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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on August 9, 2006 (71 FR 45471). That NPRM proposed to require that you inspect and replace the pressure lines. The MCAI states that ripped pressure lines between Airbox-Carburetor-Differential fuel pressure sensor were found during a requested maintenance event after engine trouble in the range between maximum continuous power and take off power. The cracks can be a result of non-complete temperature resistance.

We gave the public the opportunity to participate in developing this AD. We have considered the comments received.

Jack Buster with the Modification and Replacement Parts Association provides comments on the MCAI AD process pertaining to how the FAA addresses publishing manufacturer service information as part of a proposed AD action. The commenter states that the proposed rule attempt to require compliance with a public law by reference to a private writing (as referenced in paragraph (e) of the proposed AD). The commenter would like the FAA to incorporate by reference (IBR) the Stemme service bulletin.

We agree with Mr. Buster. However, we do not IBR any document in a proposed AD action; instead we IBR the document in the final rule. Since we are issuing the proposal as a final rule AD action, Stemme F&D Design Org. Service Bulletin A31-10-073, Am. Index 01.a, dated June 22, 2005, is incorporated by reference.

Mr. Buster requests IBR documents be made available to the public by publication in the Federal Register or in the Docket Management System (DMS).

We are currently reviewing issues surrounding the posting of service bulletins in the Department of Transportation's DMS as part of the AD docket. Once we have thoroughly examined all aspects of this issue and have made a final determination, we will consider whether our current practice needs to be revised.

We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD as proposed.

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

We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the AD. These requirements, if any, take precedence over the actions copied from the MCAI.

We estimate that this AD will affect 43 products of U.S. registry. We also estimate that it will take about 4 work-hours per product to comply with this AD. The average labor rate is $80 per work-hour. Required parts will cost about $10 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $14,190 or $330 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

You may examine the AD docket on the Internet at http://dms.dot.gov ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

On October 26, 2006, the FAA issued AD 2006-23-09, Amendment 39-14798 (71 FR 65719, November 9, 2006), which applies to Air Tractor, Inc. Model AT-602 airplanes. AD 2006-23-09 requires you to repetitively inspect (using the eddy current method) the wing center splice joint two outboard fastener holes on both of the wing main spar lower caps for fatigue cracking; repair or replace any wing main spar lower cap where fatigue cracking is found; and report any fatigue cracking found.

The AD number in the AD is incorrectly referenced as “2006-23-01” instead of “2006-23-09” in two places.

This correction is needed to assure that the airplane records and documentation shows that the applicable AD is complied with.

Accordingly, the publication of November 9, 2006 (71 FR 65719), of Amendment 39-14798; AD 2006-23-09, which was the subject of FR Doc. 06-18688, is corrected as follows:

On page 65719, in the first column and sixth line of the document, replace “2006-23-01” with “2006-23-09.”

On page 65721, in the first column and fourth line, replace “2006-23-01” with “2006-23-09.”

Action is taken herein to correct this reference in AD 2006-23-09 and to add this AD correction to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13).

The effective date remains December 14, 2006.

The FAA proposed to amend 14 CFR part 39 with a proposed AD. The proposed AD applies to certain Hartzell Propeller Inc. HC, BHC, and PHC series propellers; and McCauley Propeller Systems controllable propellers serviced by Oxford Aviation Services Limited, doing business as CSE Aviation, in the United Kingdom between September 1998 and October 2003. We published the proposed AD in the Federal Register on June 15, 2005 (70 FR 34714). That action proposed to require inspecting the propeller blades and other critical propeller parts for wear and mechanical damage.

You may examine the docket that contains the AD, any comments received, and any final disposition in person at the Docket Management Facility Docket Offices between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES. Comments will be available in the AD docket shortly after the DMS receives them.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments received.

CSE Aviation requests that we clarify the statement “This (proposed) AD results from findings that CSE Aviation failed to perform specific inspections and repairs”, to read “This (proposed) AD results from findings that CSE Aviation failed to perform some specific inspections and repairs”. The commenter states that adding this word more clearly defines the conditions existing in the field. We agree and added the word “some” in this sentence of the AD.

CSE Aviation requests that we clarify the Discussion paragraph in the proposed AD to state the following: “The investigators believe the discrepancies date from about 1998 until November 2003 when CSE Aviation stopped updating their internal procedures to reflect the latest version of the manufacturers' maintenance manuals. The audit also showed that CSE Aviation did not perform some specific inspections required by the maintenance manual. CSE Aviation conducted an internal investigation and confirmed that they did not perform some inspections and rework procedures such as:” We disagree the discussion paragraph needs change. We find it adequate as drafted. We did not change the AD.

CSE Aviation requests that we clarify the Costs of Compliance paragraph by specifying that about 49 affected Hartzell propellers and about 24 affected McCauley propellers are installed on U.S.-registered airplanes. We agree. We changed the Costs of Compliance paragraph in the AD to reflect that about 49 affected Hartzell propellers and 24 affected McCauley propellers are installed on U.S.-registered airplanes.

CSE Aviation also suggests that our estimate for part cost replacement of $2,350 per propeller, is too high. They suggest a part cost per propeller of $200 per propeller, and suggest that our estimate might lead to other repair facilities replacing parts that are airworthy. They also suggest that the actual total cost for U.S.-registered installations is about $62,050, with a total worldwide cost of about $437,750. We do not agree. The cost numbers provided by CSE Aviation do not include a proper range for defective parts, or include improper repairs that might be found during the inspections. We did not change the AD.

CSE Aviation requests that we clarify the unsafe condition statement to state that we are issuing this AD to detect potentially unsafe conditions that could result in a propeller blade separating from the hub and loss of control of the airplane. We agree and added the word “potentially” in this sentence of the AD.

CSE Aviation requests that we change the words “ FAA-approved” with “appropriately approved” in compliance paragraph (f), since the affected propeller population is worldwide. We do not agree. Our authority to mandate airworthiness actions is limited to FAA-approved repair facilities and operators, and not foreign country-approved facilities and operators.

We have carefully reviewed the available data, including the comment[s] received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

We estimate that about 49 Hartzell Propeller Inc. HC series propellers and about 24 McCauley Propeller Systems controllable propellers of the affected design installed on airplanes of U.S. registry will be affected by this AD. We also estimate that it will take about 10 work hours per propeller to perform the proposed actions, and that the average labor rate is $65 per work hour. Required parts will cost about $2,350 per propeller. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $1,545,000.

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

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

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

For the reasons discussed above, I certify that this AD:

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES .

This amendment to Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), establishes, amends, suspends, or revokes SIAPs and/or Weather Takeoff Minimums. The complete regulatory description of each SIAP and/or Weather Takeoff Minimums is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, 8260-5 and 8260-15A. Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs and/or Weather Takeoff Minimums, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs and/or Weather Takeoff Minimums but refer to their depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP and/or Weather Takeoff Minimums contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR sections, with the types and effective dates of the SIAPs and/or Weather Takeoff Minimums. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and/or Weather Takeoff Minimums as contained in the transmittal. Some SIAP and/or Weather Takeoff Minimums amendments may have been previously issued by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP, and/or Weather Takeoff Minimums amendments may require making them effective in less than 30 days. For the remaining SIAPs and/or Weather Takeoff Minimums, an effective date at least 30 days after publication is provided.

Further, the SIAPs and/or Weather Takeoff Minimums contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and/or Weather Takeoff Minimums, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and/or Weather Takeoff Minimums and safety in air commerce, I find that notice and public procedure before adopting these SIAPs and/or Weather Takeoff Minimums are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs and/or Weather Takeoff Minimums effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Bertek Pharmaceuticals, Inc., 12720 Dairy Ashford, Sugar Land, TX 77478, has informed FDA that it has changed its name to Mylan Bertek Pharmaceuticals, Inc. Accordingly, the agency is amending the regulations in 21 CFR 510.600 to reflect the change.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Regulated Entities. The regulated categories and entities affected by the NESHAP include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that we are now aware could potentially be regulated by this action.

A comprehensive list of NAICS codes cannot be compiled for businesses or facilities potentially regulated by the rule due to the nature of activities regulated by the source category. The industrial code alone for a given facility does not determine whether the facility is or is not potentially subject to this final rule. This final rule may be applicable to any type of business or facility at which a site remediation is conducted to clean up media contaminated with organic hazardous air pollutant (HAP) and other hazardous material. Thus, for many businesses and facilities subject to the rule, the regulated sources ( i.e. , the site remediation activities) are not the predominant activity, process, operation, or service conducted at the facility. In these cases, the industrial code indicates a primary product produced or service provided at the facility rather than the presence of a site remediation at the facility. For example, NAICS code classifications where site remediation activities are currently being performed at some but not all facilities include, but are not limited to, petroleum refineries (NAICS code 32411), industrial organic chemical manufacturing (NAICS code 3251xx), and plastic materials and synthetics manufacturing (NAICS code 3252xx).

However, we are also aware of site remediation activities potentially subject to the rule being performed at facilities listed under NAICS codes for refuse systems, waste management, business services, miscellaneous services, and nonclassifiable.

To determine whether your facility is regulated by the action, you should carefully examine the applicability criteria in the 40 CFR part 63, subpart GGGGG-National Emissions Standards for Hazardous Air Pollutants: Site Remediation. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Worldwide Web (WWW). In addition to being available in the docket, an electronic copy of this final action will also be available on the Worldwide Web through the Technology Transfer Network (TTN). Following signature, a copy of this final rule will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address: http://www.epa.gov/ttn/oarpg/. The TTN provides information and technology exchange in various areas of air pollution control.

Judicial Review. Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of the final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by January 29, 2007. Under section 307(d)(7)(B) of the CAA, only an objection to the final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements established by the final rule may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements.

Organization of This Document. The information presented in this preamble is organized as follows:

On October 8, 2003 (68 FR 58172), we issued a NESHAP for site remediation activities (40 CFR part 63, subpart GGGGG). This NESHAP implements section 112(d) of the CAA by requiring owners and operators of facilities that are major sources of HAP emissions and where a site remediation is conducted, that meets the definitions and conditions specified in this rule, to comply with emission standards and work practices for control of HAP reflecting application of the maximum achievable control technology.

After promulgation of subpart 40 CFR part 63, GGGGG, we received questions about our intent and interpretation of specific provisions in the rule. To clarify these issues, we decided that technical amendments to the rule are appropriate. We proposed on May 1, 2006, (71 FR 25531) amendments to subpart GGGGG to clarify certain provisions of the rule and to correct unintentional technical omissions and terminology, typographical, printing, and grammatical errors that we have identified since promulgation of the original rule. A 60-day period, which ended on June 30, 2006, was provided to accept public comments on the proposed amendments to subpart GGGGG. We received comments on the proposed amendments from 12 commenters.

A petition for reconsideration for 40 CFR part, subpart GGGGG was filed by the Sierra Club on December 8, 2003. The amendments to subpart GGGGG promulgated by this action do not address any issues cited in the Sierra Club's petition. We are still reviewing the items for reconsideration and will address them in a future notice.

We are amending 40 CFR part 63, subpart GGGGG to clarify our intent for applying and implementing specific rule requirements and to correct unintentional technical omissions and editorial errors. This action promulgates our proposed regulatory language for the amendments to subpart GGGGG except for those provisions, as noted below, for which modifications were made to the regulatory language for the final amendments in response to specific public comments. Our original projections for the subpart GGGGG compliance costs, environmental benefits, burden on industry, or the number of affected facilities are not changed by these final amendments.

This final rule promulgated by this action reflects our full consideration of all the comments we received on the amendment proposal. Our responses to all of the substantive public comments on the proposal are presented in a comment summary and response document available in Docket ID No. EPA-HQ-OAR-2002-0021 and at http://www.epa.gov/ttn/atw/siterm/sitermpg.html.

The major source determination requirements used for determining the applicability of 40 CFR part 63, subpart GGGGG are amended for certain facilities involved with oil and natural gas production to be consistent with special directives for these facilities in CAA section 112(n)(4)(A). As discussed in the preamble for the proposed amendments (71 FR 25536), in the Oil and Natural Gas Production NESHAP (40 CFR part 63, subpart HH) we address the provisions of CAA section 112(n)(4)(A) by limiting the emission points that are aggregated for the major source status determination of a production field facility to only the glycol dehydration units and storage vessels with flash emission potential, as defined in the rule (see 40 CFR 63.761). Consistent with our approach used for subpart HH, we are amending subpart GGGGG to specify that for a major source status determination of a production field facility, only the HAP emissions from the glycol dehydration units and storage vessels with the potential for flash emissions, as defined in subpart HH, are to be aggregated with the HAP emissions from the site remediation activities at the facility.

Several commenters on the proposed amendments stated that in compliance with the CAA section 112(n)(4) statutory directives, EPA should provide a similar applicability provision in 40 CFR part 63, subpart GGGGG for natural gas transmission and storage facilities consistent with the major source definition in the Natural Gas Transmission and Storage Facilities NESHAP (40 CFR part 63, subpart HHH). We agree that such a provision is appropriate, and are amending subpart GGGGG to specify that for natural gas transmission and storage facilities, HAP emissions are to be aggregated according to the definition of major source in § 63.1271 for a major source determination.

The final amendments clarify the 40 CFR part 63, subpart GGGGG language with respect to how the 1 Mg applicability exemption is to be applied at a facility. Under this applicability exemption, site remediation activities conducted at your facility are not subject to the requirements of subpart GGGGG (except for certain recordkeeping requirements) if you determine that the total quantity of the HAP that is contained in the remediation material excavated, extracted, pumped, or otherwise removed during all of the site remediations conducted at your facility is less than 1 Mg annually. This final rule language for the exemption provisions does not change how the 1 Mg limit is applied nor change the documentation requirements for the exemption, but adds clarifying language stating that the 1 Mg limit applies on a facility-wide, annual basis and that there is no restriction to the number of site remediations that can be conducted under the exemption. Also, in response to public comments on the proposed regulatory language, the term “annual” was substituted for “calendar year”, and language was added to the final rule stating that a Title V permit does not have to be reopened or revised solely to include the recordkeeping requirement required for the 1 Mg exemption. However, the recordkeeping requirement must be included in the facility's Title V permit the next time the permit is renewed, reopened, or revised for another reason.

Subpart GGGGG of 40 CFR part 63 is amended to clarify the rule language with respect to our intent for application of the 30-day site remediation exemption, including those situations when the remediation material is transferred off-site. Under this exemption, site remediations at your facility with affected sources subject to regulation under subpart GGGGG that can be completed within 30 days are exempted from having to meet the air emission control requirements specified in this final rule. The final rule language explicitly defines the beginning and end of the 30-day period for the purpose of qualifying for the exemption.

The first day of the 30-day exemption period is defined as the day on which you initiate any action that removes, destroys, degrades, transforms, immobilizes, or otherwise manages the remediation materials. Certain activities that you perform to prepare for the actual cleanup of the contaminated media are not counted as part of the 30-day period. The period of time ( i.e., number days) that you are required to perform the following activities are not counted as part of the 30-day interval that cannot be exceeded in order to qualify for the exemption provided that these activities are completed before the actual site cleanup begins: Activities to characterize the type and extent of the contamination by collecting and analyzing samples; activities to obtain permits from Federal, State, or local authorities to conduct the site remediation; activities to schedule workers and necessary equipment; and activities to arrange for contractor or third party assistance in performing the site remediation.

The last day of the 30-day exemption period is defined as the day on which all of the remediation materials generated by the cleanup have been treated or disposed of in a manner such that the organic HAP in the material no longer have a reasonable potential for volatilizing and being released to the atmosphere ( e.g., placed in a landfill). The exemption does not apply to a site remediation where the only activities completed during the 30-day period are excavating, pumping, or otherwise removing the remediation material from the contaminated area, and then storing this material on-site ( e.g., in waste piles, tanks, or containers) to be treated or disposed at some later date after the end of the 30-day period. In this case, the processes and equipment used for site remediation need to meet the applicable air emission control requirement in 40 CFR part 63, subpart GGGGG (unless the site remediation qualifies for another exemption allowed under the rule).

It was our intent that this exemption be used for those short-term site remediations for which all of the remediation materials generated by the cleanup are treated or disposed within the 30-day period to meet the requirement that the organic HAP constituents in the materials no longer have a reasonable potential for volatilizing and subsequent release to the atmosphere. However, we recognize that in some situations where the remediation materials are shipped off-site for treatment or disposal, unexpected special circumstances beyond the direct control of the facility owner or operator may not allow the final treatment or disposal of the remediation material sent to the off-site location to be completed within the 30-day period required to qualify for the exemption. To address these situations, this final rule includes a provision allowing you to qualify for the exemption provided that all of the remediation material generated by your cleanup is transferred off-site within the 30-day exemption period according to the existing requirements specified in section 63.7936 of subpart GGGGG for remediation material transferred to another party or shipped to another facility. The requirements in section 63.7936 apply to the off-site transfer of remediation materials that have an average total average volatile organic HAP (VOHAP) concentration equal to or greater than 10 parts per million by weight (ppmw), and provide the owner or operator of the affected facility from which the remediation material is transferred with several compliance options. This final rule adds the requirement that you must include in the applicable shipping documentation used to transfer the remediation material off-site, in addition to any notifications and certifications required under section 63.7936, a statement that the shipped material was generated by a site remediation activity subject to the conditions specified for the 30-day exemption. The statement must include the date on which you initiated the site remediation activity generating the shipped remediation materials and the date 30 calendar days following your initiation date.

Subpart GGGGG of 40 CFR part 63 applies the air emission control requirements for remediation material management units ( i.e., tanks, surface impoundments, containers, oil/water separators, organic/water separators and transfer systems) to those units that manage remediation material with an average VOHAP concentration equal to or greater than 500 ppmw. The final rule revises the applicable regulatory language in subpart GGGGG referring to the point at which the facility owner or operator determines the average VOHAP concentration of a remediation material. The final rule implements our original intended VOHAP determination procedure by reinstating the regulatory language and terminology we originally proposed for rule, and removing the term “point-of-extraction” from the rule.

Under the amended 40 CFR part 63, subpart GGGGG, you are required to determine the average total VOHAP concentration of the remediation material at a point prior to or within a remediation material management unit. Thus, once the VOHAP concentration for a remediation material has been determined to be less than 500 ppmw, all remediation material management units downstream from the point of determination that manage this material are no longer required to meet the air emission control requirements in subpart GGGGG unless a remediation process is used that concentrates all, or part of, the remediation material being managed in the unit such that the VOHAP concentration of the material increases to 500 ppmw or more. The amended regulatory language also clarifies that any free product returned to a manufacturing process is no longer subject to the air emission control requirements in subpart GGGGG.

The final rule adds a compliance option to 40 CFR part 63, subpart GGGGG, air emission control requirements for those affected equipment leak sources already using air pollution controls or work practices to comply with another subpart under 40 CFR part 61 or 40 CFR part 63. Under this option, the affected source is in compliance with subpart GGGGG if the HAP emissions from the affected equipment leak source are controlled in compliance with the applicable standards specified in the other subpart in part 61 or 63 that the affected source is subject. This final rule extends the same compliance option that subpart GGGGG already allows for process vents and remediation material management units to equipment leak sources.

If you choose to comply with this option, you must comply with all of the applicable emissions limitations and work practice standards under the other subpart ( e.g. , you implement leak detection and control measures to reduce HAP emissions as specified by the applicable subpart). This provision does not apply to any exemption of the affected source from the emissions limitations and work practice standards allowed by the other applicable subpart.

For purposes of implementing the requirements of subpart GGGGG, Table 1 in the rule lists the specific organic chemical compounds, isomers, and mixtures that are HAP. The final rule updates this table to be consistent with EPA's current HAP list. The final rule removes from Table 1 the listings for 1,1-dimethyl hydrazine and methyl ethyl ketone. Both of these organic chemical compounds have been delisted as HAP.

Provisions in 40 CFR part 63, subpart GGGGG related to startup, shutdown, and malfunction plan requirements have been revised, as appropriate, to be consistent with the amendments to the General Provisions under subpart A to 40 CFR part 63 that we promulgated on April 20, 2006 (71 FR 20446).

The final rule includes changes to the cross-reference citations in §§ 63.7938(b)(2), 63.7938(d)(2), 63.7938(d)(3), 63.7941(h), 63.7950(c), 63.7884(b)(2), and Table 3 of the rule to cite the correct provision in 40 CFR part 63, subpart GGGGG that we had intended to be referenced. Also, the final amendments correct terminology, typographical, and grammatical errors in specific provisions of subpart GGGGG that have been identified since the rule was originally promulgated. The final rule replaces the rule language with the correct cross-reference citation, term, or wording, but do not change any of the technical or administrative requirements of the rule.

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order.

This action does not impose any new information collection burden. The final rule results in no changes to the information collection requirements of the existing rule. OMB has previously approved the information collection requirements contained in 40 CFR part 63, subpart GGGGG, under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , and has assigned OMB control number 2060-0534, EPA ICR number 2062.02. A copy of the OMB approved Information Collection Request (ICR) may be obtained from Susan Auby; Collection Strategies Division; U.S. EPA (2822T); 1200 Pennsylvania Ave., NW.; Washington, DC 20460 or by calling (202) 566-1672.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR part 63 are listed in 40 CFR part 9.

The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For the purposes of assessing the impacts of the final rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of the final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The small entities that may be directly regulated by the rule include small businesses and small governmental jurisdictions. We have determined that there is little or no impact on any affected small entities because the final rule amends existing regulations to clarify specific provisions and to correct technical omissions and editorial errors.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that the final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or to the private sector in any 1 year. Thus, the final rule is not subject to the requirements of sections 202 and 205 of the UMRA. In addition, EPA has determined that the final rule contains no regulatory requirements that might significantly or uniquely affect small governments, because they contain no requirements that apply to such governments or impose obligations upon them.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) 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” are 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.”

The final rule does not have federalism implications. The final rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The final rule does not add any new requirements to the current rule, they only clarify our intent and correct errors. Thus, Executive Order 13132 does not apply to the final amendments.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), 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.” The final rule does not have tribal implications, as specified in Executive Order 13175. This action does 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. Thus, Executive Order 13175 does not apply to the final rule.

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant,” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by EPA.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. The final rule is not subject to the Executive Order because they are based on control technology and not on health or safety risks.

This action is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy because it only clarifies our intent and corrects errors in the existing rule. Further, we have concluded that the final rule is not likely to have any adverse energy effects.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. The VCS are technical standards ( e.g. , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by one or more VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency does not use available and applicable VCS.

This action does not involve any new technical standards or the incorporation by reference of existing technical standards. Therefore, the consideration of VCS is not relevant to this action.

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 the final amendments 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 final amendments in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). These final amendments are effective on November 29, 2006.

This action applies only to the 14 areas that entered into Early Action compacts and for which the effective date of the nonattainment designation was deferred. A list of these areas is included in Table 1.

The information presented in this preamble is organized as follows:

The purpose of this document is to finalize the extension of the deferred effective date of the 8-hour ozone nonattainment designations for 14 participants in Early Action Compacts. The new effective designation date for 13 areas is April 15, 2008. The effective date of designation for the Denver EAC area is extended until July 1, 2007.

This section discusses EPA's actions to date with respect to deferring the effective date of nonattainment designations for certain areas of the country that are participating in the Early Action Compact program. The EPA's April 30, 2004 air quality designation rule (69 FR 23858) provides a description of the compact approach, the requirements for areas participating in the program and the impacts of the program on those areas.

On December 31, 2002, we entered into compacts with 33 communities. To receive the first deferral, these Early Action Compact areas agreed to reduce ground-level ozone pollution earlier than the CAA would require. On December 16, 2003 (68 FR 70108), we published a proposed rule to defer until September 30, 2005, the effective date of designation for Early Action Compact areas that did not meet the 8-hour ozone NAAQS. Fourteen of the 33 compact areas did not meet the 8-hour ozone NAAQS.

The final designation rule published April 30, 2004 (69 FR 23858), as amended June 18, 2004 (69 FR 34080), included the following actions for compact areas: Deferred the effective date of nonattainment designation for 14 compact areas until September 30, 2005; detailed the progress compact areas had made toward completing their milestones; described the actions required for compact areas in order to remain eligible for a deferred effective date for a nonattainment designation; detailed EPA's schedule for taking further action to determine whether to further defer the effective date of nonattainment designations; and described the consequences for compact areas that do not meet a milestone. In the April 2004, action, we also discussed three compact areas which did not meet the March 31, 2004, milestone; Knoxville, Memphis, and Chattanooga, Tennessee. Knoxville and Memphis were designated nonattainment effective June 15, 2004. Chattanooga was later determined to have met the March 31, 2004, milestone, and we deferred the designation date until September 30, 2005, (69 FR 34080). This brought the number of participating compact areas to 31. Since then 2 additional areas, Haywood and Putnam Counties, Tennessee have withdrawn from the program leaving the participating number of compact areas at 29.

On August 29, 2005, we published a final rule extending the deferred effective date of designation from September 30, 2005, to December 31, 2006, for the same 14 compact areas. In order to receive the second deferral, Early Action Compact areas needed to submit a State Implementation Plan with locally adopted measures by December 31, 2004. The EPA approved the SIP revisions as meeting the EAC Protocol and EPA's EAC regulations at 40 CFR 81.300, and these approvals were the basis for extending the deferred effective date until December 31, 2006. Information on local measures, SIP submittals and background on the Early Action Compact program may be found on EPA's Web site at http://www.epa.gov/ttn/naaqs/ozone/eac/ .

In general, the remaining 29 compact areas have made satisfactory progress toward timely completion of their milestones. All compact areas were required to submit two progress reports, one by December 30, 2005, and the other by June 30, 2006. In these progress reports, the States provided information on progress towards implementing local control measures that were incorporated in their SIPs. Each of the EAC areas submitted the required progress reports and these reports are available at http://www.epa.gov/ttn/naaqs/ozone/eac/ .

After review by EPA, all the EAC areas were found to be in compliance with the requirements of the EAC Protocol and the individual State Implementation Plans, however, issues were noted by the State of Colorado with the Denver area regarding emissions from oil and gas exploration and production condensate tanks. Based on a report and action plan submitted by the State of Colorado to EPA, dated June 2, 2006, the State provided information that indicated volatile organic compound (VOC) emissions from oil and gas operations within the Denver EAC area were higher than had been estimated in the attainment demonstration modeling. Subsequent to this June 2, 2006 report, the State of Colorado has embarked on rulemaking activities to amend Colorado's Regulation No. 7 (the State's regulation for the control of VOCs) to require additional emission reductions from oil and gas exploration and production condensate tanks to achieve the level of reductions the State relied on in the EPA-approved modeled attainment demonstration. Further discussion on this issue is provided below in section D (response to comments).

We are extending the deferred effective date of the nonattainment designation for 14 compact areas. In consideration of the progress reported by the EAC areas, we have concluded that 13 of the 14 areas are eligible for a final deferral of their nonattainment designation for the 8-hour ozone NAAQS to April 15, 2008. See 40 CFR 81.300(e)(4)(ii). Therefore, we are further extending until April 15, 2008 the effective date of the 8-hour ozone nonattainment designation for the compact area counties listed in Table 1 below, with the exception of the Denver EAC area, which is extended only to July 1, 2007. We are revising 40 CFR part 81 to reflect these extensions.

The EAC areas have one remaining milestone which is to demonstrate attainment with the 8-hour ozone NAAQS by December 31, 2007. No later than April 15, 2008, we will determine whether the compact areas that received a deferred effective date of April 15, 2008, have attained the 8-hour ozone NAAQS by December 31, 2007, and have met all compact milestones. If the area has not attained the standard, the nonattainment designation will take effect. If the compact area has attained the standard, EPA will designate the area as attainment. Any compact area that has not attained the NAAQS and thus has an effective nonattainment designation will be subject to the full planning requirements of title I, part D of the CAA, and the area will be required to submit a revised attainment demonstration SIP within 1 year of the effective date of designation. As provided above, the State of Colorado is undertaking rulemaking to address shortfalls in VOC emission reductions for the Denver EAC. These rulemaking activities are designed to achieve greater VOC emission reductions from the oil and gas industry and we also note, the rule revisions contain a compliance date of May 1, 2007, which is just before the beginning of the Colorado high ozone season. Once the State's rulemaking actions are complete, the rule revisions will be submitted to EPA for our approval.

We received six comments on the proposed rule to extend the deferred effective date of the nonattainment designations for 14 Early Action Compact areas to April 15, 2008. We have responded to the comments in this section.

Comment: Two commenters expressed support for the compact process, the goal of clean air sooner, the incentives and flexibility the program provides for encouraging early reductions of ozone-forming pollution, and the deferred effective date of nonattainment designation. However, a number of commenters opposed the Early Action Compact program. Several of these commenters expressed concern about various legal aspects of the program, primarily the deferral of the effective date of the nonattainment designation for these areas. Although some of these commenters were supportive of the goal of proactively addressing the public health concerns associated with ozone pollution, the commenters state that the program is not authorized by the CAA. All of these commenters indicated that EPA lacks authority under the CAA to defer the effective date of a nonattainment designation. In addition, these commenters state that EPA lacks authority to enter into Early Action Compacts with areas and lacks authority to allow areas to be relieved of obligations under title I, part D of the CAA while these areas are violating the 8-hour ozone standard or are designated nonattainment for that standard.

Response: We have determined that the compact program, as designed, gives local areas the flexibility to develop their own approach to meeting the 8-hour ozone standard. The participating communities are serious in their commitment and have made good progress implementing State and local measures for controlling emissions from local sources earlier than the CAA would otherwise require. By involving diverse stakeholders, including representatives from industry, local and State governments, and local environmental and citizens groups, a number of these communities are, for the first time, cooperating on a regional basis to solve environmental problems that affect the health and welfare of their citizens. People living in these areas realize reductions in pollution levels sooner and will enjoy the health benefits of cleaner air sooner than might otherwise occur. With respect to the commenter who attached comments that were submitted on EPA's initial proposal to defer the effective date of a nonattainment designation of EAC areas meeting compact milestones, we refer back to our response to those comments in the April 2004 designation rule (69 FR 23858).

Comment: Three commenters expressed specific concerns about deferring the effective date of the nonattainment designation for the Denver metropolitan EAC area. The commenters noted that the Denver EAC area does not comply with its commitments to address ozone-forming pollution from the oil and gas sector. Two of these commenters stated that emissions from these operations are higher than the State originally projected; however, they acknowledged that Colorado is currently taking steps to revise control requirements for these operations to address the problem. Commenters believed that it was inappropriate for EPA to proceed at this time with granting the Denver EAC area a final deferred nonattainment effective date to April 15, 2008, while the necessary revisions to Regulation No. 7, the State of Colorado's regulation for the control of VOCs which are designed to require additional VOC emission reductions from oil and gas condensate tanks would still be under consideration by both the Colorado Air Quality Control Commission (AQCC) and State Legislature. In addition, the commenters noted that air quality monitoring data for the 2006 ozone season indicate that the area may not be complying with the 8-hour ozone standard through 2007.

Response: The commenters were concerned with increased VOC emissions from oil and gas exploration and production condensate tanks. Based on a report and action plan submitted by the State of Colorado to EPA, dated June 2, 2006, the State provided information that indicated VOC emissions from oil and gas operations within the Denver EAC area were higher than had been relied on in the attainment demonstration modeling. With rule revisions being proposed before the Colorado AQCC on August 17, 2006, the State of Colorado has initiated public rulemaking activities to amend Colorado's Regulation No. 7 to require additional emission reductions from oil and gas exploration and production condensate tanks to achieve the level of reductions relied on in the EPA-approved modeled attainment demonstration. However, by State rulemaking procedures, the Regulation No. 7 revisions will not be considered for adoption by the AQCC until November 16 or 17, 2006, and by Colorado State law, the Regulation No. 7 revisions will then have to be considered for adoption by the Colorado State Legislature which will only be in session between January 1, 2007 to the first week of May, 2007. This presents a potential dilemma for EPA, as we currently consider granting the Denver EAC area a final deferred nonattainment effective date to April 15, 2008, in that the necessary revisions to Regulation No. 7, that are designed to require additional VOC emission reductions from oil and gas condensate tanks, would still be under consideration by both the AQCC and State Legislature.

The EPA agrees with the commenters' concern regarding the timing of a final deferral of the Denver EAC's nonattainment effective date and potential conflict with the State's fall 2006 and spring 2007 State Implementation Plan (SIP) rulemaking process time frame. However, we also believe that beginning the rulemaking process to address the shortfall in reductions, the area has demonstrated its commitment to ensuring the terms of the EAC process will be met. Therefore, to accommodate the public rulemaking activities of the Colorado AQCC and Colorado State Legislature and to allow the Denver area to remain in the EAC program, with this final rule EPA is granting the Denver area a deferred effective date of nonattainment only to July 1, 2007. Following the rulemaking actions by the Colorado AQCC and Colorado State Legislature, EPA anticipates that it will undertake further rulemaking action for the Denver EAC to determine whether to extend the deferred nonattainment effective date beyond July 1, 2007. A likely schedule for EPA's subsequent rulemaking action is:

The above schedule would allow both the Colorado AQCC and Colorado State Legislature until late April to complete their respective functions and also allow EPA appropriate time to complete a final deferral of the Denver EAC nonattainment effective date to April 15, 2008, if EPA determines that is the appropriate action to take.

With respect to the commenters' concerns regarding the ambient air quality monitoring data for the Denver EAC area, EPA agrees that several exceedances of the 8-hour ozone National Ambient Air Quality Standard (NAAQS) were observed in 2006. However, even with these exceedances none of the ambient air quality monitors in the 8-hour ozone monitoring network recorded a violation of the 8-hour ozone NAAQS. Further, we note that the ambient air quality monitors for the Denver EAC area have shown attainment of the 8-hour ozone NAAQS for the periods, 2002 through 2004, 2003 through 2005, and 2004 through 2006. Although Denver has not violated the standard for the past three 3-year periods, EPA notes that air quality in the area remains very close to the standard, indicating that the additional emission reductions being considered now by the State are important to ensure that air quality in the area remains below the level of the standard. EPA notes and appreciates commenters' concerns for the potential for a violation of the 8-hour ozone NAAQS during the upcoming ozone season of 2007.

This action finalizes the extension of the deferred effective date of the nonattainment designation for 13 compact areas until April 15, 2008. This action also finalizes the extension of the deferred effective date of the nonattainment designation for the Denver compact area until July 1, 2007.

This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. This final rule does not require the collection of any information.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

The Regulatory Flexibility Act (RFA) generally requires an Agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the Agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this final rule on small entities, small entity is defined as: (1) A small business that is a small industrial entity as defined in the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this final rule on small entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities. Rather, this rule would extend the deferred effective date of the nonattainment designation for areas that implement control measures and achieve emissions reductions earlier than otherwise required by the CAA in order to attain the 8-hour ozone NAAQS.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The EPA has determined that this final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any 1 year. In this final rule, EPA is deferring the effective date of nonattainment designations for certain areas that have entered into compacts with us. Thus, this final rulemaking is not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), 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 does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The CAA establishes the scheme whereby States take the lead in developing plans to meet the NAAQS. This final rule would not modify the relationship of the States and EPA for purposes of developing programs to implement the NAAQS. Thus, Executive Order 13132 does not apply to this proposed rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), 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.” This final rule does not have “Tribal implications” as specified in Executive Order 13175. It does not have a substantial direct effect on one or more Indian Tribes, since no Tribe has implemented a CAA program to attain the 8-hour ozone NAAQS at this time or has participated in a compact.

Executive Order 13045: “Protection of Children From Environmental Health and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This final rule is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

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)) because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS.

This final rule does not involve technical standards. Therefore, EPA is not considering the use of any VCS. The EPA will encourage States that have compact areas to consider the use of such standards, where appropriate, in the development of their SIPs.

Executive Order 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionate high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations.

The EPA believes that this final rule should not raise any environmental justice issues. The health and environmental risks associated with ozone were considered in the establishment of the 8-hour, 0.08 ppm ozone NAAQS. The level is designed to be protective with an adequate margin of safety.

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. The 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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective December 29, 2006.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit by December 29, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review must be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA Section 307(b)(2).

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

• 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.epa.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-2006-0181 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 January 29, 2007.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2006-0181, 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 April 12, 2006 (71 FR 18742) (FRL-7773-6), 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 5E6965, PP 5E6966, and PP 5E6967) by Interregional Project Number 4, 681 Highway 1 South, North Brunswick, NJ 08902-3390. The petitions requested that 40 CFR 180.377 be amended by establishing tolerances for residues of diflubenzuron, (N-[[(4-chlorophenyl)amino]carbonyl]-2,6-difluorobenzamide and metabolites convertible to p-chloroaniline expressed as diflubenzuron in or on the raw agricultural commodities barley grain, oat grain, wheat grain at 0.06 ppm; forage of barley, oat and wheat at 5.0 ppm; hay of barley, oat and wheat at 2.0 ppm; straw of barley, oat and wheat at 2.0 ppm; aspirated grain fractions of barley, oat and wheat at 3.0 ppm; and pummelo at 0.5 ppm (PP 5E6965), brassica, leafy greens subgroup 5B and turnip greens at 8.0 ppm, eggplant and okra at 1.0 ppm (PP 5E6966), and peanut at 0.2 ppm (PP 5E6967). That notice included a summary of the petition prepared by IR-4. There were no comments received in response to the notice of filing.

Tolerances were later amended by IR-4 as follows: Barley, hay at 3.0 ppm; barley, straw at 1.8 ppm; oat forage at 7.0 ppm; oat hay at 6.0 ppm; oat straw at 3.5 ppm; wheat, forage at 7.0 ppm, wheat, hay at 6.0 ppm, wheat, straw at 3.5 ppm; grain, aspirated fractions at 11 ppm (PP 5E6965); brassica, leafy greens, subgroup 5B and turnip greens at 9.0 ppm (PP 5E6966); peanut at 0.10 ppm; peanut, hay at 55 ppm; peanut, refined oil at 0.20 ppm (PP 5E6967).

In addition, the proposed tolerance for barley, forage (PP 5E6965) was deleted by IR-4 because this is not a raw agricultural commodity (RAC) of barley. Also, the proposed tolerances for eggplant and okra (PP 5E6966) were withdrawn by IR-4 because the Agency concluded that there are insufficient data to establish tolerances for diflubenzuron residues in or on these commodities at this time.

EPA is also deleting several established tolerances in § 180.377 (b) that are no longer needed as a result of this action. The tolerance deletions under § 180.377 (b) are time-limited tolerances established under section 18 emergency exemptions that are superceded by the establishment of general tolerances for diflubenzuron and its metabolites under § 180.377 (a)(2).

The revisions to § 180.377 (b) are as follows:

1. Delete the time-limited tolerance for barley, grain at 0.05 ppm. A tolerance for barley, grain at 0.06 ppm is established by this action under § 180.377(a)(2).

2. Delete the time-limited tolerance for barley, hay at 1.0 ppm. A tolerance for barley, hay at 3.0 ppm is established by this action under § 180.377(a)(2).

3. Delete the time-limited tolerance for barley, straw at 0.50 ppm. A tolerance for barley, straw at 1.8 ppm is established by this action under § 180.377 (a)(2).

4. Delete the time-limited tolerance for wheat, grain at 0.05 ppm. A tolerance for wheat, grain at 0.06 ppm is established by this action under § 180.377(a)(2).

5. Delete the time-limited tolerance for wheat, hay at 1.0 ppm. A tolerance for wheat, hay at 6.0 ppm is established by this action under § 180.377(a)(2).

6. Delete the time-limited tolerance for wheat, straw at 0.50 ppm. A tolerance for wheat, straw at 3.5 ppm is established by this action under § 180.377 (a)(2).

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(a)(2) of FFDCA, for tolerances for combined residues of diflubenzuron, (N-[[(4-chlorophenyl)amino]carbonyl]-2,6-difluorobenzamide and its metabolites 4-chlorophenylurea and 4-chloroaniline in or on the raw agricultural commodities barley, grain at 0.06 ppm; barley, hay at 3.0 ppm; barley, straw at 1.8 ppm; oat, grain at 0.06 ppm; oat forage at 7.0 ppm; oat hay at 6.0 ppm; oat straw at 3.5 ppm; wheat, grain at 0.06 ppm; wheat, forage at 7.0 ppm, wheat, hay at 6.0 ppm, wheat, straw at 3.5 ppm; grain, aspirated fractions at 11 ppm; pummelo at 0.50 ppm; brassica, leafy greens, subgroup 5B at 9.0 ppm; turnip greens at 9.0 ppm; peanut at 0.10 ppm; peanut, hay at 55 ppm; peanut, refined oil at 0.20 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 diflubenzuron as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.epa.gov/fedrgstr/EPA-PEST/2002/September/Day-19/p23818.htm (67 FR 59006).

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 diflubenzuron used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of September 19, 2002 (67 FR 59006) (FRL-7200-4).

1. Dietary exposure from food and feed uses . Tolerances for residues of diflubenzuron are established under 40 CFR 180.377. Tolerances listed in 40 CFR 180.377(a)(1) are expressed in terms of diflubenzuron per se. Under this section, tolerances of 0.05-6.0 ppm are established for residues in/on eggs; milk; fat and meat of cattle, goat, hog, horse, poultry, and sheep; poultry meat byproducts; cottonseed; mushroom; grapefruit, orange (sweet); tangerine; soybean hulls; and globe artichoke. Tolerances listed in 40 CFR 180.377(a)(2) are expressed in terms of the combined residues of diflubenzuron and its metabolites 4-chlorophenylurea (CPU) and 4-chloroaniline (PCA). Under this section, tolerances of 0.02-6.0 ppm are established for residues in/on rice grain; tree nuts (group 14); pistachios; fruit, stone (group 12) except cherry; meat byproducts of cattle, goat, hog, horse, and sheep; pear; rice straw; pepper; and almond hulls. Time-limited tolerances listed in 40 CFR 180.377(b) are expressed in terms of the combined residues of diflubenzuron and its metabolites CPU and PCA, expressed as the parent diflubenzuron, in connection with use of the pesticide under Section 18 Emergency Exemptions granted by EPA. Risk assessments were conducted by EPA to assess dietary exposures from diflubenzuron in food as follows:

i. Acute exposure . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. The diflubenzuron toxicology studies indicated no possibility of such an effect for either the general U.S. population (including infants and children) or the females 13-50 years old population subgroup for diflubenzuron; therefore, an acute dietary exposure analysis was not performed.

ii. Chronic exposure . In conducting this chronic dietary risk assessment the Dietary Exposure Evaluation Model (DEEM-FCID TM ) analysis evaluated the individual food consumption 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: For the chronic analysis a Tier 1 chronic dietary-exposure assessment was conducted using the established/recommended tolerances for all food commodities, 100% CT information for all proposed and existing uses, and DEEM( TM ) Version 7.81 default processing factors for some processed commodities.

iii. Cancer . The Agency has classified diflubenzuron as “Group E,” evidence of non-carcinogenicity for humans, based on lack of evidence of carcinogenicity in rats and mice. There are also two metabolites of diflubenzuron; PCA and CPU. PCA tested positive for splenic tumors in male rats and hepatocellular adenomas/carcinomas in male mice in a National Toxicology Program (NTP) study. Therefore, EPA classified PCA as a “Group B2” probable human carcinogen. The Agency determined for those commodities that contained PCA and CPU, the Q1* of PCA should be used to calculate the cancer risk from the sum of these two metabolites.

Based on the submitted metabolism studies, there are two possible sources for dietary exposure to PCA and CPU: residues in mushrooms and residues in milk and liver. Because human exposure to PCA and CPU will not be affected by the proposed new uses, and EPA has previously concluded that exposure to these compounds is safe, therefore, the cancer dietary risk from PCA and CPU will not be addressed in this document. For a detailed discussion on the exposure and risks to PCA and CPU, please refer to the September, 2002 Federal Register document titled Diflubenzuron; Pesticide Tolerances (September 19, 2002, FR 67 59006); http://www.epa.gov/fedrgstr/EPA-PEST/2002/September/Day-19/p23818.htm .

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for diflubenzuron 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 diflubenzuron. 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 Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentrations in Groundwater (SCI-GROW) models, the estimated environmental concentrations (EECs) of diflubenzuron and the major degradate CPU for chronic exposures are estimated to be 2.76 ppb for surface water and 0.208 ppb for ground water.Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model (DEEM-FCID TM , Version 2.03). For chronic dietary risk assessment, the annual average concentration of 2.76 ppb was used to assess the contribution to drinking water.

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

Although there are no registered homeowner uses, there are registered uses for professional applications to outdoor residential and recreational areas to control mosquitoes, moths, and other insects. However, the potential for post-application residential exposure is expected to be limited, due to the low dermal absorption rate (0.5%) of diflubenzuron, and since it is only applied to the tree canopy, minimal bystander contact is expected.

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

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 diflubenzuron and any other substances and diflubenzuron 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 diflubenzuron 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 . Based on the developmental and reproductive toxicity studies, there is no indication of increased susceptibility of rats or rabbits to in utero or postnatal exposure.

3. Conclusion . Based on the reliable data available on diflubenzuron, EPA determined that the additional FQPA 10X safety factor to protect infants and children was not needed. This decision was based on the following:

i. There is a complete toxicity data base for diflubenzuron

ii. There is no indication of increased susceptibility of rats or rabbits to in utero or postnatal exposure;

iii. A developmental neurotoxicity study (DNT) with diflubenzuron is not required;

iv. Food and drinking water exposure assessments will not underestimate the potential exposure for infants and children; and

v. There are currently no registered or proposed residential (non-occupational) uses of diflubenzuron for homeowners. Although there are no registered homeowner uses, there is potential for professional applications to outdoor residential and recreational areas to control mosquitoes, moths, and other insects. However, the potential for post-application residential exposures are expected to be limited. Due to the low dermal absorption rate (0.5%) of diflubenzuron, and since it is only applied to the tree canopy to control gypsy moths and mosquitoes, minimal bystander contact is expected.

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 ground water 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. The risk assessment for diflubenzuron used in this tolerance document uses this approach of incorporating water exposure directly into the dietary exposure analysis.

1. Acute risk . Because there were no toxic effects attributable to a single dose of diflubenzuron, it is not expected to pose an acute risk.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to diflubenzuron from food and water will utilize 11% of the cPAD for the U.S. population, 12% of the cPAD for all infants less than 1 year old, and 37% of the cPAD for children 1-2 years old. There are no residential uses for diflubenzuron that result in chronic residential exposure to diflubenzuron. EPA does not expect the aggregate exposure to exceed 100% of the cPAD.

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

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

Diflubenzuron is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.

5. Aggregate cancer risk for U.S. population . Based on the available evidence, which included adequate carcinogenicity studies in rats and mice, and battery of negative mutagenicity studies, diflubenzuron has been classified as “Group E,” evidence of non-carcinogenicity for humans, by the Agency.

As noted in Unit III.C.1.iii. of this document, the Agency has concluded that human exposure to PCA and CPU (metabolites of diflubenzuron) will not be affected by the proposed new uses. EPA has previously found aggregate exposure to these compounds to be safe. (September 19, 2002, 67 FR 59006); http://www.epa.gov/fedrgstr/EPA-PEST/2002/September/Day-19/p23818.htm

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

There are adequate enforcement methods, published in the Pesticide Analytical Manual (PAM, Vol. II), for determining diflubenzuron residues of concern. In addition, a new analytical methodology for plant commodities was successfully validated by an independent laboratory as well as by Agency chemists at the Analytical Chemistry Branch (ACB)/Biological and Economics Analysis Division (BEAD) in conjunction with the approved rice petition (PP#8F4925). The new methods were forwarded to the Food and Drug Administration (FDA) for publication in PAM Vol. II as Roman Numeral Methods. These methods can separately determine residues of diflubenzuron by gas chromatography/electron-capture detection (GC/ECD), CPU by GC/ECD, and PCA by GC/mass spectrometry (MS). The reported limit of quantitation (LOQ) for diflubenzuron in/on rice grain, straw, and bran is 0.01 ppm, and is 0.05 ppm in/on rice hull. In rice straw, the LOQ for CPU is 0.01 ppm and 0.005 ppm for PCA.

The Codex Alimentarius has established maximum residue limits (MRL), expressed in terms of diflubenzuron per se, for many commodities including: apple (5 ppm), citrus fruits (0.5 ppm), edible offal (mammalian) (0.1 ppm), eggs (0.05 ppm), meat (from mammals other than marine mammals) (0.1 ppm), milks (0.02 ppm), mushrooms (0.3 ppm), pear (5 ppm), pome fruits (5 ppm), poultry meat (0.05 ppm), rice (0.01 ppm), and rice straw and fodder (dry) 0.7 ppm). As the U.S. residue definition includes CPU and PCA, compatibility is not possible with the proposed tolerances.

Therefore, tolerances are established for combined residues of diflubenzuron, (N-[[(4-chlorophenyl)amino]carbonyl]-2,6-difluorobenzamide and its metabolites 4-chlorophenylurea and 4-chloroaniline in or on the raw agricultural commodities barley, grain at 0.06 ppm; barley, hay at 3.0 ppm; barley, straw at 1.8 ppm; oat, grain at 0.06 ppm; oat forage at 7.0 ppm; oat hay at 6.0 ppm; oat straw at 3.5 ppm; wheat, grain at 0.06 ppm; wheat, forage at 7.0 ppm, wheat, hay at 6.0 ppm, wheat, straw at 3.5 ppm; grain, aspirated fractions at 11 ppm; pummelo at 0.50 ppm; brassica, leafy greens, subgroup 5B at 9.0 ppm; turnip greens at 9.0 ppm; peanut at 0.10 ppm; peanut, hay at 55 ppm; peanut, refined oil at 0.20 ppm.

This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 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).

To promote a more efficient, effective and responsive organizational structure and to better promote and address public safety, homeland security, national security, emergency management and preparedness, disaster management, and related issues, the Commission has concluded that the proper dispatch of its business and the public interest will be served by creating a Public Safety and Homeland Security Bureau. In this Order, we amend the Commission's Rules to reflect the new structure, describe the new Bureau's functions and delegated authority, and make other conforming changes.

Authority for the adoption of the foregoing revisions is contained in Sections 1, 4(i), 4(j), 5(b), 5(c), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. § 151, 154(i), 154(j), 155(b), 155(c), and 303(r).

The amendments adopted herein pertain to agency organization, procedure and practice. Consequently, the notice and comment provisions of the Administrative Procedure Act contained in 5 U.S.C. 553(b) are inapplicable.

Accordingly, it is ordered that Parts 0, 4, 11, 22, 64, 90, and 97 of the Commission Rules, set forth in Title 47 of the Code of Federal Regulations, are amended as set forth in the Appendix attached to this Order, to be effective upon release of this Order.

This is a summary of the Commission's Report and Order , adopted on September 22, 2006 and released on September 29, 2006, FCC 06-141. The full text of the Report and Order is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, 202-488-5300 or 800-387-3160, e-mail at fcc@bcpiweb.com. The complete text is also available on the Commission's Web site at http://hraunfoss.fcc.gov/edocs_public/attachment/FCC-06-141A1.doc. This full text may also be downloaded at: http://wireless.fcc.gov/releases.html. Alternative formats (computer diskette, large print, audio cassette, and Braille) are available to persons with disabilities by contacting Brian Millin at (202) 418-7426, TTY (202) 418-7365, or via e-mail to bmillin@fcc.gov.

1. In this Report and Order , we revise our rules to reduce regulatory burdens for 18 GHz band  1 terrestrial Fixed Microwave Services (FS) licensees that are subject to involuntary relocation from the 18.3-19.3 GHz band pursuant to the Commission's reallocation of that band for exclusive satellite services use in IB Docket No. 98-172. 2 These FS licensees will relocate to spectrum at 17.7-18.3 GHz and 19.3-19.7 GHz, where 47 CFR part 101 currently designates channel sizes that are too large relative to the needs of some relocating point-to-point microwave licensees and too small relative to the needs of relocating private cable operators (PCOs) and other multichannel video programming distributors (MVPDs). The Report and Order revises the rules to add new channel sizes in both bands along with special rules for MVPDs within the 17.7-18.3 GHz band, thereby facilitating the relocation.

2. In this Report and Order we adopt the following actions regarding FS channels in the terrestrial 18 GHz band:

• We adopt a revised band plan for the FS paired and unpaired spectrum from 17.7-18.3 GHz and 19.3-19.7 GHz, consisting of a variety of channel bandwidths, primarily narrower bandwidths, and a block of unpaired spectrum from 17.7-17.74 GHz.

• We designate a contiguous 600 megahertz block of one-way spectrum from 17.7-18.3 GHz for use by MVPDs, who will have flexibility within such block to determine the appropriate bandwidths and other technical parameters of their MVPD operations.

• In the 17.7-17.8 GHz band, we protect Federal earth stations in the fixed-satellite service (space-to-Earth) that may be authorized in Denver, Colorado, and Washington, DC, and require all MVPD applications (under 47 CFR parts 74, 78, or 101) within the 17.7-17.8 GHz band near those areas to be coordinated with the Federal Government by the Commission before an authorization will be issued. 3

• We provide channel flexibility to grandfathered MVPDs in the 18.3-18.58 GHz band, which was previously designated for non-primary use by MVPDs.

3. Reallocation from Terrestrial Services to Satellite Services ( 18 GHz SAT R&O ). Previously, in a separate proceeding, the Commission reallocated portions of the 18 GHz band to accommodate sharing among the terrestrial, Geostationary Satellite Orbit Fixed-Satellite Service (“GSO/FSS”), Non-Geostationary Satellite Orbit Fixed-Satellite Service (“NGSO/FSS”), and Mobile-Satellite Service feeder links (“MSS/FL”). As part of that action, the Commission reallocated the one thousand megahertz of spectrum from 18.3-19.3 GHz solely to Fixed-Satellite Service (FSS). The terrestrial services, including FS, continue to have shared (co-primary) access to the terrestrial 18 GHz band and we revise the FS channel plan, under part 101, to ensure that the FS community can effectively and efficiently utilize this spectrum. Rechannelization of CARS and BAS, which share the terrestrial 18 GHz band with FS (as well as satellite services) will be addressed in a separate proceeding. Accordingly, the discussion below focuses on the terrestrial Fixed Microwave Services (FS) licensed under part 101, except where we address NTIA's request to protect certain Federal Government earth stations relative to all applications for new or modified MVPD operations whether under parts 74, 78, or 101.

4. The 18 GHz band currently serves a variety of terrestrial communications needs and is an important band for the growth of FS services. Prior to the rule changes adopted in the 18 GHz SAT R&O , the 18 GHz band (two-thousand megahertz of spectrum at 17.7-19.7 GHz) was allocated on a co-primary basis for FS, CARS, BAS, and satellite services. 4 In the 18 GHz SAT R&O , the Commission reallocated one-thousand megahertz of spectrum for FS use as follows: the 17.7-18.3 GHz band and the 19.3-19.7 GHz band, both on a co-primary basis with satellite services. The 18 GHz SAT R&O also designated the 18.3-18.58 GHz band as co-primary between FS and GSO/FSS, but the Commission subsequently reallocated this sub-band exclusively for satellite services use.

5. Ten-year relocation reimbursement sunset. Recognizing the importance of existing FS systems in the 18 GHz band, the Commission adopted a ten-year transition plan that permits FS stations currently operating within the one-thousand megahertz of spectrum at 18.3-19.3 GHz, that was reallocated for exclusive satellite services use, to continue operating on a co-primary basis until the applicable sunset date. 5 Under these rules, satellite operators have the option to relocate FS stations in the event of interference and, during this ten-year period, existing FS stations may be relocated in accordance with the reimbursement and involuntary relocation procedures set forth in § 101.85 and § 101.91of the Commission's rules. After the sunset, existing FS stations may continue to operate on a non-interference basis, but FSS licensees are not required to pay relocation costs and may require an incumbent FS licensee to cease operations, provided that the FSS licensee intends to turn on a system within interference range of the incumbent FS licensee. 6

6. The 18 GHz band spectrum available for FS containing the narrowest (five megahertz) paired channels (18.76-19.16 GHz band frequencies) was reallocated exclusively to satellite services. Under current rules, ten megahertz is the smallest channel size available for licensing to FS in the terrestrial 18 GHz band. As a result, under the existing band plan some FS operators will not be able to relocate to replacement channels in the terrestrial 18 GHz band of the same bandwidth as their currently licensed channels at 18.76-19.16 GHz. Moreover, some FS operators would not be able to be licensed without a waiver of the minimum efficiency requirements specified in part 101 of our rules. Under the efficiency rules in § 101.141 of the Commission's rules, a FS licensee must utilize its channel to the required limit. The 18 GHz Rechannelization NPRM (NPRM) , 69 FR 40843 (July 7, 2004), set forth criteria for waiver of the channel-size rules pending the outcome of this proceeding. Requiring such licensees to be licensed for larger-than-necessary bandwidths would be spectrally inefficient.

7. The Commission recognized in the 18 GHz SAT R&O that the already high demand for 18.14-18.58 GHz band will increase and stated that this portion of the 18 GHz band is vital to the success of FS relocation efforts and the continued viability of wireless cable providers that provide direct competition to traditional cable operators. However, most of the 18 GHz band spectrum from 18.142-18.58 GHz, which consists of six megahertz channels (the standard channel bandwidth used by almost all MVPDs to deliver analog channels and digital video streams) used mainly by private cable operators (“PCOs”) and other MVPDs, was reallocated to satellite services. Accordingly, when the Commission reallocated this portion of the 18 GHz band, it noted that PCOs and other MVPDs were eligible to use other spectrum either below 18.3 GHz in the terrestrial 18 GHz band  7 or in the CARS (12.7-13.2 GHz) band. 8 Although the Second Order on Reconsideration recognized that the CARS Eligibility Order allowed non-cable MVPDs access to the terrestrial 18 GHz band, the Commission did not, in those proceedings, remove the restriction for video in § 101.603 of the Commission's rules, nor amend the size of the channels in the terrestrial 18 GHz band below 18.142 GHz to accommodate such use. Rather, the Commission explained in the First Order on Reconsideration that it would undertake a separate proceeding to rechannelize the terrestrial 18 GHz band to facilitate the relocation. Accordingly, on April 19, 2004, the Commission released the NPRM.

8. In the NPRM (based largely on a filing by the Fixed Wireless Communications Coalition (FWCC)), the Commission proposed a revised FS channel plan for the terrestrial 18 GHz band that included paired and unpaired channels from 17.7-18.3 GHz and 19.3-19.7 GHz, as well as a variety of channel bandwidths including narrower bandwidths, e.g. , 1.25, 2.5 and 5 megahertz (as well as those of thirty and fifty megahertz) and a block of unpaired spectrum from 17.7-17.74 GHz.

9. All commenters generally support our efforts to provide relief to relocated point-to-point microwave FS licensees by modifying the existing FS channel plan in the terrestrial 18 GHz band. Based on the information available in the record, we conclude that our decisions will promote more efficient use of the terrestrial 18 GHz band by allowing FS licensees to request the amount of spectrum that they need, rather than having to request larger bandwidth channels or seek a waiver of the Commission's rules. This in turn promotes access to spectrum for FS operations, both by relocating incumbents and new entrants.

10. In the NPRM, the Commission recognized that the reallocation of the 18 GHz band eliminated portions of all three FS 220 megahertz channel pairs, and the Commission sought comments on whether a need exists to maintain any 220 megahertz channel pair. Commenters state that maintaining 220 megahertz channel pairs is no longer necessary because, due to advances in modulation, the services that were provided over these channel pairs are no longer used and, accordingly, the equipment needed to provide these services is no longer manufactured. Moreover, commenters maintain that the proposed assignment would effectively block the use of narrower channels for two-way links within the terrestrial 18 GHz band. We also note that the Commission's licensing records reflect that no incumbents are licensed for a 220 megahertz channel pair. Based on the record before us, we agree with the commenters and find that maintaining a 220 megahertz channel pair serves no useful purpose, especially given our decision below regarding aggregation. Accordingly, we change our rules to eliminate this size channel designation.

11. We also proposed, in the NPRM, to permit applicants to request any amount of available spectrum based on their specific needs, on the condition that aggregated channels are contiguous channels, except for channels that are already licensed to someone else in the area, and are thus blocked. Comsearch asks us to clarify whether applicants also may skip any segments that would be affected by interference with other links. We conclude that allowing aggregation conditioned upon the proposed requirement that aggregated channels be contiguous is necessary to prevent licensees from spacing their channels in a manner that effectively could prevent others from using the remaining spectrum in the same area. We also, however, agree with Comsearch that where an applicant seeks to operate in a particular segment that is unavailable in the relevant area, whether due to co-channel licenses or adjacent channel interference as determined under our rules (including requirements to comply with any applicable agreements with Canada or Mexico in these bands), then it is appropriate to allow the applicant to skip that “blocked” segment of spectrum.

12. The NPRM also proposed to permit unpaired use by any FS licensee of the 17.7-17.74 GHz sub-band, which was previously paired with the 19.26-19.3 GHz sub-band that was reallocated to FSS. We also asked whether to allow licensees to pair channels in the 17.7-17.74 GHz sub-band with other channels in the terrestrial 18 GHz band where, for example, the return pair is already in use and therefore blocked. Only one commenter, Independent Multi-Family Communications Council (IMCC), addressed these proposals and supported them. We conclude that these approaches will provide FS licensees additional operational flexibility within the terrestrial 18 GHz band without compromising our efforts to facilitate effective and expeditious relocation of those licensees from other portions of the 18 GHz band. We accordingly adopt these changes to our rules.

13. Prior to the reallocation to satellite services in IB Docket No. 98-172, PCOs and other MVPDs had co-primary access to 438 megahertz of spectrum (18.142-18.58 GHz) and non-MVPDs had co-primary access to 442 megahertz of spectrum (17.7-18.142 GHz). Although MVPD and non-MVPD each shared spectrum with satellite and other terrestrial services, these part 101 licensees did not share with one another. In the NPRM , the Commission noted that MVPDs no longer will have primary access to the 18.3-18.58 GHz band frequencies, leaving MVPDs subject to involuntary relocation and access to only 158 megahertz of spectrum in the 18 GHz range. In this connection, the Commission proposed for MVPDs a contiguous 500 megahertz block of one-way spectrum, from 17.8-18.3 GHz, consisting of the 158 megahertz of spectrum at 18.142-18.3 GHz and 342 megahertz of spectrum immediately below 18.142 GHz which MVPDs and non-MVPDs would share. The Commission also proposed removing the prohibition on video operations  9 and allowing MVPDs to be licensed for up to all five-hundred megahertz of this spectrum, subject to coordination, along with flexibility to channelize contiguous segments of licensed spectrum as needed. The Commission further proposed emission flexibility for MVPDs within the 17.8 to 18.3 GHz band to accommodate and streamline conversions to digital transmissions. The NPRM did not propose to designate 17.7-17.8 GHz for MVPDs, which under the current rules would leave this one-hundred megahertz of spectrum designated for non-MVPDs. We discuss each proposal or issue below.

14. Alcatel and Fixed Wireless Communications Coalition and the National Spectrum Managers Association (FWCC/NSMA) initially opposed designating the 17.8-18.3 GHz sub-band for use by MVPDs because MVPDs use one-way, hub-and-spoke architecture that these commenters contend will effectively block the use of the entire sub-band for more efficient two-way FS use in the vicinity of MVPDs systems. FWCC/NSMA further contended that the combination of MVPDs' widespread geographic dispersion and high occupied bandwidth resulting from low-efficiency modulation effectively prevents FS use over the entire bandwidth.

15. The main difference between non-MVPD use and MVPD use is that the latter often utilizes analog video channels, which are typically six megahertz, and have a larger amplitude (peak power) at the location of the main video carrier. As a result, the power is not spread as evenly across the bandwidth as is the case for most non-MVPD operations. Typically, MVPDs also use several contiguous channels to backhaul their services whereas non-MVPD operators usually meet their needs with one or two channels. After taking these differences into account, however, we reject any claim that these operational differences preclude sharing given that MVPDs are required to coordinate with other service providers, and thus will not be able to uniformly block or otherwise interfere with other, non-MVPD licensees. Moreover, given MVPDs' “late arrival” to this band, they will only operate where the spectrum is still available, i.e. , can be coordinated with existing licensees. We also note that in the Second Order on Reconsideration, the Commission determined that if PCOs relocate to the 12.7-13.2 GHz and 17.7-18.3 GHz frequency bands, the geographic separation between the incumbent systems and the relocated PCOs would result in only rare instances where the frequency paths would intersect in a way that would require site shielding or other mitigating measures necessary to prevent mutually unacceptable interference. As such, the Commission determined in the Second Order on Reconsideration that MVPDs could relocate to either the CARS band (12.7-13.2 GHz) or to 17.7-18.3 GHz. In view of these prior determinations in the allocation proceeding, we conclude that it is not within the scope of the instant service-rules proceeding to reconsider wholesale determinations regarding acceptable designations of terrestrial operations for these bands made in IB Docket No. 98-172. In this connection, we note that Alcatel and FWCC/NSMA subsequently informed the Commission that they no longer oppose expanding 18 GHz spectrum for final video links. As such, and in accordance with the determination made in IB Docket No. 98-172 that terrestrial users, e.g. , MVPDs and other FS users, could and would share portions of the terrestrial 18 GHz band, we are adopting the proposal in the NPRM to allow the 17.8-18.3 GHz sub-band to be used for the final radio frequency link to distribute video.

16. MVPD Designation at 17.7-17.8 GHz. As noted, the NPRM did not propose to designate for MVPDs the one-hundred megahertz of spectrum at 17.7-17.8 GHz, which is allocated on a shared, co-primary basis to FS (parts 74, 78, and 101) and FSS (Earth-to-space), with the FSS allocation limited to feeder links for broadcasting satellite service. 10 Coordination is required between FS and FSS because there is a potential for interference from FSS uplinks into receiving FS facilities. IMCC contends, however, that to have a reasonably cost effective transmission solution to compete with large telecommunications and cable companies, PCOs need access to the full 600 megahertz of spectrum contemplated for MVPDs in the CARS Eligibility Order and the Second Order on Reconsideration . This appears to be a reasonable assertion as cable systems usually use 550 MHz or more of spectrum. Moreover, in a particular location, even the full 600 megahertz may not be available contiguously due to the presence of other users. 11 Additionally, we acknowledge IMCC's point that the OET CARS Study (the Study) that found sufficient capacity (in the 12 GHz and the terrestrial 18 GHz bands) to accommodate the relocation of terrestrial licensees adopted in IB Docket No. 98-172 included the 100 megahertz of spectrum at 17.7-17.8 GHz.

17. As noted above, some commenters initially objected to use of spectrum below 18.142 MHz by video providers but these objections were subsequently withdrawn. IMCC has persuaded us that providing MVPDs access to the full 600 megahertz of spectrum, as contemplated in the OET CARS Band Study, is necessary and appropriate to promote competition in the video distribution industry.

18. On March 3, 2006, the National Telecommunications and Information Administration (NTIA) filed a letter with the Commission in this proceeding stating concerns with the possibility of harmful interference to a limited number of Federal Government earth station facilities near Denver, Colorado and Washington, DC, from MVPD operations in the 17.7-17.8 GHz sub-band. 12

19. NTIA requests that if the Commission chooses to permit MVPDs in the band, the Commission extend protection of these receiving Federal Government earth stations to the band 17.7-17.8 GHz in the geographic areas identified in § 1.924(e) of the Commission's rules for the 17.8-20.2 GHz band. 13 NTIA avers that this result would be implemented with minimum impact on MVPDs through the adoption of the following footnote to the Table of Allocations, 47 CFR 2.106, and the implementation of associated changes to existing rules in parts 1, 74, and 78, and § 101.31, the last by extending to MVPDs at 17.7-17.8 GHz the existing prohibition on the early commencement of operations at 17.8-19.7 GHz pending coordination with the Federal Government.

20. NTIA acknowledges that many fixed services with differing characteristics already operate in the band 17.7-17.8 GHz without coordination with the Federal Government earth stations in the specified locations. Accordingly, NTIA emphasizes that it does not seek to require coordination of fixed services already authorized in the band 17.7-17.8 GHz, for which coordination has not been previously required. 14

21. Based on the record before us, we find that adopting the protections that NTIA has requested would serve the public interest. We find that NTIA's request is a reasonable mechanism to protect Federal Government earth stations that may be authorized in the Denver Colorado, and Washington, D.C. areas. Accordingly, we make changes to parts 1, 2, 74, 78, and 101 of the Commission's rules to implement NTIA's request with respect to applications for new (or major modifications to existing) MVPD operations. In this regard, we acknowledge that the NPRM stated that rechannelization of Broadcast Auxiliary Services (part 74) and Cable Television Relay Service (part 78) spectrum, which share the terrestrial 18 GHz band with FS (part 101) would be addressed in a separate proceeding. The Commission also, however, gave notice that licensees in parts 74 and 78 could be affected because of the shared use of these terrestrial services. 15 Given the important public policy objective of protecting federal facilities from interference, we are implementing NTIA's proposal for the 17.7-17.8 GHz band for all three rule parts (parts 74, 78 and 101).

22. In the NPRM , the Commission proposed rules permitting MVPD providers to use whatever size channels in contiguous spectrum that they deem necessary to accommodate analog or digital transmission techniques provided that they have properly coordinated the necessary emission designators and power criteria. 16 We adopt that proposal for the entire band 17.7-18.3 GHz for MVPD operators.

23. Comsearch disagrees with the Commission's flexibility approach and states that cable television distribution and MVPDs are closely tied to a 6 megahertz channel plan. Comsearch contends that orderly spectrum management demands that a 6 megahertz channel plan should be added to this segment to accommodate MVPDs. Comsearch further states that PCOs and MVPDs could use either this 6 megahertz plan or any of the other plans (5 megahertz, 10 megahertz, etc.), but should not have total flexibility to use whatever channels and bandwidth they choose.

24. We are not persuaded that adopting a six megahertz plan is necessary. In furtherance of our spectrum management goals for the terrestrial 18 GHz band, we adopt rules for permitting MVPD providers to use contiguous blocks of spectrum in order to accommodate their video delivery needs. The Commission recognizes that a de-facto six-megahertz channelization scheme exists because the current availability of both analog and digital video processing equipment, in-home set-top boxes, and television sets is designed for six megahertz channels. However, we do believe that providing MVPDs with channel flexibility does not inhibit them from still operating within the existing, de-facto channelization scheme if they so choose. Adding operational flexibility to accommodate operators who wish to use alternate channel plans, should the opportunity or need arise, does not prevent the continued use of the six megahertz scheme and is therefore in the public interest.

25. We find that it is in the public interest to adopt the proposal in the NPRM to retain the 18.3-18.58 GHz sub-band for grandfathered MVPDs given its adjacency to the 17.7-18.3 GHz band that we are designating for MVPDs today. 17 We believe this approach is appropriate because it preserves the status of the grandfathered terrestrial licensees in the 18.3-18.58 GHz sub-band and their ability to continue operating. Together with the 17.7-18.3 GHz band, this provides MVPDs with access to a total of 880 megahertz (17.7-18.58 GHz), albeit with 280 megahertz limited to grandfathered licensees that operate on a co-primary basis with FSS until 2012, after which they will operate on a non-protected and non-interfering basis to FSS.

26. In furtherance of our spectrum management goals of encouraging efficient use of spectrum for the 18 GHz band, we adopt rules allowing emission and channelization flexibility from 18.3 to 18.58 GHz for MVPDs. We find that extending emission and channelization flexibility will allow MVPDs to efficiently use spectrum in this sub-band without causing unacceptably high levels of interference with other licensees; however, certain stations that remain co-primary [in the 18.3-19.3 GHz band] may not make modifications to their systems that increase interference to satellite earth stations, or result in a facility that would be more costly to relocate. In the event that a FSS licensee intends to turn on a system within interference range of the incumbent licensee, the incumbent licensee would have to cease operations or relocate in accordance with our rules. Also, incumbent licensees are cautioned that all major modifications and certain extensions of existing systems will render those links secondary to FSS operations pursuant to § 101.97(a) of the Commissions rules. We believe that providing emission and channelization flexibility in the 18.3 to 18.58 GHz segment, in conjunction with flexible usage rules for the 17.7-18.3 GHz band, will give MVPD licensees access to large blocks of spectrum to more effectively provide video services in an efficient manner for the duration of their grandfathered status. We note that IMCC filed comments supporting our proposal to extend flexible use to the 18.3-18.58 GHz sub-band. We conclude, based on the evidence available in the record, and the amount of spectrum available to MVPDs licensees, that such changes are necessary to fully effectuate the Commission's efforts to provide MVPD licensees additional operational flexibility and increased access to the terrestrial 18 GHz band.

27. In furtherance of our goals to provide regulatory relief to licensees transitioning to the 18 GHz band and encourage efficient use of spectrum, we conclude that MVPD licensees should have flexibility to move from analog to digital emissions, choose the size of each channel, and use whatever compression techniques they wish. Our licensing records reflect that most of the MVPD operations subject to relocation are analog systems. As discussed above, we anticipate that many of these systems will convert to digital either at the end of their analog-equipment lifecycle or in response to market incentives. In this connection, we are concerned that MVPDs that must relocate prior to converting to digital could incur significant, duplicative costs associated with the coordination and licensing process for (1) spectral relocation and, later, (2) for digital conversion. To minimize the potential for duplicative costs, we conclude that MVPD licensees should have the option to specify analog and digital emission designators (each of which must be coordinated) on one application. In this connection, we are adopting a revision to § 101.63 of the Commission's rules to allow MVPD licensees to meet their construction requirement and not automatically surrender their license as long as they are operating a system using either an authorized analog or digital emissions. Accordingly, such MVPD licensees will be authorized to operate using one or both modulations, e.g., the licensee can operate its analog system and later convert to digital without having to file another, coordinated application. Once the licensee has completed the transition to digital, the license can remove the unused analog emission designator(s) the next time a modification or renewal application is filed. 18 In adopting these measures we reduce the regulatory burden on licensees and encourage flexible and more efficient use of spectrum.

This is a summary of the Commission's Memorandum Opinion and Order, ET Docket No. 05-247, FCC 06-157, adopted October 17, 2006 and released November 1, 2006. The full text of this document is available on the Commission's Internet site at www.fcc.gov. It is also available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street., SW., Washington, DC 20554. The full text of this document also may be purchased from the Commission's duplication contractor, Best Copy and Printing Inc., Portals II, 445 12th St., SW., Room CY-B402, Washington, DC 20554; telephone (202) 488-5300; fax (202) 488-5563; e-mail fcc@bcpiweb.com.

1. The Commission's OTARD rules prohibit restrictions on property that impair the use of certain antennas. Restrictions prohibited by the OTARD rules include lease provisions (as is the situation here), as well as restrictions imposed by state or local laws or regulations, private covenants, contract provisions, or homeowner's association rules. Restrictions are prohibited by the OTARD rules if they unreasonably delay or prevent the installation, maintenance, or use of the antenna; unreasonably increase the cost of installation, maintenance or use of the antenna; or preclude the reception of an acceptable quality signal via the antenna. No distinctions are made in the OTARD rules based upon the setting ( e.g. , residential vs. commercial). There are exceptions in the OTARD rules for restrictions necessary to address valid and clearly articulated safety or historic preservation objectives, provided such restrictions are narrowly tailored, impose as little burden as possible, and apply in a nondiscriminatory manner.

2. The Commission adopted the OTARD rules in 1996 in response to Section 207 of the 1996 Telecommunications Act (1996 Act), which required the Commission to promulgate rules that “prohibit restrictions that impair a viewer's ability to receive video programming services” via antennas. The 1996 Act had as its overarching goals promoting competition in telecommunications, increasing consumer choice, and encouraging the rapid deployment of new technologies. In 1998, the Commission modified the OTARD rules to extend their applicability to rental property. In 2001, the Court of Appeals for the D.C. Circuit upheld the Commission's statutory authority and discretion to extend OTARD protections to rental environments and to preempt any contractual provisions to the contrary. In 2000 the Commission extended the OTARD rules to antennas that transmit or receive fixed wireless signals.

3. The OTARD rules provide that parties who are affected by antenna restrictions may petition the Commission to determine if the restrictions are permissible or prohibited by the rule and sets forth specific filing procedures. Such a determination is highly dependent on the facts alleged by the parties involved. Continental has filed such a petition alleging that Massport has demanded that it remove a Wi-Fi antenna from its lounge at Logan Airport in contradiction of the OTARD rules.

4. Three conditions must be satisfied in order for Continental's Wi-Fi antenna to be covered by the OTARD rules. First, the antenna must be one meter or less in diameter or diagonal measurement. Second, the antenna must be located on property within the exclusive use and control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property. Lastly, the antenna must be used to receive or transmit fixed wireless signals. Massport concedes that Continental's Wi-Fi antenna satisfies the first condition, i.e. , the antenna is less than one meter in diagonal measurement. The Commission finds that the second requirement is also satisfied. There is no dispute that Continental has a direct leasehold interest in the airport lounge where the Wi-Fi antenna is located, nor is there any indication in the record that the lounge is not exclusively used and controlled by Continental. It is Continental that is asserting rights under the OTARD rules, and it is Continental that is “using” the antenna to send and receive signals from its customers and employees within the lounge and has exclusive use and control of the leased premises.

5. For purposes of the third condition, that the antenna receives or transmits fixed wireless signals, a signal is a fixed wireless signal if it is (1) commercial, (2) non-broadcast, and (3) transmitted via wireless technology to and/or from a fixed customer location. The Wi-Fi antenna transmits commercial signals because Continental accesses a commercial Internet service that it receives over a wireline connection and uses the antenna to transmit those same commercial signals within the lounge. There is no dispute that the Wi-Fi signals are non-broadcast. The application of OTARD is not limited to fixed antennas used for signals originating or terminating outside of the leased premises. Thus, Continental's Wi-Fi antenna transmits signals via wireless technology to and/or from a fixed customer location.

6. Continental's Wi-Fi antenna is not excluded from OTARD as a “hub” antenna used to deliver service to others. When a leaseholder or property owner uses an antenna to send and receive signals strictly within its premises, and not to “multiple customer locations,” the antenna user is using the antenna for its own purposes under the OTARD rules. The present case involves the sending of signals to and from an OTARD-covered antenna strictly within the premises under the exclusive use and control of the antenna user. Consequently, Continental's Wi-Fi antenna cannot be considered a hub antenna.

7. A restriction runs afoul of the OTARD rules if it unreasonably delays, prevents, or increases the cost of the installation, maintenance, or use of the antenna or precludes reception of or transmission of an acceptable quality signal. The restrictions contained in Massport's lease with Continental for the airport lounge unreasonably impair the use of Continental's antenna because the lease provisions for the lounge allegedly require that Continental discontinue use of or remove its Wi-Fi antenna and because the lease allegedly prohibits making alterations to the premises without submitting an application to and receiving prior approval.

8. The presence of an airport Wi-Fi backbone that provides coverage throughout the airport does not provide an exception to the OTARD rule as a “central antenna.” The Commission has explicitly declined to adopt a central antenna exception to the OTARD rule. The availability of a central antenna must be analyzed in the context of impairment— i.e. , whether the restrictions on the installation and use of an antenna constitute impairment if the landlord offers a central antenna that may be used by the tenant. The restrictions constitute an impairment because of the time delay in which Massport offered allegedly comparable service, and because Continental would not be able choose its own service provider and would be limited to whatever type of services, level of network security, quality of service, and signal strength the airport Wi-Fi backbone provides.

9. Massport does not qualify for a safety exception to the OTARD rules because of potential interference to the airport Wi-Fi backbone because the OTARD safety exception addresses potential dangers to the physical safety and health of the public and not interference to other radio device users. The Commission further noted that because the Wi-Fi device that Continental is using in the lounge operates as permitted under Part 15 of the Commission's rules, Massport has no right to operate the airport Wi-Fi backbone free from interference from other Part 15 devices, and that the type of traffic carried by the airport Wi-Fi backbone does not change the application of Part 15 of the Commission's rules. Users who believe they must have interference-free communication should pursue the exclusive-use options under the licensed service models instead of relying on Part 15 devices. Massport also does not qualify for a special exemption from the OTARD rule because OTARD has no express exception for governmental entities and Massport has made no showing that its management responsibilities relating to antenna siting differ materially from those of any other landlords.

10. The Commission has the statutory authority to apply the OTARD rules to antennas used to receive and/or transmit fixed wireless signals. There is no indication that Congress intended to limit the Commission's discretionary preemptive authority over antenna siting to the strict parameters of Section 207 of the 1996 Telecommunications Act. Nothing in Section 207 prohibits the Commission from exercising its authority pursuant to Section 303 and other provisions of the Communications Act to protect the siting of other antennas that receive or transmit other types of signals. Furthermore, Section 303(d) of the Communications Act provides the Commission with express statutory authority to regulate antenna siting. Additionally, the Commission's exercise of its ancillary jurisdiction in the Competitive Networks Report and Order also provides an independent basis for the Commission's OTARD rules. When the Commission extended the OTARD rules to include antennas used to transmit or receive fixed wireless signals, it relied upon the statutory goals in Sections 1, 201(b), 202(a), and 205(a) of the Communications Act, as well as the Preamble to and Section 706 of the 1996 Telecommunications Act.

11. The Commission is able to apply OTARD to a state or local government acting in a proprietary capacity. When a governmental entity acts in a private capacity, the authority of a federal agency like the Commission to regulate such action will turn on whether the agency has lawfully exercised its authority in the same manner over similarly situated non-governmental regulatees. The OTARD rules expressly apply to “contract provision[s]” and “lease provision[s],” of private parties. In Building Owners and Managers Association International v. FCC, 254 F.3d 89 (D.C. Cir. 2001) (“BOMA”), the D.C. Circuit held that the Commission possessed the authority to prohibit private leasing restrictions that impair a viewer's ability to receive video programming services through antennas designed for over-the-air reception. In extending the OTARD rules to the wireless context, the Commission relied upon the same policies underpinning the video-based OTARD rules upheld by the D.C. Circuit. Private lease agreements that impair a user's ability to install an antenna falling within the scope of the Commission's OTARD rules conflict with the Commission's authority over such antenna siting. In addition, such a lease agreement stands as an obstacle to the accomplishment and full objectives of federal law to facilitate the availability of advanced communications services and to foster competition.

12. The D.C. Circuit has affirmed in BOMA that application of the OTARD rules to leased property is not a per se taking of the landlord's property rights. Whether a regulatory taking has occurred is determined by considering: (1) The character of the government action; (2) its economic impact; and (3) its interference with reasonable investment-backed expectations. No regulatory taking has occurred because applying the OTARD rules in this situation will promote the important government interests of increasing competition and encouraging the deployment of advanced communication technology; economic harm need not be considered because no one has the right to operate part 15 devices such as Wi-Fi free of interference; and no one has a reasonable expectation to generate revenue from the use of unlicensed spectrum.

13. Pursuant to section 1.4000(d) of the Over-the-Air Reception Devices Rule, 47 CFR 1.4000(d), and section 1.2 of the Commission's rules, 47 CFR 1.2, that the Petition for Declaratory Ruling filed by Continental Airlines, Inc. on July 8, 2005 is granted.

14. This Memorandum Opinion and Order does not change any rules, it grants a Petition for Declaratory Ruling, no Congressional Review requirements are necessary.

Under the ESA, we are responsible for determining whether certain species, subspecies, or distinct population segments (DPS) are threatened or endangered, and designating critical habitat for them (16 U.S.C. 1533). In November 2005, we listed the Southern Resident killer whale DPS as endangered under the ESA (70 FR 69903; November 18, 2005). At the time of listing, we also announced our intention to propose critical habitat for the Southern Resident killer whale. Critical habitat for Southern Residents was proposed on June 15, 2006 (71 FR 34571).

Three distinct forms of killer whales, termed residents, transients, and offshores, are recognized in the northeastern Pacific Ocean. Resident killer whales in U.S. waters are distributed from Alaska to California, with four distinct communities recognized: Southern, Northern, Southern Alaska, and Western Alaska (Krahn et al. , 2002; 2004). Resident killer whales are fish eaters and live in stable matrilineal pods. The Southern Resident DPS consists of three pods, identified as J, K, and L pods, that reside for part of the year in the inland waterways of Washington State and British Columbia (Strait of Georgia, Strait of Juan de Fuca, and Puget Sound), principally during the late spring, summer, and fall (Ford et al. , 2000; Krahn et al. , 2002). Pods visit coastal sites off Washington and Vancouver Island (Ford et al. , 2000), but travel as far south as central California and as far north as the Queen Charlotte Islands. Offshore movements and distribution are largely unknown for the Southern Resident DPS.

Detailed information on the natural history of Southern Residents is included in the Proposed Conservation Plan for Southern Resident Killer Whales (Orcinus orca) available at http://www.nwr.noaa.gov/ and was summarized in the biological report and the proposed rule to designate critical habitat (71 FR 34571; June 15, 2006).

We requested comments on the proposed rule to designate critical habitat for Southern Resident killer whales (71 FR 34571; June 15, 2006). To facilitate public participation, the proposed rule was made available on our regional web page and comments were accepted via standard mail, e-mail, and through the Federal eRulemaking portal. In addition to the proposed rule, several draft documents supporting the proposal, including a biological report, an economic report, and a report supporting NMFS' conclusions under Section 4(b)(2) of the ESA, were posted. We obtained independent peer review of the draft biological report (NMFS, 2006a) and draft Economic Analysis (NMFS, 2006b) and incorporated the peer review comments into the documents prior to dissemination in support of the proposed rule. Two public hearings were held on July 12, 2006, in Seattle and July 13, 2006, in Friday Harbor, WA, and the public comment period closed on August 14, 2006.

We have considered all public comments, and they are addressed in the following summary. We have assigned comments to major issue categories and, where appropriate, have combined similar comments.

Comment 1: In our proposed listing determination for killer whales, we identified potential Primary Constituent Elements (PCEs) of critical habitat, including “Sound levels that do not exceed thresholds that inhibit communication or foraging activities or result in temporary or permanent hearing loss.” Many commenters expressed concern that the proposed critical habitat designation did not include sound as a PCE. These commenters pointed out that killer whales rely on sound to navigate, forage, mate, avoid predators, and communicate with one another. One commenter noted research findings that vessel effects and acoustic disturbance are stressors on killer whales. Another commenter pointed to study findings that suggest killer whales abandon certain habitats when confronted with introduced noise. These commenters argued that NMFS should consider sound an element of the physical environment of water, just as NMFS considers water quality, prey, and passage habitat conditions. Commenters pointed out that underwater, sound travels farther than above water, and, therefore, should be considered differently. Others pointed out that sound is a commonly accepted pollutant, and should be treated as such in the critical habitat designation. They also pointed to the inclusion of sound as a concern in NMFS' proposed Conservation Plan for Southern Residents and the 2004 Status Review. The commenters were particularly concerned with the impact of military sonar in Puget Sound on Southern Residents. Several commenters also mentioned the 2003 USS Shoup incident that reportedly affected Southern Resident behavior in the Sound as evidence of the harmful impacts of military sonar in the Sound. Other commenters focused on ambient noise and the noise from specific projects underway in the Sound as concerns for Southern Residents. They felt that excluding sound as a PCE would allow these activities to continue unmonitored for sound levels. One commenter argued that NMFS should extend critical habitat to the shoreline to prevent the impacts of noise related to nearshore activities on killer whales. These commenters requested NMFS reconsider sound as a PCE due to its importance to the species and create sound thresholds to enable enforcement of potential regulations.

Response: We acknowledge the many observations about the potential for sound to startle or even physically injure killer whales. These effects, however, are direct effects to the animal itself and not to its habitat. The agency has already conducted several ESA section 7 consultations on construction activities, and measures were included in the action to avoid direct impacts to the whales. Regarding the comment in support of enforceable regulations to protect killer whales from sound, we have sound thresholds that we consider to be harassment under the Marine Mammal Protection Act (MMPA). We also recently announced our intention to consider new criteria to determine what constitutes “take” under the MMPA and ESA, through preparation of an environmental impact statement (70 FR 1871; January 11, 2005). As that process unfolds, we may consider additional regulations to protect Southern Residents from harmful sounds.

Continuous sounds may interfere with the whales' echolocation and communication. At this time, however, we lack sufficient information to include sound as a PCE of killer whale critical habitat. We will continue to consider sound in any future revisions of the critical habitat designation.

Comment 2: We received many comments regarding the proposal to designate critical habitat in waters deeper than 20 feet (6.1 m) based on extreme high water. The majority of commenters felt that we should include waters shallower than 20 feet (6.1 m) because killer whale prey, particularly salmon, occupy these waters, and these areas are essential to the conservation of the Southern Residents. The importance of these habitats for salmon and forage fish was the predominant argument for including shallow waters as critical habitat for Southern Residents. Several commenters argued against our assessment that the Southern Residents′ size prevents them from occupying shallow waters, pointing to the activities of other killer whales that use shallow waters for rubbing on rock bottoms and for foraging on marine mammals as evidence of killer whales′ ability to occupy shallow waters. In contrast, there were commenters who supported our determination that there is very little evidence to indicate that the whales occupy shallow waters.

Commenters also cited the lack of a barrier between shallow and deep waters and mentioned that human activities occurring in shallow waters inevitably affect Southern Residents in deeper waters. Of particular concern was the fact that much of the pollution in the Sound enters through shallow waters and that excluding these waters from designation would limit our ability to address polluting activities. Commenters believed that including shallow waters in the critical habitat designation would increase the clean-up priority of contaminated sediments and limit industrialization. Some commenters listed specific projects in shallow waters that pose pollution and noise threats to Southern Residents. These commenters felt that including shallow waters would allow closer regulation of these projects to prevent harmful impacts on the deeper water habitat of Southern Residents. One commenter believed that including shallow water in critical habitat is necessary to ensure water quality and prey sustainability, two of the PCEs identified by NMFS.

In addition, several commenters asserted that it would be difficult to determine a 20-foot (6.1-m) depth contour relative to extreme high water because such a line is not commonly found on reference maps and charts. We received suggestions that using the shoreline as the critical habitat boundary would make it easier for the public to understand the boundaries of critical habitat and for Federal action agencies to evaluate their projects and effects on critical habitat.

Response: The overwhelming majority of comments focused on the importance of shallow nearshore waters for salmon and forage fish species. In the critical habitat proposal, we did not consider shallow waters (i.e., nearshore areas between the line of extreme high tide and a depth of 20 feet (6.1 m) relative to this line) of Puget Sound to be within the geographical area occupied by Southern Resident killer whales. While we acknowledged observations of transient whales beaching themselves to attack marine mammals, and those of Northern Residents using shallow areas at rubbing beaches, we did not have any similar accounts for Southern Resident whales and so requested additional information on use of shallow waters from the public during the comment period.

We received comments providing some information on Southern Resident killer whale use of shallow waters. One researcher and several other individuals submitted accounts and photos of Southern Resident whales using specific shallow areas, though it was not clear if these areas were less than 20 feet (6.1 m) deep based on extreme high water. We specifically requested public comments on use of shallow areas, and the limited information received is not sufficient to consider all shallow areas as occupied.

Joint NMFS-U.S. Fish and Wildlife Service (FWS) regulations provide that we will designate unoccupied areas as critical habitat only upon a finding that the currently occupied habitat is inadequate for conservation (50 CFR 424.12(e)). At this time we lack sufficient information to determine that the currently occupied habitat is inadequate and that additional unoccupied habitat in the shallow areas less than 20-feet (6.1 m) deep is essential for conservation of the species. We will consider any new information indicating that the current occupied habitat is a limiting factor for recovery as more research is conducted.

The final critical habitat designation is consistent with the proposed rule and does not include waters shallower than 20 feet (6.1 m) based on extreme high water. Tidal fluctuations vary at locations throughout the critical habitat areas, but generally, the shallow areas not included in the critical habitat designation are very shallow (5-10 feet) (1.5-3m) in some tidal conditions and can even be exposed at very low tides. During some tidal conditions these areas are not accessible by the whales, and we do not have data indicating that these areas are frequently used by whales.

Regarding the importance of using lines found on standard maps, we agree it can be problematic to draw a line at the 20-foot (6.1 m) depth because standard topographic maps and nautical charts do not always depict such a line. The line of extreme high water, however, can be determined using visual cues (Cowardin et al. , 1979; Ritter et al. , 1996) and using site-specific tidal information and similar depth contours (e.g., 20 feet or 6.1 meters) found on maps and nautical charts to evaluate if their activities are taking place in or may affect designated critical habitat deeper than 20 feet (6.1 m) at extreme high water. Thus, Federal agencies can determine whether their proposed actions may affect critical habitat, and the public and other entities can discern where habitat critical to Southern Resident killer whales has been designated.

In our proposed rule, we estimated the total area and shoreline proposed for designation using readily available Geographic Information System (GIS) data depicting Washington shorezones (Berry et al. , 2000). These data are widely used by various state and Federal agencies in Puget Sound to locate and evaluate projects and activities in the nearshore zone. The GIS data approximate the line of ordinary high water, but do not include bathymetry, so we did not attempt to subtract the areas shallower than 20 feet (6.1 m), though areas shallower than 20 feet are not designated as critical habitat in this final rule. We have used the same dataset to make calculations supporting this final critical habitat designation.

Prior to issuing proposed critical habitat, we did make some modifications to the GIS data described above, notably, the exclusion of estuarine and freshwater areas upstream of river and creek mouths. In re-evaluating the nearshore areas proposed for critical habitat, we identified several small or shallow inlets, harbors, coves and bays, some with very narrow entrances, and obtained more detailed sighting information to assist with drawing a shoreline boundary for some areas. In most cases, the whales had not been sighted within the small water bodies (e.g., Drayton Harbor, Wescott Bay, Guthrie Cove, Tulalip Bay, Port Gardner/eastern side of Jetty Island, Chapman Cove, Big Fishtrap Inlet, Gull Harbor, Rocky Bay at the mouth of Rocky Creek, Taylor Bay, Mayo Cove, Horsehead Bay, Wollochet Bay, Mystery Bay, Eagle Harbor, Jarrell Cove and Sequim Bay), so we have further modified the GIS data to excise these areas, totaling approximately 15 square miles (39 sq. km), in the final designation. We did include several small harbors where we had reports of Southern Resident whales at the harbor entrances (e.g., Keystone Harbor, Gig Harbor).

Not designating waters shallower than 20 feet (6.1 m) (based on extreme high water) as critical habitat does not preclude consultation on activities that occur in these shallow nearshore areas. ESA section 7's requirement that Federal agencies ensure their actions aren't likely to adversely modify critical habitat applies equally to actions occurring outside as to actions occurring within designated critical habitat.

Comment 3: Many commenters argued for including Hood Canal (Canal) in the critical habitat designation. Commenters reported sightings of Southern Residents in the Canal, and asserted that until the 1980s Southern Residents regularly visited the Canal, making the Canal part of the home range of the species. These commenters felt we used too short of a time frame in our assessment and that a longer time frame of up to 20 years would result in the inclusion of Hood Canal in the designation. Others noted that transient killer whales use the Canal frequently, and, therefore, it should be designated critical habitat. Some commenters expressed concern that exclusion from designation would allow further development of the Canal, strip mining, industrial harbor pollution, continued sewer runoff into the Canal, and heavy commercial traffic, harming the Canal′s ecosystem, contributing to low oxygen levels, and further discouraging Southern Residents from using its waters. Many commenters felt that Hood Canal and its salmon populations should be a top concern for NMFS, predicting that with salmon recovery in the waterway, Southern Residents would return to seek out prey. These commenters felt strongly that protecting Southern Resident food sources, specifically salmon, was reason enough to designate Hood Canal critical habitat. All of these commenters believe Hood Canal is essential to the recovery of Southern Residents.

Response: Section 3(5)(A) of the ESA defines critical habitat as areas either occupied or not occupied by the species “at the time it is listed.” We relied on the best available information on killer whale distribution to develop the proposed critical habitat areas. The sighting data we received from the Whale Museum included sightings of Southern Residents from 1990-2003, which was the most reliable information in their long-term database. Whales were identified by pod when possible, and sightings of transients, northern residents, and offshore whales were not included in the Whale Museum data set. There were no sightings of Southern Resident killer whales reported in Hood Canal from 1990-2003. In addition to the sighting data, we received one report of a sound recording made in Hood Canal from 1995, which was confirmed as calls of Southern Residents. Based on the one recording, we did not consider Hood Canal as occupied by the species at the time of listing. Commenters compared the one occurrence of Southern Residents in Hood Canal in 1995 to the areas in South Puget Sound that also had small numbers of sightings. The Puget Sound sightings, however, were often more than one sighting, were more recent, and were contiguous with areas of greater numbers of sightings. In contrast, Hood Canal has a narrow entrance, and its waters are not adjacent to areas with regular sightings.

The information we received during the public comment period included three additional sightings of killer whales in Hood Canal with sufficient information (photos, sound recordings, detailed field notes) to confirm that they were Southern Residents. The sound recording was made in 1958, the photograph was taken in 1973, and the detailed account was from a sighting in 1977. In addition, there were many anecdotal accounts of groups of whales with larger group sizes than are typical for transient whales and may have been Southern Residents spanning the 1940's-1980's. In the past, we have considered opportunistic or historical information on a specicies' occupied habitat when current documentation is not available. However, for Southern Residents, we have a more recent sighting record from the Whale Museum. Even if we increased the time span under consideration to 20 years, it would not add any confirmed sightings of Southern Residents in Hood Canal at the time of listing. At this time, there are not sufficient data to consider Hood Canal as occupied at the time of listing.

The commenters also argued that if Hood Canal is not currently considered “occupied by the species,” it should still be designated as critical habitat because it contains the PCEs necessary for conservation (i.e., prey), and it is essential for conservation. Joint NMFS-U.S. Fish and Wildlife Service (FWS) regulations provide that we will designate unoccupied areas as critical habitat only upon a finding that the currently occupied habitat is inadequate for conservation (50 CFR 424.12(e)). At this time we lack sufficient information to determine that the currently occupied habitat is inadequate and that additional unoccupied habitat in Hood Canal is essential for conservation of the species. We will consider any new information indicating that the current occupied habitat is a limiting factor for recovery as more research is conducted.

We appreciate the efforts by the Hood Canal community to gather the historical information on killer whale use of the area. If, as some predict, the whales do return to Hood Canal in response to increasing populations of prey species, we will continue to work with the local community to gather information and reevaluate the importance of Hood Canal as Southern Resident habitat.

Comment 4: Several commenters urged us to designate areas as critical habitat for killer whales if they are essential for salmon conservation, based on a variety of theories. Some commenters pointed out that nearshore areas and/or freshwater areas that support salmon contain physical or biological features essential for conservation of killer whales (those features being salmon, or the features that support salmon). Some commenters urged us to consider nearshore areas, bays, and even freshwater areas as unoccupied areas “essential for conservation” of the whales - one stating that the statutory provision regarding “physical or biological features” applies to both occupied and unoccupied areas and another stating that there is no statutory requirement for unoccupied areas to contain physical or biological features. One commenter stated that because nearshore and offshore waters are connected, it is arbitrary to draw a line separating the two (that is, the line we proposed at the 20-foot (6.1 m) depth).

Response: The presence of salmon in densities and/or bathymetric conditions that make them available to killer whales appears to be the primary factor determining what areas the whales are likely to occupy. The fact that this essential feature is also present in areas the whales cannot occupy does not make those outside areas ″occupied″ in the statutory sense. Nor does the fact that those unoccupied areas may be essential to salmon make them essential to killer whale conservation. Joint NMFS-U.S. Fish and Wildlife Service (FWS) regulations provide that we will designate unoccupied areas as critical habitat only upon a finding that the currently occupied habitat is inadequate for conservation (50 CFR 424.12(e)). At this time we lack sufficient information to determine that the currently occupied habitat is inadequate and that additional unoccupied habitat is essential for conservation of the species. We will consider any new information indicating that the current occupied habitat is a limiting factor for recovery as more research is conducted.

No matter where the line is drawn to delineate a specific area, there will be activities occurring outside of the delineated area that may affect the features within the area. When prey items are a biological feature that moves freely in and out of the geographical area occupied by the species, it creates a situation in which there is a ″biological feature″ outside the occupied specific areas. This fact does not make line-drawing arbitrary because the statute requires us to designate as critical habitat specific areas occupied by the species that contain those physical and biological features essential to conservation and may require special management considerations or protection, or unoccupied areas essential to the conservation of the species. Here we have chosen a reasonable line on a map (as our regulations require) to clearly identify “specific areas within the geographical area occupied by the species.” Moreover, section 7's requirement that Federal agencies ensure their actions are not likely to adversely modify critical habitat apply equally to actions occurring outside and within designated critical habitat. We have identified a depth contour of 20 feet (6.1 m) based on extreme high water for the final critical habitat. We believe this is a reasonable way to delineate a “specific area within the geographical area occupied by the species.”

Comment 5: Many commenters requested that we include the offshore waters of Washington, Oregon, and California in the critical habitat designation. One commenter recommended we begin our designation at a reasonable depth and extend it to five miles (8.0 km) offshore to adequately protect waters used by Southern Residents. Many comments specifically requested that the Olympic Coast National Marine Sanctuary be included in the critical habitat designation. Most felt there was sufficient evidence to include offshore waters in the critical habitat designation at this time. Others encouraged us to conduct additional research on the winter coastal habitat of Southern Residents to gather information to support expansion of the critical habitat designation in the future.

Response: In the proposed rule, we identified the data gaps regarding distribution of Southern Residents in coastal and offshore waters and uncertainty regarding the important habitat features of these areas. At this time, we do not feel there is sufficient data to identify the specific areas in offshore waters in which the essential habitat features are found. This concern applies equally to the Olympic Coast National Marine Sanctuary and to other offshore areas. There is an active research program underway to gather information and fill in these data gaps, and we will consider any new information on coastal and offshore habitats that becomes available.

Comment 6: We received a number of comments on the threats to the Southern Resident killer whales and suggestions for management actions that could be taken. These included: concerns regarding fisheries management to ensure sufficient prey for the whales; high pollution levels in Puget Sound and the sewage dumping practices of particular areas; stress from whale watching and other vessels; and potential effects from research practices and oil spills.

Response: For each of the specific areas proposed for critical habitat designation, we identified the PCEs and their special management considerations, which generally are the same concerns as those expressed by commenters. We will also consider the comments pertaining to specific threats to the whales and their habitat and potential management actions in developing a recovery plan for Southern Resident killer whales.

Comment 7: One commenter requested at least a partial list of the type of projects that would likely require ESA section 7 consultation to assist agencies and project sponsors.

Another commenter suggested that Federal hydropower projects should also be considered because of their potential to affect abundance of killer whale prey. Several commenters encouraged us to explore a Federal nexus under section 7 that would allow us to address vessels in Puget Sound.

Response: We provided a list of activities that may be affected by this designation, including, but not limited to, fishery management practices, vessel traffic, dredging and disposal, sub-marine cable/pipline installation and repair, oil and gas exploration, pollutant discharge, and oil spill prevention and response. If hydropower actions can be shown to significantly reduce the abundance of salmon available to the whales in designated critical habitat, they could adversely modify that habitat. As noted in response to Comment 8 below, most hydropower operations in the range of salmon and steelhead are already subject to modifications to protect listed salmon and steelhead. We will work with the Coast Guard and other agencies that oversee vessel activities to explore actions regarding vessels that may require section 7 consultation under the ESA.

Comment 8: We received several comments requesting that we include additional quantified estimates of economic impacts of designating critical habitat for Southern Resident killer whales in the economics report. One commenter objected to the focus of the economic analysis on potential impacts to fisheries. One commenter suggested Federal hydropower projects be considered under section 7 of the ESA and economic impacts of those consultations be considered in the economic analysis. Other commenters requested inclusion of costs associated with water quality and stormwater management and noise-producing activities, such as construction. Another suggested that information about economic costs associated with climate change be included.

Response: The range of economic costs estimated for critical habitat designation was related to possible reductions in harvest of prey species. While the economic analysis may appear to focus on potential impacts to fisheries, the economic report addresses other impacts such as those to water quality which could not be quantified. The inability to quantify these costs does not reduce their relative importance. In the ESA section 4(b)(2) report, we acknowledge that there are also additional costs associated with prey in addition to harvest, though we could not attribute these costs to the designation of critical habitat for Southern Resident killer whales. In designating critical habitat for the Puget Sound Chinook ESU, there were over $70,000,000 of economic impacts identified for the designated areas. Examples of other programs affecting salmon habitat include Shared Strategy for salmon recovery and Puget Sound Action Team and Puget Sound Partnership efforts to improve conditions in Puget Sound, which may cost hundreds of millions of dollars.

In the case of hydroelectric projects, particularly the Federal projects the commenter identified, many hydroelectric project modifications to protect salmon and steelhead are already required to protect ESA-listed salmon or steelhead. Along the entire West Coast, nearly all salmon-bearing streams are home to listed salmon and steelhead (only coastal streams in Western Washington contain no listed salmon or steelhead). To the extent there is a Federal nexus on hydropower operations affecting these listed salmon and steelhead, the Federal agency involved must ensure its actions aren′t likely to jeopardize the listed salmonids or adversely modify their critical habitat. As a result, hydropower operations that might affect the abundance of killer whale prey (including those in the Columbia River basin) are already modified to protect salmon and their critical habitat. It would be inappropriate to attribute the cost of modifications to killer whale critical habitat designation when they are already required to protect salmon and steelhead; however, if additional project modifications are required to prevent reductions of prey abundance for Southern Resident killer whales in designated critical habitat, these impacts would be attributable to this designation.

Regarding water quality, we lack sufficient information at this time to determine which contaminants are likely to be the focus of future ESA section 7 consultations and what threshold levels are appropriate to protect Southern Residents. Until we have better information about the number and type of section 7 consultations on water quality management, and the extent of changes that may be required as a result of those consultations, it would be speculative to try to estimate associated costs. We do not have a consultation history for killer whales that would provide information on changes that might be required in water quality management to protect killer whale habitat from adverse modification. Nor do we have information that would allow us to estimate with any confidence what those changes might be. One commenter suggested that we rely on the consultation history of salmon to estimate economic costs for water quality management. However, there are different contaminants of concern for salmon, and, as noted above, costs associated with salmon consultations would not be appropriate to count twice. Impacts from Southern Resident critical habitat designation will likely come in areas different than those that stem from salmon protection and recovery.

There are likely to be significant costs associated with construction activities as a result of our listing of Southern Resident killer whales because these sound-producing activities have a direct effect on the whales, as described in our response to Comment 1. We have already conducted several ESA section 7 consultations on construction activities, and measures were included in the action to avoid direct impacts to the whales. Because we consider such sound to be an impact on the whales rather than on the whales′ habitat, however, we did not include the costs associated with these measures in our analysis of the economic impacts of designation.

At this time it would be too speculative to try to determine what management changes may be required for salmon and steelhead in response to climate change.

Comment 9: One commenter questioned the information in the economics report regarding stormwater outfalls, including the number of outfalls listed, and suggested we consider the contaminant levels for individual outfalls and sources rather than the number of outfalls or the agency responsible for managing the outfalls.

Response: We recognize that the quantity and quality of stormwater, not the number of outfalls, will determine what changes would need to be made, if any, as a result of critical habitat designation. We also recognize that outfalls without any Federal nexus will not be subject to an ESA section 7 consultation. We included the number of outfalls that might be subject to consultation in the draft economics report, where such numbers were available, to give the decision maker some context for considering the potential impact of critical habitat designation, as required by ESA section 4(b)(2). In light of this comment, we have removed the table from the economics report showing the number of outfalls.

Comment 10: Commenters suggested that additional information on the economic benefits of recovered Southern Resident and salmon populations be included in the report.

Response: While there may be studies that may provide some information relevant to estimating the benefits of recovered Southern Resident killer whale and salmon populations, there is insufficient information to estimate the incremental benefits (in addition to the current salmon recovery efforts) of critical habitat designation for Southern Residents on the status of Southern Resident and Pacific Northwest salmon populations.

Comment 11: One commenter objected to the inclusion of polycyclic aromatic hydrocarbons (PAH) as a contaminant of potential concern to Southern Resident killer whales in the economic report. The commenter acknowledged that PAHs are mentioned in the conservation plan, but that since they were not specifically addressed in the listing or biological report, like other contaminants such as polychlorinated biphenyls (PCB) and dichloro-diphenyl-trichloroethane ( DDT), they should therefore not be included in the economic analysis.

Response: While we concur with the commenter that PCBs and other contaminants pose a greater risk to Southern Residents than PAHs, PAHs are still a concern and we have modified the biological report to ensure it clearly reflects this concern. Exposure to PAHs can be chronic or acute in the case of an oil spill. Although there are few studies of PAH levels and effects in wild marine mammals and no studies linking PAHs to the decline in the Southern Residents, there are concerns regarding carcinogenic effects of high levels of PAHs in some marine mammals (e.g., beluga whales). PAHs were not specifically identified as a primary concern in the listing of Southern Residents, but their inclusion in the conservation plan and the economic report indicates that they may be a concern for Southern Residents. No specific costs were associated with inclusion of PAHs in the economic report.

Comment 12: Many commenters disagreed with the decision to exclude 18 military sites on the basis of national security. Commenters requested that we review and offer explanations for the exclusion of each facility on a case-by-case basis, balancing national security interests with those of Southern Residents. Reducing the size of exemptions, limiting the degree of the exemptions, or entering into an agreement with the Navy to address their activities were several of the recommendations of commenters. Many of the commenters expressed concern about non-military activities that occur in the exempt areas and whether they would be subject to critical habitat regulations. These commenters hoped we could find a way to protect Southern Residents from harmful, non-military activities in these zones. An additional concern for these commenters was the impact of military sonar. We received recommendations that the military increase its efforts to protect killer whales when conducting tests, using passive sonar to locate whales and avoid sonar usage when whales are in potentially harmful proximity to the military vessel.

Response: In an appendix to the ESA Section 4(b)(2) report, we provided detailed information on each of the military sites and summarized the national security concerns raised by the Department of Defense (DOD). We concluded that the national security impacts outweighed the benefits to the species. There is no mechanism in the ESA to exclude just the military and not other Federal agencies from the impacts of critical habitat designation. The exclusion of the military sites from critical habitat designation, however, does not mean that Federal actions in those areas are exempt from all consultation obligations under section 7 of the ESA. Federal agencies must ensure their actions do not jeopardize the continued existence of listed species - a requirement that applies regardless of whether specific areas are designated as critical habitat. We will continue to be concerned about activities that harm Southern Resident killer whales and their habitat, regardless of whether that habitat is designated. We expect that where critical habitat is designated, it will more precisely focus our analysis on how the action will alter the habitat and how that will affect the ability of the habitat to support species' conservation.

Regarding sonar use, the Navy has operating procedures in place to reduce the risk to marine mammals, and these are included in the Proposed Conservation Plan for Southern Resident Killer Whales (available at www.nwr.noaa.gov ). As stated above, the military exclusions from critical habitat designation do not affect the Navy's obligations under section 7 of the ESA to consult on Federal actions that may affect Southern Resident killer whales regardless of whether they occur in designated critical habitat.

Comment 13: We received several requests for additional exclusions based on impacts to national security. Commenters requested exclusions for refineries and ports in Puget Sound. Refinery operators requested exclusions because of their role in producing the petroleum products used by the U.S. military. These commenters felt that being subject to critical habitat consultations would limit the ability of refineries to efficiently provide oil to the military in a situation of national security. They also argued critical habitat designations would affect security, maintenance, operations and emergency preparedness at refineries. Those requesting national security exemptions for the ports located in Puget Sound argued that ports play an essential role in protecting the United States from terrorist threats because they are a primary entry and exit point. The commenters also argued there would be economic impacts to designating critical habitat in ports, making the ports less competitive. The commenters felt that, given that Southern Residents do not often use port waters, and many of the areas are already designated as critical habitat for Chinook salmon, an additional critical habitat designation would impact ports and not offer benefits to killer whales.

Response: We concluded that the national security benefits of exclusion outweighed the conservation benefits of designation for 18 military sites. The Navy and Army provided information on the direct and potentially substantial impacts to national security including preventing, restricting, or delaying training or testing exercises or access to sites; restricting, or delaying activities associated with vessel/facility maintenance and ordnance loading; and delaying response time for ship deployments and overall operations. The DOD did not identify any concerns regarding impacts to national security beyond those at their sites. National security is the primary mission for the military, and we considered the high priority placed on national security when weighing the benefits of exclusion against conservation benefits. Refineries and ports, however, are commercial operations, and the national security concerns associated with these sites are a part of their overall activities. We consider that designating critical habitat in these areas will provide some conservation benefit through ESA section 7 consultations on refinery and port actions that may impact habitat by affecting prey availability, contaminant levels, or passage. There was insufficient information to demonstrate that any national security benefits outweigh the conservation benefits.

Comment 14: We received one comment arguing that the agency must comply with the NEPA to inform the public and help ensure that critical habitat designations do not result in unintended environmental consequences.

Response: We believe that in Douglas County v. Babbitt , 48 F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996), the Ninth Circuit Court of Appeals correctly interpreted the relationship between NEPA and critical habitat designation under the ESA. The Court rejected the suggestion, identical to that raised by commenters, that irreconcilable statutory conflict or duplicative statutory procedures are the only exceptions to application of NEPA to Federal actions. The Court held that the legislative history of the ESA demonstrated that Congress intended to displace NEPA procedures with carefully crafted procedures specific to critical habitat designation. Further, the Douglas County Court held that the critical habitat mandate of the ESA conflicts with NEPA in that, although the Secretary may exclude areas from critical habitat designation if such exclusion would be more beneficial than harmful, the Secretary has no discretion to exclude areas from designation if such exclusion would result in extinction. The Court noted that the ESA also conflicts with NEPA's demand for impact analysis, in that the ESA dictates that the Secretary “shall” designate critical habitat for listed species based upon an evaluation of economic and other “relevant” impacts, which the Court interpreted as narrower than NEPA's directive. Finally, the Court, based upon a review of precedent from several circuits including the Fifth Circuit, held that an environmental impact statement is not required for actions that do not change the physical environment.

Comment 15: One commenter requested that we delay designation of critical habitat until clarification of outstanding legal issues, including litigation over the listing of the Southern Resident DPS and the definition of ″adverse modification″ of critical habitat, are resolved.

Response: Litigation is currently pending that challenges our listing of Southern Resident killer whales as endangered under the ESA [Washington State Farm Bureau and Building Industry Association of Washington v. NMFS]. Pending a decision on that challenge, the whales are listed, and the ESA requires that we designate critical habitat within one year of listing. Past court decisions on the agency′s regulatory definition of adverse modification have no effect on the statutory requirement to designate critical habitat.

Comment 16: We received a number of comments regarding the use of Canadian waters by Southern Residents. These commenters felt we should coordinate with Canada on our efforts for protecting Southern Residents and their habitat.

Response: We have some sighting data for Southern Residents in Canadian waters, and while our regulations limit us to designating critical habitat in areas under U.S. jurisdiction, we will continue to coordinate with Canada on both critical habitat designated in U. S. waters and recovery planning on both sides of the border.

Section 3 of the ESA defines critical habitat as “(i) the specific areas within the geographical area occupied by the species, at the time it is listed * * *, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed * * *, upon a determination by the Secretary that such areas are essential for the conservation of the species.” Section 3 of the ESA (16 U.S.C. 1532(3)) also defines the terms “conserve,” “conserving,” and “conservation” to mean: “to use, and the use of, all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.”

Section 4 of the ESA requires that, before designating critical habitat, we consider economic impacts, impacts on national security, and other relevant impacts of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of exclusion outweigh the benefits of designation, unless excluding an area from critical habitat will result in the extinction of the species concerned. Once critical habitat is designated, section 7(a)(2) of the ESA requires that each Federal agency, in consultation with us and with our assistance, ensure that any action it authorizes, funds, or carries out is not likely to result in the destruction or adverse modification of critical habitat.

Joint NMFS-FWS regulations for listing endangered and threatened species and designating critical habitat at 50 CFR 424.12(b) state that the agencies “shall consider those physical and biological features that are essential to the conservation of a given species and that may require special management considerations or protection (hereafter also referred to as “Essential Features' or “Primary Constituent Elements'/PCEs').” Pursuant to the regulations, such requirements include, but are not limited to, the following: (1) Space for individual and population growth, and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and generally, (5) habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species. These regulations state that we shall focus on essential features within the specific areas considered for designation. These features ″may include, but are not limited to, the following: spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, geological formation, vegetation type, tide, and specific soil types.”

Fish are the major dietary component of resident killer whales in the northeastern Pacific, with 22 species of fish and 1 species of squid (Gonatopsis borealis) known to be eaten (Scheffer and Slipp, 1948; Ford et al. , 1998; 2000; Ford and Ellis, 2005; Saulitis et al. , 2000). Observations from this region indicate that salmon are clearly preferred as prey (Ford et al. , 1998; Ford and Ellis, 2005) and are likely consumed in large amounts, as indicated by the estimates of total salmon consumed by the Southern Resident killer whale DPS. Sufficient prey abundance is necessary to support individual growth to reach sexual maturity and reproduction, including lactation and successful rearing of calves.

In addition to a sufficient biomass of prey species, the prey must not have amounts of contaminants that exceed levels that can cause mortality or reproductive failure in Southern Residents. Because of their long life span, position at the top of the food chain, and their blubber stores, killer whales accumulate high concentrations of contaminants. Organochlorines, such as PCBs and DDT, and many other chemical compounds including polychlorinated napthalenes, brominated flame retardants, PAHs, dioxins, furans, and heavy metals, are a concern because of their ability to induce immune suppression, reproductive impairment, or other physiological damage, as observed in several species of marine mammals (Albers and Loughlin, 2003; Boland et al. , 1998; Bergman et al. , 1992; De Guise et al. , 2003; Jepson et al. , 1999; Reijinders, 2003; Ross, 2002).

To move between important habitat areas, find prey, and fulfill other life history requirements, the Southern Resident killer whales require open waterways that are free from obstruction. In-water structures that block passage, for example, could affect Southern Resident killer whale movement.

Killer whale habitat use is dynamic, and specific breeding, calving, or resting areas have not been documented. Births occur largely from October to March, but may take place in any month (Olesiuk et al. , 1990), and, therefore, potentially in any part of the whales′ range. Southern Residents are highly mobile and can travel up to 100 miles (160 km) in a 24-hour period (Baird, 2000), allowing rapid movements between areas. These movements likely coincide with prey concentrations. Individual knowledge of productive feeding areas and other special habitats is probably important in the selection of locations visited and is likely a learned tradition passed from one generation to the next (Ford et al. , 1998).

Based on this natural history of the Southern Resident killer whales and their habitat needs, the physical or biological features of Southern Resident killer whale habitat are:

(1) Water quality to support growth and development;

(2) Prey species of sufficient quantity, quality and availability to support individual growth, reproduction and development, as well as overall population growth; and

(3) Passage conditions to allow for migration, resting, and foraging.

Photo-identification studies, tracking by boats, and opportunistic sightings have provided considerable information on the ranges and movements of Southern Resident killer whales since the early 1970s. Ranges are best known from late spring to early autumn (May-September), when survey effort is greatest. During this period, all three Southern Resident pods- J, K and L- are regularly present in the Georgia Basin (defined as the Georgia Strait, San Juan Islands, and Strait of Juan de Fuca) (Heimlich- Boran, 1988; Felleman et al. , 1991; Olson, 1998; Osborne, 1999).

While in inland waters during summer months, all of the pods concentrate their activity in Haro Strait, Boundary Pass, the southern Gulf Islands, the northeastern end of the Strait of Juan de Fuca, and several localities in southern Georgia Strait (Heimlich-Boran, 1988; Felleman et al. , 1991; Olson, 1998; Ford et al. , 2000). Pods commonly occur and are observed foraging in areas where salmon frequent, especially during the times of year salmon are migrating to their natal rivers (Heimlich-Boran, 1986, 1988; Nichol and Shackleton, 1996). Notable concentrations include Haro Strait and Boundary Passage, the southern tip of Vancouver Island, Swanson Channel off North Pender Island, and the mouth of the Fraser River delta, which is visited by all three pods in September and October (Felleman et al. , 1991; Ford et al. , 2000). These sites are major corridors for migrating salmon.

Individual pods are generally similar in their preferred areas of use (Olson, 1998), although some seasonal and temporal differences exist in areas used. All three pods typically arrive in May or June and spend most of their time in inland waters until departing in October or November. However, K and L pods make frequent trips lasting a few days to the outer coasts of Washington and southern Vancouver Island during this time period (Ford et al. , 2000). During early autumn, Southern Resident pods, especially J pod, routinely expand their movements into Puget Sound, probably to take advantage of chum and Chinook salmon runs (Osborne, 1999). Additional recent studies have identified finer scale pod differences in seasonal movement patterns and use of core areas (Hauser, 2006).

There are no confirmed sightings of Southern Resident killer whales inside Hood Canal in the 1990-2003 sighting database. On one occasion in 1995, acoustic recordings from Dabob Bay were identified as J pod vocalizations (Unger, 1997). Although additional historical sightings and recordings from the 1970s and earlier were provided during the comment period, we do not consider this sufficient evidence of presence to find Hood Canal ″within the geographical area occupied by the species at the time of listing.″ (Transient killer whales, in contrast, have been observed in Hood Canal on multiple occasions and have remained in Hood Canal for extended periods in the last several years.)

In the critical habitat proposed rule we did not consider extremely shallow waters of Puget Sound (less than 20 feet (6.1 m) deep relative to the extreme high water line) to be within the geographical area occupied by the species and requested information during the public comment period. The public and a scientific researcher provided accounts and photographs of Southern Resident killer whales using some shallow areas. The information received is not sufficient to consider all shallow areas as occupied. The final critical habitat designation is consistent with the proposed rule and does not include waters shallower than 20 feet (6.1 m) based on extreme high tide. Tidal fluctuations vary at locations throughout the critical habitat areas, but generally the shallow areas not included in the critical habitat designation are very shallow (5-10 feet (1.5-3 m)) in some tidal conditions and can even be exposed at very low tides. During some tidal conditions these areas are not accessible by the whales, and we do not have data indicating that these areas are frequently used by whales. We used this same shoreline data for the final rule, which is readily available from the Washington Department of Natural Resources, to display and calculate the critical habitat areas as we did in the proposed rule.

During the late fall, winter, and early spring, the ranges and movements of the Southern Residents are less well known. J pod continues to occur intermittently in the Georgia Basin and Puget Sound part of this time, but its location during apparent absences is uncertain (Osborne, 1999). One sighting of this pod was made off Cape Flattery, Washington, in March 2004 (Krahn et al. , 2004). Prior to 1999, K and L pods followed a general pattern in which they spent progressively smaller amounts of time in inland waters during October and November and departed them entirely by December of most years (Osborne, 1999). Sightings of both groups passing through the Strait of Juan de Fuca in late fall suggested that activity shifted to the outer coasts of Vancouver Island and Washington (Krahn et al. , 2002), although it is unclear if the whales spend a substantial portion of their time in this area or simply transit to other locations.

The final rule implementing Amendment 13 to the FMP (69 FR 22906, April 27, 2004) specified a process for the formation of sectors within the NE multispecies fishery and the allocation of total allowable catch (TAC) or days-at-sea (DAS) for specific NE multispecies, implemented restrictions that apply to all sectors, and authorized the first sector of the FMP (the GB Cod Hook Gear Sector). The final rule implementing FW 42 (71 FR 62156, October 23, 2006) creates the Fixed Gear Sector, the second approved sector of the FMP. Creation of the Fixed Gear Sector authorizes the Regional Administrator to allocate a GB cod TAC to the Fixed Gear Sector and exempt members from FMP restrictions on an annual basis.

In accordance with the regulations that specify the process of sector approval, and in anticipation of approval of the Fixed Gear Sector, the Fixed Gear Sector submitted an initial version of the Sector Operations Plan and EA to NMFS on February 1, 2006. A final version was submitted on September 18, 2006. According to these documents, the Fixed Gear Sector will be overseen by a Board of Directors and a Sector Manager. Consistent with Amendment 13, the cod TAC for the Fixed Gear Sector is based upon the number of participants and their historic landings of GB cod. In addition, participating vessels will be required to fish under their Amendment 13 DAS allocations to account for any incidental groundfish species that they may catch while fishing for GB cod. The GB cod TAC is a “hard” TAC, meaning that, once the TAC is reached, Fixed Gear Sector vessels may not fish under a DAS, possess or land GB cod or other regulated species managed under the FMP (regulated species), or use gear capable of catching groundfish (unless fishing under charter/party or recreational regulations) for the remainder of the fishing year.

Each Fixed Gear Sector member will be required to fish with jigs, demersal longline, handgear or gillnets; remain in the Fixed Gear Sector for the entire fishing year; and be confined to fishing in the Sector Area, which is that portion of the GB cod stock area north of 39o 00' N. lat. and east of 71o 40' W. long. Fixed Gear Sector members will be required to comply with all pertinent Federal fishing regulations, unless specifically exempted by a Letter of Authorization (LOA), and with the provisions of the approved Operations Plan. Fixed Gear Sector members will be exempted from the GB cod possession limits, the requirements of the GOM cod trip limit exemption program, and the GB Seasonal Closure Area (when fishing with hook gear).

On August 22, 2006, a proposed rule was published in the Federal Register (71 FR 48903) that requested comments on the Operations Plan and EA. The proposed rule announced that the Operations Plan proposed a geographic area for the Fixed Gear Sector that was different from the Sector Area proposed in FW 42 and specifically solicited comments on the larger area proposed in the Operations Plan. The comment period closed on September 21, 2006.

Two Fixed Gear Sector members have signed the 2006 Sector Contract. The GB cod TAC calculation is based upon the historic cod landings of the participating Fixed Gear Sector vessels, using all gear. The allocation percentage is calculated by dividing the sum of total landings of GB cod by Fixed Gear Sector members for FY 1996 through 2001, by the sum of the total accumulated landings of GB cod harvested by all NE multispecies vessels for the same time period (2,240,110 lb (1,016.1 mt)/ 113,278,842 lb (51,382.4 mt)). The resulting number is 1.98 percent. Based upon the two prospective Fixed Gear Sector members, the Fixed Gear Sector TAC of GB cod will be 121 mt (1.98 percent of the U.S. portion of the fishery-wide GB cod target TAC of 6,132 mt).

The proposed rule for FW 42 specified the same geographic area for the Fixed Gear Sector (i.e., the Sector Area) as the area that was implemented in the Amendment 13 final rule for the GB Cod Hook Gear Sector. Conversely, the Fixed Gear Sector's Operations Plan, Sector Agreement, and EA proposed a geographic area for the Fixed Gear Sector that was substantially different from this Sector Area. The geographic area proposed in the Operations Plan and Sector Agreement included the Sector Area, but extended it south to 35 00' N. lat. and west to the coast. The Operation's Plan for the Fixed Gear Sector states that Fixed Gear Sector participants should be allowed to fish in an area larger than the GB Cod Hook Sector area in order to pursue an offshore gillnet fishery for monkfish. Because the goal of the Fixed Gear Sector is similar to the GB Cod Hook Sector, i.e., to target cod and other NE multispecies, the rationale to expand the Sector Area for participants in the Fixed Gear Sector for the purpose of targeting monkfish is not consistent with the objectives of the FMP and is, therefore, not justified in this action. Furthermore, expansion of this area must be implemented through the existing FMP framework adjustment process.

Thirty-three comments were received on this action. In addition, 36 comments sent in response to the proposed rule for FW 42, and which directly addressed the Operations Plan, were also considered for this action. Combined, 58 separate entities commented on the Operations Plan (some entities submitted separate comments to both proposed rules). Only comments received before the deadline were considered.

Comment letters were received from Associated Fisheries of Maine, the Maine Department of Marine Resources; the Cape Cod Commercial Hook Fishermen's Association; the GB Cod Hook Sector; the Fixed Gear Sector; the Portland Fish Exchange; the Boards of Selectmen of Orleans, Harwich, Brewster, Chatham, and Yarmouth, MA; Representative William Delahunt; Massachusetts State Senator Robert O'Leary; the Downeast Initiative; the Conservation Law Foundation; AJ Marine Hydraulic Equipment; Environmental Defense; the National Environmental Trust; one recreational fisherman; three industry members not associated with a sector; and 36 industry members associated with the two sectors.

Comment 1: One commenter did not specifically address either the Operations Plan or EA, but opposed any expansion of commercial fishing and asserted that a portion of GB should be reserved for recreational fishermen.

Response: Amendment 13 to the FMP established the process by which a group of individuals may form a sector. One of the requirements of this procedure is that all of the participating vessels are limited access NE multispecies permit holders. Reserving a portion of GB or any associated fish species as a sector is not a viable option under current regulations, nor is there any other mechanism by which a portion of the NE multispecies fishery or associated fishing area can be reserved for recreational fishers, since recreational fishers do not have a limited access NE Multispecies permit specific for their fishery.

Comment 2: Fifty-one commenters supported the Fixed Gear Sector and approval of the Operations Plan. Generally, the commenters supported the idea of a sector because they felt it could help to reduce fishing waste, involve communities in management, and allow for greater responsibility and accountability in the fishing industry.

Response: NMFS agrees and has approved the Fixed Gear Sector's Operations Plan.

Comment 3: Two commenters specified that the Fixed Gear Sector should be allowed access only to the GB Cod Hook Gear Sector Area, and two commenters believed that the expanded geographic area proposed in the Sector Operations Plan should be vetted by the Council prior to approval. Twenty-five comments were received on the proposed rule for FW 42, requesting that NMFS modify the Sector Area to reflect the larger area proposed by the Sector's Operations Plan to facilitate pursuit of an offshore monkfish fishery. A further 19 comments supported the expanded Sector Area proposed in the Operations Plan to direct effort away from the Gulf of Maine. Eight of the 19 comments specified that the expanded Sector Area proposed would allow the Fixed Gear Sector to maintain a traditional winter fishery focused on offshore monkfish while accounting for GB cod bycatch.

Response: Because the goal of the Fixed Gear Sector is similar to the GB Cod Hook Gear Sector, i.e., to target cod and other NE multispecies, the rationale to expand the Sector Area for participants in the Fixed Gear Sector for the purpose of targeting monkfish is not consistent with the objectives of the FMP, and is, therefore, not justified. Furthermore, changing the geographic area of a sector needs to be considered by the New England Fishery Management Council (Council) and must be implemented through rulemaking under the framework adjustment process in the FMP. For these reasons, NMFS has disapproved expansion of the Sector Area for the Fixed Gear Sector.

Comment 4: Six commenters believe that the Fixed Gear Sector should be required to have TACs for all species. One noted that input controls could have been proposed in lieu of TACs for all species. Two commenters also expressed concern that the Fixed Gear Sector will reduce the effectiveness of the net cap on pollock and monkfish. Two commenters expressed concern that the Fixed Gear Sector could cause redirected effort and impact other portions of the industry.

Response: The assertion that a sector should be governed by a TAC for each species has previously been considered in the context of the GB Cod Hook Gear Sector. Because the Fixed Gear Sector would continue to be bound by both species-specific possession limits and DAS effort controls, TACs are unnecessary for each species. A TAC is issued for GB cod in lieu of possession limits. The comment suggesting that input controls could have been proposed in lieu of TACs is without merit because the Fixed Gear Sector has proposed input controls in the form of DAS and gear restrictions. Similarly, concerns regarding pollock and monkfish caps, and the potential for redirected effort are unfounded because the Fixed Gear Sector will continue to be bound by DAS and possession limits for all other species. Additionally, the Fixed Gear Sector may not fish under a DAS, possess or land GB cod or other regulated species managed under the FMP, or use gear capable of catching groundfish (unless fishing under recreational or charter/party regulations) once the Sector's cod TAC is reached.

Comment 5: One commenter believes that the TAC monitoring protocol proposed in the Sector's Operations Plan is insufficient to ensure timely monitoring of monthly quotas and suggested that daily Vessel Monitoring System (VMS) reporting, standard for other parts of the industry, would be more effective than Vessel Trip Reports (VTRs) submitted monthly to NMFS.

Response: The TAC monitoring system proposed by the Fixed Gear Sector is modeled after the system used by the GB Cod Hook Gear Sector. During 3 years of operations this system has been successful at managing both the cod TAC and monthly quota. Further, the Sector Manager is empowered to require an observer be present at offloading of all catch to enhance monitoring.

LOAs will be issued to members of the Fixed Gear Sector exempting them, conditional upon their compliance with the Sector Operations Plan, from the requirements of the GOM cod trip limit exemption program, the GB Seasonal Closure Area (when fishing with hook gear), and the GB cod possession limit restrictions, as specified in §§ 648.86(b)(4), 648.81(g), and 648.86(b)(1) and (2), respectively.

NMFS has determined that this final rule is consistent with the FMP and is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C 553(d)(3) to waive the 30-day delay in effectiveness. Formation of the Fixed Gear Sector is authorized by the final rule implementing FW 42, in accordance with procedures and requirements implemented by Amendment 13, and became effective on November 22, 2006 (71 FR 62156). Creation of the Fixed Gear Sector allows the Regional Administrator to allocate a GB cod TAC to the Fixed Gear Sector and exempt Fixed Gear Sector members from FMP restrictions on an annual basis. Therefore, this action could not be taken prior to the effective date of FW 42, November 22, 2006. FW 42 was scheduled to take effect on May 1, 2006, the beginning of the 2006 fishing year; however, final adoption of FW 42 by the Council was delayed for several months, which substantially hindered the ability of NMFS to implement the rule in the expected time frame. Under the Sector allocation provisions specified in 648.87(b)(1)(xii), vessels that fish under the DAS program outside the Sector allocation in a given fishing year may not participate in a Sector during the same fishing year. Thus, the two vessels that have agreed to participate in the Fixed Gear Sector have been prohibited from fishing in the groundfish DAS program since May 1, 2006, pending the creation of the Fixed Gear Sector. Each of the vessels that have agreed to participate in the Fixed Gear Sector possesses only two limited access permits: Lobster and groundfish. The lobster fishery, for which these vessels are permitted, is seasonal, with catches slowing during late fall and remaining low through the winter. Thus, while both of these vessels have been able to fish in the lobster fishery since May 1, 2006, the seasonality of that fishery means that they are more dependent on groundfish for their livelihood at this time of year.

Both vessels that have signed on to the Fixed Gear Sector are considered small vessels (<50 ft), which are more adversely impacted by weather conditions than other vessels. In addition, since these vessels are rigged for lobster and hook gear, they are what is referred to as “open” vessels (i.e., no shelter is available during fishing operations) and are exposed to the elements during fishing operations. In addition, the homeport of one vessel, Chatham, is notoriously dangerous to access, particularly during inclement weather. If they cannot begin to fish immediately, then they may effectively be deprived of the majority of the rest of the fishing season because of the likelihood of a great number of days of inclement weather.. At this point in the fishing year, there remain a limited number of groundfish days which will have weather in which these two vessels can safely travel to the Sector area on Georges Bank, and since they have already missed the bulk of the season, any further delay would deprive them of a meaningful chance to pursue their livelihood.

This final rule has been determined to be not significant for purposes of Executive Order (E.O.) 12866. This final rule does not contain policies with federalism or “takings” implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively. There are no Federal rules that duplicate, overlap, or conflict with this final rule.

An EA has been prepared for this final rule in compliance with the National Environmental Policy Act (NEPA). In addition, an EA was prepared for FW 42 to the FMP, which references the Fixed Gear Sector. Copies of both of these EAs may be obtained from the Regional Administrator (see ADDRESSES ).

NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), prepared this Final Regulatory Flexibility Analysis (FRFA) in support of the 2006 GB Fixed Gear Sector Operations Plan and allocation of GB cod TAC. The FRFA incorporates the economic impacts summarized in the Initial Regulatory Flexibility Analysis (IRFA) included in the proposed rule and the corresponding analysis in the EA prepared for this action. A summary of the IRFA was published in the proposed rule for this action and is not repeated here. A description of why this action was considered, along with the objectives of, and the legal basis for, this rule are contained in the preamble to the proposed rule and are not repeated here.

No comments pertaining to the IRFA or the economic impacts of the rule were received during the comment period for this action.

All vessels issued a limited access NE multispecies permit and allocated DAS are eligible to participate in the Fixed Gear Sector. Although the nearly 1,000 vessels issued a limited access NE multispecies permit and allocated DAS are eligible to participate in this Sector, it is expected that a substantially smaller number of vessels will actually participate in the Fixed Gear Sector. Due to delays in the review and approval of FW 42, to date, only two vessels have signed the 2006 Sector Contract. However, it is expected that approximately 23 vessels will participate in a proposed Fixed Gear Sector during FY 2007, based upon preliminary estimates.

The Small Business Administration (SBA) size standard for small commercial fishing entities is $4 million in gross sales, and the size standard for small charter/party operators is $6.5 million. Available data for FY 2004 gross sales show that the maximum gross sales for any single commercial fishing vessel was $1.8 million, and the maximum gross sales for any affected party/charter vessel was $1.0 million. While an entity may own multiple vessels, available data make it difficult to determine which vessels may be controlled by a single entity. For this reason, each vessel is treated as a single entity for purposes of size determination and impact assessment. This means that all commercial and charter/party fishing entities would fall under the SBA size standard for small entities and, therefore, there is no differential impact between large and small entities.

This rule contains no collection-of-information requirements subject to the Paperwork Reduction Act.

Two alternatives were considered regarding the 2006 Fixed Gear Sector Operations Plan and allocation of GB cod TAC: The no-action alternative and the proposed alternative. Under the no-action alternative, all Fixed Gear Sector vessels would remain in the common pool of vessels and be subject to all of the regulations implemented by Amendment 13 and subsequent adjustments to the FMP, and would not be allocated any portion of the GB cod target TAC. The proposed alternative implemented by this action, enables vessels to fish under the restrictions of the Operations Plan summarized above and allocates a portion of the GB cod target TAC to Fixed Gear Sector vessels.

Because cod usually represents a high proportion of total fishing income for gillnet and hookgear vessels, revenues for such vessel owners are very sensitive to changes in cod trip limits. As a result, the reduced number of available DAS and restrictive trip limits implemented by recent management actions such as FW 42 would result in revenue losses for Fixed Gear Sector vessels under the no-action alternative. In contrast, the 2006 Sector Operations Plan includes a number of provisions that would allow Fixed Gear Sector vessels to remain economically viable, minimize vessel expenses, and maximize consistent revenue streams throughout the fishing year compared to the no-action alternative, without compromising conservation objectives of the FMP. Such provisions include the establishment of a hard TAC for GB cod landed by Fixed Gear Sector vessels, the even distribution of the allocated GB cod TAC throughout the fishing year, the ability to pool available DAS among Fixed Gear Sector vessels, and exemption from the GB Seasonal Closure Area for hook gear vessels. By facilitating the continued supply of groundfish, the preferred alternative allows Fixed Gear Sector vessels to maximize revenues from available fishing opportunities and, therefore, minimizes adverse economic impacts on small entities compared to the no-action alternative.

On June 16, 2006, an emergency rule implemented an observer service provider certification program that enabled NOAA Fisheries Service to reactivate the Scallop FMP's observer set-aside program. The emergency rule was necessary to resolve an issue with the observer program that rendered the Scallop FMP's observer set-aside program inoperable. Further, the Northeast Fisheries Science Center's (NEFSC's) FY 2006 level of funding for the observer program provided for only minimal coverage in the scallop fishery, and that is not expected to change in FY 2007. Additional background relative to the need for the action is included in the June 16, 2006, emergency rule, and is not repeated here.

The emergency rule established a program that allows observer service providers to be certified by NOAA Fisheries Service to deploy observers on scallop vessels. Certified observer service providers are required to meet specified criteria in order to remain certified under the emergency rule. In addition, vessel owners are required to procure observers from an approved observer service provider and must pay for the observer. To help defray the costs of the observer, vessel owners are provided either additional scallop catch allowances when fishing in the Scallop Access Areas or additional fishing Days-at-Sea (DAS) when fishing in open areas. The Area Access Program specifies a portion of the total projected scallop catch from each area as a set-aside to cover the observer costs, and vessels that carry observers are authorized to land additional scallops on such trips. These additional scallops are deducted from the access area set-aside for observers. An additional set-aside of DAS operates similarly to cover the observer costs for vessels fishing in open areas. Once the set-asides are exhausted, vessel owners are no longer allocated any set asides to offset the costs of observer coverage, but they are still required to pay for the cost of observers, as specified in the scallop regulations at § 648.53(h)(1) and 648.60(d)(2).

The initial June 16, 2006, emergency rule expires on December 13, 2006, and is extended through June 11, 2007, by this action. Although there is less urgency for placing observers on scallop vessels in December through April, a lapse in coverage could compromise NOAA Fisheries Service's ability to gather complete fishing year data on the scallop fishery. In addition, turtles begin to move into the Mid-Atlantic in the spring, and observer coverage in the early spring months of April and May could help document potential interactions. Finally, a very high amount of scallop fishing effort is expected to occur in the Elephant Trunk Access Area (ETAA), a Mid-Atlantic Scallop Access Area, which will open to scallop fishing on January 1, 2007. Observer coverage in that area upon opening will help document fishing activity, scallop catch, and bycatch.

The justification for the extension of the emergency rule remains consistent with the Policy Guidelines for the Use of Emergency Rules (August 21, 1997, 62 FR 44422) because the continued NEFSC funding situation presents previously unforeseen circumstances that also present serious management problems to the fishery. The NEFSC does not expect that funding for the observer program will increase for 2007. Continued observer coverage in the scallop fishery is critical to document fishing activity, bycatch, and interactions with sea turtles throughout the fishing year.

This emergency action re-activates the industry-funded scallop observer program. Scallop vessels are required to procure observer coverage from a NMFS-approved observer service provider and to pay for the observer coverage. This emergency rule establishes criteria for being approved by NMFS as an observer service provider for the scallop fishery. Entities interested in being included on the list of NMFS-approved observer service providers are required to submit an application with the information specified in the regulatory text of this rule. Upon receipt of an application, NMFS shall provide all potential observer service providers with an estimated number of observer sea days for this fishing year under this program. Additionally, a planned schedule of observer deployments shall be posted on this NOAA website http://www.nefsc.noaa.gov/femad/fsb/ . NMFS will notify candidate observer service providers of their approval or disapproval within 15 days of NMFS's receipt of the application. This emergency rule specifies observer service provider requirements, as well as observer requirements and responsibilities to become certified as an observer for the scallop fishery.

The scallop observer set-aside will provide scallop vessel owners with compensation for observer coverage up to a specified limit, as specified in the regulations for the scallop fishery. Once the set-aside is exhausted, vessel owners will no longer be compensated for coverage but will still have to pay for the cost of observers, as specified at §§ 648.53(h)(1) and 648.60(d)(2).

Comment 1: An environmental organization commented that NMFS must have tight control over the observer providers under the emergency action in order to ensure that appropriate quality control and accountability is built into the observer service provider program. The commenter suggests that NMFS must establish a contractual agreement with the provider.

Response: NMFS recognizes the need to establish necessary and tight controls over the observer service providers. However, the execution of a contractual agreement between NMFS and the observer provider was determined to be inconsistent, at this time, with augmentation of appropriations law and policy. However, NMFS believes that the requirements that are imposed on observer providers in order for them to remain certified allow NMFS to maintain sufficient quality and accountability of the observer providers. If the restrictive requirements are not met, the observer service provider risks decertification.

Comment 2: An environmental organization commented that only one observer service provider should be approved in order to avoid inefficiencies and management challenges that could result from having multiple observer providers.

Response: To ensure fair and equitable opportunities to the public, in the absence of contracting authority for this type of service, NMFS determined that it could not limit the participation to one observer provider.

Comment 3: An environmental organization commented that NMFS needs to make sure that it uses a method for obtaining money from the commercial fishing industry that does not lead to overfishing, increased interaction with sea turtles, or equity issues among fishermen.

Response: It is not clear how the exchange of funds to pay for observers would influence overfishing, interactions with sea turtles, or equity issues. None of the funds exchanged under the program are handled by NMFS. The vessel's owner, or vessel manager pays the observer provider directly, based on a fee and payment mechanism established by the observer service provider. NMFS uses a random sampling design to assign observers to a vessel on a trip by trip and vessel by vessel basis. The random observer deployment ensures that bias is not built into observer coverage and helps provide equity across the fleet. Further, an observer would be restricted from deploying on the same vessel on a frequent basis in order to avoid sampling bias.

Comment 4: An industry representative commented that NMFS must ensure that adequate and careful observer protocols must be followed under the emergency rule to ensure that the observers provide accurate information on yellowtail flounder bycatch in the access areas, in particular to avoid premature closure of the access areas. The representative urged NMFS to consider and address methodological issues promptly and to work with the industry to resolve potential problems with inadequate observer coverage or inaccurate information.

Response: NMFS acknowledges these concerns and notes that the emergency rule requires observer providers to employ observers that are fully trained by the Northeast Fisheries Observer Program (NEFOP) and that follow observer protocols established by the NEFOP.

Comment 5: An industry representative commented that its organization hoped to be able to work with NMFS and the observer providers to work out practical issues that may arise from the program, such as billing logistics and affordability concerns related to catch rates and available set-aside.

Response: NMFS welcomes industry input on issues such as available set-aside and allocated compensation amounts. NMFS notes that in setting the scallop compensation amount, it must balance available set-aside with the cost of the observer and the amount of compensation that will enable a high number of trips to be observed and compensated. If the compensation amounts are set too high, the set-aside will run out sooner than if they are set lower. As a result, vessels would be required to carry observers and would not be compensated after the set-aside is exhausted. If the compensation is set too low, many scallop trips may not be able to recover enough funds to offset the observer costs. With respect to payment logistics, how vessels arrange payment for observers with the observer providers is between the vessel owner, vessel manager, or settlement house, and the observer provider. NMFS does not have any financial relationship with the observer provider for the purpose of deploying observers on scallop vessels and cannot therefore determine the mechanism for the exchange of funds.

NMFS determined that some of the section references within the June 16, 2006, emergency were incorrect. Corrections to the following references have been made in this extension:

In § 648.11, paragraph (g)(1), a reference to paragraph (g)(2) of that section is changed to (g)(3) of that section, and a reference to paragraph (g)(5) of that section is changed to (g)(4)(ii) of that section.

In § 648.11, paragraph (h)(3)(vi), a reference to paragraph (h)(2) of that section is revised to paragraph (h)(5) of that section.

In § 648.11, paragraph (h)(7)(ii), a reference to paragraph (h)(3) of that section is revised to paragraph (h)(6) of that section.

In § 648.11, paragraph (i)(5), a reference to paragraph (i)(3) of that section is revised to paragraphs (i)(1) through (3) of that section.

Because this rule merely extends the emergency action already in place, for which public comment was accepted and considered, NOAA finds it is impracticable and contrary to the public interest to provide any additional notice and opportunity for public comment under 5 U.S.C. 553(b)(B) prior to publishing the emergency rule. Waving prior notice and comment allows the observer service provider certification program to remain in place, thereby allowing the NOAA Fisheries Service observer program to provide uninterrupted observer coverage to the scallop fishery, which avoids any gaps in collecting data about this fishery. Continued observer coverage in the scallop fishery is critical to accurately and consistently document fishing activity, bycatch, and interactions with sea turtles throughout the fishing year. For these reasons, the need to extend these measures to assure that there is no lapse in observer coverage in the scallop fishery, also constitutes good cause under authority contained in 5 U.S.C. 553(d)(3), to waive the 30-day delayed effective date, and implement the emergency action upon publication.

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

This emergency rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment.

This rule contains new collection-of-information requirements approved under emergency Paperwork Reduction Act by the Office of management and Budget (OMB) under the paperwork Reduction Act (PRA). These new requirements apply to entities interested in becoming NMFS-approved observer service providers and to those observer service providers approved by NMFS and providing observer services to the scallop fishery. Public reporting burden for these collections of information are estimated to average as follows:

1. Application for approval of observer service provider, OMB control number 0648- 0546 (10 hr per response);

2. Applicant response to denial of application for approval of observer service provider, OMB control number 0648-0546 (10 hr per response);

3. Observer service provider request for observer training OMB # 0648-0546 (30 min per response);

4. Observer deployment report, OMB control number 0648-0546 (10 min per response);

5. Observer availability report, OMB control number 0648-0546 (10 min per response);

6. Safety refusal report, OMB control number 0648-0546 (30 min per response);

7. Submission of raw observer data, OMB control number 0648-0546 (5 min per response);

8. Observer debriefing, OMB control number 0648-0546 (2 hr per response);

9. Biological samples, OMB control number 0648-0546 (5 min per response);

10. Rebuttal of pending removal from list of approved observer service providers, OMB control number 0648-0546 (8 hr per response);

11. Vessel request to observer service provider for procurement of a certified observer, OMB control number 0648-0546 (25 min per response); and

12. Vessel request for waiver of observer coverage requirement, OMB control number 0648-0546 (5 min per response).

These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information.

Public comment is sought regarding whether this collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS and to OMB (see ADDRESSES ).

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

This Federal Register document is available on the Government Printing Office's website at: www.gpoaccess.gov/fr/index.html .

Background information and documents are available at the Pacific Fishery Management Council's (Pacific Council's) website at: www.pcouncil.org .

The Pacific Coast Groundfish FMP and its implementing regulations at Title 50 in the Code of Federal Regulations (CFR), part 660, subpart G, regulate fishing for over 80 species of groundfish off the coasts of Washington, Oregon, and California. Groundfish specifications and management measures are developed by the Pacific Council, and are implemented by NMFS. The specifications and management measures for 2005-2006 were codified in the CFR (50 CFR part 660, subpart G). They were published in the Federal Register as a proposed rule on September 21, 2004 (69 FR 56550), and as a final rule on December 23, 2004 (69 FR 77012). The final rule was subsequently amended on March 18, 2005 (70 FR 13118); March 30, 2005 (70 FR 16145); April 19, 2005 (70 FR 20304); May 3, 2005 (70 FR 22808); May 4, 2005 (70 FR 23040); May 5, 2005 (70 FR 23804); May 16, 2005 (70 FR 25789); May 19, 2005 (70 FR 28852); July 5, 2005 (70 FR 38596); August 22, 2005 (70 FR 48897); August 31, 2005 (70 FR 51682); October 5, 2005 (70 FR 58066); October 20, 2005 (70 FR 61063); October 24, 2005 (70 FR 61393); November 1, 2005 (70 FR 65861); and December 5, 2005 (70 FR 723850). Longer-term changes to the 2006 specifications and management measures were published in the Federal Register as a proposed rule on December 19, 2005 (70 FR 75115) and as a final rule on February 17, 2006 (71 FR 8489). The final rule was subsequently amended on March 27, 2006 (71 FR 10545), April 11, 2006 (71 FR 18227), April 26, 2006 (71 FR 24601), May 11, 2006 (71 FR 27408), May 22, 2006 (71 FR 29257), June 1, 2006 (71 FR 31104), July 3, 2006 (71 FR 37839), August 7, 2006 (71 FR 44590), August 22, 2006 (71 FR 48824), October 2, (71 FR 57889), October 3, 2006 (71 FR 58289), October 10, 2006 (71 FR 59505), and November 16, 2006 (71 FR 66693).

The changes to current groundfish management measures implemented by this action were recommended by the Pacific Council, in consultation with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, at its November 12-17, 2006, meeting in Del Mar, CA. At that meeting, the Pacific Council recommended: (1) requesting industry to take voluntary action to reduce petrale sole catches if catch rates appear too high in December; (2) decreasing the limited entry fixed gear and open access daily-trip-limit (DTL) fishery for sablefish south of 36° N. lat. beginning December 1; and (3) prohibiting retention of cabezon in the recreational fishery in federal waters off Oregon.

The 2006 estimated total catch of petrale sole is approaching its 2006 ABC/OY. The best available information as of November 11, 2006 estimates petrale sole catch to be 2,174 mt out of an ABC/OY of 2,762, meaning that there are approximately 588 mt remaining for the November-December fishing period (Period 6). There is little recent data to inform catch projections for Period 6 since the Period 6 petrale fishery has largely been closed in the last several years. Based on 2006 fishery information, however, NMFS believes that ongoing fisheries will not exceed the ABC/OY for several reasons: (1) anecdotal information indicates that petrale sole have not yet migrated to open petrale fishing areas; (2) winter weather is expected to remain poor in the near future, which should dampen fishing effort; (3) the Dungeness crab fishery is expected to open in December along much of the coast and many trawl vessels are expected to switch their focus to that more lucrative fishery when it opens; and (4) the Period 6 trawl fishery has a cumulative petrale sole limit in place for 2006 to control catch levels; when petrale sole was available in prior Period 6 fishing periods, there were not limits for this species. In spite of these issues, it is important to consider that: overfishing on petrale sole occurred last year; the fleet is capable of catching in excess of 1,000 mt of petrale sole during a single period (as it did in the winter of 2005); and there is little data to inform this year's Period 6 projections.

The Pacific Council considered several options available to control the catch of this species through the end of the year in the event that catch rates appear higher than a rate that would achieve 588 mt. These options included: (1) closing the petrale fishing areas in December; (2) using an inseason trigger mechanism to close the petrale sole fishing areas; and (3) soliciting voluntary action on the part of industry to reduce petrale sole catches.

The Council believed that either closing the petrale areas in December or implementing a trigger mechanism could be counter-productive, because, if fishers did not want to voluntarily forego the fishing opportunities, either measure would likely induce a race to fish before NMFS could implement a regulatory change. NMFS has asked industry to voluntarily reduce catches of petrale sole once before, in the summer of 2005, which resulted in an immediate 30-percent reduction of the petrale sole catch rate. The GMT believes that the risk of exceeding the ABC/OY without a regulatory action is low. However, if the catch rate appears too high, voluntary action on the part of industry is expected to be sufficient to keep catches within the ABC/OY. At the November 2006 Council meeting, several fish processors present pledged to reduce their petrale purchases for the November-December 2006 period, if necessary.

Therefore, the Pacific Council recommended and NMFS concurs that no regulatory action will be taken at this time, however NMFS will continue to monitor petrale catch closely and request industry to take voluntary action if catch rates appear too high.

Beginning on October 1, 2006, the Pacific Council recommended and NMFS implemented a closure of the open access sablefish DTL fishery north of 36° N. lat. and increased the open access sablefish DTL fishery trip limits south of 36° N. lat. from “350 lb per day, or 1 landing per week of up to 1,050 lb” to “500 lb per day, or 1 landing per week of up to 1,050 lb.” Catch rates for sablefish south of 36° N. lat. increased substantially after this trip limit increase, and industry has asserted that sablefish landings have been in excess of 3 mt per day in Morro Bay alone. The best available data as of November 11, 2006 estimates catch in this area to be 145 mt out of an OY of 271 mt. If current catch rates continue through the end of the year, it is likely the sablefish OY could be exceeded in this area. The Pacific Council considered ways to control the catch of sablefish and believes a combination of a daily trip limit reduction and the introduction of a monthly catch limit is the best approach to slowing the catch rate of sablefish in this area.

Therefore, the Pacific Council recommended and NMFS is implementing a decrease in the limited entry fixed gear and open access sablefish DTL fishery trip limits, and an introduction of a monthly catch limit, south of 36° N. lat. beginning December 1 from “500 lb per day, or 1 landing per week of up to 1,050 lb.” to “300 lb per day, or 1 landing per week of up to 1,050 lb not to exceed 3,000 lb per 1 month.”

In the Oregon recreational groundfish fishery, the Oregon Department of Fish and Wildlife (ODFW) manages cabezon, which is harvested primarily in state waters, under a state harvest limit. Oregon recreational catch estimates through July and projections from historical temporal catch patterns indicate that the Oregon state harvest limit for cabezon, which was 15.9 mt, has been reached. State harvest limits apply to landings by recreational ocean boats and do not include shore catch and discards. Effective September 22, 2006, Oregon prohibited cabezon retention in the recreational ocean and estuary boat fisheries. Shore fisheries, including shore-based diving, angling and spear fishing, were not affected by this closure. The most recent landings update, which includes data through September 3, 2006, confirmed that the management measure was appropriate; cabezon landings were 14.9 mt, or 94 percent of the harvest limit.

Therefore, in order to conform recreational management measures for Federal waters (3-200 nm) to management measures for Oregon state waters (0-3 nm), the Pacific Council recommended and NMFS is implementing a prohibition on the retention of cabezon by boat anglers in federal recreational regulations off Oregon.

These actions are taken under the authority of 50 CFR 660.370(c)and are exempt from review under Executive Order 12866.

These actions are authorized by the Pacific Coast groundfish FMP and its implementing regulations, and are based on the most recent data available. The aggregate data upon which these actions are based are available for public inspection at the Office of the Administrator, Northwest Region, NMFS, (see ADDRESSES ) during business hours.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable. The data upon which these recommendations were based was provided to the Pacific Council, and the Pacific Council made its recommendations at its November 12-17, 2006, meeting in Del Mar, CA. There was not sufficient time after that meeting to draft this notice and undergo proposed and final rulemaking before these actions need to be in effect. For the actions to be implemented in this notice, prior notice and opportunity for comment would be impracticable because affording the time necessary for prior notice and opportunity for public comment would impede the Agency's function of managing fisheries using the best available science to approach without exceeding the OYs for federally managed species. The adjustments to management measures in this document affect commercial and recreational groundfish fisheries. Changes to the limited entry fixed gear and open access sablefish DTL fishery south of 36° N. lat. must be implemented in a timely manner by December 1, 2006, to keep harvest of sablefish within the OY for this area. Changes to the recreational fishery must be implemented by December 1, 2006, in order to conform to existing state regulations and to keep recreational harvest within state harvest limits. Delaying any of these changes would keep management measures in place that are not based on the best available data, which could risk fisheries exceeding their OYs or harvest guideline. This would impair managing fisheries to stay within the OYs and harvest guidelines for the year.

For these reasons, good cause also exists to waive the 30 day delay in effectiveness requirement under 5 U.S.C. 553 (d)(3).