        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 27
        [WT Docket Nos. 03-66; RM-10586, FCC 09-70]
        Facilitating the Provision of Fixed and Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:

          In this document, the Commission seeks comment on its proposal to require applicants that win BRS licenses in Auction 86, and any subsequent auction, to demonstrate substantial service on or before four years from the date of license grant. Further, the Commission seeks comment on a proposed clarification to the substantial service rule applicable to the Broadband Radio Service and to the Educational Broadband Service. The Commission's proposals, if adopted, would ensure that spectrum in the 2.5 GHz band is put in use and would promote the provision of innovative services and rapid service to the public.

          DATES:
          Submit comments on or before October 13, 2009. Submit reply comments on or before October 23, 2009.

          ADDRESSES:
          Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. You may submit comments, identified by FCC 09-70, or by WT Docket No. 03-66, by any of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
          • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: (202) 418-0530 or TTY: (202) 418-0432.

          For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

          FOR FURTHER INFORMATION CONTACT:

          Nancy M. Zaczek, Wireless Telecommunications Bureau, Broadband Division, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554, at (202) 418-0274 or via the Internet to Nancy.Zaczek@fcc.gov.

        SUPPLEMENTARY INFORMATION:
        This is a summary of the Commission's Broadband Radio Service/Educational Broadband Service Third Further Notice of Proposed Rulemaking (BRS/EBS 3rd FNPRM), FCC 09-70, adopted on September 8, 2009, and released on September 11, 2009. The full text of this document 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 may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, 1-800-378-3160 or via e-mail at fcc@bcpiweb.com. The complete text is also available on the Commission's Web site at http://wireless.fcc.gov/edocs_public/attachment/FCC-09-70A1doc. This full text may also be downloaded at: http://wireless.fcc.gov/releases.html. Alternative formats (computer diskette, large print, audio cassette, and Braille) are available by contacting Brian Millin at (202) 418-7426, TTY (202) 418-7365, or via e-mail to bmillin@fcc.gov.

        SUPPLEMENTARY INFORMATION:
        BRS/EBS Third FNPRM
        1. Background. The Commission's general practice has been to adopt performance requirements associated with licenses to be met at a deadline measured in some period of time from the issue of the license (e.g., a licensee may have to demonstrate substantial service 5 years from issue of the license). Regarding incumbent BRS licenses, licensees were required to construct within twelve months of the date of license grant. Regarding BTA licenses, the former MDS rules provided that “within five years of the grant of a BTA authorization, the authorization holder must construct MDS stations to provide signals * * * that are capable of reaching at least two-thirds of the population of the applicable service area.” Subsequently, in April 2006, the Commission adopted May 1, 2011 as the uniform date by which all BRS BTA authorization holders and incumbent BRS and EBS licensees must demonstrate substantial service.

        2. The Commission adopted May 1, 2011 as the date for BRS licensees to demonstrate substantial service because it is the date that renewal applications for incumbent BRS licenses are due. Moreover, May 1, 2011 is approximately five years from the date of release of the BRS/EBS Second Report and Order, which gave existing BRS licensees five years to build out their systems, while they simultaneously transitioned to the new band plan and technical rules. Thus, the Commission concluded, requiring BRS licensees to demonstrate substantial service by May 1, 2011 struck the appropriate balance between ensuring that the band is promptly placed in use and giving licensees fair opportunity to transition their facilities. The Commission then required that BRS incumbent licensees file their demonstration of substantial service with their respective renewal applications.

        3. On April 24, 2009, the Wireless Telecommunications Bureau announced that it intended to auction 78 BRS BTA licenses, 75 of which will be overlay licenses that were originally offered in Auction 6 and are now available as a result of default, cancellation, or termination. Three additional licenses were created by the Commission in the BRS/EBS Fourth MO&O, when the Commission amended its rules to establish three Gulf of Mexico Service Areas for BRS. It is anticipated that the auction of these 78 BRS licenses will commence on October 27, 2009. Under the rules adopted by the Commission in 2006, auction winners of these 78 licenses will also be required to demonstrate substantial service on or before May 1, 2011.
        4. In response to the Auction 86 Procedures Public Notice, SAL Spectrum, LLC (SAL Spectrum) asked the Commission to give applicants that win BRS licenses in Auction 86 ten years in which to demonstrate substantial service. SAL Spectrum argues that requiring licensees who receive their licenses in Auction 86 to demonstrate substantial service by May 1, 2011 “will discourage participation in Auction 86 and deflate the amount that participants will be willing to bid.” The Ad Hoc BRS Applicants Association supports giving new licensees ten years to demonstrate substantial service. The Wireless Communications Association International, Inc. (WCA) and Clearwire Corporation (Clearwire) opposed SAL Spectrum's proposal. They contend that it would not be in the public interest to give new licensees ten years to demonstrate substantial service because the spectrum could lie fallow during that period. WCA recommends that any additional time “be an appropriate balance between the goal of ensuring that the spectrum is put to good use and permitting winners a reasonable opportunity to construct.” Clearwire argues that the existing May 1, 2011 substantial service deadline should apply.
        5. We tentatively conclude that we should require applicants that win BRS licenses in Auction 86, and any subsequent auction of BRS licenses, to demonstrate substantial service on or before four years from the date their respective licenses are granted. We agree with WCA that the substantial service deadline should ensure that spectrum is promptly placed in use while allowing licensees a reasonable opportunity to construct.

        6. We tentatively conclude that a four-year time period will allow new licensees sufficient time to build out their systems and put the spectrum to use. Although the May 1, 2011 date adopted by the Commission in the BRS/EBS Second Report and Order gave BRS licensees five years to build out their systems, during this five-year period licensees had to simultaneously transition to the new band plan and technical rules. Since the adoption of the BRS/EBS 2nd Report and Order, however, the transition of the 2500-2690 MHz band has been initiated in virtually the entire United States and has been completed in most of the country. Given that new BRS licensees will not face issues related to simultaneous transition and construction, we tentatively conclude that requiring new BRS licensees to build out within four years of license grant will ensure that the spectrum is put in use, promote the provision of innovative services, and promote rapid service to the public.
        7. The proposal to require substantial service within four years of license grant is consistent with the decision to establish initial buildout requirements within four years of the effective date of the DTV transition or of license grant in the 700 MHz band. Therefore, we tentatively conclude that a four-year deadline is more appropriate than the ten-year deadline. We believe that a ten-year deadline is excessive and could lead to spectrum being unused for an inordinately long period of time. Also, we believe the better course of action is to provide advance notice to potential bidders regarding their buildout obligations. Thus, we tentatively conclude that we should require new BRS licensees awarded in Auction 86 to demonstrate substantial service on or before four years from the date of license grant. In addition, we note that the same rationale would apply to any BRS licensee whose initial license is granted near the May 1, 2011 substantial service deadline. Therefore, we tentatively conclude that we should adopt a rule that would require any BRS licensee whose initial license is granted after the revised rule becomes effective to demonstrate substantial service on or before a date four years from the date the license was granted. We seek comment on this proposal and alternatives.
        8. We also propose to revise the introductory text to § 27.14(o) of the Commission's rules to more clearly state the Commission's intent to allow BRS or EBS licensees to demonstrate substantial service if their respective lessees met one of the safe harbors adopted by the Commission and to allow licenses to be combined for purposes of demonstrating substantial service under certain circumstances. We seek comment on this proposal.
        Procedural Matters
        Ex Parte Rules—Permit-But-Disclose Proceeding
        9. This is a permit-but-disclose notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed pursuant to the Commission's rules.
        Comment Period and Procedures

        10. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
        • Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers should follow the instructions provided on the Web site for submitting comments.
        • For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment via the Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response.
        • Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
        • People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (tty).
        • Availability of Documents: The public may view the documents filed in this proceeding during regular business hours in the FCC Reference Information Center, Federal Communications Commission, 445 12th Street, SW., Room CY-A257, Washington, DC 20554, and on the Commission's Internet Home Page: http://www.fcc.gov. Copies of comments and reply comments are also available through the Commission's duplicating contractor: Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, 1-800-378-3160.
        Paperwork Reduction Analysis

        11. This document does not contain proposed information collections 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).
        Initial Regulatory Flexibility Analysis

        12. The Regulatory Flexibility Act (RFA) requires that an agency prepare a regulatory flexibility analysis for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
        13. In the BRS/EBS Third FNPRM, the Commission has proposed extending the deadline for demonstrating substantial service for those licensees that are granted a BRS license after the adoption date of a rule in this proceeding. The Commission proposes this action in light of its decision to auction 78 available BRS BTA licenses starting on October 27, 2009. The Commission is concerned that these licensees, and any other licensees whose initial license is granted after the effective date of the rules adopted in this proceeding, may not be able to meet the substantial service deadline adopted by the Commission on April 12, 2006. This proposal, if adopted, would not create any additional burdens for BRS licensees. All BRS licensees must demonstrate substantial service. If adopted, however, this decision would relieve certain licensees of the burden of demonstrating substantial service on or before May 1, 2011, which would, in many cases, be just over a year from the date of license grant. Thus the Commission's proposal, if adopted, would relieve licensees granted an initial license after the effective date of the rules adopted in this proceeding, from having to meet the May 1, 2011 deadline, but would require them to demonstrate substantial service four years from the date of license grant.

        14. The Commission therefore certifies, pursuant to the RFA, that the proposals in the BRS/EBS Third FNPRM, if adopted, will not have a significant economic impact on a substantial number of small entities. If commenters believe that the proposals discussed in the BRS/EBS Third FNPRM require additional RFA analysis, they should include a discussion of these issues in their comments and additionally label them as RFA comments.
        Ordering Clauses

        15. It is ordered that notice is hereby given of the proposed regulatory changes described in this Third Further Notice of Proposed Rulemaking, and that comment is sought on these proposals.

        16. It is further ordered that pursuant to section 4(i) of the Communications Act of 1934, 47 U.S.C.154(i), that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Third Further Notice of Proposed Rulemaking, including the Initial Regulatory Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

          List of Subjects in 47 CFR Part 27
          Communications common carriers, Communications equipment, Equal employment opportunity, Radio, Reporting and recordkeeping requirements, Satellites, Securities, Telecommunications.

          Marlene H. Dortch,
          Secretary, Federal Communications Commission.

        Proposed Rules
        For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 27 as follows:

          PART 27—MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES
          1. The authority citation for part 27 continues to read as follows:

            Authority:
            47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and 337 unless otherwise noted.

          2. Amend § 27.14 by revising paragraph (o) introductory text to read as follows:

            § 27.14
            Construction requirements; Criteria for renewal.

            (o) BRS and EBS licensees originally issued a BRS or EBS license prior to [insert effective date of final rule] must make a showing of substantial service no later than May 1, 2011. With respect to initial BRS licenses issued after [insert effective date of final rule], the licensee must make a showing of substantial service within four years from the date of issue of the license. Incumbent BRS licensees that are required to demonstrate substantial service by May 1, 2011 must file their substantial service showing with their renewal applications. “Substantial service” is defined as service which is sound, favorable, and substantially above a level of mediocre service which just might minimally warrant renewal. Substantial service for BRS and EBS licensees is satisfied if a licensee meets the requirements of paragraph (o)(1), (o)(2), or (o)(3) of this section. If a licensee has not met the requirements of paragraph (o)(1), (o)(2), or (o)(3) of this section, then demonstration of substantial service shall proceed on a case-by-case basis. Except as provided in paragraphs (o)(4) and (o)(5) of this section, all substantial service determinations will be made on a license-by-license basis. Failure by any licensee to demonstrate substantial service will result in forfeiture of the license and the licensee will be ineligible to regain it.

      [FR Doc. E9-23331 Filed 9-25-09; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R4-ES-2010-0011]
        [MO 92210-0-0008-B2]
        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to List the Berry Cave Salamander as Endangered

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of petition finding and initiation of status review.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service, announce a 90-day finding on a petition to list the Berry Cave salamander (Gyrinophilus gulolineatus) as endangered under the Endangered Species Act of 1973, as amended. Based on our review, we find that the petition presents substantial scientific or commercial information indicating that listing this species may be warranted. Therefore, with the publication of this notice, we are initiating a review of the status of the species to determine if listing the Berry Cave salamander is warranted. To ensure that this status review is comprehensive, we are requesting scientific and commercial data and other information regarding this species. Based on the status review, we will issue a 12-month finding on the petition, which will address whether the petitioned action is warranted, as provided in section 4(b)(3)(B) of the Act.

          DATES:

          To allow us adequate time to conduct this review, we request that we receive information on or before May 17, 2010. After this date, you must submit information directly to the Field Office (see FOR FURTHER INFORMATION CONTACT section below). Please note that we may not be able to address or incorporate information that we receive after the above requested date.

          ADDRESSES:
          You may submit information by one of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R4-ES-2010-0011 and follow the instructions for submitting comments.
          • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R4-ES-2010-0011; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.
          We will post all information received on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Information Requested section below for more details).

          FOR FURTHER INFORMATION CONTACT:
          Mary E. Jennings, Field Supervisor, Cookeville Ecological Services Field Office, 446 Neal Street, Cookeville, TN, 38501; by telephone (931-528-6481); or by facsimile (931-528-7075). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Information Requested
        When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly review the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on the Berry Cave salamander from governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties. We seek information on:
         (1) The species' biology, range, and population trends, including:
         (a) Habitat requirements for feeding, breeding, and sheltering;
         (b) Genetics and taxonomy;
         (c) Historical and current range, including distribution patterns;
         (d) Historical and current population levels, and current and projected trends; and
         (e) Past and ongoing conservation measures for the species, its habitat, or both.

         (2) The factors that are the basis for making a listing determination for a species under section 4(a) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), which are:
         (a) The present or threatened destruction, modification, or curtailment of its habitat or range;
         (b) Overutilization for commercial, recreational, scientific, or educational purposes;
         (c) Disease or predation;
         (d) The inadequacy of existing regulatory mechanisms; or
         (e) Other natural or manmade factors affecting its continued existence.
         (3) The potential effects of climate change on this species and its habitat.
        If, we determine that listing the Berry Cave salamander is warranted, it is our intent to propose critical habitat to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, with regard to areas within the geographical range currently occupied by the Berry Cave salamander, we also request data and information on what may constitute physical or biological features essential to the conservation of the species, where these features are currently found, and whether any of these features may require special management considerations or protection.
        In addition, we request data and information regarding whether there are areas outside the geographical area occupied by the species that are essential for the conservation of the species. Please provide specific comments and information as to what, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat meets the requirements of the Act.

        Please include sufficient information with your submission (such as scientific journal articles, other supporting publications, or data) to allow us to verify any scientific or commercial information you include.
        Submissions merely stating support for or opposition to the action under consideration, without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

        You may submit your information concerning this status review by one of the methods listed in the ADDRESSES section. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If you submit a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

        Information and supporting documentation that we received and used in preparing this finding will be available for public inspection on http://www.regulations.gov, or you may make an appointment during normal business hours, at the U.S. Fish and Wildlife Service, Cookeville Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
        Background

        Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register.
        Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly review the status of the species, which is subsequently summarized in our 12-month finding.
        Petition History
        On January 22, 2003, we received a petition dated January 15, 2003, from Dr. John Nolt, University of Tennessee - Knoxville, requesting that we list the Berry Cave salamander as endangered under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, as required in 50 CFR 424.14(a). In a February 24, 2003, letter to the petitioner, we responded that we had reviewed the petition but that, due to court orders and settlement agreements for other listing and critical habitat actions that required nearly all of our listing and critical habitat funding for fiscal year 2003, we would not be able to further address the petition at that time.
        Species Information
        The Berry Cave salamander (Gyrinophilus gulolineatus) was recognized as a distinct aquatic cave-dependant taxon when it was originally described as a subspecies (G. palleucus gulolineatus) of the Tennessee cave salamander (G. palleucus) by Brandon (1965, pp. 346-352). The Tennessee cave salamander is found in eastern and middle Tennessee, northern Alabama, and northwestern Georgia. The Tennessee cave salamander is related to the spring salamander (G. porphyriticus); however, unlike the spring salamander, it is usually found in caves and is neotenic, meaning that it normally retains larval characteristics as an adult. Individuals occasionally metamorphose and lose their larval characters (Simmons 1976, p. 256; Yeatman and Miller 1984, pp. 305-306), and metamorphosis can be induced by subjecting them to hormones (Dent and Kirby-Smith 1963, p. 123).

        Three taxonomic entities have been formally described within the Tennessee cave salamander species complex. The pale salamander (G. p. palleucus) is the most widely distributed member of the group and is found in middle Tennessee, northern Alabama, and northwestern Georgia. The Big Mouth Cave salamander (G. p. necturoides) is restricted to one cave in middle Tennessee, and the Berry Cave salamander has been recorded from five locations in eastern Tennessee.

        The Berry Cave salamander is differentiated from other members of the group by a distinctive dark stripe on the upper portion of the throat, a wider head, a flatter snout, and possibly larger size (Brandon 1965, p. 347). Based on these differences and its apparent isolation from other members of the group, Collins (1991, p. 43) recommended that this subspecies be recognized as a distinct species (G. gulolineatus).
        The Berry Cave salamander is restricted to the Ridge and Valley Physiographic Province of eastern Tennessee. It has been reported from Berry Cave, which is located south of Knoxville, Tennessee; from Mud Flats, Meades Quarry, and Cruze Caves in Knoxville; and from an unknown cave in the Athens, Tennessee, area. The Athens record is based solely on three specimens collected in a roadside ditch that are presumed to have washed out of a cave during flooding (Brandon 1965, pp. 348-349). The species has not been observed in the Athens area since 1953.
        Evaluation of Information for This Finding
        Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.
        In making this 90-day finding, we evaluated whether information regarding threats to the Berry Cave salamander, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.
        A. The Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range

        Information Provided in the Petition

        The petitioner stated that the Berry Cave salamander is known from only four populations, all in eastern Tennessee, and that all but one of these populations are immediately threatened or already extirpated. These four locations include Berry Cave in Roane County; Mud Flats Cave in Knox County; an unknown location in the town of Athens, McMinn County; and Meades Quarry/Cruze Cave complex in South Knoxville, Knox County (treated as two separate localities in discussion above). The petitioner stated that Berry Cave was the only location containing a pure and unthreatened population of the species.
        The petitioner stated that the only record of Berry Cave salamanders from the town of Athens was based on a 1953 collection of three specimens from a roadside ditch that was flooded by Oostanaula Creek. These specimens were collected near a hole in the ground, presumably an opening into a cave out of which the animals had been washed, but the exact location was unknown. The petitioner concluded that this population, if it still exists, is potentially under pressures from development and pollution that affected other sites in urban areas.
        The petitioner also stated that the habitat in Mud Flats Cave was degraded several years prior to the petition date, due to siltation from a nearby housing development, and that efforts to find the Berry Cave salamander subsequent to this development have failed, suggesting this population might be extirpated. The petitioner also asserted that if the species has survived at this location, it is subjected to continued pollution and siltation from this development.
        In addition, the petitioner asserted that Meades Quarry Cave and Cruze Cave are connected, forming one system. Evidence of a connection included: (1) Information on the position of Meades Quarry Cave, which is thought to extend southwest in the general direction of Cruze Cave; (2) the location of both caves within the Holston Formation, a long band of relatively soluble marble-like limestone known as “Tennessee marble” that is found in an area only a few hundred yards or meters wide; and (3) genetic studies that suggest that salamanders from both caves are part of the same population. The petitioner stated that if the two caves are part of the same system, the proposed James White Parkway, which would be located midway between the entrance to Meades Quarry Cave and the entrance to Cruze Cave, must pass directly over the system and constitutes a significant threat to the Meades Quarry/Cruze Cave habitat of the Berry Cave salamander. In addition, the petitioner stated that a proposed interchange for the James White Parkway would be located on a hillside immediately above a sinkhole complex that lies in the Holston formation, approximately midway between the entrances to Cruze and Meades Quarry Caves. The sinkhole is presumably connected to this cave system. The petitioner concluded that the proposed construction project and resulting road would threaten the Berry Cave salamander population by disrupting the food chain upon which the species depends, increasing siltation in the cave system, and altering the hydrologic and thermal regimes of the stream system. Other road-related impacts to this site that the petitioner stated would threaten the species either directly or by reducing its prey included filling of cave passages with concrete, collapse of cave passages, pollution from toxic runoff, and toxic chemical spills.
        Evaluation of Information Provided in the Petition and Available in Service Files
        Information in Service files supports the petitioner's claim that the Berry Cave salamander is known from only 4 populations in eastern Tennessee (Wynn and Jacobs 1988, pers. comm.). In addition, we have no information in our files indicating that Berry Cave salamanders have been collected from the vicinity of Athens, Tennessee, since the initial discovery there in 1953.

        The source of much of the information included in the petition was notes taken by the petitioner during a meeting about the Berry Cave salamander and related taxa within the G. palleucus species complex, which was held by the Service on December 10, 2002. Several persons knowledgeable about the distribution, status, and ongoing taxonomic studies of the species were present at that meeting. During this meeting, Ron Caldwell reported that he visited Mud Flats Cave in 1994 and did not observe any salamanders. At the time of the visit, the mud in the cave was hip deep whereas the mud was only ankle deep during prior visits he made to the cave. He also reported that a housing development had filled in a sinkhole overlaying the cave and that lawn runoff from the development and from a golf course may be impacting the cave (Caldwell 2002, pers. comm.).
        If the James White Parkway is constructed as the petitioner describes, the habitat of the Berry Cave salamander may be negatively impacted. Construction of the parkway has the potential to cause erosion of surrounding land and cause excessive siltation to enter the Meades Quarry/Cruze Cave complex, which in turn could cause a disruption in the amount of organic matter (salamander food source) entering the cave complex. It could also cause fluctuations in water flow through the cave system, fluctuations in temperature of water entering the cave system, and an increase in pollution from toxic runoff. We believe that these factors could lead to a decline in the population in the Meades Quarry/Cruze Cave complex, given the apparent decline at Mud Flats Cave in the face of similar threats, primarily excessive siltation. Because the Berry Cave salamander is restricted to no more than four localities, one of which might already be extirpated (see discussion above concerning Mud Flats Cave), we believe the petitioner presents substantial information to suggest the species could be placed at risk of becoming extinct in the foreseeable future.
        In summary, we find that the information provided in the petition, as well as other information in our files, presents substantial scientific or commercial information indicating that the petitioned action may be warranted due to present or threatened destruction, modification, or curtailment of the species' habitat or range. Specifically, the petitioner's claims that (1) the Mud Flats Cave population of Berry Cave salamander may be extirpated and that habitat in this location has been modified by siltation and other development-related threats, and (2) the Meades Quarry/Cruze Cave complex may be threatened by proposed road development in the vicinity of the cave, indicate that the petitioned action may be warranted.
        B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

        The petition presents no substantial scientific or commercial information, nor do we have such information in our files, indicating that the petitioned action may be warranted due to threats from overutilization for commercial, recreational, scientific, or educational purposes. However, we will evaluate all factors, including threats from overutilization for commercial, recreational, scientific, or educational purposes, when we conduct our status review.
        C. Disease or Predation

        The petition presents no substantial scientific or commercial information, nor do we have such information in our files, indicating that the petitioned action may be warranted due to disease or predation. However, we will evaluate all factors, including threats from disease and predation, when we conduct our status review.

        D. The Inadequacy of Existing Regulatory Mechanisms

        The petition presents no substantial scientific or commercial information, nor do we have such information in our files, indicating that the petitioned action may be warranted due to threats resulting from the inadequacy of existing regulatory mechanisms. However, we will evaluate all factors, including the inadequacy of existing regulatory mechanisms when we conduct our status review.
        E. Other Natural or Manmade Factors Affecting the Species' Continued Existence

        Information Provided in the Petition

        The petitioner stated that specimens so far collected from the Meades Quarry/Cruze Cave complex have hybridized with the spring salamander (Gyrinophilus porphyriticus), which occurs near the cave entrances.
        Evaluation of Information Provided in the Petition and Available in Service Files
        The petitioner's claims concerning hybridization are supported by correspondence in our files, which indicate that, based upon electrophoretic data, populations in Meades Quarry and Cruze Caves hybridize with spring salamanders (Wynn and Jacobs 1988, pers. comm.) While this may be a natural occurrence that has gone on for quite some time, there is a possibility that unique Berry Cave salamander genetic material is being lost through interbreeding with spring salamanders, threatening the genetic integrity of the species.
        Therefore, we find that the information provided in the petition, as well as other information in our files, presents substantial scientific or commercial information indicating that the petitioned action may be warranted due to the potential threat to the genetic integrity of two of the four known populations of Berry Cave salamander by hybridization with the spring salamander.
        Finding
        On the basis of our determination under section 4(b)(3)(A) of the Act, we have determined that the petition presents substantial scientific or commercial information indicating that listing the Berry Cave salamander may be warranted. This finding is based on the possibility of habitat loss and degradation from development, which has been implicated in the reduction or possible loss of Berry Cave salamanders in Mud Flats Cave. It is also based on the potential threat of the loss of genetic diversity due to interbreeding between Berry Cave and spring salamanders in Meades Quarry and Cruze caves. Because we have found that the petition presents substantial information indicating that listing the Berry Cave salamander may be warranted, we are initiating a status review to determine whether listing the Berry Cave salamander under the Act is warranted.
        The “substantial information” standard for a 90-day finding differs from the Act's “best scientific and commercial data” standard that applies to a status review to determine whether a petitioned action is warranted. A 90-day finding does not constitute a status review under the Act. In a 12-month finding, we will determine whether a petitioned action is warranted after we have completed a thorough status review of the species, which is conducted following a substantial 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a substantial 90-day finding does not mean that the 12-month finding will result in a warranted finding.
        References Cited

        A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the Cookeville Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
        Author

        The primary authors of this notice are the staff members of the Cookeville Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

          Authority:

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

          Dated: March 9, 2010.
          Rowan W. Gould,
          Acting Director, U.S. Fish and Wildlife Service.

      [FR Doc. 2010-5966 Filed 3-17- 10; 8:45 am]
      BILLING CODE 4310-55-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        [I.D. 052405A]
        Gulf of Mexico Fishery Management Council; Public Hearings

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule; public hearings.

          SUMMARY:
          The Gulf of Mexico Fishery Management Council (Council) will convene public hearings to solicit comments on the Draft Amendment to the FMPs for Reef Fish (Amendment 25) and Coastal Migratory Pelagics (CMP) (Amendment 17) for extending the Charter Vessel/Headboat Permit Moratorium and Draft Amendment 18A to the Reef Fish Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico, and to conduct a workshop on potential interim measures to reduce recreational red grouper harvest in the Gulf of Mexico, with associated impacts on gag and other groupers.

          DATES:

          The public hearings and workshops will be held from June 13 through June 29, 2005, at 10 locations throughout the Gulf of Mexico. For specific dates and times see SUPPLEMENTARY INFORMATION.

          ADDRESSES:

            Meeting addresses: The public hearings and workshops will be held in Port Isabel, Galveston, and Port Aransas, Texas; St. Rose, Louisiana; Biloxi, Mississippi; Orange Beach, Alabama; and Destin, Madeira Beach, Naples, and Key West, Florida. For specific locations see SUPPLEMENTARY INFORMATION.

            Council address: Gulf of Mexico Fishery Management Council, 3018 North U.S. Highway 301, Suite 1000, Tampa, FL 33619.

          FOR FURTHER INFORMATION CONTACT:
          Mr. Stu Kennedy, Fishery Biologist, Gulf of Mexico Fishery Management Council; telephone: 813.228.2815.

        SUPPLEMENTARY INFORMATION:
        The Gulf of Mexico Fishery Management Council (Council) will convene pubic hearings to solicit comments on two issues in the following order:
        1. Draft Amendment to the FMPs for Reef Fish (Amendment 25) and Coastal Migratory Pelagics (Amendment 17) for extending the Charter Vessel/Headboat Permit Moratorium. Amendments establishing the charter vessel/headboat permit moratorium for the CMP fishery and the Reef Fish fishery that were approved by NOAA Fisheries on May 6, 2003, and implemented on June 16, 2003 (68 FR 26280). The intended effect of these Amendments was to cap the number of for-hire vessels operating in these two fisheries at the current level (as of March 29, 2001) while the Council evaluated whether limited access programs were needed to constrain effort. In this amendment, the Council is considering allowing the permit to expire on June 16, 2006 or extending the moratorium on for-hire Reef Fish and CMP permits for a finite period of time or indefinitely.
        2. Draft Amendment 18A to the Reef Fish Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico: Reef Fish Amendment 18A deals with enforcement and monitoring issues, including simultaneous commercial and recreational harvest on a vessel (to improve enforceability of prohibition on sale of recreationally caught reef fish), maximum crew size on a Coast Guard inspected vessel when fishing commercially (to resolve a conflict between NMFS maximum crew size and USCG minimum crew size regulations), use of reef fish for bait, and vessel monitoring system (VMS) requirements on commercial reef fish vessels. Amendment 18A also addresses administrative changes to the framework procedure for setting total allowable catch (TAC) of reef fish, and measures to reduce bycatch and bycatch mortality of endangered sea turtles and smalltooth sawfish taken inadvertently in the commercial and charter/headboat reef fish fishery.

        After the public hearings, workshops will be held to address potential interim measures to reduce recreational red grouper harvest in the Gulf of Mexico, with associated impacts on gag and other groupers: Secretarial Amendment 1 to the Reef Fish Fishery Management Plan of the Gulf of Mexico established a rebuilding plan and 6.56 mp GW allowable biological catch for red grouper. During 2003 and 2004, recreational red grouper landings exceeded the 1.25 mp GW recreational allocation. In March 2005, the Gulf Council requested NMFS implement an interim rule to reduce the 2005 recreational red grouper harvest to levels in Secretarial Amendment 1. The purpose of this action is to establish interim regulations that reduce the likelihood overfishing for red grouper will occur in 2005. Possible measures include changes to the red grouper and aggregate grouper bag limits, changes in size limit, and a closed season for all groupers.
        The public hearings and workshops will begin at 6 p.m. and conclude no later than 10 p.m. at each of the following locations:

          Monday, June 13, 2005, New Orleans Airport Ramada Inn and Suites, 110 James Drive East, St. Rose, Louisiana 70087, 504-466-1355.

          Tuesday, June 14, 2005, Mississippi Department of Marine Resources, 1141 Bayview Drive, Biloxi, Mississippi 39530, 228-374-5000.

          Wednesday, June 15, 2005, Orange Beach Community Center, 4849 Wilson Boulevard, Orange Beach, Alabama 36561, 251-981-6028.

          Thursday, June 16, 2005, Destin Community Center, 101 Stahlman Avenue, Destin, Florida 32541, 850-654-5184.

          Monday, June 20, 2005, The San Luis Resort, 5222 Seawall Boulevard, Galveston Island, Texas 77551, 409-744-1500.

          Wednesday June 22, 2005, University of Texas Marine Science Institute Auditorium, 750 Channel View Drive, Port Aransas, Texas 78373, 361-749-6711.

          Thursday, June 23, 2005, Port Isabel Community Center, 213 Yturria, Port Isabel, Texas 78578, 956-943-2682.

          Monday, June 27, 2005, DoubleTree Grand Key Resort, 3990 S. Roosevelt Boulevard, Key West, Florida 33040, 888-310-1540.

          Tuesday, June 28, 2005, Hilton, 5111 Tamiami Trail North, Naples, Florida 34103, 239-430-4900.

          Wednesday, June 29, 2005, City of Madeira Beach, 300 Municipal Drive, Madeira Beach, Florida 33708, 727-391-9951.
        A copy of the Amendments and related materials can be obtained by calling the Council office at 813.228.2815.
        Special Accomodations

        These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Dawn Aring at the Council (see ADDRESSES) by June 6, 2005.

          Dated: May 24, 2005.
          Alan D. Risenhoover
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 05-10665 Filed 5-26-05; 8:45 am]
      BILLING CODE 3510-22-S


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 271
        [EPA-R09-RCRA-2010-0598; FRL-9205-1]
        California: Proposed Authorization of State Hazardous Waste Management Program Revision

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          California has applied to EPA for final authorization of certain changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has reviewed California's application and made the tentative decision that these changes satisfy all requirements needed to qualify for final authorization, and is proposing to authorize the State's changes. EPA is also proposing that the State's requirements regulating facilities that are conditionally exempt from the federal rules as Conditionally Exempt Small Quantity Generators (“CESQGs”) be treated as more stringent than federal requirements, thereby making these provisions federally enforceable.

          DATES:
          EPA must receive written comments on California's application for authorization for changes to its hazardous waste management program by November 1, 2010.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-R09-RCRA-2010-0598 by one of the following methods:
          • http://www.regulations.gov: Follow the on-line instructions for submitting comments.
          • E-mail: smith.rebecca@epa.gov.
          • Fax: (415) 947-3533 (prior to faxing, please notify Rebecca Smith at 415-972-3313)
          • Mail: Send written comments to: Rebecca Smith, WST-2, EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105-3901.
          • Hand Delivery or Courier: Rebecca Smith, EPA Region 9 (WST-2), 75 Hawthorne Street, San Francisco, CA 94105. Such deliveries are only accepted during the office's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

            Instructions: We must receive your comments by November 1, 2010. Direct your comments to Docket ID No. EPA-R09-RCRA-2010-0598. 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 the disclosure of which is restricted by statute, or you make special arrangements with the EPA contact. 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 you do so, this information will become a part of the public record, unless you have made arrangements with EPA prior to the submittal of your comments. 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 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.

          You may view and copy California's application at the following addresses: California Environmental Protection Agency, Environmental Services Center, 1001 I Street, 22nd Floor, Sacramento, CA 95814, Phone: (916) 324-0912, from 8 a.m. to noon and 1 p.m. to 4 p.m., Monday through Thursday (appointment preferred but not required); and U.S. EPA Region 9 Library-Information Center, 75 Hawthorne Street, San Francisco, CA 94105, Phone: (415) 947-4406, from 9 a.m. to 12 p.m. and 1 p.m. to 4 p.m. Monday through Thursday. Copy services are not available in Sacramento, but should be arranged by the viewer.

          FOR FURTHER INFORMATION CONTACT:
          Rebecca Smith, EPA Region 9 (WST-2), 75 Hawthorne Street, San Francisco, CA 94105, Phone: (415) 972-3313. E-mail: smith.rebecca@epa.gov.

        SUPPLEMENTARY INFORMATION:

        A. Why are revisions to state programs necessary?
        States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must revise their programs and ask EPA to authorize the revisions. Revisions to state programs may be necessary when Federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.
        B. What decisions have we made in this rule?
        EPA has made the tentative determination that California's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we are proposing to grant California final authorization to operate its hazardous waste program with the changes described in this authorization application. California will have responsibility for permitting treatment, storage, and disposal facilities (TSDFs) within its borders (except in Indian country) and for carrying out all authorized aspects of the RCRA program described in its revised program application, subject to the limitations of RCRA's Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by HSWA regulations take effect as a matter of Federal law in authorized states before those states are authorized for such requirements. Thus, EPA will implement those requirements and prohibitions in California, including issuing permits, until the State is granted authorization to do so.
        C. What is the effect of this authorization decision?

        If California is authorized for these changes, a facility in California subject to RCRA will have to comply with the authorized State requirements instead of the corresponding Federal requirements in order to comply with RCRA. Additionally, facilities must comply with certain Federal requirements, i.e., HSWA regulations issued by EPA for which California has not received authorization, and RCRA requirements that are not supplanted by authorized State-issued requirements such as requirements for the exportation of hazardous waste. California continues to have enforcement responsibilities under its State law to pursue violations of its hazardous waste management program. EPA continues to have independent enforcement authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, the authority to:
        • Do inspections, and require monitoring, tests, analyses or reports;
        • Enforce RCRA requirements (including State-issued statutes and regulations that are authorized by EPA and any applicable Federally-issued statutes and regulations) and suspend or revoke permits; and
        • Take enforcement actions regardless of whether the State has taken its own actions.
        The action to approve these revisions would not impose additional requirements on the regulated community because the regulations for which California will be authorized are already effective under State law and are not changed by the act of authorization.
        D. What happens if EPA receives comments that oppose this action?
        If EPA receives comments that oppose this authorization, we will address those comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.
        E. For what has California previously been authorized?
        California initially received final authorization for the base RCRA program on July 23, 1992, effective August 1, 1992 (57 FR 32726). EPA granted authorization for changes to California's program on September 26, 2001, effective September 26, 2001 (66 FR 49118).
        F. What changes are we proposing with this action?
        On August 2, 2004 and August 17, 2004 California submitted final complete program revision applications, seeking authorization of those changes in accordance with 40 CFR 271.21. We have made a tentative determination that California's hazardous waste program revisions satisfy all of the requirements necessary to qualify for final authorization.
        California has applied for only the Federal changes relating to the corrective action management units, the Bevill exclusion and the land disposal restrictions. There are several changes to the Federal program for which California has not yet applied for authorization. The major areas of changes for which California has not yet applied for authorization are: The used oil regulations; consolidated liability requirements; military munitions; universal waste; modification to the hazardous waste manifest system; standardized permit requirements; burden reduction regulations; and the NESHAPS: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors (MACT Rule).

        California submits packages to EPA relating to its efforts to seek authorization for updates to its program based on revisions to the Federal program. EPA publishes a series of checklists to aid California and the other states in such efforts (see EPA's RCRA State Authorization Web page at http://www.epa.gov/epaoswer/hazwaste/state/revision/program.htm). Each checklist generally reflects changes made to the Federal regulations pursuant to a particular Federal Register notice. California's submittals have been grouped into general categories (e.g., Corrective Action Management Units, Land Disposal Restrictions, etc.). Each submittal may have reflected changes based on one or more Federal Register notices and would have thus referenced one or more corresponding checklists.

        What follows is a summary, for each general category identified by California in its submittals, of the specific subjects of changes to the Federal program for that category. Although the changes to the Federal program are identified in the summary, California did not necessarily make revisions to its program as a result of each Federal revision noted. For example, certain revisions to the Federal program may have resulted in less stringent regulation than that which previously existed. Since states may maintain programs which are more stringent than the Federal program, states have the option whether or not to adopt such revisions.
        1. Changes California Identified as Relating to Corrective Action Management Units
        We are proposing to grant California final authorization for all revisions to its program due to certain changes to the Federal Corrective Action Management Unit program.
        2. Changes California Identified as Relating to Land Disposal Restrictions Phases 3 and 4
        We are proposing to grant California final authorization for all revisions, if any, to its program due to certain changes to the Federal program in the following areas: (1) Land Disposal Restrictions Phase III—Decharacterized Wastewaters; (2) Emergency Extension of the K088 Capacity Variance; (3) Land Disposal Restrictions Phase IV—Treatment Standards for Wood Preserving Wastes, Paperwork Reduction and Streamlining, Exemptions From RCRA for Certain Processed Materials; (4) Emergency Revision of the Carbamate Land Disposal Restrictions; (5) Clarification of Standards for Hazardous Waste LDR Treatment Variances; (6) Treatment Standards for Metal Wastes and Mineral Processing Wastes; (7) Hazardous Soils Treatment Standards and Exclusions; (8) Administrative Stay for Zinc Micronutrient Fertilizers; (9) Emergency Revision of the Land Disposal Restrictions (LDR) Treatment Standards for Listed Hazardous Wastes from Carbamate Production; (10) Extension of Compliance Date for Characteristic Slags; (11) Treatment Standards for Spent Potliners from Primary Aluminum Reduction (K088); (12) Chlorinated Aliphatics Listing and LDRs for Newly Identified Wastes; (13) Deferral for PCBs in Soil; and (14) Certain Land Disposal Restrictions Technical Corrections and Clarifications. Note that California has not yet adopted the provisions addressed by the following Federal final rules which are also part of Phase IV of the land disposal restrictions requirements: LDR Revision Checklist 195 (66 FR 58258, November 20, 2001, as amended by 67 FR 17119, April 9, 2002); non-LDR Revision Checklist 200 (67 FR 28393, July 24, 2002); and LDR Revision Checklist 201 (67 FR 62618, October 7, 2002).
        3. Changes California Identified as Relating to the Bevill Exclusion
        We are proposing to grant California final authorization for all revisions to its program due to certain changes to the Federal program in the Bevill Exclusion requirements.
        The following table shows the Federal and analogous State provisions involved in this tentative decision and the relevant corresponding checklists:

            Description of Federal requirement (checklist #)

              Federal Register page and date
            Analogous State authority

            40 Code of Federal Regulations (40 CFR), 260.10 Corrective Action Management Units (CAMU), checklist 196
            (196) 67 FR 2962, Jan. 22, 2002
            (196) Title 22, California code of Regulations (22 CCR) 66260.10, amended July 19, 2004.

            40 CFR 261.1 Land Disposal Restrictions (LDR), checklist 157
            (157) 62 FR 25998, May 12, 1997
            (157) California did not adopt these exclusions.

            40 CFR 261.2 LDR, checklists 157, 179
            (179) 64 FR 2548, May 11, 1999
            (157, 179) California did not adopt these regulations.

            40 CFR 261.3, Bevill Exclusion, checklist 167E
            (167E) 63 FR 28556, May 26, 1998
            (167E) 66261.3, amended March 15, 2003.

            40 CFR 261.4, Bevill Exclusion, checklist 167E

            (167E) 66261.4, amended November 12, 1998.

            40 CFR 262.34 LDR, checklists 179, 183
            (183) 64 FR 56469, October 20, 1999
            (179, 183) 22 CCR 66262.34, amended Sept. 11, 2000.

            40 CFR 264.550 through 264.552 CAMU, checklist 196

            (196) 22 CCR 66264.550 through 66264.552, amended July 19, 2004.

            40 CFR 264.554 and 264.555 CAMU, checklist 196

            (196) California did not adopt these regulations.

            40 CFR 268.1 LDR, checklists 151, 157
            (151) 61 FR 15566 April 8, 1996; [amended 61 FR 15660 April 8, 1996; 61 FR 19117 April 30, 1996; 61 FR 33680 June 28, 1996; 61 FR 36419 July 10, 1996; 61 FR 43924 August 26, 1996; and 62 FR 7502 February 19, 1997]
            (151, 157) 22 CCR 66268.1, amended June 4, 1999

            40 CFR 268.2 LDR, checklists 151, 167A, 167B, 179
            (167A, 167B) 63 FR 28556, May 26, 1998 [amended 63 FR 31266 June 8, 1998]
            (151, 167A, 167B, 179) 22 CCR 66260.10, amended Feb. 26, 2004.

            40 CFR 268.3(b) LDR checklist 151

            (151) California Health and Safety Code (HSC) Division 20, 25179.2(e) enacted 1995. California did not adopt the dilution exception.

            40 CFR 268.3(c) and (d) LDR checklists 151, 167A

            (151, 167A) 22 CCR 66268.3(b) and (c) amended June 4, 1999

            40 CFR 268.4 LDR checklist 167C
            (167C) 63 FR 28556, May 26, 1998 [amended 63 FR 31266, June 8, 1998]
            (167C) HSC, Division 20, 25179.11 amended 1996. 22 CCR 66268.1 amended June 4, 1999.

            40 CFR 268.7 LDR, checklists 151, 157, 167B, 167C, 179, 183

            (151, 157, 167B, 167C, 179, 183) 22 CCR 66268.7 amended Feb. 26, 2004; (157) California did not adopt the Federal exemption at 40 CFR 268.7(b)(6).

            40 CFR 268.9 LDR checklists 151, 157, 179

            (151, 157, 179) 22 CCR 66268.9 amended Feb. 26, 2004.

            40 CFR 268.30 LDR checklist 157

            (157) 22 CCR 66268.30 amended June 4, 1999.

            40 CFR 268.32 LDR checklists 157, 190
            (190) 65 FR 81373 December 26, 2000
            (157, 190) 22 CCR 66268.31.5 amended July 3, 2002.

            40 CFR 268.33 LDR checklist 189
            (189) 65 FR 67068, November 8, 2000
            (189) 22 CCR 66268.33 amended July 3, 2002.

            40 CFR 268.34 LDR checklists 167A, 172
            (167A, 172) 63 FR 48124, September 9, 1998
            (167A, 172) 22 CCR 66268.34 amended Sept. 11, 2000.

            40 CFR 268.39 LDR checklists 151, 155, 159, 160, 173
            (155) 62 FR 1992, January 14, 1997; (160) 62 FR 37694, July 14, 1997; (173) 63 FR 51254, September 24, 1998
            (151, 155, 159, 160, 173) 22 CCR 66268.39 amended Sept. 11, 2000.

            40 CFR 268.40 LDR checklists 151, 161, 167A, 167C, 171, 179, 183
            (161) 62 FR 45568, August 28, 1997; (170) 63 FR 46332 August 31, 1998; (171) 63 FR 47410, September 4, 1998
            (151, 161, 167A, 167C, 171, 179, 183) 22 CCR 66268.40 amended July 3, 2002.

            40 CFR 268.40/Table checklists 151, 157, 167A, 167C, 171, 173 179, 183, 189

            (151, 157, 167A, 167C, 171, 173 179, 183, 189) 22 CCR 66268.40/Table amended July 3, 2002.

            40 CFR 268.42 LDR checklists 151, 157, 167C

            (151, 157, 167C) 22 CCR 66268.42 amended Feb. 26, 2004.

            40 CFR 268.44(a) LDR checklist 162
            (162) 62 FR 64504, December 5, 1997
            (162) California is not seeking to have this provision delegated.

            40 CFR 268.44(h), (m) LDR checklists 162, 167B

            (162, 167B) 22 CCR 66268.44 amended June 4, 1999.

            40 CFR 268.45 LDR checklist 167C

            (167C) 22 CCR 66268.45 amended June 4, 1999.

            40 CFR 268.48(a)/Table UTS LDR checklists 151, 161, 167A, 167C, 171, 179, 189, 190

            (151, 161, 167A, 167C, 171, 179, 189, 190) 22 CCR 66268.48(a)/Table UTS amended July 3, 2002.

            40 CFR 268.49 LDR checklists 167B, 183, 179, 190

            (167B, 183, 179, 190) 22 CCR 66268.49 amended July 3, 2002.

            40 CFR 268, Appendices I, II, X LDR checklist 157

            (157) 22 CCR, Chapter 18, Appendices I, II, X [reserved] amended June 4, 1999.

            40 CFR 268, Appendix III LDR checklists 157, 190

            (157, 190) 22 CCR Chapter 18, Appendices III amended July 3, 2002.

            40 CFR 268, Appendix VI LDR checklist 157

            (157) 22 CCR Chapter 18, Appendices VI amended June 4, 1999.

            40 CFR 268, Appendix VII/Table 1 LDR checklists 157, 167C, 192B
            (192B) 66 FR 27266, May 16, 2001
            (157, 167C, 192B) 22 CCR Chapter 18, Appendix VII/Table 1 amended July 3, 2002.

            40 CFR 268, Appendix VII/Table 2 and Appendix VIII LDR checklists 157, 167C

            (157, 167C) 22 CCR Chapter 18, Appendix VII/Table 2 amended June 4, 1999.

            40 CFR 268, Appendix XI LDR checklist 151

            (151) 22 CCR Chapter 18, Appendix XI amended June 4, 1999.

        G. Where are the revised state rules different from the federal rules?
        State requirements that go beyond the scope of the Federal program are not part of the authorized program and EPA cannot enforce them. Although you must comply with these requirements in accordance with California law, they are not RCRA requirements. We consider that the following State requirements, which pertain to the revisions involved in this tentative decision, go beyond the scope of the Federal program.
        1. The definition of “remediation waste” at 22 CCR. 66260.10 is broader in scope than the Federal definition at 40 CFR 260.10 only to the extent California's definition includes hazardous substances which are neither “hazardous wastes” nor “`solid wastes.”
        2. California regulation subjects CAMUs for non-RCRA hazardous waste to state-specific requirements under 22 CCR 66264.552.5. The state requirement at 22 CCR 66264.552.5 is broader in scope because the federal program does not consider these wastes to be hazardous. In addition, 22 CCR 66264.550(a) is also considered broader in scope to the extent that it subjects non-RCRA wastes to the state-only CAMU requirements.
        3. California did not adopt the Federal definitions at 40 CFR 261.1(c)(9)-(12), 261.4(a)(13)-(14), and 261.6(a)(3)(ii) addressing scrap metals or the related Federal changes to 40 CFR 261.2(c)(4)/Table. California is broader in scope to the extent that its statutory provisions at HS&C § 25143.2(a) and (e), do not exclude these scrap metals from regulation.
        4. The California provisions at 22 CCR 66268.7(a)-(c) are broader in scope than the Federal land disposal treatment provisions at 40 CFR 268.7(a)-(c) to the extent that the State's provisions also apply to non-RCRA wastes. Similarly, California's variance petition provisions at 22 CCR 66268.44(c) and 66268.44(h) are also broader in scope to the extent that they apply to non-RCRA wastes.
        H. What is EPA's position on California's regulation of conditionally exempt small quantity generators?

        When California initially received final authorization for the base RCRA program on July 23, 1992, effective August 1, 1992 (57 FR 32726), EPA Pacific Southwest Region (Region IX) identified California's failure to adopt the federal exclusion for conditionally exempt small quantity generators (“CESQGs”) (found, generally, at 40 CFR 261.5) as “broader in scope” than the federal program. (See also 40 CFR 270.1(c)(2)(iii).) However, EPA's position regarding the absence of the conditional exclusion for CESQGs in a state program has changed and EPA now clearly regards the absence of any such exclusion as more stringent than the federal program, making state regulation of CESQGs federally enforceable when authorized. See United States v. Southern Union Co., 643 F. Supp. 2d 201 (D.R.I. 2009). In order to harmonize our authorization of California's program with EPA's position with respect to CESQGs, EPA is hereby proposing to redesignate California's regulation of CESQGs as more stringent than the federal program. EPA is also seeking public comment on this proposed change to California's authorization. If EPA makes a final determination that California's regulation of CESQGs is more stringent than the federal program, then the State's regulation of such federally exempt CESQGs will be part of the authorized state program and will be federally enforceable within the State of California. Specifically, this change will allow federal enforcement of State requirements applicable to CESQGs who are conditionally exempt under the federal provisions found at 40 CFR 261.5, 266.100(b)(3) and 270.1(c)(2)(iii). This change will not result in any new requirements on CESQGs, but will only mean that the more stringent State requirements for CESQGs will be federally enforceable.
        I. Who handles permits after the authorization takes effect?
        California will issue permits for all the provisions for which it is authorized and will administer the permits it issues. All permits issued by EPA prior to California being authorized for these revisions, if any, will continue in force until the effective date of the State's issuance or denial of a State RCRA permit, or the permit otherwise expires or is revoked. California will administer any RCRA hazardous waste permits or portions of permits which EPA issued prior to the effective date of this authorization until such time as California has issued a corresponding State permit. EPA will not issue any more new permits or new portions of permits for provisions for which California is authorized after the effective date of this authorization. EPA will retain responsibility to issue permits needed for HSWA requirements for which California is not yet authorized.
        J. How would authorizing California for these revisions affect Indian country (18 U.S.C. Section 1151) in California?

        California is not authorized to carry out its hazardous waste program in Indian country within the State. Indian country includes all lands within the exterior boundaries of an Indian reservation, any land held in trust by the United States for an Indian tribe whether or not formally designated as an Indian reservation, and any other land, whether within or outside of an Indian reservation, that qualifies as Indian country under 18 U.S.C. 1151. A list of Indian Tribes in California can be found on the Web at http://www.doi.gov/bureau-indian-affairs.html under Tribal Leaders Directory. Therefore, this proposed action would have no effect on the Indian country within the State's borders. EPA will continue to implement and administer the RCRA program in Indian country within the State.
        K. What is codification and is EPA codifying California's hazardous waste management program as authorized in this rule?
        Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste management program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart F for this authorization of California's program changes until a later date.
        L. Statutory and Executive Order Reviews
        This proposed rule only authorizes hazardous waste requirements pursuant to RCRA 3006 and imposes no requirements other than those imposed by State law. Therefore, this rule complies with applicable executive orders and statutory provisions as follows:
        1. Executive Order 12866: Regulatory Planning Review
        The Office of Management and Budget has exempted this proposed rule from its review under Executive Order (EO) 12866, (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB.
        2. Paperwork Reduction Act
        This proposed rule does not impose an information collection burden under the Paperwork Reduction Act.
        3. Regulatory Flexibility Act
        After considering the economic impacts of this proposed rule on small entities under the Regulatory Flexibility Act, I certify that this proposed rule will not have a significant economic impact on a substantial number of small entities.
        4. Unfunded Mandates Reform Act
        Because this proposed rule approves preexisting requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act.
        5. Executive Order 13132: Federalism

        EO 13132 does not apply to this proposed rule because it will not have federalism implications (i.e., substantial direct effects on the State, 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 described in EO 13132.
        6. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

        EO13175 does not apply to this proposed rule because it will not have tribal implications (i.e., substantial direct effects 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 stated previously, this proposed action would have no effect on the Indian country within the State's borders and EPA will continue to implement and administer the RCRA program in Indian country within the State.
        7. Executive Order 13045: Protection of Children From Environmental Health & Safety Risks
        This proposed rule is not subject to EO 13045 because it is not economically significant and it is not based on health or safety risks.
        8. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use
        This proposed rule is not subject to EO 13211 because it is not a significant regulatory action as defined in EO 12866.
        9. National Technology Transfer Advancement Act
        EPA approves State programs as long as they meet criteria required by RCRA, so it would be inconsistent with applicable law for EPA, in its review of a State program, to require the use of any particular voluntary consensus standard in place of another standard that meets the requirements of RCRA. Thus, Section 12(d) of the National Technology Transfer and Advance Act does not apply to this proposed rule.
        10. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low Income Populations
        Because this rule addresses authorizing pre-existing State rules and imposes no additional requirements beyond those imposed by State law and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898.
        11. Executive Order 12988

        As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.
        12. Executive Order 12630: Evaluation of Risk and Avoidance of Unanticipated Takings
        EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the proposed rule in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the Executive Order.

          List of Subjects in 40 CFR Part 271
          Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous materials transportation, Hazardous waste, Indians—lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.

          Authority:
           This notice is issued under the authority of Sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b).

          Dated: September 13, 2010.
          Jared Blumenfeld,
          Regional Administrator, Region 9.

      [FR Doc. 2010-24001 Filed 9-29-10; 8:45 am]
      BILLING CODE 6560-50-P