This rule has been determined to be “non-significant” for the purposes of Executive Order 12866 and therefore has not been reviewed by the Office of Management and Budget.

Also, pursuant to the requirement set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. Accordingly, AMS proposes this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. The action described herein is being taken for several reasons, including that additional user fee revenues are needed to cover the costs for: (1) Providing current program operations and services; (2) improving the timeliness in which inspection services are provided; and (3) improving the work environment.

AMS regularly reviews its user-fee financed programs to determine if the fees are adequate. The Fresh Products Branch (FPB) has and will continue to seek out cost saving opportunities and implement appropriate changes to reduce its costs. Such actions can provide alternatives to fee increases. FPB has reduced costs by approximately $2 million. However, even with these efforts, FPB's existing fee schedule will not generate sufficient revenue to cover program costs while maintaining the Agency mandated reserve balance. Revenue projections for FPB's destination market inspection work during FY-2006 are $15.3 million with costs projected at $20.4 million and an end-of-year reserve balance of approximately $12.7 million. However, this reserve balance is due in part, to appropriated funding received in October 2001, for infrastructure, workplace, and technological improvements. FPB's costs of operating the destination market program are expected to increase to approximately $21.6 million during FY-2007 and $22.5 million during FY-2008. Revenues are projected to be $15.3 million for end of the fiscal year. The reserve balance for FY-2007 and FY-2008, will fall below the Agency's mandated four-month reserve level. The reserve balance is projected to be approximately $6.5 million for FY-2007 (3.6 months) and approximately negative $600,000 for FY-2008 (−0.3 months).

This fee increase should result in an estimated average of $2.4 million in additional revenues per year (effective in FY-2007, if the fees were implemented by October 1, 2006). However, fees would not be increased until later in FY-2007. Further, as a result, the next fee increase is delayed until March 2008 instead of the start of FY-2008. These increases will not cover all of FPB's costs. FPB will need to continue to increase fees in order to cover the program's operating cost and maintain the required reserve balance. FPB believes that increasing fees incrementally is appropriate at this time. Additional fee increases beyond FY-2008 will be needed to sustain the program in the future. However, we will continue to reduce costs, wherever possible.

Employee salaries and benefits are major program costs that account for approximately 80 percent of FPB's total operating budget. A general and locality salary increase for Federal employees, ranging from 2.87 to 5.62 percent depending on locality, effective January 2006, has significantly increased program costs and will continue to increase costs at a similar rate in future years. This salary adjustment will increase FPB's costs by over $700,000 per year. Increases in health and life insurance premiums, along with workers compensation will also increase program costs. In addition, inflation also impacts FPB's non-salary costs. These factors have increased FPB's costs of operating this program by over $600,000 per year.

Additional funds are necessary in order for FPB to continue to cover the costs associated with additional staff and to maintain office space and equipment. Additional revenues are also necessary to improve the work environment by providing training and purchasing needed equipment. In addition, FPB began in 2001, developing (with appropriated funds) the Fresh Electronic Inspection Reporting/Resource System (FEIRS) to replace its manual paper and pen inspection reporting process. FEIRS was implemented in 2004. This system has been put in place to enhance and streamline FPB's fruit and vegetable inspection process, however additional revenue is required to maintain FEIRS. FPB has also begun to cover the costs associated with the Training and Development Center (TDC) in Fredericksburg, VA. A portion of the appropriated funds received in October 2001, were for infrastructure improvements including the development and maintenance of the inspector TDC. With appropriated funding now depleted, FPB is now obligated to support the TDC under revenues from the terminal market user fee inspection program.

This rule should increase user fee revenue generated under the destination market program by approximately 15 percent each fiscal year. This action is authorized under the Agricultural Marketing Act of 1946 (AMA of 1946) (See 7 U.S.C. 1622(h)), which provides that the Secretary of Agriculture may assess and collect “such fees as will be reasonable and as nearly as may be to cover the costs of services rendered * * *” There are more than 2,000 users of FPB's destination market grading services (including applicants who must meet import requirements  1 — inspections which amount to under 2.5 percent of all lot inspections performed). A small portion of these users are small entities under the criteria established by the Small Business Administration (13 CFR 121.201). There would be no additional reporting, recordkeeping, or other compliance requirements imposed upon small entities as a result of this rule. In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements in Part 51 have been approved previously by OMB and assigned OMB No. 0581-0125. FPB has not identified any other Federal rules which may duplicate, overlap or conflict with this proposed rule.

The destination market grading services are voluntary (except when required for imported commodities) and the fees charged to users of these services vary with usage. The impact on all businesses, including small entities, is very similar. However, except for those persons who are required to obtain inspections, most of these businesses are typically under no obligation to use these inspection services, and, therefore, any decision on their part to discontinue the use of the services should not prevent them from marketing their products. Further, even though fees will be raised, the increase is not excessive and should not significantly affect these entities.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule.

The AMA of 1946 authorizes official inspection, grading, and certification, on a user-fee basis, of fresh fruits, vegetables and other products such as raw nuts, Christmas trees and flowers. The AMA of 1946 provides that reasonable fees be collected from the users of the services to cover, as nearly as practicable, the cost of the services rendered. This rule would amend the schedule for fees and charges for inspection services rendered to the fresh fruit and vegetable industry to reflect the costs necessary to operate the program.

AMS regularly reviews its user-fee financed programs to determine if the fees are adequate. The Fresh Products Branch (FPB) has and will continue to seek out cost saving opportunities and implement appropriate changes to reduce its costs. Such actions can provide alternatives to fee increases. FPB has reduced costs by approximately $2 million. However, even with these efforts, FPB's existing fee schedule will not generate sufficient revenue to cover program costs while maintaining the Agency mandated reserve balance. Revenue projections for FPB's destination market inspection work during FY-2006 are $15.3 million with costs projected at $20.4 million and an end-of-year reserve balance of approximately $12.7 million. However, this reserve balance is due in part, to appropriated funding received in October 2001, for infrastructure, workplace, and technological improvements. FPB's costs of operating the destination market program are expected to increase to approximately $21.6 million during FY-2007 and $22.5 million during FY-2008. Revenues are projected to be $15.3 million for end of the fiscal year. The reserve balance for FY-2007 and FY-2008, will fall below the Agency's mandated four-month reserve level. The reserve balance is projected to be approximately $6.5 million for FY-2007 (3.6 months) and a negative $584,000 for FY-2008 (−0.3 months).

Employee salaries and benefits are major program costs that account for approximately 80 percent of FPB's total operating budget. A general and locality salary increase for Federal employees, ranging from 2.87 to 5.62 percent depending on locality, effective January 2006, has significantly increased program costs, and will continue to increase costs at a similar rate in future years. This salary adjustment will increase FPB's costs by over $700,000 per year. Increases in health and life insurance premiums, along with workers compensation will also increase program costs. In addition, inflation also impacts FPB's non-costs. These factors have increased FPB's costs of operating this program by over $600,000 per year.

Additional revenues are necessary in order for FPB to continue to cover the costs associated with additional staff and to maintain office space and equipment. Additional revenues are also necessary to continue to improve the work environment by providing training and purchasing needed equipment. In addition, FPB began in 2001, developing (with appropriated funds) an automated system known as FEIRS, to replace its manual paper and pen inspection reporting process. Approximately $10,000 in additional revenue per month will be needed to maintain the system. This system has been put in place to enhance FPB's fruit and vegetable inspection processes. FPB has also begun to cover the costs associated with the TDC in Fredericksburg, VA. A portion of the appropriated funds received in October 2001, were for infrastructure improvements including the development and maintenance of the inspector TDC. With appropriated funding now depleted, FPB is now obligated to support the TDC under revenues from the terminal market user fee inspection program.

Based on the aforementioned analysis of this program's increasing costs, AMS will increase the fees for destination market inspection services. The following table compares current fees and charges with the proposed fees and charges for fresh fruit and vegetable inspection as found in 7 CFR 51.38. Unless otherwise provided for by regulation or written agreement between the applicant and the Administrator, the changes in the schedule of fees as found in § 51.38 are:

A notice of proposed rulemaking was published in the Federal Register on December 1, 2006, (71 FR 69497). FPB received one comment after the comment period closed.

As previously stated, because the FY-2007 fee increase in effect in the latter part of the fiscal year, AMS is changing the effective date of the FY-2008 fee increase to March 1, 2008, to provide a sufficient amount of time between the two fee increases. Finally, the regulatory text in the proposed section 51.38(e) is corrected to reflect separate fees for overtime and holiday note that appeared in the supplementary information section of the proposed rule.

On May 30, 2007, USCIS published the final rule, effective July 30, 2007, “Adjustment of the Immigration and Naturalization Benefit Application and Petition Fee Schedule,” amending 8 CFR part 103 to prescribe new fees to fund the cost of processing applications and petitions for immigration and naturalization benefits and services, and USCIS’ associated operating costs pursuant to section 286(m) of the Immigration and Nationality Act (INA), 8 U.S.C. 1356(m). 72 FR 29851. That rule provides that applications that are submitted to USCIS with the incorrect fee will be rejected. For the reasons described below, USCIS, through this rule, is amending the fees again on a temporary basis for certain applications. This rule will become effective immediately after the final fee rule published on May 30, 2007, and makes only temporary modifications to that rule to respond to the events described below. The rule provides limited relief for specific applicants from the final fee rule published on May 30, 2007. The effect of this rule is limited to those applications filed before August 18, 2007. For applications filed on or after August 18, 2007, the fees set forth in the final rule published on May 30, 2007, will be required. USCIS will remove this regulation by another rule to be published in Federal Register on or about August 17, 2007, to be effective August 18, 2007.

The INA establishes formulas and numerical limits for regulating persons immigrating to the United States for permanent residence, to include defining the employment-based immigrant visa classifications. INA sec. 201 et seq. , 8 U.S.C. 1151 et seq. The INA provides an annual world-wide numerical limit on the number of aliens who may immigrate to the United States, as well as an annual per-country numerical limit on the number of aliens who may emigrate from a particular country. INA sections 201(d) and 202(a)(2), 8 U.S.C. 1151(d) and 1152(a)(2). In addition, the INA allocates the total number of world-wide visas among five employment-based categories or preferences. INA sec. 203(b), 8 U.S.C. 1153(b). Taken together, the total number of visas, the country from which an alien emigrates, and the allocation of visas among the preference categories, determines whether a particular alien may immigrate to the United States at a certain date.

The Department of State (DOS) determines the availability of immigrant visa numbers. See INA sections 203(e) and (g), 8 U.S.C. 1153(e) and (g). DOS also controls individual allocation of employment-based immigrant visas. 22 CFR 42.32. DOS publishes a “Visa Bulletin” each month which summarizes the availability of immigrant visa numbers.

The INA provides that the Secretary of Homeland Security may approve an application to adjust status if an immigrant visa is immediately available at the time the application is filed. See INA sec. 245(a)(3), 8 U.S.C. 1255(a)(3). Pursuant to Department of Homeland Security regulations, an immigrant visa is considered available, and an adjustment of status application can be filed and processed, if the applicant has a priority date earlier than the date shown in the current DOS Visa Bulletin. 8 CFR 245.1(g)(1).

On June 12, 2007, DOS published July Visa Bulletin No. 107. This Visa Bulletin indicated that all visas were current and immediately available for most employment-based categories. On July 2, 2007, DOS published Visa Bulletin No. 108, announcing that there would be no further visa number authorizations for employment-based applications. USCIS announced on that day that it would not accept any additional employment-based adjustment of status applications.

After consulting with USCIS, DOS advised USCIS that July Visa Bulletin No. 107 should be relied upon for purposes of determining whether employment-based immigrant visa numbers are currently available. DOS has withdrawn Visa Bulletin No. 108. Consequently, USCIS announced that, beginning July 17, 2007, and ending at the close of business on August 17, 2007, it will accept employment-based Forms I-485 filed by aliens whose priority dates are current under Visa Bulletin No. 107. See “ USCIS Announces Revised Processing Procedures for Adjustment of Status Applications ” at http://www.uscis.gov/files/pressrelease/VisaBulletinUpdate17Jul07.pdf. Visa Bulletin No. 107 is available at the DOS Web site at http://travel.state.gov/visa/frvi/bulletin/bulletin_3258.html or may be obtained by calling the Information contact listed in this rule. Applicable derivative benefit applications are Form I-765, “Application for Employment Authorization,” and Form I-131, “Application for Travel Document,” eligibility for which are based on the Form I-485 filing.

Because of the mid-month change to the Visa Bulletin, USCIS has determined that aliens in employment-based categories filing applications pursuant to Visa Bulletin No. 107 should not be required to pay filing fees based on the fee schedule that becomes effective July 30, 2007. Therefore, as a result of this rule, aliens who file an employment-based Form I-485 and any related Forms I-765 and I-131, pursuant to Visa Bulletin No. 107, through August 17, 2007, must include the filing fees in effect prior to July 30, 2007. The new fee schedule becomes effective on July 30, 2007, for all other immigration and naturalization applications and petitions and on August 18, 2007, for Forms I-485 filed pursuant to Visa Bulletin No. 107 and to all subsequent or “renewal” applications for advance parole and employment authorization based on pending Forms I-485 filed pursuant to Visa Bulletin No. 107.

This rule does not affect the increase in fees, pursuant to the final fee schedule, set to take effect on July 30, 2007, for Form I-140, “Immigrant Petition for Alien Worker.” Therefore, aliens who file Form I-140 concurrently with Form I-485 based on Visa Bulletin No. 107 between July 30, 2007, and August 17, 2007, must provide the post-July 30, 2007, fee for the Form I-140 and the pre-July 30, 2007, fee for Form I-485. See 8 CFR 245.2(a)(2)(i)(C) (concurrent filing provisions). The current fee for Form I-485 is $325. Therefore, under this rule, the application fee for an employment-based Form I-485 filed between July 17 and August 17, 2007, pursuant to Visa Bulletin No. 107 is $325. In another rulemaking to be published on or about August 17, 2007, USCIS will separately terminate the effect of this rule, as of August 18, 2007 the fees will be as prescribed by the final rule of May 30, 2007, or $930 for Form I-485.

Similarly, this rule amends the effective date of the increase in the Biometric Services Fee that must accompany Forms I-485 or Forms I-131 or I-765 that are based on a pending I-485, submitted pursuant to Visa Bulletin No. 107 between July 30, 2007 and August 17, 2007. As of July 30, 2007, the fee for biometric services is $80 for all other benefits for which biometrics must be provided.

This rule also provides that applicants filing Forms I-131 and I-765 in conjunction with a pending employment-based Form I-485 submitted pursuant to Visa Bulletin No, 107, must include the pre-July 30, 2007, fees for these applications with their filings: $170 for Form I-131 and $180 for Form I-765. Moreover, all Forms I-131 or I-765 filed as of August 18, 2007, while adjudication of their Forms I-485 is pending must be accompanied by the new application fee. USCIS will not charge a fee for all other Forms I-131 and I-765 when either is filed by an applicant who has paid the new Form I-485 application fee because the new fee schedule “bundles” the fees for current and subsequent Forms I-131 and I-765 filed while the applicant awaits adjudication of Form I-485.

This rule relates to internal agency management, procedure, and practice and is temporary in nature. 5 U.S.C. 553(b)(A). This rule does not alter substantive criteria by which USCIS will approve or deny applications or determine eligibility for any immigration benefit, but relieves certain requirements for a definite period of time for specific applications. As a result, DHS is not required to provide the public with notice of a proposed rule and the opportunity to submit comments on the subject matter of this rule. DHS finds that good cause exists for adopting this final rule, without prior notice and public comment because the urgency of adopting this rule make prior notice and comment impractical and contrary to the public interest. 5 U.S.C. 553(b)(B).

This rule relates to internal agency management, and, therefore, is exempt from the provisions of Executive Order Nos. 12630, 12988, 13045, 13132, 13175, 13211, and 13272. Further, this action is not a rule as defined by the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , and is therefore exempt from the provisions of that Act. In addition, this rule is not subject to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq. , Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. Ch. 17A, 25, or the E-Government Act of 2002, 44 U.S.C. 3501, note.

DHS finds that good cause exists for promulgating this rule without delaying the effective date of the rule because the rule relieves a requirement of existing regulations, must be adopted with an immediate effective date, and is temporary in nature. 5 U.S.C. 553(d)(1).

This rule does not affect any information collections, reporting or recordkeeping requirements under the Paperwork Reduction Act.

Background

The correction notice that is the subject of this document is under section 382 of the Internal Revenue Code.

As published, temporary regulations (TD 9330) contain an error that may prove to be misleading and is in need of clarification.

Accordingly, the publication of the temporary regulations (TD 9330), which was the subject of FR Doc. E7-11438, is corrected as follows:

On page 32794, column 1, in the preamble, under the paragraph heading “Special Analyses”, line 4, the language “Executive Order 12666. Therefore, a” is corrected to read “Executive Order 12866. Therefore, a”.

The temporary regulations that are the subject of this document are under section 382 of the Internal Revenue Code.

As published, temporary regulations (TD 9330) contain errors that may prove to be misleading and are in need of clarification.

On February 4, 1986, the IRS and Treasury Department published temporary regulations on section 125. The temporary regulations were published in the Federal Register (TD 8073; 51 FR 4318) as section 1.125-2T. A notice of proposed rulemaking issued under section 125 (REG-142695-05) and other guidance issued by the IRS and the Treasury Department under section 125 have made these temporary regulations obsolete. The temporary regulations are removed.

It has been determined that this removal of temporary regulations is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to this removal of temporary regulations. This removal of temporary regulations does not impose a collection of information on small entities, thus the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the preceding temporary regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of this removal of temporary regulations is Mireille Khoury, Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities). However, personnel from Treasury participated in its development.

On December 1, 2003, the State of Maryland submitted a formal SIP revision (#03-10) that clarifies Maryland's federally-approved general visible emissions (VE) regulations, including those related to specific source categories. The revised language will ensure that sources correctly interpret the exception provisions provided in those regulations. On April 26, 2005 (70 FR 21337), EPA published a direct final rule (DFR) approving revisions to Maryland's SIP pertaining to its VE regulations.

An explanation of the CAA's requirements and EPA's rationale for approving this SIP revision were provided in the DFR and will not be restated here. In accordance with direct final rulemaking procedures, on April 26, 2005 (70 FR 21387), EPA also published a companion notice of proposed rulemaking (NPR) for this SIP revision inviting interested parties to comment on the DFR. Timely adverse comments were submitted on EPA's April 26, 2005 DFR.

On June 27, 2005 (70 FR 36844), due to the receipt of adverse comments submitted in response to the DFR, EPA published a withdrawal of the DFR. A summary of those comments and EPA's responses are provided in Section II of this document.

Comment: EPA received the same comment on behalf of two commenters. The commenters state that the federal new source performance standards (NSPS) and national emission standards for hazardous air pollutants (NESHAPs) regulations allow exceedance of their respective opacity standards for up to three hours per occurrence during periods of startup, shutdown and repair. These federal regulations require the installation of continuous opacity monitors (COM). The commenters claim that air pollution control equipment on certain municipal waste combustion (MWC) sources cannot achieve the visible emissions exception requirements as stated in Maryland's clarified visible emissions rule due to the occasional formation of “condensed” plumes after emissions exit the stack, as a result of upset conditions that may occur during the operation of emission control devices used to reduce nitrogen oxides (NO X ) emissions. The commenters believe that Maryland's regulations regarding VE exceptions should be revised to be consistent with the existing federal NSPS and NESHAP regulations for MWCs.

Response: EPA understands that the VE requirements established in Maryland's regulations differ from those established in the NSPS and NESHAP regulations that currently apply to MWCs. States have frequently used VE limits as part of their efforts to attain the NAAQS. Under the CAA's bifurcated scheme, the State is responsible for choosing how a source must be regulated for purposes of attaining the NAAQS and EPA's role is limited in reviewing the State's choice to ensure it meets the minimum statutory requirements. Here, the commenter is not claiming that the regulations do not meet the statutory minimum, but rather that Maryland is seeking to require more than the minimum statutory requirements. The CAA is based upon “cooperative federalism,” which contemplates that each State will develop its own SIP, and that States retain a large degree of flexibility in choosing which sources to control and to what degree. EPA must approve a State's plan if it meets the “minimum requirements of the CAA. Union Elec. Co. v. EPA , 427 U.S. 246, 264-266 (1976).

EPA is approving revisions to the Maryland VE exception provisions as a revision to the Maryland SIP.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 1, 2007. 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 may be filed, and shall not postpone the effectiveness of such rule or action. This action to approve revisions to the Maryland regulations which clarify the visible emissions exception provisions may not be challenged later in proceedings to enforce its requirements may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document, “we,” “us” and “our” refer to EPA.

Table 1 lists the rules addressed by this proposal with the dates that they were adopted by local air agencies and submitted by the California Air Resources Board (CARB).

Throughout this document, “we,” “us” and “our” refer to EPA.

On October 17, 2006 (71 FR 60934), EPA proposed a limited approval and limited disapproval of the following rules that were submitted for incorporation into the Arizona SIP.

We proposed a limited approval because we determined that these rules improve the SIP and are largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because some rule provisions conflict with section 110 and part D of the Act. These provisions include the following:

1. The exemption of agricultural activities from fugitive dust rules without justification in Rules 4-2-020 and 4-2-030.

2. Expression of rule requirements in highly general terms, using the vaguely defined criterion of “reasonable precaution,” in Rules 4-2-030 and 4-2-040.

3. The absence of recordkeeping provisions in Rule 4-2-050.

Our proposed action contains more information on the basis for this rulemaking and on our evaluation of the submittal.

EPA's proposed action provided a 30-day public comment period. During this period, we received comments from the following parties.

1. Donald P. Gabrielson, Pinal County Air Quality Control District (PCAQCD); letter dated November 16, 2006 and received November 16, 2006.

2. Susan Asmus, National Association of Home Builders (NAHB); letter dated November 15, 2006 and received November 16, 2006.

The comments and our responses are summarized below.

Comment #1: PCAQCD commented that EPA's proposed rule incorrectly stated that there are no previous versions of Rules 4-2-020, 4-2-030, 4-2-040, and 4-2-050 in the SIP. The comment pointed out that EPA approved Pinal County Regulation 7-3-1.2 (Fugitive Dust) into the SIP on November 15, 1978 (43 FR 53034). Regulation 7-3-1.2 contains provisions similar to those in the submitted version of 4-2-040.

Response #1: EPA acknowledges that this correction to our proposed rule is accurate. However, this error does not have any substantive impact on our proposed action.

Comment #2: PCAQCD commented that the effective agricultural exemption in Rules 4-2-020 and 4-2-030 was removed in a subsequent amendment of these rules, adopted on January 24, 2003. However, these amended rules were not submitted as SIP elements.

Response #2: EPA acknowledges the 2003 amendments to Rules 4-2-020 and 4-2-030. However, we can only act on rules that have been submitted by the state as SIP amendments. As this comment indicates, the 2003 revisions were never submitted to EPA for inclusion in the SIP. If PCAQCD submits the 2003 version of these rules as a SIP amendment, our objection to the agricultural exemption will be resolved.

Comment #3: PCAQCD disagreed that the definition and use of “reasonable precaution” in Rules 4-2-030 and 4-2-040, respectively, is not sufficiently clear or enforceable. They commented that formulating specific requirements for every dust-generating activity would be impractical.

Response #3: In our General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 we explain that procedures for determining compliance with a rule must be “sufficiently specific and nonsubjective so that two independent entities applying the procedures would obtain the same result.” See 57 FR 13498, 13568 (April 16, 1992). A SIP must also include “clear, unambiguous, and measurable requirements” for ensuring that sources are in compliance with control measures (ibid).

These rules do not meet EPA's enforceability criteria because they do not establish any standards by which to gauge source compliance with implementation of reasonable precautions. Rules 4-2-030 and 4-2-040 allow Executive Officer discretion in determining when measures have “effectively prevented” the emission of fugitive dust. EPA considers such Executive Officer discretion a violation of Clean Air Act section 110(a)(2)(A).

In contrast, analogous rules in other areas describe specific requirements for significant sources of PM-10 by source category. Examples of district rules containing specific source category requirements include:

• Maricopa County Environmental Services Department, Arizona (MCESD), Rule 310 (Fugitive Dust).

• San Joaquin Valley Unified Air Pollution Control District, California (SJVUAPCD), Regulation 8 (Fugitive PM-10 Prohibitions).

• South Coast Air Quality Management District, California (SCAQMD), Rule 403 (Fugitive Dust).

• Clark County, Nevada.

It is PCAQCD's obligation to consider their own inventory and establish specific BACM requirements for significant source categories. EPA will work with PCAQCD to identify measures that are appropriate in light of local circumstances.

Comment #4: PCAQCD disagreed with EPA's assertion in our proposed rule that the absence of recordkeeping provisions in Rule 4-2-050 constitutes a rule deficiency. They further commented that the “reasonable precaution” standard, combined with monitoring information, is sufficient to ascertain compliance with these rules.

Response #4: Recordkeeping provisions in prohibitory rules provide the main instruments for effective enforcement of regulatory requirements. Recordkeeping is needed in order to verify compliance with the requirements or limits established by the rule. Section 110(a) of the Clean Air Act requires the inclusion of recordkeeping measures in any submitted SIP rule. Though recordkeeping requirements for fugitive dust may not be as detailed as those in typical stationary source rules, some feasible recordkeeping provisions are nevertheless required. Examples of district rules containing recordkeeping requirements include:

• Maricopa County Environmental Services Department, Arizona (MCESD), Rule 310 (Fugitive Dust).

• San Joaquin Valley Unified Air Pollution Control District, California (SJVUAPCD), Regulation 8 (Fugitive PM-10 Prohibitions), Rule 8011 (General Requirements).

• South Coast Air Quality Management District, California (SCAQMD), Rule 403 (Fugitive Dust).

• Clark County, Nevada.

Comment #5: PCAQCD commented that EPA has no basis to impose sanctions on the basis of the currently submitted rules. They noted that the currently approved SIP Rule R7-3-1.2 also applies a “reasonable precaution” standard with respect to agricultural activity, and that EPA is not justified in starting a sanctions clock for the current rules, in which the “reasonable precaution” requirement is repeated.

Response #5: We approved Rule 7-3-1.2 into the SIP in 1978. Since that time, national policy on particulate matter and fugitive dust requirements has evolved. Sections 172(c)(1) and 189(a) of the CAA require moderate PM-10 nonattainment areas to implement reasonably available control measures (RACM), including reasonably available control technology (RACT) for stationary sources of PM-10. Section 189(b) requires that serious PM-10 nonattainment areas, in addition to meeting the RACM/RACT requirements, implement best available control measures (BACM), including best available control technology (BACT). In the northern part of PCAQCD is the Apache Junction portion of the Phoenix metropolitan area, which is a serious PM-10 nonattainment area. In the northeastern part of PCAQCD is Hayden-Miami, which is a moderate PM-10 nonattainment area. PCAQCD regulates certain sources of PM-10 within both nonattainment areas.

EPA's guidance for both moderate and serious PM-10 nonattainment areas requires that RACM/RACT and BACM/BACT be implemented for all source categories unless the State demonstrates that a particular source category does not contribute significantly to PM-10 levels in excess of the NAAQS (i.e., de minimis sources). See the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 57 FR 13498, 13540 (April 16, 1992) and Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 59 FR 41998, 42011 (August 16, 1994).

The potential to emit of the emission activities subject to PCAQCD Rules 4-2-020, 4-2-030, 4-2-040, and 4-2-050 comprises a small but significant portion of the total PM-10 emissions in the Phoenix metropolitan area, according to the August 1999 Apache Junction Portion of the Metropolitan Phoenix PM-10 Serious State Implementation Plan (PM-10 Plan). Therefore, Rules 4-2-020, 4-2-030, 4-2-040, and 4-2-050 must meet BACM/BACT control levels. Under this standard, Rules 4-2-020, 4-2-030, 4-2-040, and 4-2-050 are not wholly approvable for inclusion in the SIP, and per Clean Air Act Section 179, a sanctions clock must be started.

We also note the following from the preamble to the recently promulgated PM standards: “The United States Department of Agriculture (USDA) has been working with the agricultural community to develop conservation systems and activities to control coarse particle emissions. Based on current ambient monitoring information, these USDA-approved conservation systems and activities have proven to be effective in controlling these emissions in areas where coarse particles emitted from agricultural activities have been identified as a contributor to violation of the NAAQS. The EPA concludes that where USDA-approved conservation systems and activities have been implemented, these systems and activities have satisfied the Agency's reasonable available control measure and best available control measure requirements. The EPA believes that in the future, when properly implemented, USDA-approved conservation systems and activities should satisfy the requirements for reasonably available control measures or best available control measures.”

Comment #6: NAHB sent a comment supporting EPA's proposed action.

Response #6: EPA acknowledges this comment.

No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a limited approval of the submitted rules. This action incorporates the submitted rule into the Arizona SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval of the rules. As a result, sanctions will be imposed unless EPA approves subsequent SIP revisions that correct the rule deficiencies within 18 months of the effective date of this action. These sanctions will be imposed under section 179 of the Act according to 40 CFR 52.31. In addition, EPA must promulgate a federal implementation plan (FIP) under section 110(c) unless we approve subsequent SIP revisions that correct the rule deficiencies within 24 months. Note that the submitted rules have been adopted by the PCAQCD, and EPA's final limited disapproval does not prevent the local agency from enforcing them.

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. )

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements 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 not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This rule 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, because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this 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 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. Thus, Executive Order 13175 does not apply to this rule.

Protection of Children from Environmental Health Risks 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 a 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.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental 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 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

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 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 August 31, 2007.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 1, 2007. 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 may 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 section 307(b)(2).)

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:

Section 110 of the Clean Air Act (CAA or Act) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP.

Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

The Clean Air Act requires maintenance plans for areas which are redesignated from nonattainment to attainment for a criteria pollutant. The requirements for the approval and revision of a maintenance plan are found in section 175A of the CAA. A maintenance plan must provide a demonstration of continued attainment for 10 years after redesignation, including the control measures relied upon, provide contingency measures for the prompt correction of any violation of the standard, provide for continued operation of an adequate ambient air quality monitoring network, provide a means of tracking the progress of the plan, and include the attainment emissions inventory. Section 175A(b) requires a revision to the initial maintenance plan to demonstrate continued attainment for 10 years after the initial 10-year period.

Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.

Background: A portion of Muscatine County, Iowa, was designated nonattainment for the 24-hour SO 2 NAAQS on March 10, 1994. An attainment demonstration and control strategy SIP were approved by EPA on December 1, 1997 (62 FR 63464). On March 19, 1998, EPA approved a maintenance plan for the area, finding that it met the requirements of section 175A of the Act, and redesignated the area from nonattainment to attainment (63 FR 13343). The SIP revision addressed below is a revision to this maintenance plan to address the requirement of section 175A(b) for a second ten-year maintenance plan.

Emission Inventory: Maintenance of the SO 2 standard in the Muscatine area was ensured through continued compliance with emission reductions requirements as prescribed in construction permits and incorporated and approved by EPA as revisions made to the SIP. These measures have been highly effective and attainment will continue to rely on ensuring that emissions are maintained at a level that is at or below current allowable emission rates. Past, current and projected emissions are included in the second 10-year plan. IDNR also reviewed county-wide point source emissions, on-road sources, non-road, and area sources into the current and projected level of SO 2 emissions. Projected levels of SO 2 emissions show decreased levels with the exception of the area source inventory. This is due to predicted increase in gas stations and dry cleaners but the increase is more than off set by the decreases of other sectors. The emissions inventory was reviewed by EPA technical personnel and was found to be acceptable.

Demonstration of Continued Attainment: The Iowa Department of Natural Resources (IDNR) will continue to ensure the enforceable emission limitations and operating conditions at the facilities, included in the previous two federally-approved SIP revisions, are enforced as necessary. Based on a review of the SO 2 ambient monitoring data collected since 1999, and an evaluation of predicted future SO 2 emissions for the area, IDNR has demonstrated that no additional control measures are necessary to maintain the NAAQS in Muscatine. The maintenance plan contains a detailed description of emission limits and operating conditions at each facility which have resulted in maintenance of the SO 2 standard.

Contingency Measures: The first maintenance plan identified three facilities in the Muscatine area that were the primary source of SO 2 emissions. IDNR negotiated emission reductions with the facilities and the reductions were incorporated into revised construction permits which were submitted as part of the section 110 SIP revision and thus, were Federally enforceable. Contingency measures for the second 10-year maintenance plan include mechanisms for responding to monitored exceedances of the NAAQS and include reviewing and regulating the allowable emissions for new and modified sources; requiring reduction in emissions from sources contributing to an exceedance of the NAAQS; ambient air quality monitoring, and emissions monitoring. In the event of an exceedance of the NAAQS, IDNR will conduct an investigation of the major SO 2 emitters in the area to determine if they are in compliance with permit conditions limiting SO 2 emissions, and other applicable regulatory requirements. SO 2 sources will be required to submit a written report within 60 days detailing their operations on the day of the exceedance if requested by the IDNR. (Violation of the 24-hour SO 2 standard was the basis for the previous nonattainment designation for the area.) Owners and operators of sources emitting SO 2 will be required to determine possible causes of excess emissions that may have contributed to the exceedance including malfunctions and upset conditions. The analysis will include an evaluation of the meteorological conditions prevailing at the time of the exceedance. Depending on the circumstances of the incident, other activities such as inspections, dispersions modeling, additional monitors, or proposing more stringent emission limitations may be necessary. The state commits to requiring implementation of any additional control measures no later than 24 months after a NAAQS violation. Because the existing control strategy has resulted in readily quantifiable emissions reductions and has been adequate to prevent violations of the SO 2 NAAQS for more than 10 years after redesignation, EPA concludes that these contingency measures to address any subsequent violations are adequate to meet the requirements of section 175A.

Air Quality Monitoring: The current monitoring network operated by IDNR consists of three monitors. The Iowa SIP submittal proposed to discontinue two of these monitors as explained below. The Greenwood Cemetery monitoring site has never recorded an exceedance of the NAAQS for SO 2 and the maximum values recorded at the site have declined in recent years. During the last full year of data collection (2005), the maximum value recorded at the site was 17% of the 24-hour NAAQS. The maximum value recorded for the 3-hour averaging period and the 2005 annual value were both 15% or less of the 3-hour and annual NAAQS. Based on this information, IDNR has proposed to discontinue this monitor. EPA has determined that discontinuance of this monitor is acceptable.

The second monitor is located at Muscatine Power and Water (MPW) and, like the Greenwood Cemetery site, has never recorded an exceedance of the NAAQS and the maximum recorded values at the site have also declined. During 2005, the maximum value recorded at the site was 14% of the 24-hour NAAQS; the maximum recorded 3-hour value was less than 14% of the 3-hour NAAQS, and the 2005 annual value was only 10% of the annual NAAQS. Based on this information, IDNR has proposed to discontinue this monitor. EPA has determined that discontinuance of this monitor is acceptable.

The third monitor is located at Musser Park and recorded multiple exceedances prior to implementation of the emissions control strategy. Since the control strategy was implemented, only one 24-hour exceedance occurred which was on December 1, 1999, with a monitored value of 387.4 μg/m 3 (0.148 ppm). (The 24-hour SO 2 NAAQS is 0.14 ppm, not to be exceeded more than once per calendar year.) Maximum values recorded at the site have declined in recent years. During the last full year of data collection (2005) the maximum daily value recorded was 52% of the 24-hour NAAQS. No exceedances of the 3-hour or annual SO 2 NAAQS have been recorded at this site. During 2005, the 3-hour value recorded at the site was 33% of the 3-hour NAAQS. The 2005 annual value was only 20% of the annual NAAQS. IDNR will continue to monitor at this site. The monitoring plan proposed by IDNR continues to meet the monitoring requirements of 40 CFR Part 58.

Tracking the Progress of the Plan: An air quality modeling analysis was performed to support the development of the control strategy for the nonattainment area SIP. The inputs, procedures and results were reviewed during the development of the maintenance plan demonstration for the first 10-year maintenance plan, and a review for the second 10-year plan concluded that no additional modeling was necessary. This decision was supported by the Muscatine SO 2 monitoring network measurements which indicate no violations of the 24-hour SO 2 NAAQS since the maintenance plan period started.

Any new or modified major stationary source constructed in the state must comply with the state's Federally-approved New Source Review program. For major source construction or modification, implementation of the best available control technology provisions and completion of the ambient air quality impact analyses and additional impacts analyses, requirements of the Prevention of Significant Deterioration program will ensure that new or modified sources in the maintenance area, and in the vicinity of the maintenance area, are controlled to the extent necessary to maintain the SO 2 NAAQS.

EPA is approving the State Implementation Plan (SIP) revision submitted by the state of Iowa for the purpose of establishing the second 10-year maintenance plan for the SO 2 NAAQS in Muscatine, Iowa. This action will continue to ensure the measures in the plan maintain the standard in Muscatine and remain in place as Federal requirements.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support document which is part of this docket, the revision meets the substantive SIP requirements of the CAA, including section 175A.

EPA is approving the second 10-year maintenance plan for the Muscatine, Iowa, area to maintain the SO 2 NAAQS. We are processing this action as a direct final action because the revisions are noncontroversial. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. 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).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 1, 2007. 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 may 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 section 307(b)(2).)

On June 1, 2007 (72 FR 30509), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval of Pennsylvania's redesignation request, a SIP revision that establishes a maintenance plan for the Cambria Area that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after redesignation, and a 2002 base year emissions inventory. The formal SIP revisions were submitted by PADEP on March 27, 2007. Other specific requirements of Pennsylvania's redesignation request, SIP revision for the maintenance plan, and the rationales for EPA's proposed actions are explained in the NPR and will not be restated here. No public comments were received on the NPR.

However, on December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard. (69 FR 23591, April 30, 2004). South Coast Air Quality Management Dist. v. EPA , 472 F.3d 882 (D.C. Cir. 2006). On June 8, 2007, in South Coast Air Quality Management Dist. v. EPA, Docket No. 04-1201, in response to several petitions for rehearing, the D.C. Circuit clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. Therefore, the Phase 1 Rule provisions related to classifications for areas currently classified under subpart 2 of Title I, part D of the Act as 8-hour nonattainment areas, the 8-hour attainment dates and the timing for emissions reductions needed for attainment of the 8-hour ozone NAAQS remain effective. The June 8 decision left intact the Court's rejection of EPA's reasons for implementing the 8-hour standard in certain nonattainment areas under subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let stand EPA's revocation of the 1-hour standard and those anti-backsliding provisions of the Phase 1 Rule that had not been successfully challenged. The June 8 decision reaffirmed the December 22, 2006 decision that EPA had improperly failed to retain measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations: (1) Nonattainment area New Source Review (NSR) requirements based on an area's 1-hour nonattainment classification; (2) Section 185 penalty fees for the 1-hour severe or extreme nonattainment areas; and (3) measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the Act, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain NAAQS. In addition, the June 8 decision clarified that the Court's reference to conformity requirements for anti-backsliding purposes was limited to requiring the continued use of the 1-hour motor vehicle emissions budgets until 8-hour budgets were available for 8-hour conformity determinations, which is already required under EPA's conformity regulations. The Court thus clarified the 1-hour conformity determinations are not required for anti-backsliding purposes.

For the reasons set forth in the proposal, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation, and do not prevent EPA from finalizing this redesignation. EPA believes that the Court's December 22, 2006 and June 8, 2007 decisions impose no impediment to moving forward with redesignation of this area to attainment, because even in the light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the Act and longstanding policies regarding redesignation requests.

In the June 1, 2007 NPR, EPA proposed to find that the area had satisfied the requirements under the 1-hour standard whether the 1-hour standard was deemed to be reinstated or whether the Court's decision on the petition for rehearing were modified to require something less than compliance with all applicable 1-hour requirements. Because EPA proposed to find that the area satisfied the requirements under either scenario, EPA is proceeding to finalize the redesignation and to conclude that the area met the requirements under the 1-hour standard applicable for purposes of redesignation under the 8-hour standard. These include the provisions of EPA's anti-backsliding rules, as well as the additional anti-backsliding provisions identified by the Court in its rulings. In its June 8, 2007 decision, the Court limited its vacatur so as to uphold those provisions of the anti-backsliding requirements that were not successfully challenged. Therefore, EPA finds that the area has met the anti-backsliding requirements, see 40 CFR 51.900 et seq; 70 FR 30592, 30604 (May 26, 2005) which apply by virtue of the area's classification for the 1-hour ozone NAAQS, as well as the four additional anti-backsliding provisions identified by the Court, or that such requirements are not applicable for purposes of redesignation. In addition, with respect to the requirement for transportation conformity under the 1-hour standard, the Court in its June 8 decision clarified that for those with 1-hour motor vehicle emissions budgets, anti-backsliding requires only that those 1-hour budgets must be used for 8-hour conformity determinations until replaced by 8-hour budgets. To meet this requirement, conformity determinations in such areas must continue to comply with the applicable requirements of EPA's conformity regulations at 40 CFR part 93. The Court clarified that the 1-hour conformity determinations are not required for anti-backsliding purposes.

EPA is approving the Commonwealth of Pennsylvania's redesignation request, maintenance plan, and the 2002 base year emissions inventory because the requirements for approval have been satisfied. EPA has evaluated Pennsylvania's redesignation request that was submitted on March 27, 2007 and determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes that the redesignation request and monitoring data demonstrate that the Cambria Area has attained the 8-hour ozone standard. The final approval of this redesignation request will change the designation of the Cambria Area from nonattainment to attainment for the 8-hour ozone standard. EPA is approving the maintenance plan for the Cambria Area submitted on March 27, 2007 as a revision to the Pennsylvania SIP. EPA is also approving the MVEBs submitted by PADEP in conjunction with its redesignation request. In addition, EPA is approving the 2002 base year emissions inventory as a revision to the Pennsylvania SIP submitted by PADEP on March 27, 2007. In this final rulemaking, EPA is notifying the public that we have found that the MVEBs for nitrogen oxides (NO X ) and volatile organic compounds (VOCs) in the Cambria Area for the 8-hour ozone maintenance plan are adequate and approved for conformity purposes. As a result of our finding, the Cambria Area must use the MVEBs from the submitted 8-hour ozone maintenance plan for future conformity determinations. The adequate and approved MVEBs are provided in the following table:

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Redesignation of an area to attainment under section 107(d)(3)(e) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This final rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Because this action affects the status of a geographical area, does not impose any new requirements on sources, or allows the state to avoid adopting or implementing other requirements, this action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Redesignation is an action that affects the status of a geographical area and does not impose any new requirements on sources. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 1, 2007. 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 may be filed, and shall not postpone the effectiveness of such rule or action. This action, approving the redesignation of the Cambria Area to attainment for the 8-hour ozone NAAQS, the associated maintenance plan, the 2002 base year emission inventory, and the MVEBs identified in the maintenance plan, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On June 7, 2007 (72 FR 31495), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval of Pennsylvania's redesignation request, a SIP revision that establishes a maintenance plan for the Altoona Area that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after redesignation, and a 2002 base year emissions inventory. The formal SIP revisions were submitted by PADEP on February 8, 2007. Other specific requirements of Pennsylvania's redesignation request SIP revision for the maintenance plan and the rationales for EPA's proposed actions are explained in the NPR and will not be restated here. No public comments were received on the NPR.

However, on December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard. (69 FR 23951, April 30, 2004). South Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). On June 8, 2007, in South Coast Air Quality Management Dist. v. EPA, Docket No. 04-1201, in response to several petitions for rehearing, the D. C. Circuit clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. Therefore, the Phase 1 Rule provisions related to classifications for areas currently classified under subpart 2 of Title I, part D of the Act as 8-hour nonattainment areas, the 8-hour attainment dates and the timing for emissions reductions needed for attainment of the 8-hour ozone NAAQS remain effective. The June 8 decision left intact the Court's rejection of EPA's reasons for implementing the 8-hour standard in certain nonattainment areas under subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let stand EPA's revocation of the 1-hour standard and those anti-backsliding provisions of the Phase 1 Rule that had not been successfully challenged. The June 8 decision reaffirmed the December 22, 2006 decision that EPA had improperly failed to retain measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations: (1) Nonattainment area New Source Review (NSR) requirements based on an area's 1-hour nonattainment classification; (2) Section 185 penalty fees for 1-hour severe or extreme nonattainment areas; and (3) measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the Act, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS.

In addition the June 8 decision clarified that the Court's reference to conformity requirements for anti-backsliding purposes was limited to requiring the continued use of 1-hour MVEBs until 8-hour budgets were available for 8-hour conformity determinations, which is already required under EPA's conformity regulations. The Court thus clarified that 1-hour conformity determinations are not required for anti-backsliding purposes.

For the reasons set forth in the proposal, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation, and do not prevent EPA from finalizing this redesignation. EPA believes that the Court's December 22, 2006 and June 8, 2007 decisions impose no impediment to moving forward with redesignation of this area to attainment, because even in light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the Act and longstanding policies regarding redesignation requests.

In its proposal, EPA proposed to find that the area had satisfied the requirements under the 1-hour standard whether the 1-hour standard was deemed to be reinstated or whether the Court's decision on the petition for rehearing were modified to require something less than compliance with all applicable 1-hour requirements. Because EPA proposed to find that the area satisfied the requirements under either scenario, EPA is proceeding to finalize the redesignation and to conclude that the area met the requirements under the 1-hour standard applicable for purposes of redesignation under the 8-hour standard. These include the provisions of EPA's anti-backsliding rules, as well as the additional anti-backsliding provisions identified by the Court in its rulings. In its June 8, 2007 decision the Court limited its vacatur so as to uphold those provisions of the anti-backsliding requirements that were not successfully challenged. Therefore, EPA finds that the area has met the anti-backsliding requirements, see 40 CFR 51.900 et seq; 70 FR 30592, 30604 (May 26, 2005) which apply by virtue of the area's classification for the 1-hour ozone NAAQS, as well as the four additional anti-backsliding provisions identified by the Court, or that such requirements are not applicable for purposes of redesignation. In addition, with respect to the requirement for transportation conformity under the 1-hour standard, the Court in its June 8 decision clarified that for those areas with 1-hour MVEBs, anti-backsliding requires only that those 1-hour budgets must be used for 8-hour conformity determinations until replaced by 8-hour budgets. To meet this requirement, conformity determinations in such areas must continue to comply with the applicable requirements of EPA's conformity regulations at 40 CFR Part 93. The court clarified that 1-hour conformity determinations are not required for anti-backsliding purposes.

EPA is approving the Commonwealth of Pennsylvania's redesignation request, maintenance plan, and the 2002 base year emissions inventory because the requirements for approval have been satisfied. EPA has evaluated Pennsylvania's redesignation request that was submitted on February 8, 2007 and determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes that the redesignation request and monitoring data demonstrate that the Altoona Area has attained the 8-hour ozone standard. The final approval of this redesignation request will change the designation of the Altoona Area from nonattainment to attainment for the 8-hour ozone standard. EPA is approving the maintenance plan for the Altoona Area submitted on February 8, 2007 as a revision to the Pennsylvania SIP. EPA is also approving the MVEBs submitted by PADEP in conjunction with its redesignation request. In addition, EPA is approving the 2002 base year emissions inventory submitted by PADEP on February 8, 2007 as a revision to the Pennsylvania SIP. In this final rulemaking, EPA is notifying the public that we have found that the MVEBs for volatile organic compounds (VOC) and nitrogen oxides (NO X ) in the Altoona Area for the 8-hour ozone maintenance plan are adequate and approved for conformity purposes. As a result of our finding, the Altoona Area must use the MVEBs from the submitted 8-hour ozone maintenance plan for future conformity determinations. The adequate and approved MVEBs are provided in the following table:

The Altoona Area is subject to the CAA's requirement for the basic nonattainment areas until and unless it is redesignated to attainment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Redesignation of an area to attainment under section 107(d)(3)(e) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources.

Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Because this action affects the status of a geographical area, does not impose any new requirements on sources, or allows the state to avoid adopting or implementing other requirements, this action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Redesignation is an action that affects the status of a geographical area and does not impose any new requirements on sources. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 1, 2007. 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 may be filed, and shall not postpone the effectiveness of such rule or action.

This action, approving the redesignation of the Altoona Area to attainment for the 8-hour ozone NAAQS, the associated maintenance plan, the 2002 base year emission inventory, and the MVEBs identified in the maintenance plan, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

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

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

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

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

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

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

Under section 408(g) of the FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0209 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before October 1, 2007.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA-HQ-OPP-2006-0209, 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 Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305-5805.

In the Federal Register of July 14, 2006 (71 FR 40100) (FRL-8058-5), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5F7019) by E.I. duPont de Nemours and Company, Laurel Run Plaza, P.O. Box 80038, Wilmington, DE 19880-0038. The petition requested that 40 CFR 180.478 be amended by establishing a tolerance for residues of the herbicide rimsulfuron, N -((4,6-dimethoxypyrimidin-2-yl)aminocarbonyl)-3-(ethylsulfonyl)-2-pyridinesulfonamide, in or on almond hulls, citrus/pome/stone fruit crop group, grapes, pistachios and tree nut crop group at 0.01 parts per million (ppm). That notice included a summary of the petition prepared by E.I. duPont de Nemours and Company, Inc, the registrant. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has determined that the data support a tolerance of 0.09 ppm for almond, hulls.

Based on Agency procedures concerning commodity names, the Agency is correcting the terminology for pending commodities and crop groups to read almond, hulls; fruit, citrus, group 10; fruit, pome, group 11; fruit, stone, group 12; grape; nut, tree, group 14, and pistachio.

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

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for tolerance for residues of rimsulfuron on almond, hulls at 0.09 ppm; fruit, citrus, group 10 at 0.01 ppm; fruit, pome, group 11 at 0.01 ppm; fruit, stone, group 12 at 0.01 ppm; grape at 0.01 ppm; nut, tree, group 14 at 0.01 ppm; and pistachio at 0.01 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by rimsulfuron as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov . The referenced document is entitled Rimsulfuron: Human Health Risk Assessment for Proposed Uses on Almonds, Citrus Fruits, Grapes, Pistachio, Pome Fruit, Stone Fruit, and Tree Nuts and is available in the docket established by this action, which is described under ADDRESSES , and is identified as EPA-HQ-OPP-2006-0209-0002.

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

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

A summary of the toxicological endpoints for rimsulfuron used for human risk assessment can be found at www.regulations.gov in document Rimsulfuron, Human Health Risk Assessment for Proposed Uses on Almonds, Citrus Fruits, Grapes, Pistachio, Pome Fruit, Stone Fruit, and Tree Nuts at page 21 in Document 0002 in Docket ID EPA-HQ-OPP-2006-0209.

1. Dietary exposure from food and feed uses . In evaluating dietary exposure to rimsulfuron, EPA considered exposure under the petitioned-for tolerances as well as all existing rimsulfuron tolerances in 40 CFR 180.478. EPA assessed dietary exposures from rimsulfuron 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. No such effects were identified in the toxicological studies for rimsulfuron; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure . In conducting the chronic dietary exposure assessment, EPA used the food consumption data from the USDA 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA assumed all foods for which there are tolerances were treated and contain tolerance-level residues. Anticipated residues or estimates of percent crop treated (PCT) were not used.

iii. Cancer . Rimsulfuron is classified as a “not likely to be carcinogenic to humans” based on acceptable chronic/carcinogenic studies in rats and mice. Therefore, a cancer exposure assessment was not performed.

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

Based on the First Index Reservoir Screening Tool (FIRST) and Screening Concentrations in Groundwater (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of rimsulfuron for acute exposures are estimated to be 5.596 parts per billion (ppb) for surface water and 0.016 ppb for ground water. The EDWCs for chronic exposures are estimated to be 0.120 ppb for surface water and 0.016 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 0.120 ppb was used to access the contribution to drinking water.

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

Rimsulfuron is not registered for use on any sites that would result in residential exposure.

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

Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to rimsulfuron and any other substances and rimsulfuron 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 rimsulfruon has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www.epa.gov/pesticides/cumulative .

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

2. Prenatal and postnatal sensitivity . In the prenatal developmental toxicity study in rats, no developmental toxicity was seen at the highest dose tested. In the prenatal developmental toxicity study in rabbits, and in the 2-generation reproduction study in rats, developmental/offspring toxicity were seen in the presence of maternal/systemic toxicity. Consequently, there is no evidence (quantitative or qualitative) of increased susceptibility following prenatal and postnatal exposures.

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

i. The toxicity database for rimsulfuron is complete.

ii. There is no indication that rimsulfuron is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional uncertainty factors to account for neurotoxicity.

iii. There is no evidence that rimsulfuron results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues. Conservative ground water and surface water modeling estimates were used. These assessments will not underestimate the exposure and risks posed by rimsulfuron.

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

1. Acute risk. The existing data showed no indication that rimsulfuron could cause adverse effects in the U.S. population or any population subgroups based on a single dose. Therefore, there is not a concern for acute dietary exposure to the general population or any population subgroup.

2. Chronic risk . Using the exposure assumptions described in Unit III.C.ii. for chronic exposure, EPA has concluded that exposure to rimsulfuron from food and water will utilize <1% of the cPAD for the U.S. population, and for each of the population subgroups including the most highly exposed population subgroup (children 1-2 years old). There are no residential uses for rimsulfuron that result in chronic residential exposure to rimsulfuron. Based on the use pattern, chronic residential exposure to residues of rimsulfuron is not expected.

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).

Rimsulfuron is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water.

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

Rimsulfuron 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 . Rimsulfuron is classified as a “not likely human carcinogen.” Therefore, EPA does not expect that rimsulfuron will pose a cancer risk to humans.

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

Currently, a high pressure liquid chromatography method exists for enforcement of tolerances for residues of rimsulfuron in or on corn, potato, and tomato commodities. Two LC/MS/MS methods have been proposed for enforcement of tolerances on pending crops and crop grouping. Because the extraction procedures do not differ significantly from the extraction procedures of the existing enforcement method, Agency method validation will not be required.

Adequate enforcement methodology (high pressure liquid chromatography MS/MS detection) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; e-mail address: residuemethods@epa.gov .

There are no Codex, Canadian, or Mexican MRLs established for residues of rimsulfuron in or on almond, hull; citrus fruit; pome fruit; stone fruit; tree nuts; grape; or pistachio.

Therefore, the tolerance is established for residues of rimsulfuron, N -((4,6-dimethoxypyrimidin-2-yl)aminocarbonyl)-3-(ethylsulfonyl)-2-pyridinesulfonamide in or on almond, hulls at 0.09 ppm; fruit, citrus, group 10 at 0.01 ppm; fruit, pome, group 11 at 0.01 ppm; fruit, stone, group 12 at 0.01 ppm; grape at 0.01 ppm; nut, tree, group 14 at 0.01 ppm; and pistachio at 0.01 ppm.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 408(g) of the FFDCA, as amended by the Food Quality Protection Act (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-2004-0154 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before October 1, 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-2004-0154, 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 August 4, 2004 (69 FR 47051) (FRL-7368-7), EPA issued a proposal to revoke, remove, modify, and establish certain specific tolerances for residues of the insecticides fenbutatin-oxide and hydramethylnon; the herbicides bromoxynil, diclofop-methyl, paraquat, picloram, and triclopyr; the fumigant phosphine; the fungicides etridiazole, folpet, and TPTH; the miticides dicofol and propargite, and the plant growth regulator and herbicide diquat. Also, the proposal of August 4, 2004 (69 FR 47051) (FRL-7368-7) provided a 60-day comment period which invited public comment for consideration and for support of tolerance retention under the FFDCA standards. In the Federal Register of October 6, 2004 (69 FR 59843) (FRL-7682-5), EPA extended the comment period from October 4, 2004 to October 18, 2004.

In this final rule, EPA is revoking, removing, modifying, and establishing specific tolerances for residues of bromoxynil, diclofop-methyl, dicofol, diquat, etridiazole, fenbutatin-oxide, folpet, hydramethylnon, paraquat, phosphine, picloram, propargite, TPTH, and triclopyr in or on commodities listed in the regulatory text of this document. However, while EPA also proposed on August 4, 2004 (69 FR 47051) to revoke and modify specific tolerances for iprodione, the Agency is not taking any action on iprodione tolerances in this document.

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

In this final rule, EPA is revoking certain tolerances because either they are no longer needed or are associated with food uses that are no longer registered under FIFRA in the United States. Those instances where registrations were canceled were because the registrant failed to pay the required maintenance fee and/or the registrant voluntarily requested cancellation of one or more registered uses of the pesticide active ingredient. The tolerances revoked by this final rule are no longer necessary to cover residues of the relevant pesticides in or on domestically treated commodities or commodities treated outside but imported into the United States. It is EPA's general practice to issue a final rule revoking those tolerances and tolerance exemptions for residues of pesticide active ingredients on crop uses for which there are no active registrations under FIFRA, unless any person in comments on the proposal indicates a need for the tolerance or tolerance exemption to cover residues in or on imported commodities or domestic commodities legally treated.

EPA has historically been concerned that retention of tolerances that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States.

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

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

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

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

This final rule does not revoke those tolerances for which EPA received comments stating a need for the tolerance to be retained. In response to the proposal published in the Federal Register of August 4, 2004 (69 FR 47051) (FRL-7368-7), EPA received comments during the 60-day public comment period, as follows:

1. General—comment by private citizen . A comment was received from a private citizen on August 15, 2004 which expressed a general concern for chemicals and their toxic effects. In addition, the private citizen stated “I oppose and object to the use/approval/sale of this product” in reference to bromoxynil and diclofop methyl. Also, the individual stated opposition to increasing any tolerances due to a concern about the sale of more product.

Agency response . Section 408(g) of the FFDCA, 21 U.S.C. 346a(g) and the implementing regulations at 40 CFR part 178, establish procedures for formally challenging EPA rulemakings establishing tolerances or exemptions from tolerances. This formal challenge is initiated through the filing of “objections” with EPA. The procedures for filing objections are summarized in this final rule under the section titled “Objections and Hearing Requests.” As is made clear in that section, all objections must be in writing, and must be mailed or delivered to EPA's Hearing Clerk within 60 days of the publication of the final rule.

Because the communication of August 15, 2004 was sent to the public docket of the proposed rule, EPA concludes that the communication does not intend to initiate the formal procedures for objecting under 40 CFR part 178 to the tolerance actions made herein. The communication from the private citizen from New Jersey is considered by EPA to be a “comment” rather than an “objection.” In order to file an objection, one must follow the procedures as explained in the previous paragraph and set forth in 40 CFR part 178.

The comment of August 15, 2004 did not refer to any specific scientific studies which supported the reregistration of any active ingredient, or Agency decision document which supported or addressed the reregistration eligibility of any active ingredient.

Section 4 of FIFRA directs EPA to make decisions about the future use of older pesticides. Under the pesticide reregistration program, EPA examines health and safety data for pesticide active ingredients initially registered before November 1, 1984, and determines whether they are eligible for reregistration to ensure that they meet current scientific and regulatory standards. During reregistration, EPA considers the human health and ecological effects of pesticides and addresses actions to reduce risks that are of concern.

Of 612 cases subject to reregistration, about 40% have been canceled for various reasons, including request for voluntary cancellation by the registrant, cancellation by EPA because required fees were not paid, or cancellation by EPA because unacceptable risk existed that could not be reduced by other actions such as voluntary cancellation of selected uses or changes in the way the pesticide is used.

Reducing pesticide risks is an important aspect of the reregistration program. In developing REDs, EPA works with stakeholders including pesticide registrants, growers and other pesticide users, environmental and public health interests, as well as the States, U.S. Department of Agriculture (USDA), and other Federal agencies, and others to develop voluntary measures or regulatory controls needed to effectively reduce risks of concern. Such options include voluntary cancellation of pesticide products or deletion of uses, declaring certain uses ineligible or not yet eligible, restricting use of products to certified applicators, limiting the amount or frequency of use, improving use directions and precautions, adding more protective clothing and equipment requirements, requiring special packaging or engineering controls, requiring no-treatment buffer zones, employing environmental and ecological safeguards, and other measures.

Also, for all pesticides with food uses, EPA is reassessing tolerances (pesticide residue limits in food) to ensure that they met the safety standard of section 408 of the FFDCA, 21 U.S.C. 346a, as amended by the FQPA of 1996. Under FFDCA, EPA must make a determination that pesticide residues remaining in or on food are safe; that is, that there is reasonable certainty that no harm will result from aggregate exposure to the pesticide residue from dietary and other sources. EPA has integrated reregistration and tolerance reassessment to most effectively accomplish the goals of both programs.

At the end of the reregistration process, after EPA has issued a RED and declared a pesticide reregistration case eligible for reregistration, individual end-use products that contain pesticide active ingredients included in the case still must be reregistered. During this product reregistration, EPA sends registrants a DCI notice requesting any product specific data and specific revised labeling needed to complete reregistration for each of the individual pesticide products covered by the RED. Based on the results of EPA's review of these data and labeling, products found to meet FIFRA and FFDCA standards may be reregistered.

2. Bromoxynil—comment by the People's Republic of China (PRC) . After the public comment period extension had ended on October 18, 2004, EPA received comment from the PRC, forwarded by the U.S. Department of Commerce's National Institute of Standards and Technology, on November 3, 2004. The PRC asked for information concerning Good Agricultural Practice (GAP) basis data for the use of bromoxynil on garlic and onion.

Agency response . The Agency proposed no action on the existing tolerances in 40 CFR 180.324 for bromoxynil on garlic or onion, dry bulb. Information on study data which support the bromoxynil RED are available in the OPP public docket for the proposed rule of August 4, 2004 (69 FR 47051), OPP-2004-0154, and on the reregistration status website at http://www.epa.gov/pesticides/reregistration/status.htm . The crop field trial references for garlic are MRIDs 42331002 and 42540602, and for onion, dry bulb are MRIDs 42350701 and 42747601. The bromoxynil residues of concern on garlic and onion, dry bulb were below the limit of quantitation (LOQ) of 0.02 parts per million (ppm), which support their current tolerance levels at 0.1 ppm.

Because flax straw is no longer a regulated feed item, the tolerance for bromoxynil residue is no longer needed. Therefore, EPA is revoking the tolerance in 40 CFR 180.324(a)(1) for “flax, straw.” Also, EPA is removing the commodity tolerances in 40 CFR 180.324(a)(1) for residues of bromoxynil in or on “corn, stover” which was previously termed corn, fodder (dry) in the RED; “corn, fodder (green);” and “corn, grain” because these tolerances are no longer needed since their uses are covered by the existing tolerances for corn, field, stover and corn, grain, field. Further, based on field trial data that indicate residues of bromoxynil as high as 0.14 ppm in or on corn stover, the Agency determined that the tolerance for corn, field, stover should be increased to 0.2 ppm and a tolerance should be established for corn, pop, stover at 0.2 ppm. Therefore, EPA is increasing the tolerance in 40 CFR 180.324(a)(1) on “corn, field, stover” from 0.1 ppm to 0.2 ppm and establishing a tolerance for residues of bromoxynil in or on “corn, pop, stover” at 0.2 ppm.

Since the proposal of August 4, 2004 (69 FR 47051), EPA published a final rule in the Federal Register on February 10, 2005 (70 FR 7044) (FRL-7690-6) that removed expired time-limited tolerances for emergency exemptions, including those for bromoxynil on timothy, hay and timothy, forage in 40 CFR 180.324(b) and reserved that section.

Based on field trial data that indicate residues of bromoxynil in or on alfalfa hay as high as 0.38 ppm and to conform tolerance nomenclature to current Agency practice, the Agency determined that the tolerance for alfalfa, seedling should be revised into alfalfa, forage and alfalfa, hay, and the tolerance on alfalfa, hay should be increased to 0.5 ppm. Therefore, EPA is revising the commodity tolerance “alfalfa, seedling” (shown in paragraph (a)(1) as alfalfa, seeding) in 40 CFR 180.324(a)(1) at 0.1 ppm to “alfalfa, forage,” and “alfalfa, hay” and maintaining the tolerance on alfalfa, forage at 0.1 ppm, while increasing the tolerance on alfalfa, hay to 0.5 ppm.

Based on field trial data that indicate residues of bromoxynil in or on grass forage and hay as high as 2.9 ppm and 2.4 ppm, respectively, the Agency determined that the tolerances for grass forage and hay should be increased to 3.0 ppm. Therefore, EPA is revising the commodity terminologies “canarygrass, annual, seed” and “canarygrass, annual, hay” (formerly grass, canary, annual, straw) in 40 CFR 180.324(a)(1) to “grass, forage” and “grass, hay,” respectively, and increasing each of their tolerances from 0.1 ppm to 3.0 ppm.

Based on field trial data that indicate residues of bromoxynil in or on barley straw as high as 3.9 ppm, and translating barley data to oat straw, the Agency determined that the tolerances for barley straw and oat straw should be increased to 4.0 ppm. Therefore, EPA is increasing the tolerances in 40 CFR 180.324(a)(1) for residues of bromoxynil in or on “barley, straw” from 0.1 ppm to 4.0 ppm, and “oat, straw” from 0.1 ppm to 4.0 ppm.

Based on field trial data that indicate residues of bromoxynil in or on wheat forage and straw as high as 0.6 ppm and 1.2 ppm, respectively, and translating wheat data to rye, the Agency determined that the tolerances for both rye and wheat forage should be increased to 1.0 ppm, and both rye and wheat straw should be increased to 2.0 ppm. Therefore, EPA is increasing the tolerances in 40 CFR 180.324(a)(1) for residues of bromoxynil in or on “rye, forage” from 0.1 ppm to 1.0 ppm; “rye, straw” from 0.1 ppm to 2.0 ppm; “wheat, forage” from 0.1 ppm to 1.0 ppm; and “wheat, straw” from 0.1 ppm to 2.0 ppm.

Based on field trial data that indicate residues of bromoxynil in or on barley forage, and translating barley data to oat, the Agency determined that the tolerance for oat forage should be increased to 0.3 ppm. Therefore, EPA is increasing the tolerance in 40 CFR 180.324(a)(1) for residues of bromoxynil in or on “oat, forage” from 0.1 ppm to 0.3 ppm.

Based on field trial data that indicate residues of bromoxynil in or on sorghum forage and stover as high as 0.29 and 0.14 ppm, respectively, the Agency determined that the tolerances for sorghum forage and stover should be increased to 0.5 ppm and 0.2 ppm, respectively. Therefore, EPA is increasing the tolerances in 40 CFR 180.324(a)(1) for residues of bromoxynil in or on “sorghum, forage” from 0.1 ppm to 0.5 ppm and revising the commodity terminology to “sorghum, grain, forage;”and “sorghum, grain, stover” from 0.1 ppm to 0.2 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Based on field trial data that indicate residues of bromoxynil in or on grain of barley, corn, sorghum, and wheat at <0.02 ppm and translating barley data to oat grain and rye grain, the Agency determined that the grain tolerances for barley; field corn; oat; rye; sorghum; and wheat should be decreased to 0.05 ppm and a tolerance should be established for corn, pop, grain at 0.05 ppm. Therefore, EPA is decreasing the tolerances in 40 CFR 180.324(a)(1) from 0.1 ppm to 0.05 ppm, for the following: “barley, grain;” “oat, grain;” “rye, grain;” “sorghum, grain;” “wheat, grain;” and “corn, grain, field;” and also revising the terminolgy for “corn, grain, field” to read “corn, field, grain.” Also in 40 CFR 180.324(a)(1), EPA is establishing a tolerance for residues of bromoxynil in or on “corn, pop, grain” at 0.05 ppm.

Because residues of bromoxynil are detectable in aspirated grain fractions of wheat (highest), corn, and sorghum, the Agency determined that a tolerance on the aspirated fractions of grain should be established at 0.3 ppm. Therefore, EPA is establishing a tolerance in 40 CFR 180.324(a)(1) for residues of bromoxynil in or on “grain, aspirated fractions” at 0.3 ppm.

Based on residue data for hay of wheat and barley that indicate residues of bromoxynil as high as 3.2 ppm for wheat, but not exceeding 9.0 ppm for barley, and translating barley data to oat hay, the Agency determined that tolerances should be established for wheat hay at 4.0 ppm, barley hay at 9.0 ppm, and oat, hay at 9.0 ppm. Therefore, EPA is establishing tolerances in 40 CFR 180.324(a)(1) for residues of bromoxynil in or on “barley, hay” at 9.0 ppm, “oat, hay” at 9.0 ppm, and “wheat, hay” at 4.0 ppm.

The 1998 Bromoxynil RED recommended that the tolerance for corn, forage, field (green) be revised to corn, field, forage and increased from 0.1 ppm to 0.3 ppm based on residue data for corn forage. However, at that time, no tolerance for corn, forage, field (green) existed in 40 CFR 180.324(a)(1). Therefore, EPA is establishing a tolerance in 40 CFR 180.324(a)(1) for “corn, field, forage” at 0.3 ppm.

In addition, EPA is revising commodity terminology in 40 CFR 180.324 to conform to current Agency practice as follows: “mint hay” to “peppermint, hay” and “spearmint, hay.”

The Agency did not propose in a notice for comment to revise the tolerance nomenclature for bromoxynil in 40 CFR 180.324(a)(1) from onion, dry bulb to onion, bulb, as is current Agency practice. However, section 553(b)(3)(B) of the Administrative Procedure Act provides that notice and comment is not necessary “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Consequently, for good cause, EPA is revising the tolerance in 40 CFR 180.324(a)(1) from onion, dry bulb to onion, bulb. The reason for taking this action is because such action has no practical impact on the use of or exposure to the pesticide active ingredient, bromoxynil, in or on that commodity and is made such that the tolerance terminology will conform to current Agency practice.

3. Dicofol—comment by the PRC . After the public comment period extension had ended on October 18, 2004, EPA received comment from the PRC, forwarded by the U.S. Department of Commerce's National Institute of Standards and Technology, on November 3, 2004. The PRC expressed concern that the GAP alone is insufficient as the basis for EPA's determination for proposing to establish a tolerance for dicofol residues in milk at 22.0 ppm in the absence of risk assessment support.

Also, the PRC was concerned about EPA's proposal to reduce the tolerances for residues of dicofol on nuts from 5.0 ppm to 0.1 ppm and the Agency's determination to translate data from pecan field trials to other nuts such as chestnut and walnut. In addition, the PRC cited nut tolerance levels for dicofol of 3.0 ppm in Canada, 1.0 ppm in Korea, and 5.0 ppm for almond in Australia.

Agency response . EPA is redesignating the dicofol tolerance expression for plant commodities in 40 CFR 180.163(a) to (a)(1), separately from the animal tolerances, and to revise the expression in terms of the combined residues of 1,1-bis(4-chlorophenyl)-2,2,2-trichloroethanol and 1-(2-chlorophenyl)-1-(4-chlorophenyl)-2,2,2-trichloroethanol. Because dicofol metabolites are the residues of concern for animals, EPA is proposing to redesignate animal tolerances separately from plant tolerances, from 40 CFR 180.163(a) to (a)(2) and for tolerances to be expressed in terms of the combined residues of 1,1-bis(4-chlorophenyl)-2,2,2-trichloroethanol and its metabolites, 1-(2-chlorophenyl)-1-(4-chlorophenyl)-2,2,2-trichloroethanol, 1,1-bis(4-chlorophenyl)-2,2-dichloroethanol, and 1-2(-chlorophenyl)-1-(4-chlorophenyl)-2,2-dichloroethanol.

As stated in the proposal of August 4, 2004 (69 FR 47051), based on ruminant metabolism and feeding data, the Agency determined that the tolerance for milk should reflect dicofol residues of 0.75 ppm in whole milk corrected by a factor of 30x to account for concentration in milk fat from whole milk such that 22.0 ppm is appropriate (tolerance is based on milk fat). However, the Agency acknowledges that on August 4, 2004 (69 FR 47051) it proposed to establish a tolerance for “milk” as shown in the dicofol RED, but that the appropriate definition for the tolerance commodity should be termed “milk, fat (reflecting 0.75 ppm in whole milk).” The appropriate level for that tolerance definition is 22.0 ppm. Therefore, EPA is establishing a tolerance in 40 CFR 180.163(a)(2) for milk, fat (reflecting 0.75 ppm in whole milk) at 22.0 ppm.

The Agency proposed reducing the nut tolerances based on both pecan and walnut field trials that showed residues of dicofol were non-detectable and determined that 0.1 ppm is appropriate. Pecan, chestnut, and walnut are among commodities included in 40 CFR 180.41 under the tree nut crop group 14. The Agency considers pecans and almonds as representative commodities for that crop group. The Agency determined that the data translated to other nuts and that the tolerances for butternut, chestnut, filbert, hickory nut, macadamia nut, pecan, and walnut should be at 0.1 ppm. The Agency notes that there is a Codex maximum residue limit (MRL) for dicofol residues on pecan at 0.01 ppm which is at or above the limit of detection. Both the Codex MRL on pecan and proposed U.S. tolerance for nuts are lower than the MRLs cited by the PRC. Different MRLs among countries for a specific pesticide residue on a given commodity may be due to use patterns reflecting different pest and disease pressures. Therefore, EPA is decreasing the tolerances in 40 CFR 180.163(a)(1) on “nut, macadamia” from 5 ppm to 0.1 ppm;” “butternut” from 5 ppm to 0.1 ppm, “chestnut” from 5 ppm to 0.1 ppm, “filbert” from 5 ppm to 0.1 ppm, “nut, hickory” from 5 ppm to 0.1 ppm, “pecan” from 5 ppm to 0.1 ppm, and “walnut” from 5 ppm to 0.1 ppm, all based on available data.

EPA is revoking the commodity tolerances in 40 CFR 180.163(a)(1) for residues of dicofol in or on “fig” because the registration for that use was canceled in October 1989 due to non-payment of annual registration maintenance fees. Also, EPA is removing “hazelnuts” because this tolerance is covered by the tolerance on filbert. The Agency did not propose in a notice for comment to revise the tolerance nomenclature for dicofol in 40 CFR 180.163(a)(1) from filbert to hazelnut, as is current Agency practice. However, section 553(b)(3)(B) of the Administrative Procedure Act provides that notice and comment is not necessary “when the agency for good cause finds (and incorporates the findings and a brief statement of the reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Consequently, for good cause, EPA is revising the tolerance terminology in 40 CFR 180.163(a)(1) from filbert to hazelnut. The reason for taking this action is because such action has no practical impact on the use of or exposure to the pesticide active ingredient, dicofol, in or on that commodity and is made such that the tolerance terminology will conform to current Agency practice. In addition, the tolerance on “hay, spearmint” in 40 CFR 180.163(a) was removed on June 29, 2007 (72 FR 35663) (FRL-8131-3).

Based on field trial data that indicate residues of dicofol were as high as 6.7 ppm in or on apples and in one duplicate sample 10.8 ppm in or on pears (6.8 ppm in pears for the other duplicate sample), the Agency determined that a crop group tolerance of 10.0 ppm is appropriate. Therefore, EPA is combining the commodity tolerances for “apple,” “crabapple,” “pear,” and “quince,” each at 5 ppm in 40 CFR 180.163(a)(1) under the crop group terminology “fruit, pome, group 11” and increasing the tolerance to 10.0 ppm.

Based on field trial data that indicate residues of dicofol were as high as 0.84 ppm in or on plums, 3.08 ppm in or on cherries, and 3.79 ppm in or on peaches, the Agency determined that a crop group tolerance of 5.0 ppm is appropriate. Therefore, EPA is combining the commodity tolerances for “apricot” at 10 ppm; “cherry” at 5 ppm, “nectarine” at 10 ppm, “peach” at 10 ppm, and “plum, prune, fresh” at 5 ppm, in 40 CFR 180.163(a)(1) under the crop group terminology “fruit, stone, group 12” and decreasing the tolerance to 5.0 ppm.

EPA is combining the commodity tolerances for “blackberry,” “boysenberry,” “dewberry,” “loganberry,” and “raspberry,” each at 5 ppm in 40 CFR 180.163(a)(1) under the crop subgroup terminology “caneberry subgroup 13A” and maintaining the tolerance at 5 ppm, based on new field trials.

Based on field trial data that indicate residues of dicofol were as high as 0.35 ppm in or on melons, 0.45 ppm in or on cucumbers, and 1.05 ppm in or on summer squash, the Agency determined that a crop group tolerance of 2.0 ppm is appropriate. Therefore, EPA is combining the commodity tolerances for “cantaloupe,” “cucumber,” “melon,” “muskmelon,” “pumpkin,” “squash, summer;” “squash, winter;” and “watermelon,” each at 5 ppm in 40 CFR 180.163(a)(1) under the crop group terminology “vegetable, cucurbit, group 9” and decreasing the tolerance to 2.0 ppm.

Based on field trial data that show that residues of dicofol were as high as 1.34 ppm in or on lemon, 3.55 ppm in or on oranges, and 5.26 ppm in or on grapefruit, the Agency determined that a crop group tolerance of 6.0 ppm is appropriate. Therefore, EPA is combining the commodity tolerances for “grapefruit,” “kumquat,” “lemon,” “lime,” “orange, sweet” and “tangerine” in 40 CFR 180.163(a)(1), each at 10 ppm, under the commodity terminology “fruit, citrus, group 10” and decreasing the tolerance to 6.0 ppm.

Based on field trial data that indicate residues of dicofol were as high as 0.46 ppm in or on tomatoes and 1.15 ppm in or on peppers, the Agency determined that a crop group tolerance of 2.0 ppm is appropriate. Therefore, EPA is combining the commodity tolerances for “eggplant,” “pepper,” “pimento,” and “tomato” in 40 CFR 180.163(a)(1), each at 5 ppm, under the crop group terminology “vegetable, fruiting, group 8” and decreasing the tolerance to 2.0 ppm, based on new field trials.

Based on field trial data that indicate residues of dicofol as high as 0.46 ppm in or on dry beans and 2.09 ppm in or on succulent beans, the Agency has determined that the appropriate tolerances are 0.5 ppm for dry beans and 3.0 ppm for succulent beans. Therefore, EPA is decreasing the tolerances in 40 CFR 180.163(a)(1) on “bean, dry, seed” from 5.0 ppm to 0.5 ppm, and combining “bean, snap, succulent” and “bean, lima, succulent” into “bean, succulent” and decreasing the tolerance from 5.0 ppm to 3.0 ppm.

Based on field trial data that indicate residues of dicofol as high as 64.3 ppm on dried hops, the Agency has determined that the tolerance should be for dried hops at 65.0 ppm. Therefore, EPA is increasing the tolerance in 40 CFR 180.163(a)(1) for “hop” from 30 ppm to 65.0 ppm and revising the commodity tolerance to “hop, dried cones” because the raw agricultural commodity (RAC) is redefined. The Agency determined that the increased tolerance is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Because available data show that residues of dicofol were as high as 9.8 ppm on strawberries, the Agency determined that the tolerance should be at 10.0 ppm. Therefore, EPA is increasing the tolerance in 40 CFR 180.163(a)(1) for “strawberry” from 5 ppm to 10.0 ppm. The Agency determined that the increased tolerance is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Based on highest average field trial (HAFT) residues of 5.54 ppm on apples, 3.16 ppm on oranges, 0.06 ppm on cotton, 3.02 ppm on grapes, 17.6 ppm on mint, 29.1 ppm on plucked tea leaves, and available processing data showing average concentration factors of 6.6x in wet apple pomace, 3.7x in dried orange pulp, 62.8x in orange oil, 4.9x in refined cotton oil, 6.6x in raisins, 1.6x in mint oil, and 1.6x in dried tea, the Agency determined that tolerances for dicofol are warranted as follows: wet apple pomace at 38 ppm, dried citrus pulp at 12 ppm, citrus oil at 200 ppm, refined cotton oil at 0.5 ppm, raisins at 20.0 ppm, peppermint oil at 30 ppm, spearmint oil at 30 ppm, tea, plucked tea leaves at 30.0 ppm, and dried tea at 50 ppm. Therefore, EPA is increasing the tolerance in 40 CFR 180.163(a)(1) for “tea, dried” from 45 ppm to 50.0 ppm and establishing tolerances in 40 CFR 180.163 (a)(1) for “apple, wet pomace” at 38.0 ppm, “citrus, dried pulp” at 12.0 ppm, “citrus, oil” at 200.0 ppm, “cotton, refined oil” at 0.5 ppm, “grape, raisin” at 20.0 ppm, “peppermint, oil” at 30.0 ppm, “spearmint, oil” at 30.0 ppm, and “tea, plucked leaves” at 30.0 ppm.

In the dicofol RED, the Agency recommended the establishment of a tolerance on prunes (currently termed plum, prune, dried) at 3.0 ppm. However, a new tolerance for the processed commodity prunes as “plum, prune, dried” at 3.0 ppm is not needed because that use is covered by the combination of stone fruits into a group tolerance at 5.0 ppm, as described above.

Based on hen metabolism and feeding data, and residues in cottonseed meal (20% diet X 0.1 ppm residue), the Agency has determined that tolerances should be established at 0.1 ppm for poultry fat, meat, and meat byproducts. The tolerance for eggs should be decreased to 0.05 ppm for compatibility with Codex. Therefore, EPA is establishing tolerances in 40 CFR 180.163(a)(2) for “poultry, fat;” “poultry, meat;” and “poultry, meat byproducts;” each at 0.1 ppm and “egg” at 0.05 ppm.

Based on ruminant metabolism and feeding data, the Agency determined that tolerances for fat of cattle, goats, hogs, horses and sheep should be established at 50.0 ppm; meat and meat byproducts, except liver of cattle, goats, hogs, horses and sheep should be established at 3.0 ppm; and liver of cattle, goats, hogs, horses and sheep should be established at 5.0 ppm. Therefore, EPA is establishing tolerances in 40 CFR 180.163(a)(2) for the following: “cattle, meat;” “cattle, meat byproducts, except liver;” “goat, meat;” “goat, meat byproducts, except liver;” “hog, meat;” “hog, meat byproducts, except liver;” “horse, meat;” “horse, meat byproducts, except liver;” “sheep, meat;” and “sheep, meat byproducts, except liver;” each at 3.0 ppm; “cattle, liver;” “goat, liver;” “hog, liver;” “horse, liver;” and “sheep, liver;” each at 5.0 ppm; and “cattle, fat;” “goat, fat;” “hog, fat;” “horse, fat;” and “sheep, fat;” each at 50.0 ppm.

EPA is revising commodity terminology in 40 CFR 180.163 to conform to current Agency practice as follows: “hay, peppermint” to “peppermint, hay.”

4. Iprodione . EPA will not take action on iprodione tolerances at this time based on comments and additional submitted data. EPA will respond to comments about iprodione that were received during the public comment period and address iprodione tolerance actions in a future notice to be published in the Federal Register .

5. Paraquat—comment by Syngenta Crop Protection . On September 9, 2004, Syngenta Crop Protection Inc. requested that the Agency consider the inclusion of commodities from berries group 13 in its proposed revision of the small fruit group tolerance for paraquat into individual tolerances for cranberry and grape. Syngenta stated that berry data was submitted years ago and berry uses appear on active registrations for paraquat dichloride.

Agency response . EPA proposed to revise the crop group tolerance for small fruit but inadvertently proposed to revise that group into individual tolerances only for cranberry and grape, and maintain these tolerances at 0.05 ppm. However, the old terminology of “small fruit” not only includes cranberry and grape, but also blackberry, blueberry, boysenberry, currant, dewberry, elderberry, gooseberry, huckleberry, loganberry, raspberry, strawberry, and youngberry. In 40 CFR 180.41, berry group 13 includes blackberry (blackberry includes boysenberry, dewberry, and youngberry), blueberry, currant, elderberry, gooseberry, huckleberry, loganberry, and raspberry. Consequently, revising small fruit into the individual tolerances for cranberry, grape, and strawberry, as well as maintaining a tolerance on berry group 13, would cover the commodity uses under the old terminology of small fruit. The Agency agrees with Syngenta that berry uses have active registrations. Some tolerance actions proposed for paraquat on August 4, 2004 (69 FR 47051) have already been made final or revised to different tolerance levels in a final rule published in the Federal Register on September 6, 2006 (71 FR 52487)(FRL-8089-3), where EPA established and revised certain tolerances in 40 CFR 180.205 on paraquat in response to multiple petition requests by Syngenta Crop Protection Inc. In the final rule of September 6, 2006 (71 FR 52487), EPA established tolerances in 40 CFR 180.205 at 0.05 ppm on berry group 13, cranberry, and grape. A tolerance already existed on strawberry at 0.25 ppm. However, the tolerance on the obsolete commodity terminology “fruit, small” was inadvertently not revoked and currently remains as a duplicate tolerance that is no longer needed and should be revoked. Consequently, EPA is following up on the proposed rule of August 4, 2004 (69 FR 47051), which included a proposal to remove the small fruit tolerance in 40 CFR 180.205(a) by proposing to revise that crop group tolerance (an obsolete nomenclature) into multiple tolerance definitions that would cover commodity uses previously associated with small fruit. Because multiple tolerances (berry group 13, cranberry, grape, and strawberry) have been established to cover the small fruit uses, EPA is following-up by revoking the tolerance in 40 CFR 180.205(a) on fruit, small in this final rule.

Other tolerance actions proposed on August 4, 2004 (69 FR 47051) have also been made final or revised to different tolerance levels. In the final rule of September 6, 2006 (71 FR 52487), EPA increased the tolerances in 40 CFR 180.205(a) on kidney of cattle, goats, hogs, horses, and sheep, each from 0.3 ppm to 0.5 ppm, which harmonize with Codex MRLs; hop, dried cones from 0.2 ppm to 0.5 ppm; sorghum, forage, forage and sorghum, grain, forage from 0.05 ppm to 0.1 ppm; soybean, forage from 0.05 ppm to 0.4 ppm; decreased the tolerance in 40 CFR 180.205(a) on “beet, sugar, tops” from 0.5 ppm to 0.05 ppm; and established tolerances in 40 CFR 180.205(a) for soybean hay at 10.0 ppm, soybean hulls at 4.5 ppm; and soybean seed at 0.7 ppm; fruit, pome, group 11 at 0.05 ppm; fruit, stone, group 12 at 0.05 ppm; barley, straw at 1.0 ppm; wheat, forage at 0.5 ppm; and wheat, straw at 50.0 ppm.

In the final rule of September 6, 2006 (71 FR 52487), the Agency inadvertently did not revoke the individual tolerances in 40 CFR 180.205 at 0.05 ppm on apple and pear when it established the fruit, pome, group 11 tolerance at 0.05 ppm; the individual tolerances at 0.05 ppm on apricot, cherry, nectarine, peach, and plum, prune, fresh when it established the fruit, stone, group 12 tolerance at 0.05 ppm; and the individual tolerances at 0.05 ppm on broccoli, cabbage, Chinese cabbage, cauliflower, and collards when it established the vegetable, brassica, leafy, group 5 tolerance at 0.05 ppm. Also, in the Federal Register of December 6, 2006 (71 FR 70670) (FRL-8100-3), EPA corrected a typographical error in the codification section on page 52494 of the final rule of September 6, 2006 (71 FR 52487) regarding the commodity terminology name “fruit, stone, group 12.” The notice of August 4, 2004 (69 FR 47051) proposed to combine specific individual tolerances into their respective crop groups (including fruit, pome, group 11, fruit, stone, group 12, and vegetable, brassica, leafy, group 5), with the effect of removing those specific individual tolerances since their uses were to be covered by the group tolerances. Because these group tolerances were established, their respective individual tolerances are no longer needed. Consequently, EPA is following-up on the proposed rule of August 4, 2004 (69 FR 47051), which included proposals to combine specific existing tolerances into group tolerances for fruit, pome, group 11, fruit, stone, group 12, and vegetable, brassica, leafy, group 5; and thereby remove those individual tolerances. Because these group tolerances have been established, EPA is following-up by revoking the tolerances in 40 CFR 180.205 on apple; pear; apricot; cherry; nectarine; peach; plum, prune, fresh; broccoli; cabbage; cabbage, chinese; cauliflower; and collards in this final rule. In addition, EPA is correcting the commodity terminology in 40 CFR 180.205 for the group 5 tolerance from vegetable, Brassica leafy, group 5 to vegetable, brassica, leafy, group 5, which was the group name proposed on August 4, 2004 (69 FR 47051).

Also, in the final rule of September 6, 2006 (71 FR 52487), EPA inadvertently did not revoke the individual tolerances in 40 CFR 180.205 at 5.0 ppm on alfalfa, birdsfoot trefoil, and clover, when it established the animal feed, nongrass, group 18, forage and animal feed, nongrass, group 18, hay tolerances at 75.0 ppm and 210.0 ppm, respectively. These individual tolerances are no longer needed. Consequently, EPA is following up on the proposed rule of August 4, 2004 (69 FR 47051), which included proposals to increase the tolerances for alfalfa forage, birdsfoot trefoil forage, and clover forage from 5.0 ppm to 75.0 ppm and combine them under the terminology animal feed, nongrass, group 18, forage and increase alfalfa hay, birdsfoot trefoil hay, and clover hay from 5.0 ppm to 210.0 ppm and combine them under the terminology animal feed, nongrass, group 18, hay. Because these group tolerances have been established, EPA is following-up by revoking the individual tolerances in 40 CFR 180.205(a) on alfalfa, birdsfoot trefoil, and clover.

In addition, in the final rule of September 6, 2006 (71 FR 52487), EPA inadvertently established a tolerance in 40 CFR 180.205 on soybean, seed at 0.7 ppm, but should have revised the existing tolerance on soybean to soybean, seed (a nomenclature change that is current Agency practice) and increased it from 0.05 ppm to 0.7 ppm (based on a new use pattern in the petition) to avoid creating a duplicate tolerance. Consequently, there now exists a duplicate tolerance; i.e., soybean at 0.05 ppm, which EPA proposed to increase in the rule of August 4, 2004 (69 FR 47051). That duplicate tolerance is not needed since the use on soybean should be covered by the established soybean, seed tolerance at the appropriate level of 0.7 ppm. Further, section 553(b)(3)(B) of the Administrative Procedure Act provides that notice and comment is not necessary “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Consequently, for good cause, while EPA is maintaining the tolerance on soybean, seed at 0.7 ppm, the Agency is revoking the tolerance on soybean at 0.05 ppm in 40 CFR 180.205(a). The reason for taking this action is because such action has no practical impact on the use of or exposure to the pesticide active ingredient, paraquat, in or on that commodity; i.e., the use is covered by the existing tolerance on soybean, seed at 0.7 ppm, which the Agency considers to be at the appropriate level.

Also, in the final rule of September 6, 2006 (71 FR 52487), EPA inadvertently did not revoke the individual tolerances in 40 CFR 180.205 on bean, snap, succulent at 0.05 ppm, when it established the tolerance on vegetable, legume, edible podded, subgroup 6A at 0.05 ppm; bean, lima, succulent and pea, succulent, both at 0.05 ppm, when it established the tolerance on pea and bean, succulent shelled, subgroup 6B at 0.05 ppm; and bean, dry, seed and pea, dry, seed, both at 0.3 ppm, when it established the tolerance on pea and bean, dried shelled, except soybean, subgroup 6C, except guar bean. These established subgroup tolerances cover the uses of the aforementioned individual tolerances, which are no longer needed, and therefore, which should be revoked. In order to provide notice and comment, the Agency intends to address proposing the revocation of these individual tolerances in 40 CFR 180.205 for bean, snap, succulent; bean, lima, succulent; pea, succulent; bean, dry, seed; and pea, dry, seed in a future publication in the Federal Register .

Moreover, in the final rule of September 6, 2006 (71 FR 52487), EPA established a tolerance in 40 CFR 180.205 on nut, tree, group 14 at 0.05 ppm, but should have revised the existing tolerance at 0.05 ppm on nut to nut, tree, group 14 (a nomenclature change that is current Agency practice). Also, EPA established a tolerance on vegetable, cucurbit, group 9 at 0.05 ppm, but should have revised the existing tolerance at 0.05 ppm on cucurbits to vegetable, cucurbit, group 9 (a nomenclature change that is current Agency practice). Consequently, since the uses are covered by other tolerances, the duplicate tolerances on cucurbits and nut are no longer needed and should be revoked. In order to provide notice and comment, the Agency intends to address proposing the revocation of the tolerances in 40 CFR 180.205(a) on cucurbits and nut in a future publication in the Federal Register .

Finally, in the final rule of September 6, 2006 (71 FR 52487), EPA established tolerances in 40 CFR 180.205 that were not proposed on August 4, 2006. These include barley hay; cotton, gin byproducts; ginger; grain, aspirated fractions; okra; and wheat hay; and increased the tolerances on cotton, undelinted seed, onion, dry bulb (and revised it to onion, bulb); and wheat grain.

EPA is revoking the tolerance in 40 CFR 180.205(a) on “mint, hay, spent” because it is no longer recognized as a raw agricultural commodity, and therefore the tolerance is no longer needed. Also, EPA is removing the “(N)” designation from all entries to conform to current Agency administrative practice (“N” designation means negligible residues), and revising the commodity terminology “fruit, citrus” to “fruit, citrus, group 10;” and redefining the commodity terminology for “bean, forage” to “cowpea, forage” and “bean, hay” to “cowpea, hay.” However, EPA will not revoke the tolerance on mint, hay in 40 CFR 180.205 because the Agency incorrectly based its revocation in the paraquat RED on mint hay no longer being a raw agricultural commodity. While “mint hay” is an obsolete commodity terminology, it should be revised to peppermint, tops and spearmint, tops, which EPA will address in a future publication in the Federal Register .

Based on field trial data that indicate residues of paraquat as high as 90 ppm in or on rangeland grass forage (which should be revised to grass, forage) and 40 ppm in or on pasture grass hay (which should be revised to grass, hay), the Agency determined that the tolerances should be increased to 90 ppm for grass forage and 40 ppm for grass hay. Therefore, EPA is revising the commodity terminologies in 40 CFR 180.205(a) for “grass, pasture” to “grass, forage” and increasing the tolerance from 5 ppm to 90.0 ppm; and “grass, range” to “grass, hay” and increasing the tolerance from 5 ppm to 40.0 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Based on a reassessed pineapple tolerance of 0.05 ppm and pineapple processing data that indicate an average concentration factor of 4.5x in dried bran, the Agency determined that a tolerance should be established for pineapple process residue (a wet-waste byproduct from the fresh cut product line, which usually contains pineapple bran) at 0.25 ppm. Therefore, EPA is establishing a tolerance in 40 CFR 180.205(a) for “pineapple, process residue” at 0.25 ppm.

Based on a reassessed sugarcane tolerance of 0.5 ppm and sugarcane processing data that indicate an average concentration factor of 5.5x in blackstrap molasses, the Agency determined that a tolerance should be established for sugarcane molasses at 3.0 ppm. Therefore, EPA is establishing a tolerance in 40 CFR 180.205(a) for “sugarcane, molasses” at 3.0 ppm.

On September 21, 2001 (66 FR 48593) (FRL-6799-2), EPA published a final rule in the Federal Register which in 40 CFR 180.205(a) established tolerances for “corn, field, stover” and “corn, pop, stover” at 10.0 ppm; “corn, field, grain” and “corn, pop, grain” at 0.1 ppm; and “corn, field, forage” at 3.0 ppm; based on proposed tolerances in petition 5F1625 submitted by Zeneca Ag. Products and to harmonize corn, field, grain and corn, pop, grain with the Codex MRL of 0.1 ppm for maize. In the September 2001 final rule, EPA also stated that in the food additive petition 5H5088, Zeneca had proposed a food additive tolerance for “corn flour” at 0.1 ppm which was subsequently withdrawn since EPA determined that the tolerance for corn, field, grain at 0.1 ppm is adequate to cover residues in corn flour.

EPA is revising commodity terminologies in 40 CFR 180.205(a) from “corn, fresh (inc. sweet corn), kernel plus cob with husks removed” to “corn, sweet, kernel plus cob with husks removed;” and “guar bean” to “guar.”

In the proposed rule of August 4, 2004 (69 FR 47051)(FRL-7368-7), EPA stated that peanut hay is no longer considered to be a significant livestock feed commodity. In fact, peanut hay is considered by the Agency to be a significant livestock feed item as shown at http://www.epa.gov/opptsfrs/OPPTS_Harmonized/860_Residue_Chemistry_Test_Guidelines/Series/ in the Residue Chemistry Test Guidelines OPPTS 860.1000 Table 1. Therefore, the Agency will not revoke the tolerance but rather will maintain the tolerance level at 0.5 ppm in 40 CFR 180.205, which is consistent with the paraquat RED.

6. Propargite—comment by the PRC . After the public comment period extension had ended on October 18, 2004, EPA received comment from the PRC, forwarded by the U.S. Department of Commerce's National Institute of Standards and Technology, on November 3, 2004. The PRC cited an evaluation from a Joint FAO/WHO Meeting on Pesticide Residues (JMPR) Evaluations of Pesticide Residues in Food for 2002, and stated that it recommends a maximum limit of 100.0 ppm for residues of propargite on dry hops and quoted a GAP data under U.S. supervision GAP (1.7 kilograms active ingredient/hectare (kg ai/ha) to the growing crop at an interval of 14 days). Also, the PRC commented on the tolerance levels for residues of propargite on garlic and nut, tree, group.

Agency response . Since the time of the proposed rule of August 4, 2004 (69 FR 47051), the Codex Alimentarius Commission adopted an MRL for propargite on hops, dry at 100.0 milligrams/kilogram (mg/kg). The 2002 JMPR report cites a GAP for the United States with an application rate as 1.8 kg ai/ha (about 1.6 lb active ingredient/acre (ai/A)) and states that the meeting recommends a new maximum propargite residue level for hops (dry) at 100.0 mg/kg (100.0 ppm). The JMPR report is available at the website address http://www.fao.org/ag/agp/agpp/PesticidJMPR/JMPRreports.htm .

In the Federal Register on December 13, 2006 (71 FR 74802) (FRL-8064-3), the Agency finalized tolerance nomenclature changes including a revision of “hop, dried cone” to “hop, dried cones.” Currently in 40 CFR 180.259, there are tolerances for propargite on both hop at 15.0 ppm and dried hops at 30.0 ppm. On August 4, 2004 (69 FR 47051), the Agency proposed no action on the existing tolerance level for propargite residues on hop, dried cones at 30.0 ppm, consistent with the propargite RED. On September 22, 1992, Uniroyal submitted a hops processing study for use of propargite treated hops in typical beer brewing operations. Field trials on hops had used a wettable powder formulation where the label calls for two applications of 1.5 lb ai/A per year. Residues in dried hops did not exceed the existing tolerance of 30.0 ppm following either two applications to hops at 0.9X (1.35 lb ai/A) or three applications at 1.5X (2.25 lb ai/A), both with a PHI of 14 days. Hence, no change in the tolerance level for dried hops was recommended by the Agency in the propargite RED.

Moreover, the beer processing study (MRID 42486301 Ball, J. (1992) Omite CR on Hops: Beer Processing Study: Lab Project Number: RP-90043: ML91-0271UNI: IR#90-747. Unpublished study prepared by Uniroyal Chemical Company, Inc. 369 p.) used hops bearing measurable residues up to 22.5 ppm propargite on dried hop cones from 1.5X treated green hops and demonstrated that propargite residues were not detected in beer (<0.01 ppm). However, at the time of the propargite RED, Codex had a value of 30 mg/kg on dried hops. EPA agrees with the commenter that the 100 mg/kg MRL on dried hops for propargite, established by Codex, is appropriate based on the data reviewed by the 2002 JMPR. However, because EPA did not propose any action on hops, dried cones in 40 CFR 180.259 for propargite on August 4, 2004 (69 FR 47051), the Agency will not take action on that tolerance in this document. Therefore, EPA intends to propose increasing the tolerance on hop, dried cones to harmonize with the Codex MRL in a future publication in the Federal Register .

Also, the tolerance definition of the raw agricultural commodity (RAC) for hops is dried cones (PR Notice 93-12; December 23, 1993). Therefore, because the RAC for hops is dried hops, whose use is covered by the existing tolerance at 30.0 ppm, EPA is revoking the tolerance in 40 CFR 180.259(a) on hop at 15.0 ppm.

Also, in response to the comment, there is no tolerance in 40 CFR 180.259 for propargite on garlic. According to 40 CFR 180.1(g), on tolerance definitions, a tolerance on onions or onions (dry bulb only) would cover garlic; however, there is also no tolerance in 40 CFR 180.259 for propargite on onion. In the proposed rule of August 4, 2004 (69 FR 47051), the Agency did not propose any action on the existing tolerances in 40 CFR 180.259 for propargite residues on almond and walnut, whose U.S. tolerance levels of 0.1 ppm harmonize with the Codex MRLs of 0.1 mg/kg. The representative commodities for the tree nut group are almond and pecan. There is no pecan tolerance and no tree nut group tolerance for propargite. Both the almond and almond hulls tolerances were recommended in the propargite RED to be maintained at their current tolerance levels based on available data where treated almonds were harvested at 28 days, because a 28-day preharvest interval (PHI) is specified on active product labels.

Based on available data, EPA determined that there is no reasonable expectation of finite residues of propargite in poultry meat and meat byproducts. These tolerances are no longer needed under 40 CFR 180.6(a)(3). Therefore, EPA is revoking the commodity tolerances in 40 CFR 180.259(a) for residues of propargite in or on “poultry, meat” and “poultry, meat byproducts.” Also, EPA is revoking the tolerance in 40 CFR 180.259(a) for residues of propargite in or on “citrus, dried pulp” because residues do not concentrate in dried pulp based on a citrus processing study, and therefore the tolerance is no longer needed. In addition, EPA is revoking the tolerance in 40 CFR 180.259 for residues of propargite in or on “peanut, hulls” because it is no longer considered to be a significant livestock feed commodity and therefore the tolerance is no longer needed. The tolerance for peanut forage, which had been proposed for revocation, was removed on December 13, 2006 (71 FR 74802) (FRL-8064-3), when EPA finalized certain tolerance nomenclature changes, including the revision of the tolerance in 40 CFR 180.259 on peanut, forage to peanut, hay, which then became a duplicate tolerance (covered by an existing tolerance for peanut hay).

Based on field trial data that indicate propargite residues as high as 8.3 ppm in or on oranges and 3.8 ppm in or on sorghum grain, the Agency determined that the tolerances should be increased to 10.0 ppm for oranges and decreased to 5.0 ppm for sorghum grain. Therefore, EPA is increasing the tolerance in 40 CFR 180.259(a) on “orange, sweet” from 5 ppm to 10.0 ppm and revising the terminology to “orange,” and decreasing the tolerance on “sorghum, grain” from 10 ppm to 5.0 ppm. The Agency determined that the increased tolerance is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Based on HAFT residues of 4 ppm (residue range 1.6 ppm to 8.3 ppm) in oranges and available processing data showing an average concentration factor of 7.0x in orange oil, the Agency determined that a tolerance should be established for propargite on citrus oil at 30 ppm. Therefore, EPA is establishing a tolerance in 40 CFR 180.259(a) for residues of propargite in “citrus, oil” at 30.0 ppm.

Available processing data indicate that propargite residues do not concentrate in aspirated grain fractions of sorghum, but do concentrate in aspirated grain fractions of field corn as high as 0.35 ppm. The Agency determined that a tolerance should be established for aspirated grain fractions at 0.4 ppm. Therefore, EPA is establishing a tolerance in 40 CFR 180.259(a) for residues of propargite in or on “grain, aspirated fractions” at 0.4 ppm.

In order to conform to current Agency practice, in 40 CFR 180.259(a), EPA is revising “corn, forage” to “corn, field, forage” and “corn, sweet, forage;” “corn, grain” to “corn, field, grain” and “corn, pop, grain;” “mint” to “peppermint, tops” and “spearmint, tops;” and “sorghum, forage” to “sorghum, grain, forage.”

In the proposed rule of August 4, 2004 (69 FR 47051), EPA stated that peanut hay is no longer considered to be a significant livestock feed commodity. In fact, peanut hay is considered by the Agency to be a significant livestock feed item as shown at http://www.epa.gov/opptsfrs/OPPTS_Harmonized/860_Residue_Chemistry_Test_Guidelines/Series/ in the Residue Chemistry Test Guidelines OPPTS 860.1000 Table 1. However, registration labels prohibit the feeding of propargite-treated peanut hay to livestock as stated in the propargite RED. Nevertheless, because in the proposed rule of August 4, 2004 (69 FR 47051) the Agency did not identify the feeding restriction as a basis for proposing revocation of the peanut hay tolerance, the Agency will take no action on it in this document. EPA intends to address proposing the revocation of the tolerance for residues of propargite in or on peanut, hay in a future document to be published in the Federal Register .

No comments were received by the Agency concerning the following.

7. Diclofop-methyl . As noted in the September 2000 RED, uses of diclofop-methyl on lentils and dry peas have been deleted from registered labels. The use on lentils may have been canceled since 1985. Therefore, EPA is revoking the tolerances in 40 CFR 180.385 for lentil, seed and pea seeds (dry).

Also, in support of tolerance reassessment, the registrant developed a new enforcement method HRAV-14 gas liquid chromatogragphy/electron capture detector (HRAV-14 GLC/ECD) and subjected a ruminant metabolism study to independent laboratory validation. However, EPA has not yet determined that the newly submitted method is valid. The current FDA enforcement method for diclofop-methyl is the Pesticide Analytical Manual (PAM)-Volume II, which does not detect a metabolite of concern, diclofop acid. Therefore, at this time, EPA will not establish any new tolerances that are recommended in the diclofop-methyl RED. The Agency will address establishing such tolerances in a future document in the Federal Register .

8. Diquat dibromide . The Diquat dibromide RED was completed in July 1995 and the existing tolerances were reassessed according to the FQPA standard in the April 2002 TRED. EPA has determined that the tolerance expression in 40 CFR 180.226(a)(1) should be amended by defining diquat as both a plant growth regulator and herbicide. Therefore, EPA is amending the tolerance expression in 40 CFR 180.226(a)(1) to read “ ... residues of the plant growth regulator and herbicide diquat ... ”.

On July 1, 2003, (68 FR 39427) (FRL-7308-9) EPA revised potato, waste, dried in 40 CFR 180.226(a)(1) to read potato, processed potato waste, but should have revised it to read potato, processed potato waste, dried. Processed, dried potato waste is no longer a significant animal feed item. Therefore, EPA is revoking the tolerances for potato, processed potato waste in § 180.226(a)(1) and processed, dried potato waste in § 180.226(a)(6) because the associated commodities are no longer significant animal feed items and these tolerances are therefore no longer needed.

In order to achieve compatibility with CODEX (see Unit III., below), EPA is increasing the tolerances in 40 CFR 180.226(a)(1) for egg and fat, meat, and meat byproducts of cattle, goats, hogs, horses, poultry, and sheep, from 0.02 ppm to 0.05 ppm.

Available data indicate that residues of diquat in fish and shellfish will exceed the established tolerances at current maximum registered use patterns. In order to cover all residues of diquat which may occur as a result of the currently registered uses, increasing the tolerances to 2.0 ppm for fish and 20.0 ppm for shellfish is appropriate. Therefore, EPA is increasing the tolerances in 40 CFR 180.226(a)(2)(i) for residues of diquat on “fish” from 0.1 ppm to 2.0 ppm and “shellfish” from 0.1 ppm to 20.0 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

The available data concerning diquat residues following irrigation indicate that residues in or on blackberry, cowpea, orange, strawberry, mustard greens, pasture grass, and tomato may exceed the current tolerances for the respective crop groups and that tolerances should be increased to 0.05 ppm for citrus fruits, small fruits, fruiting vegetables, legume vegetables, and Brassica leafy vegetables, and to 0.20 ppm for grass forage. Therefore, EPA is increasing the tolerances in 40 CFR 180.226(a)(2)(i) for residues of diquat on “fruit, citrus, group 10” from 0.02 ppm to 0.05 ppm; “vegetable, fruiting, group 8” from 0.02 ppm to 0.05 ppm; “vegetable, leafy” from 0.02 ppm to 0.05 ppm and revising the terminology to read “vegetable, leafy, except brassica, group 4” and “vegetable, brassica, leafy, group 5;” and by increasing the tolerance level for “vegetable, seed and pod” from 0.02 ppm to 0.05 ppm; and “grass, forage” from 0.1 ppm to 0.2 ppm and revising the terminology to read “grass, forage, fodder and hay, group 17.” Also, EPA is increasing the tolerance in 40 CFR 226(a)(2)(i) for residues of diquat on “fruit, small” from 0.02 ppm to 0.05 ppm. Instead of revising the terminology to read “fruit, small and berry group,” as was proposed, EPA is revising the terminology consistent with the Agency response made in this document to a comment on paraquat; i.e., the old terminology of small fruit for diquat will be separated into individual tolerances for cranberry, grape, and strawberry, as well as berry group 13, each at 0.05 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

While no data are available for the miscellaneous commodities avocado, cottonseed, hops, and sugarcane for which tolerances currently exist, the Agency determined that data for other crops could be translated. Based on the highest residues found in other irrigated crops resulting from irrigation with water containing diquat residues, the Agency determined that tolerances of 0.20 ppm are appropriate for avocado, cottonseed, hops, and sugarcane. Therefore, EPA is increasing the tolerances in 40 CFR 180.226(a)(2)(i) for residues of diquat in or on “avocado,” “cotton, undelinted seed,” and “sugarcane, cane;” each from 0.02 ppm to 0.2 ppm, and “hop, dried cones” from 0.02 ppm to 0.2 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Because available data show that residues of diquat were as high as 1.6 ppm on sorghum grain and 0.16 ppm on soybean, the Agency determined that tolerances should be established for sorghum grain at 2.0 ppm, and both soybean and foliage of legume vegetables at 0.2 ppm. Therefore, EPA is establishing tolerances in 40 CFR 180.226(a)(1) for residues of diquat in or on “sorghum, grain, grain” at 2.0 ppm, “soybean, seed” at 0.2 ppm, and increasing the tolerance in 40 CFR 180.226(a)(2)(i) on “vegetable, foliage of legume, group 7” from 0.1 ppm to 0.2 ppm. The Agency determined that the increased tolerance is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

In addition, soybean processing data indicate that residues of diquat concentrated about 3x in soybean hulls processed from soybean bearing detectable residues. No concentration of residues was observed in other soybean processed fractions. Based on a recommended tolerance of 0.2 ppm for soybean and a concentration factor of about 3x in soybean hulls, the Agency determined that a tolerance of 0.6 ppm is appropriate for residues of diquat on soybean hulls. Therefore, EPA is establishing a tolerance for residues of diquat in § 180.226(a)(3) for “soybean, hulls” at 0.6 ppm.

Based on field trial data on alfalfa grown for seed that show residues of diquat were as high as 2.4 ppm, the Agency determined that a tolerance of 3.0 ppm is appropriate and should be established. Therefore, EPA is establishing a tolerance in § 180.226(a)(1) for “alfalfa, seed” at 3.0 ppm. Also, in the diquat TRED, EPA recommended the establishment of a tolerance on clover seed at 2.0 ppm. However, a tolerance for “clover, seed” is not needed because clover seed is no longer considered by the Agency to be a significant food or feed item.

EPA is revising commodity terminology to conform to current Agency practice as follows: in 40 CFR 180.226(a)(2)(i), “grain, crop” to read “grain, cereal, group 15” and “grain, cereal, forage, fodder and straw, group 16.”

While the Agency did propose to revise tolerance terminology from coffee to coffee, bean in 40 CFR 180.226(a)(3), the Agency did not propose in a notice for comment to revise that tolerance on coffee to coffee, bean, green, as is current Agency practice. However, section 553(b)(3)(B) of the Administrative Procedure Act provides that notice and comment is not necessary “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Consequently, for good cause, EPA is revising the tolerance in 40 CFR 180.226(a)(3) from coffee to coffee, bean, green. The reason for taking this action is because such action has no practical impact on the use of or exposure to the pesticide active ingredient, diquat, in or on that commodity and is made such that the tolerance terminology will conform to current Agency practice.

9. 5-Ethoxy-3-(trichloromethyl)-1,2,4-thiadiazole (etridiazole or terrazole) . Based on available data, EPA determined that there is no reasonable expectation of finite residues of etridiazole and its metabolites on or in animal livestock commodities. These tolerances are no longer needed under 40 CFR 180.6(a)(3). Therefore, EPA is revoking the commodity tolerances in 40 CFR 180.370(a) for residues of etridiazole and its monoacid metabolite in or on “cattle, fat;” “cattle, meat byproducts;” “cattle, meat;” “egg;” “goat, fat;” “goat, meat byproducts;” “goat, meat;” “hog, fat;” “hog, meat byproducts;” “hog, meat;” “horse, fat;” “horse, meat byproducts;” “horse, meat;” “milk;” “poultry, fat;” “poultry, meat byproducts;” “poultry, meat;” “sheep, fat;” “sheep, meat byproducts;” and “sheep, meat.”

Since 1989, there have been no active registrations for etridiazole use on strawberries and therefore the tolerance is no longer needed. Consequently, EPA is revoking the tolerance for strawberry in 40 CFR 180.370.

The Agency determined that metabolism data at exaggerated rates of etridiazole seed treatments on cotton, soybean, and wheat would support seed treatment uses on barley, beans, corn, cotton, peanuts, peas, safflower, sorghum, soybeans, and wheat. Residues of etridiazole per se were non-detectable on soybeans and wheat, but as high as 0.06 ppm on cotton. Residues of the monoacid metabolite are expected not to exceed 0.04 ppm based on the metabolism data from seed treated at 1-fold amounts. Based on these data, the Agency determined that appropriate tolerances for combined residues of etridiazole and its monoacid metabolite for treated seed should be set at the combined limit of quantitation (0.1 ppm) of the available enforcement method. Therefore, EPA is increasing the tolerances in 40 CFR 180.370 for “wheat, grain” from 0.05 ppm to 0.1 ppm, and “corn, field, grain” from 0.05 ppm to 0.1 ppm. Also, EPA is decreasing the tolerance in 40 CFR 180.370 for “cotton, undelinted seed” from 0.20 ppmto 0.1 ppm based on available data. In addition, based on available data, EPA is establishing tolerances in 40 CFR 180.370 at 0.1 ppm for “barley, grain;” “barley, hay;” “cotton, gin byproducts;” “peanut;” “safflower, seed;” “sorghum, grain, forage;” “sorghum, grain, grain;” “vegetable, foliage of legume, group 7;” and “vegetable, legume, group 6.” The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

In order to conform to current Agency practice, in 40 CFR 180.370, EPA is proposing to revise “corn, forage” to read “corn, field, forage” and “corn, sweet, forage,” and “corn, stover” to read “corn, field, stover” and “corn, sweet, stover.”

In the proposed rule of August 4, 2004 (69 FR 47051), EPA stated that peanut hay is no longer considered to be a significant livestock feed commodity. In fact, peanut hay is considered by the Agency to be a significant livestock feed item as shown at http://www.epa.gov/opptsfrs/OPPTS_Harmonized/860_Residue_Chemistry_Test_Guidelines/Series/ in the Residue Chemistry Test Guidelines OPPTS 860.1000 Table 1. Therefore, the Agency intends to address proposing the establishment of a tolerance for residues of etridiazole and its monoacid metabolite in or on peanut hay in a future document to be published in the Federal Register .

Also in the proposed rule of August 4, 2004 (69 FR 47051), the Agency noted the registrant's support of the tomato tolerance in 40 CFR 180.370 for import purposes and the lack of a FIFRA registration because at the time of the RED, the registrant had committed to provide additional data in order to maintain the tomato tolerance for import purposes. However, since the RED, EPA approved several section 24(c) FIFRA registrations for regional domestic use of etridiazole on tomatoes. Consequently, EPA will not amend the tolerance in 40 CFR 180.370 on tomato with a statement regarding the lack of a FIFRA registration.

10. Fenbutatin-oxide . The Fenbutatin-oxide RED was completed in September 1994 and the existing tolerances were reassessed according to the FQPA standard in the May 2002 TRED. EPA determined that in order to better harmonize with Codex, the fenbutatin-oxide (hexakis (2-methyl-2-phenylpropyl) distannoxane) tolerance expression for plants should include the parent compound only. Therefore, in 40 CFR 180.362(a), EPA is recodifying plant tolerances in § 180.362(a)(1) and animal tolerances in § 180.362(a)(2). Moreover, EPA is revising the tolerance expression such that tolerances in § 180.362(a)(1) are established for residues of hexakis (2-methyl-2-phenylpropyl) distannoxane and tolerances in § 180.362(a)(2) are established for the combined residues of hexakis (2-methyl-2-phenylpropyl) distannoxane and its organotin metabolites dihydroxybis(2-methyl-2-phenylpropyl)stannane, and 2-methyl-2-phenylpropylstannoic acid.

Also, EPA is removing the tolerance in 40 CFR 180.362 for “plum, prune” because that tolerance is no longer needed since that use is covered by the dried plum tolerance. In addition, EPA is revising the commodity tolerance terminology “plum” to read “plum, prune, fresh.”

Because available data for almond, pecan, and walnut support a crop group tolerance; EPA is reassigning their individual tolerances in 40 CFR 180.362 into a group tolerance “nut, tree, group 14” and maintaining the tolerance at 0.5 ppm.

The Agency determined that a tolerance on apple wet pomace should be established at 100 ppm because available apple processing data indicate that combined fenbutatin-oxide residues of concern concentrate 1.7x in wet pomace. Based on that processing data, EPA is establishing a tolerance in 40 CFR 180.362(a)(1) for “apple, wet pomace” at 100.0 ppm.

In addition, EPA is revising commodity terminology in 40 CFR 180.362 to conform to current Agency practice as follows: “fruit, citrus” to read “fruit, citrus, group 10.”

11. Folpet . EPA is recodifying the tolerance for “avocado” at 25 ppm from 40 CFR 180.191(a) into 40 CFR 180.191(c) as a tolerance with regional registration because the use of folpet on avocados is limited to the state of Florida, and there is no need for a national tolerance. Additional residue data would be required to establish a tolerance for folpet use on avocados outside the state of Florida.

With the exception of “avocado” and “hop, dried cones,” the registrant is supporting the remaining folpet tolerances for import purposes only and EPA is designating them as import tolerances with no U.S. registrations. These import tolerances are based on the best available field trial and storage stability data and assume use at a maximum single and seasonal application rate, minimum PHI, and minimum retreatment interval for each crop. For some commodities, the import tolerances should be lower than the old tolerance with a U.S. registration because the import tolerances are based on different use information than that on which the previous tolerances were based. Therefore, EPA is modifying certain tolerances for folpet to reflect the best available foreign field trial data. Therefore, use of folpet outside the United States should not exceed the maximum use rate, minimum preharvest interval, and retreatment interval specified herein. Any use pattern exceeding these maximum single and seasonal application rates, minimum PHIs, and minimum retreatment intervals may result in residues exceeding U.S. tolerance levels.

Available field trial data indicate that folpet residues ranged up to 3.67 ppm in or on apples harvested 7 to 10 days following the last of several applications (14 day retreatment interval) at 0.8 ppm to 3.59 kg ai/ha. Based on the available residue field trial data, the Agency determined that a tolerance of 5 ppm on apple is appropriate provided that use directions do not exceed a maximum single application rate of 3.6 kg ai/ha, a maximum seasonal application rate of 10.8 kg ai/ha, a minimum PHI of 10 days, and a treatment interval of 14 days. Therefore, EPA is decreasing the tolerance in 40 CFR 180.191(a) on “apple” from 25.0 ppm to 5.0 ppm.

Foreign field trial data on cranberries indicate that folpet residues ranged up to 11.2 ppm in or on cranberries harvested 30 days following the last of three broadcast applications (separated by a 12- to 14-day retreatment interval) at 5.0 Kilogram active ingredient/hectare/application (kg a.i./ha/application). Although the submitted data do not reflect the maximum label use pattern of folpet on cranberries (which is limited to only two applications and not three applications as tested here), the Agency accepted the current field trial data and determined that a tolerance of 15 ppm is appropriate on cranberries. Therefore, EPA is decreasing the tolerance in 40 CFR 180.191(a) for “cranberry” from 25.0 ppm to 15.0 ppm.

Foreign field trial data on onions indicate that folpet residues ranged up to 0.406 ppm in or on dry bulb onions harvested 7 days following the last of either three or four applications (with a 7-day retreatment interval) of folpet at either 1.5- or 1.95 kg ai/ha per application. Based on the available residue field trial data, the Agency determined that a tolerance of 2.0 ppm is appropriate on dry bulb onions provided that the use directions do not exceed a maximum application rate of 1.95 kg ai/ha, a minimum PHI of 7 days, and a 7-day retreatment interval. Therefore, EPA is decreasing the tolerance in 40 CFR 180.191(a) for “onion, dry bulb” from 15.0 ppm to 2.0 ppm.

Foreign field trial data on strawberries indicate that folpet residues ranged up to 2.56 ppm in or on strawberries harvested 2 days following the last of four applications at 1.25 kg ai/ha per application. Based on the available residue field trial data, the Agency determined that a tolerance of 5 ppm on strawberries is appropriate provided the use directions do not exceed a maximum of four applications per season at up to 1.25 kg ai/application, and specify a retreatment interval of 7 days and a preharvest interval of 2 days. Therefore, EPA is decreasing the tolerance in 40 CFR 180.191(a) for “strawberry” from 25.0 ppm to 5.0 ppm.

Foreign field trial data on grapes indicate that folpet residues ranged up to 38.3 ppm in or on grapes harvested 14 days following the last of five applications (with a 5- to 7-day retreatment interval) at 1.49 kg ai/ha per application. Based on the available residue field trial data, the Agency determined that a tolerance of 50 ppm on grape is appropriate provided that use rates do not exceed a maximum single application rate of 1.5 kg ai/ha, a maximum seasonal rate of 8.0 kg ai/ha, a minimum PHI of 7 days, and a 7-day retreatment interval. Therefore, EPA is increasing the tolerance in 40 CFR 180.191(a) for “grape” from 25 ppm to 50.0 ppm. The Agency has determined that the increased tolerance is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to folpet residues.

No U.S. registration exists for use of folpet on raisins. However, grape processing data show that the average concentration factor from grapes to raisins for folpet residues is 1.9x. Based on an average concentration factor of 1.9x and a HAFT of 38.3 ppm, the Agency determined that for import purposes a tolerance of 80.0 ppm should be established for grape, raisin. Therefore, EPA is establishing a tolerance in 40 CFR 180.191(a) for “grape, raisin” at 80.0 ppm.

Tolerances for “lettuce” and “tomato” will be maintained at the current level of 50.0 ppm and 25.0 ppm, respectively, for import purposes only. There are no U.S. registrations for use of folpet on these commodities.

Foreign field trials for cucumbers harvested 3 to 7 days following the last of several applications indicate residues of folpet up to 0.699 ppm at an application rate up to 1.75 kg/ai/ha. Therefore, EPA has determined that a tolerance of 2.0 ppm is appropriate for imported cucumbers, provided that use of folpet outside the United States does not exceed a maximum single application rate of 1.75 kg ai/ha, a maximum seasonal application rate of 8.0 kg ai/ha, a minimum preharvest interval of at least 3 days, and a minimum retreatment interval of at least 7 days. Also, foreign field trials for melons harvested 7 days following the last of up to 6 applications at a maximum application rate of 1.75 kg ai/ha (with a 5- to 7-day retreatment interval) indicate residues of folpet up to 2.3 ppm. Therefore, EPA has determined that a tolerance of 3.0 ppm is appropriate for imported melons, provided that use of folpet outside the United States does not exceed a maximum single application rate of 1.75 kg ai/ha, a maximum seasonal application rate of 10.5 kg ai/ha, a minimum preharvest interval of at least 7 days, and a minimum retreatment interval of at least 7 days. Based on the available residue field trial data, the Agency has determined that the tolerances on cucumber and melon should be decreased from 15.0 ppm to 2.0 ppm and from 15.0 ppm to 3.0 ppm, respectively. Therefore, EPA is decreasing the tolerances in 40 CFR 180.191(a) on cucumber to 2.0 ppm and melon to 3.0 ppm.

The Agency did not propose in a notice for comment to revise the tolerance nomenclature for folpet in 40 CFR 180.191(a) from onion, dry bulb to onion, bulb, as is current Agency practice. However, section 553(b)(3)(B) of the Administrative Procedure Act provides that notice and comment is not necessary “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Consequently, for good cause, EPA is revising the tolerance terminology in 40 CFR 180.191(a) from onion, dry bulb to read onion, bulb. The reason for taking this action is because such action has no practical impact on the use of or exposure to the pesticide active ingredient, folpet, in or on that commodity and is made such that the tolerance terminology will conform to current Agency practice.

Since the folpet RED was completed in 1999, a tolerance for the purpose of importation was established in 40 CFR 180.191(a) for “hop, dried cones” (68 FR 10377, March 5, 2003)(FRL-7296-2) and later, based on the Agency's approval of a petition for a FIFRA registration regarding folpet use on U.S. grown hop, dried cones, the tolerance for hop, dried cones was amended to delete the statement regarding the lack of a FIFRA registration on August 25, 2004 (69 FR 52182) (FRL-7369-1.

12. Hydramethylnon (Pyrimidinone) . EPA is increasing the following commodity tolerances in 40 CFR 180.395(a): “grass (pasture and rangeland)” from 0.05 ppm to 2.0 ppm and revising the terminology to “grass, forage” and “grass, hay;” based on available field trial data which show residues of hydramethylnon above the current tolerance level and label amendments which reflect parameters of use patterns for which field trials are available; (i.e., reflect a 0 day post harvest interval) since the Agency no longer allows a PHI restriction on grass. The tolerance for “grass hay (pasture and rangeland)” was recommended to be increased from 0.05 ppm to 0.1 ppm, based on available field trial data previously discussed and label amendments which reflect a 0 day post harvest interval. However, because the terminology should be revised to “grass, hay,” that tolerance at 0.1 ppm is no longer needed since it would be a duplicate covered by the proposed tolerance at 2.0 ppm. Therefore, EPA is removing the tolerance in 40 CFR 180.395(a) for grass hay (pasture and rangeland).

After the hydramethylnon RED was completed in 1998, a permanent tolerance was established in 40 CFR 180.395(a) on pineapple (68 FR 48302, August 13, 2003)(FRL-7319-5). Since the proposal of August 4, 2004 (69 FR 47051), the time-limited tolerance for hydramethylnon residues on pineapple in 40 CFR 180.395(b), for section 18 emergency exemptions, expired on June 30, 2005. The Agency did not propose in a notice for comment to remove the text and table with the expired tolerance and reserve 40 CFR 180.395(b). However, section 553(b)(3)(B) of the Administrative Procedure Act provides that notice and comment is not necessary “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Consequently, for good cause, EPA is removing the text and table from 40 CFR 180.395(b) and reserving that section for emergency exemptions in this document. The reason for taking this action is because such action has no practical impact on the use of or exposure to the pesticide active ingredient, hydramethylnon, since the sole time-limited tolerance in 40 CFR 180.395(b) had expired and, as it no longer needs to be codified in that section, should be removed for the sake of clarity.

13. Phosphine . EPA is removing the commodity tolerance in 40 CFR 180.225(a)(1) for residues of phospine in or on “pimento;” because under 40 CFR 180.1(g) this tolerance is covered by the existing tolerance for pepper.

14. Picloram . The Picloram RED was completed in March 1995 and the existing tolerances were reassessed according to the FQPA standard when new tolerances were established on January 5, 1999 (64 FR 418)(FRL-6039-4). Because the tolerances at 3.0 ppm in 40 CFR 180.292(a)(3) for residues of picloram in or on barley, milled fractions (exc flour); oat, groats/rolled oats (previously known as oat, milled fractions (exc flour)); and wheat, milled fractions (exc flour) are duplicates covered by the tolerances at 3.0 ppm in 40 CFR 180.292(a)(2), there is no longer a need for them and therefore, EPA is removing the tolerances in 40 CFR 180.292(a)(3) for residues of picloram in or on barley, milled fractions (exc flour); oat, groats/rolled oats, and wheat, milled fractions (exc flour).

Because the time-limited tolerances on aspirated grain fractions, sorghum grain, forage, and stover for indirect or inadvertent residues in 40 CFR 180.292(d) all expired on December 31, 2000, there is no longer a need to codify them in that part. Therefore, EPA is amending 40 CFR 180.292(d) by removing the existing paragraph and table of expired tolerances, and reserving the paragraph designation.

Based on the concentration of picloram residues in the aspirated grain fractions of wheat, EPA is establishing tolerances in 40 CFR 180.292(a)(1) for “grain, aspirated fractions” at 4.0 ppm.

In order to conform to current Agency practice, in 40 CFR 180.292(a)(2), EPA is revising “barley, milled fractions (exc flour)” to read “barley, pearled barley;” and “wheat, milled fractions (exc flour)” to read “wheat, bran;” “wheat, germ;” “wheat, middlings;” and “wheat, shorts.”

EPA will not take action on the tolerance in 40 CFR 180.292(a)(1) for “grass, forage” or establish a tolerance for “grass, hay” at this time due to label and data issues. However, the Agency intends to clarify these issues with the registrants.

15. Triclopyr . EPA has determined that the residue which should be regulated in grass and rice commodities and milk, poultry, and eggs is triclopyr per se. The Agency has also determined that the residue which should be regulated in meat and meat byproducts are the combined residues of triclopyr and the metabolite 3,5,6-trichloro-2-pyridinol (TCP). Therefore, EPA is revising the tolerance expression in 40 CFR 180.417(a)(1) to reflect residues of triclopyr per se as a result of the application/use of butoxyethyl ester of triclopyr and triethylamine salt of triclopyr. In addition, EPA is recodifying tolerances for “egg,” “milk,” “poultry, fat;” “poultry, meat byproducts, except kidney;” “poultry, meat;” “rice, grain;” and “rice, straw;” from 40 CFR 180.417(a)(2) to (a)(1).

Also, EPA is amending the tolerance expression in 40 CFR 180.417(a)(2) to reflect the combined residues of the herbicide triclopyr ((3,5,6-trichloro-2-pyridinyl)oxy) acetic acid and its metabolite 3,5,6-trichloro-2-pyridinol (TCP) as a result of the application/use of butoxyethyl ester of triclopyr or the triethylamine salt of triclopyr.

Since the time of the Triclopyr RED, the Agency has determined that a proposal by the registrant to increase the tolerance for “grass, forage” from 500 ppm to 700 ppm is acceptable provided that registrations specify a maximum application rate of 2 lb. acid equivalents (ae)/A per annual growing season. The dietary risk assessment performed as part of the triclopyr RED supports this increase. The current tolerances on meat commodities are adequate to cover residues that may occur from grazing areas treated at 2 lb. ae/A. Therefore, EPA is increasing the tolerance in 40 CFR 180.417(a)(1) on “grass, forage” to 700.0 ppm. Also, the Agency is revising in 40 CFR 180.417(a)(1) the commodity terminology “grass, forage, hay” to read “grass, hay” and decreasing the tolerance from 500.0 ppm to 200.0 ppm, based on available data and label amendments. The Agency determined that the increased tolerance is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Since the triclopyr RED was completed in 1997, tolerances were established in 40 CFR 180.417(a)(1) for “fish” and “shellfish” (67 FR 58712, September 18, 2002)(FRL-7196-7).

16. Triphenyltin hydroxide (TPTH) . Since TPTH residues of concern in plant and animal commodities have been determined to include TPTH and its monophenyltin (MPTH) and diphenyltin (DPTH) hydroxide and oxide metabolites, EPA is revising the tolerance definition in 40 CFR 180.236 in terms of the combined residues of TPTH and its MPTH and DPTH hydroxide and oxide metabolites, expressed in terms of parent TPTH.

Based on available ruminant feeding data that indicate combined TPTH-regulated residues as high as 1.15 ppm in kidney and 3.7 ppm in liver, the Agency determined that the appropriate tolerances for kidney and liver of cattle, goats, horses, and sheep are 2.0 ppm and 4.0 ppm, respectively. Therefore, EPA is increasing the tolerances in 40 CFR 180.236 for “cattle, liver;” “goat, liver;” “horse, liver;” and “sheep, liver;” each from 0.05 ppm to 4.0 ppm, “cattle, kidney;” “goat, kidney;” “horse, kidney;” and “sheep, kidney;” each from 0.05 ppm to 2.0 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Also, because available ruminant feeding data show combined TPTH-regulated residues as high as 0.14 ppm in fat and 0.34 ppm in meat, the Agency determined that the appropriate tolerances should be established for fat and meat of cattle, goats, horses, and sheep at 0.2 ppm and 0.5 ppm, respectively. Moreover, based on non-detectable levels and combined LOQs of 0.02 ppm for each metabolite, the Agency determined that a tolerance should be established for milk at 0.06 ppm. Therefore, EPA is establishing tolerances in 40 CFR 180.236 for “cattle, fat;” “goat, fat;” “horse, fat;” and “sheep, fat;” each at 0.2 ppm; “cattle, meat;” “goat, meat;” “horse, meat;” and “sheep, meat;” each at 0.5 ppm, and “milk” at 0.06 ppm.

The ruminant feeding data was also used by the Agency to reassess tolerances for swine. EPA determined that tolerances for hog kidney and liver should be increased to 0.3 ppm (the combined LOQs of 0.1 ppm for residues in kidney, liver and fat), and that these separate tolerances should be combined as hog, meat byproducts. In addition, EPA determined that tolerances should also be established for hog fat at 0.3 ppm (the combined LOQs of 0.1 ppm for each metabolite), and in hog meat at 0.06 ppm (the combined LOQs of 0.02 ppm for each metabolite). Therefore, EPA is revising the commodity tolerances in 40 CFR 180.236 for “hog, kidney” and “hog, liver” at 0.05 ppm into the commodity tolerance “hog, meat byproducts” and increasing the tolerance to 0.3 ppm, and establishing tolerances for “hog, fat” at 0.3 ppm and “hog, meat” at 0.06 ppm. The Agency determined that the increased tolerance is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

Based on available field trial data that show combined TPTH-regulated residues as high as 9.7 ppm, the Agency determined that a tolerance should be established at 10.0 ppm for beet, sugar, tops. Therefore, EPA is establishing a tolerance in 40 CFR 180.236 for “beet, sugar, tops” at 10.0 ppm.

EPA may issue a regulation establishing, modifying, or revoking a tolerance under FFDCA section 408(e). In this final rule, EPA is establishing, modifying, and revoking tolerances to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes, and as follow-up on canceled uses of pesticides. As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standards under FFDCA. The safety finding determination is found in detail in each Post-FQPA RED and TRED for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, to meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed and electronic copies of the REDs and TREDs are available as provided in Unit II.A.

EPA has issued post-FQPA REDs for bromoxynil, diclofop-methyl, dicofol, etridiazole (terrazole), folpet, hydramethylnon, iprodione, paraquat, phosphine (aluminum and magnesium phosphide), propargite, triclopyr, and triphenyltin hydroxide (TPTH), and TREDs for diquat and fenbutatin-oxide, whose REDs were both completed prior to FQPA. Also, EPA issued a RED prior to FQPA for picloram and in 1999 made a safety finding which reassessed its tolerances according to the FFDCA standard, maintaining them when new tolerances were established as noted in Unit II.A. REDs and TREDs contain the Agency's evaluation of the data base for these pesticides, including statements regarding additional data on the active ingredients that may be needed to confirm the potential human health and environmental risk assessments associated with current product uses, and REDs state conditions under which these uses and products will be eligible for reregistration. The REDs and TREDs recommended the establishment, modification, and/or revocation of specific tolerances. RED and TRED recommendations such as establishing or modifying tolerances, and in some cases revoking tolerances, are the result of assessment under the FFDCA standard of “reasonable certainty of no harm.” However, tolerance revocations recommended in REDs and TREDs that are made final in this document do not need such assessment when the tolerances are no longer necessary.

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

When EPA establishes tolerances for pesticide residues in or on raw agricultural commodities, the Agency gives consideration to possible pesticide residues in meat, milk, poultry, and/or eggs produced by animals that are fed agricultural products (for example, grain or hay) containing pesticides residues (40 CFR 180.6). If there is no reasonable expectation of finite pesticide residues in or on meat, milk, poultry, or eggs, then tolerances do not need to be established for these commodities (40 CFR 180.6(b) and 180.6 (c)).

These actions become effective 90 days following publication of this final rule in the Federal Register . EPA has delayed the effectiveness of these actions to ensure that all affected parties receive notice of EPA's actions. Consequently, the effective date is October 30, 2007. For this final rule, the tolerances that were revoked because registered uses did not exist concerned uses which have been canceled, in some cases, for many years. The Agency believes that existing stocks of pesticide products labeled for the uses associated with the tolerance revocations have been completely exhausted and that treated commodities have had sufficient time for passage through the channels of trade.

Any commodities listed in the regulatory text of this document that are treated with the pesticides subject to this final rule, and that are in the channels of trade following the tolerance revocations, shall be subject to FFDCA section 408(1)(5), as established by the FQPA. Under this section, any residues of these pesticides in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of the Food and Drug Administration that: (1) The residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA, and (2) the residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption from tolerance. Evidence to show that food was lawfully treated may include records that verify the dates that the pesticide was applied to such food.

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

In this final rule EPA establishes tolerances under FFDCA section 408(e), and also modifies and revokes specific tolerances established under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions (i.e., establishment and modification of a tolerance and tolerance revocation for which extraordinary circumstances do not exist) from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq ., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any other Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-13, section 12(d) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .), the Agency previously assessed whether establishment of tolerances, exemptions from tolerances, raising of tolerance levels, expansion of exemptions, or revocations might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. These analyses for tolerance establishments and modifications, and for tolerance revocations were published on May 4, 1981 (46 FR 24950) and on December 17, 1997 (62 FR 66020), respectively, and were provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticides listed in this rule, the Agency hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities. In a memorandum dated May 25, 2001, EPA determined that eight conditions must all be satisfied in order for an import tolerance or tolerance exemption revocation to adversely affect a significant number of small entity importers, and that there is a negligible joint probability of all eight conditions holding simultaneously with respect to any particular revocation. (This Agency document is available in the docket of the proposed rule, as mentioned in Unit II.A. Furthermore, for the pesticides named in this final rule, the Agency knows of no extraordinary circumstances that exist as to the present revocations that would change EPA's previous analysis. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

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

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2007-0289 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before October 1, 2007.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2007-0289, 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 March 15, 2006 (71 FR 13388) (FRL-7768-2), EPA issued a notice pursuant to section 408(d)(3) of the FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 5F6982) by Desert King Chile, Ltd., Antonio Bellet 77 OF.401, Providencia, Santiago, Chile 6640209 (submitted by Technology Sciences Group, Inc., 1101 17th St., NW., Suite 500, Washington, DC 20026.) The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of Quillaja saponaria extract. The notice included a summary of the petition prepared by the petitioner Desert King Chile, Ltd. There were no comments received in response to the notice of filing.

Section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, section 408(b)(2)(D) of the FFDCA requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues ” and “other substances that have a common mechanism of toxicity.”

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

Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Quillaja saponaria , commonly known as Soapbark tree, is a naturally occurring evergreen, originally native to the South American Andes regions. The active ingredient is a water extract from the bark of Quillaja saponaria . Extracts of Quillaja saponaria are commonly known as saponins, which belong to a group of naturally occurring glycosides produced mainly by plants that form soap-like foams in aqueous solutions. In general, saponins are found primarily in the tree bark and wood, and to a lesser extent in the leaves. They are comprised of a sugar moiety (typically glucose, galactose, glucuronic acid, xylose, rhamnose, or methylpentose) linked to a hydrophobic aglycone (sapogenin) at the C-3 (monodesmosidic) or at the C-3 and C-26 or C-28 (bidesmosidic) positions. Saponins are found in a wide variety of plants of diverse species and many are used in human food such as baked goods, candies, and soft drinks. Saponins can be used as a pesticide to inhibit the growth of pathogenic fungi and nematodes in grapes and food crops. Saponins extracted from Quillaja saponaria belong to the bidesmosidic group, and are widely used in human foods.

The Food and Drug Administration (FDA) has classified Quillaja saponaria extract as “Generally Recognized as Safe” (GRAS). Quillaja extract is used in beverages and other foods with no report of any adverse effects. Other saponins are widely used in commonly consumed human food, flavoring, herbs, and spices also with no report of any adverse effects. According to the World Health Organization (WHO 2002), the established Average Daily Intake (ADI) of saponins from food additives is about 5 milligrams/kilogram body weight (mg/kg bwt). This is much higher than 0.28 mg/kg bwt which represent the calculated average daily intake of Quillaja saponins when used as a pesticide to treat fruits and vegetables. Moreover, up to 100 mg saponin has been measured in a kg of sugar extracted from sugar beets ( Beta vulgaris ). According to the United States Department of Agriculture, the U.S. consumption of sugar and sweeteners from sugar beet is over 80 kg a year per capita, or 8,000 mg of saponins. Furthermore, soybean flour and soybean protein has been shown to contain up to 2.5% saponin, and it has been estimated that saponins comprise the pharmacologically active components of approximately 30% of all medicinal plants.

In summary, the daily human exposure and intake of saponins for consumed foods and additives and pharmaceutical products is much higher than what would be consumed from pesticidal exposure and uses of Quillaja saponins. This exposure has not resulted in any adverse effects on humans. As a result, the Agency has no concerns about dietary exposure of Quillaja saponins.

Comprehensive reviews and risk assessment have been conducted on Quillaja saponins with regard to its toxicity to human health and have concluded that these saponins have low acute toxicity.

1. Acute toxicity . Quillaja saponins are in Toxicity Category III for acute oral and acute dermal toxicity, Toxicity Category I for primary eye irritation, and Toxicity Category IV for acute inhalation toxicity and primary dermal irritation. Quillaja saponins are not dermal sensitizers. Based on the review and analysis of the guideline studies, no additional toxicity data are required to support food or non-food uses of this compound.

2. Mutagenicity, developmental toxicity, and immunotoxicity . The applicant requested waivers for the mutagenicity (OPPTS Harmonized Guideline 870.5100), developmental toxicity (OPPTS Harmonized Guideline 870.3700), and immunotoxicity (OPPTS Harmonized Guideline 870.7800). Quillaja extracts are used as emulsifiers in baked goods, candies, frozen dairy products, gelatins, and puddings. The active ingredient is not a mutagen nor is it related to any known classes of mutagens. Chronic feeding studies have demonstrated that Quillaja saponins are not carcinogenic in mice or rats fed up to 2,200 mg/kg in the diet. Saponins have been demonstrated to have anticarcinogenic properties and to stimulate the immune system. Dietary levels of Quillaja saponin (up to 700 ppm in feed) stimulated the immune systems of piglets fed for 20 days post-weaning (Ilsey et al., 2005). Based on the information provided, the request for waivers of mutagenicity, developmental toxicity, and immunotoxicity testing requirements was granted by the Agency.

3. Subchronic toxicity . The requirement for a 90-day feeding study (OPPTS Harmonized Guidelines 870.3100) was satisfied by submission of a study in which Quillaja extract was administered to 15 CFE rats at dietary concentrations equivalent to 0, 360, 1,180, or 2,470 mg/kg bwt/day for males and 0, 440, 1,370, or 3,030 mg/kg bwt/day for females for 13 weeks. Additional groups of 5 rats were administered 0, 2.0, or 4.0% test material for 2 weeks or 6 weeks for interim evaluations. There were no treatment-related effects on mortality, clinical signs, hematology and erythrocyte osmotic fragility, clinical chemistry, urinalysis, or gross and histologic pathology. The NOAEL for the study was the highest dose tested, 2,470 mg/kg bwt/day for males and 3,030 mg/kg bwt/day for females.

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

1. Food . The Agency is not concerned about dietary exposure to Quillaja saponins because humans consume it regularly without any reports of adverse effects. Humans are regularly exposed to Quillaja saponins via their use as an FDA-approved flavoring agent and food additive. Undiluted Quillaja saponaria extracts are used in soft drinks at levels of 100-500 mg/kg (WHO, 2002). The Joint WHO/FAO Expert Committee on Food Additives (WHO, 2002) established an acceptable daily intake (ADI) of Quillaja saponins of up to 5 mg/kg/day. The mean intake of Quillaja extracts in the U.S. just from soft drinks (the major food use) is as much as 0.54 mg/kg/day, or 11% of the ADI (WHO, 2006). According to EPA's review and calculations using a maximum use rate for up to 6 applications per season, the exposure and average daily intake of Quillaja saponins from treated crops is estimated to be 0.28 mg/kg bwt. This amount is well below the established ADI of 5 mg/kg bwt (WHO, 2002). Even if the use of Quillaja saponins exceeds the maximum proposed use rate, the Agency is not concerned about dietary exposure because of the low toxicity of this active ingredient and the history of its use without any reports of adverse effects.

2. Drinking water exposure . No significant drinking water exposure and residues are expected to result from the pesticidal usage of Quillaja saponins, especially when compared to ubiquity of the naturally occurring saponins in the environment and their widespread use at higher concentrations in food items and beverages. Moreover, saponins are widely known to biodegrade quickly in the environment. As a result, dietary and drinking water exposure to Quillaja's saponins from product applications, are expected to be minimal.

There are no residential, school or day care uses proposed for this product. Since the proposed use pattern is for agricultural food crops, the potential for non-occupational, non-dietary exposures to Quillaja saponins by the general population, including infants and children, is highly unlikely.

1. Dermal exposure . Non-occupational dermal exposures to Quillaja saponins when used as a pesticide are expected to be negligible because it is limited to agricultural use.

2. Inhalation exposure . Non-occupational dermal exposures to Quillaja saponins when used as a pesticide are expected to be negligible because it is limited to agricultural use.

Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish an exemption from 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.'' These considerations include the possible cumulative effects of such residues on infants and children. EPA has considered the potential for cumulative effects of Quillaja saponins and other substances in relation to a common mechanism of toxicity. Common mechanisms of toxicity are not relevant to a consideration of cumulative exposure to Quillaja saponins because the extract is not toxic to mammalian systems. Thus, the Agency does not expect any cumulative or incremental effects from exposure to residues of Quillaja saponins when applied/used as directed on the label and in accordance with good agricultural practices.

There is reasonable certainty that no harm will result from aggregate exposure to residues of Quillaja saponins to the U.S. population, infants, and children. This includes all anticipated dietary exposures and all other exposures for which there is reliable information. The Agency arrived at this conclusion based on the low level of toxicity of Quillaja extract and the already widespread exposure to Quillaja saponins without any reported adverse effects on human health. The risks from aggregate exposure via oral, dermal and inhalation exposure are a compilation of three low-risk exposure scenarios and are negligible. Since there are no threshold effects of concern, the provision requiring an additional margin of safety does not apply. Moreover, Quillaja extracts are classified by the Food and Drug Administration (FDA) as ‘Generally Recognized as Safe” (GRAS), and are also a part of the human diet when used as emulsifiers in baked goods, candies, frozen dairy products, gelatin, and puddings (WHO, 2002). Humans have had frequent physical contact with Quillaja saponaria with no negative health effects. Therefore, the Agency has not used a margin of exposure (safety) approach to assess the safety of saponins of Quillaja saponaria .

FFDCA section 408 provides that EPA shall apply an additional tenfold margin of exposure (also referred to as a margin of safety) for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database unless EPA determines that a different margin of exposure will be safe for infants and children. Margins of exposure are often referred to as uncertainty or safety factors. In this instance, based on all available information, the Agency concludes that Quillaja saponaria extract is non-toxic to mammals, including infants and children. Because there are no threshold effects of concern to infants, children, and adults when Quillaja saponaria extract is used as labeled, the provision requiring an additional margin of safety does not apply. As a result, EPA has not used a margin of exposure approach to assess the safety of Quillaja saponins.

EPA is required under section 408(p) of the FFDCA, as amended by FQPA, to develop a screening program to determine whether certain substances (including all pesticide active and other ingredients) “may have an effect in humans that is similar to an effect produced by a naturally occurring estrogen, or other such endocrine effects as the Administrator may designate.”

Quillaja saponins are not known endocrine disruptors nor is it related to any class of known endocrine disruptors. Thus, there is no impact via endocrine-related effects on the Agency's safety finding set forth in this final rule for Quillaja saponins.

Through this action, the Agency proposes to establish an exemption from the requirement of a tolerance for the saponins extracted from Quillaja saponaria when used on fruit and vegetable crops. For the very same reasons that support the granting of this tolerance exemption, the Agency has concluded that an analytical method is not required for enforcement purposes for these proposed uses of Quillaja saponins .

There are no codex maximum residue levels established for Quillaja saponins.

There are no human health concerns when this food use product containing Quillaja saponins is applied according to label use directions. The data submitted by applicant and reviewed by the Agency support the petition for an exemption from the requirement of a tolerance for Quillaja saponins on food when the product is applied/used as directed on the label and in accordance with good agricultural practices.

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

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

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

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

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

This is a summary of the Commission's Third Report and Order (hereinafter Third Report and Order ) in WT Docket No. 00-230, adopted on April 6, 2007, and released on April 11, 2007. This order addresses comments filed in response to the Commission's Second Further Notice of Proposed Rulemaking ( Second Further Notice ) 69 FR 77560, December 27, 2004, in this docket. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text may be purchased from the FCC's copy contractor, Best Copy & Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (800) 378-3160 or 863-2893, facsimile (202) 863-2898, or via e-mail at http://www.bcpiweb.com. The full text is also available on the Commission's Web site at http://www.fcc.gov.

This Third Report and Order does not contain any new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

1. In the Third Report and Order, the Commission affirms the Commission's policies and rules regarding “private commons” arrangements. We decline to adopt additional technical requirements regarding devices that might be used within a private commons, finding that such requirements are both premature and unnecessary. In addition, we determine that the proposal for licensing underutilized spectrum to equipment manufacturers for development of private commons is beyond the scope of this proceeding.

2. In the Second Report and Order portion of the Second Report and Order, Order on Reconsideration, and Second Further Notice of Proposed Rulemaking in WT Docket No. 00-230, ( Second Report and Order, Order on Recon, and Second Further Notice, respectively), the Commission took additional steps to facilitate the development of robust secondary markets in spectrum usage rights involving Wireless Radio Services. In particular, in the Second Report and Order, 69 FR 77521, December 27, 2004, the Commission established additional policies intended to facilitate the use of advanced technologies, including “smart” or “opportunistic” devices, which have the potential to increase access and use of unused licensed spectrum. First, the Commission clarified that its spectrum leasing rules permit “dynamic” spectrum leasing arrangements, whereby licensees and spectrum lessees may enter into more than one spectrum leasing arrangement involving the shared use of the same spectrum. Second, the Commission expanded the spectrum licensing framework to include a new “private commons” option. The “private commons” was intended as a means of allowing a licensee or spectrum lessee to make spectrum available to individual users or groups of users that do not fit squarely within the existing spectrum leasing framework or within the traditional end-user arrangements associated with the licensee's or lessee's network infrastructure. The Commission stated that it sought to provide for opportunistic uses of spectrum pursuant to the terms and conditions that licensees (and spectrum lessees) agree upon so long as these terms and conditions fall within the licensee's spectrum usage rights and are not inconsistent with applicable technical and other regulations imposed by the Commission to prevent harmful interference to other licensees.

3. By establishing a private commons a licensee (or spectrum lessee) may permit peer-to-peer communications by other users employing devices in a non-hierarchical network arrangement that does not utilize the licensee's (or spectrum lessee's) network infrastructure. The licensee (or lessee) authorizes other users to operate on the licensed frequencies employing particular devices that meet technical parameters specified by the licensee (or lessee). The technical parameters for these devices, in turn, enable users to operate in a manner designed to minimize interference concerns relating to other users in the licensed band. The Commission stated that the licensee (or lessee) must retain both de facto control of the use of the spectrum within the private commons and “direct responsibility” for the users’ compliance with the Commission's rules. Further, as manager of the private commons, the licensee (or lessee) is required to notify the Commission about the private commons, and particular features associated with it, prior to permitting users to operate. Requirements pertaining to private commons arrangements are set forth in § 1.9080 of the Commission's rules.

4. In the Second Further Notice, the Commission sought comment on additional policies that could facilitate the development of advanced technologies, including whether additional revisions should be made to the private commons regulatory model. The Commission also sought comment on whether the private commons option established in the Second Report and Order sufficiently accommodates the wide variety of ways in which licensees (and spectrum lessees) and other users may wish to enter cooperative arrangements that employ “smart” or “opportunistic” devices. For example, the Commission asked whether it should adopt an approach to private commons that would allow intermediaries to facilitate transactions with users, design and set up communications networks for users or provide value-added services or applications. In addition, the Commission sought comment on the appropriate notification process for licensees or de facto transfer lessees that choose to offer a private commons to comply with the requirement that a licensee or spectrum lessee managing the private commons must notify the Commission prior to permitting users to begin operating within the private commons.

5. In response to the Second Further Notice, the Commission received comments from Cingular Wireless LLC (Cingular Wireless), CTIA—The Wireless Association (CTIA), and Gateway Communications, Inc. (Gateway). Cingular Wireless and CTIA sought clarification of certain aspects of the requirements pertaining to the licensee's or spectrum lessee's responsibility, as manager of the private commons, to ensure that users and devices used in a private commons arrangement comply with applicable Commission rules. Gateway proposed a new scheme for managing a private commons in cases of “market failure.”

6. Cingular Wireless specifically asked for additional clarification regarding the circumstances under which the Commission would hold, and would not hold, the licensee (or lessee) “directly responsible” for users’ interference in geographic areas outside of the private commons, in which they were not authorized to operate. For example, in the case of mobile opportunistic devices, Cingular Wireless argued that the Commission should evaluate a licensee's (or lessee's) compliance with its responsibilities based on the terms and conditions it establishes for operation within the private commons, and that non-compliance with these provisions should not result in liability to the licensee (or lessee). In addition, while agreeing that it may be “beneficial or even necessary” to require that smart devices used in the private commons include technologies enabling the private commons managers to shut down the devices if they were causing harmful interference, Cingular Wireless argued that imposing such a requirement at this time would be premature.

7. CTIA urged the Commission to adopt more detailed technical standards concerning private commons arrangements. Specifically, to ensure that a private commons device cannot be used outside of the licensed spectrum and geographic area of the licensee (or lessee) authorizing the use of its spectrum, CTIA recommended adoption of strict rules and suggested that any private commons device should contain an element of positive control, in the form of technical intelligence, that prevents it from operating in unauthorized spectrum or areas.

8. In response to the Second Further Notice, Gateway proposed that the Commission go beyond its secondary markets mechanisms and allow equipment manufacturers to file applications for authority to manage private commons using licensed spectrum in geographic areas where there has been a “market failure” and spectrum is “unwanted” or “underutilized.” Gateway suggested that the Commission could issue licenses to equipment manufacturers in exchange for a reasonable one-time payment to the United States treasury, or for a modest spectrum use fee payable on an annual basis to the Commission, or even at no charge, but did not suggest how the Commission would decide among competing parties who might seek to obtain any such license. Gateway asserted that this new licensing mechanism of offering spectrum to equipment manufacturers would create new opportunities for small businesses and others to obtain access to spectrum for a variety of niche uses and services.

9. In reply comments, CTIA asserted that the Commission should reject Gateway's proposal as outside of the scope of the Commission's Second Further Notice, which sought comment only on the use of opportunistic devices in licensed spectrum, not comment on new ways to give an interested party an initial spectrum license for a private commons. Accordingly, the Commission cannot consider Gateway's proposal in this proceeding because doing so would violate the requirement for adequate notice under the Administrative Procedures Act (APA). CTIA further asserted that the proposal would create a new licensing scheme in violation of the requirements under section 309(j) of the Communications Act, as amended, which requires that the spectrum be subject to competitive bidding.

10. We determine that the requirements set forth in the Second Report and Order and codified in our rules, 47 CFR 1.9080, provide the right balance in encouraging the development of devices for operation within a private commons arrangement while at the same time placing the appropriate degree of responsibility on licensees (or spectrum lessees) to ensure that the users and devices do not cause harmful interference in areas outside of the private commons and the license authorization. Accordingly, we affirm the general policies and rules the Commission adopted for private commons, including the requirement that licensees (or spectrum lessees) retain both de facto control over use of the spectrum and direct responsibility for ensuring that users and the devices used within the private commons comply with the Commission technical and services rules under the license authorization, including those relating to interference. Because the licensees (or lessees) themselves, in their capacity as managers of private commons, exercise control under the license authorization and are responsible for establishing the technical parameters of the devices that would be used within the private commons, they must exercise their responsibilities so as to ensure compliance with the rules, including bearing direct responsibility for establishing parameters of use that prevent harmful interference beyond the private commons areas and the boundaries of their licenses.

11. Based on the scant record before us and the wide variety of ways in which a private commons could be implemented, we decline to modify our rules at this time to further detail the responsibilities placed on the managers of private commons. We are in no position, based on what is before us, to make any determination by rule, as Cingular Wireless requests, as to whether a particular mechanism may or may not be sufficient for a licensee (or spectrum lessee) to exercise its responsibilities in a given instance. Nor do we conclude that establishing strict technical rules or requirements, as requested by CTIA, is appropriate. We do not want to limit at this time the various means by which a licensee (or lessee) might fulfill its obligations as manager of a private commons. While a “shut down” mechanism may be effective, it is not the only conceivable means to ensure that a licensee (or lessee) exercises de facto control over the use of the spectrum and complies with the Commission's rules under the license authorization. We see no need at this time to limit other possible means that might be consistent with the Commission's private commons framework.

12. Finally, because Gateway's proposal is outside the scope of the Second Further Notice, and not a logical outgrowth of it, we will not address it in this proceeding. The Second Further Notice sought comment on ways to increase spectrum access through opportunistic uses of spectrum specifically within the context of the Commission's spectrum leasing policies and rules set forth in the proceeding addressing the development of secondary markets. The Second Further Notice did not contemplate revising the Commission's initial licensing rules. We note that the opportunities that Gateway sees for new uses of spectrum also exist within the private commons framework that the Commission has established in the Second Report and Order.

13. Pursuant to sections 1, 4(i), 301, 303(r), and 503 of the Communications Act, as amended, 47 U.S.C. 151, 154(i), 301, 303(r), and 503, it is ordered that this Third Report and Order is adopted. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of the Third Report and Order, including the Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

This is a summary of the Commission's Memorandum Opinion and Order , ET Docket No. 03-201, FCC 07-117, adopted June 19, 2007 and released June 22, 2007. The full text of this document is available on the Commission's Internet site at http://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 dismissed two petitions for reconsideration of the rules adopted in the Report and Order , 69 FR 54027, September 7, 2004, in this proceeding. It dismissed a petition for reconsideration filed by Warren C. Havens and Telesaurus Holdings GB LLC (“Havens”) requesting that the Commission suspend the rule changes adopted for unlicensed devices in the 902-928 MHz (915 MHz) band until such time as it completes a formal inquiry with regard to the potential effect of such changes to Location and Monitoring Service (LMS) licensees in the band. The Commission also dismissed a petition for reconsideration filed by Cellnet Technology (“Cellnet”) requesting that the Commission adopt spectrum sharing requirements in the unlicensed bands, e.g. , a “spectrum etiquette,” particularly in the 915 MHz band.

2. Havens requested that the Commission suspend the rule changes adopted in this docket for unlicensed devices in the 915 MHz band until such time as the Commission completes a formal inquiry with regard to the potential effect of such changes to M-LMS licensees in the band and it determines either that there will be no material adverse effects or that it will allow counterbalancing changes ( e.g. , waivers or forbearance of LMS rules) to maintain the balance between higher power LMS systems and unlicensed devices. Havens does not specify which particular rule changes it believes should be suspended. In support of this request, Havens asserts that it cannot “efficiently or effectively” comply with rule § 90.353(d) which requires that M-LMS licensees design, construct and field test their systems to minimize adverse effects on part 15 devices if unlicensed devices operating in the band change as a result of the new rules adopted in the Report and Order. It claims that the new rules will lead to increased spectrum use of the 915 MHz band by unlicensed devices and thus will adversely affect M-LMS systems by changing the “regulatory coexistence” between part 15 and LMS operations ( i.e. , the balance of aggregate M-LMS systems and aggregate unlicensed devices) and by altering the premise of the “safe harbor” in rule § 90.361 ( i.e. , that unlicensed devices would not operate in close proximity to M-LMS). Havens further alleges that the part 15 rule changes violate § 15.5 of the rules, which requires that unlicensed devices not interfere with licensed system operations.

3. The Commission declines to suspend the part 15 rule changes adopted in the Report and Order or consider modifying the M-LMS rules as requested by Havens. The Commission notes that Havens did not raise any objections to any proposals in the Notice of Proposed Rule Making (NPRM), 68 FR 68823, September 17, 2003, during the pendancy of this proceeding. A petition for reconsideration that relies on facts not previously presented to the Commission will be granted only if: The facts relied on relate to events which have occurred or circumstances which have changed since the last opportunity to present them to the Commission; the facts relied upon were unknown to the petitioner until after his last opportunity to present them to the Commission, and he could not through the exercise of due diligence have learned of the facts in question prior to such opportunity; or the Commission determines that consideration of the facts relied on is required in the public interest. Havens does not address why it did not previously participate in this proceeding or claim that any of these three conditions are met in this case.

4. The Commission's rules also require that a petition for reconsideration state with particularity the respects in which the petitioner believes the action taken should be changed. The Commission modified several part 15 rules that apply to unlicensed devices that may operate in the 915 MHz band, in addition to other frequency bands. Havens does not identify the particular rule changes that it believes should be suspended. Havens provides only a mere statement of belief that the rule changes in this proceeding will lead to increased use of part 15 devices in the 915 MHz band and thus will result in adverse effects on M-LMS operations. It provides no evidence or analysis to support this assertion. Finally, the Commission notes that Havens raised essentially the same arguments in its petition for reconsideration in ET Docket No. 99-231 concerning changes to the part 15 rules for spread spectrum devices. The Commission rejected these same arguments in that proceeding. Accordingly, the Commission dismissed the Havens petition.

5. The Commission recently initiated a proceeding to reexamine the rules for the M-LMS operating in the 904-909.75 MHz and 919.75-928 MHz portion of the 915 MHz band. See Amendment of the Commission's Part 90 Rules in the 904-909.75 and 919.75-928 MHz Bands, Notice of Proposed Rulemaking in WT Docket No. 06-49, 21 FCC Rcd 2809 (2006), 71 FR 15658, March 29, 2006. That proceeding was originated by the Commission partly in response to a 2002 petition for rule making filed by Progeny LMS, LLC requesting changes to these rules. That proceeding is the appropriate forum for Havens to address its concerns about the M-LMS rules, including the “safe harbor” rule regarding the operational relationship between part 15 unlicensed devices and part 90 M-LMS devices.

6. Cellnet requests reconsideration of the Commission's decision not to adopt a spectrum etiquette for unlicensed devices. Cellnet produces equipment for the automated reading of gas, water, and electric meters that uses spread spectrum transmitters operating on an unlicensed basis in the 915 MHz band. It states that the Commission should: Adopt a duty cycle limitation and other effective spectrum etiquette for any newly certified devices using digital modulation that operate in the 915 MHz band, and confirm in a public notice the obligation of all operators of unlicensed devices in this band authorized under part 15 to avoid causing harmful interference to licensed and unlicensed devices operating in the band and to work cooperatively with operators of any other devices that may be experiencing interference to resolve any such incidents. Cellnet states that these actions are necessary to assure that users taking advantage of newly authorized technical flexibility in this heavily encumbered band do not create the type of interference that will deny the continued effective use of this band by existing and future users. It submits that prior to the Commission's adoption of the new rules on which new entrants have relied on to operate at higher power and without effective duty cycles, the few problems that arose among devices operating in the band were readily resolved with cost effective engineering solutions by affected manufacturers and users.

7. The Commission's rules require that a petition for reconsideration and any supplement thereto shall be filed within thirty days from the date of public notice of such action. Further, the petition must state with particularity the respects in which the petitioner believes the action taken should be changed. Cellnet's petition does not describe any specific rule changes that it wishes the Commission to make. It simply requests that the Commission adopt “a duty cycle limitation and other effective spectrum etiquette,” but does not recommend any specific duty cycle limitation or provide any technical details of what it believes would constitute an “effective spectrum etiquette.” After the 30 day reconsideration period, Cellnet made an ex-parte presentation to the Commission's staff describing a spectrum etiquette that it believes the Commission should require for digitally modulated spread spectrum transmitters operating in the 915 MHz band under § 15.247 of the rules. Because Cellnet's petition and subsequent filings do not satisfy the Commission's rules for specific relief and timeliness, the Commission dismissed its petition. Although the Commission dismissed Cellnet's petition, it is seeking comment on ideas for a spectrum etiquette in the 915 MHz band, in a Further Notice of Proposed Rule Making. This action will allow the Commission to fully consider Cellnet's suggestion to develop a spectrum etiquette that is a trade-off between transmission duration and output power, and also to address certain related issues that Cellnet did not discuss such as transition dates by which new equipment would have to comply.

9. The petition for reconsideration filed by Havens is hereby dismissed. This action is taken pursuant to the authority contained in sections 4(i), 301, 302, 303(e), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 302, 303(e), 303(f), and 303(r).

10. The petition for reconsideration filed by Cellnet Technology is hereby dismissed. This action is taken pursuant to the authority contained in sections 4(i), 301, 302, 303(e), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 302, 303(e), 303(f), and 303(r).

8. The Commission will not send a copy of the Memorandum Opinion and Order, pursuant to the Congressional Review Act. See 5 U.S.C. 801(a)(1)(A). The Congressional Review Act (CRA) was addressed in the Report and Order released in this proceeding, FCC 04-165, 69, FR 54027, September 7, 2004. The Memorandum Opinion and Order dismisses the petitions for reconsideration of the Report and Order.

OMB Control No.: 3060-1030.

OMB Approval Date: 6/25/2007.

OMB Expiration Date: 6/31/2010.

Title: Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands.

Form No.: N/A.

Estimated Annual Burden: 1,716 respondents; 29,147 annual burden hours; 2 hours per respondent; and $2,271,200 annual costs.

Needs and Uses: The Ninth Report and Order (Ninth R&O) adopted relocation procedures to govern the relocation of: (1) Broadband Radio Service (BRS) licensees in the 2150-2160/62 MHz band; and (2) Fixed Microwave Service (FS) licensees in the 2110-2150 MHz and 2160-2180 MHz bands. The Ninth R&O also adopted cost sharing rules that identify the reimbursement obligations for Advanced Wireless Service (AWS) and Mobile Satellite Service (MSS) entrants benefiting from the relocation of FS operations in the 2110-2150 MHz band 2160-2200 MHz band and AWS entrants benefiting from the relocation of BRS operations in the 2150-2160/62 MHz band. The adopted relocation and cost sharing procedures generally follow the Commission's relocation and cost sharing policies delineated in the Emerging Technologies proceeding, and as modified by subsequent decisions. These relocation policies are designed to allow early entry for new technology providers by allowing providers of new services to negotiate financial arrangements for reaccommodation of incumbent licensees, and have been tailored to set forth specific relocation schemes appropriate for a variety of different new entrants, including AWS, MSS, Personal Communications Service (PCS) licensees, 18 GHz Fixed Satellite Service (FSS) licensees, and Sprint Nextel. While these new entrants occupy different frequency bands, each entrant has had to relocate incumbent operations. The relocation and cost sharing procedures adopted in the Ninth R&O are designed to ensure an orderly and expeditious transition of, with minimal disruption to, incumbent BRS operations from the 2150-2160/62 MHz band and FS operations from the 2110-2150 MHz and 2160-2180 MHz bands, in order to allow early entry for new AWS licensees into these bands. In the Ninth R&O the FCC adopted disclosures related to negotiation and relocation of incumbent FS radio links and incumbent BRS systems, and for the registration of these relocation expenses with a clearinghouse, including documentation of reimbursable costs for FS and BRS relocations, documentation when a new AWS and MSS Ancillary Terrestrial Components (MSS/ATC) operators trigger a cost-sharing obligation, prior coordination notices to identify when a specific site will trigger a cost-sharing obligation, and retention of records by the clearinghouses. (Privately administered clearinghouses, selected by the FCC, will keep track of and administer the cost sharing obligations over the next 10-15 years as AWS and MSS-ATC operators build new stations that require them to relocate incumbents.) In the Clearinghouse Order , ET Docket No. 00-258 and WT Docket No. 02-353, DA 07-1120, the FCC's Wireless Telecommunications Bureau (Bureau) requires the AWS clearinghouses to file reports with the FCC and to make disclosures between the clearinghouses. Separately, in a Public Notice issued jointly with the National Telecommunications and Information Administration (NTIA), 71 FR 28696 (May 17, 2006), 21 FCC Rcd 4730 (2006), the FCC set forth procedures for AWS licensees to coordinate with Federal Government operators in the 1.7 GHz band, and AWS licenses are granted with a special condition that requires coordination with Federal operators.

In the AWS Relocation and Cost Sharing Report and Order, 1 71 FR 29818, (May 24, 2006), the Commission established procedures for the relocation of Broadband Radio Service (BRS) operations from the 2150-2160/62 MHz band and Microwave Service (FS) operations in the 2.1 GHz band, and adopted cost sharing rules to identify the reimbursement obligations for Advanced Wireless Service (AWS) and Mobile Satellite Service (MSS) entrants benefiting from the relocation of incumbent FS and/or BRS operations. The Commission also delegated authority to the Wireless Telecommunications Bureau (WTB or Bureau) to select one or more entities for the creation and management of a neutral, not-for-profit clearinghouse that would facilitate cost sharing among AWS and MSS entrants benefiting from the relocation of FS incumbents in the 2110-2150 MHz and 2160-2200 MHz bands and AWS entrants benefiting from the relocation of BRS incumbents in the 2150-60/62 MHz bands. 2 Mobile Satellite Service (MSS) operators are required to participate in the clearinghouse for Ancillary Terrestrial Component (ATC) base stations, see e.g. , 47 CFR 101.82(d), and may elect to submit claims for reimbursement to the AWS clearinghouse for FS links relocated due to interference from the MSS space-to-Earth operations. 3 The Commission stated that selection would be based on criteria established by the Bureau, and that the Bureau would publicly announce the criteria and solicit proposals from qualified parties. 4 The Commission also instructed the Bureau to solicit public comment on all proposals submitted and, after selecting the clearinghouse administrator(s), to announce the effective date of the cost sharing rules, including the filing requirements for reimbursement claims and relocation cost estimates. 5 In doing so, the Commission noted that the Bureau could select more than one clearinghouse. 6

1. By public notice released on June 15, 2006 ( Clearinghouse PN ), 71 FR 38162 (July 5, 2006), the Bureau invited proposals from entities interested in serving as a neutral, not-for-profit clearinghouse responsible for facilitating cost sharing among entrants benefiting from the relocation of incumbent licensees in the 2.1 GHz bands. 7 The Clearinghouse PN also sought comment on whether more than one clearinghouse would be feasible, and required certifications that the entity would be able and willing to work with other clearinghouses if WTB selected more than one, as well as a certification that the entity is a not-for-profit organization and will retain its not-for-profit status during the term of its operations. We also sought comment on whether proposals that offer to administer cost sharing for both FS and BRS relocations are preferable to proposals that seek to administer cost sharing for only one of these relocation processes. We received two proposals and each proposed to administer cost sharing for both FS and BRS relocations. 8 Five parties filed comments related to those proposals, and PCIA filed reply comments. 9 As noted in the Qualification PN, 10 two commenters specifically supported designating PCIA as a clearinghouse 11 and one commenter specifically supported selecting CTIA. 12 Two commenters specifically supported designating both PCIA and CTIA as clearinghouses and none of the commenters opposed the selection of multiple clearinghouse administrators. 13

2. On October 4, 2006, the Bureau concluded that the benefits of having two or more clearinghouses outweigh any disadvantages because offering participants a choice increases the incentive for all clearinghouses to operate in an efficient manner, thus benefiting the consumers of these services. 14 We also found CTIA and PCIA, the two entities that filed proposals, qualified to serve as clearinghouse administrators, and we advised them to begin preparing their clearinghouse operations. 15 As part of establishing the criteria for clearinghouses, the Bureau also stated that it would issue a subsequent Order setting forth details of the clearinghouses' duties and responsibilities. 16

3. Unless the context requires otherwise in the paragraphs below and for convenience only, we refer to the “FCC,” the “Bureau” and “WTB” interchangeably. Also, for brevity, we refer to “clearinghouse administrator(s)” as the “clearinghouse(s),” and our references to AWS include MSS/ATC.

4. As a preliminary matter, we emphasize that the duties and responsibilities of the clearinghouses are set forth chiefly in the Commission's rules and policies adopted in the AWS Relocation and Cost Sharing Report and Order. To the extent permitted under our delegated authority, the instant Order clarifies the Commission's cost-sharing rules and policies, including the duties and responsibilities of the clearinghouses delineated therein. In accordance with the Commission's directive and delegation to the Bureau of authority to establish criteria for, and to select one or more, clearinghouse(s), we set forth details of the clearinghouses' duties and responsibilities below.

5. In the Qualification PN, the Bureau found CTIA and PCIA qualified to serve as clearinghouses after reviewing each entity's overall plan and the responsive record, but the Bureau did not thereby rule that all provisions of each plan were in accordance with the Commission's rules and policies. Rather, the Bureau relied on each entity's material representations regarding its organization, qualifications, start-up financing, accounting methods, commitment to provide non-discriminatory and impartial services, security measures to protect confidential information, and willingness and capability to cooperate with other clearinghouses in the coordination and sharing of information. Except for these material representations, we are aware that both plans and their projected implementation may need to be modified at some time(s) during the course of the administration of the cost-sharing plan. As such, we do not believe it is necessary to require either PCIA or CTIA to submit a revised plan to include these administrative details, at this juncture.

6. Each clearinghouse will administer the cost-sharing plan by, inter alia, determining the cost-sharing obligations of AWS and MSS/ATC entities for the relocation of fixed microwave service (FS) incumbents from the 2110-2150 MHz and the 2160-2200 MHz bands  17 and the cost sharing obligations of AWS entities for the relocation of BRS incumbents from the 2150-2160/62 MHz band. 18 Given the purpose of establishing a private, industry-based cost sharing plan, CTIA and PCIA are each advised that it is responsible for its acts and omissions and that the Commission and its employees, agents, and representatives are not responsible or liable for the actions or inaction of a clearinghouse. Additionally, CTIA and PCIA each must ensure that neither it nor any affiliated entity is a party to any memorandum of understanding or agreement with the FCC or other governmental entities that would interfere with or prohibit it from performing its duties hereunder.

7. CTIA and PCIA must provide clearinghouse services on a non-discriminatory, impartial basis. 19 Specifically, if CTIA or PCIA has a direct affiliation with a class of relocators, licensees, operators, or other entities that provide services or products to clearinghouse users, the relationship must not affect the manner in which CTIA or PCIA performs clearinghouse services and the treatment of all relocators, licensees, or operators must be non-discriminatory. CTIA and PCIA may only refuse to provide clearinghouse services for good cause and must do so as soon as is practicable after receiving the request for service.

8. To be qualified, CTIA and PCIA each had to certify that it would be able and willing to work with each other and other clearinghouses that may be selected by the FCC in the future. Cooperation among the clearinghouses includes, among other things, exchanging clearinghouse data. As a general matter, the clearinghouses must exchange clearinghouse data in a secure and timely manner as necessary to ensure that: (1) No clearinghouse participant is required to provide notices or other information relative to a given link or system to more than one clearinghouse; and (2) each clearinghouse has access to the data required to perform its duties. See, e.g. , 47 CFR 27.1168 and 27.1184. In the event a clearinghouse makes an error in the shared data, the erring clearinghouse shall be solely responsible for correcting the shared-data error as soon as is practicable.

9. The record reflects that CTIA and PCIA disagree as to certain details of the data exchange (and certain operational or business matters related to the disputed details of the data exchange). 20 Although the scope of this disagreement has narrowed over the past several months, CTIA and PCIA appear to have reached an impasse. 21 Accordingly, to move the cost-sharing process forward, we conclude that the Bureau must set forth additional details that will govern data exchange between the clearinghouses in the absence of a written agreement between CTIA and PCIA.

10. Registration data. CTIA avers that a clearinghouse should only be required to exchange registration data for a given relocation when an entity that shares in the cost of that relocation has paid-in-full and selected the other clearinghouse to administer its downstream reimbursement rights. 22 PCIA counters that the clearinghouses should exchange all registration data in real time so each clearinghouse has all of the data necessary to assist customers at any stage of the cost-sharing process. 23 CTIA responds that its proposal merely limits the exchange of registration data and emphasizes that its approach would not impede a party from entering a contract to receive assistance from a particular clearinghouse at any time. 24

11. We find CTIA's distinction unpersuasive. If a party elects to contract with a clearinghouse, the subject clearinghouse will need access to the relevant registration data in order to provide meaningful assistance to the party. 25 In this connection, we will not second guess PCIA's assessment of the market, based on its experience administering the PCS Microwave Clearinghouse, that participants will seek assistance from a clearinghouse before they have reimbursement rights. 26 CTIA further contends that requiring the clearinghouses to exchange registration data will limit competitive opportunities because “for the clearinghouses to be competitive, there must be some differentiation in the product offerings and services provided.” 27 It is our view that competition between the clearinghouses should be based on price, speed, and quality of service;  28 competition based on one clearinghouse's superior access to data submitted by licensees would tend to hamper or eliminate competition.

12. Based on our administrative experience generally and considering that CTIA and PCIA reached an impasse on this issue after several months of negotiation, we are concerned that requiring the clearinghouses to exchange registration data selectively at the time a contract is established with a customer will risk opening a door to disputes between the clearinghouses. 29 As such, we believe that establishing a bright-line process, under which the clearinghouses promptly exchange registration data for each relocation, will reduce the risk of confusion or disputes between the clearinghouses and among cost-sharing participants. Furthermore, promptly exchanging data for all registrations also provides an additional safeguard against data loss because both clearinghouses will have complete and current data. 30

13. Cost-sharing notices. PCIA proposes that each clearinghouse should only issue notices of reimbursement obligations (cost-sharing notices) to its own customers ( i.e. , communicate only with its customers)  31 while CTIA proposes that each clearinghouse should only issue cost-sharing notices on behalf of its own customers to any AWS licensee (which could include communications to another clearinghouse's customers). 32 PCIA also proposed that each clearinghouse should exchange, i.e. , copy, the other on all cost-sharing notices, as an additional check and courtesy, though it subsequently withdrew this request. 33 CTIA counters that clearinghouses “are not to ‘represent' parties in disputes” and that clearinghouses are not created “to recheck the administration of cost-sharing notifications by other clearinghouses.”  34 PCIA responds that it does not suggest that a clearinghouse “represents” a party in a dispute, and that a clearinghouse's assistance  35 can resolve most disputes with an explanation of the cost-sharing rules and formula, which are objective and precise, thereby avoiding any danger of a clearinghouse favoring one participant over another. 36 Finally, CTIA and PCIA ask us to clarify that cost-sharing notices sent by electronic mail satisfy the requirement that such notices be in writing. 37

14. We agree with CTIA that each clearinghouse should identify cost-sharing obligations and issue the notices of reimbursement for obligations owed to its customers to give effect to the market choice by each entity—relocators and downstream cost-sharers. 38 Under PCIA's proposal, by comparison, clearinghouse selections made by the relocator and/or the first or second cost-sharers could be negated by a later cost-sharer's selection of a different clearinghouse. Though we agree with PCIA that a clearinghouse does not merely notify participants of reimbursements due, 39 this is undeniably a core function of the clearinghouses, and we agree with CTIA that each participant's selection should be honored through the date of the sunset of the cost-sharing plan. We recognize that, in some situations, a clearinghouse will be issuing/sending cost-sharing notices (for reimbursement obligations owed to its customers) to customers of the other clearinghouse. Finally, we clarify as a general matter that cost-sharing notices sent by electronic mail satisfy the requirement in Section 27.1170 that such notices be in writing.

15. We further believe that clearinghouses cannot compete and cannot fully serve their customers if they do not possess complete information. Because a clearinghouse may send a notice on behalf of its own customer to a customer of the other clearinghouse, the second clearinghouse needs to be informed of the contents of the cost-sharing notice in order to complete its records. We believe that this can most readily be accomplished by requiring each clearinghouse to copy the other clearinghouse on all cost-sharing notices because this method will be more convenient for clearinghouse participants. Under CTIA's proposal, the second clearinghouse only would receive this information if its customer communicates the contents of any notices the participant receives. We believe this would place an unnecessary burden on clearinghouse participants, particularly when it should be relatively simple for the clearinghouses to exchange copies of cost-sharing notices electronically. This exchange will ensure that the clearinghouses use the same data and allows for early resolution of any mistakes or disagreements.

16. Site-notice data. CTIA asks us to clarify that § 27.1170's requirement to file site data “with the clearinghouse” is a requirement to file such data with both clearinghouses given that we have selected two clearinghouses. 40 PCIA opposes CTIA's request  41 and urges us to clarify that by filing a site notice with a particular clearinghouse, the filer is thereby selecting that clearinghouse's services including assistance for any cost-sharing obligations that may be triggered by the site notice and administration of any reimbursement rights that may arise in the future.

17. We decline both requests for clarification. We find no ambiguity in § 27.1170's requirement to file with a clearinghouse; nor is the Commission's intention made ambiguous by WTB's selection of multiple clearinghouses after the rule was adopted in the AWS Relocation and Cost Sharing Report and Order. Indeed, the AWS Relocation and Cost Sharing Report and Order makes clear that the Commission envisioned that the Bureau might select multiple clearinghouses. 42

18. Regarding PCIA's request to clarify that participants select their clearinghouse by filing site notices, we agree that each stakeholder should have a choice of which clearinghouse to use—independent of other filers' choices relative to a given relocation. 43 Indeed, although CTIA and PCIA disagree as to timing, CTIA also “advocates permitting participants to switch their clearinghouse at any time.”  44 In this connection, we clarify that merely filing a site notice with a clearinghouse does not form a contract between the filer and the clearinghouse under the Commission's Rules, though a clearinghouse is free to offer its services to the participant and to present a contract. 45 We need not provide additional details in this Order because the formation of contracts is generally a matter of state and local law. However, we note that the record reflects that CTIA and PCIA agree that it is a simple matter to add a column for participants to designate its clearinghouse when filing site notices. 46

19. Finally, CTIA and PCIA agree that there is no need to require site notices to include the polarization and emission designator of the relevant station because this data is not needed for clearinghouses to determine cost-sharing obligations. 47 CTIA's and PCIA's point is well taken, though modifying § 27.1170 to eliminate this data collection is beyond the scope of the Bureau's delegated authority. Nonetheless, given that both clearinghouses state that requiring new entrants to submit this data is unnecessary to administer the cost-sharing plan, we find that good cause exists for waiving the requirement that all site notices include this data in the first instance. 48 Accordingly, new entrants will be required to submit the polarization and/or emission designator of a given station to a clearinghouse only upon request.

20. Operational matters. Clearinghouses must exchange registration, site-notice data, and cost-sharing notices, electronically at least once per business day (if a clearinghouse has no new data it shall so indicate) and such data exchange shall include, but is not limited to, both the registration data required under 47 CFR 27.1166 and 1182, and the site-notice data required by and copies of cost-sharing notices issued under 47 CFR 27.1170 and 27.1186. We direct CTIA and PCIA, within ten (10) calendar days of the release of the instant Order, to establish the exact technical format of these required data exchanges and to report jointly to the Bureau that such an agreement has been reached. 49 The Bureau expressly reserves the right to revisit this matter in the future, if the public interest so requires.

21. With respect to the issue of maintaining the confidentiality of information, both PCIA and CTIA assert that they will collect and disseminate only that information which is essential to the performance of the clearinghouse functions and will execute confidentiality agreements with all participating entities. Such procedures adequately ensure the necessary confidentiality. We continue to believe that designating multiple clearinghouses is the appropriate approach and believe that the safeguards instituted by both PCIA and CTIA will adequately protect participants from the inadvertent release of any confidential information. We reserve the right, however, to review at any time, the safeguards instituted by both clearinghouses to protect the confidentiality of certain information. Should breach of confidentiality issues develop, we will take the appropriate steps to rectify the situation.

22. The Wireless Communications Association International (WCA) emphasizes in comments filed in response to the Clearinghouse PN that the role of the clearinghouses is limited to administration of cost sharing among the AWS and MSS licensees who will benefit from the relocation of BRS and other incumbents in the 2.1 GHz band. 50 Put differently, WCA avers that the clearinghouses do not administer the BRS relocation rules. We are unaware of any claim by CTIA, PCIA, or other commenters that suggest that the clearinghouses will administer BRS relocation. As such, we note that there does not appear to be any dispute on this point.

23. We also note that the Commission's rules provide that “disputes arising out of the cost sharing plan , such as disputes over the amount of reimbursement required, must be brought in the first instance to the clearinghouse for resolution. 51 To the extent that disputes cannot be so resolved, the clearinghouse shall encourage the parties to use expedited Alternative Dispute Resolution (ADR) procedures, such as binding arbitration, mediation, or other ADR techniques. To the extent that disputes cannot be resolved using ADR and one or all parties seek to bring the dispute to the FCC for resolution, the clearinghouse shall cooperate with the parties and the FCC in attending any status conference(s) called by the staff and in producing whatever reports or records that are necessary for FCC resolution of the dispute. 52 The initial FCC point of contact is: Chief, Broadband Division, Wireless Telecommunications Bureau, FCC. In the event a mistake is made by a clearinghouse, it shall be responsible for correcting the mistake as part of any dispute resolution.

24. The FCC anticipates that, once selected, a clearinghouse will continue its operation until after the sunset date for all relevant AWS bands. However, the FCC's selection of CTIA or PCIA may be terminated by the FCC for cause at any time, upon sixty (60) days written notice, or suspended for up to 90 days, upon ten (10) days written notice. Should the FCC give notice of termination due to a breach or violation, the subject clearinghouse will have sixty (60) days from the date notice is effective to cure such breach or violation. Should the FCC give notice of suspension due to a breach or violation, the subject clearinghouse will have ten (10) days from the date the notice is effective to cure such breach or violation. A breach or violation is a failure of a clearinghouse to perform its duties and responsibilities in accordance with the Commission's rules and policies and/or the instant Order. A clearinghouse also may terminate its service after ninety (90) days written notification to the FCC; however, this provision does not absolve the clearinghouse of any private contractual obligations. Notifications required by this paragraph must be provided by Certified Mail—Return Receipt Requested. However, changes associated with rule amendments or decisions adopted by the FCC will be effective on the same date that the rule amendments and/or FCC decisions are effective and we advise CTIA and PCIA that a petition for reconsideration of the AWS Relocation and Cost Sharing Report and Order is pending before the FCC in ET Docket No. 00-258 and WT Docket No. 02-353. Nothing in the instant Order limits or otherwise prejudices the Commission's actions in that proceeding(s) and we reserve the discretion to add or delete clearinghouse selections at a later date if circumstances indicate that such action is warranted.

25. The FCC's clearinghouse selections, i.e. , the selections of CTIA and PCIA, may not be sold, assigned, or transferred to any party without the prior written approval of the FCC. Except as explicitly provided herein, the instant Order does not provide and shall not be construed to provide any third party with any remedy, claim, liability, reimbursement, cause of action or other right or privilege. In addition, CTIA and PCIA must agree to report to the FCC, within thirty (30) days of an occurrence, of any matters that could reasonably be expected to impair its ability to perform the duties authorized under this Agreement, including, but not limited to, a filing for bankruptcy or any legal or administrative proceeding that may bear upon CTIA's or PCIA's ability to perform the duties of a clearinghouse under the Commission's rules and policies or the instant Order.

26. As noted above, we are aware that both plans and their projected implementation may need to be modified at some time(s) during the course of the administration of the cost-sharing plan. In this connection, we find it appropriate to monitor both PCIA's and CTIA's implementation of their plans and require that both parties submit reports to the Commission at six-month intervals. The first report will be due on July 31, 2007 (covering the period from the release date of the instant Order through June 30, 2007), and every six months thereafter, e.g. , the second report will cover July 1, 2007, through December 31, 2007, and will be due on January 31, 2008. The reports must include an update on the number of links relocated, the amounts paid to relocate these links, updated cost and revenue projections, and any adjustments to existing fee structures. We also reserve the right at any time to inspect the records of or require additional information or reports from CTIA and/or PCIA.

27. CTIA and PCIA request a clarification that—for a given relocated link—a triggering “entity” is a “license,” not a “licensee”  53 and, based on discussions with stakeholders, CTIA states that this is the way that carriers would prefer to have the matter handled. 54 CTIA notes that parties sought clarification of this matter previously and avers that the Commission's response leaves the matter ambiguous. 55

28. In the AWS Relocation and Cost Sharing Report and Order , the Commission addressed a similar proposal  56 by noting that the cost-sharing formula already explicitly states that the pro rata reimbursement formula is based on the number of entities that would have interfered with the link. Accordingly, the Commission found that the need for a clarification had not been demonstrated in the record before it. 57 Given this procedural history, we note that the deadline for petitions for reconsideration of the AWS Relocation and Cost Sharing Report and Order was June 23, 2006, 58 and that the requested clarification is beyond the scope of the authority that the Commission delegated to the Bureau to select clearinghouses. 59 Therefore, we decline to clarify the rule as requested herein. Regarding CTIA's statement that carriers would prefer to share costs on a per license basis, we note that the cost-sharing obligations established by the Commission's cost-sharing plan merely serves as defaults. As in the PCS cost sharing rules, parties remain free to enter into private cost-sharing arrangements that alter some or all of these default obligations. 60

29. The Association for Maximum Service Television (MSTV) notes in comments filed in response to the Clearinghouse PN that “first-in-time” TV Broadcast Auxiliary operations will continue to operate in the portion of the spectrum from 2025 to 2110 MHz (adjacent to the 2110-2025 band). 61 MSTV urges that all clearinghouses fully inform all new adjacent channel AWS licensees of their responsibility to protect “first-in-time” primary adjacent channel operations. MSTV states that this practice will ensure that all parties are fully aware of their responsibilities with regard to the protection of adjacent channel operations. 62 MSTV notes that PCIA has pledged to work closely with it to ensure that adjacent channel TV broadcast auxiliary operations are taken into account and MSTV has pledged to work similarly with all clearinghouses. 63 Although not within the scope of the Commission's cost-sharing plan, we applaud and encourage these private efforts to inform licensees of their obligations under the Commission's rules.

30. T-Mobile USA, Inc. (T-Mobile), in comments filed in response to the Clearinghouse PN , asks the Commission and NTIA to clarify the procedures for AWS deployments in the 1.7 GHz band. 64 T-Mobile notes that the Commission will be able to grant licenses prior to the relocation of federal government operations in the 1710-1755 MHz band and that the Commission and NTIA have released procedures that must be followed when AWS licensees deploy services in this band. 65 T-Mobile states that these procedures require new licensees to contact the appropriate federal agency to obtain the necessary information to conduct an interference analysis and that the agency must provide the necessary information within 30 days of the request. 66 However, T-Mobile contends that the current procedures do not specify how the information is to be shared, for example, whether it must be in electronic format and what file format should be used. 67 As such, T-Mobile states that it would like the affected federal agencies to begin to create a ready database of microwave system information to facilitate the exchange of data as soon as possible. 68 Additionally, T-Mobile is concerned that Federal agencies will not be prepared to respond to the quantity of requests they may receive at the close of the auction. 69 Accordingly, T-Mobile requests that the Commission and NTIA also clarify the repercussions for federal agencies that do not provide the necessary information within the 30-day time limit they have established. 70

31. We find that T-Mobile's request is beyond the scope of the Clearinghouse PN and raises matters that are not within the scope of the Commission's directive and delegation to the Bureau of authority to select one or more clearinghouse(s) and to set forth details of the clearinghouses' duties and responsibilities. Accordingly, we do not reach T-Mobile's request herein.

32. Claims for reimbursement are limited to relocation expenses incurred on or after November 29, 2006 (the “start date”)   71 and, to obtain reimbursement under the cost-sharing plan, an AWS relocator or MSS/ATC relocator must submit documentation of the relocation agreement to the clearinghouse within 30 calendar days of the date a relocation agreement is signed with an incumbent. 72 In addition, prior to initiating operations for a newly constructed site or modified existing site, an AWS entity or MSS/ATC entity is required to file a notice containing site-specific data with the clearinghouse. 73 The clearinghouse filing requirements do not take effect until a clearinghouse is selected. 74 Registrations and notices for activities that occurred after the start date but prior to the clearinghouse selection date must be submitted to a clearinghouse within 30 calendar days of the selection date. 75 We clarify that the selection date for calculating the initial 30-day deadline under these rules will be the date that the instant Order, or a summary thereof, is published in the Federal Register , i.e. , August 1, 2007. We further clarify that any registrations or notices submitted to a clearinghouse on or after November 29, 2006, need not be resubmitted merely because a clearinghouse received them prior to the selection date. 76

33. It is ordered that CTIA—The Wireless Association® (CTIA) and PCIA—The Wireless Infrastructure Association (PCIA) are each selected pursuant to 47 CFR 27.1162 and 27.1178, to serve as a neutral, not-for-profit clearinghouse to administer the Commission's cost-sharing plan in accordance with the Commission's rules, policies, and the instant Order.

34. It is further ordered that CTIA and PCIA shall submit to the Wireless Telecommunications Bureau reports on progress in implementing their respective plans beginning July 31, 2007 (for the period beginning today, i.e. , March 8, 2007, and ending on June 30, 2007), and every six months thereafter until the services of the clearinghouses are no longer needed.

35. This action is taken under delegated authority pursuant to §§ 0.131, 0.331, 27.1162, and 27.1178 of the Commission's rules, 47 CFR 0.131, 0.331, 27.1162 and 27.1178.

This is a synopsis of the Commission's Report and Order , MB Docket No. 05-273, adopted July 11, 2007, and released July 13, 2007. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, (800) 378-3160, or via the company's Web site, http://www.bcpiweb.com. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

This is a synopsis of the Memorandum Opinion and Order in MM Docket No. 99-275, adopted July 11, 2007, and released July 13, 2007. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals ll, CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copying and Printing, Inc. 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com. This document is not subject to the Congressional Review Act. (The Commission is, therefore, not required to submit a copy of this Report and Order to GAO, pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the petition for reconsideration was dismissed.)