        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 21
        [Docket No. FWS-HQ-MB-2014-0067; FF09M29000-156-FXMB1232090BPP0]
        Migratory Bird Permits; Programmatic Environmental Impact Statement

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Announcement.

          SUMMARY:
          We, the U.S. Fish and Wildlife Service (Service), inform the public that we are no longer considering preparation of a programmatic environmental impact statement (PEIS) pursuant to the National Environmental Policy Act to evaluate the potential environmental impacts of a proposed rule to authorize incidental take of migratory birds under the Migratory Bird Treaty Act.

          DATES:

          As of May 24, 2018, no further action will be taken in regard to the notice of intent to prepare a PEIS that was published in the Federal Register on May 26, 2015 (80 FR 30032).

          ADDRESSES:

          The notice of intent and the comments received can be viewed online at www.regulations.gov in Docket No. FWS-HQ-MB-2014-0067.

          FOR FURTHER INFORMATION CONTACT:
          Ken Richkus, Deputy Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, Falls Church, VA 22041-3803, telephone 703-358-1780.

        SUPPLEMENTARY INFORMATION:

        Background
        On May 26, 2015, the Service published in the Federal Register a notice of intent (80 FR 30032) to prepare a programmatic environmental impact statement (PEIS) pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321-4347). The purpose of the PEIS was to evaluate the potential environmental impacts of a proposal to authorize incidental take of migratory birds under the Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703-711). The Service was considering rulemaking to address various approaches to regulating incidental take of migratory birds. The regulations would also have provided protection for entities that had taken efforts to reduce incidental take by promoting implementation of appropriate conservation measures to avoid or reduce avian mortality.
        Announcement

        Due to issuance of the December 22, 2017, DOI Solicitor Opinion (M-37050), the actions contemplated are superseded, and we are no longer pursuing action on the PEIS as announced in the notice of intent that was published in the Federal Register on May 26, 2015 (80 FR 30032). We publish this document under the authorities of NEPA and the MBTA.

          Dated: May 16, 2018.
          James W. Kurth,
          Deputy Director for U.S. Fish and Wildlife Service, Exercising the Authority of the Director for U.S. Fish and Wildlife Service.

      [FR Doc. 2018-11147 Filed 5-23-18; 8:45 am]
       BILLING CODE 4310-55-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AF84

        Endangered and Threatened Wildlife and Plants; Reopening of Comment Period on the Proposed Endangered Status of Two Plants, Lomatium Cookii (Cook's Lomatium) and Limnanthes Floccosa ssp. Grandiflora (Large-Flowered Wooly Meadowfoam)

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the re-opening of the comment period on the proposed listing of Lomatium cookii (Cook's lomatium) and Limnanthes floccosa ssp. grandiflora (large-flowered wooly meadowfoam) as endangered species under the Endangered Species Act of 1973, as amended (Act). We are re-opening the comment period to provide the public an opportunity to review additional information on the status, abundance, and distribution of these plants, and to request additional information and comments from the public regarding the proposed rule. Comments previously submitted need not be resubmitted as they will be incorporated into the public record as part of this extended comment period; all comments will be fully considered in the final rule.

          DATES:
          We will accept public comments until March 15, 2002.

          ADDRESSES:
          Comments and materials concerning this proposal should be sent to the State Supervisor, Oregon Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2600 Southeast 98th Avenue, Portland, Oregon, 97266. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

          FOR FURTHER INFORMATION CONTACT:
          Judy Jacobs or Rollie White at the above address, phone: 503/231-6179, facsimile: 503/231-6195.

        SUPPLEMENTARY INFORMATION:
        Background

          Lomatium cookii (Cook's lomatium) and Limnanthes floccosa ssp. grandiflora (large-flowered wooly meadowfoam) are two plants that inhabit seasonally wet habitats known as vernal pools in the Agate Desert, an area of approximately 83 square kilometers (32 square miles) north of Medford, Jackson County, Oregon. Cook's lomatium also occurs on seasonally wet soils in the adjacent county to the west, Josephine County, Oregon. The continued existence of Lomatium cookii and Limnanthes floccosa ssp. grandiflora is endangered primarily by destruction of their specialized vernal pool habitat by competition with non-native plants and industrial and residential development, including road and powerline construction and maintenance. Agricultural conversion and off-road vehicle (ORV) use also contribute to destruction of the habitat required by these plants. Lomatium cookii sites in Josephine County are additionally threatened by habitat alteration associated with gold mining, certain proposed timber projects, and woody species encroachment resulting from fire suppression.

        On May 15, 2000, the Service published a proposed rule to list Lomatium cookii and Limnanthes floccosa ssp. grandiflora as endangered species and requested public comment for 60 days (65 FR 30941). On August 28, 2001, Siskiyou Regional Educational Project filed a citizen suit alleging that the Service had failed to make a timely final determination on the listing and critical habitat designation of these two plants, consistent with the time frames set forth in section 4 of the Act (Siskiyou Regional Educational Project v. Norton, Civil No. 01-1208-KI (D. Ore). We entered into a settlement agreement with the plaintiff and agreed to submit a final listing decision for publication in the Federal Register on or before October 31, 2002. By this notice, the Service is seeking updated information regarding the status, abundance, and distribution of these plants, as well as providing updated information now in the possession of the Service regarding the status of these two plants.
        Current Status
        The proposed rule published in May of 2000 did not contain data from surveys for these plants that had been conducted one month prior to publication of the proposed rule, during April of 2000 (David Evans and Associates 2000). Additional survey work was also conducted for both species in April of 2001. These data are provided below.

        Each year, plant populations exhibit some natural variation in numbers, related primarily to temperature and rainfall conditions for that year. In general, numbers of annual plants, such as Limnanthes floccosa ssp. grandiflora may fluctuate more widely than those of perennial plants, such as Lomatium cookii. The year 2000 was a banner year for Limnanthes floccosa ssp. grandiflora populations due to the wet conditions that prevailed that year, but in 2001, a dry year, population numbers of this plant plummeted in many areas. For example, on a protected site owned by The Nature Conservancy (TNC), one Limnanthes floccosa ssp. grandiflora occurrence declined from 68,000 in 2000 to 39,000 in 2001. A site owned by the City of Medford, contained some 10,000 Limnanthes floccosa ssp. grandiflora individuals in the year 2000, while only 112 individuals were noted at this site in 2001 (D. Borgias, TNC, pers. comm. 2001). Year-to-year changes of this magnitude may be within the normal range of variation for this annual plant. However, it is possible that a number of consecutive drought years could eliminate some populations of Limnanthes floccosa ssp. grandiflora. In contrast, numbers of Lomatium cookii in the Agate Desert were generally stable or slightly increased from the year 2000 to 2001 (D. Borgias, TNC, pers. comm. 2001).

        The Service now possesses information on three status changes that would be considered outside the natural range of year-to-year variation for these plants and that was not available to us during development of the proposed rule for these plants. Two of these involve increased population sizes at historical Lomatium cookii sites. One of these sites, on private land, was believed to contain some 6,000 plants historically. Surveys in 2000 and 2001 revealed an estimated 500,000 flowering individuals. Another population, located on Medford airport property, that was previously estimated at some 1,000 plants, was found in 1999 to contain over 5,000 flowering Lomatium cookii plants. However, this larger population was cut in two last year by development of a new taxiway at this airport (K. O'Hara, David Evans & Associates, pers. comm. 2001). The third status change is that in the year 2000, Limnanthes floccosa ssp. grandiflora was discovered at a new location. This occurrence, on private land, comprised approximately 1,000 flowering individuals.

        The 2000-2001 observations of these two vernal pool plant species must be considered within the context of the status and trends of their habitat overall. Recent studies of the Agate Desert vernal pool hydrology and vegetation indicate that no intact vernal pool habitat remains (ONHP 1997, 1999). The latter study (ORNP 1999) indicates that the highest quality remaining Agate Desert vernal pool habitat, that with intact hydrology and altered vegetation, is now present on an approximately 17.6 percent of the area. This is a decrease from the earlier study (ONHP 1997), cited in the May, 2000, Federal Register proposal, which estimated that this highest quality remaining habitat occurred on 23.1 percent of the area. This reported decrease in the amount of best available habitat is partially due to better-refined mapping techniques, but there is evidence that additional land leveling also occurred between the two studies (ONHP 1999). Both reported and unreported fills of Agate Desert vernal pool wetlands are occurring continually (C. Tuss USFWS biologist, pers. comm. 2001). ONHP (1999) reports that over 19 percent of Agate Desert vernal pool habitat has been leveled, and development (structures, roads, and other impermeable surfaces) has occurred on an additional 41 percent of this area (ONHP 1999). Thus, over 60 percent of the habitat of these plants in the Agate Desert has been destroyed, and none of the remaining habitat has escaped the invasion of weedy competitors. This compares with just under 60 percent habitat destruction reported in ONHP 1997 and in the proposed rule (65 FR 30941).

        Recent evidence also indicates that non-native annual grasses are a greater problem than previously believed for Lomatium cookii, particularly in the Agate Desert. Unlike native perennial bunchgrasses that originally occupied the area, annual grasses die back each year, creating a buildup of thatch from the dead leaves that interferes with germination of Lomatium cookii seeds. Current observations indicate that without control of annual grasses through mowing, grazing or prescribed burns, Lomatium cookii populations tend to decrease over time, and could be extirpated within a relatively short time frame, due to this competition with non-native grasses (D. Borgias, TNC, pers. comm. 2001). In many cases, non-native plants have been purposefully planted, for livestock and other reasons, in the Agate Desert. For example, the Ken Denman Wildlife Reserve, encompassing some 720 hectares (1,780 acres) of Agate Desert land, is managed by the State primarily for waterfowl production. Much of this Reserve has been covered with log deck debris, plowed in strips and planted with non-native wildlife food plants (Brock 1987; J. Jacobs, pers. obs. 2000).
        Populations of Lomatium cookii in Josephine County are becoming even more highly threatened by ORV use than they were at the time of the proposal. Over the past 2 years, gates erected by the Bureau of Land Management (BLM) to direct ORV traffic away from Lomatium cookii habitat have been repeatedly vandalized, and the intrusion into these areas continues. Particularly in the springtime, when the ground is wet and muddy (and Lomatium cookii plants are flowering), ORVs cause major rutting and disruption of Lomatium cookii habitat (L. Mazzu, BLM botanist, pers. comm. 2001).
        Considering the above-noted population changes of Lomatium cookii and Limnanthes floccosa ssp. grandiflora in the Agate Desert over the past 2 years in light of historic loss of habitat (65 FR 30941) and ongoing threats to these plants and their habitat, we conclude that the best available information still indicates both are in danger of extinction throughout all or a significant portion of their range, fitting the definition of endangered under the Act.
        Public Comments Solicited

        We will accept written comments and information during this re-opened comment period. If you wish to comment, you may submit your comments and materials concerning this proposal by any of several methods: (1) You may submit written comments and information to the State Supervisor, Oregon Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2600 Southeast 98th Avenue, Portland, Oregon, 97266.  (2) You may hand-deliver comments to our Oregon Fish and Wildlife Office at the address given above. Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for inspection, by appointment, during normal business hours at the address under (1) above. Copies of the proposed rule is available on the Internet at our Web site www.fws.gov or by writing to the State Supervisor at the address under (1) above.
        References Cited
        David Evans and Associates. 2001. Agate Desert vernal pool surveys. (prepared for: Rogue Valley Council of Governments, Jackson County, Oregon), 16+ pp.
        Oregon Natural Heritage Program. 1997. Agate Desert vernal pool habitat: Preliminary mapping and Assessment. Report to Oregon Division of State Lands, Contract No. 10738-369, 23+pp.
        Oregon Natural Heritage Program. 1999. Assessment and map of the Agate Desert vernal pool ecosystem in Jackson County, Oregon: March 1998 imagery revision. Report to U.S. Fish and Wildlife Service, December 6, 1999, 15+pp.
        Author

        The primary author of this notice is Judy Jacobs, U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, U.S. Fish and Wildlife Service (see ADDRESSES section).

          Authority:

          The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

          Dated: December 6, 2001.
          Rowan W. Gould,
          Regional Director, Region 1, Portland, Oregon.

      [FR Doc. 02-812 Filed 1-11-02; 8:45 am]
      BILLING CODE 4310-55-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Parts 122 and 412
        [EPA-HQ-OW-2005-0036; FRL-8311-4]
        RIN 2040-AE92
        Proposed Revised Compliance Dates Under the National Pollutant Discharge Elimination System Permit Regulations and Effluent Limitations Guidelines and Standards for Concentrated Animal Feeding Operations

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:

          EPA proposes to extend certain compliance dates in the National Pollutant Discharge Elimination System (NPDES) permitting requirements and Effluent Limitations Guidelines and Standards (ELGs) for concentrated animal feeding operations (CAFOs) while EPA works to complete rulemaking to respond to the decision of the Second Circuit Court of Appeals in Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005). The sole purpose of this proposed rule is to address timing issues associated with the Agency's response to the Waterkeeper decision.

          This proposal would revise the dates established in the 2003 CAFO rule and later modified by a rule published in the Federal Register on February 10, 2006, by which facilities newly defined as CAFOs are required to seek permit coverage and by which all permitted CAFOs are required to develop and implement their nutrient management plans (NMPs). EPA is proposing to extend the date by which operations defined as CAFOs as of April 14, 2003, that were not defined as CAFOs prior to that date, must seek NPDES permit coverage, from July 31, 2007, to February 27, 2009. EPA is also proposing to amend the date by which operations that become defined as CAFOs after April 14, 2003, due to operational changes that would not have made them a CAFO prior to April 14, 2003, and that are not new sources, must seek NPDES permit coverage, from July 31, 2007, to February 27, 2009. Finally, EPA is proposing to extend the deadline by which permitted CAFOs are required to develop and implement NMPs, from July 31, 2007, to February 27, 2009.

          DATES:
          Comments on this proposed action must be received on or before June 11, 2007.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-HQ-OW-2005-0036 by one of the following methods
          (1) www.regulations.gov: Follow the on-line instructions for submitting comments.
          (2) E-mail: ow-docket@epa.gov, Attention Docket ID No. EPA-HQ-OW-2005-0036.
          (3) Mail: Send the original and three copies of your comments to: Water Docket, Environmental Protection Agency, Mail code 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. OW-2005-0036.
          (4) Hand Delivery: Deliver your comments to: EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC, Attention Docket ID No. OW-2005-0036. 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-2005-0036. EPA's policy is that all comments received 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 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 www.regulations.gov or e-mail. The 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 www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

            Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Water Docket in the EPA Docket Center, 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 Water Docket is (202) 566-2426.

          FOR FURTHER INFORMATION CONTACT:

          Rebecca Roose, Water Permits Division, Office of Wastewater Management (4203M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 564-0758, e-mail address: roose.rebecca@epa.gov.

        SUPPLEMENTARY INFORMATION:

          I. General Information
          A. Does This Action Apply to Me?
          B. What Should I Consider as I Prepare My Comments for EPA?
          II. Background
          A. The Clean Water Act
          B. History of Actions to Address CAFOs Under the NPDES Permitting Program
          C. Status of EPA's Response to the Waterkeeper Decision
          D. History of CAFO Compliance Dates
          III. This Proposed Rule
          A. Application Deadline for Newly Defined CAFOs
          B. Deadline for Nutrient Management Plans
          IV. Rationale for This Action
          V. Statutory and Executive Order Reviews

        I. General Information
        A. Does This Action Apply to Me?
        This action applies to concentrated animal feeding operations (CAFOs) as defined in section 502(14) of the Clean Water Act and in the NPDES regulations at 40 CFR 122.23. The following table provides a list of standard industrial codes for operations covered under this revised rule.

           Table 1.—Entities Potentially Regulated by This Rule

            Category
            Examples of regulated entities
            North American industry code(NAIC)

            Standard industrial classification code

            Federal, State, and Local Government:

            Industry
            Operators of animal production operations that meet the definition of a CAFO:

            Beef cattle feedlots (including veal)
            112112
            0211

            Beef cattle ranching and farming
            112111
            0212

            Hogs
            11221
            0213

            Sheep
            11241,11242

            0214

            General livestock except dairy and poultry
            11299
            0219

            Dairy farms
            11212
            0241

            Broilers, fryers, and roaster chickens
            11232
            0251

            Chicken eggs
            11231
            0252

            Turkey and turkey eggs
            11233
            0253

            Poultry hatcheries
            11234
            0254

            Poultry and eggs
            11239
            0259

            Ducks
            112390
            0259

            Horses and other equines
            11292
            0272

        This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your facility may be regulated under this rulemaking, you should carefully examine the applicability criteria in 40 CFR 122.23. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.
        B. What Should I Consider as I Prepare My Comments for EPA?
        1. Submitting Confidential Business Information. Do not submit this information to EPA through www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR Part 2.
        2. Tips for Preparing Your Comments. It will be helpful if you follow these guidelines as you prepare your written comments:

        i. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).
        ii. Follow directions—The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
        iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
        iv. Describe any assumptions and provide any technical information and/or data that you used.
        v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
        vi. Provide specific examples to illustrate your concerns, and suggest alternatives.
        vii. Explain your views as clearly as possible.
        viii. Make sure to submit your comments by the comment period deadline identified.
        II. Background
        A. The Clean Water Act
        Congress passed the Federal Water Pollution Control Act (1972), also known as the Clean Water Act (CWA), to “restore and maintain the chemical, physical, and biological integrity of the nation's waters.” 33 U.S.C. 1251(a). Among its core provisions, the CWA established the NPDES permit program to authorize and regulate the discharge of pollutants from point sources to waters of the U.S. 33 U.S.C. 1342. EPA has issued comprehensive regulations that implement the NPDES program at 40 CFR Part 122. The Act also provided for the development of technology-based and water quality-based effluent limitations that are imposed through NPDES permits to control the discharge of pollutants from point sources. CWA Section 301(a) and (b).
        B. History of Actions To Address CAFOs Under the NPDES Permitting Program
        EPA's regulation of wastewater and manure from CAFOs dates from the 1970s. EPA initially issued national effluent limitations guidelines and standards for feedlots on February 14, 1974, (39 FR 5704) and NPDES CAFO regulations on March 18, 1976 (41 FR 11458).
        In February 2003, EPA revised these regulations. 68 FR 7176 (the “2003 CAFO rule”). The 2003 CAFO rule required owners or operators of all CAFOs1

           to seek coverage under an NPDES permit, unless they demonstrated no potential to discharge. CAFO industry organizations (American Farm Bureau Federation, National Pork Producers Council, National Chicken Council, and National Turkey Federation (NTF), although NTF later withdrew its petition) and environmental groups (Waterkeeper Alliance, Natural Resources Defense Council, Sierra Club, and American Littoral Society) filed petitions for judicial review of certain aspects of the 2003 CAFO rule. This case was brought before the U.S. Court of Appeals for the Second Circuit. On February 28, 2005, the court ruled on these petitions and upheld most provisions of the 2003 rule but vacated and/or remanded others. Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005) (hereafter referred to as Waterkeeper). Notably, the court vacated the requirement that all CAFOs apply for NPDES permit coverage unless a CAFO demonstrates no potential to discharge. The court also remanded the rule for failing to require incorporation of the terms of CAFOs' NMPs into their permits and for failing to prescribe public review and comment and permitting authority approval of the terms of the NMPs. Other provisions were remanded for further clarification and analysis.

            1 To improve readability in this preamble, reference is made to “CAFOs” as well as “owners and operators of CAFOs.” No change in meaning is intended.

        C. Status of EPA's Response to the Waterkeeper Decision

        On June 30, 2006, EPA published a proposed rule in response to the Waterkeeper decision. 71 FR 37744. EPA proposed to revise several aspects of the Agency's regulations governing discharges from CAFOs. In summary, EPA proposed to require only owners or operators of those CAFOs that discharge or propose to discharge to seek coverage under a permit. Second, EPA proposed to require CAFOs seeking coverage under a permit to submit their NMP with their application for an individual permit or, for general permit coverage, with their notice of intent to be authorized to discharge under a general permit. Permitting authorities would be required to review the NMP and provide the public with an opportunity for meaningful public review and comment. Permitting authorities would also be required to incorporate terms of the NMP as NPDES permit conditions. The proposed rule also addressed the remand of issues for further clarification and analysis. These issues concern the applicability of water-quality based effluent limitations (WQBELs); the record supporting new source performance standards for swine, poultry, and veal CAFOs; and the record support for “best conventional technology” effluent limitations guidelines for pathogens. The proposed rule reflected the dates for compliance as revised in February 2006; i.e., July 31, 2007, for permit application by newly defined CAFOs and NMP development and implementation by all permitted CAFOs. The public comment period for the June 2006 CAFO proposal closed on Aug. 29, 2006. EPA will respond to these comments when it takes final action on the June 30, 2006, proposed rule.
        In this action, EPA is proposing, and accepting comment only on, a change to the date by which certain operations must seek coverage under an NPDES permit and the date by which all permitted CAFOs must develop and implement their NMPs.2

           In part because of extensive and widely divergent public comment on the array of issues raised by the court, EPA will not complete a final rule revising the 2003 CAFO rule before the current compliance dates of July 31, 2007, and is, therefore, proposing to revise this compliance date. Though EPA describes them here for context, the proposed provisions in the June 2006 proposed rule in response to Waterkeeper are beyond the scope of this current proposal, and EPA is not taking comment on these provisions.

            2 Note that in response to the Waterkeeper decision, EPA proposed a variation to the “develop and implement” language of the June 2006 proposal which stated that a CAFO operator must submit an NMP with its permit application or NOI and that it must be implemented upon permit coverage. 71 FR 37744.

        D. History of CAFO Compliance Dates

        The 2003 CAFO rule amended the definition of “CAFO” to add facilities that had not previously been defined as CAFOs (in the 1976 regulations). 40 CFR 122.23(b). Operations newly defined as CAFOs in the 2003 CAFO rule included veal operations, swine weighing less than 55 pounds, chicken and layer operations using other than liquid manure handling systems, and animal feeding operations (AFOs) that were previously not defined as CAFOs because they discharged only in the event of a 25-year/24-hour storm. CAFOs in these categories that were in existence when the 2003 CAFO rule took effect (April 14, 2003) represent the group of CAFOs that were initially subject to a February 13, 2006, deadline for permit application. 68 FR 7267. In addition, other existing facilities that became defined as CAFOs under the revised CAFO definitions in the 2003 CAFO rule include so-called “new dischargers” that subsequent to the effective date of the 2003 CAFO rule became CAFOs due to changes in their operations, where such changes would not have made the operation a CAFO prior to April 14, 2003. This second group of facilities was initially required to seek permit coverage by April 13, 2006, or 90 days after becoming defined as a CAFO, whichever date is later. 68 FR 7268. Thus, each of these groups of CAFOs were allowed three years from the 2003 rule to seek permit coverage when EPA issued the 2003 CAFO rule.
        EPA reasoned in the 2003 CAFO rule, and reiterated in the 2006 date change rule, that allowing newly regulated entities three years to come into compliance was consistent with Congressional intent, as expressed in the 1972 Clean Water Act with respect to newly established point sources. Moreover, the Agency stated that the three year timeframe was necessary for States authorized to administer the NPDES permit program to provide permit coverage for CAFOs that were not previously required to be permitted and to revise State regulatory programs. 68 FR 7204.
        In addition to the requirements to seek permit coverage, the 2003 CAFO rule also required all permitted CAFOs to develop and implement NMPs by December 31, 2006. EPA believed that this date was reasonable given that operations would have had a little over three and a half years from the issuance of the 2003 rule to develop and implement an NMP. This timeframe allowed States to update their NPDES programs and issue permits to reflect the NMP requirements of the 2003 CAFO rule. It also provided flexibility for permitting authorities to establish permit schedules based on specific circumstances, including prioritization of nutrient management plan development and implementation based on site-specific water quality risks and the available infrastructure for development of NMPs.
        These timing considerations were affected by the Waterkeeper decision. On February 10, 2006, prior to the Agency's proposed rule responding to the Waterkeeper decision, EPA promulgated a limited rule to revise each of the compliance dates in the 2003 CAFO rule that were affected by the decision (referred to as the “2006 date rule”). 71 FR 6978. Specifically, EPA extended the dates for those newly defined CAFOs described above to seek NPDES permit coverage and the date by which all CAFOs must develop and implement NMPs. EPA revised these dates in order to: (1) Provide the Agency sufficient time to take final action on the regulatory revisions with respect to the Waterkeeper decision; and (2) require NMPs to be submitted at the time of the permit application, consistent with the court's decision. It was necessary for EPA to revise the dates separately from addressing the rest of the issues raised by the Waterkeeper decision because EPA had not completed the proposed rule responding to the Waterkeeper decision prior to the dates by which newly defined CAFOs were required to seek permit coverage.
        III. This Proposed Rule

        This notice proposes to amend the section detailing when operations defined as CAFOs as of April 14, 2003, that were not defined as CAFOs prior to that date, must seek NPDES permit coverage, as well as the section detailing when, due to operational changes, operations that would not have become CAFOs under the prior rule become CAFOs under the 2003 rule. Second, EPA is proposing to extend the deadline by which permitted CAFOs are required to develop and implement NMPs. This proposed rule would not modify or otherwise affect any other existing regulatory provisions, nor does it reopen the comment period on the proposed rule to respond to the Waterkeeper decision published on June, 30, 2006. 71 FR 37744.
        A. Application Deadline for Newly Defined CAFOs
        EPA is proposing to extend the date by which operations defined as CAFOs as of April 14, 2003, that were not defined as CAFOs prior to that date, must seek NPDES permit coverage, from July 31, 2007, to February 27, 2009. EPA is also proposing to amend the date by which operations that became defined as CAFOs after April 14, 2003, or that will become CAFOs due to operational changes that would not have made them a CAFO prior to April 14, 2003, and that are not new sources, must seek NPDES permit coverage, from July 31, 2007, to February 27, 2009.
        This proposed rule would not affect the applicable time for seeking permit coverage for newly constructed CAFOs not subject to new source performance standards (NSPS) or for new source CAFOs subject to NSPS that discharge or propose to discharge, even those in categories that were added to the definition of a CAFO in the 2003 CAFO rule. These CAFOs that discharge or propose to discharge are required by 40 CFR 122.21(a) and 123.23(g)(3)(i) and (4) to seek NPDES permit coverage at least 180 days prior to the time that they commence operating, and these provisions were unaffected by the 2006 date rule.
        This proposed rule would not supersede State requirements. States may choose to require CAFOs to obtain NPDES permits in advance of the dates set in the federal NPDES regulations, pursuant to the authority reserved to States under section 510 of the Clean Water Act to adopt requirements more stringent than those that apply under federal law. Further, CAFOs that are already permitted, e.g., CAFOs that existed prior to the effective date of the 2003 CAFO rule and as such have been required to seek NPDES permit coverage even before EPA issued the 2003 CAFO rule, continue to be required to maintain permit coverage pursuant to section 122.23(h).
        EPA is also proposing to correct a typographical error that was created in the 2006 date rule. In that rule, 40 CFR 122.23(g)(1) as promulgated in the 2003 CAFO rule (which provides that existing operations defined as CAFOs prior to April 14, 2003, must seek permit coverage by the effective date of the 2003 rule) was inadvertently replaced with 40 CFR 122.23(g)(2) (which provides extended compliance dates for operations defined as CAFOs as of April 14, 2003, but were not defined as CAFOs prior to that date). Because the “(2)” was erroneously printed as “(1)”, section 122.23(g)(1) was overwritten and section 122.23(g)(2) was incorrectly left unchanged. As a result, the current rule contains two provisions applicable to “Operations defined as CAFOs as of April 14, 2003, who were not defined as CAFOs prior to that date” with conflicting dates. EPA is proposing to restore the original section 122.23(g)(1) as promulgated in 2003, and to revise the date in section 122.23(g)(2) to reflect this proposal.
        B. Deadline for Nutrient Management Plans

        EPA is proposing to extend the deadline by which permitted CAFOs are required to develop and implement NMPs, from July 31, 2007, to February 27, 2009. This proposal would revise all references to the date by which CAFOs must develop and implement NMPs currently in Parts 122 and 412. Thus, this proposal would revise the deadlines established in 40 CFR 122.21(i)(1)(x), 122.42(e)(1), 412.31(b)(3), and 412.43(b)(2).
        This proposal would not supersede State requirements, nor would it affect CAFOs operating under existing permits so long as those permits remain in effect. If their existing permits require development and implementation of an NMP, currently permitted CAFOs must develop and implement their NMPs in accordance with the terms of their current permit, or their applicable state requirements. This proposed rule also would not affect the applicable land application limitations and requirements for all CAFOs subject to the new source performance standards under 40 CFR 412.35 and 40 CFR 412.46. Upon permit coverage, new sources must meet all relevant land application requirements.
        IV. Rationale for This Action

        At the time of the 2006 date rule, EPA believed that July 31, 2007, would allow sufficient time for the Agency to complete the rulemaking to address the Waterkeeper decision. EPA also reasoned that the basis for these revised dates was generally consistent with the approach taken by Congress in the 1972 Clean Water Act, as explained when setting the compliance dates in the 2003 CAFO rule. 68 FR 7204. EPA anticipated that the dates established in the 2006 date rule provided sufficient time to ensure compliance with the NPDES regulations within a reasonable timeframe consistent with the dates established in the 2003 CAFO rule. 71 FR 6980-81.

        The amount of time needed to revise the rule in response to the Waterkeeper decision has been greater than EPA anticipated at the time it promulgated the 2006 date rule. At that time, EPA had not yet proposed revisions to the CAFO rule and could only surmise what the public response to the proposal would be. In light of comments received and after further consideration of the proposed rule, EPA is continuing to explore the best method of implementing the Waterkeeper decision. To avoid any potential conflict with existing deadlines that precede the publication of the final rule, it is appropriate to propose this rulemaking to change the dates at issue.

        In comments on the proposed 2006 date rule, commenters asserted that the proposed deadlines would not offer CAFOs sufficient time to submit permit applications, including NMPs, that will comply with the regulatory revisions the Agency is planning to address in its response to the Waterkeeper decision. Other commenters expressed the view that EPA needed to take into consideration the time necessary for States to make conforming revisions to State programs following EPA's regulatory revisions. See docket ID EPA-HQ-OW-2005-0036. Commenters reiterated these concerns in comments on the 2006 proposed CAFO rule in response to Waterkeeper. See docket ID EPA-HQ-OW-2005-0037. This proposed rule balances the need to address the concerns raised by commenters with the interest of having the regulatory requirements implemented in a timely fashion. In EPA's view, this proposal would also provide sufficient time for newly defined facilities to review the revised duty to apply requirements to determine whether they need to seek permit coverage. Finally, it would provide time for permitting authorities to identify the necessary procedures for reviewing NMPs and incorporating them into general permits. Taking into account the time EPA needs to complete the rule in response to Waterkeeper, as well as the period of time after the final rule is promulgated to allow States, the regulated community, and other stakeholders the opportunity to adjust to the new regulatory requirements, EPA believes that extending the dates to February 27, 2009, is reasonable.
        V. Statutory and Executive Order Reviews

        Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed rule is not a “significant regulatory action” and is therefore not subject to review under the Executive Order. As discussed above, the purpose of this proposed rule is solely to address timing issues associated with the Agency's response to the Waterkeeper court ruling on petitions for review challenging portions of the 2003 CAFO rule. After considering the economic impacts of this proposed rule on small entities in accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), I certify that this action will not have a significant economic impact on a substantial number of small entities since the effect of the proposal, if implemented, is solely to extend certain deadlines related to NPDES CAFO permitting. Additionally, this proposed rule would not affect small governments, as the permitting authorities are state or federal agencies. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. EPA has determined that this proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. In addition, this action does not significantly or uniquely affect small governments. Thus, this proposed rule is not subject to sections 202, 203, or 205 of the Unfunded Mandates Reform Act of 1999 (Pub. L. 104-4). In addition, this proposed rule does not have Tribal implications as specified in Executive Order 13175 (63 FR 67249, November 9, 2000) because it will neither impose substantial direct compliance costs on tribal governments, nor preempt Tribal law. This proposed rule will not have federalism implications, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999) because it will not impose substantial direct compliance costs on State or local governments, nor will it preempt State law. Thus, the requirements of sections 6(b) and 6(c) of the Executive Order do not apply to this rule. This proposed rule is not subject to Executive Order 13045 because it is not economically significant as defined under E.O. 12866, and because the Agency does not have reason to believe the environmental health and safety risks addressed by this action present a disproportionate risk to children. This proposed rule is not subject to Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) which establishes federal executive policy on environmental justice. EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This proposed 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. This proposed rule does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose any new information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations at 40 CFR Parts 9, 122, 123, and 412 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2040-0250. The EPA ICR number for the original set of regulations is 1989.02.

          List of Subjects
          40 CFR Part 122
          Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous substances, Reporting and recordkeeping requirements, Water pollution control.
          40 CFR Part 412
          Environmental protection, Feedlots, Livestock, Waste treatment and disposal, Water pollution control.

          Dated: May 3, 2007.
          Stephen L. Johnson,
          Administrator.

        For the reasons stated in the preamble, the Environmental Protection Agency proposes to amend 40 CFR parts 122 and 412 as follows:

          PART 122—EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
          1. The authority citation for part 122 continues to read as follows:

            Authority:
            The Clean Water Act, 33 U.S.C. 1251 et seq.

            § 122.21
            [Amended]
            2. In § 122.21 paragraph (i)(1)(x), the date “July 31, 2007” is revised read “February 27, 2009”.
            3. Section 122.23 is amended by revising paragraphs (g)(1), (g)(2), and (g)(3)(iii) to read as follows:

            § 122.23
            Concentrated animal feeding operations (applicable to State NPDES programs, see § 123.25).

            (g) * * *
            (1) Operations defined as CAFOs prior to April 14, 2003. For operations that are defined as CAFOs under regulations that are in effect prior to April 14, 2003, the owner or operator must have or seek to obtain coverage under an NPDES permit as of April 14, 2003, and comply with all applicable NPDES requirements, including the duty to maintain permit coverage in accordance with paragraph (h) of this section.
            (2) Operations defined as CAFOs as of April 14, 2003, that were not defined as CAFOs prior to that date. For all operations defined as CAFOs as of April 14, 2003, that were not defined as CAFOs prior to that date, the owner or operator of the CAFO must seek to obtain coverage under an NPDES permit by a date specified by the Director, but no later than February 27, 2009.
            (3) * * *
            (iii) If an operational change that makes the operation a CAFO would not have made it a CAFO prior to April 14, 2003, the operation has until February 27, 2009, or 90 days after becoming defined as a CAFO, whichever is later.

            § 122.42
            [Amended]
            4. In § 122.42 paragraph (e)(1), the two dates “July 31, 2007” are revised read “February 27, 2009”.

          PART 412—CONCENTRATED ANIMAL FEEDING OPERATIONS (CAFO) POINT SOURCE CATEGORY
          5. The authority citation for part 412 continues to read as follows:

            Authority:
            33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, 1361.

            § 412.31
            [Amended]
            6. In § 412.31 paragraph (b)(3), the date “July 31, 2007” is revised to read “February 27, 2009”.

            § 412.43
            [Amended]
            7. In § 412.43 paragraph (b)(2), the date “July 31, 2007” is revised to read “February 27, 2009”.

       [FR Doc. E7-9027 Filed 5-9-07; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1080-AI82
        Endangered and Threatened Wildlife and Plants; Endangered Status for Scimitar-Horned Oryx, Addax, and Dama Gazelle

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), provide notice of the reopening of the comment period for the proposed rule to list three species of antelope: scimitar-horned oryx (Oryx dammah), addax (Addax nasomaculatus), and dama gazelle (Gazella dama), as endangered. The comment period is reopened to accommodate requests by two non-government organizations for additional time to provide information. Comments previously submitted need not be resubmitted because they will be incorporated into the public record as part of this comment period and will be fully considered in the final determination.

          DATES:
          The most recent comment period for the proposed rule closed October 22, 2003. With this reopening notification, written comments may now be submitted until January 12, 2004.

          ADDRESSES:

          Submit any comments, information, and questions by mail to the Chief, Division of Scientific Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Room 750, Arlington, VA 22203; or by fax to 703-358-2276; or by e-mail to ScientificAuthority@fws.gov. Comments and supporting information will be available for public inspection, by appointment, from 8 a.m. to 4 p.m. at the above address. You may also obtain copies of the November 5, 1991, proposed rule, and the July 24, 2003, notice to reopen the comment period from the above address.

          FOR FURTHER INFORMATION CONTACT:

          Eleanora Babij at the above address, or by phone, 703-358-1708; fax, 703-358-2276; or e-mail, ScientificAuthority@fws.gov.

        SUPPLEMENTARY INFORMATION:

        Background
        The scimitar-horned oryx (Oryx dammah), addax (Addax nasomaculatus), and dama gazelle (Gazella dama) originally occupied the same general region of North Africa. The reasons for the decline of all three antelope species are similar. Desertification, coupled with severe droughts, has dramatically reduced available habitat. The growth of permanent farming has brought additional pressures, such as human habitat disturbance and competition from domestic livestock, which have restricted these antelopes to marginal habitat. Additional pressures from the civil wars in Chad and the Sudan have resulted in increased military activity, construction, and uncontrolled hunting.

        For further information regarding background biological information, factors affecting the species, and conservation measures available to scimitar-horned oryx, addax, and dama gazelle, please refer to the proposed rule published in the Federal Register on November 5, 1991 (56 FR 56491), and the notice to reopen the comment period published on July 24, 2003 (68 FR 43706).
        Public Comments Solicited

        We will accept written comments and information during this reopened comment period from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party. Comments particularly are sought concerning;
        (1) Biological, commercial trade, or other relevant data concerning any threat (or lack thereof) to the scimitar-horned oryx, addax, and dama gazelle;
        (2) Additional information concerning the range, distribution, and population size of the scimitar-horned oryx, addax, and dama gazelle;
        (3) Current planned activities in the species' range and their possible impacts on the scimitar-horned oryx, addax, and dama gazelle;
        (4) Information on the validity of G. d. lozanoi as a subspecies;
        (5) Alternatives to the treatment of captive and non-native free-ranging populations of scimitar-horned oryx, addax, and dama gazelle; and
        (6) Information on the genetic integrity of captive and non-native free-ranging populations of scimitar-horned oryx, addax, and dama gazelle, and particularly whether any captive or non-native free ranging populations are likely to have been hybridized.

        Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Any person commenting may request that we withhold their home address, which we will honor to the extent allowable by law. In some circumstances, we may also withhold a commenter's identity, as allowable by law. If you wish us to withhold your name or address, you must state this request prominently at the beginning of your comment. However, we will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, from 8 a.m. to 4 p.m. at the Division of Scientific Authority (see
          ADDRESSES section).
        Author

        The primary author of this notice is Eleanora Babij, Division of Scientific Authority, U.S. Fish and Wildlife Service (see
          ADDRESSES section).

          Authority:
          16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

          Dated: November 14, 2003.
          Steve Williams,
          Director, Fish and Wildlife Service.

      [FR Doc. 03-29533 Filed 11-25-03; 8:45 am]
      BILLING CODE 4310-55-P