On April 12, 2004, Adam Aircraft applied for a type certificate for their new Model A700. The Model A700 is a 6 to 8 seat, pressurized, retractable-gear, composite structure airplane with two turbofan engines mounted on pylons on either side of the aft fuselage.

14 CFR part 23 has historically addressed fire protection through prevention, identification, and containment. Prevention has been provided through minimizing the potential for ignition of flammable fluids and vapors. Identification has been provided by locating engines within the pilots' primary field of view and/or with the incorporation of fire detection systems. This has provided both rapid detection of a fire and confirmation when it was extinguished. Containment has been provided through the isolation of designated fire zones, through flammable fluid shutoff valves, and firewalls. This containment philosophy also ensures that components of the engine control system will function effectively to permit a safe shutdown of an engine. However, containment has only been demonstrated for 15 minutes. If a fire occurs in traditional part 23 airplanes, the appropriate corrective action is to land as soon as possible. For a small, simple airplane originally envisioned by part 23, it is possible to descend and land within 15 minutes; thus, the occupants can safely exit the airplane before the firewall is breached. These simple airplanes normally have the engine located away from critical flight control systems and primary structure. This has ensured that, throughout a fire event, a pilot can continue safe flight, and it has made the prediction of fire effects relatively easy. Other design features of these simple aircraft, such as low stall speeds and short landing distances, ensure that even in the event of an off-field landing, the potential for the outcome being catastrophic has been minimized.

Title 14 CFR part 23 did not envision the type of configuration of the Model A700 airplane. The Model A700 incorporates two turbofan engines located on pylons on either side of the aft fuselage. These engines are not in the pilots' field of view. With the location in the aft fuselage, the ability to visually detect a fire is minimal.

Under 14 CFR part 21, § 21.17, Adam Aircraft must show that the Model A700 meets the applicable provisions of part 23, as amended by Amendments 23-1 through 23-55, thereto.

If the Administrator finds that the applicable airworthiness regulations in 14 CFR part 23 do not contain adequate or appropriate safety standards for the Model A700 because of a novel or unusual design feature, special conditions are prescribed under § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Model A700 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy under section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The FAA issues special conditions, as defined in § 11.19, under § 11.38, and they become part of the type certification basis under § 21.17(a)(2).

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

The Model A700 will incorporate the following novel or unusual design features: The Model A700 incorporates two turbofan engines located on pylons on either side of the aft fuselage. These engines are not in the pilots' field of view. The effects of a fire in such a compartment are more varied and adverse than the typical engine fire in a simple part 23 airplane. With the location in the aft fuselage, the ability to visually detect a fire is minimal. However, the ability to extinguish an engine fire becomes extremely critical with the Model A700 engine location.

While the certification basis for the Model A700 requires that a fire detection system be installed due to the engine location, fire extinguishing is also considered a requirement. A sustained fire could result in loss of control of the airplane and damage to primary structure before an emergency landing could be made. Because of the location of critical structures and flight controls, a means to minimize the probability of re-ignition from occurring is necessary. One acceptable method to minimize re-ignition is to install a two-shot system. The effects of a fire emanating from an enclosed engine installation are more varied, adverse, and more difficult to predict than an engine fire envisioned for typical part 23 airplanes.

A notice of proposed special conditions, Notice No. 23-07-02-SC, for the Adam Aircraft Model A700 was published in the Federal Register on June 25, 2007 (72 FR 34644). No comments were received, and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Model A700. Should Adam Aircraft apply later for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

On March 28, 2003, Boeing applied for an FAA type certificate for its new Boeing Model 787-8 passenger airplane. The Boeing Model 787-8 airplane will be an all-new, two-engine jet transport airplane with a two-aisle cabin. The maximum takeoff weight will be 476,000 pounds, with a maximum passenger count of 381 passengers.

Under provisions of 14 Code of Federal Regulations (CFR) 21.17, Boeing must show that Boeing Model 787-8 airplanes (hereafter referred to as “the 787”) meet the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-117, except §§ 25.809(a) and 25.812, which will remain at Amendment 25-115. If the Administrator finds that the applicable airworthiness regulations do not contain adequate or appropriate safety standards for the 787 because of a novel or unusual design feature, special conditions are prescribed under provisions of 14 CFR 21.16.

In addition to the applicable airworthiness regulations and special conditions, the 787 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of part 36. The FAA must also issue a finding of regulatory adequacy pursuant to section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The FAA issues special conditions, as defined in § 11.19, under § 11.38, and they become part of the type certification basis under § 21.17(a)(2).

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In-flight fires have originated in inaccessible areas of aircraft where thermal/acoustic insulation located adjacent to the aluminum aircraft skin has been the path for flame propagation and fire growth. Although these insulation materials were required to comply with the basic “Bunsen burner” requirements of 14 CFR 25.853(a) and 25.855(d), these incidents revealed unexpected flame spread along the insulation film covering material of the thermal/acoustic insulation. In all cases, the ignition source was relatively modest and, in most cases, was electrical in origin (for example an electrical short circuit, arcing caused by chafed wiring, or a ruptured ballast case).

In September 2003, in an effort to limit use of materials that sustain or propagate a fire in inaccessible areas, the FAA promulgated 14 CFR 25.856(a), which requires that thermal/acoustic insulation material installed in the fuselage meet newly developed flame propagation test requirements. That rule was Amendment 25-111. These requirements were developed to address a realistic fire threat. We consider that threat generally applicable to the 787.

Conventional aluminum fuselage material does not contribute to in-flight fire propagation. As a result, there are no standards that address in-flight fire safety of the fuselage structure itself. The 787 will make extensive use of composite materials in the fabrication of the majority of the

• Wing,

• Fuselage skin,

• Stringers,

• Spars, and

• Most other structural elements of all major sub-assemblies of the airplane.

As a result of this extensive use of a new construction material, the fuselage cannot be assumed to have the fire resistance previously afforded by aluminum during the in-flight fire scenario mentioned above. These special conditions require that the 787 provide the same level of in-flight survivability as a conventional aluminum fuselage airplane. This includes its thermal/acoustic insulation meeting the requirements of § 25.856(a). Resistance to flame propagation must be shown, and all products of combustion that may result must be evaluated for toxicity and found acceptable.

Notice of Proposed Special Conditions No. 25-07-09-SC for the 787 was published in the Federal Register on April 26, 2007 (72 FR 20774). Two commenters, the Air Line Pilots Association (ALPA) and an individual member of the public, responded to the notice. Both commenters concur with the proposed special conditions but have additional concerns about composite structures that they feel should be addressed.

Comment 1. A member of the public commented that a post-crash, fuel fed fire is a significant hazard that is not addressed in these special conditions. This commenter cites research conducted on behalf of the Australian Government that documents potential fire hazards associated with composite materials—in particular toxicity and smoke. The commenter noted that the fire penetration resistance of a composite material alone is not sufficient to determine its overall contribution to fire safety.

FAA Response: We agree with the commenter that consideration of post-crash fire safety must include all the factors that influence survivability, and not just focus on one characteristic. These special conditions focus on in-flight fire safety, so any issues related to post-crash fire safety go beyond the scope of these special conditions. Nonetheless, the FAA is equally concerned with post-crash survivability and is addressing this issue through separate criteria. In this case, because there are requirements related to post-crash fire safety in § 25.856(b), the approach will be via an equivalent level of safety finding in accordance with § 21.21(b)(1). A summary of this finding will be available in the FAA Regulatory and Guidance Library at http://rgl.faa.gov/.

Comment 2. ALPA commented that the effects of moisture ingress must be addressed for all aspects of composite material integrity.

FAA Response: From the standpoint of flammability, moisture ingress is not an issue, because moisture will tend to reduce the flammability of the material. Since these special conditions only concern flammability resulting from an in-flight fire, the remainder of the issues go beyond the scope of these special conditions. Moisture is known to influence properties of composite materials and this concern is a well documented environmental condition that Boeing will have to address. In fact, the use of composite materials in aviation is not new and there is a significant amount of experience with the behavior of composites over time in service. Advisory Circular 20-107A, Composite Aircraft Structure, also discusses factors that need to be addressed when using composite structure.

Comment 3. ALPA also commented that aluminum structure can dissipate heat using the airflow over the skin, but this may not be the case for a composite structure because of its different thermal conductivity. ALPA believes that this difference must be taken into account with any in-flight fire safety assessment.

FAA Response: We agree that the heat transfer characteristics of aluminum influence its response to an in-flight fire, and that a composite structure will doubtless behave differently. The goal of these special conditions is to enable continued safe flight and landing in the event of an in-flight fire that directly impinges on the fuselage structure. Since these special conditions require Boeing to show that the composite structure is resistant to flame propagation resulting from in-flight fire, all the relevant material properties and performance characteristics of the composite structure will need to be addressed. This requirement is not a comparison with aluminum structure. It is a new requirement for composite structure. Since this is so, the special conditions as written cover the ALPA concern, and these special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the 787. Should Boeing apply at a later date for a change to the type certificate to include another model on the same type certificate incorporating the same novel or unusual design features, these special conditions would apply to that model as well.

This action affects only certain novel or unusual design features of the 787. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

The NDB RWY 03 SIAP was cancelled due to the permanent closure of RWY 03-21. The cancellation and runway closure, therefore, requires the removal of Class E4 airspace. This rule becomes effective on the date specified in the “Effective Date” section. Since this action will eliminate the impact of controlled airspace on aircraft in the vicinity of Columbus Lawson AAF, GA, notice and public procedure under 5 U.S.C. 553(b) are not necessary. Designations for Class E airspace areas extending upward from the surface of the earth are published in Paragraph 6004 of FAA Order 7400.9P, dated September 01, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 removes Class E4 airspace at Lawson AAF, Columbus, Ga.

The FAA has determined that this 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 will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

You can get an electronic copy using the Internet by:

(1) Searching the Department of Transportation's electronic Docket Management System (DMS) web page ( http://dms.dot.gov/search );

(2) Visiting the FAA's Regulations and Policies web page at http://www.faa.gov/regulations_policies/ ; or

(3) Accessing the Government Printing Office's web page at http://www.gpoaccess.gov/fr/index.html .

You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov .

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. If you are a small entity and you have a question regarding this document, you may contact the person listed under FOR FURTHER INFORMATION CONTACT . You can find out more about SBREFA on the Internet at http://www.faa.gov/regulations_policies/rulemaking/ sbre_act/ .

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing:

• Minimum standards required in the interest of safety for the design and performance of aircraft, and;

• Regulations for other practices, methods, and procedures the Administrator finds necessary for safety in air commerce and national security.

This regulation is within the scope of that authority because it prescribes:

• New standards for the safe operation of transport category airplanes, and;

• Practices, methods, and procedures that the Administrator finds necessary for safety in air commerce and national security.

Following the terrorists' acts on September 11, 2001, the Office of the Secretary of Transportation, Congress, and the FAA took several long term actions to prevent hijackings on passenger-carrying airplanes used in air carrier service. As part of those actions, the FAA published the notice of proposed rulemaking (NPRM), “Flightdeck Door Monitoring and Crew Discreet Alerting Systems” (70 FR 55492; September 21, 2005). That NPRM proposed requiring operators of passenger-carrying transport category airplanes used in domestic, flag, and supplemental operations to have a means for flightcrew to visually monitor the door area outside the flightdeck. The NPRM also proposed that, for operations requiring the presence of flight attendants, flight attendants have a means to discreetly notify the flightcrew of suspicious activity or security breaches in the cabin. The proposed changes addressed standards adopted by the International Civil Aviation Organization following the September 11, 2001 terrorist attacks.

Before issuing the NPRM, the FAA participated in the rapid response teams (RRTs) created by the Secretary of Transportation to develop recommendations for improving security within the national aviation system. One team was tasked with developing recommendations to improve security at the nation's airports; the other team was tasked with developing recommendations for aircraft integrity and security, with a specific focus on cockpit access.

Members of the aircraft integrity and security RRT included representatives from American Airlines, the Boeing Company, the Association of Flight Attendants, and the Air Line Pilots Association. Members of the Department of Transportation and the FAA supported the security RRT. In addition to regular team meetings, this RRT met with representatives from the airline operators, pilot and flight attendant associations, and parts manufacturers. The security RRT also received numerous recommendations from the public as the result of an e-mail address on the FAA Web site.

On October 1, 2001, the RRT for aircraft integrity and security presented its final report to the Secretary of Transportation. The report made 17 recommendations. One recommendation recognized the need for reinforced flightdeck doors and severe limitations on flightdeck entry. Anticipating the new severe limitations on flightdeck entry, the RRT made several recommendations for flightdeck access. These included:

• Flight attendants must have a method for immediate notification to the flightcrew during a suspected threat in the cabin.

• The flightcrew needs the capability to monitor the area outside the flightdeck door.

On November 19, 2001, Congress passed the Aviation and Transportation Security Act (ATSA) (Public Law 107-71). Section 104(b) of the ATSA states that the FAA Administrator may develop and implement methods—

The NPRM responded to the RRT's findings and to the legislation passed by Congress.

The FAA proposed to add the new paragraph (k) to § 121.313. This requirement would apply to all passenger-carrying airplanes that must have a lockable flightdeck door pursuant to 14 CFR 121.313(f). Operators of these airplanes must be able to monitor the area outside the flightdeck door from the flightdeck. This measure would provide the means to allow the flightcrew to identify persons requesting entry and to detect suspicious behavior and potential threats.

The FAA proposed to add the new § 121.582 that would require all passenger-carrying airplanes required to have a lockable flightdeck door to have an approved means by which the cabin crew can discreetly notify the flightcrew in the event of suspicious activity or security breaches in the cabin.

The FAA also proposed to add the new § 121.584. This would prohibit unlocking or opening the flightdeck door unless a person authorized to be on the flightdeck uses an approved audio procedure and an approved visual device to verify that: (1) The area outside the flightdeck door is secure; and (2) if someone outside the flightdeck door is seeking to have the flightdeck door opened, that person is not under duress.

The FAA received 88 comments. Of these comments, 45 stated strong support for the rule; only 5 opposed the rule. Of the 45 stating strong support for the rule, 6 commenters seemed to support the rule because they thought a video camera was the only means to comply with the requirement to monitor the flightdeck door. They may not have supported the proposal had they realized that video is not the only means to satisfy the requirement. The remaining comments did not directly express support for or opposition to the rule. Many comments included suggested changes, as discussed below.

The final rule sets a performance standard whereby air carriers must choose a method of compliance to view the area outside the flightdeck door. The performance standard may be met using a video monitoring device, a peephole or viewport, or other viewing device. The method of compliance must include procedures and training in existing part 121 requirements for unlocking the flightdeck door and operating all of the associated equipment for use in operations.

Several commenters including Boeing, Coalition of Airline Pilots Associations (CAPA), Association of Professional Flight Attendants (APFA), the Regional Airline Association (RAA), the Air Transport Association (ATA), and the Allied Pilots Association (APA) supported the use of current technology and procedures. The APA and CAPA stated that in the few cases when there is a need to open the flightdeck door, established procedures allow safe and secure passage from the flightdeck. Those procedures have stood the test of time and have a credible record of effectiveness. The RAA noted that nearly all their members presently use the peephole/audio method of confirming that the area outside the flightdeck door is secure before opening the door during flight. They saw no additional security benefit to using a video camera system over using their current peephole system to monitor the area outside the flightdeck door. The APFA and Boeing supported a viewing device in the flightdeck door that allows for the door and forward cabin to be monitored.

Several of the commenters thought that the FAA had proposed to require the use of video cameras to monitor the area outside the flight deck door and require wireless devices for discreet communication between cabin crewmembers and flight crewmembers. In particular, the Air Crash Victims Families Group and Families of September 11 expressed support for a requirement to install video cameras to monitor the area outside of the flight deck door. They also supported requiring wireless devices by the cabin crew to alert the flightdeck crew of a potential problem.

The FAA developed this rule over a period of years following the terrorist attacks of September 11, 2001, taking into consideration recommendations concerning flightdeck security and crew communications. While this action promulgates regulations for added protection of the flightcrew compartment, most part 121 air carriers already have procedures in place that perform this function. This rule allows U. S. air carriers options to meet requirements while remaining flexible in their methods. This flexibility provides an additional level of security to the public because air carriers will use different methods to provide flight deck security and crew communication. Different methods of compliance will make attempts to breach security more difficult because multiple systems will be more difficult to monitor and defeat.

Two commenters, former Congressman Bob Barr and the American Conservative Union, opposed the rule because of safety-related concerns resulting from increased pilot workload to monitor video cameras. The FAA does not believe that monitoring the area outside of the flightdeck door by the flightcrew will distract pilots or add a significant burden if video cameras are used. While air carriers may choose approved video cameras, a FAA-approved procedure-based approach (using procedures and hardware already installed, such as a peephole) is another option. Accordingly, pilots will not have to continuously monitor a video camera, they need only monitor the flightdeck door area when someone seeks access to the flightdeck or when notified by a flight attendant.

Former Congressman Bob Barr and the American Conservative Union also expressed concerns about passenger privacy in the cabin. The FAA is not imposing any requirement to monitor passengers beyond the area outside of the flight deck door. To the extent that a passenger is in the flightdeck door area, the FAA has a security interest in monitoring that passenger's activities.

Several commenters, including Capitol Electronics, Inc., expressed concern over the interphone system and its inability to be used discreetly. They stated that the interphone is an obvious piece of equipment, could be compromised, and would be difficult to use without arousing suspicion. They noted that when passengers or equipment (such as beverage carts) are in the aisles, the crew could find it difficult to reach the interphone quickly. These commenters stressed that a wireless system is the only discreet means for the cabin crew to notify the flightdeck of a problem.

The FAA notes that the interphone system is not intended to be an encrypted or a secure communication means, rather it is a way for all crewmembers to be able to communicate among themselves throughout the passenger cabin and the flightdeck. Nevertheless, if a crewmember uses the existing technology of the interphone system while adhering to the air carrier's communication procedures, discreet communication may be maintained. Conversations between crewmembers on the interphone are generally not broadcast over the aircraft's public address system and the system has the ability for all crewmembers to participate on the call, as company procedures may dictate. The ability of the crewmembers to communicate discreetly in many instances currently exists, primarily by following the operator's procedures.

Some commenters, including the Professional Flight Attendants Association and the Association of Professional Flight Attendants, recommended that flight attendants carry or have in their possession a wireless device to contact the flightdeck. Some suggested the flight attendant carry a wireless device in a pocket or around the neck.

The FAA does not believe requiring flight attendants to carry or have in their possession a wireless device to contact the flight deck is a good idea. A wireless device that is carried on the person (in a pocket or around the neck) may be problematic because an attacker could threaten or assault the flight attendant in order to obtain the wireless device and then use the device fraudulently to gain access to the flightdeck. Additionally, devices carried by an individual are subject to events that may be beyond the control of the air carrier. An entire security system could be compromised if a device in the personal possession of a flight attendant is lost or stolen.

Additionally, the cost to supply a wireless device to each flight attendant could be an unreasonable burden, as there are approximately 130,600 part 121 flight attendants. While the wireless communication device is an option for discreet communication, wireless communication is not the only available option. This rule is permissive in the sense that an air carrier may elect to use a sophisticated (for example, wireless) communication method, but this rule does not impose a new requirement for such devices.

In the NPRM, the FAA suggested that the evacuation system could be used as a compliant communication method. As noted by the Association of Professional Flight Attendants, not all aircraft have an emergency evacuation system available.

This regulation states that no person may unlock or open the flightdeck door unless a person authorized to be on the flightdeck uses an approved audio procedure and an approved visual device to verify that a person seeking entry to the flightdeck is not under duress. 1 The FAA has made a technical correction to § 121.584. We state that the requirements of the entire paragaph (a) must be satisfactorily accomplished before the crew member in charge on the flightdeck will authorize unlocking and opening the door.

Bosch Security Systems, CAPA, and the APA recommended that the FAA require installation of a secondary barrier, in addition to the flightdeck door, on all airplanes that are used in operations affected by this rule. Requiring installation of a secondary barrier would mean reconfiguring each airplane affected. Such an operation would require a major effort that is outside of the scope of this rulemaking and is therefore not adopted.

The International Brotherhood of Teamsters requested the FAA define “the area outside the flightdeck door.” Such a definition would vary depending upon the configuration differences among airplanes. There are many areas adjacent to flightdeck doors where an intruder could hide. This fact tends to validate the importance of the audio check from inside the flightdeck with a crewmember in the cabin prior to opening the flightdeck door.

Boeing requested the FAA change the requirement to confirm that a person seeking flightdeck access is not under duress. They noted that “duress” may take the form of both visible and non-visible actions. They further stated that there is “no definable or verifiable means of compliance for this as a requirement.” Boeing suggests changing the requirement that a crewmember evaluate whether a person is under duress, to simply require identification of a person seeking access to the flightdeck. FAA rules already require any person seeking flightdeck access to be identified before admittance. Section 121.587(b) limits persons on the flightdeck to those eligible under § 121.547. In addition, air carriers already have procedures in place regarding how and when to open a flightdeck door. The concept of determining whether someone is under duress is already applied in current procedures and appears to be readily understood. Air carriers should use the FAA-approved procedures already in place to determine whether someone is under duress. Because duress remains a threat not fully accommodated by the existing requirement that the person seeking access to the flightdeck is authorized to enter, the requirement to check that a person is not under duress remains unchanged.

Boeing also commented on the proposed requirement for both an audio and a visual check before opening the flightdeck door. They stated that most operators have adopted a visual procedure using the door peephole or an installed flightdeck entry visual surveillance system. Boeing made the assumption that use of the cabin interphone system is required to meet the audio procedure requirement. Boeing suggested revising the rule to require “an approved procedure and approved visual device,” which does not include a requirement for an audio check. Boeing stated that most major airlines are using a visual procedure/device, but not an audio procedure. It maintained that a robust visual device and an approved procedure to verify that the area around the flightdeck door is secure will satisfy the intent of the rule. It also claimed that requiring both a visual and an audio procedure could create an undesirable operational impact on the flightdeck. This could occur if the interphone equipment was not easily accessible to the person making a visual check of the door area. It did not state the basis for this observation. The FAA has determined that both a visual and audio check is required to provide an appropriate amount of security prior to opening the flightdeck door. Neither check alone provides adequate security. A video camera system may not provide complete coverage of the area outside of the flightdeck door or confirm that any lavatory in that area is unoccupied. An audio check with a crewmember in the cabin that has verified that the area is clear is required. Likewise, it would be very difficult to determine if a person seeking access to the flightdeck was under duress without an audio as well as a visual check. An air carrier's procedures for opening the flightdeck door are already required to include both checks. Therefore, the requirement for both an audio and visual check remains unchanged from current practice.

Boeing requested the FAA change the requirement in § 121.584(a)(2) concerning authorization to unlock the flightdeck door from “the crewmember in charge” to “an authorized crewmember.” Boeing stated its concern that the phrase “the crewmember in charge” can be interpreted always to require the pilot-in-command (PIC) to authorize unlocking and opening of the flightdeck door. While the FAA agrees with Boeing's interpretation of the proposed requirement, it does not share Boeing's apparent concern. Section 91.3(a) states, “The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.” While the PIC may delegate functions to other crewmembers, the PIC remains responsible for the outcome of those functions. An air carrier's approved procedures are required to address opening of the flightdeck door while flight crewmembers leave or return to the pilot's compartment. While functions, such as unlocking and opening the flightdeck door may be delegated, the responsibility for such action rests with the PIC. Therefore, the requirement for “the crewmember in charge” remains unchanged.

Aircraft Operators should be aware that the Transportation Security Administration (TSA) is reviewing the procedures that are in use for ingress and egress through the flight deck door during flight, and is considering additional procedures that may be necessary to address security concerns. TSA will coordinate with the FAA during the development of any proposed additional requirements.

As stated in the NPRM, the International Civil Aviation Organization (ICAO) adopted standards on March 15, 2002 that require installing flightdeck doors, locking and unlocking such doors, monitoring the area on the passenger side of the flightdeck door, and discreetly notifying the flightcrew in the event of security breaches in the cabin. The standards are located in ICAO Annex 6, Part 1, Chapter 13, provision 13.2, which state:

In the NPRM, the FAA identified three areas where the proposed rule did not appear to meet ICAO standards. We stated in the NPRM:

• The proposal in this action will not be implemented before the November 1, 2003 ICAO deadline.

• Any passenger-carrying airplanes operated under parts 91, 125, and 135 including international commercial air transport operations with a maximum certificated takeoff mass in excess of 45500 kg or with a seating capacity of greater than 60 (as ICAO requires), are not covered by this proposed rule.

• The proposed rule will permit an alternative means to monitor the area outside the flightdeck door from the flightdeck side of the door, instead of from either pilot station, as ICAO requires.

L-3 Communications and the International Brotherhood of Teamsters state that the rule falls well short of ICAO standards and ATSA requirements because the viewport option and existing interphone systems do not adequately address ICAO requirements. L-3 Communications expresses support for cameras and wireless devices in meeting these requirements.

The International Air Transport Association (IATA) commented that it is concerned that the United States (U.S.) will continue to have differences with the ICAO standard. IATA is concerned that other national authorities may take a different view on the applicable ICAO standards. They ask that the FAA work with its international partners. Several commenters, including Delta Airlines, the Transport Workers Union of America, the CAPA, the Air Transport Association, and the APA generally agree with the FAA that the new rule meets the intent of ICAO standards addressing flightdeck security. ICAO implementation guidance provides for a procedural-based approach.

Upon further review of the ICAO standards associated guidance and FAA actions, we have determined that only one of three perceived differences remains. First, concerning the ICAO implementation date, the FAA discovered that if an ICAO member country has policies in place before the implementation date for the ICAO standard, the member country is considered to be in compliance with the ICAO standard. The FAA published Notice N8400.51, Procedures for Opening, Closing, and Locking of Flightcrew Compartment Doors before November 1, 2003. This notice addresses air carrier procedures to open the flightdeck door during flight operations and addresses the intent of the ICAO standards for monitoring the area outside the flightdeck door. In accordance with ICAO guidance, the FAA met the intent of the standard before the ICAO implementation date of November 1, 2003.

Second, the FAA has met the intent of the ICAO requirement to monitor from either pilot's station the entire door area outside the flight crew compartment. ICAO guidance permits operators to use different methods to monitor the area outside the flightdeck door. The monitoring does not have to take place from “either pilot's station,” as a plain reading of the ICAO standard indicates. According to ICAO, use of a spyhole or peephole would satisfy the requirement to monitor the area outside the flightdeck door. Since this final rule adopts a performance standard that contemplates the type of system that ICAO states is sufficient to meet the ICAO standard, the FAA determines no difference exists.

Finally, the ICAO standard is applicable to passenger-carrying airplanes based on weight or seating capacity. The FAA regulations differ from the ICAO standard regarding applicability. As explained in the NPRM, ICAO provisions apply to passenger-carrying airplanes of a maximum certificated take-off mass in excess of 45,500 kg or with a passenger seating capacity greater than 60. The FAA standard applies to all part 121 operations. U.S. aviation regulations governing airplanes operated under parts 91, 125, and 135 may be within the weight and passenger seating capacity required by the ICAO standard; however, airplanes operating under these parts are not specifically required to have a flightdeck door. We therefore find it impractical to impose a viewing requirement on airplanes operating under these parts. We also find it impracticable to impose a communication procedure requirement when there is no way to prevent access to the flightdeck.

We will carefully monitor these types of operations and if it becomes a matter of concern in the future, we will consider adopting the ICAO standard, based on weight, instead of by operating rule. In addition, if an air carrier is subject to the ICAO requirement (or foreign regulations) because of weight or seating capacity but not subject to FAA requirements, the FAA will, upon request, work with any operator to consider any approvals necessary to satisfy requirements by another civil aviation authority that an operator have approved procedures in place. We do not believe there will be any need to provide accommodation for the ICAO requirement on monitoring the area outside the flightdeck because we believe all of the reinforced flightdeck doors are already outfitted with a peephole.

The Association of European Airlines states that any final rule on flightdeck door monitoring and crew discreet alerting should not apply to non-U.S. operators to the United States. This rule does not apply to non-U.S. operators, including those operating under part 129. These operations are covered by adequate regional and international rules and standards.

In the NPRM, the FAA proposed to give part 121 passenger-carrying operators not already in compliance with the rule, two years to install a monitoring device to meet the proposed performance standard on the existing fleet. We also proposed a 180-day compliance date for the discreet communications procedure.

Several individual commenters, including the Air Transport Association, expressed concerns about compliance dates. These comments all stated that the compliance period was too short. Some expressed concern with the immediate effective date for operations of airplanes that already have a means to monitor the flightdeck door area, required by § 121.584(b). ATA expressed concern that two years would not be enough time to install a video surveillance system. ATA recommended a five- or six-year interval.

After further review, the FAA has determined that every part 121 passenger-carrying operator should already have a means to monitor the flightdeck door area. The FAA learned from flightdeck door manufacturers that every reinforced flightdeck door that meets the requirements of section 25.795 (required for passenger-carrying operations in part 121) has a peephole that meets the requirements of this rule. As a result of this information, the FAA has determined that there should be no retrofit of airplanes operated by part 121 carriers. Accordingly, the FAA has decided against adopting a two-year compliance period in proposed section 121.584(b). If a part 121 passenger-carrying operator does not have a means to monitor the flightdeck door area, the operator can: (1) Operate without opening the flightdeck door until the airplane is retrofitted; or (2) seek relief by applying to the FAA for exemption from this rule.

As discussed above, we are issuing this final rule with a reduced compliance period. The NPRM proposed to give operators that do not have a means to view the area outside the flightdeck door two years to install such a means. The FAA proposed to require operators that have a means to monitor the area outside the flightdeck door to comply on the effective date of the final rule. After review of the comments to the NPRM and FAA actions regarding reinforced doors, we decided to change the compliance date for all affected parts to 60 days.

First, air carriers conducting passenger-carrying operations under part 121 were required to install a reinforced door by April 9, 2003. The FAA concluded, by review of supplemental type certificates, that no airplanes operating passenger-carrying service under part 121 have a flightdeck door without a means to monitor the area outside the flightdeck door. Second, no commenter specifically stated that they were currently not in compliance with the rule. The only comment relevant to this inquiry was from ATA, which stated that if an operator chose to install video, it would take more than two years to do so.

Similarly, the FAA confirmed that part 121 passenger-carrying operators should already have an approved means in place for a cabin crew to discreetly notify the flightcrew in the event of suspicious activity or security breaches in the cabin. Therefore, the FAA removed the 180-day compliance date from § 121.582. The compliance period for the entire rule is now 60 days.

The FAA is limiting the compliance period without providing an opportunity for prior public notice and comment as is normally required by the Administrative Procedure Act (APA). See 5 U.S.C. 553. The APA authorizes agencies to dispense with certain notice and comment procedures if the agency finds good cause that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 553(b)(3)(B). The FAA finds good cause for shortening the compliance period in this final rule because it would be contrary to the public interest not to do so. A two-year compliance period is contrary to the public interest because we determined that every operator already has equipment installed to comply with this rule. The only outstanding compliance concern could be that some operators need to develop and implement procedures to monitor the area outside the flightdeck (for example, by looking through the peephole) before opening the flightdeck door. Therefore, the FAA is allowing a 60-day compliance period, so any operator that must adopt procedures will have time to do so.

Several commenters, including the CAPA and Air Line Pilots Association International, recommended the FAA include all-cargo operations in this rule. These commenters noted that cargo operations should be as safe and secure as passenger operations. They recommended the FAA require installation of a secure flightdeck door on part 121 cargo airlines.

While all-cargo operators may implement the requirements of this rule, they are not specifically required to do so. All-cargo flights carry only those individuals allowed under 14 CFR 121.583; all individuals carried on cargo flights are screened through TSA approved procedures. The general traveling public is not allowed onboard these flights. ICAO standards in this area reflect this awareness in that they apply only to passenger-carrying operations. In keeping with ICAO standards and security requirements, the FAA developed a performance-based approach for operations conducted under the passenger-carrying requirements of part 121. The FAA and TSA believe that security measures in place to protect the flightdecks of all-cargo operations are adequate for those operations, considering the small number of persons allowed onboard for those flights. Therefore, the FAA does not apply this rule to all-cargo operations.

Several commenters, including the Air Transport International, L.L.C., expressed concerns about the rule's applicability to part 121 operations. They stated the rule should not apply to Combi-configured aircraft that mainly transport cargo. While these aircraft can transport up to 32 passengers, the commenters believe they have sufficient security measures in place to prevent anyone from gaining access to the flightdeck. The FAA notes that the requirements of this rule apply to passenger-carrying operations conducted under part 121. When operations are conducted that are subject to the passenger-carrying requirements of part 121, including flights carrying passengers and cargo, those operations must also meet the requirements of this rule.

Several commenters, including the Transport Workers Union of America and the Association of Professional Flight Attendants, refer to the “lessons learned” from the Operation Atlas exercise. The FAA was not a participant in this exercise to measure response and recovery efforts. Comments about the Operation Atlas exercise are outside of the scope of this rulemaking activity.

US Airways requested clarification on use of Minimum Equipment Lists (MEL) with regard to the equipment required by this rule. Since this is a rule of general applicability it does not impact an individual operator's MEL. Each individual MEL is developed by the operator and approved by its Principal Operations Inspector. Pertinent MEL relief is provided through the Master Minimum Equipment List (MMEL). Development of the MMEL is beyond the scope of this rule, especially because this rule is a performance standard. Since this rule does not require any new equipment, each air carrier should refer to its already established MEL and question its POI for further information.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA has determined that there are no requirements for information collection associated with this rule.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows:

Every reinforced cockpit door has a peephole, which meets the final rule requirement to visually identify anyone attempting to enter the flightdeck. Operators can comply by developing appropriate procedures. Most operators have already developed these procedures and we determined that there will be minimal expense to the operators that still need to develop them to meet the requirement.

Further, the final rule requirement that the crew members be able to alert the flightdeck of any cabin problems can also be met by a variety of measures such as special signals through the interphone system or modifications of existing crew notification devices or procedures. We also determined that there will be minimal expense to the operators to implement these measures.

In the NPRM, we had estimated the costs of operators installing video camera surveillance systems. As the final rule does not require such a system, the costs for an operator that chooses to install such a system are not a cost of compliance with the final rule. We received several comments on our estimated costs and these can be reviewed in the docket for this rulemaking.

In general, we believe these comments support the estimates in the NPRM after taking into account the experience of the commenters in installing such systems. While Boeing's estimate was significantly higher than ours, its system is far more sophisticated than any video system designed to minimally meet the performance standard. Since all of the costs are associated with a monitoring system that is not required by the rule and is redundant to existing, compliant systems already aboard all affected aircraft, we are not discussing the comments further.

The rule is one of a series of rulemaking actions aimed at preventing or deterring an occurrence similar to the September 11 terrorist attacks. It is designed to ensure that pilots do not open the flightdeck door and admit a potential hijacker because the pilots will be able to recognize who is trying to gain entry. It is also designed to alert the pilots to problems in the cabin through the crew discreet monitoring system and allow them to take the appropriate actions.

This rule responds to the interest of the U.S. Congress as specified in the ATSA and to the ICAO flightdeck surveillance requirement for international travel airplanes with more than 60 seats. We conclude that the benefits of this final rule will exceed the minimal costs.

The FAA has, therefore, determined that this final rule is a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is “significant” as defined in DOT's Regulatory Policies and Procedures.

The Regulatory Flexibility Act (RFA) of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

Due to its minimal costs, the final rule will have a minor effect upon small businesses. We also received no comments from the public on the economic impact of the proposed rule on small entities. We are sensitive to the needs of small businesses and thus have found a minimal cost solution that meets our security needs.

Therefore, as the FAA Administrator, I certify that this rule will not have a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and has determined that it will have only a domestic impact and, therefore, no affect on international trade.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $128.1 million in lieu of $100 million.

This final rule does not contain such a mandate.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government, and therefore does not have federalism implications.

Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat. 3213) requires the FAA, when modifying its regulations in a manner affecting intrastate aviation in Alaska, to consider the extent to which Alaska is not served by transportation modes other than aviation, and to establish appropriate regulatory distinctions. In the NPRM, we requested comments on whether the proposed rule should apply differently to intrastate operations in Alaska. We did not receive any comments, and we have determined, based on the administrative record of this rulemaking, that there is no need to make any regulatory distinctions applicable to intrastate aviation in Alaska.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312f and involves no extraordinary circumstances.

The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because it is not a “significant regulatory action” under Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

In Title 21 of the Code of Federal Regulations, Parts 600 to 799, revised as of April 1, 2007, in § 700.27, on page 138, paragraph (d) is reinstated to read as follows:

The Passport Services Enhancement Act (Pub. L. 109-167, January 10, 2006, 119 Stat. 3578) authorizes the Secretary of State to establish, collect, and retain a surcharge to cover the costs of meeting the increased demand for passports as a result of actions taken to comply with section 7209(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L. 108-458, 8 U.S.C. 1185).

In March 2006, the Department of State had commissioned an independent cost of service survey to examine the resource implications of the increased demand for passports under the Western Hemisphere Travel Initiative (WHTI), the Administration's proposal to address the requirements of the IRTPA, and to determine the appropriate amount of the surcharge. That survey estimated that uncompensated WHTI-related costs borne by the Department of State would reach $289 million during the period FY2006-FY2008. It also projected that a six-dollar surcharge retained by the Department of State would enable it to meet the costs of increased passport demand during that period. Accordingly on August 15, 2006, the Department of State published an interim rule providing for a surcharge of $6 per passport application. However, the demand and costs proved to be greater than originally estimated and thus the Department now projects that uncompensated demands during the period FY2008 to FY 2010 will reach $944 million. The Department has therefore determined that to meet its increased costs, it will need to retain $20 per passport application. Pursuant to the authority granted to the Secretary of State under the Passport Services Enhancement Act of 2005, this rule will allow the Department of State to establish, collect, and retain a twenty-dollar surcharge on applicable fees for the filing of each application for a passport, in order to address the resource implications of section 7209(b) of the IRTPA. That surcharge will be embedded in the passport application fee and will be deposited as an offsetting collection to the appropriate Department of State appropriation account. The non-surcharge portion of the passport application fee will be remitted to the general fund of the Treasury. The overall cost of the passport to the public will not increase by virtue of this action.

The Department of State considers the enactment of this rule as a matter of urgency to help provide the funds to meet the demand created by the legislation for universal international traveler nationality and identity documentation. The Department is in the process of increasing its overall production capacity, improving efficiency of production and adjudication processes, as well as enhancing anti-fraud measures. The Department is also currently developing a less expensive card format passport for use at land border crossings.

The Department is publishing this rule as an interim final rule, with a 30-day provision for post-promulgation public comments, based on the “good cause” exceptions set forth at 5 U.S.C. 553(b)(3)(B) and 553(d)(3). Publishing the rule in this way, with a post-promulgation opportunity for comment, will allow the Department of State to make the rule effective at the earliest opportunity. Allowing a full 30-day comment period followed by a publication of the final rule with a further 30 days before its effective date is not practicable or in the public interest. That process would delay retention by the Department of State of the increased surcharge, urgently needed in order to cover the increased costs attendant to implementing the provisions of the Intelligence Reform and Terrorism Prevention Act of 2004 on travel to the United States. That law, passed in the aftermath of the September 11, 2001 terrorist attacks, seeks to increase the national security of the United States by requiring all arrivals (both foreign nationals and U.S. citizen), even from countries where it was previously not required, to possess a suitably secure travel document. By expedited retention of the surcharge through an interim final rule, the Department of State will be able to fund the costs of increased passport demand and the production of a new, convenient card format passport to be introduced in fiscal year 2008.

These changes to the regulations are hereby certified as not expected to have a significant impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act, 5 U.S.C. 601-612.

This rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign based companies in domestic and import markets.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Public Law 104-4; 109 Stat. 48; 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule does not result in any such expenditure nor will it significantly or uniquely affect small governments. Therefore, no actions were deemed necessary.

The Department of State finds that this regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor does the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132.

The Department of State has reviewed this interim final rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866. The Office of Management and Budget (OMB) has determined that this rule has important policy implications and is significant. This rule has been provided to OMB for review.

The Department has reviewed the regulations in light of sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

This rule does not impose information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35.

The PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets.

Three sets of interest assumptions are prescribed: (1) A set for the valuation of benefits for allocation purposes under section 4044 (found in Appendix B to part 4044), (2) a set for the PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by the PBGC (found in Appendix B to part 4022), and (3) a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology (found in Appendix C to Part 4022).

This amendment (1) adds to Appendix B to part 4044 the interest assumptions for valuing benefits for allocation purposes in plans with valuation dates during September 2007, (2) adds to Appendix B to part 4022 the interest assumptions for the PBGC to use for its own lump-sum payments in plans with valuation dates during September 2007, and (3) adds to Appendix C to part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology for valuation dates during September 2007.

For valuation of benefits for allocation purposes, the interest assumptions that the PBGC will use (set forth in Appendix B to part 4044) will be 5.53 percent for the first 20 years following the valuation date and 5.20 percent thereafter. These interest assumptions represent an increase (from those in effect for August 2007) of 0.04 percent for the first 20 years following the valuation date and 0.04 percent for all years thereafter.

The interest assumptions that the PBGC will use for its own lump-sum payments (set forth in Appendix B to part 4022) will be 3.25 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. These interest assumptions represent a decrease of 0.25 percent in the immediate rate from those in effect for August 2007 and are otherwise unchanged. For private-sector payments, the interest assumptions (set forth in Appendix C to part 4022) will be the same as those used by the PBGC for determining and paying lump sums (set forth in Appendix B to part 4022).

The PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.

Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during September 2007, the PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

On June 13, 2007, we published a notice of proposed rulemaking (NPRM) entitled Special Local Regulation for Marine Event, Bogue Sound, Morehead City, North Carolina in the Federal Register (72 FR 32567). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held.

On September 23, 2007, the Super Boat International Productions Inc. will sponsor the “Crystal Coast Super Boat Grand Prix”, on the waters of Bogue Sound including the Morehead City Turning Basin, sections of the Intra-Coastal Waterway, and Morehead City Channel at Morehead City, North Carolina. The event will consist of approximately 35 power boats participating in two high-speed competitive races, traveling counter-clockwise around a race course. A fleet of spectator vessels are expected to gather near the event site to view the competition. To provide for the safety of participants, spectators and other transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during the races.

The Coast Guard did not receive comments in response to the notice of proposed rulemaking (NPRM) published in the Federal Register . Accordingly, the Coast Guard is establishing temporary special local regulations on specified waters of the Bogue Sound, Morehead City, NC.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. Although this regulation prevents traffic from transiting a portion of Morehead City State Port Turning Basin, sections of the Intra-Coastal Waterway and Morehead City Channel during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect. Extensive advance notification will be made to the maritime community via marine information broadcast, local radio stations, and area newspapers so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary. Vessel traffic will be able to transit the regulated area between heats, when the Coast Guard Patrol Commander deems it is safe to do so.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit this section of Bogue Sound including the Morehead City Turning Basin, Atlantic Intra-Coastal Waterway and Morehead City Channel from 9 a.m. to 5 p.m. on September 23, 2007. This proposed rule would not have a significant economic impact on substantial number of small entities for the following reasons. Although the regulated area will apply to the Morehead City Channel, Morehead City Turning Basin and a two-mile segment of the Atlantic Intra-Coastal Waterway, south and west of the Highway 70 Bridge, from approximately mile 204 of the Atlantic Intra-Coastal Waterway to mile 206, traffic may be allowed to pass through the regulated area with the permission of the Coast Guard Patrol Commander. In the case where the Patrol Commander authorizes passage through the regulated area during the event, vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the race course. The Patrol Commander will allow non-participating vessels to transit the event area between races. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation.

Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

The Coast Guard will enforce the special local regulations for the 29th Annual YMCA Triathlon held on the waters of the Wrightsville Channel in 33 CFR 100.513 from 6:30 a.m. until 9 a.m. on September 29, 2007.

Annually, the YMCA in Wilmington, North Carolina sponsors this event. The marine event consists of approximately 1200 swimmers competing along a course within the regulated area. Due to the need for vessel control during the event, vessel traffic will be temporarily restricted to provide for the safety of participants, spectators and support vessels. In order to ensure the safety of the event participants and transiting vessels, 33 CFR 100.513 will be in effect for the duration of the event. Under provisions of 33 CFR 100.513, a vessel may not enter the regulated area unless it receives permission from the Coast Guard Patrol Commander. The Coast Guard may be assisted by other State or local law enforcement agencies in enforcing this regulation.

This notice is issued under authority of 33 CFR 100.513 and 5 U.S.C. 552(a). In addition to this notice, the maritime community will be provided extensive advance notification via the Local Notice to Mariners, marine information broadcasts, local radio stations and area newspapers, so mariners can adjust their plans accordingly.

The Coast Guard will enforce the special local regulations for the annual “Ragin' on the River” power boat race held on the waters of the Susquehanna River in 33 CFR 100.535 from 10:30 a.m. on September 1, 2007 through 6:30 p.m. on September 2, 2007. If the event is postponed due to inclement weather this section will be enforced from 10:30 a.m. to 6:30 p.m. on Monday, September 3, 2007.

Annually, during Labor Day weekend, the Port Deposit, Maryland Chamber of Commerce sponsors this event. The marine event consists of approximately 60 inboard hydroplanes and runabouts racing in heats counter-clockwise around an oval racecourse. A fleet of spectator vessels is anticipated to gather nearby to view the competition. Due to the need for vessel control during the event, vessel traffic will be temporarily restricted to provide for the safety of participants, spectators and transiting vessels. In order to ensure the safety of the event participants and transiting vessels, 33 CFR 100.535 will be in effect for the duration of the event. Under provisions of 33 CFR 100.535, a vessel may not enter the regulated area unless it receives permission from the Coast Guard Patrol Commander. The Coast Guard may be assisted by other State or local law enforcement agencies in enforcing this regulation.

This notice is issued under authority of 33 CFR 100.535 and 5 U.S.C. 552(a). In addition to this notice, the maritime community will be provided extensive advance notification via the Local Notice to Mariners, marine information broadcasts, local radio stations and area newspapers, so mariners can adjust their plans accordingly.

The Coast Guard will enforce the special local regulation for the Safety Zone; Chicago Harbor, Navy Pier Southeast, Chicago, IL, 33 CFR 165.931 for the following events:

(1) Navy Pier Sunday Fireworks; on September 2, 2007 from 9:30 p.m. through 11 p.m.

(2) Navy Pier Monday Fireworks; on December 31, 2007 from 7 p.m. through 8:30 p.m.; January 1, 2008 from 12 a.m. through 1 a.m.

(3) Navy Pier Tuesday Fireworks; on January 1, 2008 from 7 p.m. through 8:30 p.m.

(4) Navy Pier Wednesday Fireworks; on August 8, 2007 from 9:30 p.m. through 11 p.m.; on August 15, 2007 from 9:30 p.m. through 11 p.m.; on August 22, 2007 from 9:30 p.m. through 11 p.m.; on August 29, 2007 from 9:30 p.m. through 11 p.m.

(5) Navy Pier Friday Fireworks; on October 5, 2007 from 9:30 p.m. through 11 p.m.; on October 12, 2007 from 9:30 p.m. through 11 p.m.; on October 19, 2007 from 9:30 p.m. through 11 p.m.; on October 26, 2007 from 9:30 p.m. through 11 p.m.

(6) Navy Pier Saturday Fireworks; on August 11, 2007 from 10 p.m. through 11:30 p.m.; on August 18, 2007 from 10 p.m. through 11:30 p.m.; on August 25, 2007 from 10 p.m. through 11:30 p.m.; on September 1, 2007 from 10 p.m. through 11:30 p.m.; on November 24, 2007 5 p.m. through 7 p.m.

All vessels must obtain permission from the Captain of the Port or his on-scene representative to enter, move within or exit the safety zone. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port or a designated representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.

This notice is issued under authority of 33 CFR 165.931 Safety Zone, Chicago Harbor, Navy Pier Southeast, Chicago IL. (published on June 13, 2007 at 72 FR 32520) and 5 U.S.C. 552 (a). In addition to this notice in the Federal Register , the Coast Guard will provide the maritime community with advance notification of these enforcement periods via broadcast Notice to Mariners and Local Notice to Mariners. The Captain of the Port will issue a Broadcast Notice to Mariners notifying the public when enforcement of the safety zone established by this section is suspended. The Captain of the Port may be contacted via U.S. Coast Guard Sector Lake Michigan on channel 16, VHF-FM.

The Coast Guard will enforce the Safety Zone, Milwaukee Harbor, Milwaukee, WI, 33 CFR 165.935 for the following events:

(1) Irish Fest fireworks display on August 19, 2007 from 10 p.m. through 11 p.m.; and

(2) Mexican Fiesta fireworks display on August 24, 2007 from 9 p.m. through 11 p.m.; and

(3) Indian Summer fireworks displays on September 8, 2007 from 9 p.m. through 11 p.m.

All vessels must obtain permission from the Captain of the Port or his on-scene representative to enter, move within or exit the safety zone. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port or a designated representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.

This notice is issued under authority of 33 CFR 165.935 Safety Zone, Milwaukee Harbor, Milwaukee, WI (published on June 13, 2007 at 72 FR 32522) and 5 U.S.C. 552(a). In addition to this notice in the Federal Register , the Coast Guard will provide the maritime community with advance notification of these enforcement periods via broadcast Notice to Mariners and Local Notice to Mariners. The Captain of the Port will issue a Broadcast Notice to Mariners notifying the public when enforcement of the safety zone established by this section is suspended. The Captain of the Port may be contacted via U.S. Coast Guard Sector Lake Michigan on channel 16, VHF-FM.

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-2006-1026 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 October 15, 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-2006-1026, 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 telephone number is (703) 305-5805.

In the Federal Register of February 7, 2007 (72 FR 5706) (FRL-8111-8), 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 6F7059) by Bayer CropScience, 2 T.W. Alexander Drive, Research Triangle Park, NC 27709. The petition requested that 40 CFR 180.631 be amended by establishing a tolerance for residues of the herbicide pyrasulfotole (5-hydroxy-1,3-dimethyl-1 H -pyrazol-4-yl)[2-(methylsulfonyl)-4-(trifluoromethyl)phenyl]methanone, and its metabolite, 5-hydroxy-3-methyl-1 H -pyrazol-4-yl) [2-methylsulfornyl)-4-(trifluoromethyl)phenyl]methanone, in or on barley, oat, rye, triticale, wheat, grain at 0.07 parts per million (ppm), barley, oat, rye, wheat, straw and oat, rye, wheat, forage at 0.25 ppm, barley, oat, wheat, hay at 0.8 ppm, wheat, aspirated grain fractions at 1.4 ppm. In addition, Bayer CropScience has requested permanent tolerances for pyrsulfotole per se for cattle, goat, hog, horse, sheep, meat and fat at 0.01 ppm, cattle, goat, hog, horse, sheep, meat byproducts at 0.3 ppm, and milk at 0.005 ppm. That notice referenced a summary of the petition prepared by Bayer CropScience, the registrant, which is available to the public in the docket, http://www.regulations.gov . There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has modified the tolerance levels as follows: aspirated grain fractions at 0.40 ppm, barley, grain at 0.02 ppm, barley, hay at 0.30 ppm, barley, straw at 0.20 ppm, cattle, fat at 0.02 ppm, cattle, liver at 0.35 ppm, cattle, meat at 0.02 ppm, cattle, meat byproducts, except liver at 0.06 ppm, eggs at 0.02 ppm, goat, fat at 0.02 ppm, goat meat at 0.02 ppm, goat, meat byproducts, except liver at 0.06 ppm, hog, fat at 0.02 ppm, hog, meat at 0.02 ppm, hog, meat byproducts at 0.02 ppm, horse, fat at 0.02 ppm, horse, liver at 0.35 ppm, horse, meat at 0.02 ppm, horse, meat byproducts, except liver at 0.06 ppm, milk at 0.01 ppm, oat, forage at 0.10 ppm, oat, grain at 0.08 ppm, oat, hay at 0.50 ppm, oat, straw at 0.20 ppm, poultry, fat at 0.02 ppm, poultry, meat at 0.02 ppm, poultry, meat byproducts at 0.02 ppm, rye, forage at 0.20 ppm, rye, grain at 0.02 ppm, rye, straw at 0.20 ppm, sheep, fat at 0.02 ppm, sheep, liver at 0.35 ppm, sheep, meat at 0.02 ppm, sheep, meat byproducts, except liver at 0.06 ppm, wheat, forage at 0.20 ppm, wheat, grain at 0.02 ppm, wheat, hay at 0.80 ppm, and wheat, straw at 0.20 ppm.

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 tolerance for residues of pyrasulfotole and pyrasulfotole-desmethyl on aspirated grain fractions at 0.40 ppm, barley, grain at 0.02 ppm, barley, hay at 0.30 ppm, barley, straw at 0.20 ppm, cattle, fat at 0.02 ppm, cattle, liver at 0.35 ppm, cattle, meat at 0.02 ppm, cattle, meat byproducts, except liver at 0.06 ppm, eggs at 0.02 ppm, goat, fat at 0.02 ppm, goat meat at 0.02 ppm, goat, meat byproducts, except liver at 0.06 ppm, hog, fat at 0.02 ppm, hog, meat at 0.02 ppm, hog, meat byproducts at 0.02 ppm, horse, fat at 0.02 ppm, horse, liver at 0.35 ppm, horse, meat at 0.02 ppm, horse, meat byproducts, except liver at 0.06 ppm, milk at 0.01 ppm, oat, forage at 0.10 ppm, oat, grain at 0.08 ppm, oat, hay at 0.50 ppm, oat, straw at 0.20 ppm, poultry, fat at 0.02 ppm, poultry, meat at 0.02 ppm, poultry, meat byproducts at 0.02 ppm, rye, forage at 0.20 ppm, rye, grain at 0.02 ppm, rye, straw at 0.20 ppm, sheep, fat at 0.02 ppm, sheep, liver at 0.35 ppm, sheep, meat at 0.02 ppm, sheep, meat byproducts, except liver at 0.06 ppm, wheat, forage at 0.20 ppm, wheat, grain at 0.02 ppm, wheat, hay at 0.80 ppm, and wheat, straw at 0.20 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.

For pyrasulfotole, aggregate exposure risk assessments were performed for the following scenarios: Acute aggregate exposure (food and drinking water), and chronic aggregate exposure (food and drinking water). Short- and intermediate-term assessments, which are used to evaluate aggregate dietary and residential exposures, were not performed because there are no registered or proposed residential non-food uses. Although pyrasulfotole is classified as “Suggestive Evidence of Carcinogenicity,” EPA determined that separate quantifications of cancer risks is not required noting that the progression of non-neoplastic related lesions in both the rats and mice was biologically plausible by non-genotoxic modes of action for both the corneal tumors and the bladder tumors. Therefore, the chronic RfD will be protective of cancer and non-cancer effects.

Pyrasulfotole belongs to a class of herbicides that inhibit the liver enzyme 4-hydroxyphenylpyruvate dioxygenase (HPPD), which is involved in the catabolism (metabolic breakdown) of tyrosine (an amino acid derived from proteins in the diet). Inhibition of HPPD can result in elevated tyrosine levels in the blood, a condition called tyrosinemia. HPPD-inhibiting herbicides have been found to cause a number of toxicities in laboratory animal studies including ocular, developmental, liver, and kidney effects. Of these toxicities, it is the ocular effect (corneal opacity) that is highly correlated with the elevated blood tyrosine levels. In fact, rats dosed with tyrosine alone show ocular opacities similar to those seen with HPPD inhibitors. Although the other toxicities may be associated with chemically-induced tyrosinemia, other mechanisms may also be involved.

There are marked differences among species in the ocular toxicity associated with inhibition of HPPD. Ocular effects following treatment with HPPD inhibitor herbicides are seen in the rat but not in the mouse. Monkeys also seem to be recalcitrant to the ocular toxicity induced by HPPD inhibition. The explanation of this species-specific response in ocular opacity is related to the species differences in the clearance of tyrosine. A metabolic pathway exists to remove tyrosine from the blood that involves a liver enzyme called tyrosine aminotransferase (TAT). In contrast to rats where ocular toxicity is observed following exposure to HPPD-inhibiting herbicides, mice and human are unlikely to achieve the levels of plasma tyrosine necessary to produce ocular opacities because the activity of TAT in these species is much greater compared to rats. Thus, humans and mice have a highly effective metabolic process for handling excess tyrosine.

HPPD inhibitors (e.g., Nitisinone) are used as an effective therapeutic agent to treat patients suffering from rare genetic diseases of tyrosine catabolism. Treatment starts in childhood but is often sustained throughout patient's lifetime. The human experience indicates that a therapeutic dose (1 mg/kg/day dose) of Nitisinone has an excellent safety record in infants, children, and adults and that serious adverse health outcomes have not been observed in a population followed for approximately a decade. Rarely, ocular effects are seen in patients with high plasma tyrosine levels; however these effects are transient and can be readily reversed upon adherence to a restricted protein diet. This indicates that an HPPD inhibitor in it of itself cannot easily overwhelm the tyrosine-clearance mechanism in humans.

Therefore, exposure to environmental residues of HPPD-inhibiting herbicides are unlikely to result in the high blood levels of tyrosine and ocular toxicity in humans due to an efficient metabolic process to handle excess tyrosine. Nonetheless, because EPA has not yet developed an alternate risk assessment endpoint, model, or cross-species extrapolation method for pyrasulfotole, EPA has assessed chronic risk from exposure to pyrasulfotole based on its ocular effects in rats. Due to the limited relevance to humans of this endpoint, this approach to assessing chronic risk for pyrasulfotole must be regarded as worst case. In the future, assessment of HPPD-inhibiting herbicides will consider more appropriate models and cross species extrapolation methods.

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 pyrasulfotole 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, entitled “Pyrasulfotole: Human Health Risk Assessment for Proposed Uses on Small Cereal Grains,” is available in the docket established by this action, (EPA-HQ-OPP-2006-1026).

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-, 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 pyrasulfotole used for human risk assessment is shown in Table 1. of this unit.

1. Dietary exposure from food and feed uses . In evaluating dietary exposure to pyrasulfotole, EPA assessed dietary exposures from pyrasulfotole 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 one-day or single exposure. 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 relied upon tolerance-level residues and assuming 100% crop treated information for all commodities.

ii. Chronic exposure . In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 1994-1996 and 1998 CSFII. As to residue levels in food, EPA relied upon tolerance-level residues and assuming 100% crop treated information for all commodities.

iii. Cancer . Pyrasulfotole has been classified by the EPA as having “Suggestive Evidence of Carcinogenic Potential,” based on increased incidences of corneal tumors in male rats at the highest dose tested (2,500 ppm) in the chronic toxicity/ carcinogenicity study in rat and urinary bladder transitional cell tumors in male and female mice at the highest dose tested (4,000 ppm) in the mouse carcinogenicity study. These tumors were observed at doses that were considered excessive due to increased mortality caused by urinary bladder stones. EPA noted that the progression of non-neoplastic related lesions in both the rats and mice was biologically plausible by non-genotoxic modes of action for both the corneal tumors and the bladder tumors. Therefore, the chronic RfD of 0.01 mg/kg/day, based on the rat chronic toxicity/carcinogenicity study (NOAEL= 25 ppm (1 mg/kg/day) and LOAEL of 250 ppm (10 mg/kg/day)) would be protective of both non-cancer and potential cancer precursor effects. Quantifications of separate cancer risk was not required.

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring data to complete a comprehensive dietary exposure analysis and risk assessment for pyrasulfotole 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 pyrasulfotole. 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 FIRST and SCI-GROW models, the estimated drinking water environmental concentrations (EDWCs) of pyrasulfotole for acute exposures are estimated to be 4.0 parts per billion (ppb) for surface water and 1.4 ppb for ground water. The EECs for chronic exposures are estimated to be 2.8 ppb for surface water and 1.4 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 4.0 ppb was used to access the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 2.8 ppb was used to access the contribution to drinking water.

The pyrasulfotole risk assessment team determined that the residue of concern in drinking water for risk assessment purposes is parent only. Pyrasulfotole-benzoic acid was identified as the only environmental degradate in the soil metabolism and terrestrial field dissipation studies. Based on available toxicology studies on pyrasulfotole-benzoic acid, EPA determined that it is not of toxicological concern, and thus, should not be included in the drinking water assessment for pyrasulfotole.

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). Pyrasulfotole is not proposed or 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.”

Pyrasulfotole belongs to a class of herbicides (including mesotrione, isoxaflutole, and topramezone) that inhibit the liver enzyme 4-hydroxyphenylpyruvate dioxygenase (HPPD). EPA has concluded that the ocular effects caused by these herbicides has limited relevance to humans. In the future, assessments of HPPD-inhibiting herbicides will consider more appropriate models and cross species extrapolation methods.

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 data base 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 . Increased quantitative susceptibility of offspring was observed in the rabbit developmental toxicity study, since offspring toxicity (skeletal anomalies/variations) was observed at a lower dose than maternal toxicity (decreased body weight gain, food consumption). No evidence of quantitative susceptibility following in utero and/or postnatal exposure was observed in the prenatal developmental toxicity study in rats, the developmental neurotoxicity (DNT) study in rats, or in the 2-generation rat reproductive toxicity study. Offspring toxicity (skeletal variations; decreased body weight (males)) was observed at the same dose as maternal toxicity (clinical signs, decreased body weight, enlarged placenta) in the prenatal developmental toxicity study in rats. Offspring toxicity (e.g., ocular toxicity, effects on learning/memory, effects on brain morphometry) was also observed at the same dose as maternal toxicity (ocular opacity) in the DNT study. Last, offspring toxicity (ocular toxicity) was observed at the same as or higher doses than parental toxicity (thyroid effects) in the 2-generation rat reproductive toxicity study.

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 toxicology database is complete.

ii. There are no residual uncertainties concerning pre- and postnatal toxicity. Clear NOAELs were established for all exposure scenarios and these are considered protective of the offspring susceptibility observed in the rabbit developmental toxicity study. The concern for increased susceptibility seen in rabbit developmental toxicity study is low because a) there is well established developmental NOAEL in the rabbit developmental toxicity study in rabbits protecting fetuses from skeletal anomalies/variations, b) the increased succeptibility was not seen in rat developmental toxicity study, developmental neurotoxicity study in rats and two generation reproduction study in rats, c) the NOAEL of the study chosen for the chronic RfD is 10x lower than the rabbit developmental toxicity study NOAEL (10 mg/kg/day).

iii. There are no registered or proposed uses of pyrasulfotole which would result in residential exposure.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% crop treated and tolerance-level residues for all proposed commodities. By using this screening-level assessment, the acute and chronic exposures/risks will not be underestimated. The dietary drinking water assessment (unrefined estimates) utilizes values generated by model and associated modeling parameters which are designed to provide conservative, health protective, high-end estimates of water concentrations.

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-, 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 pyrasulfotole and pyrasulfotole-desmethyl will occupy 2% of the aPAD for the general U.S. population and at 4% of the aPAD for children 1-2 years old, the most highly exposed population subgroup.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to pyrasulfotole and pyrasulfotole-desmethyl from food and water will utilize 2% of the cPAD for the general U.S. population and at 7% of the cPAD for children 1-2 years old, the most highly exposed population subgroup.

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

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). Pyrasulfotole 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.

5. Aggregate cancer risk for U.S. population . Pyrasulfotole has been classified by EPA as having “Suggestive Evidence of Carcinogenic Potential,” based on increased incidences of corneal tumors in male rats at the highest dose tested (2,500 ppm) in the chronic toxicity/carcinogenicity study in rat and urinary bladder transitional cell tumors in male and female mice at the highest dose tested (4,000 ppm) in the mouse carcinogenicity study. The chronic RfD of 0.01 mg/kg/day, based on the rat chronic toxicity/carcinogenicity study (NOAEL = 25 ppm (1 mg/kg/day) and LOAEL of 250 ppm (10 mg/kg/day)) would be protective of both non-cancer and cancer effects.

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 pyrasulfotole and pyrasulfotole-desmethyl residues.

Adequate enforcement methodology high-performance liquid chromatography (HPLC)/mass spectrometry (MS)/MS method (Method AI-004-A05-01) is available to enforce the tolerance expression. The method 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 Mexican, Canadian, or Codex MRLs for the proposed uses. Pyrasulfotole was evaluated as part of a trilateral joint review with Canada and Australia. All EPA-recommended tolerances are the same as those being established in Canada and Australia. Therefore, harmonization is not an issue at this time.

Therefore, the tolerance is established for residues of pyrasulfotole and pyrasulfotole-desmethyl, (5-hydroxy-1,3-dimethyl-1 H -pyrazol-4-yl)[2-(methylsulfonyl)-4-(trifluoromethyl)phenyl]methanone, and its metabolite, 5-hydroxy-3-methyl-1 H -pyrazol-4-yl) [2-methylsulfornyl)-4-(trifluoromethyl)phenyl]methanone, in or on aspirated grain fractions at 0.40 ppm, barley, grain at 0.02 ppm, barley, hay at 0.30 ppm, barley, straw at 0.20 ppm, cattle, fat at 0.02 ppm, cattle, liver at 0.35 ppm, cattle, meat at 0.02 ppm, cattle, meat byproducts, except liver at 0.06 ppm, eggs at 0.02 ppm, goat, fat at 0.02 ppm, goat meat at 0.02 ppm, goat, meat byproducts, except liver at 0.06 ppm, hog, fat at 0.02 ppm, hog, meat at 0.02 ppm, hog, meat byproducts at 0.02 ppm, horse, fat at 0.02 ppm, horse, liver at 0.35 ppm, horse, meat at 0.02 ppm, horse, meat byproducts, except liver at 0.06 ppm, milk at 0.01 ppm, oat, forage at 0.10 ppm, oat, grain at 0.08 ppm, oat, hay at 0.50 ppm, oat, straw at 0.20 ppm, poultry, fat at 0.02 ppm, poultry, meat at 0.02 ppm, poultry, meat byproducts at 0.02 ppm, rye, forage at 0.20 ppm, rye, grain at 0.02 ppm, rye, straw at 0.20 ppm, sheep, fat at 0.02 ppm, sheep, liver at 0.35 ppm, sheep, meat at 0.02 ppm, sheep, meat byproducts, except liver at 0.06 ppm, wheat, forage at 0.20 ppm, wheat, grain at 0.02 ppm, wheat, hay at 0.80 ppm, and wheat, straw at 0.20 ppm.

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:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. 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-2006-0329 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 October 15, 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-2006-0329, 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 June 14, 2006 (71 FR 34338) (FRL-8059-8), EPA issued a notice pursuant to section 408(d)(3) of the FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 6E7050) by Bio-Oz Biotechnologies Ltd., Kibbutz Yad Mordechai, DN Hof Ashkelon 79145, Israel. The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of ZYMV-WK strain. This notice included a summary of the petition prepared by the petitioner Bio-Oz Biotechnologies Ltd. There were no comments received in response to the notice of filing.

Section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(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. Pursuant to section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C), which require 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. . . . ” Additionally, section 408(b)(2)(D) of the FFDCA requires that 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.”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information 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.

ZYMV-WK is a potyvirus, a type of plant virus, and potyviruses have no known toxicity or pathogenicity to any organism other than plants. They are unable to infect animals because they lack binding site receptors on cell surfaces common to animal viruses. Potyviruses enter plant cells only through open wounds (i.e., wounds produced by feeding insects, such as aphids, or by mechanical methods) or through cell-to-cell transfer (Frankel-Conrat, et.al. , 1988). Nearly all living things are routinely exposed to plant viruses, including potyviruses, through plants and plant products (e.g., foods). Naturally occurring strains of ZYMV are known to infect about 18 plant species, within seven different families (Plant Viruses Online). The intended microbial pesticide, ZYMV-WK is reported as a naturally-occurring, weakened strain of ZYMV, and was first recovered from infected zucchini plants in France (LeCoq et al. , 1991). Consequently humans are likely already exposed to ZYMV-WK through the diet. Throughout the available literature, there are no reports of adverse effects in animals resulting from ingestion of, or exposure to these viruses. Although severe viral strains of the ZYMV may replicate in aphids ZYMV-WK, does not replicate in aphids and is transmitted poorly by these insects (LeCoq et al. , 1991).

ZYMV-WK strain is a natural plant virus isolate and replicates only in susceptible plant hosts, such as the cucurbitaceae, e.g., zucchini and cantaloupe. This weak strain of ZYMV cucurbitaceae does not cause overt plant disease and appears to stimulate plant defenses against severe strains of ZYMV. In addition, there are no reports of adverse effects in humans that handle and administer the viruses, or of the laboratory animals exposed to this virus developing any nasal, eye, skin, or pulmonary allergic reactions, or any other adverse reactions.

In support of this tolerance exemption, mammalian toxicology requirements were satisfied by publicly available information submitted by Bio-Oz Biotechnologies, Ltd., summarized in the preceding paragraph. Specifically, the information provided supports the lack of toxicity of potyviruses to mammals and humans, plus the fact that only certain plants (and no animals) are susceptible to ZYMV-WK.

1. Acute oral toxicity/pathogenicity (OPPTS 885.3050) . To satisfy this requirement, the registrant submitted supporting public literature in lieu of a laboratory animal study, which documents that plant viruses, including ZYMV-WK, are found in food ingested by humans and animals. According to the submitted published literature, no known adverse effects or deaths have occurred in any species as a result of dietary exposure. Furthermore, there are “no reports of ill-health, sensitization, pathogenicity or allergenicity” from these plant viruses, to humans or other vertebrates even after use of ZYMV-WK as a pesticide in the EU and Israel. Plant viruses are not known to infect mammalian cells, nor replicate in mammals.

2. Acute dermal toxicity/pathogenicity (OPPTS 885.3100) and primary dermal irritation (OPPTS harmonized guideline 152-34) . The registrant submitted supporting public literature in lieu of a laboratory animal study to fulfill this requirement, documenting that plant viruses, including ZYMV-WK are ubiquitous in susceptible host plants, and are not known to cause acute dermal toxicity or pathogenicity to mammals. Furthermore, there are “no reports of ill-health, sensitization or allergenicity” from these plant viruses, to humans or other vertebrates even after use of ZYMV-WK as a pesticide in the EU and Israel.

3. Primary eye irritation (OPPTS harmonized guideline 152-35) . The registrant submitted supporting public literature rather than a study to fulfill this requirement, showing that plant viruses are ubiquitous in plants, and they are not known to cause acute eye irritation or pathogenicity to mammals. Furthermore, routine exposures to ZYMV-WK have not led to any known adverse effects; there are “no reports of ill-health, sensitization or allergenicity” from these plant viruses, to humans or other vertebrates even after use of ZYMV-WK as a pesticide in the EU and Israel.

4. Acute pulmonary toxicity/pathogenicity (OPPTS 885.3150) . To fulfill this requirement, the registrant submitted supporting public literature in lieu of a laboratory animal study, showing that plant viruses, including ZYMV-WK, are ubiquitous in susceptible host plants, and they are not known to cause acute pulmonary toxicity or pathogenicity to mammals. There are “no reports of ill-health, sensitization or allergenicity” from these plant viruses, to humans or other vertebrates even after use of ZYMV-WK as a pesticide in the EU and Israel.

5. Acute injection toxicity/pathogenicity (OPPTS 885.3200) . To fulfill this requirement, the registrant submitted supporting public literature in lieu of a laboratory animal study, documenting the following:

i. ZYMV-WK, like all potyviruses may evoke immune responses and produce antibodies if properly injected into laboratory animals such as rabbits, mice, chickens, and guinea pigs without causing adverse effects to the animals, and;

ii. There are no reports of humans that handle and administer ZYMV-WK, or laboratory animals developing adverse reactions to the virus. There are “no reports of ill-health, sensitization or allergenicity” from these plant viruses, to humans or other vertebrates even after use of ZYMV-WK as a pesticide in the EU and Israel.

6. Hypersensitivity incidents (OPPTS 885.3400) . Workers handling ZYMV-WK on a daily basis since 1986 have not had a single incidence of hypersensitivity. There are no reports of hypersensitivity in humans or other animals due to potyviruses, in the literature.

7. Cell culture (OPPTS 885.3500) . To satisfy this requirement, the registrant submitted the following information, supported by public literature. Potyviruses such as ZYMV-WK are unable to infect animal cells since the cell surface plays an important role in viral infection of animal cells. During infection, animal viruses interact specifically with receptors on the animal cell surface. Potyviruses lack recognition for animal infectivity receptors and only enter plant cells through open wounds or via cell-to-cell transfer through intercellular connections.

8. Immune response (OPPTS harmonized guideline 152-38) . To fulfill this requirement, the registrant submitted supporting public literature in lieu of a laboratory animal study, documenting the following: No health effects were noticed when infectious plant viruses, including ZYMV, were repeatedly injected into rabbits over several weeks for polyclonal antibody production.

In summary, ZYMV-WK is ubiquitous in susceptible host plants and is not known to cause toxicity or pathogenicity to mammals. Based on the published literature, in accordance with Tier I toxicology data requirements set forth in 40 CFR 158.740(c), the Tier II and Tier III toxicology data requirements were not triggered in connection with this action.

In examining aggregate exposure, section 408 of the FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non- occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

1. Food . Virus-infected food plants have always been a part of the human and domestic animal food supply (Dewan and Pearson, 1995; McKinney, 1929; Provvidenti and Gonsalves, 1984; Palukaitis, 1991; Jones et al. , 1934; Beemster and de Bokx, 1987). Most plants may be infected by at least one virus, and components of plant viruses are often found in the produce of crop plants. Even plants that show no disease symptoms are often found to be infected with viruses (Jones et al. , 1934; Fulton, 1986). In addition, a common agricultural practice used since the 1920s for protection against viral disease involves intentionally inoculating healthy plants with a mild form of a virus in order to prevent infection by a more virulent form (Fulton, 1986). A great deal of information supports the ubiquitous appearance of plant viruses in foods, and to date there have been no reports of adverse human or animal health effects associated with consumption of plant viruses in food. Furthermore, the proposed section 3 registration and ensuing commercial use is not expected to result in increased exposures of ZYMV-WK to the general population: The intended use of ZYMV-WK is within semi-contained environments and consequently exposures to humans are limited. Even if there were increased exposures to residues of ZYMV-WK as a result of other pesticidal uses, there is a reasonable certainty that no harm will result to human health because of the lack of toxicity or pathogenicity of ZYMV-WK to humans.

2. Drinking water exposure . ZYMV-WK is not intended for use in drinking water. However, in the event that ZYMV-WK would reach water consumed by humans, for the reasons enumerated above, the Agency concludes that there is reasonable certainty that no harm will result to humans from such exposures through water because of the lack of toxicity or pathogenicity of ZYMV-WK to humans.

EPA concludes that dermal or inhalation exposure to the general population as a result of this section 3 registration is not likely to occur, based on the proposed uses in semi-contained environments and limited exposure to young cucurbit crop plants. Moreover, the general population, including infants and children, are exposed to plant viruses daily in food with no known adverse effects ever being reported. Therefore, the Agency concludes that in the unlikely event that there is non-occupational, non-dietary exposure to ZYMV-WK, such exposure would pose no risks to the general population, including infants and children.

Section 408(b)(2)(D)(v) of FFDCA requires that EPA consider available information on the cumulative effects of a particular pesticide's residues and other substances that have a common mechanism of toxicity when establishing, modifying, or revoking a tolerance. These considerations include the possible cumulative effects on infants and children of such residues and other substances with a common mode of toxicity. Because ZYMV-WK does not have any toxic or pathogenic effects, it cannot share a common mechanism of toxicity with other substances. Therefore, section 408(b)(2)(D)(v) does not apply.

1. U.S. population . For all of the reasons discussed above, there is reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of ZYMV-WK. This includes all anticipated dietary exposures and all other exposures for which there is reliable information.

2. Infants and children . FFDCA section 408(b)(2)(C) provides that EPA shall apply an additional tenfold margin of exposure (MOE) for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure, unless EPA determines that a different MOE will be safe for infants and children. MOEs, which are often referred to as uncertainty (safety) factors, are incorporated into EPA risk assessments either directly, or through the use of a MOE analysis or by using uncertainty factors in calculating a dose level that poses no appreciable risk. As previously indicated in the toxicological profile, humans, including infants and children, have been exposed to plant viruses through food, where they are commonly found, with no known or reported adverse effects. As discussed above, the Agency has concluded that ZYMV-WK is non-toxic to mammals, including infants and children. Because there are no threshold levels of concern to infants, children, and adults when ZYMV-WK is used as labeled, the Agency concludes that the additional MOE is not necessary to protect infants and children.

At this time, the Agency is not requiring information on the endocrine effects of this active ingredient, ZYMV-WK. The Agency has considered, among other relevant factors, available information concerning whether the weak plant virus may have an effect in humans similar to an effect produced by a naturally occurring estrogen or other endocrine effects. Plant viruses cannot infect mammals, and there is no known metabolite that acts as an “endocrine disruptor” produced by this virus. Therefore, there is no impact via endocrine-related effects on the Agency's safety findings in this final rule.

Through this action, the Agency is proposing to establish an exemption from the requirement of a tolerance for residues of ZYMV-WK on cucurbit crops for the purposes of a FIFRA section 3 registration. The Agency reached this decision based on the reasons discussed above, including lack of toxicity to mammals, and therefore, concludes that an analytical method for detecting ZYMV-WK is not required for enforcement purposes.

No Codex maximum residue levels exist for the virus ZYMV-WK.

• Beemster ABR, de Bokx JA. Survey of properties and symptoms. In: De Bokx JA, van der Want JPH. Viruses of Potatoes and Seed Potato Production. Wageningen: Pudoc, 1987:84-93.

• Braverman, M. Acute Oral, Dermal, Pulmonary and Injection Toxicity/Pathogenicity Cell Culture, Acute Toxicology Tier 2, Subchronic Toxicity/Pathogenicity, Reproductive and Fertility Effects. 2005. OPP/EPA MRID No. 467854-19

• Dewan, C, Pearson MN. Natural field infection of garlic by garlic yellow streak virus in the Pukekohe area of New Zealand and associated problems with the introduction of new garlic cultivars. New Zealand Journal of Crop and Horticultural Science 1995; 23:97-102 .

• Fraenkel-Conrat, H., Kimball, P.C., and Levy, J.A. 1988. Virology, 2nd edition. Prentice Hall, Englewood Cliffs, NJ (virus cellular receptors and cell membrane changes, p. 299-300).

• Fulton R. Practices and precautions in the use of cross protection for plant virus disease control. Annual Review of Phytopathology 1986; 24:67-81.

• Jones L, Anderson E, Burnett G. The latent virus of potatoes. Journal of Phytopathology 1934; 7:93-115.

• McKinney HH. Mosaic diseases in the Canary Islands, West Africa, and Gibraltar. Journal of Agricultural Research 1929; 39:557-78 .

• Palukaitis P. Virus-mediated genetic transfer in plants. In: Levin M, Strauss H. Risk Assessment in Genetic Engineering. New York: McGraw-Hill, 1991:140-62.

• Provvidenti R, Gonsalves D. Occurrence of ZYMV in cucurbits from Connecticut, New York, Florida, and California. Plant Disease 1984; 68:443-6. Palukaitis P. Virus-mediated genetic transfer in plants. In: Levin M, Strauss H. Risk Assessment in Genetic Engineering. New York: McGraw-Hill, 1991:140-62.

Plant viruses Online, 2007. http://image.fs.uidaho.edu/vide/descr909.htm

This final rule establishes an exemption from the requirement of 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 exemption from the requirement of a 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:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. 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-2007-0220 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 October 15, 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-2007-0220, 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 telephone number is (703) 305-5805.

In the Federal Register of December 17, 2003 (67 FR 70251) (FRL-7336-4), EPA issued a notice pursuant to section 408 of the FFDCA, 21 U.S.C. 346a, as amended by the FQPA (Public Law 104-170), announcing the filing of a pesticide petition (PP 3E6656) by Dow Chemical Company, Building 1803, Midland, Michigan 48674. The petition requested that 40 CFR 180.920 be amended by establishing an exemption from the requirement of a tolerance for residues of cis-isomer of 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride. That notice included a summary of the petition prepared by the petitioner. Dow Chemical Company requested the use of cis-isomer of 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride as a preservative at 0.14% by weight or less in pesticide formulations. No comments were received in response to the notice of filing.

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for 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(c)(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, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information 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. The nature of the toxic effects caused by cis-isomer of 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride are discussed in this unit. EPA has sufficient data to assess the hazards of and make a determination on aggregate exposure for the chemical.The following provides a brief summary of the risk assessment and conclusions for the Agency's review of cis-isomer of 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride. The full decision document for this action is available on EPA's Electronic Docket at http://www.regulations.gov/ under docket number EPA-HQ-OPP-2007-0220.

The Agency reviewed the available information on cis-isomer of 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride submitted by the petitioner as well as additional information available to EPA and the data evaluated in the 1995 Dowicil®CTAC RED. The toxicity database is sufficient for cis-isomer of 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride. In laboratory animal studies measuring acute toxicity, cis-isomer of 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride is slightly toxic in acute inhalation and oral toxicity studies. Dermal effects were observed in rabbits at close to the limit dose (no observed adverse effect level of 1,000 milligram/kilogram/day (mg/kg/day)) in a subchronic study, and in a dermal acute toxicity study the LD 50 was determined to be 923 mg/day. The chemical was mutagenic in the in vitro Chinese hamster ovary cell HGPRT (Hypoxanthine guanine phophoribosyl transferase)forward mutation assay with activation, but was nonmutagenic without activation. It was negative in two other mutagenicity studies. Developmental effects were observed at or above the level of maternal toxicity (optic malformations may be linked to genetic issues rather than exposure to the chemical). Chronic toxicity studies are not available, nevertheless, sufficient information is available in sub-chronic and developmental toxicity studies.

The potential for exposure to residues of cis-isomer of 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride is adequately characterized based on the chemical's non-persistent nature and ready dissipation in the environment and the low use rate. Exposures from residues in food and drinking water are expected to be minimal. Residential exposure (inhalation and dermal) is also expected to be minimal from the use of the chemical in pesticides considering the low application rate. Residential exposures from non-pesticides uses are not anticipated to be of concern considering the low dermal toxicity findings. The Agency concludes dietary and residential exposures of concern are not anticipated from the inert ingredient use of cis-isomer of 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride considering its non-persistent nature in the environment, low toxicity, and the limitations imposed on its proposed use under 40 CFR 180.920 as a preservative at 0.14% by weight (wt) or less of the pesticide formulation.

Section 408 of the FFDCA provides that EPA shall apply an additional 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 that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. The toxicity database is sufficient for cis-isomer of 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride and potential exposure is adequately characterized based on the low use rate. In terms of hazard, there are low concerns and no residual uncertainties regarding prenatal and/or postnatal 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 cis-isomer of 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride and any other substances, and the chemical 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 cis-isomer of 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride 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. Analytical methods . Adequate enforcement methodology is available to enforce the tolerance exemption expression. The method 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 . Residues are not expected because of the chemical's ready degradation in the environment and the low amount that will be permitted in the pesticide formulation (limited to 0.14% by weight (wt) or less).

2. International tolerances . The Agency is not aware of any country requiring a tolerance for cis-isomer of 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride (CAS Reg. No. 51229-78-8) nor have any CODEX Maximum Residue Levels (MRLs) been established for any food crops at this time.

Based on the information in this preamble, EPA concludes that there is a reasonable certainty of no harm to the general population, including infants and children, from aggregate exposure to residues of cis-isomer of 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride. Accordingly, EPA finds that exempting cis-isomer of 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride from the requirement of a tolerance will be safe. EPA is establishing a tolerance exemption in 40 CFR 180.920 for cis-isomer of 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride when it is used as an inert ingredient as a preservative at 0.14% by weight or less in pesticide formulations.

This final rule establishes a tolerance exemption 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 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 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-2005-0545 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 October 15, 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-2005-0545, 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 April 14, 2006 (71 FR 19509) (FRL-7771-7), 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 5F6994) by Syngenta Crop Protection, Inc., 410 Swing Rd., Greensboro, NC 27409 and IR-4, 681 U.S. Highway #1 South, North Brunswick, NJ 08902-3390. The petition requested that 40 CFR 180.438 be amended by establishing a tolerance for combined residues of the insecticide lambda-cyhalothrin, ( S )-α-cyano-3-phenoxybenzyl-( Z )-(1 R ,3 R )-3-(2-chloro-3,3,3-trifluoroprop-1-enyl)-2,2-dimethylcyclopropanecarboxylate and ( R )-α-cyano-3-phenoxybenzyl-( Z )-(1 S ,3 S )-3-(2-chloro-3,3,3-trifluoroprop-1-enyl)-2,2-dimethylcyclopropanecarboxylate and the epimer of lambda-cyhalothrin, ( S )-α-cyano-3-phenoxybenzyl-( Z )-(1 S ,3 S )-3-(2-chloro-3,3,3-trifluoroprop-1-enyl)-2,2-dimethylcyclopropanecarboxylate and ( R )-α-cyano-3-phenoxybenzyl-( Z )-(1 S ,3 S )-3-(2-chloro-3,3,3-trifluoroprop-1-enyl)-2,2-dimethylcyclopropanecarboxylate in or on food commodity crop groupings: Cucurbit vegetables (Crop Group 9) at 0.05 parts per million (ppm); grass, forage, fodder, hay (Crop Group 17) at 9.0 ppm; tuberous and corm vegetables (Crop Subgroup 1-C) at 0.01 ppm; barley, buckwheat, oat, rye, grain at 0.05 ppm; barley, bran at 0.2 ppm; oat, rye, forage at 2.0 ppm; barley, oat, hay at 2.0 ppm; barley, oat, rye, straw at 2.0ppm; and wild rice, grain at 1.0 ppm. That notice referenced a summary of the petition prepared by Syngenta Crop Protection, Inc., the registrant, which is available to the public in the docket, http://www.regulations.gov . No comments were received on the notice of filing.

The April 14, 2006 notice announcing the pesticide petition from Syngenta Crop Protection, Inc. and IR-4 inadvertently left out the PP number for the IR-4 petition though the commodities IR-4 requested were proposed. There are actually two petitions (PP 3E6593 and PP 5F6994). PP 3E6593 submitted by IR-4 requested that 40 CFR 180.438 be amended by establishing a tolerance for combined residues of the insecticide lambda-cyhalothrin and its epimer in or on food commodities: Barley, buckwheat, oat, rye, grain at 0.05 ppm; barley, bran at 0.2 ppm; oat, rye, forage at 2.0 ppm; barley, oat, hay at 2.0 ppm; barley, oat, rye, straw at 2.0 ppm; and wild rice, grain at 1.0 ppm. PP 5F6994 submitted by Syngenta Crop Protection, Inc., requested that 40 CFR 180.438 be amended by establishing a tolerance for combined residues of the insecticide lambda-cyhalothrin and its epimer in or on food commodity crop groupings: Cucurbit vegetables (Crop Group 9) at 0.05 ppm; grass, forage, fodder, hay (Crop Group 17) at 9.0 ppm; tuberous and corm vegetables (Crop Subgroup 1-C) at 0.01 ppm.

In the Federal Register of October 11, 2006 (71 FR 59780) (FRL-8097-5), 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 6E7077) by Syngenta Crop Protection, Inc., P.O. Box 18300, Greensboro, NC 27419-8300. The petition requested that 40 CFR 180.438 be amended by establishing a tolerance for the combined residues of the insecticide lambda-cyhalothrin in or on pistachio at 0.05 ppm. That notice referenced a summary of the petition prepared by Syngenta Crop Protection, Inc., the registrant, which is available to the public in the docket, http://www.regulations.gov . There were no comments received in response to the notice of filing.

Section 408(b)(2)(A)(i) of 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 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 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 FFDCA by the Food Quality Protection Act (FQPA) of 1996.

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA 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 the combined residues of lambda-cyhalothrin in or on cucurbit vegetables (Crop Group 9) at 0.05 ppm; grass, forage, fodder and hay (Crop Group 17) at 7.0 ppm; tuberous and corm vegetables (Crop Subgroup 1C) at 0.02 ppm; barley, grain at 0.05 ppm; buckwheat, grain at 0.05 ppm; oat, grain at 0.05 ppm; rye, grain at 0.05 ppm; barley, bran at 0.2 ppm; rye, bran at 0.2 ppm; oat, forage at 2.0 ppm; rye, forage at 2.0 ppm; barley, hay at 2.0 ppm; oat, hay at 2.0 ppm; barley, straw at 2.0 ppm; oat, straw at 2.0 ppm; rye, straw at 2.0 ppm; rice, wild, grain at 1.0 ppm; pistachio at 0.05 ppm; hog, fat at 0.2 ppm; hog, meat at 0.01 ppm; hog, meat-byproducts at 0.02 ppm; and milk, fat at 10.0 ppm (reflecting 0.4 ppm in whole milk). 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 lambda-cyhalothrin as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in the final rule published in the Federal Register of April 8, 2004 (69 FR 18480) (FRL-7353-4).

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 UFs. Short-, 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 UFs 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 lambda-cyhalothrin used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of April 8, 2004 (69 FR 18480) (FRL-7353-4).

1. Dietary exposure from food and feed uses . In evaluating dietary exposure to lambda-cyhalothrin, EPA considered exposure under the petitioned-for tolerances as well as all existing lambda-cyhalothrin tolerances in (40 CFR 180.438). EPA assessed dietary exposures from lambda-cyhalothrin 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 the Dietary Exposure Evaluation Model (DEEM-FCID (TM) , Version 2.03) which uses food consumption information from the United States Department of Agriculture’s (USDA) 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). A refined acute probabilistic dietary exposure assessment was performed for lambda-cyhalothrin which included all existing and proposed food uses and drinking water. The acute dietary exposure assessment incorporated processing factors and percent crop treated (PCT) estimates. Acute anticipated residues were derived from USDA’s Pesticide Data Program (PDP) monitoring data, field trial studies, and a market basket survey for beef-fat.

ii. Chronic exposure . In conducting the chronic dietary exposure assessment, EPA used DEEM-FCID (TM) , Version 2.03 which uses food consumption information from the USDA’s 1994-1996 and 1998 CSFII. As to residue levels in food, EPA conducted a refined chronic dietary exposure assessment for lambda-cyhalothrin to support all existing and proposed food uses, utilizing a single-point estimate of anticipated residues for food and drinking water. The chronic dietary exposure assessment incorporated processing factors and PCT estimates. Chronic anticipated residues were derived from PDP monitoring data, field trial studies, and a market basket survey for beef-fat.

iii. Cancer . Lambda-cyhalothrin is classified as “not likely to be carcinogenic to humans.” Therefore, there is no cancer risk associated with existing or proposed uses.

iv. Anticipated residue and percent crop treated (PCT) information . Section 408(b)(2)(E) of 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 FFDCA 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 this tolerance.

Section 408(b)(2)(F) of 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.

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:

PCT estimates of agricultural uses for lambda-cyhalothrin were obtained in the form of a screening-level usage assessment (SLUA), based on data years 1999-2004. Average and maximum values for percent crop treated data were used in the chronic and acute analyses, respectively, for the following commodities with established tolerances: Almonds (5 chronic, 5 acute), Apples (5 chronic, 10 acute), Beans, Green (10 chronic, 20 acute), Broccoli (10 chronic, 20 acute), Cabbage (30 chronic, 45 acute), Canola/Rapeseed (1 chronic, 2.5 acute), Cauliflower (20 chronic, 30 acute), Cherries (5 chronic, 15 acute), Corn (1 chronic, 2.5 acute), Cotton (10 chronic, 10 acute), Dry Beans/Peas (1 chronic, 2.5 acute), Garlic (10 chronic, 30 acute), Lettuce (30 chronic, 45 acute), Onions (50 chronic, 55 acute), Peaches (5 chronic, 10 acute), Peanuts (5 chronic, 10 acute), Pears (15 chronic, 30 acute), Peas, Green (1 chronic, 2.5 acute), Pecans (1 chronic, 5 acute), Peppers (5 chronic, 15 acute), Prunes and Plums (5 chronic, 5 acute), Rice (15 chronic, 30 acute), Sorghum (1 chronic, 2.5 acute), Soybeans (5 chronic, 10 acute), Sugarcane (5 chronic, 10 acute), Sunflowers (10 chronic, 20 acute), Sweet Corn (45 chronic, 60 acute), Tomatoes (20 chronic, 20 acute), and Wheat (1 chronic, 2.5 acute). For all other commodities and for new uses, 100% PCT was assumed. Tolerance level values were used for the following commodities: Okra, eggplant, poultry, tree nuts group (crop group 14) except almonds and pecans, and tuberous and corm vegetables subgroup (crop subgroup 1C) except potatoes.

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 5% 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 5%. 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 6 years.

The Agency believes that the three conditions listed in Unit III.C.1.iv. 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 lambda-cyhalothrin 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 lambda-cyhalothrin 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 lambda-cyhalothrin. 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 First Index Reservoir Screening Tool (FIRST) and Screening Concentrations in Groundwater (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of lambda-cyhalothrin for acute exposures are estimated to be 5.35 parts per billion (ppb) for surface water and 0.00336 ppb for ground water. The EECs for chronic exposures are estimated to be 0.130 ppb for surface water and 0.00336 ppb for ground water. The EDWCs for lambda-cyhalothrin were calculated based on a maximum application rate of 0.5 pounds active ingredient per acre per season (lb a.i./A/season) for orchards (ground application) for surface and groundwater concentrations. A default percent crop area (PCA) factor of 0.87 (87%) was applied to the orchards scenario. The orchards scenario using the FIRST model produced the highest concentrations.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 5.35 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 0.130 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).

Lambda-cyhalothrin is currently registered for the following residential non-dietary sites: Ornamental gardens, lawns, landscapes, turf, golf courses, and general insect control (spot treatments, and crack and crevice treatments) in, around, and on buildings, structures, and immediate surroundings. All registered products, except for one aerosol can product, are limited to use only by certified applicators. As such, this assessment ADDRESSES the single-residential handler scenario for aerosol can users, and post-application scenarios associated with any use in a residential environment. Both short-term and intermediate-term exposures are possible.

For the residential assessment, existing uses on turf, in gardens, on golf courses, and for structural pest control were considered, but a quantitative calculation was only completed for post-application exposure on treated turf. The Agency used a conservative screening-level approach to address the risks associated with the use of the aerosol can product of lambda-cyhalothrin that can be purchased and used by homeowners.

A screening-level quantitative calculation was completed for post-application exposure on treated turf only because this scenario is expected to have the highest associated exposures of all residential exposures. EPA believes that the selected post-application assessment on lawns for children is protective for all residential exposures (even the aerosol can handler scenario) because the dose levels for children playing on treated lawns are thought to exceed those expected for all other scenarios (lawn exposures for children represents the worst-case scenario). This approach is based on the following conservative considerations:

i. EPA assumed that children contacted lawns immediately after application of lawn product and thus there was no dissipation of residues from the treated lawn.

ii. EPA estimated dermal exposure based on a high duration of exposure on the lawn and an intensity of activity that results in a high degree of contact with the treated lawn.

iii. EPA assumed that the pesticide was applied at the maximum application rate.

4. Cumulative effects from substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) of 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.”

Lambda-cyhalothrin is a member of the pyrethroid class of pesticides. Although all pyrethroids alter nerve function by modifying the normal biochemistry and physiology of nerve membrane sodium channels, EPA is not currently following a cumulative risk approach (based on a common mechanism of toxicity) for the pyrethroids. Although pyrethroids interact with sodium channels, there are multiple types of sodium channels, and it is currently unknown whether pyrethroids have similar effects on all channels. Nor is there a clear understanding of effects on key downstream neuronal function (nerve excitability), nor do we understand how these key events interact to produce their compound specific patterns of neurotoxicity. There is ongoing research by the EPA’s Office of Research and Development (and pyrethroid registrants) to evaluate the differential biochemical and physiological actions of pyrethroids in mammals. When available, the Agency will consider this research, and make a determination of common mechanism as a basis for assessing cumulative risk. 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 UFs and/or special FQPA safety factors, as appropriate.

2. The completeness of the database . The toxicology database is considered complete for the purposes of an FQPA risk assessment. Based on the developmental studies in rats and rabbits, and the 3-generation and neurodevelopmental studies in rats, there is no evidence of increased susceptibility. The neurotoxicity observed in adult animal studies raised a concern for potential neurodevelopmental effects. A rat developmental neurotoxicity (DNT) study is available. In this study, the lowest dose showing neurotoxicity in the offspring (effects on mortality, body weights, body weight gains, learning, learning and memory, and brain morphometry) is 10 milligram/kilogram body weight/day (mg/kg bw/day), with a NOAEL of 4 mg/kg bw/day. Effects in offspring and adult animals are found at a similar dose based on body weight decreases. It should be noted that some of the parameters evaluated in this DNT study were regarded as acceptable but several others were not, leading to a study classification of “unacceptable.” The study deficiencies which, taken together, led to the unacceptable classification include:

i. Statistical analyses that adjusted for body weights after treatment had begun.

ii. An inadequate assessment of motor activity.

iii. An inadequate assessment of auditory startle in postnal day (PND) 61 females.

iv. Missing low- and mid-dose morphometry data.

The exposure assessments are based on reliable data and reasonable worst-case assumptions, and are not likely to underestimate exposure. Reliable data on anticipated dietary residues was relied upon including crop field trial studies and monitoring data. Conservative ground and surface water modeling estimates were used. Similarly, conservative Residential Standard Operating Procedures 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 lambda-cyhalothrin.

3. Prenatal and postnatal sensitivity . No quantitative or qualitative evidence of increased susceptibility of rat or rabbit fetuses to in utero exposure in the developmental studies was observed. No developmental toxicity was observed in either of these studies. No quantitative or qualitative evidence of increased susceptibility was observed in the 3-generation reproduction study in rats. Offspring toxicity (decreased pup weight and pup weight gain) was observed in the reproduction study at the same dose level as parental toxicity (decreased body weight and body weight gain). These effects are not considered to be more severe than the effects in the parents.

EPA has received a DNT for lambda-cyhalothrin (Master Record Identification Number 46449102), which was classified as unacceptable/guideline due to inadequacies in some of the developmental parameters tested. Nonetheless, for the reasons noted in Unit VII.D.2., EPA does not believe that correction of the deficiencies in this study would meaningfully change its evaluation of the risk posed by lambda-cyhalothrin and is not requiring that the study be repeated. In any event, if a 10-fold factor is applied to this study’s NOAEL, (i.e., 4 mg/kg bw/day) to account for the scientific limitations of the study, the resulting value is 0.4 mg/kg bw/day. This estimate of 0.4 mg/kg/day is similar to the doses from the chronic dog study used for risk assessment (i.e., 0.5 mg/kg/day for acute dietary exposure scenarios and 0.1 mg/kg/day for chronic dietary exposure scenarios). Therefore, EPA concludes that using the NOAELs from the dog study would not underestimate risks to infants and children from exposure to lambda-cyhalothrin, and consequently, a repeat rat DNT study is not required.

4. 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 lambda-cyhalothrin is considered complete for the purpose of an FQPA assessment.

ii. All doses and endpoints for risk assessment are based on neurotoxic effects seen in the dog, widely known as the most sensitive test species for pyrethroids.

iii. There is no evidence that lambda-cyhalothrin results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study. The acceptable parameters of the developmental neurotoxicity study in rats do not indicate increased susceptibility to pups exposed in utero .

iv. The exposure assessments are based on reliable data and reasonable worst-case assumptions, and are not likely to underestimate exposure.

Based on all of the considerations in Unit III.D.3., there is not a need to retain the additional 10X safety factor for children. Application of the 10X intraspecies uncertainty factor (which accounts for the possibility that a subpopulation may be 10 times more sensitive than the average individual) and a 10X interspecies factor (which accounts for the possibility that humans may be 10 times more sensitive than animals) to the dog NOAEL (i.e., the most sensitive species) should assure protection of human health including children. Therefore, EPA has determined that reliable data show that it would be safe for infants and children to reduce the FQPA safety factor to 1X.

Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the aPAD and cPAD. The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. For linear cancer risks, EPA calculates the probability of additional cancer cases given aggregate exposure. Short-, intermediate-, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the MOE called for by the product of all applicable UFs 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 lambda-cyhalothrin will occupy 46% of the aPAD for the general U.S. population, and 61% of the aPAD for all infants (<1 year old), the most highly exposed population subgroup.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to lambda-cyhalothrin from food and water will utilize 17% of the cPAD for the general U.S. population, and 50% of the cPAD for children (1-2 years old), the most highly exposed population subgroup. Based on the use pattern, chronic residential exposure to residues of lambda-cyhalothrin is not expected.

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

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

Using the exposure assumptions described in this unit for short-term and intermediate-term exposures, EPA has concluded that food, water, and residential exposures aggregated result in aggregate MOEs of 140 to 490. The residential MOEs were aggregated together because, regardless of the exposure route (dermal, inhalation, or oral), lambda-cyhalothrin has similar adverse effects (neurotoxicity). This aggregate risk assessment incorporates lawn post-application exposure (the scenario with the highest potential for exposure), and is a day-0 screening-level assessment. The resulting aggregate MOEs were greater than the Agency target MOE of 100 (ranging from 140 to 490), and there were thus no concerns for aggregate exposure.

4. Aggregate cancer risk for U.S. population . Lambda-cyhalothrin is classified as “not likely to be carcinogenic to humans.” Therefore, there is no aggregate cancer risk associated with the existing or proposed uses.

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 lambda-cyhalothrin residues.

Adequate enforcement methodology (gas chromatography/electron capture detector (GC/ECD) methods are available for enforcing tolerances for lambda-cyhalothrin residues in plant and animal commodities. The method 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 .

The Codex Alimentarius Commission, Mexico, and Canada have all established maximum residue limits (MRLs) for residues of lambda-cyhalothrin in or on a variety of raw agricultural commodities. These regulatory bodies express residues in terms of only cyhalothrin (Codex) or of lambda-cyhalothrin (Canada, Mexico); none of these tolerances include the epimer R157836 found in the U.S. tolerance expression. EPA includes the epimer due to it being considered as toxic as the active ingredient and its presence at quantifiable levels in many crops. For the crop uses currently under consideration, only potatoes have existing international tolerances. Although the recommended 0.02 ppm U.S. tolerance agrees numerically with the Codex and Mexican MRLs, strictly speaking they are not in harmony due to the different residue definitions.

Several comments were received from a private citizen objecting to IR-4 petitioning for tolerances, pesticide residues on food and the establishment of these tolerances. The Agency has received similar comments from this commenter on numerous previous occasions. Refer to the Federal Registers of June 30, 2005 (70 FR 37686) (FRL-7718-3), January 7, 2005 (70 FR 1354) (FRL-7691-4), and October 29, 2004 (69 FR 63096-63098) (FRL-7681-9) for the Agency’s response to these objections. In addition, the commenter noted several adverse effects seen in animal toxicology studies with lambda-cyhalothrin and claims because of these effects no tolerance should be approved. EPA has found, however, that there is a reasonable certainty of no harm to humans after considering these toxicological studies and the exposure levels of humans to lambda-cyhalothrin. The commenter also identified potential effects on the environment. This comment is considered irrelevant because the safety standard for approving tolerances under section 408 of FFDCA focuses on potential harms to human health and does not permit consideration of effects on the environment. Effects on the environment were considered by EPA in the registration process for lambda-cyhalothrin under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136 et seq.

Modifications to the pesticide petitions included in this final rule include: Grass, (forage, fodder, hay) from 9.0 ppm to 7.0 ppm because a crop group tolerance is appropriate—grass forage, fodder, and hay (Group 17); rye, bran at 0.2 ppm based on the existing residue data and tolerances in similar wheat commodities; hog, fat from 3.0 ppm to 0.2 ppm, hog, meat from 0.2 ppm to 0.01 ppm, hog, and meat-byproducts from 0.2 ppm to 0.02 ppm based on a Theoretical Dietary Burden (TDB) of 0.9 ppm for swine, the maximum expected residues are 0.16 ppm in hog fat, 0.006 ppm in hog meat, and 0.011 ppm in hog meat-byproducts; and milk, fat from 5.0 ppm to 10.0 ppm based on a TDB of 10.4 ppm for dairy cattle, the maximum expected residues in milk are 0.35 ppm, equivalent to 8.8 ppm in milk fat.

Therefore, the tolerances are established for the combined residues of lambda-cyhalothrin, 1:1 mixture of ( S )-α-cyano-3-phenoxybenzyl-( Z )-(1 R ,3 R )-3-(2-chloro-3,3,3-trifluoroprop-1-enyl)-2,2-dimethylcyclopropanecarboxylate and ( R )-α-cyano-3-phenoxybenzyl-( Z )-(1 S ,3 S )-3-(2-chloro-3,3,3-trifluoroprop-1-enyl)-2,2-dimethylcyclopropanecarboxylate and its epimer expressed as epimer of lambda-cyhalothrin, a 1:1 mixture of ( S )-α-cyano-3-phenoxybenzyl-( Z )-(1 S ,3 S )-3-(2-chloro-3,3,3-trifluoroprop-1-enyl)-2,2-dimethylcyclopropanecarboxylate and ( R )-α-cyano-3-phenoxybenzyl-( Z )-(1 R ,3 R )-3-(2-chloro-3,3,3-trifluoroprop-1-enyl)-2,2-dimethylcyclopropanecarboxylate, in or on cucurbit vegetables (Crop Group 9) at 0.05 ppm; grass, forage, fodder and hay (Crop Group 17) at 7.0 ppm; tuberous and corm vegetables (Crop Subgroup 1C) at 0.02 ppm; barley, grain at 0.05 ppm; buckwheat, grain at 0.05 ppm; oat, grain at 0.05 ppm; rye, grain at 0.05 ppm; barley, bran at 0.2 ppm; rye, bran at 0.2 ppm; oat, forage at 2.0 ppm; rye, forage at 2.0 ppm; barley, hay at 2.0 ppm; oat, hay at 2.0 ppm; barley, straw at 2.0 ppm; oat, straw at 2.0 ppm; rye, straw at 2.0 ppm; rice, wild, grain at 1.0 ppm; pistachio at 0.05 ppm; hog, fat at 0.2 ppm; hog, meat at 0.01 ppm; hog, meat-byproducts at 0.02 ppm; and milk, fat at 10.0 ppm (reflecting 0.4 ppm in whole milk).

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).

i. Revising the entries “hog, fat;” “hog, meat;” “hog, meat byproducts;” and “milk, fat (reflecting 0.4 ppm in whole milk)” in the table in paragraph (a) (1).

ii. Adding alphabetically the following commodities to the table in paragraph (a)(1) to read as follows:

(a) * * *

(1) * * *

A. Why Are Revisions to State Programs Necessary?

States which have received final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask the EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273, and 279.

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

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

• Do inspections, and require monitoring, tests, analyses, or reports;

• Enforce RCRA requirements and suspend or revoke permits and

• Take enforcement actions after notice to and consultation with the State.

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

The EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register we are publishing a separate document that proposes to authorize the State program changes.

If the EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. The EPA will base any further decision on the authorization of the State program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time. If we receive comments that oppose only the authorization of a particular change to the State hazardous waste program, we will withdraw only that part of this rule, but the authorization of the program changes that the comments do not oppose will become effective on the date specified in this document. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

Arkansas initially received final authorization on January 25, 1985 (50 FR 1513), to implement its Base Hazardous Waste Management program. Arkansas received authorization for revisions to its program on January 11, 1985 (50 FR 1513), effective January 25, 1985; March 27, 1990 (55 FR 11192), effective May 29, 1990; September 18, 1991 (56 FR 47153), effective November 18, 1991; October 5, 1992 (57 FR 45721), effective December 4, 1992; October 7, 1994 (59 FR 51115), effective December 21, 1994, and April 24, 2002 (67 FR 20038), effective June 24, 2002. The authorized Arkansas RCRA program was incorporated by reference into the Code of Federal Regulations effective December 13, 1993 (58 FR 52674). On August 1, 2006, Arkansas submitted a final complete program revision application seeking authorization of its program revision in accordance with 40 CFR 271.21.

The Arkansas Department of Pollution Control and Ecology (ADPC&E), revised its Regulation Number 23 from one of “incorporation by reference” to the adoption and incorporation of a version of the full text of the Federal regulatory language in April 1994. The specific authorities provided are contained in statutes and regulations lawfully adopted at the time the Independent Counsel signed the certification which are in effect now. The statutory authorities for the State are documented in the Arkansas RCRA Statutory Checklists, dated July 31, 2006. The provisions for which the State is seeking authorization are documented in this Federal Register Notice. The official State regulations are found in Arkansas Pollution Control and Ecology Commission Regulations Number 23 (Hazardous Waste Management), adopted on December 9, 2005, and effective on March 23, 2006. All previous authorization applications have not been amended, notified or revised by statute or judicial decision in a way that diminishes and interferes with the authority to carry out the previously authorized hazardous waste program to meet the requirements of Code of Federal Regulations part 271.

The provisions for which the State is seeking authorization are documented in the Rule Revision Checklists 194 through 207, known collectively as RCRA Clusters X through XV which are listed in the chart in this document.

Reference to Arkansas Code Annotate (A.C.A.) of 1987, as amended and effective in August 2005. Reference to Arkansas of Pollution Control and Ecology Commission (APC&EC) Regulations Number 23 (Hazardous Waste Management) (formerly titled the Arkansas Hazardous Waste Management Code), last amended on December 9, 2005, to adopt all final rules promulgated by EPA through June 30, 2005 and which was effective March 23, 2006. Dates of enactment and adoption for other statutes or regulations are given when cited on the Rule Revision Checklists submitted to EPA Region 6.

On August 1, 2006, the State of Arkansas submitted a final complete program application, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that the State of Arkansas' hazardous waste program revision satisfies all of the requirements necessary to qualify for final authorization. The State of Arkansas revisions consist of regulations which specifically govern Federal Hazardous Waste revisions promulgated from July 1, 1999 to June 30, 2005 (RCRA Clusters X-XV). Arkansas requirements are included in a chart with this document.

This is a summary of the Commission's Second Report and Order, First Order on Reconsideration, and Second Further Notice of Proposed Rulemaking, FCC 07-33, adopted on March 22, 2007, and released on May 31, 2007. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS ( http://www.fcc.gov/cgb/ecfs/ ). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

This document contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. The Commission will publish a separate Federal Register Notice seeking public comments on the modified information collection requirements. Therefore, OMB, the general public, and other Federal agencies will be invited to comment on the modified information collection requirements contained in this proceeding once the Federal Register Notice is published. In addition, we note that 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 easing the filing requirements imposed on entities that wish to implement IBOC, and find that the steps taken will reduce paperwork burdens on small entities because they will no longer be required to seek prior authorization to implement certain technologies for use with digital audio broadcasting.

1. In the Digital Audio Broadcasting Report and Order, we selected in-band, on-channel (“IBOC”) as the technology enabling AM and FM radio broadcast stations to commence digital audio broadcasting (“DAB”). We note that in this Second Report and Order as well as in the Second Further Notice of Proposed Rulemaking (published elsewhere in this issue), DAB generally refers to the digital service broadcast by radio stations whereas IBOC generally refers to the technical system supporting DAB service. This terminology, and the subject matter discussed herein, applies to terrestrial over-the-air broadcasting. Satellite radio service, offered by XM and Sirius, is not a subject under consideration in this proceeding. In the DAB R&O, we adopted notification procedures allowing existing AM and FM radio stations to begin digital transmissions immediately on an interim basis using the IBOC system developed by iBiquity Digital Corporation (“iBiquity”). We concluded that the adoption of a specific technology would facilitate the development of digital services for terrestrial broadcasters. We deferred consideration of final operational requirements and related broadcast licensing and service rule changes to a future date. In a Further Notice of Proposed Rule Making (“FNPRM”), 69 FR 27874, we addressed issues left unresolved in the DAB R&O, 69 FR 78193, and sought comment on what changes and amendments to Part 73 of the Commission's rules were necessary to facilitate the adoption of DAB.

2. Through this proceeding, we seek to foster the development of a vibrant terrestrial digital radio service for the public and to ensure that radio stations successfully implement DAB. Our statutory authority for implementing these goals is derived from, inter alia, Sections 1, 4, 303, 307, 312, and 315 of the Communications Act. Our goals in this Second Report and Order are to begin to adopt service rules and other requirements for terrestrial digital radio. However, we find it necessary to ask additional questions, in a Second Further Notice of Proposed Rulemaking, on how to preserve free over-the-air radio broadcasting while permitting licensees to offer new services on a subscription basis. We also resolve and dispose of several petitions for reconsideration that were filed in response to the DAB R&O.

3. In summary, the Commission, in this Second Report and Order, First Order on Reconsideration, and Second Further Notice of Proposed Rulemaking:

• Refrains from imposing a mandatory conversion schedule for radio stations to commence digital broadcast operations;

• Allows FM radio stations to operate in the extended hybrid digital mode;

• Requires that each local radio station broadcasting in digital mode provide a free over-the-air digital signal at least comparable in audio quality to its analog signal;

• Continues to require that the main digital broadcast stream simulcast the material aired on the analog signal;

• Adopts a flexible bandwidth policy permitting a radio station to transmit high quality audio, multiple program streams, and datacasting services at its discretion;

• Allows radio stations to time broker unused digital bandwidth to third parties, subject to certain regulatory requirements;

• Applies existing programming and operational statutory and regulatory requirements to all free DAB programming streams, but defers the issue of whether and how to apply any specific new public interest requirements;

• Authorizes AM nighttime operations and FM dual antenna configurations;

• Considers and addresses other technical matters, such as FM translator and booster operations and TV Channel 6 interference issues;

• Defers discussion of whether the Commission should impose content control requirements that would prevent listeners from archiving and redistributing digital musical recordings transmitted by digital broadcast stations;

• Recognizes that further negotiations between the United States and the international community are taking place to resolve possible disputes about the implementation and operation of DAB by domestic radio stations;

• Dismisses several pending Petitions for Reconsideration and Petitions for Rulemaking that asked, inter alia, the Commission to reconsider the adoption of iBiquity's IBOC system as the technology chosen for DAB transmission;

• Seeks further comment on appropriate limits to the amount of subscription services that may be offered by radio stations.

4. IBOC technology makes use of the existing AM and FM bands (In-Band) by adding digital carriers to a radio station's analog signal, allowing broadcasters to transmit digitally on their existing channel assignments (On-Channel) while simultaneously maintaining their analog service. iBiquity's IBOC DAB technology enables radio stations to provide enhanced sound fidelity, improved reception, multiple audio streams, and new data services. It permits the transmission of near-CD quality audio signals on the FM band, and improved fidelity on the AM band, to digital-ready radio receivers along with information services, such as station, song and artist identification, stock and news updates, and local traffic and weather bulletins. These digital signals are free from the static, hiss, pops, and fades associated with the current analog system. iBiquity's IBOC technology will also allow for new radios to be “backward and forward” compatible, allowing them to receive existing analog broadcasts from stations that have yet to convert and digital broadcasts from stations that have converted. Existing analog radios will continue to receive analog broadcast signals.

5. The iBiquity IBOC system evaluated by the DAB Subcommittee of the National Radio Systems Committee (“NRSC”) are “hybrids” in that they permit the transmission of both analog and digital signals within the spectral emission mask of a single AM or FM channel. In the hybrid mode, the iBiquity IBOC system places digital information on frequencies immediately adjacent to the analog signal. The digital signals are transmitted using orthogonal frequency division multiplexing (“OFDM”). The FM IBOC system has an extended hybrid mode, providing greater digital capacity than the hybrid mode. The IBOC system is also designed to eventually permit radio stations to convert to an all-digital mode of operation. The IBOC system uses perceptual coding to discard information that the human ear cannot hear. This reduces the amount of digital information, and as a result, the frequency bandwidth required to transmit a high-quality digital audio signal. In addition, the IBOC system in hybrid mode is designed to blend to analog when digital reception fails. This blending feature eliminates a digital “cliff effect” that would otherwise result in the complete and abrupt loss of reception at locations where the digital signal fails.

6. In 1990, the Commission first considered the feasibility of terrestrial and satellite digital radio services. As to the former, the Commission concluded that the digital terrestrial systems then under consideration were undeveloped and that it was premature to engage in discussions regarding DAB standards, testing, licensing, and other policy issues. In 1999, the Commission, recognizing new technological developments and innovations, commenced this proceeding to foster the adoption of a DAB system and develop a record regarding the legal and technical issues raised by the introduction of DAB. In the DAB NPRM, the Commission, inter alia, proposed criteria for the evaluation of DAB models and systems and considered certain DAB system testing, evaluation, and standard selection issues.

7. In the DAB R&O, the Commission selected the hybrid AM and FM IBOC system tested by the NRSC as the de facto standard for interim digital operation. As of the effective date of the DAB R&O, we stated we would no longer entertain any proposal for digital radio broadcasting other than IBOC. We found that IBOC was the best way to advance our DAB policy goals. We also found that this technology was supported by the broadcast industry and was the only approach that could be implemented in the near future. We recognized that the IBOC system was spectrum-efficient because it can accommodate digital operations for all existing AM and FM radio stations with no additional allocation of spectrum. The NRSC tests, as explained in the DAB R&O, showed that both AM and FM IBOC systems offer enhanced audio fidelity and increased robustness when encountering interference and other signal impairments. The tests also indicated that coverage for both systems would be at least comparable to analog coverage. We stated that audio fidelity and robustness will greatly improve when radio stations move to all-digital operations.

8. We established the following requirements for radio stations in the DAB R&O: (1) During interim IBOC operations, stations must broadcast the same main channel program material in both analog and digital modes; (2) interim IBOC facilities must use the station's authorized antenna system; a public notice seeking comment on the use of a dual FM antenna system was issued by the Media Bureau after the DAB R&O was released. The Media Bureau approved the use of separate FM antennas in 2004; (3) due to interference concerns, stations implementing IBOC must communicate to the Commission the transmitter power output (for both analog and digital transmitters, if applicable) and must certify that the analog effective radiated power remains consistent with the station's authorization; (4) pending adoption of final rules, a licensee's authorization to transmit IBOC signals may be modified or cancelled by the Commission without prior notice or a right to a hearing to eliminate objectionable interference; and (5) IBOC AM stations may only operate during daytime hours.

9. In the DAB FNPRM, our goal was to create a record that would lead to permanent DAB policies and requirements. We sought public input on several issues related to digital audio broadcasting. Specifically we sought comment on: (1) The appropriate policies the Commission may adopt to encourage radio stations to convert from an analog-only radio service to a hybrid analog/digital radio service, and, eventually, to an all-digital radio service; (2) the types of digital services the Commission should permit radio stations to offer; (3) how noncommercial educational (“NCE”) FM and low power FM stations may provide digital radio service to the public; (4) how the Commission's existing programming and operational rules should be applied to DAB; and (5) what changes and amendments to the Commission's technical rules are necessary to further the introduction of DAB.

10. In the DAB NOI, we asked whether the transmission of digital radio signals, as a free over-the-air service, would create an environment for persons to engage in indiscriminate recording and Internet redistribution of musical recordings that are part of unencrypted free digital audio broadcasts and sought comment on how this matter should be addressed. On this point, we have been informed that interested parties are attempting to resolve this issue through a marketplace solution. We encourage this approach. Accordingly, we will defer further action on this issue at this time. In the DAB NOI, we also raised for comment whether there were international broadcast treaty matters that needed to be addressed at this time to ensure that DAB is successfully implemented in the United States.

11. As of August 1, 2005, approximately 900 radio stations have entered into licensing agreements with iBiquity for its IBOC technology. As of September 30, 2005, there were 10,973 commercial radio stations, as well as 2,626 FM educational radio stations in the United States. Of the commercial stations, 6,215 were FM stations and 4,758 were AM stations. There were also 3,920 FM translator and booster stations. Currently, 1,272 stations (195 AM and 1,077 FM) are authorized by the Commission to broadcast using the IBOC system, and approximately 700 FM stations have requested and received special temporary authority for multicasting. These stations are mostly located in the top 50 markets in the country and reach 60 percent of all potential listeners. At least 10 stations are on the air in each of the following markets: Los Angeles, Chicago, San Francisco, Boston, Detroit and Atlanta. Approximately, 85 percent of the IBOC stations on the air are FM stations and 15 percent are AM stations. iBiquity has announced that 21 of the nation's top radio broadcast groups have committed to accelerate broadcast conversion of 2,000 AM and FM stations to IBOC technology. Clear Channel Communications, Entercom and Cox Radio have all made substantial commitments to convert many of their stations to digital over the next few years. Moreover, ten of the largest radio firms have formed a strategic alliance to coordinate the rollout of DAB. This effort includes the coordination of multicast formats, securing digital automotive receiver designs, and lowering the price points for digital radio receivers.

12. In the DAB R&O, we stated that the adoption of a DAB standard will facilitate an efficient and orderly transition to digital radio, and we supported a public and open standard-setting process. In the DAB FNPRM, we encouraged the NRSC to provide us with information on the standard setting process as events warrant. On April 16, 2005, the NRSC announced approval of the initial NRSC IBOC standard known as NRSC-5. The standard is based on iBiquity's IBOC technology. In the iBiquity system, audio source coding and compression are handled by iBiquity's HD codec. NRSC-5 does not include specifications for audio source coding and compression. iBiquity has committed to license all patents necessary to implement NRSC-5, either with or without the HD codec. It is also possible within the NRSC-5 standard to use audio source coding and compression schemes other than iBiquity's HD codec. On May 18, 2005, the NRSC submitted NRSC-5 to the Commission for consideration and evaluation. A Public Notice seeking comments on the NRSC-5 standard was issued by the Media Bureau on June 16, 2005. Following the close of the comment cycle in August 2005, we will review the filings and then take further action. The NRSC adopted the NRSC-5-A IBOC broadcasting standard in September 2005. The NRSC-5-A IBOC standard adds sections concerning Advanced Application Services and a new reference document to the NRSC-5 IBOC standard, but the NRSC has not yet submitted the NRSC-5-A IBOC standard to the Commission for review. While our consideration of the NRSC-5 IBOC standards is continuing, we find that it is in the public interest to adopt certain policies, rules, and requirements for digital radio before we have completed our evaluation of the standards. Radio stations and equipment manufacturers need to move forward with the DAB conversion, and we need not wait until after final action is taken on the IBOC standards to provide such guidance to them.

13. In the DAB FNPRM, we sought comment on the pace of the analog to digital radio conversion and the possibility of an all-digital terrestrial radio system in the future. We noted that Congress codified December 31, 2006, as the analog television termination date with certain exceptions, and we recognized that there is no analogous congressional mandate for the termination of analog radio broadcasting. We stated that the Commission has not considered a date certain as to when radio stations should commence digital broadcast operations because radio stations, unlike television stations, are not using additional spectrum to provide digital service. We also stated that band-clearing is not an issue. Based on these factors, we found that there was no immediate need to consider mandatory transition policies of the type contemplated with respect to DTV. However, we recognized the spectrum efficiencies and related new service opportunities inherent in the IBOC system. As such, we sought comment on what changes in our rules would likely encourage radio stations to convert to a hybrid or an all-digital transmission system and asked whether the government, the marketplace, or both should determine the speed of conversion from analog to hybrid and, eventually, to all digital radio service. We also asked whether we should conduct periodic reviews, in terms of the number of DAB receivers on the market and DAB stations on the air, to help us decide how to set policy as the conversion to digital audio broadcasting moves forward.

14. Commenters generally support a marketplace transition to digital audio broadcasting. For example, the State Broadcasters Associations (“SBAs”) states that the Commission should allow market forces to govern the adoption of DAB by the radio industry and that no station should be required to adopt IBOC or any other digital technology. The Public Interest Coalition (“PIC”) agrees that the market should govern the pace of the DAB transition. PIC states that allowing market forces to guide the digital radio transition will permit stations to convert at a pace dictated by their own needs.

15. We will not establish a deadline for radio stations to convert to digital broadcasting. Stations may decide if, and when, they will provide digital service to the public. Several reasons support this decision. First, unlike television licensees, radio stations are under no statutory mandate to convert to a digital format. Second, a hard deadline is unnecessary given that DAB uses an in-band technology that does not require the allocation of additional spectrum. Thus, the spectrum reclamation needs that exist for DTV do not exist here. Moreover, there is no evidence in the record that marketplace forces cannot propel the DAB conversion forward, and effective markets tend to provide better solutions than regulatory schemes.

16. iBiquity argues that in the early stages of the transition, the Commission should favor and protect existing analog signals. It states that this could be accomplished by limiting the power level and bandwidth occupancy of the digital carriers in the hybrid mode. At some point in the future, when the Commission determines there is sufficient market penetration of digital receivers, iBiquity asserts that the public interest will be best served by reversing this presumption to favor digital operations. At that time, broadcasters will no longer need to protect analog operations by limiting the digital signal and stations should have the option to implement all-digital broadcasts. We decline to adopt iBiquity's presumption policy because it is too early in the DAB conversion process for us to consider such a mechanism. We find that such a policy, if adopted now, may have unknown and unintended consequences for a new technology that has yet to be accepted by the public or widely adopted by the broadcast industry.

17. Nevertheless, as enunciated in more detail below, we take significant steps to facilitate the digital radio conversion by adopting rules and policies that encourage radio stations to invest in digital equipment and programming. For example, we permit radio stations to provide various types of digital service as long as one free over-the-air digital stream of equal or greater quality than the station's existing analog signal is available for listeners. We also establish technical rules, such as permitting AM nighttime service, intended to reinvigorate the AM band. To ensure that DAB adoption proceeds in a timely manner, we will conduct periodic reviews of digital service and receiver penetration, as suggested by iBiquity, as circumstances warrant. iBiquity states that the Commission should conduct periodic reviews of station conversions and receiver penetration to ensure the functioning of market forces. iBiquity recommends the commencement of a first review five years after adoption of a Second Report and Order in this proceeding to check on the progress of the conversion. Other commenters agree that the Commission should periodically review the progress of the DAB conversion process.

18. Extended Hybrid Mode. NAB asserts that the Commission's authorization of extended hybrid mode DAB operations will further the conversion process. According to NAB, the extended hybrid mode, which adds up to 50 kbps, (“kbps” is the acronym for kilobits per second (1000 bits per second)), of data carrying capacity to an FM IBOC signal, will allow broadcasters to support a range of datacasting services without affecting the quality of the 96 kbps main channel digital audio signal. NAB asserts that while the use of the FM extended hybrid mode increases the bandwidth occupancy of the digital carriers, this will not increase interference to adjacent channels since the additional ( i.e. , extended hybrid) digital carriers fall between a station's primary digital carriers and its host analog signal. Consequently, each broadcaster will be able to control the level of impact these extended hybrid signals may have on its own transmission. NAB comments that the Commission should authorize broadcasters to adopt all three extended hybrid modes and allow broadcasters to make the appropriate operational decisions based on the needs of their listeners. In the extended hybrid mode, digital carriers are added at frequencies immediately adjacent to the analog FM signal. The three extended hybrid modes (MP2, MP3, and MP4) are defined by the number of digital partitions added (one, two, or four pairs), respectively. NPR submitted a detailed report in November 2004 about the effect of extended hybrid operation on the host analog signal in various receivers. The report concludes that the FM extended hybrid mode does not affect host analog reception in car radios, home stereo receivers, or subsidiary communications authorization receivers.

19. The FM extended hybrid mode holds great promise for both broadcasters and their listeners. NPR has submitted data showing that the FM extended hybrid mode will work in most circumstances. NPR's report provides an ample basis for permitting radio stations to operate in an extended hybrid mode. Authorization of this digital mode will permit broadcasters to offer new and innovative services, especially to underserved populations, such as the visually impaired and non-English speaking citizens. If interference issues do arise, we are confident that the Commission staff will be able to resolve disputes on a case-by-case basis, and we intend that the staff will address these complaints in a timely fashion. In this connection, the Media Bureau has full authority to adjust and, if necessary, prohibit hybrid operations by broadcasters.

20. All-digital Mode. In the DAB FNPRM, we recognized that it may be premature to adopt policies for all-digital radio operation given that there are no standards for this type of broadcasting. NAB agrees that adoption of policies and procedures relating to the all-digital mode of IBOC operation would be premature in the absence of “comprehensive and impartial testing” of all-digital systems. NAB states, however, that it is important to recognize that the all-digital mode is an integral part of the IBOC DAB system specification and that the software iBiquity provides to its transmitter and receiver manufacturer licensees includes an all-digital mode of operation. NAB states that when the time is ripe to consider use of the all-digital mode, consumers and broadcasters who have already invested in IBOC DAB equipment will not be disenfranchised and a smooth transition from a hybrid to an all-digital environment will be assured. iBiquity agrees that additional work is required before there is an industry consensus on the IBOC all-digital system.

21. NPR states that it is premature for the Commission to contemplate a regulatory structure for all-digital terrestrial radio. It states that the elegance of the DAB transition is that the public, through its response to digital services, will determine the pace of the transition. NPR further states that until the transition to all-digital operation becomes more imminent, the Commission should refrain from adopting any policy affecting all-digital DAB. PIC states that the Commission should use its authority to facilitate public participation in the further development of digital radio technology.

22. The ultimate goal of this proceeding is to establish a robust and competitive all-digital terrestrial radio system. We agree with NPR that it is premature, however, to consider the adoption of policies and rules for an all-digital mode of operation. There are many unresolved technical issues associated with the all-digital radio broadcast system and radio stations do not plan to offer all-digital service in the near future. Broadcasters, of course, are encouraged to experiment with an all-digital service, with appropriate authorization, but for regulatory purposes, our principle focus at this stage is to ensure that the ground rules are set for the introduction of hybrid IBOC DAB. When DAB receiver penetration has reached a critical mass and most, if not all, radio stations broadcast in a hybrid digital format, we will begin to explore the technical and policy issues germane to an all-digital terrestrial radio environment.

23. As explained above, the IBOC DAB system provides radio stations with new flexibility and capabilities. First and foremost, it allows FM broadcasters to scale their audio quality from 96 kbps downward in 1 kbps or smaller increments. Any reduction below 96 kbps frees capacity that can be devoted to other services. The AM system offers two levels of audio quality. The “core” AM carriers provide 20 kbps of robust monophonic sound. The “enhanced” layer adds an additional 16 kbps of digital carriers and enables full stereo sound. The AM system design allows broadcasters to devote the full 36 kbps to a single audio signal or, in the future, select only the 20 kbps core mode for audio and devote the remaining 16 kbps enhanced carriers for other services.

24. The scaling of the audio codec, which permits broadcasters to reduce the number of bits devoted to the main channel audio signal, may affect the quality of the audio. An audio codec compresses digital audio data prior to transmission and decompresses data received. However, it will not impact the robustness of the signal. The audio quality may be affected because the reduction in the bit rate may increase the likelihood of digital artifacts. The trade-off between bits and audio quality is not linear. There can be a substantial reduction in bit rate before most listeners would notice any digital artifacts that might impact audio quality. The broadcasters' and listeners' tolerance for reduced audio quality depends on many factors, most importantly, station program format.

25. The IBOC DAB system thus allows radio stations to broadcast a single high quality audio signal, multiple streams of lower quality audio, or various combinations of different quality audio signals. In addition, the system is capable of non-broadcast uses that are non-audio and/or subscription-based in nature. In the DAB FNPRM, we tentatively found that permitting radio stations to use their bandwidth in a flexible manner is in the public interest. Section 303 of the Act compels the Commission to “study new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective uses of radio in the public interest.”

26. NAB states that a digital radio station's service offerings should be determined by the licensee rather than by government mandate. NAB explains that digital business models will vary from licensee to licensee. Some stations, such as those with jazz or classical music genres, may choose to focus their resources on promoting the highest quality audio signal, while others may want to broadcast multiple streams of news, weather or financial information. NAB submits that these kinds of decisions are best left to consumer demand and the marketplace. NAB states that beyond an obligation to deliver at least one main audio channel of equal or better quality than a station's existing analog service, broadcasters should retain the flexibility to scale signals to enhance audio quality, to upgrade existing supplementary services, or offer new services for their audiences. NAB concludes that for DAB to fulfill its potential, supplementary services must be a viable option. NPR states that the Commission should not specify the amount of capacity stations should allocate to any given audio or data service. NPR argues that radio station licensees, like digital television licensees, should have the freedom to develop innovative services for the public.

27. iBiquity also urges the Commission to adopt a flexible approach to its service rules because radio stations have only begun to explore the IBOC system options. iBiquity asserts that this approach will encourage broadcasters to experiment and will foster the development of innovative new services for the listening public. iBiquity states that the imposition of unnecessarily restrictive service rules will have the effect of stifling the development of new services. Cox likewise suggests that the Commission should maintain a “do no harm” position, arguing that if concerns arise later in the conversion, the Commission can always adopt responsive rules at that time. There were no comments criticizing the adoption of a flexible use policy.

28. We expect and intend that the fundamental use of DAB will be for the provision of free over-the-air radio service. We will, therefore, require radio stations to provide at least one free digital over-the-air audio broadcast service. Specifically, radio stations operating in a digital mode must provide one free digital audio programming service that is comparable to or better in audio quality than that of their current analog service. Such a baseline requirement mirrors the Commission's analogous requirement for digital television stations, and is based on the same underlying policy consideration that significant benefits from digital conversion should flow directly to the public. We do not here alter the requirement set forth in the DAB R&O that a radio station must simulcast its analog programming service on its digital signal. However, we will revisit the simulcasting requirement in the future when we decide whether or not to approve the NRSC-5 standard. In any event, simulcasting is part of the IBOC operational structure and a radio station must duplicate its programming if it wants the DAB “blend” feature to work properly.

29. Taking these points into consideration, we will permit radio stations to use their frequencies as the marketplace dictates, an approach supported by dozens of interested parties and consistent with our digital television policy. We are hopeful that this flexibility also will lead to a more rapid conversion to DAB. We elaborate on this issue below by addressing issues raised regarding some of the services DAB stations might choose to provide.

30. In the DAB FNPRM, we sought comment on whether or not we should require broadcasters to provide a high quality digital audio signal and, if so, what minimum bandwidth should be required for this purpose. We also sought comment on the amount of capacity necessary to allow radio stations to broadcast a high quality digital signal while permitting the introduction of new datacasting and audio services.

31. iBiquity supports the use of the IBOC system to improve audio quality. It believes, however, that market forces should be allowed to determine the optimal quality levels of the IBOC system. iBiquity argues that the Commission should not establish minimum quality requirements, but rather should allow radio stations to make their own determination of the appropriate level of audio quality for their particular listeners. NAB states that, at this early point in the digital radio transition, it is impossible to conclude with any measure of certainty the number of bits necessary to support a good quality main audio signal or how many secondary audio streams an IBOC radio station can transmit without degrading audio quality. Cox Radio adds that any restrictions contemplated by the Commission may become obsolete soon after they are adopted.

32. As discussed above, we decline to require broadcasters to dedicate a minimum level of digital bandwidth to provide a high quality digital signal. Instead, we leave the decision as to the quality of the signal provided to the discretion of the radio station licensee, subject to the comparable signal obligation discussed earlier. The IBOC system allows stations to offer the public high quality audio, as well as a broad variety of other innovative services. We believe that we should provide broadcasters with the freedom to innovate and respond to the marketplace in developing not only the mix of services, but also the quality of the audio they will offer the public.

33. The IBOC FM DAB system permits an FM radio station to broadcast multiple audio programming services within its assigned channel. As AM IBOC operation develops, iBiquity plans to introduce the option to split the digital AM bitstream into two channels. In order to provide multiple digital programming streams, a radio station must reduce the audio bit rate of its main channel broadcasts or use the extended hybrid mode to obtain additional capacity that can be devoted to a lower bit rate supplemental audio channel. Testing conducted by NPR established the viability of this functionality and also demonstrated that the supplemental channel will have coverage equivalent to the coverage of the main channel audio signal. Due in part to IBOC system design constraints, however, any supplemental audio services will not be able to take advantage of the blend function available to the main channel audio. The blend function enhances rapid tuning for the main channel digital signal and provides an analog backup signal in the event the main channel audio signal is lost. Therefore, any supplemental channel will require several seconds for tuning and will experience muting of the audio in the event of signal loss.

34. In the DAB FNPRM, we asked how the availability of additional audio streams can further our diversity goals, particularly for people with disabilities and minority or underserved segments of the community. We tentatively concluded that adopting DAB service rules that encourage more audio streams would promote program diversity, and that, once the Commission adopts a policy in this area, radio stations would no longer need to obtain experimental authority to broadcast multiple digital programming streams. Section 303 of the Act compels the Commission to “study new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective uses of radio in the public interest.”

35. Generally, commenters urged the Commission to authorize multicasting on a permanent basis, and at the same time, asked us to avoid excessive regulation that would disadvantage any new type of digital service. Specifically, commenters emphasized the benefits of multiple digital audio channels and how that IBOC feature will ensure the continuing viability of radio reading services as well as enhance the ability of broadcasters to offer more niche programming and public affairs broadcasts.

36. The IBOC system makes it possible for FM radio stations to air additional streams of traditional radio programming ( e.g. , music, news, and sports), public safety services ( e.g. , national security announcements), assisted living services ( e.g. , radio reading services), non-English language programming, and news services to underserved populations. Experts state that one 96 kbps FM channel could be divided into up to eight streams of digital programming. Many stations commented that multicasting will foster the expansion of local public affairs programming generally and programming serving the Latino, Asian, and other communities of common cultural interest, in particular. A number of such stations comment that they will use their digital capacity to broadcast more foreign language services. Indeed, a large number of NCE stations filed comments specifically stating that the following program services are likely to emerge: (1) Special programming for English as a Second Language (“ESL”) listeners; (2) native American programming; (3) public affairs programming, such as school board, civic and local government meetings; (4) youth, young adult and student productions; (5) reading services for the blind; (6) homeland security/public safety programming; (7) arts and culture programming; (8) breaking news/special news events/emergency alerts; (9) international news coverage; and (10) educational/children's programming. NPR has announced that it will offer five music services for multicast streams on affiliated public radio stations: classical, jazz, electronica, triple-A, and folk. Other program offerings NPR is developing for stations with new channels include a news and information service and formats that would serve culturally diverse audiences. Westwood also said it would make its lineup of news, sports, talk and entertainment programming, as well as its traffic and information content available to HD Radio FM broadcasters' multicast services. In addition, iBiquity reports that commercial radio broadcasters, including Infinity, Capitol Broadcasting, and Greater Media have all launched new multicast digital radio streams with different formats in the summer of 2005.

37. We will permit radio stations to provide multiple audio streams of digital programming without the need for individual station approval by the Commission. FM stations currently multicasting pursuant to experimental authority from the Commission are released from the requirement to submit a report, as specified in the letter granting multicasting authority. We believe that radio stations can best stimulate consumers' interest in digital audio services if they are able to offer the programs that are the most attractive to their communities. Further, allowing radio stations the flexibility to provide multicast services will allow them to offer a mix of services that can promote increased consumer acceptance of DAB, which, in turn, will likely speed the conversion process. Additionally, diversity of programming services may result from multicasting and provide programming to unserved and underserved segments of the population. We strongly encourage digital audio broadcasters to use their additional channels for local civic and public affairs programming and programming that serves minorities, underserved populations, and non-English speaking communities.

38. Mt. Wilson Broadcasters opposes Commission action authorizing multicasting, at least at the present time, arguing that “splitting the channel” will derogate the service provided by FM radio stations. NPR asserts that Mt. Wilson Broadcasters is misinformed about the purposes of DAB, the technical feasibility of multicasting, and the competitive consequences of authorizing full-power broadcast stations to broadcast multiple audio channels. We find that multicasting will not derogate the service as Mt. Wilson argues. An FM station commencing DAB operations will have approximately the same geographic reach for its digital signal as for its analog signal. Moreover, splitting the FM signal into multiple digital streams will not harm listeners in any manner. As noted above, a licensee must provide a broadcast stream at least equivalent in quality to its existing analog service. In fact, an FM station operating a digital service will be able to provide more services than it could with only its analog signal. Accordingly we perceive no derogation of the type forecast by Mt. Wilson Broadcasters.

39. Time Brokering. In the DAB FNPRM, we sought comment on the extent, if any, to which we should permit radio stations to lease unused or excess bandwidth to unaffiliated audio programmers. In this context, we noted that an unaffiliated entity may schedule the programming output of a particular digital audio stream for a period of time under a contract with the licensee. We stated that radio stations may benefit from leasing unused or excess air-time because they would have additional funds to invest in new programming, which, in turn, would benefit the public. We asked whether our diversity goals will be furthered if we allow independent programmers to lease excess capacity from broadcast licensees.

40. We will permit radio stations to enter into time brokerage agreements for their digital bandwidth. “Time brokerage” (also known as “local marketing”) is the sale by a licensee of discrete blocks of time to a “broker” that supplies the programming to fill that time and sells the commercial spot announcements in it. Because these agreements are essentially leasing arrangements, they achieve benefits similar to those achieved through leasing arrangements. The Commission has for many years permitted brokering of FM subcarriers and excess digital television bandwidth. Moreover, we permit stations to enter into time brokerage agreements on their main broadcast channels. Subject to our attribution rules, as noted below, broadcasters will have the flexibility in structuring business arrangements and attracting capital to make DAB a success. We agree with the SBAs that the adoption of this policy will allow licensees to recoup some of the costs associated with the digital conversion, and to increase outlet diversity. We strongly encourage digital audio broadcasters to enter in such agreements with “eligible entities,” which often include businesses owned by women and minorities. An eligible entity is an entity that would qualify as a small business consistent with SBA standards for its industry grouping. Moreover, the brokering of individual digital streams will provide a means to overcome some financial impediments to getting involved in broadcasting and there is a potential for new market entrants to take advantage of such arrangements. Whatever the agreement, it is the licensee who remains responsible for ensuring the fulfillment of all obligations incumbent upon a broadcast licensee, including ultimate control over program material aired on its station's facilities.

41. In the DAB FNPRM, we also asked how Section 310(d) of the Act, regarding transfers of control, should apply to these situations as well as how the Commission's broadcast ownership limits and attribution rules would be affected if an unaffiliated programmer, that is also the licensee of another station in the same market, leases one of the additional audio streams. Moreover, we asked whether there should be an overall limit to the amount of programming time a particular radio station can broker or lease to others.

42. A number of commenters raise issues regarding the interplay between multiple audio streams, brokering, and ownership issues. For example, REC Networks assert that when there is a substantial penetration of DAB receivers in the marketplace, owners of multiple FM stations in a single market should consolidate their multiple FM station broadcasts on a single channel, multicast their programming services using IBOC technology, and then divest their additional transmitter facilities. The SBAs state that brokering of a multicast audio stream would not constitute an illegal transfer of control. They argue that leasing of a digital stream is consistent with longstanding Commission treatment of time brokerage arrangements. Specifically, PIC argues, and we agree, that a licensee owning the maximum permissible number of stations in a particular market should not be allowed to acquire additional broadcast streams through time brokering agreements. Under the Commission's established policies for attribution of such agreements, we count the brokered station toward the brokering licensee's permissible ownership totals under the local broadcast ownership rules. Where an entity owns or has an attributable interest in one or more stations in a local radio market, time brokering of another station in that market for more than 15 percent of the brokered station's broadcast time per week will result in counting the brokered station toward the brokering licensee's ownership caps. We clarify that, in the multicast context, a station owner who programs more than 15 percent of the total weekly hours broadcast on a digital audio stream of another station in the market will be considered to have an attributable interest in the brokered station. The interest attributable to a station owner in such circumstances is equivalent to the percentage of total broadcast time that the stream which is attributable to the station owner constitutes. Under a time brokering agreement, licensees must ensure that they maintain full, effective, and ultimate control over all material aired on their stations. Therefore, time brokering agreements do not raise transfer of control issues under Section 310(d) of the Act.

43. In the analog context, all FM stations are authorized to transmit secondary services via an automatic subsidiary communications authorization (“SCA”) under Section 73.295 of the Commission's rules. Subsidiary communication services are those transmitted on a subcarrier within the FM baseband signal, not including services that enhance the main program broadcast service or exclusively relate to station operations. Subsidiary communications include, but are not limited to, services such as radio reading services, utility load management, market and financial data and news, paging and calling, traffic control signal switching, bilingual television audio, and point to point or multipoint messages. Some FM broadcasters currently provide emergency alert system notifications and paging functions under SCA authorization.

44. Section 73.593 of the Commission's rules pertains to subsidiary communications services broadcast by NCE FM radio stations. Under our rules, the licensee of an NCE FM station is not required to use its subcarrier capacity, but if it chooses to do so, it is governed by the SCA rules for commercial FM stations regarding the types of permissible subcarrier uses and the manner in which subcarrier operations are conducted. A significant difference from the commercial FM SCA rules, however, is the requirement that the remunerative use of an NCE FM station's subcarrier capacity not be detrimental to the provision of existing or potential radio reading services for the blind or otherwise inconsistent with its public broadcasting responsibilities.

45. Similarly, Section 73.127 of the Commission's rules permits AM broadcast stations to use their AM carriers to transmit signals not audible on ordinary consumer receivers for both broadcast and non-broadcast purposes. A station's AM carrier service authorization may not be retained or transferred in any manner separate from the station's license. The licensee must establish that the broadcast operation is in the public interest wholly apart from the subsidiary communications services provided. In the analog context, the station identification, delayed recording, and sponsor identification announcements required by Sections 73.1201, 73.1208, and 73.1212 are not applicable to leased communications services transmitted via services that are not of a general broadcast nature. For both AM and FM services, the licensee must retain control over all material transmitted in a broadcast mode via the station's facilities and has the right to reject any material that it deems inappropriate or undesirable.

46. iBiquity, in a partnership with broadcasters and equipment manufacturers, has developed IBOC data services for terrestrial radio stations. The IBOC system permits radio stations to offer varied and robust datacasting applications. Using an established standard ID3 format (ID3 is a file tagging software used to provide text information such as artist name and song title information. ID3 also supports text descriptions with ads, such as phone numbers and Web addresses.), information services can be used to provide listeners with song, CD title, and artist information. In addition, information and host profiles will complement advertisements and talk radio formats. Synchronized multimedia integration language (“SMIL”), a protocol used by iBiquity as the foundation for advanced application services (“AAS”), allows for the creation and delivery of new data services in the future. Some possible commercial applications envisioned by iBiquity include: (1) Enhanced information services such as weather and traffic alerts delivered to DAB receivers as a text and/or audio format; (2) enhanced advertising services; (3) listener controlled main audio services providing the ability to pause, store, fast-forward, index, and replay audio programming via an integrated program guide with simplified and standard user interface options; and (4) supplementary data delivery that will spur the introduction of automatic driving assistance applications, navigation and rear-seat entertainment programming. Robert Struble, iBiquity's CEO, has noted that the text of advertising messages could be synchronized to display on a DAB receiver's text screen at the same time as a related commercial is broadcast. We sought comment on whether we should permit radio stations to distribute any and all types of datacasting services. We also sought comment on what data services digital noncommercial educational stations should be permitted to offer.

47. iBiquity urges the Commission to authorize datacasting services and to include sufficient flexibility in the datacasting authorization to promote innovation in this area. iBiquity states that there is tremendous opportunity for the development of low-cost innovative datacasting services. iBiquity submits that the greater capacity and reliability of data services based on the IBOC system will help ensure that data services are introduced. It suggests that promotion of datacasting will help introduce new services to the public and will also provide added value for consumers who invest in IBOC receivers. NAB similarly asserts that datacasting services are still in the nascent stage, and that the Commission's main goal at this time should be to encourage and enable broadcasters to innovate and experiment with these aspects of digital radio. NAB maintains that providing broadcasters with flexibility in this area will expedite the emergence of DAB. Bloomberg states that the Commission must not unnecessarily limit the ability of the DAB platform to carry program-associated data or other additional, innovative data services. It argues that the best way to encourage investment, and thereby spur terrestrial radio broadcasters to make the conversion to DAB, is to provide broadcasters with the utmost flexibility to develop new digital applications. The SBAs state that the Commission should permit licensees to provide for datacasting, within the constraints of the IBOC technical standards, mainly because it would enhance the multiplicity of information sources. NPR states that the opportunity to offer datacasting services will motivate stations to develop new services beyond what is available today. It expects stations to use their technical capabilities to provide homeland security-related services, addressing local, regional, or national events and emergencies, and provide expanded weather alerts, traffic safety, and other public safety services.

48. Consistent with our decision with regard to audio multicasting services, we conclude that permitting broadcast licensees flexibility with regard to the provision of datacasting services is in the public interest. We will permit radio stations to provide any type of digital datacasting service, consistent with existing broadcast policies and rules applicable to analog SCA services, as long as it does not derogate the mandated stream of free audio programming. Our aim is to promote innovation and experimentation that will lead to applications that will serve the public, such as song and artist information as well as enhanced news, weather, and emergency updates. We note that, for reasons discussed infra, we will currently only allow datacasting that is subscription pursuant to an experimental authorization granted by the Commission.

49. Radio stations may wish to offer certain digital audio or data content under a subscription model. In this context, ancillary subscription services may be available for a fee or the listener may simply need to enter a code to access the service. IBOC DAB has the potential to limit access to certain channels by receiver serial number, just like satellite radio receivers are presently able to do. In the DAB FNPRM, we sought comment on whether we should permit ancillary subscription services. One proposal offered in the DAB FNPRM was to permit ancillary subscription services as long as they do not derogate the free services a radio station broadcasts. We also asked whether we should impose spectrum fees for that portion of digital bandwidth used for ancillary subscription services. Commenters generally urged the Commission to permit ancillary subscription services, but argued against the imposition of fees associated with the offering of such services. iBiquity argues that broadcasters can currently provide both datacasting and supplemental audio channels using SCA analog frequencies without incurring additional spectrum fees and the same approach should be applied to digital services. NAB states that it would be inappropriate to consider fees at this time because a fee requirement would have the effect of discouraging innovation and new services that would benefit the public. Nevertheless, we remain concerned that pay services, left unrestricted, could overwhelm free over-the-air services, to the detriment of the listening public. We expect terrestrial radio service to remain a free over-the-air service and, therefore, the amount of capacity devoted to ancillary subscription services must be limited. We thus seek further comment on ancillary subscription service issues in a Second Further Notice of Proposed Rulemaking, found below. Until this Rulemaking is completed and a determination is made regarding assessment of the five percent fee, discussed infra, we will only allow ancillary subscription services pursuant to an experimental authorization granted by the Commission. We would grant such authorizations for uses that serve the public interest, including current subcarrier services like radio reading services.

50. NCE radio stations face unique opportunities and challenges as they move to implement DAB. The Act states that a “noncommercial educational broadcast station” must be “owned and operated by a public agency or nonprofit private foundation, cooperation, or association” or “owned and operated by a municipality and which transmits only noncommercial programs for educational purposes.” In 1981, Congress amended the Act to give NCE stations more flexibility to generate funds for their operations. As amended, Section 399B of the Act permits NCE stations to provide facilities and services in exchange for remuneration as long as those uses do not interfere with the station's “provision of public telecommunications services.” Section 399B also requires that public stations engaged in revenue generating activities comply with accounting procedures designed to separately identify these commercial revenues and costs, and it prohibits Corporation for Public Broadcasting funds from being used to defray any costs associated with these activities. Section 399B, however, does not permit NCE stations to make their facilities “available to any person for the broadcasting of any advertisement.” Section 73.503 of the Commission's rules addresses the licensing requirements and service of NCE FM stations. Under our rules, an NCE FM broadcast station will be licensed only to a nonprofit educational organization and upon showing that the station will be used for the advancement of an educational program. Although the Commission does not reserve frequencies for NCE use in the AM service, and thus has not codified noncommercial eligibility rules for this service, the Commission has treated AM stations that satisfy the NCE FM eligibility rules as noncommercial AM stations. Under Section 73.621 of the Commission's rules, public television stations are required to furnish primarily an educational as well as a nonprofit and noncommercial broadcast service. Section 73.621 of the Commission's rules provides that “noncommercial educational broadcast stations will be licensed only to nonprofit educational organizations upon a showing that the proposed stations will be used primarily to serve the educational needs of the community; for the advancement of educational programs; and to furnish a nonprofit and noncommercial television broadcast service.”

51. In 2001, the Commission concluded that an NCE television licensee must use a substantial majority of its digital television capacity for nonprofit, noncommercial, educational broadcast services. In addition, the Commission held that the statutory prohibition against broadcasting of advertising on NCE television stations applies to broadcast programming streams provided by NCE licensees, but does not apply to any ancillary or supplementary services presented on their excess DTV channels that do not constitute broadcasting. Like commercial DTV stations, NCE DTV licensees must pay a fee of five percent of gross revenues generated by ancillary or supplementary services provided on their DTV service. In Office of Communication, Inc. of United Church of Christ v. F.C.C. , the U.S. Court of Appeals for the District of Columbia Circuit upheld the DTV NCE A&S Order . In the DAB FNPRM, we sought comment on what, if any, special rules or considerations should apply to NCE radio stations in light of our decision regarding NCE DTV stations and the D.C. Circuit's UCC decision. We also sought comment on how we can ensure NCE radio stations remain noncommercial in nature as the radio industry converts to DAB.

52. NPR favors a flexible use policy for NCE station digital bandwidth. It states that it does not expect the remunerative use of digital bandwidth to result in a profusion of commercial service offerings by NCE radio stations. NPR further states that it expects any subscription or other services provided by NCE stations to relate to each station's NCE mission. For instance, although subscription services are not anticipated for several generations of digital radio receivers, some NCE radio stations may experiment with offering “pledge-free,” but otherwise identical, versions of their free over-the-air services to those listeners who financially support the station. NPR adds that since the authorization of enhanced underwriting and remunerative subcarrier services in the early 1980s, the ensuing diversity of revenue sources has emerged as the key to public radio's independence from any single revenue source. According to NPR, while the remunerative use of NCE station facilities and analog spectrum has, to date, provided only modest amounts of revenue, the remunerative use of digital technology will enable NCE stations to better weather the periodic downturns in corporate and foundation underwriting, membership dues, and, in the case of public radio, State and Federal funding.

53. PIC argues that NCE radio stations, like NCE television stations, should be obligated to “use their entire digital capacity primarily for a nonprofit, noncommercial, educational broadcast service,” meaning a “substantial majority” of the entire digital capacity. PIC urges the Commission not to repeat the “error” it made in authorizing NCE DTV stations to offer remunerative services. PIC also asserts that the “over commercialization” resulting from remunerative activities will discourage public support for public broadcasting. PIC additionally claims that allowing NCE radio stations to offer advertising supported non-broadcast services violates the intent underlying the original reservation of spectrum and will reduce “ratio of noncommercial-to-commercial programming.”

54. NPR objects to PIC's suggestions, stating that NCE television stations are subject to a more exacting regulatory mandate to furnish “primarily” a non-profit and noncommercial television broadcast service. NCE radio stations, on the other hand, are licensed “for the advancement of an educational program.” NPR notes that the Commission adopted a higher standard for NCE television stations because such stations use greater amounts of spectrum, have more extensive coverage areas, and are far fewer in number. NPR also asserts that requiring NCE radio stations to reserve a “substantial majority” of their entire digital capacity for a free NCE service would significantly restrict station flexibility to determine the appropriate mix of services, and how much capacity to devote to each, based on the specific needs of their community of service. NPR states, for example, that such a “substantial majority” requirement would prevent stations from dividing the 96 kbps bitstream into two 48 kbps service streams. This is an approach that WAMU-FM is pursuing, as it has found that splitting the bandwidth evenly into 48 kbps each was “extremely good” for both the main and the supplemental channel. According to NPR, a minimum quantitative requirement, and one requiring a “substantial majority” of the bitstream, in particular, would countermand the inevitable improvement in audio coding technology that will otherwise permit higher quality audio using fewer kilobits.

55. We defer consideration of the issues discussed above to a later date. As noted above, we have decided to further examine the offering of subscription services in a Second Further Notice of Proposed Rulemaking . In addition to our concern about maintaining the free nature of all terrestrial radio services, we wish to preserve the noncommercial educational nature of NCE service. We will address both issues after considering the comments in response to our Second Further Notice of Proposed Rulemaking . In any event, we hold that an NCE radio station is obligated, like its commercial counterpart, to provide at least one free over-the-air digital programming stream that is comparable to or better in audio quality than its analog signal.

56. In 2000, the Commission authorized the licensing of two new classes of FM radio stations, one operating at a maximum power of 100 watts and one operating at a maximum power of 10 watts. We note that a 100-watt Low Power FM station can serve an area with a radius of approximately 3.5 miles. The Commission has yet to authorize any 10 watt stations in the LPFM service. Both types of stations, known as low power FM (“LPFM”) stations, were authorized in a manner that protects existing FM service. The Commission stated that LPFM stations would be operated on a NCE basis by entities that do not hold an attributable interest in any other broadcast station or other media subject to our broadcast ownership rules. The Commission established the new LPFM service to create new broadcasting opportunities for locally-based organizations to serve their communities. In the DAB FNPRM, we sought comment on the conversion of LPFM stations to digital operation and the potential impact of such a conversion on other stations.

57. iBiquity states that LPFM stations should have the option to convert to digital operations. It states that IBOC-based equipment can operate at the 100-watt power levels authorized for LPFM service. iBiquity asserts that in the case of 10-watt stations, however, the extremely low power level of those stations may make digital broadcasts infeasible. The IBOC system broadcasts the digital signal at one percent of the station's analog power level. In the case of a 10-watt LPFM station, that digital power level would fall below the noise floor and would be difficult for any digital receiver to recover; however, this would not be the case with 100-watt LPFM stations. iBiquity notes that because these LPFM stations are required to comply with the Commission's adjacent channel interference restrictions, the introduction of digital broadcasts by these stations should not create harmful new interference.

58. We find that if an LPFM station intends to transmit in digital, and is technically capable of doing so, there should be no regulatory impediments preventing its adoption of the IBOC technology. We recognize that LPFM is a new service which involves non-commercial, community-oriented stations and that these stations have limited resources. We are committed to working with these stations to address issues regarding their transition to digital as they arise. We note that in 2005 the Commission released a Second Order on Reconsideration and Further Notice of Proposed Rulemaking, which further advanced the introduction of LPFM service in numerous areas across the United States. This Second Order addressed technical, operational, and ownership issues necessary for the further development of the service. In the Second Order on Reconsideration, the Commission modified its rules governing minor changes and technical minor amendments for LPFM stations. We also clarified the definition of locally originated programming for purposes of resolving mutually exclusive LPFM applications. In the Further Notice of Proposed Rulemaking , the Commission sought comment on a number of technical and ownership issues related to LPFM.

59. Under Section 73.1695 of the Commission's rules, the Commission considers whether a proposed change or modification of a transmission standard for a broadcast station would be in the public interest. Sections 73.3571 and 73.3573 of the Commission's rules discuss the processing of AM and FM broadcast station applications, respectively. In the DAB FNPRM, we sought comment on what, if anything, the Commission should do to amend or replace these procedural requirements in the context of DAB. With regard to mandatory paperwork, Section 73.3500 of the Commission's rules lists the applications and report forms that must be filed by an actual or potential broadcast licensee in certain circumstances. In the DAB FNPRM, we sought comment on which forms and applications must be modified because of DAB. We note that the following forms may be at issue: (1) Form 301—Application for Authority to Construct or Make Changes in a Commercial Broadcast Station; (2) Form 302-AM—Application for AM Broadcast Station License; (3) Form 302-FM—Application for FM Broadcast Station License; (4) Form 340—Application for Authority to Construct or Make Changes in a Noncommercial Educational Broadcast Station; (5) Form 349—Application for Authority to Construct or Make Changes in an FM Translator or FM Booster Station; and (6) Form 350—Application for an FM Translator or FM Booster Station License. In the DAB FNPRM, we sought comment on any specific changes to these forms. We find that certain changes to our licensing processes are necessary to accommodate DAB operations. Rather than amend the administrative licensing requirements and generate new forms now, however, we will delegate the authority to make such changes, to the extent possible, to the Media Bureau. This delegation permits the Bureau staff to make changes on an expedited basis as circumstances warrant, subject to Office of Management and Budget approval under the Paperwork Reduction Act.

60. The DAB FNPRM sought comment on a number of policies and requirements impacting the public interest. Such subjects as sponsorship identification, political advertising, and cigarette advertising were raised for comment. The Commission received extensive comment on several issues, including radio reading services, the emergency alert system, and station identification. Therefore, these subjects are discussed separately below.

61. It is incumbent upon the Commission to ensure that broadcast radio and television stations serve the “public interest, convenience and necessity.” To ensure that broadcasters’ service meets this high standard, both the Congress and the Commission have devised various program-related and operational duties that licensees must discharge. Broadcasters, for example, are required to air programming responsive to community needs and interests and have other service obligations. We remain committed to enforcing our statutory mandate to ensure that broadcasters serve the public interest and remind broadcasters of the importance of meeting their existing public interest obligations. We also encourage them to increase public disclosure of the ways in which they serve the public interest. Our current requirements, including those implementing specific statutory requirements, were developed for broadcasters who were essentially limited by technology to a single, analog audio programming service and minor ancillary services. The potential for a more flexible and dynamic use of the radio spectrum, as a result of IBOC, gives rise to important questions about the nature of program-related and operating obligations in digital broadcasting because the scope of those responsibilities has not been defined.

62. In the DAB FNPRM, we sought comment on how to apply such obligations to DAB. We also tentatively concluded that the conversion to DAB will not require changes to the following requirements: (1) Sections 312(a)(7) (Section 312(a)(7) provides that “[t]he Commission may revoke any station license or construction permit for willful or repeated failure to allow reasonable access to or permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy.” This right of access does not apply to candidates for state or local offices.) and 315 (Section 315(a) of the Act, as amended, provides that “if any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station.”) Section 73.1940 of the Commission's rules defines “legally qualified candidate” as any person who has publicly announced his or her intention to run for nomination or office, is qualified under the applicable local, State, or Federal law to hold office for which he or she is a candidate, and has qualified for ballot placement or has otherwise met all the qualifications set forth in the Commission's rules. In addition, both the Act and the rules narrowly define the term “use” and exclude from the definition candidates’ appearances in bona fide newscasts, interviews, documentaries, and the on-the-spot coverage of news events. Licensees have no power of censorship over the material broadcast under the equal opportunity provisions of Section 315(a). Two years ago, Congress amended the lowest unit charge provision of Section 315, codified the Commission's existing political file rule, and expanded that rule to require that a broadcast's station's public file contain information regarding certain issue advertising. The Supreme Court upheld these amendments to the Communications Act in McConnell v. FEC ), of the Act and Sections 73.1940-44 of the Commission's rules—political broadcasting; (2) Section 507 of the Act and Section 73.4180 of the Commission's rules—payment disclosure; (Section 507 of the Act states that “Any employee of a radio station who accepts or agrees to accept from any person (other than such station), or any person (other than such station) who pays or agrees to pay such employee, any money, service or other valuable consideration for the broadcast of any matter over such station must, in advance of such broadcast, disclose the fact of such acceptance or agreement to such station.”). The requirement, in industry parlance, addresses “payola” and “plugola.” Payola occurs when a station fails to announce the receipt of something valuable in return for the inclusion of material in a broadcast. Plugola describes a situation in which a station fails to identify an outside business interest of the licensee, its parent, its affiliates, or an employee in the broadcast of particular materials.) (3) Section 508 of the Act—prohibited contest practices; (Section 508 of the Act addresses prohibited practices in contests of knowledge, skill, or chance. Under the Act, it is unlawful for any person, with intent to deceive the listening or viewing public, to supply to any contestant in a purportedly bona fide contest of intellectual knowledge or intellectual skill any special and secret assistance whereby the outcome of such contest will be in whole or in part prearranged or predetermined.) (4) Section 317 of the Act and Section 73.1212 of the Commission's rules—sponsorship identification (Section 317 of the Act and the Commission's rules state that all matter broadcast by any radio station for which any money, service or other valuable consideration is directly or indirectly paid, must announce that such matter is paid for or furnished by the paying party.); (5) Section 1335 of Title 15 and Section 73.4055 of the Commission's rules—cigarette advertising; (Section 1335 of Title 15 of the U.S. Code, and the Commission's implementing regulations, makes it illegal to advertise cigarettes and little cigars on any medium of electronic communication subject to the Commission's jurisdiction. Thus, application of this rule to DAB is statutorily required.) and (6) Section 73.1208 of the Commission's rules—broadcast of taped or recorded material. Under Section 73.1208, any taped, filmed or recorded program material in which time is of special significance, or by which an affirmative attempt is made to create the impression that it is occurring simultaneously with the broadcast, must be announced at the beginning as taped, filmed or recorded. The language of the announcement shall be clear and in terms commonly understood by the public. The purpose of this rule is to avoid public confusion by informing the listening audience that the material presented is not being broadcast in real time. However, we sought comment on how such requirements should be applied to multicast services and whether the requirements apply to subscription services.

63. In its comments, PIC outlines certain areas in which the Commission should take action to ensure digital radio stations adequately serve the public interest. Specifically, PIC promotes the following six principles: (1) Free, over-the-air radio is a vital national interest that must be preserved and protected for civic, public safety, informational, and cultural reasons; (2) broadcasters must add as much additional capacity for the provision of new and independent voices or for serving underserved communities as they add for other purposes, such as offering commercial services that increase format diversity or subscription services; (3) radio must use digital technology to improve its offering of emergency information to all audiences, including those listening to subscription services, no later than it deploys other new services; (4) core statutory obligations must apply to all newly-created digital channels, and need modest alteration for a digital environment; (5) benefits that accrue to digital audio broadcasters must be accompanied by specific public interest obligations enforced through Commission rules and renewal processing guidelines; and (6) the Commission must ensure that technology advancements support a broader benefit to the public. For example, PIC suggests that a broadcaster's statutory obligations should apply to all DAB streams ( i.e. , free, subscription, and multicast streams). PIC also recommends that the Commission develop a flexible “menu” of additional public interest obligations and impose such obligations when a broadcaster chooses to implement subscription or other non-advertising based services. PIC advocates that this menu should place the highest priority on offering capacity for audio programming to non-affiliated noncommercial programmers, “small disadvantaged businesses,” and commercial programmers serving underserved audiences. The menu should also include options to offer additional news and public affairs programming, and to offer public interest data services. WRAL-FM suggests that all radio and television stations should be required to meet certain minimum standards of public interest performance. It states that a voluntary code of conduct should be adopted to encourage higher than minimum standards for the broadcast industry and all stations should be required to report quarterly on their public interest activities.

64. NAB states that existing public interest obligations generally should apply to hybrid radio stations. NAB asserts, however, that it is premature for the Commission to impose more specific or additional public interest obligations on new multicast audio services or on datacasting services. NAB argues that the proposals made by PIC lack justification, are impracticable and overly burdensome, and present a number of policy, statutory and constitutional problems. With regard to subscription services specifically, NAB notes that the Commission has in the past declined to impose traditional “broadcast type” public interest obligations on subscription services (including video and audio program services), especially when those services are in their nascent stage of development. The NAB, citing Subscription Video, asserts that the Commission has declined to impose traditional broadcast regulations on subscription services carried on FM subcarrier frequencies, such as background music programs. NAB argues that the Commission should refrain from applying the various “broadcast type” public interest requirements to IBOC radio subscription services, at least until those services, if any, have matured. In any event, NAB states that this proceeding, which is focused on radio stations' implementation of IBOC, is not the proper vehicle for rewriting the Commission's broadcast public interest regulations that apply to both television and radio stations. NAB states that the proposals made by PIC and other commenters are being specifically, thoroughly, and more properly addressed in one or more pending proceedings focusing on broadcasters' public interest obligations.

65. We conclude that applying statutory and regulatory public interest requirements currently imposed on analog radio to digital radio is both necessary and the proper course of action. Specifically, the following requirements apply: (1) Political broadcasting; (2) payment disclosure; (3) prohibited contest practices; (4) sponsorship identification; (5) cigarette advertising; and (6) broadcast of taped or recorded material. Further, we will impose these requirements on all free over-the-air digital audio programming streams. The application of these requirements to subscription services is addressed in the Second Further Notice of Proposed Rulemaking , below.

66. Additionally, radio stations operating in a digital format must comply with all other public interest obligations applicable to radio broadcasters while operating in that mode. That is, a radio station providing digital audio programming service analogous to the analog audio service subject to regulation by the Commission must comply with such regulations that apply to that service, unless otherwise specified or clarified in this Second Report and Order . The Commission's station log and public file requirements, under Section 73.1820 and Sections 73.3526 and 73.3527, respectively, are some of the rules that apply in this context. Other statutory requirements and Commission regulations that apply to DAB, but need further explanation, are discussed below. We again remind broadcasters of the importance of meeting their existing public interest obligations and encourage them to increase public disclosure of the ways in which they serve the public interest.

67. While we move forward and apply existing public interest obligations to all free digital broadcast streams, we will not adopt new “public interest” requirements in this Second Report and Order . The commenters have raised important and complex issues concerning how broadcasters' public interest obligations should be tailored to the new radio services made possible through digital technology. Given the substance and scope of the proposed requirements, we conclude that it is best to defer consideration of any new public interest obligations (of the type envisioned by PIC, for example) so that we can, instead, promptly establish basic operational requirements in this proceeding. Radio stations using IBOC DAB technology, at this stage in the conversion process, are generally offering basic hybrid service where the digital signal replicates the programming of the analog signal. Thus, for the immediate future, we do not expect novel public interest problems to arise in this context.

68. The Commission will issue an annual report as to how the new digital radio services are being rolled out, whether multicast streams are being offered, and the extent to which programming on digital radio and on the multicast streams are fostering the services described in paragraph 37. We will obtain data for the report by periodically surveying digital audio broadcasters as to the status of their new services.

69. Under Section 73.1201 of the Commission's rules, broadcast station identification announcements must be made at the beginning and end of each time of operation, and as close to the hour as feasible, at a natural break in programming. Official station identification consists of the station's call letters immediately followed by the community or communities specified in its license as the station's location. The name of the licensee or the station's frequency or channel number, or both, as stated on the station's license may be inserted between the call letters and station location. In the DAB FNPRM , we sought comment on whether the station identification rules should apply to all digital audio content of a radio station. Specifically, we sought comment on how a station should identify audio channels other than the main channel. We asked whether there should be separate call letters for separate streams. We also sought comment on how any proposed rule should differ, if at all, for AM radio stations. There are rules for simultaneous AM (535-1605 kHz) and expanded band AM (1605-1705 kHz) broadcasts. If the same licensee operates an AM broadcast station in the 535-1605 kHz band and an AM broadcast station in the 1605-1705 kHz band with both stations licensed to the same community and simultaneously broadcasts the same programs over the facilities of both such stations, station identification announcements may be made jointly for both stations for periods of such simultaneous operations.

70. PIC states that clearly understandable station identification rules, differentiating between multiple channels offered by the same licensee, and identifying the owner and location of the owner of the station, are necessary to allow the public to identify the source of the programming. It further states that the Commission should expand the call letters that a station uses to identify itself to allow listeners to easily remember which station and channel they are tuned. PIC adds that call letters are an important mechanism the public and the Commission use to identify particular broadcast streams, especially in the indecency context.

71. iBiquity argues against any proposal to create a separate station identification requirement associated with digital broadcasts. iBiquity argues that because hybrid radio stations (that do not multicast) broadcast identical programming throughout the day, there is no need for additional identification requirements. iBiquity asserts that broadcasting a separate digital call sign would require significant system and equipment modifications that will deter conversions to digital broadcasts.

72. The SBAs state that multicast programming streams should not be subject to station identification requirements. They argue that such requirements are unnecessary for listener recognition and Commission enforcement efforts. A radio station will voluntarily identify its channel position to listeners to develop market recognition. According to the SBAs, stations now identify themselves, their call sign, identifier slogan, community of license and dial position ( e.g. , “Z105.3”) far more often than the Commission's rules require. They assert that further station identification requirements, which reduce broadcast flexibility, are not needed to ensure listener recognition of particular broadcast channels. Additionally, with new digital technologies, the call letters of the licensee can be embedded into the bit-stream of a channel. Thus, the Commission will have a means to easily identify a station and monitor its compliance with broadcast rules. The SBAs posit that DAB technology permits a visual identification on all receivers (through an identification included in the transmitted bitstream), eliminating the need for an hourly aural identification.

73. We find that station identification requirements for DAB stations are necessary to facilitate public participation in the regulatory process, a key element in the Commission's supervision of broadcast licensees. Accordingly, we will implement the following regulations. First, both AM and FM stations with DAB operations will be required to make station identification announcements at the beginning and end of each time of operation, as well as hourly, for each programming stream. Second, proper identification consists of the station's call letters followed by the particular program stream being broadcast and the community or communities specified in the station's license as the station's location. Stations may insert between the call letters and the station's community of license the station's frequency, channel number, name of the licensee, and/or the name of the network, at their discretion. Third, a radio station operating in DAB hybrid mode must identify its digital signal, including any free multicast audio programming streams, in a manner that appropriately alerts its audience to the fact that it is listening to a digital audio broadcast. This requirement can be met through auditory means ( i.e. , voiceovers), textual means ( i.e. , datacast text appearing on the receiver's readout), or any other reasonable means of communication. As stations convert to a digital format and elect to provide multicast programming, thereby increasing the number of program streams potentially available to the public, clear identification of the station providing the programming, as well as the particular program stream being broadcast, becomes increasingly important, both for listeners and for stations themselves. These policies and rules are similar to those adopted by the Commission for DTV stations and support our goal of applying similar rules to similarly situated broadcasters.

74. The current emergency alert system (“EAS”) requirements are codified in part 11 of the Commission's rules and, inter alia , mandates the delivery of a “Presidential message” in the case of a national emergency. Along with its primary role as a national public warning system, EAS and other emergency notification mechanisms, are part of an overall public alert and warning system, over which the Federal Emergency Management Agency (“FEMA”) exercises jurisdiction. EAS use as part of such a public warning system at the state and local levels, while encouraged, is merely voluntary.

75. Section 73.1250 of the Commission's rules further specifies the substance and scope of the emergency information being broadcast. Under our rules, and if requested by government officials, a station may, at its discretion, and without further Commission authorization, transmit emergency point-to-point messages for the purpose of requesting or dispatching aid and assisting in rescue operations. If EAS is activated for a national emergency while a local area or state emergency operation is in progress, the national level EAS operation must take precedence. Emergency situations in which the broadcasting of information is considered as furthering the safety of life and property include, but are not limited to the following: tornadoes, hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy snows, widespread fires, discharge of toxic gasses, widespread power failures, industrial explosions, civil disorders and school closing and changes in school bus schedules resulting from such conditions. AM stations may, without further Commission authorization, use their full daytime facilities during nighttime hours to broadcast emergency information when necessary for the safety of life and property, in dangerous conditions of a general nature, and when adequate advance warning cannot be given with the facilities authorized. All activities must be conducted on a noncommercial basis, but recorded music may be used to the extent necessary to provide program continuity. In the DAB FNPRM , we tentatively concluded that Section 73.1250 should apply to all audio streams broadcast by a radio station because the emergency information mandate can only be fulfilled if it is broadly applied.

76. The SBAs state that it is in the public interest to extend the emergency alert system to all audio streams broadcast by a radio station. NPR states that each free over-the-air audio program service should participate in the EAS system. Using relatively inexpensive distribution amplifiers and switching devices, NPR states that radio stations should be able to carry EAS or other emergency information virtually instantaneously via each free over-the-air program channel. However, NPR does not believe stations should be compelled to offer additional, unspecified “emergency” or other services as a condition to offering any data services. NAB argues that any questions regarding EAS equipment requirements for DAB should be set aside until a later date.

77. Subsequent to the release of the DAB FNPRM, the Commission adopted a Notice of Proposed Rulemaking seeking comment on rule changes for the emergency alert system. In that proceeding, the Commission asked how the EAS system can be improved to be a more effective mechanism for warning the American public of an emergency. The action originated, in part, from recommendations of the Media Security and Reliability Council (an FCC Advisory Committee) and the Partnership for Public Warning. The Commission specifically sought comment on IBOC DAB and how the EAS system should apply to additional digital multicast programming streams. In November 2005, we revised our Part 11 EAS rules to apply to all radio stations operating in a digital mode and required such stations to air all national EAS messages on all audio streams, including subscription services. We found that all listeners should be informed of critical emergency information regardless of which audio stream they are listening to. We also clarified that if DAB stations choose to participate in state and local EAS activations, they must comply with Part 11. The Commission stated that such rules will become effective on December 31, 2006.

78. With regard to Section 73.1250, we note that a digital simulcast of an analog radio signal will, by virtue of the IBOC system design, be transmitting EAS information. Thus, listeners of the free digital simulcast will be able to access important emergency information per the existing requirements. As for multicast digital audio programming streams, we will apply the mandates of Section 73.1250 to all DAB audio streams in accordance with the revisions made to our Part 11 requirements. The public benefit of the Commission's emergency information requirements can only be realized if the rule is applied in this manner.

79. Radio reading services for the blind (“RRS”) have been one of the critical public interest services provided by radio stations and others across the country. Radio reading services are conducted by nonprofit organizations that read printed materials over electronic media for persons who are visually impaired. Radio reading services operate on FM radio subcarrier channels, usually under a leasing arrangement. Alternatively, RRS use cable television systems, a television station's second audio program (“SAP”), or the main channel of an AM or FM radio station. RRS represents the most frequent use of subcarrier channels on noncommercial stations. In 1983, the Commission held that public radio stations, subject to Section 399B of the Act, using subcarriers for remunerative activities must ensure that neither existing nor potential RRS are diminished in quality or quantity by the pursuit of commercial subcarrier undertakings. The Commission held that a station using one of its subcarriers for commercial purposes would be obliged to accommodate RRS on its other subchannel to ensure the availability of alternative subchannel capacity for such services. In the DAB R&O , we raised concerns about the level of interference to analog SCA services and its potential impact on RRS. In the DAB FNPRM , we sought further comment on measures to protect established SCA services from interference.

80. Protecting Analog Radio Reading Services From Interference . According to iBiquity, previous field tests presented to the Commission and the NRSC demonstrate that, except in limited circumstances, DAB stations operating on second-adjacent channels will not cause harmful interference to analog radio reading services and other SCA services. iBiquity asserts that since the scaling of the HDC codec to obtain additional capacity for multicasting or datacasting only impacts the audio of the main channel signal, and not the bandwidth occupancy, it cannot change the interference potential from the digital signal. Although using the extended hybrid mode increases the bandwidth occupancy, it extends inward toward the host signal rather than outward toward adjacent channel stations. Thus, iBiquity argues the use of the extended hybrid mode cannot increase interference to adjacent channel SCA signals. iBiquity states that although the extended hybrid mode could possibly increase the potential for interference to the host station's existing analog SCA services, the host station has the ability to address this situation.

81. In 2002, NPR commissioned a study to estimate the number of listeners potentially affected by additional interference from IBOC in the top 16 radio markets. The results show that, on average, additional interference from IBOC could affect 2.6 percent of eligible radio reading service receivers within an FM station's service area. Harris points out that the NPR study used mathematically averaged receiver performance data to estimate interference potential in the top 16 radio markets. Harris emphasizes that actual interference is not widespread, and that any possible degradation to radio reading services may be ameliorated, at least in part, through antenna alignment, substitution of a higher quality analog receiver, or carrying the programming on a digital SCA channel. Harris states that it will be testing the use of the extended hybrid digital system to provide for a digital transition of RRS. Harris recommends that the Commission adopt and enforce the revised FM RF mask proposed by iBiquity to further mitigate interference to SCA services, other digital services, and second adjacent channel analog FM services.

82. These RR Services provide tremendous value and we wish to encourage their development in a digital environment. Based on the record, it does not appear that interference generated by IBOC is likely to cause significant harm to analog SCA reading services. Nevertheless, the Commission staff will act on complaints in the rare cases in which interference is shown to cause a problem. In the meantime, we encourage NPR and other parties to continue independent testing that will provide us with data on possible interference in particular circumstances in specific areas. We will defer considering Harris' recommendation on the RF mask until such test results are made available.

83. Digital Radio Reading Services. IAAIS urges the Commission to adopt rules requiring digital radio stations to carry digital RRS. IAAIS essentially argues that before any radio station offers income generating secondary audio streams, it should be required to first provide digital bandwidth for RRS. IAAIS suggests that digital RRS will be best accommodated on the extended hybrid mode where the IBOC codec can easily process human speech. IAAIS additionally states that the digital information sent to radios can be accessed only after authorization, thus protecting the reading service copyright exemption for use of the thousands of print materials read aloud. iBiquity opposes IAAIS's request that the Commission require digital radio stations to offer capacity for RRS. iBiquity asserts that the radio reading services do not need a dedicated 20 or 24 kbps channel to match their current service. iBiquity indicates that high quality “voice” channels can be attained using 8 or 10 kbps codecs designed for those low bit rates. In some cases, those codecs can support voiceover programming with background music. Although this class of codec is not designed for higher quality music, iBiquity asserts that high quality music programming would be beyond the mission of the reading service stations. iBiquity states that it will identify a suitable solution that can function at 12 kbps. NPR asserts that it is inappropriate to consider IAAIS's proposals at this stage of the DAB conversion process because more testing of digital RRS needs to be undertaken before regulations are considered. We decline to impose a digital RRS requirement, or place conditions of the type suggested by IAAIS, on radio stations at this time. The Commission does not require radio stations to offer analog RRS and there is no substantial evidence in the record supporting enhanced RRS requirements for DAB. Moreover, we find that any type of RRS requirement would run counter to our flexible bandwidth policy. However, we reiterate our recognition of the value of such services and encourage their deployment in the digital environment. We also decline to adopt new policies addressing the interplay between remunerative services offered by NCEs and the availability of RRS, similar to the requirements in Section 73.593 of the Commission's rules, because the business and programming decisions of noncommercial stations are not yet known. This will be an issue addressed in a DAB periodic review in the future.

84. Receiver Requirements. IAAIS urges the Commission to require all digital receivers to include RRS capabilities. In addition, IAAIS asks the Commission to require tactile controls and other accessibility features to be built into every digital receiver. iBiquity opposes new requirements for radio equipment manufacturers, arguing that it would impair the development of DAB. It further asserts that the imposition of new and potentially expensive regulations on the design and features of digital receivers will create a strong disincentive for manufacturers to introduce digital devices, particularly if these accessibility features would require significant development work or redesign of radio receivers. According to iBiquity, these regulations would not only increase the costs of digital radio for consumers, but it also would slow the introduction of digital receivers and the IBOC transition.

85. Our goal is to see RRS services deployed. As noted below, voluntary industry efforts in this regard are continuing and show substantial promise. In addition, reception devices for analog RRS are available as stand-alone equipment for those with visual impairments. Such consumers may subscribe to RRS services and be able to obtain an RRS receiver if they so desire. Consumer electronics manufacturers, however, are under no obligation to build analog audio receivers with RRS capabilities nor should they be required to manufacture IBOC receivers with RRS functionalities. IAAIS's proposed mandates would make it more costly to produce DAB receivers, which in turn, would make it more expensive for consumers to purchase equipment. We note that there is no express statutory provision requiring such capabilities. IAAIS relies on Section 255 of the Telecommunications Act of 1996 as the basis for some of its requests. This section codifies the responsibilities of telecommunications manufacturers and service providers to meet the needs of the disabled. This section, however, applies to entities regulated under Title II of the Act. It does not impose any requirements on broadcasters regulated under Title III of the Act or on manufacturers of broadcast -related equipment. Moreover, we recognize that any regulation of broadcast reception equipment is subject to the limitations identified in recent court precedent. Although we will not require RRS capability at this time, we do not rule out the possibility of revisiting the issue in the future should the need arise.

86. Voluntary Industry Efforts. iBiquity states that it has been working with the IAAIS to ensure that radio reading services are accommodated as radio stations convert to digital. iBiquity notes that it is developing a conditional access solution for the IBOC system to ensure that reading services are able to maintain their copyright exemption. iBiquity is supplying software, hardware and laboratory facilities to facilitate additional testing to determine the appropriate low bit rate codec that can be used for reading services. iBiquity states that even though it has engineered the HDC codec to function at bit rates low enough to accommodate reading services, it has consistently assured the reading services that the IBOC system will operate compatibly with any low bit rate codec the reading services select for inclusion in reading service devices. NPR states that it is exploring the use of the extended hybrid spectrum for the digital transmission of radio reading services. Pursuant to a Corporation for Public Broadcasting grant, NPR conducted full perceptual testing of the latest low- and very low-bit rate digital audio coders that may be used for radio reading services audio. NPR plans additional tests to measure the coverage capabilities of extended hybrid operation. With predictions that the prevalence of visual disabilities will increase markedly during the next 20 years as the U.S. population ages, NPR expects NCE stations to continue leading the way in offering assisted living services, including radio reading services for the “print-impaired.” We are encouraged by the voluntary steps taken by iBiquity and NPR, so far. We urge these parties to work with IAAIS to forge a resolution that would benefit all parties involved.

87. In the DAB FNPRM, we asked how the conversion to DAB would affect the “minimum hours of operation” requirement in Sections 73.1740 and 73.561 Under the relevant rules, AM and FM commercial stations are required to operate two-thirds of the total hours they are authorized to operate between 6 a.m. and 6 p.m. local time and two-thirds of the total hours they are authorized to operate between 6 p.m. and midnight, local time, each day of the week except Sunday. NCE FM stations are required to operate at least 36 hours per week, consisting of 5 hours of operation per day on at least 6 days per week. The SBAs state that multicasting changes the way radio stations operate. It states, for example, that the Commission may want to support multicast streams, which do not operate two-thirds of the total hours they are authorized to operate between 6 a.m. and 6 p.m. and two-thirds of the total hours they are authorized to operate between 6 p.m. and midnight, in order to promote more digital multicasting on the air. We find merit in the SBAs arguments and will permit radio stations to set their own schedule for DAB hybrid mode broadcasts as well as additional multicast streams at this stage of the DAB conversion process. We note that multicasting is at the discretion of the licensee stations; therefore they should be allowed to schedule separate streams as they wish. This flexible policy will encourage more radio stations to experiment with new programming services that interest the public. We will revisit this issue, if necessary, in future periodic reviews.

88. In the DAB FNPRM, we sought comment on the application of Sections 73.132 and 73.232, the territorial exclusivity rules for AM and FM stations. Under these rules, no licensee of an AM or FM broadcast station shall have any arrangement with a network organization that prevents or hinders another station serving substantially the same area from broadcasting the network's programs not taken by the former station, or which prevents or hinders another station serving a substantially different area from broadcasting any program of the network organization. This section does not prohibit arrangements under which the station is granted first call within its primary service area upon the network's programs. The SBAs states that changes will not be necessary to these requirements due to the advent of DAB. With regard to these requirements, we note that the rules apply to the licensees themselves and not the content being broadcast. Due to the expansive language contained in the current requirements, and the pro-competition policies reflected therein, the territorial exclusivity rules apply to all free digital audio programming streams. Any novel issues that may arise from our decision here will be addressed on a case-by-case basis.

89. In the DAB R&O, we declined to authorize nighttime IBOC operation by AM stations because there were insufficient test results in the record to support that action. In 2004, NAB submitted its analysis of AM nighttime IBOC tests conducted by iBiquity and recommended that the Commission “extend the current interim authorization for IBOC service to permit nighttime AM broadcasts.” On April 14, 2004, the Commission issued a Public Notice seeking comments on the NAB recommendations. Most of the comments received from broadcasters, such as the SBAs, support NAB's recommendation that the Commission extend current interim authorizations of IBOC service to nighttime AM broadcasts. Several other commenters, however, object to nighttime AM IBOC operations citing the potential for increased interference due to nighttime AM skywave propagation.

90. On balance, we find that the benefits of full-time IBOC operation by AM stations outweigh the slightly increased risk of interference. The studies performed by iBiquity and analyzed by NAB indicate that the greatest potential for interference occurs at the extremities of the nighttime coverage area of the desired station, primarily at locations where substantial interference from existing analog operations is already present. We do not anticipate increased interference within AM stations' core service areas. Furthermore, the interference management procedures established in the DAB R&O provide a mechanism whereby particular instances of interference can be readily resolved. Therefore, we will extend the permissible hours of IBOC interim operation for AM stations to include all hours during which a given station is currently authorized for analog operation, subject to the notification procedures established in the DAB R&O. In order to avoid unnecessary and repetitious notifications, we will not require those AM stations which have already notified the Commission of the commencement of daytime IBOC operation to file any further notification; authority for nighttime IBOC operation is automatically conferred upon those stations by the action taken herein. AM stations which file IBOC notifications with the Commission after the effective date of this Second Report and Order will be presumed to have commenced IBOC operation for all hours of currently authorized analog operation, unless the notification states otherwise. We note that many Class D AM stations are authorized for nighttime secondary operation with extremely low operating power, in some cases as low as one watt. In some cases, nighttime IBOC power may be so low as to render IBOC operation technically infeasible. Nighttime secondary operation for an AM station is operation with power less than 250 watts and antenna efficiency less than 241 millivolts per meter at one kilometer for one kilowatt input. We remind licensees that nighttime secondary analog operation by Class D AM stations does not carry any minimum operating schedule requirement, and that interim IBOC operation is entirely voluntary for all stations at the present time.

91. In the DAB R&O, we limited interim IBOC implementation to the systems that the NRSC had tested. With respect to FM antennas, the NRSC had tested a configuration in which the FM analog and digital signals were combined and fed into the same antenna. Consequently, FM stations implementing IBOC were initially required to use the single-antenna approach. Subsequent testing by NAB, however, showed that separate antennas could be used for the analog and digital FM signals within specified limits. NAB stated that the dual antenna approach is less costly for many FM stations, and may therefore encourage IBOC development. By Public Notice, we authorized FM stations to use dual antennas for IBOC pursuant to routine special temporary authorization (STA) procedures. We raised the issue of dual antennas for further comment in the DAB FNPRM. Commenters were unanimous in supporting the expansion of IBOC notification procedures to include dual antenna use, without the necessity of an STA request. We agree and accordingly authorize FM stations to implement IBOC without prior authority using separate antennas conforming to the criteria set forth in the Dual Antennas Public Notice. Stations must notify the Commission within ten days of the commencement of IBOC operations, consistent with the digital notification procedures already in place. In addition to the information required of all licensees initiating digital operations, FM licensees using dual antennas shall provide the following information: (1) Geographic coordinates, elevation data, and license file number for the auxiliary antenna to be employed for digital transmissions; and (2) for systems employing interleaved antenna bays, a certification that adequate filtering and/or isolation equipment has been installed to prevent spurious emissions in excess of the limits specified in 47 CFR73.317.

92. An FM translator station is a station operated for the purpose of retransmitting the signals of an FM station or another FM translator station without significantly altering any characteristics of the incoming signal other than its frequency and amplitude. An FM booster station is a station operated for the purpose of retransmitting the signals of an FM station by amplifying and reradiating such signals without significantly altering any characteristics of the incoming signal other than its amplitude. In the DAB FNPRM, we solicited comment on digital issues concerning FM translators and boosters. Commenters discussed the following seven issues: (1) Conversion of FM translator and booster stations to digital operation; (2) permissible uses of digital translator and booster stations; (3) use of FM translators and boosters to rebroadcast multiplexed audio streams; (4) use of dual output digital translators; (5) indefinite continuation of analog FM translator and booster station operation; (6) modifications of the currently permitted signal delivery methods for FM translators and boosters; and (7) requirements related to the simultaneous digital conversion of licensed main and FM translators and boosters. The latter issue garnered the most attention from interested parties, where most agreed that the Commission should not require simultaneous digital conversion of the primary station and its FM translators and boosters.

93. We will permit the use of digital translator and booster stations during interim DAB operations. However, we believe that a stronger record is necessary to address the complicated issues involved in the authorization of these facilities before adopting permanent rules for digital translator and booster stations. Pursuant to experimental authorization issued by the Commission, KCSN-FM and NPR conducted field tests in the Los Angeles metropolitan area in December 2004 to evaluate KCSN-FM's signal coverage via mobile reception. NPR and the station attempted to evaluate IBOC DAB system coverage in terms of received signal level. The field tests evaluated reception availability and compared actual data to predictions using a computerized propagation model. NPR chose KCSN-FM to conduct these tests because the station operates the nation's first IBOC DAB booster which presents unique challenges for technical performance. The testing indicated that the booster generally increased the availability of KCSN-FM's digital signal, but that there were still coverage issues in certain service areas. We will not require the simultaneous conversion of the primary station and its FM translators and boosters. We do not want to overburden radio stations with more technical requirements than necessary as they commence digital operations.

94. Beginning approximately 20 years ago, NCE FM stations operating on channels 201 through 220 were required to protect channel 6 TV stations from adjacent channel interference based on the performance characteristics of analog TV receivers. In the DAB FNPRM , we sought comment on what, if any, rule changes are necessary to protect channel 6 TV stations from interference from digital radio operations, and if new rules are needed to protect channel 6 DTV stations. There are currently 58 licensed analog channel 6 full-service TV stations and 6 licensed analog channel 6 Class A TV stations. There are currently no licensed or authorized channel 6 digital TV or digital Class A TV stations.

95. NPR and Paul Delaney assert that due to the low signal strength of the IBOC digital signal, there is minimal potential for increased NCE FM interference to analog channel 6 TV stations. Additionally, both question the continued applicability of the existing TV channel 6 protection requirements in light of the transition to DTV where there will be few, if any, channel 6 TV stations, and where the use of digital receivers will provide increased immunity to adjacent channel FM interference. REC Networks concurs with NPR concerning the re-examination of the current NCE FM channel 6 protection requirements, but, it suggests that perhaps some protection of both analog and digital channel 6 TV stations may be appropriate for NCE FM IBOC hybrid operations.

96. We agree that the very low increase in power resulting from the addition of the IBOC digital signal likely will not result in any increased interference to analog channel 6 TV stations from NCE FM stations operating on FM channels 201-220, and that the DTV transition may render this issue moot. Therefore, no changes in Section 73.525 governing TV channel 6 protection are necessary at this time. The Commission will, however, initiate a separate proceeding to evaluate the existing NCE FM channel 6 TV protection requirements, and seek public input on their continued viability, following the completion of the DTV transition, a review of the immunity characteristics of DTV receivers, and the widespread deployment of DAB transmitting facilities.

97. Although this issue was not raised in the DAB FNPRM, Livingston Radio Company and Taxi Productions Inc. (“Livingston”) urge the Commission to restrict the digital power levels for super-powered FM stations. A super-powered FM station is a station for which the power/antenna height combination exceeds the class limit set forth in 47 CFR § 73.211. Such stations were authorized before the current class limits were adopted, and have “grandfathered” status. Livingston asserts that super-powered stations cause more interference than stations that comply with class limits. Therefore, according to Livingston, IBOC operations by super-powered stations must be limited in order to avoid excessive interference to nearby stations on adjacent channels. Livingston urges the Commission “not to extend superpower privileges into the IBOC digital environment,” and suggests determining digital signal power based on class maximum facilities. Similarly, Press Communications, LLC (“Press”) suggests that the Commission adopt limits on IBOC operation by short-spaced FM stations.

98. Several commenters disagree with Livingston's proposal. WPNT, Inc., for example, states that ending the grandfathered status of super-powered stations would simply benefit some broadcasters at the expense of others. Cox Radio, Inc. and Bonneville International Corporation assert that termination of super-power status is outside the scope of this proceeding, and that the Commission would violate the Administrative Procedures Act if it were to adopt rules without first seeking comment from the public. We agree that the consideration of super-powered status is beyond the scope of this proceeding, and, therefore, decline to adopt special restrictions on digital operations by super-powered stations here. In any event, we do not see a compelling reason to restrict digital operations by short-spaced FM stations, as Press suggests. We will continue to evaluate any complaints of possible IBOC interference on a case-by-case basis as we stated in the DAB R&O.

99. We are hereby changing the procedures for approving IBOC operations to allow broadcasters to take advantage of technical improvements as they develop, rather than waiting for Commission action and rules to do so. In the DAB R&O, we permitted radio stations to implement IBOC operations without prior authority, provided that the IBOC configurations were substantially the same as those tested by the NRSC. The IBOC DAB service is developing rapidly, with new modes of operation such as multicasting, datacasting, and dual antenna operation all commencing after the DAB R&O was adopted. As test results have been added to the record in this proceeding, the staff has sought comment and subsequently issued Public Notices authorizing IBOC operations that differ from the configurations originally tested by the NRSC. Stations wishing to implement multicasting or dual antenna operations have, however, been required to request prior authority to operate from the Commission. We believe that DAB will continue to evolve rapidly in tandem with modifications by iBiquity to the IBOC system. In the interests of efficiency, we delegate to the Media Bureau the authority to issue Public Notices, seek public input, and review the range of permissible IBOC operations as circumstances warrant. After appropriate notice and comment, the staff is authorized to act on delegated authority on implementing new IBOC notification procedures to cover new IBOC configurations. Expansion of the notification procedures will allow stations to implement digital operations without unnecessary delay.

100. According to iBiquity, its systems provide extensibility in that the first-generation receivers are designed to operate both in the interim hybrid and in all-digital modes. In the DAB R&O, we stated that this is an area in which definitive evaluations can only be undertaken after we resolve a number of all-digital issues, such as issues relating to signal architecture. Recognizing the flexibility of the IBOC model, and the possibility of new services, we stated that we will address receiver issues in more detail at a later date. We sought comment on whether the issues raised, and the policies proposed, in the DAB FNPRM require us to address receiver issues at this stage of DAB development. We asked, for example, how the adoption of a high quality audio requirement would affect receiver manufacturers. As noted above, we do not establish a high quality audio requirement. The commenters did not address the issue of receiver performance standards. Further, there is an open Commission proceeding concerning the adoption of receiver performance standards. Consequently, we believe that the public interest is better served by awaiting the outcome of that proceeding and will address DAB receiver issues, if necessary, in the future.

101. The iBiquity IBOC DAB system uses patented technologies. This requires IBOC licensees to pay licensing fees to the patent holders. The Commission stated in the DAB R&O that during the interim DAB operation period, we will monitor the behavior of the patent holders to determine if the required licensing agreements are reasonable and non-discriminatory and that we will seek additional public comment on this matter as required. In the DAB FNPRM, we sought further comment on iBiquity's conduct regarding licensing agreements in the interim DAB operating period. Although iBiquity has pledged to adhere to the Commission's patent policy, certain parties commented that iBiquity might resort to unreasonable and discriminatory licensing fees once DAB receivers have become widely available. We find that iBiquity has abided by the Commission's patent policy up to this point in the DAB conversion process. Therefore, we do not believe that it is appropriate at this time for us to adopt regulations governing IBOC licensing and usage fees. If we receive information that suggests we need to explore this issue further, especially in connection with the adoption of the NRSC-5 standard, we will take appropriate action at that time.

102. In the DAB FNPRM, we raised for comment other technical issues relevant to the discussion of DAB operations, including (1) AM and FM definitional issues; (2) interference; (3) AM stereo; (4) operating power; and (5) predicted coverage for digital signals. We find that these issues have been sufficiently addressed in the DAB R&O to permit station authorization on an interim basis. Further evaluation of these issues is best undertaken in conjunction with the NRSC-5 standards review.

103. In the DAB R&O, the Commission stated that during the period of interim IBOC operation, all relevant international agreements will be reviewed and any necessary modifications will be addressed at a later date. In the DAB NOI, we noted that these matters are being informally addressed by the Commission's International Bureau (“IB”) and asked what IB should focus on to expedite the rollout of DAB in the United States. The Commission has rules pertaining to FM broadcasting and international agreements relevant to the service. Specifically, Section 73.207 states that under the Canada-United States FM Broadcasting Agreement, domestic U.S. allotments and assignments within 320 kilometers (199 miles) of the common border must be separated from Canadian allotments and assignments by not less than the distances provided in the Commission's rules. It also states that under the 1992 Mexico-United States FM Broadcasting Agreement, domestic U.S. assignments or allotments within 320 kilometers (199 miles) of the common border must be separated from Mexican assignments or allotments by not less than the distances stated in the rule.

104. According to iBiquity, the International Bureau has appropriately analyzed the ability of the United States to implement IBOC consistent with the United States' treaty obligations to Canada and Mexico. The International Bureau also has held informal discussions with both the Canadian and Mexican governments concerning implementation of IBOC in the United States. iBiquity states that it supports these efforts and submits that the current process is adequately addressing the international requirements for implementing IBOC.

105. One commenter, Barry McLarnon, states that the current broadcast co-channel allocation rules are no longer adequate to prevent objectionable interference from operating hybrid AM IBOC radio stations. He argues that AM IBOC is not permissible under the terms of the U.S.-Canada bilateral agreement on AM broadcasting. Specifically, he asserts that AM IBOC interference is in contravention of the article in that agreement which states: “Classes of emission other than A3E, for instance to accommodate stereophonic systems, could also be used on condition that the energy level outside the necessary bandwidth does not exceed that normally expected in A3E. * * *.” McLarnon asserts that the “necessary bandwidth” in this case is defined as 10 kHz and the hybrid AM IBOC system increases the occupied bandwidth of an AM station to approximately 28 kHz. He further asserts that the increased power is outside the necessary bandwidth of the AM signal and exceeds that normally expected in A3E. He also states that identical wording is used in the agreement between the U.S. and Mexico, and therefore, that agreement is also violated by any usage of the hybrid AM IBOC system.

106. All matters pertaining to the relevant international agreements, including the above contentions, are being addressed in the appropriate bilateral and multilateral fora. While we are optimistic that we will be able to resolve any outstanding issues with Canada and Mexico or other countries, these issues remain subject to ongoing negotiations. Therefore, until the negotiations are completed, we advise the radio industry that the following condition will be applied to stations operating with IBOC DAB:

107. The Commission has before it three Petitions for Reconsideration of the DAB R&O in which the Commission selected IBOC as the sole digital technology for the terrestrial radio broadcasting service. More than three years ago, the Commission sought comment on an NRSC report documenting extensive laboratory and field tests of the FM IBOC system. iBiquity was the only developer to submit digital systems to the NRSC for evaluation. The NRSC FM report recommended that the Commission adopt iBiquity's FM system for DAB. On April 15, 2002, the NRSC filed its evaluation of iBiquity's AM hybrid system, recommending that the Commission adopt the system for daytime use pending further study under nighttime propagation conditions. Broadcast industry commenters, including small and large radio station owners, equipment manufacturers, and receiver manufacturers expressed strong support for iBiquity's AM and FM systems, and both systems were subsequently adopted for interim use on a voluntary basis in the DAB R&O . For the reasons discussed below, we deny the petitions of the Amherst Alliance and other parties (collectively “Amherst”) and of John Pavlica, Jr. We dismiss the petition of Glen Clark and Associates “Clark” as moot.

108. The Amherst Alliance has filed the following pleadings with the Commission: (1) A Petition for Reconsideration of the DAB R&O (filed October 25, 2002); (2) a Petition for Rulemaking (filed April 17, 2002); and (3) a request for Environmental Impact Statement (filed July 18, 2002). Specifically, Amherst claims that the Commission failed to act on a request filed by it and other parties for an environmental impact statement concerning the possible effects of IBOC, and on a petition by it and other parties for a new rulemaking on digital radio. Amherst also claims that the Commission should not have adopted IBOC until proceedings on blanketing interference and human exposure to electromagnetic radiation were resolved. NAB opposes Amherst stating that it “presents no basis for reconsideration of the DAB R&O and virtually no substance or support for its complaints.” iBiquity states that Amherst offers no new information justifying any changes in the policies adopted by the Commission in the DAB R&O and is merely an attempt to delay IBOC. We agree with NAB and iBiquity that Amherst has not presented any arguments that were not already addressed and disposed of by the Commission in the DAB R&O . Moreover, we find that Amherst has not provided new evidence of the type necessary for the Commission to delay the introduction of IBOC and the offering of DAB to the public. Therefore, its Petitions for Reconsideration and Rulemaking are denied.

109. We also affirm our conclusion in the DAB R&O that the initiation of interim IBOC operations is categorically excluded from environmental processing and that the procedure requiring licensees to certify compliance with existing RF exposure standards satisfies any environmental requirements. Accordingly, preparation of an environmental impact statement is unnecessary in the context of IBOC operations. We reject the argument that the denial of Amherst's Request for Environmental Impact Statement was not “officially” denied because the denial was not listed in the ordering clause of the DAB R&O . Where the text of an order is clear, the omission of the action from the ordering clause is not determinative.

110. John Pavlica, Jr. petition . Pavlica states that the iBiquity IBOC systems cause “substantial and nearly continuous interference” to existing AM and FM stations. According to Pavlica, the Commission should consider options such as better receiver technology before adopting any digital radio system. Pavlica suggests a one-year period for evaluating alternatives to IBOC. Pavlica also expresses concern about iBiquity's status as the sole source of proprietary IBOC technology. All of Pavlica's contentions were thoroughly addressed in the DAB R&O . Beyond the simple assertion that IBOC causes extensive interference, the petition offers no technical support for this characterization of IBOC operation. In sharp contrast, the NRSC spent several years crafting IBOC tests, the results of which are documented in detailed comments. The comparison of alternatives for introducing digital technology to the AM and FM bands that Pavlica calls for began with the DAB NPRM in 1999, and concluded with the selection of IBOC in 2002 based on a substantial record. It is well established that the Commission does not grant reconsideration for the purpose of debating matters on which it has already deliberated.

111. Other Pleadings. In two letters, Amherst suggests that IBOC operations may cause interference to the AMBER alert system. In participating states, AMBER alerts are broadcast as part of the Emergency Alert System. EAS messages are transmitted via the main analog radio signal. Amherst offers no support for the allegation. Test results presented in the NRSC AM and FM reports demonstrate that analog radio signals will not be subject to interference that would impair EAS transmissions. Any interference from IBOC is likely to occur at the fringes of a station's normally protected coverage area, where the analog signal quality is poor. In such circumstances, analog listeners are likely to tune to another radio station with a stronger signal, particularly in the event of an emergency. Amherst provides no countervailing evidence that IBOC will interfere with AMBER alerts, and no reason to delay IBOC implementation.

112. In a petition for rulemaking filed January 24, 2003, Kahn Communications, Inc. requests that the Commission initiate a new proceeding to revise procedures for evaluating new technology. Kahn also requests that the Commission stay the DAB R&O and reevaluate its adoption of IBOC in light of any resulting policy revisions. To the extent that Kahn's filing is a petition for reconsideration of the DAB R&O , the petition is untimely. Kahn provides no justification for failing to file timely comments in this proceeding. Moreover, we do not find that the public interest would be served by further delay of the long-contemplated digital conversion of the terrestrial radio service. Therefore, we will not consider Kahn's untimely comments in this proceeding.

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

114. Comments and Reply Comments . Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies.

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov . Filers should follow the instructions provided on the Web site for submitting comments.

• For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to ecfs@fcc.gov , and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response.

• Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington DC 20554.

People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

115. Availability of Documents. Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. Persons with disabilities who need assistance in the FCC Reference Center may contact Bill Cline at (202) 418-0267 (voice), (202) 418-7365 (TTY), or bill.cline@fcc.gov . These documents also will be available from the Commission's Electronic Comment Filing System. Documents are available electronically in ASCII, Word 97, and Adobe Acrobat. Copies of filings in this proceeding may be obtained from Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554; they can also be reached by telephone, at (202) 488-5300 or (800) 378-3160; by e-mail at fcc@bcpiweb.com ; or via their Web site at http://www.bcpiweb.com . To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0531 (voice), (202) 418-7365 (TTY).

116. Additional Information. For additional information on this proceeding, contact Ann Gallagher, Ann.Gallagher@fcc.gov , of the Media Bureau, Audio Division, (202) 418-2716 or Brendan Murray, Brendan.Murray@fcc.gov , of the Media Bureau, Policy Division, (202) 418-2120.

117. The Regulatory Flexibility Act of 1980, as amended (“RFA”), requires that a regulatory flexibility analysis be prepared for notice and comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines 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). By the issuance of this Second Further Notice of Proposed Rulemaking , we seek comment on the impact our suggested proposals would have on small business entities.

118. Act . As required by the Regulatory Flexibility Act, the Commission has prepared a Final Regulatory Flexibility Analysis (“FRFA”) relating to this Second Report and Order and First Order on Reconsideration .

119. The Second Report and Order, First Order on Reconsideration , and Second Further Notice of Proposed Rulemaking contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. The Commission will publish a separate Federal Register Notice seeking public comments on the modified information collection requirements. Therefore, OMB, the general public, and other Federal agencies will be invited to comment on the modified information collection requirements contained in this proceeding once the Federal Register Notice is published. In addition, we note that 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.”

120. In addition to filing comments with the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street, SW., Washington, DC 20554, or via the Internet to Cathy.Williams@fcc.gov and to Jasmeet K. Seehra, Room 10236 NEOB, 725 17th Street, NW., Washington, DC 20503, or via the Internet to Jasmeet_K._Seehra@omb.eop.gov , or via fax at 202-395-5167. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Cathy Williams at 202-418-2918, or via the Internet at Cathy.Williams@fcc.gov .

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

122. Need For, and Objectives of, the Proposed Rules . The Second FNPRM has been initiated to obtain further comments concerning the development and implementation of terrestrial digital audio broadcasting. Because free over-the-air terrestrial broadcasting is in the public interest, and because spectrum is a limited resource, in the Second FNPRM the Commission seeks comment on how to limit ancillary subscription services provided by radio stations converting to the IBOC DAB format so that terrestrial radio broadcasting remains an essentially free over-the-air service. The Commission also seeks comment on inter alia , the application of several statutory and regulatory public interest requirements to subscription services.

123. Legal Basis . The authority for this Second Further Notice of Proposed Rulemaking is contained in Sections 1, 2, 4(i), 303, 307, 312(a)(7), 315, 317, 507, and 508 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 303, 307, 312(a)(7), 315, 317, 508, and 509.

124. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply . The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules. The RFA generally defines the term “small entity” as encompassing the terms “small business,” “small organization,” and “small governmental entity.” 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”).

125. Radio Stations. The proposed rules and policies potentially will apply to all AM and commercial FM radio broadcasting licensees and potential licensees. The SBA defines a radio broadcasting station that has $6.5 million or less in annual receipts as a small business. A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public. Included in this industry are commercial, religious, educational, and other radio stations. Radio broadcasting stations which primarily are engaged in radio broadcasting and which produce radio program materials are similarly included. However, radio stations that are separate establishments and are primarily engaged in producing radio program material are classified under another NAICS number. According to Commission staff review of BIA Publications, Inc. Master Access Radio Analyzer Database on March 31, 2005, about 10,840 (95%) of 11,410 commercial radio stations have revenue of $6.5 million or less. We note, however, that many radio stations are affiliated with much larger corporations having much higher revenue. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action.

126. Electronics Equipment Manufacturers . The rules adopted in this proceeding will apply to manufacturers of DAB receiving equipment and other types of consumer electronics equipment. The appropriate small business size standard is that which the SBA has established for radio and television broadcasting and wireless communications equipment manufacturing. This category encompasses entities that primarily manufacture radio, television, and wireless communications equipment. Under this standard, firms are considered small if they have 1,000 or fewer employees. Census Bureau data for 2002 indicate that, for that year, there were a total of 1,041 establishments in this category. Of those, 1,023 had employment under 1,000. Given the above, the Commission estimates that the great majority of equipment manufacturers affected by these rules are small businesses.

127. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements. The proposed rules on subscription services may impose additional reporting or recordkeeping requirements on existing radio stations, depending upon how the Commission decides to limit subscription services. We seek comment on the possible burden these requirements would place on small entities. Also, we seek comment on whether a special approach toward any possible compliance burdens on small entities might be appropriate.

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

129. In the Second Report and Order, the Commission permits radio stations to offer high quality digital radio signals, multicast digital audio programming streams, and datacasting. In the Second Further Notice of Proposed Rulemaking, the Commission seeks comment on what limitations on ancillary subscription services are necessary and appropriate to ensure the viability of free over-the-air radio broadcasting. This is an issue of first impression for the Commission; there is no history that indicates whether limits on ancillary subscription services will be adverse or beneficial to small businesses. Therefore, we make no judgment on whether limits on ancillary subscription services will adversely affect small business. We welcome commenters to address whether limits on ancillary subscription services will have any adverse effects on small businesses.

130. Federal Rules Which Duplicate, Overlap, or Conflict With, the Commission's Proposals. None.

131. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”), an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the Further Notice of Proposed Rule Making. The Commission sought written public comment on the proposals in the FNPRM, including comment on the IRFA. This Final Regulatory Flexibility Analysis (“FRFA”) conforms to the RFA.

132. Need For, and Objectives of, the Proposed Rules. The policies and rules set forth herein are required to ensure a smooth conversion of the nation's radio system from an analog to a digital format. In this Second Report and Order, the Commission: (1) Reaffirms its commitment to providing radio broadcasters with the option of utilizing DAB technology; (2) announces public policy objectives resulting from the introduction of DAB service, such as more diverse programming serving local and community needs; (3) provides radio stations with the ability to offer more channels of programming and datacasting; (4) adopts technical service rules for DAB, such as the authority to commence AM nighttime service and dual antenna operation; (5) adopts operational requirements for digital radio stations, such as emergency alert systems, station identification, and operating hours. In the First Order on Reconsideration, the Commission dismisses or denies outstanding Petitions for Reconsideration and Rulemaking which questioned the adoption of iBiquity's IBOC technology for use by DAB stations.

133. Summary of Significant Issues Raised by Public Comments in Response to the IRFA. None.

134. Description and Estimate of the Number of Small Entities to Which the Adopted Rules Will Apply. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the rules adopted herein. The RFA generally defines the term “small entity” as encompassing the terms “small business,” “small organization,” and “small governmental entity.” 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”).

135. Radio Stations. The proposed rules and policies potentially will apply to all AM and commercial FM radio broadcasting licensees and potential licensees. The SBA defines a radio broadcasting station that has $6.5 million or less in annual receipts as a small business. A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public. Included in this industry are commercial, religious, educational, and other radio stations. Radio broadcasting stations which primarily are engaged in radio broadcasting and which produce radio program materials are similarly included. However, radio stations that are separate establishments and are primarily engaged in producing radio program material are classified under another NAICS number. According to Commission staff review of BIA Publications, Inc. Master Access Radio Analyzer Database on March 31, 2005, about 10,840 (95%) of 11,410 commercial radio stations have revenue of $6.5 million or less. We note, however, that many radio stations are affiliated with much larger corporations having much higher revenue. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action.

136. Electronics Equipment Manufacturers. The rules adopted in this proceeding will apply to manufacturers of DAB receiving equipment and other types of consumer electronics equipment. The appropriate small business size standard is that which the SBA has established for radio and television broadcasting and wireless communications equipment manufacturing. This category encompasses entities that primarily manufacture radio, television, and wireless communications equipment. Under this standard, firms are considered small if they have 1,000 or fewer employees. Census Bureau data for 2002 indicate that, for that year, there were a total of 1,041 establishments in this category. Of those, there were 1,023 that had employment under 1,000. Given the above, the Commission estimates that the great majority of equipment manufacturers affected by these rules are small businesses.

137. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements. The rules adopted in this Second Report and Order will impose additional reporting or recordkeeping requirements on existing radio stations. First, the Commission applies the existing statutory and regulatory obligations to all free digital radio streams, thus increasing the scope of a radio station's existing compliance requirements. Second, the Commission's policies will increase the amount of information that must be kept in a radio station's public file. Finally, there will be new forms generated by the Commission's Media Bureau that must be processed by each radio station that elects to offer IBOC DAB.

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

139. In this Second Report and Order, the Commission (1) Reaffirms its commitment to providing radio broadcasters with the option of utilizing DAB technology; (2) announces public policy objectives resulting from the introduction of DAB service, such as more diverse programming serving local and community needs; (3) provides radio stations with the ability to offer more channels of programming and datacasting; (4) adopts technical service rules for DAB, such as the authority to commence AM nighttime service and dual antenna operation; (5) adopts operational requirements for digital radio stations, such as emergency alert systems, station identification, and operating hours. This adoption of a flexible use policy for DAB, will allow radio stations to transmit high quality digital audio, multiplexed digital audio streams, and datacasting, which should allow broadcasters to meet the policy objectives. In addition, rather than require all radio stations to convert to a digital format by a date certain, the Commission will allow marketplace forces to dictate the conversion process. However, each radio station broadcasting in the IBOC format will have to provide one free digital radio programming stream of audio quality comparable to that of the analog signal to the public. With regard to technical requirements, the Commission satisfies the interests of digital AM stations by permitting them to operate during nighttime hours; it also lessens the burden of all digital radio broadcasters by permitting the use of cost-effective dual antennas to transmit digital radio programming. Because the Commission is allowing the marketplace to drive adoption of the transition to digital broadcasts, the rules and policies set forth herein impose no adverse economic impact. This flexibility allows small entities to explore the economic choices on their own, and therefore significant alternatives to these rules and policies are unnecessary.

140. Report to Congress. The Commission will send a copy of the Second Report and Order, First Order on Reconsideration, and Second Further Notice of Proposed Rulemaking, 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 Second Report and Order, First Order on Reconsideration, and Second Further Notice of Proposed Rulemaking, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Second Report and Order, First Order on Reconsideration, and Second Further Notice of Proposed Rulemaking and FRFA (or summaries thereof) will also be published in the Federal Register .

141. Accordingly, It is ordered, pursuant to the authority contained in Sections 1, 2, 4(i), 303, 307, 312, 315, 317, 507, and 508 of the Communications Act of 1934, 47 U.S.C 151, 152, 154(i), 303, 307, 312, 315, 508, and 509, this Second Report and Order First Order on Reconsideration and Second Further Notice of Proposed Rulemaking IS ADOPTED.

142. It is further ordered that the rules contained herein are : Effective September 14, 2007, except for the rules in 47 CFR 73.404(b), 47 CFR 73.404(e), and 47 CFR 73.1201, which contain information collection requirements that have not been approved by OMB. The Federal Communications Commission will publish a document in the Federal Register announcing the effective date.

143. It is further ordered that, pursuant to 47 U.S.C. 155(c), the Chief, Media Bureau, is granted delegated authority to issue Public Notices and consider and grant routine petitions and waivers of the Commission's DAB technical requirements, resolve interference disputes, amend licensing requirements and generate new forms, and update IBOC notification procedures.

144. It is further ordered that the Petition for Reconsideration filed October 25, 2002, by the Amherst Alliance is denied.

145. It is further ordered that the Petition for Rulemaking filed April 17, 2002, by the Amherst Alliance is denied.

146. It is further ordered that the Petition for Reconsideration filed December 10, 2002 by Glen Clark and Associates is dismissed.

147. It is further ordered that the Petition for Reconsideration filed January 13, 2003, by John Pavlica Jr. is denied.

148. It is further ordered that the Petition for Rulemaking filed January 24, 2003, by Kahn Communications, Inc. is dismissed.

149. It is further ordered that the untimely Petition for Reconsideration filed by Kahn Communications, Inc. is denied.

150. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Second Report and Order First Order on Reconsideration and Second Further Notice of Proposed Rulemaking including the Initial and Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

151. It is further ordered that the Commission shall send a copy of this Second Report and Order First Order on Reconsideration and Second Further Notice of Proposed Rulemaking in a report to be sent to Congress and the General Accounting 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. 06-46, adopted July 25, 2007, and released July 27, 2007. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 Twelfth Street, SW., Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160, or via e-mail http://www.BCPIWEB.com . The Commission will send a copy of this Report and 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).

This final rule makes the following corrections and updates:

• Removes acquisition of real property from the delegated authority of the Senior Procurement Executive. The FAR does not apply to the acquisition of real property, and the Senior Procurement Executive has no involvement in the acquisition of real property.

• Removes the Bureau of Population, Refugees and Migration from the list of offices that have limited acquisition authority. This office no longer awards any acquisitions.

• Corrects paragraph citations in the DOSAR definition of “major system”.

• Removes the use of the Statebuy Interactive Platform (SIP) as a means of posting solicitations for domestic contracting offices. The SIP has been phased out; contracting officers now only use the Government-wide point of entry (FedBizOpps) for posting solicitations.

• Updates the dollar thresholds for approvals of justifications of other than full and open competition to conform to recent changes in the FAR.

• Removes paragraph (c) of DOSAR 619.201 to conform to FAR 19.201(c), which states that heads of contracting activities are responsible for implementing the small business programs within their activities. The DOSAR language currently delegates this responsibility to the Assistant Secretary of State for Administration. The Department believes that this responsibility is more appropriately handled by heads of contracting activities as stated in the FAR.

• Removes paragraph (a)(2) of DOSAR 619.805-2. This paragraph discussed a blanket waiver that the Department of State received from the Small Business Administration (SBA) in 2001. The waiver allowed for services exceeding $3 million and supplies exceeding $5 million that supplemented the security of U.S. diplomatic posts and protected the lives of Department personnel for the duration of the national state of emergency as declared by the President to be awarded non-competitively under the 8(a) program. A GAO audit (GAO-07-34R, Department of State Contract for Security Installation at Embassies) questioned the waiver. SBA subsequently discovered that they did not have the authority to issue a blanket waiver. As a result, SBA rescinded the waiver. Accordingly, the Department is removing this language from the DOSAR.

• Removes section 623.404 on the agency affirmative action program for recycled materials. The information provided Intranet and Internet Web sites where the Department's program could be accessed. However, the program is strictly internal guidance for requiring offices, and does not contain any information that would be useful to contractors. Since the document is for internal use only, it is no longer posted on the Internet. It is still posted on the Intranet for requiring offices; however, it is not necessary to state this in the DOSAR.

• Removes references to the General Services Administration Board of Contract Appeals (GSBCA). The Department of State used the GSBCA as its venue for contract appeals since it did not have its own Board of Contract Appeals. However, effective January 6, 2007, all civilian agency Boards of Contract Appeals were terminated and a new Civilian Board of Contract Appeals (CBCA) was created. All civilian agencies now use the CBCA; therefore, no reference to a specific Board is required.

• Removes the reference to the Intranet site where the Department's forms may be accessed.

• Makes numerous citation and title corrections to conform to the current FAR.

• Updates Web site addresses.

The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 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 section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million 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 import markets.

The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

The Department has reviewed this regulation in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

This regulation will not have substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this regulation.

The Department has analyzed this regulation for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has determined that it will not have any effect on the quality of the environment.

This rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

Regulations governing the spiny dogfish fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota, which is allocated into two quota periods based upon percentages specified in the fishery management plan. The commercial quota is distributed to the coastal states from Maine through Florida, as described in § 648.230.

The initial total commercial quota for spiny dogfish for the 2007 fishing year is 4 million lb (1.81 million kg) (71 FR 40436, July 17, 2006). The commercial quota is allocated into two periods (May 1 through October 31, and November 1 through April 30). Vessel possession limits are intended to preclude directed fishing, and they are set at 600 lb (272 kg) for both quota Periods 1 and 2. Quota period 1 is allocated 2.3 million lb (1.05 million kg)), and quota Period 2 is allocated 1.7 million lb (763,849 kg) of the commercial quota. The total quota cannot be exceeded, so landings in excess of the amount allocated to quota Period 1 have the effect of reducing the quota available to the fishery during quota Period 2.

The Administrator, Northeast Region, NMFS (Regional Administrator) monitors the commercial spiny dogfish quota for each quota period and, based upon dealer reports, state data, and other available information, determines when the total commercial quota will be harvested. NMFS is required to publish a notification in the Federal Register advising and notifying commercial vessels and dealer permit holders that, effective upon a specific date, the Federal spiny dogfish commercial quota has been harvested and no Federal commercial quota is available for landing spiny dogfish for the remainder of that quota period.

Section 648.4(b) provides that Federal spiny dogfish permit holders agree, as a condition of the permit, not to land spiny dogfish in any state after NMFS has published notification in the Federal Register that the commercial quota has been harvested and that no commercial quota for the spiny dogfish fishery is available. Therefore, effective 0001 hr local time, August 14, 2007, landings of spiny dogfish in coastal states from Maine through Florida by vessels holding commercial Federal fisheries permits are prohibited through October 31, 2007, 2400 hr local time. The 2007 Period 2 quota will be available for commercial spiny dogfish harvest on November 1, 2007. Effective August 14, 2007, federally permitted dealers are also advised that they may not purchase spiny dogfish from vessels issued Federal spiny dogfish permits that land in coastal states from Maine through Florida.

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

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (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 third seasonal apportionment of the 2007 Pacific halibut bycatch allowance specified for the shallow-water species fishery in the GOA is 200 metric tons as established by the 2007 and 2008 harvest specifications for groundfish of the GOA (72 FR 9676, March 5, 2007), for the period 1200 hrs, A.l.t., July 1, 2007, through 1200 hrs, A.l.t., September 1, 2007.

In accordance with § 679.21(d)(7)(i), the Administrator, Alaska Region, NMFS, has determined that the third seasonal apportionment of the 2007 Pacific halibut bycatch allowance specified for the trawl shallow-water species fishery in the GOA has been reached. Consequently, NMFS is prohibiting directed fishing for the shallow-water species fishery by vessels using trawl gear in the GOA.

The species and species groups that comprise the shallow-water species fishery are pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka mackerel, skates and “other species.” This closure does not apply to fishing by vessels participating in the cooperative fishery in the Rockfish Pilot Program for the Central GOA.

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 the shallow-water species fishery by vessels using trawl gear in the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 9, 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 § 679.21 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (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 third seasonal apportionment of the 2007 Pacific halibut bycatch allowance specified for the deep-water species fishery in the GOA is 400 metric tons as established by the 2007 and 2008 harvest specifications for groundfish of the GOA (72 FR 9676, March 5, 2007), for the period 1200 hrs, A.l.t., July 1, 2007, through 1200 hrs, A.l.t., September 1, 2007. The third seasonal apportionment of the 2007 Pacific halibut bycatch allowance was reduced to 224 mt because 176 mt of this apportionment was allocated to vessels participating in the Rockfish Pilot Program, as listed at http://www.fakr.noaa.gov/sustainablefisheries /goarat/07rppallocations.xls.

In accordance with § 679.21(d)(7)(i), the Administrator, Alaska Region, NMFS, has determined that the third seasonal apportionment of the 2007 Pacific halibut bycatch allowance specified for the trawl deep-water species fishery in the GOA has been reached. Consequently, NMFS is prohibiting directed fishing for the deep-water species fishery by vessels using trawl gear in the GOA. The species and species groups that comprise the deep-water species fishery are sablefish, rockfish, deep-water flatfish, rex sole and arrowtooth flounder. This closure does not apply to fishing by vessels participating in the cooperative fishery in the Rockfish Pilot Program for the Central GOA.

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 the deep-water species fishery by vessels using trawl gear in the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 9, 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 § 679.21 and is exempt from review under Executive Order 12866.