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Code · REGISTER · 2009-08-19 · PROPOSED RULES · Advisory Council on Historic Preservation See Historic Preservation, Advisory Council Agency Agency for Healthcare Research and Quality NOTICES Intent to Publish Grant and Contract Solicitations for C · Unknown

Unknown. Notice of temporary deviation from regulations; request for comments

112,641 words·~512 min read·/register/2009/08/19/09-19860

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

--- schema: federal-register doc_type: fedreg source_file: FR-2009-08-19.xml --- 74 159 Wednesday, August 19, 2009 Contents Advisory Council on Historic Preservation See Historic Preservation, Advisory Council Agency Agency for Healthcare Research and Quality NOTICES Intent to Publish Grant and Contract Solicitations for Comparative Effectiveness Research Projects, etc., 41913-41914 E9-19758 Agriculture Agriculture Department See Food and Nutrition Service See Forest Service Army Army Department NOTICES Privacy Act;
Systems of Records, 41877-41878 E9-19865 Centers Centers for Disease Control and Prevention PROPOSED RULES Possession, Use, and Transfer of Select Agents and Toxins—Chapare virus, 41829-41831 E9-19737 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 41913 E9-19836 Coast Guard Coast Guard RULES Drawbridge Operation Regulations: Franklin Canal, Franklin, LA, 41789-41790 E9-19824 Gowanus Canal, Brooklyn, NY, Maintenance, 41790 E9-19817 Gulf Intracoastal Waterway, Sargent, TX, 41790-41791 E9-19823 PROPOSED RULES Drawbridge Operation Regulations:
Franklin Canal, Franklin, LA, 41816-41818 E9-19825 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 41973-41981 E9-19911 Consumer Consumer Product Safety Commission NOTICES Statement of Policy: Interpretation and Enforcement of Section 103(a) of the Consumer Product Safety Improvement Act, 41868 E9-19816 Defense Defense Department See Army Department NOTICES Meetings:
Defense Acquisition University Board of Visitors, 41868 E9-19794 National Defense University Board of Visitors, 41868 E9-19799 Privacy Act; Systems of Records, 41868-41877 E9-19864 E9-19866 E9-19867 E9-19868 E9-19870 E9-19871 E9-19874 Education Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 41878-41879 E9-19842 Employment Employment and Training Administration PROPOSED RULES Workforce Investment Act Amendments, 41815-41816 E9-19801 NOTICES Determinations Regarding Eligibility to Apply for Worker Adjustment Assistance, 41931-41936 E9-19831 E9-19832 Determinations Regarding Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance, 41936-41938 E9-19833 Energy Energy Department See Federal Energy Regulatory Commission NOTICES Meetings:
Environmental Management Site-Specific Advisory Board, Northern New Mexico, 41880 E9-19899 Environmental Management Site-Specific Advisory Board, Portsmouth, 41879-41880 E9-19898 EPA Environmental Protection Agency RULES Exemption from the Requirement of a Tolerance: 1,2-ethanediamine, *N* , *N* , *N* ′, *N* ′-tetramethyl-, polymer with 1,1′-oxybis[2-chloroethane], 41794-41798 E9-19762 PROPOSED RULES Approval and Promulgation of Air Quality Implementation Plans: California; Motor Vehicle Inspection and Maintenance Program, 41818-41826 E9-19858 Revisions to the California State Implementation Plan:
San Joaquin Valley Unified Air Pollution Control District, 41826-41829 E9-19856 Withdrawal of Proposed Rule Revising the California State Implementation Plan: San Joaquin Valley Unified Air Pollution Control District, 41829 E9-19857 NOTICES Access to Confidential Business Information: Abt Associates Wholly-Owned Subsidiary Abt SRBI, 41882-41883 E9-19461 Coastal Nonpoint Pollution Control Program: Approval Decision on the New Jersey Coastal Nonpoint Pollution Control Program, 41864 E9-19820 Drinking Water:
Perchlorate Supplemental Request for Comments, 41883-41893 E9-19507 Meetings: National Advisory Committee for Acute Exposure Guideline Levels for Hazardous Substances, 41893-41894 E9-19532 State FIFRA Issues Research and Evaluation Group, 41894 E9-19531 Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities, 41895-41896 E9-19859 Proposed Acute Exposure Guideline Levels for Hazardous Substances; Availability, 41896-41898 09-19860 Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities, 41898-41902 E9-19518 Executive Office of the President See Presidential Documents Federal Accounting Federal Accounting Standards Advisory Board NOTICES Meetings (August 26-27, 2009), 41907 E9-19803 FAA Federal Aviation Administration PROPOSED RULES Airworthiness Directives:
Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB 120, 120ER, 120FC, 120QC, and 120RT Airplanes, 41805-41807 E9-19851 Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB 135 and Model EMB 145, 145ER, 145MR, 145LR, 145XR, 145MP, and 145EP Airplanes, 41807-41810 E9-19852 Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB 135BJ, -135ER, -135KE, et al. Airplanes Modified in Accordance with Brazilian Supplemental Type Certificate, 41810-41813 E9-19853 McDonnell Douglas Model MD-11 and MD 11F Airplanes, 41813-41815 E9-19850 FCC Federal Communications Commission RULES Radio Broadcasting Services:
Dulac, LA, 41798-41799 E9-19878 Ten Sleep, WY, 41799 E9-19880 Television Broadcasting Services: Fond du Lac, WI, 41799-41800 E9-19876 PROPOSED RULES Radio Broadcasting Services: Maupin, OR, 41831-41832 E9-19872 Television Broadcasting Services: Chicago, IL, 41832 E9-19875 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 41902-41906 E9-19861 E9-19862 E9-19863 FDIC Federal Deposit Insurance Corporation NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 41973-41981 E9-19911 Federal Emergency Federal Emergency Management Agency NOTICES National Flood Insurance Program: Assistance to Private Sector Property Insurers, Availability of FY 2010 Arrangement, 41924 E9-19835 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Community Hydro, LLC, 41880-41881 E9-19828 Filings: Freeport LNG Development, L.P. et al., 41881 E9-19830 Initial Market-Based Rate Filing: RMH Energy, LP, 41881-41882 E9-19829 FMC Federal Maritime Commission PROPOSED RULES Repeal of Marine Terminal Agreement Exemption, 41831 E9-19901 NOTICES Agreements Filed, 41907 E9-19902 Ocean Transportation intermediary License Applicants, 41907-41908 E9-19903 Federal Motor Federal Motor Carrier Safety Administration NOTICES Petition for Declaratory Order:
Fullington Trailways, LLC, 41970-41971 E9-19888 Qualification of Drivers; Exemption Applications; Vision, 41971-41972 E9-19890 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 41973-41981 E9-19911 Change in Bank Control Notices; Acquisition of Shares of Bank or Bank Holding Companies, 41907 E9-19847 FTC Federal Trade Commission PROPOSED RULES Telemarketing Sales Rule, 41988-42024 E9-19749 NOTICES Analysis of Proposed Consent Order:
CSE, Inc., et al., 41908-41910 09-19806 Pure Bamboo LLC et. al., 41911-41913 E9-19810 Sami Designs LLC et al., 41910-41911 E9-19807 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: 12-Month Finding on a Petition to List the Ashy Storm-Petrel as Threatened or Endangered, 41832-41860 E9-19700 NOTICES Endangered and Threatened Species Permit Applications, 41927 E9-19837 Environmental Impact Statements; Availability, etc.: Desert National Wildlife Refuge Complex, Clark, Lincoln, and Nye Counties, NV;
Final Comprehensive Conservation Plan, 41928-41930 E9-19843 Food Food and Drug Administration NOTICES Public Workshop: Methodologies for Post-Approval Studies of Medical Devices, 41916 09-19904 Food Food and Nutrition Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 41861 E9-19844 Forest Forest Service NOTICES Meetings: Fresno County Resource Advisory Committee, 41861-41862 E9-19760 Health Health and Human Services Department See Agency for Healthcare Research and Quality See Centers for Disease Control and Prevention See Food and Drug Administration See National Institutes of Health Historic Historic Preservation, Advisory Council NOTICES Program Comment Issued:
U.S. General Services Administration on Select Envelope and Infrastructure Repairs and Upgrades to Historic Public Buildings, 41917-41919 E9-19814 Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency PROPOSED RULES Safe-Harbor Procedures for Employers Who Receive a No-Match Letter; Rescission, 41801-41805 E9-19826 NOTICES Privacy Act; Systems of Records, 41919-41924 E9-19818 Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 41924-41925 E9-19914 Indian Indian Affairs Bureau NOTICES Environmental Impact Statements; Availability, etc.: Spokane Tribes 2719(b)(1)(A) Application and the Proposed West Plains Mixed-Use Development Project, Spokane County, WA, 41928 E9-19882 Indian Gaming, E9-19886 41930-41931 E9-19887 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau See National Park Service International International Trade Administration NOTICES Extension of Time Limit for Preliminary Results of Countervailing Duty Administrative Review:
Carbazole Violet Pigment 23 from India, 41864-41865 E9-19923 Partial Rescission of Ninth Antidumping Duty Administrative Review: Polyester Staple Fiber from the Republic of Korea, 41866-41867 E9-19907 Labor Labor Department See Employment and Training Administration See Occupational Safety and Health Administration Land Land Management Bureau NOTICES Alaska Native Claims Selection, E9-19811 41925-41927 E9-19812 E9-19813 E9-19815 NIH National Institutes of Health NOTICES Meetings:
Center for Scientific Review, 41915-41916 E9-19879 National Institute of Allergy and Infectious Diseases, 41916 E9-19877 National Institute of Diabetes and Digestive and Kidney Diseases, 41914 E9-19889 Recombinant DNA Advisory Committee, 41914-41915 E9-19906 NOAA National Oceanic and Atmospheric Administration NOTICES Coastal and Estuarine Land Conservation Program: Re-opening of FY 2010 Competition, 41862-41864 E9-19821 Coastal Nonpoint Pollution Control Program: Approval Decision on the New Jersey Coastal Nonpoint Pollution Control Program, 41864 E9-19820 NOAA Ocean and Coastal Mapping Contracting Policy, 41865-41866 E9-19819 Taking and Importing Marine Mammals:
Taking Marine Mammals Incidental to Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active Sonar, 41867 E9-19873 National Park National Park Service NOTICES Meetings: Boston Harbor Islands National Recreation Area Advisory Council, 41931 E9-19841 Nuclear Nuclear Regulatory Commission NOTICES Consideration of Issuance of Amendments to Facility Operating Licenses, etc.: Virginia Electric and Power Co., 41939-41944 E9-19845 Environmental Impact Statements;
Availability, etc.: Department of the Army, U.S. Army Research, Development and Engineering Command, Army Research Laboratory Facility, Aberdeen Proving Ground, MD, 41944-41946 E9-19849 Standard Review Plan for the Review of a License Application for a Fuel Cycle Facility, Draft for Public Comment (Revision 1), 41946-41947 E9-19848 Occupational Occupational Safety and Health Administration NOTICES Meetings: Federal Advisory Council on Occupational Safety and Health, 41938-41939 E9-19897 Postal Postal Regulatory Commission RULES International Mail, 41791-41794 E9-19855 NOTICES Postal Service Price Changes, 41947-41948 E9-19854 Presidential Presidential Documents ADMINISTRATIVE ORDERS Palestinian Authority; waiver of restrictions on providing funds (Presidential Determination) No. 2009-23 of July 8, 2009, 41787 E9-20013 SEC Securities and Exchange Commission NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 41948-41949 E9-19891 E9-19896 Order of Suspension of Trading: Tasty Fries, Inc., 41949 E9-19981 Self-Regulatory Organizations; Proposed Rule Changes: Chicago Board Options Exchange, Inc., 41953-41955 E9-19893 NASDAQ Stock Market LLC, 41955-41957 E9-19894 NYSE Arca, Inc., 41957-41958 E9-19895 Public Company Accounting Oversight Board, 41950-41953, 41955 E9-19838 E9-19839 Social Social Security Administration NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 41959-41961 E9-19905 Privacy Act; Computer Matching Program, 41961-41962 E9-19920 Privacy Act; Systems of Records, 41962-41967 E9-19935 State State Department NOTICES Waiver of Restriction on Assistance: Central Government of Maldives, 41967 E9-19915 Central Government of Turkmenistan, 41967 E9-19912 Surface Surface Transportation Board NOTICES Adverse Discontinuance of Rail Service: Lake County, OR; Modoc Railway and Land Co., LLC and Modoc Northern Railroad Co., 41969-41970 E9-19827 Trackage Rights Exemption:
CSX Transportation, Inc.; Birmingham Southern Railroad Co., 41972 E9-19928 Thrift Thrift Supervision Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 41981-41986 E9-19908 Transportation Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration See Surface Transportation Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 41967-41969 E9-19917 E9-19922 Treasury Treasury Department See Comptroller of the Currency See Thrift Supervision Office Separate Parts In This Issue Part II Federal Trade Commission, 41988-42024 E9-19749 Reader Aids Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 74 159 Wednesday, August 19, 2009 Rules and Regulations DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2009-0670] Drawbridge Operating Regulations; Franklin Canal, Franklin, LA AGENCY: Coast Guard, DHS.
ACTION: Notice of temporary deviation from regulations; request for comments. SUMMARY: The Commander, Eighth Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Chatsworth Road Bridge across the Franklin Canal, mile 4.8, at Franklin, St. Mary Parish, Louisiana. This deviation will test a change to the operating schedule to determine whether a permanent change to the schedule is needed. It will allow the bridge to remain unmanned during most of the day by requiring a one-hour notice for an opening of the draw.
DATES: This deviation is effective from 5 a.m. on August 19, 2009 until 9 p.m. on February 16, 2010. Comments and related material must be received by the Coast Guard on or before October 19, 2009. ADDRESSES: You may submit comments identified by docket number USCG-2009-0670 using any one of the following methods:
(1)*Federal eRulemaking Portal:* *http://www.regulations.gov.*
(2)*Fax:* 202-493-2251.
(3)*Mail:* Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
(4)*Hand delivery:* Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-355-9329. To avoid duplication, please use only one of these methods. See “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call or e-mail Phil Johnson, Bridge Administration Branch, Eighth Coast Guard District; telephone 504-671-2128, e-mail *Philip.R.Johnson@uscg.mil.* If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to *http://www.regulations.gov* and will include any personal information you have provided. Submitting Comments If you submit a comment, please include the docket number for this rulemaking (USCG-2009-0670), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online ( *http://www.regulations.gov* ), or by fax, mail or hand delivery, but please use only one of these means. If you submit a comment online via *http://www.regulations.gov* , it will be considered as having been received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. To submit your comment online, go to *http://www.regulations.gov* , click on the “submit a comment” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2009-0670” click “Search” and then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments. Viewing Comments and Documents To view comments, as well as documents mentioned in this preamble as being available in the docket, go to *http://www.regulations.gov* , click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2009-0670” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit either the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility. Privacy Act Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, *etc.* ). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the **Federal Register** (73 FR 3316). Public Meeting We do not now plan to hold a public meeting. But you may submit a request for one on or before September 3, 2009. Background and Purpose The St. Mary Parish Government has requested that the operating regulation of the Chatsworth Road swing span bridge, located on the Franklin Canal at mile 4.8 in Franklin, St. Mary Parish, Louisiana, be changed in order for the bridge not to have to be continuously manned by a draw tender. Currently, the bridge opens on signal from 5 a.m. to 9 p.m. Because of the relocation of a public boat landing downstream of the bridge, vessel traffic has become infrequent, and it is no longer necessary to have a bridge tender continuously man the bridge. Currently, the bridge operates as follows: The draw of the Chatsworth Road Bridge, mile 4.8 at Franklin, shall open on signal from 5 a.m. to 9 p.m. From October 1 through January 31 from 9 p.m. to 5 a.m., the draw shall open on signal if at least three hours notice is given. From February 1 through September 30 from 9 p.m. to 5 a.m., the draw shall open on signal if at least 12 hours notice is given. This Temporary Deviation from Drawbridge Operating Regulations allows the bridge to operate as follows: The draw of the Chatsworth Road Bridge, mile 4.8 at Franklin, shall open on signal from 5 a.m. to 9 p.m. if at least one hour notice is given. From October 1 through January 31 from 9 p.m. to 5 a.m., the draw shall open on signal if at least three hours notice is given. From February 1 through September 30 from 9 p.m. to 5 a.m., the draw shall open on signal if at least 12 hours notice is given. While some commercial vessels use the waterway to access commercial facilities upstream of the bridge, they are able to schedule operations around the advance notices required for an opening. The majority of waterway usage consists of small recreational fishing craft that now utilize the boat launch that has been relocated downstream of the bridge. The bridge provides a vertical clearance of 7 feet above mean high water in the closed-to-navigation position and unlimited in the open-to-navigation position. Thus, the majority of recreational fishing craft that may wish to transit through the bridge will be able to do so without requesting an opening of the draw. A Notice of Proposed Rule Making [USCG-2009-0672] is being issued in conjunction with this Temporary Deviation to obtain public comments. The St. Mary Parish Government states that the decrease in vessel traffic, due to the relocation of the boat ramp downstream of the bridge, has resulted in such infrequency of drawbridge openings that it is impractical to man the bridge full time from 5 a.m. to 9 p.m. daily. A bridge tender will be on call to open the bridge with a one-hour notice by calling the telephone number that will be posted on the bridge. The Coast Guard will evaluate public comments from this Temporary Deviation and the above referenced Notice of Proposed Rule Making to determine if a change to the permanent special drawbridge operating regulation is warranted. In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated period. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: August 4, 2009. David M. Frank, Bridge Administrator. [FR Doc. E9-19824 Filed 8-18-09; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [USCG-2009-0699] Drawbridge Operation Regulations; Gowanus Canal, Brooklyn, NY, Maintenance AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Hamilton Avenue Bridge across the Gowanus Canal, mile 1.2, at Brooklyn, New York. Under this temporary deviation the bridge shall require a four-hour advance notice for bridge openings for three months to facilitate bridge maintenance. Vessels that can pass under the draw without a bridge opening may do so at all times. DATES: This deviation is effective from August 17, 2009, through October 31, 2009. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2009-0699 and are available online at *www.regulations.gov* , inserting USCG-2009-0699 in the “Keyword” box and then clicking “Search.” They are also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call or e-mail Ms. Judy Leung-Yee, Project Officer, First Coast Guard District, telephone
(212)668-7165. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: The Hamilton Avenue Bridge, across the Gowanus Canal, mile 1.2, at Brooklyn, New York, has a vertical clearance in the closed position of 19 feet at mean high water and 23 feet at mean low water. The Drawbridge Operation Regulations are listed at 33 CFR 117.5. The waterway has seasonal recreational vessels, and commercial vessels of various sizes. The owner of the bridge, New York City Department of Transportation, requested a temporary deviation to facilitate the training of bridge personnel, mechanical and electrical testing at the bridge. Under this temporary deviation the Hamilton Avenue Bridge shall require at least a four-hour advance notice for bridge openings from August 17, 2009 through October 31, 2009. Vessels that can pass under the bridge without a bridge opening may do so at all times. Notice may be provided by calling
(201)400-5243. In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: August 4, 2009. Gary Kassof, Bridge Program Manager, First Coast Guard District. [FR Doc. E9-19817 Filed 8-18-09; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2009-0689] Drawbridge Operation Regulation; Gulf Intracoastal Waterway, Sargent, TX AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, Eighth Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the FM 457 pontoon drawbridge across the Gulf Intracoastal Waterway, mile 418.0, west of Harvey Locks, near Sargent, Matagorda County, Texas. The deviation is necessary for continued maintenance of the bridge. This deviation allows the bridge to remain closed to navigation. DATES: This deviation is effective from 6 a.m. through 5 p.m. on September 2, 2009. ADDRESSES: Documents mentioned in this preamble as being available in the docket are part of docket USCG-2009-0689 and are available online by going to *http://www.regulations.gov* , inserting USCG-2009-0689 in the “Keyword” box and then clicking “Search”. They are also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call or e-mail Lindsey Middleton, Bridge Administration Branch, Coast Guard; telephone 504-671-2128, e-mail *Lindsey.R.Middleton@uscg.mil.* If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: The Texas Department of Transportation has requested a temporary deviation for the FM 457 pontoon drawbridge across the Gulf Intracoastal Waterway, mile 418.0, west of Harvey Locks, near Sargent, Matagorda County, Texas. They requested the temporary deviation for scheduled maintenance on the bridge. Currently, according to 33 CFR 117.5, the drawbridge opens on signal for the passage of vessels. The temporary deviation would allow the bridge to remain closed to navigation from 9 a.m. until 6 p.m. on Wednesday, September 2, 2009. The bridge has no vertical clearance in the closed-to-navigation position and has unlimited clearance in the open-to-navigation position. Navigation on the waterway consists of tugs with tows, fishing vessels, sailing vessels, and other recreational craft. This work is essential for the continued operation of the draw span. This request has been coordinated with waterway user groups and the local Coast Guard office. In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: August 9, 2009. David M. Frank, Bridge Administrator. [FR Doc. E9-19823 Filed 8-18-09; 8:45 am] BILLING CODE 4910-15-P POSTAL REGULATORY COMMISSION 39 CFR Part 3020 [Docket No. CP2009-49; Order No. 268] International Mail AGENCY: Postal Regulatory Commission. ACTION: Final rule. SUMMARY: The Commission is making changes to the Competitive Product List, including adding a Global Plus 2 contract. This is consistent with changes in a recent law governing postal operations. Republication of the lists of market dominant and competitive products is also consistent with requirements in the new law. DATES: Effective August 19, 2009 and is applicable beginning July 31, 2009. FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman at 202-789-6820 or *stephen.sharfman@prc.gov* . SUPPLEMENTARY INFORMATION: *Regulatory History* , 74 FR 35898 (July 21, 2009). I. Introduction II. Background III. Comments IV. Commission Analysis V. Ordering Paragraphs I. Introduction The Postal Service proposes to add a specific Global Plus 2 contract to the Global Plus Contract product established in Docket No. MC2008-7. For the reasons discussed below, the Commission approves the Postal Service's proposal. II. Background On July 13, 2009, the Postal Service filed a notice, pursuant to 39 CFR 3015.5, announcing that it has entered into two additional Global Plus 2 contracts, which it states fit within the previously established Global Plus 2 Contracts product. 1 The Postal Service states that each contract is functionally equivalent to previously submitted Global Plus 2 contracts, are filed in accordance with Order No. 112 2 and are supported by Governors' Decision No. 08-10 filed in Docket No. MC2008-7. 3 Notice at 1. 1 Notice of the United States Postal Service of Filing Two Functionally Equivalent Global Plus 2 Negotiated Service Agreements, July 13, 2009 (Notice). While the Notice was filed jointly in Docket Nos. CP2009-48 and CP2009-49, the Commission will address the issues in these dockets in separate orders. The Postal Service requests that the two contracts be included in the Global Plus 2 product, and “that they be considered the new `baseline' contracts for future functional equivalency analyses....” *Id.* at 2. 2 *See* Docket Nos. MC2008-7, CP2008-16 and CP2008-17, Order Concerning Global Plus 2 Negotiated Service Agreements, October 3, 2008 (Order No. 112). 3 *See* Docket Nos. MC2008-7, CP2008-16 and CP2008-17, Decision of the Governors of the United States Postal Service on the Establishment of Prices and Classification for Global Direct, Global Bulk Economy, and Global Plus Contracts, July 16, 2008 (Governors' Decision 08-10). The Notice also states that in Docket No. MC2008-7, the Governors established prices and classifications for competitive products not of general applicability for Global Plus Contracts. The Postal Service relates that the instant contract is the immediate successor contract to the contract in Docket No. CP2008-17, which will expire soon, and which the Commission found to be functionally equivalent in Order No. 112. The Postal Service contends that the instant contract should be included within the Global Plus 2 product on the Competitive Product List. *Id.* In support, the Postal Service has filed a redacted version of the contract and related materials as Attachment 1-A. A redacted version of the certified statement required by 39 CFR 3015.5 is included as Attachment 2-A. The Postal Service states that the contract should be included within the Global Plus 2 product and requests that the instant contract be considered the “baseline contract[s] for future functional equivalency analyses concerning this product.” *Id.* at 2. The Postal Service filed the instant contract pursuant to 39 CFR 3015.5. The contract becomes effective August 1, 2009, unless regulatory reviews affect that date, and have a one-year term. The Postal Service maintains that certain portions of each contract and certified statement required by 39 CFR 3015.5(c)(2), containing names and identifying information of the Global Plus 2 customer, related financial information, portions of the certified statement which contain costs and pricing as well as the accompanying analyses that provide prices, terms, conditions, and financial projections should remain under seal. *Id.* at 3. The Postal Service asserts the contract is functionally equivalent with the contract filed in Docket No. CP2009-49 because they share similar cost and market characteristics. It contends that they should be classified as a single product. *Id.* It states that while the existing contracts filed in Docket Nos. CP2008-16 and CP2008-17 exhibited minor distinctions, the new contracts are identical to one another. *Id.* at 4. The instant contract is with the same Postal Qualified Wholesalers
(PQW)as in Docket No. CP2008-17. Even though some terms and conditions of the contract have changed, the Postal Service states that the essence of the service to the PQW customers is offering price-based incentives to commit large amounts of mail volume or postage revenue for Global Bulk Economy
(GBE)and Global Direct (GD). 4 4 The Postal Service states the commitments also account for International Priority Airmail (IPA), International Surface Air Lift (ISAL), Express Mail International (EMI), and Priority Mail International
(PMI)items mailed under a separate but related Global Plus 1 contract with each customer. The Global Plus 1 contracts are the subject of a separate competitive products proceeding. The Postal Service indicates that the instant contract has material differences which include removal of retroactivity provisions; explanations of price modification as a result of currency rate fluctuations or postal administration fees; removal of language on enforcement of mailing requirements; and restructuring of price incentives, commitments, penalties and clarification of continuing contractual obligations in the event of termination. The Postal Service maintains these differences only add detail or amplify processes included in prior Global Plus 2 contracts. It contends because the instant contract has the same cost attributes and methodology as well as similar cost and market characteristics, the differences do not affect the fundamental service being offered or the essential structure of the contract. *Id.* at 8. Therefore, it asserts these contracts are “functionally equivalent in all pertinent respects.” *Id.* at 8. In Order No. 250, the Commission gave notice of the filing, appointed a Public Representative, and provided the public with an opportunity to comment. 5 5 Notice of Filing of Two Functionally Equivalent Global Plus 2 Negotiated Service Agreements, July 16, 2009 (Order No. 250). On July 23, 2009, Chairman's Information Request No. 1 (CHIR No. 1) was issued with responses due by July 28, 2009. On July 28, 2009, the Postal Service provided its responses to CHIR No. 1. III. Comments Comments were filed by the Public Representative. 6 No other interested parties submitted comments. The Public Representative states the contract appears to satisfy the statutory criteria, but because he believes there are ambiguities in the cost methodology, his response is not an unqualified recommendation in support of the contract's approval. *Id.* at 2. He notes that relevant provisions of 39 U.S.C. 3632, 3633 and 3642 appear to be met by these additional Global Plus 2 contracts. *Id.* The Public Representative states that he believes the contracts are functionally equivalent to the existing Global Plus Contracts product. He also determines that the Postal Service has provided greater transparency and accessibility in its filings. *Id.* at 3. 6 Public Representative Comments in Response to Order No. 250, July 23, 2009 (Public Representative Comments). The Public Representative notes that the general public benefits from the availability of these contracts in several ways: Well prepared international mail adds increased efficiency in the mailstream, enhanced volume results in timeliness in outbound shipments to all countries including those with small volume, and the addition of shipping options may result in expansion of mail volumes, particularly with the incentives for PQWs to promote the use of outbound international shipping resulting in expansion of these services for the Postal Service. *Id.* at 4. Finally, he discusses the need for self-contained docket filings. In particular, he notes that the instant contract relies on data from the most recent International Cost and Revenue Analysis (ICRA), which was filed in another docket. He suggest that the Postal Service identify the location of the ICRA utilized and cited in that docket. *Id.* at 6. IV. Commission Analysis The Postal Service proposes to add an additional contract under the Global Plus Contracts product that was created in Docket No. MC2008-7. As filed, this docket presents two issues for the Commission to consider:
(1)Whether the contract satisfies 39 U.S.C. 3633, and
(2)whether the contract is functionally equivalent to previously reviewed Global Plus 2 contracts. In reaching its conclusions, the Commission has reviewed the Notice, the contract and the financial analyses provided under seal, supplemental information, and the Public Representative's comments. *Statutory requirements.* The Postal Service contends that the instant contract and supporting documents filed in this docket establish compliance with the statutory provisions applicable to rates for competitive products (39 U.S.C. 3633). Notice at 2. J. Ron Poland, Manager, Statistical Programs, Finance Department asserts Governors' Decision No. 08-10 for Global Plus Contracts establishes price floor and ceiling formulas issued on July 16, 2008. He certifies that the pricing in the instant contract meets the Governors' pricing formula and meets the criteria of 39 U.S.C. 3633(a)(1),
(2)and (3). He further states that the prices demonstrate that the contract and the included ancillary services should cover their attributable costs, preclude the subsidization of competitive products by market dominant products, and should not impair the ability of competitive products on the whole to cover an appropriate share of institutional costs. Notice, Attachment 2-A. For his part, the Public Representative indicates that the contract appears to satisfy 39 U.S.C. 3633. Public Representative Comments at 1-3. Based on the data submitted, including the supplemental information, the Commission finds that the contract should cover its attributable costs (39 U.S.C. 3633(a)(2)), should not lead to the subsidization of competitive products by market dominant products (39 U.S.C. 3633(a)(1)), and should have a positive effect on competitive products' contribution to institutional costs (39 U.S.C. 3633(a)(3)). Thus, an initial review of the contract indicates that it comports with the provisions applicable to rates for competitive products. *Functional equivalence.* The Postal Service asserts that the instant contract is functionally equivalent to the contract filed in the companion proceeding, Docket No. CP2009-49, as well as with Global Plus 2 contracts filed previously because they share similar cost and market characteristics. Notice at 4. The Postal Service states that the customers under the existing and proposed contracts are the same. In addition, it notes that existing contracts exhibited some differences, the contracts proposed in Docket Nos. CP2009-48 and CP2009-49 are identical. *Id.* Having reviewed the contracts filed in the instant proceeding and in Docket No. CP2009-49, and the Postal Service's justification, the Commission finds that the two contracts may be treated as functionally equivalent. *New baseline.* The Postal Service requests that the contracts filed in Docket Nos. CP2009-48 and 2009-49 be included in the Global Plus 2 product and “considered the new `baseline' contracts for purposes of future functional equivalency analyses concerning this product.” *Id.* at 2. Currently, the Global Plus 2 product consists of two existing contracts that will be superseded by the contracts in Docket Nos. CP2009-48 and CP2009-49. Under those circumstances, the new contracts need not be designated as a new product. Accordingly, the new contracts in Docket Nos. CP2009-48 and CP2009-49 will be included in the Global Plus 2 product and become the “baseline” for future functional equivalency analyses regarding that product. *Other considerations* . If the agreement terminates earlier than anticipated, the Postal Service shall promptly inform the Commission of the new termination date. In conclusion, the Commission finds that the negotiated service agreement submitted in Docket No. CP2009-49 is appropriately included within the Global Plus 2 product. V. Ordering Paragraphs *It is ordered:* 1. The contract filed in Docket No. CP2009-49 is included within the Global Plus 2 product (MC2008-7 and CP2009-49). 2. The existing Global Plus 2 product (MC2008-7, CP2008-16 and CP2008-17) is removed from the product list. 3. As discussed in the body of this order, future contract filings which rely on materials filed under seal in other dockets should be self contained. 4. The Postal Service shall notify the Commission if the termination date changes as discussed in this order. List of Subjects in 39 CFR Part 3020 Administrative practice and procedure; Postal Service. Issued: July 31, 2009. By the Commission. Judith M. Grady, Acting Secretary. For the reasons stated in the preamble, under the authority at 39 U.S.C. 503, the Postal Regulatory Commission amends 39 CFR part 3020 as follows: PART 3020—PRODUCT LISTS 1. The authority citation for part 3020 continues to read as follows: Authority: 39 U.S.C. 503; 3622; 3631; 3642; 3682. 2. Revise Appendix A to Subpart A of Part 3020—Mail Classification Schedule to read as follows: Appendix to Subpart A of Part 3020—Mail Classification Schedule Part A—Market Dominant Products 1000 Market Dominant Product List First-Class Mail Single-Piece Letters/Postcards Bulk Letters/Postcards Flats Parcels Outbound Single-Piece First-Class Mail International Inbound Single-Piece First-Class Mail International Standard Mail (Regular and Nonprofit) High Density and Saturation Letters High Density and Saturation Flats/Parcels Carrier Route Letters Flats Not Flat-Machinables (NFMs)/Parcels Periodicals Within County Periodicals Outside County Periodicals Package Services Single-Piece Parcel Post Inbound Surface Parcel Post (at UPU rates) Bound Printed Matter Flats Bound Printed Matter Parcels Media Mail/Library Mail Special Services Ancillary Services International Ancillary Services Address List Services Caller Service Change-of-Address Credit Card Authentication Confirm International Reply Coupon Service International Business Reply Mail Service Money Orders Post Office Box Service Negotiated Service Agreements HSBC North America Holdings Inc. Negotiated Service Agreement Bookspan Negotiated Service Agreement Bank of America corporation Negotiated Service Agreement The Bradford Group Negotiated Service Agreement Inbound International Canada Post—United States Postal Service Contractual Bilateral Agreement for Inbound Market Dominant Services Market Dominant Product Descriptions First-Class Mail [Reserved for Class Description] Single-Piece Letters/Postcards [Reserved for Product Description] Bulk Letters/Postcards [Reserved for Product Description] Flats [Reserved for Product Description] Parcels [Reserved for Product Description] Outbound Single-Piece First-Class Mail International [Reserved for Product Description] Inbound Single-Piece First-Class Mail International [Reserved for Product Description] Standard Mail (Regular and Nonprofit) [Reserved for Class Description] High Density and Saturation Letters [Reserved for Product Description] High Density and Saturation Flats/Parcels [Reserved for Product Description] Carrier Route [Reserved for Product Description] Letters [Reserved for Product Description] Flats [Reserved for Product Description] Not Flat-Machinables (NFMs)/Parcels [Reserved for Product Description] Periodicals [Reserved for Class Description] Within County Periodicals [Reserved for Product Description] Outside County Periodicals [Reserved for Product Description] Package Services [Reserved for Class Description] Single-Piece Parcel Post [Reserved for Product Description] Inbound Surface Parcel Post (at UPU rates) [Reserved for Product Description] Bound Printed Matter Flats [Reserved for Product Description] Bound Printed Matter Parcels [Reserved for Product Description] Media Mail/Library Mail [Reserved for Product Description] Special Services [Reserved for Class Description] Ancillary Services [Reserved for Product Description] Address Correction Service [Reserved for Product Description] Applications and Mailing Permits [Reserved for Product Description] Business Reply Mail [Reserved for Product Description] Bulk Parcel Return Service [Reserved for Product Description] Certified Mail [Reserved for Product Description] Certificate of Mailing [Reserved for Product Description] Collect on Delivery [Reserved for Product Description] Delivery Confirmation [Reserved for Product Description] Insurance [Reserved for Product Description] Merchandise Return Service [Reserved for Product Description] Parcel Airlift
(PAL)[Reserved for Product Description] Registered Mail [Reserved for Product Description] Return Receipt [Reserved for Product Description] Return Receipt for Merchandise [Reserved for Product Description] Restricted Delivery [Reserved for Product Description] Shipper-Paid Forwarding [Reserved for Product Description] Signature Confirmation [Reserved for Product Description] Special Handling [Reserved for Product Description] Stamped Envelopes [Reserved for Product Description] Stamped Cards [Reserved for Product Description] Premium Stamped Stationery [Reserved for Product Description] Premium Stamped Cards [Reserved for Product Description] International Ancillary Services [Reserved for Product Description] International Certificate of Mailing [Reserved for Product Description] International Registered Mail [Reserved for Product Description] International Return Receipt [Reserved for Product Description] International Restricted Delivery [Reserved for Product Description] Address List Services [Reserved for Product Description] Caller Service [Reserved for Product Description] Change-of-Address Credit Card Authentication [Reserved for Product Description] Confirm [Reserved for Product Description] International Reply Coupon Service [Reserved for Product Description] International Business Reply Mail Service [Reserved for Product Description] Money Orders [Reserved for Product Description] Post Office Box Service [Reserved for Product Description] Negotiated Service Agreements [Reserved for Class Description] HSBC North America Holdings Inc. Negotiated Service Agreement [Reserved for Product Description] Bookspan Negotiated Service Agreement [Reserved for Product Description] Bank of America Corporation Negotiated Service Agreement The Bradford Group Negotiated Service Agreement Part B—Competitive Products 2000 Competitive Product List Express Mail Express Mail Outbound International Expedited Services Inbound International Expedited Services Inbound International Expedited Services 1 (CP2008-7) Inbound International Expedited Services 2 (MC2009-10 and CP2009-12) Priority Mail Priority Mail Outbound Priority Mail International Inbound Air Parcel Post Royal Mail Group Inbound Air Parcel Post Agreement Parcel Select Parcel Return Service International International Priority Airlift
(IPA)International Surface Airlift
(ISAL)International Direct Sacks—M-Bags Global Customized Shipping Services Inbound Surface Parcel Post (at non-UPU rates) Canada Post—United States Postal Service Contractual Bilateral Agreement for Inbound Competitive Services (MC2009-8 and CP2009-9) International Money Transfer Service International Ancillary Services Special Services Premium Forwarding Service Negotiated Service Agreements Domestic Express Mail Contract 1 (MC2008-5) Express Mail Contract 2 (MC2009-3 and CP2009-4) Express Mail Contract 3 (MC2009-15 and CP2009-21) Express Mail Contract 4 (MC2009-34 and CP2009-45) Express Mail & Priority Mail Contract 1 (MC2009-6 and CP2009-7) Express Mail & Priority Mail Contract 2 (MC2009-12 and CP2009-14) Express Mail & Priority Mail Contract 3 (MC2009-13 and CP2009-17) Express Mail & Priority Mail Contract 4 (MC2009-17 and CP2009-24) Express Mail & Priority Mail Contract 5 (MC2009-18 and CP2009-25) Express Mail & Priority Mail Contract 6 (MC2009-31 and CP2009-42) Express Mail & Priority Mail Contract 7 (MC2009-32 and CP2009-43) Express Mail & Priority Mail Contract 8 (MC2009-33 and CP2009-44) Parcel Return Service Contract 1 (MC2009-1 and CP2009-2) Priority Mail Contract 1 (MC2008-8 and CP2008-26) Priority Mail Contract 2 (MC2009-2 and CP2009-3) Priority Mail Contract 3 (MC2009-4 and CP2009-5) Priority Mail Contract 4 (MC2009-5 and CP2009-6) Priority Mail Contract 5 (MC2009-21 and CP2009-26) Priority Mail Contract 6 (MC2009-25 and CP2009-30) Priority Mail Contract 7 (MC2009-25 and CP2009-31) Priority Mail Contract 8 (MC2009-25 and CP2009-32) Priority Mail Contract 9 (MC2009-25 and CP2009-33) Priority Mail Contract 10 (MC2009-25 and CP2009-34) Priority Mail Contract 11 (MC2009-27 and CP2009-37) Priority Mail Contract 12 (MC2009-28 and CP2009-38) Priority Mail Contract 13 (MC2009-29 and CP2009-39) Priority Mail Contract 14 (MC2009-30 and CP2009-40) Outbound International Direct Entry Parcels Contracts Direct Entry Parcels 1 (MC2009-26 and CP2009-36) Global Direct Contracts (MC2009-9, CP2009-10, and CP2009-11) Global Expedited Package Services
(GEPS)Contracts GEPS 1 (CP2008-5, CP2008-11, CP2008-12, and CP2008-13, CP2008-18, CP2008-19, CP2008-20, CP2008-21, CP2008-22, CP2008-23, and CP2008-24) Global Plus Contracts Global Plus 1 (CP2008-8, CP2008-46 and CP2009-47) Global Plus 2 (MC2008-7, CP2009-48 and CP2009-49) Inbound International Inbound Direct Entry Contracts with Foreign Postal Administrations (MC2008-6, CP2008-14 and CP2008-15) International Business Reply Service Competitive Contract 1 (MC2009-14 and CP2009-20) [FR Doc. E9-19855 Filed 8-18-09; 8:45 am] BILLING CODE 7710-FW-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2004-0285; FRL-8430-6] 1,2-ethanediamine, *N* , *N* , *N* ′, *N* ′-tetramethyl-, polymer with 1,1′-oxybis[2-chloroethane]; Exemption from the Requirement of a Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes an exemption from the requirement of a tolerance under 40 CFR 180.920 for residues of 1,2-ethanediamine, *N* , *N* , *N* ′, *N* ′-tetramethyl-, polymer with 1,1′-oxybis[2-chloroethane] (CAS Reg. No. 31075-24-8) when used as an inert ingredient in pesticide formulations applied to cotton or wheat crops only. Buckman Laboratories International, Inc submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of 1,2-ethanediamine, *N* , *N* , *N* ′, *N* ′-tetramethyl-, polymer with 1,1′-oxybis[2-chloroethane]. DATES: This regulation is effective August 19, 2009. Objections and requests for hearings must be received on or before October 19, 2009, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION) . ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2004-0285. All documents in the docket are listed in the docket index available at *http://www.regulations.gov* . Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Keri Grinstead, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-8373; e-mail address: *grinstead.keri@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing electronically available documents at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office’s e-CFR cite at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of FFDCA, 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2004-0285 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before October 19, 2009. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2004-0285, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket Facility’s normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is
(703)305-5805. II. Background and Statutory Findings In the **Federal Register** of September 17, 2004 (69 FR 56062) (FRL-7675-9), EPA issued a notice pursuant to section 408 of FFDCA, 21 U.S.C. 346a, as amended by Food Quality Protection Act
(FQPA)(Public Law 104-170), announcing the filing of a pesticide petition (PP 4E6841) by Buckman Laboratories International, Inc., 1256 North McLean Blvd., Memphis, TN 38108. The petition requested that 40 CFR 180.920 be amended by establishing an exemption from the requirement of a tolerance for residues of 1,2-ethanediamine, *N* , *N* , *N* ′, *N* ′-tetramethyl-, polymer with 1,1′-oxybis[2-chloroethane] (CAS Reg. No. 31075-24-8) in or on raw agricultural commodities when used as an inert ingredient in pesticide formulations. That notice included a summary of the petition prepared by the petitioner. There were no substantive comments received in response to the notice of filing. The petitioner subsequently specified that the inert ingredient use of the chemical will be as an adjuvant or water conditioner in pesticide products applied only to cotton and to wheat prior to boot stage. For ease of reading in this document, 1,2-ethanediamine, *N* , *N* , *N* ′, *N* ′-tetramethyl-, polymer with 1,1′-oxybis[2-chloroethane] is herein referred to as BCETMD copolymer. Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. III. Inert Ingredient Definition Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients. IV. Toxicological Profile Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by 1,2-ethanediamine, *N* , *N* , *N* ′, *N* ′-tetramethyl-, polymer with 1,1′-oxybis[2-chloroethane are discussed in this unit. The following provides a brief summary of the risk assessment and conclusions from the Agency's review of BCETMD copolymer. The Agency's full risk assessment for this action, “Inert Ingredient Decision Document for Pesticide Petition 4E6841: 1,2-ethanediamine, *N* , *N* , *N* ′, *N* ′-tetramethyl-, polymer with 1,1′-oxybis[2-chloroethane] (CAS Reg. No. 31075-24-8)”, is available in the docket (EPA-HQ-OPP-2004-0285). Sufficient data were submitted to the Agency in support of this action. In acute toxicity studies, BCETMD copolymer exhibits low to moderate oral toxicity, slight irritation to the rabbit eye and skin, and is not a skin sensitizer in Guinea pigs. A subchronic study in rats had a no observed adverse effect level (NOAEL) of 221 milligrams/kilogram/day (mk/kg/day) and a lowest observed adverse level (LOAEL) of 752 mg/kg/day due to mineralization of the renal tubules. The following were observed at the two highest dosages: Decreases in body weights and possibly absolute organ weights (heart, liver, kidney and gonads); an equivocal decrease in red blood cell counts; elevated leukocyte counts; non-suppurative inflammation of the choroid plexus of the brain; and death. A chronic study in the dog showed: In males, a NOAEL of 250 mg/kg/day and a LOAEL of 500 mg/kg/day based on testicular hypoplasia, atrophy/degeneration, aspermia, dysplasia and cellular debris of testicular origin in epididymis; and, in females, a NOAEL of 500 mg/kg/day and a LOAEL of 1,000 mg/kg/day based on gastrointestinal disturbances, emaciation and neurological signs, bloody stools, weight loss and ataxia. Reproductive/developmental toxicity was only seen at dosage levels at or above those which also caused maternal effects. BCETMD copolymer was determined not to be mutagenic or carcinogenic. In metabolism studies, most (>86%) of the chemical was excreted in the feces. V. Aggregate Exposures In examining aggregate exposure, section 408 of FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses). EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established. The primary route of exposure to BCETMD copolymer from its use as an inert ingredient in pesticide products applied to cotton and wheat crops would most likely be through consumption of food to which pesticide products containing it as an inert ingredient have been applied, and possibly through drinking water (from runoff). The use of this chemical is limited to pesticide formulations applied to cotton and wheat crops only, therefore, there are no residential uses of this chemical, and thus no residential (dermal and inhalation) exposures are expected. No adverse effects attributable to a single exposure of BCETMD copolymer were seen in the toxicity database. Therefore, an acute dietary risk assessment is not required. There are no data provided regarding BCETMD copolymer residues in food or any other nonoccupational exposures to BCETMD copolymer. In the absence of actual residue data for BCETMD copolymer, the Agency performed a chronic dietary (food and drinking water) exposure assessment for BCETMD copolymer when used as an inert ingredient in pesticide formulations applied pre-harvest to cotton and wheat using a series of very conservative assumptions. This exposure assessment was calculated based on the following assumptions: 1. BCETMD copolymer would be used as an inert ingredient in all food use pesticide formulations applied pre-harvest to cotton and wheat crops. 2. A hundred percent of all cotton and wheat crops would be treated with pesticide products containing BCETMD copolymer. 3. BCETMD copolymer residues would be present in all cotton and wheat crops at levels equal to or exceeding the highest established tolerance levels for any pesticide active ingredient. 4. A conservative default value of 1,000 parts per billion
(ppb)for the concentration of an inert ingredient in all sources of drinking water was used. This approach is highly conservative as it is extremely unlikely that BCETMD copolymer would have such use as a pesticide product inert ingredient and be present in cotton and wheat food commodities and drinking water at such high levels. VI. Cumulative Effects Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticide ingredients for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to BCETMD copolymer and any other substances and BCETMD copolymer does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that BCETMD copolymer has a common mechanism of toxicity with other substances. For information regarding EPA’s efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA’s Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA’s website at *http://www.epa.gov/pesticides/cumulative/* . VII. Determination of Safety for Infants and Children Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold
(10X)margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA safety factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings: 1. The database is considered adequate for FQPA assessment. The studies included in the toxicological database are: 90-day toxicity study in rats via the oral route, 90-day dermal toxicity study in rabbits, chronic toxicity study in dogs, carcinogenicity study in mice, combined chronic/carcinogenicity study in rats, several mutagenicity studies ( *in vivo* and *in vitro* ), metabolism study in rats and dermal penetration study in rats. There are no acute and/or subchronic neurotoxicity studies available in the database. There was no evidence of clinical signs of neurotoxicity in the database except ataxia in the chronic toxicity study in dogs (1,000 mg/kg/day) and convulsions in a carcinogenicity study in mice (1,200 mg/kg/day). These effects are considered due to excessive toxicity and not of a neurologic origin. Therefore, there is no need for acute and subchronic neurotoxicity studies for this chemical. EPA also concluded that there is no need for a developmental neurotoxicity study for this chemical because there is no evidence in the database of neurotoxicity or increased susceptibility to infants and children. 2. There is no evidence of increased qualitative or quantitative susceptibility in the developmental toxicity study in rats and rabbits and in the two-generation reproduction study in rats. No developmental effects were observed in the rat developmental toxicity study at doses up to 500 mg/kg/day highest dose tested
(HDT)in the presence of maternal toxicity. In the rabbit developmental toxicity study, the maternal and developmental NOAELs were 45 mg/kg/day. In this study, skeletal variations (developmental effects) were observed in the presence of equally severe maternal toxicity (abortions). In the 2-generation reproduction study in rats, pup weights were decreased at a dose level higher than the dose that produced maternal toxicity. 3. The highly conservative dietary exposure assessment using default assumptions would not underestimate the risk to infants and children. VIII. Determination of Safety for U.S. Population For hazards that have a threshold below which there is no appreciable risk, a toxicological point of departure
(POD)is identified as the basis for derivation of reference values for risk assessment. The POD may be defined as the highest dose at which no adverse effects are observed (the NOAEL) in the toxicology study identified as appropriate for use in risk assessment. Uncertainty/safety factors
(UFs)are used in conjunction with the POD to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic dietary risks by comparing aggregate food and water exposure to the pesticide to the acute population adjusted dose
(aPAD)and chronic population adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the POD by all applicable UFs. Residues of concern are not anticipated for dietary exposure (food and drinking water) from the use of BCETMD copolymer as an inert ingredient in pesticide products applied pre-harvest to cotton and wheat and there are no residential uses/exposures from this use. The toxicology data indicate that BCETMD copolymer does not pose an acute risk and, therefore, derivation of an aPAD is unnecessary. Chronic risk was assessed by comparing aggregate exposure to BCETMD copolymer to a cPAD of .45 mg/kg/day (based on a NOAEL of 45 mg/kg/day in the developmental toxicity study in rabbits and a safety/uncertainty factor of 100X (10X for interspecies and 10X for intraspecies variations). Utilizing the highly conservative aggregate exposure assessment described above, the resulting chronic exposure estimates do not exceed the Agency’s level of concern; the chronic dietary estimate for the U.S. population was 6.7% (non-nursing infants were the most highly exposed population with the chronic exposure estimates occupying 20.0% of the cPAD). Taking into consideration all available information on BCETMD copolymer and the limitations in the proposed tolerance exemption, EPA has determined that there is a reasonable certainty that no harm to any population subgroup will result from aggregate exposure to BCETMD copolymer under reasonable foreseeable circumstances. Therefore, the establishment of an exemption from tolerance under 40 CFR 180.920 for residues of BCETMD copolymer when used as an inert ingredient in pesticide formulations applied pre-harvest to cotton and wheat only, is safe under section 408 of the FFDCA. IX. Other Considerations A. Analytical Method An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation. B. Existing Exemptions There are no existing exemptions for BCETMD copolymer. C. International Tolerances The Agency is not aware of any country requiring a tolerance for BCETMD copolymer nor have any CODEX Maximum Residue Levels been established for any food crops at this time. X. Conclusions Therefore, an exemption from the requirement of tolerance is established under 40 CFR 180.920 for BCETMD copolymer (CAS Reg. No. 31075-24-8) when used as an inert ingredient (adjuvant or water conditioner) in pesticide formulations applied to cotton or wheat only. XI. Statutory and Executive Order Reviews This final rule establishes an exemption from the requirement of a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq.* ) do not apply. This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). XII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: August 6, 2009. G. Jeffrey Herndon, Acting Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. In §180.920, the table is amended by adding alphabetically the following inert ingredient. § 180.920 Inert ingredients used pre-harvest; exemptions from the requirement of a tolerance. Inert ingredients Limits Uses * * * * * * * 1,2-ethanediamine, *N* , *N* , *N* ′, *N* ′-tetramethyl-, polymer with 1,1′-oxybis[2-chloroethane] (CAS Reg. No. 31075-24-8) For use in pesticide formulations applied to cotton or wheat only Adjuvant or water conditioner * * * * * * * [FR Doc. E9-19762 Filed 8-18-09; 8:45 am] BILLING CODE 6560-50-S FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 09-1732; MB Docket No. 09-18; RM-11513] Radio Broadcasting Services: Dulac, LA AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The staff grants a rulemaking petition filed by Sunburst Media-Louisiana, LLC, by substituting FM Channel 230A for vacant Channel 242A at Dulac, Louisiana. The reference coordinates for Channel 230A at Dulac are 29-20-37 NL and 90-45-16 WL. DATES: Effective September 17, 2009. ADDRESSES: Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Andrew J. Rhodes, Media Bureau,
(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Report and Order* , MB Docket No. 09-18, adopted July 30, 2009, and released August 3, 2009. The full text of this *Report and Order* is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or *http://www.BCPIWEB.com* . The *Notice of Proposed Rule Making* in this proceeding stated that Sunburst Media-Louisiana's rulemaking petition was filed as part of a hybrid application and rulemaking proposal involving its concurrently filed minor change application (File No. BPH-20090129AMR). In this application, Sunburst proposes the upgrade and reallotment of its Station KMYO-FM from Channel 244C3 at Morgan City, Louisiana, to Channel 244C2 at Gray, Louisiana. The modification of the Morgan City license is contingent upon the channel substitution at Dulac. The *Report and Order* notes that Sunburst's application is being granted simultaneously with the release of the *Report and Order* . The *Report and Order* does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506(c)(4). The Commission will send a copy of the *Report and Order* in this proceeding in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. As stated in the preamble, the Federal Communications Commission amends 47 CFR Part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority for Part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under Louisiana, is amended by removing Channel 242A at Dulac and adding Channel 230A at Dulac. Federal Communications Commission. Andrew J. Rhodes, Senior Counsel, Allocations, Audio Division, Media Bureau. [FR Doc. E9-19878 Filed 8-18-09; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 09-1726; MB Docket No. 08-242; RN-11506] Radio Broadcasting Services; Ten Sleep, WY AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Audio Division, at the request of Legend Communications of Wyoming, LLC, allots Channel 267A at Ten Sleep, Wyoming, as the community's second potential local FM service. Channel 267A can be allotted to Ten Sleep, Wyoming, in compliance with the Commission's minimum distance separation requirements with a site restriction of 0.3 kilometers (0.2 miles) northeast of Ten Sleep. The coordinates for Channel 267A at Ten Sleep, Wyoming, are 44-02-08 North Latitude and 107-26-50 West Longitude. DATES: Effective September 17, 2009. FOR FURTHER INFORMATION CONTACT: Deborah Dupont, Media Bureau,
(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Report and Order,* MB Docket No. 08-242, adopted July 30, 2009, and released August 3, 2009. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554,
(800)378-3160, or via the company's Web site, *http://www.bcpiweb.com.* This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506(c)(4). The Commission will send a copy of this *Report and Order* in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see* U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR Part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for Part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under Wyoming, is amended by adding Ten Sleep, Channel 267A. Andrew J. Rhodes, Senior Counsel, Allocations, Audio Division, Media Bureau, Federal Communications Commission. [FR Doc. E9-19880 Filed 8-18-09; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 09-1794; MB Docket No. 09-115; RM-11543] Television Broadcasting Services; Fond du Lac, WI AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Commission grants a petition for rulemaking filed by WWAZ License, LLC, the licensee of WWAZ-DT, DTV Channel 44, Fond du Lac, Wisconsin, requesting the substitution of DTV channel 5 for channel 44 at Fond du Lac. DATES: This rule is effective August 19, 2009. FOR FURTHER INFORMATION CONTACT: David J. Brown, Media Bureau,
(202)418-1600. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Report and Order,* MB Docket No. 09-115, adopted August 11, 2009, and released August 12, 2009. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC 20554. This document will also be available via ECFS ( *http://www.fcc.gov/cgb/ecfs/* ). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-478-3160 or via e-mail * http://www.BCPIWEB.com.* To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to *fcc504@fcc.gov* or call the Commission's Consumer and Governmental Affairs Bureau at
(202)418-0530 (voice),
(202)418-0432 (TTY). This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. The Commission will send a copy of this *Report and Order* in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR Part 73 Television, Television broadcasting. For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR Part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for Part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.622 [Amended] 2. Section 73.622(i), the Post-Transition Table of DTV Allotments under Wisconsin, is amended by adding DTV channel 5 and removing DTV channel 44 at Fond du Lac. Federal Communications Commission. Clay C. Pendarvis, Associate Chief, Video Division, Media Bureau. [FR Doc. E9-19876 Filed 8-18-09; 8:45 am] BILLING CODE 6712-01-P 74 159 Wednesday, August 19, 2009 Proposed Rules DEPARTMENT OF HOMELAND SECURITY 8 CFR Part 274a [ICE 2377-06; DHS Docket No. ICEB-2006-0004] RIN 1653-AA59 Safe-Harbor Procedures for Employers Who Receive a No-Match Letter: Rescission AGENCY: U.S. Immigration and Customs Enforcement, DHS. ACTION: Proposed rule. SUMMARY: The Department of Homeland Security
(DHS)proposes to amend its regulations by rescinding the amendments promulgated on August 15, 2007, and October 28, 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of no-match letters. Implementation of the 2007 final rule was preliminarily enjoined by the United States District Court for the Northern District of California on October 10, 2007. After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs. DATES: Comments must be submitted not later than September 18, 2009. ADDRESSES: Comments may be submitted, identified by DHS Docket No. ICEB 2006-0004, by one of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. • Mail/Courier: National Program Manager Charles McClain, U.S. Immigration and Customs Enforcement, Office of Investigations—MS 5112, 500 12th Street, SW., Washington, DC 20536-5112.024 To ensure proper handling, please reference DHS Docket No. ICEB-2006-0004 on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions. • Hand Delivery: National Program Manager Charles McClain, U.S. Immigration and Customs Enforcement, 500 12th Street, SW., Washington, DC 20536-20024. FOR FURTHER INFORMATION CONTACT: National Program Manager Charles McClain, U.S. Immigration and Customs Enforcement, Office of Investigations—MS 5112, 500 12th Street, SW., Washington, DC 20536. Telephone: 202-732-3988 (not a toll-free number). SUPPLEMENTARY INFORMATION: I. Public Participation Interested persons are invited to comment on this rulemaking by submitting written data, views, or arguments on all aspects of the rule. Comments that will most assist DHS will reference a specific portion of the rule and explain the reason for any recommended change. Comments should include data, information, and the authority that supports the recommended change. Comments previously submitted to this docket do not need to be submitted again. *Instructions for filing comments:* All submissions received must include the agency name and DHS docket number ICEB-2006-0004. All comments received (including any personal information provided) will be posted without change to *http://www.regulations.gov* . See ADDRESSES , above, for methods to submit comments. Mailed submissions may be paper, disk, or CD-ROM. *Reviewing comments:* Public comments may be viewed online at *http://www.regulations.gov* or in person at U.S Immigration and Customs Enforcement, Department of Homeland Security, 500 12th Street, SW., Room 1000, Washington, DC 20024, by appointment. To make an appointment to review the docket you must call telephone number 202-307-0071. II. Background It is unlawful for a person or other entity to hire, or to recruit or refer for a fee, an alien for employment in the United States knowing the alien is not authorized to work in the United States. Immigration and Nationality Act of 1952, as amended (INA), section 274A(a)(1)(A), 8 U.S.C. 1324a(a)(1)(A). It is also unlawful for a person or other entity, after hiring an alien for employment, to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment. INA section 274A(a)(2), 8 U.S.C. 1324a(a)(2). All persons or entities that hire, or recruit or refer persons for a fee, for employment must verify the identity and employment eligibility of all employees hired to work in the United States. INA section 274A(a)(1)(B), (b)(1), (b)(2), 8 U.S.C. 1324a(a)(1)(B), (b)(1), (b)(2). Under the INA, this verification is performed by completing an Employment Eligibility Verification form (Form I-9) for all employees, including United States citizens. INA section 274A(b)(1), (b)(2), 8 U.S.C. 1324a (b)(1), (b)(2); 8 CFR 274a.2. An employer, or a recruiter or referrer for a fee, must retain the completed Form I-9 for three years after hiring, recruiting or referral, or, where the employment extends longer, for the life of the individual's employment and for one year following the employee's departure. INA section 274A(b)(3), 8 U.S.C. 1324a(b)(3). These forms are not routinely filed with any Government agency; employers are responsible for maintaining these records, and they may be requested and reviewed by DHS Immigration and Customs Enforcement (ICE). INA section 274A(b)(1)(E)(3); 8 CFR 274a.2(b)(2), (c)(2); *see* 71 FR 34510 (June 15, 2006) (Electronic Signature and Storage of Form I-9, Employment Eligibility Verification). Employers annually send the Social Security Administration
(SSA)millions of earnings reports (W-2 Forms) in which the combination of employee name and social security number
(SSN)does not match SSA records. In some of these cases, SSA sends a letter, such as an “Employer Correction Request,” that informs the employer of the mismatch. The letter is commonly referred to as an employer “no-match letter.” There can be many causes for a no-match, including clerical error and name changes. One potential cause may be the submission of information for an alien who is not authorized to work in the United States and who may be using a false SSN or a SSN assigned to someone else. Such a letter may be one indicator to an employer that one of its employees may be an unauthorized alien. ICE sends a similar letter (currently called a “Notice of Suspect Documents”) after it has inspected an employer's Employment Eligibility Verification forms (Forms I-9) during an investigation audit and after unsuccessfully attempting to confirm, in agency records, that an immigration status document or employment authorization document presented or referenced by the employee in completing the Form I-9 was assigned to that person. (After a Form I-9 is completed by an employer and employee, it is retained by the employer and made available to DHS investigators on request, such as during an audit.) Over the years, employers have inquired of the former Immigration and Naturalization Service, and now DHS, whether receipt of a no-match letter constitutes constructive knowledge on the part of the employer that he or she may have hired an alien who is not authorized to work in the United States. On August 15, 2007, DHS issued a rule describing the legal obligations of an employer following receipt of a no-match letter from SSA or a letter from DHS regarding employment verification forms. See 72 FR 45611. The rule also established “safe-harbor” procedures for employers receiving no-match letters. On August 29, 2007, the American Federation of Labor and Congress of Industrial Organizations, and others, filed suit seeking declaratory and injunctive relief in the United States District Court for the Northern District of California. *AFL-CIO, et al.* v. *Chertoff, et al.* , No. 07-4472-CRB, D.E. 1 (N.D. Cal. Aug. 29, 2007). The district court granted plaintiffs' initial motion for a temporary restraining order against implementation of the August 2007 Final Rule. *AFL-CIO* v. *Chertoff* , D.E. 21 (N.D. Cal. Aug. 31, 2007) (order granting motion for temporary restraining order and setting schedule for briefing and hearing on preliminary injunction). On October 10, 2007, the district court granted the plaintiffs' motion for preliminary injunction. *AFL-CIO* v. *Chertoff* , 552 F.Supp.2d 999 (N.D. Cal. 2007) (order granting motion for preliminary injunction). The court raised three issues regarding DHS's rulemaking action implementing the No-Match final rule: Whether DHS had
(1)supplied a reasoned analysis to justify what the court viewed as a change in the Department's position—that a no-match letter may be sufficient, by itself, to put an employer on notice, and thus impart constructive knowledge, that employees referenced in the letter may not be work-authorized;
(2)exceeded its authority (and encroached on the authority of the Department of Justice (DOJ)) by interpreting the anti-discrimination provisions of the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603, 100 Stat. 3359 (1986), INA section 274B, 8 U.S.C. 1324b; and
(3)violated the Regulatory Flexibility Act, 5 U.S.C 601 *et seq.* , by not conducting a regulatory flexibility analysis. DHS subsequently published a supplemental notice of proposed rulemaking (SNPRM) and supplemental final rule to clarify certain aspects of the 2007 No-Match final rule and to respond to the three findings underlying the court's injunction.. See *e.g.* 73 FR 15944 (Mar. 26, 2008), 73 FR 63843 (Oct. 28, 2008). Neither the SNPRM nor final rule, however, changed the safe-harbor procedures or applicable regulatory text. The implementation of the rule remains enjoined. III. Basis for Policy Change On January 20, 2009, President Barack Obama was sworn into office. Shortly thereafter, on January 21, 2009, Janet Napolitano was sworn in as the Secretary of Homeland Security. Following the transition, the Secretary conducted a review of existing programs and regulations to determine areas for reform or improved efficiency. Pursuant to this review, DHS has determined that improvements in U.S. Citizenship and Immigration Services' (USCIS) electronic employment verification system (E-Verify), along with other DHS programs, provide better tools for employers to reduce incidences of unauthorized employment and to better detect and deter the use of fraudulent identity documents by employees. As discussed below, DHS therefore has concluded that rescinding the August 2007 No-Match Rule and 2008 Supplemental Final Rule will better achieve DHS's regulatory and enforcement goals. DHS has determined that a more appropriate utilization of DHS resources would be to focus enforcement/community outreach efforts on increased compliance through improved verification, including increased participation in the USCIS's E-Verify employment eligibility verification system, the U.S. Immigration and Customs Enforcement's ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs. This decision is part of a Government-wide reexamination of regulatory processes. Further development of the USCIS E-Verify employment eligibility verification system warrants refocusing DHS's priorities on the implementation of that compliance protocol. DHS believes E-Verify is an essential tool for employers committed to maintaining a legal workforce. E-Verify compares employee information from the Form I-9 against more than 455,000,000 records in the SSA database and more than 80,000,000 records in DHS immigration databases. E-Verify has expanded exponentially in the past several years to include over 138,000 employers representing over 500,000 locations; on average, 1,000 employers enroll in E-Verify each week. Participation has more than doubled each fiscal year since 2007. As of August 1, 2009, more than six million queries have been run through the system in FY 2009. Accuracy of the E-Verify program also has improved. An independent evaluation completed in December 2008 found that approximately 96.9 percent of all cases queried through E-Verify are instantly found to be work-authorized. Of the 3.1 percent of queries that resulted in a mismatch of the information in SSA or DHS databases, 0.3 percent of queries were successfully contested. The remaining 2.8 percent either did not contest the determination or were unsuccessful in contesting, or were found unauthorized to work at the secondary verification stage. In September 2007, E-Verify began to automatically flag inconsistent data and allow employers to double-check the data they entered into E-Verify before issuing a tentative non-confirmation, thereby reducing data entry errors and initial mismatches by approximately 30 percent. Cross-checking queries against USCIS naturalization data reduced citizenship mismatches by approximately 39 percent. As of May, 2008, E-Verify also added the Integrated Border Inspection System
(IBIS)real time arrival and departure information for non-citizens to its databases. This step reduced hundreds of E-Verify mismatches that had resulted from data entry delays, thus allowing newly arriving workers to enter the country legally and start working immediately. In February 2009, USCIS began incorporating Department of State passport data into E-Verify in order to check citizenship status information in the event of a mismatch with SSA, reducing the number of mismatches for citizens who did not personally complete the naturalization process, but derived citizenship from their parents, eliminating several hundred more mismatches. Finally, to reduce the premium on identity theft to commit immigration fraud, the E-Verify program introduced a photograph screening capability into the verification process in September 2007, allowing an employer to check the photos on Employment Authorization Documents or Permanent Resident Cards (green card) against images stored in USCIS databases. Through use of the photo tool, hundreds of cases of document and identity fraud have been identified, and unauthorized workers have been prevented from illegally obtaining employment. In FY 2010, USCIS plans to improve the E-Verify system's ability to automatically verify international students and exchange visitors through the incorporation of ICE's Student and Exchange Visitors Information System (SEVIS) data into E-Verify. By incorporating SEVIS nonimmigrant student visa data into the automatic initial E-Verify check, the number of students and exchange visitors who receive initial mismatches should be reduced. In 2010, ICE will be launching a new version of SEVIS, SEVIS II, which will include employment eligibility information that E-Verify will be able to access electronically. Currently, the SEVIS database is checked manually by immigration status verifiers after an initial mismatch is issued. See, *Adjusting Program Fees and Establishing Procedures for Out-of-Cycle Review and Recertification of Schools Certified by the Student and Exchange Visitor Program To Enroll F or M Nonimmigrant Students,* 73 FR 21260 (Apr. 21, 2008) (proposed rule); 73 FR 55683 (Sept. 26, 2008) (final rule) (establishing fees and cost base for SEVIS II). DHS is dedicated to providing this service to employers and continuing to make improvements to the system to address issues such as usability, fraud, discrimination, and further improve the system's automatic verification rate. E-Verify will continue to be a key element of DHS's ability to deter employment of unauthorized aliens and illegal immigration. Additionally, the ICE Mutual Agreement between Government and Employers (IMAGE) program assists employers to develop a more secure and stable workforce and to enhance fraudulent document awareness through education and training to combat unlawful employment and reduce vulnerabilities. Employers can reduce unauthorized employment and the use of fraudulent identity documents by voluntarily participating in the IMAGE program. As part of IMAGE, ICE and USCIS provide education and training on proper hiring procedures, fraudulent document detection, and the use of the E-Verify employment eligibility verification program. Since 2006, ICE has partnered with industry to provide “best practices,” training, and recommended tools that industry can use to comply with worksite laws and requirements. In FY 2008, ICE outreach coordinators in 26 field offices made 517 IMAGE presentations to more than 8,300 businesses. DHS believes that a comprehensive strategy to address worksite enforcement creates a culture of industry compliance. To that end, IMAGE outreach efforts have increased significantly since the inception of the program. Opportunities for employment remain a primary motivation for aliens seeking illegal entry into the United States. ICE's worksite enforcement program targets unscrupulous employers who prey upon these aliens by subjecting them to poor or unsafe working conditions or paying them sub-standard wages. ICE's multi-faceted worksite enforcement strategy targets two types of employers: employers whose business model relies upon an unauthorized workforce, and employers who place the national security of the United States at risk by employing unauthorized workers in sensitive critical infrastructure industries. Employers hire undocumented workers to obtain a financial advantage over their competitors by paying lower wages, offering few if any benefits, failing to comply with tax laws, and avoiding health and safety related complaints. ICE focuses on the most egregious violators, namely employers who engage in human smuggling, identity theft, and social security number fraud. ICE also focuses on employers who use undocumented workers at our Nation's critical infrastructure sites, including airports. DHS's worksite enforcement strategy includes a restructured process for worksite administrative fines to build a more vigorous program. ICE has established and distributed to all field offices guidance about the issuance of administrative fines and standardized criteria for the imposition of such fines. DHS expects that the increased use of the administrative fines process will result in meaningful penalties for those who engage in the employment of unauthorized workers. ICE has also implemented a debarment policy that prevents employers from receiving Federal contracts when they are in violation of worksite laws. After completion of administrative proceedings and on the basis of a determination that an employer has violated the worksite laws, an offending employer may be excluded from doing business with the Federal Government or from receiving loans under the Recovery Act. Since this relatively new program began, thirty-one companies and forty individuals have been debarred. ICE also created the Document and Benefit Fraud Task Forces (DBFTF) to combat the vulnerabilities exploited by identity and document fraud organizations and to maintain the integrity of the United States immigration system. The DBFTF cooperative effort leverages multiple law enforcement tools and authorities to identify, disrupt, and dismantle criminal organizations involved in immigration benefit fraud and the manufacturing and distribution of fraudulent identity documents, including United States passports, birth certificates, state-issued identification cards, social security cards, and alien registration documents. In these taskforces, ICE and USCIS work with the law enforcement functions and the Inspectors General of the Departments of Labor and State, the Social Security Administration, U.S. Postal Service, and various state and local law enforcement agencies. The aggregate of these changes in enforcement priorities must be balanced with other efforts of the U.S. government. In addition, as noted in the 2008 Supplemental Final Rule, SSA has continued to refine the wage reporting process in ways that help to reduce potential errors resulting in a no-match letter. As noted previously, electronic filing of Forms W-2 rose from 53% of all employee reports in FY2003 to over 80% in FY2007—a 51% increase. 1 SSA has more recently reported a further increase in electronic filing of Forms W-2 to 86.3%. 2 Employers who use SSA's system are able to eliminate most no-matches in their reports and thereby significantly reduce their likelihood of receiving a no-match letter. SSA improvements in related areas have led the SSA Inspector General to question the efficacy of the continuing use of no-match letters. 3 1 Social Security Administration, *Performance and Accountability Report, Fiscal Year 2007* at 67-8. 2 Social Security Administration, *Performance and Accountability Report, Fiscal Year 2008* at 175. 3 Office of the Inspector General, Social Security Administration, *Quick Response Evaluation: Effectiveness of Educational Correspondence to Employers,* Audit Rept. No. A-030-07-17105 (Dec. 2008) (“[O]ur review showed EDCOR letters were not as successful as other SSA processes in removing suspended wage items from the ESF”). Finally, as noted in the Supplemental Final Rule, SSA no-match letters have also formed a basis for multiple criminal investigations by ICE and prosecutions on charges of harboring or knowingly hiring unauthorized aliens. 4 DHS has determined that focusing on the management practices of employers would be more efficacious than focusing on a single element of evidence within the totality of the circumstances. 4 73 FR at 63848 & n.2. Further developments in the criminal cases previously noted in this rulemaking illustrate the utility of focusing attention on employer and employer management conduct. *United States* v. *Gonzales,* 2008 WL 160636 (N.D. Miss. No. 4:07-CR-140, Jan. 18, 2008) (final order of forfeiture of $310,511.75, as to Gonzalez and Tarrasco Steel Company, Inc.); *United States* v. *Insolia,* No. 1:07-CR-10251 (D. Mass), (Insolia plead guilty to harboring and submitting false social security numbers; to serve 13 to 18 months, fined $30,000; MBI plead guilty to 18 counts of knowingly hiring unauthorized workers between early 2004 and late 2006; harboring and shielding from 2004-2007; social security and mail fraud from 2005-2007; fine approximately $1,500,000, including $476,000 in restitution to employees; managers also plead guilty); *United States* v. *Rice,* No. 1:07-CR-109 (N.D.N.Y) (IFCO Systems reached corporate settlement of $2,600,000 in back pay for overtime violations and $18,100,000 in civil forfeitures. Nine IFCO managers previously plead guilty (including Rice) (indictment of seven managers for illegal immigration and employment-related practices filed). Accordingly, DHS proposes to rescind the 2007 Final Rule and 2008 Supplemental Final Rule, and reinstate the language of 8 CFR 274.1(l) as it existed prior to the effective date of the 2007 Final Rule. IV. Statutory and Regulatory Reviews A. Administrative Procedure Act DHS is publishing this proposed rule in the **Federal Register** as a discretionary request for public comment. DHS has previously stated that the regulation that is being rescinded was an interpretive, not legislative, rule. 73 FR 15951 (March 26, 2008) (supplemental proposed rule); 73 FR 63861 (Oct. 28, 2008) (supplemental final rule). DHS believes that rescission of the regulation is an interpretive rule for the same reasons that the underlying regulation being rescinded was an interpretive rule. B. Regulatory Flexibility Act Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. This proposed rule would amend DHS regulations to rescind the amendments promulgated in the 2007 Final Rule and the 2008 Supplemental Final Rule relating to procedures that employers may take to acquire a safe harbor from evidentiary use of receipt of no-match letters. Implementation of the 2007 Final Rule was preliminarily enjoined by the United States District Court for the Northern District of California on October 10, 2007. This rule would reinstate the language of 8 CFR 274.1(l) as it existed prior to the effective date of the 2007 Final Rule. As explained at 73 FR 63863, DHS does not believe the safe-harbor offered by the 2007 Final Rule and the 2008 Supplemental Final Rule imposed a mandate that forced employers to incur “compliance” costs for the purposes of the Regulatory Flexibility Act. Only small entities that choose to avail themselves to the safe harbor would incur direct costs as a result of the 2007 Final Rule and the 2008 Supplemental Final Rule. As this rulemaking proposes to rescind the offer of a safe harbor, this rule does not propose any compliance requirements and consequently would not impose any direct costs on small entities if promulgated as a final rule. Therefore, DHS certifies under 5 U.S.C 605(b) that this notice of proposed rulemaking will not have a significant economic impact on a substantial number of small entities. DHS invites comments from small entities regarding any direct costs commenters believe this rulemaking would impose. C. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in one year, and it would not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, Public Law No. 104-4, 109 Stat. 48 (1995), 2 U.S.C. 1501 *et seq.* D. Small Business Regulatory Enforcement Fairness Act of 1996 This proposed rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996, Public Law 104-121, 804, 110 Stat. 847, 872 (1996), 5 U.S.C. 804(2). This proposed rule has not been found to be likely to result in an annual effect on the economy of $100 million or more, a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic or foreign markets. E. Executive Order 12866 (Regulatory Planning and Review) This proposed rule constitutes a “significant regulatory action” under Executive Order 12866, and therefore has been reviewed by the Office of Management and Budget. Under Executive Order 12866, a significant regulatory action is subject to an Office of Management and Budget
(OMB)review and to the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may
(1)have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2)create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights or obligations of recipients thereof; or
(4)raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Because this rule rescinds two previously published rules that received considerable public attention and involves multiple agencies of the United States, this rule raises novel policy issues and, thereby, is subject to OMB review. F. Executive Order 13132 (Federalism) This rule does 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. Therefore, in accordance with section 6 of Executive Order No. 13132, 64 FR 43,255 (Aug. 4, 1999), this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. G. Executive Order 12988 (Civil Justice Reform) This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order No.12988, 61 Fed. Reg. 4729 (Feb. 5, 1996). H. Paperwork Reduction Act This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). List of Subjects in 8 CFR Part 274a Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements. Accordingly, for the reasons set forth in the preamble, DHS proposes to amend part 274A of title 8 of the Code of Federal Regulations as follows: 8 CFR CHAPTER 1—DEPARTMENT OF HOMELAND SECURITY PART 274a—CONTROL OF EMPLOYMENT OF ALIENS 1. The authority citation for part 274a continues to read as follows: Authority: 8 U.S.C. 1101, 1103, 1624a, 8 CFR part 2, Public Law 101-410, 104 Stat. 890, as amended by Public Law 104-134, 110 Stat. 1321. 2. Section 274a.1 is proposed to be amended by revising paragraph
(l)to read as follows: § 274a.1 Definitions. (l)(1) The term *knowing* includes not only actual knowledge but also knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition. Constructive knowledge may include, but is not limited to, situations where an employer:
(i)Fails to complete or improperly completes the Employment Eligibility Verification Form, I-9;
(ii)Has information available to it that would indicate that the alien is not authorized to work, such as Labor Certification and/or an Application for Prospective Employer; or
(iii)Acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf.
(2)Knowledge that an employee is unauthorized may not be inferred from an employee's foreign appearance or accent. Nothing in this definition should be interpreted as permitting an employer to request more or different documents than are required under section 274(b) of the Act or to refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual. Janet Napolitano, Secretary. [FR Doc. E9-19826 Filed 8-18-09; 8:45 am] BILLING CODE 9111-28-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2009-0715; Directorate Identifier 2008-NM-211-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-120, -120ER, -120FC, -120QC, and -120RT Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: It has been found the occurrence of corrosion on the Auxiliary Power Unit
(APU)mounting rods that could cause the APU rod to break, affecting the APU support structure integrity. APU support structure failure could result in undetectable fire in the tail cone and possible loss of control of the airplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by September 18, 2009. ADDRESSES: You may send comments by any of the following methods: • Federal eRulemaking Portal: Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • Fax:
(202)493-2251. • Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), Technical Publications Section (PC 060), Av. Brigadeiro Faria Lima, 2170—Putim-12227-901 São Jose dos Campos-SP—BRASIL; telephone: +55 12 3927-5852 or +55 12 3309-0732; fax: +55 12 3927-7546; e-mail: *distrib@embraer.com.br* ; Internet: *http://www.flyembraer.com* . You may review copies of the referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221 or 425-227-1152. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1405; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2009-0715; Directorate Identifier 2008-NM-211-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The Agencia Nacional De Aviacao Civil—Brazil (ANAC), which is the airworthiness authority for Brazil, has issued Brazilian Airworthiness Directive 2008-08-01, dated October 21, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: It has been found the occurrence of corrosion on the Auxiliary Power Unit
(APU)mounting rods that could cause the APU rod to break, affecting the APU support structure integrity. APU support structure failure could result in undetectable fire in the tail cone and possible loss of control of the airplane. Required actions include repetitive inspections for corrosion of the APU auxiliary and center mounting rods and rod ends, and corrective actions if necessary. Corrective actions include removing corrosion, applying anticorrosive treatment, and replacing mounting rods. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Embraer has issued Service Bulletin 120-49-0023, Revision 01, dated June 30, 2008. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 90 products of U.S. registry. We also estimate that it would take about 8 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $57,600, or $640 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Empresa Brasileira de Aeronautica S.A. (EMBRAER):** Docket No. FAA-2009-0715; Directorate Identifier 2008-NM-211-AD. Comments Due Date
(a)We must receive comments by September 18, 2009. Affected ADs
(b)None. Applicability
(c)This AD applies to EMBRAER Model EMB-120, -120ER, -120FC, -120QC, and -120RT airplanes, certified in any category; as identified in Embraer Service Bulletin 120-49-0023, Revision 01, dated June 30, 2008. Subject
(d)Air Transport Association
(ATA)of America Code 49: Airborne Auxiliary Power. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: It has been found the occurrence of corrosion on the Auxiliary Power Unit
(APU)mounting rods that could cause the APU rod to break, affecting the APU support structure integrity. APU support structure failure could result in undetectable fire in the tail cone and possible loss of control of the airplane. Required actions include repetitive inspections for corrosion of the APU auxiliary and center mounting rods and rod ends, and corrective actions if necessary. Corrective actions include removing corrosion, applying anticorrosive treatment, and replacing mounting rods. Actions and Compliance
(f)Unless already done do the following actions:
(1)Within 500 flight hours or two months after the effective date of this AD, whichever occurs first, do an external detailed inspection for corrosion of the APU, auxiliary and center mounting rods, and rod ends. Repeat the inspections thereafter at intervals not to exceed 1,500 flight hours or 6 months, whichever occurs first. If any corrosion is found during any inspection, before further flight, do the actions required by paragraphs (f)(1)(i), (f)(1)(ii), and (f)(1)(iii) of this AD, as applicable. Do all actions required by this paragraph in accordance with the Accomplishment Instructions of Embraer Service Bulletin 120-49-0023, Revision 01, dated June 30, 2008.
(i)If light corrosion (characterized by discoloration or pitting) is found on a mounting rod, remove the corrosion and apply an anticorrosive treatment.
(ii)If moderate corrosion (characterized by surface blistering or evidence of scaling and flaking), or heavy corrosion (characterized by severe blistering exfoliation, scaling and flaking) is found, replace the affected mounting rod with a new mounting rod having the same part number.
(iii)If any corrosion is detected on the rod ends, remove the corrosion and apply an anticorrosive treatment.
(2)Accomplishing of the inspection and corrective actions required by paragraph (f)(1) of this AD before the effective date of this AD in accordance with Embraer Service Bulletin 120-49-0023, dated April 18, 2008, is acceptable for compliance with the corresponding requirements of paragraph (f)(1) of this AD.
(3)Submit a report of the positive findings (including level of corrosion such as Light, Moderate, or Heavy as identified in Embraer Corrosion Prevention Manual
(CPM)51-11-01, on the external surface of the rods as well as the rod ends) of the inspection required by paragraph (f)(1) of this AD to Mr. Antonio Claret—Customer Support Group, Embraer Aircraft Holding, Inc, 276 S.W. 34th Street Fort Lauderdale, FL 33315—USA; telephone
(954)359-3826, at the applicable time specified in paragraph (f)(3)(i) or (f)(3)(ii) of this AD. The report must include the inspection results, a description of any discrepancies found, the airplane serial number, and the number of landings and flight hours on the airplane.
(i)If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.
(ii)If the inspection was accomplished prior to the effective date of this AD: Submit the report within 30 days after the effective date of this AD. FAA AD Differences Note 1: This AD differs from the MCAI and/or service information as follows:
(1)Brazilian Airworthiness Directive 2008-08-01, dated October 21, 2008, requires only a one-time inspection with a compliance time of 1,500 flight hours or 6 months after the effective date of the Brazilian AD, whichever occurs first. However, we have determined that, since the exterior surface of the mounting rods is cadmium-plated and corrosion propagates from inside out, a one-time inspection may not identify the corroded rods if corrosion did not become evident through the cadmium-plated exterior surface. This one-time inspection will not reveal the extent of damage to these rods on the existing fleet and may require subsequent non-destructive inspections
(NDI)to determine the final action. This AD instead requires an initial inspection within the next 500 flight hours or 2 months after the effective date of this AD, whichever occurs first; and repetitive inspections at intervals not to exceed 1,500 flight hours or 6 months, whichever occurs first. This difference has been coordinated with the Agencia Nacional De Aviacao Civil—Brazil (ANAC).
(2)Although Brazilian Airworthiness Directive 2008-08-01, dated October 21, 2008, does not include a reporting requirement, the service bulletin identified in paragraph (f)(1) of this AD does specify reporting findings to Embraer. This AD requires that operators report the results of the inspections to Embraer because the required inspection report will help determine the extent of the corrosion in the affected fleet, from which we will determine if further corrective action is warranted. This difference has been coordinated with ANAC.
(3)Brazilian Airworthiness Directive 2008-08-01, dated October 21, 2008, allows replacement of the affected APU mounting rods by “new ones bearing a new P/N [part number] approved by ANAC [Agência Nacional de Aviação Civil].” However, paragraph (f)(1)(ii) of this AD requires replacing the affected mounting rod only with a new mounting rod having the same part number. Operators may request approval of an alternative method of compliance in order to install a new part number in accordance with the procedures specified in paragraph (g)(1) of this AD. This difference has been coordinated with ANAC. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1405; fax
(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)* Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056.
(4)*Special Flight Permits:* Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the airplane can be modified (if the operator elects to do so), except if two or more center mounting rods or rod ends are heavily corroded or broken, a special flight permit is not permitted. Related Information
(h)Refer to MCAI Brazilian Airworthiness Directive 2008-08-01, dated October 21, 2008, and Embraer Service Bulletin 120-49-0023, Revision 01, dated June 30, 2008, for related information. Issued in Renton, Washington, on August 7, 2009. Stephen P. Boyd, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E9-19851 Filed 8-18-09; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2009-0716; Directorate Identifier 2008-NM-212-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-135 Airplanes; and Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: It has been found the occurrence of corrosion on the Auxiliary Power Unit
(APU)mounting rods that could cause the APU rod to break, affecting the APU support structure integrity. APU support structure failure could result in undetectable fire in the tail cone and possible loss of control of the airplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by September 18, 2009. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:*
(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), Technical Publications Section (PC 060), Av. Brigadeiro Faria Lima, 2170—Putim—12227-901 São Jose dos Campos—SP—BRASIL; telephone: +55 12 3927-5852 or +55 12 3309-0732; fax: +55 12 3927-7546; e-mail: *distrib@embraer.com.br* ; Internet: *http://www.flyembraer.com* . You may review copies of the referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221 or 425-227-1152. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1405; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2009-0716; Directorate Identifier 2008-NM-212-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The Agencia Nacional De Aviacao Civil—Brazil (ANAC), which is the airworthiness authority for Brazil, has issued Brazilian Airworthiness Directive 2008-10-02, dated October 21, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: It has been found the occurrence of corrosion on the Auxiliary Power Unit
(APU)mounting rods that could cause the APU rod to break, affecting the APU support structure integrity. APU support structure failure could result in undetectable fire in the tail cone and possible loss of control of the airplane. Required actions include repetitive inspections for corrosion of the APU auxiliary and center mounting rods and rod ends, and corrective actions if necessary. Corrective actions include removing corrosion, applying anticorrosive treatment, and replacing mounting rods. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Embraer has issued Service Bulletin 145-49-0034, Revision 01, dated September 8, 2008; and Service Bulletin 145LEG-49-0008, Revision 02, dated September 8, 2008. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 761 products of U.S. registry. We also estimate that it would take about 8 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $487,040, or $640 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Empresa Brasileira de Aeronautica S.A. (EMBRAER):** Docket No. FAA-2009-0716; Directorate Identifier 2008-NM-212-AD. Comments Due Date
(a)We must receive comments by September 18, 2009. Affected ADs
(b)None. Applicability
(c)This AD applies to EMBRAER Model EMB-135BJ, -135ER, -135KE, -135KL, and -135LR airplanes; and EMBRAER Model EMB-145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes, certified in any category; as identified Embraer Service Bulletin 145-49-0034, Revision 01, dated September 8, 2008; and Embraer Service Bulletin 145LEG-49-0008, Revision 02, dated September 8, 2008. Subject
(d)Air Transport Association
(ATA)of America Code 49: Airborne Auxiliary Power. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: It has been found the occurrence of corrosion on the Auxiliary Power Unit
(APU)mounting rods that could cause the APU rod to break, affecting the APU support structure integrity. APU support structure failure could result in undetectable fire in the tail cone and possible loss of control of the airplane. Required actions include repetitive inspections for corrosion of the APU auxiliary and center mounting rods and rod ends, and corrective actions if necessary. Corrective actions include removing corrosion, applying anticorrosive treatment, and replacing mounting rods. Actions and Compliance
(f)Unless already done do the following actions:
(1)Within 500 flight hours or two months after the effective date of this AD, whichever occurs first, do an external detailed inspection for corrosion of the APU, auxiliary and center mounting rods, and rod ends. Repeat the inspections thereafter at intervals not to exceed 1,500 flight hours or 6 months, whichever occurs first. If any corrosion is found during any inspection, before further flight, do the actions required by paragraphs (f)(1)(i), (f)(1)(ii), and (f)(1)(iii) of this AD, as applicable. Do all actions required by this paragraph in accordance with the Accomplishment Instructions of Embraer Service Bulletin 145-49-0034, Revision 01, dated September 8, 2008; or Embraer Service Bulletin 145LEG-49-0008, Revision 02, dated September 8, 2008; as applicable.
(i)If light corrosion (characterized by discoloration or pitting) is found on a mounting rod, remove the corrosion and apply an anticorrosive treatment.
(ii)If moderate corrosion (characterized by surface blistering or evidence of scaling and flaking), or heavy corrosion (characterized by severe blistering exfoliation, scaling and flaking) is found, replace the affected mounting rod with a new mounting rod having the same part number.
(iii)If any corrosion is detected on the rod ends, remove the corrosion and apply an anticorrosive treatment.
(2)Accomplishing the inspection and corrective actions required by paragraph (f)(1) of this AD before the effective date of this AD in accordance with Embraer Service Bulletin 145-49-0034, dated April 18, 2008; Embraer Service Bulletin 145LEG-49-0008, dated April 18, 2008; or Embraer Service Bulletin 145LEG-49-0008, Revision 01, dated May 26, 2008; is acceptable for compliance with the corresponding requirements of paragraph (f)(1) of this AD.
(3)Submit a report of the positive findings (including level of corrosion such as Light, Moderate, or Heavy as identified in Embraer Corrosion Prevention Manual
(CPM)51-11-01, on the external surface of the rods as well as the rod ends) of the inspection required by paragraph (f)(1) of this AD to the ATTN: Mr. Antonio Claret—Customer Support Group, Embraer Aircraft Holding, Inc, 276 S.W. 34th Street Fort Lauderdale, FL 33315—USA; telephone
(954)359-3826, at the applicable time specified in paragraph (f)(3)(i) or (f)(3)(ii) of this AD. The report must include the inspection results, a description of any discrepancies found, the airplane serial number, and the number of landings and flight hours on the airplane.
(i)If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.
(ii)If the inspection was accomplished prior to the effective date of this AD: Submit the report within 30 days after the effective date of this AD. FAA AD Differences Note 1: This AD differs from the MCAI and/or service information as follows:
(1)Brazilian Airworthiness Directive 2008-10-02, dated October 21, 2008, requires only a one-time inspection with a compliance time of 1,500 flight hours or 6 months after the effective date of the Brazilian AD, whichever occurs first. However, we have determined that, since the exterior surface of the mounting rods is cadmium-plated and corrosion propagates from inside out, a one-time inspection may not identify the corroded rods if corrosion did not become evident through the cadmium plated exterior surface. This one-time inspection will not reveal the extent of damage to these rods on the existing fleet and may require subsequent non-destructive inspections
(NDI)to determine the final action. This AD instead requires an initial inspection within the next 500 flight hours or 2 months after the effective date of this AD, whichever occurs first; and repetitive inspections at intervals not to exceed 1,500 flight hours or 6 months, whichever occurs first. This difference has been coordinated with the Agencia Nacional De Aviacao Civil—Brazil (ANAC).
(2)Although Brazilian Airworthiness Directive 2008-10-02, dated October 21, 2008, does not include a reporting requirement, the service bulletins identified in paragraph (f)(1) of this AD do specify reporting findings to Embraer. This AD requires that operators report the results of the inspections to Embraer because the required inspection report will help determine the extent of the corrosion in the affected fleet, from which we will determine if further corrective action is warranted. This difference has been coordinated with ANAC.
(3)Brazilian Airworthiness Directive 2008-10-02, dated October 21, 2008, allows replacement of the affected APU mounting rods by “new ones bearing a new P/N [part number] approved by ANAC [Agência Nacional de Aviação Civil].” However, paragraph (f)(1)(ii) of this AD requires replacing the affected mounting rod only with a new mounting rod having the same part number. Operators may request approval of an alternative method of compliance in order to install a new part number in accordance with the procedures specified in paragraph (g)(1) of this AD. This difference has been coordinated with ANAC. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1405; fax
(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056.
(4)Special Flight Permits: Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the airplane can be modified (if the operator elects to do so), except if two or more center mounting rods or rod ends are heavily corroded or broken, a special flight permit is not permitted. Related Information
(h)Refer to MCAI Brazilian Airworthiness Directive 2008-10-02, dated October 21, 2008; Embraer Service Bulletin 145-49-0034, Revision 01, dated September 8, 2008; and Embraer Service Bulletin 145LEG-49-0008, Revision 02, dated September 8, 2008, for related information. Issued in Renton, Washington, on August 7, 2009. Stephen P. Boyd, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E9-19852 Filed 8-18-09; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2009-0714; Directorate Identifier 2009-NM-041-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-135BJ, -135ER, -135KE, -135KL, -135LR, -145, -145EP, 145ER, -145MP, -145MR, -145XR, and 145LR Airplanes Modified in Accordance With Brazilian Supplemental Type Certificate
(STC)2002S06-09, 2002S06-10, or 2003S08-01 AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: It was reported that after commanding the landing gear lever to down the three green landing gear positioning indication was displayed followed by the LG/LEVER DISAGREE EICAS [engine indicating and crew alerting system] message. The crew decided to continue the approach and landing procedure. As soon as the crew identified that the landing gear was not extended properly, a go-around procedure was successfully performed. During maneuver, the airplane settled momentarily onto the flaps and belly. The unsafe condition is the landing gear remaining in the up and locked position during approach and landing and accompanied by an invalid EICAS landing gear position indication, which could result in landing with gear in the up position, and eliminate controllability of the airplane on ground. This may consequently result in structural damage to the airplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by September 18, 2009. ADDRESSES: You may send comments by any of the following methods: • Federal eRulemaking Portal: Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • Fax:
(202)493-2251. • Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), Technical Publications Section (PC 060), Av. Brigadeiro Faria Lima, 2170—Putim—12227-901 São Jose dos Campos—SP—BRASIL; telephone: +55 12 3927-5852 or +55 12 3309-0732; fax: +55 12 3927-7546; e-mail: *distrib@embraer.com.br* ; Internet: *http://www.flyembraer.com* . You may review copies of the referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221 or 425-227-1152. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone
(425)227-1405; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2009-0714; Directorate Identifier 2009-NM-041-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian Airworthiness Directive 2009-01-01, effective January 8, 2009, as corrected by Brazilian Airworthiness Directive Errata, effective January 20, 2009 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: It was reported that after commanding the landing gear lever to down the three green landing gear positioning indication was displayed followed by the LG/LEVER DISAGREE EICAS [engine indicating and crew alerting system] message. The crew decided to continue the approach and landing procedure. As soon as the crew identified that the landing gear was not extended properly, a go-around procedure was successfully performed. During maneuver, the airplane settled momentarily onto the flaps and belly. The unsafe condition is the landing gear remaining in the up and locked position during approach and landing and accompanied by an invalid EICAS landing gear position indication, which could result in landing with gear in the up position, and eliminate controllability of the airplane on ground. This may consequently result in structural damage to the airplane. Required actions include replacing the landing gear electronic unit with a new one having a new part number. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Embraer has issued Service Bulletins 145-32-0120, Revision 01, dated November 4, 2008; and 145LEG-32-0032, Revision 02, dated February 17, 2009. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 711 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $113,760, or $160 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Empresa Brasileira de Aeronautica S.A. (EMBRAER):** Docket No. FAA-2009-0714; Directorate Identifier 2009-NM-041-AD. Comments Due Date
(a)We must receive comments by September 18, 2009. Affected ADs
(b)None. Applicability
(c)This AD applies to EMBRAER Model EMB-135BJ, -135ER, -135KE, -135KL, -135LR, -145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes, certificated in any category, modified according to Brazilian Supplemental Type Certificate 2002S06-09, 2002S06-10 or 2003S08-01, and equipped with landing gear electronic unit
(LGEU)part number (P/N) 355-022-002. Subject
(d)Air Transport Association
(ATA)of America Code 32: Landing gear. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: It was reported that after commanding the landing gear lever to down the three green landing gear positioning indication was displayed followed by the LG/LEVER DISAGREE EICAS [engine indicating and crew alerting system] message. The crew decided to continue the approach and landing procedure. As soon as the crew identified that the landing gear was not extended properly, a go-around procedure was successfully performed. During maneuver, the airplane settled momentarily onto the flaps and belly. The unsafe condition is the landing gear remaining in the up and locked position during approach and landing and accompanied by an invalid EICAS landing gear position indication, which could result in landing with gear in the up position, and eliminate controllability of the airplane on ground. This may consequently result in structural damage to the airplane. Required actions include replacing the LGEU with a new one having a new part number. Actions and Compliance
(f)Unless already done, do the following actions:
(1)Within 12 months after the effective date of this AD, replace any LGEU P/N 355-022-002 having a serial number (S/N) 1000 through 1999 inclusive with a new LGEU having P/N 355-022-003, in accordance with the Accomplishment Instructions of Embraer Service Bulletin 145-32-0120, Revision 01, dated November 4, 2008; or 145LEG-32-0032, Revision 02, dated February 17, 2009; as applicable.
(2)As of 12 months after the effective date of this AD, no person may install on any airplane an LGEU having a P/N 355-022-002 and S/N 1000 through 1999 inclusive.
(3)Within 30 months after the effective date of this AD, replace any LGEU P/N 355-022-002 having a serial number not identified in paragraph (f)(1) of this AD, with a new LGEU having a P/N 355-022-003, in accordance with the Accomplishment Instructions of Embraer Service Bulletin 145-32-0120, Revision 01, dated November 4, 2008; or 145LEG-32-0032, Revision 02, dated February 17, 2009; as applicable.
(4)As of 30 months after the effective date of this AD, no person may install on any airplane an LGEU having a P/N 355-022-002.
(5)Replacement of the LGEU is also acceptable for compliance with the requirements of paragraph
(f)of this AD if done before the effective date of this AD in accordance with one of the service bulletins identified in Table 1 of this AD: Table 1—Credit Service Bulletins Embraer Service Bulletin— Revision— Dated— 145LEG-32-0032 Original October 8, 2008. 145LEG-32-0032 01 November 4, 2008. 145-32-0120 Original September 15, 2008. FAA AD Differences Note 1: This AD differs from the MCAI and/or service information as follows: Although Embraer Service Bulletins 145LEG-32-0032, Revision 02, dated February 17, 2009; and 145-32-0120, Revision 01, dated November 4, 2008; specify that no person may install on any airplane an LGEU P/N 355-022-002 as of 30 months after the effective date of this AD, we have determined that no LGEU P/N 355-022-002 with a S/N 1000 through 1999 inclusive may be installed 12 months after the effective date of this AD. Allowing installation of those serial numbers beyond 12 months would not address the identified unsafe condition and ensure an adequate level of safety. This difference has been coordinated with the Agência Nacional de Aviação Civil (ANAC). Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1405; fax
(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your principal maintenance inspector
(PMI)or principal avionics inspector (PAI), as appropriate, or lacking a principal inspector, your local Flight Standards District Office. The AMOC approval letter must specifically reference this AD.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI ANAC Airworthiness Directive 2009-01-01, effective January 8, 2009, as corrected by Brazilian Airworthiness Directive Errata, effective January 20, 2009; and the service bulletins listed in Table 2 of this AD; for related information. Table 2—Related Service Bulletins Embraer Service Bulletin— Revision— Dated— 145-32-0120 01 November 4, 2008. 145LEG-32-0032 02 February 17, 2009. Issued in Renton, Washington, on August 7, 2009. Stephen P. Boyd, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E9-19853 Filed 8-18-09; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2009-0686; Directorate Identifier 2009-NM-044-AD] RIN 2120-AA64 Airworthiness Directives; McDonnell Douglas Model MD-11 and MD-11F Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for certain McDonnell Douglas Model MD-11 and MD-11F airplanes. This proposed AD would require a one-time inspection to determine if wires touch the upper surface of the center upper auxiliary fuel tank and marking the location, if necessary; a one-time inspection of all wire bundles above the center upper auxiliary fuel tank for splices and damage; a one-time inspection for damage to the fuel vapor barrier seal and upper surface of the center upper auxiliary fuel tank; and corrective actions, if necessary. This proposed AD would also require installation of nonmetallic barrier/shield sleeving, new clamps, new attaching hardware, and a new extruded channel. This proposed AD results from fuel system reviews conducted by the manufacturer. We are proposing this AD to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. DATES: We must receive comments on this proposed AD by October 5, 2009. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, 3855 Lakewood Boulevard, MC D800-0019, Long Beach, California 90846-0001; telephone 206-544-5000, extension 2; fax 206-766-5683; e-mail *dse.boecom@boeing.com* ; Internet *https://www.myboeingfleet.com* . You may review copies of the referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221 or 425-227-1152. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Samuel Lee, Aerospace Engineer, Propulsion Branch, ANM-140L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone
(562)627-5262; fax
(562)627-5210. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2009-0686; Directorate Identifier 2009-NM-044-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (67 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design ( *i.e.* , type certificate
(TC)and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews. In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with another latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. We have received a report that wire bundles routed above the center upper auxiliary fuel tank are in close proximity to the upper surface of the tank on certain McDonnell Douglas Model MD-11 and MD-11F airplanes. In addition, some wire harness mounts may have loosened, allowing the wires to contact the tank. This condition may cause wire damage or chafing that can lead to possible arcing, sparking, and burn-through on the fuel tank upper surface, which can result in a fuel tank explosion. Relevant Service Information We have reviewed Boeing Service Bulletin MD11-28-126, Revision 1, dated June 18, 2009, which describes procedures for the following actions. • A general visual inspection to determine if wires touch the upper surface of the center upper auxiliary fuel tank; and marking the location(s) where the wire bundle(s) contacts the upper surface of the center upper auxiliary fuel tank. • A detailed inspection for splices and damage (such as chafing, arcing, and broken insulation) of all wire bundles above the center upper auxiliary fuel tank, and corrective actions if necessary. The corrective actions include repairing or replacing damaged wires, and relocating any splice. • A detailed inspection for damage (burn marks) on the upper surface of the center upper auxiliary fuel tank and fuel vapor barrier seal, and corrective actions if necessary. The corrective actions include repairing the vapor barrier seal and contacting Boeing for repair instructions and doing the repair. • Installing nonmetallic barrier/shield sleeving to the wire harnesses, new clamps, new attaching hardware, and a new extruded channel, to raise the wire harnesses off the upper surface of the center upper auxiliary fuel tank. FAA's Determination and Requirements of This Proposed AD We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between Proposed AD and Service Information.” Differences Between Proposed AD and Service Information Boeing Service Bulletin MD11-28-126, Revision 1, dated June 18, 2009, specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways: • Using a method that we approve; or • Using data that meet the certification basis of the airplane, and that have been approved by a Structures Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make those findings. Costs of Compliance We estimate that this proposed AD would affect 111 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. Estimated Costs Action Work hours Average labor rate per hour Parts Cost per product Number of U.S.-registered airplanes Fleet cost Inspection/Installation 1 136 to 154 $80 $9,405 to $12,201 $20,285 to $24,521 111 $2,251,635 to $2,721,831. 1 Depending on airplane configuration. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866, 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979), and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **McDonnell Douglas:** Docket No. FAA-2009-0686; Directorate Identifier 2009-NM-044-AD. Comments Due Date
(a)We must receive comments by October 5, 2009. Affected ADs
(b)None. Applicability
(c)This AD applies to Model MD-11 and MD-11F airplanes, certificated in any category, as identified in Boeing Service Bulletin MD11-28-126, Revision 1, dated June 18, 2009. Subject
(d)Air Transport Association
(ATA)of America Code 28: Fuel. Unsafe Condition
(e)This AD results from fuel system reviews conducted by the manufacturer. The Federal Aviation Administration is issuing this AD to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Compliance
(f)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Actions
(g)Within 60 months after the effective date of this AD: Do the actions specified in paragraphs (g)(1), (g)(2), (g)(3), (g)(4), and (g)(5) of this AD, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing Service Bulletin MD11-28-126, Revision 1, dated June 18, 2009, except as required by paragraph
(h)of this AD. Do all applicable corrective actions before further flight.
(1)Do a general visual inspection to determine if wires touch the upper surface of the center upper auxiliary fuel tank, and mark the location, as applicable.
(2)Do a detailed inspection for splices and damage of all wire bundles above the center upper auxiliary fuel tank.
(3)Do a detailed inspection for damage (burn marks) on the upper surface of the center upper auxiliary fuel tank.
(4)Do a detailed inspection for damage (burn marks) on the fuel vapor barrier seal.
(5)Install nonmetallic barrier/shield sleeving, new clamps, new attaching hardware, and a new extruded channel.
(h)If damage (burn marks) is found on the upper surface of the center upper auxiliary fuel tank during any inspection required by paragraph (g)(3) of this AD, and Boeing Service Bulletin MD11-28-126, Revision 1, dated June 18, 2009, specifies to contact Boeing for repair instructions: Before further flight, repair the auxiliary fuel tank using a method approved in accordance with the procedures specified in paragraph (j)(3) of this AD. Actions Accomplished According to Previous Issue of Service Bulletin
(i)Actions accomplished before the effective date of this AD according to Boeing Service Bulletin MD11-28-126, dated March 3, 2009, are considered acceptable for compliance with the corresponding actions specified in this AD. Alternative Methods of Compliance (AMOCs) (j)(1) The Manager, Los Angeles Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Samuel Lee, Aerospace Engineer, Propulsion Branch, ANM-140L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone
(562)627-5262; fax
(562)627-5210.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your principal maintenance inspector
(PMI)or principal avionics inspector (PAI), as appropriate, or lacking a principal inspector, your local Flight Standards District Office. The AMOC approval letter must specifically reference this AD.
(3)An AMOC that provides an acceptable level of safety may be used for any repair of the center upper auxiliary tank required by this AD, if it is approved by a Structures Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Los Angeles ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD. Issued in Renton, Washington, on August 4, 2009. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E9-19850 Filed 8-18-09; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF LABOR Employment and Training Administration 20 CFR Parts 652, 661, 662, 663, 664 and 667 RIN 1205-AB46 Workforce Investment Act Amendments AGENCY: Employment and Training Administration (ETA), Labor. ACTION: Proposed rule; withdrawal. SUMMARY: The Department of Labor (DOL or Department) is announcing the withdrawal of the proposed rule that was published in the **Federal Register** on December 20, 2006 (71 FR 76558) relating to policy changes to the Workforce Investment Act and Wagner-Peyser Act Regulations. The Department no longer considers this proposed rule viable for final action at this time. DATES: Effective August 19, 2009, the Department withdraws the proposed rule published on December 20, 2006, at 71 FR 76558. FOR FURTHER INFORMATION CONTACT: Thomas M. Dowd, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5641, Washington, DC 20210, telephone:
(202)693-3700 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339. SUPPLEMENTARY INFORMATION: I. Background The Workforce Investment Act
(WIA)enacted in August 1998, reformed Federal job training programs and created a new, comprehensive workforce investment system. The legislation replaced the Job Training Partnership Act and amended the Wagner-Peyser Act. WIA authorization for appropriations expired on September 30, 2003. Although WIA reauthorization bills passed the House and the Senate, the reauthorization legislation was not enacted, and Congress continued to annually authorize and fund these programs through annual appropriations. In the absence of reauthorizing legislation, the Department published a Notice of Proposed Rulemaking
(NPRM)on December 20, 2006, to implement several policy changes to the Workforce Investment Act and Wagner-Peyser Act regulations. (71 FR 76558). Subsequently, in February 2007, Congress enacted language in the revised Continuing Resolution (Pub. L. 110-5, sec. 20601(a)(4)), prohibiting the Department from finalizing or implementing any proposed regulations under the Workforce Investment Act until legislation reauthorizing the Act is enacted. The prohibition has been reenacted annually, most recently in the Department of Labor Appropriations Act, 2009 (Pub. L. 111-8, Div. G, sec. 110). II. Withdrawal of the Proposed Rule The Department has decided to withdraw the proposed rule based upon the continuing Congressional prohibition against publishing a rule until the Workforce Investment Act is reauthorized. The Department notes, however, that the withdrawal of this proposed rule does not preclude it from reinstituting rulemaking concerning the issues addressed in the proposal at a future date. Should a future rulemaking ensue, the Department will provide a new opportunity for public comment on such a proposal. Signed at Washington, DC, this 12th day of August 2009. Jane Oates, Assistant Secretary, Employment and Training Administration. [FR Doc. E9-19801 Filed 8-18-09; 8:45 am] BILLING CODE 4510-FN-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2009-0670] RIN 1625-AA09 Drawbridge Operation Regulation; Franklin Canal, Franklin, LA AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to change the regulation governing the operation of the Chatsworth Road swing span bridge across the Franklin Canal, mile 4.8, at Franklin, St. Mary Parish, Louisiana. The St. Mary Parish Government has requested that the operating regulation of the Chatsworth Road swing span bridge be changed in order for the bridge not to have to be continuously manned by a draw tender. This change would allow the bridge to remain unmanned during most of the day by requiring a one-hour notice for an opening of the draw between 5 a.m. and 9 p.m. daily. Currently the bridge opens on signal during this time period. DATES: Comments and related material must reach the Coast Guard on or before October 19, 2009. Requests for public meetings must be received by the Coast Guard on or before September 3, 2009. ADDRESSES: You may submit comments identified by docket number USCG-2009-0670 using one of the following methods:
(1)*Federal eRulemaking Portal: http://www.regulations.gov* .
(2)*Fax:* 202-493-2251.
(3)*Mail:* Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
(4)*Hand delivery:* Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329. To avoid duplication, please use only one of these methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instruction on submitting comments. FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed rule, call or e-mail Phil Johnson, Bridge Administration Branch, Eighth Coast Guard District; telephone 504-671-2128, e-mail *Philip.R.Johnson@uscg.mil* . If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to *http://www.regulations.gov* and will include any personal information you have provided. Submitting Comments If you submit a comment, please include the docket number for this rulemaking (USCG-2009-0670), indicate the specific section of this document to which each comment applies, and provide the reason for each suggestion or recommendation. You may submit your comments and material online ( *http://www.regulations.gov* ), or by fax, mail or hand delivery, but please use only one of these means. If you submit a comment online via *http://www.regulations.gov* , it will be considered as having been received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. To submit your comment online, go to *http://www.regulations.gov* , click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rules” and insert “USCG-2009-0670” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8½ by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments. Viewing Comments and Documents To view comments, as well as documents mentioned in this preamble as being available in the docket, go to *http://www.regulations.gov* , click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2009-0670” and click “Search.” Click on the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility. Privacy Act Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, *etc.* ). You may review the Privacy Act notice regarding our public dockets in the January 17, 2008 issue of the **Federal Register** (73 FR 3316). Public Meeting We do not now plan to hold a public meeting. But you may submit a request for one on or before September 3, 2009 using one of the four methods specified under ADDRESSES . Please explain why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register.** Background and Purpose The St. Mary Parish Government has requested that the operating regulation of the Chatsworth Road swing span bridge, located on the Franklin Canal at mile 4.8 in Franklin, St. Mary Parish, Louisiana, be changed in order for the bridge not to have to be continuously manned by a draw tender from 5 a.m. to 9 p.m. when the bridge is now required to open on signal. Because of the relocation of a public boat landing downstream of the bridge, vessel traffic has become infrequent, and it is no longer necessary to have a bridge tender continuously man the bridge. Concurrent with the publication of the Notice of Proposed Rulemaking, a Test Deviation [USCG-2009-0670] has been issued to allow the St. Mary Parish Government to test the proposed schedule and to obtain data and public comments. The test period will be in effect during the entire Notice of Proposed Rulemaking comment period. The Coast Guard will review the logs of the drawbridge and evaluate public comments from this Notice of Proposed Rulemaking and the above referenced Temporary Deviation to determine if a change to the permanent special drawbridge operating regulation is warranted. The Test Deviation allows the bridge to operate as follows: The Chatsworth Road Bridge, mile 4.8 at Franklin, shall open on signal from 5 a.m. to 9 p.m. if at least one hour notice is given. From October 1 through January 31 from 9 p.m. to 5 a.m., the draw shall be opened on signal if at least three hours notice is given. From February 1 through September 30 from 9 p.m. to 5 a.m., the draw shall open on signal if at least 12 hours notice is given. Discussion of Proposed Rule The bridge owner has requested a change in the operating regulation which would require a one-hour notice for an opening of the draw from 5 a.m. to 9 p.m. daily. Presently, the bridge operates as follows: The draw of the Chatsworth Road Bridge, mile 4.8 at Franklin, shall open on signal from 5 a.m. to 9 p.m. From October 1 through January 31 from 9 p.m. to 5 a.m., the draw shall open on signal if at least three hours notice is given. From February 1 through September 30 from 9 p.m. to 5 a.m., the draw shall open on signal if at least 12 hours notice is given. This rule would allow the bridge to operate as follows: The draw of the Chatsworth Road Bridge, mile 4.8 at Franklin, shall open on signal from 5 a.m. to 9 p.m. if at least one hour notice is given. From October 1 through January 31 from 9 p.m. to 5 a.m., the draw shall be opened on signal if at least three hours notice is given. From February 1 through September 30 from 9 p.m. to 5 a.m., the draw shall open on signal if at least 12 hours notice is given. The proposed rule change to 33 CFR 117.445 would reduce the burden on the bridge owner while maintaining the ability to operate the bridge. Regulatory Analyses We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders. Regulatory Planning and Review This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. The public would need to notify the bridge owner of a required opening only one hour in advance rather than on signal. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of vessels needing to transit the bridge with less than a one hour advance notice. The requests for bridge openings by commercial vessels are infrequent and those vessels that do require an opening of the draw are normally able to schedule operations in conjunction with advance requests for openings. Vessels patronizing commercial facilities upstream of the bridge will be easily able to contact the bridge tender an hour prior to anticipating arrival at the bridge. The bridge provides a vertical clearance of 7 feet above high water. Thus, many small commercial or pleasure craft can safely transit under the bridge at any time. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Phil Johnson, Bridge Administration Branch, at 504-671-2128. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01, and Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment because it simply promulgates the operating regulations or procedures for drawbridges. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. List of Subjects in 33 CFR Part 117 Bridges. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1. 2. § 117.445 is revised to read as follows: § 117.445 Franklin Canal. The draw of the Chatsworth Bridge, mile 4.8 at Franklin, shall open on signal from 5 a.m. to 9 p.m. if at least one hour notice is given. From October 1 through January 31 from 9 p.m. to 5 a.m., the draw shall be opened on signal if at least three hours notice is given. From February 1 through September 30 from 9 p.m. to 5 a.m., the draw shall open on signal if at least 12 hours notice is given. Dated: August 4, 2009. Mary E. Landry, Rear Admiral, U.S. Coast Guard Commander, Eighth Coast Guard District. [FR Doc. E9-19825 Filed 8-18-09; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2009-0470; FRL-8946-3] Approval and Promulgation of Air Quality Implementation Plans; California; Motor Vehicle Inspection and Maintenance Program AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve state implementation plan revisions submitted by the State of California on June 5, 2009 relating to the State's basic and enhanced vehicle inspection and maintenance (I/M) program. EPA is also proposing to find, with two exceptions, that California's program meets the requirements of the Clean Air Act and EPA regulations for basic and enhanced I/M programs. EPA is making the proposed approval contingent upon California's submittal of revisions to the enhanced program performance standard evaluations to address a different attainment year for the Western Mojave Desert 8-hour ozone nonattainment area and to address California's base-year program performance. If the necessary information is not provided, then EPA is proposing a partial approval and partial disapproval of California's June 5, 2009 I/M submittal. Under these circumstances, EPA is proposing approval of all of the submittal, except for the enhanced I/M performance standard evaluations for which EPA is proposing disapproval. The effect of this action would be to make the revisions federally enforceable as part of the California state implementation plan. DATES: Comments must be received on or before September 18, 2009. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-OAR-2009-0470, by one of the following methods: 1. Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the on-line instructions. 2. E-mail: *buss.jeffrey@epa.gov* . 3. Mail or deliver: Jeffrey Buss (Air-2), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. *Instructions:* All comments will be included in the public docket without change and may be made available online at *www.regulations.gov* , including any personal information provided, unless the comment includes Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* portal is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA without going through *http://www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disc or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, *i.e.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Jeffrey Buss, EPA Region IX,
(415)947-4152, *buss.jeffrey@epa.gov* . SUPPLEMENTARY INFORMATION: Throughout this document, the terms “we”, “us”, and “our” refer to EPA. Table of Contents I. Background II. Summary of California Submittal III. EPA Review of the SIP Revision A. SIP Procedural Requirements B. Substantive I/M Requirements C. Section 110(l) of the Act IV. Proposed Action and Public Comment V. Statutory and Executive Order Reviews I. Background The general purpose of motor vehicle inspection and maintenance (“I/M”) programs is to reduce emissions from in-use motor vehicles in need of repairs and thereby contribute to state and local efforts to improve air quality and to attain the national ambient air quality standards (NAAQS). California has operated an I/M program, also known as the “Smog Check” program, in certain areas of the state for over 20 years. Over these years, California has expanded both the geographical scope of the program and the types of vehicles covered by it. Under California law, the Bureau of Automotive Repair
(BAR)is responsible for developing and implementing the State's I/M program. The California Air Resources Board
(CARB)is designated under California law as the agency responsible for the preparation of the state implementation plan
(SIP)required by the Clean Air Act (CAA or “Act”). The I/M program is one of the many elements of the California SIP. The CAA, as amended in 1990, requires that certain urban areas adopt either “basic” or “enhanced” I/M programs, depending on the severity of their air quality problem and their population. CAA section 182(a)(2)(B) directs EPA to publish updated guidance for state I/M programs, taking into consideration the findings of EPA's audits and investigations of these programs. The Act further directs that each area required to have an I/M program incorporate this guidance into its SIP. Based on these CAA requirements, EPA promulgated I/M regulations on November 5, 1992 (57 FR 51950), as corrected at 58 FR 59366 (November 9, 1993) and at 59 FR 32343 (June 23, 1994). EPA's I/M regulations are codified at 40 CFR part 51, subpart S (“Inspection/Maintenance Program Requirements”), sections 51.350 through 51.373. The I/M regulations establish minimum performance standards for “basic” and “enhanced” I/M programs as well as requirements for the following: Network type and program evaluation; adequate tools and resources; test frequency and convenience; vehicle coverage; test procedures and standards; test equipment; quality control; waivers and compliance via diagnostic inspection; motorist compliance enforcement program oversight; quality assurance; enforcement against contractors, stations and inspectors; data collection; data analysis and reporting; inspector training and licensing or certification; public information and consumer protection; improving repair effectiveness; compliance with recall notices; on-road testing; SIP revisions; and implementation deadlines. The performance standard for basic I/M programs remains the same as it has been since EPA's initial I/M policy was established in 1978, pursuant to the 1977 CAA amendments. The performance standard for enhanced I/M programs was established in 1992 pursuant to the 1990 CAA amendments and is based on a high-technology transient test, known as IM240, for 1986 and later model year vehicles, including a transient loaded exhaust short test incorporating hydrocarbons (HC), oxides of nitrogen (NO <sup>X</sup> ), and carbon monoxide
(CO)cutpoints, an evaporative system integrity (pressure) test and an evaporative system performance (purge) test. As a general matter, “basic” and “enhanced” I/M programs both achieve their objective by identifying vehicles that have high emissions as a result of one or more malfunctions, and requiring them to be repaired. An “enhanced” program covers more of the vehicles in operation, employs inspection methods which are better at finding high emitting vehicles, and has additional features to better assure that all vehicles are tested properly and effectively repaired. Under subparts 2 and 3 of Part D, title I of the Act, as amended in 1990, any area having a 1980 Bureau of Census-defined (Census-defined) urbanized area population of 200,000 or more and either:
(1)Designated nonattainment for ozone and classified as serious or worse or
(2)designated as nonattainment for CO and classified as moderate with a design value greater than 12.7 parts per million (“ppm”) or serious must implement enhanced I/M in the 1990 Census-defined urbanized area. CAA sections 182(c)(3), 182(d), 182(e), 187(a)(6) and 187(b)(1). The Act requires basic I/M programs to be implemented in 1990 Census-defined urbanized areas within moderate ozone nonattainment areas. CAA section 182(b)(4). Any area classified as marginal ozone nonattainment or moderate CO nonattainment with a design value of 12.7 ppm or less must continue operating I/M programs that were part of its approved SIP at the time of the 1990 Act Amendments or implement any previously required program, and must update the program to meet the basic I/M requirements set forth in 40 CFR part 51, subpart S. CAA sections 182(a)(2)(B) and 187(a)(4). In response to the various ozone and CO nonattainment area designations established for California in the wake of the 1990 CAA Amendments, BAR made significant changes to the California I/M program during the early 1990s, culminating in a complete I/M SIP submittal dated January 22, 1996. On January 8, 1997, we approved the California I/M statutes and regulations submitted on January 22, 1996 as strengthening the SIP and contributing specific emission reductions toward the progress, attainment, and maintenance requirements of the Act. See 62 FR 1150, at 1168. We also approved the California I/M program, statutes and regulations submitted on January 22, 1996, as meeting the requirements of section 182(b)(4) of the Act for basic I/M in applicable areas of the State classified as moderate for ozone and as meeting the requirements of section 187(a)(4) for the following areas of the State classified as moderate for CO with design values less than 12.7 ppm: Fresno, Sacramento, Modesto, Chico, Stockton and San Diego. We also granted interim approval, to last no more than 18 months, to the California I/M submittal of January 22, 1996, as meeting the requirements of section 182(c)(3) of the CAA for enhanced I/M in applicable areas of the State classified as serious and above for ozone, and the requirements of section 187(a)(6) of the Act for enhanced I/M in the South Coast, which was classified at the time as a “serious” nonattainment area for CO. By the end of the 18-month period, California was to complete and submit a demonstration that the emissions reductions claimed by California for the enhanced I/M program were appropriate. California did not submit such a demonstration and thus the interim approval for the enhanced I/M program as meeting the CAA requirements under section 182(c)(3) for ozone and section 187(a)(6) for CO expired on August 7, 1998. See 40 CFR 52.241. Since August 7, 1998, with respect to ozone, 1 the California SIP no longer meets the specific requirements of the Act relating to enhanced I/M, but the State's I/M statutes and regulations remain in the SIP. 62 FR at 1168. 1 For carbon monoxide, in a 2007 final action redesignating the South Coast to “attainment” for the carbon monoxide NAAQS, we approved California's demonstration that the State's I/M program meets the alternate “low” enhanced I/M performance standard in the South Coast under CAA section 187(a)(6) and 40 CFR 51.351(g). See 72 FR 26718 (May 11, 2007). In our 2007 redesignation rule, we indicated that the State's I/M program submittal of January 22, 1996 remains an approved part of the SIP. See 72 FR 26718, at 26719. As approved in 1997, the California I/M program is implemented on a county-by-county basis as:
(1)A high enhanced biennial program;
(2)a basic biennial program; or
(3)a requirement only upon change of ownership. For counties in California, the type of I/M program in effect varies depending upon air quality designations and whether the area is urbanized. California's basic program is a decentralized test-and-repair program utilizing two-speed idle testing. California's enhanced program is a hybrid program consisting of a network of test-only testing stations as well as privately operated test-and-repair testing stations. Approximately 15 percent of the dirtiest vehicles, based upon high-emitter profile and remote sensing results as well as other factors, are targeted for test-only inspection. All vehicles in the enhanced areas are subject to loaded-mode testing. Licensing requirements for technicians are more stringent and the frequency of enforcement related activities such as on-road testing are greater in enhanced areas than in basic areas. The two programs are essentially the same in all other respects. The approved California I/M program was intended to meet the requirements of EPA's original 1992 I/M regulations (as corrected in 1993 and 1994). EPA has subsequently revised the I/M regulations a number of times. The revisions include: • Revision of I/M SIP requirements for certain areas subject to basic I/M that otherwise qualify for redesignation from nonattainment to attainment for the carbon monoxide or ozone NAAQS, allowing such areas to defer adoption and implementation of certain I/M requirements. See 60 FR 1735 (January 5, 1995); • Establishment of an additional, less stringent enhanced I/M performance standard (known as the alternate “low” enhanced performance standard) for certain areas, revision of the “high” enhanced I/M performance standard to include additional inspection requirements for light-duty vehicles and light duty trucks, and revisions to waiver repair cost requirements. See 60 FR 48029 (September 18, 1995); • Establishment of minimum requirements for inspecting vehicles equipped with on-board diagnostic systems as part of the inspections required in basic and enhanced I/M programs. See 61 FR 40940 (August 6, 1996), as amended at 61 FR 44119 (August 27, 1996); 63 FR 24429 (May 4, 1998); (April 5, 2001); • Revisions to provide additional flexibility to state I/M programs by, among other things, modifying the enhanced I/M performance standard modeling requirements; providing states greater flexibility in how they meet the performance standard; and removing the I/M rule provision establishing the decentralized, test-and-repair credit discount. See 65 FR 45526 (July 24, 2000); • Revision and simplification of certain provisions related to onboard diagnostic
(OBD)inspections including the failure criteria for the OBD-I/M check. See 66 FR 18156 (April 5, 2001); and • Revision of the I/M regulation to update the submission and implementation deadlines and other timing-related requirements to more appropriately reflect the implementation schedule for meeting the 8-hour ozone NAAQS. See 67 FR 17705 (April 7, 2006). A more detailed description of these revisions can be found in the technical support document
(TSD)for this proposal. The approved California I/M program was developed in response to nonattainment designations promulgated under the CAA, as amended in 1990, for the 1-hour ozone NAAQS (as well as for the CO NAAQS). On July 18, 1997, EPA promulgated an 8-hour ozone standard of 0.08 ppm to replace the 1-hour ozone standard. 2 In 2004, EPA designated all areas of the country for the 8-hour ozone NAAQS. See 69 FR 23858 (April 30, 2004) and 40 CFR part 81, subpart C. EPA revoked the 1-hour ozone NAAQS effective June 15, 2005. See 69 FR 23951 (April 30, 2004) and 40 CFR 50.9(b). 2 In 2008 we lowered the 8-hour ozone standard to 0.075 ppm. See 73 FR 16436 (March 27, 2008). The references to the 8-hour standard in this proposed rule are to the 1997 standard as codified at 40 CFR 50.10. EPA has not yet completed the designation and classification process for the 2008 standard. We promulgated in two phases the final rules to implement the 1997 8-hour ozone NAAQS. The Phase 1 rule, which was issued on April 30, 2004 (69 FR 23951), establishes, among other things, the classification structure and corresponding attainment deadlines, as well as the anti-backsliding principles for the transition from the 1-hour ozone standard to the 8-hour ozone standard. I/M programs are among the “applicable requirements” subject to the anti-backsliding principles, which means that I/M programs continue to apply in an eight-hour ozone nonattainment area after revocation of the 1-hour NAAQS to the extent that I/M programs were required in the area by virtue of the area's previous designation and classification for the 1-hour ozone NAAQS. See 40 CFR 51.905. The Phase 2 rule, which was issued on November 29, 2005 (70 FR 71612), addresses the remaining SIP obligations for the 1997 8-hour ozone NAAQS, including the requirements for vehicle I/M programs. In section II of this document, we describe the major changes in California's I/M program relative to the existing SIP-approved I/M program. In section III of this document, we evaluate the changes in light of the revisions to our I/M regulations, the 8-hour ozone designations, and the anti-backsliding principles in EPA's Phase 1 rule. II. Summary of the California Submittal On June 5, 2009, CARB submitted the *Revised State Implementation Plan for California's Motor Vehicle Inspection & Maintenance Program (release date April 7, 2009)* (“2009 I/M Revision”) as a revision to the California SIP. The June 5, 2009 submittal includes a copy of the 2009 I/M Revision itself plus 12 attachments; a letter dated July 16, 2007 from Sherry Mehl, BAR Chief, to Mary D. Nichols, CARB Chairman, committing BAR to work with CARB to obtain additional emissions reductions through changes to the I/M program as outlined in the State Strategy for the 2007 SIP; CARB Executive Order S-09-008 adopting the 2009 I/M Revision; public process documentation (including public comments); and tables listing the changes made to California's I/M statutes and BAR's I/M regulations from 1995 through 2008, accompanied by supporting procedural documentation for the regulatory changes. Attachments to the 2009 I/M Revision include: Listing of Smog Check Programs Laws and Regulations; Map of Program Areas; List of Zip Codes by Program Area; Enhanced I/M Performance Modeling Files; Basic I/M Performance Modeling files; Fund Condition for Vehicle Inspection and Repair Fund
(VIRF)and High Polluter Repair or Removal Account (HPRRA); Vehicle Model Years Subject to Smog Check; Estimate of the California Fleet Subject to Smog Check Program in 2008; the DMV Handbook of Vehicle Registration Procedures, Chapter 21; BAR-97 Revised Emission Inspection System Specifications (December 2002); Draft Smog Check Inspection Manual; and the Low Pressure Fuel Evaporative Tester (LPFET) Specification. The 2009 I/M Revision reflects many changes to the program relative to the existing SIP I/M program. The most significant changes include: • Many areas have opted into the enhanced I/M program. Such areas, referred to as “partially enhanced” areas, are subject to the same requirements as enhanced I/M areas except that no vehicles are directed to have their biennial inspection performed at a test-only station; • California has expanded the existing exemption for older vehicles from the biennial inspection requirement to include vehicles between model years 1966 through 1975 and has added a new exemption, with certain exceptions, for vehicles six or less model-years old; • Since 1998, California has conducted random roadside pullover inspections in accordance with 40 CFR 51.351(b); • Since 2002, California has inspected 1996 and later OBD-equipped vehicles in accordance with 40 CFR 51.351(c) and 40 CFR 51.352(c); • California has replaced the BAR-90 specification for I/M emissions inspection systems with updated BAR-97 specifications; and • Lastly, the I/M program has been revised to include improved quality control methods, data collection systems, and more stringent requirements for certified technicians and instructors who provide training/retraining to technicians. III. EPA Review of the SIP Revision A. SIP Procedural Requirements CAA sections 110(a)(2) and 110(l) require that revisions to a SIP be adopted by the State after reasonable notice and public hearing. EPA has promulgated specific procedural requirements for SIP revisions in 40 CFR part 51, subpart F. These requirements include publication of notices, by prominent advertisement in the relevant geographic area, of a public hearing on the proposed revisions, a public comment period of at least 30 days, and an opportunity for a public hearing. CARB's June 5, 2009 SIP revision submittal includes public process documentation for all of the specific changes in BAR regulations from 1995 through 2008. In addition, the SIP revision includes documentation of a duly noticed public hearing held by BAR on May 7, 2009 on the proposed 2009 I/M Revision. The following month, CARB adopted the 2009 I/M Revision as a revision to the California SIP and submitted it to EPA for action pursuant to CAA section 110(k) of the Act. We find that the process followed by BAR and CARB in adopting the 2009 I/M Revision complies with the procedural requirements for SIP revisions under CAA section 110 and EPA's implementing regulations. B. Substantive I/M Requirements EPA's requirements for basic and enhanced I/M programs are found in 40 CFR part 51, Subpart S. The SIP revision submitted by the State must be consistent with these requirements as well as meeting EPA's requirements for enforceability and section 110(l) requirements of the CAA. With the exception of our review of the 2009 I/M Revision under CAA section 110(l) (see section III.C. of this document), we are limiting the review of the I/M changes submitted as part of the 2009 I/M Revision to ozone because California no longer has any CO nonattainment areas. 3 More details on our review of the 2009 I/M Revision and the substantive program element requirements in part 51, subpart S are provided in the TSD prepared for this proposed action. 3 To be redesignated from “nonattainment” to “attainment,” an area must have an approved maintenance plan under CAA section 107(d)(3)(E) and must adopt as contingency measures all measures with respect to the control of the air pollutant concerned which were contained in the SIP for the area before redesignation of the area as an attainment area but that are subsequently repealed or relaxed. See CAA section 175A(d). For all 11 California CO “maintenance” areas, the California I/M program as approved by EPA in 1997, as modified for the South Coast through EPA approval of the South Coast CO redesignation request in 2007, constitutes the applicable measure in the SIP for the purposes of CAA section 175A(d). We are, however, not requiring California to adopt a commitment to reinstitute the 1997 SIP version of the I/M program as a contingency measure for the 11 California carbon monoxide “maintenance” areas based on our finding (in section III.C. of this document) that the net effect of the changes in the I/M program under the 2009 I/M Revision would be beneficial from an emissions reduction standpoint. 1. Applicability Under 40 CFR 51.350, states may be required to operate either an enhanced or basic I/M program in each of their ozone nonattainment areas, depending upon the population and nonattainment classification of that area. Any area designated and classified as serious or worse nonattainment for an ozone NAAQS, and having a 1980 Census-defined urbanized area population of 200,000 or more, must implement enhanced I/M in the 1990 Census-defined urbanized area. Any area classified moderate ozone nonattainment must implement basic I/M in any 1990 Census-defined urbanized area with a population of 200,000 or more. Any area classified as marginal ozone nonattainment must continue to operate I/M programs that were part of the SIP prior to the 1990 CAA Amendments and must update these programs to meet EPA's basic I/M requirements. Any marginal ozone nonattainment area that had been required to have an I/M program under the Act, as in effect before the 1990 Amendments, must also implement a basic I/M program. Under 40 CFR 51.350, I/M program areas must nominally cover at least the entire urbanized area, based on the 1990 census. Exclusion of some urban population is allowed, however, as long as an equal number of non-urban residents of the same metropolitan statistical area
(MSA)are included in the program to compensate. I/M SIPs must describe the applicable areas in detail and, consistent with 40 CFR 51.372, must include the legal authority or rules necessary to establish program boundaries. Applicability for the approved I/M SIP is set forth in California Health & Safety Code (H&SC) sections 44003 and 44004. Since development of the approved I/M SIP, circumstances have changed in several ways that might affect geographic applicability of the basic and/or enhanced I/M requirement. First, several areas of California have been reclassified to higher classifications for the 1-hour ozone standard, including Sacramento (serious to severe) and San Joaquin Valley (serious to severe to extreme). None of these reclassifications changed the I/M program requirement for the area since all such areas were already subject to the enhanced I/M requirement, and in any event, the H&SC statutory provisions cited above are drafted to automatically apply to ozone areas that are classified as serious or above. According to the 2009 I/M Revision, the state continues to implement enhanced I/M in the urbanized areas within the South Coast Air Basin, Sacramento Metro, San Joaquin Valley, Western Mojave Desert, Coachella Valley, and Ventura County. Second, we redesignated a number of areas to “attainment” for the 1-hour ozone NAAQS. These include the Monterey Bay Area, San Diego County, and Santa Barbara County. 4 The consequence of redesignation for the 1-hour ozone NAAQS prior to the effective date of designation under the 8-hour ozone NAAQS is that I/M is no longer an “applicable requirement” for the area for anti-backsliding purposes under our Phase 1 implementation rule for the 8-hour ozone NAAQS. For such areas that are designated as “unclassifiable/attainment” for the 8-hour ozone standard (Monterey Bay Area and Santa Barbara County), a state may request that I/M be shifted to contingency measures, consistent with sections 110(l) and 193 of the Act, but cannot remove the obligation from the SIP entirely. See 40 CFR 51.905(a)(4). For such areas designated as nonattainment for the 8-hour ozone standard (San Diego County), the state must continue to implement I/M to the extent I/M is required under the existing SIP. See 40 CFR 51.905(a)(2). According to the 2009 SIP Revision, the state continues to implement basic I/M in Monterey Bay Area and Santa Barbara County and continues to operate enhanced I/M in the urbanized area within San Diego County. 4 We also redesignated “East Kern County” as “attainment” for the 1-hour ozone NAAQS effective June 21, 2004, several days after the effective date for our 8-hour ozone designations (June 15, 2004), and thus too late for anti-backsliding purposes. Lastly, we have promulgated area designations and classifications for the 8-hour ozone NAAQS. In California, we maintained the same geographic boundaries for nonattainment areas under the 8-hour ozone standard as under the 1-hour ozone standard. For California nonattainment areas under the 1-hour ozone NAAQS, our classifications under the 8-hour ozone NAAQS are the same or lower than under the 1-hour ozone NAAQS and thus the I/M requirement that had applied by virtue of the 1-hour ozone classification remains applicable under anti-backsliding principles. We did, however, designate several California areas as “nonattainment” for the 8-hour ozone NAAQS that had not been so designated under the 1-hour standard or that had been redesignated to “attainment” prior to the 8-hour ozone designations. All of these new nonattainment areas have not yet been classified under subpart 2 of title I of the CAA ( *i.e.* , as marginal, moderate, serious, etc.). EPA has issued a proposed rule seeking comment on our proposed reclassification of these nonattainment areas under subpart 2 (74 FR 2936, Jan. 16, 2009), but until we finalize this action, these new areas are not subject to I/M program requirements under the 8-hour NAAQS. These new areas include Amador County, Calaveras County, San Diego County, Mariposa County, Tuolumne County, Sutter Buttes, and Western Nevada County. Nonetheless, although it is not yet required to do so under the CAA, the state already implements basic I/M in Western Nevada County. Two other 8-hour ozone designations of note include Imperial County (moderate) and the San Francisco Bay Area (marginal). With respect to the former, as a moderate ozone nonattainment area for the 8-hour ozone NAAQS, but a “section 185A” area under the 1-hour ozone NAAQS, basic I/M would be a new applicable requirement for Imperial County but for the population criterion. Based on its limited population, there is no I/M requirement for Imperial County. With respect to the San Francisco Bay Area, as a “marginal” ozone area under the 8-hour ozone NAAQS and a “not classified” nonattainment area under the 1-hour ozone NAAQS, implementation of a basic I/M program is now a requirement because the area had been subject to the I/M requirement prior to the 1990 Clean Air Act Amendments. However, under H&SC 44003.5, which is cited in the 2009 I/M Revision, the State of California has already chosen to implement not just basic, but enhanced, I/M in the San Francisco Bay Area and thereby exceeds the requirements of the Act and EPA's regulations. The 2009 I/M Revision includes an updated description of the applicability of the I/M program within the State of California along with updated maps and a list of each zip code, with the corresponding I/M program implemented therein. Upon review of these materials against the requirements under the Act and EPA's regulations, we find that California continues to apply the appropriate type of I/M in the appropriate urbanized areas and has chosen to extend I/M into many other areas where it is not expressly required, to meet broader air quality attainment goals. Thus, we propose to find that the state's I/M program, as revised by the 2009 I/M Revision, continues to meet the requirements of 40 CFR 51.350. 2. High Enhanced I/M Performance Standard Under 40 CFR 51.351(f), enhanced I/M programs must be designed and implemented to meet or exceed a minimum performance standard. This performance standard is expressed as emission levels in area-wide average grams per mile (gpm), achieved from highway mobile sources as a result of a specified model I/M program design. The emission levels achieved by the state's program design must be calculated using the most current version, at the time of submittal, of the EPA mobile source emission factor model and must meet or exceed the emission reductions achieved by the performance standard program both in operation and for SIP approval. For subject ozone nonattainment areas, the performance standard must be met for both NO <sup>X</sup> and VOC unless a NO <sup>X</sup> waiver has been approved for the area. Enhanced I/M program areas must be shown to obtain the same or lower emission levels as the model program described in section 51.351(f) by January 1, 2002 and must demonstrate through modeling the ability to maintain this level of emission reduction (or better) through their attainment deadline for the applicable NAAQS. See 40 CFR 51.351(f)(13). The 2009 I/M Revision includes high enhanced I/M performance standard evaluations for the urbanized areas within eight ozone nonattainment areas: the South Coast Air Basin, San Joaquin Valley, Sacramento Metro, Coachella Valley, Ventura County, Western Mojave Desert, San Diego County, and the San Francisco Bay Area. See main body of 2009 I/M Revision, pages 2 through 12, and attachment 4 (“Enhanced I/M Performance Modeling Files”). The latter two areas, San Diego County and the San Francisco Bay Area, are not subject to the enhanced I/M performance standard requirement under the Act or EPA's regulations, and thus, we have not reviewed the submitted performance evaluations for these areas for compliance with 40 CFR 51.351(f) in this action. For the six California areas subject to the high enhanced I/M requirement, the 2009 I/M Revision presents a comparison of the percent emissions reduction achieved under the EPA model enhanced I/M program (relative to the no I/M scenario) in 2002 for VOC and NO <sup>x</sup> with the corresponding percent emissions reduction achieved under the California enhanced I/M program in the year before the attainment year. For South Coast Air Basin and San Joaquin Valley, the “year before the attainment year” corresponds to year 2023 based on the state's previous requests to reclassify these two areas to “extreme” for the 8-hour ozone NAAQS. Also based on the state's previous reclassification requests, the “year before the attainment year” for Western Mojave Desert, Sacramento Metro, Coachella Valley, and Ventura County corresponds to 2020 (severe 17), 2018 (severe 15), 2018 (severe 15), and 2012 (serious), respectively. 5 As shown in the summary tables on pages 4 through 12, the 2009 I/M Revision shows that the California enhanced I/M program would achieve greater percent emissions reductions (relative to the no I/M scenario) for VOC and NO <sup>x</sup> in each of the six areas in the year before the attainment year than the corresponding percent emissions reductions under the EPA model enhanced I/M program in 2002. 5 Through a SIP submittal dated November 16, 2007, CARB requested reclassification of San Joaquin Valley to “extreme.” Through a SIP submittal dated November 28, 2007, CARB requested reclassification of South Coast Air Basin and Coachella Valley to “extreme” and “severe-15,” respectively. By letter dated February 14, 2008, CARB requested reclassification of Ventura County (to “serious”), Sacramento Metro (to “severe-15”), and Western Mojave Desert (to “severe-17”). With two exceptions discussed below, we find the high enhanced I/M performance standard evaluations in the 2009 I/M Revision to be acceptable. This conclusion is based on a review of the modeling files for each of these areas and our conclusion that the state's reliance on its reclassification requests to identify the horizon years for the performance standard evaluations is appropriate given that EPA is required to grant such requests under CAA section 181(b)(3). However, a base year modeling run is also required for the six subject areas under the California enhanced I/M program to allow for a more definitive conclusion that the California enhanced I/M program obtained the same or lower emission levels as the EPA model program by January 1, 2002, and that the California program will maintain this level of emission reduction (or better) through the applicable 8-hour ozone attainment deadlines. With only a horizon year modeling run, a conclusion to this effect can be inferred but is not definitive. In addition, EPA interprets CAA section 181(b)(3) as disallowing state requests to reclassify ozone nonattainment areas to “severe-17,” which is the basis for the state's choice of 2020 as the horizon year for performance modeling for Western Mojave Desert. As such, the state must select a more appropriate horizon year for this area, such as 2009 (based on its current classification as “moderate” for the 8-hour ozone NAAQS) or some other horizon year pending a revised reclassification request for Western Mojave Desert. Thus, we are making our proposed approval of the 2009 I/M Revision as meeting the enhanced I/M program requirement contingent upon receipt of:
(1)base year performance modeling runs for the six subject areas under the California enhanced I/M program, and
(2)a revised enhanced I/M performance standard evaluation using an appropriate attainment year for the Western Mojave Desert area. Preliminary modeling analyses of the enhanced program in the South Coast Air Basin in year 2002 indicate that California's program achieved emission reductions equivalent to EPA's model program by January 1, 2002. See the TSD for more information. Given this, we expect the modeling evaluations for other nonattainment areas subject to the enhanced program will also demonstrate equivalence with the model program in year 2002. 6 We also expect that a revised modeling evaluation for the Western Mojave Desert area based on an appropriate attainment year will demonstrate compliance with EPA's enhanced I/M performance standard in that area, given the emission reductions demonstrated in CARB's submittal. 7 We propose to fully approve the 2009 I/M Revision if we receive the required data to support these conclusions. If, however, the required modeling data is not provided, we plan to take final action approving all of the 2009 I/M Revision except for the enhanced I/M performance evaluation, as SIP strengthening, and disapproving the submitted enhanced I/M performance evaluation as failing to meet the requirements of section 182(c)(3) of the Act and 40 CFR 51.351(f). We will notify the public of any additional information that is provided to address these issues. 6 We note that CARB's enhanced I/M modeling evaluations indicate California's enhanced program will achieve emission reductions generally exceeding the EPA performance standards by 3% to 10% for VOCs and by 5% to 22% for NO <sup>X</sup> , in the horizon year for each area. See main body of 2009 I/M Revision, pp. 4-12, and attachment 4 (“Enhanced I/M Performance Modeling Files”). 7 CARB's modeling evaluation for the Western Mojave Desert area demonstrates that by year 2020, California's enhanced I/M program will achieve emissions reductions exceeding the EPA performance standards by at least 5% for VOCs and 17% for NO <sup>X</sup> . See main body of 2009 I/M Revision, pg. 10, and attachment 4 (“Enhanced I/M Performance Modeling Files”). 3. Basic I/M Performance Standard Under 40 CFR 51.352, basic I/M programs must be designed and implemented to meet or exceed a minimum performance standard. The nature of the performance standard evaluation for basic I/M is similar to that described above for enhanced I/M, except that the model program for basic I/M is less stringent in many ways relative to the model program for enhanced I/M. The 2009 I/M Revision includes basic I/M performance standard evaluations for seven ozone nonattainment areas: East Kern County, Sutter Buttes (Sutter County), Western Nevada County and Chico (Butte County), and the non-urbanized portions of San Joaquin Valley, San Diego County and Western Mojave Desert. See the main body of the 2009 I/M Revision beginning on page 13 through page 21, and attachment 5 (“Basic I/M Performance Modeling Files”). None of these areas is subject to the basic I/M performance standard requirement under the Act or EPA's regulations, and thus we have not reviewed the submitted performance evaluations for compliance with 40 CFR 51.352 in this action. As noted above under section III.B.2 of this document, however, the San Francisco Bay Area is subject to the “basic” I/M requirement by virtue of its classification as “marginal” for the 8-hour ozone NAAQS and the fact that the area had been subject to the I/M requirement prior to the 1990 Clean Air Act Amendments. The 2009 I/M Revision presents an enhanced I/M performance evaluation for the San Francisco Bay Area that shows the California enhanced I/M program achieves the same or better percent emissions reductions in year 2006 as compared to the Federal model enhanced I/M program in 2002. In contrast, under 40 CFR 51.352(e), the comparison should be a direct comparison of the California I/M program in the San Francisco Bay Area versus the Federal model basic I/M program in year 2010 ( *i.e.,* six years after designation). Nonetheless, the showing in the 2009 I/M Revision that California's I/M program, as implemented in the San Francisco Bay Area, essentially meets the EPA *enhanced* I/M model program provides sufficient demonstration that California's I/M program, as implemented in the San Francisco Bay Area, at the very least meets the EPA *basic* I/M model and thus meets the basic I/M performance evaluation requirements of 40 CFR 51.352(e). 4. Vehicle Coverage Under 40 CFR 51.356, the performance standard for enhanced I/M programs assumes coverage of all 1968 and later model year light duty vehicles and light duty trucks up to 8,500 pounds gross vehicle weight rating (GVWR), and includes vehicles operating on all fuel types. The standard for basic I/M programs does not include light duty trucks. Under EPA's regulations, other levels of coverage may be approved if the necessary emission reductions are achieved. The existing I/M SIP exempts certain vehicle types from biennial I/M inspection requirements, including pre-1966 model-year vehicles, diesel-powered vehicles, electric vehicles, and motorcycles. The 2009 I/M Revision amends these provisions to also exempt 1966 through 1975 model-year vehicles and vehicles six or less model-years old from biennial inspection requirements, and to exempt transfers of vehicles four or less model-years old from change-of-ownership inspection requirements. However, as described in sections III.B.2 and III.B.3 above, we have concluded that the State has demonstrated that it meets the performance standards for both the federal enhanced and basic I/M programs, contingent upon receipt of revisions to the enhanced performance standard evaluation to provide base year modeling runs and to use an appropriate attainment year for Western Mojave Desert. Thus, the increase in the types of exempt vehicles is acceptable under 40 CFR 51.356. 5. Test Procedures, Standards, and Equipment Under 40 CFR 51.357, I/M programs must establish and implement written test procedures and pass/fail standards for each model year and vehicle type. Under 40 CFR 51.358, official emissions tests must be performed using computerized emissions test systems that are certified by the program and updated from time to time to accommodate new technology vehicles and program changes. The existing I/M SIP requires loaded testing for vehicle inspections in enhanced areas and use of the BAR-90 two-speed idle test in basic areas. The 2009 I/M Revision updates the test procedures and standards in several ways, including:
(1)To require use of the BAR-97 Emission Inspection System
(EIS)Specifications in all program areas;
(2)to require all vehicles subject to the program to undergo a low-pressure test of the fuel evaporative control system as part of the Smog Check inspection, unless specifically exempt;
(3)to require all vehicles subject to the program to undergo a visible smoke test; and
(4)to require that all vehicle inspections include a functional test of emission controls, including, for 1996 and newer model year light-duty vehicles, a test of on-board diagnostic
(OBD)equipment. Each testing station must have a BAR-certified emissions inspection system that meets the specifications in the BAR-97 EIS Specifications. 8 8 All test stations are subject to this requirement, except that the hardware and the software necessary to conduct dynamometer based, loaded-mode emissions are required only in enhanced areas. In addition, the 2009 I/M Revision requires that all required emission inspection systems used in the Smog Check program be connected to the internet in order to transmit required program information to BAR. Any emission inspection systems that BAR finds do not comply with the hardware and software requirements and specifications in the regulations will be disconnected from BAR's central computer database and network, and thereby prohibited from being used to perform smog checks and to transmit certificates of compliance to the Department of Motor Vehicles, until they are brought into compliance. These revisions strengthen the SIP program and satisfy the requirements for test procedures, standards, and equipment in 40 CFR 51.357 and 51.358. C. Section 110(l) of the Act Section 110(l) of the CAA states that a SIP revision cannot be approved if it would interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the Act. CARB's June 5, 2009 SIP submittal did not include a section 110(l) analysis for the 2009 I/M Revision. However, we can reasonably conclude, as discussed below, that the net effect of the revised I/M program would be greater emissions reductions under the California I/M program as revised through the 2009 I/M Revision than under the existing California I/M SIP, as approved in 1997. To arrive at this conclusion, we identified the following I/M program changes that would be the most likely to result in emissions changes:
(1)Expansion of the older vehicle exemption to include 1966 through 1975 model year vehicles;
(2)the addition of an exemption for newer vehicles (six or less model-years old);
(3)the expansion of areas within the South Coast Air Basin, Sacramento Metro area, San Diego County, San Joaquin Valley, Western Mojave Desert, Coachella Valley, Ventura County, and San Francisco Bay Area subject to enhanced or partially enhanced I/M as opposed to basic I/M; and
(4)implementation of OBD systems checks. For these areas, the emissions changes under the revised California I/M program result from a program that would require inspections of slightly fewer vehicles but increase the stringency of the I/M requirements for those vehicles subject to the program. To qualitatively assess the net effect of these changes, we first note that the new or expanded exemptions under the revised I/M program would relate to a very small fraction of the vehicle fleet ( *i.e.,* those from model years 1966 through 1975) or would relate to the cleanest portion of the vehicle fleet (those vehicles six or less model-years old) that is least likely to fail an inspection. Thus, we expect the new or expanded exemptions to have a minimal emissions effect. On the other hand, we note that California has expanded the geographic scope of the enhanced or partially enhanced program in each ozone nonattainment area subject to I/M requirements under the CAA. In addition, based on the enhanced and basic performance standard evaluations included as part of the 2009 I/M Revision, we note that significantly greater emissions reductions are expected under enhanced or partially enhanced I/M requirements relative to those under basic I/M requirements. For instance, California enhanced I/M in San Joaquin Valley is estimated to provide 24 to 27 percent reduction in ozone precursors relative to the “no I/M” scenario, whereas California basic I/M in San Joaquin Valley is estimated to provide only 3 to 17 percent reduction in ozone precursors also relative to the “no I/M” scenario. See pages 5 and 15 of main body of 2009 I/M Revision. Finally, we note that the addition of OBD testing requirements 9 for all 1996 and newer model-year vehicles and the improvements to California's quality control methods, data collection systems, and technician training requirements adequately offset the potential emissions impacts of the revised vehicle exemptions in all program areas, including those nonattainment areas that are subject to California's basic I/M program under the existing SIP and 2009 I/M Revision and do not benefit from the more stringent requirements of the enhanced or partially enhanced I/M program. 9 OBD system tests are generally expected to achieve air quality benefits compared to tailpipe emissions tests through accurate diagnosis and early detection of needed vehicle repairs. *See http://www.epa.gov/obd/.* In all then, given the minimal emissions increase associated with the new or expanded exemptions and the relatively significant emissions decrease associated with the greater geographic applicability of enhanced or partially enhanced I/M in each area subject to CAA I/M requirements, in addition to California's OBD testing requirements and improvements in program implementation and enforcement mechanisms in all program areas, we fully expect the net effect of approval of the 2009 I/M Revision to be beneficial from an emissions reduction standpoint in all California ozone nonattainment areas. Therefore, we propose to find that the 2009 I/M Revision would not interfere with any applicable requirement concerning attainment of the NAAQS or any other applicable requirement of the Act. IV. Proposed Action and Public Comment Under section 110(k) of the Clean Air Act, EPA is proposing to approve CARB's June 5, 2009 submittal of a revision to the California I/M program as a revision to the California SIP. Our proposed approval for one area, Western Mojave Desert, is contingent upon California's submittal of a revised evaluation of the enhanced program performance standard for the area based on an appropriate attainment year. In addition, our proposed approval of the enhanced I/M program is contingent upon our receipt of base year performance modeling evaluations for the six areas subject to enhanced I/M that demonstrate compliance with the federal performance standard in 2002. (We will notify the public of any additional information that is provided to address these issues.) With these exceptions, EPA finds that the State's submittal meets all applicable requirements of the CAA and EPA's regulations. The updated elements of the California I/M program that we propose to approve include the following:
(1)Discussion of each of the required design elements of the I/M program;
(2)Description of the current geographic coverage of the program, including updated maps and list of program requirements by zip code;
(3)I/M-related statutes and regulations;
(4)Enhanced I/M performance standard evaluations for the urbanized areas within six California ozone nonattainment areas as meeting the requirements of CAA section 182(c)(3);
(5)Basic I/M performance standard evaluation for the urbanized area within the San Francisco Bay Area ozone nonattainment area under 182(a)(2)(B); and
(6)Emission analyzer specifications and test procedures, including BAR-97 specifications. If the necessary enhanced I/M performance standard documentation for the six areas subject to enhanced I/M is not provided, then EPA proposes a partial approval and partial disapproval of the State's 2009 I/M Revision as authorized under section 110(k)(3) of the Act. Under these circumstances, EPA is proposing approval of all portions of the 2009 I/M Revision, except for the enhanced I/M performance evaluations for the six subject areas, as improving the SIP, and is proposing disapproval of the enhanced I/M performance evaluations as failing to meet the requirements of section 182(c)(3) of the Act and 40 CFR 51.351(f). If this disapproval is finalized, sanctions will be imposed under section 179 of the Act unless EPA approves subsequent SIP revisions that correct the deficiencies within 18 months of the disapproval. These sanctions would be imposed according to 40 CFR 52.31. A final disapproval would also trigger the two-year clock for the Federal implementation plan
(FIP)requirement under section 110(c). EPA is soliciting public comments on this document and on issues relevant to EPA's proposed action. We will accept comments from the public on this proposal until the date noted in the DATES section above. V. Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action: • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52 Air pollution control, Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, and Volatile organic compounds. Authority: 42 U.S.C. 7401 *et seq.* Dated: July 31, 2009. Laura Yoshii, Acting Regional Administrator, Region IX. [FR Doc. E9-19858 Filed 8-18-09; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2009-0024; FRL-8943-7] Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing a limited approval and limited disapproval of revisions to the San Joaquin Valley Unified Air Pollution Control District portion of the California State Implementation Plan. These revisions concern a local fee rule that applies to major sources of volatile organic compound and nitrogen oxide emissions within the San Joaquin Valley ozone nonattainment area. We are proposing action on a local rule that regulates these emission sources under the Clean Air Act as amended in 1990. We are taking comments on this proposal and plan to follow with a final action. DATES: Any comments must arrive by *September 18, 2009* . ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-2009-0024, by one of the following methods: 1. *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the on-line instructions. 2. E-mail: *steckel.andrew@epa.gov* . 3. *Mail or deliver:* Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. *Instructions:* All comments will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through *http://www.regulations.gov* or e-mail. *http://www.regulations.gov* is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. *Docket:* The index to the docket for this action is available electronically at *http://www.regulations.gov* and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location ( *e.g.* , copyrighted material), and some may not be publicly available in either location ( *e.g.* , CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Mae Wang, EPA Region IX,
(415)947-4124, *wang.mae@epa.gov* . SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us” and “our” refer to EPA. Table of Contents I. The State's Submittal A. What Rule did the State Submit? B. What Is the Purpose of the Submitted Rule? C. Why Was This Rule Submitted? II. EPA's Evaluation and Action A. How Is EPA Evaluating the Rule? B. Does the Rule Meet the Evaluation Criteria? C. What Are the Rule Deficiencies? D. Proposed Action and Public Comment III. Statutory and Executive Order Reviews I. The State's Submittal A. What Rule Did the State Submit? The San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) adopted Rule 3170, Federally Mandated Ozone Nonattainment Fee, on May 16, 2002. This rule was submitted by the California Air Resources Board
(CARB)on August 6, 2002, for incorporation into the California State Implementation Plan (SIP). On August 30, 2002, this rule submittal was found to meet the completeness criteria in 40 CFR Part 51, Appendix V. B. What Is the Purpose of the Submitted Rule? SJVUAPCD Rule 3170 requires certain major stationary sources of volatile organic compounds
(VOCs)and nitrogen oxides (NO <sup>X</sup> ) in the San Joaquin Valley ozone nonattainment area to pay a fee to the SJVUAPCD if the area fails to attain the 1-hour national ambient air quality standard (NAAQS) for ozone by its Federally established attainment date. The fee must be paid for each calendar year after the attainment year until the area is redesignated to attainment of the 1-hour ozone standard. C. Why Was This Rule Submitted? Under sections 182(d)(3), (e), and 185 of the Clean Air Act as amended in 1990 (CAA or the Act), States are required to adopt an excess emissions fee regulation for ozone nonattainment areas classified as severe or extreme. The 1-hour ozone NAAQS classification for the San Joaquin Valley area is extreme ( *see* 69 FR 20550, April 16, 2004). Although EPA has revoked the 1-hour ozone NAAQS (69 FR 23951, April 30, 2004), Section 185 requirements still apply for 1-hour ozone non-attainment areas ( *South Coast Air Quality Management District* v. *EPA* , 472 F.3d 882, DC Cir. 2006). The fee regulation specified by the Act requires major stationary sources of VOCs in the nonattainment area to pay a fee to the State if the area fails to attain the standard by the attainment date set forth in the Act. Section 182(f) of the Act requires States to apply the same requirements to major stationary sources of NO <sup>X</sup> as are applied to major stationary sources of VOCs. Emissions of VOCs and NO <sup>X</sup> play a role in producing ground-level ozone and smog, which harm human health and the environment. SJVUAPCD Rule 3170 applies to major sources of both NO <sup>X</sup> and VOCs. II. EPA's Evaluation and Action A. How Is EPA Evaluating the Rule? Generally, SIP rules must be enforceable ( *see* section 110(a) of the Act), and must not relax existing requirements ( *see* sections 110(l) and 193). Rule 3170 was evaluated for compliance with the requirements in CAA section 185. The rule was also evaluated for consistency with the CAA and EPA's general SIP policies, as well as a March 21, 2008, memorandum from William Harnett, Director of the Air Quality Policy Division, to the Regional Air Division Directors, entitled, “Guidance on Establishing Emissions Baselines under Section 185 of the Clean Air Act
(CAA)for Severe and Extreme Ozone Nonattainment Areas that Fail to Attain the 1-hour Ozone NAAQS by their Attainment Date.” Guidance and policy documents that we use to help evaluate specific enforceability requirements typically include the following: 1. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations”, EPA, May 25, 1988 (the Bluebook). 2. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies”, EPA Region 9, August 21, 2001 (the Little Bluebook). 3. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule”, (the NO <sup>X</sup> Supplement), 57 FR 55620, November 25, 1992. B. Does the Rule Meet the Evaluation Criteria? Rule 3170 improves the SIP by establishing an excess emissions fee regulation. Portions of the rule are consistent with the CAA, as well as relevant policy and guidance regarding enforceability and SIP relaxations. Rule provisions which do not meet the evaluation criteria are summarized below. C. What Are the Rule Deficiencies? The following provisions conflict with section 185 of the Act and prevent full approval of the SIP revision: Section 4.2 of SJVUAPCD Rule 3170 exempts units that begin operation after the attainment year. CAA Section 185 does not provide for an exemption for emission units that begin operation after the attainment year, so this exemption does not fully comply with the CAA. Rather, it requires “each major source” to pay the fee. *See* CAA section 185(a). Section 4.3 exempts any “clean emission unit” from the requirements of the rule. Section 3.6 defines a clean emission unit as a unit that is equipped with an emissions control technology that either has a minimum 95% control efficiency (or 85% for lean-burn internal combustion engines), or meets the requirements for achieved-in-practice Best Achievable Control Technology as accepted by the APCO during the 5 years immediately prior to the end of the attainment year. The District's staff report for Rule 3170 states that the exemption is intended to address “the difficulty of reducing emissions from units with recently installed BACT.” Although EPA understands the District's intended purpose for including the exemption, the exemption does not comply with CAA section 185, for the same reason as noted above for new emission units. The EPA's Clean Air Act Advisory Committee (CAAAC) has recently asked EPA to review and address whether it is “legally permissible under either section 185 or 172(e) of the Clean Air Act for a State to exercise discretion” to develop fee program SIPs employing one or more of a list of CAAAC-identified program options ( *see http://www.epa.gov/air/caaac/185wg* ). One of the program options the CAAAC identified is an exemption from fees for “well-controlled” sources. In today's action, EPA is proposing to disapprove the “clean emission unit” exemption in SJVUAPCD Rule 3170 because we do not believe such an exemption is authorized by CAA section 185. However, the State has not requested that EPA review the SIP pursuant to section 172(e) and has not made a demonstration that the program it has submitted would ensure controls that are “not less stringent” than those required under section 172(e). Thus, EPA is not at this time addressing whether it is legally permissible under CAA section 172(e) for a State to adopt an alternative program at least as stringent as a section 185 fee program, and for the alternative program to contain a clean unit exemption. Section 3.2.1 defines the baseline period as two consecutive years consisting of the attainment year and the year immediately prior to the attainment year. CAA Section 185(b)(2) establishes the attainment year as the baseline period. While this provision also provides the option for calculating baseline emissions over a period of more than one calendar year, that option is limited to sources with emissions that are irregular, cyclical, or otherwise vary significantly from year to year. Thus section 3.2.1 is inconsistent with the CAA because it provides a different baseline than that required by the CAA (two years instead of one) regardless of whether the emissions are irregular, *etc.* Section 3.2.2 allows averaging over 2-5 years to establish baseline emissions. CAA Section 185(b)(2) states that EPA may issue guidance authorizing such an alternative method of calculating baseline emissions if a source's emissions are irregular, cyclical, or otherwise vary significantly from year to year. EPA issued guidance on alternative methods for calculating baseline emissions in the form of the memorandum from William Harnett, mentioned above. The averaging period allowed in Section 3.2.2 of Rule 3170 appears consistent with the March 21, 2008, guidance. However, the language in Section 3.2.2 allows such averaging “if those years are determined by the APCO as more representative of normal source operation.” This language is considered less stringent than the CAA criteria. The rule should be amended to specify use of the expanded averaging period only if a source's emissions are irregular, cyclical, or otherwise vary significantly from year to year. Section 3.4 defines the term “Major Source” by referring to the definition in SJVUAPCD Rule 2201 (New and Modified Stationary Source Review Rule). The current SIP-approved version of Rule 2201 was adopted by the SJVUAPCD on December 19, 2002, and approved by EPA on May 17, 2004 (69 FR 27837). This version of Rule 2201 defines “Major Source” as a stationary source with VOC or NOx emissions of over 50,000 pounds per year (25 tons per year). The CAA defines the major source threshold as 10 tons per year for ozone nonattainment areas classified as extreme. The SJVUAPCD amended Rule 2201 on December 18, 2008, and submitted it for inclusion in the SIP on March 17, 2009. This amended version includes the 10 tons per year threshold, but has not been approved into the SIP. Therefore, Rule 3170's reliance on Rule 2201 to define major sources is not approvable at this time. If a version of Rule 2201 that contains the appropriate major source threshold is approved into the SIP prior to finalizing this proposed action, then we will no longer cite Section 3.4 as a deficiency in Rule 3170. D. Proposed Action and Public Comment As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is proposing a limited approval of the submitted rule to improve the SIP. If finalized, this action would incorporate the submitted rule into the SIP, including those provisions identified as deficient. This approval is limited because EPA is simultaneously proposing a limited disapproval of the rule under section 110(k)(3) because the rule does not fully meet the statutory section 185 requirement. If this disapproval is finalized, sanctions will be imposed under section 179 of the Act unless EPA approves subsequent SIP revisions that correct the rule deficiencies within 18 months. These sanctions would be imposed according to 40 CFR 52.31. A final disapproval would also trigger the Federal implementation plan
(FIP)requirement under section 110(c). Note that the submitted rule has been adopted by the SJVUAPCD, and EPA's final limited disapproval would not prevent the local agency from enforcing it. Moreover, because the rule would be approved into the SIP, it would also be Federally enforceable. However, the limited approval of Rule 3170 does not override specific CAA mandates. If the area fails to attain by its 2010 attainment date, fees will accrue beginning in 2011 for emissions above 80% of source baselines for clean units, new units and major sources which are exempted from fee collection under the State rule. The State must adopt and submit a rule to collect fees for 2011 and future years from those units or, consistent with the Administrator's obligation under section 185(d), EPA will collect those fees. In addition, all sources are liable for fees calculated in accordance with the baseline definition in section 185(b)(2) as further interpreted in EPA guidance issued pursuant to that provision. The State must adopt and submit a rule that ensures fees are collected for 2011 and all future applicable years based on the statutory baseline requirement. If the State fails to do so, EPA will collect any additional fees owed pursuant to a Federal program under section 185(d). We will accept comments from the public on the proposed limited approval and limited disapproval for the next 30 days. III. Statutory and Executive Order Reviews A. Executive Order 12866, Regulatory Planning and Review The Office of Management and Budget
(OMB)has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.” B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* Burden is defined at 5 CFR 1320.3(b). C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements 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 enterprises, and small governmental jurisdictions. This rule will not have a significant impact on a substantial number of small entities because SIP approvals or disapprovals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve or disapprove requirements that the State is already imposing. Therefore, because the proposed Federal SIP limited approval/limited disapproval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. *Union Electric Co.* , v. *U.S. EPA* , 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2). D. Unfunded Mandates Reform Act Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or Tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule. EPA has determined that the limited approval/limited disapproval action proposed does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or Tribal governments in the aggregate, or to the private sector. This Federal action proposes to approve and disapprove pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or Tribal governments, or to the private sector, result from this action. E. Executive Order 13132, Federalism *Federalism* (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation. This rule 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, because it merely proposes to approve or disapprove a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule. F. Executive Order 13175, Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” This proposed rule does not have Tribal implications, as specified in Executive Order 13175. 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 rule. EPA specifically solicits additional comment on this proposed rule from Tribal officials. G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045, because it approves a State rule implementing a Federal standard. 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 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards”
(VCS)if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical. The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Authority: 42 U.S.C. 7401 *et seq.* Dated: August 6, 2009. Jane Diamond, Acting Regional Administrator, Region IX. [FR Doc. E9-19856 Filed 8-18-09; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2009-0024; FRL-8943-8] Withdrawal of Proposed Rule Revising the California State Implementation Plan; San Joaquin Valley Unified Air Pollution Control District AGENCY: Environmental Protection Agency (EPA). ACTION: Withdrawal of proposed rule. SUMMARY: On July 14, 2009 (74 FR 33950), EPA published a rule proposing limited approval and limited disapproval of a revision to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan. The revision concerned SJVUAPCD Rule 3170, Federally Mandated Ozone Nonattainment Fee. We are withdrawing this previously published rule, and in this **Federal Register** , we are publishing a proposed rule that replaces the July 14, 2009, proposed rule. DATES: The proposed rule published on July 14, 2009 (74 FR 33950) is withdrawn as of August 19, 2009. FOR FURTHER INFORMATION CONTACT: Mae Wang, EPA Region IX,
(415)947-4124, *wang.mae@epa.gov* . SUPPLEMENTARY INFORMATION: On July 14, 2009 (74 FR 33950), EPA proposed limited approval and limited disapproval of SJVUAPCD Rule 3170, Federally Mandated Ozone Nonattainment Fee. Rule 3170 is a local fee rule that applies to major sources of volatile organic compound and nitrogen oxide emissions within the San Joaquin Valley ozone nonattainment area. Due to a clerical error, the proposed rule that was published on July 14, 2009, was inconsistent with the signed document. Consequently, we are withdrawing the rule proposed on July 14, 2009, and in this **Federal Register** , we are publishing the proposed rule as originally signed. The rule being proposed in this **Federal Register** replaces the following rule published on July 14, 2009: *Title:* Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District (Proposed rule, 74 FR 33950, July 14, 2009, EPA-R09-OAR-2009-0024). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: July 30, 2009. Laura Yoshii, Acting Regional Administrator, Region IX. [FR Doc. E9-19857 Filed 8-18-09; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention 42 CFR Part 73 RIN 0920-AA32 Possession, Use, and Transfer of Select Agents and Toxins—Chapare virus AGENCY: Department of Health and Human Services (HHS). ACTION: Notice of proposed rulemaking. SUMMARY: We are proposing to add Chapare virus to the list of HHS select agents and toxins. We are proposing this action because Chapare virus has been phylogenetically identified as a Clade B arenavirus and is closely related to other currently regulated South American arenaviruses that cause haemorrhagic fever, particularly Sabia virus. DATES: Written comments must be received on or before October 19, 2009. ADDRESSES: Comments on the proposed change to the list of HHS select agents and toxins should be marked “Comments on Chapare virus” and mailed to: Centers for Disease Control and Prevention, Select Agent Program, 1600 Clifton Road, NE., Mailstop A-46, Atlanta, Georgia 30333. Comments may be e-mailed to: *SAPcomments@cdc.gov* . FOR FURTHER INFORMATION CONTACT: Robbin Weyant, Director, Division of Select Agents and Toxins, Centers for Disease Control and Prevention, 1600 Clifton Road, NE., Mailstop A-46, Atlanta, GA 30333. Telephone:
(404)718-2000. SUPPLEMENTARY INFORMATION: The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (the Act) authorizes the Secretary to regulate the possession, use, and transfer of select agents and toxins that have the potential to pose a severe threat to public health and safety. These regulations are set forth at 42 CFR part 73. Criteria used to determine whether a select agent or toxin should be included under the provisions of these regulations are based on: • The effect on human health as a result of exposure to the agent or toxin, • The degree of contagiousness of the agent or toxin, • The methods by which the agent or toxin is transferred to humans, • The availability and effectiveness of pharmacotherapies and immunizations to treat and prevent any illness resulting from infection by the agent or toxin, and • Any other criteria, including the needs of children and other vulnerable populations that the HHS Secretary considers appropriate. Based on these criteria, we are proposing to amend the list of HHS select agents and toxins by adding Chapare virus to the list. After consulting with subject matter experts from CDC, the National Institutes of Health (NIH), the Food and Drug Administration (FDA), the United States Department of Agriculture (USDA)/Animal and Plant Health Inspection Service (APHIS), USDA/Agricultural Research Service (ARS), USDA/CVB (Center for Veterinary Biologics), and the Department of Defense (DOD)/United States Army Medical Research Institute for Infectious Diseases (USAMRIID) and review of relevant published studies, (including Delgado S, Erickson BR, Agudo R, Blair PJ, Vallejo E, *et al.* Chapare Virus, a newly Discovered Arenavirus Isolated from a Fatal Hemorrhagic Fever Case in Bolivia. PLoS Pathog 4(4): e1000047, April 2008. Available at *http://www.plospathogens.org* ), we believe the Chapare virus should be added to the list of HHS select agents and toxins. The select agents and toxins that were first listed in part 73 included “South American Haemorrhagic Fever viruses (Junin, Machupo, Sabia, Flexal, Guanarito).” South American arenaviruses are rodent-borne viruses, some of which can be associated with large haemorrhagic fever outbreaks, and untreated case fatalities can be in excess of 30 percent. CDC prepared the list of select agents and toxins for a notice of intent to issue regulations after receiving extensive input from a group of scientists from 21 Federal government entities. Some public comments on the notice objected to the inclusion of certain other viruses. For example, one commenter indicated that monkeypox virus is not easily transmissible to humans and has not been demonstrated to result in high levels of mortality. CDC included monkeypox on the final rule list, however, in part because it has similarities with smallpox virus in that monkeypox has a similar clinical presentation. No commenters objected to the listing of South American haemorrhagic fever viruses. In December 2003 and January 2004, a small number of South American haemorrhagic fever cases were reported in rural Bolivia. Specimens were available from one fatal case, which had a clinical course that included fever, headache, arthralgia, myalgia, and vomiting with subsequent deterioration and multiple haemorrhagic signs. Isolated virus from two patient serum samples were tested for genetic similarity with other Clade B arenaviruses known to cause haemorrhagic fever. The complete genome analysis showed that the virus identified was a distinct new virus, subsequently named Chapare. Chapare virus was found to be most closely related to Sabia virus (causative agent for Brazilian haemorrhagic fever). We will consider comments that are received within 60 days of publication of this notice in the **Federal Register** . After the comment period closes, we will publish another document in the **Federal Register** . The document will include a discussion of any comments we receive and any amendments that will be made to the rule as a result of the comments. If the proposed change is made, we would also consider whether the effective date for the regulation of the possession, use, and transfer of this agent should be phased in over a period of time greater than a 30-day effective date. We recognize that entities that currently possess an agent that would become regulated as a result of this proposed amendment to the regulations may need time to come into full compliance with the requirements of the regulations. In order to accommodate these entities, we are proposing that the Responsible Official at all unregistered entities must submit registration paperwork to include the new agent(s) and any new laboratory areas, as required in 42 CFR part 73 by 30 days after the effective date and all previously unregistered entities must be in full compliance with the regulations by 180 days after the effective date to minimize the disruption of research. Regulatory Analyses Paperwork Reduction Act This proposed rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq* .). Executive Order 12866 and Regulatory Flexibility Act This proposed rule has been determined to be significant for the purposes of Executive Order 12866 and has been reviewed by the Office of Management and Budget. The Regulatory Flexibility Act (5 U.S.C. 601 *et seq* .) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant impact on a substantial number of small entities. Entities most likely to be affected by this rule are laboratories and other institutions conducting research and related activities that involve the use of an agent that would become regulated as a result of this proposed amendment. Even though we believe the impact of these changes is expected to be minimal, we will consider comments on the impact of this proposed rule to determine if there will be a significant impact on small businesses. Unfunded Mandates The Unfunded Mandates Reform Act at 2 U.S.C. 1532 requires that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted for inflation) in any given year. This proposed rule is not expected to result in any one-year expenditure that would exceed this amount. Executive Order 12988 This Notice of Proposed Rulemaking has been reviewed under Executive Order 12988, Civil Justice Reform. This rule:
(1)Would preempt all State and local laws and regulations that are inconsistent with this rule;
(2)would have no retroactive effect; and
(3)would not require administrative proceedings before parties may file suit in court challenging this rule. Executive Order 13132 This Notice of Proposed Rulemaking has been reviewed under Executive Order 13132, Federalism. The notice does not propose any regulation that would preempt State, local, and Indian tribe requirements, or that would have any 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. List of Subjects in 42 CFR Part 73 Biologics, Incorporation by reference, Packaging and containers, Penalties, Reporting and recordkeeping requirements, Transportation. Dated: August 5, 2009. Kathleen Sebelius, Secretary. For the reasons stated in the preamble, we are proposing to amend 42 CFR part 73 as follows: PART 73—SELECT AGENTS AND TOXINS 1. The authority citation for part 73 continues to read as follows: Authority: 42 U.S.C. 262a; sections 201-204, 221 and 231 of Title II of Public Law 107-188, 116 Stat. 637 (42 U.S.C. 262a). 2. Amend § 73.3 by revising the entry for “South American Haemorrhagic Fever viruses” in paragraph
(b)and the reference to it in paragraph (f)(3)(i) to read as follows: § 73.3 HHS select agents and toxins.
(b)* * * South American Haemorrhagic Fever viruses (Chapare, Junin, Machupo, Sabia, Flexal, Guanarito)
(f)* * *
(3)* * *
(i)* * * South American Haemorrhagic Fever viruses (Chapare, Junin, Machupo, Sabia, Flexal, Guanarito) * * *. § 73.5 [Amended] 3. Amend paragraph (a)(3)(i) of § 73.5 by removing the phrase “South American Haemorrhagic Fever viruses (Junin, Machupo, Sabia, Flexal, Guanarito)” and adding in its place “South American Haemorrhagic Fever viruses (Chapare, Junin, Machupo, Sabia, Flexal, Guanarito)”. § 73.9 [Amended] 4. Amend paragraph (c)(1) of § 73.9 by removing the phrase “South American Haemorrhagic Fever viruses (Junin, Machupo, Sabia, Flexal, Guanarito)” and adding in its place “South American Haemorrhagic Fever viruses (Chapare, Junin, Machupo, Sabia, Flexal, Guanarito)”. [FR Doc. E9-19737 Filed 8-18-09; 8:45 am] BILLING CODE 4160-17-P FEDERAL MARITIME COMMISSION 46 CFR Part 535 [Docket No. 09-02] RIN 3072-AC35 Repeal of Marine Terminal Agreement Exemption AGENCY: Federal Maritime Commission. ACTION: Notice of proposed rulemaking; extension of comment period. SUMMARY: In a proposed rule published in the Federal Register on July 2, 2009, the Federal Maritime Commission proposed to repeal the exemption from the 45-day waiting period requirement applicable to certain Marine Terminal Agreements. The Commission also proposed to correct a typographical error in its regulations. This document extends the comment period. DATES: Comments on the proposed rule published July 2, 2009 (74 FR 31666), are due by September 8, 2009. ADDRESSES: Address all comments concerning this proposed rule to: Karen V. Gregory, Secretary, Federal Maritime Commission, 800 North Capitol Street, NW., Room 1046, Washington, DC 20573-0001, *Secretary@fmc.gov* ,
(202)523-5725. FOR FURTHER INFORMATION CONTACT: Peter J. King, General Counsel, Federal Maritime Commission, 800 North Capitol Street, NW., Room 1018, Washington, DC 20573-0001, *generalcounsel@fmc.gov* ,
(202)523-5740. Karen V. Gregory, Secretary. [FR Doc. E9-19901 Filed 8-18-09; 8:45 am] BILLING CODE P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 09-1727; MB Docket No. 09-130; RM-11538] Radio Broadcasting Services; Maupin, OR AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: The Audio Division at the request of Maupin Broadcasting Company proposes the allotment of Channel 244C2 at Maupin, Oregon, as its first local service. A staff engineering analysis indicates that Channel 244C2 can be allotted to Maupin consistent with the minimum distance separation requirements of the Rules with a site restriction 1.2 kilometers (0.7 miles) west located at reference coordinates 45-10-24 NL and 121-05-43 WL. DATES: Comments must be filed on or before September 24, 2009, and reply comments on or before October 9, 2009. ADDRESSES: Secretary, Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner, as follows: Mathew H. McCormick, Esq., c/o Maupin Broadcasting Company, Fletcher, Heald & Hildreth, PLC, 1300 North 17th Street, 11th Floor. Arlington, Virginia 22209. FOR FURTHER INFORMATION CONTACT: Rolanda F. Smith, Media Bureau,
(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 09-130, adopted July 30, 2009, and released August 3, 2009. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 Twelfth Street, SW., Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractors, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or via e-mail *http://www.BCPIWEB.com.* This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all *ex parte* contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. *See* 47 CFR 1.1204(b) for rules governing permissible *ex parte* contacts. For information regarding proper filing procedures for comments, *see* 47 CFR 1.415 and 1.420. List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under Oregon, is amended by adding Maupin, Channel 244C2. Andrew J. Rhodes, Senior Counsel, Allocations, Audio Division, Media Bureau, Federal Communications Commission. [FR Doc. E9-19872 Filed 8-18-09; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 09-1795; MB Docket No. 09-146; RM-11553] Television Broadcasting Services; Chicago, IL AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: The Commission has before it a petition for rulemaking filed by WLS Television, Inc. (“WLS”), the licensee of station WLS-TV, DTV channel 7, Chicago, Illinois. WLS-TV requests the substitution of transition DTV channel 44 for its post-transition DTV channel 7 at Chicago. DATES: Comments must be filed on or before September 3, 2009, and reply comments on or before September 14, 2009. ADDRESSES: Federal Communications Commission, Office of the Secretary, 445 12th Street, SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve counsel for petitioner as follows: Tom W. Davidson, Esq., Akin Gump Strauss Hauer & Feld, LLP, 1333 New Hampshire Ave., NW., Washington, DC 20026. FOR FURTHER INFORMATION CONTACT: Adrienne Y. Denysyk, *adrienne.denysyk@fcc.gov,* Media Bureau,
(202)418-1600. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 09-146, adopted August 11, 2009, and released August 12, 2009. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC, 20554. This document will also be available via ECFS ( *http://www.fcc.gov/cgb/ecfs/* ). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-478-3160 or via e-mail *http://www.BCPIWEB.com.* To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to *fcc504@fcc.gov* or call the Commission's Consumer and Governmental Affairs Bureau at
(202)418-0530 (voice),
(202)418-0432 (TTY). This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all *ex parte* contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible *ex parte* contacts. For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420. List of Subjects in 47 CFR Part 73 Television, Television broadcasting. For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.622(i) [Amended] 2. Section 73.622(i), the Post-Transition Table of DTV Allotments under Illinois, is amended by adding DTV channel 44 and removing DTV channel 7 at Chicago. Federal Communications Commission. Clay C. Pendarvis, Associate Chief, Video Division, Media Bureau. [FR Doc. E9-19875 Filed 8-18-09; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [FWS-R8-ES-2008-0049;1111 FY08 MO-B2] Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the Ashy Storm-Petrel 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 ashy storm-petrel ( *Oceanodroma homochroa* ) 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 ashy storm-petrel is not warranted. We ask the public to continue to submit to us any new information concerning the status of, and threats to, this species. This information will help us to monitor and encourage the conservation of this species. DATES: The finding announced in the document was made on August 19, 2009. ADDRESSES: This finding is available on the Internet at *http://www.regulations.gov* and *http://www.fws.gov/arcata/* . 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, Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521; telephone 707-822-7201; facsimile 707-822-8411. Please submit any new information, materials, comments, or questions concerning this finding to the above address. FOR FURTHER INFORMATION CONTACT: Randy Brown, (Acting) Field Supervisor, U.S. Fish and Wildlife Service, Arcata 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 1-800-877-8339. 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, and expeditious progress is being made to add or remove qualified species from the Lists of Endangered and Threatened Wildlife and Plants. Such 12-month findings are to be published promptly in the **Federal Register** . Section 4(b)(3)(C) of the Act requires that 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 October 16, 2007, we received a petition, dated October 15, 2007, from the Center for Biological Diversity (CBD or petitioner), requesting that we list the ashy storm-petrel as a threatened or endangered species throughout its range and that we concurrently designate critical habitat (CBD 2007, pp. 1-51). In response to the petition, we sent a letter to the petitioner dated January 11, 2008, stating that we had secured funding and that we anticipated making an initial finding as to whether the petition contained substantial information indicating listing the ashy storm-petrel may be warranted in Fiscal Year 2008. We also concluded in our January 11, 2008, letter that emergency listing of the ashy storm-petrel was not warranted. On May 15, 2008, we published a 90-day petition finding (73 FR 28080) in which we concluded that the petition provided substantial information indicating that listing of the ashy storm-petrel may be warranted, and we initiated a status review. This notice constitutes the 12-month finding on the petition, dated October 15, 2007, to list the ashy storm-petrel as threatened or endangered. Species Description The ashy storm-petrel is a seabird species belonging to the order Procellariiformes, family Hydrobatidae. The ashy storm-petrel is one of five storm-petrel species (including fork-tailed ( *Oceanodroma furcata* ), Leach's ( *O. leucorhoa* ), black ( *O. melania* ), and least ( *O. microsoma* ) storm-petrels) that nest on islands along the west coast of North America (Harrison 1983, pp. 272-278). The ashy storm-petrel is a smoke-gray, medium-sized bird with long slender wings, a long forked tail, and webbed feet (Ainley 1995, p. 2). Ashy storm-petrels have been confirmed to breed at 26 locations (on islands and offshore rocks) from Mendocino County, California, south to Todos Santos Islands, west of Ensenada, Baja California, Mexico (Carter *et al.* 1992, pp. 77-81; Ainley 1995, p. 2; Carter *et al.* 2006, p. 6; Carter *et al.* 2008a, p. 118). Greater than 95 percent of the species breeds in two population centers at the Farallon Islands and in the California Channel Islands (Sowls *et al.* 1980, p. 24; Ainley *et al.* 1990, p. 135; Carter *et al.* 1992, p. 86). Anacapa, San Miguel, Santa Cruz, Santa Rosa, San Clemente, San Nicholas, Santa Barbara, and Santa Catalina islands comprise the Channel Islands. Ashy storm-petrels occur at their breeding colonies nearly year-round and occur in greater numbers from February through October (Ainley 1995, p. 5). Like other procellariids, ashy storm-petrels are highly philopatric; that is, birds usually return in consecutive years to the same breeding site or colony from which they were raised as chicks (James-Veitch 1970, p. 81; Warham 1990, p. 12). Ashy storm-petrels do not excavate burrows; rather, they nest in crevices of talus slopes, rock walls, sea caves, cliffs, and driftwood (James-Veitch 1970, pp. 87-88; Ainley *et al.* 1990, p. 147; McIver 2002, p. 1). The breeding season is protracted, and breeding activities (courtship, egg-laying, chick-rearing) at nesting locations occur from February through January of the following year (James-Veitch 1970, p. 71, Ainley *et al.* 1974, p. 301). During the pre-egg period, adult ashy storm-petrels begin to visit nesting sites in February (Ainley *et al.* 1974, p. 301; Ainley 1995, p. 5). Throughout the fledging period, the number of visiting adults declines (Ainley *et al.* 1974, p. 301). At Southeast Farallon Island, Ainley *et al.* (1974, p. 301) reported that immature (non-breeding) ashy storm-petrels visited the island from April through early July. The egg-laying period extends from late April to October, peaking in June and July (James-Veitch 1970, p. 243; Ainley *et al.* 1990, p. 148; McIver 2002, p. 17). Clutch size is one egg per year, and parents alternate incubation bouts during a 44-day incubation period (James-Veitch 1970, p. 244; Ainley 1995, p. 6). Less than about 4 percent of all eggs laid are replacement (or re-lay) eggs, laid after the failure of a first egg (Ainley *et al.* 1990, p. 148; McIver 2002, p. 18). Hatchlings are “semi-precocial” (James-Veitch 1970, p. 128). The term semi-precocial describes young that have characteristics of precocial young at hatching (open eyes, downy, capacity to leave the nest), but that remain at the nest and are cared for by parents until close to adult size (Sibley 2001, p. 573). Once hatched, the nestling is brooded for about 5 days, after which it remains alone in the nest site for an additional 75 to 85 days (James-Veitch 1970, pp. 141, 212; Ainley *et al.* 1990, p. 152). It is fed irregularly (1 to 3 nights on average) during brief, nocturnal visits by its parents from feeding areas at sea (James-Veitch 1970, pp. 180-208). Fledging occurs at night, from late August to January, and once they leave the nest, fledglings are independent of their parents (Ainley *et al.* 1974, p. 303; McIver 2002, p. 36). Peak fledging occurs in early to mid-October (McIver 2002, p. 18). The nocturnal activity (return to and departure from nest) and crevice nesting of the ashy storm-petrel are believed to be adaptations to avoid predation by diurnal predators, such as western gulls ( *Larus occidentalis* ), peregrine falcons ( *Falco peregrinus* ), and common ravens ( *Corvus corax* ) (Ainley 1995, p. 5; McIver and Carter 2006, p. 3). Ashy storm-petrels are susceptible to predation at night by burrowing owls ( *Athene cunicularia* ) and barn owls ( *Tyto alba* ) (Ainley 1995, p. 5; McIver 2002, p. 30). Nesting in crevices and burrows on remote headlands, offshore rocks, and islands generally reduces predation of storm-petrels by mammalian predators (Warham 1990, p. 13). Known mammalian predators of ashy storm-petrels and their eggs include house mice ( *Mus musculus* ), deer mice ( *Peromyscus maniculatus* ), and island spotted skunks ( *Spilogale gracilis amphiala* ) (Ainley *et al.* 1990, p. 146; McIver 2002, pp. 40-41; McIver and Carter 2006, p. 3). Obtaining direct population counts of ashy storm-petrels is difficult because the species often nests in deep, inaccessible crevices (Carter *et al.* 1992, p. 77; Sydeman *et al.* 1998a, p. 438). Techniques for estimating population size at breeding locations have included counting crevices and applying correction factors to account for burrow occupancy, mark and recapture using mist nests, and direct observation of nest sites. Estimates of breeding ashy storm-petrels for California have ranged from 5,187 (Sowls *et al.* 1980, p. 25) to 7,209 (Carter *et al.* 1992, p. I-87). Additional colony sites and larger ashy storm-petrel numbers have been found at several locations in the Channel Islands and along the mainland coast of California (Carter *et al.* 2008a, p. 119). Table 1 provides various estimates of numbers of breeding ashy storm-petrels at 26 locations in California and Baja California Norte, Mexico. Table 1. Estimates of Numbers of Breeding Ashy Storm-Petrels at 26 locations in California (United States) and Baja California Norte (Mexico). Location Ownership or Management a Estimated No. Breeding Birds Source for Breeding Birds Estimates b 1 Bird Rock near Greenwood, Mendocino County BLM 10 1,2,3 2 Caspar, near Point Cabrillo, Mendocino County BLM 10 1,2,3 3 Bird Rock, Marin County NPS 10 4 4 Stormy Stack, Marin County NPS 10 4 5a Southeast Farallon Island FWS 4,000 5 5b Southeast Farallon Island FWS 3,402 6 5c Southeast Farallon Island FWS 1,990 6 6 Castle/Hurricane Colony Complex, Monterey County BLM 60 7 7 Castle Rock, Santa Barbara County USN/NPS 200 8 8 Prince Island USN/NPS 1,154 1 9 Shipwreck Cave, Santa Cruz Island TNC/NPS 20 9 10 Dry Sandy Beach Cave, Santa Cruz Island TNC/NPS 80 10,11,12,13 11 Del Mar Rock, Santa Cruz Island NPS 10 1 12 Cave of the Bird's Eggs, Santa Cruz Island TNC/NPS 52 10,11,12,13 13 Diablo Rocks, Santa Cruz Island NPS 20 8 14 Orizaba (“Sppit”) Rock, Santa Cruz Island NPS 40 10,11,12,13 15 Bat Cave, Santa Cruz Island NPS 48 10,11,12,13 16 Cavern Point Cove Caves, Santa Cruz Island NPS 0 10,11,12,13 17 Scorpion Rocks, Santa Cruz Island NPS 140 1 18 Willows Anchorage Rocks, Santa Cruz Island NPS 111 1 19 Gull Island NPS 2 8 20 Santa Barbara Island NPS 874 1 21 Sutil Island NPS 586 1 22 Shag Rock NPS 10 13 23 Ship Rock, Santa Catalina Island BLM 2 14 24 Seal Cove Area, San Clemente Island BLM 10 15 25 Islas Los Coronados, Mexico MX 100 16 26 Islas Todos Santos, Mexico MX 10 17 Total, if using line 5a 7,569 Total, if using line 5b 6,971 Total, if using line 5c 5,559 a Entity listed once if same for both ownership and management, as follows: Bureau of Land Management (BLM); Mexican Government (MX); National Park Service (NPS); The Nature Conservancy (TNC); U.S. Fish and Wildlife Service (FWS); and U.S. Navy (USN). b Sources are as follows: 1-Carter *et al.* 1992; 2-Carter *et al.* 2008a; 3-Carter *et al. unpublished notes* ; 4-Whitworth *et al.* 2002; 5-Ainley and Lewis 1974; 6-Sydeman *et al.* 1998a; 7-McChesney *et al.* 2000; 8-Hunt *et al.* 1979; 9-H. Carter, *unpublished data* ; 10-McIver 2002; 11-McIver and Carter 2006; 12-Carter *et al.* 2007; 13-McIver *et al.* 2008; 14-FWS estimate, based on Carter *et al.* 2008a; 15-H. Carter and D. Whitworth, *unpublished data* ; 16-Carter *et al.* 2006a; and 17-Carter *et al* 2006b. Four thousand to six thousand ashy storm-petrels are usually observed in the fall in Monterey Bay, approximately 3 to 10 miles
(mi)(5 to 16 kilometers (km)) offshore from the town of Moss Landing, California. As many as 10,000 ashy storm-petrels were estimated to be present in Monterey Bay in October 1977 and in September 2008 (Roberson 1985, p. 42; Shearwater Journeys 2008). However, both of these estimates were from non-standardized visual estimates. Spear and Ainley (2007, p. 27) examined the seasonal at-sea distributions and abundance of storm-petrel species (including ashy storm-petrels) with generalized additive models, and estimated 4,207 and 7,287 birds during autumn and spring, respectively (95 percent confidence interval: 2,700 to 6,400 in autumn and 4,500 to 9,070 in spring) off of Sonoma to Monterey counties. Spear and Ainley (2007, p. 7) suggested that higher numbers of ashy storm-petrels may occur at Southeast Farallon Island, and other of the Farallon Islands, than have previously been reported. The total population of ashy storm-petrels (including breeders and non-breeders) has been estimated to be approximately 10,000 birds (Sowls *et al* . 1980, p. 24; Ainley 1995, p.1). Based on estimates at breeding locations and at-sea observations in Monterey Bay and off Sonoma to Monterey counties, we consider 7,000 to 10,000 birds to be a reasonable estimate of the total population size of ashy storm-petrels. However, based on other visual estimates mentioned above, the total population could be as high as 13,000 birds. More ashy storm-petrels breed at Southeast Farallon Island than at any other single location (Sowls *et al* . 1980, p. 24; Carter *et al* . 1992, p. I-78). Assessing population size and trends has been done through capture-recapture techniques using audio playback and mist nets (see Ainley and Lewis 1974, p. 435; Sydeman *et al* . 1998a, p. 438). Ainley and Lewis (1974, pp. 432-435) estimated 4,000 breeding ashy storm-petrels at Southeast Farallon Island in years 1971 to 1972, from birds captured and recaptured in mist nets at night. Sydeman *et al* . (1998a, p. 438-442) re-analyzed data from Southeast Farallon Island for years 1971 and 1972 (Ainley and Lewis 1974) and included data from year 1992 to estimate 6,461 total ashy storm-petrels and 3,402 breeding ashy storm-petrels in 1971 to 1972, and 4,284 total ashy storm-petrels and 1,990 breeding ashy storm-petrels in 1992. Based on comparison of these data sets, Sydeman *et al* . (1998a, p. 442) suggested declines of 34 percent and 42 percent in the total population and breeding population of ashy storm-petrels, respectively, at Southeast Farallon Island. Sydeman *et al* . (1998a, pp. 445-446) reported that this decline occurred in prime storm-petrel nesting habitat, and suggested that this decline in population size at Southeast Farallon Island was due to, in part, an increase in the predation rate on ashy storm-petrel adults and sub-adults by western gulls and burrowing owls. We interpret these results cautiously because they are based on two data points: one from 1972 and one 20 years later from 1992. Sydeman *et al* . (1998b, pp. 1-74) conducted a population viability assessment of ashy storm-petrels at Southeast Farallon Island, quantitatively examining the effects of predation on population decrease of ashy storm-petrels. Sydeman *et al* . (1998b, pp. 1-2) estimated a 2.87 percent decline in the population of ashy storm-petrels from 1972 to 1992 and hypothesized that removal of western gull predation would produce a stable population. They also stated, given current population parameters and predation rates, the population of ashy storm-petrels faces a high probability of quasi-extinction within 50 years (Sydeman *et al* . 1998b, p. 2). Since 1992, capture-recapture of ashy storm-petrels at Southeast Farallon Island has continued and techniques have been further standardized (McChesney 2008, p. 4). Using data from 1999 to 2007, Warzybok and Bradley (2007, p. 17) describe analysis of capture-recapture data that shows increasing capture rates and increasing survival of ashy storm-petrels. Specifically, they report the mean standardized capture rate (number of birds caught per hour of effort) increased from approximately 13 birds per hour to 38 birds per hour between 1999 and 2005 but declined slightly in 2006. The mean capture rate for 2007 was 39 birds per hour (Warzybok and Bradley 2007, p. 17). The authors also note that there were a greater number of occupied nesting sites than in previous years. Although there are caveats associated with Warzybok and Bradley's
(2007)analysis (See Factor C: Disease and Predation section below), their report represents the best available information to date and suggests an increasing population of ashy storm-petrels. Research on reproductive success (or productivity, defined as number of fledged chicks per adult pair) of the ashy storm-petrel has been conducted only at Southeast Farallon Island (James-Veitch 1970, pp. 1-366; Ainley *et al* . 1990, pp. 128-162; Sydeman *et al* . 1998a, pp. 1-74; PRBO Conservation Science,) and Santa Cruz Island (McIver 2002, pp. 1-70; McIver and Carter 2006, pp. 1-6; Carter *et al* . 2007, pp. 1-32; McIver *et al* . 2008, pp. 1-23; McIver *et al* . 2009, pp. 1-30; McIver *et al* ., in preparation, pp. 1-23). Reported productivity values are presented in Table 2. Table 2. Average values for productivity (fledged chicks per adult pair) of ashy storm-petrels at Southeast Farallon Island and Santa Cruz Island, California, for several studies during 1964-1966 and 1971-2008. Sample sizes are shown in parentheses. Location Productivity Years Source Southeast Farallon Island 0.42 a ( *n* = 184) 1964-1966 James-Veitch
(1970)Southeast Farallon Island 0.69( *n* = 356) 1972-1983 b Ainley and Boekelheide
(1990)Southeast Farallon Island 0.74 d ( *n* = 540) 1971-1992 b Sydeman *et al.* (1998b) Southeast Farallon Island 0.54 c ( *n* = 283) 1996-2007 e PRBO Conservation Science *unpublished data* ; Warzybok and Bradley
(2007)Santa Cruz Island 0.55( *n* = 477) 1995-1998 McIver *et al* . *in preparation* , Table 4 Santa Cruz Island 0.65( *n* = 293) 2005-2008 McIver *et al. in preparation* , Table 4; McIver *et al.*
(2009)a Researcher disturbance (daily nest checks) negatively affected productivity. b Excludes year 1977, when researcher disturbance negatively affected productivity. c Sample sizes not provided for year 1996-2005, so annual sample size during this time period. assumed at 22 nests, based on average sample size in Sydeman *et al.* (1998b). d Based on two data points. e Based on yearly date. No data are currently available regarding adult life span, survivorship, and age at first breeding for ashy storm-petrels (Ainley 1995, p. 8). However, like other procellariids, storm-petrels are long-lived (Warham 1996, p. 20). Some ashy storm-petrels reach 25 years old (Sydeman *et al.* 1998b, p. 7), and breeding adults over 20 years in age have been reported in the closely related Leach's storm-petrel (Morse and Bucheister 1977, p. 344). Mean age of first breeding in the Leach's storm-petrel has been reported at 5.9 years ± 1.3 years (Huntington *et al.* 1996, p. 19). Sydeman *et al.* (1998b, p. 7) concluded that 90 percent of adult ashy storm-petrels were capable of breeding at 6 years of age. Marine Environment Ashy storm-petrels are not as migratory as other storm-petrel species, foraging primarily in the California Current, from northern California to central Baja California, Mexico; the birds forage in areas of upwelling, seaward of the continental shelf, near islands and the coast (Ainley *et al.* 1974, p. 300; Briggs *et al.* 1987, p. 23; Mason *et al.* 2007, p. 60). The California Current flows along the west coast of North America, and like three other major, global, eastern boundary (along the eastern edges of oceanic gyres and the western edges of continents) currents, is characterized by the upwelling of cool, nutrient-rich waters, which results in increased productivity of the ocean (i.e., production of phytoplankton and zooplankton) in the region (Hickey 1993, pp. 19-70). The California Current extends about 190 mi (300 km) offshore from southern British Columbia, Canada, to Baja California, Mexico, and is comprised of a southward surface current, and a northward (poleward) undercurrent and surface countercurrents (Miller *et al.* 1999, p. 1; Dailey *et al.* 1993, pp. 8-10). Upwelling is an oceanographic phenomenon that involves wind-driven motion of dense, cooler, and usually nutrient-rich water towards the ocean surface, which replaces the warmer and usually nutrient-depleted surface water (Smith 1983, pp. 1-2). Coastal upwelling replenishes nutrients in the euphotic zone (zone of water where photosynthesis occurs), resulting in increased productivity in higher trophic levels (position within the food chain) (Batchelder *et al.* 2002, p. 37). Crossin (1974, p. 176) observed ashy storm-petrels as far north as latitude 49° N, as far south as latitude 7° S, and approximately 300 mi (480 km) from shore near latitude 14° N. However, Spear and Ainley (2007, p. 7) disputed these observations and state that these observations likely represented misidentified dark-rumped Leach's storm-petrels. At-sea observations of ashy storm-petrels south of Islas San Benitos, Mexico (latitude 28° N) are unusual, and most observations of the species are off the coasts of California and Baja California Norte, Mexico (Briggs *et al.* 1987, p. 23; Ainley 1995, p. 2). Aerial and boat observations at-sea confirm that the species is associated with pelagic (offshore) waters along the slope of and just seaward of the Continental Shelf and the Monterey Submarine Canyon, and less often in neritic (nearshore) waters (Briggs *et al.* 1987, p. 23; Mason *et al.* 2007, pp. 56-60; Adams and Takekawa 2008, pp. 12-13). Ashy storm-petrels are not known to be associated with the deeper and warmer oceanic waters west of the California Current, unlike the closely-related Leach's storm-petrel (Ainley *et al.* 1974, pp. 299-300). Thus, the Service considers the at-sea geographic distribution (i.e., marine range) of the ashy storm-petrel to include waters off the western coast of North America, from latitude 42° N (approximately the California-Oregon State line) south to latitude 28° N (approximately Islas San Benitos, Mexico), and approximately 75 mi (120 km) out to sea from mainland and island coasts. The diet of ashy storm-petrels has not been extensively studied, but likely includes euphausiids ( *Euphausia* spp., *Thysanoessa* ), other crustaceans, larval lanternfish, unidentified fish, fish eggs, and squid (Warham 1990, p. 186; McChesney 1999, pers. com.; Adams and Takekawa 2008, p. 14). 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 our 90-day finding for this petition (73 FR 28080), we organized potential threats under the five factors according to how they were organized and described in the petition. In this 12-month finding, we analyze all of the potential threats described in the petition, but have reorganized them slightly under the factors that more appropriately categorize them. In making our 12-month finding, we considered and evaluated all scientific and commercial information available, including information received during and after the public comment period that ended July 14, 2008. Factor A: The Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range Like most other procellariids, ashy storm-petrels feed mostly offshore or pelagically (Warham 1990, p. 10; Ainley 1995, p. 2) and return to land to breed at locations on islands and offshore rocks protected from mammalian predators (Warham 1990, p. 13; Ainley 1995, p. 3). Consequently, in this section, we describe various threats that may destroy, modify, or curtail the ashy storm-petrel's marine and terrestrial habitats and range. The petitioner asserts that the ashy storm-petrel is being or will be negatively affected by current and future climate change (specific effects: reduction in ocean productivity; ocean acidification; and sea level rise), tourism (specific effects: disturbance of habitats and nesting birds), and introduced grasses (CBD 2007, p. 15). The petitioner further asserts that the ashy storm-petrel's at-sea foraging habitat is being degraded by artificial (human-caused) light pollution, chemical and plastics pollution, and current and future oceanic changes related to climate change resulting from greenhouse gas emissions (CBD, p. 15); We addresspotential threats posed by artificial light pollution and chemical and plastics pollution under Factor E below. In this 12-month finding, we discuss under Factor A the following potential threats:
(1)Climate change and associated effects—specifically, reduced productivity, ocean acidification, and sea-level rise;
(2)introduced grasses; and
(3)degradation of nesting habitats from tourism and military operations. The petitioner states that global warming will likely affect the ashy storm-petrel by causing warmer water and reduced upwelling, which reduces primary productivity in the California current system that would in turn decrease ashy storm-petrel breeding success and perhaps survival; global warming is leading to more intense El Niño events that could lead to ashy storm-petrel breeding failures; sea-level rise will eliminate important ashy storm-petrel breeding habitat in sea caves and off-shore rocks in the Channel Islands; and ocean acidification may lead to declines in the prey species upon which petrels depend (CBD 2007, p 2). We discuss first below the various climate-related factors affecting ashy storm-petrels. El Niño and Reduced Productivity The term El Niño-Southern Oscillation (hereafter, El Niño) is used to describe periodic basin-wide changes in air-sea interaction in the equatorial Pacific Ocean region, which result in increased sea-surface temperatures, reduced flow of eastern boundary currents, and reduced coastal upwelling (Norton and McLain 1994, pp. 16,019-16,030; Schwing *et al.* 2002, p. 461). La Niña events (sometimes called anti-El Niño or cold-water events) produce effects in the northeast Pacific Ocean that tend to be the reverse of those that occur during El Niño events; during La Niña events, strong upwelling-favorable winds and a shallow thermocline (zone of rapid temperature change with increased depth that typically separates warm and cold water) result in colder, more nutrient-rich waters than usual (Murphree and Reynolds 1995, p. 52; Oedekoven *et al.* 2001, p. 266). In addition to inter-annual climate events such as El Niño and La Niña, the mid-latitude Pacific Ocean experiences warm and cool phases that occur on decadal time scales (Mantua 2000, p. 2). The term “Pacific Decadal Oscillation” was coined to describe long-term climate variability in the Pacific Ocean, in which there are observed warm and cool phases, or “regime shifts” (Mantua *et al.* 1997, pp. 1069-1079). The California Current system is affected by inter-annual (ENSO-related (El Niño/La Niña)) and inter-decadal (Pacific Decadal Oscillation) climatic processes. The petitioner cites Behrenfeld *et al.* (2006, pp. 752-755) to describe significant global declines in net primary production between years 1997 and 2005, attributed to reduced nutrient enhancement due to ocean surface warming (CBD 2007, p. 25). Specific to the marine range of the ashy storm-petrel, the petitioner states that the California Current System has experienced some of the most well-documented changes in ocean climate due to global warming (CBD 2007, p. 25). The petition cites several examples of changes in the California Current System, which it attributes to climate change, that all relate to reduced ocean productivity, including: reduction in zooplankton biomass and increased sea surface temperatures (Roemmich and McGowan 1995, pp. 1324-1326; Lynn *et al.* 1998, pp. 25-49); upwelling of warmer, nutrient-depleted waters, which leads to breeding failures, mortality, and population declines across trophic levels (Barber and Chavez 1983, pp. 1203-1210); delay in the onset of spring upwelling (Schwing *et al.* 2006, pp. 1-5); anomalously warm water, low nutrient levels, and low primary production (Thomas and Brickley 2006, pp. 1-5); reduced zooplankton biomass (Mackas *et al.* 2006, pp. 1-7); unprecedented seabird breeding failures (Sydeman *et al.* 2006, pp. 1-5); and anomalously low recruitment of rocky intertidal organisms (Barth *et al.* 2007, pp. 3719-3724). Specific changes in the California Current that may negatively affect the ashy storm-petrel are discussed below. Roemmich and McGowan (1995, pp. 1324-1326) described 43 years (from 1951 to 1993) of observations off the southern California coast. They reported that zooplankton had decreased by 80 percent, and that surface temperatures taken during transects off Point Conception and Orange County (approximately) warmed by an average of 2.2 °F (1.2 °C) and 2.3 °F (1.6 °C), respectively, during this period. They suggested that the zooplankton decline was directly related to and caused by the observed warming (Roemmich and McGowan 1995, p. 1325). The petitioner cited Schwing *et al.* (2006, pp. 1-5), Barth *et al.* (2007, pp. 3719-3724), and Sydeman *et al.* (2006, pp. 1-5) to describe a delay in the onset of spring upwelling in the northern California Current that resulted in breeding failures of Cassin's auklets ( *Ptychoramphus aleuticus* ) at Southeast Farallon Island, and at Triangle Island, British Columbia, in 2005 (CBD 2007, p. 25). At Southeast Farallon Island, Cassin's auklets also failed to breed in 2006 as well, likely as a result of warm-water conditions, reduced upwelling, and reduced availability of krill (Warzybok *et al.* 2006, pp. 12-14). At Southeast Farallon Island, productivity (chicks fledged per breeding pair) of ashy storm-petrels was 0.56 in 2005, and 0.48 in 2006 (Warzybok *et al.* 2006, p. 7). At Santa Cruz Island, productivity of ashy storm-petrels was 0.58 in 2005, and 0.68 in 2006 (McIver *et al.* in preparation, tables 2-4). Sydeman *et al.* (2006, p. 1) reported that euphausiid crustacean (krill) biomass in the Gulf of the Farallones was reduced in 2005, but remained high south of Point Conception. To successfully raise a chick, an adult storm-petrel must obtain enough food for itself, plus one-half the food requirements of the chick, plus food to fuel the metabolic costs of transporting food to the nesting location (Quinlan 1979, p. 103). Thus, if food was less available to ashy storm-petrels foraging north of Point Conception (presumably, Southeast Farallon Island breeders) in 2005 and 2006, adverse affects may have appeared during the chick stage, and this could explain (in part) reduced breeding success at Southeast Farallon Island in 2006. Like Cassin's auklets, ashy storm-petrels feed on krill. However, unlike Cassin's auklets, ashy storm-petrels have more extended incubation and chick-rearing periods (per egg-laying effort), and feed over a wider geographic area; thus, they are likely more able to exploit similar food resources when these resources are reduced or more patchily distributed. As stated earlier, Cassin's auklets failed to breed in 2005 and 2006, in contrast to ashy storm-petrels, which did breed. Additionally, Ainley (1990b, pp. 357-359) reported that ashy storm-petrels showed the lowest inter-annual variability in productivity of any species breeding at Southeast Farallon Island, for the years 1971 to 1983. Ashy storm-petrel productivity was 0.64 and 0.69 in 1972 (n = 36) and 1973 (n = 35), respectively; 0.81 in 1976 (n = 37); and 0.75 and 0.67 in 1982 (n = 28) and 1983 (n = 18), respectively (Ainley and Boekelheide 1990, p. 392). This is of importance because during this time period, El Niño events occurred in 1972-73, 1976, and 1982-83 (Ainley 1990a, p. 36). Ainley (1990b, p. 371) reported that breeding by other seabirds at Southeast Farallon Island was poor to nonexistent in 1973, 1976, 1978, 1982, and 1983. As noted above, ashy storm-petrels were the exception to this observation; they bred in all years of the study, and no clear correlation between warm-water years and reduced reproductive success (productivity) was evident for this species (Ainley and Boekelheide 1990, p. 392). The only response to El Niño conditions that may be evident are smaller numbers of ashy storm-petrels breeding and delayed egglaying (later in the season than in other years) (Ainley and Boekelheide 1990, p. 392; Ainley *et al* 1990, pp. 149-150). However, since regular annual monitoring of nesting activities began at Southeast Farallon Island (in 1971) and at Santa Cruz Island (in 1994), researchers have observed ashy storm-petrels (on a population level) breeding each year. In research conducted in 1995-97 and 2005-07, McIver *et al* . ( *in preparation* , p. 10) report that reproductive success (productivity) of ashy storm-petrels at Santa Cruz Island did not appear to be negatively affected by El Niño conditions (although timing of breeding was later in 1998, an El Niño year), and no clear relationship between oceanographic conditions in southern California and reproductive success of ashy storm-petrels was observed. As presented above, this is supported by data from research at Southeast Farallon Island. Productivity of ashy storm-petrels at Southeast Farallon Island declined from the late 1980s to the mid-1990s (Sydeman *et al* . 2001, p. 315; CBD 2007, p. 8; Warzybok and Bradley 2007, p. 7). However, more recent data indicate that this decline in productivity has not continued. Warzybok and Bradley (2007, p. 17) describe an analysis of capture-recapture data that shows increasing capture rates and increasing survival of ashy storm-petrels on Southeast Farallon Island. Based on observed annual breeding and reproductive success values of ashy storm-petrels during El Niño events, and the low inter-annual variability in reproductive success as reported by Ainley and Boekelheide (1990, p. 392) and McIver (2002, p. 29), we conclude there is no clear relationship between reduced productivity of phytoplankton and zooplankton in the California Current due to El Niño events and reproductive success of ashy storm-petrels. As enumerated above, the petition cited several examples of changes in the California Current System, revolving around ocean productivity, which the petition claims has had an adverse effect on ashy storm-petrels. Based on our review of the available information, we found that some species of seabirds have experienced breeding failures in certain years, which can be linked to El Niño events, warmer water, or lower primary productivity. However, productivity of the ashy storm-petrel over approximately the past 40 years does not show breeding failures in those same years. This is likely due to the species' ability to exploit a wider range of resources than other seabirds. Based on the species' response to El Niño events, we conclude the ashy storm-petrel is not likely to be adversely affected by potentially lower ocean productivity due to long-term ocean warming. In 2006, when Cassin's auklets failed to breed at Southeast Farallon Island likely as a result of warm-water conditions, reduced upwelling, and reduced availability of krill or a delay in the onset of spring upwelling, ashy storm-petrels did breed but had slightly lower productivity. Based on this information, we do not consider the delay in the onset of spring upwelling to be a threat to the species. Therefore, based on the best scientific information available to the Service regarding the effects of climate change, including the effects of El Niño and changes in the California Current on ocean productivity, we do not consider this to be a significant threat to the ashy storm-petrel at Southeast Farallon Island, at the Channel Islands, or rangewide. Climate Change - Ocean Acidification The petitioner claims that ocean acidification may eventually have detrimental impacts on the ashy storm-petrel's crustacean prey species (e.g., *Euphausia pacifica, Thysannoessa spinifera* ) that may be impaired in building their exoskeletons in the coming decades (CBD 2007, p. 29). The petitioner cites Orr *et al* . (2005, p. 682) that mid-latitude waters, where the California Current Ecosystem is located, are experiencing the largest decreases in surface carbonate ion concentrations. The chemical processes behind ocean acidification are well known. The presence of inorganic carbon in the ocean is largely responsible for controlling the pH (the measure of acidity) of seawater, and dissolved inorganic carbon in seawater exists in three major forms, including a bicarbonate ion, carbonate ion, and aqueous carbon dioxide (Fabry *et al* . 2008, pp. 414-415). Human industrial and land use activities are resulting in increased atmospheric concentrations of carbon dioxide (Feely *et al* . 2004, p. 362); much carbon dioxide is absorbed by the oceans (Caldiera and Wickett 2003, p. 365; Sabine *et al* . 2004, p. 370). When carbon dioxide dissolves in water, carbonic acid is formed, most of which quickly dissociates into a hydrogen ion and a bicarbonate ion; the hydrogen ion can further react with a carbonate ion to form bicarbonate (Fabry *et al* . 2008, p. 415). The effects of increased absorption of carbon dioxide by the oceans have been given the term “ocean acidification” and include an increase in concentrations of carbonic acid, bicarbonate, and hydrogen ions; a decrease in concentration of carbonate; and a reduction in the pH level in seawater (Caldiera and Wickett 2003, p. 365; Royal Society *et al* . 2005, p.16; Fabry *et al* . 2008, p. 415). Pure water has a pH of 7; solutions below pH 7 are acidic, and solutions above pH 7 are alkaline, or basic (summarized in Hardt and Safina 2008, p. 1). Oceans are slightly alkaline, with a pH of 8.1 (at latitude 30°N, approximately; Caldiera and Wickett 2005, p. 5). Measurements of surface ocean pH in 2005 were 0.1 unit lower than preindustrial values (prior to the 1850s) and could become 0.3 to 0.4 units lower by the end of the 21st century (Caldiera and Wickett 2005, p. 5). Marine organisms that produce shells, such as corals, mollusks, echinoderms, and crustaceans, require carbonate ions to produce their calcium carbonate shells and skeletons (Orr *et al* . 2005, p. 681; Fabry *et al* . 2008, p. 415). There are three mineral forms of calcium carbonate (magnesium-calcite, aragonite, and calcite), and each has different tendencies to dissolve (solubility) in seawater (summarized in Hardt and Safina 2008, p. 2). The reaction of excess carbon dioxide with seawater reduces the availability of carbonate ions necessary for shell and skeleton formation for these organisms (Fabry *et al* . 2008, p. 415). Generally, oceanic surface waters are saturated with calcium carbonate, deeper waters are under-saturated, and the depth where waters transition from saturated to unsaturated is called the saturation horizon (summarized in Hardt and Safina 2008, p. 2). A reduction in carbonate ions causes all forms of calcium carbonate to dissolve at shallower depths, and causes a reduction in the rate at which marine organisms can produce calcium carbonate (summarized in Hardt and Safina 2008, p. 2). In other words, once formed, calcium carbonate will dissolve back into the water unless the surrounding seawater contains sufficiently high concentrations of carbonate ions (Royal Society *et al* . 2005, p. 10). The major planktonic calcium carbonate producers in the ocean are coccolithophores (single-celled phytoplankton), foraminifera (amoeboid protists), and pteropods (marine mollusks) (Fabry *et al* . 2008, p. 417). Marine organisms act as a “biological pump,” removing carbon dioxide and nutrients from the surface ocean and transferring these elements into the deeper ocean and ocean bottom (Zondervan *et al* . 2001, p. 507; Chen *et al* . 2004, p.18). Feely *et al* . (2008, pp. 1490-1492) conducted hydrographic surveys along the continental shelf of North America, and found evidence for undersaturated (with respect to aragonite) and low pH (less than 7.75) waters at mid-shelf depths of approximately 131 to 394 feet
(ft)(40 to 120 meters (m)) from about middle California (latitude 37° N, approximately) to Baja California Sur, Mexico (latitude 26° N, approximately). Feely *et al* . (2008, p. 1492) reported that much of the corrosive character of these waters is natural as the result of respiration processes at intermediate depths below the euphotic zone. Feely *et al* . (2008, p. 1492) cautioned that the California coastal region continues to accumulate anthropogenic carbon dioxide, and concluded that seasonal upwelling processes enhance the advancement of the corrosive deep water into wide regions of the North American continental shelf. Feely *et al* . (2008, p. 1492) further reported that little was known about how intermittent exposure to acidified water might affect the development of calcifying, or shell building, organisms in this region. The ecological effects of changing ocean carbonate chemistry are uncertain due to complexities of marine ecosystems, and research to date has focused on the impact of acidification on calcifying organisms (Antarctic Climate & Ecosystems Cooperative Research Centre 2008, p. 7). Although the chemical processes associated with ocean acidification and the biological processes involving the transport of carbon in the oceans have been studied and described in detail, little research has been conducted to assess the response of many zooplankton populations, including euphausiids (upon which ashy storm-petrels likely feed), to ocean acidification (Fabry *et al* . 2008, p. 426). However, the Service is aware of one study (Yamada and Ikeda 1999, pp. 62-67) that experimentally tested the acute (lethal) effects of lowered pH levels upon *Euphausia pacifica* , a species of krill that occurs in the northern Pacific Ocean and is a known prey item of ashy storm-petrels. Observing 5 juveniles and 20 nauplii (the free-swimming first stage of the larva) of *Euphausia pacifica* , Yamada and Ikeda (1999, pp. 65) found increased mortality with increased exposure time and decreased pH (less than 6.9). Based on their data, Yamada and Ikeda (1999, p. 66) also suggested that the ability to tolerate lowered pH may be highly variable between and possibly within species, as in the case of nauplii and juveniles of *Euphausia pacifica* . Yamada and Ikeda (1999, p. 66) suggested that information about pH levels that induce chronic (sublethal) effects would be more appropriate to estimate the long-term consequences for a given zooplankton population, in that zooplankton may survive exposure to lower pH levels but may be unable to produce normal offspring. The Service is also aware of research currently being conducted to study the possible effects of ocean acidification on euphausiids in waters near Antarctica (see Rowbotham 2008, p. 1), but this research has just begun and data are currently not available (T. Berli, personal communication 2008). As stated in the Species Description section, the diet of ashy storm-petrels has not been extensively studied; however, like other species of storm-petrels, ashy storm-petrels likely feed on euphausiids, juvenile lanternfish, fish eggs, and other small fish that occur at the surface of the ocean. Our review of the available information did not reveal any information regarding diet studies or measurements of chick growth and weight that indicate that ashy storm-petrels are eating fewer euphausiids or are providing less food to their chicks. Additionally, our review of the available information did not find any research indicating that ocean acidification is causing acute or chronic effects to euphausiid populations that occur in the California Current, or any other species of krill that occur in the California Current, on which ashy storm-petrels feed. Although the processes and potential effects of ocean acidification on biological food webs have been described, and experimental research on *Euphausia pacifica* has tested lethal effects of exposure to low pH, our review of the available information did not reveal any evidence that demonstrates a direct link between ocean acidification and reduced abundance and survival of prey items on which ashy storm-petrels depend. Additionally, Ainley (1990b, p. 371) reported that breeding by other seabirds at Southeast Farallon Island was poor to nonexistent during warm-water years (El Niño events). However, ashy storm-petrels bred in years that other seabird species did not (Ainley and Boekelheide 1990, p. 392), which is an indication that the ashy storm-petrel is less affected by changes in ocean productivity than other species. Therefore, based on our review of the available information, we conclude that the potential effects of ocean acidification are not currently a significant threat to ashy storm-petrels based on the uncertainty of the ecological effects of changing ocean carbonate chemistry. Published research and oceanographic modeling does show that oceans are acidifying, and we recognize that ashy storm-petrels may be susceptible to changes in the oceans' chemistry in the future. However, based on the best scientific information available to the Service regarding ocean acidification, at this time we do not consider ocean acidification to be a significant threat to the ashy storm-petrel at Southeast Farallon Island, at the Channel Islands, or rangewide. Climate Change - Sea Level Rise The petitioner claims that climate change will cause rises in the elevation of the oceans that will have negative consequences for ashy storm-petrels by eliminating (presumably, by inundation and submersion by seawater) important habitat in sea caves and offshore rocks in the California Channel Islands (CBD 2007, p. 28). Sea levels along the California coast are projected to rise approximately 1 ft (0.3 m) by 2050 and approximately 3 ft (0.9 m) by 2100 (California Coastal Commission 2001, pp. 14-15; Cayan *et al* . 2006, p. S71). Future sea levels along the coast of California will likely depend upon (in part): future changes in global temperatures; lag time between atmospheric changes and oceanic reactions; thermal expansion of ocean water; effects of atmospheric temperature changes on Antarctica; melting of Greenland ice and other glaciers; and local subsidence and uplift of coastal areas (California Coastal Commission 2001, p. 12). Gradual sea level rises progressively worsen the impacts of high tides (through erosion and submersion), surge, and waves resulting from storms (Cayan *et al* . 2008, pp. S57-S58). We reviewed topographic maps and information provided in Sowls *et al* . (1980), Bunnell (1988), and Carter *et al* . (1992; 2006a; 2006b) to estimate the range of elevations above sea level of suitable ashy storm-petrel habitat at each of the 26 known breeding locations (Table 3). Table 3. Estimated range of elevation above sea level
(ASL)in feet
(ft)and meters
(m)of known nesting habitat of ashy storm-petrels. Location Number Breeding Location Name Elevation ASL 1 Bird Rock near Greenwood, Mendocino County 10-40 ft (3-12 m) 2 Caspar, near Point Cabrillo, Mendocino County 10-40 ft (3-12 m) 3 Bird Rock, Marin County 10-40 ft (3-12 m) 4 Stormy Stack, Marin County 10-50 ft (3-15 m) 5 Southeast Farallon Island 10-330 ft (3-100 m) 6 Castle/Hurricane Colony Complex, Monterey County 10-100 ft (3-30 m) 7 Castle Rock, Santa Barbara County 20-80 ft (6-24 m) 8 Prince Island 20-300 ft (6-91 m) 9 Shipwreck Cave, Santa Cruz Island 5-15 ft (1.5-5 m) 10 Dry Sandy Beach Cave, Santa Cruz Island 5-15 ft (1.5-5 m) 11 Del Mar Rock, Santa Cruz Island 5-20 ft (1.5-6 m) 12 Cave of the Birds Eggs, Santa Cruz Island 5-10 ft (1.5-3 m) 13 Diablo Rocks, Santa Cruz Island 10-40 ft (3-12 m) 14 Orizaba Rock, Santa Cruz Island 10-30 ft (3-9 m) 15 Bat Cave, Santa Cruz Island 5-20 ft (1.5-6 m) 16 Cavern Point Cove Caves, Santa Cruz Island 0-10 ft (0-3 m) 17 Scorpion Rocks, Santa Cruz Island 10-40 ft (3-12 m) 18 Willow Anchorage Rocks, Santa Cruz Island 10-40 ft (3-12 m) 19 Gull Island, Santa Cruz Island 10-100 ft (3-30 m) 20 Santa Barbara Island 10-600 ft (3-183 m) 21 Sutil Island 10-250 ft (3-76 m) 22 Shag Rock 10-50 ft (3-15 m) 23 Ship Rock, Santa Catalina Island 5-20 ft (1.5-6 m) 24 Seal Cove Area, San Clemente Island 10-50 ft (3-15 m) 25 Islas Los Coronados, Mexico 10-100 ft (3-30 m) 26 Islas Todos Santos, Mexico 10-100 ft (3-30 m) The nesting habitat at the majority of ashy storm-petrel breeding locations will likely not be affected by the sea level rise projected for California by 2100 (Table 3). Some nesting habitat at only one location at Cavern Point Cove Caves, Santa Cruz Island, would likely be submerged if projected sea level rises of 1 ft (0.3 m) by 2050 occur; much of the nesting habitat at this location would likely be submerged if the sea level rises 3 ft (0.9 m) by year 2100. Prior to the mortality event in 2008 at this location (see Factor C), Cavern Point Cove Caves had approximately 40 breeding birds annually. Some habitat at other cave locations on Santa Cruz Island may be susceptible to submersion by seawater. For example, on Santa Cruz Island in November 2008, McIver *et al* . (2009, p. 6) reported flooding by ocean water in a sea cave that likely killed one storm-petrel chick. Despite this unusual event, the majority of the nesting habitat in the sea caves at Santa Cruz Island occurs greater than 3 ft (1 m) above current sea level, and would not likely be submerged during breeding season months (April through November) within the next 40 to 50 years. Winter storm surges periodically wash all of the sea caves at Santa Cruz Island, but these storm events likely do not negatively affect ashy storm-petrels, since most ashy storm-petrels are not attending the colonies during winter months (Ainley 1995, p. 5). In fact, past winter storms have benefited ashy storm-petrels at Santa Cruz Island by creating nesting habitat; approximately 25 percent of ashy storm-petrel nest sites in Bat Cave occur among accumulated driftwood debris (both human-made and natural) that has washed into the cave during past winter storm events. Based on information available to the Service regarding elevations (above current sea level) of breeding locations of ashy storm-petrels, and projected estimates of sea level rise along the west coast of North America during the 21st century, we conclude that a small portion of the total population of ashy storm-petrels (approximately 0.8 percent) could be negatively affected by rising sea levels by 2050. Therefore, based on the best scientific information available to the Service regarding climate change-induced sea level rise, at this time we do not consider this to be a significant threat to the ashy storm-petrel at Southeast Farallon Island, at the Channel Islands, or rangewide. Changes in Terrestrial Breeding Habitat Introduced Grasses The petitioner asserts that the ashy storm-petrel's island breeding habitats are being modified and degraded by introduced species and specifically, that introduced grasses have increased at Southeast Farallon Island, causing some nesting areas to be unusable for ashy storm-petrels (CBD 2007, p. 30). In addition, the petitioner claims that introduced grasses are widespread at all ashy storm-petrel colonies and that their effects have not been evaluated (CBD 2007, p. 30). Ainley (1995, p. 9) describes introduced grasses as a factor potentially limiting the amount of available nesting habitat for ashy storm-petrels at Southeast Farallon Island. Ainley and Hyrenbach ( *in press* , p. 12) report that introduced grasses have spread, thickened, and grown among the talus slopes at Southeast Farallon Island, and suggest that grasses likely limit access to cavities by ashy storm-petrels, which do not excavate nesting burrows and instead rely upon available nesting crevices. However, the petitioner did not provide, nor did our review of the available information reveal, specific information that quantifies the amount of suitable nesting habitat at Southeast Farallon Island, or other breeding locations, that may be unavailable to ashy storm-petrels because of introduced grasses. In addition, our review of the available information found no information to indicate that introduced grasses are widespread at all breeding locations. For example, grasses do not occur in sea caves or on most offshore rocks where ashy storm-petrels nest. Introduced grasses may occur in proximity to ashy storm-petrel nest sites on Southeast Farallon Island and on Santa Barbara Island. Based on population estimates for these areas presented in Table 1, approximately 51 to 64 percent of ashy storm-petrels breed at these locations; however, we are not aware of any evidence through direct observation or vegetation surveys that indicates that introduced grasses prevent significant numbers of ashy storm-petrels from nesting. Grasses are widespread on Santa Barbara Island, where the major plant communities include island grassland, coastal sage scrub, maritime desert scrub, and coastal bluff scrub (Schoenherr *et al* . 2003, p. 349). However, ashy storm-petrels at Santa Barbara Island likely nest in crevices that occur in steep cliffs, where grasses are less common (Carter *et al* . 1992, p. I-81). Therefore, based on the best scientific information available to the Service regarding the threat of introduced grasses, at this time we do not consider this to be a significant threat to the ashy storm-petrel at Southeast Farallon Island, at the Channel Islands, or rangewide. Human Degradation of Nesting Habitats The petitioner states that human disturbance and degradation of nesting habitats through tourism and military activities threaten the continued existence of the ashy storm-petrel (CBD 2007, p. 35). Regarding tourism, most breeding locations occur on federally owned or managed lands that are generally inaccessible to visitation by the public. Southeast Farallon Island contains approximately 36 to 53 percent of the total ashy storm-petrel population and has low human visitation by the Service's Refuge staff but is closed to the general public. Due to steep topography and difficult ocean and landing conditions, breeding locations on islands and offshore rocks other than Southeast Farallon Island are generally inaccessible to tourists, and our review of the available information has not revealed specific information indicating that ashy storm-petrel nesting habitats on islands, offshore rocks, and islets are being degraded by human visitation. Sea caves on Santa Cruz Island are susceptible to visitation by tourists (e.g., sea kayakers) (McIver 2002, p. 53; McIver *et al* . 2008, pp. 7-8). However, the U.S. National Park Service, Channel Islands National Park
(Park)has closed two sea caves to the public, and in spring 2009, installed signs (inconspicuous from the water) within the entrances of Bat Cave and Cavern Point Cove Caves informing tourists that the caves contain nesting seabirds and are closed to visitation by the public (W. McIver, personal observation). Although there is direct evidence that tourists have occasionally visited sea caves at Santa Cruz Island where ashy storm-petrels nest (McIver *et al* . 2008, p. 5; McIver *et al* . 2009, pp. 7-8), the available information does not indicate adverse impacts of tourism upon ashy storm-petrels, such as dead birds, broken eggs, or degraded or modified nesting habitats. Due to observed lower hatching success at Cavern Point Cove Caves, in comparison to other locations at Santa Cruz Island (McIver 2002, p. 24), we cannot discount the possibility that visitation by tourists may have resulted in disturbance to and abandonment of some nests of ashy storm-petrels at this location. However, because most ashy storm-petrel breeding locations are generally inaccessible to tourists, we find it unlikely that human visitation has caused large-scale disturbance to ashy storm-petrels and subsequent abandonment of nesting efforts. Thus, based on land ownership and restricted human activities at ashy storm-petrel breeding locations on Southeast Farallon Island and on the Channel Islands, we find human tourism is currently not a substantial threat to the ashy storm-petrel at Southeast Farallon Island, at the Channel Islands, or rangewide. Within the range of the ashy storm-petrel, military activities only occur on San Clemente Island, which is one of the Channel Islands. San Clemente Island is owned and managed by the Department of the Navy, and it is estimated that at least 10 ashy storm-petrels breed there (H. Carter and D. Whitworth,). Ashy storm-petrels are known to breed at Seal Cove Rocks (Carter *et al* . 2008a, p. 119), off the island's west side, and may breed on offshore rocks off China Point, and at or near Mosquito Cove (Hering 2008, p.4). Seal Cove Rocks occur outside of any current training areas (Hering 2005, p. 5). Offshore rocks near China Point do occur within the Shore Bombardment Area (SHOBA); however, these rocks are not targeted by bombardment activities, and ashy storm-petrels have not been confirmed as breeding there (Hering 2008, p. 5). Mosquito Cove is also within the boundaries of SHOBA, but occurs outside the impact areas (Hering 2008, p. 5). Carter *et al* . (2008c, pp.12-13) report that portions of Prince Island were used by the U.S. Navy as a target for aerial bombing and missile testing from the late 1940s to the early 1970s. Carter *et al* . (2008c, p.13) speculated that effects included: some seabirds probably were killed by explosions; loss of breeding habitats for burrow- and crevice-nesting seabirds likely occurred due to explosions; and periodic human disturbance of seabirds likely occurred from military personnel. However, our review of the available information did not reveal any specific impacts to ashy storm-petrels at Prince Island as a result of these activities, and these activities have not occurred at this breeding location for more than 35 years. Therefore, because only a small percentage (approximately 0.1 percent) of the entire population of ashy storm-petrels nests on San Clemente Island, current military activities at San Clemente Island likely do not affect ashy storm-petrel nesting areas there, and because military activities no longer occur at Prince Island, we conclude that military activities do not pose a substantial threat to the ashy storm-petrel at Southeast Farallon Island, at the Channel Islands, or rangewide. Human visitation at Southeast Farallon Island is low, and there is no evidence to suggest degradation of nesting habitats there. At the Channel Islands, human visitation is greater near breeding habitat, but the National Park Service has taken steps to close several sea caves where ashy storm-petrels breed. Additionally, there is no direct evidence of human impacts to ashy storm-petrels or their breeding habitat at these locations. Within the range of the ashy storm-petrel, military activities only occur currently on San Clemente Island but are not targeted at breeding or nesting areas. Therefore, based on the best scientific information available to the Service, at this time we conclude that human degradation of nesting habitats by tourism and military activities is not a significant threat to the ashy storm-petrel at Southeast Farallon Island, at the Channel Islands, or rangewide. Summary of Factor A While there is some evidence to suggest the timing of ashy storm-petrel egg laying may be delayed as a result of El Niño events, and that fewer numbers of ashy storm-petrels may attempt to breed during El Niño years, these results do not appear significant, and we have no information to suggest that El Niño events otherwise significantly affect ashy storm-petrel reproductive success or productivity, unlike in other sea birds. Additionally, based on the species' response to El Niño events, we conclude the ashy storm-petrel is not likely to be adversely affected by potentially lower ocean productivity due to long-term ocean warming. Based on our review of current research, there is demonstrated evidence of ongoing ocean acidification; however, current research does not demonstrate a direct link between ocean acidification and reduced abundance and survival of prey items on which ashy storm-petrels depend, nor does current research indicate that reproductive success of ashy storm-petrels is affected by ocean acidification. Projected changes in sea levels along the west coast of North America (by year 2050) may submerge nesting habitat at Cavern Point Cove Caves in the California Channel Islands, which could affect approximately 0.8 percent of all ashy storm-petrels, but the majority of currently available nesting habitat in California will not be affected by the sea level rise projected in California during the 21st century. The Service finds that there is no specific evidence indicating that the presence of introduced grasses at Southeast Farallon Island, the Channel Islands, or other breeding locations prevents ashy storm-petrels from breeding. Although there is evidence of some human visitation to sea caves on Santa Cruz Island, modification or degradation of nesting habitat by tourism activities is not a significant threat to the ashy storm-petrel because of protective measures taken by the National Park Service and the lack of evidence of human disturbance in sea caves on the Channel Islands. Additionally, military activities are not a significant threat to the species because military activities do not occur at known breeding areas. Therefore, based on the best available scientific information, we conclude that the ashy storm-petrel is not threatened by the present or threatened destruction, modification, or curtailment of its habitat or range at Southeast Farallon Island, at the Channel Islands, or rangewide. Factor B: Overutilization for Commercial, Recreational, Scientific, or Educational Purposes The petitioner stated that research activities may impact ashy storm-petrels, but also stated there was no evidence that this impact has had significant negative consequences on studied populations (CBD 2007, p. 30). Our review of the available information does not indicate that research activities threaten ashy storm-petrels across all or a significant portion of their range. Commercial Purposes The ashy storm-petrel is not a commercially exploited or used species. We are not aware of any information that indicates that overutilization for commercial purposes threatens the ashy storm-petrel across all or in any portion of its range. Recreational Purposes Ashy storm-petrels are a species of interest during pelagic bird-watching trips off the coast of California. Ashy storm-petrels are generally wary of and avoid boats, including boats with birdwatchers, and it is highly unlikely that ashy storm-petrels are negatively affected by these recreational activities. Tourism at sea caves (see Factor A) located on Santa Cruz Island is a recreational activity that could affect ashy storm-petrels. However, as stated above, there is no evidence to suggest such recreational activities are significantly affecting the species. We are not aware of any information that indicates that overutilization for recreational purposes threatens the ashy storm-petrel across all or any portion of its range. Scientific and Educational Purposes The Service is aware of 220 ashy storm-petrel eggs and 355 study skins (includes study skins, skeletons, round skins) that have been collected and salvaged from 1885 to 2004 for scientific archival purposes. The Service obtained data from individual institutions and records held in the following institutions and accessed through the ORNIS data portal ( *http://ornisnet.org* ) on September 23, 2008 (Table 4). Table 4. Institutions that possess collected skins or eggs of the ashy storm-petrel. Institution or Entity Number of skins Number of eggs California Academy of Sciences, San Francisco, CA 181 70 Cornell University Museum of Vertebrates, Ithaca, NY 2 0 Delaware Museum of Natural History, Wilmington, DE 1 0 Field Museum, Chicago, IL 10 0 Harvard University Museum of Comparative Zoology, Cambridge, MA 6 0 Humboldt State University Natural History Museum, Arcata, CA 2 2 Los Angeles County Museum of Natural History, Los Angeles, CA 18 0 Museum of Vertebrate Zoology, Berkeley, CA 39 20 National Museum of Natural History, Washington, DC 32 6 Santa Barbara Museum of Natural History, Santa Barbara, CA 13 5 San Diego Natural History Museum, San Diego, CA 31 0 Slater Museum of Natural History, Tacoma, WA 3 3 University of Arizona Museum of Natural History, Tucson, AZ 9 0 University of California at Los Angeles - Dickey Collection, Los Angeles, CA 3 0 University of Kansas Natural History Museum and Biodiversity Research Center, Lawrence, KS 1 0 University of Washington - Burke Museum of Natural History 3 2 Western Foundation of Vertebrate Zoology, Camarillo, CA 1 112 All 355 220 In addition, for purposes of measuring eggshell thickness and organochlorine (chlorinated hydrocarbon) contamination, a total of 26 eggs have been collected from Southeast Farallon Island, and a total of 68 eggs of ashy storm-petrels have been collected and salvaged from Santa Cruz Island, between 1968 and 2008 (Coulter and Risebrough 1973, p. 254; Kiff 1994, p. 11; Welsh and Carter ) and in 2008 (McIver *et al* . 2009, p. 8). The majority of ashy storm-petrel birds and eggs that occur in scientific collections were collected at Southeast Farallon Island in the first half of the 20th century. More ashy storm-petrel birds and eggs were collected in 1911 (n = 120 specimens) than in any other year. Over a period of 124 years, an average of 2.6 ashy storm-petrel eggs per year and 2.9 birds per year have been collected over most of the geographic range of the species. The Service concludes that this low rate of collection, based on an estimated population size of 7,000 to 13,000 total birds, does not constitute a significant threat to the species. In California, scientific research (monitoring of nesting success, mark and recapture using mist nets, radio telemetry) has been conducted on Southeast Farallon Island since the mid-1960s (James-Veitch 1970; Ainley *et al* . 1974, pp. 295-310; Ainley *et al* . 1990, pp. 128-162; Sydeman *et al* . 1998a, pp. 438-447; PRBO Conservation Science), at Santa Cruz Island since the mid-1990s (McIver 2002, pp. 1-70; McIver and Carter 2006, pp. 1-6; Carter *et al* . 2007, pp. 4-20; McIver *et al* . 2008, pp. 1-22; McIver *et al* . 2009, pp. 1-30), and at Santa Cruz and Santa Barbara Islands in 2004 and 2005 (Adams and Takekawa 2008, pp. 9-17). The Service is aware of the following disturbance (by researchers) of ashy storm-petrels: reduced hatching success at Southeast Farallon Island caused by handling of birds (James-Veitch 1970, p. 246); and reduced hatching success at Southeast Farallon Island in 1977 when “researcher disturbance was great” (Ainley *et al* . 1990, p. 161). Generally, however, researchers at both Southeast Farallon Island and Santa Cruz Island have implemented procedures to reduce possible disturbance to ashy storm-petrels during regular nest monitoring activities. Consequently, we find it unlikely that scientific studies have resulted in substantial disturbance of ashy storm-petrels. Summary of Factor B Our review of the available information does not indicate that commercial or recreational overutilization is a threat to the ashy storm-petrel. We are aware of the long history of scientific and educational collecting of ashy storm-petrel skins and eggs over the past 124 years. However, the amount and rate of collection does not represent a significant loss to the overall population of ashy storm-petrels rangewide, or in specific breeding locations. In addition, we have found that ashy storm-petrels are not currently negatively affected by scientific research. Therefore, based on the best available scientific information, we conclude that the ashy storm-petrel is not threatened by overutilization for commercial, recreational, scientific, or educational purposes at Southeast Farallon Island, at the Channel Islands, or rangewide. Factor C: Disease or Predation The petitioner asserts that predation by native predators, including western gulls, burrowing owls, barn owls, common ravens, peregrine falcons, deer mice, and island spotted skunks, impact ashy storm-petrel populations (CBD 2007, pp. 30-32). In addition, the petitioner asserts that nonnative predators, including house mice, black rats ( *Rattus rattus* ), and feral cats ( *Felis catus* ) affect ashy storm-petrel populations (CBD 2007, pp. 30-32). As described in the Species Description section, native avian predators of the ashy storm-petrel include western gulls, burrowing owls, peregrine falcons, and common ravens. Native mammalian predators of ashy storm-petrel eggs and birds include deer mice and island spotted skunks. Known nonnative mammalian predators of ashy storm-petrel eggs and birds include house mice and feral cats (Ainley *et al* . 1990, p. 156; McChesney and Tershey 1998, p. 341). The black rat is a potential nonnative predator (McChesney and Tershey 1998, p. 342), although predation of ashy storm-petrels by rats has not been documented. Predation can affect reproductive performance of storm-petrels during incubation and chick-rearing. Because ashy storm-petrel adults share egg incubation duties, the death of one adult of a breeding pair during the incubation stage could result in incomplete incubation and failure of the egg to hatch. Similarly, the death of one adult of a breeding pair of storm-petrels during the chick-rearing stage could result in death of the chick (by starvation or lack of brooding), especially if the chick is younger than about 50 days old (Mauck *et al* . 2004, p. 883). Southeast Farallon Island - Avian Predation The western gull and burrowing owl are the primary avian predators of ashy storm-petrels at Southeast Farallon Island (Sydeman *et al* . 1998a, pp. 445-446; PRBO Conservation Science). Approximately 30 percent of the world population of western gulls nests at Southeast Farallon Island (Penniman *et al* . 1990, p. 219). During the 1996 to 2006 period, the western gull breeding population at Southeast Farallon Island has been estimated at about 18,000 breeding birds (Service 2008, p. 42). The distribution of western gull nesting areas at Southeast Farallon Island has shifted and expanded since they were first mapped in 1959 (Ainley and Lewis 1974, p. 439; Penniman *et al* . 1990, p. 224), and since 1976, western gulls have nested densely over nearly the entire island, including Lighthouse Hill, which is considered prime ashy storm-petrel breeding habitat on Southeast Farallon Island (Ainley and Lewis 1974, p. 435; Ainley *et al* . 1990, p. 158; Sydeman *et al* . 1998a, p. 446). The petitioner includes burrowing owls in its list of predators for the ashy storm-petrel but includes no information documenting a threat from burrowing owls (CBD 2007, p. 30). Burrowing owls do not breed on Southeast Farallon Island, but are regular fall migrants, and a few individuals (two to five per year, on average) overwinter at the island (DeSante and Ainley 1980, p. 30; Service 2008, p. 50). In the fall, burrowing owls at Southeast Farallon Island feed upon nonnative house mice when mice are seasonally abundant (Service 2008, p. 50). In late winter and early spring, after the mouse population at Southeast Farallon Island declines in numbers, burrowing owls prey upon storm-petrels, which are courting and prospecting for nesting sites (PRBO Conservation Science; Service 2008, p. 50). To reduce this cause of mortality, the Farallon National Wildlife Refuge has trapped and moved to the mainland several burrowing owls (Service 2008, p. 50). Additionally, the Service is developing a plan to eradicate the nonnative house mouse through rodenticide application and prevent future human introductions of mice (see Factor D: Inadequacy of Existing Regulatory Mechanisms below). In the following discussion, we assess avian predation as a possible factor affecting the ashy storm-petrels by evaluating information on ashy storm-petrel productivity and mortality on Southeast Farallon Island and Santa Cruz Island. Sydeman *et al* . (2001, p. 315) reported that, among seabird species at Southeast Farallon Island laying a single-egg clutch each year, the ashy storm-petrel showed a significant pattern of change in reproductive performance, which increased through the mid-1980s, then decreased through 1997. Specifically, Sydeman *et al* . (2001, p. 317) reported that reduced reproductive performance of ashy storm-petrels in his model was related to significant changes in fledging success (numbers of chicks fledged per chicks hatched). Sydeman *et al* . (2001, p. 317) also concluded that hatching success in the 1990s was low and likely responsible for the decline in storm-petrel reproductive performance during that time period. An examination of values of productivity (fledged chicks per adult pair) of ashy storm-petrels at Southeast Farallon Island from 1971 through 2007 (see Table 2) shows variability in fledging success. Specifically, Ainley and Boekelheide (1990, p. 392) reported an average of 0.69 ashy storm-petrel chicks per pair from 1972 to 1983, Sydeman *et al* . (1998b, pp. 42-43) reported 0.74 chicks per pair using data from 1971 and 1972 and 1992, and Warzybok and Bradley (2007, p. 24) reported 0.54 chicks per pair using yearly data from 1996 through 2007 (and noted that productivity was higher in 2007 (0.53) than in 2006 (0.46)). These averages demonstrate variation in productivity over time, but only Sydeman's
(2001)study provides a statistical analysis demonstrating a quadratic trend. Further, based on our review of the best available data (see discussion below), we do not believe that these productivity values are associated with lower numbers of ashy storm-petrels. Ainley *et al* . (1974, p. 307) and Ainley *et al* . (1990, p. 157) estimated storm-petrel mortality rates based on presence of storm-petrel remains and storm-petrel bands found in gull pellets collected in 1971 and 1972. Sydeman *et al* . (1998b, pp. 1-74) collected wings of storm-petrel carcasses found on the southwestern slope of Lighthouse Hill from 1994 through 1996. In 2000, PRBO Conservation Science searched for and collected storm-petrel wings on Lighthouse Hill and other areas on Southeast Farallon Island, and categorized collected wings by type of avian predation (such as gull or owl). In both studies, wings (which were used as a measure of predation) were collected during the course of frequent nest-monitoring activities. Ainley *et al* . (1974, p. 307) and Ainley *et al* . (1990, p. 157) estimated that about one percent of the storm-petrel population (including ashy and Leach's storm-petrels) on Southeast Farallon Island were depredated by western gulls in 1971 and 1972. Sydeman *et al* . (1998b, pp. 21-22) estimated that 22 ashy storm-petrels were preyed upon by avian predators per year from 1994 through 1996 on Lighthouse Hill. In addition, Sydeman *et al* . (1998b, p. 21) estimated a 2.5 percent annual mortality rate of breeding ashy storm-petrels at Lighthouse Hill due to avian predation during the period 1994 to 1996, based on an estimated breeding population of 651 ashy storm-petrels at Lighthouse Hill. From January 2003 through August 2008, approximately 98 percent of ashy storm-petrel kills thought to be due to avian predation on Southeast Farallon Island occurred between February and August, when stratified by month (PRBO Conservation Science). Average annual total number of ashy storm-petrels killed during January 2003 through August 2008 was 114 total individuals. If birds on Southeast Farallon Island numbered the same as they did in 1972 (6,461 individuals) or 1992 (4,284 individuals), this level of predation would be 1.8 percent or 2.7 percent of the population, respectively; however, these estimates are speculative. Estimates of ashy storm-petrel mortality rates at Southeast Farallon Island are highly dependent upon estimated population sizes. Ashy storm-petrels are nocturnal in their visits to breeding colonies and breed mainly in deep crevices that are inaccessible to researchers, and so it is difficult to obtain direct population counts of the species. Consequently, estimates of population size of storm-petrels are often obtained using capture-recapture techniques (for example, Sydeman *et al* . 1998a, pp. 438-447). For the years 1971, 1972, and 1992, Sydeman *et al* . (1998a, p. 442) provided estimates for the total population (non-breeders and breeders) and the breeding population of ashy storm-petrels at Southeast Farallon Island proper and at Lighthouse Hill on Southeast Farallon Island, an area considered prime ashy storm-petrel nesting habitat. Based on a comparison of data from 1972 and 1992, PBRO scientists indicated a decline of 22 to 66 percent (95 percent confidence interval) for total and breeding populations over the 20-year period for Lighthouse Hill, the sampling location considered most reliable for estimation of population size and population change (Sydeman *et al* . 1998a, p. 443). We interpret these results cautiously because they are based on two data points: one from 1972 and one 20 years later, from 1992. We hesitate to consider these results conclusive because animal populations can undergo cycles, peaks, or troughs that 2 years of data separated by 20 years cannot capture. Population estimates were also imprecise owing to large standard errors (for example, population estimates for one area ranged from 660 plus or minus 423 to 1,013 plus or minus 937; Sydeman *et al* . 1998a, p. 443). Using preliminary analyses of more recent data of ashy storm-petrels captured in mist nets from 1999 through 2007, PRBO scientists state that the Southeast Farallon Island population may have increased in years subsequent to Sydeman's (1998a) study (Warzybok *et al* . 2006, p. 16; Warzybok and Bradley 2007, p. 17). Using data from 1999 to 2007, Warzybok and Bradley (2007, p. 17) describe an analysis of capture-recapture data that shows increasing capture rates and increasing survival of ashy storm-petrels. The authors also note that there were a greater number of occupied nesting sites than in previous years, although this observation could have been influenced by a change in monitoring techniques (Warzybok and Bradley 2007, p. 17). Warzybok and Bradley's
(2007)report does not consider the proportion of birds caught that are nonbreeders, or potential changes in recapture probabilities through time; however, their report represents the most up-to-date information available at this time. Taken together, the results of Warzybok and Bradley's
(2007)analyses suggest an increasing population of ashy storm-petrels. There are weaknesses in both the more recent reports that are not peer-reviewed (Warzybok *et al* .
(2006)and Warzybok and Bradley (2007)) and the older report by Sydeman *et al* (1998a), which is based on two data points (one from 1972 and one 20 years later from 1992). Nevertheless, the Sydeman *et al* . (1998a), Warzybok *et al* . 2006, and Warzybok and Bradley
(2007)studies are the best available assessments of population trends of ashy storm-petrels for the time periods they analyzed. The Warzybok *et al* .
(2006)and Warzybok and Bradley
(2007)reports contain data we consider most relevant to this status review because they were collected more recently than Sydeman *et al* .'s (1998a) data, they include 8 consecutive years of mark-recapture data, and they describe empirical observations of occupied nest sites in addition to statistical estimates of population trend and survival rate. The authors note that their study does not consider the proportion of birds caught that were nonbreeders or potential changes in recapture probabilities through time. Additionally, they noted an alteration in monitoring methods that made it difficult to determine whether increased occupancy was a result of greater reproductive effort or due to an increase in the ability to detect ashy storm-petrels (Warzybok and Bradley 2007, p. 17). While we do not dispute the historic population decline indicated by Sydeman *et al* (1998a), we believe that the updated information presented in Warzybok and Bradley's (2007, p. 17) preliminary analysis is more indicative of current population trends on Southeast Farallon Island. In an unpublished report, Sydeman *et al* . (1998b, p. 21) concluded that an annual adult ashy storm-petrel survival probability of 86.7 percent would explain the 2.87 percent annual decrease in population size of ashy storm-petrels on Southeast Farallon Island (reported in Sydeman *et al* . 1998a, p. 443). Based on comparisons to adult survival estimates in research of other storm-petrel species, Sydeman *et al* . (1998b, pp. 21-22) presumed that an annual adult survival probability of 89.2 percent would maintain ashy storm-petrel population stability, and postulated that elimination of all gull predation would decrease adult mortality by 2.53 percent, potentially producing a stable population of ashy storm-petrels on Southeast Farallon Island. In populations of such long-lived organisms as seabirds, annual adult survival has been reported as the key parameter having the greatest influence on population growth rates in population models of seabirds (Sæther and Bakke 2000, p. 648; Cuthbert *et al* . 2001, p. 168; Doherty *et al* . 2004, p. 606). Based on information on storm-petrel wings collected from Southeast Farallon Island from 2003 through 2008 (PRBO Conservation Science), approximately 98 percent of avian predation upon ashy storm-petrels on Southeast Farallon Island has occurred from February through August; this corresponds to the time of year of peak visitation by adults for breeding purposes and non-breeding birds prospecting for sites (James-Veitch 1970, p. 71; Ainley 1995, p. 5). During 2003 to 2008, avian predation categorized as gull, owl, and “unknown” accounted for approximately 57.4 percent, 34.3 percent, and 8.3 percent, respectively, of ashy storm-petrel deaths on Southeast Farallon Island (PRBO Conservation Science). This raw data allows us to infer that gulls are likely the greatest cause of ashy storm-petrel predation on Southeast Farallon Island. Avian predation upon ashy storm-petrels at Southeast Farallon Island has probably occurred continually for decades. Based on recent reports showing possible increases in ashy storm-petrel survival and numbers (Warzybok and Bradley 2007, p. 17), we have no indication that such predation is impacting the population on Southeast Farallon Island or rangewide. We conclude that, since ashy storm-petrel populations appear to be increasing in the presence of such predation, we have no reason to believe that such predation will cause a change in that trend. Southeast Farallon Island - House Mice The petitioner cites Ainley *et al* . (1990, pp. 128-163) to support its claim that depredation of ashy storm-petrel eggs and chicks by nonnative house mice is the leading cause of egg failure and chick death, and significantly lowers ashy storm-petrel breeding success on Southeast Farallon Island (CBD 2007, p. 31). This claim is not supported by the information contained in Ainley *et al* . (1990, pp. 128-163). Specifically, out of a total of 274 ashy storm-petrel eggs laid during 1972-83, Ainley *et al* . (1990, p. 156) inferred predation by feral house mice of one ashy storm-petrel chick, based upon the remains of a partially eaten carcass. Twenty-six eggs (9.5 percent) were categorized as failed to hatch, 9 eggs (3.3 percent) were abandoned, 8 eggs (2.9 percent) “disappeared,” and 2 eggs (0.7 percent) were found broken; however, house mice were not mentioned as a significant cause of egg failure. Furthermore, our review of the available information reveals no information that suggests nonnative house mice pose a significant direct predation threat to ashy storm-petrels on Southeast Farallon Island. We have no data indicating that house mice prey upon ashy storm-petrel eggs or chicks anywhere else within the species' range. Channel Islands - Black Rats and Feral Cats The petitioner claims that nonnative black rats and feral cats are documented predators of seabird eggs, chicks, and adults; that black rats are extant on San Miguel, Santa Catalina, and San Clemente Islands; and feral cats may still impact ashy storm-petrel populations on Santa Catalina and San Clemente Islands (CBD 2007, p. 32). Beyond these claims, the petitioner provides no specific information documenting predation of ashy storm-petrels by nonnative black rats or feral cats. Nonnative black rats and (feral) cats are well-documented predators of seabird eggs, chicks, and adults and have caused seabird population declines worldwide, including California (McChesney and Tershey 1999, pp. 335-347; Jones *et al* . 2008, pp. 16-26). At San Miguel Island proper, black rats have a limited distribution, primarily found in shoreline and bluff habitats on the west and north sides of the island (Erickson and Halvorson 1990, p. 13). Possible nesting of ashy storm-petrels on San Miguel Island proper has been presumed, based on birds with brood patches captured in mist nets deployed between Harris Point and Cuyler Harbor (on the island's north side) (Carter *et al* . 2008, p. 119). Ashy storm-petrels may also breed in cliffs near Hoffman Point, on San Miguel Island proper (Carter *et al* . 2008c, p. 17). However, no population estimate for ashy storm-petrels is available for San Miguel Island proper (Carter *et al* . 1992, p. I-87). As stated earlier, the black rat is a potential nonnative predator of ashy storm-petrels (McChesney and Tershey 1998, p. 342), although predation of ashy storm-petrels by rats has not been documented. Predation of ashy storm-petrels at Santa Catalina Island and San Clemente Island by feral cats has not been documented. Ashy storm-petrels have been confirmed to nest in very small numbers (approximately 0.2 percent of total breeding population) on offshore rocks at Santa Catalina Island (Ship Rock) and San Clemente Island (Seal Cove Area), locations that are likely inaccessible to feral cats on the islands proper. Therefore, we conclude that it is likely that less than one percent of the total population of ashy storm-petrels may be susceptible to predation from black rats and feral cats. We have examined the available information concerning the predation threat from nonnative black rats and feral cats and have found no direct evidence showing that black rats and cats currently prey on ashy storm-petrels in the Channel Islands, Southeast Farallon Island, or rangewide. Santa Cruz Island - Barn Owl The petitioner includes the barn owl on its list of native avian predators of ashy storm-petrels but provides no further information regarding this threat (CBD 2007, p. 30). Barn owls have a worldwide distribution and occur throughout the range of the ashy storm-petrel (Marti 1992, p. 1; Rudolph 1970, p. 8). Barn owls hunt mostly at night but occasionally diurnally (Marti 1992, p. 3). Most hunting is done in low flight above ground in open habitats (Bunn *et al* . 1982, p. 11), but some hunting occurs from perches (Taylor 1994, p. 58). McIver (2002, p. 46) reports that nest-site searching behaviors of adult ashy storm-petrel adults and the mobility of older chicks are activities that increase the susceptibility of ashy storm-petrels to predation by barn owls. At Santa Cruz Island, researchers have observed predation of ashy storm-petrels by barn owls. In a study at five breeding locations on Santa Cruz Island, McIver (2002, p. 69) documented 83 ashy storm-petrels (76 adults and 7 chicks) killed by barn owls from 1995 to 1997. Approximately 97.6 percent of these ashy storm-petrels were at two locations (75 birds at Bat Cave and 6 birds at Orizaba Rock) (McIver 2002, p. 69). More recent data reported that 13 ashy storm-petrels were killed by barn owls on Santa Cruz Island from 2005 to 2008 (McIver and Carter 2006, pp. 3-4; McIver *et al* . 2008, pp. 4-6; McIver *et al* . 2009, pp. 5-10). At Santa Cruz Island, the mortality rate of ashy storm-petrel adults due to barn owl predation was approximately 5.4 percent during the 1995-97 period (n = 350 estimated number of adults in nests) and 0.8 percent during the 2005 to 2008 period (n = 304 estimated number of adults in nests) (McIver and Carter, unpublished data). Our analysis indicates that mortality of ashy storm-petrels due to barn owls was heavy during the 1995 to 1997 period (McIver 2002, p. 30), but is currently much reduced (McIver *et al* ., in preparation, p. 1); the reason for this decline is unknown. We conclude that reduced avian predation on Santa Cruz Island is the most likely explanation for the observed increase in ashy storm-petrel productivity (for ashy storm-petrels that have escaped skunk predation) there. In addition, we conclude that current levels of predation of ashy storm-petrels by barn owls at Santa Cruz Island do not constitute a substantial threat to the species. Since barn owls do not occur anywhere else within the range of the ashy storm-petrel, we also conclude that barn owls are not a threat to the ashy storm-petrel rangewide. Santa Cruz Island - Island Spotted Skunk Ashy storm-petrels are known to breed at 11 locations on Santa Cruz Island (Carter *et al* . 2008, p. 119), and for this status review, we have compiled information from many sources to estimate the number of ashy storm-petrels breeding in sea caves and on offshore rocks at Santa Cruz Island. Ashy storm-petrels may nest in crevices that occur in steep cliffs on Santa Cruz Island (Carter *et al* . 2008, p. 121); however, accessing and censusing these cliffs is extremely difficult for researchers, and, therefore, we can provide no estimate here of numbers of ashy storm-petrels that may nest in cliffs at Santa Cruz Island. Excluding Orizaba (“Sppit”) Rock, Carter *et al* . (1992, p. I-87) estimated 273 breeding ashy storm-petrels during the periods from 1975 to 1980 and 1989 to 1991 at offshore rocks at Santa Cruz Island, based on summaries of historical data and mark-recapture data. Based on a total of average numbers of active nests observed at each location (McIver and Carter 2006, pp. 2-3; Carter *et al* . 2007, pp. 7-9; McIver *et al* . 2008, pp. 4-6; McIver *et al* . 2009, p. 24) and other information (Carter *et al* . 1992, p. I-87; McIver *et al* . 2009, p. 24; Carter, unpublished data; McIver *et al* . in preparation), approximately 32 breeding ashy storm-petrels utilized Orizaba Rock, and 231 breeding ashy storm-petrels utilized sea caves at Santa Cruz Island during 2005 to 2008. Combining these population values, we estimate that 305 ashy storm-petrels nested on offshore rocks at Santa Cruz Island, and 230 ashy storm-petrels nested in sea caves at Santa Cruz Island from 2005 to 2008. Therefore, approximately 43 percent of ashy storm-petrels nesting at Santa Cruz Island used sea caves from 2005 to 2008. This translates to approximately 7 to 9 percent of the total ashy storm-petrel population, depending on the population estimates used. The island spotted skunk occurs only on Santa Rosa and Santa Cruz Islands (Crooks and Van Vuren, p. 380) and constitutes no threat to ashy storm-petrels anywhere else. On Santa Cruz Island, the island spotted skunk population has increased recently from rare to abundant (Crooks and Van Vuren 1994, p. 380; Jones, *et al* . 2008, p. 76). Jones *et al* . (2008, pp. 81-84) reports that there are two explanations for this increase in spotted skunk numbers at Santa Cruz Island: competitive release (an increase in population due to reduced competition) due to decline of the island fox ( *Urocyon littoralis santacruzae* ), and recovery of vegetation due to removal of feral livestock. In a radio-telemetry study on Santa Cruz Island, Crooks and Van Vuren (1994, pp. 381-382) found that island spotted skunks utilized chaparral grasslands, open grasslands, and coastal sage scrub habitats; fed on deer mice, lizards, and insects; and were active only at night. Jones *et al* . (2008, p. 80) reported that island spotted skunks also utilized fennel-dominated and riparian habitats. Like other sea caves in which ashy storm-petrels nest at Santa Cruz Island, Bat Cave and Cavern Point Cove Caves occur at the base of sheer cliffs and coastal bluffs (McIver 2002, p. 8). The coastal slopes above the sea caves at Santa Cruz Island comprise coastal bluff scrub habitat (Junak *et al* . 1995, p. 14), likely utilized by island spotted skunks. Skunks may have fallen or jumped off nearby bluffs or cliffs and swam into the caves (Carter and McIver 2006, p. 4). Like other procellariids, ashy storm-petrels have a strong and distinctive musky odor (James-Veitch 1970, p. 86), and this odor can be detected at the entrances of the sea caves at Santa Cruz Island in which ashy storm-petrels nest (McIver, *personal observation* ). In addition, ashy storm-petrels return to and depart their nesting colonies at night, and nighttime activities at nesting locations include vocalizations and aerial displays, including circling flights at the sea cave entrances (James-Veitch 1970, p. 24; McIver *personal observation* ). During the period from 2005 to 2008, researchers reported that island spotted skunks killed at least 100 ashy storm-petrels at two locations on the northeast coast of Santa Cruz Island: 70 ashy storm-petrels at Bat Cave in 2005 and 32 ashy storm-petrels at Cavern Point Cove Caves in 2008 (McIver and Carter 2006, p. 3; McIver *et al* . 2009, p. 7). The mortality event at Bat Cave in 2005 resulted in the temporary loss of the largest ashy storm-petrel colony at Santa Cruz Island (average of 80 nests per year in 1995-97 (McIver 2002, p. 24)) and the colony with the largest numbers of monitored nests of the ashy storm-petrel (McIver and Carter 2006, p. 4). One skunk was live-trapped and removed from the cave in June 2005, and the other was presumed to have died in or left the cave by the next year (McIver and Carter 2006, p. 3; Carter *et al* . 2007, p. 7). Ashy storm-petrel nests were documented in Bat Cave in 2006 (19 nests), 2007 (28 nests), and 2008 (40 nests), and no further evidence of skunks in the cave has been observed since 2005 (Carter *et al* . 2007, p. 7; McIver *et al* . 2008, p. 4; McIver *et al* . 2009, p. 6). The mortality event at Cavern Point Cove Caves in 2008, located approximately 0.6 mi (1 km) east of Bat Cave, resulted in the death of at least 32 adult ashy storm-petrels and complete reproductive failure at this location in 2008 (McIver *et al* . 2009, p. 7). A skunk was live-trapped and removed from Cavern Point Cove Caves in early July 2008, and marked and released on the island approximately 2.5 mi (4 km) southeast from the capture location (McIver *et al* . 2009, p. 7). Live-traps were deployed in Bat Cave and Cavern Point Cove Caves and monitored regularly for the remainder of the 2008 breeding season, to capture and remove skunks and prevent further storm-petrel deaths (McIver *et al* . 2009, p. 7). A second spotted skunk was caught in a live trap at Cavern Point Cove Caves in September 2008, but died. After the 2005 predation event at Bat Cave, researchers considered the skunk-predation incident to be an isolated, unusual event (McIver and Carter 2006, p. 4). Recent research shows that island spotted skunk population numbers at Santa Cruz Island have likely increased to carrying capacity, possibly in response to reduced numbers of island foxes (Jones *et al* . 2008, pp. 81-84). Given the additional skunk-predation incident in 2008, and known increases in island spotted skunk population numbers on the island, ashy storm- petrels nesting in sea caves on Santa Cruz Island may be vulnerable to episodic predation by skunks (McIver *et al* . 2009, p. 14). The spotted skunk diet is largely comprised of invertebrates and vertebrates other than birds. For example, during 1992, occurrence of avian remains in spotted skunk scat occurred only in 4 percent of acquired samples. Samples in 2003 and 2004 contained no avian remains (Jones *et al* . 2008, pp. 81-84). The future of island spotted skunk population numbers and trends at Santa Cruz Island is uncertain and may be directly related to the recovery status of the island fox (Jones *et al* . 2008, p. 83). A recovering population of island foxes may or may not be able to suppress the population of island spotted skunks to its former levels, and this may result in a new equilibrium of fox and skunk population numbers at Santa Cruz Island (Jones *et al* . 2008, p. 83). Regardless, spotted skunk predation is unlikely to increase beyond levels observed in recent years, because Jones *et al* . (2008, p. 83) suggested that skunks may have been approaching or even exceeding carrying capacity during their study. The conclusion of Jones *et al* . (2008, p. 83) was supported by a trend toward smaller skunk body size and undiminished skunk home ranges in 2003-2004 versus 1992. In addition, the proportion of juvenile skunks captured decreased during the study, from 24 percent in September 2003 to 5 percent in September 2004. This leads us to believe that the spotted skunk predation will not likely affect more than a very small percentage (approximately 7 to 9 percent) of the overall ashy storm-petrel population. Santa Cruz Island is owned and managed by the Park and the Nature Conservancy. The Park owns and manages approximately the eastern 25 percent of the island, where two ashy storm-petrel sea-cave locations (Bat Cave and Cavern Point Cove Caves) occur; the Park also manages the offshore rocks at the island, six of which (Del Mar Rock, Diablo Rocks, Orizaba Rock, Scorpion Rock, Willow Anchorage Rocks, and Gull Island) are ashy storm-petrel breeding locations. The Nature Conservancy owns approximately the western 75 percent of the island, where three ashy storm-petrel sea caves (Shipwreck Cave, Dry Sandy Beach Cave, and Cave of the Bird's Eggs) occur. Currently, monitoring of nesting success of ashy storm-petrels at Santa Cruz Island is being conducted in association with restoration activities, funded through 2010 by the Montrose Settlements Restoration Program (Montrose Settlements Restoration Program 2005, p. 196). Researchers have proposed the development and implementation of a skunk management plan to prevent skunk predation of storm-petrels in sea caves at Santa Cruz Island; this plan is scheduled to be implemented by the Park during 2009-10 (McIver *et al* . 2009, p. 16). Further research on population size, trends, and distribution of island spotted skunks at Santa Cruz Island is needed. Based on the relatively isolated mortality events at Bat Cave and Cavern Point Cove Caves, we characterize the threat of predation by island spotted skunks as sporadic and believe that efforts to control skunks by the Park will diminish the possibility of skunk predation even further. We estimate that approximately 7 to 9 percent of the total population of ashy storm-petrels is susceptible to this episodic threat, and therefore predation by island spotted skunks is not a significant concern at the Channel Islands, nor is it a threat in any way at Southeast Farallon Island, or rangewide. Santa Cruz Island - Deer Mice Deer mice occur in a variety of habitats on Santa Cruz Island, including chaparral, rocky outcrops, marsh, riparian, pine forest, oak woodland, buildings, and sea caves (Mayfield *et al* . 2000, pp. 509; McIver 2002, pp. 29-30). Egg predation by deer mice has been documented for crevice-nesting seabird species and usually occurs during periods of parental absence (Murray *et al* . 1983, p. 17; Drever *et al* . 2000, pp. 2013-2015; Blight *et al* . 1999, pp. 872-873). In a 4-year study at Santa Cruz Island, McIver (2002, pp. 40-41) reported that deer mice scavenged or preyed upon at least four ashy storm-petrel eggs, and concluded that egg predation by deer mice was likely not a major cause of egg mortality there. In addition, (McIver 2002, p. 41) reported that two ashy storm-petrel chicks were found partially eaten by mice, although it was unknown if mice killed these chicks or scavenged them after they had died of other causes. Similarly, researchers at Santa Cruz Island during 2005 to 2008 did not find predation of ashy storm-petrel eggs by deer mice to be significant (less than six total) (McIver and Carter 2006, pp. 2-4; Carter *et al* . 2007, pp. 8-24; McIver *et al* . 2008, p. 5; McIver *et al* . 2009, pp. 5-8). Our review of the available information reveals no other information that indicates predation of ashy storm-petrel eggs by deer mice is a substantial threat at the Channel Islands, Southeast Farallon Island, or rangewide. Disease The petitioner did not raise disease as a threat to the ashy storm-petrel. Moreover, disease in ashy storm-petrels has not been reported as a threat to the species (Ainley 1995, p. 8). Accordingly, we conclude disease is not a threat to the ashy storm-petrel on Southeast Farallon Island, the Channel Islands, or rangewide. Summary of Factor C Approximately 36 to 53 percent of all ashy storm-petrels breed on Southeast Farallon Island, and ashy storm-petrels are preyed upon by several predator species, the most notable being western gulls. Avian predation of ashy storm-petrels has persisted on Southeast Farallon Island at similar or increasing levels since at least 1994, yet recent reports show that ashy storm-petrel survival appears to be increasing, and their total numbers also appear to be increasing. Therefore, at this time, we do not consider predation by western gulls to be a significant threat to ashy storm-petrels. Our analysis of the available information reveals little information regarding the extent of burrowing owl predation, and predation of ashy storm-petrel eggs and chicks by nonnative house mice on Southeast Farallon Island does not pose a significant threat to ashy storm-petrels. We conclude that predation of ashy storm-petrels by island spotted skunks on Santa Cruz Island could occur on a sporadic basis, but thus far, spotted skunks have affected less than 7 to 9 percent of the total ashy storm-petrel population. Once removed, spotted skunks no longer pose a threat to ashy storm-petrels, and monitoring for skunks is planned in coming years. We conclude that predation of ashy storm-petrel adults and chicks by barn owls, and predation of ashy storm-petrel eggs by deer mice on Santa Cruz Island do not pose a threat to ashy storm-petrels. Finally, we conclude that predation of ashy storm-petrels by feral cats and nonnative black rats does not pose a significant threat to ashy storm-petrels. Factor D: Inadequacy of Existing Regulatory Mechanisms The petitioner asserts that existing regulatory mechanisms have been ineffective at preventing the decline of the ashy storm-petrel and in mitigating many of the threats to the species (CBD 2007, p. 32). The petitioner claims that the ineffectiveness of regulatory mechanisms is demonstrated by the failure to eradicate nonnative predators, the inadequate regulation of artificial light pollution, the failure to restrict human disturbance at breeding sites, the lack of regulations on greenhouse gases, and the failure of the Migratory Bird Treaty Act (16 U.S.C. 703-712) to protect the species from the identified threats (CBD 2007, pp. 32-35). Consequently, in this section we discuss these and other regulatory mechanisms. U.S. Federal Protection National Environmental Policy Act The National Environmental Policy Act of 1970
(NEPA)(42 U.S.C. 4371 *et seq.* ) requires that all activities undertaken, authorized, or funded by Federal agencies be analyzed for potential impacts to the human environment prior to implementation. NEPA does not require adverse impacts be fully mitigated, and some impacts could still occur. Additionally, NEPA is only required for projects with a Federal nexus, and therefore, actions that do not require a Federal permit or occur on private land are not required to comply with this law. Migratory Bird Treaty Act The Migratory Bird Treaty Act of 1918
(MBTA)states that it is unlawful “to pursue, hunt, take, capture kill, or attempt to take, capture or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or eggs of any such bird, or any product, whether or not manufactured.” The ashy storm-petrel is included in the list of migratory birds protected by the MBTA. The MBTA provides penalties for anyone in violation of its provisions. The petitioner claims that the MBTA does not provide protection from many of the threats facing the species such as plastic pollution, light pollution, nonnative predators, and changing ocean conditions as a consequence of global warming (CBD 2007, p. 36). In addition, the petitioner asserts that, unlike the Act, the MBTA provides no citizen suit provision, no requirement for designation or protection of critical habitat, no consultation provision to ensure Federal agency actions do not jeopardize the species, nor an affirmative conservation mandate to recover the species. The provisions of the MBTA prevent hunting, capturing, or killing or attempting to take, capture, or kill, or possess ashy storm-petrels. The degree to which the protections are applied are a matter of enforcement and there are likely to be instances where permits under the MBTA are not obtained and some mortality may occur. However, our analysis did not reveal information that would suggest a level of mortality that would be a significant threat to the species. Overall the MBTA provides protections for the ashy storm-petrel that would otherwise not exist. On January 10, 2001, President Clinton issued Executive Order 13186, pertaining to responsibilities of Federal agencies to protect migratory birds, and directing executive departments and agencies to further implement the MBTA (66 FR 3853; January 17, 2001). Executive Order 13186 directs each Federal agency taking actions that have, or are likely to have, a measurable negative effect on migratory bird populations to develop and implement (within 2 years) a memorandum of understanding
(MOU)with the Service that promotes the conservation of migratory bird populations. The DOD entered into a MOU with the Service on August 30, 2006 (71 FR 51580), which emphasizes a general collaborative approach to conservation of migratory birds. Conservation measures include minimizing disturbance to breeding, migration, and wintering habitats. While this MOU is non-binding and it does not authorize the take of migratory birds, it does provide an additional opportunity for the Service to continue to reduce the threat of habitat loss to the ashy storm-petrel on lands owned and managed by the DOD, including San Clemente Island. Currently, approximately 0.1 percent of the entire ashy storm-petrel population breeds on DOD lands. We are not aware that any other Federal agency has entered into a similar MOU with the Service. National Wildlife Refuge System Improvement Act of 1997 The National Wildlife Refuge System is managed by the Service primarily for the benefit of fish, wildlife, and plant resources and their habitats (Service 2008, p. 2). The Farallon National Wildlife Refuge (Refuge) was established in 1909, is located approximately 28 miles west of San Francisco, and is composed of several islands, including Southeast Farallon Island. On December 22, 2008, we published a notice in the **Federal Register** announcing the availability of a draft Comprehensive Conservation Plan
(CCP)and environmental assessment to manage natural resources at the Refuge (73 FR 78386). As stated earlier, ashy storm-petrels at Southeast Farallon Island are susceptible to predation by western gulls (which breed at the island) and burrowing owls (which do not breed at the island but are regular fall migrants and overwinter at the island). Managers at the Refuge are concerned about high levels of avian predation upon and reduced productivity and survivorship of ashy storm-petrels at Southeast Farallon Island. Consequently, within 5 years of approval of the final CCP (anticipated in year 2010), the Refuge proposes the following management actions:
(1)Develop a plan to eradicate the nonnative house mouse through rodenticide application and prevent future human introductions of mice;
(2)translocate to the mainland individual burrowing owls that overwinter on Southeast Farallon Island, until mice at the island are eradicated;
(3)monitor western gull nests for ashy storm-petrel remains, and conduct experimental selective removal (culling) of no more than 10 western gulls annually to reduce predation upon ashy storm-petrels; and
(4)monitor the ashy storm-petrel population (Service 2008, pp. 84, 98). The management actions, once implemented, may be successful in reducing predation of ashy storm-petrels by western gulls and burrowing owls, which, in turn, may result in an increase in productivity and survivorship of ashy storm-petrels at Southeast Farallon Island. However, we are not basing our finding of whether listing is warranted on future actions contained in the draft CCP. Nevertheless, the proposed management actions in the Refuge's draft CCP, when approved and funded, will likely benefit the ashy storm-petrel at Southeast Farallon Island, where an estimated 36 to 53 percent of all breeding ashy storm-petrels occur. National Park Service Organic Act The National Park Service Organic Act (16 U.S.C. l *et seq.* ) established the U.S. National Park Service, “* * * to promote and regulate the use of the * * * national parks * * * which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” On March 5, 1980, the U.S. Congress established as the Channel Islands National Park
(Park)the islands of San Miguel, Santa Rosa, Santa Cruz, Anacapa, Santa Barbara, and the submerged lands and waters within one nautical mile of each island. In 2007, in accordance with 36 CFR, Chapters 1-7, the Park prohibited access by park visitors on: 1) Offshore rocks and islets in the Park; 2) Bat Cave and Cavern Point Cove Caves, Santa Cruz Island; and 3) shorelines and cliffs at Santa Barbara Island, to protect wildlife and natural resources, including ashy storm-petrels (NPS 2007, p. 2). Thus, visitor access is prohibited at 16 ashy storm-petrel breeding locations (locations #7-22, in Table 1) managed by the National Park Service, which constitutes approximately 99 percent of the breeding locations in the Channel Islands and, depending on population estimates, approximately 44 to 60 percent of the ashy storm-petrel breeding locations rangewide. Under the authority of the Antiquities Act of 1906, the California Coastal National Monument
(CCNM)was established by Presidential Proclamation number 7264, on January 11, 2000. The Presidential Proclamation defined the CCNM as all unappropriated or unreserved lands and interest in lands owned or controlled by the United States in the form of islands, rocks, exposed reefs, and pinnacles above mean high tide within 12 nautical miles of the shoreline of the State of California. The CCNM is comprised of more than 20,000 small islands, rocks, exposed reefs, and pinnacles within the corridor extending 12 nautical miles (22.2 km) from the shoreline between Mexico and Oregon. This proclamation directed the Secretary of the Interior to manage the monument through the Bureau of Land Management (BLM). In 2005, the BLM approved a resource management plan for the CCNM (BLM 2005), which contains broad direction for the protection of the geologic formations and habitats for seabirds, and focuses on multi-agency and other partnerships and involvement of local communities as the keys to management and protection. Five ashy storm-petrel breeding locations (locations # 1, 2, 6, 23 and 24 in Table 1) are managed by the BLM, which, depending on population estimates used, comprise about 1.2 percent to 1.7 percent of the total population of breeding ashy storm-petrels. Sikes Act The Sikes Act of 1960 (16 U.S.C. 670 *et seq.* ) authorizes the Secretary of Defense to develop cooperative plans for conservation and rehabilitation programs on military reservations and to establish outdoor recreation facilities, and provides for the Secretaries of Agriculture and the Interior to develop cooperative plans for conservation and rehabilitation programs on public lands under their jurisdiction. The Sikes Act Improvement Act of 1997 required Department of Defense
(DOD)installations to prepare Integrated Natural Resources Management Plans (INRMPs). Consistent with the use of military installations to ensure the readiness of the Armed Forces, INRMPs provide for the conservation and rehabilitation of natural resources on military lands and incorporate, to the maximum extent practicable, ecosystem management principles and provide the landscape necessary to sustain military land uses. The U.S. Navy currently controls feral cats on San Clemente Island through an existing INRMP (Hering 2008, p. 6), and this may benefit the small numbers of ashy storm-petrels nesting there. National Marine Sanctuaries Act The National Marine Sanctuaries Act of 1972
(NMSA)(16 U.S.C. 1431 *et seq.* ) authorizes the Secretary of Commerce, and specifically the National Oceanic and Atmospheric Administration (NOAA), to designate and protect areas of the marine environment with special national significance due to their conservation, recreational, ecological, historical, scientific, cultural, archeological, educational, or esthetic qualities as national marine sanctuaries. Within the range of the ashy storm-petrel, the four national marine sanctuaries
(NMS)that have been designated in California are: the Channel Islands NM Sanctuary (CINMS) off the coast of southern California (1980); Gulf of the Farallons NMS (formerly Point-Reyes Farallon Islands NMS [1981]); Cordell Bank NMS off the coast of central California (1989); and the Monterey Bay NMS (1992). In 1989, Congress passed a law that prohibits the exploration for, or the development or production of, oil, gas, or minerals in any area of the Cordell Bank National Marine Sanctuary (P.L. 101-74). The Oceans Act of 1992 (P.L. 102-587) prohibits leasing, exploration of, producing, or developing oil and gas in the Monterey Bay National Marine Sanctuary; and includes a requirement for Federal agencies to consult with the program on activities that are likely to injure sanctuary resources. In 2007, NOAA expanded the state “no-take” marine reserves and one of the limited take marine conservation areas in the CINMS to include Federal waters out to 6 nautical miles (11 km), which prohibited or limited removal of, and injury to, any CINMS resource, including ashy storm-petrels (NOAA 2007, pp. 29208-29235). Specifically, lobster harvest and recreational fishing for pelagic finfish (with hook and line only) are allowed within the marine conservation area, while all other extraction or injury to CINMS resources is prohibited (NOAA 2007, p. 29212). These Federal marine reserves were established in conjunction with State of California regulatory processes (see “State of California Protection” subsection below). In addition, on March 25, 2005, the California Fish and Game Commission adopted the Market Squid Fishery Management Plan (MSFMP; California Fish and Game Commission 2005, pp. 1-558), which prohibits taking of market squid using attracting lights in all waters of the Gulf of the Farallons NMS at any time. Accordingly, there are regulatory measures that prohibit the use of bright lights for commercial fishing at 10 ashy storm-petrel breeding locations, including around Southeast Farallon Island, which constitute approximately 36 to 53 percent of the rangewide population and for approximately 16 percent of the remainder of the population rangewide, for a total of approximately 52 to 69 percent of the total population. Outer Continental Shelf Lands Act The Outer Continental Shelf Lands Act of 1953 (OCSLA) (43 U.S.C. 1331 *et seq.* ) provides the Secretary of the Interior, on behalf of the Federal Government, with authority to manage the mineral resources, including oil and gas, on the outer continental shelf
(OCS)and defines the OCS as all submerged lands lying seaward of the State and Federal boundary. The Federal Oil & Gas Royalty Management Act of 1982 (30 U.S.C. 1701 *et seq.* ) mandates protection of the environment and conservation of Federal lands in the course of building oil and gas facilities. The Secretary of the Interior designated the Minerals Management Service
(MMS)as the administrative agency responsible for the mineral leasing of submerged OCS lands and for the supervision of offshore operations after lease issuance. In managing the offshore oil and gas resources, the MMS conducts environmental studies, issues leases, and regulates operations conducted on the OCS. The regulatory responsibilities include issuing permits for oil and gas exploration, development, and production and inspecting operations during all of these activities. Within the range of the ashy storm-petrel, the MMS manages the offshore mineral resources of 23 active leases and 36 undeveloped leases, in coordination with other Federal, State, and local agencies and in consultation with the public (McCrary *et al* . 2003, pp. 43-45). Deepwater Port Act of 1974 The Deepwater Port Act of 1974
(DWPA)(33 U.S.C. 1501 *et seq.* ) authorizes the U.S. Coast Guard (USCG; Department of Homeland Security) to regulate Liqufied Natural Gas deepwater ports and shoreside terminals. Originally pertaining only to oil, the Maritime Transportation Security Act of 2002
(MTSA)(33 U.S.C. 1221 *et seq.* ) amended the DWPA to include natural gas. The regulations pertaining to the licensing, design, equipment and operation of deepwater ports and shoreside terminals are found in Title 33 CFR parts 148, 149 and 150. The Secretary of the Department of Homeland Security delegated the processing of DWP applications to the USCG and the Maritime Administration (MARAD), respectively. MARAD is the license issuing authority and works in concert with the USCG in developing the Environmental Impact Statement, while the USCG has primary jurisdiction over design, equipment and operations and security requirements. The DWPA established a specific time frame of 330 days from the date of publication of a **Federal Register** notice of a “complete” application to the date of approval or denial of a deepwater port license. Among other requirements, an applicant for a deepwater port license must demonstrate consistency with the Coastal Zone Management Plan of the adjacent coastal States. The USCG and MARAD, in cooperation with other Federal agencies, must comply with the requirements of the National Environmental Policy Act in processing deepwater port applications within the timeframes prescribed in the DWPA. To date the USCG has received the following two deepwater port applications, which are pending USCG approval, and occur within the range of the ashy storm-petrel: Clearwater Port LNG, Project NorthernStar Natural Gas; and Port Esperanza, Esperanza Energy LLC. A third proposed LNG project, the Oceanway LNG Terminal, was withdrawn by Woodside Petroleum, Ltd. in January 2009 (Woodside Petroleum Ltd. 2009, pp. 1-2). Federal Power Act of 1920 Section 23(b)(1) of the Federal Power Act of 1920 (16 U.S.C. 791a *et. seq.* ) grants jurisdiction to the Federal Energy Regulatory Commission
(FERC)for the licensing of hydropower development (for example, wave energy projects) in offshore waters of the United States. We are aware of at least one proposed wave energy project that occurs within the range of the ashy storm-petrel. FERC licensing procedures include analyzing potential project effects on natural resources including, but not limited to, water quality, water use, marine mammals, fish, birds, geology, land use, ocean use, navigation, recreation, aesthetics, and cultural resources. Oil Pollution Act of 1990
(OPA)The Oil Pollution Act of 1990 ( *33 U.S.C. 2701 et. seq.* ) amended the Clean Water Act and addressed the wide range of problems associated with preventing, responding to, and paying for oil pollution incidents in navigable waters of the United States. It created a comprehensive prevention, response, liability, and compensation regime to deal with vessel- and facility-caused oil pollution to U.S. navigable waters. The OPA increased Federal oversight of maritime oil transportation and provided environmental safeguards by: setting new requirements for vessel construction and crew licensing and manning; mandating contingency planning; enhancing Federal response capability; broadening enforcement authority; increasing penalties and potential liabilities; and creating new research and development programs. Various Federal agencies are responsible for implementing the OPA. The Environmental Protection Agency
(EPA)is responsible for non-transportation-related onshore facilities and incidents in the Inland Zone, the USCG is responsible for marine transportation-related facilities and incidents in the Coastal Zone, MARAD (in the Department of Transportation) is responsible for promoting the U.S. merchant marine and shipbuilding industry, and the Department of Commerce (specifically, NOAA) is responsible for natural resource damage assessments relating to oil discharges. The OPA requires a phase-out of single-hull tankers from U.S. waters by 2015. Committee on Oil Pollution Act of 1990 *et al* . (1998, p. 147) report that although the mandatory phase-out schedule of section 4115 of the OPA bans all single-hull tankers (without double bottoms or double sides) from U.S. trade after 2010, it is probable that under the deepwater port and lightering zone exemption, large single-hull vessels up to 30 years of age will operate in the United States through 2015. For this status review, we could not find specific information indicating how many single-hull tankers currently utilize California waters, and whether compliance with the double-hull provisions of section 4115 of the OPA will be achieved. The OPA imposes liability for removal costs and damages resulting from an incident in which oil is discharged into navigable waters or adjoining shorelines or the exclusive economic zone. In 2006, a damage assessment, restoration plan, and environmental assessment (Luckenbach 2006, pp. 1-165) was presented by Natural Resource Trustee Agencies (Service, NOAA, National Park Service, and California Department of Fish and Game) for natural resources (including ashy storm-petrels) injured during multiple oil spills that occurred off the coast of San Francisco, California, from 1990 to December 2003. Clean Air Act of 1970 The Clean Air Act of 1970 (42 U.S.C. 7401 *et seq.* ) EPA to develop and enforce regulations to protect the general public from exposure to airborne contaminants that are known to be hazardous to human health. In 2007, the Supreme Court ruled that gases that cause global warming are pollutants under the Clean Air Act, and that the EPA has the authority to regulate carbon dioxide and other heat-trapping gases ( *Massachusetts et al.* v. *EPA* 2007 [Case No. 05-1120]). The petitioner claims that the ashy storm-petrel is threatened by a lack of regulatory mechanisms to curb greenhouse gases
(GHG)that contribute to global temperature rises, ocean acidification, and sea level rise (CBD 2007, p. 34). As stated earlier, our status review did not reveal information that indicates productivity of ashy storm-petrels is adversely affected by ocean acidification, and we conclude that sea level rise within the next 40 to 50 years is not a significant threat to ashy storm-petrels. State of California Protection The California Department of Fish and Game
(CDFG)is the State agency responsible for managing California's fish, wildlife, and plant resources, and the habitats upon which they depend, for their ecological values and for their use and enjoyment by the public. The ashy storm-petrel is designated as a Species of Special Concern by the CDFG (Carter *et al* . 2008, pp. 117-124). This status does not confer regulatory protection to the species and applies to animals not listed under the Act or the California Endangered Species Act (CESA), but which nonetheless
(1)are declining at a rate that could result in listing, or
(2)historically occurred in low numbers and known threats to their persistence currently exist. In addition, this designation is intended to result in special consideration for these animals by the CDFG, land managers, consulting biologists, and others, and is intended to: focus attention on the species to achieve conservation and recovery of these animals before they meet CESA criteria for listing as threatened or endangered; stimulate collection of additional information on the biology, distribution, and status of poorly known at-risk species; and focus research and management attention on the species. California Environmental Quality Act of 1970
(CEQA)does not regulate land use, but requires all local and State agencies to avoid or minimize environmental damage where feasible, during the course of proposed projects. CEQA provides protection not only for State-listed or federally listed species, but also for any species designated as species of special concern by the CDFG. In 1999, the California legislature approved and the governor signed the Marine Life Protection Act (MLPA; Stats.1999, Chapter 1015). The MLPA requires that the CDFG prepare and present to the Fish and Game Commission a master plan that will guide the adoption and implementation of a Marine Life Protection Program, which includes a statewide network of marine protected areas. In 2003, the State of California established nine State Marine Reserves in the California Channel Islands, which (in part) prohibit within these reserves market squid fishery activities that use bright lights. In 2008, the CDFG published a revised draft plan for marine protected areas in California (CDFG 2008a). The CDFG has organized a MLPA South Coast Regional Stakeholder Group to re-examine and re-design the Marine Protected Areas in southern California, to increase their coherence and effectiveness at protecting the State's marine life, habitat, and ecosystems. On March 25, 2005, the California Fish and Game Commission adopted the MSFMP (California Fish and Game Commission 2005, pp. 1-558), which:
(1)Limits the wattage of attracting lights (see Factor E below) to a maximum of 30,000 watts per boat;
(2)requires that attracting lights be shielded to direct the light downward, or situated such that the illumination is completely submerged underwater; and
(3)and prohibits, at any time, the use of attracting lights for the purpose of taking of market squid in all waters of the Gulf of the Farallons NMS, that encompasses all of the ashy storm-petrels on Southeast Farallon Island and approximately 36 to 53 percent of the ashy storm-petrels rangewide. Mexican Federal Protection The ashy storm-petrel is currently listed as threatened under Mexican Law, NOM-059-ECOL-2001, and is proposed as endangered under a draft amendment of this law (SEMARNAT 2008, p. 39). Pursuant to this law, general criteria are to be followed in managing Mexican wildlife, including, but not limited to: preservation of biodiversity and natural species habitats; and preservation of endemic, threatened, endangered or specially protected species. These considerations apply to all of the ashy storm-petrels found in Mexico, which constitutes approximately 1 to 2 percent of the rangewide population. We have no new information on the adequacy and effectiveness of “threatened” or “endangered” status for conservation of ashy storm-petrels in Mexico. International Agreements Since the ashy storm-petrel ranges into Mexico, international agreements may provide some protections for the species. The North American Agreement on Environmental Cooperation (NAAEC) was negotiated and is being implemented in parallel to the North American Free Trade Agreement. NAAEC requires that each Party (United States, Mexico, and Canada) ensure that its laws provide for high levels of environmental protection. Each Party agreed to effectively enforce its environmental laws through appropriate means, such as the appointment and training of inspectors, monitoring compliance, and pursuing the necessary legal means to seek appropriate remedies for violations. The Commission for Environmental Cooperation
(CEC)was created under the NAAEC and is authorized to develop joint recommendations on approaches to environmental compliance and enforcement. Summary of Factor D Based on our analysis of the existing regulatory mechanisms, we have found a diverse network of laws and regulations that provide protections to the ashy storm-petrel and its habitat and effectively ameliorate threats rangewide. Specific to the ashy storm-petrel, provisions of the MBTA prohibit killing or possessing of the species. An overarching protection of breeding and foraging habitat through Federal nexuses in regulatory mechanisms, such as the Outer Continental Shelf Lands Act, Federal Power Act, Oil Pollution Control Act, and the Deepwater Port Act, provide protections to breeding and foraging habitat. At Southeast Farallon Island all of the breeding locations are located on U.S. Fish and Wildlife Service, National Wildlife Refuge System lands which are covered under the National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd-668ee). Additionally, the waters surrounding Southeast Farallon Island are within the Gulf of the Farallons NMS, where there is a prohibition on the use of attracting lights for market squid fishing. In the Channel Islands, approximately 16 percent of the breeding habitat is off limits to the use of attracting lights for market squid fishing due to the provisions of the National Marine Sanctuaries Act. Additionally, some sea caves on Santa Cruz Island have been closed to human visitation and the National Park Service is planning to develop and implement a island spotted skunk and nonnative mouse management plan that will provide additional protections to the ashy storm-petrel. Approximately 99 percent of the ashy storm-petrel breeding locations in the Channel Islands are located on National Park Service lands, which are covered under the National Park Service Organic Act. Regulatory mechanisms under the State of California, including CEQA, MLPA, and provisions under MSFMP, provide additional protections for the ashy storm-petrel. Based on our review of the best available scientific information, we conclude that adequate regulatory mechanisms are in place to protect the species and its habitat throughout its range, within the Channel Islands, and at Southeast Farallon Island. Factor E: Other Natural or Manmade Factors Affecting the Continued Existence of the Species The petitioner asserts that artificial light pollution due to California market squid fishery boats, and current and future offshore energy production platforms, threatens the continued existence of the ashy storm-petrel (CBD 2007, pp. 15-17). In addition, the petitioner claims that contamination from petroleum (from offshore energy production platforms and ocean-going vessels), chlorinated hydrocarbons, and plastics threaten the continued existence of the ashy storm-petrel (CBD 2007, pp. 18-20). Artificial Light Pollution at Breeding Colonies - Market Squid Fishery and Tuna Aquaculture The California market squid is found from central Baja California, Mexico, to Southeast Alaska (Roper and Sweeney 1984, p. 95-96). In California, a fishery for market squid consists of two geographically distinct components: a central California fishery off Monterey and a southern California fishery around the Channel Islands and along the mainland coast (Pomeroy and Fitzsimmons 2001, p. 3). The Service is not aware of the occurrence of market squid fishery activities at Islas Los Coronados and Islas Todos Santos, which are known ashy storm-petrel breeding locations in Mexico. Market squid spawn in sandy substrates near islands and the coast (California Fish and Game Commission 2005, p. 37). Harvest involves luring the squid to the surface with high wattage lamps, encircling them with purse seine nets, pumping and using nets to remove the squid from the water, and finally storing them in an on-vessel fish hold (Hastings and MacWilliams 1999, p. iv). Market squid fishery activities occur during squid mating and egg-laying: April through October in central California, and October through May in southern California (Pomeroy and Fitzsimmons 2001, pp. 2-3; California Fish and Game Commission (2005, p. 37). Market squid fishery activities coincide with the peak fledging period (early to mid-October) and pre-egg and early egg-laying periods of ashy storm-petrels (February through May) (Ainley 1995, p. 5; McIver 2002, p. 17). According to the MSFMP (2005, p. 3), squid may not be taken using attracting lights in all waters of the Gulf of the Farallones National Marine Sanctuary at any time; this closure includes Southeast Farallon Island. In addition, squid fishery activities are not permitted within 11 marine reserves and 2 marine conservation areas in southern California, which collectively contain seven ashy storm-petrel breeding locations. In California, market squid fishery activities are permitted at 13 ashy storm-petrel breeding locations. Although we are not aware whether market squid fishing occurs at ashy storm-petrel breeding locations in Mexico, we are aware of aquaculture activities associated with the harvest of northern bluefin tuna ( *Thunnus orientalis* ) at Islas Los Coronados and Islas Todos Santos, Mexico, which use bright lights to illuminate at-sea tuna pens (Zertuche-Gonzáles *et al* . 2008, p.14; McIver, personal observation). Therefore, bright lights associated with commercial fishing activities (market squid fishery and tuna aquaculture) are permitted at 15 locations that collectively comprise approximately 1,915 breeding ashy storm-petrels, which is approximately 25 percent to 34 percent of all breeding ashy storm-petrels, depending on population estimates used. Evidence from several studies, anecdotal observations, and museum specimens indicate that ashy storm-petrels and related species are attracted to lights, which puts them at risk for light-induced mortality (Reed *et al* . 1985, pp. 377-383; Le Corre *et al* . 2002, pp. 93-102). In their study of four species of procellariids (specifically, Barau's petrel ( *Pterodroma baraui* ), Mascarene petrel ( *Pseudobulweria aterrima* ), Audubon's shearwater ( *Puffinus lherminieri bailloni* ), and wedge-tailed shearwater ( *Puffinus pacificus* )) on Réunion Island in the Indian Ocean, Le Corre *et al* . (2002, p. 93) reported that birds that collided with lights then fell to ground with fatal injuries, were killed by predators, or died of starvation, and that 94 percent of these procellariids were juveniles. Light-induced collisions and mortality of storm-petrels at breeding locations have been reported by researchers. James-Veitch (1970, p. 40) reported that ashy storm-petrels collided with a lamp post on Southeast Farallon Island. Wolf (2008, p. 8) reported personal observations of storm-petrels flying around the lighthouse light at West San Benito Island, Mexico, a breeding location for Leach's and least storm-petrels. She also observed many hundreds of dead storm-petrels that had accumulated below the window that enclosed the lighthouse light, after attraction to the light and apparent collision with the glass. The period over which the storm-petrels collided with and accumulated under the window is unknown. Additionally, we are aware of 15 museum specimens of ashy storm-petrels that were collected at lighted offshore energy platforms (n = 2) or brightly lit coastal mainland locations (n = 13) (Carter *et al* . 2000, p. 443; Ornithological Information System [ORNIS] 2008), and ashy storm-petrels have been observed circling bright lights at a coastal mainland sporting venue on several occasions (Capitolo 2005, 2008; LeValley 2008) (see following “At-sea Artificial Light Pollution - Offshore Energy Platforms” section). These museum collections and direct observations demonstrate that ashy storm-petrels are attracted to light that occurs far from ashy storm-petrel breeding locations, where attendance by storm-petrels is lower than at breeding locations. Therefore, it is reasonable to assume that near breeding locations ashy storm-petrels are similarly attracted to commercial fishery lights, and that mortality of ashy storm-petrels as a result of this attraction, although not quantified, likely occurs. Several researchers (Gross [1935, p. 387]; James-Veitch [1970, p. 65]; Ainley [1995, p. 5]) have reported decreases in the amount of aerial activities by storm-petrels at night at their nesting grounds on bright, moonlit nights. Watanuki (1986, pp. 14-22) showed that colony activity levels of Leach's storm-petrels were inversely correlated with light intensities and the corresponding risk of predation by slaty-backed gulls ( *L. schistisagus* ). Oro *et al* . (2005, p. 425) reported that predation of European storm-petrels ( *Hydrobates pelagicus* ) by yellow-legged gulls ( *L. michahellis* ) was much higher at a cave that received stronger illumination from the city of Benidorm, Spain, located approximately 1.9 mi (3 km) from the storm-petrel colony. Data in Keitt (2004, p. 176) supported their hypothesis that a function of nocturnal activity patterns in the black-vented shearwater ( *Puffinus opisthomelas)* was reduction in the likelihood of predation by western gulls. Since procellariids have been shown to use the cover of darkness as a defense against predation at their nesting colonies, it is paradoxical that procellariids, including storm-petrels, are also attracted to bright lights (Montevecchi 2006, p. 94). Imber (1975, p. 305) suggested that the attraction of procellariids to bright lights is an artifact of their visual cueing towards bioluminescent prey. Our review of the available information revealed no direct observations or evidence of mortality of ashy storm-petrels through attraction to squid fishery lights; however, examining measures of reproductive success provides indirect evidence of an effect of squid fishery lights on ashy storm-petrels at breeding locations. From 1992 to 2000, Maxwell *et al* . (2004, p. 665) documented intense market squid harvesting near Santa Rosa, Santa Cruz, Anacapa, and Santa Catalina islands. During October 1995, 1996, and 1997, squid fishing activity was relatively high along the north coast of Santa Cruz Island from the west end to Orizaba Rock (Maxwell *et al* . 2004, p. 668). At Orizaba Rock, the number of active storm-petrel nest sites was 60 percent and 75 percent lower in 1997 than in 1995 and 1996, respectively (McIver *et al* ., in preparation), and the numbers of active nests (counted during mid-summer surveys) declined significantly (10 percent per year) from 1996 through 2005 (Carter *et al* . 2007, p. 7). However, the number of ashy storm-petrel nests at Orizaba Rock increased in 2006 and 2007 (Carter *et al* . 2007, p. 7; McIver *et al* . 2008, p. 6). Reasons for an increase in numbers of active nests at Orizaba Rock are not fully understood and may reflect reduced use of bright night lights, movements of some adult storm-petrels from Bat Cave after skunk predation in 2005, and other factors (McIver *et al* . in preparation). Human disturbance of nest sites on Orizaba Rock has not been documented, so this may not explain the reduction of nests from 1996 to 2005. Based on our conclusion that ashy storm-petrels are less affected by such environmental factors as reduced ocean productivity, and the study by Adams and Takekawa (2008, p. 14) that showed that ashy storm-petrels captured at three separate breeding locations in southern California forage in similar areas of ocean, we believe it is unlikely that oceanographic conditions explain the reduced reproductive success and numbers of nests of ashy storm-petrels at Orizaba Rock. Our review of the available information suggests that bright lights used in the market squid fishery at Orizaba Rock may have been a factor in the observed decline in numbers of active nests from 1996 through 2005, and low reproductive success observed there in 1996 and 1997. However, our review of available information did not reveal any data regarding the reproductive success or mortality rates of ashy storm-petrels at other Southern California locations, such as Santa Barbara Island and adjacent Sutil Island, where larger numbers of ashy storm-petrels nest than at Oriziba Rock. The absence of any data at these locations does not permit a meaningful or reliable extrapolation of trends regarding ashy storm-petrel reproductive success and numbers of active nests observed at Orizaba Rock, including the possible effects of squid fishery lights at that location, or to other ashy storm-petrel nesting locations in Southern California. Acknowledging the potential for impacts to breeding seabirds, the MSFMP requires that squid fishery boats in California limit wattage (per boat) to 30,000 watts maximum and maintain shields on lights that are parallel to the deck of the vessel (MSFMP 2005, Section 1-ii) in order to reduce the potential for predation as a result of illumination of seabird breeding locations on islands adjacent to fishing locations. However, ambient and artificial light intensity at seabird (including ashy storm-petrel) breeding locations in California has not been studied, and therefore the efficacy of the MSFMP measures to reduce potential predation associated with illumination at islands is not known. Measures to reduce the potential for predation as a result of illumination of seabird breeding locations, such as reduced wattage of lights and reduced upward radiation of light, are likely less effective in reducing the potential for attraction and collision of ashy storm-petrels that approach lighted fishing boats. While foraging and while in transit, ashy storm-petrels fly from a few centimeters (inches) to a few meters (yards) over the surface of the ocean, and upon approaching lighted boats, are exposed to the lights. Mortality to breeding and non-breeding ashy storm-petrels could occur through direct collision with lights, and ashy storm-petrels, exhausted after constant circling of lights, could be susceptible to predation by gulls, which are also known to concentrate around lighted squid fishery boats, presumably to feed on squid (Shane 1995, p. 10; W. McIver, personal observation). Two dead ashy storm-petrels were collected from boats at sea off the coast of southern California, presumably due to attraction to bright lights (ORNIS 2008). Squid fishery activities also occur in the southern part of Monterey Bay between Point Pinos and Fort Ord (Recksiek and Frey 1978, p. 9). Market squid fishing in general coincides with spawning events, and in central California squid spawning occurs from April to October (CDFG 2005, pp. 1-21). During autumn months (generally September and October), thousands of ashy storm-petrels congregate in the bay in deeper waters over the Monterey Submarine Canyon (Roberson 1985, p. 43); depending on location, flocks generally occur 3 to 25 mi (5 to 40 km) away from squid fishing areas. Shearwater Journeys, a bird-watching concessionaire in Monterey, California, observed large flocks (estimated 7,000 to 10,000 birds) of ashy storm-petrels in September 2008 on Monterey Bay (Shearwater Journeys 2008, *http://www.shearwaterjourneys.com/index.shtml* ). Based on known attraction of storm-petrels to boats and brightly lit facilities on the mainland, there is the potential for ashy storm-petrels in the large flocks to be attracted to these lights if boats are present at night in Monterey Bay during autumn months. Assuming a total population of 10,000 ashy storm-petrels, and autumn flock sizes of 4,000 to 7,000 ashy storm-petrels in Monterey Bay, approximately 40 percent to 70 percent of the total population of ashy storm-petrels theoretically could be exposed to this potential threat. This estimate includes ashy storm-petrels that come from Southeast Farallon Island only at this time of year for a short time. However, market squid fishing in Monterey Bay is largely observed to occur during daylight hours (CDFG 2008b, p. 20; Pacific Fishery Management Council 2008, p. 44) rather than at night, when ashy storm-petrels exclusively feed. While attracting lights may be used during daylight hours in this fishery, because ashy storm-petrels exclusively feed at night we do not expect that ashy storm-petrels are significantly affected by the market squid fishery in Monterey Bay. As stated above, we have no data indicating any ashy storm-petrel mortality associated with market squid fishing in Monterey Bay and are aware of only two dead ashy storm-petrels collected from boats at sea off of the Southern California coast. Accordingly, based on our review of the available information regarding light pollution from market squid fishery boats and tuna farms near ashy storm-petrel breeding colonies, we conclude that some low level of mortality of ashy storm-petrels may be occurring as a result of squid fishery lighting, resulting in a temporaily reduced number of birds within limited geographic locations. Approximately 26 percent to 34 percent of the total ashy storm-petrels at breeding locations may be exposed to lighting. This estimate does not include ashy storm-petrels at Southeast Farallon Island, where squid fishing is prohibited. However, available data does not indicate that the potential threat from bright lights is causing significant mortality to the overall population of ashy storm-petrels. Further, our review of the available information does not suggest that the threat of fishery-related lighting is expected to increase to any large degree in the foreseeable future due to implementation of regulations limiting wattage of lighting and location of fishing activities. While not basing our conclusion on this factor, we are aware that the State of California has issued regulations that limit the wattage of lighting and location of fishing activities. Therefore, we do not consider artificial light pollution from the market squid fishery or tuna aquaculture operations to be a significant threat to ashy storm-petrels at breeding colonies anywhere within the species' range at this time. At-sea Artificial Light Pollution - Offshore Energy Platforms The petitioner asserts that the ashy storm-petrel's marine environment is being (and will be) modified and degraded by artificial light pollution from current (and future) offshore energy platforms (oil production platforms and liquefied natural gas
(LNG)terminals) and vessels (CBD 2007, pp. 15-16). Specifically, the petitioner claims that ashy storm-petrels are (or would be) attracted to bright lights and die from exhaustion after constant circling of the lights, or die by direct collision with the lights or platforms. Offshore oil operations in California are conducted from 23 platforms in Federal waters (greater than 3 mi (4.8 km) from shore) and 10 platforms and related facilities in State waters (less than 3 mi (4.8 km)), distributed over an area of about 7,700 square mi (20,000 square km) along the southern coast of the State (McCrary *et al* . 2003, p. 43). All of the currently operational platforms occur within the at-sea range of foraging ashy storm-petrels (Briggs *et al* . 1987; p. 23 Mason *et al* . 2007, pp. 56-59; Adams and Takekawa 2008, pp. 12-13). Offshore oil production platforms in California are illuminated at night by bright, incandescent lights that serve as maritime navigational aids and illuminate working platforms and walkways. Russell (2005, pp. 1-330) studied the interactions between migrating birds and offshore oil and gas platforms in the northern Gulf of Mexico; however, our review of the available information did not reveal any surveys that have been conducted to assess storm-petrel (or other bird species) attraction to oil production platforms off the coast of California, or any direct observations of ashy storm-petrels flying around the lights of offshore oil production platforms. However, Carter *et al* . (2000, p. 443) reported two specimens of ashy storm-petrels (archived at the Santa Barbara Natural History Museum, Santa Barbara, California (SBNHM)) that were recovered dead on an offshore oil platform (Platform Honda), located approximately 5 mi (8 km) off the coast of southern California. Ashy storm-petrels have also been collected dead from mainland locations with bright lights, indicating that the birds were attracted to and died as result of association with bright lights. Carter *et al* . (2000, p. 443) reported six ashy storm-petrel carcasses (also archived at SBNHM) that were recovered from six mainland locations (from Goleta to Point Mugu) with bright lights in southern California. The Service is aware of at least seven additional museum specimens of ashy storm-petrels that were collected at mainland locations in California with bright lights; all were collected during autumn months (Ornithological Information System [ORNIS] 2008). Ashy storm-petrels have also been observed flying at night around bright lights at a stadium adjacent to San Francisco Bay on several occasions during autumn months over the past several years (Capitolo 2005, 2008; LeValley 2008). LeValley (2005, 2008) described the storm-petrels as juveniles, based upon plumage characteristics, and observed on at least two occasions that the storm-petrels flew to and landed in the lights. The museum specimens are evidence that ashy storm-petrels are attracted to bright lights, even those that occur in metropolitan areas, far from their at-sea foraging range. This indicates that bright lights on oil production platforms that occur within their marine range likely attract more ashy storm-petrels than are indicated by random collection and museum records. The direct observations of ashy storm-petrels around bright lights during autumn months support an examination by Imber (1975, p. 304), who states that juvenile procellariids are likely attracted to lights more often than adults. Similarly, most of the museum specimens from mainland locations and the offshore platforms were collected in the fall and may have been juvenile birds. In a study of migratory passerine birds in the Gulf of Mexico, Russell (2005, p. 4) reported that offshore platforms attract birds, induce nocturnal circulations of platforms and result in mortality of birds through collision. This is commensurate with reported observations of ashy storm-petrels flying around and into bright lights at coastal mainland sporting events. Field demonstration tests on an offshore oil platform in the North Sea, involving the exchange of lighting with a greenish light, and reductions in lighting, have been shown to reduce passerine bird occurrence at the platform by 50 to 90 percent (Marquenie and van de Laar 2004, p. 6; Marquenie *et al* . 2008, pp. 2-4). Our review of the available information did not find any similar demonstration on oil production platforms in southern California. Two LNG projects are proposed off the coast of southern California (California Energy Commission 2009). The proposed Clearwater Port Project (owned by Northern Star Natural Gas Inc.) would be located approximately 13 mi (21 km) offshore of the City of Oxnard, Ventura County, in the Santa Barbara Channel. Clearwater Port would reconfigure an existing offshore oil production platform (Platform Grace). Reconfiguration of the platform would involve installing an LNG transfer system, a cool down system, pumps, and ambient air vaporizers, and reinstalling and upgrading the platform's power-production capability. The proposed Port Esperanza (owned by Esperanza Energy, LLC, a subsidiary of Tideland Oil & Gas Corporation) would be located approximately 15 mi (24 km) south of the port of Long Beach, and would include two unmoored, self-propelled, re-gasification units, each connected to its own permanently moored buoy. The application for a third LNG project, the Oceanway LNG Terminal Project, was withdrawn by Woodside Petroleum Ltd., in January 2009 (Woodside Petroleum Ltd. 2009, pp. 1-2). Our review of the available information did not find specific plans that describe the lighting configurations of these proposed terminals, but assumes that lighting configurations and intensities would be similar in nature to current offshore oil platforms in California. As stated earlier, Le Corre *et al* . (2002, p. 97) found that the geographic distribution of the mortality to Barau's petrel (due to attraction to bright lights at night) depended on location of urban and industrial areas in relation to the distribution of breeding colonies. At Réunion Island, light sources were urban, stationary, and functioned (at night) continuously (Le Corre *et al* . 2002, p. 96). In southern California, continuously functioning sources of light include extensive mainland metropolitan areas, and 33 offshore oil production platforms (McCrary *et al* . 2003, p. 43). The oil production platforms are located within 150 mi (240 km) of all southern California ashy storm-petrel breeding locations, well within the distance from breeding colonies that the species has been observed to forage (220 mi [360 km]) (Adams and Takekawa 2008, p. 13). Accordingly, we conclude that about 50 percent of the total population of ashy storm-petrels (approximately 100 percent of the ashy storm-petrels that breed in the California Channel Islands) may be exposed to this potential threat. In summary, based on observations of ashy storm-petrels collected dead from an offshore oil platform and from brightly lit mainland locations, and recent observations of ashy storm-petrels observed in association with bright lights at a sporting facility, we have information that ashy storm-petrels are susceptible to bright lights on current structures that occur in their oceanic environment. This threat likely results in some (but unknown) level of mortality. At this time, the existing population information does not indicate that mortality associated with offshore energy platforms is a significant threat to the species at Southeast Farallon Island, at the Channel Islands, or rangewide. However, should offshore energy development increase significantly in the future, it would likely be appropriate to monitor and provide conservation measures that would eliminate or minimize the potential for mortality. Oil Pollution - Offshore Energy Production Platforms The largest oil spill from offshore oil operations in California was the 80,000-barrel (3,360,000-U.S. gallon) Santa Barbara spill from Platform A in 1969, which resulted in the death of thousands of birds (McCrary *et al* . 2003, p. 46). Since 1969, only one spill from oil and gas operations offshore of California has resulted in documented seabird mortality (more than 700 birds), the 163-barrel (7,000-gallon) Platform Irene pipeline spill, off Point Arguello in 1997 (Torch/Platform Irene Trustee Council 2007, p. 3; McCrary *et al* . 2003, p. 46). Oiled ashy storm-petrels were not documented during either of these spills. Applying information on estimated spill size and spill probability to potential impacts on seabirds is difficult because of many factors, including the type, rate, location, and volume of oil spilled, weather and oceanographic conditions, timing within year of the spill, distribution of seabird species near a spill, and behavior of seabirds in reaction to oil slicks (Ford *et al* . 1987, p. 549; McCrary *et al* . 2003, p. 46). Minerals Management Service (2001, p. xix) reported that without the development of 36 currently undeveloped leases, the probabilities that one or more oil spills will occur from existing Outer Continental Shelf oil and gas activities (during years 2002 to 2030) are 73.9 percent for a spill of 200 barrels (8,600 U.S. gallons) or less, and 59.1 percent for a spill of 2,000 barrels (86,000 U.S. gallons). A Federal moratorium on offshore drilling and platform development off the coast of California was initiated by the U.S. Congress in 1982 (U.S. Department of Energy 2005). On October 1, 2008, the 1982 offshore drilling moratorium expired and was not renewed by the U.S. Congress. On September 16, 2008, the U.S. House of Representatives passed bill H.R. 6899, the Comprehensive American Energy Security and Consumer Protection Act, which would allow oil and natural gas exploration and production between 50 and 100 mi (80 and 161 km) off the U.S. coasts. The U.S. Senate has received but not yet voted on H.R. 6899. Fossil fuel (such as petroleum and natural gas) energy use and production is and will likely continue to be a significant societal issue for the United States in the foreseeable future. Consequently, it is foreseeable that within the next 15 years, additional offshore oil and gas platform development will occur off the California coast, within the marine range of ashy storm-petrels. Based on information available to the Service regarding offshore oil production, we conclude that about 50 percent of the total population of ashy storm-petrels could potentially be exposed to oil spills. However, predicting the possible effects of an oil spill from an offshore energy production platform is difficult and would depend on the timing and amount of a spill, prevailing ocean currents and conditions, and locations of ashy storm-petrels at the time of a spill. We conclude that a relatively small proportion of the population would likely be exposed to any single oil spill, and consequently oil spills are not considered to be a significant threat to ashy storm-petrels anywhere within the species' range. Oil Pollution - Vessels Hampton *et al* . (2003, p. 29) summarized previous reports and showed that, during the 20th century, hundreds of thousands to millions of seabirds, especially common murres ( *Uria aalge* ), were killed by oil pollution from oil tankers and other marine vessels in central California. Hampton *et al* . (2003, p. 30) estimate that approximately 20 tankers per week arrive at and depart ports in California. In California, large oil transfer facilities occur in San Francisco Bay and Long Beach Harbor (Los Angeles) (California Resources Agency 2008, p. 5F-6). Ports for non-tanker marine vessels (e.g., dredges, cargo vessels) occur at numerous locations along the California and northwestern Baja California coasts. Tankers traveling along the coast, in accordance with a voluntary agreement with California State and U.S. Federal agencies, stay about 50 mi (80 km) offshore (Hampton *et al* . 2003, p. 31). Hampton *et al* . (2003, p. 30) showed that oil spill accidents regarding non-tanker vessels are the most common in California, and that small volumes of oil may kill large numbers of birds. In an examination of shipping practices, Hampton *et al* . (2003, pp. 30-32) suggested that the dumping of tanker washings could occur several times per week off the California coast, regular tank washings could produce the equivalent of a small (~10,000-U.S. gallon) oil spill, and that dumping of tanker washings could pose a greater threat to offshore (e.g., greater than 50 mi (80 km) out) seabird species, including ashy storm-petrels, than to species occurring closer inshore. Minerals Management Service (2001, p. xix) reported a 90.5 percent probability of a 22,800-barrel (957,600 U.S. gallons) tanker spill occurring in waters of the Outer Continental Shelf during 2002 to 2030. Oiled ashy storm-petrels have been collected in California. Two ashy storm-petrels were collected between 1997 and 2003, in association with “mystery spills” attributed to the *S.S. Jacob Luckenbach* , which sank in the Gulf of the Farallones in 1953 and leaked oil as it decayed on the ocean floor (Luckenbach Trustee Council 2006, pp. i, 65). Major oiling events attributed to the *S.S. Luckenbach* occurred every few years from 1973 through 2002 (Luckenbach Trustee Council 2006, pp. i, 65). Small seabirds (including ashy storm-petrels) may be more susceptible to mortality due to predation after oiling, and the degree of at-sea loss is likely higher with offshore species (Ford *et al* . 1987, pp. 549-550). Although specific mortality for ashy storm-petrels was not estimated during the *S.S. Luckenbach* spill event, it was presumed that the ratio of actual dead to recovered dead was similar to that of ancient murrelets ( *Synthliboramphus antiquus* ) and Cassin's auklets, and that total mortality for ashy storm-petrels was approximately 21 individuals (Luckenbach Trustee Council 2006, p. 65). Based on information available to the Service regarding oil tanker traffic off the coast of California, ashy storm-petrels are exposed to the threat of oil spills. In addition, because oiled ashy storm-petrels have been recovered from vessel-related spills (the *S.S Luckenbach* ), we know that the species is susceptible to oiling. Predicting the possible effects of an oil spill from tankers is difficult and would depend on the timing and amount of a spill, prevailing ocean currents and conditions, and locations of ashy storm-petrels at the time of a spill. Since thousands of ashy storm-petrels congregate in Monterey Bay every fall, the species could be vulnerable to a tanker spill near Monterey Bay at that time of year. However, the Service has no information indicating that tanker spills in the Monterey Bay are predictable or even likely. Therefore, we consider oiling from tanker spills to be insignificant to ashy storm-petrels anywhere within the species' range. Organochlorine Contaminants The petitioner asserts that the ashy storm-petrel is threatened or endangered by the presence, in the marine environment, of organochlorine pollutants—specifically, dichlorodiphenyltrichloroethane (DDT), polychlorinated biphenyls (PCBs), and their breakdown products (CBD 2007, p. 18). The petitioner asserts that, as a result of the presence of these pollutants in the waters off California, eggshell thinning occurred in collected eggs of the ashy storm-petrel, and reproductive success of the species has been reduced (CBD 2007, p. 19). During the period from the late 1940s to the early 1970s, Los Angeles area industries discharged and dumped thousands of tons of DDT and PCBs into ocean waters off the Southern California coast (Department of Commerce 2001, p. 51391). Almost all of the DDT originated from the Montrose Chemical Corporation's manufacturing plant in Torrance, California, and was discharged into Los Angeles County sewers that empty into the Pacific Ocean at White Point, on the Palos Verdes shelf (Department of Commerce 2001, p. 51391). In addition, large quantities of PCBs from numerous sources throughout the Los Angeles basin were released into ocean waters through the Los Angeles County sewer system (Department of Commerce 2001, p. 51391). Most organochlorine pesticides are hydrophobic (meaning that they tend not to combine with, or are incapable of dissolving in water) and show a high affinity for lipids (Portman and Bourne 1975, p. 294). Bioaccumulation is defined as an increase in the amount of a substance in an organism or part of an organism that occurs because the rate of intake exceeds the organism's ability to remove the pesticide from the body (Holland 1996, p. 1170). Biomagnification is defined as the bioaccumulation of a pesticide through an ecological food chain by transfer of residues from the diet into body tissues, in which the tissue concentration increases at each trophic level in the food web (Holland 1996, p. 1171). Storm-petrels feed on prey that occur at the ocean's surface and that contain high concentrations of lipids, such as euphausiids, larval fish, fish eggs, and squid (Watanuki 1985, p. 885; Warham 1990, p. 186). As mentioned in the **Species Description** section above, the diet of ashy storm-petrels has not been well-studied, but likely includes euphausiids, larval fish, and fish eggs, which would make ashy storm-petrels susceptible to bioaccumulation and biomagnification. Eggshell thinning caused by DDE (dichlorodiphenyldichloroethylene, a metabolite of DDT), which results in eggs getting crushed during incubation and thus breeding failure of many fish-eating birds, is probably the best documented effect of environmental pollutants on birds (Fry 1995, p. 168). DDT-induced eggshell thinning caused reproductive failures of brown pelicans, bald eagles, and peregrine falcons in the California Channel Islands (Hickey and Anderson 1968, pp. 271-273; Risebrough *et al* . 1971, pp. 8-9; Gress *et al* . 1973, pp. 197-208). Coulter and Risebrough (1973, pp. 254-255) first reported eggshell thinning in the ashy storm-petrel in the early 1970s. Ashy storm-petrel eggs were also collected for contaminant analyses and measurements of eggshell thinning in 1992 (Fry 1994; Kiff 1994), 1995-97 (D. Welsh, unpublished data), and 2008 (Cater *et al* . 2008). For eggs collected in 1992, the highest levels of total DDT and PCBs, relative to other seabird species, were contained in ashy storm-petrel eggs, and the averages for total DDT and PCBs in ashy storm-petrel eggs were the highest measured for any of the 13 species that were examined, and measured almost twice the levels observed in the second-most contaminated eggs (Fry 1994, p. 30). Kiff (1994, pp. 1-29) compared eggshell thicknesses of ashy storm-petrel eggs that were collected before 1947 (pre-contamination reference material) to eggshell thicknesses of eggs collected in 1992 and reported that 27.8 percent of the ashy storm-petrel eggs collected from Santa Cruz Island (n = 18) were 15 percent thinner than the pre-1947 average. Concentrations of DDE in ashy storm-petrel eggs have been linked with eggshell thinning and lower hatching success (Carter *et al* . 2008c, p. 4). Based on findings from 12 ashy storm-petrel eggs collected in 2008, Carter *et al* . (2008, p. 4) reported statistically significant declines (p<0.0001) in levels of DDE and PCBs in ashy storm-petrel eggs collected in 2008, compared to eggs collected in the 1990s. Data are currently not available on eggshell thicknesses of ashy storm-petrel eggs collected in 2008, but the Service anticipates that additional work will be funded in 2009 to further analyze organochlorine contaminant data and examine changes in eggshell thinning in randomly collected and salvaged eggs. Carter *et al* . (2008, p. 5) speculated organochlorine contaminant concentrations from the 1960s to the 1980s were greater in ashy storm-petrels, as compared to other breeding seabirds in southern California, such as brown pelicans ( *Pelecanus occidentalis* ) and double-crested cormorants ( *Phalacrocorax auritus* ). Organochlorine contaminant levels and reproductive success of ashy storm-petrels in southern California were not measured or monitored prior to the 1990s; however, Carter *et al* . (2008, p. 5) suggest that higher organochlorine concentrations may have contributed to lower hatching success and lower population size of ashy storm-petrels in southern California during the 1960s to 1980s than observed in the 1990s. During 1995 to 1997, a higher proportion of broken eggs were found than in 2005 to 2007 (McIver *et al* . in preparation). McIver *et al* . (in preparation) reported that hatching success at Santa Cruz Island differed significantly among years, with lowest success in 1996 (53.5 percent, n = 187) and highest success in 2006 (82.0 percent, n = 61). McIver *et al* . (in preparation) speculated that DDE-induced eggshell thinning likely contributed to lower hatching success at Santa Cruz Island from 1995 to 1997 and likely explained (in part) the relatively high proportion of broken eggs found at all Santa Cruz Island locations monitored. Carter *et al* . (2008, p. 5) concluded that DDE and total PCBs decreased to much lower levels between 1992 and 2008, and that, from 1992 to 1997, relatively high contaminant levels and associated eggshell thinning and premature embryo deaths likely were significant contributing factors to relatively low hatching success observed during this period. Based on information available to the Service regarding organochlorine contamination of ashy storm-petrels, ashy storm-petrels have been exposed (likely, through their food resources) to organochlorine contaminants throughout their foraging range, but this exposure has likely been greater for ashy storm-petrels breeding in southern California and foraging in nearby waters. We conclude that organochlorine contaminants are still present in ashy storm-petrels, but preliminary results indicate that current levels of contaminants are much reduced compared to levels observed in the 1990s. In addition, fewer numbers of broken eggs and higher hatching success of ashy storm-petrels at Santa Cruz Island may be explained, in part, by reduced organochlorine contamination. Therefore we consider this threat to be insignificant to ashy storm-petrels at Southeast Farallon Island, at the Channel Islands, or rangewide. Ingestion of Plastics The petitioner asserts that the ashy storm-petrel is threatened by the ingestion of plastic particles floating at the ocean's surface (CBD 2007, pp. 20-21). Ingestion of plastics by seabirds is well-documented, and plankton-feeding seabirds, such as ashy storm-petrels, are more likely to confuse plastic pellets for their prey than are fish-eating seabirds; therefore, the plankton-feeding seabirds show a higher incidence of ingested plastics (Azzarello and Van Vleet 1987, p. 295). Two studies have documented the presence of plastic particles in storm-petrel species that foraged in waters of the California Current. Blight and Burger (1997, p. 323-324) dissected seabirds caught as bycatch in the eastern North Pacific; they found plastic in all eight storm-petrel (Leach's and fork-tailed) carcasses they collected, and the number of pieces of plastic in each bird was highest for the two species of storm- petrels and in a Stejneger's petrel ( *Pterodroma longirostris* ). Shuiteman (2006, p. 23) found plastic particles in regurgitation samples of Leach's storm-petrels caught in mist nets on Saddle Rock, Oregon. At-sea surveys for plastic particles off the coast of southern California (Moore *et al* . 2004, pp.1-6) in 2000 and 2001 are the only research that the Service is aware of that has attempted to quantify the amount of plastics observed in waters within or near the foraging range of ashy storm-petrels. Moore *et al* . (2004, pp. 2-3) reported densities of up to 7.25 pieces per cubic meter of water sampled for plastic pieces that were less than about 0.2 inches (5 millimeters) in diameter. As stated in the **Species Description** section above, like other storm-petrel species, ashy storm-petrels feed by picking prey from the surface of the ocean. Because plastic ingestion by storm-petrels has been well-documented, we assume that ashy storm-petrels also ingest plastic. However, the incidence of plastic ingestion by ashy storm-petrels has not been specifically evaluated (such as by necropsy or analysis of regurgitations). In addition, plastic ingestion has not been reported as a cause of death of ashy storm-petrel chicks or adults (Ainley *et al* . 1990, pp. 128-162; McIver 2002, pp. 17-49), and the degree to which the ingestion of plastic may affect ashy storm-petrels is not known (Ainley 1995, p. 9). Based on information available to the Service regarding the presence and availability of plastic particles in the marine environment used by ashy storm-petrels, and the propensity for storm-petrels to ingest plastic, we recognize that nearly all ashy storm-petrels have the opportunity to ingest plastic, but we have no information on the rate of ingestion. We also recognize plastic particles will continue to be ubiquitous in the future in the waters of the California Current, where ashy storm-petrels feed. Although plastic ingestion has been observed in other species of storm-petrels and likely occurs with ashy storm-petrels, our review of the available information revealed no direct evidence that suggests ashy storm-petrels are currently being negatively affected by this potential threat. Therefore, we consider this threat to be insignificant to ashy storm-petrels at Southeast Farallon Island, at the Channel Islands, or rangewide. Summary of Factor E Regarding other natural or manmade factors affecting the continued existence of the species, the Service concludes that the presence of bright lights associated with commercial fishing operations (for example, market squid fishery and tuna aquaculture) at ashy storm-petrel breeding locations and (to a lesser extent) near large at-sea congregations of ashy storm-petrels, causes mortality in adult and fledgling ashy storm-petrels through direct collision with lights and predation, but is unlikely to affect the species at a population level. The Service concludes that the presence of constantly shining lights (at night) on oil and gas production platforms (current and future) off the California coast, causes mortality in foraging ashy storm-petrels, which may collide with lights or become exhausted after constant association with the lights. However, there is no information suggesting that populations are currently unstable or decreasing as a result of these mortality sources. The Service concludes that potential oil spills from existing or proposed platforms pose a threat to small numbers of ashy storm-petrels off southern California, and that spills from oil tankers moving off the coast of California may pose a threat to foraging and flocking ashy storm-petrels. The scale of threat would depend on the size, location, and timing within year of the spill. The Service concludes that it is unlikely that such oil spills will be of a size that would pose a significant threat to ashy storm-petrels. The Service concludes that organochlorines still contaminate eggs of ashy storm-petrels but that current observed levels of contaminants are reduced, compared to levels observed in eggs collected during the 1990s, and that organochlorine contamination does not appear to be reducing hatching success of ashy storm-petrels. The Service concludes that, like other storm-petrels, ashy storm-petrels likely ingest plastic while foraging, but the degree to which plastic ingestion threatens ashy storm-petrels is not known and is not considered to be a threat. Finally, we have no reason to believe that any of these threats are likely to increase in the foreseeable future. Therefore, we consider these threats to be insignificant to ashy storm-petrels at Southeast Farallon Island, at the Channel Islands, or rangewide. Foreseeable Future In considering the foreseeable future as it relates to the status of the ashy storm-petrel, we take into consideration our analysis of the potential threats to the species as described above. No data are currently available regarding adult life span of the species; however, ashy storm-petrels are thought to live on the order of 20 to 25 years (Sydeman *et al* . 1998b, p.7). Oceanographic and climatic processes potentially affecting ashy storm-petrels operate on the order of single year to multi-decadal scales. For example, the marine environment off the west coast of North America is affected by oceanographic processes, such as El Niño and La Niña, which occur on annual scales, and the Pacific Decadal Oscillation, which occurs on decadal scales. Based on historical and recent trends of oceanographic phenomena, such as El Niño events, and our above analysis of how ashy storm-petrels are affected by El Niño events, we conclude the potential threat from changes in the ocean environment over the timescales at which they currently operate are not significant to the ashy storm-petrel. Principle among the potential threats to the ashy storm-petrel is mortality from avian predators. There was likely a decline in the population of ashy storm-petrels at Southeast Farallon Island in the mid-1970s to the early 1990s (Sydeman *et al* . 1998a, p. 443). However, more recent data (Warzybok and Bradley 2007, p. 17) suggest an increasing population of ashy storm-petrels at Southeast Farallon Island. Additionally, mortality due to predation from owls seems to show a decreasing trend over recent years, and mortality due to predation from skunks is likely a sporadic event without a specific identifiable time element. Given these recent trends, we do not expect an increase in mortality of ashy storm-petrels in any one location or across their range. Ashy storm-petrel breeding locations occur primarily on federally owned and managed lands in the United States and Mexico. A broad network of Federal, State, and International protections have been and are currently in place that protect the ashy storm-petrel. Based on historical and recent trends of land management policies on federally owned lands in the United States, we find it unlikely that substantial changes to current land management practices or regulations that would negatively affect ashy storm-petrels are likely to occur in the near term, and any changes are most likely on the order of decades in the future. Based on the trend to restrict use of attracting lights used in the market squid fishery, we conclude this potential threat is not likely to increase over time. The threat of eggshell thinning from organochlorine exposure has steadily decreased over time and is not likely to increase in the future because their use is banned. The incidence of oil spills of sufficient size to significantly affect ashy storm-petrels is largely stochastic. There is no evidence of an increasing trend in the incidence of spills, and based on increased measures to ensure the safety of oil and gas transportation, we do not consider this potential threat to increase in the future. Plastics ingestion is currently not a significant threat to the ashy storm-petrel and, based on historic information, we do not believe this threat would increase in the future. Therefore, we consider the foreseeable future to encompass the timeframe over which the effects of potential threats as described above can be reasonably anticipated. Finding We assessed the best available scientific and commercial information regarding threats faced by the ashy storm-petrel. We reviewed numerous information sources including literature cited in the petition, information in our files, and information submitted to us following our 90-day petition finding (73 FR 28080; May 15, 2008) related to potential threats to the ashy storm-petrel (climate change, ocean acidification, sea level rise, predation, light attraction, contamination by chlorinated hydrocarbons, and plastic pollution) on ashy storm-petrels and the California Current marine environment. We found evidence that the ashy storm-petrel is less affected by El Niño events than most seabirds in the California Current System. This is not to imply that ashy storm-petrels are not affected by El Niño events; fewer numbers of ashy storm-petrels may attempt to breed during El Niño events, and timing of breeding within year may be slightly delayed. However, ashy storm-petrels show low between-year variability in fledgling production, and unlike other seabirds, have bred in every year for which there are observations of nesting activities. Because ashy storm-petrels forage over a wide geographic area and have an extended egg-laying and chick-rearing period, they are likely more able to exploit prey resources that may be more scarce and patchily distributed. Ocean acidification is occurring, but current research does not demonstrate a link between ocean acidification and reduced abundance and survival of prey items on which ashy storm-petrels depend, nor does our analysis or current research indicate that reproductive success of ashy storm-petrels is affected by ocean acidification. Based on current projections of sea level rise that predict a 3-ft (0.9-m) rise by 2100, we found that the majority of nesting habitat is at least 4.9 ft (1.5 m) above current sea level. The exception is some nesting habitat in the Channel Islands at Cavern Point Cove Caves that may become submerged. However, this location represents a small percentage of the rangewide nesting population, and we do not consider this to be a significant threat. Introduced grasses are present on Southeast Farallon Island; however, we do not have specific information that quantifies the amount of suitable nesting habitat at Southeast Farallon Island, or other breeding locations, that may be unavailable to ashy storm-petrels because of introduced grasses. In addition, the petitioner claims that introduced grasses are widespread at all breeding locations. For example, grasses do not occur in sea caves or on most offshore rocks where ashy storm-petrels nest. Therefore, we find that the ashy storm-petrel is not threatened by the present or threatened destruction, modification, or curtailment of the species' habitat or range, now or in the foreseeable future. While collection of ashy storm-petrel adults and eggs has occurred throughout its breeding range over the past 124 years, the rate of specimen collection has been low and sporadic and not concentrated in any one location. The number of specimens collected to date is very small compared to the current estimated total population size. Consequently, we find that the ashy storm-petrel is not threatened by overutilization of the species for commercial, recreational, scientific, or educational purposes now or in the foreseeable future. Predation by western gulls and owls at Southeast Farallon Island does not pose a significant threat to the ashy storm-petrel. Although populations of ashy storm-petrels at Southeast Farallon Island may have decreased from 1979 to 1992 as a result of predation, we find that the best available scientific information indicates that populations are increasing in recent years. While predation of ashy storm-petrels is likely to continue within the foreseeable future, we find that predation at Southeast Farallon Island is not a significant threat to the species. Mortality due to predation by island spotted skunks at Santa Cruz Island is not a significant threat to the ashy storm-petrel. Although sporadic island spotted skunk predation events will likely continue over time, there is no information suggesting that spotted skunk predation is a significant threat to the species. We found evidence that deer mice and house mice are likely predators or scavengers of small numbers of ashy storm-petrel eggs and small chicks, but this likely does not substantially affect the productivity of the species. Consequently, we find that the ashy storm-petrel is not threatened by disease or predation now or in the foreseeable future. Based on our review of the best available information, we find there is a network of existing regulatory mechanisms that serve to protect the species. As much as 75 percent of ashy storm-petrel breeding locations are included in marine reserves designed to limit the use of bright lights associated with squid fishery activities, and the implementation of the Market Squid Fishery Management Plan should be effective in offering protection for ashy storm-petrels. We found no support for the petitioner's claim that a lack of regulatory mechanisms regarding the MBTA poses a threat to the ashy storm-petrel. While compliance with MBTA is not universally applied, this law provides protections from killing, taking, and possessing the ashy storm-petrel. We find that a lack of regulatory mechanisms to control GHG does not threaten the ashy storm-petrel, because we determined that processes associated with climate change, such as ocean acidification, sea level rise, and possible increases in sea surface temperatures (see Factor A) have not been shown to directly impact the ashy storm-petrel. Therefore, we find the ashy storm-petrel is not threatened by the inadequacy of existing regulatory mechanisms. Ashy storm-petrels are attracted to bright lights. Bright lights associated with the market squid fishery may result in the reduced number of birds within specific geographic areas; however, our review of the available information does not indicate that the threat from market squid fishery lighting is contributing to mortality that results in large-scale population declines. Ashy storm-petrels that congregate in Monterey Bay in the fall months do not appear to be at particular risk from squid fishing activities because the available information indicates much of the fishing occurs during the day, whereas ashy storm-petrels feed exclusively at night. Bright lights on offshore energy platforms may contribute to small levels of ashy storm-petrel mortality; however, we found no indication that this is a significant threat to the species. Furthermore, our review of the available information does not suggest that the threat of lighting from the market squid fishery or other sources is expected to increase to any large degree in the foreseeable future. Therefore, we do not consider bright lights associated with market squid fishing or offshore energy platforms to be a significant threat to the ashy storm-petrel. We find oil pollution does not pose a significant threat to the ashy storm-petrel. Although there is a high probability of spills from oil production platforms or tankers within the range of foraging ashy storm-petrels, this source of mortality is not expected to result in severe impacts to major portions of the population. We conclude that a relatively small proportion of the population would likely be exposed to any single oil spill, and, consequently, oil spills are not considered to be a significant threat to ashy storm-petrels. We find organochlorine contamination does not pose a significant threat to ashy storm-petrel, because this threat likely occurred in the past, is currently much reduced, and that contamination of ashy storm-petrels by organochlorines currently does not significantly reduce hatching success. Ingestion of plastic by ashy storm-petrels does not pose a significant threat to the species. We found evidence that small plastic particles occur at the ocean's surface within the feeding range of ashy storm-petrels, and we found that many species of procellariids, including storm-petrels, ingest plastics. It is likely that ashy storm-petrels ingest plastic while foraging; however, we found no direct evidence, such as dead chicks or adults, underweight chicks or adults, or observation of plastics in regurgitations that indicates that plastic ingestion is a threat to ashy storm-petrels. Therefore, we find the ashy storm-petrel is not threatened by other natural or manmade factors now or in the foreseeable future. On the basis of our status review, we conclude the listing of the ashy storm-petrel rangewide is not warranted. Significant Portion of the Range
(SPR)Analysis The Act defines an endangered species as one “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as one “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Having determined that the ashy storm-petrel does not meet the definition of a threatened or endangered species, we must now consider whether there are any significant portions of the range where the species is in danger of extinction or likely to become so 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' “ (DOI 2007). We have summarized our interpretation of that opinion and the underlying statutory language below. A portion of a species' range is significant if it is part of the current range of the species and is important to the conservation of the species because it contributes meaningfully 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 of the species to persist. The first step in determining whether a species is endangered in an SPR is to 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 in analyzing portions of the range that are not reasonably likely to be significant and threatened or endangered. To identify 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. 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. 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 ashy storm-petrel. We have no evidence to suggest that the occupied range of the ashy storm-petrel is different from its historical range, and there is no evidence to suggest a range contraction for the species. Therefore, we will not further consider lost historical range as a significant portion of the species range. The ashy storm-petrel breeds in two main geographic areas: in the northern portion of the species range on Southeast Farallon Island, where approximately 36 to 53 percent of the entire population occurs, and in the southern portion of the species range on the California Channel Islands, where approximately 44 to 60 percent of the breeding population occurs. About 1.5 to 2 percent nests in Mexico. The two California areas are geographically separated by approximately 250 miles (402 km); however, there is no indication that the populations are genetically different, which is logical, since the ashy storm-petrel ranges widely in foraging activities. Southeast Farallon Island is located in the California Current, a cold water current; in contrast, the California Channel Islands are more affected by the Davidson Current, which is a comparatively warm water current. No other areas within the species' range contain a significant number of breeding locations. Ashy storm-petrels occur at their breeding colonies nearly year-round and occur in greater numbers from February through October (Ainley 1995, p. 5). For this reason, we consider breeding locations to be most significant to the species. The loss of all breeding ashy storm-petrels at either Southeast Farallon Island or in the Channel Islands would reduce the rangewide population of the species by approximately 50 percent, which could result in a decrease in the ability of the species to persist. To determine whether Southeast Farallon Island or the Channel Islands may warrant further consideration as a significant portion of the range, we evaluated these two areas of the range of the ashy storm-petrel. Under our five-factor analysis for the ashy storm-petrel rangewide, we did not find any threats that were significant to the species rangewide or that were concentrated in any one particular area. The potential threat of ocean acidification, and reduced ocean primary productivity, is a rangewide threat that we concluded was not significant. This is due to the ability of the ashy storm-petrel to forage more widely than other species and because the ashy storm-petrel has not demonstrated population breeding failures as seen in other seabird species. The threat of human degradation of nesting habitats may be more evident in the Channel Islands as compared to Southeast Farallon Island, but we did not find it to be a significant threat in either area. We did find potential threats were different in the northern portion of the range compared to the southern portion of the range. Our rangewide analysis was conducted at a stepped-down geographic scale due to the natural concentration of breeding birds at Southeast Farallon Island and in the Channel Islands. On Southeast Farallon Island, we identified a potential threat of mortality due to predation by western gulls and burrowing owls. Populations of ashy storm-petrels at Southeast Farallon Island may have decreased from 1979 to 1992 as a result of predation (Sydeman *et al* . 1998a, p. 443); however, more recent information suggests that populations are increasing in recent years (Warzybok and Bradley 2007, p. 17). Predation of ashy storm-petrels is likely to continue within the foreseeable future; however, as described above in our five-factor analysis of the rangewide population, we find that predation at Southeast Farallon Island is not a significant threat to the species. This particular predation threat from western gulls is not found in the Channel Islands; however, although predation from skunks was identified as a potential threat, we found it not to be a significant threat. Rising sea levels due to climate change may affect a small portion of the breeding population in the Channel Islands, but the large majority of nesting sites are above projected sea level rise into 2100. The use of bright, attracting lights in the market squid fishery was identified as a potential threat to breeding birds in the Channel Islands, but not to breeding birds on Southeast Farallon Island due to regulatory restrictions around the island. Our analysis of the potential threat of squid boat lights to ashy storm-petrels in the Channel Islands concluded that some low level of mortality may occur, but our review of the available information did not indicate that any such mortality would lead to a large-scale population decline and we found that adequate regulatory protections are in place. The threat of an oil spill is greater in the Channel Islands due to a greater concentration of oil producing facilities; however, predicting the possible effects of an oil spill from an offshore energy production platform is difficult and would depend on the timing and amount of a spill, prevailing ocean currents and conditions, and locations of ashy storm-petrels at the time of a spill. Similarly, the threats of plastic ingestion and organochlorine contaminants may occur in both the northern and southern portions of the ashy storm-petrel's range, but these threats are not considered to be significant anywhere within the species' range. Therefore, based on the analysis above, we conclude that neither the ashy storm-petrels on the Southeast Farallon Island or the Channel Islands are in danger of extinction (the second step in determining whether an area is a significant portion of the range), because there is not substantial information to suggest that the ashy storm-petrel in either portion may become an endangered species within the foreseeable future. We request that you submit any new information concerning the status of, or threats to, the ashy storm-petrel to the address listed in the ADDRESSES section of this notice whenever it becomes available. New information will help us monitor this species and encourage its conservation. If an emergency situation develops for this species 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 Arcata Fish and Wildlife Office (see ADDRESSES ). Author The primary authors of this notice are the staff of the Arcata 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: August 11, 2009. Rowan W. Gould, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. E9-19700 Filed 8-18-09; 8:45 am] BILLING CODE 4310-55-S 74 159 Wednesday, August 19, 2009 Notices DEPARTMENT OF AGRICULTURE Food and Nutrition Service Agency Information Collection Activities: Proposed Collection; Comment Request—Form FNS-380-1, Supplemental Nutrition Assistance Program's Quality Control Review Schedule AGENCY: Food and Nutrition Service, USDA. ACTION: Notice. SUMMARY: As required by the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on proposed information collection of Form FNS-380-1, Supplemental Nutrition Assistance Program's Quality Control Review Schedule. The proposed collection is a revision of collection currently approved under OMB No. 0584-0299. DATES: Written comments must be submitted on or before October 19, 2009. ADDRESSES: Comments are invited on:
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
(b)the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(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 those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. *Comments may be sent to:* Tiffany Susan Wilkinson, Program Analyst, Quality Control Branch, Program Accountability and Administration Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 822, Alexandria, VA 22302. You may also download an electronic version of this notice at *http://www.fns.usda.gov/fsp/rules/regulations/default.htm* and comment via e-mail at *SNAPHQ-Web@fns.usda.gov* or use the Federal e-Rulemaking Portal. Go to *http://www.regulations.gov* and follow the online instructions for submitting comments electronically. All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m. Monday through Friday) at 3101 Park Center Drive, Room 822, Alexandria, Virginia 22302. All responses to this notice will be included in the request for Office of Management and Budget approval. All comments will also become a matter of public record. FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the information collection form and instruction should be directed to Tiffany Susan Wilkinson at
(703)305-2410. SUPPLEMENTARY INFORMATION: *Title:* Quality Control Review Schedule. *OMB Number:* 0584-0299. *Expiration Date:* January 31, 2010. *Type of Request:* Revision of a currently approved collection. *Abstract:* FNS 380-1 is the Supplemental Nutrition Assistance Program's
(SNAP)Quality Control
(QC)Review Schedule which collects QC and household characteristics data. The information needed to complete this form is obtained from the SNAP case record and state quality control findings. The information is used to monitor and reduce errors, develop policy strategies, and analyze household characteristic data. We estimate that it takes 1.05 hours per response and .0236 hours per record for recordkeeping to complete the form. The annual reporting burden for this collection is 58,065 hours and the annual recordkeeping burden for this collection is 1,322 hours. Overall, the annual reporting and recordkeeping burden associated with the completion of the FNS 380-1 is being decreased from 61,352 hours to 58,868 hours. This is a 2,484 hour decrease in the current burden, which is a result of the State agencies' reduction in the number of cases being pulled for review over the minimum required review amount. We previously cleared the reporting and recordkeeping burden for this form under Office of Management and Budget
(OMB)clearance number 0584-0299. OMB approved the burden through January 31, 2010. Based on the most recent table of active case sample sizes and completion rates (FY 2007), we estimate 56,065 FNS 380-1 worksheets and interviews will now be completed annually. *Affected Public:* Individuals or Households. *Estimated Number of Reporters:* 56,065 households. *Estimated Number of Reports per Household:* 1. *Estimated Hours per Report:* 1.05 hours. *Total Annual Reporting Burden:* 58,868 hours. *Affected Public:* State or local governments. *Estimated Number of Respondents and Record keepers:* 53 State agencies. *Estimated Total Number of Responses per Year:* 56,065 responses. *Estimated Hours per Reporting Response:* 1.05 hours. *Estimated Number of Records:* 56,065 records. *Estimated Number of Records per Record keeper:* 1,057 records. *Estimated Total Reporting:* 58,868. *Estimated Hours per Recordkeeping:* 0.0236 hour. *Estimated Total Annual Record Keeping Burden:* 1,322 hours. *Total Annual Reporting and Record Keeping Burden:* 60,190 hours. *Estimated Grand Total:* 119,058. Dated: August 11, 2009. Julia Paradis, Administrator, Food and Nutrition Service. [FR Doc. E9-19844 Filed 8-18-09; 8:45 am] BILLING CODE 3410-30-P DEPARTMENT OF AGRICULTURE Forest Service Fresno County Resource Advisory Committee AGENCY: Forest Service, USDA. ACTION: Notice of meeting. SUMMARY: The Fresno County Resource Advisory Committee will be meeting in Clovis, California on September 16th. The purpose of this meeting will be to discuss monitoring of the projects funded through the amended and reauthorized Secure Rural Schools and Community Self-Determination Act of 2000 (Pub. L. 110-343) for expenditure of Payments to States Fresno County Title II funds and to begin discussing the timeline for accepting project applications for the next funding cycle. DATES: The meeting will be held on September 16, 2009 from 6 p.m. to 8 p.m. in Clovis, CA. ADDRESSES: The meeting will be held at the Sierra National Forest Supervisors Office, 1600 Tollhouse Rd. Clovis, CA. Send written comments to Robbin Ekman, Fresno County Resource Advisory Committee Coordinator, c/o Sierra National Forest, High Sierra Ranger District, 29688 Auberry Road, Prather, CA 93651 or electronically to *rekman@fs.fed.us.* FOR FURTHER INFORMATION CONTACT: Robbin Ekman, Fresno County Resource Advisory Committee Coordinator,
(559)855-5355 ext. 3341. SUPPLEMENTARY INFORMATION: The meeting is open to the public. Committee discussion is limited to Forest Service staff and Committee members. However, persons who wish to bring Payments to States Fresno County Title II project matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. Agenda items to be covered include:
(1)Monitoring
(2)Project submission timelines. Dated: August 12, 2009. Ray Porter, District Ranger. [FR Doc. E9-19760 Filed 8-17-09; 8:45 am] BILLING CODE 3410-11-M DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [Docket No. 0612242720-91220-04] Coastal and Estuarine Land Conservation Program—Re-opening of FY 2010 Competition AGENCY: NOS Office of Ocean and Coastal Resource Management (OCRM), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of funding availability; amendment. SUMMARY: NOAA publishes this notice to amend the Federal Funding Opportunity (NOS-OCRM-2010-2001655) entitled “Coastal and Estuarine Land Conservation Program (CELCP)—FY 2010 Competitive List” which was originally announced in the Federal Register on January 2, 2009 (74 FR 82). This notice announces changes to the eligibility criteria, program priorities, and selection criteria to implement the requirements of the Omnibus Public Lands Management Act of 2009 (March 30, 2009). As a result of these changes, the application period for proposals is re-opened to provide eligible states and territories with the opportunity to adjust project proposals to comport with the changes, which are summarized in this notice and more fully described in the full Federal Funding Opportunity
(FFO)Announcement for this competition. DATES: Final Applications must be received by Grants.gov ( *http://www.grants.gov* ) or be delivered to the OCRM office (address listed in this announcement) no later than 6 p.m. EDT on September 18, 2009. No facsimile or electronic mail applications will be accepted. Paper applications delivered after the deadline will not be accepted, regardless of postmark date. Any application received after the deadline will not be considered for funding in this competition. Applications delivered in hard copy will be date and time stamped when they are received. Applications submitted through Grants.gov will have a date and time indication on them. Please Note: It may take Grants.gov up to two
(2)business days to validate or reject the application. Please keep this in mind in developing your submission timeline. ADDRESSES: All application materials can be found at the grants.gov portal at *http://www.grants.gov* or NOAA's CELCP Web site under “Funding Opportunities” ( *http://coastalmanagement.noaa.gov/land/celcp_fundingop.html* ). They may also be requested by contacting the program officials identified below. *To Request an Application Package or for Further Information Contact:* Elaine Vaudreuil
(301)713-3155 ext 103; E-mail: *Elaine.Vaudreuil@noaa.gov;* Fax:
(301)713-4370 or Elisabeth Morgan
(301)713-3155 ext 166; E-mail: *Elisabeth.Morgan@noaa.gov;* Fax:
(301)713-4367. SUPPLEMENTARY INFORMATION: The National Oceanic and Atmospheric Administration (NOAA), National Ocean Service (NOS), announces that it is amending the FY 2010 solicitation for the Coastal and Estuarine Land Conservation Program (CELCP), originally published on January 2, 2009 (74 FR 82), to implement requirements in the Omnibus Public Lands Management Act of 2009, Public Law 111-11 (March 30, 2009). The program makes the following changes to the program requirements: at least 15% of appropriated funds shall now be available for CELCP projects that benefit National Estuarine Research Reserves; the program allows newly-eligible sources of in-kind match, including lands or interests in lands (easements) held by qualified non-governmental organizations and costs associated with lands or easements proposed for use as in-kind match, such as land acquisition expenses, land management planning, remediation, restoration or enhancement, that were not previously eligible; the value of in-kind match properties will now be based on the appraised value of the land or easement at the time of grant closing (which, for the purposes of this competition, valuation should be conducted within the nine months preceding the award expiration date) rather than at the time the property is acquired or donated; applicants must demonstrate that property sellers are willing participants in negotiations for sale of property at a mutually agreeable price; coastal states and territories must now ensure that proposed projects complement working waterfront needs; greater emphasis will be placed on applicants' ability to demonstrate successful leveraging of funds; and NOAA may now select projects from this competition for additional FY 2010 funding requested in the President's Budget as part of EPA's Great Lakes Restoration Initiative, if appropriated. Due to the amendments to the program, the due date for applications is extended until September 18, 2009. It is anticipated that projects funded under this announcement will still have a grant start date between March 1, 2010, and October 1, 2010. Under this amended solicitation, NOS allows for modifications to applications originally received under the initial announcement, and allows new applications for projects from eligible applicants. Any proposal that was submitted to the initial solicitation within the initial deadline is not required to be resubmitted to be considered under this amendment. However, changes to the solicitation announced by this amendment may impact the viability or scoring of proposals submitted by applicants in response to the initial announcement. Applicants may revise proposals to address these changes; however, any revisions to such proposals must be submitted by the new deadline in order for the revised changes to be considered under this amended solicitation. An applicant may submit up to three projects for this competition. The maximum amount that may be requested for the Federal share of each project is $3,000,000. The following sections of that Federal Funding Opportunity have been amended to reflect the changes announced in this notice: “Dates,” “Funding Opportunity Description,” “Award Information,” “Eligibility Information,” “Application and Submission Information”, “Application Review Information,” and “Award Administration Information”. *Electronic Access:* The full text of the full funding opportunity announcement for this program can be accessed via the Grants.gov Web site at *http://www.grants.gov* or NOAA's CELCP Web site under “Funding Opportunities” ( *http://coastalmanagement.noaa.gov/land/celcp_fundingop.html* ). The announcement will also be available by contacting the program officials identified under FOR FURTHER INFORMATION CONTACT. Applicants must comply with all requirements contained in the full funding opportunity announcement. *Statutory Authority:* Public Law 111-11 (March 30, 2009) (formerly 16 U.S.C. l456d). *Funding Availability:* NOAA anticipates that approximately 20-60 projects may be included on a competitively-ranked list of projects that are ready and eligible for funding in FY 2010. Funding for projects is contingent upon availability of Federal appropriations for FY 2010. Applicants are hereby given notice that funds have not yet been appropriated for this program. The FY 2010 President's request for CELCP is $15 million, and the request for EPA's Great Lakes Restoration Initiative includes an additional $5 million for CELCP projects in Great Lakes states. Annual appropriated funding levels for the CELCP have ranged from $8-$50 million from FY 2002-2009. Eligible applicants may submit up to three projects for this competition. The maximum amount that may be requested for the Federal share of each project is $3,000,000. The standard grant award period is 18 months. NOAA may extend the performance period for project grants up to an additional 18 months (for a maximum total performance period of 3 years) if circumstances warrant and if progress on the project is being demonstrated. *CFDA:* 11.419 Coastal Management Administration Awards. *Eligibility:* Only coastal states and territories with a Coastal Zone Management Program or National Estuarine Research Reserve approved under the CZMA and which have submitted a draft CELCP plan on or before February 24, 2009, are eligible to participate in this competition. A list of the status of each state and territory's CELCP plan, including the states and territories eligible for this competition, is available at *http://coastalmanagement.noaa.gov/land/media/CELCPplans_web.pdf.* The designated lead agency for implementing CELCP in each state or territory (“lead agency”) is eligible to submit projects for funding under this competition. A list of lead contacts for each state and territory is available on the CELCP Web site at *http://coastalmanagement.noaa.gov/land/meadia/celcpstateleadcontacts.pdf,* or by contacting the program officials identified in FOR FURTHER INFORMATION CONTACT . The designated lead agency may solicit, and include in their application, project proposals from additional eligible state or territorial agencies, local governments as defined at 15 CFR 24.3, or entities eligible for assistance under section 306A(e) of the CZMA (16 U.S.C. 1455a(e)), provided that each has the authority to acquire and manage land for conservation purposes. Interested parties should contact the appropriate CELCP lead in each state or territory. *Intergovernmental Review:* Applications under this program are subject to Executive Order 12372, “Intergovernmental Review of Federal Programs” for states that participate in this process. A list of the participating states and the clearinghouse points of contact can be found at *http://www.whitehouse.gov/omb/grants/spoc.html.* Limitation of Liability In no event will NOAA or the Department of Commerce be responsible for proposal preparation costs if this program fails to receive funding or is cancelled because of other agency priorities. Publication of this announcement does not oblige NOAA to award any specific project or to obligate any available funds. Recipients and subrecipients are subject to all Federal laws and agency policies, regulations and procedures applicable to Federal financial assistance awards. *National Environmental Policy Act (NEPA):* NEPA and the Council on Environmental Quality
(CEQ)implementing regulations (40 CFR parts 1500 through 1508) require that an environmental analysis be completed for all major Federal actions significantly affecting the environment. NEPA applies to the actions of Federal agencies and may include a Federal agency's decision to fund non-Federal projects under grants and cooperative agreements. Detailed information on NOAA compliance with NEPA can be found at the following NOAA NEPA Web site: *http://nepa.noaa.gov/,* including our NOAA Administrative Order 216-6 for NEPA, *http://www.nepa.noaa.gov/NAO216_6_TOC.ped* and CEQ implementation regulations, *http://ceg.eh.doe.gov/nepa/regs/ceq/toc_ceq.htm.* Consequently, as part of all project application packages, applicants are required to provide detailed information on the activities to be conducted, locations, sites, species and habitat to be affected, possible construction activities, and any environmental concerns that may exist (e.g., the use and disposal of hazardous or toxic chemicals, introduction of non-indigenous species, impacts to endangered and threatened species, aquaculture projects, and impacts to coral reef systems). In addition to providing specific information that will serve as the basis for any required impact analyses, applicants may also be requested to assist NOAA in drafting of an environmental assessment, if NOAA determines an assessment is required. Applicants will also be required to cooperate with NOAA in identifying feasible measures to reduce or avoid any identified adverse environmental impacts of their proposal. The failure to do so shall be grounds for not selecting an application. In some cases if additional information is required after an application is selected, funds can be withheld by the Grants Officer under a special award condition requiring the recipient to submit additional environmental compliance information sufficient to enable NOAA to make an assessment on any impacts that a project may have on the environment. The Department of Commerce Pre-Award Notification Requirements for Grants and Cooperative Agreements contained in the **Federal Register** notice of February 11, 2008 (73 FR 7686) are applicable to this solicitation. *Paperwork Reduction Act:* This collection of information contains requirements subject to the Paperwork Reduction Act (PRA). The use of Standard Forms 424, 424A, 424B and SF-LLL and CD-346 has been approved by the Office of Management and Budget
(OMB)under the respective control numbers 0348-0043, 0348-0044, 0348-0040, 0348-0046 and 0605-0001. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number. *Executive Order 12866:* It has been determined that this notice is not significant for purposes of Executive Order 12866. *Executive Order 13132 (Federalism):* It has been determined that this notice does not contain policies with Federalism implications as that term is defined in Executive Order 13132. *Administrative Procedure Act/Requlatory Flexibility Act:* Prior notice and comment are not required under 5 U.S.C. 553, or any other law, for rules relating to public property, loans, grants, benefits or contracts (5 U.S.C. 553(a)). Because prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. *et seq.* ) are inapplicable. Therefore, a regulatory flexibility analysis is not required and has not been prepared. Dated: August 13, 2009. John H. Dunnigan, Assistant Administrator, National Ocean Service, NOAA. [FR Doc. E9-19821 Filed 8-18-09; 8:45 am] BILLING CODE 3510-22-M DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration ENVIRONMENTAL PROTECTION AGENCY Coastal Nonpoint Pollution Control Program: Approval Decision on the New Jersey Coastal Nonpoint Pollution Control Program AGENCY: National Oceanic and Atmospheric Administration, U.S. Department of Commerce, and Environmental Protection Agency. ACTION: Notice of intent to approve the New Jersey Coastal Nonpoint Program; invitation for public comment. SUMMARY: The National Oceanic and Atmospheric Administration
(NOAA)and Environmental Protection Agency
(EPA)invite public comment on the agencies' intention to fully approve New Jersey's Coastal Nonpoint Source Pollution Control Program. Federal approval of such state programs is required under the Coastal Zone Act Reauthorization Amendments. Final approval would satisfy conditions that the agencies previously identified to the State to ensure conformity with required guidance specifying management measures to protect coastal waters from nonpoint source pollution. DATES: Individuals or organizations wishing to submit comments on the draft decision document should do so by September 18, 2009. ADDRESSES: Comments should be made to: John King, Chief, Coastal Programs Division (N/ORM3), Office of Ocean and Coastal Resource Management, NOS, NOAA, 1305 East-West Highway, Silver Spring, Maryland 20910, phone
(301)713-3155, x188, e-mail *John.King@noaa.gov.* FOR FURTHER INFORMATION CONTACT: Allison Castellan, Coastal Programs Division, (N/ORM3), Office of Ocean and Coastal Resource Management, NOS, NOAA, 1305 East-West Highway, Silver Spring, Maryland 20910, phone
(301)713-3155, x125, e-mail *Allison.Castellan@noaa.gov.* SUPPLEMENTARY INFORMATION: Notice is hereby given of the intent to fully approve the New Jersey Coastal Nonpoint Pollution Control Program (coastal nonpoint program) and of the availability of the draft decision document on conditions for the New Jersey coastal nonpoint program. Section 6217 of the Coastal Zone Act Reauthorization Amendments (CZARA), 16 U.S.C. 1455b, requires States and Territories with coastal zone management programs that have received approval under section 306 of the Coastal Zone Management Act to develop and implement coastal nonpoint programs. Coastal States and Territories were required to submit their coastal nonpoint programs to NOAA and EPA for approval in July 1995. NOAA and EPA conditionally approved the New Jersey coastal nonpoint program on November 18, 1997. NOAA and EPA have drafted a decision document describing how New Jersey has satisfied the conditions placed on its program and therefore has a fully approvable coastal nonpoint program. NOAA and EPA are making the draft decision document for the New Jersey coastal nonpoint program available for a 30-day public comment period. Copies of the draft decision document can be found on the NOAA Web site at *http://coastalmanagement.noaa.gov/czm/16217/findings.html* or may be obtained upon request from: Allison Castellan, Coastal Programs Division (N/ORM3), Office of Ocean and Coastal Resource Management, NOS, NOAA, 1305 East-West Highway, Silver Spring, Maryland 20910, phone
(301)713-3155, x125, e-mail *Allison.Castellan@noaa.gov.* (Federal Domestic Assistance Catalog 11.419 Coastal Zone Management Program Administration) Dated: August 11, 2009. John H. Dunnigan, Assistant Administrator for Ocean Services and Coastal Zone Management, National Oceanic and Atmospheric Administration. July 24, 2009. Michael H. Shapiro, Acting Assistant Administrator, Office of Water, Environmental Protection Agency. [FR Doc. E9-19820 Filed 8-18-09; 8:45 am] BILLING CODE 3510-08-M DEPARTMENT OF COMMERCE International Trade Administration [C-533-839] Carbazole Violet Pigment 23 from India: Extension of Time Limit for Preliminary Results of Countervailing Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. FOR FURTHER INFORMATION CONTACT: Sean Carey or Dana Mermelstein, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington DC 20230; telephone:
(202)482-3964 and
(202)482-1391, respectively. SUPPLEMENTARY INFORMATION: Background On January 27, 2009, in response to a timely request from Alpanil Industries, Ltd. (Alpanil) the Department of Commerce (the Department) initiated an administrative review of the countervailing duty order on carbazole violet pigment 23 (CVP-23) from India. *See Initiation of Antidumping and Countervailing Duty Administrative Reviews* , 74 FR 5821 (February 2, 2009). This administrative review covers the period January 1, 2007 through December 31, 2007. The preliminary results of this administrative review are currently due no later than September 2, 2009. Extension of Time Limit for Preliminary Results Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213(h)(1), the Department shall issue preliminary results in an administrative review of a countervailing duty order within 245 days after the last day of the anniversary month of the order for which the administrative review was requested. However, if the Department determines that it is not practicable to complete the review within the aforementioned specified time limits, section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2) allow the Department to extend the 245-day period to 365 days. Pursuant to section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2), we determine that it is not practicable to complete the results of this review within the original time limit. The Department needs additional time to analyze the supplemental questionnaire responses, which were recently submitted, and to determine whether any additional information is required. In accordance with section 751(a)(3)(A) of the Act, the Department has decided to extend the time limit for the preliminary results from 245 days to 365 days; the preliminary results will now be due no later than December 31, 2009. Unless extended, the final results continue to be due 120 days after the publication of the preliminary results, pursuant to section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(1) of the Department's regulations. This notice is issued and published in accordance with sections 751(a)(3)(A) and 777(i)(1) of the Act. Dated: August 10, 2009. John M. Andersen, Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations. [FR Doc. E9-19923 Filed 8-18-09; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration NOAA Ocean and Coastal Mapping Contracting Policy AGENCY: National Ocean Service, National Oceanic and Atmospheric Administration (NOAA), Department of Commerce. ACTION: Soliciting Public Comments on Draft Revised NOAA Contracting Policy. SUMMARY: The NOAA National Ocean Service
(NOS)is soliciting public comments on the draft NOAA Ocean and Coastal Mapping Contracting Policy. Current NOAA contracting policy and relevant legislation are available for review on the following Web site: *http://www.nauticalcharts.noaa.gov/ocs/hsrp/hsrp.htm.* Written public comments should be submitted to Roger L. Parsons by September 9, 2009. *Date and Time:* Written public comments are due by September 9, 2009. ADDRESSES: Submit written comments by mail, e-mail, or fax to Roger L. Parsons using one of the following:
(1)Mail—Roger L. Parsons, NOAA Office of Coast Survey (N/CS), 1315 East West Highway, Silver Spring, MD 20910;
(2)e-mail— *Roger.L.Parsons@noaa.gov;* or
(3)fax
(301)713-4019. FOR FURTHER INFORMATION CONTACT: Roger L. Parsons, NOAA Office of Coast Survey (N/CS), 1315 East West Highway, Silver Spring, MD 20910; e-mail: *Roger.L.Parsons@noaa.gov;* or phone: 301-713-2776 x205. SUPPLEMENTARY INFORMATION: This is a draft NOAA Ocean and Coastal Mapping Contracting Policy. Current NOAA contracting policy and relevant legislation are available for review on the following Web site: *http://www.nauticalcharts.noaa.gov/ocs/hsrp/hsrp.htm.* Background The current NOAA Hydrographic Services Contracting Policy was published in the **Federal Register** on August 15, 2006. The proposed revision to this contracting policy (Draft NOAA Ocean and Coastal Mapping Contracting Policy) is in response to provisions of the Ocean and Coastal Mapping Integration Act of 2009. Draft NOAA Ocean and Coastal Mapping Contracting Policy The National Oceanic and Atmospheric Administration
(NOAA)recognizes that qualified commercial sources can provide competent, professional, and cost-effective ocean and coastal mapping services, including hydrographic services, to NOAA in support of its diverse surveying, mapping and charting missions. NOAA also recognizes that providing mapping services is a core mission requirement of NOAA under the 1947 Coast and Geodetic Survey Act, Hydrographic Services Improvement Act of 1998 (as amended), and other laws and authorities. In the interest of public and environmental safety and the furtherance of scientific knowledge, the Federal Government's responsibility for executing its ocean and coastal mapping missions is manifest and non-delegable. However, it is incumbent upon NOAA, as recommended by the Hydrographic Services Review Panel, to maintain operational ocean and coastal mapping core capabilities and supplement its operational capacity by contracting for mapping services where appropriate and to the extent of available funding. This policy statement documents the framework and conditions under which contracting will be employed to ensure an open and consistent approach. To support this policy, NOAA will maintain a dialogue with private sector organizations and constituent groups. As defined in the Hydrographic Services Improvement Act, the term “hydrographic services” means the management, maintenance, interpretation, certification, and dissemination of bathymetric, hydrographic, shoreline, geodetic, geospatial, geomagnetic, current information, and tide and water level, including the production of nautical charts, nautical information, data bases, and other products derived from hydrographic data. The term “ocean and coastal mapping” includes hydrographic services and other activities such as coral, benthic habitat, and land cover mapping. It is NOAA's intent to advance contracting and adhere to the principles of this policy to meet its diverse mapping requirements. In general, it is the intent of NOAA to contract for ocean and coastal mapping services when qualified commercial sources exist, when such contracts are determined to be the most cost effective method of conducting these functions, and to the extent funding is available. NOAA will procure ocean and coastal mapping services from qualified sources in accordance with its legal authorities, the Federal Acquisition Regulations (FAR), and the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 541 et seq.). Where required by law or where otherwise deemed appropriate, NOAA will procure the acquisition of hydrographic data 1 in accordance with Title IX of the Federal Property and Administrative Services Act. 2 1 Hydrographic data means information that is acquired through hydrographic, bathymetric, photogrammetric, lidar, radar, remote sensing, or shoreline and other ocean- and coastal-related surveying; geodetic, geospatial, or geomagnetic measurements; tide, water level, and current observations; and is used in providing hydrographic services. 2 Commonly known as the “Brooks Act” or A&E (Architectural or Engineering) contracting services, Title IX contracts are negotiated and awarded on the basis of demonstrated competence and qualifications (qualification-based selections or QBS) as opposed to price. NOAA may determine that a particular surveying or mapping activity is inherently governmental or otherwise not subject to contracting. NOAA surveying and mapping activities not subject to contracting may include, but are not limited to, services necessary to:
(1)Monitor the quality of NOAA products;
(2)promulgate and promote national and international technical standards and specifications;
(3)conduct basic research and development and ensure the rapid transfer of derived technologies to the private sector;
(4)maintain the integrity and accuracy of Federal geodetic and navigational databases;
(5)support coastal stewardship ecosystem applications; and
(6)support Maritime Domain Awareness and Homeland Security preparation and response activities; as well as
(7)services that can only be carried out aboard a NOAA ship or aircraft because the survey platform possesses unique operational capabilities not available in the private sector. To carry out the aforementioned activities and to adequately monitor contracted services, NOAA will maintain core operational surveying and mapping capabilities. To facilitate the leveraging of government mapping resources, NOAA will continue to make its geospatial and hydrographic services contracts available to State and local government entities that have a need for the services provided by these contracts and can provide adequate funding. NOAA may task qualified commercial sources with ocean and coastal mapping services in any part of the U.S. Exclusive Economic Zone, territorial sea, Great Lakes, inland waters, and coastal watersheds for any mission-related purpose. The government's interests in and responsibilities for mapping vary broadly and experience has shown that maintaining flexibility is key to responding to the Nation's changing needs for geospatial data. Ancillary Statements and Actions As recommended by the Hydrographic Services Review Panel, NOAA will continue to utilize a mix of in-house and private-sector resources to accomplish its ocean and coastal mapping missions. Costs and productivity will be monitored within each category ( *i.e.,* public and private) to ensure best use of mapping resources. NOAA will continue to seek the optimal resource allocation between in-house and private-sector resources based on the strength of the governmental interest, the total requirement for ocean and coastal mapping services, and the particular operational capabilities of either government or private-sector resources that may make one more suitable for a given situation. NOAA will continue to examine ways to improve its contracting process, including minimizing the turnover frequency of contracting personnel and reducing the length of time required to award contracts and task orders. NOAA will continue to offer debriefings to successful and unsuccessful contractors after final contractor selection has been made in order to assist contractors with identifying significant weaknesses or deficiencies in their submissions. NOAA will continue with its efforts to establish a Ocean and Coastal Mapping Training Center which, as conceived, will support NOAA's in-house hydrographic and acoustic surveying training requirements. In addition, the Center would provide training to NOAA and private sector contractors in techniques, standards and technologies that support NOAA's many shoreline, coastal and ocean mapping activities. Such training would be beneficial to current or prospective NOAA contractors seeking to improve their capabilities and proposal submissions. Dated: August 5, 2009. Steven R. Barnum, NOAA Director, Office of Coast Survey, National Ocean Service, National Oceanic and Atmospheric Administration. [FR Doc. E9-19819 Filed 8-18-09; 8:45 am] BILLING CODE 3510-JE-P DEPARTMENT OF COMMERCE International Trade Administration [A-580-839] Certain Polyester Staple Fiber from the Republic of Korea: Partial Rescission of Ninth Antidumping Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: August 19, 2009. FOR FURTHER INFORMATION CONTACT: Shelly Atkinson or Brandon Farlander, AD/CVD Operations, Office 1, Import Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone
(202)482-0116 and
(202)482-0182, respectively. SUPPLEMENTARY INFORMATION: On May 1, 2009, the Department issued a notice of opportunity to request an administrative review of this order for the period of review (“POR”) May 1, 2008, through April 30, 2009. *See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review* , 74 FR 20278 (May 1, 2009). On May 29, 2009, Huvis Corporation (“Huvis”) requested an administrative review of its entries that were subject to the antidumping duty order for this period. On that same date, the Department also received a request from Wellman, Inc., DAK Americas LLC, and Invista, S.a.r.L. (collectively, “the petitioners”) for a review of Huvis and Saehan Industries, Inc. (“Saehan”). On June 24, 2009, the Department published the notice of initiation of this antidumping duty administrative review, covering Huvis and Saehan. *See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part* , 74 FR 30052 (June 24, 2009). On July 1, 2009, the petitioners submitted a letter noting that the Department issued a changed circumstances determination on August 20, 2008, and found that Woongjin Chemical Co., Ltd. (“Woongjin”) was the successor-in-interest to Saehan. *See Notice of Final Results of Changed Circumstances Antidumping Duty Review: Certain Polyester Staple Fiber from the Republic of Korea* , 73 FR 49168 (August 20, 2008). At the same time the petitioners clarified that their review request covered entries by Saehan and its successor Woongjin, as shipments may have been made under either name. *See* Letter from the Petitioners, to the Secretary of Commerce, entitled, “Polyester Staple Fiber from Korea,” dated July 1, 2009, at 2 and Attachment 1. On July 14, 2009, the petitioners timely withdrew their review request for Saehan and its successor company, Woongjin. Partial Rescission of Review Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if the party who requested the review withdraws the request within 90 days of the date of publication of the notice of initiation of the requested review. Because the petitioners withdrew their request for review of Saehan and Woongjin within the 90-day period and no other party requested a review of Saehan's or Woongjin's entries, in accordance with 19 CFR 351.213(d)(1), we are rescinding this review with respect to Saehan and Woongjin. The Department intends to issue appropriate assessment instructions directly to the U.S. Customs and Border Protection (“CBP”) 15 days after the publication of this notice. The Department will direct CBP to assess antidumping duties at the cash deposit rate in effect on the date of entry for entries of subject merchandise produced and/or exported by Saehan or Woongjin, during the period May 1, 2008, through April 30, 2009. This notice is published in accordance with section 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4). Dated: August 13, 2009. John M. Andersen, Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations. [FR Doc. E9-19907 Filed 8-18-09; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XQ19 Taking and Importing Marine Mammals: Taking Marine Mammals Incidental to Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active Sonar AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of two Letters of Authorization. SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), as amended, and implementing regulations, notification is hereby given that NMFS has issued two one-year Letters of Authorization
(LOAs)to take marine mammals by harassment incidental to the U.S. Navy's operation of Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) sonar operations to the Chief of Naval Operations, Department of the Navy, 2000 Navy Pentagon, Washington, DC 20350 and persons operating under his authority. DATES: Effective from August 16, 2009, through August 15, 2010. ADDRESSES: Copies of the Navy's April 1, 2009, LOA application letter, the LOAs, the Navy's 2008 annual report and the Navy's 2007 5-Year Comprehensive Report are available by writing to P. Michael Payne, Chief, Permits, Conservation, and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, by telephoning the contact listed here (see FOR FURTHER INFORMATION CONTACT ), or online at: *http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications* . Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address. FOR FURTHER INFORMATION CONTACT: Jeannine Cody, Office of Protected Resources, NMFS
(301)713-2289. SUPPLEMENTARY INFORMATION: Background Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 *et seq.* ) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of marine mammals by U.S. citizens who engage in a military readiness activity if certain findings are made and regulations are issued. Authorization may be granted for periods of 5 years or less if NMFS finds that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for certain subsistence uses. In addition, NMFS must prescribe regulations that include permissible methods of taking and other means effecting the least practicable adverse impact on the species and its habitat, and on the availability of the species for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance. The regulations also must include requirements pertaining to the monitoring and reporting of such taking. Regulations governing the taking of marine mammals incidental to the U.S. Navy's operation of SURTASS LFA sonar were published on August 21, 2007 (72 FR 46846), and remain in effect through August 15, 2012. They are codified at 50 CFR part 216 subpart Q. These regulations include mitigation, monitoring, and reporting requirements for the incidental taking of marine mammals by the SURTASS LFA sonar system. For detailed information on this action, please refer to the August 21, 2007 **Federal Register** Notice and 50 CFR part 216 subpart Q. Summary of LOA Request NMFS received an application from the U.S. Navy for two LOAs, one covering the USNS ABLE (T-AGOS 20) and one covering the USNS IMPECCABLE (T-AGOS 23), under the regulations issued on August 21, 2007 (72 FR 46846). (The R/V Cory Chouest has been retired and has been replaced by the USNS ABLE.) The Navy requested that these LOAs become effective on August 16, 2009. The application requested authorization, for a period not to exceed one year, to take, by harassment, marine mammals incidental to employment of the SURTASS LFA sonar system for training, testing and routine military operations on the aforementioned ships in areas of the North Pacific Ocean. Monitoring and Reporting In compliance with NMFS' 2007 SURTASS LFA sonar regulations, the Navy submitted an annual report for SURTASS LFA sonar operations during 2007-2008. The Navy also submitted a comprehensive report on SURTASS LFA sonar operations and the mitigation and monitoring activities conducted under the LOAs issued under its previous rule for the 2002 through 2007 period. A copy of these reports can be viewed and/or downloaded at: *http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications* . In accordance with the current SURTASS LFA sonar regulations (50 CFR 216.186), the Navy's has submitted classified quarterly mission reports, and its annual report for the 2008-2009 LOA is due on September 30, 2009. Upon receipt, NMFS will post this annual report on the same Internet address. Authorization NMFS has issued two LOAs to the U.S. Navy, authorizing the incidental harassment of marine mammals incidental to operating the two SURTASS LFA sonar systems for training, testing and routine military operations. Issuance of these two LOAs is based on findings, described in the preamble to the final rule (August 21, 2007, 72 FR 46846)) and supported by information contained in the Navy's required reports on SURTASS LFA sonar, that the activities described under these two LOAs will have no more than a negligible impact on marine mammal stocks and will not have an unmitigable adverse impact on the availability of the affected marine mammal stocks for subsistence uses. These LOAs remain valid through August 15, 2010, provided the Navy remains in conformance with the conditions of the regulations and the LOAs, and the mitigation, monitoring, and reporting requirements described in 50 CFR 216.184-216.186 (August 21, 2007, 72 FR 46846) and in the LOAs are undertaken. Dated: August 13, 2009. James H. Lecky, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E9-19873 Filed 8-18-09; 8:45 am] BILLING CODE 3510-22-S CONSUMER PRODUCT SAFETY COMMISSION Notice of Availability of a Statement of Policy: Interpretation and Enforcement of Section 103(a) of the Consumer Product Safety Improvement Act AGENCY: Consumer Product Safety Commission. ACTION: Notice of Availability. SUMMARY: The Consumer Product Safety Commission (“Commission”) is announcing the availability of a document titled, “Statement of Policy: Interpretation and Enforcement of Section 103(a) of the Consumer Product Safety Improvement Act” (“Statement of Policy”). Section 103(a) of the Consumer Product Safety Improvement Act (“CPSIA”) requires manufacturers of children's products to mark their products so that certain identifying information is ascertainable by the manufacturer and the consumer. The Statement of Policy clarifies the Commission's interpretation of certain aspects of the statutory requirement and provides guidance on how the Commission intends to enforce the requirement. ADDRESSES: The Statement of Policy is available from the Commission's Web site at *http://www.cpsc.gov/about/cpsia/sect103policy.pdf* . Copies also may be obtained from the Consumer Product Safety Commission, Office of the Secretary, Room 502, 4330 East-West Highway, Bethesda, Maryland 20814; 301-504-7923. FOR FURTHER INFORMATION CONTACT: Anthony Cooke, Office of the General Counsel, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone
(301)504-7628; *acooke@cpsc.gov.* SUPPLEMENTARY INFORMATION: On August 14, 2008, the CPSIA (Pub. L. 110-314) was enacted. Section 103 of the CPSIA, titled “Tracking Labels for Children's Products,” requires “distinguishing marks” on all children's products that will enable the manufacturer and the ultimate purchaser to “ascertain” certain source and production information. These requirements become effective August 14, 2009. The Commission has prepared a document titled, “Statement of Policy: Interpretation and Enforcement of Section 103(a) of the Consumer Product Safety Improvement Act,” which provides guidance on the Commission's interpretation of the tracking label provision and how the Commission intends to enforce the provision. The Statement of Policy is available on the Commission's Web site at *http://www.cpsc.gov/about/cpsia/sect103policy.pdf* and from the Commission's Office of the Secretary at the location listed in the ADDRESSES section of this notice. Dated: August 13, 2009. Todd Stevenson, Secretary, Consumer Product Safety Commission. [FR Doc. E9-19816 Filed 8-18-09; 8:45 am] BILLING CODE 6355-01-P DEPARTMENT OF DEFENSE Office of the Secretary Defense Acquisition University Board of Visitors Meeting AGENCY: Defense Acquisition University, DoD. ACTION: Notice of meeting. SUMMARY: The next meeting of the Defense Acquisition University
(DAU)Board of Visitors
(BoV)will be held at DAU Midwest Region in Kettering, Ohio. The purpose of this meeting is to report back to the BoV on continuing items of interest. DATES: September 16, 2009 from 0900-1500. ADDRESS: Holiday Inn Dayton Mall, 31 Prestige Plaza Drive, Miamisburg, OH 45342. FOR FURTHER INFORMATION CONTACT: Ms. Christen Goulding at 703-805-5134. SUPPLEMENTARY INFORMATION: The meeting is open to the public; however, because of space limitations, allocation of seating will be made on a first-come, first served basis. Persons desiring to attend the meeting should call Ms. Christen Goulding at 703-805-5134. Dated: August 12, 2009. Patricia L. Toppings, OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. E9-19794 Filed 8-18-09; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF DEFENSE Office of the Secretary Notification of an Open Meeting of the National Defense University Board of Visitors AGENCY: Department of Defense; National Defense University. ACTION: Notice of open meeting. SUMMARY: The National Defense University, Designated Federal Officer, has scheduled a meeting of the Board of Visitors. The National Defense University Board of Visitors is a Federal Advisory Board. The Board meets twice a year in proceedings that are open to the public. DATES: The meeting will be held on November 12 & 13, 2009 from 1130-1700 on the 12th and continuing on the 13th from 0800-1200. ADDRESSES: The Board of Visitors meeting will be held at Building 62, Marshall Hall, Room 155, National Defense University, 300 5th Avenue, Fort McNair, Washington, DC 20319-5066. FOR FURTHER INFORMATION CONTACT: The point of contact for this notice of an open meeting is Jeanette Tolbert @
(202)685-3955, Fax
(202)685-3328 or *TolbertJ@ndu.edu.* SUPPLEMENTARY INFORMATION: The meeting is open to the public; limited space is made available for observers and will be allocated on a first-come, first-serve basis. Dated: August 12, 2009. Patricia L. Toppings, OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. E9-19799 Filed 8-18-09; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID DoD-2009-OS-0128] Privacy Act of 1974; System of Records AGENCY: Office of the Secretary, DoD. ACTION: Notice to delete two Systems of Records. SUMMARY: The Office of the Secretary of Defense is deleting two systems of records notices from its existing inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended. DATES: This proposed action will be effective without further notice on September 18, 2009 unless comments are received which result in a contrary determination. ADDRESSES: Send comments to the Privacy Act Officer, Office of Freedom of Information, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155. FOR FURTHER INFORMATION CONTACT: Mrs. Cindy Allard at
(703)588-6830. SUPPLEMENTARY INFORMATION: The Office of the Secretary of Defense systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the **Federal Register** and are available from the address above. The Office of the Secretary of Defense proposes to delete two system of records notices from its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The proposed deletions are not within the purview of subsection
(r)of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report. Dated: August 12, 2009. Patricia L. Toppings, OSD Federal Register Liaison Officer, Department of Defense. Deletions: WUSU 06, USUHS Family Practice Medical Records (February 22, 1993, 58 FR 10920). Reason Based on the review of WUSU 06, and discussion with the system manager and HA Privacy POC, it has been concluded that the USUHS Family Practice Medical Records are covered under the umbrella SORN, DHA 07 (Military Health Information System). HA/GC supports the determination to delete WUSU 06. DWHS P20, Report of Personnel Assigned Outside of Department of Defense (February 22, 1993, 58 FR 10227). Reason Review of DWHS P20, and a discussion with the program manager, revealed that no PII is solicited in the process and that records are not retrieved by name. This collection of information is not a Privacy Act system of records and does not require a system of records notice; therefore, DWHS P20 can be deleted. [FR Doc. E9-19864 Filed 8-18-09; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID DoD-2009-OS-0129] Privacy Act of 1974; Systems of Records AGENCY: National Security Agency/Central Security Service, DoD. ACTION: Notice to Amend a System of Records. SUMMARY: The National Security Agency
(NSA)is proposing to amend a system of records notice in its inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended. DATES: This proposed action will be effective without further notice on September 18, 2009 unless comments are received which would result in a contrary determination. ADDRESSES: Send comments to the National Security Agency/Central Security Service, Freedom of Information Act and Privacy Act Office, 9800 Savage Road, Suite 6248, Ft. George G. Meade, MD 20755-6248. FOR FURTHER INFORMATION CONTACT: Ms. Anne Hill at
(301)688-6527. SUPPLEMENTARY INFORMATION: The National Security Agency's system of notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the **Federal Register** and are available from the address above. The specific changes to the records system being amended are set forth below followed by the notices, as amended, published in their entirety. The proposed amendments are not within the purview of subsection
(r)of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report. Dated: August 12, 2009. Patricia L. Toppings, OSD Federal Register Liaison Officer, Department of Defense. GNSA 14 System Name: NSA/CSS Library Patron File Control System (February 22, 1993, 58 FR 10531). Changes: Categories of records in the system: Delete entry and replace with “File consists of borrower's name, Standard Identifier (SID), work organization, work telephone number, contracting sponsor's name, and library materials borrowed”. Authority for maintenance of the system: Delete entry and replace with “Section 10 of the National Security Agency Act of 1959, Public Law 86-36 (50 U.S.C. 402 note).” Storage: Delete entry and replace with “Electronic storage media.” Retrievability: Delete entry and replace with “By name, Standard Identifier (SID), or by title of the library material borrowed.” Safeguards: Delete entry and replace with “Buildings are secured by a series of guarded pedestrian gates and checkpoints. Access to facilities is limited to security-cleared personnel and escorted visitors only. Access to electronic records is limited and controlled by computer password protection.” System manager(s) and address: Delete entry and replace with “Chief, Advanced Intelligence Research Services, National Security Agency/Central Security Service, Ft. George G. Meade, MD 20755-6000.” Notification procedure: Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the National Security Agency/Central Security Service, Freedom of Information Act/Privacy Act Office, 9800 Savage Road, Ft. George G. Meade, MD 20755-6000. Written inquiries should contain the individual's full name, and mailing address.” Record access procedures: Delete entry and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to the National Security Agency/Central Security Service, Freedom of Information Act/Privacy Act Office, 9800 Savage Road, Ft. George G. Meade, MD 20755-6000. Written inquiries should contain the individual's full name, and mailing address.” Contesting record procedures: Delete entry and replace with “The NSA/CSS rules for contesting contents and appealing initial determinations are published at 32 CFR part 322 or may be obtained by written request addressed to the National Security Agency/Central Security Service, Freedom of Information Act/Privacy Act Office, 9800 Savage Road, Ft. George G. Meade, MD 20755-6000.” Record Source categories; Delete entry and replace with “Contents of the record are obtained from the individual borrower and from the Searchlight database.” GNSA 14 System name: NSA/CSS Library Patron File Control System System location: National Security Agency/Central Security Service, Ft. George G. Meade, MD 20755-6000. Categories of individuals covered by the system: Borrowers of library materials from NSA/CSS libraries. Categories of records in the system: File consists of borrower's name, Standard Identifier (SID), work organization, work telephone number, contracting sponsor's name, and library materials borrowed. Authority for maintenance of the system: Section 10 of the National Security Agency Act of 1959, Public Law 86-36 (50 U.S.C. 402 note). Purpose(s): To track and administer the use of NSA/CSS library materials. Routine uses of records maintained in the system, including categories of users and the purposes of such uses: In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows: The `DoD Blanket Routine Uses' set forth at the beginning of the NSA/CSS' compilation of systems of records notices apply to this system. Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system: Storage: Electronic storage media. Retrievability: By name, Standard Identifier (SID), or by title of the library material borrowed. Safeguards: Buildings are secured by a series of guarded pedestrian gates and checkpoints. Access to facilities is limited to security-cleared personnel and escorted visitors only. Access to electronic records is limited and controlled by computer password protection. Retention and disposal: Once a borrower has registered with the library, the borrower remains registered until he/she leaves the Agency. Disposal of records is accomplished by deletion from the database. System manager(s) and address: Chief, Advanced Intelligence Research Services, National Security Agency/Central Security Service, Ft. George G. Meade, MD 20755-6000. Notification procedure: Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the National Security Agency/Central Security Service, Freedom of Information Act/Privacy Act Office, 9800 Savage Road, Ft. George G. Meade, MD 20755-6000. Written inquiries should contain the individual's full name, and mailing address. Record access procedures: Individuals seeking access to information about themselves contained in this system should address written inquiries to the National Security Agency/Central Security Service, Freedom of Information Act/Privacy Act Office, 9800 Savage Road, Ft. George G. Meade, MD 20755-6000. Written inquiries should contain the individual's full name, and mailing address. Contesting record procedures: The NSA/CSS rules for contesting contents and appealing initial determinations are published at 32 CFR part 322 or may be obtained by written request addressed to the National Security Agency/Central Security Service, Freedom of Information Act/Privacy Act Office, 9800 Savage Road, Ft. George G. Meade, MD 20755-6000. Record source categories: Contents of the record are obtained from the individual borrower and from the Searchlight database. Exemptions claimed for the system: Portions of this file may be exempt under 5 U.S.C. 552a(k)(4), as applicable. An exemption rule for this record system has been promulgated according to the requirements of 5 U.S.C. 553(b)(1), (2), and (3),
(c)and
(e)and published in 32 CFR part 322. For additional information contact the system manager. [FR Doc. E9-19868 Filed 8-18-09; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID DoD-2009-OS-0126] Privacy Act of 1974; System of Records AGENCY: Office of the Secretary, DoD. ACTION: Notice to Alter a System of Records. SUMMARY: The Office of the Secretary of Defense proposes to alter a system of records to its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. DATES: This proposed action would be effective without further notice on September 18, 2009 unless comments are received which result in a contrary determination. ADDRESSES: Send comments to Chief, OSD/JS Privacy Office, Freedom of Information Directorate, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155. FOR FURTHER INFORMATION CONTACT: Ms. Cindy Allard at
(703)588-6830. SUPPLEMENTARY INFORMATION: The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the **Federal Register** and are available from the address above. The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on August 5, 2009, to the House Committee on Oversight and Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget
(OMB)pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, `Federal Agency Responsibilities for Maintaining Records About Individuals,' dated February 8, 1996 (February 20, 1996, 61 FR 6427). Dated: August 12, 2009. Patricia L. Toppings, OSD Federal Register Liaison Officer, Department of Defense. DWHS E06 System name: Correspondence Control System (July 2, 2009, 74 FR 31712) Changes: System name: Delete entry and replace with “Enterprise Correspondence Control System (ECCS).” Categories of individuals covered by the system: Delete existing entry and replace with “Members of the public who initiated communications with the Office of the Secretary of Defense and Department of Defense personnel (uniformed or civilian) for whom workforce and/or organizational actions are processed and coordinated in the Enterprise Correspondence Control System.” Categories of records in the system: Delete entry and replace with “Name, Social Security Number (SSN), date and place of birth, pay grade, salary and contact information (mailing address, telephone number, fax number, email address). Inquiries and other communications pertaining to any matter under the cognizance of the Office of the Secretary of Defense. Record types may include, but are not limited to, complaints, appeals, grievances; personnel actions, assignment requests, awards, nominations and presidential support letters; condolence letters, retirement letters, letters of appreciation, Senior Executive Service letters and pay adjustments; certificates, Secretary of Defense and OSD Component letters of appreciation; travel requests and military airlift requests; evaluative data; actions taken and responses from the Secretary to the President, White House staff, other Cabinet officials, Congress, state, local officials, and corporate officials; and similar documents.” Authority for maintenance of the system: Delete existing entry and replace with “5 U.S.C. 301, Departmental Regulations; DoD Directive 5110.4, Washington Headquarters Services (WHS); and E.O. 9397 (SSN), as amended.” Purpose(s): Delete existing entry and replace with “The Enterprise Correspondence Control System
(ECCS)comprises two sub-systems (the Correspondence Control System
(CCS)and the Staff Action Control and Coordination Portal (SACCP)). CCS supports the Secretary of Defense by tracking actions taken and responses from the Secretary to the President, White House staff, other Cabinet officials, Congress, state and local officials, corporate officials, members of the Department of Defense and the public. SACCP is used by Component Offices of the Secretary of Defense to facilitate and control the processing and coordination of workforce and/or organizational actions to, from, and within components in conduct of official daily business.” DWHS E06 System name: Enterprise Correspondence Control System (ECCS). System location: Correspondence Control Division, Executive Services Directorate, Washington Headquarters Services, Room 3C843, 1155 Defense Pentagon, Washington, DC 20301-1155. Categories of individuals covered by the system: Members of the public who initiated communications with the Office of the Secretary of Defense and Department of Defense personnel (uniformed or civilian) for whom workforce and/or organizational actions are processed and coordinated in the Enterprise Correspondence Control System. Categories of records in the system: Name, Social Security Number (SSN), date and place of birth, pay grade, salary and contact information (mailing address, telephone number, fax number, email address). Inquiries and other communications pertaining to any matter under the cognizance of the Office of the Secretary of Defense. Record types may include, but are not limited to, complaints, appeals, grievances; personnel actions, assignment requests, awards, nominations and presidential support letters; condolence letters, retirement letters, letters of appreciation, Senior Executive Service letters and pay adjustments; certificates, Secretary of Defense and OSD Component letters of appreciation; travel requests and military airlift requests; evaluative data; actions taken and responses from the Secretary to the President, White House staff, other Cabinet officials, Congress, state, local officials, and corporate officials; and similar documents. Authority for maintenance of the system: 5 U.S.C. 301, Departmental Regulations; DoD Directive 5110.4, Washington Headquarters Services (WHS); and E.O. 9397 (SSN), as amended. Purpose(s): The Enterprise Correspondence Control System
(ECCS)comprises two sub-systems (the Correspondence Control System
(CCS)and the Staff Action Control and Coordination Portal (SACCP)). CCS supports the Secretary of Defense by tracking actions taken and responses from the Secretary to the President, White House staff, other Cabinet officials, Congress, state and local officials, corporate officials, members of the Department of Defense and the public. SACCP is used by Component Offices of the Secretary of Defense to facilitate and control the processing and coordination of workforce and/or organizational actions to, from, and within components in conduct of official daily business. Routine uses of records maintained in the system, including categories of users and the purposes of such uses: In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records may specifically be disclosed outside the Department of Defense as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows: The DoD `Blanket Routine Uses' set forth at the beginning of the OSD's compilation of systems of records notices apply to this system. Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system: Storage: Maintained in paper files and electronic storage media. Retrievability: Last name and first name initial of the individual, subject and date of the document. Safeguards: Records are maintained in a controlled facility. Physical entry is restricted by the use of locks, guards, and is accessible only to authorized personnel. Access to records is limited to person(s) responsible for servicing the record in performance of their official duties and who are properly screened and cleared for need-to-know. Access to computerized data is restricted by Common Access Card (CAC). Retention and disposal: Records are cut off annually and destroyed when 7 years old. System manager(s) and address: Chief, Correspondence Control Division, Executive Services Directorate, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155. Notification procedure: Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Chief, Correspondence Control Division, Executive Services Directorate, Washington Headquarters Services, Room 3C843, 1155 Defense Pentagon, Washington, DC 20301-1155. The requests should contain the individual's last name, first name initial, subject and document date. Record access procedures: Individuals seeking access to records about themselves contained in this system of records should address written inquiries to the Office of the Secretary of Defense/Joint Staff Freedom of Information Act, Requester Service Center, Office of Freedom of Information, 1155 Defense Pentagon, Washington, DC 20301-1155. Individuals should provide the name and number of this system of records notice, the individual's last name, first name initial, subject, date of document and be signed. Contesting record procedures: The Office of the Secretary of Defense rules for accessing records, for contesting contents and appealing initial agency determinations are published in Office of the Secretary of Defense Administrative Instruction 81; 32 CFR part 311; or may be obtained from the system manager. Record source categories: Individuals and those writing on their behalf, and official records. Exemptions claimed for the system: During the course of preparing a response to some types of incoming communications from the public, exempt materials from other systems of records may in turn become part of the case records in this system. To the extent that copies of exempt records from those `other' systems of records are entered into this correspondence case record, the Office of the Secretary of Defense hereby claims the same exemptions for the records from those `other' systems that are entered into this system, as claimed for the original primary systems of records which they are a part. Records are only exempt from pertinent provisions of 5 U.S.C. 552a to the extent such provisions have been identified and an exemption claimed for the original record and the purposes underlying the exemption for the original record still pertain to the record which is now contained in this system of records. In general, the exemptions were claimed in order to protect properly classified information relating to national defense and foreign policy, to avoid interference during the conduct of criminal, civil, or administrative actions or investigations, to ensure protective services provided the President and others are not compromised, to protect the identity of confidential sources incident to Federal employment, military service, contract, and security clearance determinations, to preserve the confidentiality and integrity of Federal testing materials, and to safeguard evaluation materials used for military promotions when furnished by a confidential source. The exemption rule for the original records will identify the specific reasons why the records are exempt from specific provisions of 5 U.S.C. 552a. An exemption rule for this system has been promulgated in accordance with requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c), and
(e)and published in 32 CFR part 311. For additional information contact the system manager. [FR Doc. E9-19867 Filed 8-18-09; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID DoD-2009-OS-0130] Privacy Act of 1974; Systems of Records AGENCY: National Security Agency/Central Security Service, DoD. ACTION: Notice to add a System of Records. SUMMARY: The National Security Agency/Central Security Service proposes to add a system of records notices in its inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended. DATES: This proposed action will be effective without further notice on September 18, 2009 unless comments are received which would result in a contrary determination. ADDRESSES: Send comments to the National Security Agency/Central Security Service, Freedom of Information Act and Privacy Act Office, 9800 Savage Road, Suite 6248, Ft. George G. Meade, MD 20755-6248. FOR FURTHER INFORMATION CONTACT: Ms. Anne Hill at
(301)688-6527. SUPPLEMENTARY INFORMATION: The National Security Agency's record system notices for records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the **Federal Register** and are available from the address above. The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on August 12, 2009, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget
(OMB)pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, `Federal Agency Responsibilities for Maintaining Records About Individuals,' dated August 09, 2009 61 FR 6427). Dated: August 12, 2009. Patricia L. Toppings, OSD Federal Register Liaison Officer, Department of Defense. GNSA 26 System Name: NSA/CSS Accounts Receivable, Indebtedness and Claims. System location: National Security Agency/Central Security Service, 9800 Savage Road, Ft. George G. Meade, MD 20755-6000. Categories of individuals covered by the system: Current and former civilian employees, current and former military assignees, dependents of employees, military assignees, and other individuals who may be indebted to the National Security Agency/Central Security Service (NSA/CSS),another government agency, or have a claim pending against NSA/CSS. Categories of records in the system: Records maintained in this system include documentation pertaining to telephone bills; dishonored checks; erroneous payments; property losses and damages; administratively determined indebtedness; cash collection vouchers; correspondence from or to the debtor or claimant; applications for waiver of erroneous payments or for remission of indebtedness with supporting documentation; claims of individuals requesting additional payments with supporting documentation; and litigation records or reports from probate courts and bankruptcy courts. Records may contain names, Social Security Numbers (SSNs), debt amounts, interest and penalty amounts, debt reasons, debt status, demographic information, such as grade or rank, sex, date of birth, duty and home address, and any other information necessary to identity the individual, the amount, and the history of the claim or debt. Authority for maintenance of the system: 5 U.S.C. Chapter 55, subchapter II, Pay Administration, Withholding Pay; 31 U.S.C. Chapter 35, Accounting and Collection; 31 U.S.C. Chapter 37, Claims; 31 CFR Part 285, Debt Collection Authorities Under the Debt Collection Improvement Act of 1996; 31 CFR 31, Parts 900-904, Federal Claims Collection Standards, and E.O. 9397 (SSN), as amended. Purpose(s): To support the NSA/CSS debt management program in identifying, recovering, and collecting debts owed by individuals to the U.S. government, as appropriate. To manage, evaluate and process claims against NSA/CSS. Also used as a management tool for statistical analysis, tracking, reporting, evaluating program effectiveness and conducting research. Routine uses of records maintained in the system, including categories of users and the purposes of such uses: In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows: To the U.S. Government Accountability Office, the U.S. Department of Justice, Internal Revenue Service, U.S. Department of the Treasury, or other federal agencies for further collection action on any delinquent account when circumstances warrant. To any entity or individual under contract with NSA/CSS for the purpose of providing debt management related services. To the U.S. Department of Treasury
(DOT)for centralized administrative or salary offset, including the offset of federal income tax refunds, for the purpose of collecting debts owed the U.S. Government; to the DOT contracted private collection agencies for the purpose of obtaining collection services, including administrative wage garnishment in accordance with the Debt collection Improvement Act of 1996 (Pub. L. 104-134) to recover moneys owed to the U.S. Government. To any party, counsel, representative, and/or witness, in any legal proceeding, where pertinent, to which DoD is a party before a court or administrative body including, the Equal Employment Opportunity Commission and Merit System Protection Board. The DoD `Blanket Routine Uses' published at the beginning of the NSA/CSS's compilation of record systems also apply to this record system. Disclosure to consumer reporting agencies: Disclosures pursuant to 5 U.S.C. 552a(b)(12) may be made from this system to “consumer reporting agencies” as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f) or the Federal claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)). The purpose of such disclosures is to aid in the collection of outstanding debts owed to the Federal Government. The disclosures typically provide an incentive for debtors to repay delinquent Federal Government debts by making these debts part of their credit records. All disclosures are limited to information necessary to establish the identity of the individual, including name, address, and taxpayer identification number (Social Security Number (SSN)); the amount, status, and history of the claim, and the agency or program under which the claim arose for the sole purpose of allowing the consumer reporting agency to prepare a commercial credit report. Any such disclosures will only be made after the procedural requirement of 31 U.S.C. 3711(f), Collection and Compromise has been followed. Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system: Storage: Paper records in file folders and electronic storage media. Retrievability: By Name, Social Security Number (SSN). Safeguards: Buildings are secured by a series of guarded pedestrian gates and checkpoints. Access to facilities is limited to security-cleared personnel and escorted visitors only. Within the facilities themselves, access to paper and computer printouts are controlled by limited-access facilities and lockable containers. Access to electronic means is controlled by computer password protection. Retention and disposal: Records relating to claims and the waiver of claims against the United States are retained for 6 years and 3 months and then destroyed. Records relating to claims due to the United States paid in full are retained 6 years and 3 months and then destroyed. Records relating to claims that are affected by a court order or that are subject to litigation are destroyed when the court order is lifted, litigation is concluded or when 6 years and 3 months old, whichever is later. All records are destroyed by pulping, burning, shredding, or erasure or destruction of magnet medial. System manager(s) and address: Chief, Accounts Receivable, National Security Agency/Central Security Service, 9800 Savage Road, Ft. George G. Meade, MD 20755-6000. Notification procedure: Individuals seeking to determine if records about themselves are contained in this record system should address written inquiries to the National Security Agency/Central Security Service, Freedom of Information Act/Privacy Act Office, 9800 Savage Road, Suite 6248, Ft. George G. Meade, MD 20755-6248. Written inquires should include individual's full name, address, and telephone number. Record access procedures: Individuals seeking access to records about themselves contained in this record system should address written inquiries to the National Security Agency/Central Security Service, Freedom of Information Act/Privacy Act Office, 9800 Savage Road, Suite 6248, Ft. George G. Meade, MD 20755-6248. Written inquires should include individual's full name, address, and telephone number. Contesting record procedures: The NSA/CSS rules for contesting contents and appealing initial determinations are published at 32 CFR part 322 or may be obtained by written request addressed to the National Security Agency/Central Security Service, Freedom of Information Act/Privacy Act Office, Suite 6248, Ft. George G. Meade, MD 20755-6248. Record source categories: Information is collected from the individual and the individual's supervisor, the hiring activity's personnel office and/or finance office, and from travel and expense forms. Exemptions claimed for the system: Investigatory material compiled for law enforcement purposes, other than material within the scope of subsection 5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to the information exempt to the extent that disclosure would reveal the identity of a confidential source. NOTE: When claimed, this exemption allows limited protection of investigative reports maintained in a system of records used in personnel or administrative actions. Records maintained solely for statistical research or program evaluation purposes and which are not used to make decisions on the rights, benefits, or entitlement of an individual except for census records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant to 5 U.S.C. 552a(k)(4). An exemption rule for this record system has been promulgated according to the requirements of 5 U.S.C. 553(b)(1), (2), and (3),
(c)and
(e)and published in 32 CFR part 322. For additional information contact the system manager. [FR Doc. E9-19866 Filed 8-18-09; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID DoD-2009-OS-0131] Privacy Act of 1974; System of Records AGENCY: Defense Intelligence Agency, DoD. ACTION: Notice to alter a system of records. SUMMARY: The Defense Intelligence Agency is proposing to alter a system of records in its existing inventory of records systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended. DATES: The proposed action will be effective on September 18, 2009 unless comments are received that would result in a contrary determination. ADDRESSES: Freedom of Information Office, Defense Intelligence Agency (DAN-1A), 200 MacDill Blvd., Washington, DC 20340-5100. FOR FURTHER INFORMATION CONTACT: Ms. Theresa Lowery at
(202)231-1193. SUPPLEMENTARY INFORMATION: The Defense Intelligence Agency system of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the **Federal Register** and are available from the address above. The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on August 12, 2009, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget
(OMB)pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, `Federal Agency Responsibilities for Maintaining Records About Individuals,' dated February 8, 1996 (February 20, 1996, 61 FR 6427). Dated: August 12, 2009. Patricia L. Toppings, OSD Federal Register Liaison Officer, Department of Defense. LDIA 05-0001 System name: Human Resources Management System
(HRMS)(March 6, 2008, 73 FR 12146). Changes: Routine uses of records maintained in the system, including categories of users and the purposes of such uses: Add routine use “To the Office of the Director of National Intelligence
(ODNI)for Intelligence Community-aggregrate workforce planning, analysis and reporting purposes. Records provided to the ODNI for this routine use will not include any individual's name or Social Security Number (SSN).” LDIA 05-0001 System name: Human Resources Management System (HRMS). System location: Defense Intelligence Agency, Washington, DC 20340-0001. Categories of individuals covered by the system: Current and former military and civilian personnel employed by or temporarily assigned to the DIA; current and former contract personnel; current and former civilian dependents, current and former military dependents assigned to the Defense Attaché System; and individuals applying for possible employment. DoD military, civilian, or contractor personnel nominated for security clearance/SCI access by DIA, and other DoD agencies and offices. Categories of records in the system: Records include, but are not limited to employment, security, education, training & career development, organizational and administrative information such as employee name, Social Security Number (SSN), addresses, phone numbers, emergency contacts and employee identification number, etc. Authority for maintenance of the system: The National Security Act of 1947, as amended, (50 U.S.C. 401 *et seq.* ); 10 U.S.C. 113, Secretary of Defense; 5 U.S.C. 301, Departmental Regulations; 44 U.S.C. 3102, Establishment of program of management; and E.O. 9397 (SSN), as amended. Purpose(s): To collect employment and related information to perform numerous administrative tasks, to include preparing, submitting, and approving official personnel actions; personnel appraisals; and making decisions on benefits & entitlements. HRMS provides a central, official data source for the production of work force demographics, reports, rosters, statistical analysis, and documentation/studies. Routine uses of records maintained in the system, including categories of users and the purposes of such uses: In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the Department of Defense as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows: The DoD `Blanket Routine Uses' set forth at the beginning of the Defense Intelligence Agency's compilation of systems of records notices apply to this system. To the Office of the Director of National Intelligence
(ODNI)for Intelligence Community-aggregrate workforce planning, analysis and reporting purposes. Records provided to the ODNI for this routine use will not include any individual's name or Social Security Number (SSN). Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system: Storage: Paper and electronic storage media. Retrievability: Name and employee identification number. Safeguards: The server hosting HRMS is located in a secure area under employee supervision 24/7. Records are maintained and accessed by authorized personnel via Defense Intelligence Agency's internal, classified network. These personnel are properly screened, cleared and trained in the protection of privacy information. Retention and disposal: Disposition pending (until the National Archives and Records Administration has approved retention and disposition of these records, treat as permanent). System manager(s) and address: Defense Intelligence Agency, Directorate of Human Capital, Office for Human Capital Online Services. Notification procedure: Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to the Freedom of Information Office, Defense Intelligence Agency (DAN-1A), 200 MacDill Blvd., Washington, DC 20340-5100. Individuals should provide their full name, current address, telephone number and Social Security Number (SSN). Record access procedures: Individuals seeking access to information about themselves, contained in this system of records, should address written inquiries to the Freedom of Information Office, Defense Intelligence Agency (DAN-1A), 200 MacDill Blvd., Washington, DC 20340-5100. Individuals should provide their full name, current address, telephone number and Social Security Number. Contesting record procedures: Defense Intelligence Agency's rules for accessing records, for contesting contents and appealing initial agency determinations are published in DIA Regulation 12-12 “Defense Intelligence Agency Privacy Program”; 32 CFR part 319—Defense Intelligence Agency Privacy Program; or may be obtained from the system manager. Record Source Categories: Agency officials, employees, educational institutions, parent Service of individual and immediate supervisor on station, and other Government officials. Exemptions claimed for the system: None. [FR Doc. E9-19870 Filed 8-18-09; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID DoD-2009-OS-0127] Privacy Act of 1974; System of Records Agency: Office of the Secretary, DoD. Action: Notice to delete five systems of records. SUMMARY: The Office of the Secretary of Defense is deleting five systems of records notices in its existing inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended. DATES: This proposed action will be effective without further notice on September 18, 2009 unless comments are received which result in a contrary determination. ADDRESSES: Send comments to the Privacy Act Officer, Office of Freedom of Information, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155. FOR FURTHER INFORMATION CONTACT: Mrs. Cindy Allard at
(703)588-6830. SUPPLEMENTARY INFORMATION: The Office of the Secretary of Defense systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the **Federal Register** and are available from the address above. The Office of the Secretary of Defense proposes to delete five systems of records notices from its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The proposed deletions are not within the purview of subsection
(r)of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report. Dated: August 12, 2009. Patricia L. Toppings, OSD Federal Register Liaison Officer, Department of Defense. DMDC 09 Deletions: Archival Purchase Card File (February 19, 2008, 73 FR 9100). Reason: Based on review of DMDC 09, it has been concluded that this system is covered by GSA/Govt 6, GSA SmartPay Purchase Charge Card Program, a government umbrella system, and can therefore be deleted. DMDC 06 Federal Creditor Agency Debt Collection Data Base (October 2, 2007, 72 FR 56069) Reason: Based on review of DMDC 06, it has been concluded that this system is no longer maintained. It has been confirmed that all past records have been deleted in accordance with established OSD records instructions and that the Federal Creditor Agency Debt Collection Data Base program is no longer in use at DMDC. WUSU 15 USUHS Security Status Master List (February 22, 1993, 58 FR 10920). Reason: Based on review of WUSU 15, it has been concluded that this system is covered by DSS V5-05, Joint Personnel Adjudication System, a DoD umbrella system and can therefore be deleted. WUSU 02 Uniformed Services University of the Health Sciences (USUHS) Payroll System (February 22, 1993, 58 FR 10920). Reason: Based on review of WUSU 02, it has been concluded that this system is covered under a DoD umbrella SORN, T7335, Defense Civilian Payroll System
(DFAS)and can therefore be deleted. DMDC 03 Defense Outreach Referral System
(DORS)(October 2, 2007, 72 FR 56066). Reason: Based on review of DMDC 03, it has been concluded that this system is no longer maintained. It has been confirmed that all past records have been deleted in accordance with established DoD records instructions and that the Defense Outreach Referral System program is no longer in use at DMDC. [FR Doc. E9-19874 Filed 8-18-09; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID DoD-2009-OS-0125] Privacy Act of 1974; Systems of Records AGENCY: Defense Finance and Accounting Service, DoD. ACTION: Notice to Amend a System of Records. SUMMARY: The Defense Finance and Accounting Service
(DFAS)is proposing to amend a system of records notice in its inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended. DATES: This proposed action will be effective without further notice on September 18, 2009 unless comments are received which would result in a contrary determination. ADDRESSES: Send comments to the Defense Finance and Accounting Service, FOIA/PA Program Manager, Corporate Communications and Legislative Liaison, 8899 E. 56th Street, Indianapolis, IN 46249-0150. FOR FURTHER INFORMATION CONTACT: Ms. Linda Krabbenhoft at
(303)589-3510. SUPPLEMENTARY INFORMATION: The Defense Finance and Accounting Service systems of notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the **Federal Register** and are available from the address above. The specific changes to the records systems being amended are set forth below followed by the notices, as amended, published in their entirety. The proposed amendments are not within the purview of subsection
(r)of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report. Dated: August 12, 2009. Patricia L. Toppings, OSD Federal Register Liaison Officer, Department of Defense. T7206 System name: General Accounting and Finance System—Base Level (GAFS-BL) (August 13, 2007, 72 FR 45232). Changes: Change system ID to “T7206a”. T7206a System name: General Accounting and Finance System—Base Level (GAFS-BL). System location: Defense Information Systems Agency, Defense Enterprise Computing Center, Ogden, 7879 Wardleigh Road, Hill Air Force Base, Utah 84058-5997. Defense Finance and Accounting Service, DFAS-Denver, 6760 E. Irvington Place, Denver, CO 80279-8000. Defense Finance and Accounting Service, DFAS-Limestone, 27 Arkansas Road, Limestone ME 04751-1500. Defense Finance and Accounting Service, DFAS-Japan, Building 206 Unit 5220, APO AP 96328-5220. Defense Finance and Accounting Service, DFAS-Columbus, 3990 East Broad St, Columbus, OH 43213-1152. Defense Finance and Accounting Service, DFAS-Pacific, 477 Essex Street, Pearl Harbor, HI 96860-5806. Air Force Bases—For list of Air Force Bases, contact DFAS-Omaha, (DFAS-AD/OM), Post Office Box 7030, Bellevue NE 68005-1930. Categories of individuals covered by the system: Active and Reserve duty United States Air Force (USAF), Army, Navy, Marine Corps, guard members, Defense Security Service and National Geospatial-Intelligence Agency civilian employees, Department of Defense
(DoD)civilian employees, and other Federal civilian employees paid by appropriated funds and whose pay is processed by the Defense Finance and Accounting Service. Categories of records in the system: Social Security Number (SSN), financial status reports, and appropriation for processing accounting transactions. Authority for maintenance of the system: 5 U.S.C. 301, Departmental Regulations; Department of Defense Financial Management Regulation (DoDFMR) 7000.14-R Vol. 4; 31 U.S.C. Sections 3511, and 3513; and E.O. 9397 (SSN), as amended. Purpose(s): For use in tracking the budget execution of appropriated funds. It will contain accounting records for funding authority, commitments, obligations, and provides balances of available funds. The system will produce monthly financial status reports and receive transaction and payment data from the Defense Travel System (DTS). Routine uses of records maintained in the system, including categories of users and the purposes of such uses: In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows: The DoD ‘Blanket Routine Uses' published at the beginning of the DoD compilation of systems of records notices apply to this system. Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system: Storage: Paper records in file folders and electronic storage media. Retrievability: Social Security Number (SSN). Safeguards: Records are stored in an office building protected by guards, controlled screening, use of visitor registers, electronic access, and/or locks. Access to records is limited to authorized individuals who are properly screened and cleared on a need-to-know basis in the performance of their duties. Passwords and digital signatures are used to control access to the system data, and procedures are in place to deter and detect browsing and unauthorized access. Physical and electronic access are limited to persons responsible for servicing and authorized to use the system. Retention and disposal: Records may be temporary in nature and deleted when actions are completed, superseded, obsolete, or no longer needed. Other records may be cut off at the end of the payroll year, and then destroyed up to 6 years and 3 months after cutoff. Records are destroyed by degaussing the electronic media and recycling hardcopy records. The recycled hardcopies are destroyed by shredding, burning, or pulping. System manager(s) and address: Defense Finance and Accounting Service, Denver, System Management Directorate, Accounting and Cash Systems, 6760 E. Irvington Place, Denver, CO 80279-8000. Notification procedure: Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to the Defense Finance and Accounting Service, Freedom of Information/Privacy Act Program Manager, Corporate Communications and Legislative Liaison, 6760 E. Irvington Place, Denver, CO 80279-8000. Requests should contain individual's full name, Social Security Number (SSN), current address, telephone number, and provide a reasonable description of what the requestor is seeking. Record access procedures: Individuals seeking access to information about themselves contained in this system of records should address written inquiries to Defense Finance and Accounting Service, Freedom of Information/Privacy Act Program Manager, Corporate Communications and Legislative Liaison, 6760 E. Irvington Place, Denver, CO 80279-8000. Requests should contain individual's full name, Social Security Number (SSN), current address, telephone number, and provide a reasonable description of what the requestor is seeking. Contesting record procedures: The DFAS rules for accessing records, for contesting contents and appealing initial agency determinations are published in DFAS Regulation 5400.11-R; 32 CFR part 324; or may be obtained from Defense Finance and Accounting Service, Freedom of Information/Privacy Act Program Manager, Corporate Communications and Legislative Liaison, 6760 E. Irvington Place, Denver, CO 80279-8000. Record source categories: From the individual, DoD Components, and other Federal agencies such as Health and Human Services and Department of Veterans Affairs. Exemptions claimed for the system: None. [FR Doc. E9-19871 Filed 8-18-09; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF DEFENSE Department of the Army [Docket ID USA-2009-0024] Privacy Act of 1974; System of Records AGENCY: Department of the Army, DoD. ACTION: Notice to alter a system of records. SUMMARY: The Department of the Army is proposing to alter a system of records in its existing inventory of records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. DATES: The proposed action will be effective on September 18, 2009 unless comments are received that would result in a contrary determination. ADDRESSES: Department of the Army, Privacy Office, U.S. Army Records Management and Declassification Agency, 7701 Telegraph Road, Casey Building, Suite 144, Alexandria, VA 22325-3905. FOR FURTHER INFORMATION CONTACT: Mr. Leroy Jones,
(703)428-6185. SUPPLEMENTARY INFORMATION: The Department of the Army systems of records notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the **Federal Register** and are available from the address above. The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on August 12, 2009, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget
(OMB)pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427). Dated: August 12, 2009. Patricia L. Toppings, OSD Federal Register Liaison Officer, Department of Defense. A0040-5a DASG DoD System name: Defense Medical Surveillance System (April 30, 2009, 74 FR 19944). Changes: Categories of individuals covered by the system: Delete entry and replace with “Department of Defense military personnel (active and reserve) and their family members; separated service members and retirees; DoD civilian personnel; contract personnel deploying with the Armed Forces; applicants for military service; and individuals who participate in DoD health surveys.” Categories of records in the system: Delete entry and replace with “Information in this system of records originates from personnel systems, medical records, health surveys (e.g., Pentagon Post Disaster Health Assessment, periodic, pre and post deployment health assessments) and/or health assessments made from specimen collections (remaining serum from blood samples) from which serologic tests can be performed (serum number, specimen locator information, collection date, place of collection). Records being maintained include but are not limited to individual's name, Social Security Number, date of birth, sex, branch of service, home address, age, occupation, job series, rank, grade, education level, Armed Forces Qualification Test data, marital status, number of dependents, medical encounters, medical treatment facility, condition of medical and physical health and capabilities, responses to survey questions, register number assigned, and similar records, information and reports, relevant to the various registries; and specimen collections (remaining serum from blood samples) from which serologic tests can be performed (serum number, specimen locator information, collection date, place of collection).” A0040-5a DASG DoD System name: Defense Medical Surveillance System. System location: Armed Forces Health Surveillance Center, Building T-20, Room 213, 6900 Georgia Avenue, NW., Washington, DC 20307-5001; and Armed Forces Health Surveillance Center, 503 Robert Grant Avenue, Silver Spring, MD 20910-7500. Categories of individuals covered by the system: Department of Defense military personnel (active and reserve) and their family members; separated service members and retirees; DoD civilian personnel; contract personnel deploying with the Armed Forces; applicants for military service; and individuals who participate in DoD health surveys. Categories of records in the system: Information in this system of records originates from personnel systems, medical records, health surveys ( *e.g.* , Pentagon Post Disaster Health Assessment, periodic, pre and post deployment health assessments) and/or health assessments made from specimen collections (remaining serum from blood samples) from which serologic tests can be performed (serum number, specimen locator information, collection date, place of collection). Records being maintained include but are not limited to individual's name, Social Security Number, date of birth, sex, branch of service, home address, age, occupation, job series, rank, grade, education level, Armed Forces Qualification Test data, marital status, number of dependents, medical encounters, medical treatment facility, condition of medical and physical health and capabilities, responses to survey questions, register number assigned, and similar records, information and reports, relevant to the various registries; and specimen collections (remaining serum from blood samples) from which serologic tests can be performed (serum number, specimen locator information, collection date, place of collection). Authority for maintenance of the system: 5 U.S.C. 301, Departmental Regulations; 10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness; 10 U.S.C. 3013, Secretary of the Army, 10 U.S.C. 8013, Secretary of the Air Force, 10 U.S.C. 5013, Secretary of the Navy; DoD Instruction 1100.13, Surveys of DoD Personnel; DoD Directive 6490.2, Comprehensive Health Surveillance; DoD Directive 6490.3, Deployment Health; DoD Instruction 6485.01, Human immunodeficiency Virus; DoD Directive 1404.10, Civilian Expeditionary Workforce; and E.O. 9397 (SSN), as amended. Purpose(s): The Defense Medical Surveillance System
(DMSS)supports a systematic collection, analysis, interpretation, and reporting of standardized, population based data for the purposes of characterizing and countering medical threats to a population's health, well-being and performance. The Armed Forces Health Surveillance Center, which operates the DMSS, routinely publishes summaries of notifiable diseases, trends of illnesses of special surveillance interest and field reports describing outbreaks and case occurrences in the Medical Surveillance Monthly Report, the principal vehicle for disseminating medical surveillance information of broad interest. Through DMSS, the Armed Forces Health Surveillance Center provides the sole link between the DoD Serum Repository and other databases. This repository contains over 46 million frozen serum specimens and is the largest of its kind in the world. Routine uses of records maintained in the system, including categories of users and the purposes of such uses: In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows: The DoD “Blanket Routine Uses” set forth at the beginning of the Army's compilation of systems of records notices also apply to this system, except that these routine uses do not apply to the Serum Repository. Note: This system of records contains individually identifiable health information. The DoD Health Information Privacy Regulation (DoD 6025.18-R) issued pursuant to the Health Insurance Portability and Accountability Act of 1996, applies to most such health information. DoD 6025.18-R may place additional procedural requirements on the uses and disclosures of such information beyond those found in the Privacy Act of 1974 or mentioned in this system of records notice. Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system: Storage: Paper records in file folders and electronic storage media. Retrievability: Information is retrieved by individual's name, Social Security Number (SSN), registry number and specimen number. Safeguards: Records are maintained within secured buildings in areas accessible only to persons having official need, and who therefore are properly trained and screened. Automated segments are protected by controlled system passwords governing access to data. Retention and disposal: Records are destroyed when no longer needed for reference and for conducting business. System manager(s) and address: Director of the Armed Forces Health Surveillance Center, The Army Surgeon General, Headquarters, Department of the Army, 5109 Leesburg Pike, Falls Church, VA 22041-3258. Notification procedure: Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Director, Armed Forces Health Surveillance Center, 503 Robert Grant Avenue, Silver Spring, MD 20910-7500. For verification purposes, individual should provide their full name, Social Security Number (SSN), any details which may assist in locating record, and their signature. In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format: If executed outside the United States: ‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)'. If executed within the United States, its territories, possessions, or commonwealths: ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'. Record access procedures: Individuals seeking access to information about themselves contained in this system should address written inquiries to the Director of the Armed Forces Health Surveillance Center, 503 Robert Grant Avenue, Silver Spring, MD 20910-7500. For verification purposes, individual should provide their full name, Social Security Number, any details which may assist in locating record, and their signature. In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format: If executed outside the United States: ‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)'. If executed within the United States, its territories, possessions, or commonwealths: ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'. Contesting record procedures: The Army's rules for accessing records, and for contesting contents and appealing initial agency determinations are contained in Army Regulation 340-21; 32 CFR part 505; or may be obtained from the system manager. Record source categories: From the individual, personnel and medical records, and mortality and casualty reports. Exemptions claimed for the system: None. [FR Doc. E9-19865 Filed 8-18-09; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF EDUCATION Notice of Proposed Information Collection Requests AGENCY: Department of Education. SUMMARY: The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995. DATES: Interested persons are invited to submit comments on or before October 19, 2009. SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget
(OMB)provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following:
(1)Type of review requested, *e.g.,* new, revision, extension, existing or reinstatement;
(2)Title;
(3)Summary of the collection;
(4)Description of the need for, and proposed use of, the information;
(5)Respondents and frequency of collection; and
(6)Reporting and/or Recordkeeping burden. OMB invites public comment. The Department of Education is especially interested in public comment addressing the following issues:
(1)Is this collection necessary to the proper functions of the Department;
(2)will this information be processed and used in a timely manner;
(3)is the estimate of burden accurate;
(4)how might the Department enhance the quality, utility, and clarity of the information to be collected; and
(5)how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Dated: August 13, 2009. Angela C. Arrington, Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management. National Institute for Literacy *Type of Review:* New. *Title:* Understanding Effective K-3 Reading Programs Based on Scientific Reading Research. *Frequency:* One time. *Affected Public:* Businesses or other for-profit; State, Local, or Tribal Gov't, SEAs or LEAs. *Reporting and Recordkeeping Hour Burden:* Responses: 87. Burden Hours: 1,037. *Abstract:* The National Institute for Literacy
(NIFL)is authorized under the No Child Left Behind Act, Public Law 107-110, part B, subpart 1, section 1207 to “* * * identify and disseminate information about schools, local educational agencies, and State educational agencies that have effectively developed and implemented classroom reading programs that meet the requirements of this subpart (Reading First)* * *”. To carry out this authorized activity, the NIFL is first conducting a set of case studies, identifying Schools with Effective Reading Programs, to be implemented by a research team from Education Development Center, Inc. (EDC). The NIFL then will publish findings from the case studies as a report and print and distribute it widely among educators and administrators working with children in kindergarten through third grades as well as reading researchers. The NIFL needs to collect the information proposed in this package to be able to describe in reasonable detail the school- and classroom-based reading strategies employed by schools with high-performing students. The NIFL understands its statutory charge to mean providing information that explains what the schools did and how they did it rather than general information from sources such as school Web sites. While the findings from case studies should not be construed as guidance to schools seeking to improve their K-3 students' reading outcomes, the information from this study may bring to light detail that contributes to deeper understanding of effective reading instruction and informs future research on K-3 reading instruction. The respondents will be drawn from two schools in each of three districts that have been identified as having positive student outcomes in reading according to a comprehensive approach established as part of the study. The estimated number of respondents will be: 6 Principals, 6 Reading Specialists/Literacy Specialists, 3 English Language Arts District Coordinators, 72 Teachers (estimated). Only an estimate of the number of teacher respondents is possible until we have agreements from the participating schools. The estimate is based on three teachers per grade level, K-3, at each school. Requests for copies of the proposed information collection request may be accessed from *http://edicsweb.ed.gov* , by selecting the “Browse Pending Collections” link and by clicking on link number 4001. When you access the information collection, click on “Download Attachments” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., LBJ, Washington, DC 20202-4537. Requests may also be electronically mailed to *ICDocketMgr@ed.gov* or faxed to 202-401-0920. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be electronically mailed to *ICDocketMgr@ed.gov* . Individuals who use a telecommunications device for the deaf
(TDD)may call the Federal Information Relay Service
(FIRS)at 1-800-877-8339. [FR Doc. E9-19842 Filed 8-18-09; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF ENERGY Environmental Management Site-Specific Advisory Board, Portsmouth AGENCY: Department of Energy (DOE). ACTION: Notice of open meeting. SUMMARY: This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Portsmouth. The Federal Advisory Committee Act (Pub. L. No. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the **Federal Register** . DATES: Thursday, September 3, 2009, 6 p.m. ADDRESSES: Ohio State University, Endeavor Center, 1862 Shyville Road, Piketon, Ohio 45661. FOR FURTHER INFORMATION CONTACT: David Kozlowski, Deputy Designated Federal Officer, Department of Energy Portsmouth/Paducah Project Office, Post Office Box 700, Piketon, Ohio 45661,
(740)897-2759, *David.Kozlowski@lex.doe.gov.* SUPPLEMENTARY INFORMATION: *Purpose of the Board:* The purpose of the Board is to make recommendations to DOE in the areas of environmental restoration, waste management and related activities. Tentative Agenda • Call to Order, Introductions, Review of Agenda. • Approval of August Meeting Minutes. • Public Comments. • Deputy Designated Federal Officer's Comments. • Federal Coordinator's Comments. • Liaisons' Comments. • Presentations. • *Administrative Issues:* ○ Committee Updates. ○ Motions. • Public Comments. • Final Comments. • Adjourn. Breaks taken as appropriate. *Public Participation:* The meeting is open to the public. The EM SSAB, Portsmouth, welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact David Kozlowski at least seven days in advance of the meeting at the phone number listed above. Written statements may be filed with the Board either before or after the meeting. Individuals who wish to make oral statements pertaining to agenda items should contact David Kozlowski at the address or telephone number listed above. Requests must be received five days prior to the meeting and reasonable provision will be made to include the presentation in the agenda. The Deputy Designated Federal Officer is empowered to conduct the meeting in a fashion that will facilitate the orderly conduct of business. Individuals wishing to make public comment will be provided a maximum of five minutes to present their comments. *Minutes:* Minutes will be available by writing or calling David Kozlowski at the address and phone number listed above. Minutes will also be available at the following Web site: *http://www.ports-ssab.org/publicmeetings.html.* Issued at Washington, DC, on August 14, 2009. Rachel Samuel, Deputy Committee Management Officer. [FR Doc. E9-19898 Filed 8-18-09; 8:45 am] BILLING CODE 6450-01-P DEPARTMENT OF ENERGY Environmental Management Site-Specific Advisory Board, Northern New Mexico AGENCY: Department of Energy. ACTION: Notice of Open Meeting. SUMMARY: This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Northern New Mexico. The Federal Advisory Committee Act (Pub. L. No. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the **Federal Register** . DATES: Wednesday, September 30, 2009, 2 p.m.-8 p.m. ADDRESSES: Holiday Inn Santa Fe, 4048 Cerillos Road, Santa Fe, New Mexico. FOR FURTHER INFORMATION CONTACT: Menice Santistevan, Northern New Mexico Citizens' Advisory Board (NNMCAB), 1660 Old Pecos Trail, Suite B, Santa Fe, NM 87505. Phone
(505)995-0393; Fax
(505)989-1752 or E-mail: *msantistevan@doeal.gov.* SUPPLEMENTARY INFORMATION: *Purpose of the Board:* The purpose of the Board is to make recommendations to DOE in the areas of environmental restoration, waste management, and related activities. Tentative Agenda 2 p.m. Call to Order by Deputy Designated Federal Officer, Jeff Casalina Establishment of a Quorum, Lorelei Novak • Roll Call • Excused Absences Welcome and Introductions, J.D. Campbell Approval of Agenda Approval of July 29, 2009 Meeting Minutes 2:15 p.m. Old Business • Written Reports • Open Discussion from Board Members • Voting Procedures 2:45 p.m. New Business • Report from Nominating Committee, Deb Shaw • Election of Chair and Vice Chair for Fiscal Year
(FY)2010 • Consideration and Action on Meeting Schedule for FY 2010 • Appoint Ad Hoc Committee for Annual Evaluation 3:15 p.m. Deputy Designated Federal Officer Report, Jeff Casalina 3:30 p.m. Break 3:45 p.m. Ad Hoc Committee Reports • Community Outreach • Board Processes • Budget Priorities for FY 2011 4 p.m. Standing Committee Reports • Presentation of FY 2010 Committee Work Plans • Consideration and Action on Committee Work Plans for Submittal to DOE 5 p.m. Dinner Break 6 p.m. Public Comment Period 6:15 p.m. Consideration and Action on Recommendation(s) 7:45 p.m. Round Robin Discussion 8 p.m. Adjourn, Jeff Casalina *Public Participation:* The EM SSAB, Northern New Mexico, welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Menice Santistevan at least seven days in advance of the meeting at the telephone number listed above. Written statements may be filed with the Board either before or after the meeting. Individuals who wish to make oral statements pertaining to agenda items should contact Menice Santistevan at the address or telephone number listed above. Requests must be received five days prior to the meeting and reasonable provision will be made to include the presentation in the agenda. The Deputy Designated Federal Officer is empowered to conduct the meeting in a fashion that will facilitate the orderly conduct of business. Individuals wishing to make public comment will be provided a maximum of five minutes to present their comments. *Minutes:* Minutes will be available by writing or calling Menice Santistevan at the address or phone number listed above. Minutes and other Board documents are on the Internet at: *http://www.nnmcab.org/.* Issued at Washington, DC on August 14, 2009. Rachel Samuel, Deputy Committee Management Officer. [FR Doc. E9-19899 Filed 8-18-09; 8:45 am] BILLING CODE 6450-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 13375-000] Community Hydro, LLC; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing Applications August 12, 2009. On February 20, 2009, Community Hydro, LLC filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the Falls Lake Dam Hydroelectric Project, located on the Neuse River, Wake County, North Carolina. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission. The proposed project would consist of:
(1)Six turbine-generators with a total installed capacity of 2,500 kW;
(2)a 700-foot-long, 13.8 kV transmission line; and
(3)appurtenant facilities. The proposed project would generate about 8,300 megawatt-hours annually. *Applicant Contact:* Lori Barg, Community Hydro LLC, 113 Bartlett Road, Plainfield, VT, phone:
(802)454-1874. *FERC Contact:* Sergiu Serban, 202-502-6211. *Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications:* 60 days from the issuance of this notice. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. If unable to be filed electronically, documents may be paper-filed. To paper-file, an original and eight copies should be mailed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. For more information on how to submit these types of filings please go to the Commission's Web site located at *http://www.ferc.gov/filing-comments.asp.* More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at *http://www.ferc.gov/docs-filing/elibrary.asp.* Enter the docket number (P-13375) in the docket number field to access the document. For assistance, call toll-free 1-866-208-3372. Kimberly D. Bose, Secretary. [FR Doc. E9-19828 Filed 8-18-09; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket Nos. CP03-75-006 and CP05-361-004] Freeport LNG Development, L.P.; Freeport LNG Expansion, L.P.; Notice of Filing August 12, 2009. Take notice that on August 3, 2009, Freeport LNG Development, L.P. and Freeport LNG Expansion, L.P. (Freeport LNG), 333 Clay Street, Suite 5050, Houston, TX 77002, filed an application, pursuant to section 3(a) of the Natural Gas Act
(NGA)and parts 153 and 380 of the Commission's Rules and Regulations, for a limited amendment to its certificates issued on June 18, 2004 and September 26, 2006 in Docket Nos. CP03-75-000 and CP05-361-000, respectively. Freeport LNG requests authorization to construct and operate a natural gas liquids
(NGL)extraction system at the Quintana Island terminal. The application is on file with the Commission and open for public inspection. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, please contact FERC Online Support at *FERCOnlineSupport@ferc.gov* or toll free at
(866)208-3676, or for TTY, contact
(202)502-8659. The NGL extraction system will enable Freeport LNG to extract and recover NGLs (primarily ethane, propane, and butane) from the terminal's LNG throughput. The NGL extraction system involve the construction and operation of the following facilities
(i)two 400 MMcf/day NGL extraction trains, collectively providing 0.80 Bcf/day of NGL extraction capability;
(ii)a 60,000 barrels per day depropanizer,
(iii)associated non-modular equipment;
(iv)two co-located NGL plant pipelines (8-inch and 12-inch diameter); and
(v)and NGL delivery pipeline and associated metering, pigging and valve facilities. The proposed facilities will be constructed within the authorized operational area of the Quintana Island terminal. Freeport LNG proposes a service date of June 2011. Any questions regarding the application are to be directed to Michael Johns, Freeport LNG Development, L.P., 333 Clay Street, Suite 5050, Houston, TX 77002; phone number
(979)415-8720 or Lisa M. Tonery, Fulbright & Jaworski L.L.P., 666 Fifth Avenue, New York, NY 10103; phone number
(212)318-3009, *ltonery@fulbright.com* . Any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the below listed comment date, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding. Motions to intervene, protests and comments may be filed electronically via the Internet in lieu of paper, see, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. *Comment Date:* September 2, 2009. Kimberly D. Bose, Secretary. [FR Doc. E9-19830 Filed 8-18-09; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER09-1554-000] RMH Energy, LP; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization August 12, 2009. This is a supplemental notice in the above-referenced proceeding of RMH Energy. LP's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability. Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is September 1, 2009. The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at *http://www.ferc.gov.* To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests. Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426. The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail *FERCOnlineSupport@ferc.gov.* or call
(866)208-3676 (toll free). For TTY, call
(202)502-8659. Kimberly D. Bose, Secretary. [FR Doc. E9-19829 Filed 8-18-09; 8:45 am] BILLING CODE 6717-01-P ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPPT-2003-0004; FRL-8431-3] Access to Confidential Business Information by Abt Associates’ Wholly-Owned Subsidiary Abt SRBI AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: EPA has authorized its contractor’s Wholly-Owned Subsidiary, Abt SRBI of New York, NY, to access information which has been submitted to EPA under all sections of the Toxic Substances Control Act (TSCA). Some of the information may be claimed or determined to be Confidential Business Information (CBI). DATES: Access to the confidential data will occur no sooner than August 26, 2009. FOR FURTHER INFORMATION CONTACT: *For general information contact* : Colby Lintner, Regulatory Coordinator, Environmental Assistance Division (7408M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(202)554-1404; e-mail address: *TSCA-Hotline@epa.gov* . *For technical information contact* : Scott Sherlock, Information Management Division (7407M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(202)564-8257; fax number:
(202)564-8251; e-mail address: *sherlock.scott@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Notice Apply to Me? This action is directed to the public in general. This action may, however, be of interest to all who manufacture, process or distribute industrial chemicals. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Get Copies of this Document and Other Related Information? 1. *Docket* . EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPPT-2003-0004. All documents in the docket are listed in the docket index available at *http://www.regulations.gov* . 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 electronically at *http://www.regulations.gov* , or, if only available in hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number of the EPA/DC Public Reading Room is
(202)566-1744, and the telephone number for the OPPT Docket is
(202)566-0280. Docket visitors are required to show photographic identification, pass through a metal detector, and sign the EPA visitor log. All visitor bags are processed through an X-ray machine and subject to search. Visitors will be provided an EPA/DC badge that must be visible at all times in the building and returned upon departure. 2. *Electronic access* . You may access this **Federal Register** document electronically through the EPA Internet under the **“Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . II. What Action is the Agency Taking? Under EPA contract number EP-W-08-010, contractor Abt SRBI of 275 Seventh Avenue, Suite 2700, New York, NY will assist the Office of Pollution Prevention and Toxics
(OPPT)in performing economic and market analysis related to new and existing chemicals. These analyses will largely be of the costs, economic impacts, benefits, and regulatory impacts of actual or potential EPA actions taken under TSCA. They will also support the voluntary Design for the Environment and Green Chemistry Programs. In accordance with 40 CFR 2.306(j), EPA has determined that under EPA contract number EP-W-08-010, Abt SRBI will require access to CBI submitted to EPA under all sections of TSCA to perform successfully the duties specified under the contract. Abt SRBI personnel will be given access to information submitted to EPA under all sections of TSCA. Some of the information may be claimed or determined to be CBI. EPA is issuing this notice to inform all submitters of information under all sections of TSCA that EPA may provide Abt SRBI access to these CBI materials on a need-to-know basis only. All access to TSCA CBI under this contract will take place at EPA Headquarters; and Abt Asscociates, Inc. sites at 4800 Montgomery Lane, Bethesda, MD and 55 Wheeler Street, Cambridge, MA. Abt SRBI will be authorized access to TSCA CBI at EPA Headquarters and Abt Associates Inc.’s sites under the EPA *TSCA CBI Protection Manual* . Access to TSCA data, including CBI, will continue until March 30, 2014. If the contract is extended, this access will also continue for the duration of the extended contract without further notice. ABT SRBI personnel will be required to sign nondisclosure agreements and will be briefed on appropriate security procedures before they are permitted access to TSCA CBI. List of Subjects Environmental protection, Confidential Business Information. Dated: August 5, 2009. Matthew Leopard, Acting Director, Information Management Division, Office of Pollution Prevention and Toxics. [FR Doc. E9-19461 Filed 8-18-09; 8:45 a.m.] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OW-2009-0297; FRL-8943-9] RIN 2040-AF08 Drinking Water: Perchlorate Supplemental Request for Comments AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: The Agency is seeking comments on additional approaches to analyzing data related to EPA's perchlorate regulatory determination. These additional comments are sought in an effort to ensure consideration of all the potential options for evaluating whether there is a meaningful opportunity for human health risk reduction of perchlorate through a national primary drinking water rule. EPA will make a final regulatory determination for perchlorate after considering comments and information provided in the 30-day comment period following this notice. DATES: Comments must be received on or before September 18, 2009. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-2009-0297, by one of the following methods: • *http://www.regulations.gov:* Follow the online instructions for submitting comments. • *Mail:* Water Docket, Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. • *Hand Delivery:* Water Docket, EPA Docket Center (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OW-2009-0297. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional instructions on submitting comments, go to Unit I.A of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, *e.g.,* CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Water Docket, EPA/DC, EPA West, 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 EPA Docket Center is
(202)566-2426. FOR FURTHER INFORMATION CONTACT: Eric Burneson, Office of Ground Water and Drinking Water, Standards and Risk Management Division, at
(202)564-5250 or e-mail *burneson.eric@epa.gov.* For general information, contact the EPA Safe Drinking Water Hotline at
(800)426-4791 or e-mail: *hotline-sdwa@epa.gov.* Abbreviations and Acronyms >—greater than <—less than BW—body weight CBI—confidential business information CDC—Centers for Disease Control and Prevention DWI—drinking water intake EPA—U.S. Environmental Protection Agency FDA—U.S. Food and Drug Administration FR—Federal Register HA—Health Advisory HRL—health reference level IRIS—Integrated Risk Information System kg—kilogram L—liter mg/kg—milligram per kilogram of body weight mg/L—milligrams per liter (equivalent to parts per million [ppm]) MRL—Method Reporting Limit NAS—National Academy of Science NHANES—National Health and Nutrition Examination Survey NOAEL—no observed adverse effect level NOEL—no observed effect level NRC—National Research Council OW—Office of Water PBPK—Physiologically-Based Pharmacokinetic POD —point of departure RAIU—Radioactive Iodide Uptake RfD—reference dose RSC—relative source contribution SDWA—Safe Drinking Water Act UCMR—Unregulated Contaminant Monitoring Regulation μg—microgram (one-millionth of a gram) US—United States USDA—U.S. Department of Agriculture SUPPLEMENTARY INFORMATION I. General Information A. What Should I Consider as I Prepare My Comments for EPA? You may find the following suggestions helpful for preparing your comments: 1. Explain your views as clearly as possible. 2. Describe any assumptions that you used. 3. Provide any technical information and/or data you used that support your views. 4. If you estimate potential burden or costs, explain how you arrived at your estimate. 5. Provide specific examples to illustrate your concerns. 6. Offer alternatives. 7. Make sure to submit your comments by the comment period deadline. 8. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and **Federal Register**
(FR)citation related to your comments. II. Background The statutory and regulatory background for this action is described in detail in the October 10, 2008, FR notice discussing EPA's initial regulatory determination for perchlorate (USEPA, 2008a). Briefly, the Safe Drinking Water Act
(SDWA)section 1412, as amended in 1996, requires EPA to make a determination whether to regulate at least 5 contaminants from its contaminant candidate list
(CCL)every 5 years. Once EPA determines to regulate a contaminant in drinking water, EPA must issue a proposed national primary drinking water regulation (NPDWR) and final NPDWR within certain set time frames. To regulate a contaminant in drinking water, EPA must determine that it meets three criteria:
(1)The contaminant may have an adverse effect on human health,
(2)the contaminant is known to occur or there is a substantial likelihood that the contaminant will occur in public water systems with a frequency and at levels of public health concern, and
(3)regulation of such contaminant presents a meaningful opportunity for health risk reduction for persons served by public water systems. To date, EPA has made final regulatory determinations for 20 contaminants from CCL1 and CCL2 and has not found that any of these contaminants meet all three criteria. On October 10, 2008, EPA published a preliminary regulatory determination for perchlorate, requesting public comment on its determination that perchlorate did not meet the second and third criteria for regulation. The October 2008 notice describes in detail the bases for EPA's determination (USEPA, 2008a). EPA received extensive public comment on that notice. Today, the Agency is seeking comments on additional approaches to analyzing data related to EPA's perchlorate regulatory determination. The EPA is requesting the additional comments in an effort to ensure that the Agency considers the potential options for evaluating whether there is a meaningful opportunity for human health risk reduction from perchlorate through a national primary drinking water rule. EPA's final decision may be a determination to regulate. As discussed below, the additional alternatives under consideration could result in health reference levels which are much lower than the level identified in the October 2008 notice. The public comments EPA received pursuant to the October 10, 2008, notice of preliminary regulatory determination 1 and from the peer review of the supporting documents underscore the complexity of the scientific issues regarding the regulatory determination for perchlorate in drinking water. 1 On November 12, 2008, EPA extended the comment period for 15 days regarding EPA's preliminary regulatory determination for perchlorate. EPA received 32,795 comment letters of which 31,632 (96%) letters were from seven different apparent mass mailing letter writing campaigns that did not support the preliminary determination. Of the remaining 1,163 comment letters that would be considered “unique,” 30 commenters provided EPA with detailed comments. Of those 30 comment letters, six supported EPA's preliminary determination. These comments and other docket materials are available electronically at *http://www.regulations.gov* (Docket ID No. EPA-HQ-OW-2008-0692). In its October 2008 FRN, EPA referred to a draft report entitled “Inhibition of the Sodium-Iodide Symporter by Perchlorate: An Evaluation of Lifestage Sensitivity Using Physiologically-Based Pharmacokinetic
(PBPK)Modeling” (USEPA, 2008b). This draft report, which is described in Section III.A.1, was peer reviewed during the comment period on the regulatory determination. The report (USEPA, 2008c) and a summary of significant comments made by the external peer reviewers and EPA's responses (USEPA, 2008e) can be found at *http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=212508* . The peer review comments were complimentary and supportive of EPA's modeling analysis and support document. On January 8, 2009, EPA issued an interim health advisory
(HA)to provide guidance to state and local officials in their efforts to address perchlorate contamination while EPA was reviewing scientific issues. A draft of the HA was peer reviewed by four external peer reviewers. The HA peer reviewers comments are discussed in Section III.A.2 of this notice. The Interim Health Advisory (USEPA. 2008d) can be found at *http://www.epa.gov/safewater/contaminants/unregulated/perchlorate.html* and the summary of significant comments made by the external peer reviewers (USEPA. 2008e) can be found at *http://www.epa.gov/ogwdw/contaminants/unregulated/pdfs/perchlorate_ha_comment_response.pdf* . In January of this year, EPA announced that we planned to seek additional input from the National Research Council
(NRC)on perchlorate. The NRC previously studied perchlorate health implications from March, 2003 until they issued their report in January, 2005 (NRC, 2005). EPA has compiled and evaluated additional scientific studies relevant to perchlorate health effects and exposure available since publication of the 2005 NRC report. As previously stated, EPA also has obtained peer review and public comment on the Agency's analysis of a number of these studies. The Agency believes that further review by the NRC would unnecessarily delay regulatory decision making for perchlorate. Therefore, EPA is not, at present, planning to request additional NRC review of issues related to perchlorate. Instead, EPA is issuing this notice and seeking comment on a broad range of alternative approaches to the interpretation of the scientific data relevant to a regulatory determination for perchlorate in drinking water. However, EPA requests comment upon whether further review by the NRC is warranted. EPA also notes that if the Agency were to make a final determination to regulate perchlorate, the Agency, in accordance with the SDWA, would seek review by the Science Advisory Board prior to proposal of any maximum contaminant level goal and national primary drinking water rule. 2 2 The requirement for national drinking water regulations are in SDWA Section 1412. EPA's Web page describes the regulatory development process (see *http://www.epa.gov/safewater/standard/setting.html* ). SDWA section 1412.e requires that EPA request comment from the Science Advisory Board prior to proposal of a maximum contaminant level goal and national primary drinking water regulation. In issuing this supplemental notice, EPA is not making a final regulatory determination for perchlorate nor are we changing the Interim Health Advisory Level of 15 μg/L. EPA will consider comments on the information received on this notice, as well as those received on the October 10, 2008, FR notice, and those received on the peer review of supporting documents before completing its regulatory determination for perchlorate. EPA may also revise the Interim Health Advisory as part of this process. III. Alternative Approaches To Analyzing Scientific Data Related to Perchlorate in Drinking Water EPA is requesting comment on key issues related to the regulatory determination for perchlorate in drinking water. EPA is now considering a broader range of alternatives for interpreting the available data on: the level of health concern, the frequency of occurrence of perchlorate in drinking water, and the opportunity for health risk reduction through a national primary drinking water standard. These alternative interpretations may impact the Agency's final regulatory determination for perchlorate. Therefore, EPA seeks comment on these issues and the alternative approaches the Agency is considering. A. Interpretation of the Physiologically-Based Pharmacokinetic
(PBPK)Modeling 1. EPA's PBPK Modeling Analysis in the October 2008 FR Notice The NRC (NRC, 2005) found that the inhibition of iodide uptake by the thyroid should be used as the basis for a perchlorate risk assessment. In the October, 2008, FR notice, EPA describes a Physiologically-Based Pharmacokinetic
(PBPK)modeling analysis prepared by the Agency utilizing a series of papers ( *e.g.* , Clewell *et al.* , 2007) discussing PBPK models that estimated the effect of perchlorate on iodide uptake for the pregnant woman and fetus, the lactating woman and neonate, and the young child. EPA used the PBPK modeling analysis to estimate the iodide uptake inhibition for these sensitive life stages consuming food containing perchlorate at mean levels, and drinking water containing perchlorate at an HRL of 15 µg/L at the 90th percentile consumption rate. EPA found that the predicted radioactive iodide uptake
(RAIU)inhibition for all subgroups was comparable to, or less than, the RAIU at the no observed effect level
(NOEL)selected by the NRC. Based on this outcome, EPA concluded that by protecting the fetus of the hypothyroid or iodide-deficient woman from the effects of perchlorate on the thyroid, all other life stages and subgroups would be protected. EPA requested comment on the model in the October 2008 FR notice in addition to conducting a peer review on the application of the model to non-adult life stages. 2. What Were the Key Scientific Issues Raised by Commenters Many of the public comments EPA received on the PBPK model in response to the October 2008 FR notice objected to the Agency's use of a model that had not been peer reviewed. Concurrently with the public comment period, the PBPK model analysis underwent a rigorous peer review by eight experts. Response by the PB model analysis peer reviewers indicated that the modifications made to the model and the changes to physiological parameters were an improvement over the Clewell model, and all reviews were generally supportive of the analysis. Based on the external peer review comments, the models and the report entitled, “Inhibition of the Sodium-Iodide Symporter by Perchlorate: An Evaluation of Lifestage Sensitivity Using Physiologically-Based Pharmacokinetic
(PBPK)Modeling” were revised. As previously discussed, comments were also received from four peer reviewers for the Interim Drinking Water Health Advisory
(HA)on the application of the model in identifying sensitive life stages. One HA peer reviewer noted that the use of the PBPK model did “provide an estimate of perchlorate exposure to average weight babies of healthy breastfeeding women.” However, this HA peer reviewer continued on to recommend that the exposure estimate be expanded to include consideration of small birth weight and preterm infants. Another peer reviewer recommended that the uncertainty inherent in the modeling exercise should be made more transparent to the public. This uncertainty was linked to the modeling code, the availability of data for the many variable parameters in the model, the combination and handling of the data selected for use in simulations, and, in particular, the lack of human data for specific life stages including pregnant women and their fetuses, lactating women and their babies, and bottle-fed infants for which rat data were adapted. The inability of the model to reflect iodide nutritional status also was cited by three peer reviewers as an important limitation. Individual peer reviewers raised two additional concerns:
(1)That the use of animal data to predict human responses appears to run counter to the NRC finding that animal data cannot be used to quantitatively predict the response of humans due to species differences, and
(2)that EPA appeared to use the PBPK model to modify the reference dose
(RfD)for infants, justifying the allowance of exposures that clearly exceeded the RfD established by the NRC. Peer reviewers further noted that the PBPK model and the EPA assessment did not account for the activity of other compounds with similar actions on the thyroid. This issue was also raised by EPA's Office of Inspector General
(OIG)in reference to EPA's perchlorate risk assessment (see section III.C.2 for more information). One reviewer stated that the application of the PBPK model by the Agency as cited in the Interim Health Advisory implied an inappropriate certainty in the results that was not warranted. This reviewer recommended confining the use of the PBPK model to exploring the impact of varying physiological parameters and exposure data among life stages. 3. Alternative Approaches EPA Is Also Now Considering Based on the comments received on the application of the PBPK model as described in the October 2008 notice and the Interim HA, EPA is re-evaluating how best to incorporate the PBPK modeling analysis into its evaluation of perchlorate, if at all. One approach might be to use the PBPK modeling analysis to explore the relative sensitivity of the various life stages of concern to a fixed dose such as the point of departure
(POD)or the reference dose (RfD). For example, EPA has examined the effect of a dose equal to the POD on RAIU for a number of different life stages. The POD for the perchlorate risk assessment (7 μg/kg/day) was recommended by the NRC. The POD is the lowest dose administered in the Greer *et al.*
(2002)clinical study, and resulted in a “very small decrease (1.8%) in radioiodide uptake * * * well within the variation of repeated measurements of normal subjects (NRC, 2005).” The POD used was determined by NRC to be a No Observed Effect Level (NOEL). The NRC stated that use of a NOEL differs from the traditional approach to deriving an RfD, which bases the critical effect on an adverse outcome, and that using a nonadverse effect that is upstream of the adverse effect is a more conservative and health-protective approach to perchlorate hazard assessment. The NRC also recommended that EPA derive an RfD by applying a 10-fold uncertainty factor to the POD to account for differences between healthy adults and the most sensitive population, fetuses of pregnant women who might have hypothyroidism or iodide deficiency. When compared to the average adult, the 7-day old breast-fed infant and the fetus of the pregnant woman at gestation week 40 were identified by EPA's analysis as the most sensitive subgroup with respect to percent RAIU inhibition at a dose to the lactating or pregnant women equal to the POD. (See Table 1 for the model-predicted RAIU inhibition and relative sensitivity at the POD of different subgroups compared to the average adult, based on EPA's modified PBPK model.) The predicted percent RAIU inhibition is approximately 7.8-fold higher for the 7-day old breast-fed infant and 6.7-fold higher for the fetus (at gestational week 40) than for the average adult. (Simulations at earlier gestation weeks indicate that the fetus is more sensitive than the adult throughout pregnancy, but data available for validation of these parameters are minimal and are considered too quantitatively uncertain to assign exact relative sensitivities.) The same analysis shows that the predicted percent RAIU inhibition is approximately one and a half-fold higher for the bottle-fed infant (7-60 days) compared to the average adult, and is approximately equal for the 1-2 year old child and the average adult. However, the drinking water exposure data discussed in section III.B.3 show that infants less than six months in age generally consume five to eight times more water than pregnant women or women of child bearing age on a per body weight basis, and so will receive a higher dose for any given drinking water concentration. Table 1—Model-Predicted Radioactive Iodide Uptake
(RAIU)Inhibition and Relative Sensitivity of Different Subgroups Compared to the Average Adult at a Dose Equal to the Point-of-Departure
(POD)Based on the EPA's Modified PBPK Models Population or life stage Body weight
(kg)Dose i (μg/kg-d) RAIU inhibition Relative sensitivity vs. average adult Average Adult * a * 70 7 1.6% 1 Woman (child-bearing age) 68 7 * b * 3.0% 1.8 Pregnant woman and Fetus (Gestation Week 40) Mom: 79 Fetus: 3.5 7 * c * 6.1% * c * 11% 3.7 6.7 Lactating woman and Breast-fed infant (7 d) Mom: 74 Infant: 3.6 7 Mom = 7 Infant = 7 (Mom = 2.7) * d * 2.1% * d,e * 12.5% * d,e,f * 5.4% 1.3 7.8 3.3 Lactating woman and Breast-fed infant (30 d) Mom: 73 Infant: 4.2 7 Mom = 7 Infant = 7 (Mom = 3.0 ) * d * 2.0% * d,e * 9.8% * d,e,f * 4.4% 1.2 6.1 2.7 Lactating woman and Breast-fed infant (60 d) Mom: 72 Infant: 5.0 7 Mom = 7 Infant = 7 (Mom = 3.6 ) * d * 2.0% * d,e * 7.9% * d,e,f * 4.2% 1.2 4.9 2.7 Bottle-fed infant (60 d) Infant: 5.0 7 * e * 2.5% 1.5 Child (0.97 yr) * g * Child: 10 7 * h * 1.7% 1.1 Child (2 yr) Child: 14 7 * h * 1.7% 1.1 * a * The body weight (70 kg) for the average adult is the default weight used by EPA for past regulatory determinations. All other body weights are generated by the model. * b * Maternal body weight was held at the value defined at the start of pregnancy (BW = 67.77 kg), and the “average adult” urinary clearance values as published by Merrill *et al.*
(2005)were used. * c * Results are based on using the maternal urinary clearance as published in Clewell *et al.* (2007), which equal about half of the average adult clearance. * d * Results are based on setting the maternal clearance rates of both perchlorate and iodide during lactation equal to that of the average adult. Clewell *et al.*
(2007)used an iodide clearance rate equal to that of an average adult, but a perchlorate rate only half that of the average adult. * e * %RAIU inhibition given for the infant is provided based upon a value of urinary clearance scaled from the adult by BW 2/3 to approximate surface-area scaling, and then multiplied by a rising fraction vs. age based on data (DeWoskin and Thompson, 2008) to reflect the reduction in glomerular filtration rates. Clewell *et al.*
(2007)scaled urinary clearance by BW 0.75 , rather than adjusting based on GFR. * f * These %RAIU inhibition values are based on an internal dose to the breast-fed infant of 7 μg/kg-day, the same as for the other subgroups. Maternal dose rates lower than the POD are needed to provide 7 μg/kg-day to the infant as shown in the table. These doses differ due to changes in body weights and other PK factors with age. * g * Because EPA typically uses a 10 kg child as a default assumption for its drinking water health advisories, the model was run for a child at 0.97 yr, the age at which the model-simulated body weight for a child is 10 kg. * h * Results were obtained by setting urinary clearance constants for the older child equal to the average adult (Merrill *et al.,* 2005) and scaling by BW 1 . i The dose equal to the POD is 7 μg/kg-day which is 10-fold greater than the RfD. The predicted RAIU inhibition at the RfD would be less than those shown in Table 1. . The modeling analysis may be used as a tool to predict the impact of different perchlorate drinking water concentrations on RAIU across life stages. Understanding the potential impact of reducing perchlorate concentrations may be especially important for considering bottle-fed infants for whom a major portion of the diet may consist of water used to rehydrate formula. Another approach EPA is also considering would be to not use the PBPK modeling analysis to inform the selection of the HRL for its regulatory determination but instead apply the RfD directly to the exposures of other sensitive life stages to develop separate HRLs for these life stages as described in Section III.B. 4. Request for Comment on Alternative Approaches EPA Seeks Comments on the Following Issues: a. EPA requests comment on using the PBPK model to evaluate the relative sensitivity of the various life stages to perchlorate exposure in drinking water. b. EPA requests comment on the utility of the PBPK model for predicting the impact of different perchlorate drinking water concentrations on sensitive life stages to inform HRL selection. c. EPA requests suggestions for ways to use the PBPK modeling analysis to inform the regulatory determination for perchlorate that are different from those described in this notice or the October 10, 2008, notice. B. Alternative HRLs Based Upon Body Weight and Water Consumption of Other Life Stages 1. Analysis and Interpretations From the October 2008 FR Notice In our October 2008 FR notice, EPA requested comments on an HRL of 15 μg/L to protect pregnant women and their fetuses based upon the Agency's RfD, recommended by the NRC, and the following exposure estimates: HRL = RfD × BW/DWI × RSC *Where:* RfD = Reference dose (0.7 μg/kg/day) BW = Body weight (70 kg, default value) DWI = Drinking water intake (2 L/day, default value) RSC = Relative source contribution (62% for pregnant women) In calculating the HRL of 15 μg/L, EPA used adult default values for both body weight (the mean body weight for men and women, 70 kg) and drinking water intake (84th percentile, 2 L/day). The RSC is the percentage of the reference dose remaining for drinking water after other sources of exposure to perchlorate have been considered (e.g., food). EPA used the pregnant women's estimated 90th percentile perchlorate intake from food to determine the RSC of 62%. In past regulatory determinations on most other noncarcinogenic contaminants, EPA has used an RSC default value of 20% for screening purposes to estimate the HRL when it has lacked adequate data to develop empirical RSCs for those contaminants (for sulfate and sodium EPA did not use an RSC to determine the HRL). For the October 2008 notice, the Agency believed that sufficient exposure data were available for perchlorate to enable EPA to estimate a better informed RSC and HRL that is more appropriate for fetuses of pregnant women (the most sensitive life stage identified by the NRC). These exposure data include the further analysis by EPA of the Unregulated Contaminant Monitoring Regulation
(UCMR)data and the Centers for Disease Control and Prevention's (CDC's) National Health and Nutrition Examination Survey (NHANES) biomonitoring data, as well as the Food and Drug Administration's (FDA's) Total Diet Study
(TDS)(73 FR 60269-72, October 10, 2008). The EPA analysis provided a distribution of exposure (not just a mean) specific to almost 100 pregnant women who are not likely to have been exposed to perchlorate from their drinking water, although it did not separate out iodine-deficient pregnant women because of data limitations. EPA estimated that for 90% of the pregnant women, exposure to perchlorate from food is equal to, or less than, 0.263 μg/kg/day (90th percentile). This represents nearly 38% of the RfD, leaving an RSC for water of 62%. 2. What Were the Key Issues Raised by Public Commenters? The comments EPA received underscore the complexity of the scientific issues and many were critical of EPA's derivation of the HRL. Of those that provided detailed comments, many were concerned about the adequacy of the HRL to address all sensitive life stages ( *e.g.* , pre-term and full-term infants). For example, a number of commenters argued that the proposed HRL is too high for infants because an HRL of 15 µg/L would allow daily exposures that are two to five times higher than the RfD. One commenter cites a March 8, 2006, letter from the Children's Health Protection Advisory Committee to the EPA Administrator. The commenter states, “* * * [T]he committee emphasized the higher exposure of infants to perchlorate and greater susceptibility to serious negative effects associated with perchlorate exposure. Neither of these issues, however, was given adequate consideration in the Preliminary Determination.” Another commenter addresses EPA's use of default values in deriving the HRL stating, “* * * EPA continues to use the obsolete default of 70 kg for body weight and 2 L/day of water consumption when these values certainly do not apply to pregnant women. These defaults are specifically intended for the population in general, and should be superseded by more specific and appropriate values when risk assessment is being conducted for a defined subpopulation (U.S. EPA, 2004, 2005).” 3. Alternative Approaches for Calculating HRLs EPA agrees that reassessing exposure assumptions and other life stages warrants further consideration. The NRC
(2005)identified “the fetuses of pregnant women who might have hypothyroidism or iodide deficiency” as “the most sensitive population,” but also identified infants and developing children as additional “sensitive populations.” Infants and young children have greater exposure to contaminants in food and water because of greater consumption of food and water on a per unit body weight basis. Therefore, these life stages may be the most vulnerable populations when their relative exposure is considered. Therefore, EPA is considering alternative approaches to deriving HRLs by evaluating exposures at different life stages. EPA is considering alternative HRLs that are estimates of the maximum concentration of perchlorate that can be consumed in drinking water without an individual's total perchlorate dose from food and water exceeding the RfD. EPA's Guidance on Selecting Age Groups for Monitoring and Assessing Childhood Exposures to Environmental Contaminants (USEPA, 2005) recommends the following 10 age groups be considered in exposure assessments for children. • Less than 12 Months old: birth to < 1 month, 1 to < 3 months, 3 to < 6 months and 6 to < 12 months. • Greater than 12 months old: 1 to < 2 years, 2 to < 3 years, 3 to < 6 years, 6 to < 11 years, 11 to < 16 years, and 16 to < 21 years. EPA's Guidance for Risk Characterization (USEPA, 1995) recommends that when considering exposure to use both high end ( *i.e.* , 90th and 95th percentile) and central tendency (average or median estimates) descriptors to convey the variability in risk levels experienced by different individuals in the population. Table 2 arrays the alternative HRLs at the average 90th and 95th percentile drinking water ingestion rates for each of the 10 childhood life stages (as well as for pregnant women and women of child-bearing age, 15 to 44). The table uses the life stage specific drinking water intake data that are adjusted to account for the body weight of the individual. EPA's Child-Specific Exposure Factors Handbook (USEPA, 2008f) recommends values for drinking water ingestion rates for each of recommended children's life stage based on a study of drinking water ingestion of the U.S. population by Kahn and Stralka (2008). The study reports ingestion estimates for “all individuals” and for “consumers only.” Estimates reported for “all individuals” include all survey participants regardless of whether they consumed water during the 2-day survey period. Ingestion estimates for “consumers only” are generated from only the respondents who reported ingestion of drinking water from a community water system during the survey period. The authors report that this group is often the primary focus in analyses of risk due to ingestion of water that may be contaminated. Consequently, this is the only group presented in Table 2. In addition to identifying infants and developing children as sensitive life stages, as noted previously, the NAS identified the fetuses of iodide deficient pregnant women as the most sensitive population (or life stage). To address concerns that the default weight and ingestion rates provided in the October 2008 notice do not apply to this group, EPA has included an alternative HRL for this life stage in Table 2. This value is calculated based on body weight and drinking water ingestion information specifically from pregnant women (USEPA, 2004). EPA notes that for six life stages in Table 2 (birth to < 1 month, 1 to < 3 months, 3 to < 6 months, 16 to 18 years and 18 to 21 years and for pregnant women), the sample size used to estimate some of the drinking water ingestion rates (denoted in Table 2 by foot note c ) do not meet the minimum data requirements as described in the “Third Report on Nutrition Monitoring in the United States” (LSRO, 1995). However, these are the best available data to characterize drinking water ingestion for these specific life stages. EPA also notes that these data clearly show the trend that drinking water mean ingestion rate on a per body weight basis increases as the life stage age decreases. To address this potential concern regarding sample size for some of these drinking water ingestion rates, EPA also aggregated the three youngest recommended age groups into one category on Table 2 (birth to < 6 months) based on data from EPA (USEPA, 2004). To address women of childbearing age, EPA presents HRLs calculated based upon drinking water ingestion data for women ages 15 to 44. To estimate dietary exposure to perchlorate and to calculate RSCs, EPA used data available from two studies previously described by EPA, the FDA's Total Diet Study (Murray *et al.* , 2008) and the NHANES-UCMR Analysis (73 FR 60269-73, October 10, 2008). In cases where these studies did not provide a dietary exposure estimate for one of the recommended child-specific life stages/age groups, EPA applied the RSC calculated for the age group closest to the age group of interest. This meant that the RSCs for the age groups between birth and 6 months, 59%, were based on the mean dietary exposure estimate for infants ages 6 through 11 months, 0.29 μg/kg-day, derived from FDA's Total Diet Study. We understand that infant diets vary significantly between birth and age 11 months and that the TDS mean dietary perchlorate exposure estimates for ages 6 through 11 months consider consumption of baby foods that are not consumed by younger infants (see *http://www.fda.gov/Food/FoodSafety/FoodContaminantsAdulteration/ChemicalContaminants/Perchlorate/ucm077615.htm* ). Researchers from the CDC (Schier *et al.* , 2009) recently published a study in which they estimated exposures to perchlorate from the consumption of infant formula. For infants age 1 month, the researchers' central tendency estimate of perchlorate daily dose from consumption of bovine milk-based infant formula with lactose (the type of formula with the highest concentrations of perchlorate) was also 0.29 μg/kg-day, corresponding to an RSC of 59%. Thus, EPA's RSC for young infants, 59%, is supported through two different estimates of central tendency infant dietary perchlorate exposure. Table 2—Alternative HRLs at the Average, 90th and 95th Percentile Drinking Water Ingestion Rates for Various Life Stages Life stage RfD (μg/kg-day) RSC a (percent) Mean ingestion rate d (mL/kg-day) b Alt HRL (μg/L) 90th Percentile ingestion rate d (mL/kg-day) b Alt HRL (μg/L) 95th Percentile ingestion rate d (mL/kg-day) b Alt HRL (μg/L) Birth to < 1 month 0.7 59 137 3 c 235 2 c 238 2 1 to < 3 months 0.7 59 119 3 c 228 2 c 285 1 3 to < 6 months 0.7 59 80 5 148 3 c 173 2 Birth to < 6 months 0.7 59 95 4 184 2 221 2 6 to < 12 months 0.7 59 53 8 112 4 129 3 1 to < 2 years 0.7 44 27 11 56 6 75 4 2 to < 3 years 0.7 44 26 12 52 6 62 5 3 to < 6 years 0.7 60 24 18 49 9 65 6 6 to < 11 years 0.7 71 17 29 35 14 45 11 11 to < 16 years 0.7 84 13 45 26 23 34 17 16 to < 18 years 0.7 80 12 47 24 23 c 32 18 18 to < 21 years 0.7 80 13 43 29 19 c 35 16 Pregnant Women e 0.7 c 62 c 14 31 c 33 13 c 43 10 Women Ages 15-44 0.7 80 15 37 32 18 39 14 a RSC calculated for nearest age range based on the mean dietary intake from TDS (see Table 5 at 73 FR 60275, October 10, 2008), RSC for pregnant women and women ages 15-44 based on the 90th percentile dietary intake from NHANES-UCMR analysis (see Table 6 at 73 FR 60276, October 10, 2008). b Drinking Water Ingestion Rates for consumers only in Community Water Systems taken from EPA's “Child-Specific Exposure Factors Handbook” (USEPA, 2008e). Except for values for infants from birth to 6 months, which are taken from Tables 5.2.A2 of EPA's “Estimated Per Capita Water Ingestion and Body Weight in the United States—An Update” (USEPA, 2004), and for Pregnant Women and Women Ages 15-44 which are taken from Table 6.2.A2 of EPA's “Estimated Per Capita Water Ingestion and Body Weight in the United States—An Update” (USEPA, 2004). c The sample sizes for the estimates of ingestion rates for these life stages do not meet the minimum data requirements as described in the “Third Report on Nutrition Monitoring in the United States” (LSRO, 1995). d Ingestion rate is adjusted for the self-reported body weights from the CFSII. e The most sensitive population identified by the NRC are the fetuses of pregnant women who might have hypothyroidism or iodide deficiency. 4. Request for Comments EPA Seeks Comments on the Following Issues: a. EPA requests comment on whether the alternative HRLs described in this notice appropriately take into account specific and appropriate exposure values for all potentially sensitive life stages, including infants, children and the fetuses of pregnant women (rather than the 70 kg body weight and 2 liter per day consumption used for past regulatory determinations). b. EPA requests comment on the alternative HRLs in Table 2 and which of these values would be appropriate levels of health concern against which to compare the levels of perchlorate found in public water systems. c. EPA requests comment on whether EPA used the best available and most appropriate data to estimate alternative HRLs in Table 2. EPA specifically requests comment on the drinking water ingestion rates in Table 2 (denoted by footnote c ) where the sample size does not meet the minimum data requirements as described in the “Third Report on Nutrition Monitoring in the United States” (LSRO, 1995). Does aggregating life stages (birth to 6 months, and women ages 15-44) address sample size limitation and still provide an accurate representation of the exposure to the most vulnerable life stages? d. EPA requests comment on the merits of the approach described here of deriving HRLs for sensitive life stages based on the RfD combined with the life stage specific exposure data and whether there are other approaches that may be useful for deriving HRLs. C. Occurrence Analysis 1. Occurrence Analysis in the October 2008 **Federal Register** Notice In the October 2008 FR notice, EPA presented information on the drinking water occurrence of perchlorate. The data source was EPA's UCMR 1 and the samples were collected between 2001 and 2005. A total of 34,331 samples were collected from 3,865 public water systems. EPA found that 1.9% of the samples (637 out of 34,331) had perchlorate at, or above, the minimum reporting level (MRL = 4 μg/L) and that 4.1% of the systems (160 out of 3,865 systems) reported perchlorate at, or above, the MRL in at least one sample. The average perchlorate concentration among systems that detected perchlorate was 9.85 μg/L and the median was 6.40 μg/L. Table 3 presents EPA's estimates of the population served by water systems for which the highest reported perchlorate concentration was greater than various threshold concentrations ranging from 4 μg/L
(MRL)to 25 μg/L. The fourth column presents a high end estimate of the population served drinking water above a threshold. This column presents the total population served by those drinking water systems in which at least one sample was found to contain perchlorate above the threshold concentration. EPA considers this a high-end estimate because it is based upon the assumption that the entire system population is served water from the entry point that had the highest reported perchlorate concentration. In fact, many water systems have multiple entry points into which treated water is pumped for distribution to their consumers. For the systems with multiple entry points, it is unlikely that the entire service population receives water from the one entry point with the highest single concentration. Therefore, EPA also is providing a less conservative estimate of the population served water above a threshold in the fifth column in Table 3. EPA developed this estimate by assuming the population was equally distributed among all entry points. For example, if a system with 10 entry points serving 200,000 people had a sample from a single entry point with a concentration at or above a given threshold, EPA assumed that the entry point served one-tenth of the system population, and added 20,000 people to the total when estimating the population in the last column of Table 3. This approach may provide either an overestimate or an underestimate of the population served by the affected entry point. In contrast, in the example above, EPA added the entire system population of 200,000 to the more conservative population served estimate in column 4, which is most likely an overestimate. EPA noted that the population estimates in Table 3 are for people at all life stages and estimated that at any one time, 1.4 percent of the population in Table 3 are pregnant women based upon data from the U.S. Census Bureau. Table 3—UCMR 1 Occurrence and Population Estimates for Perchlorate Above Various Thresholds Thresholds a PWSs with at least 1 detection > threshold of interest PWS entry or sample points with at least 1 detection > threshold of interest b Population served by PWSs with at least 1 detection > threshold of interest c Population estimate for entry or sample points having at least 1 detection > threshold of interest d 4 μg/L 4.01% (155 of 3,865) 2.48% (371 of 14,987) 16.6 M e 5.1 M. 5 μg/L 3.16% (122 of 3,865) 1.88% (281 of 14,987) 14.6 M 4.0 M. 7 μg/L 2.12% (82 of 3,865) 1.14% (171 of 14,987) 7.2 M 2.2 M. 10 μg/L 1.35% (52 of 3,865) 0.65% (97 of 14,987) 5.0 M 1.5 M. 12 μg/L 1.09% (42 of 3,865) 0.42% (63 of 14,984) 3.6 M 1.2 M. 15 μg/L 0.80% (31 of 3,865) 0.29% (44 of 14,987) 2.0 M 0.9 M. 17 μg/L 0.70% (27 of 3,865) 0.24% (36 of 14,987) 1.9 M 0.8 M. 20 μg/L 0.49% (19 of 3,865) 0.16% (24 of 14,987) 1.5 M 0.7 M. 25 μg/L 0.36% (14 of 3,865) 0.12% (18 of 14,987) 1.0 M 0.4 M. Footnotes: a All occurrence measures in this table were conducted on a basis reflecting values greater than the listed thresholds. b The entry/sample-point-level population served estimate is based on the system entry/sample points that had at least 1 analytical detection for perchlorate greater than the threshold of interest. The UCMR 1 small system survey was designed to be representative of the nation's small systems, not necessarily to be representative of small system entry points. c The system-level population served estimate is based on the systems that had at least 1 analytical detection for perchlorate greater than the threshold of interest. d Because the population served by each entry/sample point is not known, EPA assumed that the total population served by a particular system is equally distributed across all entry/sample points. To derive the entry/sample point-level population estimate, EPA summed the population values for the entry/sample points that had at least 1 analytical detection greater than the threshold of interest. e This value does not include the population associated with 5 systems serving 200,000 people that measured perchlorate at 4 μg/L in at least one sample because the table only shows population estimates greater than each of the thresholds in the first column. The Agency also evaluated supplemental drinking water monitoring data for perchlorate in California and Massachusetts. EPA believes these States' monitoring results are generally consistent with the results collected by EPA under UCMR 1. Perchlorate occurrence analysis from California and Massachusetts can be found online at: *http://www2.cdph.ca.gov/certlic/drinkingwater/Pages/Perchlorate.aspx* and *http://www.mass.gov/dep/water/drinking/percinfo.htm#* sites respectively. 2. What Were the Key Issues Raised by Commenters? EPA received comments on the proposed decision not to regulate perchlorate based on the population exposed above the HRL. Some comments objected to the Agency's proposed HRL as being “inappropriately high” thereby “greatly reducing the size of the population predicted to be exposed at a level of public health concern * * * and significantly minimizing the need for regulation of perchlorate from an occurrence standpoint.” One commenter believes that, “Approximately 4% of public water supplies serving 17 million Americans would be in exceedance of an HRL between 2 and 6 μg/L. This is 15 million more at risk individuals than currently estimated by the Agency.” Another commenter believes that at an HRL of 2 μg/L, 16.6 million would be exposed, and another commenter states that if EPA set the HRL at 5 μg/L, then 5-7 times more individuals would be exposed above the HRL than at 15 μg/L. However, one commenter points out that, “An MCL of 2 μg/L could impact approximately 4% of public water systems nationally. At this level, regional impacts in California and Texas would be greater due to the higher geographical concentration of detections in those states. Yet it should be noted that water systems in Massachusetts, New Jersey and California have already established regulatory limits of 2 μg/L, 5 μg/L and 6 μg/L respectively, thereby capping the population exposure potential from community drinking water sources in those States.” 3. Numbers of Systems and Populations That Would Be Exposed at Levels Exceeding the Alternative Approaches the Agency Is Considering EPA plans to use the UCMR 1 perchlorate data to conduct analyses to estimate the number of systems and populations served by systems that would be exposed to the various alternative HRL concentrations of perchlorate. Estimates will be made of the populations served by systems for which the highest reported perchlorate concentration exceeds the various threshold concentrations ranging from 1 μg/L to 25 μg/L. One limitation to the UCMR 1 data is that the perchlorate analytical method MRL is 4 μg/L; only perchlorate sample detections greater than or equal to 4 μg/L can be dependably quantified and reported. Any perchlorate sample concentration with a value between 0 and 4 μg/L is recorded in the UCMR 1 data as a “non-detection.” Therefore, to estimate perchlorate occurrence relative to concentrations both above and below the MRL of 4 μg/L, while fully using all perchlorate detection and non-detection data, it is necessary to estimate occurrence using modeling techniques EPA is considering using a Bayesian hierarchical model (a form of probabilistic model that uses maximum likelihood estimation techniques) to estimate perchlorate occurrence and to estimate the uncertainty and variability of those occurrence estimates. For this modeling effort, EPA could use the basic assumption that the national distribution of perchlorate sample concentrations can be modeled as a lognormal distribution. The lognormal distribution is a fundamental probability distribution that is used commonly and effectively to characterize environmental contaminant occurrence. The basic characteristic of a lognormal distribution is that the logarithms of the values being evaluated (in this case, the perchlorate concentrations of UCMR 1 samples of drinking water) are normally distributed. One property of the lognormal distribution that makes it particularly well-suited to describing phenomena like environmental contaminant occurrence data is that it is bounded by zero on the low end and it reflects a “right-skewed” distribution—that is, it has a tail in the upper end—that is consistent with having a small proportion with relatively high values. The Bayesian model could estimate the number of public water systems, and populations served by systems, with at least one estimated sample detection greater than 1, 2, 3, 4, 5, 7, 10, 12, 15, 17, 20, and 25 μg/L. EPA notes that systems or entry/sample points with at least one detect above the threshold may not expose the population to this level at all times. At any particular time, perchlorate levels may be lower or higher than the highest estimated sample detection. However, EPA believes this approach more closely reflects the short term exposure during life stages of concern ( *i.e.,* fetuses, pre-term newborns, infants and young children) than does the estimated mean concentration of perchlorate at a system. EPA underscores the fact that the estimated total population exposed at thresholds that lie below the perchlorate MRL of 4 μg/L would be equal to, if not greater than, the corresponding high end estimate of 16.8 million people. To estimate the portion of the total population that is at a childhood life stage potentially exposed at these thresholds, EPA could use U.S. Census data as it did in the October 2008 FR notice to estimate the number of pregnant women potentially exposed above the HRL and could also estimate the number of infants and children potentially exposed above the HRL Perchlorate monitoring data from the State of Massachusetts could be used to help characterize the distribution of very low perchlorate concentration occurrence. Massachusetts monitoring uses a modified version of the EPA laboratory analytical method for perchlorate that has a MRL of 1 μg/L. This is the only known, state-wide monitoring program that uses an analytical method with an MRL lower than 4 μg/L. Bayesian hierarchical modeling can use the Massachusetts data to improve the model estimates in the lower concentration ranges. 4. Request for Comment on Alternative Approaches EPA Seeks Comments on the Following Issues: a. EPA requests comment on the potential use of a Bayesian model to estimate the number of public water systems, and populations served by such systems, with at least one estimated sample detection greater than 1, 2, 3, 4, 5, 7, 10, 12, 15, 17, 20, and 25 μg/L. b. EPA requests comment on using U.S. Census data to estimate the portions of the population that are in the sensitive life stage at any one time. c. EPA requests comment on how the Agency should account for the variation of perchlorate levels over time in public water systems. EPA believes that estimating the number of systems, entry points and populations with at least one detection above the HRL is appropriate for the perchlorate regulatory determination because a single quarterly or semi-annual sample more closely reflects the short term exposure during life stages of concern (i.e., fetuses, pre-term newborns, infants and young children). However, EPA requests comment on whether the Agency should consider other approaches such as estimating the number of systems, entry points and populations with two or more detections above HRL or some other approach. IV. Consideration of Studies Published Since EPA Adopted the NAS RfD for Perchlorate EPA's preliminary regulatory determination is based on NRC's (NRC, 2005) recommendation to use data from the Greer *et al.*
(2002)study as the basis for the perchlorate RfD/risk assessment. Since the publication of the NRC report, researchers have investigated perchlorate occurrence in humans by analyzing for perchlorate in urine and breast milk—such biomonitoring data has the potential to better inform EPA's analysis of exposure to perchlorate through food and water and to provide insight into the possible interactions of other physiologic conditions ( *e.g.,* iodine deficiency) with perchlorate ingestion. EPA's preliminary regulatory determination described the consideration of these studies, many of which were published after the NRC report (including, but not limited to, Blount *et al.* (2006 and 2007), Steinmaus *et al.* (2007), and Amitai *et al.* (2007)) (73 FR 60267-68, October 10, 2008). CDC researchers published two biomonitoring papers using CDC's 2001-2002 NHANES data—the first study measured perchlorate in urine (Blount *et al.,* 2006) and the second examined the relationship between urinary perchlorate and thyroid hormone levels (Blount *et al.,* 2007). In the urinary biomonitoring study, the authors found perchlorate in all samples tested (2,820 survey participants ages six and older) and estimated a total daily perchlorate dose for adults (doses for children were not calculated). The median dose was about one tenth (0.066 μg/kg/day) of the RfD, while the 95th percentile dose was about one third of the RfD (0.234 μg/kg/day). In the second study, which examined the relationship between urinary levels of perchlorate and blood serum levels of thyroid hormones, Blount *et al.*
(2007)found that for women with low iodine levels (urinary iodide levels less than 100 μg/L) urinary perchlorate is associated with a decrease in (a negative predictor for) T4 levels and an increase in (a positive predictor for) thyroid stimulating hormone levels. The perchlorate exposures at which this association was observed are lower than anticipated based on other studies. The study authors indicated that further research needs to be performed to confirm these findings. The subsequent Steinmaus
(2007)analysis of the same NHANES 2001-2002 epidemiological data concluded that thiocyanate in tobacco smoke and perchlorate interact in affecting the thyroid function in low-iodine women. The Amitai *et al.* study assessed thyroid hormone (thyroxine) values in newborns in different perchlorate exposure groups (low, high and very high) and found no significant differences. In studies analyzing breast milk for perchlorate, Pearce *et al.*
(2007)and Kirk *et al.* (2005, 2007) all found perchlorate in study samples. The objective of the Pearce *et al.*
(2007)study was “to determine whether breast milk iodine concentrations in Boston-area women are adequate for infant nutrition, and whether breast milk iodine concentrations may be associated with environmental perchlorate or cigarette smoke exposure.” Pearce *et al.*
(2007)did not find a significant correlation with either breast milk perchlorate or urinary perchlorate levels with breast milk iodine concentrations. The objective of the Kirk * et al.*
(2005)study was to determine the amount of perchlorate to which children are exposed by measuring perchlorate and iodide levels in cow and human breast milk and then comparing these numbers to corresponding levels of perchlorate in drinking water in the area. Kirk *et al.*
(2005)did not find a correlation between the levels of perchlorate in breast milk and perchlorate in drinking water, but speculated that there was a correlation between higher levels of perchlorate and lower levels of iodine in breast milk. The objective of the Kirk *et al.*
(2007)study was to determine the variability of perchlorate, thiocyanate, and iodide in breast milk in serially collected samples (6 samples on each of the 3 study days) involving 10 women. The authors concluded that “Iodine intake may be inadequate in a significant fraction of this study population. Perchlorate and thiocyanate appear to be common in human milk. The role of these chemicals in reducing breast milk iodide is in need of further investigation.” Blount *et al.*
(2007)suggested breast milk as an excretion pathway and Dasgupta *et al.*
(2008)compared a woman's daily intake of iodine and perchlorate with the concentrations of each in her breast milk. The Dasgupta *et al.* study found that a higher proportion of perchlorate enters the breast milk compared with a small proportion of iodine. Of those commenters that provided detailed comments to the October 2008 FR notice, many commenters believe that EPA's RfD is not adequately protective of human health. One commenter stated that “[T]he EPA reference dose for perchlorate is based on data from Greer *et al.*
(2002)that observed the inhibition of radioiodide uptake. Ginsberg and Rice
(2005)identified several problems with the Greer *et al.* study that suggest the need for reevaluation of the value that serves as the foundation for regulatory decision-making,” and that, “* * * the results of the Blount study more closely reflect our understanding of the biological and toxicological processes pertaining to thyroid homeostasis, both in terms of thyroid hormone variability and the role of iodine.” The commenter “[S]trongly recommends that the CDC data analyzed in the study of Blount *et al.*
(2006)and Blount *et al.*
(2007)be used as the basis for the derivation of a new reference dose.” Other commenters agree, stating that the use of the Greer *et al.*
(2002)study “* * * is based on a limited clinical study of short duration and small sample size not representative of the variability in the human population,” and the “[U]se of these limited data to calculate a regulatory trigger level has been widely criticized as inadequate * * * and no longer reflects the best available data.” Another commenter believes that “[A]dditional important data on pregnant women and their offspring have become available since the time of development of the EPA RfD in 2005 which would necessitate a reconsideration of the existing value * * * in addition EPA has discussed other data relevant to deriving an updated RfD in this Federal Register notice including Amitai *et al.,* 2007, Blount *et al.,* 2006, and studies discussing PBPK models.” One commenter concludes by stating, “* * * [T]hat EPA has based its argument for not regulating perchlorate contamination in public water systems on a literature that is both limited and ill focused. We believe that EPA has not performed a sufficiently ‘thorough review’ of the literature, that it has omitted important information, and that it has failed to perform its due diligence in the interpretation and analysis of the information that it did present. To correct this, EPA must employ the CDC study (Blount *et al* ., 2006a) as the point of departure for RfD determination, and must focus on the neonate and infant as the most sensitive population.” One commenter does not believe that additional analysis is warranted and that EPA should issue a final determination as soon as possible, stating that “EPA has an extraordinary wealth of comprehensive, authoritative scientific information relating to perchlorate's health effects, supplemented by extensive occurrence and exposure data. The Agency is therefore exceptionally well-positioned to issue a well-considered regulatory determination.” The commenter continues by stating, * * * EPA has ample scientific and technical data to make a final determination on or before the planned date of December 2008 * * *. [P]erchlorate is one of the most well‐studied chemicals with detailed information on the mechanism of action, dose‐response, and health effects. This issue also is not new. EPA released its first draft risk assessment on perchlorate in 1998, followed by a second in 2002. The 2005 NAS report was a comprehensive review of the science. The animal and human studies that have been published since the NAS report reduce the uncertainty and reinforce the NAS panel's finding that there will not be any adverse health effects from perchlorate at environmentally‐relevant concentrations. New studies published since the NAS report increase the weight of evidence that the current RfD protects human health including the most sensitive members of our population. In addition, testimony by Congressional members and witnesses alike have discussed the lengthy amount of time that EPA has spent studying the health effects, urging the agency to issue a determination as soon as practicable. We join them in urging EPA to issue the final determination promptly. An additional key scientific issue was raised by EPA's OIG in the report released for public comment “OIG Scientific Analysis of Perchlorate (External Review Draft)” (EPA, 2008g). The report states, The OIG Analysis concludes that a single chemical risk assessment of perchlorate is not sufficient to assess and characterize the combined human health risk from all four NIS stressors, ( *i.e.,* thiocyanate, nitrate, perchlorate and lack of iodide) and that * * * Only a cumulative risk assessment can fully characterize the nature and sources of risk affecting this public health issue. Furthermore, a cumulative risk assessment allows an informed environmental decision to be made on how to mitigate the risk effectively. The report goes on to say, Potentially lowering the perchlorate drinking water limit from 24.5 ppb to 6 ppb does not provide a meaningful opportunity to lower the public's risk. By contrast, addressing moderate and mild iodide deficiency occurring in about 29% of the U.S. pregnant and nursing population appears to be the most effective approach of increasing TIU [total iodide uptake] to healthy levels during pregnancy and nursing, thereby reducing the frequency and severity of permanent mental deficits in children. The draft report, and comments submitted by EPA's Office of Water and Office of Research and Development, can be found in the Docket to this notice. EPA agrees that additional important data have become available since the RfD was derived in 2005. However, EPA has evaluated the new data and has decided to make the regulatory determination based upon the current RfD. EPA will continue to evaluate any new perchlorate data to determine its relevance to the regulatory determination in accordance with the SDWA. V. Next Steps The Agency will consider the information and comments submitted in response to this supplemental notice, as well as comments received on the October 10, 2008, FR notice, and all peer review comments before issuing a final regulatory determination for perchlorate and intends to do so as expeditiously as possible. EPA believes that the alternative analyses presented in this notice could lead the Agency to make a determination to regulate perchlorate. VI. References Amitai Y, Winston G, Sack J, Wasser J, Lewis M, Blount BC, Valentin-Blasini L, Fisher N, Israeli A, and Leventhal A. (2007). Gestational exposure to high perchlorate concentrations in drinking water and neonatal thyroxine levels. *Thyroid.* 17(9): 843-850. Blount, B.C., J.L. Pirkle, J.D. Osterloh, L. Valentín-Blasini, and K.L. Caldwell. 2006. Urinary perchlorate and thyroid hormone levels in adolescent and adult men and women living in the United States. *Environmental Health Perspectives.* Vol. 114, No. 12. pp. 1865-1871. Blount, B.C., L. Valentín-Blasini, J.D. Osterloh, J.P. Mauldin, and J.L. Pirkle. 2007. Perchlorate Exposure of the US Population, 2001-2002. *J. Exposure Sci. Environ. Epidemiol.*
(2007)17, 400-407. Dasgupta, P.K., A.B. Kirk, J.V. Dyke, and S.I. Ohira. 2008. Intake of Iodine and Perchlorate Excretion in Human Milk. *Environ. Sci. Technol.* Advance online publication accessed September 18, 2008. DeWoskin R. and C. Thompson. 2008. Renal clearance parameters for PBPK model analysis of early lifestage differences in the disposition of environmental toxicants. *Regul Toxicol Pharmacol.* 2008 Jun;51(1):66-86. Ginsberg G, Rice D, 2005. The NAS Perchlorate Review: Questions Remain about the Perchlorate RfD. *Environ Health Perspectives* 113(9):1117-1119. Greer, M.A., G. Goodman, R.C. Pleuss, and S.E. Greer. 2002. Health effect assessment for environmental perchlorate contamination: the dose response for inhibition of thyroidal radioiodide uptake in humans. *Environ Health Perspect* Vol. 110. pp. 927-937. Kahn, H.D., and K. Stralka. 2008. Estimated daily average per capita water ingestion by child and adult age categories based on USDA's 1994-1996 and 1998 continuing survey of food intakes by individuals. *Journal of Exposure Science and Environmental Epidemiology*
(2009)19(4):396-404. Kirk, A.B., P.K. Martinelango, K. Tian, A. Dutta, E.E. Smith, and P.K. Dasgupta. 2005. Perchlorate and iodide in dairy and breast milk. *Environmental Science and Technology.* Vol. 39, No. 7. pp. 2011-2017. Kirk, A.B., J.V. Dyke, C.F. Martin, and P.K. Dasgupta. 2007. Temporal patterns in perchlorate, thiocyanate and iodide excretion in human milk. *Environ Health Perspect Online* Vol. 115, No. 2. pp. 182-186. Life Sciences Research Office, Federation of American Societies for Experimental Biology Prepared for the Interagency Board for Nutrition Monitoring and Related Research. 1995. Third Report on Nutrition Monitoring in the United States: Volume 1. U.S. Government Printing Office, Washington DC. Murray, C.W III, S.K. Egan, H. Kim, N. Beru, P.M. Bolger. 2008. US Food and Drug Administration's Total Diet Study: Dietary Intake of Perchlorate and Iodine. *Journal of Exposure Science and Environmental Epidemiology* , advance online publication January 2, 2008. National Research Council (NRC). 2005. *Health Implications of Perchlorate Ingestion.* National Academies Press, Board on Environmental Studies and Toxicology. January 2005. 276 p. Pearce, E.N., A.M. Leung, B.C. Blount, H.R. Bazrafshan, X. He, S. Pino, L. Valentin-Blasini, L.E. Braverman. 2007. Breast milk iodine and perchlorate concentrations in lactating Boston-area women. *J Clin Endocrin Metab* Vol. 92, No. 5, pp. 1673-1677 Schier, J.G., A.F. Wolkin, L.Valentin-Blasini, M.G. Belson, S.M. Kieszak, C.S. Rubin, B.C. Blount. *Journal of Exposure Science and Environmental Epidemiology* , advance online publication 18 March 2009; doi: 10.1038/jes.2009.18. Steinmaus, C., M.D. Miller, R. Howd. 2007. Impact of smoking and thiocyanate on perchlorate and thyroid hormone associations in the 2001-2002 National Health and Nutrition Examination Survey. *Environ Health Perspect* 115(9):1333-8. USEPA. 1995. Guidance for Risk Characterization. Science Policy Council, February, 1995. USEPA. 2004. Estimated Per Capita Water Ingestion and Body Weight in the United States—An Update. Office of Science and Technology, Washington, DC; EPA/822/R-00-001. USEPA. 2005. Guidance on Selecting Age Groups for Monitoring and Assessing Childhood Exposures to Environmental Contaminants. National Center for Environmental Assessment, Washington, DC; EPA/630/P-03/003F. USEPA. 2008a. Drinking Water: Preliminary Regulatory Determination on Perchlorate, Federal Register, Vol. 73, No. 198. p. 60262, October 10, 2008. USEPA. 2008b. Inhibition of the Sodium-Iodide Symporter by Perchlorate: An Evaluation of Lifestage Sensitivity Using Physiologically-Based Pharmacokinetic
(PBPK)Modeling. Office of Research and Development, Washington, DC; EPA/600/R-08/106A. USEPA. 2008c. External letter peer review of EPA's draft report, Inhibition of the Sodium-Iodide Symporter by Perchlorate: An Evaluation of Lifestage Sensitivity Using Physiologically-based Pharmacokinetic
(PBPK)Modeling. National Center for Environmental Assessment, Washington, DC; November 12, 2008. USEPA. 2008d. Interim Drinking Water Health Advisory for Perchlorate. Office of Science and Technology, Washington, DC; EPA 822-R-08-025. USEPA. 2008e. Comment Response Summary Report, Peer Review of Drinking Water Health Advisory for Perchlorate. Office of Science and Technology, Washington, DC; December 2008. USEPA. 2008f. Child-Specific Exposure Factors Handbook. National Center for Environmental Assessment, Washington, DC; EPA/600/R-06/096F. USEPA. 2008g. Scientific Analysis of Perchlorate (External Review Draft). Office of Inspector General, Washington, DC; Assignment No. 2008-0010. Dated: August 5, 2009. Peter S. Silva, Assistant Administrator, Office of Water. [FR Doc. E9-19507 Filed 8-18-09; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPPT-2009-0496; FRL-8429-5] National Advisory Committee for Acute Exposure Guideline Levels for Hazardous Substances; Notice of Public Meeting AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: A meeting of the National Advisory Committee for Acute Exposure Guideline Levels for Hazardous Substances (NAC/AEGL Committee) will be held on September 9-11, 2009, in Research Triangle Park, NC. At this meeting, the NAC/AEGL Committee will address, as time permits, the various aspects of the acute toxicity and the development of Acute Exposure Guideline Levels (AEGLs) for the following chemicals: Cadmium; carbofuran; carbon dioxide; dichlorovos; dicrotophos; dimethyl phosphate; fenamiphos; gasoline; hydrogen selenide; lead; methamidophos; methyl iodide; mevinphos; monocrotophos; nerve agent GB; phosgene; phosphamidon; red phosphorus; ricin; tetrachloroethylene; 1,1,1-trichloroethylene; and trimethylphosphite. DATES: A meeting of the NAC/AEGL Committee will be held from 10 a.m. to 5 p.m. on September 9, 2009; from 8 a.m. to 5 p.m. on September 10, 2009; and from 8 a.m. to noon on September 11, 2009. ADDRESSES: The meeting will be held at the EPA Main Campus, 109 T.W. Alexander Dr., Research Triangle Park, NC 27711. FOR FURTHER INFORMATION CONTACT: Paul S. Tobin, Designated Federal Officer (DFO), Risk Assessment Division (7403M), Office of Pollution Prevention and Toxics, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(202)564-8557; e-mail address: *tobin.paul@epa.gov* . To request accommodation of a disability, please contact the DFO, preferably at least 10 days prior to the meeting, to give EPA as much time as possible to process your request. SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? This action is directed to the public in general. This action may be of particular interest to anyone who may be affected if the AEGL values are adopted by government agencies for emergency planning, prevention, or response programs, such as EPA's Risk Management Program under the Clean Air Act and Amendments Section 112r. It is possible that other Federal agencies besides EPA, as well as State agencies and private organizations, may adopt the AEGL values for their programs. As such, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Get Copies of this Document and Other Related Information? 1. *Docket* . EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPPT-2009-0496. All documents in the docket are listed in the docket index available at *http://www.regulations.gov* . 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, will be publicly available only in hard copy. Publicly available docket materials are available electronically at *http://www.regulations.gov* , or, if only available in hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number of the EPA/DC Public Reading Room is
(202)566-1744, and the telephone number for the OPPT Docket is
(202)566-0280. Docket visitors are required to show photographic identification, pass through a metal detector, and sign the EPA visitor log. All visitor bags are processed through an X-ray machine and subject to search. Visitors will be provided an EPA/DC badge that must be visible at all times in the building and returned upon departure. 2. *Electronic access* . You may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . II. Meeting Procedures For additional information on the scheduled meeting, the agenda of the NAC/AEGL Committee, or the submission of information on chemicals to be discussed at the meeting, contact the DFO. The meeting of the NAC/AEGL Committee will be open to the public. Oral presentations or statements by interested parties will be limited to 10 minutes. Interested parties are encouraged to contact the DFO to schedule presentations before the NAC/AEGL Committee. Since seating for outside observers may be limited, those wishing to attend the meeting as observers are also encouraged to contact the DFO at the earliest possible date to ensure adequate seating arrangements. Inquiries regarding oral presentations and the submission of written statements or chemical-specific information should be directed to the DFO. III. Future Meetings Another meeting of the NAC/AEGL Committee is scheduled for Spring 2010. List of Subjects Environmental protection, Chemicals, Hazardous substances, Health. Dated: August 7, 2009. Barbara Cunningham, Acting Director, Office of Pollution Prevention and Toxics. [FR Doc. E9-19532 Filed 8-18-09; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPP-2008-0143; FRL-8430-8] State FIFRA Issues Research and Evaluation Group; Full Committee Meeting AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: The Association of American Pesticide Control Officials (AAPCO)/State FIFRA Issues Research and Evaluation Group (SFIREG), Pesticide Operations and Management
(POM)Working Committee will hold a 2-day meeting, beginning on September 21, 2009 and ending September 22, 2009. This notice announces the location and times for the meeting and sets forth the tentative agenda topics. DATES: The meeting will be held on Monday, September 21, 2009 from 8:30 a.m. to 5 p.m. and 8:30 a.m to 12 noon on Tuesday, September 22, 2009. To request accommodation of a disability, please contact the person listed under FOR FURTHER INFORMATON CONTACT , preferably at least 10 days prior to the meeting, to give EPA as much time as possible to process your request. ADDRESSES: The open meeting will be held at the EPA, One Potomac Yard (South Bldg.) 2777 Crystal Dr., Arlington, VA., 1st Floor South Conference Room. FOR FURTHER INFORMATION CONTACT: Ron Kendall, Field and External Affairs Division (7506P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)305-5561 fax number:
(703)308-1850; e-mail address: *kendall.ron@epa.gov* , or Grier Stayton, SFIREG Executive Secretary, P.O. Box 466, Milford DE 19963; telephone number
(302)422-8152; fax
(302)422-2435; e-mail address: *grierstayton aapco-sfireg@comcast.net* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are interested in SFIREG information exchange relationship with EPA regarding important issues related to human health, environmental exposure to pesticides, and insight into EPA's decision-making process. You are invited and encouraged to attend the meetings and participate as appropriate. Potentially affected entities may include, but are not limited to: Those persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug and Cosmetics Act (FFDCA), or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). B. How Can I Get Copies of this Document and Other Related Information? 1. *Docket.* EPA has established a docket for this action under docket ID number EPA-HQ-OPP-2008-0143. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the Office of Pesticide Programs
(OPP)Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. 2. *Electronic access* . You may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . II. Background Topics may include but are not limited to: 1. Updates to the Section 24(c) registration guidance document. 2. Review of soil fumigant label tables. 3. Refining the Product Use Classification Changes issue paper. 4. PRISM structured e-labeling. 5. Comparative safety statements and DfE labeling. 6. POM Working Committee Workgroups Issue papers/Updates. 7. EPA Update Briefing: • Office of Pesticide Programs Update. • Office of Enforcement Compliance Assurance Update. 8. Clarifying allowable carrier volume under FIFRA Section 2(ee). 9. Finalizing acetochlor groundwater protection label language. III. How Can I Request to Participate in this Meeting? This meeting is open for the public to attend. You may attend the meeting without further notification. If you want to request to attend as a participant you may also submit a request to participate in this meeting to the person listed under FOR FURTHER INFORMATION CONTACT . Do not submit any information in your request that is considered CBI. Requests to participate in the meeting, identified by docket ID number EPA-HQ-OPP-2008-0143;, must be received on or before September 1, 2009. List of Subjects Environmental protection, Pesticides and pest. Dated: August 7, 2009. Kevin Keaney Acting Director, Field and External Affairs Division, Office of Pesticide Programs. [FR Doc. E9-19531 Filed 8-18-09; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPP-2009-0045; FRL-8429-9] Notice of Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: This notice announces the Agency's receipt of several initial filings of pesticide petitions proposing the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities. DATES: Comments must be received on or before September 18, 2009. ADDRESSES: Submit your comments, identified by docket identification
(ID)number and the pesticide petition number
(PP)of interest as shown in the body of this document, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket Facility's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is
(703)305-5805. *Instructions* : Direct your comments to the docket ID number and the pesticide petition number of interest as shown in the body of this document. EPA's policy is that all comments received will be included in the docket without change and may be made available on-line at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket* : All documents in the docket are listed in the docket index available at *http://www.regulations.gov* . 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, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: A contact person, with telephone number and e-mail address, is listed at the end of each pesticide petition summary. You may also reach each contact person by mail at Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed at the end of the pesticide petition summary of interest. B. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI* . Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for preparing your comments* . When submitting comments, remember to: i. Identify the document by docket ID number and other identifying information (subject heading, **Federal Register** date and page number). ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. iv. Describe any assumptions and provide any technical information and/or data that you used. v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. vi. Provide specific examples to illustrate your concerns and suggest alternatives. vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. viii. Make sure to submit your comments by the comment period deadline identified. 3. *Environmental justice* . EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population. II. What Action is the Agency Taking? EPA is announcing its receipt of several pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, proposing the establishment or modification of regulations in 40 CFR part 174 or part 180 for residues of pesticide chemicals in or on various food commodities. EPA has determined that the pesticide petitions described in this notice contain the data or information prescribed in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petitions. Additional data may be needed before EPA can make a final determination on these pesticide petitions. Pursuant to 40 CFR 180.7(f), a summary of each of the petitions that are the subject of this notice, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available on-line at *http://www.regulations.gov* . As specified in FFDCA section 408(d)(3), (21 U.S.C. 346a(d)(3)), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit. New Tolerance Exemption 1. *PP 9E7557* . (EPA-HQ-OPP-2009-0479). Rhodia, Inc., 8 Cedar Brook Dr., Cranbury, NJ 08512, proposes to establish an exemption from the requirement of a tolerance for residues of alkyl (C <sup>12</sup> -C <sup>16</sup> ) dimethyl ammonio acetate
(ADAA)when used as a pesticide inert ingredient in pesticide formulations applied to growing crops and when applied to animals, under 40 CFR 180.920 and 180.930, with a limit of up to 20 percent of pesticide formulations. This tolerance expression includes: alkyl (C <sup>12</sup> ) dimethyl ammonio acetate (C <sup>12</sup> -ADAA), CAS No. 683-10-3; alkyl (C <sup>14</sup> ) dimethyl ammonio acetate (C <sup>14</sup> -ADAA), CAS No. 2601-33-4; and alkyl (C <sup>16</sup> ) dimethyl ammonio acetate (C <sup>16</sup> -ADAA), CAS No. 693-33-4. The petitioner believes no analytical method is needed because this petition is a request for an exemption from the requirement of a tolerance. Contact: Elizabeth Fertich,
(703)347-8560; *fertich.elizabeth@epa.gov* . 2. *PP 9E7562* . (EPA-HQ-OPP-2008-0822). Akzo Nobel Surface Chemistry, LLC, 525 West Van Buren St., Chicago, IL 60607-3823, proposes to establish an exemption from the requirement of tolerances in 40 CFR 180.910 for residues of mono-, di-, and trimethylnapthalenesulfonic acids and napthalenesulfonic acids formaldehyde condensates, ammonium and sodium salts when used as a pesticide inert ingredient in pesticide formulations in or on all raw agricultural commodities. The petitioner believes no analytical method is needed because this petition is a request for an exemption from the requirement of a tolerance. Contact: Elizabeth Fertich,
(703)347-8560; *fertich.elizabeth@epa.gov* . List of Subjects Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements. Dated: August 11, 2009. G. Jeffrey Herndon, Acting Director, Registration Division, Office of Pesticide Programs. [FR Doc. E9-19859 Filed 8-18-09; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPPT-2009-0001; FRL-8414-3] Proposed Acute Exposure Guideline Levels for Hazardous Substances; Notice of Availability AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: The National Advisory Committee for Acute Exposure Guideline Levels for Hazardous Substances (NAC/AEGL Committee) is developing AEGLs on an ongoing basis to provide Federal, State, and local agencies with information on short-term exposures to hazardous substances. This notice provides a list of 19 proposed AEGLs that are available for public review and comment. Comments are welcome on both the proposed AEGLs and their Technical Support Documents placed in the docket. DATES: Comments must be received on or before September 18, 2009. ADDRESSES: Submit your comments, identified by docket identification
(ID)number EPA-HQ-OPPT-2009-0001, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Hand Delivery* : OPPT Document Control Office (DCO), EPA East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. Attention: Docket ID Number EPA-HQ-OPPT-2009-0001. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the DCO is
(202)564-8930. Such deliveries are only accepted during the DCO’s normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions* : Direct your comments to docket ID number EPA-HQ-OPPT-2009-0001. EPA's policy is that all comments received will be included in the docket without change and may be made available on-line at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA’s public docket, visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* . *Docket* : All documents in the docket are listed in the docket index available at *http://www.regulations.gov* . 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 electronically at *http://www.regulations.gov* , or, if only available in hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. The telephone number of the EPA/DC Public Reading Room is
(202)566-1744, and the telephone number for the OPPT Docket is
(202)566-0280. Docket visitors are required to show photographic identification, pass through a metal detector, and sign the EPA visitor log. All visitor bags are processed through an X-ray machine and subject to search. Visitors will be provided an EPA/DC badge that must be visible at all times in the building and returned upon departure. FOR FURTHER INFORMATION CONTACT: *For general information contact* : Colby Lintner, Regulatory Coordinator, Environmental Assistance Division (7408M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(202)554-1404; e-mail address: *TSCA-Hotline@epa.gov* . *For technical information contact* : Paul S. Tobin, Designated Federal Officer (DFO), Office of Pollution Prevention and Toxics (7406M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number:
(202)564-8557; e-mail address: *tobin.paul@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? This action is directed to the general public to provide an opportunity for review and comment on proposed AEGLs and their Technical Support Documents. This action may be of particular interest to anyone who may be affected if the AEGLs are adopted by government agencies for emergency planning, prevention, or response programs, such as EPAs Risk Management Program under the Clean Air Act and Amendments Section 112r. It is possible that other Federal agencies besides EPA, as well as State and local agencies and private organizations, may adopt the AEGLs for their programs. As such, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the DFO listed under FOR FURTHER INFORMATION CONTACT . B. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI* . Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for preparing your comments* . When submitting comments, remember to: i. Identify the document by docket ID number and other identifying information (subject heading, **Federal Register** date and page number). ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. iv. Describe any assumptions and provide any technical information and/or data that you used. v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. vi. Provide specific examples to illustrate your concerns and suggest alternatives. vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. viii. Make sure to submit your comments by the comment period deadline identified. II. What Action is the Agency Taking? EPAs Office of Prevention, Pesticides and Toxic Substances (OPPTS) provided notice on October 31, 1995 (60 FR 55376) (FRL-4987-3) of the establishment of the NAC/AEGL Committee with the stated charter objective as “the efficient and effective development of AEGLs and the preparation of supplementary qualitative information on the hazardous substances for Federal, State, and Local agencies and organizations in the private sector concerned with [chemical] emergency planning, prevention, and response.” The NAC/AEGL Committee is a discretionary Federal advisory committee formed with the intent to develop AEGLs for hazardous substances through the combined efforts of stakeholder members from both the public and private sectors in a cost-effective approach that avoids duplication of efforts and provides uniform values, while employing the most scientifically sound methods available. This action provides notice of availability for public review and comment, of proposed AEGLs and underlying supporting documents for 19 hazardous substances. These AEGLs represent the 12 th set of exposure levels proposed and published by the NAC/AEGL Committee. These 12 sets of AEGLs cover 259 hazardous substances. Background information on the AEGL Program may be found in these earlier **Federal Register** notices, in the regulations.gov, or on the AEGL webpage ( *http://www.epa.gov/oppt/aegl* ). Following public review and comment, the NAC/AEGL Committee will reconvene to consider relevant comments, data, and information that may have an impact on the NAC/AEGL Committees position and will again seek consensus for the establishment of Interim AEGLs. Although the Interim AEGLs will be available to Federal, State and local agencies and to organizations in the private sector as biological reference values, it is intended to have them reviewed by a subcommittee of the National Academies (NAS). The NAS subcommittee will serve as a peer review of the Interim AEGLs and as the final arbiter in the resolution of issues regarding the AEGLs, and the data and basic methodology used for setting AEGLs. Following concurrence, Final AEGLs will be published under the auspices of the NAS. III. List of Hazardous Substances On behalf of the NAC/AEGL Committee, EPA is providing an opportunity for public comment on the proposed AEGLs for the 19 hazardous substances identified in the table in this unit. Technical Support Documents are available in the docket for this notice. See ADDRESSES for docket information. Chemical Name CAS Number 1,2-Butylene oxide 106-88-7 Bromoacetone 598-31-2 Cyanogen 460-19-5 Ethylbenzene 100-41-4 Ethylisocyanate 109-90-0 Ethylphosphorodichloridate 1498-51-7 Germane 7782-65-2 Malathion 121-75-5 Methylisothiocyanate 556-61-6 Methylparathion 298-00-0 *n* -Butyl isocyanate 111-36-4 Nitrogentrifluoride 7783-54-2 Nitrogentetroxide 10544-72-6 Parathion 56-38-2 Phenyl isocyanate 103-71-9 Phorate 298-02-2 *t* -Octyl mercaptan 141-59-3 Tear gas 2698-41-1 Trimethylacetyl chloride 3282-30-2 List of Subjects Environmental protection, Acute Exposure Guideline Levels, Hazardous substances, Health. Dated: August 4, 2009. Stephen A. Owens, Assistant Administrator, Office of Prevention, Pesticides and Toxic Substances. [FR Doc. 09-19860 Filed 8-18-09; 8:45 am]
Connectionstraces to 89
Traces to 89 documents
CFR
U.S. Code
74 references not yet in our index
  • 33 CFR 117
  • 39 CFR 3020
  • 39 CFR 3015.5
  • 39 CFR 3015.5(c)(2)
  • 40 CFR 180
  • 40 CFR 180.920
  • 40 CFR 178
  • 40 CFR 2
  • Pub. L. 104-170
  • 40 CFR 153.125
  • Pub. L. 104-4
  • Pub. L. 104-113
  • 47 CFR 73
  • Pub. L. 104-13
  • Pub. L. 107-198
  • 8 CFR 274
  • 552 F. Supp. 2d 999
  • Pub. L. 99-603
  • 8 CFR 274.1(l)
  • 5 USC 601-612
  • 109 Stat. 48
  • Pub. L. 104-121
  • 110 Stat. 847
  • 61 FR 4729
  • 44 USC 3501-3520
  • 8 CFR 2
  • Pub. L. 101-410
  • 104 Stat. 890
  • Pub. L. 104-134
  • 14 CFR 39
  • Pub. L. 110-5
  • Pub. L. 111-8
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • 40 CFR 52
  • 40 CFR 51
  • 40 CFR 81
  • 472 F.3d 882
  • 5 CFR 1320.3(b)
  • 427 U.S. 246
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Unknown
Notice of temporary deviation from regulations; request for comments
C.F.R.§ 117.35
C.F.R.§ 117.5
U.S.C.§ 3632
U.S.C.§ 3633
U.S.C.§ 503
U.S.C.§ 346a
Fed. Reg.Notices
Fed. Reg.Notices
Fed. Reg.Notices
F. Supp.552 F. Supp. 2d 999
F. App'x472 F.3d 882
SCOTUS427 U.S. 246
Cites 163 · showing 12Cited by 0 across 0 sources
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