This rule is issued under Marketing Agreement and Order No. 922 (7 CFR part 922) regulating the handling of apricots grown in designated counties in Washington, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule relaxes the minimum grade requirement for fresh apricots from Washington No. 1 grade to Washington No. 2 grade. This rule will enable handlers to ship more fruit into fresh market channels, taking into consideration hail damage caused to Washington apricots during the growing season. This change is expected to increase returns to producers and to make more fresh apricots available to consumers. The minimum grade requirement will revert to Washington No. 1 grade on April 1, 2007, for the 2007 and future seasons.

Section 922.52 of the order authorizes the issuance of regulations for grade, size, quality, maturity, pack, and container for any variety of apricots grown in the production area. Section 922.53 further authorizes the modification, suspension, or termination of regulations issued pursuant to § 922.52. Section 922.55 provides that whenever apricots are regulated pursuant to §§ 922.52 or 922.53, such apricots must be inspected by the Federal-State Inspection Service, and certified as meeting the applicable requirements of such regulations.

Minimum grade, maturity, color, and size requirements for Washington apricots regulated under the order are specified in § 922.321 Apricot Regulation 21 . Section 922.321 provides, in part, that no handler shall handle any container of apricots unless such apricots grade not less than Washington No. 1, except for shipments subject to exemption under the regulation. In addition, the section provides that the Moorpark variety in open containers must be generally well matured. That section also provides that, with the exception of exempt shipments, apricots must be at least reasonably uniform in color, and be not less than 1 5/8 inches in diameter, except for the Blenheim, Blenril, and Tilton varieties which must be not less than 1 1/4 inches in diameter. Individual shipments of apricots are exempt from these requirements if sold for home use only, do not, in the aggregate, exceed 500 pounds net weight, and each container is stamped or marked with the words “not for resale.”

This rule revises paragraph (a)(1) of § 922.321 by temporarily changing the minimum grade requirement for fresh shipments of apricots from Washington No. 1 to Washington No. 2 for the 2006 season only. The Washington No. 1 minimum grade requirement will resume April 1, 2007, for the 2007 season and future seasons.

Based on a request from a handler representing several producers, the Committee recommended by a vote of nine to one that the grade requirement be relaxed for the 2006 season to facilitate the handling of fruit damaged by hail. The Committee requested that this relaxation be effective by the beginning of the 2006 Washington apricot shipping season, which is expected to be around July 1, 2006.

The Committee meets prior to and during each season to consider recommendations for modification, suspension, or termination of the regulatory requirements for Washington apricots which have been issued on a continuing basis. Committee meetings are open to the public and interested persons may express their views at these meetings. The USDA reviews information submitted by, and recommendations from, the Committee and other available information to determine whether modification, suspension, or termination of the regulatory requirements would tend to effectuate the declared policy of the Act.

The Committee has conveyed to USDA that widely scattered hail damage was reported within the Washington apricot production area as a result of late spring storms. The severe weather conditions resulted in damage to the crop making it difficult for apricots to meet the minimum grade requirements of Washington No. 1. The Committee's original crop estimate for the 2006 season was established at 5,000 tons. With the full extent of hail damage unknown at this time, the Committee has not established a revised crop estimate. However, taking into account the reported damage, this rule provides for the handling of a larger portion of the Washington apricot crop this season than would be allowed if the minimum grade requirement were to remain at Washington No. 1. Relaxation of the grade requirement for the 2006 Washington apricot crop is intended to increase fresh shipments to meet consumer needs and improve returns to producers.

This rule relaxes the grade requirement specified in § 922.321. This rule will not effect the color and minimum size requirements for all varieties or the well matured requirements for the Moorpark variety.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 300 apricot producers within the regulated production area and approximately 22 regulated handlers. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $6,500,000.

For the 2005 apricot shipping season, the Washington Agricultural Statistics Service prepared a preliminary report showing that the total 5,600 ton apricot utilization sold for an average of $997 per ton. Based on the number of producers in the production area (300), the average annual producer revenue from the sale of apricots in 2005 can thus be estimated at approximately $18,611.

Average revenue per handler can be estimated using f.o.b. prices. According to USDA's Market News Service, 2005 fresh apricot f.o.b. prices ranged from $15.00 to $20.00 per 24-pound loose-pack container, and from $14.00 to $24.00 for 2-layer tray pack containers (which weigh an average of about 20 pounds each). Total apricot sales revenue at the f.o.b. shipper level can be estimated by taking the midpoints of each of the two ranges ($17.50 and $19.00) as representative annual average prices for each of the container types. The 2005 season fresh apricot pack-out of 4,471 tons can be assumed to be equally divided between the two container types, yielding an estimated quantity packed in each container type of 2235.5 tons, or 4.471 million pounds. Dividing this quantity by the pounds per container yields the following handler sales revenue estimates: (a) 186,292 24-pound loose-pack containers, with an average price of $17.50, valued at $3,260,110 and (b) 223,550 two-layer tray pack containers, with an average price of $19.00, valued at $4,246,500. Combining the estimated handler sales revenue for the two container types ($7,506,610) and dividing by the number of handlers (22) yields an annual average fresh apricot sales revenue estimate per handler of $341,210. Since this figure is well under $750,000 (the SBA definition of the minimum sales of a large agricultural service firm), it is reasonable to assume that the majority of producers and handlers of Washington apricots may be classified as small entities.

This rule revises paragraph (a)(1) of § 922.321 by temporarily changing the minimum grade requirement for fresh shipments of apricots from Washington No. 1 to Washington No. 2 for the 2006 season only. The Washington No. 1 minimum grade requirement will resume April 1, 2007, for the 2007 season and future seasons. Section 922.52 of the order authorizes the issuance of regulations for grade, size, quality, maturity, pack, and container for any variety of apricots grown in the production area. Section 922.53 further authorizes the modification, suspension, or termination of regulations issued pursuant to § 922.52.

The Committee anticipates that this rule will not negatively impact small businesses. This rule relaxes the minimum grade requirement in the order's handling regulations and should provide enhanced marketing opportunities.

Given the emergency nature of the relaxation, the Committee's recommendation was made via the vote-by-mail procedures of the order. With ten of the twelve members responding, nine members supported the temporary grade change and one member opposed it. The only alternative to a grade relaxation offered on the ballot was to leave the minimum grade at Washington No. 1, which was not adopted.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large apricot handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

This rule invites comments on relaxation of the minimum grade requirement under the Washington apricot marketing order. Any comments received will be considered prior to finalization of this rule.

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that the minimum grade requirement in § 922.321 should be temporarily relaxed from Washington No. 1 grade to Washington No. 2 grade in order to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) This rule relaxes the minimum grade requirement for Washington apricots for the 2006 shipping season; (2) Washington apricot handlers are aware of this recommendations and need no additional time to comply with the relaxed requirements; (3) this rule should be in effect as close as possible to July 1, 2006, the date shipments of the 2006 Washington apricot crop are expected to begin; and (4) this rule provides a 60-day comment period, and any comments received will be considered prior to finalization of this rule.

On January 26, 2004, EEOC published in the Federal Register an interim final rule setting forth the time, form and manner in which an agency shall post summary statistical EEO complaint data. 69 FR 3483 (2004). The interim rule included a 60-day comment period, which subsequently was extended an additional 30 days. 69 FR 13473 (2004).

EEOC received over 140 comments on the interim rule. One hundred and nine comments were submitted by persons identifying themselves as members of the “No FEAR Coalition.” Sixteen comments were submitted by Federal agencies and departments. Four comments were submitted by civil rights groups composed of Federal employees, one was submitted by a national civil rights group, one by an association of Federal EEO executives, one by a Member of Congress, and one was submitted by an association of Federal agency Web content managers. EEOC also received seventeen comments from individuals, most of whom identified themselves as Federal or former Federal employees.

The Commission has considered carefully all of the comments and has made some changes to the interim rule in response to the comments. The comments EEOC received and the changes made to the interim rule are discussed in more detail below.

When EEOC circulated its first draft of the interim rule under Executive Order 12067, the regulation required that, when posting information about the bases and issues raised in a complaint, agencies include bases and issues added by amendment. Agencies commenting on this provision argued that if bases and issues added by amendment were to be included among the data, withdrawals of issues and bases likewise should be reflected. When EEOC issued its interim final rule it decided to drop the requirement that agencies track amendments.

Based on comments received on the interim final rule, both from agencies and members of the public, EEOC has reconsidered its approach and now believes that bases and issues added by amendment should be included among the posted data. EEOC is particularly concerned that the number of times retaliation is alleged will not be portrayed accurately if amendments are not tracked. As a number of commenters noted, complainants often allege that they have been retaliated against for having filed an earlier, pending complaint. These claims of retaliation are considered like and related to the initial complaint and therefore must be treated as amendments to the initial complaint rather than as separate complaints. See EEOC Management Directive 110, Chapter 5, Example 6 at page 5-11. Since EEOC believes amendments adding a claim of retaliation need to be captured, EEOC also believes it is best to capture all issues and bases that are added.

Tracking amendments requires that an agency post the basis or issue raised in the amendment when it is time to post quarterly or year-end data for the current fiscal year, whichever posting period occurs first after a complaint is amended. Where the amendment of a complaint filed in a prior fiscal year occurs in the current fiscal year, an agency shall not go back and modify prior fiscal year data regarding issues and bases since prior year data in these categories is unaffected by amendments occurring in subsequent fiscal years.

The interim rule requires that an agency post the number of complaints raising each basis of alleged discrimination and the number of complaints raising each challenged employment action. A few agencies opined that this will make it appear as if more complaints have been filed than is actually the case.

Given that sections 301(b)(4) and (5) of the No FEAR Act specifically require that this information be posted, EEOC does not have the discretion to change this part of the rule. Moreover, agencies must post the total number of complaints filed. Persons viewing all three data categories will be able to ascertain that the total number of times a basis or issue is asserted does not correspond to the number of complaints actually filed. Therefore, there is no basis for concern that the number of complaints filed will appear inflated.

Other commenters objected to the requirement that an agency post a complaint as having been filed even if it raises a basis not protected by one of the Federal EEO statutes. One objection was that such a complaint is not really an EEO complaint and therefore should not be counted. Another objection was that the inclusion of complaints raising a non-EEO basis unintentionally could convey the message that an EEO complaint can be maintained regardless of the basis alleged.

The very designation “non-EEO” basis will alert a viewer that the complaint falls outside the scope of the EEO laws. Thus, EEOC does not believe that requiring agencies to post this information will mislead the public into believing that employment discrimination laws protect an employee or applicant from non-covered forms of discrimination. Complaints raising a non-EEO basis, such as whistle blowing, will be dismissed. EEOC believes, however, that it is important to know how many claims filed under part 1614 do not belong in that process because it may indicate that employees need to be better informed of their rights and the correct forums in which to pursue their allegations of wrongdoing, or that persons are misusing the EEO complaint process.

A few commenters were concerned about bases that are mislabeled by a complainant. Where a complainant appears to misidentify a basis (e.g., the complainant alleges race discrimination and identifies her race as “Danish”) and the agency determines that the complainant's intent is to raise a national origin claim, the agency shall post only the corrected basis.

A few commenters objected to the absence of counseling data in the posting requirements, arguing that counseling is an important part of the process. EEOC's initial decision not to have agencies post counseling activity was based on its conclusion that the No FEAR Act does not address pre-complaint activity, which would include counseling. Nothing proffered in the comments convinces EEOC that its initial interpretation was in error.

That EEO counseling activity will not be tracked under the No FEAR Act does not lessen its importance or minimize EEOC's belief that counseling is a vital component of the Federal sector complaint process. Many matters brought to a counselor's attention are resolved before they become formal complaints. Counselors further perform the very valuable function of assisting complainants to accurately define the matters about which they wish to complain. EEOC requires agencies to report counseling activity on the Form 462 (“Annual Federal Equal Employment Opportunity Statistical Report of Discrimination Complaints”) because it believes the counseling function is significant.

Based on some of the comments EEOC received, there appears to be some confusion regarding the definition of “appeal” under § 1614.702(i). The appeal step of the process is to be distinguished from the request for reconsideration stage. Consequently, when posting data pursuant to § 1614.704(l)(2)(ii) (pending complaints filed in prior fiscal years) agencies need not track a complaint that is awaiting a decision on a request for reconsideration because it is not pending at the appeal stage.

A few agencies opined that, now that they must post EEO data under Title III (and report EEO data under Title II), EEOC should discontinue the use of EEOC Form 462. As an alternative, a few agencies suggested that they be allowed to consolidate EEOC Form 462 with the information they must post under the No FEAR Act.

Form 462 seeks more, and in many cases different, information than is required to be posted under the No FEAR Act. While the posting of No FEAR data is primarily for use by the public, Form 462 data is intended for EEOC use and is delivered directly to EEOC for this reason. In addition to reporting consolidated Form 462 data to Congress, EEOC reviews each agency's report to assess that agency's compliance with its EEO obligations under part 1614. These roles, reporting to Congress and assessing an agency's EEO program, are not responsibilities given to EEOC under the No FEAR Act. As a result, EEOC does not regard an agency's posting obligations under the No FEAR Act as serving the same purpose as its Form 462 reporting requirements. For these reasons, EEOC will not discontinue the use of Form 462.

A number of comments focused on the fact that the interim rule does not contain an enforcement mechanism in the event an agency fails to post its EEO data. Some commenters want EEOC to fashion a scheme in which EEOC can sanction agencies and agency managers for non-compliance. While directing the Commission to establish the “time, form, and manner” in which an agency must post its EEO data, the statute does not specify what action, if any, EEOC may take in the event an agency does not fulfill its posting obligations. Since the statute neither authorizes EEOC to sanction agency non-compliance nor sets forth the means by which EEOC can compel compliance, EEOC has not created an enforcement mechanism.

A few commenters suggested that EEOC post government-wide EEO statistics on its Web site, using each agency's posted data as the source material. Since the statute does not require EEOC to post consolidated data and given that EEOC already consolidates Form 462 data, which overlaps somewhat with the No FEAR data, EEOC has decided not to consolidate government-wide No FEAR data.

In a similar vein, commenters suggested that EEOC post on its Web site a regularly updated listing indicating which agencies fully are in compliance with the posting requirements, partially are in compliance, or have not posted data. Again, this is beyond the responsibilities imposed by the statute and EEOC therefore will not implement the suggestion.

Some commenters questioned EEOC's reasons for issuing an interim final rule rather than a final rule. EEOC's implementation of this rule as an interim final rule with provision for post-promulgation public comment was based upon the exceptions found at 5 U.S.C. 553(b)(A), (b)(B) and (d). Agency posting obligations under Title III of the No FEAR Act began in the first quarter of FY 2004. It was essential that agencies understood their responsibilities regarding the posting requirements so that they could begin capturing EEO data immediately. EEOC determined under 5 U.S.C. 553(b)(A) that this regulation, which covers the time, form and manner of agency postings under Title III of the No FEAR Act, affects agency organization, procedure, or practice and has no effect on the substantive rights of non-agency parties. In addition, it was feared that the absence of rules or the later promulgation of rules would result in confusion concerning the posting requirements, to the detriment of the public. EEOC therefore determined under 5 U.S.C. 553(b)(B) that it would be contrary to the public interest to delay promulgation of these rules by issuing a notice of proposed rule making rather than the interim final rule that was issued. For the same reasons, EEOC determined under 5 U.S.C. 553(d)(3) that there was good cause for the rule to become effective immediately upon publication with provision for post-promulgation public comment. An additional advantage to this approach was that agencies were able to try out the rules, and the public was able to observe how agencies sought to comply with them, thus informing the comments they submitted to EEOC.

Section 1614.703(d) of the interim rule requires an agency to title its posted EEO information “Equal Employment Opportunity Data Posted Pursuant to the No Fear Act.” This section further requires an agency to prominently place a hyperlink to the data on the homepage of its public Web site. There was some objection both to the location of the hyperlink and its name.

As for the location, agencies argue that their homepages already are well populated with hyperlinks which primarily are mission-specific. Adding another hyperlink, thereby producing crowding, may in fact be counter-productive. Moreover, many people visiting an agency Web site do so through hyperlinks from other non-agency Web sites or search engines that bypass an agency's homepage. Some agencies allow internet users to compose a personal homepage, which again bypasses the agency's standard homepage. For these and other reasons, the agencies that commented uniformly were of the opinion that a hyperlink on an agency's homepage is not the best way to ensure the public's assess to an agency's posted EEO data. These agencies therefore suggested that each agency decide itself where to place its EEO data and hyperlinks to that data since each agency best knows where a target audience goes to look for certain information. A number of agencies offered suggestions where the hyperlink would be better placed, such as on the “About the Agency” or “Working for the Agency/Employment” pages.

The Commission is concerned that without a uniform hyperlink location members of the public seeking EEO data from more than one agency will have trouble finding the data. If one agency's hyperlink is on the “About the Agency” page, another's is on the “Employment Opportunities” page, another's is on a page entitled “Civil Rights,” and another's is on the homepage, locating the data for multiple agencies could well end up as an exercise in trial and error. Even assuming that the homepage is not the best or most intuitive location for the hyperlink, EEOC is convinced that it would not be in the public interest to allow each agency to decide where on its Web site it will place the hyperlink. Thus, if not the homepage, EEOC must dictate another uniform location. The problem is that there are no other locations common to all agency public Web sites. Agencies do not label their “About the Agency” and “Employment” pages identically. Not every agency has an “Employment Opportunities page. Thus, there is no way to standardize through a rule an alternative location for the link. This leaves only the homepage as the one Web page all agencies possess in common, and therefore it is the homepage which shall house the link.

Regarding the title of the hyperlink, EEOC agrees that it is too wordy. EEOC, however, does not agree that the label “No FEAR” will be widely misunderstood by members of the public. On the contrary, the term “No FEAR Act” has attained familiarity among employees and those involved in EEO matters. Accordingly, the final rule provides that the hyperlink shall be called “No FEAR Act Data.” However, agencies will be required to title the page where its data appears as follows: “Equal Employment Opportunity Data Posted Pursuant to Title III of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act), Pub. L. 107-174.”

In furtherance of making every agency's No FEAR Act data easily accessible, it was suggested that agencies maintain their posted data so that it is readily retrievable by commercial search engines. EEOC agrees and has added a subsection setting forth this requirement.

Finally, some commenters suggested that each agency provide EEOC with the hyperlink to its No FEAR data and that EEOC post the agency hyperlinks in one location on EEOC's public Web site. EEOC has decided to adopt this suggestion. Therefore, the final rule contains the requirement that an agency provide EEOC with the URL for the location of its No FEAR data and provide URL updates as necessary. Agencies can e-mail their URLs to EEOC at NoFEAR.URLS@eeoc.gov.

Some commenters disagreed with EEOC's position that EEO data not required to be posted by the statute cannot be posted with No FEAR data but may appear elsewhere. Commenters argued that by excluding other, related data, agencies are forced to present an incomplete view of their EEO performance. Commenters especially believed data regarding complaints found to be without merit by an administrative judge or EEOC should be posted along with the No FEAR Act data.

Other commenters wanted additional information posted because they believe it would indicate whether an agency is engaging in a pattern of discrimination, or is unfairly processing complaints, or obstructing the EEO complaint process. It was suggested, for example, that agencies post the grade levels of persons filing complaints, the number of complaints that allege unfair processing, the number of work hours an agency expends on EEO complaint processing, the number of days beyond the regulatory time frame it takes an agency to complete an investigation in a specific case, and the number of terminations, including constructive discharges, for each protected group.

Admittedly, the categories of data set forth in the statute do not present a complete view of an agency's EEO compliance. But the categories represent the information Congress deems most important and EEOC believes this information should not be obscured or rendered less prominent through juxtaposition with other non-required data. Consequently, the final rule specifically prohibits an agency from co-mingling other data with that required to be posted under the statute. An agency may, however, include a link on the No FEAR data page to any additional or related data it posts on another Web page.

As explained in the preamble to the Interim Final Rule, section 301(b)(10) of the No FEAR Act “specifies that an agency must look at all complaints pending in a current fiscal year and post the number that were filed before the start of that fiscal year * * * The Act further requires an agency to post the number of individuals who filed the complaints that were filed before the start of the current fiscal year * * * [O]f the complaints that were filed prior to the current fiscal year and are still pending, the agency shall specify how many of the complaints are at each specific processing step.”

Section 1614.704(k) of the Interim Final Rule was intended to implement sections 301(b)(10)(A) and (B) of the Act. As one commentor pointed out, subsections 1614.704(k)(2) and (3) as contained in the Interim Final Rule can be read as applying to all pending complaints and not just those that were filed in prior fiscal years. The Commission agrees that the language of these provisions is overbroad and has redrafted them in re-designated subsections 1614.704(l)(2)(i) and (ii) to make clear that they apply only to pending complaints filed in prior fiscal years.

The interim final rule provides that an agency must post on its public Web page separate data pertaining to its subelements. The interim final rule defines a subelement as “any organizational sub-unit directly below the agency or department level which has 1,000 or more employees.” A few persons commented that the 1,000 employee threshold is too low. Others argued that it is too high. EEOC chose the 1,000 employee figure because that was the figure EEOC was planning to use for reporting under EEOC Management Directive 715 (affirmative programs of equal employment opportunity). After the interim final rule was published, EEOC issued instructions for compliance with EEOC Management Directive 715 (MD-715). These instructions require that, of those subordinate components having 1,000 or more employees, only those “enjoying a certain amount of autonomy” constitute subordinate components for purposes of reporting under MD-715.

In order to maintain consistency, the final rule adopts the distinction used in reporting under MD-715. As a result, the final rule substitutes the term “subordinate component” for “subelement.” The definition of “subordinate component” is the same as the definition of “second level reporting component” used in the instructions to MD-715. The change to the definition will mean that there will be fewer subordinate components for which separate data must be posted. More importantly, requiring agencies to report on subordinate components based on functional criteria, such as operating autonomy from the parent agency, will result in more meaningful data.

The concept of subordinate components is discussed in Question and Answer No. 5 in EEOC's publication, “Frequently Asked Questions About Management Directive-715,” which can be accessed at http://www.eeoc.gov/federal/qanda-md715.html. A list of the second level subordinate components can be accessed at http://www.eeoc.gov/federal/715instruct/agencylist.html.

Some commenters objected to the fact that EEOC is not requiring agency subordinate components to post component data on their respective public Web pages. The final rule requires that an agency with a qualifying subordinate component post on the parent agency's public Web site both consolidated, agency-wide, EEO data (i.e., data deriving from the entire parent agency including any subordinate components) and separate data for each of its subordinate components. The physical location of where this data is posted, whether on the agency's public Web page or the component's, should not matter to the end-user. The final rule requires that subordinate components that have their own Web sites shall post a link on their homepages to their component-specific data. So long as a link to the component's data can be found on both the component's and parent agency's Web homepages, the data can be accessed from either Web site. In short, being able to access the data is what is important, not where in cyberspace the data is stored.

In the preamble to the interim rule, EEOC stated that it had not decided whether to mandate a uniform posting format and layout but would revisit the issue when promulgating the final rule. No agency stated that EEOC should not develop a standard format. Thirteen agencies, on the other hand, asked EEOC to develop a standardized form or format for posting data. The rationale most often cited was that a uniform template would make it easier for interested parties to compare data among agencies. Interestingly, some agencies favoring a template nevertheless wanted to be able to choose whether to use EEOC's template or another one.

In the Commission's view, there is no point in making a template available if its use is not mandatory. A random review of agency Web sites indicates that there are a variety of formats in use. Some agencies, for example, present data in ascending chronological order while others do the opposite. Some agencies use formats that omit certain categories of data. Having given the matter careful consideration, EEOC has decided that a uniform template will make it easier to compare agency data and help agencies to post all required data. Accordingly, we have created a standard format that must be used by all agencies having 100 or more employees and all subordinate components. Two smaller agencies suggested that agencies having minimal EEO complaint activity use a modified posting format appropriate to the amount of data being reported. EEOC agrees. Therefore, agencies having fewer than 100 employees have the option of using any posting format that provides all required information for those complaints.

The Commission has devised a format setting forth the manner in which agencies must present their No FEAR data on their public Web sites. The format is intended to give agencies a visual indication of how data is to be presented. This format can be viewed on EEOC's public Web site at http://www.eeoc.gov/stats/nofear/index.html.

As can be seen, prior fiscal year and cumulative quarterly data shall be presented in vertical columns. The current cumulative quarterly data shall appear in the right-most column for which data is entered (the last column reading left to right), and the most recent prior fiscal year data shall appear in the column immediately to the left of the cumulative quarterly data. The data for the remaining fiscal years shall appear in each succeeding column to the left, so that the oldest fiscal year data appears in the left-most column for which data is posted.

The categories of data that must be posted shall appear in the horizontal rows. The first row for which data is posted shall contain the number of complaints filed for that particular reporting period. The remaining rows shall, reading top to bottom, contain the data set forth in subsections 1614.704(a)-(m) in the order in which each subsection occurs in the regulation.

While developing the standard format, we noted some inconsistencies between the bases listed in § 1614.702(j) and reported on EEOC Form 462. First, the interim rule uses the term “retaliation” whereas Form 462 uses the term “reprisal.” Second, Form 462 lists the Equal Pay Act as a basis while interim 702(j) does not. Finally, the order of the bases as listed in interim 702(j) differs slightly from that on Form 462. In order to regularize an agency's reporting burdens, while at the same time enhancing the degree of detail available to the public through the posting of No FEAR data, we have decided to conform the bases in the final version of section 702(j) to that on Form 462. Accordingly, we have added the Equal Pay Act basis, changed the term “retaliation” to “reprisal,” and listed the bases in the manner in which they appear on the Form 462. The term “reprisal” as used in this subpart should not be construed to include the type of reprisal covered by the Federal whistleblower protection laws. Rather, it refers to any action taken against an individual either because that individual opposed any practice made unlawful by the Federal employment discrimination laws or participated in any manner in any proceeding under those laws.

Seventy-eight percent (78%) of the comments were received from the No FEAR Coalition or persons identifying themselves as members of the No FEAR Coalition. The No FEAR Coalition members submitted their comments using an identical or nearly identical letter. The Coalition requested that EEOC convene public hearings in different parts of the country in order to address the issues of employment discrimination and EEOC's rule making under the No FEAR Act. The Coalition requested that EEOC establish a citizens' advisory board that would oversee EEOC's promulgation of this final rule. The Coalition made suggestions that have been raised by other commenters, such as developing a rule that will ensure managers found to have engaged in discrimination are appropriately disciplined, that these manager's names be provided to Congress, that counseling data be among that required to be posted, that amendments to complaints be tracked, and that data pertaining to agency subordinate components be posted.

Those comments provided by the Coalition and which also were raised by others are discussed both above and below. With respect to holding public hearings as part of the rule making process, EEOC is required by the Administrative Procedure Act to “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.” 5 U.S.C. 553(c). Thus, although an agency is permitted to accept comments through oral presentations, it is not required to do so. There is certainly no requirement in the Act for a public hearing. EEOC believes that the written comment process has provided meaningful public participation in this rule making.

In this regard, EEOC extended the initial 60-day public comment period and additional 30 days at the request of the No FEAR Coalition. As noted, many members of the Coalition submitted comments which the Commission carefully has considered. Additionally, during the public comment period the Chair of the Commission met with members of the No FEAR Coalition to discuss the substance of EEOC's rule making. We believe the public, including the No FEAR coalition, have had a meaningful opportunity to participate in the Title III No FEAR rule making process.

Moreover, EEOC's rule making duties under Title III of the No FEAR Act are straightforward. Title III requires an agency to post on its public Web site summary statistical data pertaining to complaints of employment discrimination filed with the agency. The statistics that shall be posted are set forth specifically in the statute. EEOC's only role is to issue rules establishing the “time, form and manner” in which the statistics are posted. In such a narrow context, public hearings as an adjunct to written comments would not better inform EEOC's rule making process in any appreciable manner. It is unlikely that ideas as to when or how pre-defined statistics should be posted on an agency Web site could or would be better communicated orally than in writing. Accordingly, EEOC concludes that holding the suggested regional public hearings will not significantly aid the rule making process. Similarly, EEOC does not believe it would be advantageous to convene a citizens' advisory board. Finally, as noted above, holding public hearings or convening a citizens advisory committee is not required by the No FEAR or Administrative Procedure Acts.

A number of complaints are dismissed by agencies on procedural grounds (e.g., failure to comply with the applicable time limits, failure to state a claim). The complainant can appeal the dismissal to EEOC. If EEOC finds the complaint was dismissed improperly, EEOC remands the complaint to the agency for further processing. A few commenters inquired how these complaints should be handled once they are returned to the agency for processing.

Once the complaint is remanded, the agency will have to track its status for posting purposes but only with respect to subsequent information applicable to the remanded complaint. Thus, for example, information previously posted about the issues and bases raised in the complaint shall not be changed regardless of whether the remanded complaint is returned to the agency with more, less, or different issues and bases. All pertinent information applicable to the subsequent processing of the complaint (e.g., whether it was timely investigated following remand, whether it subsequently involves a finding of discrimination with or without a hearing) shall be posted. With respect to remanded complaints where the investigation was not completed prior to the agency's dismissal of the complaint, the investigative period for purposes of § 1614.704(f) will include both the period between the dates the complaint initially was filed and dismissed and the period between the dates the EEOC's remand becomes final and the investigation is completed. For purposes of posting data under § 1614.704(l) (pending complaints filed in prior fiscal years), a remanded complaint will retain its original filing date.

A few commenters noted that the interim final rule is silent on the issue of settlements and asked how settlement information should be tracked. The No FEAR Act does not require an agency to post settlement information (e.g., how many complaints were settled, when or where in the process settlement took place, the bases and issues that were settled, etc.) and consequently neither the interim nor the final rule deal with settlements. Prior to settlement, an agency shall post all required information (e.g., a complaint was filed, the number of persons who filed the complaint, the issues and bases raised in the complaint, whether the investigation was completed within the applicable period if settlement occurred after the investigative step). Once a complaint is settled, subsequent information about the complaint does not have to be tracked (but see next paragraph). An allegation by a complainant, pursuant to 29 CFR 1614.504, that the agency has breached a settlement agreement does not constitute a complaint for purposes of this subpart and therefore information about a breach allegation is not information that must be posted.

In certain breach situations, a previously settled complaint can be reinstated by EEOC and the agency ordered to process the complaint from the point processing ceased at the time of settlement. See 29 CFR 1614.504(c). All pertinent information applicable to the subsequent processing of the reinstated complaint shall be posted. An agency shall ignore, however, the period between the settlement date and the date EEOC's reinstatement decision becomes final when posting data under § 1614.704(f) and (m).

It should be noted that while Title III of the No FEAR Act does not require an agency to post data regarding settlements, the reporting provisions under Title II of the Act apply to certain agreements made in settlement of claims brought under Federal antidiscrimination and whistleblower protection laws. In reporting the amounts reimbursed to the Judgment Fund, an agency must include any payments made as part of a settlement agreement in connection with litigation in Federal court. Also in connection with cases brought in Federal court, including those that are settled, an agency must report the number of employees disciplined and the types of disciplinary actions taken for conduct inconsistent with Federal antidiscrimination and whistleblower protection laws.

Some commenters objected to EEOC's use of the term “No FEAR Act” as a shorthand method of referring to the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002. These commenters opined that the term does not appear in the statute, use of the phrase in the Library of Congress's Thomas search engine does not lead to the statute, members of the public may confuse the term with matters having to do with homeland security, and members of the public will not associate the term with employment discrimination.

The term “No FEAR” is, like most shorthand titles for statutes, an acronym: N otification and F ederal E mployee A ntidiscrimination and R etaliation Act. It is the popular name by which this statute is known and it is commonly and widely used in the media and throughout the Federal government. The full name of the statute appears at the beginning of this preamble and the regulation. EEOC believes this provides the public with information sufficient both to know under what statute these rules are being promulgated and to find the statute should members of the public wish to read it.

While Title III of the No FEAR Act requires an agency to post EEO complaint data on its public Web site, Title II imposes other requirements. With respect to Federal employment discrimination and whistleblower protection laws, Title II mandates, among other things, that an agency: (1) Reimburse the Judgment Fund for payments concerning violations or alleged violations of Federal employment discrimination laws, Federal whistleblower protections laws, and retaliation claims arising from the assertion of rights under these laws; (2) notify covered individuals of their rights and protections under the Federal EEO laws; and (3) submit an annual report to Congress, EEOC, the Office of Personnel Management, and the Attorney General detailing, among other information, disciplinary actions taken against employees for conduct inconsistent with Federal antidiscrimination and whistleblower protections laws. Title II empowers the President or the President's designee to issue rules necessary to carry out that Title. The President delegated this rule making authority to the Office of Personnel Management (OPM).

It appears that a number of commenters did not distinguish between EEOC's rule making authority under Title III and OPM's authority under Title II. Thus, for example, commenters urged EEOC to write rules ensuring that there would be management accountability for discriminating against employees, comprehensive training for employees (and managers) concerning the protections afforded them and the obligations imposed upon them under the various Federal statutes, and accurate agency reporting to Congress. As explained, however, these issues do not fall within the rule making authority applicable to Title III of the No FEAR Act and EEOC therefore has no authority to address them.

In conjunction with comments received on whether amendments to complaints should be tracked, certain commenters suggested that the posted data track the number of complaints that are withdrawn by complainants. EEOC agrees. Therefore, EEOC has added the requirement in a new subsection 1614.704(h) that an agency post the number of complaints that are withdrawn in a given fiscal year. An agency shall track a withdrawn complaint in the same manner it tracks a complaint that is dismissed. That is, in tracking withdrawals, an agency shall not revise posted data pertaining to the number of complaints that have been filed in order to reflect the withdrawal. Rather, the withdrawal, like a dismissal, shall be accounted for in a separate data column.

A few commenters discussed provisions not included in the No FEAR Act which they believe should have been included; for example, authority for EEOC to sue agencies directly and award punitive damages to Federal employees. Others called for EEOC to promulgate rules beyond the posting requirements set forth in Title III, arguing that to do so would make the posting requirements more effective. Suggestions included: Requiring agencies to post the names of agency employees found to have engaged in prohibited discrimination; referring such persons to the Office of Special Counsel for possible disciplinary action; adding specific notations to such persons' Official Personnel Files indicating that they had been found to have engaged in prohibited discrimination; requiring agencies to review their posted EEO data in order to determine whether there were problem areas or managers. Other comments addressed the need for sanctions for the posting of false or incomplete data. One commentor wanted EEOC to clarify both the authority of EEOC administrative judges under part 1614 and the hearing process in general. All of these suggestions are beyond the scope of EEOC's authority under the No FEAR Act.

A few commenters wondered how to calculate percentages required by the rule. The percentage components under § 1614.704(i)(2) and (3), (j)(1), and (k)(1) are to be based on the number of final actions rendered in that fiscal year which involve findings of discrimination, and not the total number of final actions rendered in that fiscal year regardless of whether a finding of discrimination is involved. With respect to § 1614.704(j)(2) and (3) and § 1614.704(k)(2) and (3), the percentage figure shall be based on the total number of findings for that particular subcategory.

Example: An agency issues 100 final actions in a given fiscal year, 25 of which involve findings of discrimination. Of those 25 cases involving findings of discrimination, 15 were rendered after a hearing and 10 were rendered without a hearing. Of the 15 rendered after a hearing, 10 involve findings of race discrimination and 5 involve findings of sex discrimination. Of the 10 rendered without a hearing, 5 involve findings of race discrimination and 5 involve findings of age discrimination. In posting its percentage data under § 1614.704(i)(2) and (3), the agency will report that 40% (10 of 25) of the final actions involving discrimination were rendered without a hearing and that 60% (15 of 25) were rendered after a hearing. (The agency also will post under § 1614.704(i)(1) that there were 25 final actions involving findings of discrimination). In posting percentage data under § 1614.704(j)(1), the agency will post that 15 and 60% (15 of 25) of the final actions involving a finding of discrimination were based on race discrimination, 5 and 20% (5 of 25) were based on sex discrimination, and 5 and 20% (5 of 25) were based on age discrimination. Under § 1614.704(j)(2), the agency will post that 5 and 33% (5 of 15) of the final actions involving race discrimination were rendered without a hearing and that 5 and 100% (5 of 5) of the final actions involving age discrimination were rendered without a hearing. The agency further will post that 10 and 66% (10 of 15) of the final actions involving race discrimination were rendered after a hearing and that 5 and 100% (5 of 5) of the final actions involving sex discrimination were rendered after a hearing.

EEOC's explanatory comments in the preamble to the interim final rule applicable to those provisions that have not been changed in the final rule should continue to be used as guidance. That language can be found at 69 FR 3483 (2004).

Pursuant to Executive Order 12866, EEOC has coordinated this final rule with the Office of Management and Budget. Under section 3(f)(1) of Executive Order 12866, EEOC has determined that the regulation will not have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State or local tribal governments or communities.

The posting requirements contained in Title III of The No FEAR Act apply only to Federal executive agencies, the United States Postal Service, and the Postal Rate Commission. All of these agencies, including EEOC, are required by the No FEAR Act to post statistical data on their public Web sites pertaining to EEO complaints filed with them. In addition, EEOC has to post government-wide data pertaining to requests for EEO hearings and appeals of EEO complaints.

Much of the information that will be used as source material to post the statistical data required by Title III already is collected and maintained by the agencies in connection with their pre-existing reporting obligations. All affected agencies currently maintain public Web sites. Consequently, the Congressional Budget Office estimated that the total cost for all agencies to comply with The No FEAR Act's posting requirements will not exceed $5 million annually. House Rept. 107-101 Part 1, June 14, 2001, p 11-12. Also, according to the CBO, it will cost EEOC $500,000 annually to post the additional government-wide data required by § 302. Id. Thus, the total cost of Title III of the No FEAR Act should be less than $5.5 million annually.

The benefits of posting EEO data will flow not just to the Federal agencies but to the public. An agency will be able to compare its EEO program statistics against prior quarters and years to determine if there are trends that need to be addressed or whether progress is being made. An agency can also compare its statistics against those of other agencies. Both types of analyses should be useful to the agency in monitoring its own compliance with 29 CFR part 1614 and ensuring equal opportunity in the agency's employment programs. Public posting will ensure that members of the public will have access to this information and will be able to make independent assessments of agencies' compliance and progress. Agency employees will be able to assess the degree to which their agency provides equal employment opportunity. Likewise, potential job applicants will be able to judge the relative desirability of each agency's working environment. The public display of this information should provide agencies with added incentives to improve their EEO programs and to prevent discrimination proactively so that they can demonstrate that they are true equal employment opportunity employers. Increased monitoring and improved compliance through public posting of EEO statistics should lead to a decline in incidents of employment discrimination, which is the primary goal of the No FEAR Act.

This regulation contains no new information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

The Commission 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, because it does not affect any small business entities. The regulation affects only Federal Government entities. For this reason, a regulatory flexibility analysis is not required.

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

This action pertains to agency management, personnel and organization and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

This part 362 is removed to as a part of a DoD exercise to remove organizational charters from the CFR because they have no impact on the public. The revised DoD Directive 5105.19 is available at http://www.dtic.mil/whs/directives/corres/html/510519.htm .

The Berkley Bridge, a lift-type drawbridge, has a vertical clearance in the closed position for vessels of 48 feet above mean high water. The bridge owner, the Virginia Department of Transportation, has requested a temporary deviation from the current operating regulation set out in 33 CFR 117.1007(b) and (c), to support electrical and mechanical repairs of the draw span.

To facilitate the repairs, the drawbridge will provide vessel openings upon three hours advance notice each day between 9 a.m. to 3 p.m. beginning on Monday, July 31, 2006 until and including Friday, August 4, 2006. At all other times, the drawbridge will operate in accordance with the current operating regulations outlined in 33 CFR 117.1007(b) and (c).

The Coast Guard has informed the known users of the waterway by telephone so that they can arrange their transits to minimize any impact caused by the temporary deviation. For the three-hour advance notification, mariners should contact the bridge operator on channel 13 VHF or by calling (757) 247-2133 or (757) 494-2400.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The closure of a major downtown Boston roadway, the Central Artery Connector, due to a structural failure, has resulted in land traffic being detoured over many local roadways resulting in significant vehicular traffic delays and traffic gridlock.

The resulting traffic congestion has created a public safety issue. Emergency land traffic, including ambulances, fire fighting equipment, and police vehicles, may be unable to safely, and in a timely manner, travel throughout the downtown Boston area.

Reducing the times at which the bridge is required to open on weekends and extending the commuter rush hour closures by one hour is expected to help alleviate the traffic delays and reduce gridlock in the vicinity of the bridge and downtown Boston.

Under 5 U.S.C. 553(d)(3), the Coast Guard also finds good cause exists for making this rule effective less than 30 days after publication in the Federal Register for the reasons outlined above.

The Department of Conservation and Recreation, Craigie Bridge, formerly the Metropolitan District Commission, Craigie Bridge, has a vertical clearance in the closed position of 12 feet at normal pool elevation.

The existing drawbridge operation regulations listed at 33 CFR § 117.591(e), require the bridge to open on signal; except that, from 6:15 a.m. to 9:10 a.m., and 3:15 p.m. to 6:30 p.m., Monday through Friday, except holidays, the draw need not open for the passage of vessels. The bridge shall open as soon as possible for public vessels of the United States, state or local vessels used for public safety, and vessels in distress.

Pursuant to 33 CFR 117.37, the bridge owner, the Department of Conservation and Recreation, and the Massachusetts State Police, requested a temporary change to the drawbridge operation regulations for the Craigie Bridge, in the interest of public safety. The closure of a major downtown roadway, the Central Artery Connecter, due to a structural failure, has resulted in vehicular traffic being re-routed over local roads resulting in significant traffic delays and gridlock in downtown Boston on weekdays during the commuter rush hours, 6 a.m. to 10 a.m. and 3 p.m. to 7 p.m., and on weekends after 12 p.m. Emergency vehicles and equipment could be delayed in responding to emergency situations in a safe and timely manner as a result of these traffic delays.

The Charles River is predominantly a recreational waterway. The Craigie Bridge normally opens between 25 and 30 times on Saturday and Sunday between 8 a.m. and 8 p.m. during the boating season. Reducing the number of bridge openings after 12 p.m. on weekends and extending the commuter rush hour closure periods by one hour on weekdays when vehicular traffic is increased should help alleviate the traffic delays and enhance public safety.

As a result of the above information, the Coast Guard is temporarily changing the drawbridge operation regulations that govern the operation of the Craigie Bridge.

Under this temporary final rule, the Department of Recreation and Conservation Craigie Bridge across the Charles River, mile 1.0, at Boston, shall open on signal; except that, on Saturday and Sunday, from 12 p.m. to 8 p.m., the draw shall open on signal, on the half-hour only, except for the passage of emergency vessels.

The morning and afternoon commuter rush hour bridge closure periods Monday through Friday will be extended. As a result, the bridge may remain closed from 6 a.m. to 10 a.m. and from 3 p.m. to 7 p.m., except for the passage of emergency vessels.

The Coast Guard is temporarily changing the drawbridge operation regulations for the Department of Conservation and Recreation Craigie Bridge across the charles River, mile 1.0, at Boston, to operate as follows: the draw shall open on signal; except that, between 12 p.m. and 8 p.m. on Saturday and Sunday the draw shall open on signal, on the half-hour only, and from 6 a.m. to 10 a.m. and 3 p.m. to 7 p.m., Monday through Friday the draw need not open for the passage of vessel traffic, except as stated in paragraph (a)(1) of this section.

The Coast Guard believes that this temporary change will help reduce the vehicular traffic delays while continuing to meet the reasonable needs of navigation.

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.

This conclusion is based on the fact that the bridge will continue to open for vessel traffic. The temporary limitation of the bridge opening only on the half-hour between 12 p.m. and 8 p.m. on Saturday and Sunday and the one-hour extension of the commuter rush hour closures Monday through Friday is necessary for public safety and should be sufficient for the present needs of navigation.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 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 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 Charles River is navigated predominantly by recreational vessels. We believe that the recreational vessels have the schedule flexibility to plan their bridge transits in accordance with the temporary bridge opening schedule and that they will not be adversely affected since the bridge will continue to open for all vessel traffic. The temporary limitation of the bridge opening only on the half-hour between 12 p.m. and 8 p.m. on Saturday and Sunday and the extension of the weekday commuter rush hour closures is necessary for public safety, and should be sufficient for the present needs of navigation.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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.

No small entities requested Coast Guard assistance and none was given.

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).

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 affect 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 concern an environmental risk to health or risk to safety that may disproportionately affect children.

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have 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 M16475.1D 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 (32)(e), of the Instruction, from further environmental documentation. Paragraph (32)(e) is applied to this rule because it relates to the promulgation of operating regulations or procedures for drawbridges. Under figure 2-1, paragraph (32)(e), of the instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

Bridges.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The Coast Guard was not presented with the logistical information for the Vermont Air National Guard 60th Anniversary Air Show in sufficient time to draft and publish an NPRM. Publishing an NPRM and delaying the effective date would be contrary to the public interest since immediate action is needed to protect the maritime public from the potential hazards associated with high-speed, high-performance, low-flying aircraft conducting acrobatic demonstrations above the waters of Burlington Bay.

Under 5 U.S.C. 553(d)(3), the Coast Guard also finds, for the same reasons, that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

The Vermont National Guard is holding a 60th Anniversary Air Show over the waters of Burlington Bay. This rule establishes a safety zone temporarily closing all waters in Burlington Bay from Lone Rock Point 44°29′43″ N 073°14′56″ W SE to Oakledge Park 44°27′15″ N 073°14′52″ W, thence from the Burlington South break wall light 44°28′12″ N 073°13′32″ W extending due east to the shore, thence from the Burlington north break wall 44°28′50″ N 073°13′47″ W and extending due east to the shore. This zone is necessary to protect the life and property of the maritime public from the potential dangers posed by this event. It will protect the public by prohibiting entry into or movement within the proscribed portion of Burlington Bay during the Vermont National Guard 60th Anniversary Air Show.

Marine traffic may transit safely outside of the zone during the effective period. The Captain of the Port does not anticipate any negative impact on vessel traffic due to this event. Public notifications will be made prior to and during the effective period via marine safety information broadcasts and Local Notice to Mariners.

This rule is effective from 10 a.m. until 4 p.m. on August 18, 2006 and from 8 a.m. until 6 p.m. on August 19, 2006. This safety zone is needed to safeguard mariners from the hazards associated with low-flying, high-speed, and high-performance acrobatic aircraft performing above the designated waters in Burlington Bay. During the effective period of the safety zone, vessel traffic will be restricted in a portion of Burlington Bay. Entry into this zone by any vessel is prohibited unless specifically authorized by the Captain of the Port, Northern New England or his designated representative.

The Captain of the Port anticipates negligible negative impact on vessel traffic from this temporary safety zone as it will be in effect for limited hours during only one weekend. Additionally, extensive advanced notifications will be made to the maritime community via Local Notice to Mariners, marine information broadcasts, local port safety committee meetings, area newspapers, and electronic Marine Safety Information Bulletins. These advisories will afford large commercial traffic substantial advance notice to schedule around the event. It has been determined that the enhanced safety to life and property provided by this rule greatly outweighs any potential negative impacts. Public notifications will be made during the entire effective period of this safety zone via Local Notice to Mariners and marine information broadcasts.

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.

The Coast Guard expects the economic impact of this rule to be so minimal that a full regulatory evaluation is unnecessary. The effect of this rule will not be significant for the following reasons: the duration of the safety zone is for a limited number of hours and during the span of only one weekend. Vessels will be permitted to transit and navigate in waters adjacent to this safety zone, minimizing any adverse impact. Additionally, this rule will be entered into the Local Notice to Mariners, and extensive maritime advisories will be broadcast.

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 and operators of vessels intending to transit in the vicinity of Burlington, Vermont. The safety zone will not have a significant impact on a substantial number of small entities as the duration of the safety zone is for a limited number of hours and during the span of only one weekend. Vessels will be permitted to transit and navigate in waters adjacent to this safety zone, minimizing any adverse impact.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If this rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call LTJG Stephanie Forbes at (207) 767-0313 or LTJG Jarrett Bleacher at (207) 742-5421, Sector Northern New England, Waterways Management Division.

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).

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 affect 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)(g) of the Instruction, from further environmental documentation. This rule fits the category selected from paragraph (34)(g), as it establishes a safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES .

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in Unit II. 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-2006-0232 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 2, 2006.

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-2006-0232, 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 Drive, Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305-5805.

In the Federal Register of April 19, 2006 (71 FR 20045) (FRL-8065-7), EPA issued a proposed rule to revoke the exemption from the requirement of a tolerance for “wheat bran” under 40 CFR 180.910. As discussed in the proposed rule, wheat bran has been identified as an allergen-containing food commodity. The proposed rule provided a 60-day comment period that invited public comment for consideration and for support of tolerance exemption retention under the FFDCA standards. No comments were received on the proposed rule. This final rule completes EPA's revocation of the “wheat bran” tolerance exemption under 40 CFR 180.910 as proposed in the Federal Register of April 19, 2006 (71 FR 20045).

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

This action becomes effective on August 2, 2006. Any commodities listed in the regulatory text of this document that are treated with the pesticide chemical subject to this final rule, and that are in the channels of trade following the tolerance exemption revocations, shall be subject to FFDCA section 408(1)(5), as established by the FQPA. Under this section, any residue of the pesticide chemical in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of the Food and Drug Administration that:

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

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

By law, EPA is required by August 2006, to reassess the tolerances and exemptions from tolerances that were in existence on August 2, 1996. This document revokes one inert ingredient tolerance exemption which is counted as a tolerance reassessment toward the August 2006 review deadline under FFDCA section 408(q), as amended by FQPA in 1996.

In this final rule, EPA is revoking a specific tolerance exemption established under section 408(d) of FFDCA. The Office of Management and Budget (OMB) has exempted this type of action from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this final rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq ., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .), the Agency previously assessed whether revocations of tolerances might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. This analysis was published on December 17, 1997 (62 FR 66020), and was provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticide listed in this rule, the Agency hereby certifies that this final action will not have a significant economic impact on a substantial number of small entities. In a memorandum dated May 25, 2001, EPA determined that eight conditions must all be satisfied in order for an import tolerance or tolerance exemption revocation to adversely affect a significant number of small entity importers, and that there is a negligible joint probability of all eight conditions holding simultaneously with respect to any particular revocation. (This Agency document is available in the docket of this final rule). Furthermore, for the pesticide named in this final rule, the Agency knows of no extraordinary circumstances that exist as to the present revocations that would change the EPA's previous analysis. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. For these same reasons, the Agency has determined that this final rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This final rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this final rule.

The Congressional Review Act, 5 U.S.C. 801 et seq ., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the Agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and 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 the rule in the Federal Register . This 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 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.

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

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

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

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

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

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-2005-0245 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 2, 2006.

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-2005-0245, 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 November 30, 2005 (70 FR 71838) (FRL-7735-7), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of pesticide petitions (PP 4E6859 and 4E6860) by Interregional Research Project No. 4 (IR-4), Technology Center of New Jersey, Rutgers, the State University of New Jersey, 681 U.S. Highway #1 South, North Brunswick, NJ 08902-3390. The petition requested that 40 CFR 180.553 be amended by establishing tolerances for residues of the fungicide fenhexamid, (N-2,3-dichloro-4-hydroxyphenyl)-1-methyl cyclohexanecarboxamide in or on cilantro, leaves at 30.0 parts per million (ppm) (4E6859); pepper, nonbell at 0.02 ppm (4E6860) and pomegranate at 3.0 ppm (4E6859). That notice included a summary of the petition prepared by Arvesta Corporation, the registrant. There were no comments received in response to the notice of filing. Petition 4E6859 was subsequently amended to lower the residue level for pomegranate to 2.0 ppm.

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....”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm .

Consistent with section 408(b)(2)(D) of FFDCA, 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, consistent with section 408(b)(2) of FFDCA, for a tolerance for residues of fenhexamid on cilantro, leaves at 30.0 ppm; pepper, nonbell at 0.02 ppm; and pomegranate at 2.0 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the toxic effects caused by fenhexamid as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies in the Federal Register of April 13, 2000 (65 FR 19842) (FRL-6553-7) *http://www.epa.gov/fedrgstr/EPA-PEST/2000/April/Day-13/p9144.htm.

For hazards that have a threshold below which there is no appreciable risk, the dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified the (LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect 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.

The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify non-threshold hazards such as cancer. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk, estimates risk in terms of the probability of occurrence of additional cancer cases. More information can be found on the general principles EPA uses in risk characterization at http://www.epa.gov/pesticides/health/human.htm.

A summary of the toxicological endpoints for fenhexamid used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of September 26, 2003 (68 FR 55513) (FRL-7326-7).

1. Dietary exposure from food and feed uses . Tolerances have been established (40 CFR 180.553) for the residues of fenhexamid, in or on a variety of raw agricultural commodities. Risk assessments were conducted by EPA to assess dietary exposures from fenhexamid 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. No such effects were identified in the toxicological studies for fenhexamid; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure . In conducting the chronic dietary exposure assessment EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID TM ), which incorporates food consumption data as reported by respondents in the USDA 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII), and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: one hundred percent of proposed and registered crops are treated with fenhexamid, default processing factors, average (chronic) concentration estimates for drinking water and tolerance-level residues for all commodities.

iii. Cancer . Fenhexamid is classified as “not likely” to be a human carcinogen. Therefore, a cancer dietary exposure assessment was not performed.

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for fenhexamid 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 physical characteristics of fenhexamid. 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 environmental concentrations (EECs) of fenhexamid for acute exposures are estimated to be 29 parts per billion (ppb) for surface water and 0.0007 ppb for groundwater. The EECs for chronic exposures are estimated to be 1.1 ppb for surface water and 0.0007 ppb for groundwater. Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model (DEEM-FCID TM ). For chronic dietary risk assessment, the annual average concentration of 1.1 ppb was used to access the contribution to drinking water

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

4. Cumulative effects from substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to fenhexamid and any other substances and fenhexamid 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 fenhexamid 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 the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at http://www.epa.gov/pesticides/cumulative .

1. In general . Section 408 of 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 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. 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. 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 safety factor value based on the use of traditional uncertainty factors and/or special FQPA safety factors, as appropriate.

2. Prenatal and postnatal sensitivity . In the rat and the rabbit developmental toxicity studies, neither quantitative nor qualitative evidence of increased susceptibility of fetuses to in utero exposure to fenhexamid was observed. In the rat reproduction study, qualitative susceptibility was evidenced as significantly decreased pup body weights in both generations during the lactation period (on lactation days 7, 14, and 21 in the F 2 generation and lactation days 14 and 21 in the F 1 generation offspring) in the presence of lesser maternal toxicity (alterations in clinical chemistry parameters and decreased organ weights without collaborative histopathology). Considering the overall toxicity profile and the doses and endpoints selected for risk assessment for fenhexamid, the degree of concern for the effects observed in this study was characterized as low, noting that there is a clear NOAEL and well-characterized dose response for the offspring effects observed and that these effects occurred in the presence of parental toxicity. No residual uncertainties were identified. The NOAEL of 17 mg/kg/day from the chronic dog study used to establish the chronic Reference Dose (cRfD) for the General Population (no aRfD was established for any population subgroup) is lower than the NOAEL of 38.2 mg/kg/day in the reproduction study in which the offspring effects of concern were observed (LOAEL = 406 mg/kg/day).

3. Conclusion . There is a complete toxicity data base for fenhexamid and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures. EPA determined that the 10X Safety Factor to protect infants and children should be reduced to 1X for the following reasons:

• There are no residual uncertainties for pre and/or post natal toxicities via the oral route since the doses selected for concerns for the developmental and offspring toxicities seen in the above mentioned studies.

• There are no residual uncertainties for pre and/or post natal toxicities via the dermal route since the dose/endpoint/study/species of concern was used for dermal-risk assessment.

• The toxicology data base is complete.

• Developmental neurotoxicity studies are not required for fenhexamid based on the following weight-of-the-evidence considerations:

i. Lack of evidence of abnormalities in the development of the fetal nervous system in the pre/post natal studies.

ii. Neither brain weight nor histopathological examination of the nervous system was affected in the subchronic and chronic studies.

iii. Decreased body temperatures observed in male rats in the acute neurotoxicity study were not considered to be toxicologically significant.

• The dietary (food) exposure assessment utilizes existing and proposed tolerance level residues and assumes 100% of crops treated with fenhexamid. The assessment is based on reliable data and is not expected to underestimate exposure/risk.

• Conservative assumptions are used in the drinking water models. The drinking water exposure assessment is not expected to underestimate exposure/risk.

• Fenhexamid is not registered for use sites that would result in residential exposure.

The Agency currently has two ways to estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses. First, a screening assessment can be used, in which the Agency calculates drinking water levels of comparison (DWLOCs) which are used as a point of comparison against estimated drinking water concentrations (EDWCs). The DWLOC values are not regulatory standards for drinking water, but are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. More information on the use of DWLOCs in dietary aggregate risk assessments can be found at http://www.epa.gov/oppfead1/trac/science/screeningsop.pdf.

More recently the Agency has used another approach to estimate aggregate exposure through food, residential and drinking water pathways. In this approach, modeled surface and groundwater EDWCs are directly incorporated into the dietary exposure analysis, along with food. This provides a more realistic estimate of exposure because actual body weights and water consumption from the CSFII are used. The combined food and water exposures are then added to estimated exposure from residential sources to calculate aggregate risks. The resulting exposure and risk estimates are still considered to be high end, due to the assumptions used in developing drinking water modeling inputs.

1. Acute risk . An acute risk assessment was not performed. No toxicological endpoint attributable to a single (acute) dietary exposure was identified. Therefore, acute risk from exposure to fenhexamid is not expected.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to fenhexamid from food and water will utilize 11% of the cPAD for the U.S. population, 21% of the cPAD for all infants less than 1 year old, and 28% of the cPAD for children 1-2 years old, the subpopulation at greatest exposure. There are no residential uses for fenhexamid. Therefore, EPA does not expect the aggregate exposure to exceed 100% of the cPAD

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

4. Aggregate cancer risk for U.S. population . The Agency has classified fenhexamid as a “not likely” human carcinogen based on lack of evidence of carcinogenicity in male and female rats as well as in male and female mice, and on the lack of genotoxicity in an acceptable battery of mutagenicity studies. Therefore, fenhexamid is not expected to pose a cancer risk.

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

Adequate enforcement methodology Bayer AG Method 00362 (HPLC - ECD) 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 .

Fenhexamid per se is the residue to be regulated in pomegranate, cilantro or non-bell pepper. There are no Canadian, Mexican, or Codex MRLs for fenhexamid “for these crops” , therefore, there are no issues for international harmonization.

Therefore, the tolerance is established for residues of fenhexamid, (N-2,3-dichloro-4-hydroxyphenyl)-1-methyl cyclohexanecarboxamide, in or on cilantro, leaves at 30.0 ppm; pepper, nonbell at 0.02 ppm; and pomegranate at 2.0.

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 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). 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. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. 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. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in Unit II. 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-2006-0307 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 2, 2006.

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-2006-0307, 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 Drive, Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305-5805.

In the Federal Register of May 3, 2006 (71 FR 26001) (FRL-8068-3), EPA issued a proposed rule to revoke two exemptions from the requirement of a tolerance that are associated with two inert ingredients because those substances are no longer contained in pesticide products. The proposed rule provided a 60-day comment period that invited public comment for consideration and for support of tolerance exemption retention under the FFDCA standards.

In this final rule, EPA is revoking two exemptions from the requirement of a tolerance that are associated with two inert ingredients because these specific tolerance exemptions correspond to uses no longer current or registered under FIFRA in the United States. The tolerance exemptions revoked by this final rule are no longer necessary to cover residues of the relevant pesticide chemicals in or on domestically treated commodities or commodities treated outside but imported into the United States.

EPA has historically been concerned that retention of tolerances and tolerance exemptions that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States. Thus, it is EPA's policy to issue a final rule revoking those tolerances and tolerance exemptions for residues of pesticide chemicals for which there are no active registrations or uses under FIFRA, unless any person commenting on the proposal demonstrates a need for the tolerance to cover residues in or on imported commodities or domestic commodities legally treated.

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

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

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

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

No comments were received on the proposed rule. Therefore, for the reasons stated herein and in the proposed rule, EPA is revoking the two exemptions from the requirement of a tolerance identified in the Federal Register Notice of May 3, 2006 (71 FR 26001).

This final rule is issued pursuant to section 408(d) of FFDCA (21 U.S.C. 346a(d)). Section 408 of FFDCA authorizes the establishment of tolerances, exemptions from the requirement of a tolerance, modifications in tolerances, and revocation of tolerances for residues of pesticide chemicals in or on raw agricultural commodities and processed foods. Without a tolerance or tolerance exemption, food containing pesticide residues is considered to be unsafe and therefore “adulterated” under section 402(a) of the FFDCA. If food containing pesticide residues is found to be adulterated, the food may not be distributed in interstate commerce (21 U.S.C. 331(a) and 342 (a)).

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

These actions become effective on August 2, 2006. Any commodities listed in the regulatory text of this document that are treated with the pesticide chemicals subject to this final rule, and that are in the channels of trade following the tolerance exemption revocations, shall be subject to FFDCA section 408(1)(5), as established by the FQPA. Under this section, any residues of these pesticide chemicals in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of the Food and Drug Administration that:

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

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

By law, EPA is required by August 2006, to reassess the tolerances and exemptions from tolerances that were in existence on August 2, 1996. This document revokes two inert ingredient tolerance exemptions which are counted as tolerance reassessments toward the August 2006 review deadline under FFDCA section 408(q), as amended by FQPA in 1996.

In this final rule, EPA is revoking specific tolerance exemptions established under section 408(d) of FFDCA. The Office of Management and Budget (OMB) has exempted this type of action from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this final rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq ., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .), the Agency previously assessed whether revocations of tolerances might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. This analysis was published on December 17, 1997 (62 FR 66020), and was provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticide listed in this rule, the Agency hereby certifies that this final action will not have a significant economic impact on a substantial number of small entities. In a memorandum dated May 25, 2001, EPA determined that eight conditions must all be satisfied in order for an import tolerance or tolerance exemption revocation to adversely affect a significant number of small entity importers, and that there is a negligible joint probability of all eight conditions holding simultaneously with respect to any particular revocation. (This Agency document is available in the docket of this final rule). Furthermore, for the pesticides named in this final rule, the Agency knows of no extraordinary circumstances that exist as to the present revocations that would change the EPA's previous analysis. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. For these same reasons, the Agency has determined that this final rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This final rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this final rule.

The Congressional Review Act, 5 U.S.C. 801 et seq ., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the Agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and 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 the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

This is a summary of the Commission's Declaratory Ruling and Report and Order in WC Docket No. 05-68, adopted on June 1, 2006, and released on June 30, 2006. The complete text of this Declaratory Ruling and Report and Order is available for public inspection Monday through Thursday from 8 a.m. to 4:30 p.m. and Friday from 8 a.m. to 11:30 a.m. in the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text is available also on the Commission's Internet site at http://www.fcc.gov. Alternative formats are available to persons with disabilities by contacting the Consumer and Governmental Affairs Bureau, at (202) 418-0531, TTY (202) 418-7365, or at fcc504@fcc.gov. The complete text of the decision may be purchased from the Commission's duplicating contractor, Best Copying and Printing, Inc., Room CY-B402, 445 12th Street, SW., Washington, DC 20554, telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562, or e-mail at fcc@bcpiweb.com.

1. On May 15, 2003, AT&T filed a petition for declaratory ruling that intrastate access charges did not apply to calls made using its “enhanced” prepaid calling cards when the calling card platform is located outside the state in which either the calling or the called party is located. On November 22, 2004, AT&T submitted an ex parte letter requesting a declaratory ruling on two additional types of “enhanced” prepaid calling card offerings: one card that offers the caller a menu of options to access non-call-related information, and a second card that utilizes Internet Protocol (IP) technology, accessed by 8YY dialing, to transport a portion of the calling card call.

2. On February 16, 2005, the Commission denied AT&T's May 2003 Petition. See AT&T Corp. Petition for Declaratory Ruling Regarding Enhanced Prepaid Calling Card Services; Regulation of Prepaid Calling Card Services, Order and Notice of Proposed Rulemaking, 70 FR 12828, March 16, 2005 ( Calling Card Order & NPRM ). The Commission found that the service described in the original petition was a jurisdictionally-mixed telecommunications service and that intrastate access charges apply when a call originates and terminates in the same state. The Commission initiated a Notice of Proposed Rulemaking (NPRM) to address additional types of “enhanced” prepaid calling cards, including those described in AT&T's November 2004 letter. On May 3, 2005, AT&T filed a petition seeking the adoption of interim rules pending a final decision by the Commission in this docket. AT&T's Emergency Petition seeks interim rules imposing federal universal service funding obligations on all prepaid calling card services regardless of whether the Commission ultimately decides they are telecommunications services or information services.

3. In this Order , the Commission addresses the two prepaid calling card variants described in the NPRM portion of the Calling Card Order and NPRM: (1) Menu-driven prepaid calling cards; and (2) prepaid calling cards that utilize IP transport to deliver all or a portion of the call. As the Commission explains, it finds that both types of prepaid calling cards are telecommunications services and that their providers are subject to regulation as telecommunications carriers. In conjunction with the Commission's prior rulings regarding basic prepaid calling cards and prepaid cards with advertising, all prepaid calling card providers will now be treated as telecommunications service providers. In the future, if prepaid calling card providers introduce new and different card types that they believe should be classified as information services, they may seek a declaratory ruling, a waiver, or other relief from the requirements that the Commission adopts in this Order.

4. In its comments AT&T described its “newly augmented” prepaid calling card service accessed via toll-free, 8YY, dialing. Upon dialing the 8YY number, the cardholder is presented with the option to make a telephone call or to access several types of information, such as additional information about the card distributor, sports, weather, or restaurant or entertainment information. Other entities offer similar services to consumers.

5. “Telecommunications” is defined as the “transmission between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.” 47 U.S.C. 153(43). Building on the definition of “telecommunications,” the Communications Act defines “telecommunications service” as “the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public regardless of the facilities used.” 47 U.S.C. 153(46). Thus, a “telecommunications service” involves more than the mere transmission of information; it requires the “offering” of pure transmission capability “for a fee directly to the public.”

6. Although it may be difficult at times to determine whether a service bundle is “sufficiently integrated” to merit treatment as a single service, that is not the case here. There simply is no functional integration between the information service features and the use of the telephone calling capability with menu-driven prepaid calling cards. The menu is a mechanism by which the customer can access the separate capabilities that are packaged together in a single prepaid calling card. The customer may use only one capability at a time and the use of the telecommunications transmission capability is completely independent of the various other capabilities that the card makes available. But even if those additional capabilities are classified as an information service, the packaging of these multiple services does not by itself transform the telecommunications component of these cards into an information service.

7. The Commission's finding here is consistent with the Commission's conclusions in the Calling Card Order and NPRM. Just as the Commission found in that order that the addition of an advertising message does not convert a telecommunications service into an information service, the Commission now finds that the addition of an option to access other types of information does not convert the telecommunications service offered by these prepaid calling cards into an information service for regulatory purposes, even if standing alone the information processing capability would meet the statutory definition of an information service. In short, these menu-driven calling cards offer customers a telecommunications service that enables them to make telephone calls, and the ability to obtain sports scores, stock quotes, and other information through the same card does not alter that conclusion.

8. In the IP-in-the-Middle Order, the Commission addressed AT&T's use of IP technology to transport interexchange telephone calls dialed on a 1+ basis. See In the Matter of Petition for Declaratory Ruling that AT&T's Phone-to-Phone IP Telephony Services are Exempt from Access Charges, Order, 19 FCC Rcd 7457 (2004) ( IP-in-the-Middle Order ). The Commission found that “an interexchange service that: (1) Uses ordinary customer premises equipment (CPE) with no enhanced functionality; (2) originates and terminates on the public switched telephone network (PSTN); and (3) undergoes no net protocol conversion and provides no enhanced functionality to end users due to the provider's use of IP technology” is a telecommunications service. The Commission limited its ruling in the IP-in-the-Middle Order to calls that meet all of the above criteria and are placed using 1+ dialing.

9. Other than the use of 8YY dialing instead of 1+ dialing, prepaid calling cards that use IP transport appear to be identical to the services addressed by the Commission in the IP-in-the-Middle Order. The Commission sees no reason why the use of a different dialing pattern to make calls, without more, should result in a different regulatory classification. These cards are used to originate calls on the circuit-switched network using standard customer premises equipment, factors that the Commission previously has used to distinguish telecommunications services from information services. Consequently, the Commission finds that the use of IP transport in the provision of a prepaid calling card service does not alone convert that service from a telecommunications service to an information service.

10. As a result of the Commission's finding that providers of the two types of prepaid calling cards described in the previous section offer telecommunications services, these providers are now subject to all of the applicable requirements of the Communications Act and the Commission's rules, including requirements to contribute to the federal USF and to pay access charges. In this section, the Commission sets forth some additional requirements that will apply, at least on an interim basis, to all prepaid calling card providers.

11. As noted above, all prepaid calling card providers must contribute to the Federal USF based on interstate and international telecommunications revenues. 47 U.S.C. 254 and 47 CFR 54.706. The Commission has established two safe harbors for use by carriers that offer retail packages that bundle interstate telecommunications services with other services ( e.g. , basic phone service and voicemail). A carrier may elect to treat all bundled revenues as telecommunications revenues or it may report revenues from the bundled offering based on the unbundled service offering prices, with no discount allocated to the telecommunications service. Prepaid calling card providers may avail themselves of these safe harbors; should they choose to forego these safe harbors, they must be prepared to defend the allocation method they use in an audit or enforcement context.

12. Based on the record in this proceeding, the Commission finds that an exemption from the contribution requirement for calling cards sold by, to, or pursuant to contract with DoD or a DoD entity will serve the public interest. Accordingly, the Commission forbears from applying section 254(d) to the extent necessary to implement the exemption from USF contribution obligations for prepaid calling cards sold by, to, or pursuant to contract with DoD or a DoD entity, on an interim basis while the Commission decides other USF contribution issues in its Contribution Methodology proceeding. The Commission finds that this exemption easily meets the three-pronged forbearance standard contained in section 10(a). 47 U.S.C. 160(a).

13. As a result of this Order, providers of prepaid calling cards that are menu-driven or use IP transport to offer telecommunications services are obligated to pay interstate or intrastate access charges based on the location of the called and calling parties. 47 CFR 69.1 et seq. As noted above, the Commission previously has found that these same access charge obligations apply to basic prepaid calling cards and prepaid calling cards with unsolicited advertising. As with other services that require the caller to dial an access number, the assessment of interstate and intrastate access charges based on the location of the called and calling parties can be complicated with respect to prepaid calling card traffic because the caller initially dials the 8YY number associated with the calling card platform and only later dials the number of the called party.

14. The Commission believes that these complications can be addressed through certification and reporting requirements that compel the prepaid calling card provider to share the necessary information with the carriers that it uses to transport traffic to and from the platform. The Commission agrees with AT&T that such requirements will promote transparency in the prepaid calling card market and that, absent such requirements, calling card providers and their underlying carriers would have the incentive and the ability to avoid intrastate access charges. As with any other service subject to the Commission's rules, if prepaid calling card providers do not comply with these rules they will be subject to the Commission's enforcement authority, including complaints and forfeitures. 47 U.S.C. 208, 501.

15. Prepaid calling card providers are subject to the Commission's rules on the passing of CPN. 47 CFR 64.1601. Under these rules, carriers that use SS7 are required to transmit the CPN associated with an interstate call to interconnecting carriers. In the context of prepaid calling card calls, the Commission interprets this to mean that carriers must pass the CPN of the calling party ( i.e. , the number associated with the telephone used by the cardholder) and not replace that number with the number associated with the platform.

16. For similar reasons, the Commission prohibits carriers that serve prepaid calling card providers from passing the telephone number associated with the platform in the charge number (CN) parameter of the SS7 stream. The Commission concludes that carriers that serve prepaid calling card providers may not pass information regarding the calling card platform in the CN parameters in the SS7 stream. This approach properly balances the need for accurate intercarrier billing records with the need of some carriers to use CN for their own retail billing purposes.

17. The Commission also requires prepaid calling card providers to report percentage of interstate use (PIU) factors to those carriers from which they purchase transport services. Specifically, a prepaid calling card provider must report prepaid calling card PIU factors, and call volumes on which these factors were calculated, based on not less than a one-day representative sample. These factors must be computed separately for originating and terminating traffic on a state-specific basis. This information must be provided to the transport provider no later than the 45th day of each calendar quarter. The transport provider may use the reported PIU in calculating any PIU factors it reports to LECs, and it may disclose the reported PIU upon request of such LECs.

18. If the prepaid calling card provider fails to provide the appropriate PIU information to the transport provider in a timely manner, the transport provider may treat the prepaid calling card provider's traffic as subject to a 50 percent default PIU. The transport provider may notify any originating or terminating LEC that it has applied the default PIU to the prepaid calling card provider's traffic for that reporting period. A transport provider also may audit the PIU reports it receives from a calling card provider if it has a reasonable basis to believe that such reports contain inaccurate or misleading data. The Commission finds that the use of a default PIU and the ability to audit are reasonable means by which to protect underlying transport providers (who themselves may be subject to comparable requirements under LEC access tariffs) and encourage the timely submission of accurate information by prepaid calling card providers. The platform number should be considered the called party number if the caller does not attempt to make a call to a third party.

19. The Commission believes that the exchange of information among carriers, as described above, should be sufficient to resolve most issues related to the assessment of access charges with respect to prepaid calling card traffic. To reduce further the incentive for carriers to report false or misleading information, however, the Commission also requires prepaid calling card providers to file certifications with the Commission. On a quarterly basis, every prepaid calling card provider must submit a certification, signed by an officer of the company under penalty of perjury, stating that it is in compliance with the reporting requirements described above. The certification also should include the percentage of interstate, intrastate, and international calling card minutes for that reporting period.

20. Each prepaid calling card provider also must certify the percentages of total prepaid calling card service revenues (excluding revenue that is exempt under the military exemption adopted above) that are interstate and international and therefore subject to federal universal service assessments for the reporting period. The certification the Commission requires in this Order is not a replacement for the Form 499—Telecommunications Reporting Worksheet. As such, prepaid calling card providers are responsible for filing both the certification required in this Order and a Form 499. Finally, the certification must include a statement that the company is making the required contribution based on the reported information.

21. Certifications will be due on a quarterly basis and may be filed in WC Docket No. 05-68 using the Commission's Electronic Comment Filing System. The first provider certifications are due the last day of the first full calendar quarter after OMB approval of this requirement.

22. In contrast to the new reporting and certification rules the Commission adopts in this Order, which it will apply to all prepaid calling card providers on a prospective basis, the Commission's decision to classify prepaid calling cards that use IP transport and menu-driven prepaid calling cards as telecommunications services is a declaratory ruling, which is a form of adjudication. 47 CFR 1.2.

23. Adjudicatory decisions typically apply on a retroactive basis, and the Commission finds that such retroactivity is appropriate for cards that use IP transport. The Commission reaches a different conclusion, however, with respect to menu-driven prepaid calling card services. Given the lack of clarity in the law on this issue, both before and as a result of the NPRM, the Commission is concerned that retroactive application of this Order to menu-driven prepaid calling cards would be so unfair to providers of such cards as to work a “manifest injustice.” For example, the Commission recognizes that retroactive application of its decision would be burdensome for menu-driven prepaid calling card providers, in that the decision subjects them to access charges, Universal Service Fund contribution obligations, and the full panoply of Title II obligations. The Commission also recognizes that, given the state of the law at the time, parties may have relied on the assumption that they would not be subject to these burdens. For these reasons, the Commission concludes that its decision that menu-driven calling cards offer telecommunications services and that their providers are subject to regulation as telecommunications carriers shall have prospective effect only.

24. To give prepaid calling card providers sufficient time to implement this new regulatory regime, this Order will take effect on October 31, 2006. The certification requirements set forth above are effective according to the timeframe outlined above.

25. Pursuant to § 64.5001 of the Commission's rules, all prepaid calling card providers shall file the quarterly reports described above in WC Docket No. 05-68. The first certification reports are due the last day of the first full calendar quarter after the effective date of this item and OMB approval of this requirement. Certification reports may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. Certification reports filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/cgb/ecfs/. Only one copy of an electronic submission must be filed in a single docket. On completing each transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number, in this case, WC Docket No. 05-68. Parties may also submit an electronic report by Internet e-mail. To get filing instructions for e-mail reports, reporters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form.” A sample form and instructions will be sent in reply. Parties are strongly encouraged to file their certification reports electronically using the Commission's ECFS.

26. Parties who choose to file by paper must file an original and four copies of each filing. Paper 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). 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, and any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554.

27. All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. Parties should also send one copy of their filings to the Chief, Pricing Policy Division, Wireline Competition Bureau, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. In addition, parties should send one copy to the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554 (202) 488-5300, or via e-mail to fcc@bcpiweb.com.

28. Documents in WC Docket No. 05-68 are available for public inspection and copying during business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The documents may also be purchased from BCPI, telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562, e-mail fcc@bcpiweb.com. Accessible formats (computer diskettes, large print, audio recording and Braille) are available to persons with disabilities by contacting the Consumer & Governmental Affairs Bureau, at (202) 418-0531, TTY (202) 418-7365, or at fcc504@fcc.gov.

29. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), 5 U.S.C. 603, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Order and Notice of Proposed Rulemaking, 70 FR 12828, March 16, 2005. The Commission sought written public comment on the proposals in the Order and Notice of Proposed Rulemaking, including comment on the IRFA. We received no comments specifically directed to the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

30. On May 15, 2003, AT&T filed a petition for declaratory ruling that intrastate access charges did not apply to calls made using its “enhanced” prepaid calling cards when the calling card platform is located outside the state in which either the calling or the called party is located. On November 22, 2004, AT&T submitted an ex parte letter requesting a declaratory ruling on two additional types of “enhanced” prepaid calling card offerings: One card that offers the caller a menu of options to access non-call-related information, and a second card that utilizes Internet Protocol (IP) technology, accessed by 8YY dialing, to transport a portion of the calling card call.

31. On February 16, 2005, the Commission released a Report and Order and Notice of Proposed Rulemaking denying AT&T's petition and requiring it to contribute to the Federal Universal Service Fund based on its interstate prepaid calling card revenue. The NPRM portion of that item sought comment on the appropriate regulatory treatment of AT&T's additional prepaid calling card types and any other current or planned prepaid calling card offerings. On May 3, 2005, AT&T filed an Emergency Petition for Interim Relief asking the Commission to impose Federal universal service funding obligations on all prepaid calling card providers regardless of whether the cards offer telecommunications or information services. AT&T's Emergency Petition also requested that the Commission issue interim rules subjecting all prepaid calling card providers to the same types of access charges.

32. In this Order, we find that providers of the types of cards upon which the Commission sought comment in the NPRM offer telecommunications services. Consequently, providers of these types of prepaid calling cards will be treated as telecommunications carriers and therefore must pay access charges, contribute to the Universal Service Fund, and comply with all the other applicable obligations under the Communications Act and the Commission's rules. Prepaid calling card providers that use SS7 must pass the CPN of the calling party (the cardholder), and the CN where appropriate, and not pass the telephone number associated with the calling card platform in the CPN or CN parameter of the SS7 stream.

33. We also adopt interim rules requiring that prepaid calling card providers report prepaid calling card PIU factors, and call volumes from which these factors were calculated, based on not less than a one-day representative sample, to those carriers from which they purchase transport services. We also require that prepaid calling card providers certify to the Commission that they are providing PIU and CPN information to other carriers as required above and that they report their total intrastate, interstate, and international calling card minutes and revenues.

34. The requirements imposed on prepaid calling card providers in this Order are necessary to preserve and advance the Universal Service Fund, provide regulatory certainty and prevent “gaming” of the system. The Commission believes the public interest will best be served by eliminating any uncertainty and promoting stability in the prepaid calling card market through the adoption of this Order.

35. In the Calling Card Order and NPRM, the Commission noted that military personnel rely heavily on prepaid calling cards and asked what steps, if any, it should take to ensure that such cards remain reasonably priced. In this Order we decide that the public interest will be served by exempting revenue from prepaid calling cards sold by, to, or pursuant to contract with DoD or a DoD entity from the above-described universal service contribution obligations. As such, on an interim basis, prepaid calling card providers are not required to pay USF contributions on revenue generated from prepaid calling cards sold by, to, or pursuant to contract with DoD or a DoD entity.

36. No comments were received regarding the IRFA.

37. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules. 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, 5 U.S.C. 601(3). 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 SBA.

38. The most reliable source of information regarding the total numbers of certain common carrier and related providers nationwide, as well as the number of commercial wireless entities, appears to be the data that the Commission publishes in its Trends in Telephone Service report. The SBA has developed small business size standards for wireline and wireless small businesses within the three commercial census categories of Wired Telecommunications Carriers, Paging, and Cellular and Other Wireless Telecommunications. Under these categories, a business is small if it has 1,500 or fewer employees. Below, using the above size standards and others, we discuss the total estimated numbers of small businesses that might be affected by our actions.

39. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees) and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

40. Wired Telecommunications Carriers. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. According to Census Bureau data for 1997, there were a total of 2,225 firms in this category that operated for the entire year. Of this total, 2,201 firms had employment of 999 or fewer employees, and an additional 24 firms had employment of 1,000 employees or more. Thus, under this size standard, the majority of firms can be considered small.

41. Local Exchange Carriers. Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,303 carriers reported that they were incumbent local exchange service providers. In addition, according to Commission data, 769 companies reported that they were engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 769 companies, an estimated 676 have 1,500 or fewer employees and 93 have more than 1,500 employees. In addition, 39 carriers reported that they were “Other Local Service Providers.” Of the 39 “Other Local Service Providers,” an estimated 38 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of local exchange service, competitive local exchange service, competitive access providers, and “Other Local Service Providers” are small entities that may be affected by the rules and policies proposed herein.

42. Telecommunications Resellers. The SBA has developed a size standard for a small business within the category of Telecommunications Resellers. Under that SBA size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 89 companies reported that they were engaged in the provision of prepaid calling cards. Of these 89 companies, an estimated 88 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that the great majority of prepaid calling card providers are small entities that may be affected by the rules and policies proposed herein.

43. In this Order, we hold that providers of the types of cards upon which the Commission sought comment in the NPRM offer telecommunications services. As a result of this finding, these prepaid calling card providers are now treated as telecommunications carriers and therefore are subject to the Communications Act and the Commission's rules, including all applicable reporting and recordkeeping requirements. For example, they now must submit to USAC the reports required in connection with contributions to the Federal USF.

44. In this Order, we also adopt new interim rules applicable to all prepaid calling card providers. Prepaid calling card providers must report prepaid calling card PIU factors, and call volumes on which these factors were calculated, based on not less than a one-day representative sample, to those carriers from whom they purchase transport services. They also must certify to the Commission that they are complying with this PIU reporting requirement. This certification also must include information on total intrastate, interstate, and international calling card minutes and revenue, and a statement that they are contributing to the Federal USF based on all interstate and international revenues, except for revenue from the sale of prepaid calling cards by, to, or pursuant to contract with DoD or a DoD entity.

45. 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. 5 U.S.C. 603(c)(1) through (c)(4).

46. In this Order, the Commission finds that certain types of prepaid calling card providers are telecommunications carriers and therefore subject to applicable requirements of the Communications Act and the Commission's rules, including the obligation to pay access charges and contribute to the Universal Service Fund. We apply these existing rules for the purpose of preserving and advancing universal service and providing regulatory certainty. A strong, well-funded USF is one of the Commission's regulatory mandates and is in the public interest. The clear application of regulations to the prepaid calling card industry also will promote regulatory certainty, foster innovation and competition, and avoid market disruption during the pendency of this and other rulemaking proceedings. We rejected AT&T's suggestion to address a more limited set of issues on the ground that such an approach would not provide the necessary certainty and stability. After reviewing the record, we conclude that the best way to meet our goals of preserving and advancing universal service and providing certainty to the prepaid calling card market is to subject all prepaid calling card providers to the same requirements.

47. In this Order, we also adopt interim rules requiring all prepaid calling card providers to meet certain reporting requirements. Specifically, they must report prepaid calling card PIU factors, and call volumes from which these factors were calculated, based on not less than a one-day representative sample, to those carriers from which they purchase transport services. The interim rules also require that prepaid calling card providers make quarterly certifications to the Commission. Specifically, they must certify that they have complied with the reporting requirements discussed above. In addition, they must provide information on total intrastate, interstate, and international calling card minutes and revenues, and include a statement that they are contributing to the federal USF based on the reported information. AT&T proposed that prepaid calling card providers comply with a much more extensive set of reporting and certification requirements. We rejected these additional reporting and certification requirements because they would prove too burdensome to small prepaid calling card providers.

48. As described above, the Commission has considered a variety of alternative approaches for regulating prepaid calling card providers. In weighing these alternatives we tried to balance our desire not to unduly burden small entities (small prepaid card providers, as well as small LECs and small IXCs) with our goals of ensuring regulatory certainty, preserving and advancing universal service, and avoiding market disruption during the pendency of other rulemakings. The Order we adopt achieves this balance by applying the same rules to all prepaid calling card providers, while at the same time rejecting proposals that would place excessive burdens on small companies.

49. The Commission will send a copy of the Order , including this FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Order and FRFA (or summaries thereof) will also be published in the Federal Register , 5 U.S.C. 604(b).

50. This document contains new 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. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding.

51. Accordingly, it is ordered that, pursuant to the authority contained in sections 1, 2, 4(i), 201, 202 and 254 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 201, 202, and 254, this Declaratory Ruling and Report and Order in WC Docket No. 05-68 is adopted, and that parts 54 and 64 of the Commission's rules, 47 CFR parts 54 and 64, are amended as set forth in the rule changes.

52. It is further ordered that AT&T's Emergency Petition for Immediate Interim Relief is granted in part and denied in part as set forth herein.

53. It is further ordered that the final rules and rule revisions adopted in this Declaratory Ruling and Report and Order shall become effective October 31, 2006.

54. It is further ordered that all prepaid calling card providers shall file an initial certification as required herein no later than the last day of the first full calendar quarter after OMB approval of this requirement.

55. It is further ordered that the Frontier Petition for Declaratory Ruling is granted as set forth herein and otherwise is denied.

56. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Declaratory Ruling and Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.