plan and TIP conformity determinations does not change other details for implementing conformity and planning frequency requirements. Both the transportation planning update clock and the conformity update clock continue to be reset on the date of the FHWA and FTA conformity determination for the respective transportation plan and/or TIP. For more information, see DOT's May 25, 2001, guidance, available on EPA's Web site at *http://www.epa.gov/otaq/stateresources/transconf/policy.htm* and on DOT's Web site at *http://www.fhwa.dot.gov/environment/conformity/planup_m.htm.* D. Related Change: Consequences of a Control Strategy SIP Disapproval 1. Description of Final Rule EPA is revising § 93.120(a)(2) to allow projects in the first four years of the conforming transportation plan and TIP, rather than the first three years of the conforming transportation plan and TIP, to proceed after final EPA disapproval of a control strategy SIP without a protective finding, i.e., when a conformity freeze occurs. In this section of the regulation, EPA is changing the two instances of “three years” to “four years,” similar to the changes made in §§ 93.104(b)(3) and (c)(3), the other sections of the rule affected by the change in the required frequency of conformity determinations. Though the final regulation at § 93.120(a)(2) differs from the language that was proposed, it is the same in substance as the proposed rule. 2. Rationale and Response to Comments EPA is making this change to be consistent with the general implementation of SAFETEA-LU, which requires transportation plans and TIPs to be updated every four years and requires TIPs to cover a period of four years. EPA had proposed to generalize this language to allow a project to proceed during a freeze if it was included in the conforming TIP in order to account for the transition to new SAFETEA-LU transportation planning requirements. EPA believed the proposed language would be useful during the transition to SAFETEA-LU's planning requirements. We believed that when the rule became final, some MPOs would still have three-year TIPs prior to developing four-year TIPs for SAFETEA-LU. See the preamble to the May 2, 2007, proposed rule (72 FR 24475) for EPA's full rationale. Several commenters supported the language we had proposed, because it accounted for the transition to SAFETEA-LU's planning requirements. EPA received no comments opposing it. However, the transition period ended on July 1, 2007. While some areas may still have three-year TIPs today, these will all be replaced over time by four-year TIPs. EPA believes the better update to § 93.120(a)(2) is simply to change the instances of “three years” to “four years,” as it is more clear and more consistent with the prior regulatory language. If EPA disapproves a SIP without a protective finding in an area that still has a three-year TIP, only projects from the first three years of the conforming transportation plan and TIP could proceed, because the regulation states that projects must be in both the conforming transportation plan and TIP (except during the lapse grace period, discussed in Section V.E., below). Today's final rule at § 93.120(a)(2) is consistent with the proposed rule for this section. Though the proposed language had eliminated the reference to a conforming transportation plan, EPA did not intend to change other rule requirements. In fact, EPA stated so in the preamble to the May 2, 2007, proposed rule: However, this proposed general language is not intended to change other rule requirements. Although EPA's change to § 93.120(a)(2) would no longer include the phrase “conforming transportation plan,” the requirements of § 93.114 continue to apply. Specifically, there must still be a currently conforming transportation plan in place to approve projects during a conformity freeze (except as noted in Section V.E., below). (72 FR 24475) While it is the same in substance as the proposed rule language, the change to § 93.120(a)(2) in today's final rule is more clear, because it continues to state explicitly that a project must be in both the conforming transportation plan as well as conforming TIP. Note that Section V.E. discusses the exception to this requirement during the lapse grace period, which is also included in today's final rule for § 93.120(a)(2). IV. Deadline for Conformity Determinations When a New Budget Is Established A. Description of the Final Rule EPA is revising § 93.104(e), which requires a new transportation plan and TIP conformity determination to be made after actions that establish a new motor vehicle emissions budget for conformity, also known as “triggers.” The revision gives MPOs and DOT two years, increased from 18 months, to determine conformity of a transportation plan and TIP when a new budget is established. An MPO and DOT must make a conformity determination within two years of the effective date of: • EPA's finding that a motor vehicle emissions budget(s) (“budget(s)”) in a submitted SIP is adequate (40 CFR 93.104(e)(1)); • EPA's approval of a SIP, if the budget(s) from that SIP have not yet been used in a conformity determination (40 CFR 93.104(e)(2)); and • EPA's promulgation of a Federal implementation plan

(FIP)with a budget(s) (40 CFR 93.104(e)(3)). B. Rationale and Response to Comments This change makes the conformity regulation consistent with the current law. In SAFETEA-LU, Congress amended the Clean Air Act to give MPOs and DOT two years before conformity must be determined in response to one of the conformity triggers above. Several commenters generally supported this change, noting that it is necessary to be consistent with the current law. This Clean Air Act provision has been in effect as of August 10, 2005. The regulation's description of events that trigger a new conformity determination have not been changed because they were already consistent with the amendments made to the Clean Air Act in SAFETEA-LU, for the reasons described in the preamble to the May 2, 2007, proposed rule (72 FR 24475-24476). EPA also notes that no change is necessary for the point at which the two-year clocks begin. The two-year clocks begin on the effective date of EPA's adequacy finding or the effective date of EPA's SIP approval or FIP promulgation action. (For more details regarding the triggers, see Section III. of the August 6, 2002, final rule at 67 FR 50810 and Section XIX. of the July 1, 2004, final rule, at 69 FR 40050). V. Lapse Grace Period A. Description of the Final Rule EPA is adding a one-year grace period before a conformity lapse occurs when an area misses an applicable deadline. The applicable deadlines are those that result from: • The requirements to determine conformity of a transportation plan and TIP every four years under §§ 93.104(b)(3) and 93.104(c)(3) (see Section III.), and • The requirement to determine conformity within two years of a trigger under § 93.104(e) (see Section IV.). EPA notes that the regulatory changes discussed in Section V. of this preamble do not impact isolated rural nonattainment or maintenance areas, because these areas do not include an MPO with a transportation plan or TIP conformity determination that would lapse. Isolated rural areas continue to be covered by the requirements in 40 CFR 93.109(l). To provide the rules to allow projects to meet conformity requirements 3 during the lapse grace period, EPA is adding a new provision to the regulation, § 93.104(f). 3 By the phrase “meet conformity requirements,” EPA means that FHWA/FTA projects can be found to conform, and non-Federal projects can be approved. • New § 93.104(f)(1) allows non-exempt FHWA/FTA projects to be found to conform during the lapse grace period if they are included in the *currently conforming* transportation plan and TIP. • New § 93.104(f)(2) allows non-exempt FHWA/FTA projects to be found to conform during the lapse grace period if they were included in the *most recent conforming* transportation plan and TIP. However, even though § 93.104(f)(2) allows a project to be found to conform when the transportation plan and TIP have expired, a project must also meet DOT's planning and other requirements to receive federal funding or approval. Today's rulemaking does not change how exempt projects and traffic signal synchronization projects are addressed under the transportation conformity rule. These projects are able to proceed during the lapse grace period, and for that matter during a conformity lapse, because exempt projects and traffic signal synchronization projects do not require project-level conformity determinations per 40 CFR 93.126 and 93.128, respectively. In addition, EPA is revising §§ 93.114, 93.115, and 93.121 by including a reference to § 93.104(f) to account for the lapse grace period: • Section 93.114 requires that there be a currently conforming transportation plan and TIP at the time of project approval, except during the lapse grace period, when a non-exempt project must come from the most recent conforming transportation plan and TIP. (A project must also meet DOT's planning and other requirements to receive Federal funding or approval. See Section V.C. below for further discussion.) • Section 93.115 requires that non-exempt FHWA/FTA projects come from a conforming transportation plan and TIP, except during the lapse grace period, when a project could come from the most recent conforming plan and TIP. (A project must also meet DOT's planning and other requirements to receive federal funding or approval. See Section V.C. below for further discussion.) • Similarly, § 93.121 requires that regionally significant non-Federal projects either come from the currently conforming transportation plan and TIP, or the regional emissions analysis that supports such a transportation plan and TIP, except during the lapse grace period, when such projects could be approved if they are from the most recent conforming transportation plan and TIP, or the regional emissions analysis that supported the most recent conforming transportation plan and TIP. Note that the lapse grace period only applies to transportation conformity, and not to DOT's transportation planning requirements. DOT and EPA agree that planning requirements still must be met during the lapse grace period in order for DOT to fund or approve a project as discussed further in C. of this section. B. Rationale and Response to Comments These changes are necessary to make the conformity regulation consistent with the amended law and the intentions of Congress. In SAFETEA-LU, Congress amended the Clean Air Act to provide a one-year grace period before the consequences of a conformity lapse apply in section 176(c)(9) and added a definition of “lapse” in section 176(c)(10). The changes to the law have been in effect as of August 10, 2005. See the preamble to the May 2, 2007, proposed rule (72 FR 24476-8) for EPA's full rationale supporting this provision of the final rule. Six of the seven commenters who commented on the lapse grace period supported EPA's proposal. These commenters generally believe that EPA's proposal to incorporate the lapse grace period into the conformity rule is consistent with the Clean Air Act as amended by SAFETEA-LU. One commenter stated that the lapse grace period allows time and flexibility for areas to comply with Clean Air Act requirements. Another commenter who supported the lapse grace period specifically agreed with EPA's interpretation that Congress meant to allow conformity requirements to be satisfied for projects during the lapse grace period, even if there is no conforming transportation plan and TIP at the time. This commenter opined that any other interpretation renders Clean Air Act section 176(c)(9) meaningless. Two commenters requested that EPA clarify the commenters' interpretation that the lapse grace period applies to projects not from a conforming transportation plan and TIP as long as the requirements of 40 CFR 93.115(b)(2) are addressed. EPA disagrees with the commenters' interpretation; merely meeting § 93.115(b)(2) and nothing more would not be sufficient for a project to proceed during the lapse grace period. To be found to conform during the lapse grace period, a project must be from a conforming transportation plan and TIP (§ 93.104(f)(1)), or from the most recent conforming transportation plan and TIP (§ 93.104(f)(2)). Section 93.115(b) describes the circumstances under which a project is considered to be from a conforming transportation plan. Paragraph (b)(2) provides that if a project is not specifically identified in the transportation plan, it can be considered to be “from” the plan as long as it “is consistent with the policies and purpose of the transportation plan and will not interfere with other projects specifically included in the transportation plan.” A project that meets only the requirements of § 93.115(b)(2) can be considered to be from a conforming transportation plan. But to proceed during the lapse grace period, it must also be from a conforming or most recent conforming TIP as well, as required by Clean Air Act sections 176(c)(2)(D) and (c)(2)(C)(i). The one commenter who opposed EPA's proposal for the lapse grace period thought that it was counter to EPA's mission to protect public health. The commenter stated that on-road mobile source emissions are important and thought that the lapse grace period would increase these emissions. In response, first EPA notes that Congress added the lapse grace period in its amendments to the Clean Air Act, and EPA is simply revising the regulations to make them consistent with the current law. Second, a project cannot actually proceed to completion unless there is a valid, i.e., currently conforming, TIP that also meets transportation planning requirements. Therefore, the project's emissions would have been considered in the conformity determination for this TIP, eliminating the possibility of unanticipated emissions increases. C. How Does the Grace Period Work In Practice? The one-year conformity lapse grace period begins when the conformity determination required for a transportation plan or TIP is not made by the applicable deadline. As described above, during the grace period, a project may meet conformity requirements as long as it was included in either the currently conforming transportation plan and TIP or the most recent conforming transportation plan and TIP and other project-level conformity requirements are met. An FHWA/FTA project must also meet DOT's planning requirements to receive federal funding or approval. Specifically, 23 U.S.C. 134(j)(3) and 49 U.S.C. 5303(j)(3) require a TIP to be in place and 23 U.S.C. 135(g)(4) and 49 U.S.C. 5304(g)(4) require a statewide TIP

(STIP)to be in place for DOT to authorize transportation projects. The STIP contains all of the metropolitan area TIPs in the state. Three specific scenarios are presented below to show how expiration of the transportation plan and/or STIP/TIP at the time of the missed deadline affects the ability to advance FHWA/FTA projects during the conformity lapse grace period. 4 4 These scenarios are consistent with those highlighted in EPA and DOT's joint February 14, 2006, interim guidance, which is superceded by today's final rule. *Scenario 1:* If the transportation plan has expired, but the STIP/TIP are still in effect, FHWA/FTA can continue to authorize and take action on projects in the STIP/TIP throughout the duration of the grace period or the duration of the STIP/TIP, whichever is shorter. The TIP and affected portion of the STIP cannot be amended once the transportation plan expires. Prior to transportation plan expiration, an MPO and state should ensure that the STIP/TIP include the desired projects from the transportation plan to continue to operate during the conformity lapse grace period. 5 5 For example, an MPO may want to amend its TIP before the transportation plan expires to allow projects from the fifth year of the transportation plan to proceed during the lapse grace period. The conformity determination for such an amended TIP would have to be made before the lapse grace period begins, but the determination could rely on the previous regional emissions analysis as long as the requirements of 40 CFR 93.122(g) are met. *Scenario 2:* If the transportation plan is still in effect, but the STIP/TIP have expired, FHWA/FTA cannot authorize FHWA/FTA projects. In order to advance projects, a new STIP/TIP would have to be developed that contains only projects that are consistent with the transportation plan. A conformity determination would have to be made for the new TIP unless it includes only exempt projects, traffic signal synchronization projects, or TCMs in an approved SIP. For example, if a new TIP included a non-exempt project from later years of the transportation plan, the new TIP would require a conformity determination. (However, the determination could rely on the previous regional emissions analysis as long as the requirements of 40 CFR 93.122(g) are met.) *Scenario 3:* If both the transportation plan and the STIP/TIP have expired, FHWA/FTA will not authorize projects under the planning regulations. Regardless of the scenario, in addition to transportation planning requirements, project-level conformity requirements must also be met during the lapse grace period including any required hot-spot analysis. Refer to the Table 1 in 40 CFR 93.109 for the conformity criteria and procedures that apply to projects. D. Newly Designated Nonattainment Areas The lapse grace period provision in Clean Air Act section 176(c)(9) does not apply to the deadline for newly designated nonattainment areas to make the initial transportation plan/TIP conformity determination within 12 months of the effective date of the nonattainment designation. The lapse grace period in Clean Air Act section 176(c)(9) applies prior to when a lapse occurs, and Clean Air Act section 176(c)(10) and 40 CFR 93.101 define the term “lapse” to mean that the conformity determination for a transportation plan or TIP has expired. Therefore, the lapse grace period does not apply unless an area has already had a conforming transportation plan and TIP that has expired; it does not apply to a newly designated area that has not yet made its initial conformity determination for a transportation plan and TIP for a new pollutant or air quality standard. Although the lapse grace period does not apply to newly designated areas, these areas already have similar existing flexibility because Clean Air Act section 176(c)(6) and 40 CFR 93.102(d) give newly designated areas one year before conformity applies, starting from the effective date of final nonattainment designation. 6 6 This one-year grace period for newly designated areas most recently applied to the areas designated for the 8-hour ozone and PM 2.5 standards. All of these metropolitan areas have at this point determined transportation plan/TIP conformity. Although the statutory and regulatory definitions of lapse do not apply to newly designated areas, once conformity applies, the identical restrictions of a conformity lapse will exist for any newly designated nonattainment area that does not have a conforming transportation plan and TIP in place one year after the effective date of EPA's designation. EPA and DOT will continue to use the term “lapse” informally to describe these situations. E. Conformity Freezes EPA also notes the interaction of conformity lapse grace periods and conformity freezes. A conformity freeze occurs if EPA disapproves a control strategy SIP without a protective finding for the budgets in that SIP (see § 93.120(a)(2)). 7 During a freeze, some projects can be advanced, but the area cannot adopt a new transportation plan or TIP until a new SIP is submitted with budgets that EPA approves or finds adequate. If conformity of a transportation plan and TIP has not been determined using a new control strategy SIP with budgets that EPA approves or finds adequate within two years of EPA's SIP disapproval, highway sanctions apply (under Clean Air Act section 179(b)(1)) and the freeze becomes a lapse. 7 Such disapprovals occur infrequently; EPA has only disapproved SIPs without a protective finding in three instances since the 1997 conformity rule was promulgated. The lapse grace period would apply during a freeze only if the transportation plan/TIP expire before highway sanctions apply. The lapse grace period would apply in this case because the grace period applies when an area misses an applicable deadline to determine conformity for the transportation plan and TIP. The transportation plan and TIP would remain in a freeze even once the lapse grace period begins, and would remain frozen until either a conformity determination is made to new adequate or approved SIP budgets as described above, or highway sanctions apply. An area that is in a conformity freeze and subsequently enters the lapse grace period would lapse at the end of the grace period (one year after the missed deadline), or when highway sanctions apply, whichever comes first. As described above, however, a project must also meet DOT's planning and other requirements to receive Federal funding or approval during the lapse grace period. If a freeze becomes a lapse because two years transpire from the effective date of EPA's disapproval of the SIP (when highway sanctions are applied), the area cannot use the lapse grace period. A lapse that occurs because two years have transpired since EPA's disapproval of a SIP is not a lapse that results from missing an applicable deadline to determine conformity. Thus, the lapse grace period would not apply by its own terms when sanctions are applied. VI. Timeframes for Conformity Determinations A. Overview Through SAFETEA-LU, Congress added new paragraph

(7)to Clean Air Act section 176(c) to allow areas to elect to shorten the period of time addressed by their transportation plan/TIP conformity determinations, or “timeframe.” Prior to this change, every conformity determination for a transportation plan and TIP has had to cover the entire timeframe of the transportation plan. Transportation plans cover a period of 20 years or longer. Because of the requirement to determine conformity of the entire transportation plan, the last year of the transportation plan has had to be analyzed in all transportation plan or TIP conformity determinations, as well as other earlier years in the timeframe of the transportation plan. Under the amended Clean Air Act, an MPO continues to demonstrate conformity for the entire timeframe of the transportation plan unless the MPO elects to shorten the conformity timeframe. An election to shorten the conformity timeframe could be made only after consulting with the state and local air quality agencies 8 and soliciting public comment and considering such comments. If an MPO makes this election, the conformity determination does not have to cover the entire length of the transportation plan, but in some cases an informational analysis is also required. 8 The amendment to the Clean Air Act that allows areas to shorten the timeframe of conformity determinations, Clean Air Act section 176(c)(7), requires the MPO to consult with “the air pollution control agency.” For the reasons explained in the May 2, 2007, proposed rule (72 FR 24479 and 27780), EPA is using the equivalent term “state and local air quality agencies” in this preamble and final rule. This provision giving areas the option to shorten their conformity timeframe took effect on August 10, 2005, when SAFETEA-LU became law. Note, however, that transportation plan/TIP conformity determinations must cover the entire length of the transportation plan unless an election is made to shorten the timeframe. Today EPA is finalizing several changes in the regulatory language to provide the rules for shortening the conformity timeframe, and most of these changes are found in § 93.106(d). This section discusses these changes and is organized as follows: • Metropolitan areas that do not have an adequate or approved second maintenance plan (Section VI.B.). • Metropolitan areas with adequate or approved second maintenance plans (Section VI.C.). • How elections are made in metropolitan areas to either shorten the conformity timeframe, or revert to the original conformity timeframe once the timeframe has been shortened (Section VI.D.). • Isolated rural areas (Section VI.E.). • Conformity implementation in all areas under a shortened conformity timeframe, including which years must be analyzed (Section VI.F.). B. Timeframe Covered by Conformity Determinations in Metropolitan Areas Without Second Maintenance Plans 1. Description of Final Rule Transportation plan and TIP conformity determinations must cover the timeframe of the transportation plan, unless an MPO elects to shorten the timeframe. This requirement is found in § 93.106(d)(1). In areas without an adequate or approved second maintenance plan (i.e., a maintenance plan addressing Clean Air Act section 175A(b)), the Clean Air Act requires that a shortened conformity determination must extend through the latest of the following years: • The first 10-year period of the transportation plan; • The latest year for which the SIP (or FIP) applicable to the area establishes a motor vehicle emission budget; or • The year after the completion date of a regionally significant project if the project is included in the TIP, or the project requires approval before the subsequent conformity determination. These requirements are found in EPA's regulation at § 93.106(d)(2)(i). The final language in § 93.106(d)(2)(i) is consistent with the proposed language, although minor clarifications have been made in response to comments. Specifically, the regulation at § 93.106(d)(2)(i) states, “The shortened timeframe of the conformity determination must extend at least to the latest of the following years.” The proposed wording was, “The shortened timeframe of the conformity determination must be the longest of the following.” The final regulation at § 93.106(d)(2)(i)(B) is also slightly different than proposed, but the same in substance as the proposed rule. This provision now reads, “The latest year for which an adequate or approved motor vehicle emissions budget(s) is established in a submitted or applicable implementation plan” rather than the proposed wording, “The latest year in the submitted or applicable implementation plan that contains an adequate or approved motor vehicle emissions budget(s).” Note that an MPO that has shortened its conformity timeframe does not choose which of these three timeframes it prefers to examine in the conformity determination; it must examine the longest of them. Such an MPO would have to determine which timeframe is the longest for each conformity determination, as the longest timeframe could change from determination to determination, because for example new budgets have been established or new regionally significant projects have been added to the TIP since the previous conformity determination. 2. Rationale and Response to Comments These provisions to allow MPOs to shorten the timeframe covered by a conformity determination are necessary to make the conformity regulation consistent with the law. In SAFETEA-LU, Congress amended the Clean Air Act by adding section 176(c)(7), which allows MPOs to elect to shorten the timeframe of conformity determinations. EPA's regulation at § 93.106(d)(1) requires that conformity determinations cover the timeframe of the transportation plan unless the MPO makes an election to shorten the timeframe. The Clean Air Act section 176(c)(7)(A) specifically states, “Each conformity determination * * * shall require a demonstration of conformity for the period ending on either the final year of the transportation plan, or at the election of the metropolitan planning organization, * * *” a shorter timeframe. EPA's regulation at § 93.106(d)(2)(i), which requires that a shortened timeframe must cover the longest of the three periods specified, also comes directly from the Clean Air Act. Specifically, section 176(c)(7)(A) states that a shortened conformity determination must cover: The longest of the following periods:

(i)The first 10-year period of any such transportation plan.

(ii)The latest year in the implementation plan applicable to the area that contains a motor vehicle emissions budget.

(iii)The year after the completion date of a regionally significant project if the project is included in the transportation improvement program or the project requires approval before the subsequent conformity determination. EPA received several comments in support of the flexibility to shorten the timeframe of the conformity determination. EPA is clarifying the language in § 93.106(d)(2)(i) and § 93.106(d)(2)(i)(B) from the proposal based on the suggestion of three commenters, although the meaning is the same as in the proposal. As a result, the final rule clarifies that the shortened timeframe must extend through the latest year of the three periods. EPA modified some of the commenters' suggested language to be consistent with the statute. The same commenters also suggested we change the language in § 93.106(d)(2)(i)(B) to refer to the latest year for which a budget is established, rather than the latest year that “contains” a budget. EPA has taken this suggestion because this language likewise improves clarity. C. Timeframe of Conformity Determinations in Metropolitan Areas With Second Maintenance Plans 1. Description of Final Rule In areas that have an adequate or approved maintenance plan under Clean Air Act section 175A(b), transportation plan and TIP conformity determinations must cover the timeframe of the transportation plan unless an MPO elects to shorten the timeframe. This requirement is found in § 93.106(d)(1). Section 175A(b) of the Clean Air Act is the provision that describes the submission of a maintenance plan that covers the second ten years of the maintenance period. If an MPO with an adequate or approved second maintenance plan elects to shorten the timeframe, transportation plan and TIP conformity determinations would cover the period of time through the end of the maintenance period, that is, the period of time covered through the second maintenance plan. This period of time is in contrast to the longest of the three periods discussed in Section VI.B. for areas that do not have an adequate or approved second maintenance plan. The regulatory language for shortening the timeframe in areas with second maintenance plans is found in § 93.106(d)(3). 2. Rationale and Response to Comments This rule provision for shortening the conformity timeframe in metropolitan areas with an adequate or approved second maintenance plan results directly from the Clean Air Act as amended by SAFETEA-LU. Clean Air Act section 176(c)(7)(C) specifically says that in areas with a second maintenance plan, a shortened conformity timeframe is “required to extend only through the last year of the implementation plan required under section 175(A)(b)” [sic] rather than the longest of the three periods established in Clean Air Act section 176(c)(7)(A). Several commenters specifically noted their support for this provision. However, one commenter suggested that the proposed language for § 93.106(d)(2)(i) should be revised to be consistent with the fact that the Clean Air Act as amended by SAFETEA-LU allows areas with adequate or approved second 10-year maintenance plans to determine conformity through only the last year of the maintenance plan. EPA's proposed regulation was consistent with the statutory provision for areas with adequate or approved second maintenance plans, and the final rule is as well. EPA believes this commenter may have misread the organization of this section, as we covered areas without second maintenance plans in § 93.106(d)(2), and areas with second maintenance plans in § 93.106(d)(3). D. Process for Elections 1. Description of Final Rule First, before an MPO elects to shorten the conformity timeframe, it has to consult with state and local air quality planning agencies, solicit public comment, and consider those comments. These requirements are found in § 93.106(d)(2). Consultation with the state and local air agencies would occur early in the decision-making process. Second, once an MPO makes an election to shorten the period of time addressed in its transportation plan/TIP conformity determinations, the election remains in effect until the MPO elects otherwise. An MPO would make its election only once for a pollutant or pollutants and any relevant precursors, unless it chooses to elect otherwise in the future. An MPO that has elected to shorten the timeframe of conformity determinations that wants to revert to analyzing the full timeframe of the transportation plan must consult with the state and local air quality agencies, solicit public comments, and consider such comments before doing so. These provisions are found in § 93.106(d)(4). EPA believes that consultation with the state and local air quality agencies on shortening the timeframe would typically occur in the context of the normal interagency consultation process. EPA believes that for this consultation to be meaningful, it needs to occur at an early stage in the decision-making process. Therefore, consultation should occur when the MPO begins to consider shortening the timeframe. For example, it may be appropriate to discuss an election to shorten the conformity timeframe in the preliminary stages of developing the regional emissions analysis. MPOs should follow their normal process for public participation regarding conformity actions when electing to shorten their conformity timeframe. MPOs are not required to revise their public participation/involvement procedures required by 23 U.S.C. 134(i)(5) to address public consultation on shortening the area's conformity timeframe. MPOs are encouraged to make their elections prior to the start of the public comment period for their next conformity determination. Making the election prior to the start of the public comment period for the next conformity determination ensures that the public will understand that future conformity determinations will address a shorter period of time. Doing so will also allow the MPO to develop its next conformity determination in a more efficient manner and avoid running analyses for additional years, as described in the following paragraph. However, there may be instances when an MPO will want to take public comments on the election to shorten the conformity timeframe at the same time that it is taking public comment on a conformity determination. In those cases, the conformity information presented to the public should include both a regional emissions analysis reflecting the election of a shorter timeframe and a regional emissions analysis that reflects the full length of the transportation plan. EPA recommends that both a shortened and a full-length analysis be included so that the MPO can complete its conformity determination according to its desired schedule, even if it receives negative public comment about shortening the timeframe and decides not to do so. 2. Rationale and Response to Comments *General process.* Clean Air Act section 176(c)(7)(A) and

(C)are the sections of the statute that allow elections to shorten the conformity timeframe. Both of these sections allow such elections to be made only “after consultation with the air pollution control agency and solicitation of public comments and consideration of such comments.” The Clean Air Act refers only to consultation with the air agency or agencies and does not require their concurrence. A definition of “air pollution control agency” has been added at Clean Air Act section 176(c)(7)(E), which EPA interprets to mean the relevant state and local air quality agencies that have regularly participated in the conformity consultation process, as discussed in the preamble to the May 2, 2007, proposed rule (72 FR 24480). EPA's regulation states that once an election to shorten the timeframe is made, it would remain in effect until the MPO elects otherwise, because that statement is specifically included in the statute. Clean Air Act section 176(c)(7)(D) states, “Any election by a metropolitan planning organization under this paragraph shall continue to be in effect until the metropolitan planning organization elects otherwise.” *Changing previous elections.* EPA requested comment on two options for the process that MPOs must follow if they have shortened the conformity timeframe and want to revert back to determining conformity for the full length of the transportation plan. Option A would have required MPOs to consult with state and local air agencies and solicit and consider public comment before reverting back to determining conformity for the full length of the transportation plan; Option B would have allowed MPOs to revert to the full timeframe without additional consultation or public comment. EPA is finalizing Option A. As explained in the proposal, Clean Air Act section 176(c)(7)(D) states that a shortened timeframe remains in effect unless an MPO “elects otherwise.” An “election” to shorten the timeframe under section 176(c)(7) requires consultation with the state and local air quality agencies, solicitation of public comment and consideration of any comments received. EPA's interpretation is that an election to revert to determining conformity for the entire length of the transportation plan is an election under this section and therefore also includes consultation with the state and local air pollution control agencies, solicitation of public comment, and consideration of those comments. Since the Clean Air Act uses the same term—“election”—in both subsections, it is reasonable to conclude that the same process should be followed for both actions. However, we expect the resource burden of this requirement to be minimal. MPOs can limit the additional burden of consultation with state and local air agencies and solicitation and consideration of public comment by using procedures developed to meet existing conformity requirements. Consultation with the state and local air quality planning agencies must already occur on the conformity determination within the interagency consultation process. Similarly, the MPO must already seek public comment on the conformity determination, according to the requirements in 40 CFR 93.105(e). By relying on these existing consultation procedures, the MPO could avoid the additional resource costs associated with running another interagency consultation process or full public comment process for electing to revert to the full conformity timeframe. Two trade associations supported Option A, and stated that their members appreciate the opportunity to comment on significant decisions made by MPOs that have the potential to impact transportation projects or an area's ability to move forward with its transportation plans. These commenters thought that the public comment period should occur early in the conformity process so that conformity timing would not be negatively impacted. EPA appreciates these comments and supports the ability of the public to comment on decisions within the transportation conformity process that affect them. A couple of commenters supported Option B, allowing an MPO to revert to a full-plan conformity timeframe without additional consultation or solicitation of public comment. Commenters opined that consultation and public comment are already required by 40 CFR 93.105, and those requirements already ensure that state and local air agencies will be consulted before any decisions are made. While MPOs can use these existing consultation and public comment provisions when reverting to the full transportation plan length timeframe, EPA is finalizing Option A so that MPOs will specifically solicit comment on the length of the conformity timeframe within these existing processes. Other commenters offered an alternative option of using the established interagency consultation process to decide if a new public comment period should be required before an area elects to revert back to determining conformity for the entire timeframe of the transportation plan. The commenters suggested that this option would allow areas the flexibility to decide if a new public comment period is needed, while minimizing resource costs. EPA did not finalize these commenters' suggestion because it would have required MPOs to consult with a more extensive set of agencies to return to the full conformity timeframe than required by the statute when shortening the timeframe in the first place. When an MPO elects to shorten the timeframe, the Clean Air Act requires consultation with the state and local air agencies. Under the commenters' suggestion, before electing to revert to the full timeframe, MPOs would have to consult not only with state and local air agencies, but also EPA, DOT, and state and other local transportation agencies (e.g., transit agencies), because the interagency consultation process includes all of these agencies. This additional consultation is beyond what is required by this section of the statute. As stated above, the existing interagency consultation process can be used to fulfill the requirement for consultation with state and local air quality agencies, because the MPO will be meeting with or speaking to representatives of these agencies in the context of the interagency consultation process. However, EPA believes that consulting with the relevant air agencies within the existing interagency consultation process is different, and less burdensome, than consulting with every agency involved in the interagency process. Second, the statute does not separate the interagency consultation and public comment processes as suggested by the commenters. The Clean Air Act section 176(c)(7) requires both consultation and public involvement whenever a timeframe is shortened, rather than consultation without public involvement. Rather than having agencies decide if the public would benefit by commenting, EPA believes the better interpretation of Congress' intent is to offer the public the opportunity to comment in all cases. *Placement in regulatory text.* EPA is placing the requirements for state and local air quality agency consultation and public comment for shortening the conformity timeframe in § 93.106 because this type of consultation would only occur when the MPO is considering electing to shorten the timeframe. Furthermore, placing these requirements in § 93.106, rather than in 40 CFR 93.105, assures that no states with approved conformity SIPs have to amend them to add this provision. (See Section VII. for more information about the requirements for conformity SIPs.) EPA received no comments about this placement. See the preamble to the May 2, 2007, proposed rule (72 FR 24481) for EPA's full rationale. E. Isolated Rural Nonattainment and Maintenance Areas 1. Description of Final Rule Isolated rural nonattainment and maintenance areas do not have MPOs and are not required to prepare transportation plans or TIPs (40 CFR 93.101). Projects in these areas are generally included in the long-range statewide transportation plan and the statewide TIP. Isolated rural areas are not “donut areas.” 9 9 Donut areas are defined as “geographic areas outside a metropolitan planning area boundary, but inside the boundary of a nonattainment or maintenance area that contains any part of a metropolitan area(s)...” (40 CFR 93.101). The final rule gives isolated rural nonattainment and maintenance areas the flexibility to shorten the conformity timeframe in the same manner as metropolitan areas. The requirements for shortening the conformity timeframe in isolated rural areas are identical to the requirements in metropolitan areas, except the entity that would make the election to shorten the timeframe in an isolated rural area is the state DOT, rather than the MPO. The rule accomplishes this result by including a sentence in § 93.109(l)(2)(i) that says, “When the requirements of § 93.106(d) apply to isolated rural areas, references to “MPO” should be taken to mean the state department of transportation.” 2. Rationale and Response to Comments EPA believes it is appropriate to extend this flexibility to isolated rural areas to be consistent with how the conformity rule has been implemented in isolated rural areas. The Clean Air Act amendment made by SAFETEA-LU allowing areas to shorten their conformity timeframes does not prohibit its use in isolated rural areas. In general, most aspects of the conformity regulation apply consistently to metropolitan and isolated rural areas. Where there are differences, the differences have given isolated rural areas additional flexibility. See the preamble to the May 2, 2007, proposed rule (72 FR 24482) for EPA's full discussion of why EPA concludes it is appropriate to give isolated rural areas the flexibility to shorten their conformity timeframe. Seven commenters supported allowing isolated rural areas to shorten the timeframe of conformity determinations, and none opposed it. Commenters generally agreed with EPA's rationale that Congress did not prohibit extending the flexibility to isolated rural areas, and that these areas are treated much like MPOs throughout the rest of the conformity rule. One commenter noted that extending this flexibility to isolated rural areas will have no impact on project-level requirements in these areas. EPA proposed two options for the entity that would make the election in isolated rural areas: Either the state DOT or the project sponsor, and solicited input on whether there are any other alternatives. Six commenters supported the state DOT option, and two supported the project sponsor option; no alternative entities were suggested. EPA believes that assigning the ability to elect to shorten the conformity timeframe to the state DOT makes the most sense. First, the state DOT prepares the statewide transportation plan and the statewide TIP and therefore in this regard, the state DOT serves a function in an isolated rural area that is similar to an MPO. Two commenters that supported the state DOT option cited this reason as well. Also, the state DOT may be better able to coordinate the consultation necessary to make an election with the state and local air quality planning agencies and with the public than any other entity in an isolated rural area. One commenter noted that given the consultation and public participation requirements associated with preparing transportation planning documents, the state DOT would be in the best position to satisfy similar requirements for electing to shorten the timeframe. Though the state DOT is typically the project sponsor who prepares the conformity determination, several commenters were concerned about the possibility of there being more than one project sponsor in an area. Commenters noted that there may be multiple small entity project sponsors in an area, which could possibly lead to conflicts. A couple of commenters thought that the project sponsor option could result in confusion, inconsistent decisions in a state, and unpredictability. The two commenters that supported the project sponsor option thought that project sponsors would be more closely attuned to local concerns. However, these commenters recognized that if there were multiple project sponsors, conflicts could arise, and recommended that in those cases, the state DOT should have the ability to shorten the timeframe. In considering these comments, EPA solicited input from EPA and DOT field offices, and concluded that in all recent cases, the state DOT is in fact the project sponsor for all FHWA/FTA projects in isolated rural areas. These areas are different than donut areas where county agencies sometimes are the project sponsor. Finally, EPA believes it appropriate to name the state DOT as the entity with the ability to shorten the timeframe in an isolated rural area for specificity, because the state DOT is already relied upon in the conformity rule and guidance for isolated rural area conformity requirements. F. Specific Analysis Requirements Under a Shortened Timeframe 1. Description of Final Rule EPA is including most of the necessary regulatory language for shortening the conformity timeframe within § 93.106, and is also updating §§ 93.118 and 93.119. Note that these provisions apply to both metropolitan and isolated rural areas. • First, § 93.106 is being renamed as “Content of transportation plans and timeframe of conformity determination.” • Second, § 93.106(a)(1) is being amended to update the horizon years that apply when an area shortens the conformity timeframe. (Section 93.106(a)(1) only applies to serious, severe or extreme ozone and serious CO nonattainment areas with urbanized populations greater than 200,000.) • Third, EPA is updating §§ 93.118 and 93.119 to indicate that particular years must be analyzed only if they are in the conformity timeframe and to include the requirements for any needed informational analyses. *Areas that use the budget test.* In areas that have budgets that choose to shorten the timeframe, the requirements for demonstrating consistency with budgets, and analyzing specific years, are similar to requirements that have existed, and still exist, for areas that determine conformity for the full length of the transportation plan. Under a shortened timeframe, consistency with, and an analysis for, the attainment year is necessary only if the attainment year is both within the timeframe of the transportation plan and conformity determination. In addition, under a shortened timeframe, instead of analyzing the last year of the transportation plan for the conformity determination, the analysis must be done for the last year of the shortened timeframe. In areas that do not have an adequate or approved second maintenance plan budget, the conformity determination must also be accompanied by a regional emissions analysis for the last year of the transportation plan, as well as for any year where the budgets were exceeded in a previous regional emissions analysis if that year is later than the shortened conformity timeframe. These regional emissions analyses must be done in a manner consistent with how the budget test is performed and all relevant requirements of the transportation conformity regulation (e.g., 40 CFR 93.110, 93.111, and 93.122). However, these analyses would be for informational purposes only, and emissions would not have to meet the budgets in these years. Documentation of any informational analysis should clearly state that its purpose is informational only, and that conformity is not required to be demonstrated for the last year of the transportation plan or any year where the budgets were exceeded in a previous regional emissions analysis if that year is later than the shortened conformity timeframe. There is no similar requirement for information-only analyses in areas with an adequate or approved second maintenance plan budget, for the reasons described below. *Areas that use the interim emissions tests.* In areas that do not have budgets and use the interim emissions tests, the requirements for analysis years in areas that shorten their conformity timeframe are similar to the requirements in § 93.119 that have applied and still apply under a full transportation plan-length conformity determination. Under a shortened timeframe, instead of analyzing the last year of the transportation plan, the analysis would be done for the last year of the shortened timeframe. The conformity determination must be accompanied by a regional emissions analysis for the last year of the transportation plan in areas that use the interim emissions tests. This regional emissions analysis would be for informational purposes only, and must be done in a manner consistent with all relevant requirements of the transportation conformity regulation (e.g., 40 CFR 93.110, 93.111, and 93.122). Note that there is no requirement for an informational regional emissions analysis for years where the interim tests were not met in a previous regional analysis, as there is for areas that use the budget test that do not have adequate or approved second maintenance plans. EPA proposed three options for the informational analysis for the last year of the transportation plan in areas that use the interim emissions tests: To compare estimated emissions to the interim emissions test(s) used in the conformity determination (Option X), to compare estimated emissions to either interim emissions test (Option Y), or just to estimate emissions without comparing them to either test (Option Z). EPA is finalizing Option Z. While the final rule requires only an estimate of regional emissions for the transportation system that would exist in the last year of the transportation plan, EPA encourages MPOs and state DOTs to present this informational analysis in context so that it is truly informative for members of the public or state and local air agencies who are reviewing it. One possible way of doing so is to present a summary table of all of the years for which an analysis was run, including both the years analyzed in the conformity determination and the last year analyzed for informational purposes only. Another possible method would be to present a comparison with the emissions level from the baseline year (e.g., 2002), as is done for the baseline year test under 40 CFR 93.119. Furthermore, it would also be acceptable for an area to complete the build/no-build test as well, if desired. Documentation of any informational analysis should clearly state that its purpose is informational only, and that conformity is not required to be demonstrated for the last year of the transportation plan. 2. Rationale and Response to Comments *General.* EPA has made these changes to the conformity regulation because SAFETEA-LU has amended the Clean Air Act to allow MPOs to shorten their conformity timeframes. EPA is implementing the specific requirements of the new Clean Air Act provision in today's regulatory changes. These changes for required analysis years for conformity determinations with shortened timeframes are generally consistent with what has been current practice when conformity is determined for the full length of the transportation plan. Given that the statute did not specify the years that must be analyzed in a conformity determination with a shortened timeframe, EPA reasonably concluded that the existing conformity requirements should apply. Therefore, in areas that use the budget test, a shortened conformity determination would have to include the attainment year if it is in the timeframe of the conformity determination, similar to the existing requirement to include the attainment year if it is in the timeframe of the transportation plan. In areas that use the interim emissions test, a shortened conformity determination would include an analysis year no more than five years into the future, just as full-length conformity determinations do. In addition, regardless of the test used under a shortened timeframe, the last year of the conformity determination would need to be analyzed. This requirement is similar to the existing one to analyze the last year of the transportation plan. Likewise, under a shortened timeframe, analysis years would be no more than ten years apart, just as under a full-length conformity determination. No comments were received on these general provisions. *Areas that use the budget test.* If the conformity timeframe is shortened in an area that does not have an adequate or approved second maintenance plan, EPA's regulation requires that the conformity determination be accompanied by an informational analysis. The rule language for the regional emissions analysis for the last year of the transportation plan, and for any year where the budgets were exceeded in a previous regional emissions analysis if that year is later than the shortened conformity timeframe, is also based in the new statutory language. Clean Air Act section 176(c)(7)(B) requires that the conformity determination “be accompanied by a regional emissions analysis” for these years. Absent a definition for “regional emissions analysis” in the statute, EPA assumes that the phrase has its usual meaning in the context of transportation conformity. Therefore, these analyses need to be done in a manner consistent with all the general requirements of the conformity regulations for such analyses. This same statutory language is the reason that these analyses do not need to meet the required conformity tests. The statutory language makes it clear that these emissions analyses only “accompany” the conformity determination, and thus are not part of the conformity determination. Therefore, EPA concludes that conformity need not be demonstrated with respect to these analyses. *Areas that use the interim emissions tests.* In areas that use the interim emissions tests, an informational analysis is required only for the last year of the transportation plan. In contrast, areas that use budgets also must do an informational analysis for any years that exceeded the budgets in a prior analysis. Such years would be years that extended beyond the shortened timeframe of prior conformity determinations, which were analyzed for informational purposes only. This result is because Clean Air Act section 176(c)(7)(B) states that these information-only regional emissions analyses are to be done “for the last year of the transportation plan and for any year shown to exceed emissions budgets by a prior analysis, if such year extends beyond” the end of the shortened timeframe. Areas subject to the interim emissions tests for a given pollutant or precursor do not have budgets for that pollutant or precursor. Therefore, there will not be any years for which a prior analysis shows the budget will be exceeded, and as such there is no statutory requirement for these areas to perform an informational regional emissions analysis for any year other than the last year of the transportation plan. EPA requested comment on three options for what an information-only regional emissions analysis would consist of in an area that uses the interim emissions test. Option X would have required that emissions be compared to the same interim emissions test (i.e., build/no-build and/or the baseline year test(s)) as is used in the conformity determination. Option Y would have required that emissions be compared to either interim emissions test. Option Z, which we finalized, requires simply the estimate of emissions in the last year of the transportation plan with no comparison to either interim emissions test. The statutory language is ambiguous regarding the information-only regional emissions analysis prior to the establishment of SIP budgets. Section 176(c)(7)(B) states that the regional emissions analysis that accompanies the conformity determination must be performed for the last year of the transportation plan, but does not specify that the interim emissions tests be conducted. The Congressional report language for this section states, “Generating this information will be helpful in ensuring that conformity is maintained,” 10 but does not include any direction on how this goal should be met in those areas that use the interim emissions tests. 10 Joint Explanatory Statement of the Committee of Conference, “Section 6011, Transportation Conformity,” p. 1059. Five commenters provided opinions on these options. One commenter preferred Option X (i.e., to use the same test(s) as in the conformity determination) because it involves use of similar information to that presented elsewhere in the determination. This commenter thought that presenting the estimate of emissions in context of the interim emissions tests is helpful in informing state and local agencies and the public about future emissions trends, and is consistent with the intent of Congress. The remaining four commenters preferred Option Z. Some of these commenters thought that comparisons to the interim emissions tests could be confusing to stakeholders if a test is not met for the informational analysis. One of these commenters thought that EPA should allow for the presentation of these results at the discretion of the MPO and state DOT after interagency consultation. This commenter thought that states and MPOs understand the local context for transportation conformity and are best suited for determining what information should be presented for the last year of the transportation plan under a shortened timeframe. As described above, EPA is finalizing Option Z to be consistent with the statute, which does not require that the interim emissions tests be performed for informational purposes. Under the final rule, MPOs and state DOTs have the discretion in presenting the results of the informational analysis for the last year of the transportation plan, and EPA encourages them to provide useful information to other involved agencies and the public. See Section F.1. above for additional suggestions on how to present such analyses to the public. *Areas with second maintenance plans that shorten their conformity timeframe.* No information-only analyses is required in areas with an adequate or approved second maintenance plan, given Clean Air Act section 176(c)(7)(C). The statute labels this section, which applies to areas that have an adequate or approved second maintenance plan, as “Exception.” EPA interprets section 176(c)(7)(C) to mean that areas with adequate or approved second maintenance plans that shorten their conformity timeframe do not have to comply with the requirements of Clean Air Act section 176(c)(7)(A) or (B), and section 176(c)(7)(C) itself does not require any informational analyses. Therefore, areas with a second maintenance plan that shorten their conformity timeframe do not have to perform a regional emissions analysis for the last year of their transportation plans, or for a year shown to exceed budgets by a prior analysis, as required by Clean Air Act section 176(c)(7)(B) for other areas that have shortened their timeframe. EPA received no comments on this particular point. VII. Conformity SIPs A. Description of Final Rule EPA is changing 40 CFR 51.390 to streamline the requirements for state conformity SIPs. A conformity SIP is different from a control strategy SIP or maintenance plan, as a conformity SIP only includes state conformity procedures and not motor vehicle emissions budgets or air quality demonstrations. EPA is finalizing requirements for states to submit conformity SIPs that address only the following sections of the pre-existing federal rule. These three sections that need to be tailored to a state's individual circumstances: • 40 CFR 93.105, which addresses consultation procedures; • 40 CFR 93.122(a)(4)(ii), which states that conformity SIPs must require that written commitments to control measures be obtained prior to a conformity determination if the control measures are not included in an MPO's transportation plan and TIP, and that such commitments be fulfilled; and • 40 CFR 93.125(c), which states that conformity SIPs must require that written commitments to mitigation measures be obtained prior to a project-level conformity determination, and that project sponsors comply with such commitments. Prior to SAFETEA-LU, states were required to address these provisions as well as all other federal conformity rule provisions in their conformity SIPs. The rule had previously required states' conformity SIPs to include most of the sections of the federal rule verbatim. In addition, EPA is also deleting the requirement for states to submit conformity SIPs to DOT. States must continue to submit conformity SIPs to EPA. EPA is also reorganizing the conformity SIP regulatory language to improve clarity and readability. The regulatory language in § 51.390 is re-ordered to more naturally fall into three topics: Purpose and applicability, conformity implementation plan content, and timing and approvals. The language retains existing requirements with appropriate modifications based on the new Clean Air Act amendment from SAFETEA-LU. B. Rationale and Response to Comments EPA is primarily changing § 51.390 to make the transportation conformity regulation consistent with the law, which has been in effect since August 10, 2005. In SAFETEA-LU, Congress amended the Clean Air Act so that states are no longer required to adopt much of the federal transportation conformity rule into their SIPs. Instead, Clean Air Act section 176(c)(4)(e) now requires states to include in their conformity SIPs: Criteria and procedures for consultation required by subparagraph (D)(i), and enforcement and enforceability (pursuant to section 93.125(c) and 93.122(a)(4)(ii) of title 40, Code of Federal Regulations) in accordance with the Administrator's criteria and procedures for consultation, enforcement, and enforceability. Subparagraph (D)(i) in Clean Air Act section 176(c)(4) requires EPA to write regulations that address consultation procedures to be undertaken by MPOs and DOT with state and local air quality agencies and state DOTs before making conformity determinations. EPA's regulations governing consultation are found at 40 CFR 93.105. Therefore, in effect the statute now requires states to address and tailor only the three sections of the conformity rule noted above in their conformity SIPs. EPA believes that the new conformity SIP requirements will reduce the administrative burden for state and local agencies significantly, because the new requirements will result in fewer required conformity SIP revisions in most areas. Four commenters supported these changes. Three commenters specifically agreed that these changes streamline the conformity SIP process and preclude the need for a state to update its conformity SIP each time the federal rule is revised. These commenters requested that EPA urge states to include only the three required sections in their conformity SIPs to minimize the possibility of having to revise the SIP when the federal rule is updated. EPA agrees with this point. However, the fourth commenter also requested that states still be able to incorporate the rest of the transportation conformity rule by reference. This option is further discussed in Section D.2 below. EPA is removing the requirement for states to submit conformity SIPs to DOT to be consistent with SAFETEA-LU's changes. In revising the Clean Air Act's previous conformity SIP requirements, Congress did not retain the previous requirement that “each State shall submit to the Administrator and the Secretary of Transportation * * * a revision to its implementation plan * * *.” The new statutory language in Clean Air Act section 176(c)(4)(E) does not include this previous requirement, and therefore, we are removing this requirement to reduce state and local air agency processing of their conformity SIPs. However, EPA does not believe that this proposal will substantively change DOT's involvement in conformity SIP development. This does not change the existing conformity rule's requirement that EPA provide DOT with a 30-day comment period on conformity SIP revisions. The re-organizational changes to § 51.390 are for clarity and readability and not related to changes in the law. EPA is making these changes to make this section more user-friendly, and the changes do not affect the substance of the pre-existing regulatory requirements. C. How Does the Final Rule Impact States? 1. Areas That Have Never Submitted a Conformity SIP States that have never submitted a conformity SIP are required to address only the three provisions noted above in their conformity SIPs according to any existing conformity SIP deadline (see D. of this section below). 2. Areas That Have Submitted a Conformity SIP That Was Never Approved In some cases, states have submitted conformity SIPs to EPA for approval, but EPA has not yet acted on them. These states can write their EPA Regional Office and request that EPA approve only the three provisions that are required to be included in their SIPs and that EPA take no action on the remainder of the submission. States can also leave the full conformity SIP pending before EPA for rulemaking action. However, if EPA approves the full SIP, states could not apply any subsequent changes that EPA makes to the federal rule without first revising their state conformity SIP and obtaining EPA's approval. 3. Areas With Approved Conformity SIPs States with EPA-approved conformity SIPs that decide to eliminate the provisions that are no longer mandatory would need to revise the SIP to eliminate those provisions. EPA would have to approve the changes to a state's conformity SIP through the **Federal Register** rulemaking process. Such a SIP revision should not be controversial because the provisions are no longer required by the Clean Air Act as amended by SAFETEA-LU. In addition, their elimination from a state's conformity SIP would not change conformity's implementation in practice because the federal conformity rule applies for any provision not addressed in a state's conformity SIP. States are encouraged to work with their EPA Regional Office as early in the process as possible to ensure the SIP submission meets all requirements and is fully approvable. 4. Areas That Submit a Partial Conformity SIP A state may choose to submit a conformity SIP that addresses only one or two of the three required sections of the federal rule. In this situation, EPA could approve the submitted section(s) if it sufficiently addresses the requirement it is intended to fulfill. However, the Clean Air Act as amended by SAFETEA-LU requires states to address all three sections in their conformity SIP, so a state that addresses only one or two of the requirements would still have an outstanding requirement. D. When Are Conformity SIPs Due? SAFETEA-LU did not create any new deadlines for conformity SIPs. Any nonattainment or maintenance area that has missed earlier deadlines to submit conformity SIP revisions (e.g., after previous conformity rulemakings, or new nonattainment designations) continues to be subject to these previous deadlines, but only in regard to the three provisions now required by the Clean Air Act. Two scenarios are described below. 1. Areas With Conformity SIPs That Address Only the Three Required Provisions Once a state has an approved conformity SIP that addresses only the three sections that the Clean Air Act now requires, the state would need to revise its conformity SIP only if EPA revises one of these sections of the conformity rule, or the state chooses to revise one of these three provisions. Any future changes to the federal conformity rules beyond these three provisions would apply in any state that has only these three provisions in its approved conformity SIP, and these changes would not need to be adopted into the state's SIP. 2. Areas That Choose To Either Retain or Submit Additional Sections of the Conformity Rule A state with a previously approved conformity SIP may decide to retain all or some of the federal rule in its SIP or a state without an approved conformity SIP could choose to submit for EPA approval all or some of the other sections of the federal rule. As noted above, one of the commenters expressly asked that EPA retain this option presumably so its state could avoid revising its conformity SIP. In such a case, the state should be aware that the conformity determinations in the state continue to be governed by the state's approved conformity SIP. Such a state would need to revise its conformity SIP when EPA makes changes to the federal rule in order to have those changes apply in the state. As stated earlier, EPA strongly encourages states to only include the three required provisions in a conformity SIP to take advantage of the streamlining flexibilities provided for by the Clean Air Act, as amended by SAFETEA-LU. EPA is updating our previous guidance on conformity SIPs. The guidance will be available on EPA's Web site at: *http://www.epa.gov/otaq/stateresources/transconf/policy.htm.* State and local agencies that need to prepare a conformity SIP should review this guidance and consult with the appropriate EPA Regional Office. VIII. Transportation Control Measure Substitutions and Additions SAFETEA-LU section 6011(d) amended the Clean Air Act by adding a new section 176(c)(8) that establishes specific criteria and procedures for replacing TCMs in an approved SIP with new TCMs and adding TCMs to an approved SIP. EPA is revising the definition of a TCM in § 93.101 to clarify that TCMs as defined for conformity purposes also include any TCMs that are incorporated into the SIP through this new TCM substitution and addition process. However, EPA has determined that no additional revision of the transportation conformity regulations is necessary to implement the TCM substitution and addition provision. EPA did not receive any comments on this portion of the proposed rulemaking. EPA concluded no implementing regulations are necessary for the reasons explained in the preamble to the May 2, 2007 proposed rule (72 FR 24485-6). EPA is updating our previous guidance on TCM substitutions and additions. The guidance will be available on EPA's Web site at: *http://www.epa.gov/otaq/stateresources/transconf/policy.htm.* This guidance is consistent with the TCM substitution and additions portion (Section 5) of the EPA-DOT February 2006 Interim Guidance for implementing SAFETEA-LU. State and local agencies considering TCM substitutions or additions should review this guidance and consult with the appropriate EPA Regional Office. Clean Air Act section 176(c)(8) requires that the EPA Administrator consult and concur on TCM substitutions and additions. However, as has been done with most other responsibilities related to the approval of SIP revisions, the Administrator has delegated this authority to the Regional Administrators. On September 29, 2006, the EPA Administrator signed a delegation of authority (Delegation of Authority 7-158: Transportation Control Measure Substitutions and Additions) providing EPA Regional Administrators with the authority to consult and concur on TCM substitutions and additions. The delegation of authority allows the Regional Administrators to further delegate these responsibilities to the regional air division directors, but no further. IX. Categorical Hot-Spot Findings for Projects in Carbon Monoxide Nonattainment and Maintenance Areas A. Background Since the initial conformity rule was promulgated in 1993, a hot-spot analysis has been required for all project-level conformity determinations in CO nonattainment and maintenance areas (40 CFR 93.116 and 93.123(a)). A CO hot-spot analysis is an estimation of likely future localized pollutant concentrations and a comparison of those concentrations to the CO national ambient air quality standards (“standards”) (40 CFR 93.101). A hot-spot analysis assesses air quality impacts on a scale smaller than the entire nonattainment or maintenance area, such as a congested roadway intersection. A CO hot-spot analysis must show that a non-exempt FHWA/FTA project does not cause any new violations of the CO standards or increase the frequency or severity of existing violations (40 CFR 93.116(a)). Until a CO attainment demonstration or maintenance plan is approved, non-exempt FHWA/FTA projects must also eliminate or reduce the severity and number of localized CO violations in the area substantially affected by the project (40 CFR 93.116(b). These existing requirements remain unchanged by today's final rule. The type of CO hot-spot analysis varies depending on the type of project involved. Section 93.123(a)(1) requires quantitative hot-spot analyses for projects of most concern; section 93.123(a)(2) requires either a quantitative or qualitative hot-spot analysis for all other projects. These existing requirements also remain unchanged by today's final rule. Hot-spot analyses are also required for certain projects in PM 2.5 and PM 10 nonattainment and maintenance areas. The conformity rule allows DOT, in consultation with EPA, to make a “categorical hot-spot finding” in PM 2.5 and PM 10 nonattainment and maintenance areas if there is appropriate modeling that shows that a particular category of highway or transit projects will meet applicable Clean Air Act conformity requirements without further analysis (40 CFR 93.123(b)(3)). If DOT makes such a finding, then no further hot-spot analysis to meet 40 CFR 93.116(a) is needed for any project that fits the category addressed by the finding. A project sponsor would simply reference a categorical hot-spot finding in the project-level conformity determination to meet hot-spot analysis requirements. See EPA's March 10, 2006, final rule for further information (71 FR 12502-12506) on categorical hot-spot findings in PM 2.5 or PM 10 areas. B. Description of Final Rule EPA is extending the categorical hot-spot finding provision that applies in PM areas to CO nonattainment and maintenance areas in today's final rule. This provision allows DOT, in consultation with EPA, to make categorical hot-spot findings for appropriate cases in CO nonattainment and maintenance areas if appropriate modeling shows that a type of highway or transit project does not cause or contribute to a new or worsened local air quality violation of the CO standards, as required under 40 CFR 93.116(a). 11 The regulatory text for this provision is found in § 93.123(a)(3). 11 As discussed further below, categorical hot-spot findings under the proposal could not be used to meet 40 CFR 93.116(b) requirements in the limited number of CO areas without approved attainment demonstrations or maintenance plans. Any DOT categorical hot-spot finding would have to be supported by a credible quantitative modeling demonstration showing that all potential projects in a category satisfy statutory requirements without further hot-spot analysis. Such modeling would need to be derived in consultation with EPA, and consistent with EPA's existing CO quantitative hot-spot modeling requirements, as described in 40 CFR 93.123(a), and approved emissions model requirements in 40 CFR 93.111. Modeling used to support a categorical hot-spot finding could consider the emissions produced from a category of projects based on potential project sizes, configurations, and levels of service. Modeling could also consider the emissions produced by a category of projects and the resulting impact on air quality under different circumstances. The new provision does not affect the requirement for conformity determinations to be completed for all non-exempt projects in CO areas. The modeling on which a categorical finding is based would serve to fulfill the hot-spot analysis requirements for qualifying projects. The modeled scenarios used by DOT to make categorical hot-spot findings would be derived through consultation and participation by EPA. Existing interagency consultation procedures for project-level conformity determinations also must be followed (40 CFR 93.105). Any project-level conformity determination that relies on a categorical hot-spot finding is also still subject to existing public involvement requirements, during which commenters could address all appropriate issues relating to the categorical findings used in the conformity determination. See D. of this section for further information on how EPA and DOT will implement this new provision. C. Rationale and Response to Comments EPA believes it is both appropriate and in compliance with the Clean Air Act for DOT to be able to make categorical hot-spot findings where modeling shows that such projects will not cause or contribute to new or worsened air quality violations. As long as modeling shows that all potential projects in a category meet the current conformity rule's hot-spot requirements (40 CFR 93.116(a))—either through an analysis of a category of projects or a hot-spot analysis for a single project—then certain Clean Air Act conformity requirements are met. Clean Air Act section 176(c)(1)(B) is the statutory criterion that must be met by all projects in CO nonattainment and maintenance areas that are subject to transportation conformity. Section 176(c)(1)(B) states that federally-supported transportation projects must not “cause or contribute to any new violation of any standard in any area; increase the frequency or severity of any existing violation of any standard in any area; or delay timely attainment of any standard or any required interim emission reductions or other milestones in any area.” EPA has not amended the existing CO hot-spot requirements in 40 CFR 93.116(a) that ensure areas meet Clean Air Act section 176(c)(1)(B) requirements. Today's provision for DOT to make categorical hot-spot findings simply allows future information to be taken into account in an expedited manner, so that further CO hot-spot analyses are not performed on an individual basis for projects where it is determined to be unnecessary to meet certain statutory requirements. Making hot-spot findings for certain projects on a category basis may reduce the resource burden for state, regional and local agencies, and provide greater certainty and stability to the transportation planning process, while still ensuring that all projects meet Clean Air Act requirements. As noted above, CO categorical hot-spot findings under today's final rule could not be used to meet an additional hot-spot requirement for CO areas without approved attainment demonstrations or maintenance plans. Clean Air Act section 176(c)(3)(B)(ii) requires projects in these CO areas to also “eliminate or reduce the severity and number of violations of the carbon monoxide standards in the area substantially affected by the project.” This criterion is stipulated by 40 CFR 93.109(f)(1) and 93.116(b) for FHWA/FTA projects in these CO areas. EPA believes that this criterion is more appropriately met by evaluating the unique circumstances of an individual project, rather than based on a broader analysis of a category of projects. Since most CO areas already have approved attainment demonstrations or maintenance plans, there should be limited practical impact of this aspect of today's proposal. Six commenters supported this provision. These commenters agreed that allowing DOT to make categorical hot-spot findings, in consultation with EPA, provides an opportunity to streamline hot-spot analyses in all CO areas for certain projects. Additionally, commenters thought these categorical hot-spot findings would be consistent with the practice in many states already, and would reduce resource burdens while still ensuring that projects meet Clean Air Act requirements. Some commenters thought that allowing DOT to make categorical hot-spot findings in CO areas would offer flexibility in satisfying the intent of the Clean Air Act. A commenter recognized that categorical hot-spot findings would have to be supported by credible quantitative modeling, and the scenarios modeled by DOT to make categorical findings would be derived through consultation and participation by EPA. EPA notes that the commenter's understanding is correct; see Section IX.D. below for further description of how modeling would be developed. While six commenters supported allowing DOT to make categorical hot-spot findings for projects in CO areas, one commenter was concerned that the provision to allow U.S. DOT to make categorical hot-spot findings would be a requirement, rather than an option. This provision is an optional flexibility and not a requirement. Once DOT has made a finding for a category of projects, a sponsor of a project in that category can choose whether to rely on DOT's modeling, or do its own project-level analysis. In other words, a project sponsor can always decide to do its own project-level analysis, even for a project that belongs to a category that DOT has already analyzed. This same commenter thought that this provision is unnecessary. The commenter thought that the similar provision that applies in PM areas was created because of uncertainties regarding PM and because interagency consultation is needed to determine which projects are “projects of air quality concern” and what constitutes a “significant number of diesel vehicles.” This commenter also opined that the PM provision for categorical hot-spot analyses was developed because there are not acceptable modeling tools for PM 2.5 or PM 10 . In contrast, the commenter explained that the parameters used to identify the need for a CO hot-spot analysis are clearly stated under § 93.123(a), and the technology for CO hot-spot analyses is accepted by EPA and FHWA. EPA disagrees with the commenter and believes it is useful to have a provision for categorical hot-spot analyses in CO areas. This provision will be useful because all non-exempt projects in CO areas that belong to a category for which DOT has made a hot-spot finding will have a hot-spot analysis available for use in future conformity determinations. As noted above, project sponsors have discretion on whether they want to model each project even if DOT has already made a categorical hot-spot finding for projects of that type. This same commenter also stated that interagency consultation on CO analyses simply adds a layer of costly and inefficient bureaucracy that is unnecessary to complete the analysis. EPA disagrees with the commenter on this point as well. No additional layer of bureaucracy will be added to project-level conformity determinations in CO areas as a result of this provision. EPA and DOT's coordination on modeling for categorical hot-spot findings will occur separately from any particular project's conformity determination. D. General Implementation for Categorical Hot-Spot Findings EPA and DOT will implement the CO categorical hot-spot finding provision similar to the implementation of PM 2.5 and PM 10 categorical hot-spot findings, as described in the March 10, 2006, final rule. A project-level conformity determination continues to be required for all non-exempt FHWA/FTA projects in CO areas. Modeling used to support a categorical hot-spot finding would be based on appropriate motor vehicle emissions factor models, dispersion models, and EPA's existing requirements for quantitative CO hot-spot modeling as specified in 40 CFR 93.123(a)(1) (40 CFR part 51, Appendix W (Guideline on Air Quality Models)). Categorical hot-spot findings and modeling to support such findings would primarily involve EPA and DOT headquarters offices rather than field offices. Such coordination at the headquarters level will ensure national consistency in applying § 93.123(a)(3) and (b)(3). In the March 2006 final rule (71 FR 12505), EPA and DOT described the general process for categorical hot-spot findings to be as follows: • FHWA and/or FTA, as applicable, would develop modeling, analyses, and documentation to support the categorical hot-spot finding. This would be done with early and comprehensive consultation and participation with EPA. • FHWA and/or FTA would provide EPA an opportunity to review and comment on the complete categorical hot-spot finding documentation. Any comments would need to be resolved in a manner acceptable to EPA prior to issuance of the categorical hot-spot finding. Consultation with EPA on issue resolution would be documented. • FHWA and/or FTA would make the final categorical hot-spot finding in a memorandum or letter, which would be posted on EPA's and DOT's respective conformity Web sites. Subsequently, transportation projects that meet the criteria set forth in the categorical hot-spot finding would reference that finding in their project-level conformity determination, which would be subject to interagency consultation and the public involvement requirements of the National Environmental Policy Act

(NEPA)process and the conformity rule (40 CFR 93.105(e)). The existing consultation and public involvement processes would be used to consider the categorical hot-spot finding for a particular project. X. Removal of Regulation 40 CFR 93.109(e)(2)(v) A. Description of Final Rule EPA is removing a provision of the transportation conformity rule that was vacated by the U.S. Court of Appeals for the District of Columbia Circuit ( *Environmental Defense* v. *EPA, et al., D.C. Cir. No. 04-1291* ) on October 20, 2006. This provision, 40 CFR 93.109(e)(2)(v), allowed 8-hour ozone areas to use the interim emissions test(s) for conformity instead of 1-hour ozone SIP budgets where the interim emissions test(s) was determined to be more appropriate to meet Clean Air Act requirements. The court vacated this provision and remanded it to EPA. B. Rationale and Response to Comments As discussed in the July 1, 2004, preamble (69 FR 40025), EPA anticipated that this provision would be used infrequently but that there would be some cases where using the interim emissions test(s) would be more appropriate to meet Clean Air Act requirements. Because of the court's decision on this provision, 8-hour ozone areas can no longer rely on § 93.109(e)(2)(v) to use an interim emissions test(s) instead of using 1-hour ozone budget(s). Areas must now use all relevant existing 1-hour ozone budgets in future conformity determinations until 8-hour ozone emissions budgets are found adequate or are approved for a given analysis year. EPA received one comment agreeing that the removal is consistent with the court ruling. The court's decision has minimal impact since most 8-hour ozone areas are already either using their 1-hour or 8-hour ozone SIP budgets. EPA, in cooperation with DOT, has already provided assistance to the limited number of areas affected by the recent court decision. XI. Miscellaneous Revisions A. Minor Revision to § 93.102(b)(4) EPA is making a minor revision to § 93.102(b)(4), which addresses the period of time that transportation conformity applies in maintenance areas. This is the period of time during which the requirements of the conformity rule apply in an area, and not the timeframe any one conformity determination examines, as discussed in Section VI., “Timeframes for Conformity Determinations.” Section 93.102(b)(4) had previously stated that conformity applied in “maintenance areas for 20 years from the date EPA approves the area's request under section 107(d) of the CAA for redesignation to attainment, unless the applicable implementation plan specifies that the provisions of this subpart shall apply for more than 20 years.” We are clarifying this section to ensure that conformity would apply in maintenance areas through the last year of their approved Clean Air Act section 175A(b) maintenance plan (i.e., the area's second 10-year maintenance plan), unless the applicable implementation plan specifies that conformity would continue to apply beyond the end of that maintenance plan. We received two comments that supported this clarification. EPA is only clarifying § 93.102(b)(4) because the previous regulation may have been read to not account for the situation where a maintenance area submits a second maintenance plan that establishes a budget for a year more than 20 years beyond the date of EPA's approval of the area's redesignation request and first maintenance plan. For example, suppose an area's redesignation request and first maintenance plan are approved in 2006 and the maintenance plan establishes budgets for 2016. This area submits a second maintenance plan that extends through 2030 and establishes budgets for that year. Under the previous regulatory language, conformity applied in this area “for 20 years from the date EPA approves” the area's redesignation to maintenance, i.e., until 2026, despite the fact that the area would have budgets for 2030. This result would have been inconsistent with the Clean Air Act, which requires that transportation activities conform to the SIP. EPA's clarification that conformity applies through the last year of the approved second maintenance plan ensures that conformity applies throughout the time period covered by the SIP budgets. In this example, conformity would apply until 2030. This revision will not change the implementation of conformity requirements in maintenance areas. The Clean Air Act requires that maintenance plans cover a period of 20 years from the year that EPA approves the area's redesignation request. With this change in the regulation, conformity would continue to apply in maintenance areas for at least 20 years beyond the date of EPA's redesignation of an area to maintenance. This clarification is consistent with EPA's intention as expressed in the preamble to the 1993 final transportation conformity rule, which stated, “If the maintenance plan establishes emissions budgets for more than twenty years, the area would be required to show conformity to that maintenance plan for more than twenty years” (58 FR 62206). B. Technical Corrections to §§ 93.102(b)(2)(v) and 93.119(f)(10) EPA is making corrections to §§ 93.102(b)(2)(v) and 93.119(f)(10) to change “sulfur oxides” to “sulfur dioxide” and “SO X ” to “SO 2 .” In the May 6, 2005, transportation conformity final rule (70 FR 24279), EPA finalized requirements for PM 2.5 precursors. In that final rulemaking, we included “sulfur oxides” as one of the precursors and referred to sulfur oxides as SO X . Since that rulemaking was finalized, EPA has finalized the PM 2.5 implementation rule (72 FR 20586) and indicated that sulfur dioxide (SO 2 ) would be regulated as a PM 2.5 precursor rather than all sulfur oxides. We are making these corrections to the transportation conformity rule in order to make it consistent with EPA's broader PM 2.5 implementation strategy. We received two comments that supported these corrections. This change will not impact current conformity practice. C. Revisions to “Table 2—Exempt Projects” in § 93.126 EPA is making several minor clarifications to “Table 2—Exempt Projects” in § 93.126, under the category of “Safety.” Specifically, EPA is updating the following terms: • “Hazard elimination program” is now “Projects that correct, improve, or eliminate a hazardous location or feature;” • “Safety improvement program” is now “Highway Safety Improvement Program implementation;” and • “Pavement marking demonstration” is now “Pavement marking.” EPA is updating these terms to make them consistent with the terms in 23 U.S.C. 148, which has been amended by SAFETEA-LU section 1401. These revisions to Table 2 of the conformity regulation do not change the types of safety projects that are exempt from transportation conformity requirements. These revisions would only update the terminology to be consistent with the changes made by SAFETEA-LU to 23 U.S.C. 148. For more details see Section XI. C. “Revisions to ‘Table 2—Exempt Projects’ in § 93.126” in the May 2, 2007, notice of proposed rulemaking (72 FR 24488). We received five comments on this portion of the proposal. Several of the commenters indicated that they support the changes to the list of exempt projects. One commenter asked if EPA had considered revising the list of exempt projects in 40 CFR 93.126 to further clarify the types of projects that are exempt or non-exempt under “Transportation Enhancement Activities.” FHWA's guidance on activities that may be funded with Transportation Enhancement Activities is available on DOT's Web site at: *http://www.fhwa.dot.gov/environment/te/guidance.htm#eligible.* After reviewing this guidance, we have concluded that 40 CFR 93.126 is correct and additional changes are not required. Some commenters recommended additions to the list of exempt projects in § 93.126. Given that we did not propose and request public comment on these additional changes to the list of exempt projects, these comments are outside the scope of today's rulemaking. D. Definitions Today's final rule revises the definitions of “metropolitan planning organization (MPO)” and “transportation improvement program (TIP)” to reflect the definitions in SAFETEA-LU sections 3005(a) and 6001(a). Pursuant to SAFETEA-LU, the term “MPO” now refers to the policy board for the organization that is designated under 23 U.S.C. 134(d) and 49 U.S.C. 5303(d). EPA is revising the definitions of these terms in § 93.101 to be consistent with the new statutory definitions. These changes have no practical impact in conformity implementation. EPA received three comments supporting the revisions to the definitions of MPO and TIP because these changes make the transportation conformity regulation consistent with SAFETEA-LU. E. Minor Clarifications for Hot-Spot Analyses EPA is incorporating two minor clarifications to the conformity rule's hot-spot analysis provisions. These changes do not substantively change current requirements but should improve understanding and implementation of the conformity rule, in light of other rule changes. Three commenters supported these changes related to hot-spot analyses. First, EPA is making minor changes to §§ 93.109(l)(2)(i) and 93.116(a) to ensure that CO, PM 10 , and PM 2.5 hot-spot analyses will continue to consider a project's air quality impact over the entire timeframe of the transportation plan or long-range statewide transportation plan, as appropriate. Specifically, EPA's minor change to § 93.116(a) ensures that hot-spot analyses cover the timeframe of the transportation plan in metropolitan and donut nonattainment and maintenance areas. The addition to § 93.109(l)(2)(i) ensures that hot-spot analyses in isolated rural areas examine a project's air quality impact over the timeframe of the long-range statewide transportation plan. As discussed in Section VI., today's final rule allows MPOs to elect to shorten the timeframe addressed by transportation plan and TIP conformity determinations, and allows state DOTs to elect to shorten the timeframe addressed by regional emissions analyses in isolated rural areas. The minor changes to §§ 93.116(a) and 93.109(l)(2)(i) ensure that project-level hot-spot analyses examine the appropriate time period, even if the timeframe of the long-range transportation plan or TIP conformity determination or regional emissions analysis is shortened. The Clean Air Act provisions that allow an election to shorten the timeframe covered by conformity determinations apply only to transportation plan and TIP conformity determinations, or regional emissions analyses in isolated rural areas, and do not apply to hot-spot analyses. Second, today's final rule incorporates a technical clarification to § 93.123(b)(1)(i) to address some confusion in the field since our March 10, 2006, final rule (71 FR 12468). Section 93.123(b)(1)(i) requires PM 2.5 or PM 10 hot-spot analyses to be completed for “New highway projects that have a significant number of diesel vehicles, and expanded projects that have a significant increase in the number of diesel vehicles.” The prior wording was “New or expanded highway projects that have a significant number of or significant increase in diesel vehicles.” Since the March 2006 final rule was promulgated, EPA and DOT have received several questions regarding what types of new and expanded highway projects are covered by § 93.123(b)(1)(i). For example, some state and local transportation agencies have asked how the current rule's reference to a “significant increase in diesel vehicles” applies to new highway projects. Although EPA and DOT have answered these and other questions, 12 clarifying this provision of the conformity rule will assist planners as they implement the rule in the future. The technical clarification in today's final rule does not change the type of new or expanded highway projects that would require PM 2.5 or PM 10 hot-spot analyses for transportation conformity purposes; we are simply clarifying the provision through a grammatical change. 12 For additional information about PM 2.5 and PM 10 hot-spot analysis requirements, including regulations, guidance, and Q and As, see EPA's and DOT's Web sites at: *http://www.epa.gov/otaq/stateresources/transconf/index.htm* and *http://www.fhwa.dot.gov/environment/conform.htm.* F. Minor Revision for Terms Used To Describe Transportation Plan Revisions EPA is finalizing a minor revision to how §§ 93.104(b)(2) and 93.105(c)(1)(v) describe transportation plan changes that require conformity determinations, but are not comprehensive transportation plan updates. EPA is changing references for transportation plan “revision(s)” to be transportation plan “amendment(s),” to be consistent with the revised planning definitions in DOT's February 14, 2007, final transportation planning regulations (72 FR 7224). Today's changes provide consistency between how mid-cycle transportation plan and TIP changes are currently described in the conformity rule. The revision does not change the substantive requirements for when a conformity determination is required for transportation plan changes. In addition, the minor wording change to § 93.105(c)(1)(v) does not necessitate a conformity SIP revision. Three commenters supported the changes. G. Minor Revision to Reference for Public Consultation Provision EPA is updating a reference in § 93.105(e) of the conformity rule to be consistent with DOT's transportation planning regulations. Section 93.105(e) describes the procedures for consulting with the general public on conformity determinations. This provision now refers to 23 CFR 450.316(a) of DOT's transportation planning regulations, which describes how public involvement occurs during the development of transportation plans and TIPs. In its February 14, 2007, final rule (72 FR 7224), DOT reorganized 23 CFR 450.316 to reflect the new SAFETEA-LU statute. DOT moved the public consultation procedures that EPA has historically relied upon in the conformity rule from 23 CFR 450.316(b) to 23 CFR 450.316(a). Today's final rule reflects this change in DOT's transportation planning regulations. Three commenters supported this change. This revision does not change the substantive requirements for the public consultation requirements for conformity determinations. In addition, today's change does not cause states to revise their conformity SIPs, since the revision involves an administrative change to one reference in DOT's regulations. EPA has not required conformity SIP revisions for similar reference changes in the past; the public participation requirements in existing approved conformity SIPs can be implemented as intended even if they do not reflect the most current citation in DOT's regulations. XII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order

(EO)12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. B. Paperwork Reduction Act Transportation conformity determinations are required under Clean Air Act section 176(c) (42 U.S.C. 7506(c)) to ensure that federally supported highway and transit project activities are consistent with (“conform to”) the purpose of the SIP. Conformity to the purpose of the SIP means that transportation activities will not cause or contribute to new air quality violations, worsen existing violations, or delay timely attainment of the relevant air quality standards. Transportation conformity applies under EPA's conformity regulations at 40 CFR parts 51.390 and 93 to areas that are designated nonattainment and those redesignated to attainment after 1990 (“maintenance areas” with SIPs developed under Clean Air Act section 175A) for transportation-source criteria pollutants. The Clean Air Act gives EPA the statutory authority to establish the criteria and procedures for determining whether transportation activities conform to the SIP. This action does not impose any new information collection burden or any new information collection requirements. The Office of Management and Budget has previously approved the information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* The information collection requirements of EPA's existing transportation conformity rule and the revisions in today's action are addressed by two information collection requests (ICRs). Requirements for carbon monoxide, PM 10 , nitrogen dioxide, and 1-hour ozone nonattainment and maintenance areas are covered under the DOT ICR entitled, “Metropolitan and Statewide Transportation Planning,” with the OMB control number of 2132-0529. Requirements related to PM 2.5 and 8-hour ozone nonattainment and maintenance areas are covered by the EPA ICR entitled, “Transportation Conformity Determinations for Federally Funded and Approved Transportation Plans, Programs and Projects Under the New 8-hour Ozone and PM 2.5 National Ambient Air Quality Standards,” with OMB control number 2060-0561, EPA ICR number 2130.02. EPA is currently revising its ICR to cover all transportation conformity burden (EPA ICR No. 2130.03, OMB Control No. 2060-0561), and this ICR will incorporate the efficiencies in today's final rule. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a federal agency. This includes the time needed to review instructions; develop, acquire, install and utilize technology and systems for the purposes of collecting, validating, verifying, processing, maintaining, disclosing, and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not collect information, and a person is not required to respond to an agency's request for information unless it has a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act

(RFA)generally requires an Agency to prepare a regulatory flexibility analysis of rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the Agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit organizations and small government jurisdictions. For purposes of assessing the impacts of today's final rule on small entities, small entity is defined as:

(1)A small business as defined by the Small Business Administration's

(SBA)regulations at 13 CFR 121.201;

(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and

(3)a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This regulation directly affects federal agencies and metropolitan planning organizations that, by definition, are designated under federal transportation laws only for metropolitan areas with a population of at least 50,000. These organizations do not constitute small entities within the meaning of the Regulatory Flexibility Act. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “federal mandates” that may result in expenditures by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that this rule itself does not contain a federal mandate that may result in expenditures of $100 million or more by state, local, and tribal governments, in the aggregate, or the private sector in any one year. The primary purpose of this rule is to amend the conformity rule to be consistent with Clean Air Act section 176(c) as amended by SAFETEA-LU. The Clean Air Act amendments made by SAFETEA-LU were intended to reduce the burden of demonstrating conformity in designated nonattainment and maintenance areas subject to conformity requirements. Thus, although this rule explains how to implement these Clean Air Act amendments, it merely implements already established law that imposes conformity requirements and does not itself impose requirements that may result in expenditures of $100 million or more in any year. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA and EPA has not prepared a statement with respect to budgetary impacts. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. This rule will not significantly or uniquely impact small governments because it directly affects federal agencies and metropolitan planning organizations that, by definition, are designated under federal transportation laws only for metropolitan areas with a population of at least 50,000. Additionally, this rule explains how to implement Clean Air Act requirements, as such it merely implements already established law that imposes conformity requirements and does not itself impose requirements. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This rule does not have federalism implications. It will not have substantial direct effects on states, on the relationship between the national government and states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The Clean Air Act requires conformity to apply in certain nonattainment and maintenance areas as a matter of law, and this rule merely establishes and revises procedures for transportation planning entities in subject areas to follow in meeting their existing statutory obligations. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175: “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000) requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the federal government and the Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes.” Today's amendments to the conformity rule do not significantly or uniquely affect the communities of Indian tribal governments, as the Clean Air Act requires transportation conformity to apply in any area that is designated nonattainment or maintenance by EPA. This rule amends the conformity rule to be consistent with Clean Air Act section 176(c) as amended by SAFETEA-LU. The Clean Air Act amendments made by SAFETEA-LU affect nonattainment and maintenance areas subject to conformity requirements. This rule does not have tribal implcations, as specified in Executive Order 13175. Accordingly, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:

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

(a)*Purpose and applicability.* The federal conformity rules under part 93, subpart A, of this chapter, in addition to any existing applicable state requirements, establish the conformity criteria and procedures necessary to meet the requirements of Clean Air Act section 176(c) until such time as EPA approves the conformity implementation plan revision required by this subpart. A state with an area subject to this subpart and part 93, subpart A, of this chapter must submit to EPA a revision to its implementation plan which contains criteria and procedures for DOT, MPOs and other state or local agencies to assess the conformity of transportation plans, programs, and projects, consistent with this subpart and part 93, subpart A, of this chapter. The federal conformity regulations contained in part 93, subpart A, of this chapter would continue to apply for the portion of the requirements that the state did not include in its conformity implementation plan and the portion, if any, of the state's conformity provisions that is not approved by EPA. In addition, any previously applicable implementation plan conformity requirements remain enforceable until the state submits a revision to its applicable implementation plan to specifically remove them and that revision is approved by EPA.

(b)*Conformity implementation plan content.* To satisfy the requirements of Clean Air Act section 176(c)(4)(E), the implementation plan revision required by this section must include the following three requirements of part 93, subpart A, of this chapter: §§ 93.105, 93.122(a)(4)(ii), and 93.125(c). A state may elect to include any other provisions of part 93, subpart A. If the provisions of the following sections of part 93, subpart A, of this chapter are included, such provisions must be included in verbatim form, except insofar as needed to clarify or to give effect to a stated intent in the revision to establish criteria and procedures more stringent than the requirements stated in this chapter: §§ 93.101, 93.102, 93.103, 93.104, 93.106, 93.109, 93.110, 93.111, 93.112, 93.113, 93.114, 93.115, 93.116, 93.117, 93.118, 93.119, 93.120, 93.121, 93.126, and 93.127. A state's conformity provisions may contain criteria and procedures more stringent than the requirements described in this subpart and part 93, subpart A, of this chapter only if the state's conformity provisions apply equally to non-federal as well as federal entities.

(c)*Timing and approval.* A state must submit this revision to EPA by November 25, 1994 or within 12 months of an area's redesignation from attainment to nonattainment, if the state has not previously submitted such a revision. The state must also revise its conformity implementation plan within 12 months of the date of publication of any final amendments to §§ 93.105, 93.122(a)(4)(ii), and 93.125(c), as appropriate. Any other portions of part 93, subpart A, of this chapter that the state has included in its conformity implementation plan and EPA has approved must be revised in the state's implementation plan and submitted to EPA within 12 months of the date of publication of any final amendments to such sections. EPA will provide DOT with a 30-day comment period before taking action to approve or disapprove the submission. In order for EPA to approve the implementation plan revision submitted to EPA under this subpart, the plan revision must address and give full legal effect to the following three requirements of part 93, subpart A: §§ 93.105, 93.122(a)(4)(ii), and 93.125(c). Any other provisions that are incorporated into the conformity implementation plan must also be done in a manner that gives them full legal effect. Following EPA approval of the state conformity provisions (or a portion thereof) in a revision to the state's conformity implementation plan, conformity determinations will be governed by the approved (or approved portion of the) state criteria and procedures as well as any applicable portions of the federal conformity rules that are not addressed by the approved conformity SIP. PART 93—[AMENDED] 4. The authority citation for part 93 continues to read as follows: Authority: 42 U.S.C. 7401-7671q. 5. Section 93.101 is amended by: a. Revising the definitions for “Metropolitan planning organization (MPO)” and “Transportation improvement program (TIP)”; and b. Revising the first sentence of the definition for “Transportation control measure (TCM)”. The revisions read as follows: § 93.101 Definitions. *Metropolitan planning organization (MPO)* means the policy board of an organization created as a result of the designation process in 23 U.S.C. 134(d). *Transportation control measure (TCM)* is any measure that is specifically identified and committed to in the applicable implementation plan, including a substitute or additional TCM that is incorporated into the applicable SIP through the process established in CAA section 176(c)(8), that is either one of the types listed in CAA section 108, or any other measure for the purpose of reducing emissions or concentrations of air pollutants from transportation sources by reducing vehicle use or changing traffic flow or congestion conditions. * * * *Transportation improvement program (TIP)* means a transportation improvement program developed by a metropolitan planning organization under 23 U.S.C. 134(j). § 93.102 [Amended] 6. Section 93.102 is amended as follows: a. In paragraph (b)(2)(v), by removing “sulfur oxides (SO X )” and adding in its place “sulfur dioxide (SO 2 )”; and b. In paragraph (b)(4), removing “for 20 years from the date EPA approves the area's request under section 107(d) of the CAA for redesignation to attainment” and adding in its place “through the last year of a maintenance area's approved CAA section 175A(b) maintenance plan”. 7. Section 93.104 is amended as follows: a. By revising paragraphs (b)(2), (b)(3), and (c)(3); b. By revising paragraph

(e)introductory text; and c. By adding paragraph (f). § 93.104 Frequency of conformity determinations.

(b)* * *

(2)All transportation plan amendments must be found to conform before the transportation plan amendments are approved by the MPO or accepted by DOT, unless the amendment merely adds or deletes exempt projects listed in § 93.126 or § 93.127. The conformity determination must be based on the transportation plan and the amendment taken as a whole.

(3)The MPO and DOT must determine the conformity of the transportation plan (including a new regional emissions analysis) no less frequently than every four years. If more than four years elapse after DOT's conformity determination without the MPO and DOT determining conformity of the transportation plan, a 12-month grace period will be implemented as described in paragraph

(f)of this section. At the end of this 12-month grace period, the existing conformity determination will lapse.

(c)* * *

(3)The MPO and DOT must determine the conformity of the TIP (including a new regional emissions analysis) no less frequently than every four years. If more than four years elapse after DOT's conformity determination without the MPO and DOT determining conformity of the TIP, a 12-month grace period will be implemented as described in paragraph

(f)of this section. At the end of this 12-month grace period, the existing conformity determination will lapse.

(e)*Triggers for transportation plan and TIP conformity determinations.* Conformity of existing transportation plans and TIPs must be redetermined within two years of the following, or after a 12-month grace period (as described in paragraph

(f)of this section) the existing conformity determination will lapse, and no new project-level conformity determinations may be made until conformity of the transportation plan and TIP has been determined by the MPO and DOT:

(f)*Lapse grace period.* During the 12-month grace period referenced in paragraphs (b)(3), (c)(3), and

(e)of this section, a project may be found to conform according to the requirements of this part if:

(1)The project is included in the currently conforming transportation plan and TIP (or regional emissions analysis); or

(2)the project is included in the most recent conforming transportation plan and TIP (or regional emissions analysis). § 93.105 [Amended] 8. Section 93.105 is amended by removing “revisions or” in paragraph (c)(1)(v), and by removing the reference “23 CFR 450.316(b)” in paragraph

(e)and adding in its place “23 CFR 450.316(a)”. 9. Section 93.106 is amended as follows: a. By revising the section heading; b. By revising paragraphs (a)(1)(iii) and (iv); c. By adding new paragraph (a)(v); d. By redesignating paragraph

(d)as paragraph (e); and e. By adding new paragraph (d). § 93.106 Content of transportation plans and timeframe of conformity determinations.

(a)* * *

(1)* * *

(iii)The attainment year must be a horizon year if it is in the timeframe of the transportation plan and conformity determination;

(iv)The last year of the transportation plan's forecast period must be a horizon year; and

(v)If the timeframe of the conformity determination has been shortened under paragraph

(d)of this section, the last year of the timeframe of the conformity determination must be a horizon year.

(d)*Timeframe of conformity determination.*

(1)Unless an election is made under paragraph (d)(2) or (d)(3) of this section, the timeframe of the conformity determination must be through the last year of the transportation plan's forecast period.

(2)For areas that do not have an adequate or approved CAA section 175A(b) maintenance plan, the MPO may elect to shorten the timeframe of the transportation plan and TIP conformity determination, after consultation with state and local air quality agencies, solicitation of public comments, and consideration of such comments.

(i)The shortened timeframe of the conformity determination must extend at least to the latest of the following years:

(A)The tenth year of the transportation plan;

(B)The latest year for which an adequate or approved motor vehicle emissions budget(s) is established in the submitted or applicable implementation plan; or

(C)The year after the completion date of a regionally significant project if the project is included in the TIP or the project requires approval before the subsequent conformity determination.

(ii)The conformity determination must be accompanied by a regional emissions analysis (for informational purposes only) for the last year of the transportation plan and for any year shown to exceed motor vehicle emissions budgets in a prior regional emissions analysis, if such a year extends beyond the timeframe of the conformity determination.

(3)For areas that have an adequate or approved CAA section 175A(b) maintenance plan, the MPO may elect to shorten the timeframe of the conformity determination to extend through the last year of such maintenance plan after consultation with state and local air quality agencies, solicitation of public comments, and consideration of such comments.

(4)Any election made by an MPO under paragraphs (d)(2) or (d)(3) of this section shall continue in effect until the MPO elects otherwise, after consultation with state and local air quality agencies, solicitation of public comments, and consideration of such comments. § 93.109 [Amended] 10. Section 93.109 is amended as follows: a. By revising the introductory text of paragraph (e)(2); b. By removing paragraph (e)(2)(v); and c. By revising paragraph (l)(2)(i): § 93.109 Criteria and procedures for determining conformity of transportation plans, programs, and projects: General.

(e)* * *

(2)Prior to paragraph (e)(1) of this section applying, the following test(s) must be satisfied:

(1)* * *

(2)* * *

(i)When the requirements of §§ 93.106(d), 93.116, 93.118, and 93.119 apply to isolated rural nonattainment and maintenance areas, references to “transportation plan” or “TIP” should be taken to mean those projects in the statewide transportation plan or statewide TIP which are in the rural nonattainment or maintenance area. When the requirements of § 93.106(d) apply to isolated rural nonattainment and maintenance areas, references to “MPO” should be taken to mean the state department of transportation. 11. Section 93.114 is amended by revising the introductory text to read as follows: § 93.114 Criteria and procedures: Currently conforming transportation plan and TIP. There must be a currently conforming transportation plan and currently conforming TIP at the time of project approval, or a project must meet the requirements in § 93.104(f) during the 12-month lapse grace period. 12. Section 93.115 is amended by revising the section heading and adding a new paragraph

(e)to read as follows: § 93.115 Criteria and procedures: Projects from a transportation plan and TIP.

(e)Notwithstanding the requirements of paragraphs (a), (b), and

(c)of this section, a project must meet the requirements of § 93.104(f) during the 12-month lapse grace period. 13. Section 93.116(a) is amended in the fourth sentence by removing “(or regional emissions analysis)”. 14. Section 93.118 is amended as follows: a. By revising paragraph

(b)introductory text; b. By revising the first sentence in paragraph (d)(2); and c. By adding new paragraph (d)(3). § 93.118 Criteria and procedures: Motor vehicle emissions budget.

(b)Consistency with the motor vehicle emissions budget(s) must be demonstrated for each year for which the applicable (and/or submitted) implementation plan specifically establishes motor vehicle emissions budget(s), for the attainment year (if it is within the timeframe of the transportation plan and conformity determination), for the last year of the timeframe of the conformity determination (as described under § 93.106(d)), and for any intermediate years within the timeframe of the conformity determination as necessary so that the years for which consistency is demonstrated are no more than ten years apart, as follows:

(d)* * *

(2)The regional emissions analysis may be performed for any years in the timeframe of the conformity determination (as described under § 93.106(d)) provided they are not more than ten years apart and provided the analysis is performed for the attainment year (if it is in the timeframe of the transportation plan and conformity determination) and the last year of the timeframe of the conformity determination. * * *

(3)When the timeframe of the conformity determination is shortened under § 93.106(d)(2), the conformity determination must be accompanied by a regional emissions analysis (for informational purposes only) for the last year of the transportation plan, and for any year shown to exceed motor vehicle emissions budgets in a prior regional emissions analysis (if such a year extends beyond the timeframe of the conformity determination). 15. Section 93.119 is amended as follows: a. In paragraph (f)(10), by removing “SO X ” and adding “SO 2 ” in its place; b. By revising the last sentence in paragraph (g)(1); and c. By adding new paragraph (g)(3). § 93.119 Criteria and procedures: Interim emissions in areas without motor vehicle emissions budgets.

(g)* * *

(1)* * * The last year of the timeframe of the conformity determination (as described under § 93.106(d)) must also be an analysis year.

(3)When the timeframe of the conformity determination is shortened under § 93.106(d)(2), the conformity determination must be accompanied by a regional emissions analysis (for informational purposes only) for the last year of the transportation plan. 16. Section 93.120 is amended by revising paragraph (a)(2) to read as follows: § 93.120 Consequences of control strategy implementation plan failures.

(a)* * *

(2)If EPA disapproves a submitted control strategy implementation plan revision without making a protective finding, only projects in the first four years of the currently conforming transportation plan and TIP or that meet the requirements of § 93.104(f) during the 12-month lapse grace period may be found to conform. This means that beginning on the effective date of a disapproval without a protective finding, no transportation plan, TIP, or project not in the first four years of the currently conforming transportation plan and TIP or that meets the requirements of § 93.104(f) during the 12-month lapse grace period may be found to conform until another control strategy implementation plan revision fulfilling the same CAA requirements is submitted, EPA finds its motor vehicle emissions budget(s) adequate pursuant to § 93.118 or approves the submission, and conformity to the implementation plan revision is determined. 17. Section 93.121 is amended by revising paragraphs (a)(1) and

(2)to read as follows: § 93.121 Requirements for adoption or approval of projects by other recipients of funds designated under title 23 U.S.C. or the Federal Transit Laws.

(a)* * *

(1)The project comes from the currently conforming transportation plan and TIP (or meets the requirements of § 93.104(f) during the 12-month lapse grace period), and the project's design concept and scope have not changed significantly from those that were included in the regional emissions analysis for that transportation plan and TIP;

(2)The project is included in the regional emissions analysis for the currently conforming transportation plan and TIP conformity determination (or meets the requirements of § 93.104(f) during the 12-month lapse grace period), even if the project is not strictly included in the transportation plan or TIP for the purpose of MPO project selection or endorsement, and the project's design concept and scope have not changed significantly from those that were included in the regional emissions analysis; or 18. Section 93.123 is amended by adding paragraph (a)(3) and revising paragraph (b)(1)(i) to read as follows: § 93.123 Procedures for determining localized CO, PM10, and PM2.5 concentrations (hot-spot analysis).

(a)* * *

(3)DOT, in consultation with EPA, may also choose to make a categorical hot-spot finding that (93.116(a) is met without further hot-spot analysis for any project described in paragraphs (a)(1) and (a)(2) of this section based on appropriate modeling. DOT, in consultation with EPA, may also consider the current air quality circumstances of a given CO nonattainment or maintenance area in categorical hot-spot findings for applicable FHWA or FTA projects.

(b)* * *

(1)* * *

(i)New highway projects that have a significant number of diesel vehicles, and expanded highway projects that have a significant increase in the number of diesel vehicles; § 93.126 [Amended] 19. Table 2 in § 93.126 is amended under the heading “Safety” as follows: a. By removing the entry “Hazard elimination program” and adding in its place “Projects that correct, improve, or eliminate a hazardous location or feature”; b. By removing the entry “Safety improvement program” and adding in its place “Highway Safety Improvement Program implementation”; and c. By removing the entry “Pavement marking demonstration” and adding in its place “Pavement marking”. [FR Doc. E8-597 Filed 1-23-08; 8:45 am] BILLING CODE 6560-50-P 73 16 Thursday, January 24, 2008 Presidential Documents Part V The President Executive Order 13455—Establishing the President's Advisory Council on Financial Literacy Title 3— The President Executive Order 13455 of January 22, 2008 Establishing the President's Advisory Council on Financial Literacy By the authority vested in me as President by the Constitution and the laws of the United States of America and to promote and enhance financial literacy among the American people, it is hereby ordered as follows: **Section 1.** *Policy* . To help keep America competitive and assist the American people in understanding and addressing financial matters, it is the policy of the Federal Government to encourage financial literacy among the American people. **Sec. 2.** *Establishment of the Council* . There is established within the Department of the Treasury the President's Advisory Council on Financial Literacy (Council). **Sec. 3.** *Membership and Operation of the Council* .

(a)The Council shall consist of 19 members appointed by the President from among individuals not employed by the Federal Government, consistent with subsection

(b)of this section.

(b)In selecting individuals for appointment to the Council, appropriate consideration should be given to selection of individuals with backgrounds as providers of, consumers of, promoters of access to, and educators with respect to financial education and financial services. Each individual member of the Council will serve as a representative of his or her industry, trade group, public interest group, or other organization or group. The composition of the Council will reflect the views of diverse stakeholders.

(c)The President shall designate a Chair and a Vice Chair from among the members of the Council.

(d)Subject to the direction of the Secretary of the Treasury (Secretary), the Chair shall convene and preside at meetings of the Council, determine its agenda, direct its work, and, as appropriate to deal with particular subject matters, establish and direct the work of subgroups of the Council that shall consist exclusively of members of the Council.

(e)The Vice Chair shall perform:

(i)the duties of the Chair when the position of Chair is vacant; and

(ii)such other functions as the Chair may from time to time assign. **Sec. 4.** *Functions of the Council* . To assist in implementing the policy set forth in section 1 of this order, the Council shall:

(a)obtain information and advice concerning financial literacy as appropriate in the course of its work from:

(i)officers and employees of executive departments and agencies (including members of the Financial Literacy and Education Commission), unless otherwise directed by the head of the department or agency;

(ii)State, local, territorial, and tribal officials;

(iii)providers of, consumers of, promoters of access to, and educators with respect to financial services;

(iv)experts on matters relating to the policy set forth in section 1; and

(v)such other individuals as the Secretary may direct;

(b)advise the President and the Secretary consistent with this order on means to implement effectively the policy set forth in section 1, including by providing advice on means to:

(i)improve financial education efforts for youth in school and for adults in the workplace;

(ii)promote effective access to financial services, especially for those without access to such services;

(iii)establish effective measures of national financial literacy;

(iv)conduct research on financial knowledge, including the collection of data on the extent of financial knowledge of individuals; and

(v)strengthen and coordinate public and private sector financial education programs; and

(c)periodically report to the President, through the Secretary, on:

(i)the status of financial literacy in the United States;

(ii)progress made in implementing the policy set forth in section 1 of this order; and

(iii)recommendations on means to further implement the policy set forth in section 1 of this order, including with respect to the matters set forth in subsection (b)(i) through

(v)of this section. **Sec. 5.** *Administration of the Council* .

(a)To the extent permitted by law, the Department of the Treasury shall provide funding and administrative support for the Council, as determined by the Secretary, to implement this order.

(b)The heads of executive departments and agencies shall provide, as appropriate and to the extent permitted by law, such assistance and information to the Council as the Secretary may request to implement this order.

(c)Members of the Council:

(i)shall serve without any compensation for their work on the Council; and

(ii)while engaged in the work of the Council, may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in the Government (5 U.S.C. 5701-5707), consistent with the availability of funds.

(d)The Secretary shall designate an officer or employee of the United States within the Department of the Treasury to serve as an Executive Director to supervise the administrative support for the Council. **Sec. 6.** *Termination of the Council* . Unless extended by the President, the Council shall terminate 2 years from the date of this order. **Sec. 7.** *General Provisions* .

(a)Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.) (Act), may apply to the Council, any functions of the President under the Act, except for those in section 6 of the Act, shall be performed by the Secretary in accordance with the guidelines issued by the Administrator of General Services.

(b)Nothing in this order shall be construed to impair or otherwise affect:

(i)authority granted by law to a department or agency or the head thereof; or

(ii)functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.

(c)This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(d)This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. GWBOLD.EPS THE WHITE HOUSE, January 22, 2008. [FR Doc. 08-325 Filed 1-23-08; 8:57 am]

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