The Office of Management and Budget (OMB) has determined that this rule is non-significant for the purpose of Executive Order 12866 and, therefore, it has not been reviewed by OMB.

Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the collections of information in this proposed rule have been approved by OMB under control number 0563-0053 through November 30, 2007.

FCIC is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

It has been determined under section 1(a) of Executive Order No. 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

FCIC certifies that this regulation will not have a significant economical impact on a substantial number of small entities. Program requirements for the Federal crop insurance program are the same for all producers regardless of the size of their farming operation. For instance, all producers are required to submit an application and acreage report to establish their insurance guarantees and compute premium amounts, and all producers are required to submit a notice of loss and production information to determine the amount of an indemnity payment in the event of an insured cause of crop loss. Whether a producer has 10 acres or 1000 acres, there is no difference in the kind of information collected. To ensure crop insurance is available to small entities, the Federal Crop Insurance Act authorizes FCIC to waive collection of administrative fees from limited resource farmers. FCIC believes this waiver helps to ensure that small entities are given the same opportunities as large entities to manage their risks through the use of crop insurance. A Regulatory Flexibility Analysis has not been prepared since this regulation does not have an impact on small entities, and, therefore, this regulation is exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C. 605).

This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450.

This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115, June 24, 1983.

This proposed rule has been reviewed in accordance with Executive Order No. 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule preempt State and local laws to the extent such State and local laws are inconsistent herewith. With respect to any direct action taken by FCIC or to require the insurance provider to take specific action under the terms of the crop insurance policy, the administrative appeal provisions published at 7 CFR part 11 must be exhausted before any action against FCIC for judicial review may be brought.

This action is not expected to have a significant impact on the quality of the human environment, health, and safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed.

FCIC offered a pilot crop insurance program for cultivated wild rice beginning with the 1999 crop year in the states of Minnesota and California. In the 2006 crop year, approximately 20,500 acres were insured under the pilot program. FCIC contracted with an independent firm to conduct an evaluation of the cultivated wild rice pilot program. The evaluation found the pilot crop insurance program to be a valuable tool for wild rice producers. The evaluation could not identify any instances where the pilot program adversely affected the wild rice market. The contractor's report did recommend updating the premium rates by utilizing the pilot program's experience, remove two definitions, and correct the termination date contained in the Crop Provisions. FCIC's Board of Directors concurred with the evaluation results and approved the conversion of the pilot status to that of a permanent crop insurance program.

FCIC intends to convert the cultivated wild rice pilot crop insurance program to a permanent crop insurance program beginning with the 2009 crop year. To effectuate this, FCIC proposes to amend the Common Crop Insurance regulations (7 CFR part 457) by adding a new section § 457.170, Cultivated Wild Rice Crop Insurance Provisions. These provisions will replace and supersede the current unpublished provisions that insure cultivated wild rice under pilot program status.

Cultivated wild rice crop insurance is an actual production history (APH) plan of insurance that protects against a loss in yield. If the number of pounds produced by the crop is less than the production guarantee, the producer will receive an indemnity if the producer is in compliance with all other policy provisions. The production guarantee is determined the same as other APH crops. The producer certifies the number of pounds of wild rice produced per acre for at least the previous four crop years building to a base period of ten crop years and these amounts are averaged to determine the approved yield. The approved yield times the coverage level determines the production guarantee. The covered causes of loss are the same as for other APH crops and include such causes as adverse weather, fire, wildlife, plant disease, etc. The production to count is also determined the same as other crops with all appraised and harvested pounds counting against the guarantee when determining whether there was an indemnifiable loss.

In this proposed rule, FCIC has revised certain provisions of the pilot program to be consistent with other Crop Provisions and to improve the policy. In section 1, FCIC has removed the definitions of “latest final planting date” and “processing.” A definition of “latest final planting date” is not needed because separate fall and spring final planting dates are not provided for wild rice. Since the term “processing” is not used in the Crop Provisions it has been removed and replaced with the definition of “processor,” a term which is referenced in other definitions. FCIC also revised the definition of “finished weight” to add a provision that would provide the finish weight for appraised production. Currently, the policy only has provisions for delivered production and stored for seed, both which presume the crop has been harvested. However, the finish weight must also be determined in situations where the crop has not been harvested.

The termination date contained in section 5 has been revised to November 30th for Minnesota and some California counties. The current termination date does not allow producers sufficient time to pay their premiums. In addition, the cancellation and termination dates for some California counties have been revised to accommodate the different growing seasons and will allow expansion of the cultivated wild rice crop insurance program.

FCIC has revised section 10 to specify representative samples are required in accordance with section 14 of the Basic Provisions. This is consistent with other Crop Provisions and allows FCIC to only have to revise the Basic Provisions if changes are required, instead of many Crop Provisions.

Additionally, section 11(a) has been reformatted to be consistent with the changes made in other Crop Provisions and the Basic Provisions.

Accordingly, as set forth in the preamble, the Federal Crop Insurance Corporation proposes to amend 7 CFR part 457, Common Crop Insurance Regulations, for the 2008 and succeeding crop years as follows:

The Office of Management and Budget (OMB) has determined that this rule is non-significant for the purpose of Executive Order 12866 and, therefore, it has not been reviewed by OMB.

Pursuant to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the collections of information in this rule have been previously approved by OMB under control number 0563-0053 through November 30, 2007.

FCIC is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

It has been determined under section 1(a) of Executive Order 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

FCIC certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Program requirements for the Federal crop insurance program are the same for all producers regardless of the size of their farming operation. For instance, all producers are required to submit an application and acreage report to establish their insurance guarantees, and compute premium amounts, and all producers are required to submit a notice of loss and production information to determine an indemnity payment in the event of an insured cause of crop loss. Whether a producer has 10 acres or 1000 acres, there is no difference in the kind of information collected. To ensure crop insurance is available to small entities, the Federal Crop Insurance Act authorizes FCIC to waive collection of administrative fees from limited resource farmers. FCIC believes this waiver helps to ensure small entities are given the same opportunities to manage their risks through the use of crop insurance. A Regulatory Flexibility Analysis has not been prepared since this regulation does not have an impact on small entities and therefore, this regulation is exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C. 605).

This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450.

This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115, June 24, 1983.

This proposed rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith. With respect to any direct action taken by FCIC or to require the insurance provider to take specific action under the terms of the crop insurance policy, the administrative appeal provisions published at 7 CFR part 11 or 7 CFR part 400, subpart J for the informal administrative review process of good farming practices as applicable, must be exhausted before any action against FCIC may be brought.

This action is not expected to have a significant economic impact on the quality of the human environment, health, and safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed.

The Pilot Coverage Enhancement Option (CEO) was implemented beginning with the 2000 crop year for all counties for apples and grapes in Pennsylvania and Washington; canola in North Dakota; citrus Trees in Texas; cranberries in Massachusetts; potatoes in Idaho, Maine and Pennsylvania; rice in Arkansas, Louisiana, and Mississippi; stonefruit in California; and walnuts in California. For the 2001 crop year, CEO was expanded to citrus fruit in Florida and Texas. Citrus and stonefruit policies define additional “crops” by fruit type, for example, stonefruit includes fresh apricots, fresh peaches etc., so for insurance purposes, CEO was approved for 25 crops.

CEO was developed because producers expressed concern that the crop insurance program does not, in some cases, provide an adequate amount of coverage. The 75 percent coverage level, for many crops, is the highest coverage level offered, and some producers believed the cost for that coverage level was too expensive. They expressed a desire for higher amounts of coverage, without proportional premium rate increases affiliated with higher coverage levels. The CEO premium rate is set at the same rate as that of the underlying multiple peril crop insurance (MPCI) policy. CEO coverage levels available are from 55 percent through 85 percent, in 5 percent increments.

To be eligible for the program, producers must have an additional coverage level MPCI policy in force, with a price election of 100 percent for the insured crop and select the CEO by the sales closing date. They must choose a CEO coverage level of at least 5 percent higher than the MPCI base coverage level up to the maximum available CEO coverage level of 85 percent.

An indemnity does not trigger under CEO until the deductible of the underlying MPCI policy is met. For example, if the MPCI coverage level is 50 percent and the CEO option coverage level is 85 percent, the insured would have to sustain damage on the crop in excess of 50 percent before an indemnity would be paid under CEO.

RMA contracted for a review of CEO three years after it was implemented, and the contractor's final evaluation report was submitted on December 10, 2003. There were 25 crops approved for CEO, more than two-thirds of which were citrus tree and fruit crops insured in California, Florida, and Texas. Seven crops, most with minimal participation, had no losses since CEO was a pilot program, sixteen crops had minimal CEO participation and losses, and two crops had no CEO participation.

Nationwide, the percentage of acreage insured under CEO between 2000 and 2003 was low, except for Texas citrus trees, which had a high participation rate but no losses. The contractor determined apples, canola, grapes, potatoes, and rice had sufficient CEO participation and loss experience for a meaningful analysis. A comparison of the CEO losses relative to the non-CEO losses for these crops analyzed indicated a possible increase of poor or high-risk producers using CEO to obtain a higher amount of coverage, especially for apples and rice. The final report indicated further review was needed in order to draw a conclusion as to whether or not CEO is a greater insurance risk.

The contractor's recommendation was to terminate CEO for all crops except Texas citrus trees, due in part to the high level of CEO participation in the Texas citrus tree crop insurance program. The contractor found that CEO for Texas Citrus Trees provides additional coverage at a reasonable cost for a crop where the opportunity for adverse selection is limited by the design of the underlying policy. The contractor's recommendation was supported by the Federal Crop Insurance Corporation Board of Directors on July 29, 2004. At that time, continuance of the CEO was approved for Texas citrus trees through the 2008 crop year. In order for CEO to be available for to Texas citrus tree producers for the 2009 crop year, it needs to be made permanent before the August 31, 2008, contract change date for Texas citrus trees. While the latest date RMA must convert CEO to a permanent program is August 31, 2008, RMA has targeted August 31, 2007, for conversion to a permanent program.

For the 2006 crop year, there were a total of 809 policies under the Texas Citrus Tree Crop Insurance Provisions, 714 buy-up and 95 Catastrophic Risk Protection (CAT) policies. There were 333 producers with CEO options, accounting for $45.2 million in liability and $2.4 million in premium. Forty-one percent of all Texas citrus tree insureds opted for CEO, accounting for 68 percent of the insured acreage for Texas citrus trees, 74 percent of the liability, and 75 percent of the premium.

FCIC is proposing to make changes to the pilot CEO policy. In section 1, FCIC is proposing to revise the definitions of “MPCI dollar amount of insurance,” “MPCI indemnity factor,” “option dollar amount of insurance,” and “option coverage level.” Previously, the definition of “MPCI dollar amount of insurance” did not explain how the value was determined for policies that are based on the actual production history so this will be clarified in the proposed definition. Further, the definition of “MPCI indemnity factor” did not explain that such factor is necessary to prorate losses in those cases where the producer does not suffer a total loss to the crop. The definition of “option dollar amount of insurance” did not accurately reflect how such amounts are calculated. FCIC is proposing to revise the provision to specify that such amount is determined by multiplying the option coverage level by the total value of the crop and subtracting the MPCI dollar amount of insurance (for example, if the coverage option selected is 80 percent and the MPCI dollar amount of insurance is $10,000 at the 50 percent coverage level, the option dollar coverage level would be $6,000 ($10,000 × 2 = $20,000 total value of the crop × .80 option coverage level = $16,000 combined MPCI and option dollar amounts of insurance—$10,000 MPCI dollar amount of insurance). In addition, the definition of “option coverage level” failed to discuss the relationship between the MPCI coverage level and the option coverage level. FCIC is proposing to revise the definition to specify that the effect of the option coverage level is to increase the coverage level under the MPCI policy from the MPCI coverage level to the option coverage level once a loss has been triggered under the MPCI policy.

FCIC is also proposing to add a definition of “total value of the insured crop,” which states that the total value is the MPCI dollar amount of insurance divided by the MPCI coverage level. This will determine what is the actual potential value of an undamaged crop and measure the total amount the producer will lose if there is a total loss.

FCIC is proposing to add a new section 2 to clarify that the option is only available for those insured crops that contain option coverage levels on the actuarial documents. This change is needed because the option will not be available in all areas where it was available as a pilot program. Therefore, producers must check the actuarial documents to see if the option is available in their area. The subsequent sections are redesignated as sections 3 through 7.

FCIC is proposing to revise redesignated section 4 to clarify that the option is now continuous and will remain in effect for as long as the producer continues to have a MPCI policy in effect for the insured crop, an option coverage level percent is contained in the actuarial documents, or it is cancelled by the producer or terminated by the approved insurance provider on or before the cancellation or termination date, as applicable.

FCIC is proposing to revise redesignated section 6 to clarify the coverage provided under the option. It effectively offers coverage that causes a portion of the deductible to disappear under the MPCI portion of the policy once the deductible has been met. However, the deductible disappears proportional to the amount of the loss, less the deductible required for the option coverage level (cannot exceed 85 percent, which creates a secondary deductible to 15 percent). This means that if the loss were 100 percent, the producer would receive an indemnity under the MPCI policy and option equal to the option coverage level times the total value of the crop (In the above stated example, this would equate to $16,000, a complete loss) but if the losses were less than 100 percent, less of the deductible is covered.

FCIC is proposing to add a new section 6(c) that clarifies that an indemnity is not payable under this option until after the underlying MPCI deductible (1—MPCI coverage level) is met, triggering an MPCI indemnity. The previous redesignated sections 6(c) and (d) are now designated as sections 6(d) and (e).

FCIC is proposing to revise the indemnity formula in section 7 to remove the references to determining the option dollar amount of insurance and the option coverage factor because FCIC is proposing to revise the definition of option dollar amount of insurance to include a means to calculate the amount.

FCIC also made technical changes for clarity but such changes do not change the coverage provided under the option.

FCIC proposes to amend the Common Crop Insurance Regulations (7 CFR part 457) by adding 7 CFR 457.172 (Coverage Enhancement Option) to make the CEO a permanent option, thus remaining available for Texas Citrus Tree policyholders and to allow for use in other appropriate crop programs as determined by FCIC. The proposed changes are as follows:

Accordingly, as set forth in the preamble, the Federal Crop Insurance Corporation proposes to amend 7 CFR part 457, Common Crop Insurance Regulations effective for the 2008 and succeeding crop years, to read as follows:

Comments Invited

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2007-28355; Directorate Identifier 2007-NM-062-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov.

You may examine the AD docket on the Internet at http://dms.dot.gov , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them.

We have received a report of random flashes of the six fuel pump low pressure lights and intermittent operation of the fuel boost pumps. This was caused by an electrical ground block with poor continuity to ground. This condition, if not corrected, could cause the engines to operate on suction feed and potentially flame out.

We have reviewed Boeing Special Attention Service Bulletin 737-28-1257, dated February 26, 2007. The service bulletin describes procedures for the following actions:

• Inspecting ground blocks GD261 and GD264 for corrosion;

• Measuring the electrical bond resistance between the ground blocks and the airplane structure;

• Separating the fuel boost pump grounds by removing three fuel boost pump ground wires from ground block GD261 and installing them in ground block GD264.

• Repairing corrosion damage; and

• Replacing the ground block with a new one if any corrosion is found or if the electrical bond resistance exceeds 0.001 ohm.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously.

There are about 1,871 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Streamlined Issuance of AD

The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and Federal Register requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products.

This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles.

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-28353; Directorate Identifier 2007-NM-065-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://dms.dot.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The Civil Aviation Authority of Israel (CAAI), which is the aviation authority for Israel, has issued Israeli Airworthiness Directive 21-07-01-01, dated February 20, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Gulfstream has issued Service Bulletin 200-21-308, dated February 23, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 7 products of U.S. registry. We also estimate that it would take about 10 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $5,600, or $800 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to submit any relevant written data, views, or arguments regarding this supplemental NPRM. Send your comments to an address listed in the ADDRESSES section. Include the docket number “Docket No. FAA-2006-26043; Directorate Identifier 2005-NM-010-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this supplemental NPRM. We will consider all comments received by the closing date and may amend this supplemental NPRM in light of those comments.

We will post all comments submitted, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this supplemental NPRM. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov.

You may examine the AD docket on the Internet at http://dms.dot.gov, or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level in the Nassif Building at the DOT street address stated in ADDRESSES . Comments will be available in the AD docket shortly after the Docket Management System receives them.

We proposed to amend 14 CFR part 39 with a notice of proposed rulemaking (NPRM) for an AD (the “original NPRM”) for all McDonnell Douglas Model 717-200 airplanes. The original NPRM was published in the Federal Register on October 12, 2006 (71 FR 60080). The original NPRM proposed to require inspecting the power conversion distribution unit (PCDU) to determine its part number, and modifying certain PCDUs.

We have considered the following comments on the original NPRM.

Boeing and AirTran Airways note that the original NPRM incorrectly identifies P/N 762904E as the part number needing the corrective actions, but P/N 762904E (and any part number above 762904E) is the final configuration after all corrective actions are taken.

Since we issued the original NPRM, we became aware of this error. We revised paragraphs (f)(1) and (f)(2) in this supplemental NPRM to correctly identify the affected part numbers.

The Modification and Replacement Parts Association (MARPA) requests that, during the NPRM stage of AD rulemaking, the FAA state its intent to incorporate by reference (IBR) any relevant service information. MARPA states that, without such a statement in the NPRM, it is unclear whether the relevant service information will be incorporated by reference in the final rule.

We do not concur with the commenter's request. When we refer to certain service information in a proposed AD, the public can assume we intend to IBR that service information, as required by the Office of the Federal Register. No change to this supplemental NPRM is necessary in regard to the commenter's request.

This same commenter requests that we IBR the service information during the NPRM phase of rulemaking to permit the public to review and comment on the entire proposed action. The commenter notes that IBR is intended to avoid the unnecessary publication of documents already available to affected individuals. But the commenter expresses concern that distribution may not reach certain individuals directly responsible for the AD's accomplishment, including specialty shops, which now perform the majority of aircraft maintenance, and owners that are financing or leasing institutions.

We disagree that documents should be incorporated by reference during the NPRM phase of rulemaking. The Office of the Federal Register (OFR) requires that documents that are necessary to accomplish the requirements of the AD be incorporated by reference during the final rule phase of rulemaking. The final rule will incorporate by reference the document necessary for the accomplishment of the actions required in the AD. Further, we point out that, while documents that are incorporated by reference do become public information, they do not lose their copyright protection. For that reason, we advise the public to contact the manufacturer to obtain copies of the referenced service information. No change to the supplemental NPRM is necessary in response to this comment.

This same commenter further requests that we post the service bulletins on the Department of Transportation's Docket Management System (DMS) to make the service bulletins available to the public before we issue the final rule.

We are currently in the process of reviewing issues surrounding the posting of service bulletins on the DMS as part of an AD docket. Once we have thoroughly examined all aspects of this issue and have made a final determination, we will consider whether our current practice needs to be revised. No change to this supplemental NPRM is necessary in response to this comment.

MARPA notes that the original NPRM would encompass both the original equipment manufacturer (OEM) and parts manufacturer approval (PMA) editions of the parts. And, “[p]ursuant to FAR 45.15 parts approved under 21.303 will have the term ‘FAA-PMA' included as part of the part numbering scheme.” But to resolve doubt and confusion when such parts are encountered in the field, MARPA requests that we explain that some parts may be marked “FAA-PMA,” and that the action would apply irrespective of the differences in part marking.

The FAA recognizes the need for standardization of this issue and is currently in the process of reviewing issues that address the use of PMAs in ADs at the national level. However, the Transport Airplane Directorate considers that to delay this particular AD action would be inappropriate, since we have determined that an unsafe condition exists and that replacement of certain parts must be accomplished to ensure continued safety. Therefore, no change has been made to this supplemental NPRM regarding this issue.

We have clarified certain language in the Summary and paragraph (d) of this supplemental NPRM to more accurately describe the unsafe condition that prompted this action.

We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies.

Certain changes discussed above expand the scope of the original NPRM; therefore, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment on this supplemental NPRM.

There are about 137 airplanes of the affected design in the worldwide fleet and 108 U.S.-registered airplanes. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. The total fleet cost could be as high as $417,312.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this supplemental NPRM and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Streamlined Issuance of AD

The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and Federal Register requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products.

This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles.

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-28358; Directorate Identifier 2007-NM-019-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2006-0328, dated October 23, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The unsafe condition could result in separation of the wheel and consequent reduced controllability of the airplane. The MCAI mandates inspecting the main landing gear (MLG) wheel assembly for discrepancies (corrosion, damage, cracks, and loose or missing heat shield spacers) and, if necessary, repair of the MLG wheel assembly. You may obtain further information by examining the MCAI in the AD docket.

Messier-Bugatti has issued Special Inspection Service Bulletin C20452-32-3254, Revision 2, dated September 5, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 34 products of U.S. registry. We also estimate that it would take about 6 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $16,320, or $480 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Comments are also invited on the nonregulatory MOA part of this proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2006-26192 and Airspace Docket No. 06-ASO-11) and be submitted in triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://dms.dot.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2006-26192 and Airspace Docket No. 06-ASO-11.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://dms.dot.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov or the Federal Register 's Web page at http://www.gpoaccess.gov/fr/index.html.

You may review the public docket containing the proposal, any comments received, and any final disposition in person at the Dockets Office (see ADDRESSES section for address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the System Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Ave., College Park, GA 30337.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The Adirondack Airspace Complex consists of one restricted area and nine MOAs in the vicinity of Fort Drum, NY. Restricted areas are regulatory airspace designations, under Title 14 Code of Federal Regulations (CFR) part 73, which are established to confine or segregate activities considered hazardous to non-participating aircraft. A MOA is a non-rulemaking type of SUA established to separate or segregate certain non-hazardous military flight activities from aircraft operating in accordance with instrument flight rules (IFR), and to identify for visual flight rules (VFR) pilots where those activities are conducted. IFR aircraft may be routed through an active MOA only when air traffic control can provide approved separation from the MOA activity. VFR pilots are not restricted from flying in an active MOA, but are advised to exercise caution while doing so.

Unlike restricted areas, which are designated through rulemaking procedures, MOAs are non-rulemaking airspace areas that are established administratively and published in the National Flight Data Digest. Normally, MOA proposals are not published in a NPRM, but instead, are advertised for public comment through a nonrule circular that is distributed by an FAA Service Center office to aviation interests in the affected area. However, when a non-rulemaking action is connected to a rulemaking action, FAA procedures allow for the non-rulemaking proposal to be included in the NPRM. In such cases, the NPRM replaces the nonrule circularization requirement. Because the proposed MOAs are an integral part of the Adirondack Airspace Complex, they are being included in this NPRM.

The existing SUA is inadequate to accommodate the advanced air-to-air, air-to-ground, and threat avoidance training profiles that are essential for aircrews to achieve and maintain combat readiness. The proposed MOA realignments and restricted area modifications would provide greater tactical training options to match current real-world taskings and threats. In addition, the proposed changes would reduce longstanding environmental/noise burdens associated with the current SUA configuration by more evenly distributing activities within the Complex. The proposed SUA changes are described in the following sections.

The New York ANG has proposed to redesign and expand the MOA airspace in the vicinity of Fort Drum, NY (see attached graphic). The purpose of this MOA redesign is to improve flight safety, enable more efficient real-time, joint-use management of the airspace, decrease or balance environmental impacts of the current MOA configuration, and permit more realistic training in the Adirondack Airspace Complex.

Most of the redesigned MOAs would be contained within airspace that is already designated as MOAs. However, the new MOA configuration would include additional airspace, both laterally and vertically, beyond the current MOA boundaries. The ANG proposed to cancel the nine existing MOAs at Fort Drum (Drum 1 MOA, Drum 2 MOA, Falcon 1 MOA, Falcon 3 MOA, Syracuse 1 MOA, Syracuse 2A MOA, Syracuse 2B MOA, Syracuse 3 MOA, and Syracuse 4 MOA), and replace them with 12 new MOAs as follows:

The times of use for all of the proposed MOAs would vary on a seasonal basis. Except for the Cranberry MOA, the proposed MOA times of use are: From May 1-August 31: 0800-1700 Monday-Friday; other times by NOTAM. From September 1-April 30: 0800-2200 Monday-Friday; other times by NOTAM. For the Cranberry MOA, the times of use would be November 1-April 30: 0800-2200 Monday-Friday; other times by NOTAM. The Cranberry MOA would be closed and unavailable for use during the period May 1-October 31.

The controlling agency for all proposed MOAs would be the FAA, Boston Air Route Traffic Control Center (ARTCC). The using agency for the Adirondack A, B, C, and D; Carthage East and West; Cranberry; and Drum MOAs would be the New York ANG, 174th Fighter Wing, Detachment 1 (NY ANG, 174FW/Det 1), Fort Drum, NY. The using agency for the Lowville and Tupper North, South, and East MOAs would be the U.S. Air Force, Northeast Air Defense Sector (NEADS), Rome, NY.

The proposed MOAs were designed to allow for more access to the SUA by civil aviation. During periods when the airspace is not needed for its designated purpose, the airspace would be returned to the controlling agency (Boston ARTCC). The reconfigured MOAs were designed using a building block system which segments the SUA into smaller areas that can be combined and activated for use as needed on a real-time basis. This system provides better airspace management and increased training efficiency by only using the portions of SUA that are needed for specific training events, while the remainder of the complex would be available for civil use.

When not activated, the Carthage MOAs can be used as a transit corridor for nonparticipating aircraft through the center of a normally active MOA complex. For this reason, special emphasis will be placed on activating only the required altitude blocks in order to maintain the area as a viable MOA transit corridor. The Cranberry MOA will be used as a seasonal alternate during November through April, when low altitudes in the Lowville MOA are unusable much of the time due to weather. The Cranberry MOA would be closed during the period May 1 through October 31.

A number of mitigations were incorporated in developing the Tupper MOAs. To alleviate concerns about the potential impact on commercial traffic flows along the southeastern edge of the MOA airspace, the Tupper South MOA was designed as a separate subarea from Tupper North.

This will aid ATC in accommodating traffic overflow to the north of V-496/J-547 and west of V-203/J-570 in the Syracuse, Glens Falls, and Plattsburgh areas. Additionally, creating the Tupper South MOA as a separate area gives ATC the flexibility to cap, raise the floor, or withhold the airspace without shutting down the entire Tupper airspace. This arrangement would allow ATC to implement real-time floor adjustments to accommodate commuter and general aviation traffic underneath the Tupper MOAs ( i.e. , on V-196) during times when weather or traffic congestion dictate. Also, because the Tupper North and Tupper South MOAs are located entirely over the Adirondack Park, the altitude floors of the Tupper North and Tupper South MOAs would be adjusted on a seasonal basis. From November through April, the Tupper North and South MOA floors would be at 6,000 feet MSL. However, from May through October, when outdoor recreation and general aviation activities in that area are at a peak, the Tupper North and South MOA floors would be raised to 8,000 feet MSL.

In order to minimize the aeronautical and environmental impacts to the Adirondack Regional Airport and the Saranac Lake region, the northeastern part of the Tupper North MOA was subdivided to create the Tupper East MOA with a floor of 10,000 feet MSL.

If approved, the above MOA changes would be published in the National Flight Data Digest for addition to the National Airspace System Database and aeronautical charts.

The FAA is considering an amendment to 14 CFR part 73 to modify the designated altitudes of existing restricted area R-5201, Fort Drum, NY, and to establish two new restricted areas, R-5202A and R-5202B, at Fort Drum, NY (see attached graphic). These changes are part of the New York ANG's Adirondack Airspace Complex proposal. Specifically, the FAA is proposing a minor change to the designated altitudes for R-5201 by changing the current wording from “Surface to 23,000 feet MSL,” to read “Surface to but not including 23,000 feet MSL.” This change to R-5201's upper altitude limit would accommodate the establishment of a new restricted area, R-5202A, to be designated immediately above R-5201. R-5201 currently hosts a variety of air-to-ground, air-to-air, and surface-based weapons activities. Those activities will continue with the modified configuration. The new R-5202A would be established directly above using the same lateral boundaries as R-5201. R-5202A would extend from Flight Level (FL) 230 to FL 290. A second new restricted area, R-5202B, would be established adjacent to, and extending approximately 4 nautical miles to the northeast of, the existing R-5201. The designated altitudes for R-5202B would be 6,000 feet MSL to FL 290. The ANG requested these restricted area changes to permit more realistic air-to-ground and weapons delivery tactical training at the Adirondack Range. With these changes, training can be conducted that replicates the conditions and tactics that units are tasked to perform on real-world wartime deployments. Today's technology allows pilots to operate at higher altitudes, and engage targets from far greater ranges, further reducing their exposure to ground threats. The existing restricted area is not large enough to allow this essential high altitude, long-range weapons delivery training to be accomplished at the Adirondack Range.

In combination with this rulemaking restricted area proposal, the FAA is also considering the ANG's nonrulemaking proposal to redesign and expand the Military Operations Areas in the vicinity of Fort Drum, NY, as described above in the “Proposed MOA Changes” section.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subjected to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 73 as follows:

On May 25, 2007, the Texas Gas Pipeline Association (TPA) filed a motion for an extension of time to file initial and reply comments in response to the Notice of Proposed Rulemaking (NOPR) issued April 19, 2007, in the above-referenced proceeding. 72 FR 20791 (Apr. 26, 2007), FERC. Stats. and Regs. ¶ 32,614 (2007). The motion states that TPA and its members require additional time in order to fully consider the implications of the NOPR, to prepare meaningful comments and to develop material for the record to respond to the numerous requests for specific information in the NOPR.

Upon consideration, notice is hereby given that an extension of time for filing initial comments on the NOPR is granted to and including July 11, 2007. Reply comments should be filed on or before August 9, 2007.

Public Law 109-177, the USA PATRIOT Improvement and Reauthorization Act of 2005, (“the Act”) was signed into law on March 9, 2006. Section 507 of that Act amends chapter 154 of Title 28 of the United States Code. Chapter 154 offers procedural benefits in Federal habeas corpus review to States that go beyond the constitutional requirement of appointing counsel for indigents at trial and on appeal by providing counsel also to capital defendants in State postconviction proceedings. The chapter 154 procedures include special provisions relating to stays of execution (28 U.S.C. 2262), the time for filing Federal habeas corpus applications (28 U.S.C. 2263), the scope of Federal habeas corpus review (28 U.S.C. 2264), and time limits for Federal district courts and courts of appeals to determine habeas corpus applications and related appeals (28 U.S.C. 2266). See 152 Cong. Rec. S1620, S1624-28 (daily ed., Mar. 2, 2006) (remarks of Sen. Kyl) (explanation of procedural benefits to States under chapter 154); 141 Cong. Rec. S4590, S4590-92 (daily ed., Mar. 24, 1995) (remarks of Sen. Specter) (explaining the historical problem of capital habeas delay motivating the enactment of habeas reforms).

Although chapter 154 has been in place since the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-132), the determination that a State was eligible for the procedural benefits of chapter 154 had been left to the Federal court of appeals for the circuit in which the State is located. The Act amended sections 2261(b) and 2265 of title 28 to assign responsibility for chapter 154 certification to the Attorney General of the United States, subject to review by the Court of Appeals for the District of Columbia Circuit. Section 2265(a) as amended makes clear that the only requirements that the Attorney General may impose for a State to receive certification are those expressly stated in chapter 154. See 28 U.S.C. 2265(a)(3) ( “[t]here are no requirements for certification or for application of this chapter other than those expressly stated in this chapter”). It also provides that the date on which a State established the mechanism that qualifies it for certification is the effective date of the certification. See 28 U.S.C. 2265(a)(2).

In addition to the changes affecting certification, the Act amends section 2261(d) to permit the same counsel that has represented a prisoner on direct appeal to represent the prisoner in postconviction proceedings without limitation, and it amends section 2266(b)(1)(A) to extend the time for a district court to rule on a chapter 154 petition from 180 days to 450 days.

Section 2265(b) directs the Attorney General to promulgate regulations to implement the certification procedure. The Department consulted with a number of groups in developing this proposed rule to carry out the statutory directive, including representatives of State officials and both prosecution and defense interests concerned with capital case litigation. The consultations covered a broad range of issues affecting the implementation of the certification procedure, including the State officials who should be responsible for requesting certification, the requirements for certification, and the procedure for requesting certification. The proposed rule would add a new subpart entitled “Certification Process for State Capital Counsel Systems” to 28 CFR part 26.

Section 26.20 explains the rule's purpose to implement the certification procedure for chapter 154.

Section 26.21 provides definitions for certain terms used in chapter 154 and the regulations. Under 28 U.S.C. 2265(a), a certification request must be made by “an appropriate State official.” Pursuant to paragraph (a) of this section of the proposed rule, in most cases, that official will be the State Attorney General. In those few States, however, where the State Attorney General does not have responsibilities relating to Federal habeas corpus litigation, the Chief Executive of the State will be considered the appropriate State official to make a submission on behalf of the State.

Paragraph (b) defines “State postconviction proceedings” as referring to State collateral proceedings, which normally occur following the completion of direct review. However, in relation to States with unitary review systems for capital cases involving concurrent direct and collateral review, the term also encompasses the collateral review aspect of the unitary review process. Formerly separate provisions for the application of chapter 154 in States with unitary review systems under the original version of 28 U.S.C. 2265 were eliminated by the recent amendments in favor of the current provisions, which are worded broadly enough to permit chapter 154 certification both for States with bifurcated direct and collateral review systems and for States with unitary review systems. Compare current 28 U.S.C. 2261(b) and 2265 with former 28 U.S.C. 2261(b) and 2265.

The definition of “State postconviction proceedings” in the proposed rule reflects the underlying objective of chapter 154 to provide expedited Federal habeas corpus review in capital cases arising in States that have gone beyond the constitutional requirement of appointing counsel for indigents at trial and on appeal by extending the appointment of counsel to indigent capital defendants in State collateral proceedings. The provisions of chapter 154, as well as the relevant legislative history, reflect the understanding of “postconviction proceedings” as not encompassing all proceedings that occur after conviction ( e.g. , sentencing proceedings, direct review), but rather as referring to collateral proceedings. See 28 U.S.C. 2261(e) (stipulating that ineffectiveness or incompetence of counsel during postconviction proceedings in a capital case cannot be a ground for relief in a Federal habeas corpus proceeding); 28 U.S.C. 2263(a), (b)(2) (180-day time limit for Federal habeas filing under chapter 154 starts to run “after final State court affirmance of the conviction and sentence on direct review or the expiration of the time for seeking such review” subject to tolling “from the date on which the first petition for post-conviction review or other collateral relief is filed until the final State court disposition of such petition”); 152 Cong. Rec. S1620, S1624-25 (Mar. 2, 2006) (remarks of Sen. Kyl) (explaining that chapter 154 provides incentives for States to provide counsel in State postconviction proceedings, equated to collateral proceedings); 151 Cong. Rec. E2639-40 (daily ed., Dec. 14, 2005) (extension of remarks of Rep. Flake) (same understanding); see also, e.g., Murray v. Giarratano, 492 U.S. 1 (1989) (equating postconviction and collateral proceedings).

Section 26.22 sets out the requirements for certification that a State must meet to qualify for the application of chapter 154. These are the requirements expressly set forth in 28 U.S.C. 2261(c)-(d) and 2265(a)(1). With respect to each of the requirements, examples are provided in the text of mechanisms that would be deemed sufficient or, in some cases, insufficient to comply with the chapter. The examples given of qualifying mechanisms are illustrative and therefore do not preclude States with other mechanisms for providing counsel in postconviction proceedings from meeting the requirements for certification.

Section 26.23 sets out the mechanics of the certification process for States seeking to opt in to chapter 154.

This action has been drafted and reviewed in accordance with Executive Order 12866, Regulatory Planning and Review, section 1(b), Principles of Regulation. The Department of Justice has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and, accordingly, this rule has been reviewed by the Office of Management and Budget.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. It provides only a framework for those States that wish to qualify for the benefits of the expedited habeas procedures of chapter 154 of title 28 of the U.S. Code. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

The Attorney General in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. This rule provides only a framework for those States that wish to qualify for the benefits of the expedited habeas procedures of chapter 154 of title 28 of the United States Code.

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Accordingly, for the reasons set forth in the preamble, part 26 of chapter I of title 28 of the Code of Federal Regulations is proposed to be amended as follows:

The Agency identified in the proposed rule those who may be potentially affected by that action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

To submit comments, or access the public docket, follow the detailed instructions provided in Unit I.B. of the SUPPLEMENTARY INFORMATION of the April 6, 2007 proposed rule.

This document reopens the comment period established in a proposed rule published in the Federal Register of April 6, 2007 (72 FR 17068) (FRL-8119-8). In that document, pursuant to FFDCA section 201(q)(3), EPA proposed to amend the current exception at 40 CFR §180.4 such that inert ingredients of food packaging (paper and paperboard, coatings, adhesives and polymers) are excepted from the definition of “pesticide chemical” or “pesticide chemical residue”, when the food packaging has been treated with a pesticide. EPA is reopening the comment period for 30 days. The new comment period ends on July 6, 2007.

Section 201(q)(3) of FFDCA, as amended by the Food Quality Protection Act (FQPA), allows the Administrator, under specified conditions, to except by regulation certain substances from the definition of “pesticide chemical” or “pesticide chemical residue” if-

(A) Its occurrence as a residue on or in a raw agricultural commodity or processed food is attributable primarily to natural causes or human activities not involving the use of any substance for a pesticidal purpose in the production, storage, processing, or transportation of any raw agricultural commodity or processed food; and

(B) The Administrator, after consultation with the Secretary, determines that the substance more appropriately should be regulated under one or more provisions of this Act other than sections 402(a)(2)(B) and 408.

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in Unit II.A. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. Submitting CBI . Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments . When submitting comments, remember to:

i. Identify the document by docket ID number and other identifying information (subject heading, Federal Register date and page number).

ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

This proposed rule provides a comment period of 60 days for any person to state an interest in retaining a tolerance proposed for revocation. If EPA receives a comment within the 60-day period to that effect, EPA will not proceed to revoke the tolerance immediately. However, EPA will take steps to ensure the submission of any needed supporting data and will issue an order in the Federal Register under FFDCA section 408(f) if needed. The order would specify data needed and the time frames for its submission, and would require that within 90 days some person or persons notify EPA that they will submit the data. If the data are not submitted as required in the order, EPA will take appropriate action under FFDCA.

EPA issues a final rule after considering comments that are submitted in response to this proposed rule. In addition to submitting comments in response to this proposal, you may also submit an objection at the time of the final rule. If you fail to file an objection to the final rule within the time period specified, you will have waived the right to raise any issues resolved in the final rule. After the specified time, issues resolved in the final rule cannot be raised again in any subsequent proceedings.

EPA is proposing to revoke, remove, modify, and establish specific tolerances for residues of the fungicides captan, dodine, and fenarimol; the herbicides 2,4-D, DCPA, endothall, propyzamide, ethofumesate, dimethipin and fomesafen; and the insecticide permethrin in or on the commodities listed in the regulatory text.

EPA is proposing these tolerance actions to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standard of the Food Quality Protection Act (FQPA). The safety finding determination of “reasonable certainty of no harm” is discussed in detail in each Reregistration Eligibility Decision (RED) and Report of the Food Quality Protection Act (FQPA) Tolerance Reassessment Progress and Risk Management Decision (TRED) for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed copies of many REDs and TREDs may be obtained from EPA's National Service Center for Environmental Publications (EPA/NSCEP), P.O. Box 42419, Cincinnati, OH 45242-2419; telephone 1 (800) 490-9198; fax 1 (513) 489-8695; internet at http://www.epa.gov/ncepihom/ and from the National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161; telephone 1 (800) 553-6847 or (703) 605-6000; internet at http://www.ntis.gov/ . Electronic copies of REDs and TREDs are available on the internet at http://www.epa.gov/pesticides/reregistration/status.htm .

The selection of an individual tolerance level is based on crop field residue studies designed to produce the maximum residues under the existing or proposed product label. Generally, the level selected for a tolerance is a value slightly above the maximum residue found in such studies. The evaluation of whether a tolerance is safe is a separate inquiry. EPA recommends the raising of a tolerance when data show that: (1) Lawful use (sometimes through a label change) may result in a higher residue level on the commodity; and, (2) the tolerance remains safe, not withstanding increased residue level allowed under the tolerance. In REDs, Chapter IV on “Risk Management, Reregistration, and Tolerance Reassessment” typically describes the regulatory position, FQPA assessment, cumulative safety determination, determination of safety for the U.S. general population, and safety for infants and children. In particular, the human health risk assessment document which supports the RED describes risk exposure estimates and whether the Agency has concerns. In TREDs, the Agency discusses its evaluation of the dietary risk associated with the active ingredient and whether it can determine that there is a reasonable certainty (with appropriate mitigation) that no harm to any population subgroup will result from aggregate exposure. EPA also seeks to harmonize tolerances with international standards set by the Codex Alimentarius Commission, as described in Unit III.

Explanations for proposed modifications in tolerances can be found in the RED and TRED document and in more detail in the Residue Chemistry Chapter document which supports the RED and TRED. Copies of the Residue Chemistry Chapter documents are found in the Administrative Record and electronic copies are available through EPA's electronic public docket and comment system, regulations.gov at http://www.regulations.gov/ . You may search for docket number EPA-HQ-OPP-007-0097 and also EPA-HQ-OPP-2005-0266 (dodine); EPA-HQ-OPP-2004-0370 (endothall); EPA-HQ-OPP-2004-0380 (dimethipin); EPA-HQ-OPP-2002-0159 (propyzamide); EPA-HQ-OPP-2004-0346 (ethofumesate); EPA-HQ-OPP-2004-0385 (permethrin); EPA-HQ-OPP-2004-0167 (2,4-D); EPA-HQ-OPP-2004-0296 (Captan) and EPA-HQ-OPP-2002-0250 and EPA-HQ-OPP-2005-0459 (fenarimol), then click on that docket number to view its contents.

EPA has determined that the aggregate exposures and risks are not of concern for the above mentioned pesticide active ingredients based upon the data identified in the RED or TRED which lists the submitted studies that the Agency found acceptable.

EPA has found that the tolerances that are proposed in this document to be modified, are safe in accordance with FFDCA section 408(b)(2)(A), and that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residues, in accordance with section 408(b)(2)(C). These findings are discussed in detail in each RED. The references are available for inspection as described in this document under SUPPLEMENTARY INFORMATION .

In addition, EPA is proposing to revoke certain specific tolerances because either they are no longer needed or are associated with food uses that are no longer registered under FIFRA. The registrations for these pesticide chemicals were canceled because the registrant failed to pay the required maintenance fee and/or the registrant voluntarily requested cancellation of one or more registered uses of the pesticide. It is EPA's general practice to propose revocation of those tolerances for residues of pesticide active ingredients on crop uses for which there are no active registrations under FIFRA, unless any person in comments on the proposal indicates a need for the tolerance to cover residues in or on imported commodities or domestic commodities legally treated.

1. Captan. Tolerances are currently established for both plant and animal commodities in 40 CFR 180.103(a) for residues of the fungicide, captan (N-trichloromethylthio-4-cyclohexene-1,2-dicarboximide) for preharvest and postharvest uses or combinations of such uses in or on plant and animal commodities. This use-pattern timing related language, preharvest and postharvest, is impractical and should be removed because enforcement officials would rarely be able to determine the timing of the application. Also, the Agency has determined that the residues of concern are captan per se in plants and that the metabolite 1,2,3,6-tetrahydrophthalimide (THPI) of captan is of toxicological concern and should be regulated in/on animal commodities along with captan. Therefore, EPA proposes transferring the tolerance expressions in 40 CFR 180.103(a) to (a)(1) for residues of the fungicide, captan (N-trichloromethylthio-4-cyclohexene-1,2-dicarboximide) in or on plant commodities retaining those plant-related tolerances and to transfer livestock tolerances into (a)(2) for the combined residues of the fungicide, captan (N-trichloromethylthio-4-cyclohexene-1,2-dicarboximide) and its metabolite 1,2,3,6-tetrahydrophthalimide (THPI), measured as THPI, in or on animal commodities. Currently, tolerances in 40 CFR 180.103(b) are for residues of captan on an interim basis for almonds, almond hulls, beans dry, beans succulent, and potatoes. The Agency has determined that these tolerances are no longer interim and should be moved to 40 CFR 180.103(a)(1). Also, to conform to current Agency practice, 40 CFR 180.103(b) should now be designated for section 18 emergency exemptions - reserved; add paragraph (c) for regional registrations - reserved; and add paragraph (d) for indirect or inadvertent residues - reserved. Therefore, EPA proposes that the interim tolerances listed in 40 CFR 180.103(b) be transferred to 40 CFR 180.103(a)(1); paragraph (b) be revised to (b) section 18 emergency exemptions - reserved; add paragraph (c) regional registrations - reserved; and add paragraph (d) indirect or inadvertent residues - reserved.

Based on available field trial data that indicate residues of captan as high as 0.18 parts per million (ppm) in/on almonds, 54.91 ppm in/on almond hulls, 7 ppm in/on apricot, 18.3 ppm in/on blueberries, 36 ppm in/on cherries, 22.4 ppm in/on grapes, 10 ppm in/on nectarines, 14 ppm in/on peach, 8 ppm in/on plum, 2 ppm in/on prune, 12 ppm in/on plum/prune juice, and 13 ppm in/on strawberries, the Agency determined that the tolerance should be decreased to 0.25 ppm in/on almonds, 75 ppm in/on almond hulls, 10 ppm in/on apricots, 20 ppm in/on blueberries, 50 ppm in/on cherries, 25 ppm in/on grapes, 25 ppm in/on nectarines, 15 ppm in/on peaches, 10 ppm in/on plums and 20 ppm in/on strawberry. The tolerance for strawberries was also decreased to harmonize with the Codex alimentarius. Therefore, EPA proposes decreasing tolerances in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in or on almond from 2 to 0.25 ppm; almond, hulls from 100 to 75 ppm; apricot from 50 to 10 ppm; blueberry from 25 to 20 ppm; cherry at 100 to cherry, sweet at 50 ppm and cherry, tart at 50 ppm; grape from 50 to 25 ppm; nectarine from 50 to 25 ppm; peach from 50 to 15 ppm; plum, prune, fresh from 100 to 10 ppm; and strawberry from 25 to 20 ppm.

Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on dry and succulent beans, peas and soybeans; therefore, the Agency determined that the tolerances should be 0.05 ppm on vegetable, legume, group 6 and vegetable, foliage of legume, group 7, replacing the individual tolerances. Therefore, EPA proposes decreasing and modifying the individual tolerances to a crop group tolerance in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in/on beans, dry, seed at 25 ppm; bean, succulent at 25 ppm; pea, dry, seed at 2 ppm; pea, succulent at 2 ppm; soybean, dry at 2 ppm; soybean, succulent at 2 ppm to vegetable, legume, group 6 at 0.05 ppm and vegetable, foliage of legume, group 7 at 0.05 ppm.

Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on garden beets, carrots, rutabagas, potatoes, and turnips; therefore, the Agency determined that the tolerances should be 0.05 ppm on vegetable, root and tuber, group 1 and vegetable, leaves of root and tuber, group 2, replacing the individual tolerances. Therefore, EPA proposes decreasing and modifying the individual tolerances to a crop group tolerances in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in/on beet, garden, roots at 2 ppm; beet, garden, tops at 100 ppm; carrot, roots at 2 ppm; potato at 25 ppm; rutabagas (roots) at 2 ppm; turnip, greens at 2.0 ppm; turnip, roots at 2.0 ppm to vegetable, root and tuber, group 1 at 0.05 ppm and vegetable, leaves of root and tuber, group 2 at 0.05 ppm.

Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on broccoli, Brussels sprouts, cabbage, cauliflower, collards, kale, and mustard greens; therefore, the Agency determined that the tolerance should be 0.05 ppm on vegetable, brassica leafy, group 5 replacing the individual tolerances. Therefore, EPA proposes decreasing and modifying the individual tolerances to a crop group tolerance in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in/on broccoli, Brussels sprouts, cabbage, cauliflower, collards, kale, mustard greens each at 2 ppm to vegetable, brassica leafy, group 5 at 0.05 ppm.

Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on cantaloupe, cucumber, honeydew melon, muskmelon, pumpkins, summer squash, winter squash, and watermelons; therefore, the Agency determined that the tolerance should be 0.05 ppm on vegetable, cucurbit group 9 replacing the individual tolerances. Therefore, EPA proposes decreasing and modifying the individual tolerances to a crop group tolerance in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in/on cantaloupe; cucumber; melon, honeydew; muskmelon; pumpkin; squash, summer; squash, winter; and watermelon each at 25 ppm to vegetable, cucurbit, group 9 at 0.05 ppm.

Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on celery, lettuce, and spinach; therefore, the Agency determined that the tolerance should be 0.05 ppm on vegetable, leafy, except brassica, group 4 replacing the individual tolerances. Therefore, EPA proposes decreasing and modifying the individual tolerances to a crop group tolerance in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in/on celery at 50 ppm, lettuce at 100 ppm, and spinach at 100 ppm to vegetable, leafy, except brassica, group 4 at 0.05 ppm.

Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on eggplant, peppers, and tomato; therefore, the Agency determined that the tolerance should be 0.05 ppm on vegetable, fruiting, group 8 replacing the individual tolerances. Therefore, EPA proposes decreasing and modifying the individual tolerances to a crop group tolerance in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in/on eggplant; pepper; and tomato each at 25 ppm to vegetable, fruiting, group 8 at 0.05 ppm.

Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on bulb onion and green onion; therefore, the Agency determined that the tolerance should be 0.05 ppm on vegetable, bulb, group 3 replacing the individual tolerances. Therefore, EPA proposes decreasing and modifying the individual tolerances to a crop group tolerance in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in/on onion, bulb at 25 ppm and onion, green at 50 ppm to vegetable, bulb, group 3 at 0.05 ppm.

Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on corn; therefore, the Agency determined that the tolerance should be 0.05 ppm on grain, cereal, group 15 and grain, cereal, forage, fodder and straw, group 16 replacing the tolerance corn, sweet, kernel plus cob with husks removed. Therefore, EPA proposes decreasing and modifying a tolerance to crop group tolerances in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in/on corn, sweet, kernel plus cob with husks removed at 2 ppm to grain, cereal, group 15 and grain, cereal, forage, fodder and straw, group 16 at 0.05 ppm.

The Agency has determined that tolerances for blackberry, dewberry and raspberry each at 25 ppm should be replaced by the crop group tolerance caneberry, subgroup 13A at 25 ppm. Therefore, EPA proposes modifying the individual tolerances to a crop group tolerance in newly proposed 40 CFR 180.103(a) for captan residues of concern in plants in/on blackberry, dewberry, and raspberry each at 25 ppm to caneberry, subgroup 13A at 25 ppm.

Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on cottonseed; dill seed; flax seed; grass forage; grass, hay; non-grass animal feeds group 18; okra; peanuts; peanut hay; rapeseed; rapeseed forage; safflower seed; sesame seed; and sunflower seed; therefore, the Agency determined that the tolerances should each be 0.05 ppm. Tolerances for flax straw and sunflower forage are no longer necessary because these commodities are not considered significant feed items in accordance with “Table 1.—Raw Agricultural and Processed Commodities and Feedstuffs Derived from Crops'' which is found in Residue Chemistry Test Guidelines OPPTS 860.1000 dated August 1996, available at http://www.epa.gov/opptsfrs/publications/OPPTS Harmonized/860 Residue Chemistry Test Guidelines/Series . Therefore, EPA is proposing to establish tolerances in 40 CFR 180.103(a)(1) for captan residues of concern in or on dill, seed at 0.05 ppm; flax, seed at 0.05 ppm; grass, forage at 0.05 ppm; grass, hay at 0.05 ppm; animal feed, nongrass, group 18 at 0.05 ppm; okra at 0.05 ppm; peanut at 0.05 ppm; peanut, hay at 0.05 ppm; rapeseed, seed at 0.05 ppm; rapeseed, forage at 0.05 ppm; safflower, seed at 0.05 ppm; sesame, seed at 0.05 ppm; and sunflower, seed at 0.05 ppm and decrease cotton, undelinted seed from 2 to 0.05 ppm.

Based on the livestock dietary burden from wet apple pomace and animal feed commodities from seed treatments, the maximum theoretical dietary burden of captan residues of concern for dairy cattle is 17.27 ppm and beef cattle is 27.72 ppm. Using the results of the 30 ppm feeding level from the animal feeding study, the expected residue levels are 0.11 ppm in fat; 0.25 ppm in kidney (meat byproducts); 0.18 ppm in muscle; and 0.06 ppm in milk. Based on these data, the Agency has determined that the tolerances in cattle, goat, horse, hog and sheep should be: 0.20 ppm in meat; 0.30 ppm in meat byproducts; 0.15 ppm in fat; and 0.10 ppm in milk (where sheep meat, fat and meat byproducts tolerances reflect the text in the tolerance reassessment of the RED versus the table C which is not accurate). Therefore, EPA proposes increasing the tolerances in newly revised 40 CFR 180.103(a)(2) for the combined residues of the fungicide, captan (N-trichloromethylthio-4-cyclohexene-1,2-dicarboximide) and its metabolite 1,2,3,6- tetrahydrophthalimide (THPI) in or on cattle, fat from 0.05 to 0.15 ppm; cattle, meat from 0.05 to 0.20 ppm; cattle, meat byproducts from 0.05 to 0.30 ppm; hog, fat from 0.05 to 0.15 ppm; hog, meat from 0.05 to 0.20 ppm; hog, meat byproducts from 0.05 to 0.30 ppm and proposes establishing tolerances in newly revised 40 CFR 180.103(a)(2) in/on goat, fat at 0.15 ppm; goat, meat at 0.20 ppm; goat, meat byproducts at 0.30 ppm; horse, fat at 0.15 ppm; horse, meat at 0.20 ppm; horse, meat byproducts at 0.30 ppm; milk at 0.10 ppm; sheep, fat at 0.15 ppm; sheep, meat at 0.20 ppm; and sheep, meat byproducts at 0.30 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

The last registered use of captan on mangoes was canceled in 1998; therefore, the tolerance is no longer needed. Therefore, EPA is proposing to revoke the existing tolerance for mango at 50 ppm in newly revised 40 CFR 180.103(a)(1).

The proposed tolerance actions herein for captan, to implement the recommendations of the captan RED, reflect use patterns in the U.S. which support a different tolerance than the Codex level on almonds, cucumbers, nectarines, raspberries, and tomatoes, because of differences in good agricultural practices. However, compatibility exists for apples and pears will exist between the proposed reassessed U.S. tolerances and Codex MRLs for captan residues in or on blueberries, peaches, potatoes, and strawberries.

2. 2,4-D . Currently, tolerances for residues of 2,4-D in or on plant raw agricultural commodities fish and potable water are currently expressed in terms of 2,4-D (2,4-dichlorophenoxyacetic acid) in 40 CFR 180.142(a)(1-2, 4-7 and 9-13). The residues are regulated depending on the use pattern, the form of the 2,4-D formulation applied (e.g., acid, salts), timing of treatment (preharvest or postharvest) and some commodities are covered by two or more tolerances (e.g., citrus). This use-pattern related language is impractical and should be removed for three reasons:

i. 2,4-D in the acid form as well as the sodium salt, four amine salts, and three esters upon contact with water and/or hydrolytic enzymes are converted to a single common moiety, 2,4-D (anion or acid depending on the pH) which is the pesticidally active component serving as the basis for the tolerance regulation. Consequently, the available tolerance enforcement methodology cannot distinguish between which form of the pesticidally active component was applied.

ii. If 2,4-D residues were detected in a commodity, enforcement officials would rarely be able to determine who applied the pesticide, when, or for what purpose.

iii. If the 2,4-D concentration were to fall between two tolerance levels for the same commodity, the Agency would not know whether the sample was violative.

Therefore, EPA is proposing to subsume the lower tolerances in the higher existing tolerances, delete use-pattern related language (e.g., timing and formulation), and revise the tolerances in 40 CFR 180.142(a)(1-2, 4-7 and 9-13) into 40 CFR 180.142(a) for residues of the herbicide, plant regulator, and fungicide 2,4-D (2,4-dichlorophenoxyacetic acid), both free and conjugated, determined as the acid and delete the paragraphs designations (1-2, 4-7, and 9-13).

The available field trial data indicate residues of 2,4-D are as high as 1.39 ppm in or on wheat grain. The wheat grain data are translated to support tolerances for barley, millet, oats and rye grain. Based on these data, the Agency determined that the tolerance should be increased to 2.0 ppm on wheat, barley, millet, oats and rye grain. Based on available field trial data that indicate residues of 2,4-D as high as 24.9 ppm and 40.9 ppm in or on wheat forage and wheat straw, respectively, which is also translated to millet, oats and rye forage and millet straw, the Agency determined that the tolerances should be increased to 25 ppm in/on wheat, millet, oats, and rye forage and 50 ppm in/on millet straw. Based on available field trial data that indicate residues of 2,4-D as high as 49.8 ppm in/on corn stover; 0.053 ppm in/on hops; 0.31 ppm in/on potatoes; <0.01 ppm in/on strawberry; and 0.485 ppm in/on rice, the Agency determined that the tolerances should be increased to 50 ppm in/on corn, stover; 0.2 ppm in/on hop; 0.4 in/on potato; 0.01 ppm in/on strawberry; and 0.5 ppm in/on rice, grain. EPA is also revising commodity terminology to conform to current Agency practice. Therefore, EPA is proposing to increase and revise tolerances in newly revised 40 CFR 180.142(a) for the combined 2,4-D residues of concern in or on barley, grain from 0.5 to 2.0 ppm; millet, grain from 0.5 to 2.0 ppm; oat, grain from 0.5 to 2.0 ppm; rye, grain from 0.5 to 2.0 ppm; wheat, grain from 0.5 to 2.0 ppm; millet, straw from 20 to 25 ppm; millet, forage from 20 to 25 ppm; oat, forage from 20 to 25 ppm; rye, forage 20 to 25 ppm; wheat, forage from 20 to 25 ppm; rice grain from 0.1 to 0.5 ppm; corn, stover from 20 to 50 ppm; hop from 0.05 to 0.2 ppm; potato from 0.2 to 0.4 ppm; and strawberry from 0.05 to 0.1 ppm and revise corn, stover to corn, field, stover; corn, pop, stover; and corn, sweet, stover; and revise hop to hop, dried cones. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Based on available field trial data on field corn, pop corn, and sweet corn that indicate residues of 2,4-D as high as 5.2 ppm in/on corn forage, <0.05 ppm in/on corn fresh, sweet, kernel plus cob with husks removed, and 0.038 ppm in/on corn grain, the Agency determined that the tolerances should be decreased to 6.0 ppm, 0.05 ppm, and 0.05 ppm, respectively. Based on available field trial data that indicate residues of 2,4-D as high as 0.07 ppm in/on fish, 0.079 ppm in/on grapefruits, 0.24 ppm in/on oranges, and 2.5 ppm in/on lemons, the Agency determined that the tolerances should be decreased to 0.10 ppm in/on fish and to 3.0 ppm in/on fruit, citrus, group 10. Based on available field trial data that indicate residues of 2,4-D as high as <0.01 ppm in/on apples and pears, the Agency determined that the tolerance should be decreased to 0.1 ppm in/on fruit, pome, group 11 replacing the individual tolerances for apple, pear, and quince. Based on available field trial data that indicate residues of 2,4-D as high as <0.05 ppm in/on cherries, <0.01 ppm in/on peaches, and <0.01 ppm in/on plums, the Agency determined that the tolerance should be decreased to 0.1 ppm in/on fruit, stone group 12 replacing the individual tolerance for apricots. Based on available field trial data that indicate residues of 2,4-D as high as <0.05 ppm in/on pistachio; <0.1 in/on grapes; 358 ppm in/on grass, pasture and rangeland; 8.83 ppm in/on rice, straw; 0.162 ppm in/on sorghum, forage; 0.012 ppm in/on sorghum, grain; 0.17 ppm in/on sorghum, grain, stover; 0.015 ppm in/on sugarcane; and 0.105 ppm in/on sugarcane, molasses, the Agency determined that the tolerances should be decreased to 0.05 ppm in/on pistachio; 0.1 ppm in/on grape; 300 ppm in/on grass, hay; 360 ppm in/on grass, pasture and grass, rangeland; 10 ppm in/on rice, straw; 0.2 ppm in/on sorghum, forage; 0.2 ppm in/on sorghum, grain; 0.2 ppm in/on sorghum, grain, stover; 0.05 ppm in/on sugarcane; and 0.2 ppm in/on sugarcane, molasses. EPA is also revising commodity terminology to conform to current Agency practice. Therefore, EPA is proposing to decrease and revise tolerances in newly revised 40 CFR 180.142(a) for the combined 2,4-D residues of concern in or on corn, forage from 20 to corn, field, forage; and corn, sweet, forage at 6.0; corn, fresh, sweet, kernel plus cob with husks removed at 0.5 to corn, sweet, kernel plus cob with husks removed at 0.05 ppm; corn, grain at 0.5 to corn, field, grain at 0.05 ppm and corn, pop, grain at 0.05 ppm; fish, 1.0 to 0.10 ppm; fruit, citrus at 5 ppm to fruit, citrus, group 10 at 3.0 ppm; fruit, pome at 0.1 and apple, pear, and quince at 5 ppm to fruit, pome, group 11 at 0.1 ppm; apricot at 5 ppm and fruit, stone at 0.2 ppm to fruit, stone, group 12 at 0.1 ppm; pistachio at 0.05 ppm; grape from 0.5 to 0.1 ppm; grass, pasture and grass, rangeland from 1,000 ppm to grass, forage at 360 ppm; rice, straw from 20 to 10 ppm; sorghum, forage from 20 to sorghum, grain, forage at 0.2 ppm; sorghum, grain from 0.5 to sorghum, grain, grain at 0.2 ppm; sorghum, grain, stover from 20 to 0.2 ppm; sugarcane, cane from 2 ppm to 0.05 ppm; and sugarcane, molasses from 5 to 0.2 ppm.

Based on available field trial data that indicate residues of 2,4-D as high as 0.106 ppm in cranberry, <0.05 ppm in low bush (berries), and 0.011 ppm in high bush (berries), the Agency has determined the tolerance should be revised to 0.2 ppm in/on berry, group 14 in place of the individual tolerances. These tolerances are also being maintained to cover inadvertent or indirect residues that may occur. Therefore, EPA proposes revising the tolerances in newly revised 40 CFR 180.142(a) for the combined 2,4-D residues of concern in or on blueberry at 0.1 ppm, cranberry at 0.5 ppm, raspberry at 0.1 ppm and small fruit at 0.1(N) to berry, group 14 at 0.2 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Based on available field trial data that indicate residues of 2,4-D as high as 0.098 ppm in/on almond hulls; 1.48 ppm in on corn aspirated grain fractions (AGF) and 36.3 ppm in/on wheat AGF; 40.9 ppm in/on wheat straw, 3.88 ppm in/on wheat bran, and 1.40 ppm in/on rice, hulls; <0.01 ppm in/on soybean forage; 1.13 ppm in/on soybean hay; and <0.01 ppm in/on soybean seeds, the Agency determined that tolerances should be established in/on almond, hulls at 0.1 ppm; grain, aspirated fractions 40 ppm; wheat, straw at 50 ppm (and translating the wheat straw data to barley, oat, and rye); barley, straw at 50 ppm; oat, straw at 50 ppm; rye, straw at 50 ppm; wheat, bran at 4.0 ppm (and translating the wheat bran data to barley and rye) barley, bran at 4.0 ppm; rye, bran at 4.0 ppm; rice, hulls at 2.0 ppm; soybean, forage at 0.02 ppm; soybean, hay at 2.0 ppm; and soybean, seed at 0.02 ppm. Therefore, EPA is proposing to establish the tolerances in newly revised 40 CFR 180.142(a) for the combined 2,4-D residues of concern in or on almond, hulls at 0.1 ppm; barley, bran at 4.0 ppm; barley, straw at 50 ppm; grain, aspirated fractions at 40 ppm; oat, straw at 50 ppm; rice, hulls at 2.0 ppm; rye, bran at 4.0 ppm; rye, straw at 50 ppm; soybean, hay at 2.0 ppm; soybean, forage at 0.02 ppm; soybean, seed at 0.02 ppm; wheat, bran at 4.0 ppm; and wheat, straw at 50 ppm.

In addition, tolerances for residues in food products of animal origin are currently expressed in terms of 2,4-D and/or its metabolite 2,4-dichlorophenol (2,4-DCP) in 40 CFR 180.142(a)(8). The Agency has determined that the metabolite, 2,4-DCP, is not of concern for either the tolerance expression or for risk assessment at the minute levels expected in livestock tissues and considering the likely lower toxicity of 2,4-DCP compared to 2,4-D. Consequently, the regulated residues of 2,4-D are now the same for plants, shellfish, fish, and foods of animal origin. Therefore, EPA is proposing to change the residues of concern, transfer the foods of animal origin tolerances in 40 CFR 180.142(a)(8) into 40 CFR 180.142(a) for the combined 2,4-D residues of concern and delete paragraph (a)(8).

Ruminant feeding data at an exaggerated level (1.7x) show that 2,4-D residues are as high as 0.51 ppm in fat, 0.24 ppm in meat, 0.2 ppm in liver, 6.48 ppm in kidney, and 0.07 ppm in milk. These studies also showed that 2,4-D is rapidly excreted from animals. Based on the rapid excretion and residue levels on the last day of dosing in feeding studies, the Agency has determined that the 2,4-D tolerance in milk may be decreased to 0.05 ppm and to 0.3 ppm in the fat of cattle, goats, horses, and sheep. The tolerances should be increased to 4.0 ppm in the kidneys of cattle, goats, horses, and sheep and to 0.3 ppm in the meat and meat byproducts of cattle, goats, horses, and sheep. Therefore, EPA is proposing to increase tolerances in newly revised 40 CFR 180.142(a) for the combined 2,4-D residues of concern in or on cattle, kidney from 2 to 4.0 ppm; goat, kidney from 2 to 4.0 ppm; horse, kidney from 2 to 4.0 ppm; and sheep, kidney from 2 to 4.0 ppm; cattle, meat from 0.2 to 0.3 ppm; goats, meat from 0.2 to 0.3 ppm; horses, meat from 0.2 to 0.3 ppm; sheep, meat from 0.2 to 0.3 ppm; cattle, meat byproducts, except kidney from 0.2 to 0.3 ppm; goats, meat byproducts, except kidney from 0.2 to 0.3 ppm; horses, meat byproducts, except kidney from 0.2 to 0.3 ppm; and sheep, meat byproducts, except kidney from 0.2 to 0.3 ppm; cattle, fat from 0.2 to 0.3 ppm; goat, fat from 0.2 to 0.3 ppm; horse, fat from 0.2 to 0.3 ppm; sheep, fat from 0.2 to 0.3 ppm; and decrease milk from 0.1 to 0.05 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Based on the results of a 2,4-D poultry metabolism study, there is no reasonable expectation of finite residues in poultry tissues and eggs (Category 3 of 40 CFR 180.6(a)(3)) when 2,4-D is applied according to registered use directions. Therefore, the Agency determined that tolerances for residues of 2,4-D in poultry commodities are not needed. In addition, as the lowest feeding level for cattle was 940x the maximum theoretical dietary burden for swine, the maximum expected residues in hog tissues would be 0.007 ppm (kidney). Accordingly, there is no reasonable expectation of finite residues in hog commodities (Category 3 of 40 CFR 180.6(a)(3)); therefore, the Agency has determined tolerances associated with hog tissues are no longer needed and should be revoked. Therefore, EPA is proposing to revoke the tolerances in newly revised 40 CFR 180.142(a) for 2,4-D residues of concern in or on egg at 0.05 ppm; hog, fat; hog, meat; and hog, meat byproducts, except kidney at 0.2 ppm; hog, kidney at 2 ppm; and poultry at 0.05 ppm.

Tolerances listed in 40 CFR 180.142(a)(3) are currently established for negligible residues of 2,4-D in irrigated crops from application of its dimethylamine salt in the western United States (U.S.). Specifically, the tolerances on fruit, citrus; fruit, pome; fruit, stone; grain, crop; root crop vegetables; grass, forage; hop; small fruit (newly termed berry, group 14) and nut each at 0.1(N) ppm in 40 CFR 180.142(a)(3) have existing tolerances in newly revised 40 CFR 180.142(a) which are high enough to cover any inadvertent residues on these commodities. The tolerances associated with commodities that do not receive direct treatment of 2,4-D in 40 CFR 180.142(a)(3)—avocado; cotton, undelinted seed; cucurbits; grain, crop; leafy vegetables; legume forage; root crop vegetables; seed and pod vegetables; and vegetable, fruiting each at 0.1(N) should be transferred to 40 CFR 180.142(d) as they cover inadvertent and indirect residues. Therefore, EPA is proposing that commodities and tolerances in 40 CFR 180.142(a)(3) that are duplicative of commodities and tolerances in newly revised 40 CFR 180.142(a) be removed from 40 CFR 180.142 (a)(3). EPA is also proposing that the remaining commodities and tolerance combinations in 40 CFR 180.142(a)(3) (avocado; cotton, undelinted seed; cucurbits; grain, crop; leafy vegetables; legume forage; root crop vegetables; seed and pod vegetables; and vegetable, fruiting each at 0.1(N)) be transferred in 40 CFR 180.142(d) for inadvertent or indirect residues of the herbicide, plant regulator, and fungicide 2,4-D (2,4-dichlorophenoxyacetic acid), both free and conjugated, determined as the acid and delete 40 CFR 180.142(a)(3).

The available irrigated crop residue data for leafy vegetables and legume, forage had maximum residue levels of 0.33 ppm and 0.15 ppm, respectively; therefore, the Agency has determined the tolerances should be increased from 0.1(N) to 0.4 ppm and 0.2 ppm, respectively. The available residue data for inadvertent residue levels on the remaining crops (avocado, cotton, cucurbits, bulbs in the root crop vegetables, seed and pod vegetables and fruiting vegetables) do not exceed the level of quantitation of 0.05 ppm and two times the level of quantitation for direct uses on the root and tubers of the root crop vegetables; therefore, the Agency determined the tolerances should be decreased to 0.05 ppm. Based on the available irrigation data, the resulting direct and inadvertent residues are expected to be ≤0.1 ppm in/on the bulbs in the root crop vegetables; therefore, the Agency has determined the tolerance level and terminology should be at 0.5 ppm in/on vegetable, bulb, group 3, 0.1 ppm in/on vegetable, root and tuber, except potato, group 1 and vegetable, leaves of root and tuber, except potato, group 2. EPA is also proposing to revise commodity terminology and removing the “(N)” designation for negligible residues to conform to current Agency practice. Therefore, EPA is proposing to revise and modify tolerances in 40 CFR 180.142(d) for the combined 2,4-D residues of concern by decreasing and revising avocado from 0.1 (N) to 0.05 ppm; cotton, undelinted seed from 0.1(N) to 0.05 ppm; cucurbits at 0.1(N) to vegetable, cucurbit, group 9 at 0.05 ppm; root crop vegetables at 0.1 (N) to vegetable, bulb, group 3 at 0.05 ppm; vegetable, fruiting at 0.1(N) to vegetable, fruiting, group 8 at 0.05 ppm; vegetable, seed and pod at 0.1 (N) to vegetable, legume, group 6 at 0.05 ppm, okra at 0.05 ppm and dill, seed at 0.05 ppm; increasing and revising legume forage at 0.1(N) to vegetable, foliage of legume, group 7 at 0.2 ppm and animal feed, nongrass, group 18 at 0.2 ppm; vegetable, leafy at 0.1(N) to vegetable, brassica leafy, group 5 at 0.4 ppm and vegetable, leafy, except brassica, group 4 at 0.4 ppm; and in 40 CFR 180.142(a) further revise the tolerance vegetable, root at 0.1(N) to vegetable, root and tuber, except potato, group 1; and vegetable, leaves of root and tuber, except potato, group 2 at 0.1 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Based on available field trial data that indicate residues of 2,4-D as high as <0.05 ppm in/on wild rice in Minnesota, the Agency has determined that a regional tolerance should be established at 0.05 ppm in/on rice, wild, grain. Therefore, EPA proposes removing the expired (12/31/05) section 18 emergency exemption in/on wild rice at 0.1 ppm in 40 CFR 180.142(b), reserving the paragraph, and establishing a regional tolerance in 40 CFR 180.142(c) for residues of the herbicide, plant regulator, and fungicide 2,4-D (2,4-dichlorophenoxyacetic acid), both free and conjugated, determined as the acid, in/on rice, wild, grain at 0.05 ppm.

Currently, there is a tolerance for residues of 2,4-D in potable water at 0.1(N) ppm in 40 CFR 180.142(a). Pesticide residues in water are now under the purview of EPA's Office of Water where a maximum contaminant level of 0.07 ppm has been established for 2,4-D in drinking water. Sugarcane bagasse is no longer considered a significant animal feed item; therefore, the Agency has determined the tolerance on sugarcane bagasse is no longer needed and should be revoked. Based on available field trial data that indicate residues of 2,4-D as high as 0.095 ppm, <0.05 ppm, and 0.16 ppm in/on filberts, pecans, and almonds, respectively, the Agency has determined the tolerance should be maintained at 0.2 ppm in/on nuts. EPA is also revising commodity terminology to conform to current Agency practice. Therefore, EPA proposes revoking the potable water tolerance at 0.01(N) ppm and sugarcane bagasse at 5 ppm in newly revised 40 CFR 180.142(a), and revising the tolerance in 180.142(a) in/on nut to nut, tree, group 14.

There are tolerances listed in newly revised 40 CFR 180.142(a) (formerly 40 CFR 180.142(a)(6)) that regulate “crops in paragraph (c) of this section at 1.0 ppm” and “crops groupings in paragraph (c) of this section at 1.0 ppm” that should be removed because tolerances in newly recodified 40 CFR 180.142(a) and (d) will be sufficient to cover inadvertent residues in irrigated crops to which these tolerances originally referred. Tolerances also exist in newly revised 40 CFR 180.142(a) (formerly 40 CFR 180.142(a)(12) and 13)) as follows; “2 ppm in the milled fractions (except flour) derived from barley, oats, rye, and wheat to be ingested as food or be converted to food” and “2 ppm in the milled fractions derived from barley, oats, rye, and wheat to be ingested as animal feed or converted into animal feed” should be removed because tolerances for direct and inadvertent residues of 2,4-D in barley, rye and wheat bran are newly established in newly revised 40 CFR 180.142(a) and tolerances in other small grain processed products are not necessary as residues do not concentrate upon processing. Therefore, EPA is proposing to remove the tolerances in newly revised 40 CFR 180.142(a) “crops in paragraph (c) of this section at 1.0 ppm”; “crops groupings in paragraph (c) of this section at 1.0 ppm”; “2 ppm in the milled fractions (except flour) derived from barley, oats, rye, and wheat to be ingested as food or be converted to food”; and “2 ppm in the milled fractions derived from barley, oats, rye, and wheat to be ingested as animal feed or converted into animal feed.”

The proposed tolerance actions herein for 2,4-D, to implement the recommendations of the 2,4-D RED, reflect use patterns in the U.S. which support a different tolerance than the Codex level on berries; citrus; meat byproducts; grass hay and fodder; corn forage and fodder; meat; pome fruits; potato; rice, grain; sorghum grain; soybeans; and wheat straw because of differences in good agricultural practices. However, compatibility currently exists or will exist between the proposed reassessed U.S. tolerances and Codex MRLs for 2,4-D residues in or on corn grain, rice straw, rye grain, sorghum forage, stone fruits, sugarcane, sweet corn, tree nuts, and wheat grain.

3. Dodine. Based on available field trial data that indicate residues of dodine as high as 2.2 ppm in/on cherries and to harmonize with the Codex MRL of 3 ppm, the Agency has determined that the tolerance should be decreased to 3.0 ppm on cherry, sweet and cherry, tart. Therefore, EPA proposes decreasing the tolerance in 40 CFR 180.172(a) for residues of dodine in or on cherry, sweet from 5.0 to 3.0 ppm and cherry, tart from 5.0 to 3.0 ppm.

Based on the available apple field trial and processing data that indicate residues of dodine are as high as 2.58 ppm in/on apples and a concentration factor of 5.13x in apple pomace (wet), the Agency has determined that a tolerance should be established in/on apple, wet pomace at 15.0 ppm. Therefore, EPA proposes establishing a tolerance in 40 CFR 180.172(a) for residues of dodine in/on apple, wet pomace at 15.0 ppm.

Based on the results of the dodine animal metabolism study, there is no reasonable expectation of finite residues in animal tissues or milk (category 3 of 40 CFR 180.6(a)(3)); therefore, the Agency has determined that the tolerances for milk and meat are no longer needed and should be revoked. In the RED, a tolerance for plum was recommended at 5 ppm; however, there are no longer any uses in/on plums so the tolerance is not being established. Additionally, use of dodine on spinach is no longer a registered use, the Agency has determined the regional tolerance for spinach at 12.0 ppm should be revoked. Therefore, EPA is proposing to revoke tolerances in 40 CFR 180.172(a) for residues of dodine in/on meat and milk at 0 ppm and 40 CFR 180.172(b) for residues of dodine in/on spinach at 12.0 ppm and reserve and redesignate paragraph (b) as paragraph (c) for tolerances with regional registrations.

In order to conform to the adopted format in the CFR for 40 CFR part 180, EPA proposes revising 40 CFR 180.172 by adding paragraph (b) section 18 emergency exemptions—reserved; and paragraph (d) for indirect and inadvertent residues—reserved.

Compatibility of U.S. tolerances and Codex MRLs exist for dodine residues in/on apples, pears, and peaches and will exist between the proposed reassessed U.S. tolerances and Codex MRLs in or on sweet and tart cherries.

4. DCPA. There are currently no registered uses for DCPA on corn, lettuce, rutabaga and soybean; however, the tolerances are being retained to cover any inadvertent residues from the rotation of crops to previously DCPA treated fields/crops (1998 RED page 23). EPA is also revising commodity terminology to conform to current Agency practice. Therefore, EPA is proposing to transfer and revise tolerances in 40 CFR 180.185(a) to 40 CFR 180.185(d) for the combined inadvertent residues of the herbicide dimethyl tetrachloroterephthalate (DCPA) and its metabolites monomethyl tetrachloroterephthalate acid (MTP) and terachlorophthalic acid (TCP) (calculated as DCPA) in or on corn, field, forage; corn, field stover; corn, pop, forage; corn, pop, stover; corn, sweet, forage; corn, sweet, stover at 0.4 ppm; corn, grain (including pop and field) at 0.05 ppm to corn, pop, grain at 0.05 ppm and corn, field, grain at 0.05 ppm; corn, sweet, kernel plus cob with husks removed at 0.05 ppm; lettuce at 2 ppm to 2.0 ppm; rutabagas at 2 ppm to rutabaga at 2.0 ppm; and soybean at 2 ppm to 2.0 ppm.

Currently, the tolerances for basil, fresh leaves and basil, dried leaves are 20.0 ppm and 5.0 ppm, respectively, as published August 20, 2004 (69 FR 51571) (FRL-7673-6), and were intended for inadvertent residues rather than direct use tolerances. These tolerances should be corrected, switching the tolerance levels to basil, fresh leaves at 5.0 ppm and basil, dried leaves at 20.0 ppm and designated as inadvertent residue tolerances. Therefore, EPA is proposing to correct and transfer the tolerances in 40 CFR 180.185(a) to 40 CFR 180.185(d) for the combined inadvertent residues of the herbicide DCPA and its metabolites MTP and TCP (calculated as DCPA) in or on basil, fresh leaves from 20.0 to 5.0 ppm and basil, dried leaves from 5.0 to 20.0 ppm.

The tolerances for celeriac, chicory, chive, coriander, dill, marjoram, parsley, radicchio, and oriental radish as published August 20, 2004 (69 FR 51571) (FRL-7673-6), were tolerances intended to cover inadvertent residues rather than direct use residues. Therefore, EPA is proposing to transfer the tolerances in 40 CFR 180.185(a) to 40 CFR 180.185(d) for the combined inadvertent residues of the herbicide DCPA and its metabolites MTP and TCP (calculated as DCPA) in or on celeriac at 2.0 ppm; chicory, roots at 2.0 ppm; chicory, tops at 5.0 ppm; chive at 5.0 ppm; coriander, leaves at 5.0 ppm; dill at 5.0 ppm; marjoram at 5.0 ppm; parsley, leaves at 5.0 ppm; parsley, dried leaves at 20.0 ppm; radicchio at 5.0 ppm; and radish, oriental at 2.0 ppm.

There are currently no registered uses for DCPA in or on beans (field, mung and succulent), cotton, cucumbers, eggplants, peppers, blackeyed peas, potatoes, squash (winter and summer), sweet potatoes, turnips, leafy brassica vegetables and yams as published August 20, 2004 (69 FR 51571) (FRL-7673-6). However, the tolerances are being retained to cover any inadvertent residues from rotation of crops to previously DCPA treated fields/crops. EPA is also revising commodity terminology to conform to current Agency practice. Therefore, EPA is proposing to revise and transfer tolerances in 40 CFR 180.185(a) to 40 CFR 180.185(d) for the combined inadvertent residues of the herbicide DCPA and its metabolites MTP and TCP (calculated as DCPA) in or on bean, field, dry to bean, dry; bean, mung, seed at 2 ppm; bean, snap, succulent at 2 ppm; cotton, undelinted seed at 0.2 ppm; cucumber at 1.0 ppm; eggplant at 1.0 ppm; pepper at 2 ppm; pimento at 2 ppm; potato at 2 ppm; squash, summer at 1.0 ppm; squash, winter at 1 ppm; pea, blackeyed to pea, blackeyed, seed; radish, oriental to radish, oriental, roots and radish, oriental, tops; sweet potato, roots to sweet potato; turnip to turnip, roots; turnip, greens to turnip, tops; vegetable, brassica, leafy, group 5 at 5 ppm; and yam, true, tuber at 2 ppm.

In addition, EPA is proposing to revise commodity terminology and tolerances to conform to current Agency practice in 40 CFR 180.185(a) for the combined residues of the herbicide DCPA and its metabolites MTP and TCP (calculated as DCPA) in or on melon, honeydew to muskmelon; and onion to onion, bulb.

The are no registered uses for upland cress; therefore, the tolerance is no longer appropriate. Therefore, EPA is proposing to revoke the tolerance in 40 CFR 180.185(a) in/on cress, upland at 5 ppm.

Currently, there are no Codex MRLs in place for DCPA.

5. Endothall. Tolerances are currently established for rice, grain and rice, straw at 0.05(N) ppm. The “N” indicating negligible residues should be deleted in accordance with current Agency practice in 40 CFR 180.293 for the endothall residues of concern in or on rice, grain from 0.05(N) ppm to 0.05 ppm and rice, straw from 0.05(N) ppm to 0.05 ppm.

There is currently an interim tolerance established in 40 CFR 180.293(a)(2) for endothall residues of concern for potable water at 0.2 ppm. EPA's Office of Pesticide Programs no longer regulates pesticides in water by establishing tolerances, but rather by EPA's Office of Water where an appropriate Maximum Concentration Level has been established. Therefore, EPA is proposing to revoke the interim tolerance of 0.2 ppm in 40 CFR 180.293 (a)(2) and redesignating 40 CFR 180.293 (a)(1) and (a)(2) as 40 CFR 180.293(a).

EPA is proposing to revise commodity terminology to conform to current Agency practice in newly revised 40 CFR 180.293(a) from hop to hop, dried cones.

Currently, there are no Codex MRLs in place for endothall.

6. Propyzamide (or pronamide). Currently, 40 CFR 180.317(a) regulates the combined residues of the herbicide propyzamide and its metabolites (containing the 3,5-dichlorobenzoyl moiety calculated as 3,5-dichloro-N-(1,1-dimethyl-2-propynyl)benzamide) and in 40 CFR 180.317(b) only the parent, propyzamide is regulated in error. The Agency has determined the residues for regulation should be corrected in 40 CFR 180.317(b) to include the metabolites. Therefore, EPA proposes correcting the regulatory expression in 40 CFR 180.317(b) to regulate the combined residues of the herbicide propyzamide and its metabolites (containing the 3,5-dichlorobenzoyl moiety calculated as 3,5-dichloro-N-(1,1-dimethyl-2-propynyl)benzamide).

Based on the available field trial data that indicate the combined residues of propyzamide are less than the level of detection (0.01 ppm) in or on artichokes, the Agency determined that the tolerance should be decreased to 0.01 ppm. Therefore, EPA proposes decreasing the tolerance in 40 CFR 180.317(a) for the combined residues of the herbicide propyzamide and its metabolites (containing the 3,5-dichlorobenzoyl moiety calculated as 3,5-dichloro-N-(1,1-dimethyl-2-propynyl)benzamide) in or on artichoke, globe from 0.1 to 0.01 ppm.

In a residue study, two groups of lactating cows were fed alfalfa hay containing 20 to 40 ppm field-aged propyzamide residues for 3 weeks resulting in residues in fat tissues ranging from <0.01 to 0.48 ppm. Based on linear extrapolation of the maximum residues observed in the study and the maximum theoretical dietary burden, the Agency determined that the cattle, goat, hog, horse, and sheep fat tolerances should be raised from 0.02 to 0.20 ppm. Therefore, EPA proposes increasing the tolerances in 40 CFR 180.317(a) for the combined residues of the herbicide propyzamide and its metabolites (containing the 3,5-dichlorobenzoyl moiety calculated as 3,5-dichloro-N-(1,1-dimethyl-2-propynyl)benzamide) in or on cattle, fat from 0.02 to 0.20 ppm; goat, fat from 0.02 to 0.20 ppm; hog, fat from 0.02 to 0.20 ppm; horse, fat from 0.02 ppm to 0.20 ppm; and sheep, fat from 0.02 to 0.20 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Tolerances are typically not established for poultry kidneys, consequently, the associated tolerance is not necessary and the Agency determined that the tolerance for poultry, kidney at 0.2 ppm should be revoked. Concomitant with revoking the poultry, kidney tolerance, the tolerance for poultry, meat byproducts (except kidney, liver) should be revised to poultry, meat byproducts, except liver. Therefore, EPA proposes revoking the tolerance in 40 CFR 180.317(a) for the combined propyzamide residues of concern in or on poultry, kidney and revising the tolerance poultry, meat byproducts, (except kidney, liver) to poultry, meat byproducts, except liver.

Based on available confined accumulation in rotational crops data that indicate residues of propyzamide and its metabolites are as high as 0.10 ppm in wheat forage; 0.038 ppm in wheat, grain, and 0.181 ppm in wheat, straw, the Agency determined that tolerances for inadvertent or indirect residues should be established in/on cereal, grain, forage at 0.6 ppm; cereal, grain, hay at 0.2 ppm; and cereal, grain, straw at 0.3 ppm. Therefore, EPA proposes establishing tolerances in 40 CFR 180.317(d) for the combined residues of the herbicide propyzamide and its metabolites (containing the 3,5-dichlorobenzoyl moiety calculated as 3,5-dichloro-N-(1,1-dimethyl-2-propynyl)benzamide) in or on grain, cereal, forage, group 16 at 0.6 ppm; grain, cereal, hay, group 16 at 0.2 ppm; and grain, cereal, straw, group 16 at 0.3 ppm.

Based on the available field trial data that indicate the combined residues of propyzamide are as high as 8.68 ppm in/on alfalfa seed, the Agency determined that a tolerance should be established in/on alfalfa, seed at 10.0 ppm. Therefore, EPA is proposing to establish tolerances in 40 CFR 180.317(a) for the combined propyzamide residues of concern in/on alfalfa, seed at 10.0 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

EPA is also revising commodity terminology to conform to current Agency practice. Therefore, EPA proposes modifying a tolerance in 40 CFR 180.317(a) in/on lettuce to lettuce, head; fruit, stone to fruit, stone group 12; nongrass animal feeds to animal feed, nongrass, group 18; radicchio, greens (tops) to radicchio; cattle, meat byproducts, except kidney, liver; goat, meat byproducts, except kidney, liver; hog, meat byproducts, except kidney, liver; horse, meat byproducts, except kidney, liver; sheep, meat byproducts, except kidney, liver to cattle, meat byproducts, except kidney and liver; goat, meat byproducts, except kidney and liver; hog, meat byproducts, except kidney and liver; horse, meat byproducts, except kidney and liver; and sheep, meat byproducts, except kidney and liver and in 40 CFR 180.317(c) in/on pea, dried, winter to pea, field, seed.

Currently, there are no Codex MRLs in place for propyzamide.

7. Ethofumesate. Tolerances in 40 CFR 180.345(a)(1) and (a)(2) are regulated for the combined residues of the herbicide ethofumesate (2-ethoxy-2,3-dihydro-3,3-dimethyl-5-benzofuranyl methanesulfonate) and its metabolites 2-hydroxy-2,3-dihydro-3,3-dimethyl-5-benzofuranyl methanesulfonate and 2,3-dihydro-3,3-dimethyl-2-oxo-5-benzofuranyl methanesulfonate both calculated as parent compound in/on raw agricultural commodities for (a)(1) and in/on the processed feeds when present as a result of application to growing crops. When the residues of concern are the same for both processed feeds and the raw agricultural commodities, it is administrative practice to regulate them in the same paragraph. Therefore, EPA proposes combining the tolerances in 40 CFR 180.345(a)(1) and (a)(2) into 40 CFR 180.345(a).

As there are presently no regulated poultry or swine feed items associated with the registrated uses of ethofumesate, the hog fat, meat, and meat byproduct tolerances are no longer needed. Also, based on available field trial data that indicate residues of ethofumesate and its regulated metabolites are as high as 0.25 ppm in/on sugar beet roots, 3.1 ppm in/on sugar beet tops, 4.28 ppm in/on garden beet tops, the Agency determined that the tolerances should be increased to 0.3 ppm on sugar beet roots, 4.0 ppm sugar beet tops, and 5.0 ppm in/on garden beet tops. Therefore, EPA is proposing to revoke the tolerances in newly revised 40 CFR 180.345(a) for the combined residues of the herbicide ethofumesate (2-ethoxy-2,3-dihydro-3,3-dimethyl-5-benzofuranyl methanesulfonate) and its metabolites 2-hydroxy-2,3-dihydro-3,3-dimethyl-5-benzofuranyl methanesulfonate and 2,3-dihydro-3,3-dimethyl-2-oxo-5-benzofuranyl methanesulfonate both calculated as parent compound in/on hog, fat at 0.05 ppm, hog, meat at 0.05 ppm and hog, meat byproducts at 0.05 ppm. Also, EPA proposes increasing the tolerances in/on beet, sugar, roots from 0.1 to 0.3 ppm; beet, sugar, tops from 1.00 to 4.0 ppm; beet, garden, tops from 4.0 to 5.0 ppm in newly revised 40 CFR 180. 345(a). The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Based on the 0.5x processing factor for refined sugar and the highest average field trial residues of 0.25 ppm in beet roots, the expected combined ethofumesate residues of concern would be 0.125 ppm in refined sugar; therefore, the Agency has determined the tolerance for refined sugar should be 0.20 ppm. EPA is also modifying commodity terminology to conform to current Agency practice. Therefore, EPA is proposing to establish the tolerances in newly revised 40 CFR 180.345(a) for the combined residues of the herbicide ethofumesate (2-ethoxy-2,3-dihydro-3,3-dimethyl-5-benzofuranyl methanesulfonate) and its metabolites 2-hydroxy-2,3-dihydro-3,3-dimethyl-5-benzofuranyl methanesulfonate and 2,3-dihydro-3,3-dimethyl-2-oxo-5-benzofuranyl methanesulfonate both calculated as parent compound in/on beet, sugar, refined sugar at 0.20 ppm. Also, EPA proposes modifying tolerances in newly recodified 40 CFR 180.345(a) from sugar beet molasses to beet, sugar, molasses.

Since publication of the RED, EPA established tolerances in 40 CFR 180.345 in/on garden beets, sugar beets and carrots.

Currently, there are no Codex MRLs in place for ethofumesate.

8. Permethrin. The tolerance on cotton, undelinted seed at 0.5 ppm in 40 CFR 180.378(a) expired on November 15, 1997, and should be removed from the CFR. Because the only tolerance in 40 CFR 180.378(a) has expired, EPA proposes removing existing 40 CFR 180.378(a) in its entirety. Currently, tolerances in 40 CFR 180.378(b) permethrin [(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate], DCVA [3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate], and MPBA [3-phenoxyphenyl)methanol (3-phenoxybenzoic acid)] on plant commodities; 180.378(c) permethrin, DCVA, MPBA, and 3-phenoxybenzoic acid (3-PBA) in/on animal commodities; and 180.378(d) regional registrations are regulated for permethrin, DCVA and MPBA. Based on new toxicity studies and structural (molecular level) activity relationship (SAR) considerations, the Agency determined that residues of concern for regulation should consist of the cis- and trans-permethrin isomers for both plant and animal commodities. (This change also harmonizes the residues for regulation with MRLs for Codex, Canada and Mexico.) Consequently, the existing separation of plant tolerances in 40 CFR 180.378(b) and animal tolerances in 180.378(c) is no longer needed and should be combined into newly revised 40 CFR 180.378(a). Regional tolerances in 40 CFR 180.378(d) should be transferred to 180.378(c), and newly revised paragraph (b) and (d) should be established and reserved for section 18 emergency exemptions and indirect or inadvertent residues, respectively, in order to conform to current Agency practice. Therefore, EPA proposes changing the tolerance expression and transferring tolerances in 40 CFR 180.378(b) and (c) into 40 CFR 180.378(a) for the combined residues of the insecticide cis- and trans-permethrin isomers [cis-(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate] and [trans-(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate] in/on food commodities; reserving 40 CFR 180.378(b) for section 18 exemptions; transferring the tolerances in 40 CFR 180.378(d) to 40 CFR 180.378 (c) tolerances with regional registrations for the combined residues of the insecticide cis- and trans-permethrin isomers [cis-(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate] and [trans-(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate] in/on food commodities; and reserving 40 CFR 180.378(d) for indirect or inadvertent residues.

EPA is modifying commodity terminology to conform to current Agency administrative practice and based on available field trial data that indicate residues of permethrin as high as 15.2 ppm in/on alfalfa (fresh), 44.5 ppm in/on alfalfa hay, 4.0 ppm in/on globe artichokes, 0.32 ppm in/on cauliflower, 42.6 ppm in/on corn forage, 27.1 ppm in/on field and sweet corn stover, 0.26 ppm in/on eggplant, 0.48 ppm in/on horseradish, 4.9 ppm in/on mushrooms, 0.92 ppm in/on peaches, <0.02 ppm in/on pears and apples, 0.47 in/on bell peppers, 1.27 ppm in/on squash, 0.52 ppm in/on cucumbers and 1.2 ppm in/on melons (where squash, cucumber and melon are representative of the vegetable cucurbit group 9); the Agency determined that the tolerance should be decreased to 20.0 ppm in/on alfalfa, forage; 45 ppm in/on alfalfa, hay; 5.0 ppm in/on artichoke, globe; 0.50 ppm in/on cauliflower; 0.50 ppm in/on eggplant; 0.5 ppm in/on horseradish; 5.0 ppm in/on mushroom; 0.50 ppm in/on pepper, bell; 1.0 ppm in/on peach; 0.05 ppm in/on fruit, pome, group 11 (in place of individual apple and pear tolerances); 1.50 ppm in/on vegetable, cucurbit, group 9. The Agency also determined that the tolerances should be decreased and separated (by field, sweet, and pop varieties) for corn, forage; and corn, stover as follows: 50 ppm in/on corn, field, forage; 50 ppm in/on corn, sweet, forage; 30 ppm in/on corn, field, stover; 30 ppm in/on corn, pop, stover; and 30 ppm in/on corn, sweet, stover. Therefore, EPA proposes decreasing and revising tolerances in newly revised 40 CFR 180.378(a) for the combined permethrin residues of concern in/on alfalfa, forage from 25.0 to 20 ppm; alfalfa, hay from 55.0 to 45 ppm; artichoke, globe from 10.0 to 5.0 ppm; cauliflower from 1.0 to 0.50 ppm; corn, forage from 60.0 ppm to corn, field, forage at 50 ppm and corn, sweet, forage at 50 ppm; corn, stover at 60.0 ppm to corn, field, stover at 30 ppm and corn, pop, stover at 30 ppm and corn, sweet, stover at 30 ppm; eggplant from 1.0 to 0.50 ppm; horseradish from 1.0 to 0.50 ppm; mushroom from 6.0 to 5.0 ppm; pepper, bell from 1.0 to 0.5 ppm; peach from 5.0 to 1.0 ppm; apple at 0.05 ppm and pear at 3.0 ppm to fruit, pome, group 11 at 0.05 ppm; vegetable, cucurbit, group 9 from 3.0 to 1.50 ppm.

Based on a cattle/ruminant feeding study (at 10 and 50 ppm) and the maximum theoretical dietary burden (MTDB) of 40.3 ppm for dairy cattle, the maximum expected residues of permethrin would be 0.088 ppm in whole milk (2.20 ppm in milk fat), 0.064 ppm in meat, 0.88 ppm in fat, and 0.048 ppm in meat byproducts, the Agency determined the tolerances should be 1.5 ppm for cattle, goat, horse, and sheep fat; 0.10 ppm for cattle, goat, horse, and sheep meat; 0.10 ppm for cattle, goat, horse, and sheep meat byproducts; and 3.0 ppm for milk, fat. A hog feeding study is not available; however, the maximum potential residues resulting from dietary exposure can be estimated for hogs using data from the above ruminant feeding study. The 10 ppm feeding level in the cattle feeding study is equivalent to 167x the MTDB for swine. The maximum expected residues for permethrin in hogs would be <0.01 ppm in meat, meat byproducts, and in fat; therefore, the Agency has determined the tolerances should be 0.05 ppm for hog fat, meat and meat byproducts. Based on poultry feeding studies and the MTDB of 4.05 ppm and 11 ppm for poultry, the maximum potential residues of permethrin would be 0.025 ppm in eggs; <0.01 ppm in liver; 0.009 ppm in muscle; and 0.25-0.30 ppm in fat, the Agency determined the tolerances should be 0.10 ppm for egg and 0.05 ppm for poultry meat byproducts. Therefore, EPA proposes decreasing and modifying tolerances in newly revised 40 CFR 180.378(a) for the combined permethrin residues of concern in/on cattle, fat from 3.0 to 1.50 ppm; cattle, meat from 0.25 to 0.10 ppm; cattle, meat byproducts from 2.0 to 0.10 ppm; egg from 1.0 to 0.10 ppm; goat, fat from 3.0 to 1.50 ppm; goat, meat from 0.25 to 0.10 ppm; goat, meat byproducts from 2.0 to 0.10 ppm; hog, fat from 3.0 to 0.05 ppm; hog, meat from 0.25 to 0.05 ppm; hog, meat byproducts from 3.0 to 0.05 ppm; horse, fat from 3.0 to 1.50 ppm; horse, meat from 0.25 to 0.10 ppm; horse, meat byproducts from 2.0 to 0.10 ppm; milk, fat (reflecting 0.25 ppm in whole milk) from 6.25 to milk, fat (reflecting 0.88 ppm in whole milk) at 3.0 ppm; poultry, meat byproducts from 0.25 to 0.05 ppm; sheep, fat from 3.0 to 1.50 ppm; sheep, meat from 0.25 to 0.10 ppm; and sheep, meat byproducts from 2.0 to 0.10 ppm.

Based on available field trial data that indicate residues of permethrin as high as 11.27 ppm in/on collards, 8.25 ppm in/on turnip greens and 0.12 ppm in/on turnip roots, the Agency determined that the tolerance should be decreased to 15 ppm in/on collards; 10 ppm in/on turnip, greens; and 0.20 ppm in/on turnip, roots. Therefore, EPA proposes decreasing and revising tolerances in newly revised 40 CFR 180.378(c) for the combined permethrin residues of concern in/on collards from 20 to 15 ppm; turnip, greens from 20 ppm to turnip, tops at 10 ppm; and turnip, roots from 1 to 0.20 ppm. EPA also proposes recodifying and revising grass, range at 15 ppm in newly revised 40 CFR 180.378(a) to 40 CFR 180.378(c) as grass, hay at 15 ppm and grass, forage at 15 ppm.

Based on available field trial data that indicate residues of permethrin as high as 1.24 ppm in/on asparagus, 1.76 ppm in/on broccoli, and 3.94 ppm in/on cherries, the Agency determined that the tolerance should be increased to 2.0 ppm in/on asparagus, 2.0 ppm in/on broccoli, and 4.0 ppm in/on cherry. Therefore, EPA proposes increasing and revising tolerances in newly revised 40 CFR 180.378(a) for the combined permethrin residues of concern in/on asparagus from 1.0 to 2.0 ppm; broccoli from 1.0 to 2.0 ppm; and cherry from 3.0 to cherry, sweet at 4.0 ppm and cherry, tart at 4.0 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Based on available field trial data that indicate residues of permethrin as high as 4.0 ppm in/on celery, the Agency has determined the individual tolerance on celery should be replaced with the leaf petioles subgroup 4B at 5.0 ppm. Based on available data that indicate residues of permethrin as high as 0.386 ppm in/on aspirated grain fractions, the Agency has determined the tolerance should be established for grain, aspirated fractions at 0.50 ppm. Therefore, EPA proposes establishing the tolerance in newly revised 40 CFR 180.378(a) for the combined permethrin residues of concern in/on grain, aspirated fractions at 0.50 ppm and revising from celery to leaf petioles subgroup 4B at 5.0 ppm.

EPA is also modifying commodity terminology to conform to current Agency administrative practice; therefore, the Agency proposes revising the terminology for tolerances in newly revised 40 CFR 180.378(a) for the combined residues of the insecticide permethrin [(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate] and its cis- and trans-isomers in/on corn, grain to corn, field, grain and corn, pop, grain; filbert to hazelnut; onion, dry bulb to onion, bulb; garlic to garlic, bulb; and soybean to soybean, seed.

The proposed tolerance actions herein for permethrin, to implement the recommendations of the permethrin RED, reflect use patterns in the U.S. which support a different tolerance than the Codex level on pome fruit, asparagus, eggplant, cherries, peaches, bell peppers, and meats of cattle, goats, hogs, horses, sheep and poultry because of differences in good agricultural practices and determination of secondary residue levels in livestock commodities. However, compatibility currently exists with potatoes and soybean seed, and will exist between the proposed reassessed U.S. tolerances and Codex MRLs for permethrin residues in or on broccoli, cauliflower, eggs, and horseradish.

9. Dimethipin. The available animal feeding study data reflecting exaggerated dosing levels indicate that there is no expectation of finite residues (category 3 of 40 CFR 180.6(a)(3)) in the fat, meat, and meat byproducts of cattle, goats, hogs, horses, and sheep so that a tolerance is not necessary for the fat, meat and meat byproducts of cattle, goats, hogs, horses, and sheep and should be revoked. However, the Agency has decided to retain the tolerances in the meat and meat byproducts of cattle, goats, hogs, horses, and sheep solely to harmonize with Codex MRLs. Therefore, the Agency has determined to retain and decrease the tolerances from 0.02 to 0.01 ppm in meat and meat byproducts of cattle, goats, hogs, horses, and sheep to harmonize with current Codex MRLs (which were reduced from 0.02 ppm to 0.01 ppm since publication of the RED). Therefore, EPA proposes revoking the tolerances in 40 CFR 180.406(a) for dimethipin residues of concern in or on cattle, fat at 0.02 ppm; goat, fat at 0.02 ppm; hog, fat at 0.02 ppm, horse, fat at 0.02 ppm and sheep fat at 0.02 ppm and decreasing the tolerances in/on cattle, meat from 0.02 to 0.01 ppm; cattle, meat byproducts from 0.02 to 0.01 ppm; goat, meat from 0.02 to 0.01 ppm; goat, meat byproducts from 0.02 to 0.01 ppm; hog, meat from 0.02 to 0.01 ppm; hog, meat byproducts from 0.02 to 0.01 ppm; horse, meat from 0.02 to 0.01 ppm; horse, meat byproducts from 0.02 to 0.01 ppm; sheep, meat from 0.02 to 0.01 ppm; and sheep, meat byproducts from 0.02 to 0.01ppm.

Tolerances are currently established on cotton, undelinted seed at 0.05 ppm and cotton, hulls at 0.7 ppm. Because the processing data for cotton, hulls indicate an average concentration factor of 0.95x, tolerances for cotton, hulls are not necessary since residues do not concentrate and the tolerance for cotton, undelinted seed will cover residues on cotton hulls. Therefore, EPA is proposing to revoke the tolerances in 40 CFR 180.406(a) for dimethipin residues of concern in/on cotton, hulls at 0.7 ppm.

Currently, the Codex MRLs and U.S. tolerances for dimethipin are not harmonized in/on cotton seed and cotton seed oil because of differences in good agricultural practices. However, the proposed tolerance actions herein to implement the dimethipin RED will harmonize U.S. tolerances and Codex MRLs in or on meat and meat byproducts of cattle, goats, hogs, horses and sheep.

10. Fenarimol. Currently, the tolerance in 40 CFR 180.421(a) for residues of fenarimol in/on apple is 0.1 ppm (September 15, 2006, 71 FR 54423) (FRL-8077-9). The Codex MRL is 0.3 ppm. EPA proposes increasing the tolerances in 40 CFR 180.421(a) for residues of fenarimol in/on apple from 0.1 to 0.3 ppm in order to harmonize with Codex in response to concerns raised by the Chinese after publication of the September 15, 2006 Federal Register rulemaking. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

11. Fomesafen. Currently, the tolerance in 40 CFR 180.433(a) for residues of fomesafen in/on bean, dry and bean, snap, succulent are each 0.025 ppm (May 3, 2006 (71 FR 25945) (FRL-8062-6). The Canadian MRL is 0.05 ppm bean, dry and bean, snap, succulent. EPA proposes increasing the tolerances in 40 CFR 180.433(a) for residues of fomesafen in/on bean, dry and bean, snap, succulent from 0.025 to 0.05 ppm in order to harmonize with the Canadian MRLs in support of North American Free Trade Agreement (NAFTA). The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

A “tolerance” represents the maximum level for residues of pesticide chemicals legally allowed in or on raw agricultural commodities and processed foods. Section 408 of FFDCA, 21 U.S.C. 346a, as amended by the FQPA of 1996, Public Law 104-170, authorizes the establishment of tolerances, exemptions from tolerance requirements, modifications in tolerances, and revocation of tolerances for residues of pesticide chemicals in or on raw agricultural commodities and processed foods. Without a tolerance or exemption, food containing pesticide residues is considered to be unsafe and therefore “adulterated” under section 402(a) of the FFDCA, 21 U.S.C. 342(a). Such food may not be distributed in interstate commerce (21 U.S.C. 331(a)). For a food-use pesticide to be sold and distributed, the pesticide must not only have appropriate tolerances under the FFDCA, but also must be registered under FIFRA (7 U.S.C. 136 et seq. ). Food-use pesticides not registered in the United States must have tolerances in order for commodities treated with those pesticides to be imported into the United States.

EPA is proposing these tolerance actions to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standard of the Food Quality Protection Act (FQPA). The safety finding determination is discussed in detail in each post-FQPA RED and TRED for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, to meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed and electronic copies of the REDs and TREDs are available as provided in Unit II.A.

EPA has issued post-FQPA REDs for 2,4-D, dodine, DCPA, endothall, ethofumesate, permethrin, and dimethipin, and TREDs for captan, propyzamide, and fenarimol, whose REDs were both completed prior to FQPA. 1 REDs and TREDs contain the Agency's evaluation of the data for these pesticides, including requirements for additional data on the active ingredients to confirm the potential human health and environmental risk assessments associated with current product uses, and in REDs state conditions under which these uses and products will be eligible for reregistration. The REDs and TREDs recommended the establishment, modification, and/or revocation of specific tolerances. RED and TRED recommendations such as establishing or modifying tolerances, and in some cases revoking tolerances, are the result of assessment under the FQPA standard of “reasonable certainty of no harm.” However, tolerance revocations recommended in REDs and TREDs that are proposed in this document do not need such assessment when the tolerances are no longer necessary.

EPA's general practice is to propose revocation of tolerances for residues of pesticide active ingredients on crops for which FIFRA registrations no longer exist and on which the pesticide may therefore no longer be used in the United States. EPA has historically been concerned that retention of tolerances that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States. Nonetheless, EPA will establish and maintain tolerances even when corresponding domestic uses are canceled if the tolerances, which EPA refers to as “import tolerances,” are necessary to allow importation into the United States of food containing such pesticide residues. However, where there are no imported commodities that require these import tolerances, the Agency believes it is appropriate to revoke tolerances for unregistered pesticides in order to prevent potential misuse.

Furthermore, as a general matter, the Agency believes that retention of import tolerances not needed to cover any imported food may result in unnecessary restriction on trade of pesticides and foods. Under section 408 of the FFDCA, a tolerance may only be established or maintained if EPA determines that the tolerance is safe based on a number of factors, including an assessment of the aggregate exposure to the pesticide and an assessment of the cumulative effects of such pesticide and other substances that have a common mechanism of toxicity. In doing so, EPA must consider potential contributions to such exposure from all tolerances. If the cumulative risk is such that the tolerances in aggregate are not safe, then every one of these tolerances is potentially vulnerable to revocation. Furthermore, if unneeded tolerances are included in the aggregate and cumulative risk assessments, the estimated exposure to the pesticide would be inflated. Consequently, it may be more difficult for others to obtain needed tolerances or to register needed new uses. To avoid potential trade restrictions, the Agency is proposing to revoke tolerances for residues on crops uses for which FIFRA registrations no longer exist, unless someone expresses a need for such tolerances. Through this proposed rule, the Agency is inviting individuals who need these import tolerances to identify themselves and the tolerances that are needed to cover imported commodities.

Parties interested in retention of the tolerances should be aware that additional data may be needed to support retention. These parties should be aware that, under FFDCA section 408(f), if the Agency determines that additional information is reasonably required to support the continuation of a tolerance, EPA may require that parties interested in maintaining the tolerances provide the necessary information. If the requisite information is not submitted, EPA may issue an order revoking the tolerance at issue.

When EPA establishes tolerances for pesticide residues in or on raw agricultural commodities, consideration must be given to the possible residues of those chemicals in meat, milk, poultry, and/or eggs produced by animals that are fed agricultural products (for example, grain or hay) containing pesticides residues (40 CFR 180.6). When considering this possibility, EPA can conclude that:

1. Finite residues will exist in meat, milk, poultry, and/or eggs.

2. There is a reasonable expectation that finite residues will exist.

3. There is a reasonable expectation that finite residues will not exist. If there is no reasonable expectation of finite pesticide residues in or on meat, milk, poultry, or eggs, tolerances do not need to be established for these commodities (40 CFR 180.6(b) and (c)).

EPA has evaluated certain specific meat, milk, poultry, and egg tolerances proposed for revocation in this proposed rule and has concluded that there is no reasonable expectation of finite pesticide residues of concern in or on those commodities.

EPA is proposing that modifications, establishment, commodity terminology revisions, and revocation of these tolerances become effective on the date of publication of the final rule in the Federal Register because (1) with respect to the revocations, their associated uses have been canceled for several years and (2) none of the other tolerance actions proposed here are expected to result in adulterated commodities. The Agency believes that with respect to the tolerances proposed for revocation, treated commodities have had sufficient time for passage through the channels of trade. However, if EPA is presented with information that existing stocks would still be available and that information is verified, the Agency will consider extending the expiration date of the tolerance. If you have comments regarding existing stocks and whether the effective date allows sufficient time for treated commodities to clear the channels of trade, please submit comments as described under SUPPLEMENTARY INFORMATION .

Any commodities listed in this proposal treated with the pesticides subject to this proposal, and in the channels of trade following the tolerance revocations, shall be subject to FFDCA section 408(1)(5), as established by FQPA. Under this section, any residues of these pesticides in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of the Food and Drug Administration that:

1. The residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA, and

2. The residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption from a tolerance. Evidence to show that food was lawfully treated may include records that verify the dates when the pesticide was applied to such food.

The tolerance revocations in this proposal are not discriminatory and are designed to ensure that both domestically produced and imported foods meet the food safety standard established by the FFDCA. The same food safety standards apply to domestically produced and imported foods.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international MRLs established by the Codex Alimentarius Commission, as required by section 408(b)(4) of the FFDCA. The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level in a notice published for public comment. EPA's effort to harmonize with Codex MRLs is summarized in the tolerance reassessment section of individual REDs and TREDs, and in the Residue Chemistry document which supports the RED and TRED, as mentioned in Unit II.A. Specific tolerance actions in this proposed rule and how they compare to Codex MRLs (if any) are discussed in Unit II.A.

In this proposed rule, EPA is proposing to establish tolerances under FFDCA section 408(e), or also modify and revoke specific tolerances established under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions (e.g., establishment and modification of a tolerance and tolerance revocation for which extraordinary circumstances do not exist) from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this proposed rule has been exempted from review under Executive Order 12866 due to its lack of significance, 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). This proposed rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any other Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the Agency previously assessed whether establishment of tolerances, exemptions from tolerances, raising of tolerance levels, expansion of exemptions, or revocations might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. These analyses for tolerance establishments and modifications, and for tolerance revocations were published on May 4, 1981 (46 FR 24950) and on December 17, 1997 (62 FR 66020), respectively, and were provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticides listed in this proposed rule, the Agency hereby certifies that this proposed action will not have a significant negative economic impact on a substantial number of small entities. In a memorandum dated May 25, 2001, EPA determined that eight conditions must all be satisfied in order for an import tolerance or tolerance exemption revocation to adversely affect a significant number of small entity importers, and that there is a negligible joint probability of all eight conditions holding simultaneously with respect to any particular revocation. (This Agency document is available in the docket of this proposed rule). Furthermore, for the pesticides named in this proposed rule, the Agency knows of no extraordinary circumstances that exist as to the present proposal that would change EPA's previous analysis. Any comments about the Agency's determination should be submitted to EPA along with comments on the proposal, and will be addressed prior to issuing a final rule. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposed rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this proposed rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This proposed rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this proposed rule.

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 change their programs and ask EPA to authorize the changes. Changes 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.

We conclude that Ohio's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we propose to grant Ohio final authorization to operate its hazardous waste program with the changes described in the authorization application. Ohio has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Ohio, including issuing permits, until the State is granted authorization to do so.

The effect of this decision is that a facility in Ohio subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Ohio has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

1. Do inspections, and require monitoring, tests, analyses or reports

2. Enforce RCRA requirements and suspend or revoke permits

3. Take enforcement actions regardless of whether the State has taken its own actions

This action does not impose additional requirements on the regulated community because the regulations for which Ohio is being authorized by today's action are already effective, and are not changed by today's action.

If EPA receives comments that oppose this authorization, we will address all public comments in a later Federal Register . You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

Ohio initially received final authorization on June 28, 1989, effective June 30, 1989 (54 FR 27170) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on April 8, 1991, effective June 7, 1991 (56 FR 14203) as corrected June 19, 1991, effective August 19,1991 (56 FR 28088); July 27, 1995, effective September 25, 1995 (60 FR 38502); October 23, 1996, effective December 23, 1996 (61 FR 54950); January 24, 2003, effective January 24, 2003 (68 FR 3429); and January 20, 2006, effective January 20, 2006 (71 FR 3220).

On January 22, 2007, Ohio submitted a final complete program revision application, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make a final decision, subject to receipt of written comments that oppose this action, that Ohio's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we propose to grant Ohio final authorization for the following program changes:

This is a summary of the Commission's Second Further Notice of Proposed Rulemaking (Second FNPRM), FCC 07-71, adopted on April 25, 2007, and released on May 4, 2007. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS ( http://www.fcc.gov/cgb/ecfs/ ). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

The NPRM seeks comment on potential information collection requirements. The Commission will invite the general public to comment at a later date on any rules developed as a result of this proceeding that require the collection of information, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. The Commission will publish a separate notice seeking these comments from the public. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we will seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

1. In this Second Further Notice of Proposed Rulemaking (“Second FNPRM”) , we address issues concerning the carriage of digital broadcast television signals after the conclusion of the digital television (“DTV”) transition. Section 614(b)(4)(B) of the Communications Act of 1934, as amended (the “Act”), directs the Commission to revise the mandatory signal carriage rules to reflect changes necessitated by the transition from analog to digital broadcasting. We believe that this Second FNPRM is warranted at this time in light of the recently established deadline for the end of analog broadcasts by full-power television licensees. Further, addressing these issues now will provide digital broadcasters and cable operators with adequate time to prepare to comply with any rules that we adopt.

2. In this Second FNPRM , we seek comment on the post-transition obligations of cable operators under Sections 614 (establishing mandatory carriage rights for local commercial television stations) and 615 (establishing mandatory carriage rights for noncommercial educational television stations) of the Communications Act of 1934, as amended (the “Act”).

3. First, we remind industry of our 2001 decision regarding material degradation (67 FR 17015-01): A broadcast signal delivered in HDTV [high-definition television] to a cable system must be carried by that system in HDTV. In addition, we seek comment on exactly what constitutes material degradation.

4. Furthermore, we address the statutory requirement that cable operators must make the signal transmitted by a broadcaster electing mandatory carriage viewable by all of their subscribers, and seek comment on how cable operators can implement this requirement after the end of analog broadcasting on February 17, 2009. Specifically, we propose that cable operators must comply with this “viewability” provision and ensure that cable subscribers with analog television sets are able to continue to view all must-carry stations after the end of the DTV transition by either: (1) Carrying the digital signal in analog format, or (2) carrying the signal only in digital format, provided that all subscribers have the necessary equipment to view the broadcast content. In the absence of such a requirement, analog cable subscribers (currently about 50% of all cable subscribers, or approximately 32 million households; Kagan reports that as of June 2006, there were 65.3 million cable subscribers) would no longer be able to view commercial must-carry stations or non-commercial stations after February 17, 2009. We believe such an outcome would adversely impact the DTV transition and would unduly burden millions of consumers.

5. In interpreting both of these statutory provisions, we are mindful of the need to minimize the burden imposed upon consumers by the end of analog broadcasting in order to facilitate the successful and timely conclusion of the DTV transition. The prohibition against material degradation ensures that cable subscribers who invest in a HDTV are not denied the ability to view broadcast signals transmitted in this improved format. The requirement that cable operators make must-carry stations viewable by all cable subscribers ensures that analog cable subscribers, who today are able to view all of their broadcast stations, do not lose access to those stations as a result of the switch to digital-only broadcasting.

6. Pursuant to Section 614(b)(4)(B) of the Act, the Commission initiated this proceeding in 1998 to address the responsibilities of cable television operators with respect to carriage of digital broadcasters in light of the significant changes to the broadcasting and cable television industries resulting from the conversion to digital operations; 63 FR 42330-01.

7. In the 2001 First Report and Order , the Commission concluded that broadcasters operating digital-only television stations are entitled to mandatory carriage under the Act. In an effort to support the ultimate conversion of digital broadcast signals and facilitate the return of the analog spectrum, the Commission also decided to permit a digital-only station, on an interim basis, to “demand that one of its HDTV [high-definition television] or SDTV [standard-definition television] signals be carried on the cable system for delivery to subscribers in an analog format.”

8. Now that Congress has established February 17, 2009 as the date certain for the end of analog broadcasts by full-power television licensees, we believe that the time has come for us to address the post-transition carriage responsibilities of cable operators under Sections 614 and 615—particularly in light of the fact that there will continue to be a large number of cable subscribers with legacy, analog-only television sets after the end of the DTV transition. This will be the case despite the steady rise in DTV display sales over the last several years.

9. As discussed below, the Communications Act requires that cable systems provide mandatory-carriage signals without material degradation and ensure that all subscribers can receive and view those signals. This Second FNPRM proposes to provide more detail on the material degradation requirements adopted by the Commission in 2001 and offers for comment two proposals for ensuring that cable subscribers with analog television sets can continue to view all must-carry stations after the end of the DTV transition. It also seeks comment on other issues that would be directly implicated by the proposals.

10. The Communications Act requires (1) cable operators to carry local broadcast signals “without material degradation,” and (2) the Commission to “adopt carriage standards to ensure that, to the extent technically feasible, the quality of signal processing and carriage provided by a cable system for the carriage of local commercial television stations will be no less than that provided by the system for carriage of any other type of signal.” As noted above, Section 614(b)(4)(B) of the Act directs the Commission “to establish any changes in the signal carriage requirements of cable television systems necessary to ensure cable carriage of such broadcast signals of local commercial television stations which have been changed” as a result of the transition from analog to digital broadcasting.

11. In the 1998 NPRM , we solicited comments to determine the extent to which this provision precludes cable operators from altering a digital broadcast station signal when the transmission is processed at the system headend or in customer premises equipment. Some broadcasters argued that a digital signal would be materially degraded if it were not transmitted to the viewer in the format that the broadcaster intended. Other broadcasters sought to preclude cable operators from blocking or deleting any of the bits constituting the broadcast material. The First Report and Order concluded that cable operators are required to ensure that consumers with DTV equipment ( e.g. , Digital-Cable-Ready sets or DTV-ready sets connected to an HDTV digital cable set-top box) are able to view the digital signal in its original format— e.g. , in high definition (“HD”) if delivered by the broadcaster in HD.

12. As noted above, we previously determined in the First Report and Order that a broadcast signal delivered to the cable headend in HD must be carried in HD in order to comply with the prohibition on material degradation. We continue to require such carriage and reiterate that requirement. We now propose revisions to the material degradation requirements set forth in the First Report and Order with respect to carriage of bits in the broadcast signal. Specifically, we propose to move from a subjective to objective measure. For instance, we seek comment on whether we should require that all primary video and program-related content bits transmitted by the broadcaster (the “content bits”) be carried to avoid material degradation. Alternatively, we seek comment on whether the Commission's existing non-discrimination requirement is a better objective test for material degradation. In the First Report and Order , the Commission prohibited cable operators from treating cable programming services more favorably than broadcast signals for purposes of material degradation. We seek comment on the application of the existing or a new non-discrimination rule in this context. We also seek comment on how to verify that cable operators are abiding by this requirement. Should we identify specific measurement tools? If so, what should those measurement tools be? We also request comment and specific estimates regarding the costs of compliance with this proposal, particularly with respect to small cable operators, and whether there are alternative means that would minimize the economic impact for small cable operators while still complying with the statutory requirements. As noted in the First Report and Order , it may be especially burdensome for small systems with limited channel capacity (such as systems with fewer than 330 MHz) to carry an HDTV signal if they are not otherwise providing HDTV programming. Therefore, if a small system that is not otherwise carrying any HDTV signals is required to carry a broadcast signal in HDTV, such that the signal straddles two 6 MHz channels ( i.e. , if they are passing through the broadcaster's 8-VSB modulated signal), the system may include all of the lost spectrum when calculating its one-third capacity for purposes of the statutory cap.

13. Our option of carrying all content bits is responsive to the Petitions for Reconsideration filed in this docket in which broadcasters requested that we require cable operators to carry “the entire qualified digital bit stream of each station in the format in which the broadcaster originally transmitted it.” It also is consistent with the requests for clarification made by the Broadcast Group and the Noncommercial Broadcasters that the material degradation requirements “ensure that cable subscribers do not receive DTV service, including HDTV, that is inferior in quality to the service available over the air.” In addition, by seeking comment on measurement tools, this option is responsive to broadcast commenters' concern that the material degradation standard adopted in the First Report and Order did not provide an objective way to evaluate material degradation.

14. We request comment on this option. We specifically request comment on how cable operators are to distinguish between bits with content and so-called “null bits” (so-called “null bits” need not be passed through or included in the signal as carried, as they are, as the name implies, empty of any content), and whether material degradation could result from failure to carry these empty bits. We also recognize that bandwidth-conserving techniques commonly are used by cable operators to improve efficiency. Is there a way to permit the use of improved compression, statistical multiplexing, rate shaping (Rate shaping “describes bit rate adaptation techniques applied to MPEG-2 encoded streams, to further enhance bandwidth efficiency. This technique can substitute for decoding-encoding operations that are expensive, space consuming and ultimately harmful to content quality”), or other techniques that would not result in prohibited material degradation?

15. We further seek comment on whether, under the option of carrying all content bits, a cable operator that wishes to reduce the number of content bits in a digital broadcast signal first must demonstrate to the broadcaster that such reduction will not result in material degradation. In doing so, how might the cable operator demonstrate that, although not all of the content bits are being carried, the content will not be degraded in a material way? Would it be necessary and/or sufficient for the cable operator to demonstrate that the broadcast station's digital signal carriage does not differ from other broadcast or non-broadcast programmers? (We note that this latter comparison also would ensure that cable operators do not discriminate against some or all broadcast content as compared with non-broadcast content.) We seek comment on whether, under these circumstances, the cable operator must continue to pass through all of the content bits until an agreement has been reached with the broadcast station to permit the reduction in the number of bits. Similarly, we seek comment on a rule that when a broadcast station files a carriage complaint concerning material degradation, the cable operator must pass through all of the content bits during the pendency of the complaint. The Commission is required to resolve carriage complaints within 120 days after the filing of a complaint. In situations where negotiations between cable operators and broadcasters reach an impasse, cable operators may notify the station in writing of that fact and the station will then have 30 days from receipt of the letter to file a complaint with the Commission in order to preserve its claim. We seek comment on these options and on the procedures and mechanisms for cable operators and stations to engage in such discussions short of filing a carriage complaint with the Commission.

16. Pursuant to Sections 614 and 615 of the Act, cable operators must ensure that all cable subscribers have the ability to view all local broadcast stations carried pursuant to mandatory carriage. Specifically, Section 614(b)(7) (for commercial stations) states that broadcast signals that are subject to mandatory carriage must be “viewable via cable on all television receivers of a subscriber which are connected to a cable system by a cable operator or for which a cable operator provides a connection.” Similarly, Section 615(h) for noncommercial stations states that “Signals carried in fulfillment of the carriage obligations of a cable operator under this section shall be available to every subscriber as part of the cable system's lowest priced tier that includes the retransmission of local commercial television broadcast signals.” These statutory requirements plainly apply to cable carriage of digital broadcast signals, and, as a consequence, cable operators must ensure that all cable subscribers—including those with analog television sets—continue to be able to view all commercial and non-commercial must-carry broadcast stations after February 17, 2009. Analog-only television sets plainly qualify as “television receivers” under Section 614(b)(7) at the present time, and we think that it is eminently reasonable to conclude that they will continue to fall within the scope of that term as it is used in Section 614(b)(7) after the transition. Below we seek comment on how to implement this statutory requirement. We note that all cable subscribers today are able to view all of their must-carry stations, and we believe that it is critical to the successful and timely conclusion of the DTV transition that they are not disenfranchised by the switch to digital-only broadcasting. We therefore are mindful of the need to minimize the burden imposed on consumers, including cable subscribers with analog television sets, by the end of the DTV transition.

17. To achieve compliance with the viewability requirement of Sections 614(b)(7) and 615(h) after the end of the DTV transition, we propose that, in order to ensure that subscribers with analog television sets remain able to view all local broadcast television stations electing mandatory carriage, cable operators must either: (1) Carry the signals of commercial and non-commercial must-carry stations in analog format to all analog cable subscribers, or (2) for all-digital systems, carry those signals only in digital format, provided that all subscribers with analog television sets have the necessary equipment to view the broadcast content. In the 2001 First Report and Order, the Commission afforded a digital-only station mandatory carriage rights pursuant to Sections 614 and 615, coupled with the option to request that its digital signal be carried on the cable system for delivery to subscribers in an analog format, at the station's expense (a mechanism also referred to as “down-conversion.”). This requirement would be in addition to the requirement that the cable operator pass through the HD signal to cable subscribers of an HD package, as discussed above. We believe that these proposals are consistent with our articulation of carriage requirements in the analog must-carry context, in which the Commission has made clear that mere transmission of the must-carry signal is not sufficient to meet the requirements of Section 614(b)(7). The Commission stated in 1993 that:

18. As we consider these issues, we are cognizant that the ultimate goal of Congress is that every customer should enjoy the benefits of the digital transition. That is, our policies should advance the goal of transitioning all consumers—including cable consumers—to digital. We seek comment on ways to promote this goal within the context of this proceeding. In particular, we seek comment on ways to move cable subscribers from analog to digital in a manner consistent with the statute and consumer expectations.

19. Under the Commission's interim down-conversion policy for digital-only stations during the transition, broadcasters that request carriage of an analog version of their digital signal must pay for the cost of down-conversion. Under the first option set forth in our proposal, however, cable operators themselves would elect to satisfy their obligations under Sections 614 and 615 by carrying a digital signal in analog format to ensure that the signal is viewable by all subscribers. Given the circumstances, should cable operators be responsible for any expense associated with down-conversion?

20. Finally, we note that, in the First Report and Order, the Commission concluded “not to require a cable operator to provide subscribers with a set top box capable of processing digital signals for display on analog sets.” That decision, however, was premised on factual considerations that will not apply in a post-transition environment. Specifically, the Commission was reluctant to require cable subscribers to obtain such equipment because the content available on the digital signal likely would have been identical to analog programming to which subscribers already had access. In that same vein, the Commission pointed out that the obligation to simulcast—which later was eliminated—weighed against requiring the provision of equipment necessary to view a digital signal. However, given that our proposal here would apply to the carriage of digital signals after the end of analog broadcasting, we believe that the Commission's 2001 decision is not directly relevant since subscribers with analog sets after the transition will face the prospect of not being able to view the signals of must-carry stations unless they possess the necessary equipment ( i.e. , a Digital-Cable-Ready television set or a digital cable set-top box). Nevertheless, we seek comment on this issue.

21. Ex Parte Rules. This proceeding will be treated as a “permit-but-disclose” proceeding subject to the “permit-but-disclose” requirements under Section 1.1206(b) of the Commission's rules. Ex parte presentations are permissible if disclosed in accordance with Commission rules, except during the Sunshine Agenda period when presentations, ex parte or otherwise, are generally prohibited. Persons making oral ex parte presentations are reminded that a memorandum summarizing a presentation must contain a summary of the substance of the presentation and not merely a listing of the subjects discussed. More than a one- or two-sentence description of the views and arguments presented is generally required. Additional rules pertaining to oral and written presentations are set forth in Section 1.1206(b).

22. Comments and Reply Comments. Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (“ECFS”) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). 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).

23. Comments filed through ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html . Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, U.S. Postal mailing address, and the applicable docket number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message: “get form <your e-mail address>.” A sample form and directions will be sent in reply.

24. Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Natek, Inc., 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 mail, Express Mail, and Priority Mail, should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary: Office of the Secretary, Federal Communications Commission.

25. Availability of Documents. Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. Persons with disabilities who need assistance in the FCC Reference Center may contact Bill Cline at (202) 418-0267 (voice), (202) 418-7365 (TTY), or bill.cline@fcc.gov . These documents also will be available from the Commission's Electronic Comment Filing System. Documents are available electronically in ASCII, Word 97, and Adobe Acrobat. Copies of filings in this proceeding may be obtained from Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554; they can also be reached by telephone, at (202) 488-5300 or (800) 378-3160; by e-mail at fcc@bcpiweb.com ; or via their Web site at http://www.bcpiweb.com . 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 and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

26. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible economic impact on a substantial number of small entities by the policies and rules proposed in this Second Further Notice of Proposed Rulemaking (“Second FNPRM”) . Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Second FNPRM as indicated on the first page of the Order. The Commission will send a copy of the Second FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the Second FNPRM and IRFA (or summaries thereof) will be published in the Federal Register .

27. This Second FNPRM seeks comment on several issues relating to the carriage of digital television broadcast stations after the analog to digital transition. Our goal in this proceeding is to determine how to implement the statutory requirements under Sections 614 (local commercial television station mandatory carriage) and 615 (noncommercial educational television station mandatory carriage) of the Communications Act of 1934, as amended (the “Act”), when digital broadcasters seek mandatory carriage for their digital signal after February 17, 2009, the date established by Congress as to when analog service must cease. We remind industry of our 2001 decision regarding material degradation ( i.e. , that a broadcast signal delivered in HDTV to a cable system must be carried by that system in HDTV). In addition, we seek comment on the proposal that cable operators be required to carry all of the primary video and program-related content bits transmitted by the broadcaster and on the alternative proposal to rely on the existing non-discrimination requirement or a new non-discrimination rule to provide a better objective test for material degradation. We also seek comment on procedures by which cable operators could demonstrate that, although they were not carrying every content bit ( e.g. , through the use of improved compression or other efficiency maximizing techniques), they nevertheless were providing must-carry digital signals without material degradation. The Second FNPRM proposes that cable operators can comply with the “viewability” provisions of Sections 614 and 615 (as discussed in the Second FNPRM ) and ensure that cable subscribers with analog television sets are able to continue to view all must-carry stations after the end of the DTV transition by either: (1) Carrying the digital signal in analog format to ensure that the signal is viewable by all subscribers, or (2) for all-digital systems, carry those signals only in digital format, provided that all subscribers with analog television sets have the necessary equipment to view the broadcast content.

28. The authority for the action proposed in this rulemaking is contained in Sections 1, 4(i) and (j), 614, and 615 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (j), 534, and 535.

29. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules, if adopted. The RFA defines the term “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”). The rules we may adopt as a result of the comments filed in response to this Second Further Notice of Proposed Rulemaking will primarily affect cable operators and television stations. A description of these small entities, as well as an estimate of the number of such small entities, is provided below.

30. Cable and Other Program Distribution. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged as third-party distribution systems for broadcast programming. The establishments of this industry deliver visual, aural, or textual programming received from cable networks, local television stations, or radio networks to consumers via cable or direct-to-home satellite systems on a subscription or fee basis. These establishments do not generally originate programming material.” The SBA has developed a small business size standard for Cable and Other Program Distribution, which is: all such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, under this size standard, the majority of firms can be considered small. We note, however, that the proposals at issue in this Second FNPRM only apply at this time to cable operators, and not other MVPD providers.

31. Cable Companies and Systems. The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. Industry data indicate that, of 1,076 cable operators nationwide, all but eleven are small under this size standard. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Industry data indicate that, of 7,208 systems nationwide, 6,139 systems have under 10,000 subscribers, and an additional 379 systems have 10,000-19,999 subscribers. Thus, under this second size standard, most cable systems are small.

32. Cable System Operators. The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Industry data indicate that, of 1,076 cable operators nationwide, all but ten are small under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore we are unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard.

33. Television Broadcasting. The proposed rules and policies apply to digital television broadcast licensees, and potential licensees of digital television service. The SBA defines a television broadcast station as a small business if such station has no more than $13 million in annual receipts. Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.” According to Commission staff review of the BIA Publications, Inc. Master Access Television Analyzer Database (BIA) on October 18, 2005, about 873 of the 1,307 commercial television stations (or about 67 percent) have revenues of $12 million or less and thus qualify as small entities under the SBA definition. We note, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies.

34. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent.

35. Other Program Distribution. The SBA-recognized definition of Cable and Other Program Distribution includes other MVPDs, such as HSD, MDS/MMDS, ITFS, LMDS and OVS. This definition provides that a small entity is one with $13.5 million or less in annual receipts. As previously noted, according to the Census Bureau data for 2002, there were a total of 1,191 firms that operated for the entire year in the category of Cable and Other Program Distribution. Of this total, 1,087 firms had annual receipts of under $10 million and an additional 43 firms had receipts of $10 million or more, but less than $25 million. The Commission estimates that the majority of providers in this category of Cable and Other Program Distribution are small businesses.

36. While SBA approval for a Commission-defined small business size standard applicable to ITFS is pending, educational institutions are included in this analysis as small entities. There are currently 2,032 ITFS licensees, and all but 100 of these licenses are held by educational institutions. Thus, the Commission estimates that at least 1,932 ITFS licensees are small businesses.

37. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA has developed a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing, which is: all such firms having 750 or fewer employees. According to Census Bureau data for 2002, there were a total of 1,041 establishments in this category that operated for the entire year. Of this total, 1,010 had employment of under 500, and an additional 13 had employment of 500 to 999. Thus, under this size standard, the majority of firms can be considered small.

38. The Second Further Notice of Proposed Rulemaking seeks comment on statutory interpretations and proposals to address post-transition obligations of cable operators with respect to carriage of digital broadcast signals pursuant to the must carry requirements in the Communications Act. Small cable operators currently have obligations with respect to carriage of local commercial and non-commercial broadcast stations which vary according to the size of the cable system. As with existing statutory and regulatory requirements, small cable operators will need engineering and legal services to comply with the proposed rules. The Second FNPRM reiterates the Commission's 2001 decision regarding material degradation and requests comment on requiring cable operators be required to carry all of the primary video and program-related content bits transmitted by the broadcaster and on an alternative proposal to rely on the existing non-discrimination requirement or a new non-discrimination rule to provide a better objective test for material degradation. The 2001 First Report and Order recognized that the material degradation requirements could impact small cable operators disproportionately and made special provision for such situations. This recognition is retained in the proposals set forth in the Second FNPRM. The Second FNPRM also notes that cable operators must make the primary video and any program-related material transmitted by a digital broadcaster electing mandatory carriage viewable by all of their subscribers and proposes to permit cable operators to comply with the “viewability” provisions by either: (1) Carrying the signals of commercial and non-commercial must-carry stations in analog format to all analog cable subscribers, or (2) for all-digital systems, carry those signals only in digital format, provided that all subscribers with analog television sets have the necessary equipment to view the broadcast content. Small cable operators will need engineering and legal analysis to comply with this proposal. The Second FNPRM seeks comment on the cost of compliance to small cable operators and solicits alternative approaches that would reduce the burden on small cable operators while still complying with statutory requirements. Small broadcast stations will also be affected by the proposed rules and other issues raised in the Second FNPRM, but we do not have any reason to expect that the compliance burden will be any greater than under the existing rules, except that initially, broadcasters may need additional legal services.

39. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. We seek comment on the applicability of any of these alternatives to affected small entities.

40. The requirements proposed in the Second FNPRM are the result of statutory requirements that do not expressly provide exceptions for small entities. Broadcast stations, including small entity stations, are afforded the flexibility to elect mandatory carriage of their digital signal or elect to negotiate carriage with cable systems. The proposals do not contemplate imposing any significant burdens on small television stations, but station licensees and other parties are encouraged to submit comment on the proposals' impact on small television stations. Every effort will be made to minimize the impact of any adopted proposals on cable operators. In this IRFA, we seek comment on whether there is a specific legal basis for affording operators that qualify as small systems special consideration in this regard. We anticipate that more and more cable systems will become all-digital cable systems, thereby minimizing any potential impact that our proposals, if adopted, might have. Finally, we are mindful of the potential concerns of small entities and will, therefore, continue to carefully scrutinize our policy determinations going forward. We invite small entities to submit comment on how the Commission could further minimize potential burdens on small entities if the proposals provided in the Second FNPRM, or those submitted into the record, are ultimately adopted.

41. None.

42. It is ordered that, pursuant to authority contained in Sections 4, 303, 614, and 615 of the Communications Act of 1934, as amended, 47 U.S.C. 154, 303, 534, and 535, this Second Further Notice of Proposed Rulemaking is hereby adopted.

43. It is further ordered that the Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Second Further Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

When we make a finding that substantial information exists to indicate that listing or delisting a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting any additional information, comments, or suggestions on the Bliss Rapids snail from the public, State and Federal agencies, Tribes, the scientific community, industry or environmental entities, or any other interested parties. Information sought includes any data regarding historical and current distribution, biology and ecology, ongoing conservation measures for the species or its habitat, and threats to the species or its habitat. We also request information regarding the adequacy of existing regulatory mechanisms.

Please note that comments merely stating support or opposition to the actions under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species shall be made “solely on the basis of the best scientific and commercial data available.” At the conclusion of the status review, we will issue the 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq. ).

If you wish to comment or provide information, you may submit your comments and materials concerning this finding to the Field Supervisor (see ADDRESSES ) by the date listing in the DATES section.

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the address listed in the ADDRESSES section.

Section 4(b)(3)(A) of the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et seq. ), 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. The finding is based on information contained in the petition and information otherwise available in our files at the time we make the finding. To the maximum extent practicable, we are to make the finding within 90 days of receiving the petition, and publish our notice of the finding in the Federal Register .

This finding summarizes the information included in the petition and information available to us at the time of the petition review. Under section 4(b)(3)(A) of the Act and our regulations in 50 CFR 424.14(b), our review of a 90-day finding is limited to a determination of whether the information in the petition meets the “substantial scientific or commercial information” threshold. Our standard for substantial information 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 information was presented, we are required to promptly commence a review of the status of the species and publish the results of that status review in a 12-month finding.

The Bliss Rapids snail ( Taylorconcha serpenticola ) is found primarily on rocky surfaces in riverine and coldwater spring habitats along a 65-mile (mi) (105 kilometer (km)) stretch of the Snake River in the Hagerman area of southern Idaho (Richards et al. 2006, pp. 34-35). They can be locally abundant in springs and spring habitats (Richards et al. 2006, pp. 37, 99), but when they occur in non spring influenced riverine habitats, it is in low densities (Richards et al. 2006, p 37). They are not known to occur in reservoirs or on organic, fine sediments (Richards et al. 2006, pp. 21, 23-24). The Bliss Rapids snail appears to be a univoltine, meaning it has a 1-year life cycle and the adult population is replaced yearly (Hershler et al. 1994, pp. 239-240); however, they may have more than one reproductive event within a year (Richards 2004, p. 119).

We listed the Bliss Rapids snail as threatened on December 14, 1992 (57 FR 59244). At that time, we determined that the Bliss rapids snail was threatened by construction of new hydropower dams, the operation of existing hydropower dams, degraded water quality, water diversions, the introduced New Zealand mudsnail ( Potamopyrgus antipodarum ), and the lack of existing regulatory protections (57 FR 59244). The Bliss Rapids snail was described as existing in discontinuously distributed populations along 204 river miles (328 river km) in the middle Snake River, being primarily concentrated in the Hagerman reach in tailwaters of Bliss and Lower Salmon Dams and several unpolluted springs (i.e., Thousands Springs, Minnie Miller Springs, Banbury Springs, Niagara Springs, and Box Canyon Springs). We finalized the Snake River Aquatic Species Recovery Plan, which included the Bliss Rapids snail, in 1995 (Service 1995). Critical habitat has not been designated for this species.

On December 26, 2006, we received a petition from the Governor of Idaho and the Idaho Power Company (IPC) requesting that the Bliss Rapids snail be removed from the List. The delisting petition cites a recent status review conducted by Richards et al. (2006), a review of Bliss Rapids snail sampling methodology prepared by Steward & Associates (2006), and information and data submitted to the Service at an August 24, 2006, informational meeting as support for their petition (Idaho 2006 in litt.). The petition clearly identified itself as a petition and included the requisite identification information for the petitioners, as required in 50 CFR 424.14(a). The petition cited information on the natural history of the Bliss Rapids snail, its population status, and advances in our understanding of the species' ecology and threats since listing. The petition states that many of the threats identified in the 1992 listing rule are no longer viable or have been attenuated by subsequent actions. It also states that the Bliss Rapids snail is more abundant, is more continuously distributed, and exists in more diverse habitats than previously recorded.

The factors for listing, delisting, or reclassifying a species are described at 50 CFR 424.11. We may delist a species only if the best scientific and commercial data available substantiate that it is neither endangered nor threatened. Delisting may be warranted as a result of: (1) Extinction, (2) recovery, and/or (3) a determination that the original data used for classification of the species as endangered or threatened were in error.

Section 4(a)(1) of the Act requires that we determine whether a species is endangered or threatened based on one or more of the five following factors: (A) Present or threatened destruction, modification, or curtailment of habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) 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 presented in the December 2006 petition, when considered along with information in our files, constitutes substantial scientific or commercial information such that delisting may be warranted. Our evaluation of this information is presented below.

Petitioners claim that Bliss Rapids snails are able to live in a variety of habitats previously thought to be unsuitable for the species, including reservoirs, based primarily on a status report by Richards et al. (2006). Richards et al. (2006, p. 3) reviewed the available information on Bliss Rapids snail collections and reported that the species has been found in areas of the Snake River that do not have known spring influence. However, the likelihood of Bliss Rapids snail occurrence decreased with increasing temperature in riverine habitats (Richards et al. 2006, p. 42), and the highest mean density for the spring-influenced habitat in the Snake River was 307.2 snails per meter-squared (m 2 ), compared to the highest mean density in non spring influenced habitat of 11.7 snails per m 2 (Richards et al. 2006, p. 37). Richards et al. (2006, p. 54) also reported that more Bliss Rapids snails were found in shallow depths than in deeper ones. Of 607 samples taken in the 3 reservoirs within the range of the Bliss Rapids snail, none contained Bliss Rapids snails (Richards et al. 2006, pp. 38-39), and, therefore, the Richards et al. (2006) study does not support the petitioners' claim that reservoirs are suitable habitat. Their absence from reservoirs and areas of organic, fine sediments suggests that this species may be limited to aerobic substrates flushed by moving water (Richards et al. 2006, p. 23).

At the time of listing, in 1992, we stated that: “Bliss Rapids snails occur on stable, cobble-boulder substratum only in flowing waters in the unimpounded reaches of [the] mainstem Snake River and also in a few spring alcove habitats in the Hagerman Valley. The species does not burrow in sediments and normally avoids surfaces with attached plants. Known river populations (or colonies) of the Bliss Rapids snail occur only in areas associated with spring influences or rapids edge environments and tend to flank shorelines. They are found at varying depths if dissolved oxygen and temperature requirements persist and are found in shallow (< 1 cm (.4 in)) permanent cold springs (Frest and Johannes 1992a)” (57 FR 59245).

Information in our files suggests that populations are consistently larger, at least in terms of density and relative abundance, in coldwater springs and spring-fed tributaries compared to mainstem Snake River locations (Stephenson and Bean 2003, p. 12; Stephenson et al. 2004, pp. 14, 24; Clark et al. 2005, pp. 7, 46-47; Richards et al. 2006, pp. 37-38, 97-99), and the likelihood of Bliss Rapids snail occurrence decreases with increasing water temperature in riverine habitats (Richards et al. 2006, p. 42).

Based on information presented by the petitioner, along with information in our files, most of the basic habitat requirements for Bliss Rapids snails are reaffirmed. Current information documents the occurrence of low densities of Bliss Rapids snails in Snake River reaches without obvious spring influence (based on visual inspection). The petitioners' claim that Bliss Rapids snails can live in reservoirs is not supported by the information provided. In fact, data provided by the petitioner strongly suggest that reservoirs do not provide suitable habitat for the species and likely impede metapopulation connectivity (Richards et al. 2006, pp. 38-39, p. 119).

The petitioners claim that the species is more widely distributed than previously known. They provided a status report by Richards et al. (2006) as the primary source of information to support their claim. Richards et al. (2006, pp. 33-34) found that, as of 2006, the Bliss Rapids snail was documented at 837 collection points in the free-flowing mid-Snake River, as compared with less than 15 collection points at the time of listing. Richards et al. (2006, pp. 119, 123) also state that Bliss Rapids snails exist as possibly 27 discontinuous populations along the Snake River, including 5 within river habitats and 22 in spring or spring-influenced habitats. Richards et al. (2006, pp. 34-35) state that Bliss Rapids snails were recorded in every one of the 22 non-reservoir miles (35 km) from River Mile (RM) 547.7, upstream to the head of Upper Salmon Falls Reservoir at RM 589.2 (a distance of 41.5 river miles (66.8 river km)). A total of 19.5 of those 41.5 river miles (31.4 of those 66.8 river km) are in-reservoir habitat, and therefore are not suitable for Bliss Rapids snails.

At the time of listing we stated that: “Based on live collections, the species currently exists as discontinuously distributed populations over 204 river miles within its historic range. These populations are primarily concentrated in the Hagerman reach in tailwaters of Bliss and Lower Salmon Dams and several unpolluted springs (i.e., Thousand Springs, Minnie Miller Springs, Banbury Springs, Niagara Springs, and Box Canyon Springs)” (57 FR 59245).

Information in our files now suggests that the farthest upstream population noted in the listing rule (i.e., the observation above American Falls at RM 749.8 (57 FR 59243)) may have been in error. Several factors, when considered together, support this conclusion: (1) The reported observation is 151 river miles (243 river km) away from the nearest confirmed location of the Bliss Rapids snail (i.e., Niagara Springs at RM 599), (2) the vouchered specimen cannot be located, and (3) hundreds of samples for snails have been collected in and above American Falls Reservoir since the reported collection without further evidence of the species at that location.

Given the information provided by the petitioner and other information in our files, we now know the Bliss Rapids snail to be distributed discontinuously over approximately 65 river miles (105 river km), rather than over 204 river miles (328 river km), as we stated in the listing rule (57 FR 59243). However, if we discount the observation above American Falls, which we now believe to be unreliable, the species is more widely and more continuously distributed than previously thought (Richards et al. 2006, p. 28).

The petition states that threats to Bliss Rapids snail habitat from future hydro-power development are not as they were perceived when the species was listed in 1992. The petitioners provided the following documents as evidence that hydropower permits are no longer moving forward: (1) A 2002 notice of surrender of preliminary permit for the River Side Project (Federal Energy Regulatory Commission (FERC) 2002), (2) 2002 Federal Energy Regulatory Commission (FERC) orders denying application for preliminary permits for the Eagle Rock and Star Falls Hydroelectric Projects (FERC 2002a, 2002b), and (3) a 2003 notice of surrender of preliminary permit for the Auger Falls Project (FERC 2003). The petitioners also provided documents from the State of Idaho (Idaho 2006) and Richards et al. (2006) indicating that all recent permits for the construction of new dams along the Mid-Snake River reach where the Bliss Rapids snail occurs have either lapsed or have been denied by the FERC.

At the time of listing, there were six active proposals for new hydroelectric projects in the middle-Snake River. In our listing rule, we stated: “Six proposed hydroelectric projects, including two high dam facilities, would alter free flowing river reaches within the existing range of [the Bliss Rapids snail]. Dam construction threatens the [Bliss Rapids snail] through direct habitat modification and moderates the Snake River's ability to assimilate point and non-point pollution. Further hydroelectric development along the Snake River would inundate existing mollusk habitats through impoundment, reduce critical shallow, littoral shoreline habitats in tailwater areas due to operating water fluctuations, elevate water temperatures, reduce dissolved oxygen levels in impounded sediments, and further fragment remaining mainstem populations or colonies of these snails” (57 FR 59251).

We have no information in our files suggesting that future hydropower development in the middle-Snake River is likely to occur; therefore, we accept the petitioner's claim that the threats from hydropower development have dissipated since the time of listing.

The status report provided by the petitioner (Richards et al. 2006) states that threats to Bliss Rapids snail habitat from the operation of hydropower dams (i.e., peak loading) are not as they were perceived when the species was listed in 1992. Richards et al. (2006, p. 92) state that free-flowing Bliss Rapids snail habitat downstream of the dams is improved because fine sediments settle in the reservoirs above the dams, resulting in reduced fine sediments and increased rocky substrates, the preferred habitat of the Bliss Rapids snail, downstream of the dam. They also state that rapid changes in flow below hydropower dams have not eliminated Bliss Rapids snails from shallow shoreline areas; on the contrary, highest densities of riverine Bliss Rapids snail populations directly below hydropower dams occurred in the zones of highest flow fluctuations (Richards et al. 2006, p. 92).

Richards et al. (2006) cite a laboratory exposure study (Richards 2006) that concluded Bliss Rapids snails could survive for many hours to several days in moist conditions (i.e., undersides of cobbles) when air temperatures were greater than 32 °F (0 °C). In an ongoing field study, Richards (unpublished data, cited in Richards et al. 2006, pp. 125-126) also found that Bliss Rapids snails could survive on the damp undersides of exposed cobbles alongside the mid-Snake River for up to several days. Because fluctuation of water levels due to load-following only occurred for several hours at a time (William H. Clark, Idaho Power Company, personal communication, cited in Richards et al. 2006, p. 126), Richards et al. (2006, pp. 125-126) concluded that direct mortality to Bliss Rapids snails from exposure due to load-following events should be minimal. The petitioners did not provide any data that assesses the sub-lethal effects (e.g., impacts to reproduction, food sources, etc.) of peak-loading.

At the time of listing, we stated: “Peak-loading, the practice of artificially raising and lowering river levels to meet short-term electrical needs by local run-of-the-river hydroelectric projects also threatens [the Bliss rapids snail]. Peak-loading is a frequent and sporadic practice that results in dewatering mollusk habitats in shallow, littoral shoreline areas * * * these diurnal water fluctuations prevent the [Bliss Rapids snail] from occupying the most favorable habitats.”

Information in our files suggests that air temperatures within the range of Bliss Rapids snails regularly fall below 32 °F (0 °C) between November and March (Richards 2006, p. 28) and that the amount of time Bliss Rapids snails can survive while exposed to air temperatures below freezing is significantly less than at 32 °F (0 °C) (e.g., in less than an hour, half of the individuals in a laboratory trial subjected to a temperature of 19 °F (−7 °C) died) (Richards 2006, p. 12). Therefore, peak-loading during winter months may cause Bliss Rapids some snail mortality (Richards 2006, p. 15), but field studies have not been conducted to assess the likely impact on the population. Furthermore, we have no data in our files that assesses the sub-lethal effects of peak-loading on Bliss Rapids snails.

Although there are some uncertainties regarding the actual effects of peak-loading on Bliss Rapids snails in the wild, the petitioners have presented substantial information suggesting that the threats from peak-loading may be less than we perceived at the time of listing.

The status report provided by the petitioner (Richards et al. 2006, pp. 5-6) states that threats to Bliss Rapids snail habitat from water pollution are not as they were perceived when the species was listed in 1992. Richards et al. (2006, pp. 5-6, 86) state that significant nutrient and sediment reduction has occurred in the Snake River following implementation of the Idaho Nutrient Management Act and regulated Total Maximum Daily Load (TMDL) reductions from the mid-1990s to the present.

Hypereutrophy (planktonic algal blooms and nuisance rooted aquatic plant growths), prior to listing in 1992, was very severe during drought cycles when deposition of sediments and organic matter blanketed river substrate, often resulting in unsuitable habitat conditions for Bliss Rapids snails. Although some nutrient and sediment reduction has occurred since listing (Richards et al. 2006, p. 5), water quality of the river from RM 600 to 589 is subject to “very large inflows” of agriculture and aquaculture wastewater flowing to the river below Twin Falls to lower Salmon Falls dam at RM 572; as a result, nutrient and sediment concentrations increase during low summer flows (Richards et al. 2006, p. 91). Furthermore, the highest densities and occurrence frequencies of Bliss Rapids snails in riverine habitats were immediately downstream of the mid-Snake river reach considered to be the most seriously polluted reach of the river (from Shoshone Falls downstream to Upper Salmon Falls Dam (Richards et al. 2006, p. 33)).

Information in our files shows that phosphorus concentrations, the key nutrient leading to hypereutrophic conditions in the middle Snake River, exceeded Environmental Protection Agency (EPA) guidelines for the control of nuisance algae at numerous locations along the Snake River from 1989 to 2002, including areas immediately upstream of Bliss Rapids snail colonies (Hardy et al. 2005, p. 13). Several water quality assessments have been completed by the EPA, U.S. Bureau of Reclamation (USBR), and IPC, and all generally agree that water quality in the Snake River of southern Idaho meets Idaho water quality standards for aquatic life for some months of the year, but may not meet these standards when temperatures are high and flows are low (Meitl 2002, p. 33). Idaho Department of Environmental Quality's (IDEQ) 2005 performance and progress report to the EPA states that projects are meeting the Idaho non-point source pollution program goals (IDEQ 2006, p. 8). However, others report that water quality has not improved appreciably between 1989 and 2002 (Hardy et al. 2005, pp. 19-21, 49, 51).

Although the highest densities and occurrence frequencies of Bliss Rapids snails in riverine habitat were recorded immediately downstream of the mid-Snake River reach considered to be the most seriously polluted reach of the river (from Shoshone Falls downstream to Upper Salmon Falls Dam), this reach also receives a large infusion of coldwater spring outflow. No riverine Bliss Rapids snails were detected upstream of Upper Salmon Falls Dam (Richards et al. 2006, pp. 31-32, 35-37).

Given the information provided by the petitioner and other information in our files, we find that there are some uncertainties regarding the effects of degraded water quality in the Snake River on Bliss Rapids snails; however, we believe the petitioners have presented substantial information suggesting that the threats from degraded water quality may be less than we perceived at the time of listing.

The status report provided by the petitioner (Richards et al. 2006, p. 6) states that some coldwater spring habitats within the range of the Bliss Rapids snail previously threatened by water development have been preserved in corporate or public trusteeship.

Information in our files shows that springs occupied by Bliss Rapids snails that are protected from further water development include Thousand Springs, Box Canyon Springs (Newcomer in litt. 2005), and Banbury Springs (Holmstead and Holthuijzen 2005). However, there are hundreds of other springs in the Hagerman Valley, and nearly all exist on private land in areas that have not been surveyed for Bliss Rapids snails due to lack of access. We do not know whether these springs are being protected or whether they have already been developed for aquaculture, hydropower, or irrigation water.

Based on information provided by the petitioner, along with other information in our files, some spring habitats occupied by Bliss Rapids snails are being protected in preserves. However, the status of coldwater springs on some private lands remains largely unknown.

The status report provided by the petitioner (Richards et al. 2006, p. 5) states that threats to Bliss Rapids snail habitat from diversion of water from the Snake River for irrigation and aquaculture are not as they were perceived when the species was listed in 1992. According to Richards et al. (2006, p. 83), over the past 35 years, the river has experienced higher energy flushing cycles than in the prior 60 years. High mean annual flows reached approximately 18,000 cubic feet per second (cfs) in 1984 and 1997. In 2006, flushing flows had again occurred with sustained mean daily flows at King Hill in excess of 20,000 cfs (Richards et al. 2006, pp. 83-84).

At the time of listing, we stated: “Water quality continues to degrade in the middle Snake River from increased water use and withdrawal, aggravated by recent drought-induced low flows. This 121 mile (195 kilometer) stretch of the Snake River [i.e., the middle Snake River] is impacted by agricultural return flows; runoff from between 500 and 600 dairies and feedlots; effluent from over 140 private, state, and Federal fish culture facilities; and point source (e.g., municipal sewage) discharges (Idaho Department of Health and Welfare (IDHW) 1991a). These factors contribute to increased nutrient loads and concentrations which in turn adversely impact the lotic species. Nutrient loading contributes to dense blooms of free-living and attached filamentous algae, which the species cannot utilize. This algae will often cover rock surfaces, effectively displacing suitable snail habitats and food resources. Stream sediments also become anoxic as high biochemical oxygen demand during the aquatic growing season and seasonal algae die offs occur.”

We accept the characterization of the flow data at King Hill provided by the petitioner. However, the petitioners have not explained how a few years of flushing flows reduces the threat of high concentrations of pollutants due to low Snake River flows in other years. Therefore, we find that the petition has not presented substantial information suggesting that threat of mainstem Snake River water diversions to Bliss Rapids snails has diminished.

The status report provided by the petitioner (Richards et al. 2006, p. 5) states that threats to Bliss Rapids snail coldwater spring influenced habitats from groundwater mining for irrigation and aquaculture are not as they were perceived when the species was listed in 1992. Average annual spring flows increased from about 4,400 cfs in 1910 to approximately 6,500 cfs in the early 1960s because of widespread flood irrigation causing artificial recharge of the aquifer (Richards et al. 2006, p. 84, 87). As a result of more efficient water practices from 1960 to the present (i.e., switching from flood irrigation to more efficient center-pivot irrigation systems) more water was pumped from the aquifer while water percolation into the aquifer declined, resulting in declines in average annual spring flows to about 5,000 cfs (Richards et al. 2006, pp. 84, 87).

The petitioners also provided a number of documents indicating that there is a moratorium on some groundwater development in the eastern Snake River plain (Idaho 2004) and that there are current efforts to artificially recharge the Snake River aquifer to stabilize or increase spring flows (Idaho 2005). These efforts have the potential to benefit the Bliss Rapids snails, but their effects have not yet been realized in terms of stable or increasing spring flows (Richards et al. 2006, p. 84).

Information in our files shows that there are several in-stream flow targets, set by the State of Idaho, which have the potential to conserve populations of Bliss Rapids snails (IDWR 2006a). However, water rights with earlier priority dates have the right to fill their needs before the minimum stream flow is considered. Senior diversions can legally dewater the stream in a drought year or when low flows occur, leaving no water for the minimum stream flow (IDWR 2006b). Therefore, the current and future conservation benefits of recently established in-stream flow targets for the Bliss Rapids snail are uncertain.

Information provided by the petitioner, along with other information in our files, indicates that the State of Idaho has taken steps to improve groundwater recharge, and limit new groundwater development with the eastern Snake River plain; however, the Snake River Plain aquifer level continues to decline and instream-flow targets and moratoriums on new groundwater development do not prevent those with senior water rights from diminishing flows in drought years or during low flows. Therefore, we find that the petitioners have not presented substantial information indicating that the threat of groundwater mining to the Bliss Rapids snail may be less than the best available information indicated at the time of listing in 1992.

The petitioners did not provide information regarding the overutilization of Bliss Rapids snails for commercial, recreational, scientific, or educational purposes, and we do not have information in our files suggesting that this factor is a threat to the species.

The petitioners did not provide information regarding the effects of disease or predation on Bliss Rapids snails. At the time of listing, we stated that changes in the fish fauna of the middle Snake River had been suggested as a potential threat to the Bliss Rapids snail (57 FR 59254). At that time, we had no data to support this suggestion, and we still have no information in our files suggesting that disease or predation are significant threats to the Bliss Rapids snail.

The petitioners provided numerous documents regarding water rights, aquifer recharge, and groundwater management in the Snake River and Snake River Plain aquifer (Idaho 2006 in litt.). These documents indicate that the State of Idaho has regulatory mechanisms to limit or exclude the development of new surface water or groundwater rights within the range of the Bliss Rapids snail. These documents also indicate that the State has regulatory mechanisms to prioritize existing water rights based on seniority.

At the time of listing, we found inadequate regulatory mechanisms to be a threat because (1) regulations were inadequate to curb further water withdrawal from groundwater spring outflows or tributary spring streams, (2) it was unlikely that pollution control regulations would reverse the trend in nutrient loading any time soon, (3) there was a lack of protections for invertebrate species in Idaho, and (4) regulations did not require FERC or the U.S. Army Corp of Engineers to address Service concerns regarding licensing hydroelectric projects or permitting projects under the Clean Water Act for unlisted snails.

Information provided by the petitioner, along with information in our files, suggests that the threat to Bliss Rapids snails from inadequate regulatory mechanisms may be less than we perceived at the time of listing. Although there are no regulatory mechanisms in place to prevent senior diversions under current water rights allocations from dewatering the stream (see Groundwater Mining section above), there are now regulatory mechanisms to limit future surface water and groundwater development, and some pollution control regulations have been implemented (see Water Quality section above).

The status report provided by the petitioner (Richards et al. 2006, p. 5) states that threats to the Bliss Rapids snail from the New Zealand mudsnail ( Potamopyrgus antipodarum ) are not as they were perceived when the species was listed in 1992. Richards et al. (2006, p. 6) note that the New Zealand mudsnail has not caused any local extirpations of Bliss Rapids snails, and that they have not colonized headwater spring habitats. However, in areas where the species do coexist, Richards et al. (2006, pp. 61, 64, 68) found that Bliss Rapids snails may be competitively excluded by New Zealand mudsnails, and that Bliss Rapids snail densities would be higher in the absence of New Zealand mudsnails.

At the time of listing, we stated that New Zealand mudsnails were not abundant in coldwater springflows with colonies of Bliss Rapids snails, but that they did compete with the Bliss Rapids snail in the mainstem Snake River (57 FR 59254). We have no direct evidence that New Zealand mudsnails have displaced colonies of Bliss Rapids snails, but New Zealand mudsnails have been documented in dark mats at densities of nearly 400 individuals per square inch in free-flowing habitats within the range of the Bliss Rapids snail (57 FR 59254). Furthermore, New Zealand mudsnails have become established in every spring-fed creek or tributary to the Hagerman Reach that has been surveyed (USFWS 2007).

Based on information provided by the petitioner, along with information in our files, New Zealand mudsnails appear to limit Bliss Rapids snail densities, except in headwater spring habitats. Although the information provided by the petitioners clarifies our understanding of competitive interactions between New Zealand mudsnails and Bliss Rapids snails, the primary conclusions of their review are consistent with our analysis at the time of listing. Therefore, we find that the petitioners have not provided substantial information indicating that the threats to Bliss rapids snails from New Zealand mudsnails may be less than the best available information indicated at the time of listing in 1992.

We have reviewed the delisting petition and the supporting documents, as well as other information in our files. We find that the delisting petition and other information in our files presents substantial information that delisting the Bliss Rapids snail may be warranted, and we are initiating a status review. Petitioners have provided a detailed status report that updates the state of knowledge regarding Bliss Rapids snail habitat use, distribution, and threats. The status report provides substantial information indicating that the Bliss Rapids snail is more widely distributed in the Hagerman area of southern Idaho than previously recorded, that it has been documented in areas without obvious spring influence based on visual inspections, and that threats from hydropower development and ongoing operation of hydropower dams may not be what we perceived when we listed the species in 1992. The status report also provides substantial information indicating that additional regulatory mechanisms now exist that could limit water development and water pollution in Bliss Rapids snail habitat. Based on our review of the petition and information in our files, other threats to the species remain, but we will fully evaluate these and determine whether or not delisting is warranted, in our 12-month finding in accordance with section 4(b)(3)(B) of the Act.

Section 4(c)(2)(A) of the Act requires that we conduct a review of listed species at least once every 5 years. We are then, under section 4(c)(2)(B), to determine whether or not any species should be removed from the List (delisted), or reclassified from endangered to threatened, or threatened to endangered. We initiated a 5-year review for the Bliss Rapids snail on July 27, 2004 (69 FR 44676). Because we are initiating a 12-month finding with this notice, and because the 12-month finding and 5-year review serve a similar purpose (i.e., to determine the appropriate classification of a species under the Act), the results of our 12-month finding will be adopted for our 5-year review.

A complete list of all references cited in this finding is available, upon request, from the Snake River Fish and Wildlife Office (see ADDRESSES section).

The primary author of this document is Jesse D'Elia, Pacific Regional Office, Portland, Oregon.

The authority for this action is section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq. ).

When we make a finding that substantial information is presented to indicate that listing a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are particularly seeking the following information on the yellow-billed loon:

(1) Additional information on the life history, ecology, and distribution of the species;

(2) The status of the species and any trend information from the United States, Canada, Europe, and Asia;

(3) Potential threats to the species on its nesting grounds, wintering areas, or migration corridors;

(4) Ongoing management measures that may be important with regard to the conservation of the yellow-billed loon throughout its range;

(5) The extent and nature of the use of the species for subsistence purposes;

(6) The species' tolerance for human interaction and studies documenting flushing distances;

(7) The incidence of mortality as a result of bycatch from fishing on lakes and at sea;

(8) Conservation and management strategies that should be considered for inclusion in annual reviews of the Yellow-billed Loon Conservation Agreement; and

(9) Whether the U.S. breeding population constitutes a distinct population segment.

If you wish to comment, you may submit your comments and materials concerning this finding to the Endangered Species Branch Chief (see ADDRESSES ). If you wish to comment by e-mail, please include “ Attn: Yellow-billed Loon” in the beginning of your message. Please include your name and return address in your e-mail message (anonymous comments will not be considered). If you do not receive a confirmation from the system that we have received your e-mail message, or in the event that our Internet connection is not functional, please submit your comments in writing using one of the alternate methods described above.

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq. ), requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information to indicate 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 at the time we make the determination. 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 this finding promptly in the Federal Register .

Our standard for substantial 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 information was presented, we are required to promptly commence a review of the status of the species.

In making this finding, we relied on information provided by the petitioners and evaluated that information in accordance with 50 CFR 424.14(b). Our process of coming to a 90-day finding under section 4(b)(3)(A) of the Act and section 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold. A substantial finding should be made when the Service deems that adequate and reliable information has been presented that would lead a reasonable person to believe that the petitioned action may be warranted.

On April 5, 2004, we received a petition from the Center for Biological Diversity (CBD) (Sitka, AK), Natural Resources Defense Council (Washington, DC), Pacific Environment (San Francisco, CA), Trustees for Alaska (Anchorage, AK), Kaira Club (Chukotka, Anadyr, Russia), Kronotsky Nature Preserve (Kamchatka Region, Russia), Taiga Rangers (Khabarovsk Region, Russia), Yuzhno-Sakhalinsk Local Public Fund (Sakhalin Region, Russia), Interregional Public Charitable Organization of Far Eastern Resource Centers (Vladivostok, Russia), Kamchatka Branch of Pacific Institute of Geography (Petropavlovsk-Kamchatsky, Russia), and Kamchatka League of Independent Experts (Petropavlovsk-Kamchatsky, Russia) to list the yellow-billed loon ( Gavia adamsii ) as endangered or threatened throughout its range, or as a Distinct Population Segment, and to designate critical habitat once listed. The petition summarizes threats to the species based on CBD's review of Fair's (2002) report, prepared for the Natural Resources Defense Council and Trustees for Alaska, on the status and significance of the species in Alaska as well as CBD's review of the scientific literature. The 63-plus page petition describes multiple threats to the yellow-billed loon, including destruction or modification of habitats due to development and pollution, lack of regulatory protection, and other factors such as mortality from hunting and drowning in gill nets. The petition also emphasizes that additional factors, including limited and specific breeding habitats, a small global population, and low reproductive rate, make yellow-billed loon populations more susceptible to the above-mentioned threats and less likely to recover after population declines.

Yellow-billed loons may benefit greatly from a Conservation Agreement among agencies (the Bureau of Land Management (BLM), the National Park Service, and the Service) with management and conservation responsibilities on public lands that include much of the loon's breeding range in the United States. At present, the Service and the Alaska Department of Fish and Game cooperatively promulgate migratory bird hunting and subsistence regulations, and the U.S. Geological Survey has ongoing yellow-billed loon studies. The BLM and the Service, with other agencies, have developed a Conservation Agreement (Agreement) dated September 30, 2006, for the yellow-billed loon that addresses a subset of threats (including fisheries bycatch, habitat loss from industrial development, and disturbance) for yellow-billed loons breeding in northern and western Alaska. We will be conducting annual review of the Agreement and as such, we welcome suggestions for conservation and management strategies that should be considered. The strategies for conservation in the Agreement include: (1) Implement specific actions to protect yellow-billed loons and their breeding habitats in Alaska from potential impacts of land uses and management activities, including oil and gas exploration and development; (2) inventory and monitor yellow-billed loon breeding populations in Alaska; (3) determine and reduce, if significant, the impact of subsistence activities on yellow-billed loons (including subsistence fisheries and hunting) in Alaska; and (4) conduct biological research on yellow-billed loons, including response to management actions.

The following information regarding the description and natural history of the yellow-billed loon (American Ornithologist's Union (AOU) 2003) has been condensed from these sources: Earnst et al. (2006, 2005), Evers (2004), Mallek et al. (2004), Johnson et al. (1999, 1998, 1997, 1996), Larned et al. (2003), Fair (2002), North (1994), Smith et al. (1994, 1993), Field et al. (1993), and North and Ryan (1989). These and other references are cited for data of particular relevance to this finding.

The yellow-billed loon (Order Gaviiformes, Family Gaviidae) is one of the largest of the five loon species and similar in appearance to the common loon ( Gavia immer ). Yellow-billed loons are distinguished from common loons by their larger yellow or ivory bill. Adults weigh 4,000 to 6,000 grams (8.8 to 13.2 pounds) and are 774 to 920 millimeters (30 to 37 inches) in length. Presumably, as with common loons, average male body mass and size is greater than female mass and size. Breeding (alternate) plumage of adults of both sexes is black above with white spots on the wings and underside, and white stripes on the neck. Non-breeding (basic) plumage is gray-brown with fewer and less distinct white spots than breeding plumage, with paler undersides and head, and a blue-gray bill. Hatchlings have dark brown and gray down, and juveniles are gray with a paler head. There are no recognized subspecies or geographic variations. Yellow-billed loons are specialized for aquatic foraging and are unable to fly from land, with a streamlined shape and legs near the rear of the body.

Yellow-billed loons nest exclusively in coastal and inland low-lying tundra from 62 to 74° N latitude, in association with permanent, fish-bearing lakes. Populations are thought to be limited primarily by breeding habitat, specifically nesting and brood-rearing lakes (North 1994, p. 16). Lakes that support breeding loons have abundant fish populations; depths greater than 2 meters (m) or 6.5 feet (ft) and water under the ice during winter; large areas (at least 13.4 hectares [ha] or 33 acres [ac]) (North & Ryan 1989, p. 302); often connections to streams that may supply fish; highly convoluted, vegetated, and low-lying shorelines; clear water; and dependable water levels (Earnst et al. 2006, p. 227; North 1994, p. 6). Breeding lakes may be near major rivers, but are usually not connected to them, possibly because fluctuating water levels can flood nests or cause turbidity that compromises foraging success.

Breeding territories (areas defended against conspecifics and other loon species, particularly Pacific loons [ Gavia pacifica ]), may include one or more lakes or parts of lakes. Territory size, dependent upon lake size and quality, ranged from 13.8 to greater than 100 ha (34 to greater than 247 ac) on the Colville River Delta, AK (North 1986, as cited in North 1994, p. 10). It is thought that loons occupy the same breeding territory throughout their reproductive life; certainly, breeding lakes are “known to be reoccupied over long time spans” (North 1994, p. 10), most likely by the same monogamous pair (North 1994, p. 10), similar to common loons (Evers 2004, p. 13).

Yellow-billed loons feed on fish and aquatic invertebrates. Marine prey species include sculpins ( Leptocottus armatus, Myoxocephalus sp.); tomcod ( Microgadus proximus ) and rock cod ( Sebastodes sp.); invertebrates such as amphipods, isopods, shrimps, hermit crabs ( Pagarus sp.), and marine worms ( Nereus sp.); and Pacific sand dabs ( Citharichthys sordidus ). During the breeding season, freshwater prey may include ninespine sticklebacks ( Pungitius pungitius ), Alaska blackfish ( Dallia pectoralis ), fourhorn sculpins ( M. quadricornus ), least cisco ( Coregonus sardinella ), and freshwater amphipods, isopods, insects, and spiders. Freshwater foraging habitats include lakes, rivers, and the nearshore marine environment for non-breeders; young are fed almost entirely from the brood-rearing lake (North 1994, p. 14).

Nest sites are usually located on islands, hummocks, or peninsulas, along low shorelines, within 1 m (3 ft) of water. The nest location, which may be used in multiple years, usually provides a better view of the surrounding land and water than other available lakeshore locations. Nests are constructed of mud or peat, and are often lined with vegetation. One or two large, smooth, mottled brown eggs are laid in mid-to late June; hatching occurs after 27 to 28 days of incubation by both sexes. Although the actual age at which young are capable of flight is unknown, it is probably similar to common loons (8 to 9, possibly 11, weeks). The young leave the nest soon after hatching, and the family may move between natal and brood-rearing lakes. Both males and females participate in feeding and caring for young. In spite of the occasional replacement of eggs after nest predation, the short Arctic summer makes it impossible to raise more than one brood.

There is no reliable scientific information on lifespan and survivorship, but as large-bodied birds with low clutch size, yellow-billed loons are probably K-selected (long-lived and dependent upon high annual adult survival to maintain populations). Assuming demography similar to common loons (Evers 2004, p. 17-18), individuals on average reach sexual maturity at three years of age, but competition for breeding territories may delay successful reproduction until six or seven years of age.

Reproductive success, although studied rarely and with differing methodologies, is low and highly variable. For example, on the Colville River Delta, the percent of territorial pairs that nested were 76, 79, 42, and 71 in 1983, 1984, 1989, and 1993 respectively (Smith et al. 1994, p. 18; Field et al. 1993, p. 329). Aerial surveys on the Colville River Delta from 1993 to 2003 documented annual variation in number of nests (16 to 26), number of broods (3 to 14), and total number of chicks (3 to 17) from 1993 to 2003 (Johnson 2004; Wildman 2004a; Johnson et al. 1999, p. 48). Specifically, in 2000 and 2001, there were only 3 young among 16 observed nests and 4 young among 20 observed nests, respectively, which is relatively low compared to other years, possibly due to late summer storms, severe spring flooding, or both (Wildman 2004b). In 1995 to 2000 on the Colville River Delta, Earnst (2004a, p. 1) also documented high annual variability in several reproductive parameters, including number of territorial pairs nesting, clutch size, hatch date, proportion of eggs hatching, and proportion of chicks surviving to six weeks of age.

Yellow-billed loons breed in the freshwater treeless tundra of Alaska (sparsely in western Alaska and the foothills of the Brooks Range, more abundantly on the North Slope), in Canada east of the Mackenzie Delta and west of Hudson's Bay, in arctic Russia in the relatively narrow strip of coastal tundra from the Chukchi Peninsula in the east to the Taymyr Peninsula and the areas of the Novaya Zemlya and Pechora Rivers in the west, and rarely in far northern Norway and Finland. Because preferred breeding habitats are patchy and sparsely distributed across the yellow-billed loon's range, breeding birds are found in clumped and concentrated distributions. Based on aerial survey data (1998 to 2001 U.S. Fish and Wildlife Service Alaska Coastal Plain (ACP) and North Slope Eider (NSE) surveys), most of the population in Alaska occurred within 6 concentrations, which together covered only 15 percent of the surveyed area yet contained 84 percent of yellow-billed loon sightings. The largest concentration area was between the Meade and Ikpikpuk Rivers. It covered only 5 percent of the survey area, but had 30 percent of yellow-billed loon sightings. Other notable concentration areas were on the Colville River Delta and west, southwest, and east of Teshukpuk Lake. In Canada, concentration areas include Banks Island; western Victoria Island; the mainland south of the Kent Peninsula, east of Bathhurst Inlet and west of Ellice River; the west side of Boothia Peninsula, and the lake district between Great Slave Lake and Baker Lake, including the Thelon Game Sanctuary (North 1994, p. 3). In Russia, breeding concentrations have been identified east of Chaun Bay on the Chukchi Peninsula (Fair 2002, pp. 17 and 19), and along the Kolyma River Delta (Earnst 2004a, p. 1).

The wintering range of the yellow-billed loon includes nearshore coastal waters from southcentral Alaska south to Puget Sound; from the Pacific coast of Siberia south to the Yellow Sea; and occasionally in northern Europe from Great Britain to Norway. Wintering habitats have less specific characteristics than breeding habitats but are primarily in protected nearshore marine waters. A small proportion of yellow-billed loons breeding in interior North America may winter on large inland freshwater lakes (North 1994, p. 3).

Yellow-billed loon migration routes are thought to be primarily marine, sometimes far offshore. Migration route and timing is possibly influenced by ocean ice conditions, although inland breeders may migrate along chains of inland lakes. In 2002 and 2003, 11 yellow-billed loons along the North Slope of Alaska were outfitted with satellite transmitters. All 11 of these loons migrated to Asia, predominantly along the Russian coastline, and wintered in the Yellow Sea off China, North Korea, Russia, and Japan (near Hokkaido) (Schmutz 2004, p. 1). Most of these yellow-billed loons departed breeding areas in late September, arrived in wintering locations in mid-November, started spring migration in April, and arrived on breeding grounds in the first half of June; these are similar to breeding ground arrival dates reported by North (1994, p. 5). Non-breeders or failed nesters may start fall migration in July; non-breeders and juveniles may forego spring migration altogether and spend the summer in wintering areas. Yellow-billed loons are thought to migrate singly or in pairs, although large groups are occasionally seen at staging (temporary resting or loafing) areas.

The only known comprehensive population estimates of yellow-billed loons are derived from the two Arctic coastal plain waterfowl surveys conducted in Alaska annually in early June (NSE survey) and late June (ACP survey) by the Service's Migratory Bird Management program. The long-term (1986 to 2003) mean estimate of yellow-billed loons on the Arctic coastal plain is 2,919 (95 percent confidence interval = 2,450 to 3,387) (ACP estimate; Mallek et al. 2004, p. 10); a 12-year mean (1992 to 2003) based on both surveys and a visibility correction factor results in a similar estimate (Earnst et al. 2005, p. 289). A 1-year (1993) estimate of breeding yellow-billed loons on the Seward Peninsula was 680. There is anecdotal information of 50 yellow-billed loons on St. Lawrence Island and approximately the same number in the Selawik wetlands. When these are added to the coastal plain estimates, the estimated total number of yellow-billed loons on Alaska breeding grounds is approximately 3,500 to 4,000. (Not all are breeders; the ACP and NSE surveys include, but do not distinguish between, breeding and non-breeding yellow-billed loons. The 3- to 5-year-old reproductively mature individuals are capable of breeding, yet due to limited availability of suitable breeding territories, only a portion of these individuals may be present and, therefore, visible on the breeding grounds. The 1- to 2-year-old juveniles likely stay at sea and are not counted.) The total Alaska yellow-billed loon population, including those birds not occupying breeding areas during summer, may be between 3,700 to 4,900, assuming yellow-billed loon demography (age-specific survival, productivity, and average age of first breeding) is similar to that of common loons (Evers 2004, p. 16-20).

The Service is unaware of scientifically valid population estimates for other areas. Yellow-billed loons are not summarized in the North American Spring Waterfowl Surveys (U.S. Fish and Wildlife Service 2003, p. 1-53), and Canadian population estimates do not exist ( http://www.bsc-eoc.org/clls-bw1.html , accessed January 17, 2006). However, Fair (2002, p. 29) speculated, based on anecdotal local density and habitat information, that 8,000 yellow-billed loons breed in Canada and 5,000 breed in Russia. Combining these estimates, the worldwide breeding-ground yellow-billed loon population is estimated at 16,500.

Given the lack of comprehensive scientific information relative to population estimates, there are few ways to assess population trends. In Alaska, the total number of yellow-billed loons counted in surveys is small (resulting in wide confidence intervals around annual estimates), but estimates over the last two decades do not suggest a change in the number of adults on Alaskan breeding grounds. Additional analysis of ACP and NSE survey data, using a multivariate model to account for the confounding factors of spring timing and observer experience, also indicates no discernible trend in population numbers. However, the statistical power (or ability to detect a significant change) is relatively low; a minimum of 10.4 years is required to detect a 50 percent decline in the surveyed population (based on NSE data; Larned et al. 2003, Fig. 8). Thus, in Alaska, the breeding ground population could decline to less than 2,000 individuals before current survey methods would detect a significant declining trend. The total Alaska population could decline by a larger percentage because breeding ground surveys do not include population components that remain at sea during the breeding season (pre-breeding and reproductively mature but non-breeding individuals). Thus, a significant decline in these population components in Alaska could not be readily detected with current surveys. Further, any decline in yellow-billed loons in Russia and Canada could not be detected because these are not currently surveyed. Finally, a decline in the breeding component may be masked by movement of previously uncounted individuals to vacated territories (resulting in sinks rather than productive breeding habitats); this decline would not be detected with current surveys.

Pursuant to section 4(a) of the Act, we may list a species or subspecies of fish or wildlife or plants, or distinct population segment (DPS) of a vertebrate taxa, on the basis of any of the following five factors: (A) present or threatened destruction, modification, or curtailment of a species' habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. The petition asserts that yellow-billed loons are subject to threats primarily under Factors A, C, D, and E, above. We used information provided by the petitioners and available in our files to address the relationship of these factors to the yellow-billed loon and its habitats.

Certain intrinsic aspects of yellow-billed loon ecology and demography, including low and variable productivity, adult survival, and low population numbers, are important to consider when evaluating the species' status and its threats. Healthy populations of K-selected species, such as the yellow-billed loon, are characterized by low annual productivity rates balanced with high annual survival rates, meaning that individuals must live many years to replace themselves with offspring that survive to recruit into the breeding population. Low productivity means that depleted K-selected species have lower recovery potential and slower recovery rates following population declines than r-selected species, which are characterized by high annual productivity. Factors that reduce productivity, including loss of productive breeding habitats, reduction in prey populations, or increases in nest predators, may further constrain a K-selected species' recovery. Further, most arctic species are characterized by variable annual productivity, given the vagaries and severity of arctic weather, fluctuations in predator-prey relationships (e.g., reproductive success of many predators fluctuates with large annual variation in lemming abundance), and other aspects of arctic ecology. The population impact of threats that reduce productivity could be magnified if coincident with a rare year of otherwise high productivity.

Although factors that compromise productivity can cause populations to decline, adult survival may be the most important determinant of a K-selected species' population size and persistence (Smith and Smith 2001, p. 235). If adults are removed from the population prior to replacing themselves (i.e., adult survival is decreased), the population will decline. Perhaps most pertinent to a discussion of extinction, rare species—those with low numbers—are intrinsically closer to a threshold below which recovery is not possible (i.e., minimum viable population) (Hunter 1996, p. 137). Species can be rare because of restriction to a rare type of habitat, limitation to a small geographic range, or occurrence at low densities (Hunter 1996, p. 129), all of which are true for yellow-billed loons. Because rare species are closer to extinction to begin with, potential threats become more urgent and imminent, even if we have not studied and therefore not documented their occurrence or effects.

The petitioners assert that yellow-billed loon freshwater breeding habitats are threatened by oil, gas, and mineral development, and that marine wintering and migrating habitats are threatened by degradation of the marine environment. Disturbance from human presence and noise from construction and aerial traffic, changes in freshwater chemistry or pollutant loads, and changes in freshwater hydrology associated with oil and gas development are addressed by the petitioners under Factor E, but warrant discussion under Factor A because they are potential mechanisms for rendering breeding habitats unsuitable. (Additional impacts associated with development on the breeding grounds, such as increased predation, are discussed under Factors C and E.)

Discussion of disturbance, pollution, hydrologic alterations, and other impacts from development that may reduce the suitability of breeding habitats is relevant because much of the yellow-billed loon's limited, specific, and concentrated breeding habitat in Alaska is available for oil and gas leasing and development. Approximately three-quarters of the yellow-billed loons that nest in Alaska, and over 90 percent of those that nest on Alaska's North Slope, occur within the 9.5-million-ha (23.5-million-ac) National Petroleum Reserve-Alaska Plan (NPR-A), and information available in our files indicates that some of the highest-density yellow-billed loon breeding areas overlap with areas of high economic oil potential. The petitioners cite National Environmental Policy Act (NEPA) planning documents for oil and gas leasing and exploration in NPR-A to support their assertion that oil and gas exploration and development will occur. The BLM has conducted four lease sales in the NPR-A since 1999. In the Northeast Planning Area, sales held in May 1999 and June 2002 resulted in leases covering 404,685 ha (1.45 million ac) ( http://www.blm.gov/ak/ak940/fluids/boe_npra_index.html , accessed March 30, 2007), on which 21 exploration wells were drilled from 2000 to 2007 ( http://www.blm.gov/ak/ak940/fluids/boe_explrtn_actvty.html , accessed March 30, 2007). In the Northwest Planning Area, sales held in June 2004 and September 2006 resulted in leases covering 809,371 ha (2.34 million ac), on which 3 exploration wells were drilled in 2006 and 2007 ( http://www.blm.gov/ak/ak940/fluids/boe_explrtn_actvty.html , accessed March 30, 2007). If exploration drilling results in discovery of a commercially viable field, “* * * it typically takes an additional 4 to 10 years for further study, design, and installation of facilities before production can begin.” (USDOI-BLM 2006, p. 2-6). Because most of yellow-billed loon breeding habitats are in NPR-A, and because approximately half of the high-density breeding areas overlap with leased areas that have high potential for economically recoverable oil, the likelihood of threats from oil and gas development to the species occurring within the next ten years is high.

The petitioners assert that loons as a genus are extremely susceptible to disturbance, and information in our files suggests that yellow-billed loons may be very sensitive to human presence (North 1994, p. 16). Disturbance can cause yellow-billed loons to abandon reproductive efforts or leave eggs or chicks unattended and exposed to predators or bad weather. A yellow-billed loon's normal behavior can be interrupted at a distance of up to 1.6 kilometers (1 mile) from humans, although these behavioral changes can vary by individual and circumstance (Earnst 2004b, p. 1). When undisturbed, yellow-billed loons rarely leave eggs or chicks, and they effectively defend both from aerial predators (Earnst 2004b, p. 1). Further, although information available in our files suggests displaced common loons may successfully breed in alternative sites (e.g., common loons not accustomed to human activity have relocated breeding activities in response to human presence) (numerous studies cited in Evers 2004, p. 35), alternative suitable breeding sites are likely not available for yellow-billed loons, as evidenced by inter- and intra-specific competition for nesting and brood-rearing lakes of suitable size and depth, and the species' philopatric behavior (North 1994, p. 16).

The petitioners assert that oil spills and other chemical contamination that would occur with oil and gas development will also impact loons, citing information on oil toxicity and prevalence of oil spills on Alaska's North Slope. Information in our files suggests that changes in freshwater chemistry or pollutant loads, including oil spills, associated with oil and gas development may render breeding habitats unsuitable, and both have been documented on Alaska's North Slope (NRC 2003, p. 6-7, 73-74). Yellow-billed loons, like other aquatic-dependent birds, are susceptible to oiling in the event of a spill. Severe effects are expected to result for birds contacted by oil spills in NPR-A (USDOI-BLM 2005, p. 4-105). Further, oil spills may have long-term effects on tundra waters by killing prey and vegetation (USDOI-BLM 2005, p. 4-78, 4-88), thereby reducing food availability and cover. Oil spills in arctic marine habitats may also affect juvenile and non-breeding yellow-billed loons (USDOI-BLM 2005, p. 4-105). The majority of spills that have occurred in association with oil and gas development on Alaska's North Slope are relatively small and cause minimal impacts to surrounding habitats or wildlife. The risks from larger and potentially more frequent spills need to be examined however.

The petitioners assert that water depletion or drawdown may affect connectedness, depth, or melt date of yellow-billed loon nesting or brood-rearing lakes and may render such areas unsuitable as breeding habitats. Information in our files indicates that industrial development on the North Slope has affected freshwater flow and drainage as a result of water withdrawals to build ice roads or drilling pads, and through permafrost decay consequent to infrastructure placement, vegetation damage, or fluid extraction and injection (NRC 2003, p. 1-11). North (1994, p. 16) and North and Ryan (1989, p. 303) suggested that permafrost decay consequent to infrastructure placement and disturbance of vegetation may cause breaching of rivers into yellow-billed loon breeding lakes, rendering them unsuitable due to fluctuating water levels (causing drowned nests) or increased turbidity (negatively affecting foraging success). Additionally, the petitioners assert and we concur that ice roads on breeding lakes may compact lake ice and delay melting (USDOI-BLM 1998, p. IV-3-b-1-b), thus delaying or discouraging yellow-billed loon breeding.

Water withdrawals used for ice roads and pads could have additional effects on habitat suitability by affecting fish populations that breeding yellow-billed loons depend upon to feed themselves and young. Although water withdrawal stipulations in oil and gas planning documents are designed to protect and monitor fish-bearing lakes, their adequacy for protecting fish that serve as yellow-billed loon prey is not currently known. The Service is working with the BLM and others to evaluate these and other accommodations that are either in place or are proposed for the protection of this species.

Areas within the yellow-billed loon's arctic breeding range in Russia and Canada may face similar developmental pressures. The petitioners assert that mineral and oil development in Russia is either unregulated or regulations are not enforced, resulting in long-term environmental impacts. In Canada, oil and gas developments within the yellow-billed loon's breeding and staging areas have been proposed. If it occurs, overlap of development (particularly unregulated development) with the specific and limited breeding areas required by yellow-billed loons will result in destruction, modification, or curtailment of habitats or range in Russia and Canada. Further, the Service and the petitioners are unaware of assessment or monitoring data to evaluate these effects on yellow-billed loons in Eurasia (including Russia).

There is little documentation of the degradation of marine habitats resulting in destruction or modification of yellow-billed loon habitat. However, the marine environment is clearly important for yellow-billed loons, as that is where they spend their first three years, and subsequently at least eight months per year. Particular examples of marine degradation listed by the petitioners include pollution (although oil and chemical spills are discussed under Factor E), and the effects of fishing practices such as drowning in fishing nets and depletion of the prey base through overfishing or other destructive fishing practices. The negative effects of these examples are likely to be on individual condition or survival; high survival rates, especially of breeding adults, are required for yellow-billed loon population maintenance.

Information available in our files indicates that the Yellow Sea, where all 11 Alaska-breeding yellow-billed loons with satellite transmitters wintered (Schmutz 2004, p. 1), is being degraded. There are approximately six million humans in surrounding watersheds, and the Yellow Sea is impacted by loss of wetland habitat, depleted fisheries, and industrial, agricultural, and domestic pollution ( http://www.gefonline.org/projectDetails.cfm?projID=790 ), accessed January 17, 2006). The Australian Government, in a summary of the Yellow Sea's importance to shorebirds, noted that declining river flows, pollution, and unsustainable harvesting of benthic fauna are leading to reduced benthic productivity and food declines for shorebirds ( http://www.deh.gov.au/biodiversity/migratory/waterbirds/yellow-sea/ , accessed January 17, 2006). These impacts on the aquatic system would also affect wintering loon food availability, potentially reducing individual fitness prior to spring migration and breeding.

We find the petition provided substantial information to support its assertions that the threat of past, current and probable future destruction, modification, or curtailment of yellow-billed loon habitat is sufficient to warrant additional review of the species' status. In freshwater breeding areas, factors associated with oil and gas exploration and development ( i.e. , disturbance, pollution, and hydrologic changes) can make breeding habitats unsuitable. Marine habitats, where yellow-billed loons spend much of the year, are being degraded through overfishing and pollution.

The petitioners assert that overutilization for commercial, recreational, or educational purposes is unlikely. Although the petitioners list research-related nest disturbance under this Factor, they also state that it is likely to be a minor Factor affecting the species and that the benefits of such research outweigh any adverse effects.

The petitioners assert that yellow-billed loons may be subjected to increased nest predation if infrastructure associated with resource development occurs in their breeding areas. Increasing numbers of ravens, gulls, and arctic foxes, some of which are documented predators of yellow-billed loon nests or young (North 1994, p. 11), have been associated with oil field infrastructure development and human-generated food sources on the North Slope of Alaska (NRC 2003, p. 6). When combined with increased predation opportunities resulting from disturbance (discussed under Factor A), the effect of increased predator numbers could be amplified. The petitioners assert that disease does not appear to be a risk to yellow-billed loons. However, since receiving the petition the highly pathogenic avian influenza has been documented in Asia where yellow-billed loons winter.

We find the petition provided substantial information to support its assertions that the threat of increased predation associated with resource development infrastructure is sufficient to warrant additional review of the species' status. Additionally, the potential impacts of avian influenza on the loon are not know at this time and may warrant further investigation.

The petitioners assert that the yellow-billed loon is not protected or is inadequately protected by existing regulations, including international conventions or agreements against threats such as development and hunting. The yellow-billed loon is not currently listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The species is listed under the United Nations Environment Program Convention on the Conservation of Migratory Species of Wild Animals (UNEP-CMS), yet the United States, Russia, Canada, and most Asian nations are not signatories ( http://www.cms.int/ , accessed January 17, 2006). Although it is listed in the Russian Red Data book, and the species and its habitat are nominally protected under the U.S. Migratory Bird Treaty with the former Soviet Union (P.L. 95-616), the petitioners assert that current economic and social conditions in Russia limit the implementation and enforcement of these regulations. In Canada, the yellow-billed loon is protected under the Migratory Birds Convention Act, but subsistence hunting is allowed and is not regulated or tracked. In Canada, the yellow-billed loon is not listed on Schedule 1 (i.e., specified as “at risk”) of the Species at Risk Act of 2002, legislation similar to the Act. Currently, the species is not covered under Canadian Provincial laws or regulations and, thus, receives no protections or conservation considerations in Canada.

Within the United States, the yellow-billed loon has protection under several laws and regulations, but the petitioners assert that these are inadequate given the vulnerabilities of, and the specific threats facing, the species and its habitat. The Migratory Bird Treaty Act (MBTA) makes it unlawful to kill or take eggs or nests of yellow-billed loons, but does not provide protection for habitats, a primary concern in relation to development in breeding areas. Yellow-billed loons are not open for subsistence hunting in Alaska under migratory bird spring subsistence harvest regulations (69 FR 17318-17329). The Service and State of Alaska have recognized the yellow-billed loon as a potentially vulnerable species under the Birds of Conservation Concern (68 FR 6179) and State Comprehensive Wildlife Conservation Strategy ( http://www.sf.adfg.state.ak.us/statewide/ngplan/ , accessed January 17, 2006), respectively. These designations provide management and research funding prioritization.

The BLM has adopted stipulations and required operating procedures for the NW and NE NPR-A (USDOI-BLM 2004, p. 2-22-23; USDOI-BLM 2005, p. 2-2-45) in order to minimize potential impacts to yellow-billed loons, such as disturbance of nesting birds and broods. These include water withdrawal standards for deep fish-bearing lakes (discussed under Factor A) and setbacks for exploratory drilling and permanent facilities near fish-bearing and deep lakes (greater than 3.9 m (13 ft) deep). While exceptions may be authorized for all stipulations and required operating procedures, the stipulations and required operating procedures were proposed to minimize impacts, including disturbance, to yellow-billed loons within BLM-managed areas. At this time, however, data are not available to determine how effective the stipulations and required operating procedures will be in minimizing or eliminating adverse impacts to the species. Further, the petitioners assert that some information is not provided or is erroneous and leads to unsupported conclusions about probability or magnitude of potential impacts. They note, for example, in the 1998 NE NPR-A Environmental Impact Statement (EIS), that vehicle travel was encouraged to occur more than 30 m (100 ft) from streams or lakes bearing overwintering fish, a stipulation not included in the 2005 NE NPR-A Final Amended EIS (USDOI-BLM 2005) or in the NW NPR-A Record of Decision (ROD)(USDOI-BLM 2004). While the rationale for removal of the stipulation was that travel on lakes is limited to specified areas (water pumping stations and ice roads), thus reducing ice and snow compaction, there are other reasons for restricting travel near fish-bearing water bodies, including reducing contamination from spills or ice-road maintenance activities. The petitioners also claim that the Final EIS for the Minerals Management Service's (MMS) 1996 Beaufort Sea Planning Area Oil and Gas Lease Sale 144 fails to acknowledge documented use of marine foraging areas on the North Slope (USDOI-MMS 1996, p. IV-B-21). The Service is working with BLM and others to thoroughly review the biological needs of the yellow-billed loon, evaluate the conservation measures proposed by BLM to conserve this species, and identify any other measures that would help to avoid and minimize impacts to the species in its range within NPR-A.

We find the petition provided substantial information to support its assertions that the yellow-billed loon's habitat is not currently protected by existing regulatory mechanisms in the U.S. and Canada.

The petitioners assert that other natural or manmade factors may threaten yellow-billed loons. These factors include small population size and low productivity; vulnerability to oil spills and other contaminants; water depletion associated with oil and gas development; incidental bycatch in commercial or subsistence fishing nets; and hunting. Increased predation, disturbance, and water withdrawals associated with oil and gas development, and marine pollution, were discussed under Factors A and C.

As previously discussed, small population size, low and variable productivity, and dependence upon high adult survival are all ecological characteristics of yellow-billed loons, a K-selected species. These characteristics mean that the yellow-billed loon is inherently more vulnerable to perturbations that impact their survival and reproductive success because their population would take longer to recover from declines than a more common or fecund species. Additionally, many of the factors discussed under Factor E may affect adult survival, which may be more important to population maintenance in these long-lived birds than annual productivity (Smith and Smith 2001, p. 235). K-selected species like the yellow-billed loon also tend to be specialists, efficiently using particular environments, but they are often at or near carrying capacity, resource-limited, poor colonizers, and generally do not do well in disturbed environments (Smith and Smith 2001, p. 235). They are also highly vulnerable to random environmental or anthropogenic events, such as the threats described below.

Yellow-billed loons, like other loons, are potentially vulnerable to oil and chemical spills throughout their range. Of the 30,000 bird carcasses recovered after the Exxon Valdez oil spill, approximately 1.5 percent (450) were loons (with an unknown percentage of yellow-billed loons; Piatt et al. 1990, p. 391). As recovered carcasses represent only a fraction of actual oil spill mortality (Wiens 1996, p. 596), yellow-billed loon loss may have been high relative to population size (Piatt et al. 1990, p. 395). Habitat alterations associated with oil, gas, and mineral development were addressed in Factor A, and although an oil spill may make habitats unsuitable, perhaps the effect of most concern is mortality. Because loons in general are so dependent upon the aquatic environment and spend so little time on land, they are particularly at risk for exposure during an oil spill. Oiled birds die primarily from hypothermia because oil coats their normally insulating and buoyant feathers, preventing efficient thermoregulation. They can also die from oil ingested during preening. Egg viability can be diminished through contact with even small amounts of oil on feathers of incubating adults (e.g., Harfenist et al. 1990, p. 902). Oil spills may also alter foraging habitats, acutely by killing large numbers of prey, or chronically by altering community structure via long-term exposure to oil or its components (e.g., Peterson et al. 1996, p. 2637). In migrating and wintering areas of the Pacific, current and future oil and gas development will only increase, such as in the Yellow Sea ( http://www.china.org.cn/english/7352.htm ), accessed January 17, 2006), or on Sakhalin Island, Russia.

Anecdotal data indicate that loons, including yellow-billed loons, may die as incidental bycatch in commercial and subsistence gill nets, although more data are needed to accurately quantify this threat. Service law enforcement agents have been told that yellow-billed loons are routinely and unavoidably caught in subsistence fishing nets on the Ikpikpuk River (Roberts 2004), and this presumably occurs on other North Slope rivers with gillnetting. Additionally, intensive commercial fishing, a likely source of bycatch mortality, occurs in yellow-billed loon wintering areas in Asia, particularly the Yellow Sea (Elvidge et al. 2001, Fig. 2).

Yellow-billed loons have also been hunted for subsistence purposes, especially for their feathers for use in traditional dance regalia. Hunting is not allowed under current spring subsistence hunting regulations in Alaska (i.e., they are not on the list of “open” species). Annual subsistence harvest surveys conducted in Alaska from 1990 to 1999 indicate a total estimated harvest of 98 yellow-billed loons (Wentworth and Wong 2001, p. 107). In Russia and Canada, traditional or subsistence use of yellow-billed loons is not regulated. Specifically, many subsistence species may be taken at higher rates in Russia than in Alaska, because of the relative lack of paying jobs, and yellow-billed loons are included as customary and traditional subsistence-use species on the 1996 protocol amending the 1916 Convention for the Protection of Migratory Birds between the United States and Canada (Letter of Submittal dated May 20, 1996, as cited in 70 FR 55691-55699).

We find the petition provided substantial information to support its assertions that the threats of other natural and manmade factors, including small population size, low productivity, vulnerability to spilled oil and other contaminants, water depletion associated with resource development, incidental bycatch, and hunting , are sufficient to warrant additional review of the species' status.

We have reviewed the petition and supporting information. We have found:

(1) On April 5, 2004, we received a petition from the Center for Biological Diversity and others to list the yellow-billed loon as endangered or threatened throughout its range or as a Distinct Population Segment and to designate critical habitat. The petition describes multiple threats to the yellow-billed loon, including destruction or modification of habitats due to development and pollution, lack of regulatory protection, and other factors such as mortality from drowning in fishing nets and hunting. The petition emphasized that certain other factors, including limited and specific breeding habitats, a small global population, and low reproductive rate, make yellow-billed loons more susceptible to the threats identified in the petition and less likely to recover after declines. The petitioners assert that yellow-billed loon freshwater breeding habitats are threatened by oil, gas, and mineral development, and that marine wintering and migrating habitats are threatened by degradation of the marine environment.

(2) Yellow-billed loons breed in remote circumpolar areas, generally above the Arctic Circle, with harsh climates and low human population densities. Yellow-billed loons nest exclusively in coastal and inland low-lying tundra from 62 to 74° N latitude, in association with permanent, fish-bearing lakes in Alaska, Canada, Russia, and rarely in far northern Norway and Finland. Populations are thought to be limited primarily by availability of breeding habitat, specifically nesting and brood-rearing lakes.

(3) Our knowledge of the status of the yellow-billed loon is far from complete, but the worldwide population is believed to be relatively small. The only known comprehensive yellow-billed loon population estimates are from Alaska. The total Alaska yellow-billed loon population may be 3,700 to 4,900. The Service is unaware of scientifically valid population estimates for other areas. However, anecdotal density and habitat information have caused at least one scientist to speculate that 8,000 yellow-billed loons breed in Canada and 5,000 breed in Russia. Combining these estimates, the worldwide breeding-ground yellow-billed loon population may be roughly 16,500.

(4) Given the lack of comprehensive scientific information relative to yellow-billed loon population estimates, there are few means with which to assess population trends. In Alaska, the number of yellow-billed loons counted in surveys is small (resulting in wide confidence intervals around annual estimates). Although estimates over the last two decades do not show a change in the number of adults on the breeding grounds, the ability to statistically detect a significant change is relatively low. Thus, the Alaska breeding ground population could decline significantly before current survey methods would detect a declining trend. Other breeding areas are not surveyed at all.

(5) Yellow-billed loons have relatively low annual recruitment but relatively high annual adult survival, meaning that individuals must live many years to replace themselves with offspring that survive to recruit into the breeding population. Biologists identify species such as the yellow-billed loon as K-selected species, which are especially vulnerable to threats and are less likely to recover after declines.

(6) While comprehensive information on the biology of the yellow-billed loon is not complete, available scientific information and the professional judgment of knowledgeable biologists suggests that loons in general are relatively sensitive to human activity, and development and infrastructure located close to breeding lakes will affect the species and may cause reduced breeding success and declining populations. Flushing or other changes in normal nesting behavior can cause eggs or young to be vulnerable to cold and predation. Increased predation of eggs and chicks due to human disturbance has been documented in loons.

(7) Approximately 75 percent of the yellow-billed loons that nest in Alaska are found within the NPR-A (25 percent in NE NPR-A and 50 percent in NW NPR-A), which is managed by BLM. Of the 1.9 million ha (4.6 million ac) in NE NPR-A, a 1998 Record of Decision (ROD) made 87 percent available for oil and gas leasing. In June 2004, the BLM released a draft amended EIS that may allow an increase in the area available for leasing to 95 percent of the unit. In the 3.6 million ha (8.8 million ac) of NW NPR-A, a January 2004 ROD made all BLM-administered lands available for leasing. The EIS process for the 4.1 million-ha (10.1 million-ac) S NPR-A has begun. In summary, much of the higher density loon breeding area lies within the area identified as having high potential for oil development and exploration and development has begun in certain areas and will likely begin in others soon (i.e., within the next ten years).

(8) As exploration and development occurs in the NPR-A, the potential for disturbance, pollution, hydrologic alterations, and other impacts on the yellow-billed loon and its limited, specific, and concentrated breeding habitat will need to be addressed. Additionally, increased predator numbers are often associated with industrial development in Arctic areas and could adversely impact nesting success without careful planning and management.

(9) Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information to indicate that the petitioned action may be warranted. Our standard for substantial scientific information 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)). When a substantial finding is made, we are required to promptly begin a thorough review of the status of the species, if one has not already been initiated.

We have determined that the information in the petition would lead a reasonable person to believe that the measure proposed by the petition may be warranted. Therefore, we find that the petition presents substantial information indicating that listing the yellow-billed loon may be warranted. While we note the lack of documented scientific information on the effects of threats to yellow-billed loons, the yellow-billed loon is restricted in its breeding habitat and, in Alaska, it breeds primarily within a geographic area that has significant development potential. Therefore, the responsible course of action is to review in detail the threats and vulnerabilities listed in the petition and to thoroughly review the scientific literature and other information to determine if listing the species is warranted. To do otherwise could subject the species to significant risks from which it may have difficulty recovering. We have also developed, together with the BLM and other agencies, a Conservation Agreement that addresses a subset of threats to the loon in a portion of the species' range. The strategies for conservation in the Agreement include: Implement specific actions to protect yellow-billed loons and their breeding habitats in Alaska from potential impacts of land uses and management activities, including oil and gas exploration and development; inventory and monitor yellow-billed loons breeding populations in Alaska; determine and reduce, if significant, the impact of subsistence activities on yellow-billed loons (including subsistence fisheries and hunting) in Alaska; and conduct biological research on yellow-billed loons, including response to management actions. We invite comments on management strategies and research needs that should be considered during scheduled annual reviews of the Conservation Agreement.

Following completion of the status review, we will evaluate whether the species or a Distinct Population Segment warrant listing as endangered or threatened. The petitioners also requested that critical habitat be designated for this species. We always consider the need for critical habitat designation when listing species. If we determine in our 12-month finding that listing the yellow-billed loon is warranted, we will address the designation of critical habitat at the time of the proposed rulemaking.

A complete list of all references cited herein is available upon request from the Fairbanks Fish and Wildlife Field Office, U.S. Fish and Wildlife Service (see ADDRESSES ).

The primary author of this document is Dr. Angela Matz, Fairbanks Fish and Wildlife Field Office, U.S. Fish and Wildlife Service, Fairbanks, Alaska.

Public Information Solicited

When we make a finding that substantial information exists to indicate that listing or delisting a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting any additional information, comments, or suggestions on the Utah valvata snail from the public, State and Federal agencies, Tribes, the scientific community, industry or environmental entities, or any other interested parties. Information sought includes any data regarding historical and current distribution, biology and ecology, ongoing conservation measures for the species or its habitat, and threats to the species or its habitat. We also request information regarding the adequacy of existing regulatory mechanisms.

Please note that comments merely stating support or opposition to the actions under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species shall be made “solely on the basis of the best scientific and commercial data available.” At the conclusion of the status review, we will issue the 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq. ).

If you wish to comment or provide information, you may submit your comments and materials concerning this finding to the Field Supervisor (see ADDRESSES ) by the date listed in the DATES section.

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the address listed in the ADDRESSES section.

Section 4(b)(3)(A) of the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et seq. ), 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. The finding is based on information contained in the petition and information otherwise available in our files at the time we make the finding. To the maximum extent practicable, we are to make the finding within 90 days of receiving the petition, and publish our notice of the finding in the Federal Register .

This finding summarizes the information included in the petition and information available to us at the time of the petition review. Under section 4(b)(3)(A) of the Act and our regulations in 50 CFR 424.14(b), our review of a 90-day finding is limited to a determination of whether the information in the petition meets the “substantial scientific or commercial information” threshold. Our standard for substantial information 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 information was presented, we are required to promptly commence a review of the status of the species and publish the results of that status review in a 12-month finding.

The Utah valvata snail is a habitat generalist, occupying coldwater springs, spring creeks, the mainstem Snake River, and reservoirs in both fine sediments and more coarse substrates at a variety of water depths (Hinson 2006, pp. 30-33). Utah valvata snails have been documented in discontinuous colonies along a 260-mile stretch of the Snake River in southern and eastern Idaho from Upper Salmon Falls Dam in southern Idaho (River Mile (RM) 581.3) upstream to the State Highway 33 Bridge on the Henry's Fork in eastern Idaho (Hinson 2006, p. 15). Colonies are also known to exist in Snake River tributaries ( e.g. , the Big Wood River and Box Canyon Creek) and in coldwater springs adjacent to the Snake River ( e.g. , Thousand Springs Preserve) (reviewed by Hinson 2006, p. 15).

The Utah valvata snail is univoltine, meaning it has a 1-year life cycle. Emergence of new cohorts of the Utah valvata snails occurs throughout the year, depending on habitat (Frest and Johannes 1992, p. 15; U.S. Bureau of Reclamation (USBR) 2002, pp. 6-7; USBR 2003, pp. 9-12; Lysne 2003, p. 93), and is followed by rapid growth through the summer and fall. Over winter, snails become dormant (Cleland 1954, p. 170; Lysne 2003, p. 83, USBR 2003, pp. 9-12). Following the cessation of dormancy in spring, growth continues through summer until sexual maturity is reached at 4 to 5 millimeters (mm) of length (Hershey 1990, p. 29; Lysne and Koetsier 2006, p. 287). Reproduction and spawning occur asynchronously between March and October, depending on habitat, with the majority of young spawned between August and October (Cleland 1954, p. 172; USBR 2003, p. 9). Emergence of a new cohort follows approximately two weeks after oviposition (Cleland 1954, p. 170; Heard 1963, p. 66; Dillon 2000, p. 103) and senescent snails ( i.e. , those approximately 1 year old) die shortly after reproduction (Cleland 1954, pp. 170-171; Lysne and Koetsier 2006, p. 287).

We listed the Utah valvata snail as endangered on December 14, 1992 (57 FR 59244). At that time, we determined that the Utah valvata snail was threatened by construction of new hydropower dams, the operation of existing hydropower dams, degraded water quality, water diversions, the introduced New Zealand mudsnail ( Potamopyrgus antipodarum ), and the lack of existing regulatory protections (57 FR 59244). The Utah valvata snail was described as existing “at a few springs and mainstem Snake River sites in the Hagerman Valley and at a few sites below American Falls Dam downstream to Burley [Idaho].” We published the Snake River Aquatic Species Recovery Plan, which included the Utah valvata snail, in 1995 (Service 1995). Critical habitat has not been designated for this species.

On December 26, 2006, we received a petition from the Governor of Idaho and attorneys for several irrigation districts and canal companies requesting that the Utah valvata snail be removed from the List. The delisting petition cites a recent status review conducted by Steward & Associates (Hinson 2006), a review of Utah valvata snail sampling methodology (D.R. Hinson and C. Steward (Steward & Associates), in litt. 2007), a memorandum addressing perceived threats to Utah valvata snail from 1996 to 2006 (Barker Rosholt & Simpson LLP, in litt. 2006), the Mid-Snake Springs Habitat Protection Plan (Wilkison 2005), species data from the Thousand Springs Preserve (Idaho Power 2006, unpublished data), water quality data from Idaho Department of Environmental Quality (IDEQ 2007), and U.S. Bureau of Reclamation data for the Utah valvata snail (USBR 2002, 2003, 2005). The petition clearly identified itself as a petition and included the requisite identification information for the petitioners, as required in 50 CFR 424.14(a). The petition cited information on the natural history of the Utah valvata snail, its population status, and advances in knowledge about the species' ecology and threats since listing. The petition states that many of the threats identified in the 1992 listing rule no longer exist or have been attenuated by subsequent actions. It also states that the Utah valvata snail is more abundant, is more continuously distributed, and exists in more diverse habitats than previously recorded.

The factors for listing, delisting, or reclassifying a species are described at 50 CFR 424.11. We may delist a species only if the best scientific and commercial data available substantiate that it is neither endangered nor threatened. Delisting may be warranted as a result of: (1) Extinction, (2) recovery, and/or (3) a determination that the original data used for classification of the species as endangered or threatened were in error.

Section 4(a)(1) of the Act requires that we determine whether a species is endangered or threatened based on one or more of the five following factors: (A) Present or threatened destruction, modification, or curtailment of habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) 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 presented in the December 2006 petition, when considered along with information in our files, constitutes substantial scientific or commercial information such that delisting may be warranted. Our evaluation of this information is presented below.

The petitioners claim that Utah valvata snails are able to live in a variety of habitats previously thought to be unsuitable for the species, including reservoirs. They provided a status report by Hinson (2006) as the primary source of information to support this claim. Hinson (2006, p. 21) used available data from the Bureau of Reclamation, Idaho Power Company, Hinson & Falter, the Idaho Department of Fish and Game, the Service, and the Idaho Transportation Department to analyze the current distribution of Utah valvata snails related to habitat features (i.e., depth and dominant substrate size). Based on this analysis, Hinson (2006, pp. 3, 23-32) reported Utah valvata snails using a number of substrates (fines, cobbles, gravel), habitat types (river, springs, reservoirs), depths (from less than 1.6 feet (ft) (0.5 meter (m)) to greater than 32.8 ft (10 m)), and water temperatures (from 40.1 degrees Fahrenheit (°F) (4.5 degrees Celsius (°C)) to 66.6 °F (19.2 °C)). The snails have also been found in areas of low and high concentrations of aquatic plants, and, in one case, were found in very fine, black, organically enriched sediments with dense submerged aquatic plant communities and attached filamentous (long thread-like) algae (Hinson 2006, pp. 30-33).

At the time of listing, we stated: “In the Snake River, V. utahensis lives in deep pools adjacent to rapids or in perennial flowing waters associated with large spring complexes. The species avoids areas with heavy currents or rapids. The snail prefers well-oxygenated areas of non-reducing calcareous mud or mud-sand substrate among beds of submergent aquatic vegetation. The species is absent from pure gravel-boulder bottoms” (57 FR 59244, p. 59245).

We accept the petitioners' characterization of Utah valvata snail habitat use and find that they have presented substantial information suggesting that current information about Utah valvata snail habitat use may be different than indicated by the best available information at the time of listing in 1992.

Based primarily on a status report by Hinson (2006), the petitioners claim that the species is more widely distributed than recorded at the time of listing in 1992. Hinson (2006, p. 15) reported that Utah valvata snails occupy discontinuous colonies in a 260-mile (418-kilometer) range in the Snake River Basin from Upper Salmon Falls Dam (RM 581.3) upstream to the State Highway 33 bridge on the Henry's Fork. Colonies are also known to exist in habitats adjacent to mainstem Snake River habitats, including the Big Wood River (joins the Snake River at RM 571), Box Canyon Creek (joins the Snake River at RM 588), and Thousand Springs Preserve (joins the Snake River at RM 585) (reviewed by Hinson 2006, p. 15). Based on a collection of empty shells of recent origin, colonies may also exist in Magic Reservoir, upstream of the Big Wood River colony (J. Keebaugh, Orma J. Smith Museum of Natural History, pers. comm. 2006, cited in Hinson 2006, p. 15). At present, the most abundant colonies of Utah valvata snails known to exist in the Snake River Basin occur in river and reservoir habitats from Minidoka Dam (RM 675) upstream to the middle portion of American Falls Reservoir (approximately RM 725) (reviewed by Hinson 2006, p. 15).

At the time of listing, we stated: “The Utah valvata snail historically occurred from river mile 492 (near Grandview) to river mile 585 just above Thousand Springs with a disjunct population in the American Falls Dam tailwater near Eagle Rock damsite at river mile 709. The taxa was known historically from northern Utah, although recent mollusk surveys throughout the State revealed no live sites and the species is believed extirpated there (Clarke 1991). At present, this species occurs in a few springs and mainstem Snake River sites in the Hagerman Valley and a few sites below American Falls Dam downstream to Burley (Beak 1987; Taylor 1987)” (57 FR 59245).

We accept the petitioners' characterization of the Utah valvata snail's current range and find that they have presented substantial information indicating that the current range of the Utah valvata snail may be significantly larger than the range we described in our 1992 listing rule.

The petition states that threats to Utah valvata snail habitat from future hydro-power development are not as they were perceived when the species was listed in 1992. The petitioners provided a document from the State of Idaho (Idaho 2006), indicating that all recent permits for the construction of new dams along the Mid-Snake River have either lapsed or have been denied by the Federal Energy Regulatory Commission (FERC). They also provided the following documents as evidence that specific permits are no longer moving forward: (1) A 2002 notice of surrender of preliminary permit for the River Side Project (FERC 2002a), (2) 2002 orders denying application for preliminary permits for the Eagle Rock (FERC 2002b) and Star Falls Hydroelectric Projects (FERC 2002c), and (3) a 2003 notice of surrender of preliminary permit for the Auger Falls Project (FERC 2003).

At the time of listing, there were six active proposals for new hydroelectric projects in the middle-Snake River. In our listing rule, we stated: “Six proposed hydroelectric projects, including two high dam facilities, would alter free flowing river reaches within the existing range of [the Utah valvata snail]. Dam construction threatens the [Utah valvata snail] through direct habitat modification and moderates the Snake River's ability to assimilate point and non-point pollution. Further hydroelectric development along the Snake River would inundate existing mollusk habitats through impoundment, reduce critical shallow, littoral shoreline habitats in tailwater areas due to operating water fluctuations, elevate water temperatures, reduce dissolved oxygen levels in impounded sediments, and further fragment remaining mainstem populations or colonies of these snails” (57 FR 59251).

We have no information in our files suggesting that future hydropower development in the middle-Snake River is likely to occur and we therefore accept the petitioners' claim that the threats from hydropower development may have dissipated since the time of listing.

A threats analysis provided by the petitioners states that threats to Utah valvata snail habitat from water pollution are not as they were perceived when the species was listed in 1992 (Barker et al. 2006, in litt., p. 10). The petitioners presented data on improvements to Snake River water quality and on changes in our understanding of Utah valvata snail's tolerance of nutrient-rich (e.g., nitrogen and phosphorus) water in the Snake River resulting from return flows from irrigated agriculture, runoff from feedlots and dairies, hatchery effluent, municipal sewage effluent, and other point and non-point discharges. The Utah valvata snail status report provided by the petitioners (Hinson 2006, p. 19) noted that the U.S. Bureau of Reclamation (2003) conducted studies measuring the organic content in the sediment (ash-free dry weight) where Utah valvata snails are found in an attempt to create an index that relates snail densities with available forage. The highest Utah valvata snail densities sampled coincided with lower Lake Walcott reservoir habitat that had the greatest percentage of organic content in the sediments, suggesting that Utah valvata snails can reach their greatest densities in areas that are subject to high concentrations of nitrogen and phosphorus (Hinson 2006, p. 19).

At the time of listing, we stated: “The quality of water in [snail] habitats has a direct effect on the species survival. The [Utah valvata snail] require[s] cold, well-oxygenated unpolluted water for survival. Any factor that leads to a deterioration in water quality would likely extirpate [the Utah valvata snail]” (57 FR 59244, p. 59252).

Therefore, we find that the petitioners have presented substantial information indicating that Utah valvata snails may be more tolerant of nutrient-rich waters than indicated by the best available information at the time of listing in 1992.

The petitioners did not provide information regarding the overutilization of Utah valvata snails for commercial, recreational, scientific, or educational purposes. We did not consider this factor applicable to our listing decision in 1992, and we do not have information in our files suggesting that overutilization is a threat to the species.

The petitioners did not provide information regarding the effects of disease or predation on Utah valvata snails. At the time of listing we stated that changes in the fish fauna of the middle Snake River had been suggested as a potential threat to the Utah valvata snail (57 FR 59244, p. 59253). At that time there was no data to support this suggestion, and we did not consider this factor to be significant in our listing decision. Currently, we have no information in our files suggesting that disease or predation are significant threats to the Utah valvata snail.

The petitioners provided numerous documents regarding surface water quality programs, water rights, aquifer recharge, and groundwater management in the Snake River and Snake River Plain aquifer (e.g., Idaho 2004; Idaho 2005; IDWR 2006). These documents indicate that the State of Idaho has regulatory mechanisms to limit or exclude the development of new surface water or groundwater rights within the range of the Utah valvata snail. These documents also indicate that the State has regulatory mechanisms to prioritize existing water rights based on seniority.

At the time of listing, we found inadequate regulatory mechanisms to be a threat because (1) regulations were inadequate to curb further water withdrawal from groundwater spring outflows or tributary spring streams, (2) it was unlikely that pollution control regulations would reverse the trend in nutrient loading in the near future, (3) there was a lack of protections for invertebrate species in Idaho, and (4) regulations did not require FERC or the U.S. Army Corp of Engineers to address Service concerns regarding licensing hydroelectric projects or permitting projects under the Clean Water Act for unlisted snails.

Information provided by the petitioner, along with information in our files, suggests that the threat to Utah valvata snails from inadequate regulatory mechanisms may be less than indicated by the best available information at the time of listing. There are now regulatory mechanisms to limit future surface water and groundwater development, and some pollution control regulations have been implemented.

The status report provided by the petitioner (Hinson 2006) states that threats to the Utah valvata snail from the New Zealand mudsnail ( Potamopyrgus antipodarum ) are not as they were perceived when the species was listed in 1992. According to Hinson (2006, pp. 41-42), the fact that Utah valvata snails and New Zealand mudsnails frequently occur in the same samples indicates that these two species are able to co-exist, which either indicates that resources are not limiting or that the snails actually have slightly different algae preferences.

However, Hinson (2006, p. 41) also notes that the overlap in habitat utilization between the Utah valvata snail and the New Zealand mudsnail could lead to direct competition for resources between these two species. Hinson (2006, p. 41) states: “ P. antipodarum densities have been steadily increasing in reservoir habitats of the Snake River (e.g., Lake Walcott) (USBOR 2003; USBOR 2004a). This overlap in habitat utilization between V. utahensis and P. antipodarum could lead to direct competition for resources between these two species. Known densities of the exotic P. antipodarum in the Middle Snake River can exceed 800,000 individuals per square meter (Minshall 1993). This factor alone increases the likelihood that V. utahensis can be outcompeted by P. antipodarum and physically displaced in areas where the two species overlap. P. antipodarum populations in the Snake River Basin have been shown to reproduce rapidly and quickly deplete growths of periphytic algae (USFWS 2005), which is known to be an important food source for V. utahensis and many of the other listed Snake River snails.”

At the time of listing, we stated that New Zealand mudsnails were not abundant in coldwater springflows with colonies of the Utah valvata snail, but that they did compete with the Utah valvata snail in the mainstem Snake River (57 FR 59244, p. 59254). We have no direct evidence that New Zealand mudsnails have displaced colonies of Utah valvata snails, but New Zealand mudsnails have been documented in dense mats (at densities of nearly 400 individuals per square inch) in free-flowing habitats within the range of the Utah valvata snail (57 FR 59244, p. 59254). Furthermore, New Zealand mudsnails have become established in every spring-fed creek or tributary to the Snake River in the Hagerman Reach that has been surveyed.

Based on information provided by the petitioner, along with information in our files, New Zealand mudsnails likely compete with Utah valvata snails for food or space. Although the information provided by the petitioners indicates that the Utah valvata snail and New Zealand mudsnail co-occur in various locations, the petitioners acknowledge that, given the densities that New Zealand mudsnails can achieve, there is an increased likelihood that “ V. utahensis can be outcompeted by P. antipodarum and physically displaced in areas where the two species overlap.” Therefore, we find that Hinson's (2006) analysis is largely consistent with our analysis at the time of listing in 1992, and that New Zealand mudsnails may still be a substantive threat to the Utah valvata snail.

We have reviewed the delisting petition and the supporting documents, as well as other information in our files. We find that the delisting petition and other information in our files presents substantial information indicating that delisting the Utah valvata snail may be warranted, and we are initiating a status review. Petitioners have provided a detailed status report that updates the state of knowledge regarding Utah valvata snail habitat use, distribution, and threats. The status report provides substantial information indicating that the Utah valvata snail may be more widely distributed than previously recorded and that it can occur in a wide variety of habitat types, substrates, depths, and water temperatures. Information provided by the petitioners also indicates that threats from hydropower development are not what we perceived when we listed the species in 1992, and that additional regulatory mechanisms now exist that could limit water development and improve water quality in Utah valvata snail habitat. New Zealand mudsnails appear to be a persistent threat to the Utah valvata snail, but the significance of this threat must be more fully evaluated in the context of the remaining threats and the species' overall status.

Section 4(c)(2)(A) of the Act requires that we conduct a status review of listed species at least once every 5 years. We are then, under section 4(c)(2)(B), to determine whether any species should be removed from the List (delisted), or reclassified from endangered to threatened, or threatened to endangered. We initiated a 5-year review for the Utah valvata snail on April 11, 2006 (71 FR 18345). We are currently in the process of completing our 5-year review and will incorporate that review into our 12-month finding.

A complete list of all references cited in this finding is available, upon request, from the Snake River Fish and Wildlife Office (see ADDRESSES section).

The primary author of this document is Jesse D'Elia, Pacific Regional Office, Portland, Oregon.

The authority for this action is section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq. ).

In the draft Environmental Assessment, we considered three alternatives for amending the falconry and raptor propagation regulations. In particular, at the request of the Association of Fish and Wildlife Agencies, we considered elimination of the federal/state falconry permitting system and replacing it with a state permitting system operating within a prescribed federal framework.

We received 313 electronic or written comment letters on the draft Environmental Assessment. We modified the Draft Environmental Assessment to respond to concerns expressed by agencies, organizations, and individuals.

Having reviewed the comments on the draft, our proposed action is to establish national take levels of concern for take of raptor species based on the published data for, and biology of, each species; to eliminate the federal permitting for falconry, but to leave the current captive propagation federal permitting program in place. Based on this assessment, I have signed the Finding of No Significant Impact for take of raptors from the wild for use in falconry and in raptor propagation.