On May 22, 2007, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class E airspace at Centreville, AL, (72 FR 28622). This action provides adequate Class E airspace for IFR operations at Bibb County Airport. Designations for Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in FAA Order 7400.9P, dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR part 71.1. The Class E designations listed in this document will be published subsequently in the Order.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) establishes Class E airspace at Centreville, AL.

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. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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 routing matter that will only affect air traffic procedures and air navigation, it is certified that this 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.

On May 22, 2007, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class E2 airspace at Vero Beach, FL (72 FR 28623). This action provides adequate Class E2 airspace for IFR operations at Vero Beach Municipal Airport when the tower is closed. Designations for Class E airspace areas designated as surface areas are published in FAA Order 7400.9P, dated September 16, 2006, and effective September 16, 2006, which is incorporated by reference in 14 CFR part 71.1. The Class E designations listed in this document will be published subsequently in the Order.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) establishes Class E2 airspace at Vero Beach, FL.

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. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; 2) is not a “significant rule” under 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 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.

The Bureau amends its regulations on searches of inmates, housing units, and inmate work areas with respect to the use of electronic devices (28 CFR part 552, subpart B). This document also withdraws the Bureau's proposal to amend its rules on searches of non-inmates (28 CFR part 511, subpart B), which has been incorporated into a separate rule (72 FR 31178, June 6, 2007, effective July 6, 2007). We published a proposed rule contemplating changes to both sets of rules on February 25, 1999 (64 FR 9431) (1999 proposed rule).

Our current regulations allow for the use of electronic devices as part of our general security measures. While the regulations refer to electronic devices in general in some instances, in other instances, they merely refer to metal detectors.

When we first issued regulations on this subject, the most commonly used electronic devices (that we used) were metal detectors. Due to advances in technology, new types of electronic devices (such as ion spectrometers) are now available which can detect non-metal contraband, such as narcotics or illegal drugs. We therefore revise our regulations to remove possible confusion regarding the use of the various electronic devices. Technically, this is a minor change in policy.

Regulations on searching visitors. The 1999 proposed rule would have amended current procedures for searching visitors in the following manner: We had planned to revise the definition of reasonable suspicion at 28 CFR 511.11(a), which stated that we may base reasonable suspicion on a positive reading of a metal detector, to state that we may base reasonable suspicion on an electronic detection device's positive reading. We had also planned to revise the reference to “electronic means” in § 511.12(b)(1) to read “electronic devices” to maintain consistency.

However, because the Bureau recently published a final rule (72 FR 31178, June 6, 2007, effective July 6, 2007) that revises regulations on searches of visitors and other non-inmates, we withdrew the change contemplated by the 1999 proposed rule, and revisited that change as part of the new final rule. We note that the changes made by the final rule regarding searches of non-inmates have no impact on the changes regarding searches of inmates described below.

Regulations on searches of housing units, inmates, and inmate work areas. The previous regulations required staff to use the least intrusive search method practicable, as indicated by the type of contraband and the method of suspected introduction. Procedures governing pat searches of inmates (§ 552.11(a)) further noted that a metal detector search may be done under the same circumstances ( i.e. , on a routine or random basis to control contraband).

We revise these provisions to clarify the role of electronic devices in general. We redesignate existing procedures in § 552.11 to make room for a new paragraph (a) regarding electronic devices. Listing electronic devices first emphasizes the non-intrusive nature of such searches.

We received comment from the American Civil Liberties Union (ACLU) and five other respondents, all of whom opposed the proposed rule. The ACLU commented only with regard to the portion of the 1999 proposed rule relating to searches of non-inmates. Other commenters raised concerns similar to those of the ACLU. Because these comments relate to the portion of the 1999 proposed rule regarding searches of non-inmates, we will not address those comments in this document, as we published a final rule regarding searching non-inmates (72 FR 31178, June 6, 2007, effective July 6, 2007). We address comments regarding searches of non-inmates as part of that new rulemaking.

With regard to the portion relating to searches of inmates, one commenter expressed concern that random sampling was susceptible to racial profiling. Another was concerned that Bureau staff would be unable to operate the electronic detection devices in a fair manner. We disagree with concerns raised over possible racial profiling or the ability of staff to operate the testing devices in a fair manner. Both training for staff and documented procedures for random and follow-up sampling ensure nondiscriminatory and professional operation of the testing devices.

This regulation 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 not a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has not been reviewed by the Office of Management and Budget (OMB).

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. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

The Director of the Bureau of Prisons, 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 upon a substantial number of small entities for the following reasons: This rule pertains to the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds.

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.

This rule is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

I. Background

Sections 111(d) and 129 of the CAA require states to submit plans to control certain pollutants (designated pollutants) at existing solid waste combustor facilities (designated facilities) whenever standards of performance have been established under section 111(b) for new sources of the same type, and EPA has established emission guidelines (EG) for such existing sources. A designated pollutant is any pollutant for which no air quality criteria have been issued, and which is not included on a list published under section 108(a) or section 112(b)(1)(A) of the CAA, but emissions of which are subject to a standard of performance for new stationary sources. However, section 129 of the CAA, also requires EPA to promulgate EG for other solid waste incineration (OSWI) units that emit a mixture of air pollutants. These pollutants include organics (dioxins/furans), carbon monoxide, metals (cadmium, lead, mercury), acid gases (hydrogen chloride, sulfur dioxide, and nitrogen oxides) and particulate matter (including opacity).

On December 16, 2005 (70 FR 74870, and 74907), EPA promulgated OSWI unit new source performance standards, 40 CFR part 60, subparts EEEE, and emission guidelines (EG), subpart FFFF, respectively.

The designated facilities to which the EG apply are existing very small municipal solid waste combustion (MWC) units that have a design combustion capacity of less than 35 tons per day and institutional waste incineration units that commenced construction on or before December 9, 2004.

Subpart B of 40 CFR part 60 establishes procedures to be followed and requirements to be met in the development and submission of state plans for controlling designated pollutants. Also, 40 CFR parts 62 provides the procedural framework for the submission of these plans. When designated facilities are located in a state, the state must then develop and submit a plan for the control of the designated pollutant. However, 40 CFR 60.23(b) and 62.06 provide that if there are no existing sources of the designated pollutant in the state, the state may submit a letter of certification to that effect (i.e., negative declaration) in lieu of a plan. The negative declaration exempts the state from the requirements of subpart B that require the submittal of a 111(d)/129 plan. Under subpart FFFF, State are required to submit by December 18, 2006 a negative declaration or approvable section 111(d)/129 plan.

The States of Delaware and West Virginia have determined that there are no designated facilities, subject to subpart FFFF requirements, in their respective air pollution control jurisdiction. Accordingly, each air pollution control agency has submitted to EPA a negative declaration letter certifying that fact. The submittal dates of these letters are June 26, and June 2, 2006, respectively.

Accordingly, EPA is amending part 62 to reflect the receipt of these negative declaration letters from the noted air pollution control agencies. Amendments are being made to the following 40 CFR part 62 subparts: I—Delaware, and XX—West Virginia.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely notifies the public of EPA receipt of negative declarations from state air pollution control agencies without any existing OSWI units in their jurisdiction. This action imposes no requirements. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this action is only a notice and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This action also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely notifies the public of EPA's receipt of negative declarations for existing OSWI units from state agencies and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This action also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal Standard.

With regard to negative declarations for OSWI units received by EPA for states, EPA's role is only to notify the public of the receipt of such negative declarations. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to approve or disapprove a CAA section 111(d)/129 plan negative declaration submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a CAA section 111(d)/129 negative declaration, to use VCS in place of a section 111(d)/129 negative declaration that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. This action is not a rulemaking, however, EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 10, 2007. Filing a petition for reconsideration by the Administrator of this action does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such action.

This action approving the section 111(d)/129 negative declarations submitted by the States of Delaware, and West Virginia may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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 those engaged in the following activities:

• Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.

• Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.

• Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.

• Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.

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

In addition to accessing an electronic copy of this Federal Register document through the electronic docket at http://www.regulations.gov , you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr . You may also access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at http://www.gpoaccess.gov/ecfr .

Under section 408(g) of the FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2005-0149 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before September 10, 2007.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA-HQ-OPP-2005-0149, by one of the following methods:

•  Federal eRulemaking Portal : http://www.regulations.gov . Follow the on-line instructions for submitting comments.

•  Mail : Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

•  Delivery : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305-5805.

In the Federal Register of July 2, 2003 (68 FR 39541) (FRL-7312-9), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 3F6576) by E.I. du Pont de Nemours and Company, Newark, DE 19711. The petition requested that 40 CFR 180.564 be amended by establishing a tolerance for combined residues of the insecticide indoxacarb, ( S )-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4- (trifluoromethoxy)phenyl]amino]carbonyl]indeno[1,2-e][1,3,4][oxadiazine-4a(3 H )-carboxylate, and its R-enantiomer, ( R )-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl) [4-(trifluoromethoxy)phenyl]amino]carbonyl]indeno[1,2-e][1,3,4][oxadiazine-4a(3 H )-carboxylate, in or on grape at 2.0 parts per million (ppm) and raisin at 6.0 ppm. That notice included a summary of the petition prepared by E.I. du Pont de Nemours and Company, the registrant, which is available to the public in the docket EPA-HQ-OPP-2003-0212, http://www.regulations.gov . One comment was received on the notice of filing from a private citizen expressing support for the proposed tolerances.

In the Federal Register of May 5, 2004 (69 FR 25104) (FRL-7354-9), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 2E6482) by the Interregional Research Project No. 4 (IR-4). The petition requested that 40 CFR 180.564 be amended by revoking Brassica , head and stem, subgroup at 5.0 ppm and establishing a tolerance for combined residues of the insecticide indoxacarb, ( S )-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl]amino]carbonyl]indeno[1,2-e][1,3,4][oxadiazine-4a(3 H )-carboxylate, and its R-enantiomer, ( R )-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl]amino]carbonyl]indeno[1,2-e][1,3,4][oxadiazine-4a(3 H )-carboxylate, in or on vegetable, , leafy, group 5 at 12 ppm and turnip greens at 12 ppm. That notice included a summary of the petition prepared by E.I. du Pont de Nemours and Company, the registrant, which is available to the public in the docket EPA-HQ-OPP-2004-0064, http://www.regulations.gov . There were no comments received in response to the notice of filing.

In the Federal Register of June 30, 2005 (70 FR 37852) (FRL-7718-9), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of pesticide petitions (PP 5E6911 and 5E6926) by the Interregional Research Project No. 4 (IR-4). The petitions requested that 40 CFR 180.564 be amended by establishing a tolerance for combined residues of the insecticide indoxacarb, ( S )-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl]amino]carbonyl]indeno[1,2-e][1,3,4][oxadiazine-4a(3 H )-carboxylate, and its R-enantiomer, ( R )-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl]amino]carbonyl]indeno[1,2-e][1,3,4][oxadiazine-4a(3 H )-carboxylate, in or on leafy greens, except spinach, subgroup 4A at 10 ppm; spinach at 3.0 ppm; leaf petioles subgroup 4B at 1.5 ppm; fruit, pome, except pear, group 11 at 1.0 ppm; vegetable, tuberous and corm, subgroup 1C at 0.01 ppm; okra at 0.5 ppm (all requested in PP 5E6911); pea (Southern) at 0.1 ppm; and mint at 10 ppm (both requested in PP 5E6926). That notice included a summary of the petition prepared by E.I. du Pont de Nemours and Company, the registrant, which is available to the public in the docket EPA-HQ-OPP-2005-0149, http://www.regulations.gov . There were no comments received in response to the notice of filing.

In the Federal Register of April 12, 2006 (71 FR 18738) (FRL-7772-2), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5E6991) by the Interregional Research Project No. 4 (IR-4). The petition requested that 40 CFR 180.564 be amended by establishing a tolerance for combined residues of the insecticide indoxacarb, ( S )-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl]amino]carbonyl]indeno[1,2-e][1,3,4][oxadiazine-4a(3 H )-carboxylate, and its R-enantiomer, ( R )-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl]amino]carbonyl]indeno[1,2-e][1,3,4][oxadiazine-4a(3H)-carboxylate, in or on vegetable, cucurbit, group 9 at 0.5 ppm; fruit, stone, group 12 at 1 ppm; and cranberry at 1 ppm. That notice referenced a summary of the petition prepared by E.I. du Pont de Nemours and Company, the registrant, which is available to the public in the docket EPA-HQ-OPP-2005-0149, http://www.regulations.gov . There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petitions, EPA has modified the proposed tolerances. The reasons for these changes are explained in Unit V.

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” These provisions were added to the FFDCA by the Food Quality Protection Act (FQPA) of 1996.

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for tolerances for combined residues of indoxacarb, ( S )-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl]amino]carbonyl]indeno[1,2- e ][1,3,4][oxadiazine-4a(3 H )-carboxylate, and its R-enantiomer, ( R )-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl]amino]carbonyl]indeno[1,2- e ][1,3,4][oxadiazine-4a(3 H )-carboxylate, in or on cranberry at 0.90 ppm; fruit, pome, except pear, group 11 at 1.0 ppm; fruit, stone, group 12 at 0.90 ppm; grape at 2.0 ppm; grape, raisin at 5.0 ppm; okra at 0.50 ppm; pea, southern, seed at 0.10 ppm; pear, oriental at 0.20 ppm; peppermint, tops at 11 ppm; spearmint, tops at 11 ppm; turnip greens at 12 ppm; vegetable, Brassica , leafy, group 5 at 12 ppm; vegetable, cucurbit, group 9 at 0.60 ppm; vegetable, leafy, except Brassica , group 4 at 14 ppm; and vegetable, tuberous and corm, subgroup 1-C at 0.01 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by indoxacarb as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov . The referenced document is available in the docket established by this action, which is described under ADDRESSES , and is identified as EPA-HQ-OPP-2005-0149 in that docket.

Indoxacarb is an isomeric compound containing two enantiomers, the S -enantiomer (DPX-KN128, the insecticidally active component) and its R -enantiomer (DPX-KN127, the insecticidally inactive component). DPX-MP062 is an enantiomeric mixture containing the S -enantiomer and its R -enantiomer at approximately a 75:25 ratio. DPX-JW062 is the racemic mixture of the enantiomers at a 50:50 ratio.

DPX-KN128, DPX-MP062 and DPX-JW062 appear to be of similar toxicity acutely. DPX-KN128 and DPX-MP062 were moderately acutely toxic by the oral route (toxicity category II) while DPX-JW062 was practically non-toxic (toxicity category IV) due to its poor solubility in the corn oil vehicle. However, it was equally toxic orally, when tested using a solvent where it had a higher solubility, such as polyethylene glycol (PEG). By the dermal route, they had low toxicity (toxicity category III and IV). DPX-MP062 and DPX-JW062 had low acute inhalation toxicity (IV). DPX-MP062 and DPX-JW062 had moderate to low ocular irritant properties (III and IV), while DPX-KN128 was practically non-irritating to the rabbit's eyes. By the maximization test, DPX-KN128 and DPX-MP062 were considered dermal sensitizers, while DPX-JW062 was not a sensitizer.

There was possible evidence of lung damage in the acute inhalation studies with both DPX-MP062 and DPX-JW062. “Lung noise,” observed with JW062 may indicate the development of acute lung injury and high permeability pulmonary edema. This was not unexpected since an oxidant was generated during indoxacarb metabolism. “Hunched over back and gasping” were also present and suggested arterial hypoxemia that accompanies alveolar flooding. The acute inhalation study report with indoxacarb 70% manufacturing use product, noted that a “red nasal discharge” was detected for 2 days after exposure. This may be indicative of a lung exudate, a sign of lung injury. Subchronic (28 days) inhalation toxicity on indoxacarb in rats was characterized by increased spleen weights, increased pigmentation and hematopoiesis in the spleen, and hematological changes.

The toxicity profiles for DPX-KN128, DPX-MP062 and DPX-JW062 in rats, mice and dogs with both subchronic and chronic oral exposures were similar. Dermal subchronic exposure in the rat also resulted in a similar profile. The toxic signs occurred at similar doses and with a similar magnitude of response, with females generally being more sensitive than males. The endpoints that most frequently defined the LOAEL were non-specific, and included decreased body weight, weight gain, food consumption and food efficiency. These compounds also affected the hematopoietic system by decreasing the red blood cell count, hemoglobin and hematocrit in rats, dogs and mice. It was frequently accompanied by an increase in reticulocytes in all three species and an increase in Heinz bodies (dogs and mice only). None of these signs of toxicity appeared to get worse over time. In one subchronic rat study, the parameters appeared to return to normal levels following a four-week recovery period. High doses in the rats and mice also sometimes caused mortality.

There was no evidence of susceptibility from either in utero or neonatal exposure to both rat and rabbit young with either DPX-MP062 or DPX-JW062. There was no evidence of susceptibility from in utero exposure in rats with DPX-KN128. There was no evidence of increased susceptibility in the developmental neurotoxicity study in rats with DPX-KN128. No evidence of teratogenicity was observed in rats and rabbits with DPX-MP062 or DPX-JW062. No evidence of teratogenicity was observed in rats with DPX-KN128. There was no evidence of reproductive effects in the 2-generation reproduction study in rats.

Neurotoxicity was present in both rats and mice; however, it did not occur in the absence of other signs of toxicity. Neurotoxicity was characterized by one or more of the following symptoms in both male and female rats and mice: Weakness, head tilting, and abnormal gait or mobility with inability to stand, ataxia. Acute and subchronic neurotoxicity screening batteries were performed using DPX-MP062 in rats. Neurotoxicity was characterized by clinical signs (depression, abnormal gait, head shake, salivation) and functional-observation battery (FOB) (circling behavior, incoordination, slow righting reflex, decreased forelimb grip strength, decreased foot splay, decreased motor activity). However, there was no evidence of neurohistopathology in any study. Learning and memory parameters were affected in the pups in the developmental neurotoxicity study in rats with DPX-KN128.

There was no evidence of carcinogenicity in either the rat or mouse in acceptable studies using DPX-JW062. DPX-JW062 was not mutagenic in a complete battery of mutagenicity studies. There was also no evidence of mutagenicity with either DPX-KN128, or DPX-MP062.

Both DPX-JW062 and DPX-MP062 were rapidly absorbed and eliminated following oral administration. The absorption of DPX-JW062 was dose dependent and appeared to be saturated at the high dose. Both urine and feces represented major routes of excretion (35-45% and 33-47%, respectively). The distribution pattern did not vary with dosing regimen and overall tissue burden was limited to only 3.4-12.9% of the administered dose. The red blood cells of rats dosed with the trifluoromethoxyphenyl label consistently contained much greater levels of radioactivity than did plasma. Fat tissue contained the greatest level of radioactivity (1.76-8.76% of the administered dose) and, for both compounds, was greater in female rats. The finding also demonstrates a greater propensity for accumulation by female rats than by male rats. Both DPX-MP062 and DPX-JW062 were extensively metabolized and the metabolites were eliminated in the urine, feces, and bile. With the exception of parent compound (DPX-JW062, which accounted for 19.2% of a single low dose in the feces of female rats), none of the metabolites from any source represented more than 12.3% of the administered dose. The metabolite profile for DPX-JW062 was dose dependent and varied quantitatively between males and females. Differences in metabolite profiles were also observed for the different label positions. All of the biliary metabolites appear to undergo further biotransformation in the gut.

For hazards that have a threshold below which there is no appreciable risk, the toxicological level of concern (LOC) is derived from the highest dose at which the NOAEL in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment. Uncertainty/safety factors (UF) are used in conjunction with the LOC to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose (“aPAD”) and chronic population adjusted dose (“cPAD”). The aPAD and cPAD are calculated by dividing the LOC by all applicable uncertainty/safety factors. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure (“MOE”) called for by the product of all applicable uncertainty/safety factors is not exceeded.

For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk and estimates risk in terms of the probability of occurrence of additional adverse cases. Generally, cancer risks are considered non-threshold. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm .

A summary of the toxicological endpoints for indoxacarb used for human risk assessment can be found at www.regulations.gov in document “PP#s: 2E6482, 3F6576, 5E6911, 5E6926, and 5E6991. Indoxacarb. Health Effects Division (HED) Risk Assessment for Grapes; Vegetable, Brassica , Leafy, Group 5; Turnip Greens; Vegetable, Leafy, Except Brassica (Group 4); Pome Fruits (Group 11, except pear); Tuberous and Corm Vegetables (Subgroup 1C); Cucurbit Vegetables (Group 9); Stone Fruits (Group 12); Cranberry; Mint; Okra; Southern Pea; and Fire Ant Bait.” at pages 23-24 in Docket ID EPA-HQ-OPP-2005-0149.

1. Dietary exposure from food and feed uses . In evaluating dietary exposure to indoxacarb, EPA considered exposure under the petitioned-for tolerances as well as all existing indoxacarb tolerances in (40 CFR 180.564). EPA assessed dietary exposures from indoxacarb in food as follows:

i. Acute exposure . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. In estimating acute dietary exposure, EPA used food consumption information from the USDA 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA relied upon anticipated residues for most commodities and percent crop treated information for most currently registered commodities. EPA assumed 100 percent crop (PCT) treated for all of the new commodities. Anticipated residues for all registered and new food commodities were based on field trial data.

ii. Chronic exposure . In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 1994-1996 and 1998 Nationwide CSFII. As to residue levels in food, EPA relied upon anticipated residues for most commodities and PCT information for most currently registered commodities. EPA assumed 100 PCT for all of the new commodities. Anticipated residues for all registered and new food commodities were based on field trial data.

iii. Cancer . EPA has classified indoxacarb as “not likely” to be carcinogenic to humans via relevant routes of exposure using the Guidelines for Carcinogen Risk Assessment. Therefore, a cancer exposure assessment was not conducted.

iv. Anticipated residue and PCT information . Section 408(b)(2)(E) of the FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must pursuant to section 408(f)(1) require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

Section 408(b)(2)(F) of the FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

a. The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain such pesticide residue;

b. The exposure estimate does not underestimate exposure for any significant subpopulation group; and

c. Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by section 408(b)(2)(F) of FFDCA, EPA may require registrants to submit data on PCT.

The Agency used PCT information as follows:

For the acute assessment, maximum PCT estimates were used for the following commodities: apple (5%), broccoli (50%), cabbage (25%), cauliflower and the remaining Brassica head and stem vegetables (55%), sweet corn (2.5%), head lettuce (25%), leaf lettuce (11%), peanut (2.5%), pear (2.5%), peppers (15%), potato (2.5%), soybean (1%), spinach (5%) and tomato (25%).

For the chronic assessment, average weighted PCT estimates were used for the following commodities: apple (1%), broccoli (40%), cabbage (15%), cauliflower and the remaining Brassica head and stem vegetables (35%), sweet corn (1%), head lettuce (18%), leaf lettuce (9%), peanut (1%), pear (1%), peppers (10%), potato (1%), soybean (1%), spinach (5%) and tomato (15%).

EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available federal, state, and private market survey data for that use, averaging by year, averaging across all years, and rounding up to the nearest multiple of five percent except for those situations in which the average PCT is less than one. In those cases <1% is used as the average and <2.5% is used as the maximum. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the single maximum value reported overall from available federal, state, and private market survey data on the existing use, across all years, and rounded up to the nearest multiple of five percent. In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), Proprietary Market Surveys, and the National Center for Food and Agriculture Policy (NCFAP) for the most recent six years.

The Agency believes that the three conditions listed above have been met. With respect to Condition 1, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions 2 and 3, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available information on the regional consumption of food to which indoxacarb may be applied in a particular area.

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring data to complete a comprehensive dietary exposure analysis and risk assessment for indoxacarb in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the environmental fate characteristics of indoxacarb. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm .

Based on the EPA's Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated environmental concentrations (EECs) of indoxacarb for acute exposures are estimated to be 25.1 parts per billion (ppb) for surface water and 0.21 ppb for ground water. The EECs for chronic exposures are estimated to be 5.37 ppb for surface water and 0.21 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 25.1 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 5.37 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Indoxacarb is currently registered for the following residential non-dietary sites: as a fire ant bait for turf, which may be applied as a mound treatment or as a broadcast application by “residential” (i.e., private persons) applicators as well as by commercial handlers.

EPA assessed residential exposure using the following assumptions: EPA has determined that residential handlers are likely to be exposed to indoxacarb residues via dermal and inhalation routes during handling and applying activities. Based on the current use pattern, EPA expects duration of exposure to be short-term (1-30 days). The broadcast treatment results in a higher handler exposure than the mound treatment and is, therefore, the scenario assessed by EPA. EPA assessed exposure of residential handlers applying indoxacarb with a push-type spreader using SOPs for Residential Exposure Assessments (DEC-1997) in conjunction with unit exposures developed by the Outdoor Residential Exposure Task Force (ORETF).

There is also the potential for short-term and intermediate-term post-application exposure of adults and children from entering areas previously treated with indoxacarb (i.e., turf treated for fire ants). The post-application scenarios assessed from exposure to treated turf include: Dermal exposure from treated lawns due to high contact lawn activities (adult and toddler); Dermal exposure from treated turf due to golfing (adults and youths); Hand-to-mouth transfer of pesticide residues on lawns (toddler); Incidental ingestion of granules from pesticide-treated residential areas (toddler); and Incidental ingestion of soil from pesticide-treated residential areas (toddler).

4. Cumulative effects from substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to indoxacarb and any other substances and indoxacarb does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that indoxacarb has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www.epa.gov/pesticides/cumulative .

1. In general . Section 408 of FFDCA provides that EPA shall apply an additional (“10X”) tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA safety factor. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional FQPA safety factor value based on the use of traditional uncertainty/safety factors and/or special FQPA safety factors, as appropriate.

2. Prenatal and postnatal sensitivity . There was no quantitative or qualitative evidence of increased prenatal or postnatal sensitivity in the two developmental toxicity studies in rats with DPX-JW062, one developmental toxicity study in rats with DPX-MP062 and DPX-KN128, one developmental toxicity study in rabbits with DPX-JW062, one 2-generation reproduction studies in rats with DPX-JW062 and a developmental neurotoxicity (DNT) study in rats with DPX-KN128. In these studies, developmental toxicity was observed in the presence of maternal toxicity.

3. Conclusion . EPA has determined that reliable data show that it would be safe for infants and children to reduce the FQPA safety factor to 1X. That decision is based on the following findings:

i. The toxicity database for indoxacarb is complete.

ii. Neurotoxicity was seen in animal studies in rats and mice but at higher doses than the hematologic effects on which EPA's risk assessments are based. To evaluate the potential for increased sensitivity of infants and children to neurotoxic effects, EPA required a rat developmental neurotoxicity (DNT) study. The study has been submitted and reviewed. There was no evidence of increased sensitivity of offspring in the submitted study. Clinical observations, motor activity, acoustic startle habituation, and learning and memory testing were all comparable between the control and treated groups. Mean brain weight, gross and microscopic examinations and morphometric measurements of the brain were also comparable between the controls and treated groups.

iii. There is no evidence that indoxacarb results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the two-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. The acute and chronic dietary food exposure assessments utilize anticipated residues for most commodities that are based on reliable field trial data. They also utilize PCT data that have been verified by the Agency for most existing uses. For all new uses, 100 PCT is assumed. The acute and chronic assessments are somewhat refined and based on reliable data and will not underestimate exposure/risk. Conservative ground and surface water modeling estimates were used. Similarly conservative Residential SOPs were used to assess post-application exposure to children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by indoxacarb.

Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose (“aPAD”) and chronic population adjusted dose (“cPAD”). The aPAD and cPAD are calculated by dividing the LOC by all applicable uncertainty/safety factors. For linear cancer risks, EPA calculates the probability of additional cancer cases given aggregate exposure. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure (“MOE”) called for by the product of all applicable uncertainty/safety factors is not exceeded.

1. Acute risk . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to indoxacarb will occupy 84% of the aPAD for the population group (children, 3 to 5 years old) receiving the greatest exposure.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to indoxacarb from food and water will utilize 53% of the cPAD for the population group (children, 1 to 2 years old) with greatest exposure. Based the use pattern, chronic residential exposure to residues of indoxacarb is not expected.

Indoxacarb is currently registered for use that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and short-term exposures for indoxacarb.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded that food, water, and residential exposures aggregated result in aggregate MOEs of 620 for the general U.S. population and 190 for children, 1 to 2 years old. The aggregate MOE for the general U.S. population is based on the residential turf (fire ant control) scenario and includes combined residential applicator and post-application dermal exposures. EPA determined that it is not appropriate to include applicator inhalation exposure in the aggregate exposure assessment, since toxicological endpoints of concern for dermal and inhalation exposures are different. The aggregate MOE for children includes post-application dermal and incidental oral exposures from entering turf areas previously treated with indoxacarb for fire ants.

4. Intermediate-term risk . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Indoxacarb is currently registered for use(s) that could result in intermediate-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and intermediate-term exposures for indoxacarb.

Using the exposure assumptions described in this unit for intermediate-term exposures, EPA has concluded that food, water, and residential exposures aggregated result in aggregate MOEs of 620 for the general U.S. population and 190 for children, 1 to 2 years old. The aggregate MOE for the general U.S. population is based on the residential turf (fire ant control) scenario and includes combined residential applicator and post-application dermal exposures. EPA determined that it is not appropriate to include applicator inhalation exposure in the aggregate exposure assessment, since toxicological endpoints of concern for dermal and inhalation exposures are different. The aggregate MOE for children includes post-application dermal and incidental oral exposures from entering turf areas previously treated with indoxacarb for fire ants.

5. Aggregate cancer risk for U.S. population . EPA has classified indoxacarb as “not likely” to be carcinogenic to humans via relevant routes of exposure using the Guidelines for Carcinogen Risk Assessment. Therefore, a cancer aggregate exposure assessment was not conducted. Indoxacarb is not expected to pose a cancer risk.

6. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to indoxacarb residues.

Adequate enforcement methodology is available to enforce the tolerance expression (high-performance liquid chromatography (HPLC)/column switching/ultraviolet (UV) methods AMR 2712-93 and Du Pont 11978 with confirmation/specificity provided by gas chromatography (GC)/mass-selective detector method AMR 3493-95, Supplement No. 4). These methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; e-mail address: residuemethods@epa.gov .

There are no established or proposed Codex maximum residue limits (MRLs) for indoxacarb.

Based upon review of the data supporting the petitions, EPA has modified the proposed tolerances as follows:

(1) PP 3F6576: Revised the commodity term and tolerance for “raisin” to read “grape, raisin” at 5.0 ppm;

(2) PP 5E6911: Replaced the proposed tolerances for “leafy greens, except spinach, subgroup 4A”, “leaf petioles subgroup 4B” and “spinach” with a single tolerance in or on “vegetable, leafy, except Brassica , group 4” at 14 ppm; and added a tolerance for “pear, oriental” at 0.20 ppm;

(3) PP 5E 6926: Revised the commodity term “pea (southern”) to read “pea, southern, seed”; and revised the commodity term and tolerance level for “mint” to read “peppermint, tops” at 11 ppm and “spearmint, tops” at 11 ppm; and

(4) PP 5E6991: Revised the tolerances for “vegetable, cucurbit, group 9”, “fruit, stone, group 12” and “cranberry” to 0.60 ppm, 0.90 ppm and 0.90 ppm, respectively. The reasons for these changes are discussed below.

EPA revised the commodity terms “raisin”, mint” and “pea (southern)” to agree with recommended commodity terms in the Office of Pesticide Program's Food and Feed Commodity Vocabulary. Based on data submitted with PP 5E6911 and data previously submitted to support the existing tolerances on leaf and head lettuce, EPA determined that it was appropriate to establish a tolerance for the crop group “vegetable, leafy, except Brassica , group 4” instead of the proposed separate tolerances on “leafy greens, except spinach, subgroup 4A”, “spinach” and “leaf petioles subgroup 4B”. The crop group tolerance of 14 ppm is based on data for the crop with the highest field trial residues (spinach). EPA is establishing a tolerance for “pear, oriental” at 0.20 ppm. A tolerance for “pear” currently exists at this level. Although residue field trial data for pear may be translated to oriental pear, a separate tolerance must be established under current regulations. EPA is taking this action to clarify tolerances for all members of the pome fruit crop group. Based on the submitted grape processing data showing a maximum concentration in raisins of 2.7x and the highest average field trial (HAFT) residue on grapes of 1.52 ppm, EPA has determined that the proposed raisin tolerance of 6.0 ppm should be revised to 5.0 ppm. EPA also determined that the proposed tolerance levels for “peppermint, tops”, “spearmint, tops”, “vegetable, cucurbit, group 9”, “fruit, stone, group 12” and “cranberry” were inappropriate and should be revised as specified above based on analyses of the residue field trial data using the Agency's Tolerance Spreadsheet in accordance with the Agency's Guidance for Setting Pesticide Tolerances Based on Field Trial Data Standard Operating Procedure (SOP).

Therefore, tolerances are established for combined residues of indoxacarb, (S)-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl]amino]carbonyl]indeno[1,2- e ][1,3,4][oxadiazine-4a(3 H )-carboxylate, and its R-enantiomer, (R)-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl]amino]carbonyl]indeno[1,2- e ][1,3,4][oxadiazine-4a(3 H )-carboxylate, in or on cranberry at 0.90 ppm; fruit, pome, except pear, group 11 at 1.0 ppm; fruit, stone, group 12 at 0.90 ppm; grape at 2.0 ppm; grape, raisin at 5.0 ppm; okra at 0.50 ppm; pea, southern, seed at 0.10 ppm; pear, oriental at 0.20 ppm; peppermint, tops at 11 ppm; spearmint, tops at 11 ppm; turnip greens at 12 ppm; vegetable, Brassica , leafy, group 5 at 12 ppm; vegetable, cucurbit, group 9 at 0.60 ppm; vegetable, leafy, except Brassica , group 4 at 14 ppm; and vegetable, tuberous and corm, subgroup 1-C at 0.01 ppm. Existing tolerances on apple; Brassica , head and stem, subgroup 5A; lettuce, head; lettuce, leaf; and potato, which are superseded by the new tolerances, are revoked.

Time-limited tolerances were established for combined residues of indoxacarb and its R-enantiomer in or on cherry, sweet; cherry, tart; and peach in connection with a FIFRA section 5 experimental use permit granted by EPA. Time-limited tolerances were established for combined residues of indoxacarb and its R-enantiomer in or on collards and cranberry in connection with FIFRA section 18 emergency exemptions granted by EPA. All of these time-limited tolerances have expired, except the time-limited tolerance on cranberry, which is set to expire on December 31, 2007. Because EPA is establishing tolerances on stone fruit, Brassica leafy vegetables and cranberry, these time-limited tolerances, most of which have already expired, are not needed. Therefore, the time-limited tolerances for residues of indoxacarb and its R-enantiomer under 40 CFR 180.564(a)(2) and 40 CFR 180.564(b) are revoked.

Finally, the word “enantiomer” is incorrectly spelled (“enantimomer”) in the tolerance expression for indoxacarb in 40 CFR 180.564(a)(1) and is being corrected in this regulation.

This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq ., nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .) do not apply.

This final rule directly regulates growers, food processors, food handlers and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

The Congressional Review Act, 5 U.S.C. 801 et seq. , generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

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 those engaged in the following activities:

• Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.

• Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.

• Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.

• Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.

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

In addition to accessing an electronic copy of this Federal Register document through the electronic docket at http://www.regulations.gov , you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr . You may also access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at http://www.gpoaccess.gov/ecfr .

Under section 408(g) of the FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0331 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before September 10, 2007.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA-HQ-OPP-2006-0331, by one of the following methods:

• Federal eRulemaking Portal : http://www.regulations.gov . Follow the on-line instructions for submitting comments.

• Mail : Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

• Delivery : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305-5805.

In the Federal Register of May 10, 2006, (71 FR 27247) (FRL-8067-5), and November 15, 2006, (71 FR 66522) (FRL-8101-8) EPA issued notices pursuant to section 408(d)(3) of the FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of pesticide petitions PP 5E7000 (grape and hop), and PP 6E7100 (caneberry) by the IR-4, 500 College Road East, Suite 201 W, Princeton, NJ 08540. The petitions requested that 40 CFR 180.503(a) be amended by establishing tolerances for residues of the fungicide cymoxanil, in or on grape (east of the Rocky Mountains) at 1.0 parts per million (ppm); hop, dried cones at 5.0 ppm; and caneberry at 4.0 ppm. These notices referenced a summary of the petitions prepared by Dupont, the registrant, which is available to the public in the docket, http://www.regulations.gov . Comments were received from a private citizen on the notice of filing for grape; and hop, dried cones. EPA's response to comment is discussed in Unit IV.C.

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” These provisions were added to the FFDCA by the Food Quality Protection Act (FQPA) of 1996.

Consistent with section 408(b)(2)(D) of the FFDCA, and the factors specified in section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for tolerance for residues of cymoxanil on grape at 0.10 ppm; hop, dried cone at 7.0 ppm; and caneberry at 4.0 ppm. EPA's assessment of exposures and risks associated with establishing these tolerances follow.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by cymoxanil as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov . The referenced document is available in the docket established by this action, which is described under ADDRESSES , and is identified as EPA-HQ-OPP-2006-0331 in that docket. Please refer to the Human Health Risk Assessment for Cymoxanil for New section 3 Uses in/on Grapes (East of the Rocky Mountains); Hop, dried cones; and Caneberry Subgroup 13A on pages 16-19.

For hazards that have a threshold below which there is no appreciable risk, the toxicological level of concern (LOC) is derived from the highest dose at which no adverse effects are observed (the NOAEL) in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment. Uncertainty/safety factors (UF) are used in conjunction with the LOC to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose (“aPAD”) and chronic population adjusted dose (“cPAD”). The aPAD and cPAD are calculated by dividing the LOC by all applicable uncertainty/safety factors. Short-term, intermediate, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure (“MOE”) called for by the product of all applicable uncertainty/safety factors is not exceeded.

For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk and estimates risk in terms of the probability of occurrence of additional adverse cases. Generally, cancer risks are considered non-threshold. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm .

A summary of the toxicological endpoints for cymoxanil used for human risk assessment can be found at www.regulations.gov in the Human Health Risk Assessment for Cymoxanil for New section 3 Uses in/on Grapes (East of the Rocky Mountains); Hop, dried cone; and Caneberry Subgroup 13A, pages 19-20 in Docket ID EPA-HQ-OPP-2006-0331.

1. Dietary exposure from food and feed uses . In evaluating dietary exposure to cymoxanil, EPA considered exposure under the petitioned-for tolerances as well as all existing cymoxanil tolerances in (40 CFR 180.503(a)). EPA assessed dietary exposures from cymoxanil in food as follows:

i. Acute exposure . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. An acute dietary exposure assessment was performed for females 13-49 years old only, since an acute endpoint of concern was not identified for the general U.S. population. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) 1994-1996, and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA assumed that cymoxanil residues were present in all registered and proposed food commodities at tolerance levels, and 100 percent crop treated (PCT) for all commodities. Dietary Exposure Evaluation Model (DEEM) version 7.81 default processing factors were used for all registered and proposed commodities except for grape juice and raisin.

ii. Chronic exposure . In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 1994-1996 and 1998 Nationwide CSFII. As to residue levels in food, EPA used tolerance level residues for all commodities except lettuce, hops and grapes. Average residues from field trials were used for lettuce, hops and grapes. DEEM default processing factors were used for all commodities except grapes. Processing factors for grape juice (1.4x) and raisins (1x) were derived from grape processing data. Exposure estimates were further refined using screening-level PCT (% CT) data for several registered commodities. For all other commodities, including the proposed new uses, 100 %CT was assumed.

iii. Cancer . EPA has classified cymoxanil as a “not likely” human carcinogen. Therefore, a cancer dietary exposure analysis was not performed.

iv. Anticipated residue and PCT information . Section 408(b)(2)(E) of the FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must pursuant to section 408(f)(1) require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by section 408(b)(2)(E) of the FFDCA and authorized under section 408(f)(1) of the FFDCA. Data will be required to be submitted no later than 5 years from the date of issuance of this tolerance.

Section 408(b)(2)(F) of the FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

a. The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain such pesticide residue;

b. The exposure estimate does not underestimate exposure for any significant subpopulation group; and

c. Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by section 408(b)(2)(F) of the FFDCA, EPA may require registrants to submit data on PCT.

The Agency used PCT information as follows: Cucumber, head lettuce, pepper, potato, and tomato at 10%; pumpkin, squash, and watermelon at 1%.

EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available federal, state, and private market survey data for that use, averaging by year, averaging across all years, and rounding up to the nearest multiple of five percent except for those situations in which the average PCT is less than one. In those cases <1% is used as the average and <2.5% is used as the maximum. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the single maximum value reported overall from available federal, state, and private market survey data on the existing use, across all years, and rounded up to the nearest multiple of five percent. In most cases, EPA uses available data from USDA/National Agricultural Statistics Service (USDA/NASS), Proprietary Market Surveys, and the National Center for Food and Agriculture Policy (NCFAP) for the most recent six years.

The Agency believes that the three conditions have been met. With respect to Condition 1, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions 2 and 3, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available information on the regional consumption of food to which cymoxanil may be applied in a particular area.

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring data to complete a comprehensive dietary exposure analysis and risk assessment for cymoxanil in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the environmental fate characteristics of cymoxanil. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm .

The Agency calculated screening level surface and ground water estimates for cymoxanil using FQPA Index Reservoir Screening Tool (FIRST (version 1.0)), and SCI-GROW (Screening Concentration In GROund Water) models, respectively. The proposed application rates for use on grape and hop are higher than the rates evaluated previously. Estimated drinking water concentrations were estimated based on the newly proposed application rate for grape (0.25 lbs per acre, 10 times), which was the highest application rate reported for the new proposed uses.

Based on the FIRST and SCI-GROW models, the estimated environmental concentrations (EECs) of cymoxanil for acute and chronic exposures are 0.019 parts per billion (ppb), and 0.0001 ppb, respectively for surface water. The EECs for groundwater (acute and chronic) are estimated to be 0.000003 ppb.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 0.019 ppb was used to access the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 0.0001 ppb was used to access the contribution to drinking water.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Cymoxanil is not registered for use on any sites that would result in residential exposure.

4. Cumulative effects from substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to cymoxanil and any other substances and cymoxanil does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that cymoxanil has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www.epa.gov/pesticides/cumulative .

1. In general . Section 408 of the FFDCA provides that EPA shall apply an additional (“10X”) tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA safety factor. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional FQPA safety factor value based on the use of traditional uncertainty/safety factors and/or special FQPA safety factors, as appropriate.

2. Prenatal and postnatal sensitivity . There is an indication of increased susceptibility (qualitative and quantitative) of rats and rabbits to in utero exposure to cymoxanil. In the rat developmental toxicity study, decreased fetal body weights and skeletal malformations were observed at 25 mg/kg/day LOAEL, which is below the maternal toxicity of 75 mg/kg/day LOAEL. In the rabbit developmental study increased skeletal malformations were observed at 8 mg/kg/day LOAEL, also below the maternal NOAEL of 32 mg/kg/day. In the 2-generation reproduction study there was an indication of increased qualitative susceptibility in the offspring, since there was decreased pup viability at a dose that produced less severe effects in maternal animals.

3. Conclusion . EPA has determined that reliable data show that it would be safe for the infants and children FQPA safety factor to be reduced to 1X for acute dietary exposures. The EPA believes that this will be protective of infants and children based on the following findings:

i. The toxicity database for cymoxanil is complete for dietary risk assessment.

ii. Although there is qualitative evidence of increased susceptibility in the prenatal developmental studies in rats and rabbits, the risk assessment team did not identify any residual uncertainties after establishing toxicity endpoints and traditional uncertainty factors to be used in the risk assessment of cymoxanil. The degree of concern for pre-and/or postnatal toxicity is low.

iii. There are no residual uncertainties identified in the exposure databases. The acute dietary food exposure assessment was performed based on 100 PCT, tolerance-level residues, and DEEM default processing factors for all registered and proposed commodities. Conservative ground and surface water modeling estimates were also used and incorporated directly in the DEEM analysis. The Agency has determined with reasonably certainty that the identified assessment will not underestimate the exposure and risks posed by cymoxanil. However, the 10X FQPA safety factor was retained for chronic dietary exposure because a LOAEL was used to extrapolate a NOAEL for the chronic toxicity study in the dog.

Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose (“aPAD”) and chronic population adjusted dose (“cPAD”). The aPAD and cPAD are calculated by dividing the LOC by all applicable uncertainty/safety factors. For linear cancer risks, EPA calculates the probability of additional cancer cases given aggregate exposure. Short-term, intermediate, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure (“MOE”) called for by the product of all applicable uncertainty/safety factors is not exceeded.

1. Acute risk . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to cymoxanil will occupy 72% of the aPAD for the population group (females 13-49 years old).

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to cymoxanil from food and water will utilize 51% of the cPAD for children 1-2 years old, the subpopulation group with greatest exposure. There are no residential uses for cymoxanil that result in chronic residential exposure to cymoxanil.

3. Short and intermediate-term risks . Short and Intermediate-term aggregate exposures takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Cymoxanil is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.

4. Aggregate cancer risk for U.S. population . EPA has classified cymoxanil as a “not likely” human carcinogen. Therefore, cymoxanil is not expected to pose a cancer risk.

5. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to cymoxanil residues.

Adequate enforcement methodologies (high performance liquid chromatography with ultra violet detection (HPLC/UV) and (HPLC/MS) using (mass spectroscopy) on grape, caneberry, and hop, respectively) are available to enforce the tolerance expression. The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; e-mail address: residuemethods@epa.gov .

There are no for CODEX maximum residue levels established for cymoxanil on grape; hop, dried cone; and caneberry.

Comments were submitted by a private citizen who opposed the establishment of cymoxanil tolerances for the following reasons:

1. The availability of numerous products previously registered for the same purpose in which the new cymoxanil tolerances are intended, and

2. Cymoxanil is toxic to aquatic plants, bees, and birds, and therefore has potential harmful effects on the environment. These comments are considered irrelevant because the safety standard for approving tolerances under section 408 of the FFDCA focuses on potential harms to human health and does not permit consideration of effects on the environment or the availability of other registered products.

The proposed hop, dried cone tolerance was revised from 5.0 to 7.0 ppm based on submitted field trial residues. For grape, the proposed tolerance of 1.0 was lowered to 0.10 ppm. The residue field trials indicate 0.10 ppm as the appropriate regional tolerance for grape. Therefore, tolerances are established for residues of cymoxanil, 2-cyano-N-[(ethylamino)carbonyl]-2-(methoxyimino) acetamide in or on grape (east of the Rocky Mountains) at 0.10 ppm; hop, dried cone at 7.0 ppm; and caneberry at 4.0 ppm.

This final rule establishes a tolerance under section 408(d) of the FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq ., nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of the FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .) do not apply.

This final rule directly regulates growers, food processors, food handlers and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

The Congressional Review Act, 5 U.S.C. 801 et seq. , generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

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), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.

• Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.

• Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.

• Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.

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

In addition to accessing an electronic copy of this Federal Register document through the electronic docket at http://www.regulations.gov , you may access this “ Federal Register ” document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at http://www.gpoaccess.gov/ecfr .

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0483 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before September 10, 2007.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2006-0483, by one of the following methods.

• Federal eRulemaking Portal : http://www.regulations.gov . Follow the on-line instructions for submitting comments.

• Mail : Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

• Delivery : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305-5805.

In the Federal Register of September 20, 2006 (71 FR 54953) (FRL-8078-2), EPA issued a proposed rule to revoke, remove, modify, and establish certain tolerances and/or tolerance exemption for residues for the herbicides chlorpropham, linuron, asulam and pebulate and the fungicide thiophanate-methyl. Also, the proposal of September 20, 2006 (71 FR 54953) (FRL-8078-2) provided a 60-day comment period which invited public comment for consideration and for support of tolerance retention under the Federal Food, Drug, and Cosmetic Act (FFDCA) standards.

EPA is revoking, removing, modifying, and establishing specific tolerances for residues of the herbicides chlorpropham, linuron, asulam and pebulate and the fungicide thiophanate-methyl in or on commodities listed in the regulatory text.

EPA is finalizing these tolerance actions in order 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 the reregistration and tolerance reassessment processes, EPA is required to determine whether each of the amended tolerances meets the safety standards under the FQPA. The safety finding determination of “reasonable certainty of no harm” is found in detail in each Reregistration Eligibility Decision (RED) and Report on FQPA Tolerance Reassessment Progress and Interim Risk Management Decision (TRED) for the active ingredient. REDs and TREDs recommend certain tolerance actions to be implemented to reflect current use patterns, to meet safety findings and change commodity names and groupings in accordance with new EPA policy. Printed copies of 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 .

In this final rule, EPA is revoking certain tolerances and tolerance exemptions because these specific tolerances and exemptions correspond to uses no longer current or registered under FIFRA in the United States. The tolerances revoked by this final rule are no longer necessary to cover residues of the relevant pesticides in or on domestically treated commodities or commodities treated outside but imported into the United States. It is EPA's general practice to revoke those tolerances and tolerance exemptions 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 or tolerance exemption to cover residues in or on imported commodities or domestic commodities legally treated.

EPA's policy is to issue a final rule revoking those tolerances for residues of pesticide chemicals for which there are no active registrations under FIFRA, unless any person commenting on the proposal demonstrates a need for the tolerance to cover residues in or on imported commodities or domestic commodities legally treated.

Generally, EPA will proceed with the revocation of these tolerances on the grounds discussed in Unit II.A. if one of the following conditions applies:

1. Prior to EPA's issuance of a section 408(f) order requesting additional data or issuance of a section 408(d) or (e) order revoking the tolerances on other grounds, commenters retract the comment identifying a need for the tolerance to be retained.

2. EPA independently verifies that the tolerance is no longer needed.

3. The tolerance is not supported by data that demonstrate that the tolerance meets the requirements under FQPA.

This final rule does not revoke those tolerances for which EPA received comments stating a need for the tolerance to be retained. In response to the proposal published in the Federal Register of September 20, 2006 (71 FR 54953) (FRL-8078-2), EPA received two comments during the 60-day public comment period, as follows:

Comment . A comment was received from a private citizen that expressed concern with pesticide residues in general and that pesticide residue levels should be zero. Concern was also expressed for the number of chemicals found in the bodies of adults and children.

Agency response . The private citizen's comment did not take issue with the Agency's conclusion that certain tolerances should be revoked, established and modified. The Agency conducts a detailed risk assessment to determine whether establishing and/or increasing tolerances is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Also, it is EPA's general practice to propose revocation of tolerances for residues of pesticide active ingredients on crop uses for which FIFRA registrations no longer exist.

Comment . Cerexagri, Inc. commented that the term postharvest associated with the tolerances for thiophanate-methyl residues of concern on apple, apricot, cherry, peach and plum is not appropriate because the use patterns are based on pre-harvest applications. Cerexagri, Inc. also took issue with the increase of the tolerance for thiophanate-methyl residues of concern on canola at 0.1 parts per million (ppm) to 0.2 ppm. They cited data and analytical methods which indicate the tolerance increase is not appropriate.

Agency response . The thiophanate-methyl Residue Chemistry Chapter and RED included recommendations that certain tolerances be designated as postharvest. The Agency agrees that the uses of thiophanate-methyl include pre-harvest applications such that the post-harvest designation is not appropriate. Therefore, the Agency has determined that the postharvest designation should not be linked to the tolerances in the 40 CFR. Therefore, EPA is removing the references to “postharvest” from the tolerances in 40 CFR 180.371. Cerexagri, Inc, also commented on the proposed tolerance level increase for canola from 0.1 to 0.2 ppm.

Setting the tolerance on canola at 0.2 ppm was recommended in the thiophanate-methyl RED based on an enforcement method limit of quantitation (LOQ) of 0.05 ppm. Crexagri believes that the tolerance on canola should remain at 0.1 ppm, the current tolerance level, based on an appropriate enforcement method LOQ of 0.025 ppm. The field trial data showed non-detectable residues of thiophanate-methyl and one sample with detection equivalent to 0.018 ppm of the metabolite methyl 2-benzimidazolyl carbamate (MBC). Later, Cerexagri submitted an addendum to the crop field trial data which details an estimation of a practical limit of detection (LOD) of 0.005 ppm in/on canola seed for MBC. The Agency believes that a viable LOQ is usually about 3x the method LOD, and therefore, an LOD would correspond to about a 0.015 ppm for the method. Consequently, the Agency believes that an LOD of 0.025 ppm is a conservative estimate. Based on the estimated method LOQ for the metabolite MBC, the Agency agrees that the canola seed tolerance should remain at 0.1 ppm in 40 CFR 180.371(c).

1. Chlorpropham. A plant commodity tolerance on potato for chlorpropham is currently regulated for residues of CIPC (isopropyl m-chlorocarbanilate) and its metabolite 1-hydroxy-2-propyl 3'-chlorocarbanilate (calculated as CIPC) in 40 CFR 180.181. Because the regulated metabolite was not detected in potato following treatment with radiolabelled 14C-chlorpropham, EPA determined that the tolerance expression for plants should be expressed in terms of chlorpropham per se . Meanwhile, the current interim milk and livestock tolerances in 40 CFR 180.319 are regulated for isopropyl m-chlorocarbanilate (CIPC) residues. However, based on available ruminant data that show residues of chlorpropham and its metabolite 4-hydroxychlorpropham-O-sulfonic acid (4-HSA) in milk and edible tissues, EPA determined that the tolerance expression should be expressed in terms of the combined residues of chlorpropham and 4-hydroxychlorpropham-O-sulfonic acid (4-HSA) and recodified under 40 CFR 180.181 as permanent tolerances. Therefore, EPA is recodifying plant tolerances for chlorpropham from 40 CFR 180.181(a) to (a)(1) and regulate the plant regulator and herbicide chlorpropham (isopropyl m-chlorocarbanilate (CIPC) in plants. Also, EPA is removing the interim milk and livestock tolerances (meat, fat, and meat byproducts of cattle, hog, horse, goat, and sheep) for chlorpropham in 40 CFR 180.319, recodify them as permanent tolerances in 40 CFR 180.181(a)(2) and regulate tolerances there for the plant growth regulator and herbicide chlorpropham (isopropyl m-chlorocarbanilate [CIPC]) and its metabolite 4-hydroxychlorpropham-O-sulfonic acid (4-HSA).

In addition, based on ruminant feeding data and the calculated maximum theoretical dietary burden (MTDB) estimates, EPA determined that tolerances on the meat of cattle, hog, horse, goat, and sheep should be increased from 0.05 to 0.06 parts per million (ppm), the limit of quantitation (LOQ). Also, based on exaggerated feeding study data that showed combined residues of concern in kidney at about 0.3 ppm, the Agency determined that tolerances for kidney of cattle, hog, horse, goat, and sheep should be separated from their existing meat byproduct tolerances at 0.05 ppm and increased to 0.30 ppm. Since the combined residues of concern were shown to be near or below the LOQ (0.06 ppm), the Agency determined that tolerances for meat byproducts, except kidney of cattle, hog, horse, goat, and sheep should be increased from 0.05 to 0.06 ppm. In addition, based on ruminant feeding data that showed combined residues of concern in fat at 0.17 ppm, the Agency determined that tolerances for the fat of cattle, hog, horse, goat, and sheep should be increased from 0.05 to 0.20 ppm. Moreover, based on ruminant feeding data and the maximum tolerated dietary burden (MTDB) burden estimates that showed combined residues of concern to be 0.25 ppm, the Agency determined that the tolerance for milk should be increased from 0.05 to 0.30 ppm. Therefore, EPA is increasing tolerances in newly recodified 40 CFR 180.181(a)(2) for the combined residues of chlorpropham and 4-hydroxychlorpropham-O-sulfonic acid (4-HSA) as follows: Milk from 0.05 to 0.30 ppm; cattle, fat; hog, fat; horse, fat; goat, fat; and sheep, fat from 0.05 to 0.20 ppm; cattle, meat; hog, meat; horse, meat; goat, meat; and sheep, meat from 0.05 to 0.06 ppm; cattle, meat byproducts, except kidney; hog, meat byproducts, except kidney; horse, meat byproducts, except kidney; goat, meat byproducts, except kidney; and sheep, meat byproducts, except kidney from 0.05 to 0.06 ppm; and cattle, kidney; hog, kidney; horse, kidney; goat, kidney; and sheep, kidney from 0.05 to 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.

Based on available potato field trial data that show chlorpropham residues as high as 24 ppm, the Agency determined that the tolerance in newly recodified 40 CFR 180.181(a)(1) should be decreased from 50 to 30 ppm. The term “postharvest” associating these tolerances with the timing of the use is being removed, since the enforcement Agency would not know whether a commodity bore residues resulting from postharvest treatment. Therefore, EPA is decreasing the tolerance in newly recodified 40 CFR 180.181(a)(1) in or on potato, postharvest from 50 to 30 ppm and revising potato, postharvest to potato.

Based on available potato processing data that demonstrate an average concentration factor of chlorpropham residues at 3X, and the highest average field trial (HAFT) whole potato residue of 12.0 ppm, the Agency determined that residues in the wet potato peel would be 36 ppm; therefore, a tolerance should be established on potato, wet peel at 40 ppm. (Residues did not concentrate in potato granules, flakes or chips.) Therefore, EPA is establishing a tolerance in newly recodified 40 CFR 180.181(a)(1) for the chlorpropham residues of concern or on potato, wet peel at 40 ppm.

2. Linuron. According to the TRED, the tolerance expression, which is currently expressed as “residues of the herbicide linuron (3-(3,4-dichlorophenyl)-1-methoxy-1-methylurea)” in 40 CFR 180.184(a) and (c), should be modified to include metabolites that can be converted to 3,4-dichloroaniline that are of toxicological concern. Consequently, EPA is establishing the tolerance expression in 40 CFR 180.184(a) to regulate the combined residues of the herbicide linuron (3-(3,4-dichlorophenyl)-1-methoxy-1-methylurea) and its metabolites convertible to 3,4-dichloroaniline, calculated as linuron in/on food commodities and in 40 CFR 180.184(c) to regulate the combined residues of the herbicide linuron (3-(3,4-dichlorophenyl)-1-methoxy-1-methylurea) and its metabolites convertible to 3,4-dichloroaniline, calculated as linuron in/on food commodities.

The feeding of treated soybean forage or hay to livestock is prohibited as stated on the registration labels and therefore, the tolerances are no longer needed. Consequently, EPA is revoking the tolerances in 40 CFR 180.184(a) soybean, forage and soybean, hay.

Based on field trial data that indicate linuron residues of concern in or on field corn stover are as high as 5.5 ppm, the Agency determined that a tolerance should be 6.0 ppm on corn, field, stover. The RED indicates a data deficiency for corn, sweet, stover; however, the field corn stover data can be translated to sweet corn stover, therefore, the Agency has determined the tolerance for corn, sweet, stover can be increased from 1.0 to 6.0 ppm. Therefore, EPA is increasing the tolerance in 40 CFR 180.184(a) for the combined residues of the herbicide linuron and its metabolites convertible to 3,4-dichloroaniline, calculated as linuron in or on corn, field, stover and corn, sweet, stover from 1.0 to 6.0 ppm. The Agency determined that the increased tolerance is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

In order to conform to current Agency practice, EPA is revising the commodity terminology in 40 CFR 180.184(a) for corn, grain (inc. pop) at 0.25 ppm into corn, field, grain and corn, pop, grain. However, because there are no active U.S. registrations for the use of linuron on popcorn, the tolerance is no longer needed and should be revoked. Therefore, EPA is revoking the tolerance in 40 CFR 180.184(a) on corn, pop, grain. In addition, based on field trial data that indicate linuron residues of concern in or on corn grain as high as 0.06 ppm, the Agency determined that the corn, field, grain tolerance should be decreased from 0.25 to 0.1 ppm. Therefore, EPA is decreasing the tolerance in 40 CFR 180.184(a) for the combined residues of the herbicide linuron and its metabolites convertible to 3,4-dichloroaniline, calculated as linuron in or on corn, field, grain from 0.25 to 0.1 ppm.

Ruminant feeding data at an exaggerated level (6.9x) show that linuron residues of concern expected at a 1x feeding level are 0.16 ppm in fat, 0.07 ppm in meat, 1.9 ppm in liver and kidney, and 0.05 ppm in milk. Based on these expected residue levels, the Agency determined that the tolerances for the fat of cattle, goat, horse and sheep should be decreased from 1.0 to 0.2 ppm; meat tolerances of cattle, goat, horse and sheep should be decreased from 1.0 to 0.1 ppm; meat byproduct tolerances of cattle, goat, horse, and sheep should be separated into tolerances for meat byproducts, except kidney and liver, and decreased from 1.0 to 0.1 ppm; kidney of cattle, goat, horse, and sheep, which should be established separately and increased from 1.0 to 2.0 ppm; liver of cattle, goat, horse, and sheep, which should be established separately and increased from 1.0 to 2.0 ppm; and a tolerance for milk should be established at 0.05 ppm. Therefore, EPA is decreasing tolerances from 1.0 ppm in 40 CFR 180.184(a) for the following: Cattle, fat; goat, fat; horse, fat; and sheep, fat; each to 0.2 ppm; cattle, meat; cattle, meat byproducts, except kidney and liver; goat, meat; goat, meat byproducts, except kidney and liver; horse, meat; horse, meat byproducts, except, kidney and liver; sheep, meat and sheep, meat byproducts, except kidney and liver; each from 1.0 ppm to 0.1 ppm. Also, EPA is establishing separate tolerances in 40 CFR 180.184(a) for the following commodities: Cattle, kidney; cattle, liver; goat, kidney; goat, liver; horse, kidney; horse, liver; sheep, kidney; and sheep, liver; each at 2.0 ppm. In addition, EPA is establishing a tolerance in 40 CFR 180.184(a) in milk at 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 ruminant feeding data and an estimated dietary burden in swine that is much less than that for beef and dairy cattle, the Agency calculated likely linuron residues of concern to be less than 0.007 ppm in hog fat, 0.003 ppm in hog meat, and 0.08 ppm in hog liver and kidney; therefore, the Agency determined the tolerances should be decreased to 0.05 ppm, 0.05 ppm and 0.1 ppm for hog fat, hog meat and hog meat byproducts, respectively. Therefore, EPA is decreasing tolerances in 40 CFR 180.184(a) for the combined residues of the herbicide linuron and its metabolites convertible to 3,4-dichloroaniline, calculated as linuron in or on hog, fat and hog, meat from 1.0 to 0.05 ppm; and hog, meat byproducts from 1.0 to 0.1 ppm.

Based on field trial data, the Agency determined that linuron residues of concern were non-detectable (<0.05 ppm) in or on parsnips. Therefore, EPA is decreasing the tolerance in 40 CFR 180.184(a) for the combined residues of the herbicide linuron and its metabolites convertible to 3,4-dichloroaniline, calculated as linuron in or on parsnip (with or without tops) from 0.5 to 0.05 ppm and revising the commodity terminology to parsnip, roots and parsnip, tops.

Since completion of the Linuron TRED, data deficiencies for cotton gin byproducts have been adequately addressed. Based on more recent cotton storage stability and field trial data reflecting all cotton growing regions of the U.S. submitted in response to the TRED, the maximum residues of linuron in or on stripper cotton gin byproducts were 3.32 ppm, the Agency determined that the tolerance should be established for cotton gin byproducts at 5.0 ppm. Therefore, EPA is establishing a tolerance in 40 CFR 180.184(a) for the combined residues of the herbicide linuron and its metabolites convertible to 3,4-dichloroaniline, calculated as linuron in or on cotton, gin byproducts at 5.0 ppm.

Because use of linuron on potatoes and celery is restricted to east of the Rocky Mountains, and use on wheat is restricted to the states of Idaho, Oregon, and Washington, the Agency determined that tolerances on celery, potato, and the forage, grain, hay and straw of wheat should be recodified as regional registrations. Also, based on field trial data that indicate combined linuron residues of concern were nondetectable (<0.05 ppm) in or on all but one sample (0.07 ppm) of potato, nondetectable (<0.03 ppm) in or on wheat grain, and as high as 2.0 ppm in or on wheat straw, the Agency determined that the tolerances should be decreased from 1.0 to 0.2 ppm on potato and from 0.25 to 0.05 ppm on wheat, grain, and increased to 0.5 to 2.0 ppm on wheat straw. Therefore, EPA is recodifying tolerances on celery, potato, and the forage, grain, hay and straw of wheat from 40 CFR 180.184(a) to (c) for the combined residues of the herbicide linuron and its metabolites convertible to 3,4-dichloroaniline, calculated as linuron as follows: Potato decreased from 1.0 to 0.2 ppm; wheat, grain decreased from 0.25 to 0.05 ppm; and wheat, straw increased from 0.5 to 2.0 ppm and correcting 180.1(N) to 180.1(M). The Agency determined that the increased tolerance is safe; i.e. there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Interregional Research Project #4 (IR-4) has submitted petitions (PP 8E5027 and PP 8E5028) requesting the establishment of tolerances on celeriac and rhubarb based on use directions and data translated from carrots and celery, respectively. Based on field trial data that show linuron residues of concern for carrot samples treated at 0.75X were as high as 0.56 ppm and celery samples treated at 1X were as high as 0.42 ppm, the Agency determined that tolerances should be established at 1.0 ppm on celeriac and 0.5 ppm on rhubarb. Therefore, EPA is establishing tolerances in 40 CFR 180.184(a) for the combined residues of the herbicide linuron and its metabolites convertible to 3,4-dichloroaniline, calculated as linuron in or on celeriac at 1.0 ppm and rhubarb at 0.5 ppm.

Although additional data are anticipated in 2007 in response to the TRED, tolerances associated with sorghum and sweet corn have been reassessed at the current tolerance levels. The Agency determined that the tolerances are safe; i.e. there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residues. EPA is maintaining the tolerance level and revising the commodity terminology in 40 CFR 180.184(a) to conform to current Agency practice as follows: “Sorghum, forage” to “sorghum, grain, forage” at 1.0 ppm; “corn, fresh (inc. sweet, kernel plus cob with husks removed)” to “corn, sweet, kernel plus cob with husks removed” at 0.25 ppm; and splitting “soybean, (dry or succulent)” to separate tolerances fo “soybean, seed” and “soybean, vegetable” both at 1.0 ppm.

3. Pebulate. The last U.S. registration was cancelled October 24, 2003 due to non-payment of registration fees and a notice was published in the Federal Register on November 6, 2003 (68 FR 62785, FRL-7331-3). Therefore, tolerances are no longer needed and EPA is revoking the tolerances in 40 CFR 180.238 for residues of pebulate (S-propyl butylethylthiocarbamate) in or on beet, sugar roots; beet sugar, tops; and tomato.

4. Asulam. The tolerance expression in 40 CFR 180.360 currently regulates asulam (methyl sulfanilylcarbamate) per se . The Agency recommended in the asulam TRED that the tolerance expression be revised to include metabolites containing the sulfanilamide moiety because in the absence of toxicological data the Agency assumed these compounds to be potentially comparable in toxicity to the parent compound, asulam. Therefore, EPA is revising the tolerance expression in 40 CFR 180.360 to read as follows: “(a) General. Tolerances are established for the combined residues of asulam (methyl sulfanilylcarbamate) and its metabolites containing the sulfanilamide moiety in or on the following food commodities.”

Based on field trial data that showed asulam residues of concern as high as 0.23 ppm and a correction for a 70% loss of residues during storage, the Agency calculated that the maximum residue should be 0.71 ppm, and determined that the tolerance on sugarcane should be increased form 0.1 to 1.0 ppm. Therefore, EPA is increasing the tolerance in 40 CFR 180.360(a) for the combined residues of asulam and its metabolites containing the sulfanilamide moiety in or on sugarcane, cane from 0.1(N) to 1.0 ppm. The Agency is removing the “N” (negligible residues) to conform to current Agency Administrative practice. The Agency determined that the increased tolerance is safe; i.e. there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Based on available sugarcane processing data that show an average concentration factor of asulam residues at 48x and a HAFT residue value that when corrected for a 70% loss in storage is expected to be 0.557 ppm (0.167 ppm/0.3), the Agency calculated that the residues would be about 26.7 ppm and determined a tolerance should be established for sugarcane molasses at 30 ppm. Therefore, EPA is establishing a tolerance in 40 CFR 180.360(a) for the combined residues of asulam and its metabolites containing the sulfanilamide moiety in or on sugarcane, molasses at 30 ppm.

Based on a 1.2x exaggerated feeding study, animal metabolism data and a ruminant diet containing 10% molasses (a livestock feed item), the Agency determined that because the anticipated residues of asulam and sulfanilamide containing metabolites in milk are <0.025 ppm, in/on fat, liver, and muscle are <0.05 ppm, and kidney is 0.12 ppm, that tolerances should be established in milk, and on the fat and meat of cattle, goats, hogs, horses, and sheep at 0.05 ppm, and meat byproducts of cattle, goats, hogs, horses, and sheep at 0.2 ppm. Therefore, EPA is establishing tolerances in 40 CFR 180.360(a) for the combined residues of asulam and its metabolites containing the sulfanilamide moiety in/on commodities, as follows: Cattle, fat; goat, fat; hog, fat; horse, fat; and sheep, fat; cattle, meat; goat, meat; hog, meat; horse, meat; and sheep, meat at 0.05 ppm; and cattle, meat byproducts; goat, meat byproducts; hog, meat byproducts; horse, meat byproducts; and sheep, meat byproducts at 0.2 ppm; and milk at 0.05 ppm.

5. Thiophanate-methyl. Currently, the tolerances for thiophanate-methyl are expressed in 40 CFR 180.371(a) in terms of thiophanate-methyl(dimethyl regulates thiophanate-methyl and its oxygen analogue dimethyl-4,4-o-phenylenebis(allophonate), and its benzimidazole-containing metabolites (calculated as thiophanate-methyl); and in 40 CFR 180.371(b) and (c) in terms of thiophanate-methyl and its metabolite (methyl 2-benzimidazoyl carbamate (MBC)). The Agency has determined that the residues of concern for plant and animal commodities for tolerance enforcement consists of the parent and its metabolite methyl 2-benzimidazolyl carbamate (MBC). Therefore, EPA is amending the tolerance expression in 40 CFR 180.371(a), (b), and (c) so as to regulate tolerances for the combined residues of thiophanate-methyl (dimethyl[(1,2-phenylene) bis(iminocarbonothioyl)] bis(carbamate)) and its metabolite methyl 2-benzimidazoyl carbamate (MBC), calculated as thiophanate-methyl in/on food commodities.

EPA no longer considers dry apple pomace, banana pulp, and bean forage and hay, and peanut forage to be significant animal feed items and tolerances are no longer needed (A listing of significant food and feed commodities is found in “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/) . Currently, there is a tolerance in 40 CFR 180.371 on peanut (forage and hay). Based on field trial data that show thiophanate-methyl residues of concern as high as 3.76 ppm, the Agency has determined that the tolerance on peanut hay should be decreased from 15.0 to 5.0 ppm. In addition, thiophanate-methyl registrations were approved by EPA to be amended to delete use on celery by request of the registrant in 1997 (62 FR 67365, FRL-5761-8). Therefore, EPA is revoking the tolerances in 40 CFR 180.371(a) on apple, dry pomace; banana, pulp; bean (forage and hay), and celery, and revise the commodity terminology from peanut (forage and hay) into separate tolerance for peanut, forage and peanut, hay, and revoke peanut forage, and decrease peanut, hay from 15.0 to 5.0 ppm.

Based on available exaggerated (10x) poultry feeding data, EPA determined that there is no reasonable expectation of finite thiophanate-methyl residues of concern in poultry commodities and therefore, the tolerance for egg (the only existing poultry commodity tolerance) is no longer needed under 40 CFR 180.6(a)(3). Therefore, EPA is revoking the tolerance in 40 CFR 180.371 for egg.

Based on the available ruminant feeding study, the Agency determined that the thiophanate-methyl residues of concern in milk and animal tissues were at the combined limit of quantitations (LOQs) of 0.05 ppm. Therefore, the tolerances for the milk and fat, meat and meat byproducts of cattle, goat, horse, and sheep should be increased to 0.15 ppm. Since the tolerance should be 0.15 ppm for all meat byproducts which includes liver and kidney tissues, the tolerances should be revised from “meat byproducts, except liver and kidney” to “meat byproducts” and the tolerances for “horse, liver” and “cattle, goat, and sheep liver and kidney” should be removed. Further, the Agency is removing the “(N)” (negligible residues) designation to conform to current Agency administrative practice. Therefore, EPA is increasing the tolerances in 40 CFR 180.371 for the combined residues of thiophanate-methyl and methyl 2-benzimidazolyl carbamate in or on milk from 0.1 to 0.15 ppm; cattle, goats, horses, and sheep meat and fat from 0.1(N) to 0.15 ppm; revising “cattle, goats, and sheep meat byproducts, except liver and kidney at 0.1(N)” and “horse, meat byproducts, except liver at 0.1(N)” to “cattle, goats, horses, and sheep meat byproducts at 0.15 ppm”; and removing cattle, goats, and sheep liver each at 2.5 ppm; horse, liver at 1.0 ppm; cattle, kidney at 0.2(N) ppm; and goat and sheep kidney each 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 field trial data that show thiophanate-methyl residues of concern as high as 16.25 ppm in/on tart and sweet cherries, 6.22 ppm on strawberries, less than the LOQ (<0.1 ppm) on wheat, the Agency determined that the tolerances should be increased on cherries from 15.0 to 20.0, on strawberries from 5.0 to 7.0 ppm, and on wheat, grain from 0.05 to 0.1 ppm. Therefore, EPA is increasing and revising the tolerances in 40 CFR 180.371(a) for the combined residues of thiophanate-methyl and methyl 2-benzimidazolyl carbamate in/on cherry, postharvest at 15.0 to cherry, sweet and cherry, tart at 20.0 ppm, strawberry from 5.0 to 7.0 ppm, and wheat, grain from 0.05 to 0.1 ppm. The Agency determined that the increased tolerance is safe; i.e. there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Based on the available field trial data that indicate thiophanate-methyl and methyl 2-benzimidazolyl carbamate residues of concern were less than 2.0 ppm in/on apples, less than the combined LOQs (<0.1 ppm each) in/on almond nutmeat and as high as 0.49 ppm in/on almond hulls, <0.1 ppm in/on pecans and peanut nutmeat, as high as 0.19 ppm in/on dry beans (as high as 1.43 ppm on snap beans), as high as 2.55 ppm in/on peaches, and less than 0.5 ppm in/on plums, the Agency determined that established tolerances should be decreased for apples; almonds; almond, hulls; dry beans; peaches; peanuts; peanut hay; pecans; and plums. Therefore, EPA is decreasing the tolerances in 40 CFR 180.371(a) for the combined residues of thiophanate-methyl and methyl 2-benzimidazolyl carbamate in/on apple, postharvest from 7.0 to 2.0 ppm; almond from 0.2(N) to 0.1 ppm; almond, hulls from 1.0 to 0.5 ppm; dry, beans from 2.0 to 0.2 ppm and revise the commodity terminology from bean (snap and dry) to bean, snap, succulent at 0.2 ppm and bean, dry, seed at 0.2 ppm; peach, postharvest from 15.0 to 3.0 ppm; peanut from 0.2(N) to 0.1 ppm; pecans from 0.2 ppm to 0.1 ppm, and revise the commodity terminology from plum, postharvest from 15.0 to 0.5 ppm.

In accordance with 40 CFR 180.1(h), residues in/on nectarines are covered by the reassessed tolerance on peaches, and therefore the tolerance on postharvest nectarines is no longer needed. Therefore, EPA is proposing to remove the tolerance in 40 CFR 180.371(a) on nectarine, postharvest.

Based on plum processing data form plums treated at 10x that show thiophanate-methyl residues of concern do not concentrate in prunes, the Agency determined that the tolerance on plum, prune, postharvest is no longer needed since residues in/on prunes would be covered by the reassessed tolerance on plum, postharvest at 0.5 ppm. Therefore, EPA is removing the tolerance in 40 CFR 180.371(a) on plum, prune, postharvest.

Based on field trial data that show thiophanate-methyl residues of concern in or on dry bulb onions as high as 0.30 ppm, the Agency determined that the tolerance onion, dry should be decreased from 3.00 to 0.5 ppm and residues on garlic are covered by the bulb onion tolerance in accordance with 40 CFR 180.1(h). EPA is decreasing the tolerance in 40 CFR 180.371 for the combined thiophanate-methyl residues of concern in/on onion, dry from 3.0 to 0.5 ppm and revising the term to onion, bulb.

Based upon the HAFT residues of 0.2 ppm in/on soybeans and the observed 6.5X concentration factor for hulls, the Agency determined that a separate tolerance should be established on soybean hulls at 1.5 ppm. Therefore, EPA is establishing a tolerance in 40 CFR 180.371(a) for the combined residues of thiophanate-methyl and methyl 2-benzimidazolyl carbamate in/on soybean, hulls at 1.5 ppm.

The available field trial residue data in/on cucumbers, melons, pumpkins, and squash are adequate to support a cucurbit vegetable group 9 tolerance at 1.0 ppm. Because a crop group tolerance covers all of the cucurbit vegetables, individual tolerances are no longer needed. Therefore, EPA is removing the individual tolerances in 40 CFR 180.371(a) in/on cucumber, melon, pumpkin, and squash at 1.0 ppm, and combining them into a crop group tolerance on vegetable, cucurbit, group 9 at 1.0 ppm.

As discussed in the comments in Unit II.A., the thiophanate-methyl Residue Chemistry Chapter and RED included recommendations that certain tolerances be designated as postharvest when the use is not solely postharvest. Therefore, the term postharvest should be removed. The Agency has determined that timings of treatment should not be included as part of these tolerances because a tolerance enforcement agency collecting and analyzing samples wouldn't know whether a commodity bore residues resulting from a seed treatment. The Agency is revising commodity terminology to conform to current Agency practice. Therefore, EPA is revising tolerances in 40 CFR 180.371(a) as follows: “Apple, postharvest” to “apple;” “apricot, postharvest” to “apricot;” “cherry, postharvest” to “cherry;” “peach, postharvest” to “peach;” “plum, postharvest” to “plum;” “sugar beet, roots” to “beet, sugar, roots;” “sugar beet, tops” to “beet, sugar, tops;” “soybean” to “soybean, seed;” “sugarcane, seed piece treatment PRE-H” to “sugarcane, cane” and in 40 CFR 180.371(b) from “cotton” to “cotton, undelinted seed.”

EPA may issue a regulation establishing, modifying, or revoking a tolerance under section 408(e) of FFDCA. In this final rule, EPA is establishing, modifying, and revoking tolerances to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes, and as follow-up on canceled uses of pesticides. As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standards under the Food Quality Protection Act (FQPA). The safety finding determination is found in detail in each Reregistration Eligibility Document (RED) and Tolerance Reassessment Document (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 pebulate and thiophanate-methyl and TREDs for chlorpropham, linuron, and asulam, which had REDs completed prior to FQPA. REDs and TREDs contain the Agency's evaluation of the data base for these pesticides, including statements regarding additional data on the active ingredients that may be needed to confirm the potential human health and environmental risk assessments associated with current product uses, and 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 made final in this document do not need such assessment when the tolerances are no longer necessary.

EPA's general practice is to revoke 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. 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.

When EPA establishes tolerances for pesticide residues in or on raw agricultural commodities, the Agency gives consideration to possible pesticide residues 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). If there is no reasonable expectation of finite pesticide residues in or on meat, milk, poultry, or eggs, then tolerances do not need to be established for these commodities (40 CFR 180.6(b) and 180.6(c)).

These actions become effective on the date of publication of this final rule in the Federal Register because their associated uses have been canceled for several years. The Agency believes that treated commodities have had sufficient time for passage through the channels of trade.

Any commodities listed in the regulatory text of this document that are treated with the pesticides subject to this final rule, and that are in the channels of trade following the tolerance revocations, shall be subject to section 408(1)(5) of FFDCA, as established by the 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 tolerance. Evidence to show that food was lawfully treated may include records that verify the dates that the pesticide was applied to such food.

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 Maximum Residue Limits (MRLs) established by the Codex Alimentarius Commission, as required by Section 408(b)(4) of 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, section 408(b)(4) of FFDCA 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 the proposed rule cited in Unit II.A.

In this final rule EPA establishes tolerances under section 408(e) of FFDCA, and also modifies and revokes specific tolerances established under section 408 of FFDCA. The Office of Management and Budget (OMB) has exempted these types of actions (i.e., 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 rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq ., 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 104-13, 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 rule, the Agency hereby certifies that this final rule will not have a significant 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 final rule, the Agency knows of no extraordinary circumstances that exist as to the present revocations that would change EPA's previous analysis. 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 final 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 FFDCA. For these same reasons, the Agency has determined that this 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 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 rule.

The Congressional Review Act, 5 U.S.C. 801 et seq ., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Commission further orders the PSHSB to report to it on PSHSB's efforts three months from the date of release of this Order and nine months from the date of release of this Order. This is a summary of the Commission's Order in EB Docket No. 06-119 and WC Docket No. 06-63, FCC 07-107, adopted May 31, 2007, and released June 8, 2007. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., in person at 445 12th Street, SW., Room CY-B402, Washington, DC 20554, via telephone at (202) 488-5300, via facsimile at (202) 488-5563, or via e-mail at FCC@BCPIWEB.COM. Alternative formats (computer diskette, large print, audio cassette, and Braille) are available to persons with disabilities by sending an e-mail to FCC504@fcc.gov or calling the Consumer and Governmental Affairs Bureau at (202) 418-0530, TTY (202) 418-0432. This document is also available on the Commission's Web site at http://www.fcc.gov.

1. Readiness Checklists. The Katrina Panel recommended that the Commission work with and encourage each industry sector, through their organizations or associations, to develop and publicize sector-specific readiness recommendations. This recommendation further stated that “such a checklist should be based upon relevant industry best practices as set forth by groups such as the Media Security and Reliability Council (“MSRC”) and the Network Reliability and Interoperability Council (“NRIC”). The Katrina Panel also stated that such checklists should include: (i) Developing and implementing business continuity plans; (ii) conducting exercises to evaluate business continuity plans and train personnel; (iii) developing and practicing a communications plan to identify “key players” and multiple means of contacting them; and (iv) routinely archiving critical system backups and providing for their storage in “secure off-site” facilities.

2. Commenters generally supported the creation of voluntary sector-based readiness checklists with input from industry. Some commenters specifically encouraged development by industry trade associations with encouragement from the Commission. In fact, one such readiness checklist has already been developed for the telecommunications industry by the Alliance for Telecommunication Industry Solutions (“ATIS”) Network Reliability Steering Committee (“NRSC”).

3. Testimony before the Katrina Panel revealed that industry sectors had not adequately prepared for a disaster of Hurricane Katrina's magnitude. We find that implementation of the Panel's recommendations in this area will improve the security and reliability of the Nation's communications infrastructure. Hence, we direct the Public Safety & Homeland Security Bureau to work with the industry to develop voluntary industry-sector readiness checklists to ensure that industry is better prepared for future disasters and emergencies, including an influenza pandemic. MSRC and NRIC best practices and other materials should serve as a foundation for developing these checklists. To ensure that the checklists take into account the needs of different types of companies, we direct the Bureau to reach out to a variety of trade organizations including those representing small communications companies. The Bureau should also publicize and promote implementation of the readiness checklists once developed, for example, by placing the readiness checklists on the Bureau's Web site and encouraging use of these checklists at summits and conferences.

4. Awareness Program on Alternative Technologies. In the Notice, we sought comment on the Katrina Panel's recommendation that we act to enhance the public safety community's awareness of non-traditional emergency alternative technologies that might be of value as back-up communications systems in a crisis. In particular, the Panel mentioned satellite systems and two-way paging systems as especially resilient to disaster. Other technologies, such as WiFi and WiMAX, were cited for their ability to restore service rapidly. In addition to a lack of knowledge about these alternatives, the Panel described the need that members of the public safety community be trained in their use prior to disasters. The Katrina Panel suggested that the lack of such training may have contributed to these technologies being overlooked during Katrina, and such training would have to occur prior to a crisis since the days following such an event are consumed with far more pressing issues.

5. Commenting parties favored the Katrina Panel's recommendation that the Commission work to enhance the public safety community's awareness of alternative communications technologies. Many emphasized the importance of satellite technologies, with most of these commenters stressing the need for training in alternative technologies before disaster strikes. Motorola also emphasizes that “* * * these important technologies will be of little help unless public safety trains on them frequently.” SIA and USA Mobility suggested that the Commission improve awareness through a combination of fact sheets and web site distribution of relevant information about alternative technologies. Several commenters suggested that the public safety community be educated about the applicability of amateur radio in a crisis. MAET observed that digital television datacasting is an alternative technology that should not be overlooked for emergency communications.

6. The Commission agrees that improving the public safety community's knowledge of, and training in, alternative technologies would improve preparedness for future crises. We direct PSHSB to develop and implement an awareness program to educate public safety agencies about alternative technologies and to encourage agencies to provide regular training on any alternative technologies to be used. The program could include: (i) Web pages describing alternative technologies and how they work; (ii) hosting summits and conferences that include discussion of alternative technologies; (iii) educating public safety agencies about alternative technologies at events sponsored by third parties; and (iv) making staff available to provide advice to public safety agencies on issues regarding specific technologies. Commenters have suggested a number of technologies be included in this program, including two-way paging, satellite, IP-based systems, WiFi and WiMAX. We agree that these technologies as well as others to be determined by PSHSB should be included.

7. Outreach Program for Emergency Medical and Other Communities. The Katrina Panel recommended that the Commission work to assist the emergency medical community to facilitate the resiliency and effectiveness of their emergency communications systems. Specifically, the Katrina Panel stated that the Commission should: (i) Educate the emergency medical community about emergency communications and help to coordinate this sector's emergency communications efforts; (ii) work with Congress and other appropriate federal departments and agencies to ensure emergency medical personnel are treated as public safety personnel under the Stafford Act; and (iii) support the U.S. Department of Homeland Security's (DHS) efforts to make emergency medical providers eligible for funding for emergency communications equipment under the State Homeland Security Grant Program. In the Notice, we also sought comment on whether and how the Commission can assist organizations whose primary business is not communications ( e.g. hospitals, nursing homes, day care facilities) with developing communications plans for an emergency. Commenters generally support these recommendations.

8. The PSHSB provides guidance and assistance to state and local governments, health care providers and law enforcement agencies on the use of Land Mobile Radio (LMR) equipment and systems, licensing requirements, and spectrum and frequency use for public safety emergency communications. The PSHSB continues to provide assistance to various stakeholder groups in their efforts to ensure that they have operable, reliable, resilient and redundant emergency communications systems in place. In 2006, several state and regional hospital associations ran on-line articles describing the Commission's expanded outreach to the health care sector regarding emergency communications, noting that the PSHSB is committed to working closely with the nation's health care providers to further strengthen emergency response capabilities and preparedness. The Commission has also conducted outreach to encourage the emergency medical community and others to enroll in priority communications service programs.

9. We direct PSHSB to continue these efforts, including its coordination with the Department of Health and Human Services (HHS) in the area of health care emergency preparedness as it relates to communications. PSHSB should continue to educate and encourage the ability of health care providers to employ a plurality of communications systems ( e.g. , land mobile relay systems, satellite communications, and/or high frequency communications) on premises, outside of their facility, and facility-to-facility. PSHSB should also work with DHS and other federal agencies to ensure emergency medical personnel are treated as public safety personnel under the Stafford Act. This recommendation is critical because the medical sector will be supporting first responders and potential disaster victims.

10. We further direct PSHSB to work with the Nation's health care, education and business communities to include, in their business continuity planning, robust emergency communication plans that ensure that these entities will be able to function during emergencies such as an influenza pandemic. Such emergencies could result in sudden and significant shortages of personnel, changes in communications traffic, possible disruptions to communications networks ( i.e. , due to increased telecommuting by the nation's workforce and society in general during an influenza pandemic), and lack of manpower to immediately repair affected communications networks. PSHSB has already begun efforts to establish a new federal advisory committee that will replace NRIC and MSRC and will address, inter alia, communications issues related to an influenza pandemic. PSHSB has also started to assemble information regarding pandemic influenza to place on its Web site. We direct PSHSB to continue with these efforts. In particular, PSHSB should update its Web site as soon as possible to include information that addresses pandemic influenza and how to prepare communications systems for such an emergency. The Web site should include links to other relevant government Web sites, such as http://www.pandemicflu.gov.

11. Monitoring of Situational Awareness During Disasters. The Katrina Panel observed that there was often a lack of clarity about which federal agency was responsible for collecting outage information and that competing requests for such information at the federal, state and local levels was distracting to restoration efforts and added to confusion about agency roles. In the Notice, we sought comment on the Katrina Panel's recommendation that the Commission coordinate all federal outage and infrastructure reporting requirements in times of crisis, functioning as a single repository and contact with consistent data collection procedures. We asked parties to comment on the appropriate content of such emergency outage reports, their format, frequency, distribution and related issues. We also asked parties to comment on whether additional safeguards should be put into effect to address the potential disclosure of commercially sensitive information to avoid potential harm to communications providers or others.

12. The vast majority of commenting parties agreed with the Katrina Panel's recommendation that the Commission serve as a single repository for outage information and implement appropriate safeguards to protect sensitive information that would be provided in such instances. DHS agrees that a central repository for network outage information during a disaster is necessary and suggests that a rulemaking is necessary to facilitate outage reporting to such a repository to improve NS/EP programs. The National Telecommunications and Information Administration (NTIA) supports the Panel's recommendation to the extent that it does not include Federal communications system outages and suggests that the outage database be maintained by the Commission representative to the Joint Field Office (JFO). Several commenting parties urged the Commission to ensure that the data collection effort is coordinated with the National Communications System (NCS) and the National Coordinating Center for Telecommunications (NCC) and conducted in a way that does not alter the NCC's role as the “primary entity in the federal government for coordinating communications network recovery and information sharing among affected industry members.” Commenting parties urged the Commission to implement the steps necessary to protect network outage information from unauthorized disclosure. Commenters also encouraged the Commission to work proactively with state and local entities on a process to share outage information that preserves appropriate confidentiality safeguards, thereby minimizing duplicative requests for such information from different sources. Others encouraged the Commission to work with industry prior to the onset of a disaster to select data fields that are necessary to support emergency management and systems that facilitate data collection, and asserted that the decisions about what data to collect should be balanced against the burden that it would impose on communications providers that are actively engaged in restoration efforts. SIA suggested that reporting entities maintain a method of submitting outage data to the Commission during a disaster even if their primary reporting facility is impaired and urges the Commission to encourage the use of satellite technology for this purpose. NENA suggests that the Commission conduct detailed analyses of the 911 outage data that it routinely collects pursuant to part 4 and “* * * work with appropriate entities to mitigate these conditions where appropriate.”

13. We agree with the Katrina Panel that the Commission should serve as the central point of contact for communications outage information during major events and should provide access to this information to other agencies. The Commission has extensive experience in this area both through its collection of outage information pursuant to part 4 of the Commission's rules (outage reporting requirements) and from its efforts to collect situational awareness information from licensees in the aftermath of the 2005 hurricanes. Moreover, we note that, prior to the Katrina Panel's Report, PSHSB staff had already begun working with the communications industry and the NCS on ways to streamline the process used to collect situational awareness information from FCC licensees during emergencies. Indeed, PSHSB is now in the late stages of developing a system and process for collection of this information. Under the process contemplated by the PSHSB staff, communications companies serving areas affected by disasters could voluntarily submit information regarding, inter alia, the status of their operations, the status of their restoration efforts, their power status (i.e., are they operating based on commercial power, a generator or battery power) and their use of fuel. The information submitted would be accorded confidential treatment, and would be shared with NCS on a confidential basis. This information would allow the Commission and other governmental agencies to not only track the status of communications companies' operations in the aftermath of a disaster, but also their restoration status. The information could also be used to determine communications companies' needs ( e.g. , generator, fuel).

14. We direct PSHSB to continue working with NCS and the communications industry, including the broadcast and cable industries, to resolve any outstanding issues in order to facilitate the activation of the system as soon as possible. The Bureau should also work to obtain any necessary regulatory approvals for collection of this information as soon as possible. Finally, we direct the Bureau to work with the communications industry, NCS and state government agencies to address whether information submitted by the industry should be shared with state governments.

15. We decline to initiate a rulemaking at this time to make the outage reporting process mandatory. The voluntary process that was put in place during Katrina provided the necessary information on a timely basis. Furthermore, a mandatory process would be less flexible and would not adapt well to the unique needs of a particular crisis. For these reasons we find that a voluntary situational awareness process is more effective during disasters. Finally, we note that PSHSB currently conducts the analyses of 911 outage data recommended by NENA, including coordination with appropriate entities and industry bodies to effectuate improvements in 911 reliability where appropriate.

16. Automatic Special Temporary Authority and Waiver Relief. The Notice sought comment on the Katrina Panel's recommendation that the Commission establish a prioritized system by which affected parties could automatically be granted waivers of certain regulatory requirements, or be granted automatic Special Temporary Authority (STA) in a particular geographic area if the President declares that area to be a “disaster area.” The Katrina Panel stated that, as a condition of such waivers or STAs, the Commission could require verbal or written notification to Commission staff contemporaneously with activation or promptly after the fact. The Katrina Panel also recommended that the Commission examine expanding the on-line filing opportunities for STA requests. In this recommendation, the Katrina Panel also included a list of “possible rule waivers and STAs to study for this treatment.” For the reasons indicated below, we have concluded not to automate the waiver and STA process.

17. Although most commenters supported this recommendation, few commented on how such an automatic waiver/STA process would work or be structured. Further, no commenter asserted that the manner in which the Commission expedited the grant of waivers and STAs during the 2005 hurricanes was not effective. We believe that, on balance, public safety would be better served by an expedited review, rather than a fully automated system. Although we wish to relieve all licensees of unnecessary regulatory burdens during an emergency, we are concerned that a general policy of allowing the automatic grant of STAs and waivers of operational requirements could have serious consequences.

18. For example, without minimal Commission review, an automatic STA could allow operations of a new facility using spectrum already in use by an essential communications provider and thereby inadvertently cause essential communications to fail. We believe that it would be far easier, and more consistent with public safety to grant expedited review of an STA application than to try to undo an automatic STA once operations have begun. Further, the declaration of a “presidential disaster area” does not appear to be a sufficient basis, by itself, to grant an STA or waiver, whether automatically or otherwise. For example, there could be instances where the communications infrastructure in a Presidentially declared disaster area remains intact. In such a case, an STA or waiver may be unwarranted. On the other hand, there may be situations where there is damage to a telecommunications carrier's infrastructure in an area that is never declared a disaster area. Thus, an automatic STA or waiver process based on a Presidentially declared disaster area could be overinclusive in some cases and underinclusive in others. For the same reason we disagree that the triggering by a licensee of its emergency plan generally should act as a trigger for automatic STAs or waivers. There may also be legal impediments to automatic STAs for Title III authorizations under Sections 308(a) and 309(f) of the Communications Act. Finally, we agree with NTIA that, in an emergency, the close coordination that is required between the Commission and NTIA regarding the use of shared Federal/non-Federal bands and shared spectrum management responsibilities precludes a fully automated waiver/STA process. Accordingly, we conclude that some level of Commission review is necessary during an emergency to ensure that STAs or waivers are properly granted.

19. We believe, at this time, the best approach would be to use an expedited process for acting on requests for STAs, waivers and other regulatory relief based on the particular circumstances of the disaster at hand. An expedited process would allow the Commission to ensure that there is a link between the relief being requested and the emergency at issue. During Hurricane Katrina, the Commission publicized its procedures for seeking regulatory relief, granted some relief on its own motion and otherwise processed requests for relief on an expedited basis. Many of these requests were processed within four hours and all were processed within 24 hours. Additionally, Commission rules permit the suspension or waiver of rule requirements on its own motion, STA requests by telephone during emergencies and the grant of station licenses, modification, renewal or STAs without the filing of formal applications in certain emergency situations. Other rules provide additional flexibility for licensees to adjust operations during emergency situations. Therefore, the Commission has procedures in place to ensure that waivers and STAs are promptly reviewed and granted during an emergency. Accordingly, we direct PSHSB to work with other Bureaus and Offices, as necessary, to publicize emergency-related rules and procedures prior to disaster. This could be done by, among other things, providing relevant information on PSHSB's Web site as well as through outreach programs directed at public safety agencies and the industry.

20. Other Pre-Positioning Recommendations From Commenters. Several commenters submitted additional suggestions for improving network resiliency and redundancy.

21. Permanent Relief from InterLATA Restrictions. BellSouth recommends that the Commission grant the Bell Operating Companies (BOCs) permanent relief from interLATA boundary restrictions. It argues that such action would enhance network resiliency and redundancy. The BOCs have already raised the issue of relief from Section 272 and its implementing rules in a number of pending forbearance petitions and waiver requests. Accordingly, we will consider this issue in those proceedings as appropriate.

22. One Year Section 272 Relief. Last year, WCB granted a one-year Special Temporary Authority from enforcement of Section 272 and its implementing rules to BOCs in order to allow them to share non-public, BOC network information with their Section 272 and other affiliates to engage in disaster planning. In addition, WCB granted Verizon a one-year waiver of part 64 requirements to allow Verizon to engage in disaster planning with its former GTE company affiliates. The relief for disaster planning ends April 20, 2007 for AT&T and June 9, 2007 for BellSouth, Qwest and Verizon. Verizon and BellSouth argue that the Commission should reconsider the one-year limitation of this relief or change its rules so that an STA or waiver is not necessary. Verizon, for example, states that it will need to conduct disaster planning well beyond June 2007 to prepare for, among other things, next summer's hurricane season.

23. In light of the upcoming hurricane season and the separate tornadoes that recently struck parts of Kansas and Alabama, we grant an extension of the regulatory relief granted by WCB last year to AT&T, Qwest and Verizon for a period of one-year from the date the originally-granted relief is due to expire. Specifically, we grant AT&T, Verizon and Qwest a one-year STA and waiver of Section 272 of the Act and the Commission's accounting and non-accounting structural separation safeguards. We also extend for an additional year, a waiver previously issued to Verizon to engage in integrated disaster recovery planning with its former GTE affiliates. Under the STA and waiver, AT&T, Qwest and Verizon will continue to be permitted to share non-public BOC network information with its Section 272 affiliates (as well as other affiliates that adhere to the Section 272-like safeguards), as necessary to engage in integrated disaster planning.

24. We find that an extension of the regulatory relief previously accorded these carriers serves the public interest. The unique circumstances of a hurricane, tornado or other disaster warrant a deviation from Section 272 and the accompanying rules, and such deviation will better serve the public interest in a time of emergency. This relief will allow AT&T, Verizon and Qwest to continue to develop risk mitigation strategies and contingency plans that will reduce the likelihood and duration of any service outage and will permit these carriers' networks to continue to operate in the event a “choke point” is compromised.

25. Credentialing Guidelines . In the Notice, we sought comment on the Katrina Panel's recommendation that the Commission work with other appropriate federal departments and agencies and the communications industry to promptly develop national credentialing requirements and process guidelines to enable communications infrastructure providers and their contracted workers access to affected areas after a disaster. The President's National Security Telecommunications Advisory Committees (NSTAC) made similar recommendations to the President last year. The Panel advocated, however, expanding the NSTAC's credentialing recommendations to include repair workers of all communications infrastructure ( e.g. , wireline, wireless, Wireless Internet Service Providers (WISPs), cable, broadcasting, and satellite). Further, the Katrina Panel recommended that the Commission work with the communications industry to develop an appropriate basic NIMS training course for communications repair workers that can be completed online as a requirement for credentialing. Additionally, the Katrina Panel recommended that the Commission should: (i) Encourage states to develop and implement a credentialing program consistent with NSTAC guidelines as promptly as possible and encourage appropriate communications industry members to secure any necessary credentialing; (ii) encourage states to recognize and accept credentials issued by other states; and (iii) encourage, but not require, each regional, state and local EOC or JFO to develop credentialing requirements and procedures, consistent with any national credentialing guidelines, for purposes of allowing communications infrastructure providers, their contracted workers and private security teams, if any, access to the affected areas post-disaster.

26. Most commenters generally supported credentialing communications personnel to access affected areas post-disaster. Many stressed that credentialing recommendations should apply to all communications providers, including their contracted workers. In fact, DHS noted that it is making significant efforts to advance the implementation of a national standard for the credentialing of telecommunications repair workers. Commenters were split regarding whether NIMS training should be required as a requirement for credentialing.

27. The Commission's experience with Hurricane Katrina and the record in this proceeding reveal that access to affected areas post-disaster was one of the most critical issues for the communications industry. As the National Response Plan makes clear, DHS has primary responsibility to coordinate federal incident management activities, including disaster site access and credentialing, for all emergency personnel. As such DHS, rather than the FCC, has jurisdiction and authority to adopt credentialing guidelines that apply to the communications industry.

28. DHS and the states have taken a number of steps to develop credentialing guidelines that would allow communications providers access to disaster areas. For example, DHS/NCS worked with the State of Georgia and BellSouth to develop a pilot access program focused on priority access for critical response personnel, including telecommunications, which resulted in the publication of a Georgia Standard Operating Procedure (SOP) for emergency access. This SOP has been distributed as suggested protocol to all 50 states and the territories. DHS/Federal Emergency Management Agency (FEMA) is also working on an access pilot program to give telecommunication repair crews better access to disaster areas and is aggregating documentation for emergency personnel nationwide into a National Emergency Responder Credentialing Program that DHS/FEMA expects to make operational this year.

29. PSHSB staff is already working with DHS to help ensure that any credentialing program would encompass critical communications infrastructure repair crews and their contracting support staff and to support coordination with regional, state and local officials regarding the development of consistent credentialing programs for communications providers. We believe the issue of whether to require NIMS training as a requirement for credentialing is best addressed by DHS/NCS and regional, state and local authorities as they develop their credentialing programs. We agree with DHS's assertion that the Commission's credentialing efforts should complement, not supersede or duplicate, those of DHS/NCS. We direct PSHSB to continue to work with DHS and the states on these efforts.

30. Emergency Responder Status for Communications Infrastructure Providers . In the Notice, we sought comment on the Katrina Panel's recommendations that the Commission work with Congress and appropriate federal departments and agencies to afford all communications infrastructure providers, including wireline, wireless, WISPs, satellite, cable and broadcast infrastructure providers and their contracted workers emergency responder status under the Stafford Act and to incorporate this designation into the National Response Plan (“NRP”) and state and local emergency response plans. Most commenters supported this recommendation and stressed that the emergency responder status should be afforded to all communications service providers.

31. Section 607 of the recently enacted Warning, Alert and Response Network Act (WARN Act) amended the Stafford Act to add the term “essential service provider” which includes entities that provide telecommunications service. This section of the WARN Act also states that, unless exceptional circumstances apply, in an emergency or major disaster, the head of a Federal agency, to the greatest extent practicable, shall not deny or impede access to the disaster site to an essential service provider whose access is necessary to restore and repair an essential service and shall not impede the restoration or repair of telecommunications services. We direct PSHSB to work with DHS, and all other relevant federal, state, tribal and local government agencies, to facilitate: (i) Access to disaster areas for communications provider personnel so that recovery efforts can be expedited; and (ii) the incorporation into the NRP and state, tribal and local emergency response plans of the designation of telecommunications service providers as “essential service providers.” PSHSB should also encourage DHS to seek Congressional action, if necessary, to ensure that the term “essential service provider” includes all communications service providers.

32. Utilization of State/Regional Coordination Bodies . The Katrina Panel recommended that the Commission work with state and local governments and the communications industry (including wireline, wireless, WISP, satellite, cable and broadcasting) to better utilize the coordinating capabilities at regional, state and local Emergency Operations Centers (EOCs), as well as the Joint Field Office (JFO). In particular, the Panel recommended that the Commission encourage, but not require, each regional, state and local EOC and JFO to: (i) Facilitate coordination between communications infrastructure providers and state and local emergency preparedness officials (such as the state EOC) in the state or region at the EOC or JFO; (ii) develop and facilitate inclusion in state emergency preparedness plans, where appropriate, one or more clearly identified post-disaster coordination areas for communications infrastructure providers, their contracted workers, and private security teams to gather post-disaster where credentialing, security, escorts and further coordination can be achieved; and (iii) share information and coordinate resources to facilitate repair of key communications infrastructure post-disaster.

33. Commenters generally support the recommendation that the Commission work with state and local governments and the communications industry to better facilitate coordination between emergency responders and the communications infrastructure providers. In its comments CTIA recommended that the Commission work with Federal, state and local governments to create a process to establish embarkation points for communications recovery efforts in the wake of a disaster. DHS agrees that it would be advantageous to engage the EOCs and JFOs in support of greater communications crisis preparedness and more effective response planning. DHS asserts, however, that it would be more appropriate, and consistent with mission responsibilities and existing relationships between the entities, for such activities to be coordinated jointly by NCS and DHS/FEMA in the first instance rather than by the FCC. Cingular asserts that the Commission should urge states to refrain from imposing emergency preparedness requirements on the industry. Cingular states that the adoption of state specific requirements, while well intended, hinder recovery efforts by eliminating flexibility and creating a patchwork of inconsistent requirements that carriers must follow.

34. These recommendations generally fall under the jurisdiction of the NCS which, as the coordinator and primary agency for ESF #2 (Communications) of the NRP, performs these functions. The Commission supports these efforts in its role as an ESF #2 support agency. ESF #2 coordinates Federal actions for the restoration of the telecommunications infrastructure and ensures the provision of Federal communications support to Federal, state, tribal, local and private sector response during an Incident of National Significance. NCS assists in the coordination of planning and provision of emergency preparedness communications for the Federal government under all circumstances, including crisis or emergency, attack, recovery and reconstitution. The Commission and other government agencies such as FEMA have also taken a number of steps in this area. The Commission reached out to its licensees to determine their status and needs and provided the collected information to the NCS. The Commission then helped coordinate ESF #2 response efforts to aid the Commission's licensees ( e.g. , arranged for helicopter overflights, fuel shipments, access, curfew and airport information). The Commission is also working with DHS/NCS to encourage regional, state and local EOCs and/or JFOs to identify post-disaster coordination areas for communications providers and their contract workers and to create a process to establish embarkation points for communications recovery efforts. For example, the Commission assisted DHS with developing proposals making federal property available as a staging area for communications infrastructure providers under the Stafford Act.

35. We direct PSHSB to continue to work with DHS, state, tribal and local governments and the communications industry on these issues. However, we decline to take action to urge the states to refrain from imposing emergency preparedness requirements on the communications industry as Cingular advocates.

36. Priority Utility Restoration for Communications Providers . In its report, the Katrina Panel recommended that the Commission encourage, but not require, each regional, state and local EOC and JFO to facilitate electric and other utilities' maintenance of priority lists that include commercial communications providers for commercial power restoration. The Katrina Panel stated that power restoration activities should be coordinated with communications restoration. The majority of commenters support this recommendation.

37. Other agencies, such as DHS, the Department of Energy, and state agencies, have primary jurisdiction and authority over this matter. Loss of power is a critical failure that DHS/NCS is aware of and focused on. For example, NCS coordinates priority lists with the agencies responsible for NRP's Emergency Support Function #12—Energy. The communications sector is number two on the ESF #12 priority lists. NCS also has tools that can identify communication sites. The agencies responsible for ESF #12 have tools that can locate energy sites near communications providers and determine whether there have been critical failures. Coordination of these priority lists between Emergency Support Functions 2 and 12 is ongoing. We direct PSHSB to support DHS/NCS and the other agencies addressing this issue in their efforts to ensure priority power and other relevant utility restoration for commercial communications providers during and after disasters.

38. Expanding and Publicizing Priority Communications Service Programs . The Katrina Panel recommended that the Commission work with the NCS to promote the use of existing priority communications services, such as Telecommunications Service Priority (TSP), Government Emergency Telecommunications Service (GETS) and Wireless Priority Service (WPS), to all eligible entities, particularly eligible government, public safety, emergency medical community, and critical industry groups. Further, the Katrina Panel stated that the Commission should work with NCS to clarify whether broadcast, WISP, satellite, and cable company repair crews are currently eligible for GETS and WPS and, if so, should also promote the availability of those priority services to those entities. The Katrina Panel also recommended that the Commission work with NCS and industry to establish and promote best practices to ensure that all WPS, GETS, and TSP subscribers are properly trained in how to use these services. Finally, the Katrina Panel recommended that the Commission work with NCS to explore whether it is technically and financially feasible for WPS calls to automatically receive GETS treatment when they reach landline facilities, thus avoiding the need for a WPS caller to also enter GETS information.

39. DHS fully supports the Katrina Panel's recommendation that the Commission work with NCS to promote wider use of GETS, WPS and TSP programs among government, public safety, and critical industry groups. Broadcasters that provided comments support granting broadcasters access to GETS and WPS. Other commenters state that promotion of these programs must be coordinated with industry to ensure that providers can absorb additional demands placed on their networks through increased participation in the programs.

40. PSHSB staff members are actively engaged in priority services outreach. For example, PSHSB staff recently worked with the NCS TSP Program Office, various telecommunications carriers, and the State of New York to enroll over 2,000 circuits into the TSP program. Additionally, PSHSB staff is closely coordinating with the HHS to increase awareness among health care providers, particularly hospitals, about the benefits of enrollment and participation in federal priority service programs. This initiative includes expanded outreach in the health care sector and with state health departments to increase their understanding of TSP, GETS and WPS during and in the aftermath of a natural disaster or other emergency, such as an influenza pandemic. HHS is considering options to better incorporate support for these federal priority service programs into their emergency preparedness funding streams. The Commission is also working with hospital associations to educate the medical community about priority communications services. In addition, PSHSB is working with NCS to enhance WPS and resolve the issue of whether it is feasible for WPS calls to automatically receive GETS treatment when they reach landline facilities.

41. We direct PSHSB to continue to work with DHS, including the NCS Committee of Principal's Priority Services Working Group (PSWG), to promote the priority communications services to all eligible entities, particularly eligible government, public safety, emergency medical community, and critical industry groups, including repair crews which could qualify under the eligibility criteria for both WPS and GETS under the category of disaster recovery. PSHSB should work with DHS to ensure that communications systems' capabilities are not overwhelmed by increased demands placed on networks by increased participation in these programs. We also direct PSHSB to support the creation and promotion of best practices to ensure proper training in how to use these services. Finally, we direct PSHSB to continue working with DHS and NCS's PSWG to enhance WPS and resolve the issue of whether it is feasible for WPS calls to automatically receive GETS treatment when they reach landline facilities.

42. Broadening NCC to Include All Communications Infrastructure Sectors. The Katrina Panel recommended that the Commission work with the NCS to broaden the membership of the NCC to include adequate representation of all types of communications systems, including broadcast, cable, satellite and other new technologies, as appropriate. The NCC is a government and industry organization within DHS/NCS. It functions at the operational level and assists in initiating, coordinating, restoring and reconstituting national security and emergency preparedness (NS/EP) telecommunications services or facilities under all conditions of crises and disasters.

43. In January 2000, the NCC was designated an Information Sharing and Analysis Center (ISAC) for Telecommunications in accordance with Presidential Decision Directive 63. The NCC-ISAC facilitates the exchange among government and industry participants regarding vulnerability, threat, intrusion, and anomaly information affecting the telecommunications infrastructure. Since its creation, the NCC has coordinated the restoration and provisioning of national security and emergency preparedness telecommunication services and facilities during natural disasters and armed conflicts. The NCC leverages its unique joint government/industry structure and all-hazard emergency response capabilities to coordinate the initiation, restoration, and reconstitution of United States government national security and emergency preparedness telecommunications services both nationally and internationally.

44. DHS fully supports the Katrina Panel's recommendation that the Commission work with NCS to broaden the membership of the NCC. DHS states that NCS is already working with the members of industry to explore expansion of NCC membership and would welcome the Commission's engagement in this area. Several additional commenters support this recommendation.

45. In coordination with DHS/NCS, PSHSB is currently engaged in efforts to make the NCC more of an overall communications information sharing and analysis center instead of one focused solely on telecommunications. The Commission is working with communications trade groups and broadcasters, among others, to encourage them to consider NCC membership. Recently, a fiber optic provider the Commission introduced to the NCC signed up for membership as did APCO, COMPTEL, Global Crossing, and Cox Cable. We direct PSHSB to continue its efforts in this area.

46. Web site for Emergency Coordination. The Katrina Panel recommended that the Commission create a Web site identifying the key state emergency management contacts, particularly for communications coordinating bodies, and post-disaster coordination areas for communications providers. Some commenters support the proposal that the Commission create a disaster response Web site for communications providers; other commenters state that this function is best suited for other agencies, such as FEMA or DHS.

47. FEMA and many states already have publicly available information identifying key state emergency management contacts. FEMA's Web site has a compilation of state emergency contacts ( http://www.fema.gov/about/contact/statedr.shtm ) and the NCC Web site ( http://www.ncs.gov/ncc ) has links to federal agencies. Accordingly, we do not believe it is necessary for the Commission to create a similar Web site.

48. To facilitate access to this information by communications companies, we direct PSHSB to coordinate with FEMA to provide updated links to the relevant state emergency contact information contained on the FEMA Web site. Specifically, PSHSB should create a link on its Web site to FEMA's listing of state emergency contact information.

49. FCC Web site for Emergency Response Team Information. The Katrina Panel recommended that the Commission create a Web site to publicize the Commission's emergency response team's contact information and procedures for facilitating disaster response and outage recovery. Commenters unanimously support the Katrina Panel's recommendation. Commenters contend that the Commission should maximize existing resources by developing and posting on the Commission's Web site the Commission's emergency response team's contact information and procedures.

50. We agree that a Web site providing emergency contact information, procedures for facilitating disaster response and outage recovery, and procedures for obtaining regulatory relief during emergencies would be helpful. We direct PSHSB to work with other Bureaus and Offices, as appropriate, to do so.

51. Other Recovery Coordination Recommendations. Commenters submitted the following suggestions for improving the recovery coordination process:

52. Expedited Importation of Essential Communications Technology. Iridium Satellite LLC suggests that the Commission work with other federal agencies to establish a system that facilitates the delivery of replacement infrastructure and equipment during a disaster. Additionally, Inmarsat asserts that, as part of creating redundancy, the federal government should recognize the importance of, and encourage the building of, mobile units that can be deployed as needed to any given disaster zone to assist in rapid restoration of vital communications using Mobile Satellite Service. These functions are covered by ESF #2. The Commission is already working with other agencies to support these functions and will continue to coordinate with DHS/NCS and other agencies regarding these matters. Inmarsat also asserts that the Commission should work with U.S. Customs to ensure that bottlenecks do not slow the importation of essential communications technology in the aftermath of a disaster. Inmarsat and other satellite operators apparently experienced a sharp rise in demand after Hurricane Katrina that could not be met by the existing stock of satellite terminals in the U.S. We direct PSHSB to coordinate with DHS/NCS, U.S. Customs and other appropriate agencies to develop a systematic approach toward the importation of communications equipment needed for disaster response in the wake of disasters.

53. Real Time Tracking of Progress and Shared Experiences. Champaign Urbana Wireless Network, The Texas ISP Association, The Association for Community Networking, and Acorn Active Media (CUWN, et al.) suggest that the Commission provide a means by which communications responders could record their progress, share experiences in real time and avoid accidental conflicts. This function is primarily a responsibility of DHS/NCS under ESF #2 and PSHSB should continue to coordinate with DHS/NCS regarding these matters.

54. Emergency Restoration Supply Cache and Alternative Inventory. To facilitate the restoration of public safety communications, the Panel recommended that the Commission: (i) Support the ongoing efforts of the NCC to develop and maintain a database of state and local public safety system information, including frequency usage, to allow for more efficient spectrum sharing, rapid on-site frequency coordination, and emergency provision of supplemental equipment in the event of system failures; (ii) support the efforts of the NCC to develop an inventory of available communications assets (including local, state, federal civilian and military) that can be rapidly deployed in the event of a catastrophic event and work with the NCC and the appropriate agencies to educate key state and local emergency response personnel on the availability of these assets and how to request them; and (iii) coordinate with the NCS/NCC to assure that, immediately following any large disaster, there is an efficient means by which federal, state and local officials can identify and locate private sector communications assets that can be made rapidly available to first responders and relief organizations. The Katrina Panel noted that one means by which to identify and locate private sector communications assets would be a Web site maintained by either the FCC or NCC through which the private sector could register available assets along with product information and stated that such a Web site should be designed with a special area for registering available equipment to assist persons with disabilities in their communications needs.

55. Support NCC Efforts to Develop a Database of State and Local Public Safety System Information. PSHSB has already provided support for the NCC's ongoing efforts to develop and maintain a database of state and local public safety system information. With assistance from PSHSB, the NCC has developed a public safety first responder frequency sharing guide. PSHSB consulted private frequency coordinators and collected and coordinated information from them for this effort. Additionally, although it was only developed for the states affected by Hurricane Katrina, FEMA recently developed a Gulf Coast communications plan for use during emergencies that identifies all public safety equipment and spectrum currently in use.

56. Coordinate with NCC to Facilitate the Availability of Communications Assets for First Responders Post-Disaster. The Commission already coordinates with the NCS/NCC to assure that, following any large disaster, there is an efficient means by which federal, state and local officials can identify and locate private sector communications assets that can be made rapidly available to first responders and relief organizations. PSHSB has been providing a supporting role to FEMA on this issue. For example, per FEMA's request, PSHSB recently set up a meeting between FEMA and communications industry representatives to discuss, among other things, contingency contracts for equipment and the identification of equipment that can be airlifted through the Department of Defense. PSHSB already supports the efforts of the NCC to develop an inventory of available communications assets, in 2006 the NCS began development of an inventory database of government and industry assets. This inventory database of available government and industry communications assets developed by NCC and available to ESF #2 addresses this recommendation. Regarding a Web site, a function already exists whereby industry can report their available assets directly to the NCC.

57. We direct PSHSB to continue to work with DHS, NCS, NCC, FEMA, state governments, and industry on these issues. We also direct PSHSB to continue to work with NCC to address the Katrina Panel recommendation regarding the identification of private sector communications assets, including specifically identifying equipment available to assist persons with disabilities in their communications needs.

58. Equipment Cache. Another Katrina Panel recommendation intended to facilitate the restoration of public safety communications includes that the Commission encourage state and local jurisdictions to retain and maintain, including through arrangements with the private sector, a cache of equipment components that would be needed to immediately restore existing public safety communications within hours of a disaster. The Katrina Panel stated that the cache should: (i) Include the necessary equipment to quickly restore communications capabilities on all relevant mutual aid channels; (ii) be maintained as a regional or state-wide resource, and located in areas protected from disaster impacts; and (iii) be included as an element of the NRP. Further, the Katrina Panel recommended that the Commission encourage state and local jurisdictions to utilize the cache through training exercises on a regular basis.

59. In its comments, DHS stated that it has reservations about the recommendation concerning the stockpiling of equipment. DHS noted that already limited budgets do not provide funding to procure additional equipment and, in many cases, the redundant equipment for network restoration is often unavailable because the systems at issue are legacy systems that are obsolete and no longer supported by manufacturers. We agree. The Commission is reluctant to encourage state and local jurisdictions to maintain such a cache of equipment unless funding for such an effort has been specifically identified. Many local jurisdictions do not have the requisite funds for this effort. Although some states have such equipment under “mutual aid agreements,” most states do not have funds for equipment not in use; their funds are used for equipment intended for immediate use. Further, there are already a number of training exercises for responders. For example, there are regional annual training exercises held to demonstrate equipment in a disaster and to show options for restoration.

60. Facilitating First Responder Communications Capabilities. To facilitate interoperability among first responder communications, the Katrina Panel recommended that the Commission: (i) Maintain the schedule for commencing commercial spectrum auctions by January 28, 2008 to fully fund the $1 billion public safety interoperability program, consistent with recent legislation; (ii) work with NTIA and DHS to establish appropriate criteria for the distribution of the $1 billion in a manner that best promotes interoperability with the 700 MHz band—among other things, such criteria should mandate that any radios purchased with grant monies must be capable of operating on 700 MHz and 800 MHz channels established for mutual aid and interoperability voice communications; (iii) encourage the expeditious development of regional plans for the use of 700 MHz systems and move promptly to review and approve such plans; (iv) expeditiously approve any requests by broadcasters to terminate analog service in the 700 MHz band before the end of the digital television transition in 2009 in order to allow public safety users immediate access to this spectrum; (v) work with the NTIA and DHS to develop strategies and policies to expedite allowing Federal (including the military), state and local agencies to share spectrum for emergency response purposes, particularly the Federal incident response channels and channels established for mutual aid and interoperability; and (vi) publicize interoperability successes and/or best practices by public safety entities to serve as models to further interoperability.

61. Schedule for 700 MHz Spectrum Auction. We agree that the Commission should, consistent with recent legislation, maintain the schedule for commencing commercial spectrum auctions in the 700 MHz bands by January 28, 2008. Accordingly, the Commission should proceed with current plans for developing auction rules and procedures, including the conclusion of a pending rulemaking addressing the commercial 700 MHz spectrum. The Commission will commence auction of this spectrum in a manner consistent with the Digital Television Transition and Public Safety Act of 2005.

62. Criteria for the Distribution of the $1 Billion Public Safety Interoperability Program. We direct PSHSB to offer to work with NTIA and DHS, as appropriate, to establish criteria for the distribution of the $1 billion interoperability fund in a manner that best promotes interoperability with the 700 MHz band. No commenter opposed the idea of the FCC offering to work with NTIA and DHS in this regard. Although the statute places responsibility for implementing this grant program upon NTIA and DHS, the Commission could provide helpful input. We believe, however, that such funds should not be limited to the 700 MHz and 800 MHz bands and that the PSHSB should encourage NTIA and DHS to explore ways to use IP technology to facilitate interoperability with VHF and UHF. An IP-based approach would allow legacy systems to evolve into a broadband communications system. Additionally, any action relating to the 700 MHz band should include consideration of DHS' concern that the Katrina Panel's recommendations are focused only on state and local communications with little standardization across regions and, therefore, fail to address the need to incorporate federal coordination with state and local first responders into the solution.

63. Expeditious Development, Review and Approval of Regional Plans. We direct PSHSB to encourage, as part of their outreach efforts, the expeditious development of regional plans for use of 700 MHz systems and to promptly review and, where possible, approve such plans when submitted. This received strong support in the record. PSHSB should initiate outreach efforts to encourage states, tribal governments and localities to participate in the regional planning processes. PSHSB can work with regional planning committees in their efforts to develop regional plans and coordinate their plans with adjacent regions.

64. Requests by Broadcasters to Terminate Analog Service in the 700 MHz Band. Although we understand the importance of ensuring access to this spectrum by public safety agencies as quickly as possible, we must balance this goal with the need to protect consumers who could potentially lose service if they have not yet obtained digital televisions or converters. Accordingly, although we will endeavor to process requests from broadcasters to terminate analog service as quickly as possible, we will continue to review such requests pursuant to the policies previously adopted in Upper 700 MHz Memorandum Opinion and Order and Further Notice of Proposed Rulemaking.

65. Sharing of Spectrum. We agree that implementation of the recommendation that the Commission work with NTIA and DHS to develop strategies and policies to expedite allowing Federal, state and local agencies to share spectrum for emergency response purposes would serve the public interest. We direct PSHSB, together with the Office of Engineering and Technology, to work with NTIA and DHS on this issue. There is record support for the Commission working with NTIA and DHS to allow Federal and non-Federal spectrum sharing for emergency response purposes, both in spectrum allocated for Federal and non-Federal uses. NTIA states in its comments that it and the Interdepartment Radio Advisory Committee (“IRAC”) already are considering a proposal to revise current rules to allow more flexible use by state and local governments, and to simplify the regulations governing the use of Federal interoperability channels. The Commission should assist in these ongoing efforts in the IRAC and its subcommittees and should consider other possible solutions for making spectrum available for shared use by federal, state, tribal and local agencies for emergency response purposes.

66. Publicizing Interoperability Successes and Best Practices. We direct PSHSB to work with other federal agencies, the public safety community and the industry, as appropriate, to develop best practices to promote interoperability. In addition, PSHSB should encourage public safety organizations to provide interoperability success stories and make this information available on its Web site.

67. Resiliency and Restoration of E-911 Infrastructure and PSAPs. In order to ensure a more robust 911 and E-911 service, the Katrina Panel recommended that the Commission encourage the implementation of the following three best practices issued by the Network Reliability and Interoperability Council (NRIC):

(1) Service providers and network operators should consider placing and maintaining 911 circuits over diverse interoffice transport facilities ( e.g. , geographically diverse facility routes, automatically invoked standby routing, diverse digital cross-connect system services, self-healing fiber ring topologies, or any combination thereof).

(2) Network operators, service providers, equipment suppliers and public safety authorities should establish alternative methods of communication for critical personnel.

(3) Service providers, network operators and property managers should ensure availability of emergency/backup power ( e.g. , batteries, generators, fuel cells) to maintain critical communications services during times of commercial power failures, including natural and manmade occurrences ( e.g. , earthquakes, floods, fires, power brown/blackouts, terrorism). The emergency/backup power generators should be located onsite, when appropriate.

68. We agree that PSHSB should be proactive in encouraging implementation of the first two of these NRIC recommendations, for example, through additional outreach efforts which could include, inter alia , NRIC best practice outreach efforts, promoting industry guidelines on its Web site, and working with FEMA to educate PSAP managers in disaster management, PSAP rerouting, and the National Incident Management System. This is consistent with the recommendations of both NRIC and the Katrina Panel that these best practices be encouraged, but not required. No commenters asserted that there is a need to make these best practices mandatory at this time. Additionally, there may be legitimate concerns that implementation of diverse 911 circuits would be cost-prohibitive in certain cases.

69. NENA recommends that “the FCC or the state commissions, as appropriate, require all telephone central offices to have an emergency back-up power source.” St. Tammany's Parish Communications District 1 emphasizes the need for wireline providers to have backup procedures in place. Several commenters supported this voluntary best practice and indicated that they have backup power available at their facilities. For example, AT&T agrees that it is important to have backup power to ensure the continued operation of the nation's 911 system during disasters and states that it looks forward to helping implement the Katrina Panel's recommendation that the Commission encourage the implementation of the NRIC backup power best practice. AT&T reported that all of its central offices are equipped with backup batteries and/or diesel generators. Verizon also stated that every critical component in its networks is protected by automatic power back-up systems.

70. We agree with NENA's and St. Tammany Parish's suggestion and find that adoption of this requirement serves the public interest. Accordingly, pursuant to our authority under Section 1 of the Communications Act, as amended, we will require all local exchange carriers (LECs), including incumbent LECs (ILECs) and competitive LECs (CLECs), as well as commercial mobile radio service (CMRS) providers to have an emergency back-up power source for all assets that are normally powered from local AC commercial power including those inside central offices, cell sites, remote switches and digital loop carrier system remote terminals. LECs and CMRS providers should maintain emergency back-up power for a minimum of 24 hours for assets inside central offices and eight hours for cell sites, remote switches and digital loop carrier system remote terminals that normally are powered from local AC commercial power.

71. Our expectation is that this requirement will not create an undue burden since several reported in their comments that they already maintain emergency back-up power. We realize, however, that this requirement may present a financial burden to some small carriers. Accordingly, we will not impose this requirement on LECs (including both ILECs and CLECs) that meet the definition of a Class B company as set forth in Section 32.11(b)(2) of the Commission's rules. We will also not apply this requirement to non-nationwide CMRS providers with no more than 500,000 subscribers.

72. The Commission finds that PSHSB should be proactive in encouraging implementation, by all other communications providers, of the third NRIC recommendation set forth above, which states that communications service providers, network operators and property managers should ensure the availability of emergency/backup power.

73. The Katrina Panel also recommended that the Commission encourage the implementation of an NRIC best practice that states that network operators should consider deploying dual active 911 selective router architectures to enable circuits from the caller's serving end office to be split between two selective routers in order to eliminate single points of failure. This NRIC best practice further states that diversity should also be considered on interoffice transport facilities connecting each 911 selective router to the PSAP serving end office. Some commenters asserted that selective routers represent technology whose time has passed. NENA contends that deployment of a dual selective router at this point should be done only if particular circumstances strongly favor such an approach.

74. PSHSB should neither encourage nor mandate implementation of this NRIC best practice. We agree with the many commenters who advocated that public safety communications planning, including the 911 infrastructure, instead should move to incorporate IP-based technologies. This will enable the public safety community to focus on future needs rather than requiring more from legacy systems, offer more redundancy and flexibility, and contribute greatly to improving compatibility between public safety systems that operate using different proprietary standards.

75. Grant Eligibility. We agree with the recommendation of the Katrina Panel that the FCC urge federal grant programs to permit state or local 911 commissions or emergency communications districts that provide 911 or public safety communications services to be eligible to apply for 911 enhancement and communications enhancement/interoperability grants. This recommendation also received strong support from APCO and NENA. We, therefore, direct PSHSB to consult with DHS and administrators of other applicable federal grant programs to explore this possibility. We caution, however, that PSHSB refrain from advocating any particular funding approach for state, tribal or local 911 commissions. Our goal is to support state, tribal and local 911 commissions in their efforts to enhance the redundancy, interoperability, and resiliency of their operations.

76. Secondary Back-Up PSAPS. The Katrina Panel also stated that the Commission should recommend the designation of a secondary back-up PSAP that is more than 200 miles away to answer calls when the primary and secondary PSAPs are disabled. Most commenters, including APCO and NENA, did not support this recommendation. APCO asserts that PSAPs 200 miles away would have difficulties with dispatch and that a better approach would be to have “mirrored” telephone central offices at remote locations. We decline to implement this Katrina Panel recommendation. Use of back-up PSAPs should be based on capabilities, common vulnerabilities and technical capabilities, not an arbitrary distance. Geographic remoteness is only one consideration; other considerations include the probability of disaster affecting both PSAPs, size of the PSAPs, the level of technology used at both PSAPs, radio interoperability, availability of operating support systems, and logistics for transporting and staffing PSAP personnel familiar with the geographic area covered by the disaster.

77. Other Recommendations Regarding First Responder Communications. Various commenters submitted additional recommendations for addressing first responder communications issues. We will address those issues below.

78. Relocation of Existing Licensees on Interoperability Channels. The Tennessee Statewide Interoperability Executive (the Tennessee SIEC) asserts that the Commission should move existing licensees on the VHF and UHF interoperability channels so that such channels are available for interoperability usage and do not have to compete with grandfathered dispatch operations or secondary telemetry, etc. The Tennessee SIEC also suggested that the Commission eliminate licensing of the interoperability channels for any purpose other than interoperability.

79. When the Commission designated the VHF and UHF interoperability channels, it sought to balance the need for improved interoperability capabilities below 512 MHz with the need to minimize the impact on incumbent licensees. The Commission therefore “grandfathered” incumbent licensees on a secondary basis only to interoperability communication rather than ordering them to vacate the channels or use them exclusively for interoperability purposes. With regard to new licenses, the rules provide that these frequencies will be available primarily for interoperability-only communications. We decline to amend our rules at this time to move existing licensees on the VHF and UHF interoperability channels. Instead, we find that a prudent approach would be first to consult with public safety coordinators. Accordingly, we direct PSHSB to consult the public safety frequency coordinator community through the Public Safety Communications Council to determine the extent of the problem, if any, and whether moving grandfathered licensees at this time would be feasible, and if so, how.

80. Use of a Standard Continuous Tone Coded Squelch System. The Tennessee SEIC suggested that the Commission mandate the use of a standard Continuous Tone Coded Squelch System (“CTCSS”) to promote interoperability and minimize disruption at a disaster scene. We decline to initiate a rulemaking to implement Tennessee SEIC's suggestion at this time. The Commission has designated 5 VHF frequencies and 4 UHF channel pairs for interoperability use nationwide. Generally, VHF and UHF analog public safety radios include the CTCSS feature. Each radio “listens” for CTCSS tones transmitted by base stations, mobiles, or portables. If the tone is present, the user hears the communications directed to him/her, but other transmissions on the same frequency using a different CTCSS tone (or lacking a tone) are muted (squelched). Because these frequencies also have grandfathered, non-interoperable licensees, mandated use of a standard CTCSS on these channels would exclude ( i.e. , tune out) these incumbents. Use of different tone coded squelch frequencies on the interoperability channels could prohibit units from different jurisdictions from communicating at the scene of a disaster, which undermines the purpose of interoperability. Mandating a common CTCSS tone could impose unwarranted economic burdens by requiring the purchase of additional equipment or modification of existing equipment to employ such a tone. A mandated, common CTCSS also could adversely impact grandfathered licensees operating on the VHF and UHF interoperability channels.

81. There is not enough information in the record to recommend a rulemaking at this point. However, it would be prudent to consult with the public safety frequency coordinators to ascertain the scope of the problem and determine whether Commission action is warranted. We therefore direct PSHSB to consult with public safety frequency coordinators and ask them to study this proposal and provide further input to the Commission.

82. Statewide Channels. The Tennessee SIEC advocates that, in order to help states keep their statewide channels clear, the Commission should allow state agencies to provide FCC designated frequency coordinators with a list of FCC designated “Statewide” channels for protection within 35 to 50 miles of the state border depending upon terrain protection. We direct PSHSB to consult with public safety coordinators on the problem of keeping statewide channels clear.

83. Licensees Adjacent to Interoperability Channels. The Tennessee SIEC also advocates that the Commission mandate that the wideband licensees adjacent to the VHF/UHF interoperability channels move to narrowband emission to minimize interference to interoperability channels. We note our rules already require that this be done. Accordingly, no further action is necessary at this time.

84. Designation of 155.370 MHz as a Nationwide Inter-agency Channel. The Tennessee SIEC also advocates that the Commission designate 155.370 MHz as a nationwide inter-agency channel and implement a CTCSS tone to minimize interference. We refrain, at this time, from initiating a rulemaking to amend our rules to designate 155.370 MHz as an inter-agency channel nationwide and implement a CTCSS tone to minimize interference. Designating this public safety frequency as an inter-agency channel nationwide may have a significant impact on existing incumbents on this frequency and adjacent channel incumbents. Overcoming interference concerns, particularly since VHF spectrum is traditionally congested, may prove challenging. The potential impact on existing licensees, including increased equipment costs, outweighs any benefits of designating a sixth VHF frequency for interoperability. We also note that the existing nationwide inter-agency channels were recommended by the four public safety coordinators and were adopted by the Commission partly because these were the “least licensed.”

85. Common Nomenclature. The Tennessee Statewide Interoperability Executive and others recommend that the Commission mandate a common nomenclature for the designated interoperability channels and require each state to have a functional Statewide Interoperability Executive Council. These issues were raised in the 7th NPRM in WT Docket No. 96-86 and we will address them in that proceeding.

86. Mutual Aid Channels. The Tennessee SIEC also stated that the Commission should encourage public safety frequency coordinators to keep designated Fire mutual aid channels ( i.e. 154.265, 154.280, 154.295 MHz) and their narrowband counterparts and the National Law Enforcement Channel ( i.e. 155.475 MHz) for mutual aid only. We refrain from concluding that the Commission should encourage public safety frequency coordinators to keep designated mutual aid channels for aid only, until the Commission can engage the public safety frequency coordinator community further on this issue. These frequencies have special limitations that make them available for specified mutual aid purposes, but the Tennessee SIEC suggests that the public safety frequency coordinators currently approve the use of these frequencies for non-mutual aid purposes. In order to evaluate the merits of this proposal, the Commission should consult with the public safety frequency coordinator community through the Public Safety Communications Council. Accordingly, we direct PSHSB to engage in such consultation and provide a recommendation on this issue.

87. 911 Analysis. NENA asserts that the Commission should require all 911 system service providers (SSPs) to analyze and provide detailed information on the redundancy, resiliency, and dependability of 911 networks and to provide detailed information to the Commission on areas where these issues are treated in the network and areas where there are gaps. NENA states that all 9-1-1 SSPs should be required to submit a plan to the Commission outlining this information and steps they intend to take to ensure diversity and dependability in the network, including any plans they have to migrate their network to an IP-based platform that will enable the migration from the existing 911 system to next generation 911 architecture. NENA also argues that these plans should be made available to leading public safety organizations.

88. AT&T asserts that NENA's proposal is misdirected because it is the PSAP, not the service provider, that must determine the best way to mitigate single points of failure within its 911 network in a cost effective manner. Similarly, the United States Telecom Association (US Telecom) argues that ILECs do not own 911 networks, but merely provide inputs for them and should not, therefore, be required to report to the Commission regarding the dependability of these networks. U.S. Telecom argues that ILECs do not need to be burdened with additional reporting requirements and regulatory mandates, but rather need flexibility to create redundancies in their networks not mandates requiring them to do so where it is unnecessary. AT&T also asserts that the NENA fails to explain how the Commission could make use of such detailed information in any manner that does not duplicate how 911 service providers already interact with PSAPs and state regulatory authorities. AT&T and U.S. Telecom assert that requiring the unnecessary further dissemination of this information could have serious adverse consequences for service providers, for whom those proprietary data have substantial competitive value, and for the general public if that information is compromised and comes into possession of persons and groups with criminal intentions.

89. We agree that the Commission should require the analysis of 911 and E911 networks and the submission of reports regarding the status of these networks. Although NENA's proposal appears to be limited to 911 SSPs, which are typically incumbent local exchange carriers (ILECs), we believe that, with the exceptions described below, this requirement should apply all LECs, including ILECs and CLECs, CMRS providers required to comply with the wireless 911 rules and interconnected Voice over Internet Protocol (VoIP) service providers. It is critical that Americans have access to a resilient and reliable 911 system irrespective of the technology used to provide the service. Therefore, we will require LECs, including both ILECs and CLECs, CMRS providers required to comply with the wireless 911 rules and interconnected VoIP service providers analyze and provide detailed reports on the redundancy, resiliency, and dependability of their 911 and E911 networks and systems. Where relevant, the reports should include steps the service provider intends to take to ensure diversity and dependability in the network and/or system, including any plans they have to migrate their network to a next generation IP-based E911 platform. This requirement will serve the public interest and further the Commission's statutory mandate to promote the safety of life and property through the use of wire and radio communication.

90. We are mindful that this requirement may cause a financial burden to certain small carriers. Accordingly, we will not impose this reporting requirement on LECs, including ILECs and CLECs, that meet the definition of a Class B company set forth in Section 32.11(b)(2) of the Commission's rules. We will also not impose this reporting requirement on Tier III CMRS carriers. Interconnected VoIP service providers will be exempt from this requirement if their annual revenues fall below the revenue threshold established pursuant to Section 32.11 of the Commission's rules. NENA recommends that these reports be shared with “leading public safety organizations.” Although we believe there is some benefit to sharing these reports with certain public safety organizations, we also understand that these reports will likely contain competitive and other information that should be accorded confidential treatment under our rules. To balance these concerns, we will share these reports with NENA, APCO, and The National Association of State 9-1-1 Administrators, the public safety organizations that previously have been provided copies of 911-related reports, but only pursuant to a protective order consistent with the model protective order previously adopted by the Commission. We delegate authority to PSHSB to issue such protective orders.

91. AT&T and U.S. Telecom argue that this should not be the duty of SSPs which are typically ILECs, suggesting that PSAPs are better situated to perform such an analysis. PSAPs know whether they have alternative facilities into their buildings and whether they have backup/alternative PSAP sites. However, carriers, not PSAPs, know about the selective routers, the routing between selective routers and the central offices from which customers may call, and the diversity in the interoffice facilities between the selective router and the central office serving the PSAP. PSAPs should know whether they ordered facility diversity, but they do not have insight regarding how, or even if, this was provisioned. U.S. Telecom also argued that ILECs should not be subject to mandates requiring them to create redundancies in their networks; however, the rule we adopt requires only an analysis and report, it does not require carriers to create additional network redundancies.

92. Accordingly, pursuant to our authority under Section 403 of the Communications Act, as amended, we will require LECs, CMRS providers required to comply with the wireless 911 rules and interconnected VoIP service providers, except those exempted above, to conduct an analysis of the resiliency and reliability of their 911 networks or systems and to submit a report to the Commission. We delegate to PSHSB the authority to implement and activate a process through which these reports will be submitted, including the authority to establish the specific data that will be required from each category of communications provider. We also direct PSHSB to make efforts to ensure that carriers subject to state regulations requiring the reporting of similar information are afforded the opportunity to meet this requirement by submitting the state report. The report will be due 120 days from the date that the Commission or its staff announces activation of the 911 network and system reporting process.

93. We also note that NRIC VII developed best practices that could address this issue. Accordingly, we direct PSHSB to continue to encourage industry to implement NRIC's best practices in this area, to continue to encourage industry to develop best practices in this area specific to their locale, and to continue to work to see that such recommendations, and any resulting adopted best practices, are made available on the Commission's Web site.

94. Two-Way Paging Initiative. Commenters recommended that the Commission permit the use of 900 MHz B/ILT pool of spectrum for two-way paging systems either owned by public safety users or dedicated to the provision of emergency communications. We direct PSHSB, in coordination with WTB, to consider this issue and to determine what action, if any, should be implemented.

95. McVey Petition for Rulemaking. In his comments, W. Lee McVey requests that the Commission initiate a rulemaking to create a new radio service in the 148-150 MHz band “to facilitate interoperability between different first responders during and following a national emergency.” We note that the 148-149.9 band is allocated on a primary basis for federal Fixed, Mobile and Mobile Satellite (Earth-to-Space) service and the 149-150.05 MHz segment is allocated on a co-primary basis for federal and non-federal Mobile Satellite (Earth-to-space) and Radio navigation Satellite Services, and that the petition does not address this use nor does it explain what rules would be necessary to govern access to this spectrum. Given the potential impact of McVey's proposal to spectrum allocated for federal use, we direct PSHSB, together with OET, to seek feedback from NTIA on this petition. Upon receiving such feedback, we direct PSHSB and OET to make a determination on the appropriate action to be taken on this petition.

96. Revitalize and Publicize the Emergency Alert System. The Katrina Panel suggests a number of recommendations to revitalize and publicize the existing Emergency Alert System (“EAS”). To facilitate and complement the use of the existing EAS, the Katrina Panel recommends that the Commission should: (a) Educate state and local officials about EAS, its benefits, and how it can be best utilized; (b) develop a program for educating the public about the EAS and promote community awareness of potential mechanisms for accessing those alerts sent during power outages or broadcast transmission failures; (c) move expeditiously to complete its proceeding to explore the technical and financial viability of expanding the EAS to other technologies, such as wireless services and the Internet, recognizing that changes to communications networks and equipment take time to implement; (d) consistent with proposed legislation, work with Congress and other appropriate federal departments and agencies to explore the technical and financial viability of establishing a comprehensive national warning system that complements existing systems and allows local officials to increase the penetration of warnings to the public as well as target, when necessary, alerts to a particular area; (e) work with the DHS and other appropriate federal agencies on pilot programs that would allow more immediate evaluation and testing of new notification technologies; and (f) work with the Department of Commerce to expand the distribution of certain critical non-weather emergency warnings over National Oceanic and Atmospheric Administration (NOAA) weather radios to supplement the EAS.

97. We agree that we should encourage state, tribal and local governments to use EAS as a mechanism to deliver emergency alerts. Accordingly, we direct PSHSB to engage in outreach efforts to educate state, tribal and local governments about the EAS. In addition, we direct PSHSB to take steps to educate the public about EAS. We also note that PSHSB has coordinated with DHS on EAS issues, including issues related to the development of a state-of-the-art public alert and warning system. We direct PSHSB to continue those efforts.

98. Finally, on the issue of expanding the scope of EAS to include new technologies, as the Katrina Panel acknowledges, this issue is already the subject of our ongoing EAS rulemaking proceeding. In addition, pursuant to the recently enacted WARN Act, the Commission established an advisory committee—the Commercial Mobile Service Alert Advisory Committee—to develop and recommend technical standards and protocols by which commercial mobile service (CMS) providers may voluntarily transmit emergency alerts. The Committee has a diverse membership, including over forty representatives from the wireless and broadcast industries, public safety, equipment manufacturers, organizations representing people with disabilities and the elderly, FEMA and NOAA. Thus far, the Committee has held three full Committee meetings and a number of informal working group meetings. The Commission expects that the Committee will meet its statutory deadline of submitting recommendations to the Commission by October 12, 2007.

99. Ensuring that People with Disabilities and Non-English Speaking Persons Receive Alerts . The Katrina Panel recommended that the Commission promptly find a mechanism to resolve technical and financial hurdles in the EAS system to ensure that non-English speaking people or people with disabilities have access to public warnings, if readily achievable. The Panel also recommended that the Commission work with trade associations and the disability community to create and publicize best practices for serving persons with disabilities and non-English-speaking Americans and encourage state and local government agencies that provide emergency information to take steps to make this information accessible to persons with disabilities and non-English speaking Americans.

100. We note that the issue of making EAS alerts accessible to people with disabilities and to those who do not speak English is already the subject of the EAS rulemaking proceeding. Moreover, the Commercial Mobile Service Alert Advisory Committee will consider these issues in the context of wireless carriers' participation in emergency alerts. On the broader issue of ensuring that emergency information reaches people with disabilities and non-English speaking Americans, we direct PSHSB, along with Consumer & Government Affairs Bureau (CGB) as appropriate, to work with the industry, state, tribal and local governments and organizations representing people with disability and non-English speaking persons on these issues.

101. Ensuring Consistent and Reliable Emergency Information Through a Consolidated and Coordinated Public Information Program. The Katrina Panel recommended that public information functions should be coordinated and integrated across jurisdictions and across functional agencies, among federal state, local and tribal partners, and with private sector and non-governmental organizations. The Panel recommended that the Commission work with involved parties to facilitate the integration of media representatives into the development of disaster communications plans (Emergency Support Function #2). The Panel also urged the designation of a public information officer at each Emergency Operations Center to handle media and public inquiries, emergency public information and warning, and other functions. The Panel advocates the formation of a Joint Information Center (“JIC”) during large scale disasters. The JIC would collocate representatives from federal, regional, state, local and/or tribal EOCs responsible for primary incident coordination responsibilities. The JIC would provide a mechanism to integrate public information activities from various jurisdictions and organizations and would include media operations.

102. We believe this issue is thoroughly addressed by the National Response Plan under Emergency Support Function #15—External Affairs and the Public Affairs Support Annex. ESF #15 ensures that sufficient federal assets are deployed to the field during a potential or actual Incident of National Significance to provide accurate, coordinated, and timely information to government, media, the private section and the local populace. This provides the resource support and mechanisms to implement the NRP Incident Communications Emergency Policy and Procedures described in the NRP Public Affairs Support Annex. The NRP Public Support Annex describes the interagency policies and procedures used to rapidly mobilize federal assets to prepare and deliver coordinated and sustained messages to the public in response to Incidents of National significance and other major domestic emergencies. In addition, the NRP Public Affairs Support Annex specifically addresses the formation of JICs.

103. The Katrina Panel recommended that the Commission should work with federal, state, and local agencies to ensure consistent and reliable emergency information through a consolidated and coordinated public information program. We note that state, tribal and local officials play a key role in forming messages as they are sent to the public. Nonetheless, we direct PSHSB to continue to work with DHS and state, tribal and local governments on the consolidation and coordination of public information as part of its supporting role under the NRP's ESF #15 and the Public Affairs Annex.

104. Amateur Initiatives. Several amateur radio operators recommended changes to part 97 of the Commission's rules which govern amateur radio. Many of the changes have already been implemented and thus require no further action. For example, the Commission recently eliminated Morse Code proficiency as a license qualification requirement, an action supported by several commenters in this proceeding. The Commission also previously decided to phase out RACES station licenses, making proposed changes to rules relevant to these licenses moot. Finally, the Commission previously clarified that part 97 does not prohibit amateur radio operators who are emergency personnel engaged in disaster relief from using their amateur radio bands while in a paid duty status. We also note that several recommendations made by amateur radio operators remain pending before the Commission and, accordingly, we take no action on those in this proceeding. We do note that the amateur radio community played an important role in the aftermath of Hurricane Katrina and other disasters. Accordingly, we order PSHSB to include the amateur radio community in its outreach efforts.

105. Low Power Broadcast Service Initiatives. Prometheus Radio Project and Amherst Alliance submitted a number of recommendations regarding the Low Power FM service as well as other low power broadcast services. Specifically, these commenters recommended that the Commission: (i) Remind Congress that it has previously recommended that the statutory restrictions on adjacent channel spacing of Low Power FM stations should be repealed; (ii) open a filing window for 10 watt LPFM license applications; (iii) establish 250 watt LPFM stations; and (iv) establish Low Power AM stations; and (v) resolve the LPFM rulemaking proceeding. We will refer these issues to the Media Bureau for handling as appropriate.

106. Modification of “Substantial Service” Policies for NPCS Channels. The American Association of Paging Carriers (AAPC) asserts that the Commission should “modify its ‘substantial service’ policies governing part 24 NPCS channels so that licensees leasing, disaggregating or partitioning NPCS spectrum for use by two-way paging systems for emergency communications, including leasing, disaggregating or partitioning spectrum for ‘back haul’ channels that can be paired with traditional 929/931 MHz paging channels, also will be deemed to be providing ‘substantial service’ on the spectrum retained by the NPCS licensee.” Because this issue relates to general construction policy, we will refer this issue to the Wireless Telecommunications Bureau for appropriate handling.

107. Designation of 700 MHz Spectrum for Critical Infrastructure. Some commenters recommend that the Commission designate a portion of the 700 MHz band for use by critical infrastructure industry use. We will address this issue in the context of our 700 MHz proceedings.

108. CALEA Exemption for Temporary Ad Hoc Networks. Champaign Urbana Wireless Network et al. asks that the Commission clarify that volunteers who build ad hoc networks in response to an emergency need not comply with CALEA. They state that, in response to Hurricane Katrina, volunteers created numerous wireless networks to provide needed Internet connectivity for Red Cross shelters and others in areas where Katrina destroyed or substantially degraded existing infrastructure. On completing construction of these ad hoc networks, the volunteers turned these networks over to local operators and move on to help others.

109. Champaign Urbana et al states that many of these ad hoc networks remained in operation for months and may still remain in operation today. They state that volunteers who generally did not maintain contact or provide any services for these networks once they turn them over to local operators. They state that these volunteers are not telecommunications carriers to whom CALEA generally applies and that these volunteers do not provide these services for hire. In addition, they state that these volunteers do not fall under the “substantial replacement provision” of the Act.

110. They request that the Commission establish a blanket waiver for ad hoc wireless networks created in response to a state of emergency; and that any liability that might arise for failure to comply with CALEA if the networks remain in operation after the emergency would not lie with those who created the network so long as they turned control over the network to others. To the extent the Commission determines that these volunteers are subject to CALEA, Champaign Urbana et al requests that the Commission provide a general waiver pursuant to its authority to exempt any “class or category of telecommunications carrier.”

111. We do not have sufficient information in the record to justify grant of a blanket waiver as Champaign Urbana suggests. First it is not clear whether Champaign Urbana's request is for a blanket waiver of ad hoc temporary networks in all cases of emergencies, including those involving terrorist attacks. If so, such a waiver could actually impede law enforcement and thus hinder the purposes of CALEA. Moreover, we note that CALEA exemptions may only be granted after formal consultation with the U.S. Attorney General and that the Federal Bureau of Investigation (which formally has been designated by the Attorney General to handle CALEA obligations) has previously opposed granting blanket CALEA exemptions. For these reasons, we decline to issue a blanket waiver for these types of networks. Rather, we think the appropriate approach would be to review requests for exemptions of these types of networks (and the volunteers who construct them) on a case-by-case basis.

112. Closed Captioning and Telecommunications Relay Service Issues. Telecommunications for the Deaf and Hard of Hearing (TDI) recommends that: (i) Broadcasters establish contracts or cooperative agreements among captioning providers to ensure that broadcasts can be captioned in the event of emergencies regardless of the emergency's location; (ii) captioning services personnel should be designated as essential personnel; (iii) the Commission require all Telecommunications Relay Service (“TRS”) providers to have back-up power ready to operate for a minimum of 72 hours; (iv) the Commission should require that all TRS providers have contingency plans for transfer of calls from TRS centers that may be unable to operate due to catastrophic damage or overwhelming volume of calls from other centers; and (v) all TRS personnel should be deemed essential personnel during emergencies.

113. We direct CGB to consider these issues in an appropriate proceeding. In this regard, we note that, on December 29, 2006, the Commission released a Public Notice that provides steps that video programming distributors may take to obtain closed captioning services quickly in the event of an emergency. With respect to TDI items (2) and (5), we note that the FCC has no jurisdiction over who is declared an “essential service provider,” nonetheless we will direct PSHSB to work with DHS on this issue.

114. The American Association of People with Disabilities (AAPD) suggests that the Commission consider encouraging IP Relay and Video Relay Service (VRS) providers to develop solutions for handling emergency calls through TRS. This issue was raised in the November 30, 2005 VRS 9-1-1 NPRM, has been the subject of an E9-1-1 Disability Access Summit held at the Commission on November 15, 2006, and is pending before the Commission. CGB's Disability Rights Office and PSHSB will continue to work with the disability community and Internet-based TRS providers on these issues.

115. This document contains new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public, the Office of Management and Budget and other Federal agencies to comment on the information collection requirements contained in this Order, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due September 10, 2007. 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 previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” In this present document, we have assessed the effects of requiring the analysis of 911 and E911 networks and the submission of a report on the resiliency and reliability of those networks, by LECs, CMRS providers required to comply with the wireless 911 rules, and interconnected VoIP service providers. We have specifically exempt LECs that meet the definition of a Class B company set forth in Section 32.11(b)(2) of our rules, Tier III CMRS carriers, and interconnected VoIP service providers with annual revenues below the revenue threshold established pursuant to Section 32.11 of our rules from these requirements. We find that this imposes minimal regulation on small entities to the extent consistent with our goal of advancing our public safety mission.

116. The Commission will send a copy of this Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

117. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking in EB Docket No. 06-119. The Commission sought written public comment on the proposals in this docket, including comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

118. In the Order, we adopt a rule that requires local exchange carriers (LECs), other than those that meet the definition of a Class B company as set forth in Section 32.11(b)(2) of the Commission's rules, and commercial mobile radio service (CMRS) providers, other than non-nationwide CMRS providers with no more than 500,000 subscribers, to have an emergency backup power source for all assets that are normally powered from local AC commercial power, including those inside central offices, cell sites, remote switches and digital loop carrier system remote terminals. We also adopt a rule that requires the analysis of 911 and E911 networks and systems and detailed reporting to the Commission of the redundancy, resiliency and reliability of those networks and systems by: (1) LECs, including incumbent LECs (ILECs) and competitive LECs (CLECs); (2) commercial wirelesss service providers required to comply with the wireless 911 rules set forth in Section 20.18 of the Commission's rules; and (3) interconnected Voice over Internet Protocol (VoIP) service providers. LECs that meet the definition of a Class B company set forth in Section 32.11(b)(2) of the Commission's rules, non-nationwide commercial mobile radio service providers with no more than 500,000 subscribers at the end of 2001, and interconnected VoIP service providers with annual revenues below the revenue threshold established pursuant to Section 32.11 of the Commission's rules are exempt from this rule.

119. These rules, which are part of a broader initiative taken with this Order to implement several of the recommendations made by the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks (Katrina Panel), will promote communications readiness and preparedness for future natural disasters and other emergencies. The measures taken today will also facilitate more effective and efficient recovery efforts in the wake of such events. These actions will advance efforts to save lives and protect property in the event of a natural disaster or other emergency.

120. No comments specifically addressed the IRFA.

121. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the rules adopted herein. The RFA generally 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).

122. Nationwide, there are a total of approximately 22.4 million small businesses, according to SBA data. A “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2002, there were approximately 1.6 million small organizations. The term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2002 indicate that there were 87,525 local governmental jurisdictions in the United States. We estimate that, of this total, 84,377 entities were “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.

123. In the following paragraphs, the Commission further describes and estimates the number of small entity licensees that may be affected by the rules the Commission adopts in this Order. The rule changes affect LECs, including both incumbent LECs (ILECS) and competitive LECs (CLECs), CMRS providers, and interconnected VoIP service providers.

124. Since the Order applies to multiple services, this FRFA analyzes the number of small entities affected on a service-by-service basis. In the case of CMRS providers, when identifying small entities that could be affected by the Commission's new rules, this FRFA provides information that describes auctions results, including the number of small entities that were winning bidders. However, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily reflect the total number of small entities currently in a particular service. The Commission does not generally require that licensees later provide business size information, except in the context of an assignment or a transfer of control application that involves unjust enrichment issues.

125. Cellular Licensees. The SBA has developed a small business size standard for small businesses in the category “Cellular and Other Wireless Telecommunications.” Under that SBA category, a business is small if it has 1,500 or fewer employees. For the census category of “Cellular and Other Wireless Telecommunications,” Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this category and size standard, the majority of firms can be considered small.

126. Broadband Personal Communications Service. The broadband Personal Communications Service (PCS) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission has created a small business size standard for Blocks C and F as an entity that has average gross revenues of less than $40 million in the three previous calendar years. For Block F, an additional small business size standard for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These small business size standards, in the context of broadband PCS auctions, have been approved by the SBA. No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the C Block auctions. A total of 93 “small” and “very small” business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. On March 23, 1999, the Commission reauctioned 155 C, D, E, and F Block licenses; there were 113 small business winning bidders. On January 26, 2001, the Commission completed the auction of 422 C and F PCS licenses in Auction 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. Subsequent events concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant.

127. Specialized Mobile Radio. The Commission awards “small entity” bidding credits in auctions for Specialized Mobile Radio (SMR) geographic area licenses in the 800 MHz and 900 MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendar years. The Commission awards “very small entity” bidding credits to firms that had revenues of no more than $3 million in each of the three previous calendar years. The SBA has approved these small business size standards for the 900 MHz Service. The Commission has held auctions for geographic area licenses in the 800 MHz and 900 MHz bands. The 900 MHz SMR auction began on December 5, 1995, and closed on April 15, 1996. Sixty bidders claiming that they qualified as small businesses under the $15 million size standard won 263 geographic area licenses in the 900 MHz SMR band. The 800 MHz SMR auction for the upper 200 channels began on October 28, 1997, and was completed on December 8, 1997. Ten bidders claiming that they qualified as small businesses under the $15 million size standard won 38 geographic area licenses for the upper 200 channels in the 800 MHz SMR band. A second auction for the 800 MHz band was held on January 10, 2002 and closed on January 17, 2002 and included 23 BEA licenses. One bidder claiming small business status won five licenses.

128. The auction of the 1,050 800 MHz SMR geographic area licenses for the General Category channels began on August 16, 2000, and was completed on September 1, 2000. Eleven bidders won 108 geographic area licenses for the General Category channels in the 800 MHz SMR band qualified as small businesses under the $15 million size standard. In an auction completed on December 5, 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service were sold. Of the 22 winning bidders, 19 claimed “small business” status and won 129 licenses. Thus, combining all three auctions, 40 winning bidders for geographic licenses in the 800 MHz SMR band claimed status as small business.

129. In addition, there are numerous incumbent site-by-site SMR licensees and licensees with extended implementation authorizations in the 800 and 900 MHz bands. The Commission does not know how many firms provide 800 MHz or 900 MHz geographic area SMR pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $3 million or $15 million (the special small business size standards), or have no more than 1,500 employees (the generic SBA standard for wireless entities, discussed, supra). One firm has over $15 million in revenues. The Commission assumes, for purposes of this analysis, that all of the remaining existing extended implementation authorizations are held by small entities.

130. Advanced Wireless Services. In the AWS-1 Report and Order, the Commission adopted rules that affect applicants who wish to provide service in the 1710-1755 MHz and 2110-2155 MHz bands. The AWS-1 Report and Order defines a “small business” as an entity with average annual gross revenues for the preceding three years not exceeding $40 million, and a “very small business” as an entity with average annual gross revenues for the preceding three years not exceeding $15 million. The AWS-1 Report and Order also provides small businesses with a bidding credit of 15 percent and very small businesses with a bidding credit of 25 percent.

131. Incumbent Local Exchange Carriers (Incumbent LECs). As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g. , a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts. Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,303 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,303 carriers, an estimated 1,020 have 1,500 or fewer employees and 283 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by our proposed rules.

132. Competitive Local Exchange Carriers (Competitive LECs), Competitive Access Providers (CAPs), “Shared-Tenant Service Providers,” and “Other Local Service Providers.” Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 769 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 769 carriers, an estimated 676 have 1,500 or fewer employees and 93 have more than 1,500 employees. In addition, 12 carriers have reported that they are “Shared-Tenant Service Providers,” and all 12 are estimated to have 1,500 or fewer employees. In addition, 39 carriers have reported that they are “Other Local Service Providers.” Of the 39, an estimated 38 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities that may be affected by our proposed rules.

133. 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.

134. 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.

135. 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.

136. Internet Service Providers. The SBA has developed a small business size standard for Internet Service Providers (ISPs). ISPs “provide clients access to the Internet and generally provide related services such as web hosting, web page designing, and hardware or software consulting related to Internet connectivity.” Under the SBA size standard, such a business is small if it has average annual receipts of $23 million or less. According to Census Bureau data for 2002, there were 2,529 firms in this category that operated for the entire year. Of these, 2,437 firms had annual receipts of under $10 million, and an additional 47 firms had receipts of between $10 million and $24,999,999. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action.

137. Web Search Portals. Our action pertains to interconnected VoIP services, which could be provided by entities that provide other services such as e-mail, online gaming, web browsing, video conferencing, instant messaging, and other, similar IP-enabled services. The Commission has not adopted a size standard for entities that create or provide these types of services or applications. However, the Census Bureau has identified firms that “operate web sites that use a search engine to generate and maintain extensive databases of Internet addresses and content in an easily searchable format. Web search portals often provide additional Internet services, such as e-mail, connections to other web sites, auctions, news, and other limited content, and serve as a home base for Internet users.” The SBA has developed a small business size standard for this category; that size standard is $6.5 million or less in average annual receipts. According to Census Bureau data for 2002, there were 342 firms in this category that operated for the entire year. Of these, 303 had annual receipts of under $5 million, and an additional 15 firms had receipts of between $5 million and $9,999,999. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action.

138. 911 System Information Collection. The rules adopted in this Order require certain specified communications providers to analyze their 911 and E911 networks and systems and provide one-time detailed reports to the Commission regarding the redundancy, resiliency and reliability of those networks and systems. The communications providers subject to this rule are: (1) LECs, including ILECs and CLECs; (2) commercial wirelesss service providers required to comply with the wireless 911 rules set forth in Section 20.18 of the Commission's rules; and (3) interconnected Voice over Internet Protocol (VoIP) service providers. The Commission has delegated to the Chief, Public Safety and Homeland Security Bureau, the authority to implement and activate a process through which these reports will be submitted, including the authority to establish the specific data that will be required.

139. The reports required by this Order will be filed one time only and are due 120 days from the date that the Commission or its staff announces activation of the 911 network and system reporting process. Since most companies can be expected to have knowledge of their network and/or system architecture, we estimate that for the great majority of entities the total time required to complete a filing with the Commission will be approximately eight to 24 hours, depending on the size and type of entity. In making our time estimate, we have taken into account that this report must be filed only once and that the report will likely be made electronically, through a “fill in the blank” template, thereby minimizing the burden on all reporting entities. Finally, in order to avoid imposing financial burden on small carriers, the Commission exempt the following from this rule: (1) LECs that meet the definition of a Class B company set forth in Section 32.11(b)(2) of the Commission's rules; (2) non-nationwide commercial mobile radio service providers with no more than 500,000 subscribers at the end of 2001; and (3) interconnected VoIP service providers with annual revenues below the revenue threshold established pursuant to Section 32.11 of the Commission's rules.

140. Back-Up Power Supply. The Order also adopts a rule that requires LECs and CMRS providers to have an emergency back-up power source for all assets that are normally powered from local AC commercial power, including those inside central offices, cell sites, remote switches and digital loop carrier system remote terminals. The rule adopted provides that LECs and CMRS providers should maintain emergency back-up power for a minimum of 24 hours for assets inside central offices and eight hours for cell sites, remote switches and digital loop carrier system remote terminals that normally are powered from local AC commercial power. Our expectation is that this requirement will not create an undue burden since several communications providers reported in their comments that they already maintain emergency back-up power. Additionally, LECs that meet the definition of a Class B company as set forth in Section 32.11(b)(2) of the Commission's rules and non-nationwide CMRS providers with no more than 500,000 subscribers are exempt from this rule.

141. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (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.

142. 911 System Information Collection. In order to minimize any adverse impact of the 911 system information collection on small entities, we have exempted LECs (both ILECs and CLECs) that meet the definition of a Class B company that is set forth in Section 32.11(b)(2) of the Commission's rules. We will also not impose this reporting requirement on Tier III CMRS carriers. Finally, interconnected VoIP service providers will be exempt from this requirement if their annual revenues fall below the revenue threshold established pursuant to Section 32.11 of the Commission's rules.

143. Back-Up Power Supply. We recognize that the provision of a backup power supply as directed by the rule adopted in this Order may be a significant financial hardship for certain small businesses. Accordingly, we will not impose this requirement on LECs (both ILECs and CLECs) that meet the definition of a Class B company as set forth in Section 32.11(b)(2) of the Commission's rules. We will also not apply this requirement to non-nationwide CMRS providers with no more than 500,000 subscribers.

144. Report to Congress: The Commission will send a copy of the Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of this present summarized Order and FRFA is also hereby published in the Federal Register .

145. Accordingly, it is ordered, pursuant to Sections 1, 4(i)-(k), 4(o), 5(c), 201, 214(a), 218, 219, 271, 272, 301, 303(g), 303(j), 303(r), 332, 403, 621(b)(3), and 621(d) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i)-(k), 154(o), 155(c), 201, 214(a), 218, 219, 271, 272, 301, 303(g), 303(j), 303(r), 332, 403, 541(b)(3), and 541(d), that the Order in EB Docket No. 06-119 and WC Docket No. 06-63 is adopted and that the Commission's Rules are amended as set forth in the rule changes. The rules adopted in this Order shall become effective August 10, 2007, except that the new information collection requirement will not become effective prior to OMB approval. The reports on the redundancy, resiliency and reliability of 911 and E911 networks are due 120 days from the date that the Commission or its staff announces activation of the OMB-approved reporting process.

146. It is further ordered that the Commission's Public Safety and Homeland Security Bureau, Consumer and Governmental Affairs Bureau and Office of Engineering and Technology take action as directed in this Order. The Commission's Public Safety and Homeland Security Bureau shall report to the Commission on its efforts three months from the date of release of this Order and nine months from the date of release of this Order.

147. It is further ordered that the Special Temporary Authority and waiver of Section 272 of the Act and its implementing rules to allow AT&T, Verizon and Qwest to share non-public, Bell Operating Company (BOC) network information with their Section 272 and other affiliates, as necessary to engage in integrated disaster recovery planning, is extended to a one year period ending April 20, 2008 for AT&T and to June 9, 2008 for Verizon and Qwest, effective on the date of release of this Order.

This is a synopsis of the consolidated Report and Order in MB Docket No. 05-112 and MB Docket No. 05-151, adopted June 13, 2007, and released June 15, 2007. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals ll, CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copying and Printing, Inc. 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com. The Commission will send a copy of this Report and Order in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

This is a synopsis of the Commission's Report and Order, MB Docket No. 05-131, adopted June 13, 2007, and released June 15, 2007. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com.

Under the Commission's FM Allotment Priorities, a first local service at Cottonwood is preferred over a tenth aural service at Redding or a third local service at Shasta Lake because it triggers higher allotment Priority (3). The staff then considers whether to allot Channel 221A or higher class Channel 221C3 at Cottonwood. The staff decides that the public interest would be better served by allotting lower class Channel 221A at Cottonwood because this allotment will make possible the allotment of Channel 224A at Shasta Lake. See 70 F.R. 19399 (April 13, 2005).

The reference coordinates for Channel 221A at Cottonwood, CA, are 40-23-45 NL and 122-17-22 WL and for Channel 224A at Shasta Lake, CA, are 40-38-51 and 122-27-19. See 70 F.R. 17384, April 6, 2005.

Finally, the staff makes an editorial correction to 47 C.F.R. Section 73.202(b) to change the name of Shasta Lake City to Shasta Lake to reflect the correct name of the community.

The Commission will send a copy of the Report and Order in this proceeding in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

Several of the background documents for the ALWTRP and the take reduction planning process can be downloaded from the ALWTRP web site at http://www.nero.noaa.gov/whaletrp/ .

The ALWTRP was developed pursuant to section 118 of the Marine Mammal Protection Act (MMPA) to reduce the incidental mortality and serious injury of three endangered species of whales (right, fin, and humpback) due to incidental interaction with commercial fishing activities. In addition, the measures identified in the ALWTRP would provide conservation benefits to a fourth species (minke), which are neither listed as endangered nor threatened under the Endangered Species Act (ESA). The ALWTRP, implemented through regulations codified at 50 CFR 229.32, relies on a combination of fishing gear modifications and time/area closures to reduce the risk of whales becoming entangled in commercial fishing gear (and potentially suffering serious injury or mortality as a result).

On January 9, 2002, NMFS published the final rule to implement the ALWTRP's DAM program (67 FR 1133). On August 26, 2003, NMFS amended the regulations by publishing a final rule, which specifically identified gear modifications that may be allowed in a DAM zone (68 FR 51195). The DAM program provides specific authority for NMFS to restrict temporarily on an expedited basis the use of lobster trap/pot and anchored gillnet fishing gear in areas north of 40° N. lat. to protect right whales. Under the DAM program, NMFS may: (1) require the removal of all lobster trap/pot and anchored gillnet fishing gear for a 15-day period; (2) allow lobster trap/pot and anchored gillnet fishing within a DAM zone with gear modifications determined by NMFS to sufficiently reduce the risk of entanglement; and/or (3) issue an alert to fishermen requesting the voluntary removal of all lobster trap/pot and anchored gillnet gear for a 15-day period and asking fishermen not to set any additional gear in the DAM zone during the 15-day period.

A DAM zone is triggered when NMFS receives a reliable report from a qualified individual of three or more right whales sighted within an area (75 nm 2 (139 km 2 )) such that right whale density is equal to or greater than 0.04 right whales per nm 2 (1.85 km 2 ). A qualified individual is an individual ascertained by NMFS to be reasonably able, through training or experience, to identify a right whale. Such individuals include, but are not limited to, NMFS staff, U.S. Coast Guard and Navy personnel trained in whale identification, scientific research survey personnel, whale watch operators and naturalists, and mariners trained in whale species identification through disentanglement training or some other training program deemed adequate by NMFS. A reliable report would be a credible right whale sighting.

On June 30, 2007, an aerial survey reported three aggregations of right whales, totaling twenty-nine individuals: twenty-one whales in the proximity of 41° 13′ N latitude and 69° 05' W longitude, four whales in the proximity of 41° 21′ N latitude and 68° 49′ W longitude, and four whales in the proximity of 41° 54′ N latitude and 68° 25' W longitude. These positions lie east of Chatham, MA. After conducting an investigation, NMFS ascertained that the report came from a qualified individual and determined that the report was reliable. Thus, NMFS has received a reliable report from a qualified individual of the requisite right whale density to trigger the DAM provisions of the ALWTRP.

Once a DAM zone is triggered, NMFS determines whether to impose restrictions on fishing and/or fishing gear in the zone. This determination is based on the following factors, including but not limited to: the location of the DAM zone with respect to other fishery closure areas, weather conditions as they relate to the safety of human life at sea, the type and amount of gear already present in the area, and a review of recent right whale entanglement and mortality data.

NMFS has reviewed the factors and management options noted above relative to the DAM under consideration. As a result of this review, NMFS prohibits lobster trap/pot and anchored gillnet gear in this area during the 15-day restricted period unless it is modified in the manner described in this temporary rule.

The DAM Zone is bound by the following coordinates:

42° 10′ N., 68° 31′ W (NW Corner).

41° 45′ N., 68° 17′ W.

41° 45′ N., 68° 00′ W.

41° 34′ N., 68° 00′ W.

41° 34′ N., 68° 23′ W.

41° 02′ N., 68° 23′ W.

41° 02′ N., 68° 34′ W.

40° 50′ N., 68° 34′ W.

40° 50′ N., 69° 36′ W.

41° 37′ N., 69° 36′ W.

41° 37′ N., 69° 16′ W.

41° 40′ N., 69° 16′ W.

41° 40′ N., 68° 51′ W.

42° 02′ N., 68° 51′ W.

42° 10′ N., 68° 31′ W (NW Corner)

In addition to those gear modifications currently implemented under the ALWTRP at 50 CFR 229.32, the following gear modifications are required in the DAM zone. If the requirements and exceptions for gear modification in the DAM zone, as described below, differ from other ALWTRP requirements for any overlapping areas and times, then the more restrictive requirements will apply in the DAM zone. Special note for gillnet fisherman: A portion of this DAM zone overlaps the year-round Closure Area I for Northeast Multispecies found at 50 CFR 648.81(a). Due to this closure, sink gillnet gear is prohibited from this portion of the DAM zone.

Lobster Trap/pot Gear

Fishermen utilizing lobster trap/pot gear within the portion of the Northern Nearshore Lobster Waters that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect:

1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;

2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;

3. Fishermen are allowed to use two buoy lines per trawl; and

4. A weak link with a maximum breaking strength of 600 lb (272.4 kg) must be placed at all buoys.

Fishermen utilizing lobster trap/pot gear within the portion of the Offshore Lobster Waters Area and Great South Channel Restricted Lobster Area that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect:

1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;

2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;

3. Fishermen are allowed to use two buoy lines per trawl; and

4. A weak link with a maximum breaking strength of 1,500 lb (680.4 kg) must be placed at all buoys.

Fishermen utilizing anchored gillnet gear within the portions of the Other Northeast Gillnet Waters Area, Great South Channel Restricted Gillnet Area, and Great South Channel Sliver Restricted Area that overlap with the DAM zone are required to utilize all the following gear modifications while the DAM zone is in effect:

1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;

2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;

3. Fishermen are allowed to use two buoy lines per string;

4. Each net panel must have a total of five weak links with a maximum breaking strength of 1,100 lb (498.8 kg). Net panels are typically 50 fathoms (91.4 m) in length, but the weak link requirements would apply to all variations in panel size. These weak links must include three floatline weak links. The placement of the weak links on the floatline must be: one at the center of the net panel and one each as close as possible to each of the bridle ends of the net panel. The remaining two weak links must be placed in the center of each of the up and down lines at the panel ends;

5. A weak link with a maximum breaking strength of 1,100 lb (498.8 kg) must be placed at all buoys; and

6. All anchored gillnets, regardless of the number of net panels, must be securely anchored with the holding power of at least a 22 lb (10.0 kg) Danforth-style anchor at each end of the net string.

The restrictions will be in effect beginning at 0001 hours July 13, 2007, through 2400 hours July 27, 2007, unless terminated sooner or extended by NMFS through another notification in the Federal Register .

The restrictions will be announced to state officials, fishermen, ALWTRT members, and other interested parties through e-mail, phone contact, NOAA website, and other appropriate media immediately upon issuance of the rule by the AA.

In accordance with section 118(f)(9) of the MMPA, the Assistant Administrator (AA) for Fisheries has determined that this action is necessary to implement a take reduction plan to protect North Atlantic right whales.

Environmental Assessments for the DAM program were prepared on December 28, 2001, and August 6, 2003. This action falls within the scope of the analyses of these EAs, which are available from the agency upon request.

NMFS provided prior notice and an opportunity for public comment on the regulations establishing the criteria and procedures for implementing a DAM zone. Providing prior notice and opportunity for comment on this action, pursuant to those regulations, would be impracticable because it would prevent NMFS from executing its functions to protect and reduce serious injury and mortality of endangered right whales. The regulations establishing the DAM program are designed to enable the agency to help protect unexpected concentrations of right whales. In order to meet the goals of the DAM program, the agency needs to be able to create a DAM zone and implement restrictions on fishing gear as soon as possible once the criteria are triggered and NMFS determines that a DAM restricted zone is appropriate. If NMFS were to provide prior notice and an opportunity for public comment upon the creation of a DAM restricted zone, the aggregated right whales would be vulnerable to entanglement which could result in serious injury and mortality. Additionally, the right whales would most likely move on to another location before NMFS could implement the restrictions designed to protect them, thereby rendering the action obsolete. Therefore, pursuant to 5 U.S.C. 553(b)(B), the AA finds that good cause exists to waive prior notice and an opportunity to comment on this action to implement a DAM restricted zone to reduce the risk of entanglement of endangered right whales in commercial lobster trap/pot and anchored gillnet gear as such procedures would be impracticable.

For the same reasons, the AA finds that, under 5 U.S.C. 553(d)(3), good cause exists to waive the 30-day delay in effective date. If NMFS were to delay for 30 days the effective date of this action, the aggregated right whales would be vulnerable to entanglement, which could cause serious injury and mortality. Additionally, right whales would likely move to another location between the time NMFS approved the action creating the DAM restricted zone and the time it went into effect, thereby rendering the action obsolete and ineffective. Nevertheless, NMFS recognizes the need for fishermen to have time to either modify or remove (if not in compliance with the required restrictions) their gear from a DAM zone once one is approved. Thus, NMFS makes this action effective 2 days after the date of publication of this document in the Federal Register . NMFS will also endeavor to provide notice of this action to fishermen through other means upon issuance of the rule by the AA, thereby providing approximately 3 additional days of notice while the Office of the Federal Register processes the document for publication.

NMFS determined that the regulations establishing the DAM program and actions such as this one taken pursuant to those regulations are consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of the U.S. Atlantic coastal states. This determination was submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act. Following state review of the regulations creating the DAM program, no state disagreed with NMFS' conclusion that the DAM program is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program for that state.

The DAM program under which NMFS is taking this action contains policies with federalism implications warranting preparation of a federalism assessment under Executive Order 13132. Accordingly, in October 2001 and March 2003, the Assistant Secretary for Intergovernmental and Legislative Affairs, Department of Commerce, provided notice of the DAM program and its amendments to the appropriate elected officials in states to be affected by actions taken pursuant to the DAM program. Federalism issues raised by state officials were addressed in the final rules implementing the DAM program. A copy of the federalism Summary Impact Statement for the final rules is available upon request ( ADDRESSES ).

The rule implementing the DAM program has been determined to be not significant under Executive Order 12866.

Regulations governing fishing activity in the Sea Scallop Access Areas are found at §§ 648.59 and 648.60. Regulations specifically governing general category scallop vessel operations in the NLCA are specified at § 648.59(d)(5)(ii). These regulations authorize vessels issued a valid general category scallop permit to fish in the NLCA under specific conditions, including a cap of 394 trips that may be taken by general category vessels during the 2007 fishing year. The regulations at § 648.59(d)(5)(ii) require the NLCA to be closed to general category scallop vessels once the Northeast Regional Administrator has determined that the allowed number of trips are projected to be taken.

Based on Vessel Monitoring System (VMS) trip declarations by general category scallop vessels fishing in the NLCA, and analysis of fishing effort, a projection concluded that, given current activity levels by general category scallop vessels in the area, the trip cap will be attained on July 7, 2007. Therefore, in accordance with § 648.59(d)(5)(ii), the NLCA is closed to all general category scallop vessels as of 0001 hr local time, July 8, 2007. No general category scallop vessel may declare or initiate a trip into this area. This closure is in effect for the remainder of the 2007 scallop fishing year. The NLCA is scheduled to re-open to scallop fishing, including trips for general category scallop vessels, on June 15, 2009, unless the schedule for scallop access areas is modified by the New England Fishery Management Council.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

Due to the need to take immediate action to close the NLCA once the allowed number of trips have been taken, pursuant to 5 U.S.C. 553(b)(3) proposed rulemaking is waived because it would be impracticable and contrary to the public interest to allow a period for public comment. The NLCA opened for the 2007 fishing year at 0001 hours on June 15, 2007. Data indicating the general category scallop fleet has taken all of the NLCA trips have only recently become available. To allow general category scallop vessels to continue to take trips in the NLCA during the period necessary to publish and receive comments on a proposed rule would result in vessels taking much more than the allowed number of trips in the NLCA. Excessive trips and harvest from the NLCA would result in excessive fishing effort in the NLCA, where effort controls are critical, thereby undermining conservation objectives of the FMP. Should excessive effort occur in the NLCA, future management measures would need to be more restrictive. Furthermore, for the same reasons, there is good cause under 5 U.S.C 553(d)(3) to waive the 30-day delayed effectiveness period for this action.

NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2007 Pacific ocean perch TAC in the Eastern Aleutian District of the BSAI is 4,598 metric tons (mt) as established by the 2007 and 2008 final harvest specifications for groundfish in the BSAI (72 FR 9451, March 2, 2007).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS, has determined that the 2007 Pacific ocean perch TAC in the Eastern Aleutian District of the BSAI will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 4,298 mt, and is setting aside the remaining 300 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the Eastern Aleutian District of the BSAI.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific ocean perch in the Eastern Aleutian District of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 5, 2007.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

In January 2004 the U.S. Congress amended section 313(j) of the Magnuson-Stevens Act through the Consolidated Appropriations Act of 2004 (Public Law 108 199, section 802). As amended, the Magnuson-Stevens Act authorizes the Secretary of Commerce to establish a limited access privilege program for the Central GOA rockfish fisheries (Program), developed in coordination with the North Pacific Fishery Management Council (Council). The Council recommended Amendment 68 to the FMP for groundfish in the GOA on June 6, 2005, to make the Program effective.

NMFS published a notice of availability for Amendment 68 on May 15, 2006 (71 FR 27984). On June 7, 2006, NMFS published a proposed rule to implement Amendment 68 and the Program (71 FR 33040). The Secretary approved Amendment 68 on August 11, 2006. NMFS published a final rule to implement Amendment 68 on November 20, 2006 (71 FR 67210).

The Program provides exclusive harvesting and processing privileges for a specific set of rockfish species and associated species harvested incidentally to those rockfish in the Central GOA an area between 147° W. longitude and 159° W. longitude. A detailed overview of the Program is provided in the preamble to the proposed rule (71 FR 33040; June 7, 2006) and is not repeated here. However, a component of the Program allows holders of License Limitation Program (LLP) licenses that are assigned rockfish quota share (QS) for the catcher/processor sector to opt-out of many of the aspects of the Program (opt-out fishery). Participants in the opt-out fishery are subject to harvest limitations, called sideboard limits, during the month of July. Sideboard limits applicable to participants in the opt-out fishery include measures to limit catch of specific groundfish species to historic levels, and limits on the amount of Pacific halibut bycatch, specifically termed prohibited species catch (PSC). NMFS requires a suite of M&E provisions for participants in the opt-out fishery to ensure they do not exceed their sideboard limits.

NMFS seeks to ensure that the November 20, 2006, final rule (71 FR 67210) conforms to the intent of the Program, and to provide clarification regarding the Program's regulatory requirements.

In the proposed rule to implement Amendment 68 (71 FR 33040; June 7, 2006), NMFS detailed the M&E provisions that would apply to participants in the opt-out fishery. The proposed suite of M&E provisions applicable to the opt-out fishery included requirements that each haul must be weighed separately, all catch must be made available for sampling by a NMFS-certified observer (see proposed regulatory text at § 679.84(c)(1); 71 FR 33096), and that the vessel has no more than one operational line or other conveyance for the mechanized movement of catch between the scale used to weigh total catch and the location where the observer collects species composition samples (see proposed regulatory text at § 679.84(c)(4); 71 FR 33096). The proposed rule would have required that all catcher/processor vessels in the opt-out fishery be subject to these M&E requirements during July. The effect of the full suite of these M&E requirements on the regulated industry and the environment was analyzed in the draft EA/RIR/IRFA prepared for the proposed rule to implement the Program.

In response to public comment received on the proposed rule, NMFS modified the M&E provisions that apply to the opt-out fishery. The modifications were detailed in the preamble to the final rule. Specifically, NMFS noted these changes in the Summary of Changes section to the preamble (71 FR 67213) and in its response to comment 90 (71 FR 67229). NMFS also analyzed the effect of the revised M&E provisions for the opt-out fishery in the final EA/RIR and FRFA prepared for the Program final rule (see ADDRESSES ). The preamble to the final rule clearly indicated that NMFS intended to maintain the requirement for hauls to be weighed separately, and intended to require only one operational line.

The final regulatory text applicable to the opt-out fishery omitted some of the M&E requirements for catcher/processor vessels in the opt-out fishery that were detailed in the preamble to the final rule. Specifically, the regulations at § 679.84(d) failed to include the requirements to prevent mixing of hauls and maintain only one operational line before the point where the observer samples catch. These two requirements are essential for accurately attributing species composition to a specific haul and, in particular, to provide onboard observers the ability to properly attribute halibut PSC to a specific haul. Assigning halibut PSC to a specific haul is necessary to generate halibut PSC usage rates for specific fishery targets. Mixing of hauls and using more than one operational line undermine NMFS' ability to determine accurate halibut PSC usage for specific fisheries and create the potential for improper halibut PSC accounting. Because the distribution of organisms by size and species often differs among hauls, an aggregation of hauls (i.e., mixing two or more hauls) could create errors in the calculation of total groundfish catch. For example, if a vessel were to mix hauls from two different areas or depths, species catch composition and size could be significantly different between these hauls, and a composite sample may not represent each individual haul. Any errors would be exacerbated as the composite sample is expanded to represent the total weight of the mixed hauls. Similarly, the use of more than one operational line could lead to improperly sampled catch because catch could be diverted or otherwise conveyed in a manner that would limit adequate sampling.

Improper accounting of halibut PSC increases the risk that NMFS' catch accounting system may underestimate the amount of halibut PSC in the opt-out fishery, which undermines the conservation goals of this program. Because halibut PSC sideboard limits are likely to be small relative to harvest rates, timely and accurate accounting is essential to properly constrain fishing operations and ensure adequate conservation of the halibut resource.

Additionally, halibut PSC sideboard limits are allocated to specific participants within the catcher/processor sector (i.e., halibut PSC sideboard limits are established for each catcher/processor rockfish cooperative, and a combined halibut PSC limit is established for the combined catcher/processor rockfish limited access and opt-out fisheries). Failure to properly account for halibut PSC in a timely fashion with the best available data could increase the possibility that the opt-out fishery exceeds its halibut PSC sideboard limit. This could adversely constrain other fishery participants with halibut PSC limits (e.g., participants in catcher/processor cooperatives).

Finally, certain catcher/processor operators that may choose to participate in the opt-out fishery may have an incentive to use techniques to intentionally bias halibut PSC rates if mixing of hauls and the use of more than one operational line is permitted. Recent enforcement actions document intentional presorting of catch to bias observed catch rates of halibut PSC to maximize groundfish catch relative to constraining PSC or other groundfish catch. However, NMFS expects that opportunities to bias observer samples in the opt-out fishery will be reduced with the changes established under this rule.

This action revises the regulatory text to include requirements to prevent the mixing of hauls and maintain only one operational line before the point where the observer samples catch. This action is necessary to be consistent with the intent of the final rule and provide the affected public with accurate information regarding these requirements.

Regulations at § 679.80(f)(3)(iii)(F) include a grammatical error. This paragraph is revised to correct the phrase, “are the sum of all catch history” to read, “is the sum of all catch history.”

Regulations at § 679.82(d)(5)(iii) describe sideboard limits applicable to catcher vessels for the Program. This paragraph includes an erroneous cross-reference to “§ 679.65(b)(1)(i)(B).” This cross-reference is corrected to read “§ 679.64(b)(2)(ii).”

Regulations at § 679.82(d)(8)(ii)(B) include a misspelled word. This paragraph is revised to correct the phrase, “percent fo the GOA” to read, “percent of the GOA.”

Regulations at § 679.83(a)(1)(i) describe rockfish allocations for the Program's entry level fishery. This paragraph includes an erroneous cross-reference to “§ 679.81(ab)(2).” This cross-reference is corrected to read “§ 679.81(a)(2).”

The proposed rule to revise Central GOA rockfish fisheries M&E provisions related to catcher/processor vessels harvesting under the opt-out fishery and to correct regulations governing the rockfish fisheries was published in the Federal Register on April 16, 2007 (72 FR 18943), and the public review and comment period closed on April 30, 2007. NMFS received one letter on the proposed rule that contained two separate comments. The following summarizes and responds to these comments, which are summarized and responded to below. This final rule has not been changed from the April 16, 2006, proposed rule.

Comment 1: All quotas should be reduced by 50 percent this year, and 10 percent each subsequent year.

Response: This final rule implements revisions to Central GOA rockfish fisheries M&E provisions related to catcher/processor vessels harvesting under the opt-out fishery. These revisions do not have any relationship to the establishment of harvest specifications or the assignment of quotas or allocations in the North Pacific groundfish fisheries, so this comment is outside the scope of this rulemaking.

Comment 2: Because trawl gear is environmentally destructive by nature, NMFS should ban all trawlers from this area.

Response: This final rule implements revisions to M&E provisions in a management program that was previously implemented. The Program was approved by the Secretary after undergoing rulemaking and that action was supported by an EA/RIR/IRFA. The EA/RIR/IRFA specifically analyzed the effects of fishing in the GOA, and NMFS determined that the Program would not result in any significant impacts to the human environment.

The Administrator, Alaska Region, NMFS, determined that this rule is necessary for the conservation and management of the groundfish fisheries off Alaska and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

An IRFA was prepared for the Program proposed rule, and described in the Classification section of the preamble to the proposed rule for this action. The public comment period ended on April 30, 2007. No comments were received on the IRFA or on the economic effects of the rule.

NMFS prepared a FRFA for regulations implementing the Program. The FRFA incorporates the IRFA and a summary of the analyses completed to support the action. A copy of this analysis is available from NMFS (see ADDRESSES ). A summary of the analysis follows.

The FRFA prepared for the Program describes in detail the objectives, need, and legal basis for the action, and discusses both small and non-small regulated entities to adequately characterize the fishery participants. Section 802 of the Consolidated Appropriations Act of 2004 and the Magnuson-Stevens Act provide the legal basis for the Program, namely to achieve the objective of reducing excessive fishing capacity and ending the race for fish under the current management strategy for commercial fishing vessels operating in the Central GOA rockfish fisheries. This action revises the regulatory text to include requirements to prevent the mixing of hauls and maintain only one operational line before the point where the observer samples catch. This action is necessary to be consistent with the intent of the Program and provide the affected public with accurate information regarding these requirements.

The Council considered an extensive and elaborate series of alternatives, options, and suboptions as it designed and evaluated the potential for rationalization of the Central GOA rockfish fisheries, including the “no action” alternative. Three alternatives for catcher vessels were considered: Status Quo/No Action (Alternative 1); rockfish cooperative management with a limited license program for processors (Alternative 2); and rockfish cooperative management with linkages between rockfish cooperatives and processors (Alternative 3). Three alternatives for catcher/processors also were considered: Status Quo/No Action (Alternative 1); rockfish cooperative management (Alternative 2); and a sector allocation (Alternative 3). Alternative 3 for catcher vessels and Alternative 2 for catcher/processors were combined to form the Council's preferred alternative the rockfish cooperative alternative. The alternatives were analyzed relative to the status quo. Because the regulatory effect for opt-out sideboard fisheries will not occur until July 1, 2007, the status quo has not changed. Therefore, the effects of these alternatives described in the Program IRFA have not changed relative to this action. These alternatives constitute the suite of “significant alternatives” for purposes of the Regulatory Flexibility Act (RFA).

After an extensive public process spanning several years, NMFS concluded that the Program best accomplishes the stated objectives articulated in the problem statement and applicable statutes, and minimizes to the extent practicable adverse economic impacts on the universe of directly regulated small entities.

The FRFA prepared for the Program contains a description and estimate of the number of small entities to which the proposed rule would apply. The FRFA estimates that as many as 15 catcher/processor vessels are eligible to receive QS under the Program. The FRFA estimates that approximately 171 trawl vessels and 900 non-trawl vessels could participate in the entry level fishery. The number of vessels that would choose to participate in the entry level fishery component of the Program is not known; therefore, there is no estimate of the number of entities in the entry level fishery that are directly regulated under this Program.

In addition, six entities that process rockfish are estimated to be eligible rockfish processors and would be regulated under this Program. None of these eligible rockfish processors are estimated to be small entities based on the number of persons employed by these processors. Additionally, some of these eligible rockfish processors are estimated to be involved in both the harvesting and processing of seafood products and exceed the $4.0 million in revenues as a fish harvesting operation. Some processors that are not eligible rockfish processors may choose to compete for landings from the entry level fishery and would be regulated by this Program. Some of these processors may be small entities. The extent of participation by small entities in the processing segment of the entry level fishery cannot be predicted.

Of the estimated 63 entities owning vessels eligible for fishing under the Program (other than the entry-level fishery), 45 are estimated to be small entities because they generated $4.0 million or less in gross revenue based on participation in 1996 through 2002. All 15 of the entities owning eligible catcher/processor vessels are non-small entities as defined by the RFA. No catcher vessel individually exceeds the small entity threshold of $4.0 million in gross revenues. At least three catcher vessels are believed to be owned by entities whose operations exceed the small entity threshold, leaving an estimated 45 small catcher vessel entities that are directly regulated by this action. The ability to estimate the number of small entities that operate catcher vessels regulated by this action is limited due to incomplete information concerning vessel ownership.

It is likely that a substantial portion of the catcher vessel participants in the entry level fishery will be small entities. Based on data from NOAA Fisheries, there are approximately 171 LLP licenses that would be qualified to fish in the Central GOA entry level trawl fishery, and 900 LLP licenses that would qualify to fish in the entry level fixed gear fishery. As mentioned earlier, it is not possible to determine how many persons may hold these LLP licenses and may choose to participate in the entry level fishery at the time of application. However, the number of persons holding LLP licenses is likely to be less than the total number of LLP licenses that may be used to participate in the entry level fishery because a person may hold more than one LLP license at a time.

Entities that do not qualify for the Program either left the fishery, currently fish under interim LLP licenses, or do not hold an LLP license. Moreover, the vessels the FRFA considers “non-qualified” would not be allowed to continue fishing under the current LLP. The impacts to the small entities that would be prohibited from fishing by the LLP were analyzed in the RIR/IRFA and FRFA prepared for the LLP. Therefore, the non-qualified vessels are not considered impacted by the proposed rule and are not discussed in this FRFA.

The RIR prepared for the Program indicated that the community of Kodiak, Alaska, could be directly impacted by the Program. All of the eligible rockfish processors are located in Kodiak. The specific impacts on Kodiak cannot be determined until NMFS issues QS and eligible rockfish harvesters begin fishing under the Program. Other supporting businesses may also be indirectly affected by this action if it leads to fewer vessels participating in the fishery. These impacts are analyzed in the RIR prepared for the Program (see ADDRESSES ).

Implementation of the Program changed the overall reporting structure and recordkeeping requirements of the participants in the Central GOA rockfish fisheries. All participants are required to provide additional reporting. Each harvester is required to track harvests to avoid exceeding his or her allocation. As in other North Pacific rationalized fisheries, processors must provide catch recording data to managers to monitor harvest of allocations. Processors are required to record deliveries and processing activities to aid in the Program administration. The specifics of changes to reporting and recordkeeping requirements can be found in the preamble to the Program proposed rule (71 FR 33040; June 2, 2006). These reporting and recordkeepig requirements affect entities subject to Program requirements. However, this final rule does not revise those requirements described in the final rule implementing the Program, and does not impose additional reporting and recordkeeping requirements.

No Federal rules that may duplicate, overlap, or conflict with this proposed action have been identified.