232 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 

1Although EPA has not in all cases completed 

determinations through notice-and-comment 

rulemaking, current air quality data indicate that a 

number of nonattainment areas classified as Severe 

or Extreme for the 1-hour NAAQS and also 

designated in June 2004 nonattainment for the 1997 

8-hour NAAQS appear to have attained the 1-hour 

NAAQS and/or the 1997 8-hour NAAQS. In this 

notice EPA is not making findings that states failed 

to submit SIP revisions for these areas. These areas 

are: Chicago-Gary-Lake County, IL-IN; MilwaukeeRacine, WI; Philadelphia-Trenton-Wilmington, MDDE-PA-NJ; Ventura County, CA; Metropolitan 

Washington, DC-VA-MD; Baton Rouge, LA; New 

York, NY-NJ-CT; Houston, TX; and Baltimore, MD. 

Subpart II—North Carolina 

■ 2. Section § 52.1781 is amended by 

adding paragraph (f) to read as follows: 

§ 52.1781 Control strategy: Sulfur oxides 

and particulate matter. 

* * * * * 

(f) Determination of Attaining Data. 

EPA has determined, as of January 5, 

2010, the Hickory-Morganton-Lenoir, 

North Carolina, nonattainment area has 

attaining data for the 1997 PM2.5

NAAQS. This determination, in 

accordance with 40 CFR 52.1004(c), 

suspends the requirements for this area 

to submit an attainment demonstration, 

associated reasonably available control 

measures, a reasonable further progress 

plan, contingency measures, and other 

planning SIPs related to attainment of 

the standard for as long as this area 

continues to meet the 1997 PM2.5

NAAQS. 

[FR Doc. E9–31084 Filed 1–4–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2009–0898; FRL–9099–7] 

Finding of Failure To Submit Certain 

State Implementation Plans Required 

for the 1-Hour Ozone NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is taking a final 

action finding that the State of 

California has failed to submit revisions 

to its State Implementation Plans (SIPs) 

for three ozone nonattainment areas to 

satisfy certain requirements of the Clean 

Air Act (CAA) for the 1-hour ozone 

National Ambient Air Quality Standards 

(NAAQS). To accompany this action we 

are issuing additional guidance to states 

on developing the required SIP 

revisions. Under the CAA and EPA’s 

implementing regulations, states with 

1-hour ozone nonattainment areas 

classified as Severe or Extreme were 

required by the provisions of CAA 

sections 181(b)(4) and 182(d)(1)(3) to 

submit by December 31, 2000, SIPs to 

satisfy CAA section 185. By this action, 

EPA is making a finding of failure to 

submit the required SIPs for the State of 

California for three 1-hour ozone 

nonattainment areas. With the issuance 

of additional EPA guidance to states on 

developing section 185 fee program 

SIPs, California will be able to complete 

development and promulgation of these 

programs. According to the CAA, for 

each area subject to this finding, EPA 

must affirmatively find that California 

has submitted the required plan revision 

within 18 months of the effective date 

of this finding, or the offset sanction 

must apply in that area. Additionally, 

according to the CAA, if EPA has still 

not affirmatively determined that a state 

has submitted the required plan for an 

area within 6 additional months, the 

highway funding sanction must apply in 

that area. Lastly, the CAA requires that 

no later than 2 years after the effective 

date of this finding, EPA must 

promulgate a Federal Implementation 

Plan (FIP) if the state has not submitted 

and EPA has not approved the required 

SIP. 

DATES: Effective Date. This action is 

effective on January 5, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Questions concerning this notice should 

be addressed to: Ms. Denise Gerth, 

Office of Air Quality Planning and 

Standards, Air Quality Policy Division, 

Mail Code: C504–02, 109 TW Alexander 

Drive, Research Triangle Park, NC 

27709, telephone (919) 541–5550, or by 

E-mail at gerth.denise@epa.gov; or Mr. 

Andrew Steckel, Air Rulemaking Office, 

EPA Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105, telephone 

(415) 947–4115, or by e-mail at 

steckel.andrew@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

A. Statutory Requirements 

B. Consequences of Findings of Failure To 

Submit a SIP 

II. This Action: Areas Receiving a Finding of 

Failure To Submit SIPs 

III. Statutory and Executive Order Reviews 

A. Notice and Comment Under the 

Administrative Procedures Act (APA) 

B. Effective Date Under the Administrative 

Procedures Act 

C. Executive Order 12866: Regulatory 

Planning and Review 

D. Paperwork Reduction Act 

E. Regulatory Flexibility Act (RFA) 

F. Unfunded Mandates Reform Act 

G. Executive Order 13132: Federalism 

H. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

I . Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

J. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

K. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

L. National Technology Transfer and 

Advancement Act 

M. Congressional Review Act 

N. Judicial Review 

I. Background 

The CAA requires states with Severe 

and Extreme ozone nonattainment areas 

to develop a SIP program that provides 

for collecting fees from each major 

stationary source of volatile organic 

compounds (VOC) and nitrogen oxides 

(NOX) for each calendar year following 

a failure to attain the ozone standard by 

the applicable attainment date. Section 

185 fee program SIPs are required for 

any area that was designated as not 

attaining the 1997 8-hour ozone NAAQS 

in June 2004 and that was also classified 

as a Severe or Extreme nonattainment 

area for the 1-hour standard at that time. 

In a decision by the Circuit Court of 

Appeals for the District of Columbia, the 

Court determined that these fee program 

SIPs were required to prevent 

backsliding in the transition from 

implementing the revoked 1-hour 

NAAQS to implementing the 1997 8- 

hour NAAQS (South Coast AQMD v. 

EPA, December 22, 2006). Although 

EPA has not determined through noticeand-comment rulemaking that the areas 

identified in this notice have failed to 

attain the 1-hour ozone NAAQS by their 

statutory attainment dates, current air 

quality data for these areas indicate they 

are violating the 1-hour NAAQS and the 

1997 8-hour NAAQS.1

EPA has been working with states and 

other stakeholders on EPA guidance for 

developing required fee program SIPs, 

including the convening of a group of 

diverse stakeholders through the Clean 

Air Act Advisory Committee (CAAAC). 

On May 15, 2009, CAAAC submitted its 

report to EPA with suggestions and 

issues for consideration in creating 

guidance that would provide flexibility 

to states to develop programs that will 

meet the requirements of section 185 of 

the CAA. In conjunction with this 

action EPA has issued additional 

guidance that will assist California with 

development of its section 185 fee SIPs 

for the affected areas. 

A. Statutory Requirements 

Section 185 of the CAA requires each 

Severe and Extreme ozone 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 233 

2While section 185 expressly mentions VOC, 

section 182(f) extends the application of this 

provision to NOX, by providing that ‘‘plan 

provisions required under [subpart D)] for major 

stationary sources of [VOC] shall also apply to 

major stationary sources of [NOX].’’ 

nonattainment area to have a plan 

implementing the program specified in 

that section. The fee program applies if 

an area fails to attain the ozone NAAQS 

by its applicable attainment date. For 

each such area, section 185 requires 

each major stationary source of VOC 

and NOX to pay an annual fee for 

emissions in excess of 80 percent of the 

emissions baseline.2 The fee is $5,000 

(as adjusted for inflation) per ton of 

VOC and NOX emissions that are in 

excess of the baseline. The CAA states 

that the computation of a source’s 

‘‘baseline amount’’ must be the lower of 

the amount of actual or allowable 

emissions under the permit applicable 

to the source (or if no permit has been 

issued for the attainment year, the 

amount of VOC and NOX emissions 

allowed under the applicable 

implementation plan) during the 

attainment year. No source is required 

to pay any fee for emissions during a 

year for which the area receives an 

extension of their attainment date under 

section 181(a)(5). 

B. Consequences of Findings of Failure 

To Submit a SIP 

The CAA establishes specific 

consequences that apply until an area 

remedies the identified deficiency if 

EPA finds that a state has failed to 

submit a SIP or, with regard to a 

submitted SIP, EPA determines it is 

incomplete or disapproves it. See, CAA 

section 179(a)(1). Additionally, any of 

these findings also triggers an obligation 

for EPA to promulgate a FIP if the state 

has not submitted and EPA has not 

approved the required SIP within 2 

years of the finding. See, CAA section 

110(c). The first finding, that a state has 

failed to submit a plan or one or more 

elements of a plan required under the 

CAA, is the finding relevant to this 

action. 

EPA is finding that the State of 

California has failed to make required 

section 185 fee program SIP 

submissions for all or a portion of three 

1-hour ozone nonattainment areas. We 

note that the state has been working to 

establish its required fee program SIP 

revisions, and has been awaiting 

issuance of additional guidance from 

EPA before proceeding. EPA has now 

issued additional guidance, and we will 

continue to work with the state on 

developing approvable and appropriate 

fee programs. 

If EPA has not affirmatively 

determined that the state has made the 

required complete submittal for the 

three areas within 18 months of the 

effective date of this rulemaking, 

pursuant to CAA section 179(a) and (b) 

and 40 CFR 52.31, the offset sanction 

identified in CAA section 179(b)(2) and 

40 CFR 52.31 will apply in each area 

that remains subject to the finding. If 

EPA has not affirmatively determined 

that the state has made a complete 

submission for the areas within 6 

months after the offset sanction is 

imposed, then the highway funding 

sanction will apply to each area that 

remains subject to the finding, in 

accordance with CAA section 179(b)(1) 

and 40 CFR 52.31. The 18- and 24- 

month clocks for any area will stop and 

the sanctions will not take effect if, 

within 18 or 24 months, respectively, 

after the date of the finding, EPA finds 

that the state has made a complete 

submittal. In addition, where EPA has 

made a finding, EPA is required to 

promulgate a FIP for an area if the state 

has not made the required SIP submittal 

and EPA has not taken final action to 

approve the submittal as fully meeting 

the section 185 fee obligation for the 1- 

hour ozone standard within 2 years of 

EPA’s finding. 

At approximately the same time as the 

signing of this action, the EPA Regional 

Administrator is sending a letter to the 

State of California informing the state 

that EPA is determining that the state 

has failed to submit a SIP addressing the 

section 185 fee program for the 1-hour 

ozone NAAQS for all or a portion of the 

three areas identified below. This letter 

has been included in docket number 

EPA–HQ–OAR–2009–0898. 

II. This Action: Areas Receiving a 

Finding of Failure To Submit SIPs 

In this action, EPA is making a 

finding that the State of California has 

failed to submit section 185 fee program 

SIPs for all or a portion of three 1-hour 

ozone nonattainment areas. California 

submitted a section 185 fee program SIP 

for the Sacramento Metropolitan Air 

Quality Management District (AQMD) 

portion of the Sacramento Metro Area 

and EPA approved that submission on 

August 26, 2003, at 68 FR 51184. 

Therefore, the Sacramento Metropolitan 

AQMD is not subject to this action. This 

finding starts the 18-month emission 

offset sanctions clock, the 24-month 

highway funding sanctions clock, and a 

24-month clock for the promulgation by 

EPA of a FIP. This action will be 

effective on January 5, 2010. EPA is 

making findings of failure to submit 

section 185 fee program SIPs for the 

nonattainment areas identified below. 

State Nonattainment area 

California ............................ Sacramento Metro Area, CA (severe 15)—Yolo/Solano Air Quality Management District portion; Feather River Air 

Quality Management District portion; Placer County Air Pollution Control District portion; El Dorado County Air 

Quality Management District portion. 

California ............................ Southeast Desert Modified Air Quality Management Association (severe 17) includes Coachella Valley. 

California ............................ Los Angeles-South Coast Air Basin (extreme). 

III. Statutory and Executive Order 

Reviews 

A. Notice and Comment Under the 

Administrative Procedure Act 

This is a final EPA action, but is not 

subject to notice-and-comment 

requirements of the Administrative 

Procedure Act (APA), 5 U.S.C. 553(b). 

EPA believes that because of the limited 

time provided to make findings of 

failure to submit regarding SIP 

submissions, Congress did not intend 

such findings to be subject to noticeand-comment rulemaking. However, to 

the extent such findings are subject to 

notice-and-comment rulemaking, EPA 

invokes the good cause exception 

pursuant to the APA, 5 U.S.C. 

553(b)(3)(B). Notice and comment are 

unnecessary because no EPA judgment 

is involved in making a nonsubstantive 

finding of failure to submit elements of 

SIP submissions required by the CAA. 

Furthermore, providing notice and 

comment would be impracticable 

because of the limited time provided 

under the statute for making such 

determinations. Finally, notice and 

comment would be contrary to the 


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234 Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 

public interest because it would divert 

agency resources from the critical 

substantive review of complete SIPs. 

See 58 FR 51270, 51272, n.17 (Oct. 1, 

1993); 59 FR 39832, 39853 (Aug. 4, 

1994). 

B. Effective Date Under the 

Administrative Procedure Act 

This action will be effective on 

January 5, 2010. Under the APA, 5 

U.S.C. 553(d)(3), agency rulemaking 

may take effect before 30 days after the 

date of publication in the Federal 

Register if the agency has good cause to 

specify an earlier effective date. This 

action concerns SIP submissions that 

are already overdue. In addition, this 

action simply starts a ‘‘clock’’ that will 

not result in sanctions against the states 

for 18 months, and that the state may 

‘‘turn off’’ through the submission of 

complete SIP submittals. These reasons 

support an effective date prior to 30 

days after the date of publication. 

C. Executive Order 12866: Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review by the Office of 

Management and Budget under the 

Executive Order. 

D. 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). This rule 

relates to the requirement in the CAA 

for states to submit SIPs under section 

Part D of title I of the CAA to satisfy 

elements required for the 1-hour ozone 

NAAQS. The present final rule does not 

establish any new information 

collection requirement. 

E. Regulatory Flexibility Act (RFA) 

This final rule is not subject to the 

Regulatory Flexibility Act (RFA), which 

generally requires an agency to prepare 

a regulatory flexibility analysis for any 

rule that will have a significant 

economic impact on a substantial 

number of small entities. The RFA 

applies only to rules subject to noticeand-comment rulemaking requirements 

under the Administrative Procedure Act 

(APA) or any other statute. Although the 

rule is subject to the APA, the Agency 

has invoked the ‘‘good cause’’ 

exemption under 5 U.S.C. 553(b); 

therefore it is not subject to the noticeand-comment requirement. Thus 

Executive Order 13132 does not apply 

to this action. 

F. Unfunded Mandates Reform Act 

This action contains no federal 

mandate under the provisions of Title II 

of the Unfunded Mandates Reform Act 

of 1998 (UMAR), 2 U.S.C. 1531–1538 for 

state, local, or tribal governments or the 

private sector. This action imposes no 

enforceable duty on any state, local, or 

tribal governments or the private sector. 

Therefore, this action is not subject to 

the requirements of sections 202 and 

205 of the UMRA. 

This action is also not subject to the 

requirements of section 203 UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

action does not impose any new 

obligations or enforceable duties on any 

small governments. 

G. Executive Order 13132: Federalism 

This final rule does not have 

federalism implications. It will not have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. The CAA 

establishes the scheme whereby states 

take the lead in developing plans to 

meet the NAAQS and the federal 

government acts as a backstop where 

states fail to take the required actions. 

This rule will not modify the 

relationship of the states and EPA for 

purposes of developing programs to 

implement the NAAQS. Thus, Executive 

Order 13132 does not apply to this rule. 

H. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000.) This rule responds to the 

requirement in the CAA for states to 

submit SIPs to satisfy the nonattainment 

area requirements of the CAA for the 

ozone NAAQS. The CAA requires states 

with areas that are designated 

nonattainment for the NAAQS to 

develop a SIP describing how the state 

will attain and maintain the NAAQS. 

There are tribal governments within 

certain nonattainment areas for which 

this rule initiates a sanctions clock. 

However, this rule does not have tribal 

implications because it does not impose 

any compliance costs on tribal 

governments nor does it pre-empt tribal 

law. The rule will not have a substantial 

direct effect on one or more Indian 

Tribes, on the relationship between the 

federal government and Indian Tribes, 

or on the distribution of power and 

responsibilities between the federal 

government and Indian Tribes, as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). Thus, 

Executive Order 13175 does not apply 

to this action. 

I. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

This final rule is not subject to the 

Executive Order because it is not 

economically significant as defined in 

Executive Order 12866, and because the 

Agency does not have reason to believe 

the environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. This 

action does not directly affect the level 

of protection provided to human health 

or the environment. 

J. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001) because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. In 

this action, EPA is finding that a state 

has failed to submit SIPs to satisfy the 

section 185 program fee requirement of 

the CAA for the 1-hour ozone NAAQS. 

K. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not directly affect the level of protection 

provided to human health or the 

environment. This notice finds that the 

state has not met the requirement to 

submit section 185 fee program SIPs and 

begins a clock that could result in the 

imposition of sanctions if the state 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules and Regulations 235 

continues to not meet this statutory 

obligation. If the state fails to submit the 

required SIPs or if they submit SIPs that 

EPA cannot approve, then EPA will be 

required to develop the plans in lieu of 

the state. 

L. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology and Transfer Advancement 

Act of 1995 (NTTAA), Public Law 104– 

113, section 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards (VCS) in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impracticable. VCS are 

technical standards (e.g., materials 

specifications, test methods, sampling 

procedures, and business practices) that 

are developed or adopted by VCS 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations of when the Agency 

decides not to use available and 

applicable voluntary consensus 

standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any VCS. 

M. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A ‘‘major rule’’ 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective January 5, 2010. 

N. Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the District of 

Columbia Circuit within 60 days from 

the date the final action is published in 

the Federal Register. Filing a petition 

for reconsideration by the EPA 

Administrator of this final rule does not 

affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review must be filed, and 

shall not postpone the effectiveness of 

such rule or action. 

Thus, any petitions for review of this 

action making findings of failure to 

submit section 185 fee program SIPs for 

the nonattainment areas identified in 

section II above must be filed in the 

Court of Appeals for the District of 

Columbia Circuit within 60 days from 

the date that the final action is 

published in the Federal Register. 

List of Subjects in 40 CFR Part 52 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Incorporation by 

reference, Intergovernmental relations, 

Reporting and recordkeeping 

requirements. 

Dated: December 20, 2009. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. E9–31173 Filed 1–4–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R9–ES–2009–0086;90100–1660– 

1FLA] 

RIN 1018–AW70 

Endangered and Threatened Wildlife 

and Plants; Final Rule To List the 

Galapagos Petrel and Heinroth’s 

Shearwater as Threatened Throughout 

Their Ranges 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), determine 

threatened status for the Galapagos 

petrel (Pterodroma phaeopygia) 

previously referred to as (Pterodroma 

phaeopygia phaeopygia); and the 

Heinroth’s shearwater (Puffinus 

heinrothi) under the Endangered 

Species Act of 1973, as amended (Act). 

This rule implements the Federal 

protections provided by the Act for 

these two foreign seabird species. 

DATES: This final rule becomes effective 

February 4, 2010. 

ADDRESSES: This final rule is available 

on the Internet at http:// 

www.regulations.gov and comments and 

materials received, as well as supporting 

documentation used in the preparation 

of this rule, will be available for public 

inspection, by appointment, during 

normal business hours at: U.S. Fish and 

Wildlife Service, U.S. Fish and Wildlife 

Service, 4401 N. Fairfax Drive, Suite 

400, Arlington, VA 22203. 

FOR FURTHER INFORMATION CONTACT: 

Nicole Alt, Chief, Division of 

Conservation and Classification, 

Endangered Species Program, U.S. Fish 

and Wildlife Service, 4401 North Fairfax 

Drive, Room 420, Arlington, VA 22203; 

telephone 703–358–2171; facsimile 

703–358–1735. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 4(b)(3)(A) of the Act (16 

U.S.C. 1531 et seq.) requires us to make 

a finding (known as a ‘‘90-day finding’’) 

on whether a petition to add a species 

to, remove a species from, or reclassify 

a species on the Federal Lists of 

Endangered and Threatened Wildlife 

and Plants has presented substantial 

information indicating that the 

requested action may be warranted. To 

the maximum extent practicable, the 

finding must be made within 90 days 

following receipt of the petition and 

must be published promptly in the 

Federal Register. If we find that the 

petition has presented substantial 

information indicating that the 

requested action may be warranted (a 

positive finding), section 4(b)(3)(A) of 

the Act requires us to commence a 

status review of the species if one has 

not already been initiated under our 

internal candidate assessment process. 

In addition, section 4(b)(3)(B) of the 

Act requires us to make a finding within 

12 months following receipt of the 

petition (‘‘12-month finding’’) on 

whether the requested action is 

warranted, not warranted, or warranted 

but precluded by higher priority listing. 

Section 4(b)(3)(C) of the Act requires 

that a finding of warranted but 

precluded for petitioned species should 

be treated as having been resubmitted 

on the date of the warranted but 

precluded finding. A warranted-butprecluded finding is, therefore, subject 

to a new finding within 1 year and 

subsequently thereafter until we publish 

a proposal to list or a finding that the 

petitioned action is not warranted. The 

Service publishes an annual notice of 

resubmitted petition findings (annual 

notice) for all foreign species for which 

listings were previously found to be 

warranted but precluded. 

Previous Federal Action 

On November 28, 1980, we received 

a petition (1980 petition) from Dr. 


srobinson on DSKHWCL6B1PROD with RULES