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Code · REGISTER · 2006-11-29 · Federal Aviation Administration (FAA), DOT · Rules and Regulations

Rules and Regulations. Final rule; correction

62,997 words·~286 min read·/register/2006/11/29/06-9453·

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 4910-13-M DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2004-20007; Directorate Identifier 2004-CE-50-AD; Amendment 39-14798; AD 2006-23-09] RIN 2120-AA64 Airworthiness Directives; Air Tractor, Inc. Model AT-602 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule; correction. SUMMARY: This document makes a correction to Airworthiness Directive
(AD)2006-23-09, which published in the **Federal Register** on November 9, 2006 (71 FR 65719), and applies to all Air Tractor, Inc. Model AT-602 airplanes. AD 2006-23-09 requires you to repetitively inspect (using the eddy current method) the wing center splice joint two outboard fastener holes on both of the wing main spar lower caps for fatigue cracking; repair or replace any wing main spar lower cap where fatigue cracking is found; and report any fatigue cracking found. This AD results from fatigue cracking at the wing center splice joint outboard fastener hole in one of the wing main spar lower caps. The AD number in the AD is incorrectly referenced as “2006-23-01” instead of “2006-23-09” in two places. This document corrects these references. DATES: The effective date of this AD (2006-23-09) remains December 14, 2006. FOR FURTHER INFORMATION CONTACT: Andrew McAnaul, Aerospace Engineer, ASW-150 (c/o MIDO-43), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; telephone:
(210)308-3365; fax:
(210)308-3370. SUPPLEMENTARY INFORMATION: Discussion On October 26, 2006, the FAA issued AD 2006-23-09, Amendment 39-14798 (71 FR 65719, November 9, 2006), which applies to Air Tractor, Inc. Model AT-602 airplanes. AD 2006-23-09 requires you to repetitively inspect (using the eddy current method) the wing center splice joint two outboard fastener holes on both of the wing main spar lower caps for fatigue cracking; repair or replace any wing main spar lower cap where fatigue cracking is found; and report any fatigue cracking found. The AD number in the AD is incorrectly referenced as “2006-23-01” instead of “2006-23-09” in two places. Need for the Correction This correction is needed to assure that the airplane records and documentation shows that the applicable AD is complied with. Correction of Publication Accordingly, the publication of November 9, 2006 (71 FR 65719), of Amendment 39-14798; AD 2006-23-09, which was the subject of FR Doc. 06-18688, is corrected as follows: Section 39.13 [Corrected] On page 65719, in the first column and sixth line of the document, replace “2006-23-01” with “2006-23-09.” On page 65721, in the first column and fourth line, replace “2006-23-01” with “2006-23-09.” Action is taken herein to correct this reference in AD 2006-23-09 and to add this AD correction to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13). The effective date remains December 14, 2006. Issued in Kansas City, Missouri, on November 20, 2006. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-20123 Filed 11-28-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2005-20141; Directorate Identifier 2005-NE-01-AD; Amendment 39-14836; AD 2006-24-07] RIN 2120-AA64 Airworthiness Directives; Hartzell Propeller Inc. Propellers and McCauley Propeller Systems Controllable Propellers AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is adopting a new airworthiness directive
(AD)for certain Hartzell Propeller Inc. HC, BHC, and PHC series propellers; and McCauley Propeller Systems controllable propellers serviced by Oxford Aviation Services Limited, doing business as CSE Aviation, in the United Kingdom between September 1998 and October 2003. This AD requires inspecting the propeller blades and other critical propeller parts for wear and mechanical damage. This AD results from findings that CSE Aviation failed to perform some specific inspections and repairs. We are issuing this AD to detect unsafe conditions that could result in a propeller blade separating from the hub and loss of control of the airplane. DATES: This AD becomes effective Janauary 3, 2007. ADDRESSES: You may examine the AD docket on the Internet at *http://dms.dot.gov* or in Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Timothy Smyth, Aerospace Engineer, Chicago Aircraft Certification Office, FAA, Small Airplane Directorate, 2300 East Devon Avenue, Des Plaines, IL 60018-4696; telephone
(847)294-7132; fax
(847)294-7834. SUPPLEMENTARY INFORMATION: The FAA proposed to amend 14 CFR part 39 with a proposed AD. The proposed AD applies to certain Hartzell Propeller Inc. HC, BHC, and PHC series propellers; and McCauley Propeller Systems controllable propellers serviced by Oxford Aviation Services Limited, doing business as CSE Aviation, in the United Kingdom between September 1998 and October 2003. We published the proposed AD in the **Federal Register** on June 15, 2005 (70 FR 34714). That action proposed to require inspecting the propeller blades and other critical propeller parts for wear and mechanical damage. Examining the AD Docket You may examine the docket that contains the AD, any comments received, and any final disposition in person at the Docket Management Facility Docket Offices between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone
(800)647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES. Comments will be available in the AD docket shortly after the DMS receives them. Comments We provided the public the opportunity to participate in the development of this AD. We have considered the comments received. Request To Clarify Reason for the AD CSE Aviation requests that we clarify the statement “This (proposed) AD results from findings that CSE Aviation failed to perform specific inspections and repairs”, to read “This (proposed) AD results from findings that CSE Aviation failed to perform some specific inspections and repairs”. The commenter states that adding this word more clearly defines the conditions existing in the field. We agree and added the word “some” in this sentence of the AD. Request To Clarify the Discussion CSE Aviation requests that we clarify the Discussion paragraph in the proposed AD to state the following: “The investigators believe the discrepancies date from about 1998 until November 2003 when CSE Aviation stopped updating their internal procedures to reflect the latest version of the manufacturers' maintenance manuals. The audit also showed that CSE Aviation did not perform some specific inspections required by the maintenance manual. CSE Aviation conducted an internal investigation and confirmed that they did not perform some inspections and rework procedures such as:” We disagree the discussion paragraph needs change. We find it adequate as drafted. We did not change the AD. Requests To Clarify Costs of Compliance CSE Aviation requests that we clarify the Costs of Compliance paragraph by specifying that about 49 affected Hartzell propellers and about 24 affected McCauley propellers are installed on U.S.-registered airplanes. We agree. We changed the Costs of Compliance paragraph in the AD to reflect that about 49 affected Hartzell propellers and 24 affected McCauley propellers are installed on U.S.-registered airplanes. CSE Aviation also suggests that our estimate for part cost replacement of $2,350 per propeller, is too high. They suggest a part cost per propeller of $200 per propeller, and suggest that our estimate might lead to other repair facilities replacing parts that are airworthy. They also suggest that the actual total cost for U.S.-registered installations is about $62,050, with a total worldwide cost of about $437,750. We do not agree. The cost numbers provided by CSE Aviation do not include a proper range for defective parts, or include improper repairs that might be found during the inspections. We did not change the AD. Request To Clarify the Unsafe Condition Statement CSE Aviation requests that we clarify the unsafe condition statement to state that we are issuing this AD to detect potentially unsafe conditions that could result in a propeller blade separating from the hub and loss of control of the airplane. We agree and added the word “potentially” in this sentence of the AD. Request To Change Compliance Paragraph
(f)CSE Aviation requests that we change the words “ FAA-approved” with “appropriately approved” in compliance paragraph (f), since the affected propeller population is worldwide. We do not agree. Our authority to mandate airworthiness actions is limited to FAA-approved repair facilities and operators, and not foreign country-approved facilities and operators. Conclusion We have carefully reviewed the available data, including the comment[s] received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD. Costs of Compliance We estimate that about 49 Hartzell Propeller Inc. HC series propellers and about 24 McCauley Propeller Systems controllable propellers of the affected design installed on airplanes of U.S. registry will be affected by this AD. We also estimate that it will take about 10 work hours per propeller to perform the proposed actions, and that the average labor rate is $65 per work hour. Required parts will cost about $2,350 per propeller. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $1,545,000. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under **ADDRESSES** . List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new airworthiness directive: **2006-24-07 Hartzell Propeller Inc. (formerly TRW Hartzell Propeller) and McCauley Propeller Systems (formerly Cessna Aircraft Co.):** Amendment 39-14836. Docket No. FAA-2005-20141; Directorate Identifier 2005-NE-01-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective January 3, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to Hartzell Propeller Inc. (formerly TRW Hartzell Propeller) and McCauley Propeller Systems (formerly Cessna Aircraft Co.) propellers that have a part number (P/N) and serial number
(SN)listed in Table 1 or Table 2 of this AD, serviced by Oxford Aviation Limited, doing business as CSE Aviation. These propellers are installed on, but not limited to airplanes used in general aviation, agricultural, flight training, and charter businesses. Table 1.—Hartzell Propellers by P/N and SN CSE work order No. Hartzell propeller P/N Hartzell propeller SN Y03516 HC-E2YL-2BSF BG2848 Y03517 HC-E2YL-2BSF BG4112 Y04052 HC-82VL-2C1 942R Y02965 BHC-C2YF-1BF AM2854 Y02778 BHC-C2YF-2CKUF AN1881 Y03382 BHC-C2YF-2CKUF AN1968 Y04132 BHC-C2YF-2CKUF AN2528 Y05097 BHC-C2YF-2CKUF AN3274 Y05048 HC-C2YK-2CUF AN3906 Y05047 HC-C2YK-2CUF AN4033 Y03016 BHC-C2YF-2CKUF AN4271 Y03983 BHC-C2YF-2CLKUF AN4289 Y03166 BHC-C2YF-2CKUF AN5248 Y02607 BHC-C2YF-2CKLUF AN5832 Y04855 BHC-C2YF-2CKLUF AN6857 Y04391 BHC-C2YF-2CKUF AN6981A Y05102 BHC-C2YF-2CLKUF AN6998A Y04709 BHC-C2YF-2CKUF AN7006A Y05070 BHC-C2YF-2CLKUF AN7018A Y03863 BHC-C2YF-CLKUF AN7019A Y04108 BHC-C2YF-2CKUF AN7025A Y03206 BHC-C2YK-2CLKUF AN7168B Y04592 BHC-C2YF-2CKUF AN7071B Y04865 BHC-C2YF-2CLKUF AN7168B Y04846 BHC-C2YF-2CKUF AN7184B Y04808 BHC-C2YF-2CLKUF AN7199B Y03185 BHC-C2YF-2CLKUF AN7209B Y03186 BHC-C2YF-2CKUF AN7215B Y04975 BHC-C2YF-2CKUF AN7249B Y04974 BHC-C2YF-2CLKUF AN7279B Y04818 BHC-C2YF-2CKUF AN7280B Y04532 BHC-C2YF-2CKUF AN7540B Y04561 BHC-C2YF-2CKUF AN7552B Y04638 BHC-C2YF-2CLKUF AN7567B Y04639 BHC-C2YF-2CKUF AN7568B Y04658 BHC-C2YF-2CLKUF AN7581B Y02866 HC-A3VF-2D AT376 Y02867 HC-A3VF-2D AT431 Y04053 HC-C2YK-2CUF AU10008B Y04096 HC-C2YK-2CUF AU10023B Y04143 HC-C2YK-2CUF AU10126B Y04171 HC-C2YK-2CUF AU10139B Y04283 HC-C2YK-2CUF AU10165B Y04274 HC-C2YK-2CUF AU10178B Y04416 HC-C2YK-2CUF AU10401B Y04415 HC-C2YK-2CUF AU10402B Y04478 HC-C2YK-2CUF AU10462B Y04518 HC-C2YK-2CUF AU10541B Y04479 HC-C2YK-2CUF AU10542B Y04563 HC-C2YK-4BF AU10614B Y04564 HC-C2YK-4BF AU10615B Y04560 HC-C2YK-2CUF AU10616B Y04610 HC-C2YK-2CUF AU10696B Y04565 HC-C2YF-2CUF AU10729B Y04566 HC-C2YK-2CUF AU10730B Y04632 HC-C2YK-4BF AU10733B Y04636 HC-C2YK-2CUF AU10771B Y04651 HC-C2YK-4BF AU10790B Y04659 HC-C2YK-2CUF AU10817B Y04681 HC-C2YK-4BF AU10827B Y04701 HC-C2YK-2CUF AU10923B Y04785 HC-C2YK-2CUF AU10952B Y04786 HC-C2YK-2CUF AU11050B Y04736 HC-C2YK-2CUF AU11117B Y04826 HC-C2YK-4BF AU11145B Y04871 HC-C2YK-1BF AU11279B Y04890 HC-C2YK-4BF AU11343B Y05000 HC-C2YK-4CF AU11591B Y05050 HC-C2YK-2CUF AU11731B Y04410 HC-C2YK-2CGUF AU1533 Y04409 HC-C2YK-2CGUF AU1603 Y04344 HC-C2YK-2CLGUF AU2892E Y03377 HC-C2YK-2CGUF AU2955 Y03688 HC-C2YK-2CU AU354 Y02769 HC-C2YK-2CUF AU9013B Y04343 HC-C2YR-2CGUF AU508E Y03110 HC-C2YK-2CUF AU5236 Y04400 HC-C2YK-2CLEUF AU5974E Y04652 HC-C2YK-1B AU6120 Y04321 HC-C2YR-2CLEUF AU6163 Y03200 HC-C2YK-2CUF AU7153E Y03838 HC-C2YK-2CUF AU7357 Y04362 BHC-C2YF-2CLKUF AU7491B Y04219 HC-C2YK-2CLGUF AU7662 Y02598 HC-C2YK-CUF AU8212A Y02770 HC-C2YK-2CUF AU822 Y03482 HC-C2YK-2CUF AU8233A Y03564 HC-C2YK-2CUF AU8299A Y03773 HC-C2YK-2CUF AU8318A Y03674 HC-C2YK-2CUF AU8338A Y02991 HC-C2YK-2CUF AU8339A Y03137 HC-C2YK-2CUF AU8347A Y03018 HC-C2YK-2CUF AU8349A Y02805 HC-C2YK-2CUF AU8354A Y02703 HC-C2YK-2CUF AU8417A Y02664 HC-C2YK-2CUF AU8859A Y04095 HC-C2YK-2CUF AU8923B Y03761 HC-C2YK-CUF AU8968B Y02792 HC-C2YK-2CUF AU9012B Y02848 HC-C2YK-2CUF AU9014B Y03597 HC-C2YK-2CUF AU9015B Y04735 HC-C2YK-2CUF AU9041B Y03229 HC-C2YK-2CGUF AU9135B Y02943 HC-C2YK-2CUF AU9136B Y03197 HC-C2YK-2CUF AU9150B Y04675 HC-C2YK-2CUF AU9182B Y03352 HC-C2YK-2CUF AU9241B Y03354 HC-C2YK-2CUF AU9243B Y03097 HC-C2YK-2CUF AU9246B Y03201 HC-C2YK-2CUF AU9247B Y03686 HC-C2YK-2CUF AU9312B Y03607 HC-C2YK-2CUF AU9332B Y03614 HC-C2YK-2CGUF AU9393B Y03606 HC-C2YK-2CUF AU9394B Y03791 HC-C2YK-2CUF AU9395B Y03866 HC-C2YK-CUF AU9396B Y03888 HC-C2YK-CUF AU9509B Y04948 HC-C2YK-2CUF AU9511B Y03891 HC-C2YK-2CUF AU9518B Y03797 HC-C2YK-2CUF AU9520B Y04001 HC-C2YK-2CGUF AU9593B Y05083 HC-C2YK-2CUF AU9599B Y03694 HC-C2YK-4BF AU9616B Y03696 HC-C2YK-4BF AU9618B Y03695 HC-C2YK-4BF AU9630B Y03620 HC-C2YK-4BF AU9631B Y03627 HC-C2YK-4BF AU9638B Y03625 HC-C2YK-4BF AU9649B Y04047 HC-C2YK-2CUF AU9985B Y04376 HC-C2YL-1BF AX522 Y05051 HC-C2YR-1BF AX527 Y02908 HC-C2YL-1BF AX841B Y04763 HC-C2YL-1BF AX720A Y04731 HC-E2YR-2RBSF BB6694 Y04900 HC-E2YL-2BSF BG2122 Y04738 HC-E2YL-2BSF BG2923 Y04547 HC-E2YL-2BSF BG3219 Y03153 HC-E2YL-2BSF BG3287 Y04061 HC-E2YL-2BSF BG3363 Y04917 HC-E2YL-2BSF BG372 Y04062 HC-E2YL-2BSF BG434 Y04190 HC-E2YL-2BSF BG4344 Y04901 HC-E2YL-2BSF BG4557 Y04737 HC-E2YL-2BSF BG648 Y04898 HC-E2YR-2RBSF BP3287 Y03327 HC-E2YR-2RBS BP5179 Y03680 HC-E2YR-2RBSF BP6199 Y04167 HC-E2YR-2RBSF BP6206 Y03138 HC-E2YR-2RBSF BP6606 Y02709 HC-E2YR-2RBSF BP6838 Y04899 HC-E2YR-2RBSF BP9158 Y03913 HC-E2YR-2RBSF BP9159 Y03139 HC-E2YR-2RBSF BP9168 Y04780 PHC-A3VF-2B BR834 Y02939 HC-B3TN-3DY BUA22056 Y02971 HC-B3TN-3DY BU12462 Y04089 HC-B3TN-3C BU14589 Y03948 HC-BCTN-3B BU16789 Y02767 HC-B3TN-5FL BV3382 Y02768 HC-B3TN-5FL BV3540 Y02946 HC-B3TN-3DY BUA22136 Y03726 HC-B3TN-3G BUA21467 Y03727 HC-B3TN-3G BUA23284 Y03928 HC-B3TN-3D BUA24401 Y04429 HC-B3TN-3N BUA24852 Y04430 HC-B3TN-3N BUA24992 Y05019 HC-B3TN-3G BUA27325 Y03719 HC-B3TN-5E BVA7456 Y03718 HC-B3TN-5E BVA7457 Y04443 HC-B3TN-5FL BVA7770 Y04444 HC-B3TN-5FL BVA7771 Y03304 HC-B4TN-5ML CD1746 Y03165 HC-B4TN-5ML CD1752 Y03164 HC-B4TN-5ML CD1973 Y04535 HC-B4TN-S CDA3529M1 Y04787 HC-B4N-ML CDA3703 Y04788 HC-B4TN-5ML CDA3704 Y03351 HC-B4TN-5ML CDA4424 Y04644 HC-B4TN-5ML CDA4819 Y04534 HC-B4TN-S CDA5047M1 Y04399 HC-C2YK-1BF CH11322 Y03764 HC-C2YK-1BF CH1614B Y02124 HC-C2YK-1BF CH23470 Y02897 HC-C2YK-1BF CH32119A Y04516 HC-C2YK-1BF CH20231 Y04371 HC-C2YK-1BF CH21618 Y04260 HC-C2YK-1BF CH23621 Y02641 HC-C2YK-1BF CH23890(E) Y03969 HC-C2YK-1BF CH25517 Y02648 HC-C2YK-1BF CH26145 Y02896 HC-C2YK-1BF CH32118A Y04244 HC-C2YR-1BF CH27227 Y03763 HC-C2YK-1BF CH27235 Y03704 HC-C2YK-1BF CH28190 Y03141 HC-C2YK-1BF CH29976 Y05015 HC-C2YK-1BF CH30451 Y04153 HC-C2YK-1BF CH32838B Y03949 HC-C2YK-1BF CH32683B Y05124 HC-C2YKR-1BF CH33316B Y03205 HC-C2YK-1BF CH33520B Y03850 HC-C2YK-1BF CH33777B Y03843 HC-C2YK-1BF CH34179B Y04230 HC-C2YK-1BF CH34607B Y04014 HC-C2YR-1BF CH34638B Y05078 HC-C2YK-1BF CH35009B Y04361 HC-C2YK-1BF CH35037B Y04587 HC-C2YK-1BF CH35445B Y04588 HC-C2YK-1BF CH35466B Y05076 HC-C2YK-1BF CH37285B Y05079 HC-C2YK-1BF CH37286B Y05056 HC-C2YK-1BF CH3730B Y04891 HC-C3YR-2LUF CH4488A Y03425 HC-C2YK-1BF CH5073 Y03428 HC-C2YK-1B CH617 Y04126 HC-E2YL-2BTF CJ514 Y03027 HC-C3YR-2UF CK3633A Y02594 HC-C3YR-2UF CK3634A Y03429 HC-C3YR-2UF CK3651A Y03168 HC-C3YR-2UF CK3662A Y03995 HC-C3YR-2UF CK3663A Y03573 HC-C3YR-2UF CK3678A Y03611 HC-C3YR-2UF CK3705A Y03707 HC-C3YR-2UF CK3706A Y03513 HC-E3YR-2UF CK3719A Y03937 HC-C3YR-2UF CK3872A Y03794 HC-C3YR-2UF CK3873A Y03921 HC-C3YR-2UF CK3874A Y04892 HC-C3YR-2UF CK4263A Y03317 HC-C3YR-2UF CK4459A Y02871 HC-C3YR-2UF CK4460A Y02704 HC-C3YR-2UF CK4645A Y03522 HC-C3YR-2UF CK4682A Y04770 HC-F2YR-1F CM535 Y05039 HC-C2YK-4BF DH687E Y04872 HC-E3YR-2ATF DJ10539A Y04873 HC-E3YR-2ALTF DJ10542A Y03975 HC-E3YR-2ALTF DJ10585A Y03974 HC-E3YR-2ATF DJ10832A Y03023 HC-E3YR-2ATF DJ8092A Y03998 HC-E3YR-2ATF DJ8105A Y03997 HC-E3YR-2ATF DJ8106A Y02865 HC-E3YR-2ALTF DJ8128A Y04149 HC-E3YR-2ATF DJ8137A Y04150 HC-E3YR-2ALTF DJ8139A Y04911 HC-E3YR-2ALTF DJ8151A Y02580 HC-E3YR-2ALTF DJ8154A Y04912 HC-E3YR-2ATF DJ8157A Y02864 HC-E3YR-2ATF DJ8161A Y02581 HC-E3YR-2AFT DJ8180A Y04775 HC-E3YR-2ATF DJ8326A Y04774 HC-E3YR-2ALTF DJ8329A Y03760 HC-E3YR-2ATF DJ8872A Y03022 HC-E3YR-2ALTF DJ9503A Y02120 HC-E2YR-1BF DK1068 Y04375 HC-E2YR-1BF DK155 Y03331 HC-E2YR-1BF DK1902B Y04373 HC-E2YR-1BF DK611 Y04168 HC-E2YR-1BF DK620 Y04471 HC-C2YK-1BF DK669 Y03040 HC-C2YK-4BF DN4101A Y03590 HC-C2YK-4BF AU8619A Y03129 HC-C2YK-4BF DN4111A Y03442 HC-C2YK-4BF DN4112A Y03003 HC-C2YK-2CEUF DN4126A Y03630 HC-C2YK-4BF DN4127A Y02620 HC-C2YK-4FC7666A DN4168A Y02680 HC-C2YK-4FC7666A DN4171A Y02786 HC-C2YK-4FC7666A DN4172A Y02619 HC-C2YK-4FC7666A DN4175A Y03588 HC-C2YK-4BF DN4187A Y03116 HC-C2YK-4CF DN4216A Y02679 HC-C2YK-4FC7666A DN4231A Y03209 HC-C2YK-4BF AU9643B Y02677 HC-C2YK-4FC7666A DN4249A Y02667 HC-C2YK-4FC7666A DN4263A Y03253 HC-C2YK-4BF DN4265A Y03592 HC-C2YK-4BF DN4268 Y02796 HC-C2YK-4FC7666A DN4279A Y02788 HC-C2YK-4FC7666A DN4280A Y03210 HC-C2YK-4BF DN4284A Y03212 HC-C2YK-4BF DN4299A Y03574 HC-C2YK-4BF DN9650B Y03260 HC-C2YK-4BF DN4340A Y03254 HC-C2YK-4BF DN4341A Y02665 HC-C2YK-4FC7666A DN4351A Y02681 HC-C2YK-4FC7666A DN4364A Y03208 HC-C2YK-4BF DN4371A Y02787 HC-C2YK-4FC7666A DN4380A Y03621 HC-C2YK-4BF DN4510A Y02666 HC-C2YK-4FC7666A DN4521A Y03589 HC-C2YK-4BF DN4514A Y03619 HC-C2YK-4BF DN4515A Y02678 HC-C2YK-4FC7666A DN4516A Y02618 HC-C2YK-4FC7666A DN4522A Y02615 HC-C2YK-4FC7666A DN4524A Y02614 HC-C2YK-4FC7666A DN4712A Y02616 HC-C2YK-4FC7666A DN4716A Y03439 HC-C2YK-4BF DN4719A Y02662 HC-C2YK-4FC7666A DN4955A Y03626 HC-C2YK-4BF DN4957A Y03252 HC-C2YK-4BF DN4963A Y02668 HC-C2YK-4FC7666A DN4965A Y04191 HC-E2YL-2BLSF DP94 Y02832 HC-C3YR-1RF DY2464A Y04175 PHC-C3YF-2UF EB171 Y04174 PHC-C3YF-2UF EB173 Y03788 PHC-C3YF-2UF EB1977 Y03787 PHC-C3YF-2UF EB1978 Y02779 HC-M2YR-2CEUF FB379 Y04943 PHC-C3YF-1RF EE1354 Y03959 PHC-C3YF-1RF EE1369 Y03754 HC-C2YR-1RF EE227 Y04730 PHC-C3YF-1RF EE2322A Y03767 HC-C3YF-1RF EE351 Y04246 HC-BM5P-3C EVA2226 Y04246 HC-BM5P-3C EVA2246 Y04169 HC-B5MP-3C EVA2281 Y02634 HC-M2YR-2CLEUF FB102 Y02732 HC-M2YR-2CEUF FB1061A Y04252 HC-M2YR-2CEUF FB1064A Y02733 HC-M2YR-2CLEUF FB1066A Y04253 HC-M2YR-2CLEUF FB1067A Y03332 HC-M2YR-2CLEUF FB1177B Y04170 HC-M2YR-2CLEUF FB1196B Y02719 HC-M2YR-2CLEUF FB1167B Y02708 HC-M2YR-2CEUF FB409 Y04492 HC-M2YR-2CEUF FB454 Y03043 HC-M2YR-2CEUF FB99 Y02905 HC-F2YL-2UF FE11 Y02917 HC-F2YL-2UF FE229 Y03753 HC-F2YL-2UF FE282B Y03827 HC-F2YL-2UF FE285B Y03453 HC-F2YL-2UF FE58 Y04876 HC-C3YF-5F FR101 Y04725 HC-C3YF-5F FR185A Y04726 HC-C3YF-5F FR186A Y04829 HC-C3YF-5F FR187A Y04830 HC-C3YF-5F FR188A Y05110 HC-C3YF-5F FR192A Y05111 HC-C3YF-5F FR193A Y04971 HC-C3YF-5F FR206A Y03814 HC-C3YF-5F FR207A Y04878 HC-C3YF-5F FR39 Y03125 HC-C3YF-5F FR206A Y02715 HC-C3YF-5F FR58 Y04448 HC-C3YF-5F FR68 Y02716 HC-C3YF-5F FR72 Y04450 HC-C3YF-5F FR73 Y04569 HC-C3YF-5F FR74 Y04449 HC-C3YF-5F FR78 Y04085 HC-C3YF-5F FR79 Y04970 HC-C3YF-5F FR80 Y02600 HC-C3YF-5F FR82 Y03527 HC-C3YF-5F FR83 Y04877 HC-C3YF-5F FR86 Y04570 HC-C3YF-5F FR87 Y04752 HC-C3YF-5F FR92 Y05008 HC-C3YF-5F FR94 Y03605 HC-B4MP-3B FWA3209 Y03604 HC-B4MP-3B FWA3201 Y03987 HC-B4MP-3A FWA3043 Y03902 HC-B4MP-3A FWA3216 Y03903 HC-B4MP-3A FWA3217 Y04351 HC-B4MP-3A FWA3270 Y03911 HC-B4MP-3A FWA3444 Y03910 HC-B4MP-3A FWA3445 Y03986 HC-B4MP-3A FWA3538 Y04352 HC-B4MP-3A FWA3732 Y04465 HC-B4MP-3A FWA3760 Y04466 HC-B4MP-3A FWA3761 Y03647 HC-A6A-3A GP135 Y03647 HC-A6A-3A GP135 Y02882 HC-A2VK-2 H238 Y02883 HC-A2VK-2 H2472 Y04864 HC-A2YK-2 H392 Y04863 HC-A2YK-2 H396 Y04979 HC-E4N-3G HH1739 Y04980 HC-E4N-3G HH360 Y04977 HC-E4N-3G HH378 Y04978 HC-E4N-3G HH379 Y03667 HC-E4N-3 HH43 Y04125 HC-E4A-3J HJ1050 Y04124 HC-E4A-3J HJ1079 Y04123 HC-E4A-3J HJ1213 Y04874 HC-I3YR-1RF HK127A Y04597 HC-A2VK-1 J1153 Y04783 BHC-C2YF-2CLKUF JS11B Y04687 BHC-C2YF-CLKUF JS70B Y04051 HC-82VL-2C K2624N Table 2.—McCauley Propellers by P/N and SN CSE work order No. McCauley propeller P/N McCauley propeller SN Y04664 D2A34C67-NP 714384 Y04665 D2A34C67-NP 714390 Y03274 D2A34C67-NP 723093 Y04543 D2A34C67-NP 723094 Y02754 D2A34C67-NP 723112 Y04360 D3A32C90-MN 739415 Y02989 2A34C50-NP 743482 Y04285 2A34C203-C 744591 Y04467 D2A34C58-NO 745446 Y04279 3FF32L501-A 757134 Y04278 3FF32C501-A 757204 Y02802 3AF32C87-N 757861 Y04250 3FF32C501-A 761008 Y03294 2A36C23-P-E-G 761063 Y03724 D2A34C67-NP 766297 Y04251 3FF32C501-A 768699 Y03855 D2AF34C81-0 772113 Y04261 B2D34C214 775347 Y03963 B2D34C213 776696 Y04996 B2D34C213-B 783689 Y03060 D3A34C402 785093 Y04396 3FF32C501 787591 Y03058 C2A34C204 788168 Y04100 3AF34C503 793041 Y04183 3AF34C503-B 794440 Y04084 2D34C215 795642 Y02771 B2D34C220 795939 Y03924 3AF34C502 798390 Y03202 2A34C216 798602 Y04255 3AF34C503 798788 Y04663 3AF34C503 798978 Y01682 B2D34C214-A 800359 Y04067 3AF34C502 801561 Y04256 3AF34C502 801583 Y02605 3AF34C502 801584 Y04459 2D34C215 801873 Y04959 3AF32C93-NR 803586 Y04112 3FF32C501A 803966 Y03725 2A34C203-C 805071 Y05013 C2A34C204 805223 Y05053 3AF34C503 805387 Y05052 3AF34C502 805405 Y03297 2AF34C55-0 805970 Y04113 3FF32C501A 806424 Y02575 3FF32C501A 961655 Y03923 2D34C215-B 808006 Y03824 3AF32C509 811678 Y04008 3AF32C508 811912 Y04782 3AF32C509 812482 Y04322 D2AF34C302-A 812874 Y05073 3AF32C509-B 814111 Y05087 3AF32C506 820138 Y02810 3AF32C506 820811 Y02809 3AF32C507 820812 Y03692 C2A34C204-BC 821916 Y04402 3AF32C508 823133 Y02248 3AF32C507 970209 Y05032 3AF32C508-B 840763 Y04033 3AF32C509-B 841002 Y04495 B2D34C213B 851122 Y04397 3FF32C501 860047 Y04680 3AF34C502-B 860142 Y03847 D3A34C403-C 861694 Y04087 3A32C406-C 870695 Y03848 D3A32C90-R 881455 Y01748 D3A32C409 881583 Y05072 3AF32C508-C 890018 Y03723 D2A34C67-0 890108 Y05104 C3D36C415-C 890669 Y05032 D3A32C90-R 890683 Y05034 B3D34C405-C 891388 Y03410 3AF32C508-C 891956 Y04540 3AF34C502 891996 Y04063 2A34C203-B 900028 Y03196 3GFR34C701-DF 900684 Y04653 3A32C406-C 901189 Y03524 B2D3AC207-B 902858 Y04499 3AF32C509-C 911526 Y04498 3AF32C508-C 912012 Y04924 3AF32C509 912323 Y04305 3AF34C502 912386 Y04473 3AF32C508-C 921236 Y04474 3AF32C509-C 921239 Y04099 2D34C215-B 921659 Y04425 3AF32C509-C 930215 Y04991 D3A32C411-C 930228 Y02387 5JFR36C1003 930291 Y02386 5JFR36C1003 930294 Y03011 B2D37C229-B 930318 Y02632 B3D32C419 930644 Y03523 C2A34C204-BC 930703 Y03404 B2D34C213-B 931938 Y03474 4HFR34C762-H 940651 Y04116 3AF32C512-C 941278 Y04117 3AF32C512-C 941284 Y03475 4HFR34C762-H 941528 Y04941 3AF32C515 942101 Y03756 3AF32C515 942106 Y04825 B3D32C419-C 950588 Y04813 3FF34C501A 961655 Y02608 D3A34C403-C 962466 Y04454 3AF32C508-C 962536 Y04757 3AF34C502-C 962541 Y04550 3AF32C509-C 970276 Y02583 3AF32C522 971311 Y02582 3AF32C523 971324 Y05082 B3D36C424-C 980136 Y02914 B2D34C214 980409 Y03894 3AF32C87-R 981955 Y03893 3AF32C87-R 982877 Y02752 B2D34C213 983395 Y03538 B2D34C213-B 983396 Y04137 B3D36C432-C 992420 Y04595 B2D34C214-B 7710604 Y02895 B2D34C213 7710613 Y03403 3AF34C503 7810116 Y04621 D2A34C98-0 7810684 Y05054 3AF34C503 7910085 Y04821 3AF34C503 7910363 Y02889 3AF32C87NR 7910688 Y02890 3AF32C87NR 7910690 Y04721 C2A34C204-C 000679 Y04452 D3A32C88 010463 Y04216 2A34C209 010522 Y04942 3AF32C523 020312 Y05007 2A34C201-C 022421 Unsafe Condition
(d)This AD results from findings that CSE Aviation failed to perform some specific inspections and repairs. We are issuing this AD to detect potentially unsafe conditions that could result in a propeller blade separating from the hub and loss of control of the airplane. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done.
(f)For propellers listed by SN in Table 1 or Table 2 overhauled or repaired by CSE after November 2003, or overhauled by an FAA-approved propeller repair facility after October 2003, no further action is required. All Propellers Listed by SN in Table 1 or Table 2
(g)Before further flight, perform a document search of airplane and propeller records to determine if the propeller was involved in a ground strike.
(h)If the propeller was involved in a ground strike, perform the requirements specified in paragraph
(j)or paragraph
(k)of this AD within 10 flight hours
(FH)time-in-service
(TIS)after the effective date of this AD, or 2 years after the effective date of this AD, whichever is earlier.
(i)For all propellers listed by SN in Table 1 or Table 2 of this AD, not involved in a ground strike, use the compliance schedule in the following Table 3 to perform the requirements specified in paragraph
(j)or paragraph
(k)of this AD as applicable. Table 3.—Compliance Schedule If the time-since-overhaul
(TSO)for the propeller on the effective date of this AD is * * * Then perform the requirements of paragraph
(j)or paragraph
(k)of this AD within * * *
(1)1,500 FH TSO or more 200 FH TIS after the effective date of this AD, but do not exceed 2 years after the effective date of this AD.
(2)More than 1,000 FH TSO, but fewer than 1,500 FH TIS 350 FH TIS after the effective date of this AD, but do not exceed 2 years after the effective date of this AD.
(3)1,000 FH TSO or fewer 500 FH TIS after the effective date of this AD, but do not exceed 2 years after the effective date of this AD. Hartzell Propellers
(j)For Hartzell propellers listed by SN in Table 1 of this AD, do the following:
(1)Disassemble the propeller.
(2)Clean all disassembled propeller parts.
(3)Perform a visual inspection for the following conditions:
(i)Wear or damage such as cracks, corrosion, scratches, or nicks.
(ii)Except for blades installed new at the last CSE maintenance action, examine for:
(A)Bent or damaged pitch change knobs.
(B)Damage in the bore area of the blade shank.
(C)Damage in the blade balance hole.
(iii)Damage that indicates a previous ground strike (if applicable).
(iv)Unacceptable wear or damage in areas where shot peening is required. It is not necessary to strip the paint and corrosion protective coatings from the external surface of the blade. It is also not necessary to perform dimensional measurements on the external surface of the blade unless there is evidence of damage that has occurred since CSE returned the propeller to service.
(v)Confirm that CSE Aviation correctly performed the repairs listed in the manufacturers maintenance manuals. An example of a maintenance manual repair is chamfering of the hub grease fitting hole on Hartzell “Y” shank series propellers.
(4)Perform all Eddy Current inspections applicable.
(5)Repair and replace with serviceable parts, as necessary.
(6)Assemble and test.
(7)Confirm that hubs affected by AD 2001-23-08 are returned to service only on aircraft affected by that AD. McCauley Propellers
(k)For McCauley propellers listed by SN in Table 2 of this AD, do the following:
(1)Disassemble the propeller.
(2)Clean all disassembled propeller parts.
(3)Perform a visual inspection for the following conditions:
(i)Wear or damage such as cracks, corrosion, scratches or nicks.
(ii)Damage that indicates a previous ground strike (if applicable).
(iii)Unacceptable wear or damage in areas where shot peening is required, paying particular attention to hub internal shot peened surfaces and blade shank peening. It is not necessary to strip the paint and corrosion protective coatings from the external surface of the blade. It is also not necessary to perform dimensional measurements on the external surface of the blade unless there is evidence of damage that has occurred since CSE returned the propeller to service.
(4)Inspect threaded surfaces of threaded blade shanks with a 10X magnifying glass for scratches parallel to retention threads in the thread root of the first four outboard blade threads. If the retention threads are scratched, repair is not allowed.
(5)Confirm that CSE Aviation correctly performed repairs or modifications listed in the manufacturer's maintenance instructions.
(6)Repair and replace with serviceable parts, as necessary.
(7)Assemble and test. Definitions
(l)For the purposes of this AD:
(1)Overhauling a propeller is not necessary to comply with the requirements specified in paragraph
(j)or paragraph
(k)of this AD. If you do not overhaul the propeller, the TSO does not change.
(2)Unacceptable wear is wear or damage that can penetrate the shotpeen compressive layer. Alternative Methods of Compliance
(m)The Manager, Chicago Aircraft Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19. Related Information
(n)The applicable Hartzell Propeller Inc. or McCauley Overhaul Manuals and Service Documents contain information on performing the inspections specified in this AD. Issued in Burlington, Massachusetts, on November 21, 2006. Peter A. White, Acting Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E6-20206 Filed 11-28-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 30523 Amdt. No. 3194] Standard Instrument Approach Procedures, Weather Takeoff Minimums; Miscellaneous Amendments AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This amendment establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and/or Weather Takeoff Minimums for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports. DATES: This rule is effective November 29, 2006. The compliance date for each SIAP and/or Weather Takeoff Minimums is specified in the amendatory provisions. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the **Federal Register** as of November 29, 2006. ADDRESSES: Availability of matters incorporated by reference in the amendment is as follows: *For Examination* — 1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; 2. The FAA Regional Office of the region in which the affected airport is located; 3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or, 4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.* *For Purchase* —Individual SIAP and Weather Takeoff Minimums copies may be obtained from: 1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or 2. The FAA Regional Office of the region in which the affected airport is located. *By Subscription* —Copies of all SIAPs and Weather Takeoff Minimums mailed once every 2 weeks, are for sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. FOR FURTHER INFORMATION CONTACT: Donald P. Pate, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone:
(405)954-4164. SUPPLEMENTARY INFORMATION: This amendment to Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), establishes, amends, suspends, or revokes SIAPs and/or Weather Takeoff Minimums. The complete regulatory description of each SIAP and/or Weather Takeoff Minimums is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, 8260-5 and 8260-15A. Materials incorporated by reference are available for examination or purchase as stated above. The large number of SIAPs and/or Weather Takeoff Minimums, their complex nature, and the need for a special format make their verbatim publication in the **Federal Register** expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs and/or Weather Takeoff Minimums but refer to their depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP and/or Weather Takeoff Minimums contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR sections, with the types and effective dates of the SIAPs and/or Weather Takeoff Minimums. This amendment also identifies the airport, its location, the procedure identification and the amendment number. The Rule This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and/or Weather Takeoff Minimums as contained in the transmittal. Some SIAP and/or Weather Takeoff Minimums amendments may have been previously issued by the FAA in a Flight Data Center
(FDC)Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP, and/or Weather Takeoff Minimums amendments may require making them effective in less than 30 days. For the remaining SIAPs and/or Weather Takeoff Minimums, an effective date at least 30 days after publication is provided. Further, the SIAPs and/or Weather Takeoff Minimums contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and/or Weather Takeoff Minimums, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and/or Weather Takeoff Minimums and safety in air commerce, I find that notice and public procedure before adopting these SIAPs and/or Weather Takeoff Minimums are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs and/or Weather Takeoff Minimums effective in less than 30 days. Conclusion The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and
(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. List of Subjects in 14 CFR Part 97 Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air). Issued in Washington, DC on November 17, 2006. James J. Ballough, Director, Flight Standards Service. Adoption of the Amendment Accordingly, pursuant to the authority delegated to me, under Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and Weather Takeoff Minimums effective at 0901 UTC on the dates specified, as follows: PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722. 2. Part 97 is amended to read as follows: Effective 21 December 2006 Huntsville, AL, Madison County Executive, RNAV
(GPS)RWY 36, Orig Leesburg, FL, Leesburg Regional, RNAV
(GPS)RWY 3, Orig Leesburg, FL, Leesburg Regional, RNAV
(GPS)RWY 13, Orig Leesburg, FL, Leesburg Regional, RNAV
(GPS)RWY 31, Orig Leesburg, FL, Leesburg Regional, GPS RWY 13, Amdt 1, CANCELLED Leesburg, FL, Leesburg Regional, GPS RWY 31, Amdt 1, CANCELLED Leesburg, FL, Leesburg Regional, Takeoff Minimums and Textual DP, Amdt 2 Boston, MA, General Edward Lawrence Logan Intl, RNAV
(GPS)RWY 32, Orig-A Willmar, MN, Willmar Muni, RNAV
(GPS)RWY 13, Orig Willmar, MN, Willmar Muni, RNAV
(GPS)RWY 31, Orig New Orleans, LA, Lakefront, RNAV
(GPS)RWY 18R, Orig New Orleans, LA, Lakefront, GPS RWY 18R, Orig-A CANCELLED Harrisburg, PA, Capital City, RNAV
(GPS)RWY 26, Orig-A Evanston, WY, Evanston-Uinta County Burns Field, RNAV
(GPS)RWY 23, Amdt 3 Effective 18 January 2007 New Orleans, LA, Lakefront, ILS RWY 18R, Amdt 12B, CANCELLED Monroe, NC, Monroe Regional, ILS OR LOC/NDB RWY 5, Amdt 1 Monroe, NC, Monroe Regional, RNAV
(GPS)RWY 5, Amdt 1 Monroe, NC, Monroe Regional, RNAV
(GPS)RWY 23, Orig Monroe, NC, Monroe, VOR OR GPS-A, Amdt 11C, CANCELLED Monroe, NC, Monroe, VOR/DME OR GPS-B, Amdt 6C, CANCELLED Monroe, NC, Monroe Regional, Takeoff Minimums and Textual DP, Orig Muskogee, OK, Davis Field, VOR RWY 31, Amdt 4, CANCELLED Gettysburg, SD, Gettysburg Muni, RNAV
(GPS)RWY 13, Orig Gettysburg, SD, Gettysburg Muni, RNAV
(GPS)RWY 31, Orig Gettysburg, SD, Gettysburg Muni, GPS RWY 31, Orig-A, CANCELLED Gettysburg, SD, Gettysburg Muni, Takeoff Minimums and Textual DPs, Amdt 1 Seattle, WA, Boeing Field/King County Intl, Takeoff Minimums and Textual DP, Amdt 6 The FAA published an Amendment in Docket No. 30513, Amdt No. 3184 to Part 97 of the Federal Aviation Regulations (Vol 71, FR No. 220, Page 66447; dated November 15, 2006) under section 97.27, effective 18 January 2007, published in TL 06-25 are hereby RESCINDED as follows: Dayton, OH, Green County-Lewis A Jackson Regional, RNAV
(GPS)RWY 7, Orig Dayton, OH, Greene County-Lewis A Jackson Regional, RNAV
(GPS)RWY 25, Orig Dayton, OH, Greene County-Lewis A Jackson Regional, NDB RWY 25, Amdt 1 Dayton, OH, Greene County-Lewis A Jackson Regional, GPS RWY 7, Orig-A, CANCELLED Dayton, OH, Greene County-Lewis A Jackson Regional, Takeoff Minimums and Textual DP, Amdt 1 [FR Doc. E6-20154 Filed 11-28-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 510 New Animal Drugs; Change of Sponsor's Name AGENCY: Food and Drug Administration, HHS. ACTION: Final rule; technical amendment. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect a change of sponsor's name from Bertek Pharmaceuticals, Inc., to Mylan Bertek Pharmaceuticals, Inc. DATES: This rule is effective November 29, 2006. FOR FURTHER INFORMATION CONTACT: David R. Newkirk, Center for Veterinary Medicine (HFV-100), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-6967, e-mail: *david.newkirk@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: Bertek Pharmaceuticals, Inc., 12720 Dairy Ashford, Sugar Land, TX 77478, has informed FDA that it has changed its name to Mylan Bertek Pharmaceuticals, Inc. Accordingly, the agency is amending the regulations in 21 CFR 510.600 to reflect the change. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 510 Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 510 is amended as follows: PART 510—NEW ANIMAL DRUGS 1. The authority citation for 21 CFR part 510 continues to read as follows: Authority: 21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e. 2. In § 510.600 in the table in paragraph (c)(1) remove the entry for “Bertek Pharmaceuticals, Inc.” and alphabetically add a new entry for “Mylan Bertek Pharmaceuticals, Inc.”; and in the table in paragraph (c)(2) revise the entry for “062794” to read as follows: § 510.600 Names, addresses, and drug labeler codes of sponsors of approved applications.
(c)* * *
(1)* * * Firm name and address Drug labeler code * * * * * Mylan Bertek Pharmaceuticals, Inc., 12720 Dairy Ashford, Sugar Land, TX 77478 062794 * * * * *
(2)* * * Drug labeler code Firm name and address * * * * * 062794 Mylan Bertek Pharmaceuticals, Inc., 12720 Dairy Ashford, Sugar Land, TX 77478 * * * * * Dated: November 16, 2006. Bernadette Dunham, Deputy Director, Office of New Animal Drug Evaluation, Center for Veterinary Medicine. [FR Doc. E6-20250 Filed 11-28-06; 8:45 am] BILLING CODE 4160-01-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2002-0021; FRL-8249-3] RIN 2060-AM30 National Emission Standards for Hazardous Air Pollutants: Site Remediation AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This action amends the national emission standards for hazardous air pollutants (NESHAP) for site remediation activities. This final rule revises specific provisions in the rule to resolve issues and questions subsequent to promulgation; correct technical omissions; and correct typographical, cross-reference, and grammatical errors. DATES: This final rule is effective on November 29, 2006. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2002-0021. All documents in the docket are listed on the *http://www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, *e.g.* , confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy at the Air & Radiation Docket, Docket ID No. EPA-HQ-OAR-2002-0021, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Air Docket is
(202)566-1742. Note: The EPA Docket Center suffered damage due to flooding during the last week of June 2006. The Docket Center is continuing to operate. However, during the cleanup, there will be temporary changes to Docket Center telephone numbers, addresses, and hours of operation for people who wish to visit the Public Ready Room to view documents. Consult EPA's **Federal Register** notice at 71 FR 38147 (July 5, 2006) or the EPA Web site *http://www.epa.gov/epahome/dockets.htm* for current information on docket status, locations, and telephone numbers. FOR FURTHER INFORMATION CONTACT: Mr. Greg Nizich, Chemicals and Coatings Group, Sector Policies and Programs Division (E143-01), U.S. EPA, Research Triangle Park, NC 27711, telephone number:
(919)541-3078, facsimile number:
(919)541-0246, electronic mail (e-mail) address: *nizich.greg@epa.gov.* SUPPLEMENTARY INFORMATION: *Regulated Entities.* The regulated categories and entities affected by the NESHAP include: Category NAICS 1 Examples of regulated entities Industry 325211 325192 325188 32411 49311 49319 48611 42269 42271 Site remediation activities at businesses at which materials containing organic HAP currently are or have been in the past stored, processed, treated, or otherwise managed at the facility. These facilities include: organic liquid storage terminals, petroleum refineries, chemical manufacturing facilities, and other manufacturing facilities with co-located site remediation activities. Federal Government Federal agency facilities that conduct site remediation activities to clean up materials contaminated with organic HAP. State/ Local/ Tribal Government Tribal governments that conduct site remediation activities to clean up materials contaminated with organic HAP. 1 North American Industry Classification System (NAICS) code. Representative industrial codes at which site remediation activities have been or are currently conducted at some but not all facilities under a given code. The list is not necessarily comprehensive as to the types of facilities at which a site remediation cleanup may potentially be required either now or in the future. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that we are now aware could potentially be regulated by this action. A comprehensive list of NAICS codes cannot be compiled for businesses or facilities potentially regulated by the rule due to the nature of activities regulated by the source category. The industrial code alone for a given facility does not determine whether the facility is or is not potentially subject to this final rule. This final rule may be applicable to any type of business or facility at which a site remediation is conducted to clean up media contaminated with organic hazardous air pollutant
(HAP)and other hazardous material. Thus, for many businesses and facilities subject to the rule, the regulated sources ( *i.e.* , the site remediation activities) are not the predominant activity, process, operation, or service conducted at the facility. In these cases, the industrial code indicates a primary product produced or service provided at the facility rather than the presence of a site remediation at the facility. For example, NAICS code classifications where site remediation activities are currently being performed at some but not all facilities include, but are not limited to, petroleum refineries (NAICS code 32411), industrial organic chemical manufacturing (NAICS code 3251xx), and plastic materials and synthetics manufacturing (NAICS code 3252xx). However, we are also aware of site remediation activities potentially subject to the rule being performed at facilities listed under NAICS codes for refuse systems, waste management, business services, miscellaneous services, and nonclassifiable. To determine whether your facility is regulated by the action, you should carefully examine the applicability criteria in the 40 CFR part 63, subpart GGGGG-National Emissions Standards for Hazardous Air Pollutants: Site Remediation. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. *Worldwide Web (WWW).* In addition to being available in the docket, an electronic copy of this final action will also be available on the Worldwide Web through the Technology Transfer Network (TTN). Following signature, a copy of this final rule will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address: *http://www.epa.gov/ttn/oarpg/.* The TTN provides information and technology exchange in various areas of air pollution control. *Judicial Review.* Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of the final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by January 29, 2007. Under section 307(d)(7)(B) of the CAA, only an objection to the final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements established by the final rule may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements. *Organization of This Document.* The information presented in this preamble is organized as follows: I. Background II. Final Amendments to Rule A. Applicability Determination for Remediation Activities at Certain Oil and Natural Gas Production Facilities B. 1 Megagram
(Mg)Site Remediation Applicability Exemption C. Short-Term Site Remediation Exemption (30-day) D. Point of Determination of Remediation Material VOHAP Concentration E. Requirements for Equipment Leaks F. Other Rule Corrections III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Congressional Review Act I. Background On October 8, 2003 (68 FR 58172), we issued a NESHAP for site remediation activities (40 CFR part 63, subpart GGGGG). This NESHAP implements section 112(d) of the CAA by requiring owners and operators of facilities that are major sources of HAP emissions and where a site remediation is conducted, that meets the definitions and conditions specified in this rule, to comply with emission standards and work practices for control of HAP reflecting application of the maximum achievable control technology. After promulgation of subpart 40 CFR part 63, GGGGG, we received questions about our intent and interpretation of specific provisions in the rule. To clarify these issues, we decided that technical amendments to the rule are appropriate. We proposed on May 1, 2006, (71 FR 25531) amendments to subpart GGGGG to clarify certain provisions of the rule and to correct unintentional technical omissions and terminology, typographical, printing, and grammatical errors that we have identified since promulgation of the original rule. A 60-day period, which ended on June 30, 2006, was provided to accept public comments on the proposed amendments to subpart GGGGG. We received comments on the proposed amendments from 12 commenters. A petition for reconsideration for 40 CFR part, subpart GGGGG was filed by the Sierra Club on December 8, 2003. The amendments to subpart GGGGG promulgated by this action do not address any issues cited in the Sierra Club's petition. We are still reviewing the items for reconsideration and will address them in a future notice. II. Final Amendments to Rule We are amending 40 CFR part 63, subpart GGGGG to clarify our intent for applying and implementing specific rule requirements and to correct unintentional technical omissions and editorial errors. This action promulgates our proposed regulatory language for the amendments to subpart GGGGG except for those provisions, as noted below, for which modifications were made to the regulatory language for the final amendments in response to specific public comments. Our original projections for the subpart GGGGG compliance costs, environmental benefits, burden on industry, or the number of affected facilities are not changed by these final amendments. This final rule promulgated by this action reflects our full consideration of all the comments we received on the amendment proposal. Our responses to all of the substantive public comments on the proposal are presented in a comment summary and response document available in Docket ID No. EPA-HQ-OAR-2002-0021 and at *http://www.epa.gov/ttn/atw/siterm/sitermpg.html.* A. Applicability Determination for Remediation Activities at Certain Oil and Natural Gas Production Facilities The major source determination requirements used for determining the applicability of 40 CFR part 63, subpart GGGGG are amended for certain facilities involved with oil and natural gas production to be consistent with special directives for these facilities in CAA section 112(n)(4)(A). As discussed in the preamble for the proposed amendments (71 FR 25536), in the Oil and Natural Gas Production NESHAP (40 CFR part 63, subpart HH) we address the provisions of CAA section 112(n)(4)(A) by limiting the emission points that are aggregated for the major source status determination of a production field facility to only the glycol dehydration units and storage vessels with flash emission potential, as defined in the rule (see 40 CFR 63.761). Consistent with our approach used for subpart HH, we are amending subpart GGGGG to specify that for a major source status determination of a production field facility, only the HAP emissions from the glycol dehydration units and storage vessels with the potential for flash emissions, as defined in subpart HH, are to be aggregated with the HAP emissions from the site remediation activities at the facility. Several commenters on the proposed amendments stated that in compliance with the CAA section 112(n)(4) statutory directives, EPA should provide a similar applicability provision in 40 CFR part 63, subpart GGGGG for natural gas transmission and storage facilities consistent with the major source definition in the Natural Gas Transmission and Storage Facilities NESHAP (40 CFR part 63, subpart HHH). We agree that such a provision is appropriate, and are amending subpart GGGGG to specify that for natural gas transmission and storage facilities, HAP emissions are to be aggregated according to the definition of major source in § 63.1271 for a major source determination. B. 1 Megagram
(Mg)Site Remediation Applicability Exemption The final amendments clarify the 40 CFR part 63, subpart GGGGG language with respect to how the 1 Mg applicability exemption is to be applied at a facility. Under this applicability exemption, site remediation activities conducted at your facility are not subject to the requirements of subpart GGGGG (except for certain recordkeeping requirements) if you determine that the total quantity of the HAP that is contained in the remediation material excavated, extracted, pumped, or otherwise removed during all of the site remediations conducted at your facility is less than 1 Mg annually. This final rule language for the exemption provisions does not change how the 1 Mg limit is applied nor change the documentation requirements for the exemption, but adds clarifying language stating that the 1 Mg limit applies on a facility-wide, annual basis and that there is no restriction to the number of site remediations that can be conducted under the exemption. Also, in response to public comments on the proposed regulatory language, the term “annual” was substituted for “calendar year”, and language was added to the final rule stating that a Title V permit does not have to be reopened or revised solely to include the recordkeeping requirement required for the 1 Mg exemption. However, the recordkeeping requirement must be included in the facility's Title V permit the next time the permit is renewed, reopened, or revised for another reason. C. Short-Term Site Remediation Exemption (30-Day) Subpart GGGGG of 40 CFR part 63 is amended to clarify the rule language with respect to our intent for application of the 30-day site remediation exemption, including those situations when the remediation material is transferred off-site. Under this exemption, site remediations at your facility with affected sources subject to regulation under subpart GGGGG that can be completed within 30 days are exempted from having to meet the air emission control requirements specified in this final rule. The final rule language explicitly defines the beginning and end of the 30-day period for the purpose of qualifying for the exemption. The first day of the 30-day exemption period is defined as the day on which you initiate any action that removes, destroys, degrades, transforms, immobilizes, or otherwise manages the remediation materials. Certain activities that you perform to prepare for the actual cleanup of the contaminated media are not counted as part of the 30-day period. The period of time ( *i.e.,* number days) that you are required to perform the following activities are not counted as part of the 30-day interval that cannot be exceeded in order to qualify for the exemption provided that these activities are completed before the actual site cleanup begins: Activities to characterize the type and extent of the contamination by collecting and analyzing samples; activities to obtain permits from Federal, State, or local authorities to conduct the site remediation; activities to schedule workers and necessary equipment; and activities to arrange for contractor or third party assistance in performing the site remediation. The last day of the 30-day exemption period is defined as the day on which all of the remediation materials generated by the cleanup have been treated or disposed of in a manner such that the organic HAP in the material no longer have a reasonable potential for volatilizing and being released to the atmosphere ( *e.g.,* placed in a landfill). The exemption does not apply to a site remediation where the only activities completed during the 30-day period are excavating, pumping, or otherwise removing the remediation material from the contaminated area, and then storing this material on-site ( *e.g.,* in waste piles, tanks, or containers) to be treated or disposed at some later date after the end of the 30-day period. In this case, the processes and equipment used for site remediation need to meet the applicable air emission control requirement in 40 CFR part 63, subpart GGGGG (unless the site remediation qualifies for another exemption allowed under the rule). It was our intent that this exemption be used for those short-term site remediations for which all of the remediation materials generated by the cleanup are treated or disposed within the 30-day period to meet the requirement that the organic HAP constituents in the materials no longer have a reasonable potential for volatilizing and subsequent release to the atmosphere. However, we recognize that in some situations where the remediation materials are shipped off-site for treatment or disposal, unexpected special circumstances beyond the direct control of the facility owner or operator may not allow the final treatment or disposal of the remediation material sent to the off-site location to be completed within the 30-day period required to qualify for the exemption. To address these situations, this final rule includes a provision allowing you to qualify for the exemption provided that all of the remediation material generated by your cleanup is transferred off-site within the 30-day exemption period according to the existing requirements specified in section 63.7936 of subpart GGGGG for remediation material transferred to another party or shipped to another facility. The requirements in section 63.7936 apply to the off-site transfer of remediation materials that have an average total average volatile organic HAP (VOHAP) concentration equal to or greater than 10 parts per million by weight (ppmw), and provide the owner or operator of the affected facility from which the remediation material is transferred with several compliance options. This final rule adds the requirement that you must include in the applicable shipping documentation used to transfer the remediation material off-site, in addition to any notifications and certifications required under section 63.7936, a statement that the shipped material was generated by a site remediation activity subject to the conditions specified for the 30-day exemption. The statement must include the date on which you initiated the site remediation activity generating the shipped remediation materials and the date 30 calendar days following your initiation date. D. Point of Determination of Remediation Material VOHAP Concentration Subpart GGGGG of 40 CFR part 63 applies the air emission control requirements for remediation material management units ( *i.e.,* tanks, surface impoundments, containers, oil/water separators, organic/water separators and transfer systems) to those units that manage remediation material with an average VOHAP concentration equal to or greater than 500 ppmw. The final rule revises the applicable regulatory language in subpart GGGGG referring to the point at which the facility owner or operator determines the average VOHAP concentration of a remediation material. The final rule implements our original intended VOHAP determination procedure by reinstating the regulatory language and terminology we originally proposed for rule, and removing the term “point-of-extraction” from the rule. Under the amended 40 CFR part 63, subpart GGGGG, you are required to determine the average total VOHAP concentration of the remediation material at a point prior to or within a remediation material management unit. Thus, once the VOHAP concentration for a remediation material has been determined to be less than 500 ppmw, all remediation material management units downstream from the point of determination that manage this material are no longer required to meet the air emission control requirements in subpart GGGGG unless a remediation process is used that concentrates all, or part of, the remediation material being managed in the unit such that the VOHAP concentration of the material increases to 500 ppmw or more. The amended regulatory language also clarifies that any free product returned to a manufacturing process is no longer subject to the air emission control requirements in subpart GGGGG. E. Requirements for Equipment Leaks The final rule adds a compliance option to 40 CFR part 63, subpart GGGGG, air emission control requirements for those affected equipment leak sources already using air pollution controls or work practices to comply with another subpart under 40 CFR part 61 or 40 CFR part 63. Under this option, the affected source is in compliance with subpart GGGGG if the HAP emissions from the affected equipment leak source are controlled in compliance with the applicable standards specified in the other subpart in part 61 or 63 that the affected source is subject. This final rule extends the same compliance option that subpart GGGGG already allows for process vents and remediation material management units to equipment leak sources. If you choose to comply with this option, you must comply with all of the applicable emissions limitations and work practice standards under the other subpart ( *e.g.* , you implement leak detection and control measures to reduce HAP emissions as specified by the applicable subpart). This provision does not apply to any exemption of the affected source from the emissions limitations and work practice standards allowed by the other applicable subpart. F. Other Rule Corrections For purposes of implementing the requirements of subpart GGGGG, Table 1 in the rule lists the specific organic chemical compounds, isomers, and mixtures that are HAP. The final rule updates this table to be consistent with EPA's current HAP list. The final rule removes from Table 1 the listings for 1,1-dimethyl hydrazine and methyl ethyl ketone. Both of these organic chemical compounds have been delisted as HAP. Provisions in 40 CFR part 63, subpart GGGGG related to startup, shutdown, and malfunction plan requirements have been revised, as appropriate, to be consistent with the amendments to the General Provisions under subpart A to 40 CFR part 63 that we promulgated on April 20, 2006 (71 FR 20446). The final rule includes changes to the cross-reference citations in §§ 63.7938(b)(2), 63.7938(d)(2), 63.7938(d)(3), 63.7941(h), 63.7950(c), 63.7884(b)(2), and Table 3 of the rule to cite the correct provision in 40 CFR part 63, subpart GGGGG that we had intended to be referenced. Also, the final amendments correct terminology, typographical, and grammatical errors in specific provisions of subpart GGGGG that have been identified since the rule was originally promulgated. The final rule replaces the rule language with the correct cross-reference citation, term, or wording, but do not change any of the technical or administrative requirements of the rule. III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order. B. Paperwork Reduction Act This action does not impose any new information collection burden. The final rule results in no changes to the information collection requirements of the existing rule. OMB has previously approved the information collection requirements contained in 40 CFR part 63, subpart GGGGG, under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* , and has assigned OMB control number 2060-0534, EPA ICR number 2062.02. A copy of the OMB approved Information Collection Request
(ICR)may be obtained from Susan Auby; Collection Strategies Division; U.S. EPA (2822T); 1200 Pennsylvania Ave., NW.; Washington, DC 20460 or by calling
(202)566-1672. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR part 63 are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For the purposes of assessing the impacts of the final rule on small entities, small entity is defined as:
(1)A small business as defined by the Small Business Administration at 13 CFR 121.201;
(2)a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of the final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The small entities that may be directly regulated by the rule include small businesses and small governmental jurisdictions. We have determined that there is little or no impact on any affected small entities because the final rule amends existing regulations to clarify specific provisions and to correct technical omissions and editorial errors. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that the final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or to the private sector in any 1 year. Thus, the final rule is not subject to the requirements of sections 202 and 205 of the UMRA. In addition, EPA has determined that the final rule contains no regulatory requirements that might significantly or uniquely affect small governments, because they contain no requirements that apply to such governments or impose obligations upon them. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” The final rule does not have federalism implications. The final rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The final rule does not add any new requirements to the current rule, they only clarify our intent and correct errors. Thus, Executive Order 13132 does not apply to the final amendments. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The final rule does not have tribal implications, as specified in Executive Order 13175. This action does not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Thus, Executive Order 13175 does not apply to the final rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that:
(1)Is determined to be “economically significant,” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by EPA. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. The final rule is not subject to the Executive Order because they are based on control technology and not on health or safety risks. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This action is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy because it only clarifies our intent and corrects errors in the existing rule. Further, we have concluded that the final rule is not likely to have any adverse energy effects. I. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards
(VCS)in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. The VCS are technical standards ( *e.g.* , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by one or more VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency does not use available and applicable VCS. This action does not involve any new technical standards or the incorporation by reference of existing technical standards. Therefore, the consideration of VCS is not relevant to this action. J. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801, *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing the final amendments and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the final amendments in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). These final amendments are effective on November 29, 2006. List of Subjects in 40 CFR Part 63 Environmental protection, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements. Dated: November 22, 2006. Stephen L. Johnson, Administrator. For the reasons stated in the preamble, title 40, chapter I, part 63, of the Code of the Federal Regulations is amended as follows: PART 63—[AMENDED] 1. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart GGGGG—[Amended] 2. Section 63.7881 is amended by revising paragraphs (a)(3) and
(c)to read as follows: § 63.7881 Am I subject to this subpart?
(a)* * *
(3)Your facility is a major source of HAP as defined in § 63.2, except as specified in paragraph (a)(3)(i) or
(ii)of this section. A major source emits or has the potential to emit any single HAP at the rate of 10 tons (9.07 megagrams) or more per year or any combination of HAP at a rate of 25 tons (22.68 megagrams) or more per year.
(i)For production field facilities, as defined in § 63.761, only the HAP emissions from the glycol dehydration units and storage vessels with the potential for flash emissions (both as defined in § 63.761) shall be aggregated with the HAP emissions from the site remediation activities at the facility for a major source determination.
(ii)For natural gas transmission and storage facilities, HAP emissions shall be aggregated in accordance with the definition of major source in § 63.1271 for a major source determination.
(c)Your site remediation activities are not subject to the requirements of this subpart, except for the recordkeeping requirements in this paragraph, provided that you meet the requirements specified in paragraphs (c)(1) through (c)(3) of this section.
(1)You determine that the total quantity of the HAP listed in Table 1 to this subpart that is contained in the remediation material excavated, extracted, pumped, or otherwise removed during all of the site remediations conducted at your facility is less than 1 megagram
(Mg)annually. This exemption applies the 1 Mg limit on a facility-wide, annual basis, and there is no restriction to the number of site remediations that can be conducted during this period.
(2)You must prepare and maintain at your facility written documentation to support your determination that the total HAP quantity in your remediation materials for the year is less than 1 Mg. The documentation must include a description of your methodology and data used for determining the total HAP content of the remediation material.
(3)Your Title V permit does not have to be reopened or revised solely to include the recordkeeping requirement specified in paragraph (c)(2) of this section. However, the requirement must be included in your permit the next time the permit is renewed, reopened, or revised for another reason. 3. Section 63.7884 is revised to read as follows: § 63.7884 What are the general standards I must meet for each site remediation with affected sources?
(a)For each site remediation with an affected source designated under § 63.7882, you must meet the standards specified in §§ 63.7885 through 63.7955, as applicable to your affected source, unless your site remediation meets the requirements for an exemption under paragraph
(b)of this section.
(b)A site remediation that is completed within 30 consecutive calendar days according to the conditions in paragraphs (b)(1) through
(3)of this section is not subject to the standards under paragraph
(a)of this section. This exemption cannot be used for a site remediation involving the staged or intermittent cleanup of remediation material whereby the remediation activities at the site are started, stopped, and then re-started in a series of intervals, with durations less than 30-days per interval, when the time period from the beginning of the first interval to the end of the last interval exceeds 30 days.
(1)The 30 consecutive calendar day period for a site remediation that qualifies for this exemption is determined according to actions taken by you as defined in paragraphs (b)(1)(i) through
(iii)of this section.
(i)The first day of the 30-day period is defined as the day on which you initiate any action that removes, destroys, degrades, transforms, immobilizes, or otherwise manages the remediation materials. The following activities, when completed before beginning this initial action, are not counted as part of the 30-day period: Activities to characterize the type and extent of the contamination by collecting and analyzing samples; activities to obtain permits from Federal, State, or local authorities to conduct the site remediation; activities to schedule workers and necessary equipment; and activities to arrange for contractor or third party assistance in performing the site remediation.
(ii)The last day of the 30-day period is defined as the day on which treatment or disposal of all of the remediation materials generated by the cleanup is completed such that the organic constituents in these materials no longer have a reasonable potential for volatilizing and being released to the atmosphere.
(iii)If treatment or disposal of the remediation materials is conducted at an off-site facility where the final treatment or disposal of the material cannot, or may not, be completed within the 30-day exemption period, then the shipment of all of the remediation material generated from your cleanup that is transferred to another party, or shipped to another facility, within the 30-day period, must be performed according to the applicable requirements specified in § 63.7936.
(2)For the purpose of complying with paragraph (b)(1) of this section, if you ship or otherwise transfer the remediation material off-site you must include in the applicable shipping documentation, in addition to any notifications and certifications required under § 63.7936, a statement that the shipped material was generated by a site remediation activity subject to the conditions of this exemption. The statement must include the date on which you initiated the site remediation activity generating the shipped remediation materials, as specified in paragraph (b)(1)(i) of this section, and the date 30 calendar days following your initiation date.
(3)You must prepare and maintain at your facility written documentation describing the exempted site remediation, and listing the initiation and completion dates for the site remediation. 4. Section 63.7886 is amended by revising paragraph (b)(2) to read as follows: § 63.7886 What are the general standards I must meet for my affected remediation material management units?
(b)* * *
(2)You determine that the average total VOHAP concentration, as defined in § 63.7957, of the remediation material managed in the remediation material management unit material is less than 500 ppmw. You must follow the requirements in § 63.7943 to demonstrate that the VOHAP concentration of the remediation material is less than 500 ppmw. Once the VOHAP concentration for a remediation material has been determined to be less than 500 ppmw, all remediation material management units downstream from the point of determination managing this material meet the requirements of this paragraph unless a remediation process is used that concentrates all, or part of, the remediation material being managed in the unit such that the VOHAP concentration of the material could increase. Any free product returned to the manufacturing process ( *e.g.* , recovered oil returned to a storage tank at a refinery) is no longer subject to this subpart. 5. Section 63.7887 is revised to read as follows: § 63.7887 What are the general standards I must meet for my affected equipment leak sources?
(a)You must control HAP emissions from equipment leaks from each equipment component that is part of the affected source by implementing leak detection and control measures according to the standards specified in §§ 63.7920 through 63.7922 unless you elect to meet the requirements in paragraph
(b)of this section.
(b)If the affected equipment leak source is also subject to another subpart in 40 CFR part 61 or 40 CFR part 63, you may control emissions of the HAP listed in Table 1 to this subpart from the affected equipment leak source in compliance with the standards specified in the other applicable subpart. This means you are complying with all applicable emissions limitations and work practice standards under the other subpart ( *e.g.* , you implement leak detection and control measures to reduce HAP emissions as specified by the applicable subpart). This provision does not apply to any exemption of the affected source from the emissions limitations and work practice standards allowed by the other applicable subpart. 6. Section 63.7890 is amended by revising paragraph (b)(2) to read as follows: § 63.7890 What emissions limitations and work practice standards must I meet for process vents?
(b)* * *
(2)Reduce from all affected process vents the emissions of total organic compounds
(TOC)(minus methane and ethane) to a level below 1.4 kg/hr and 2.8 Mg/yr (3.0 lb/hr and 3.1 tpy); or 7. Section 63.7893 is amended by revising paragraph
(b)introductory text to read as follows: § 63.7893 How do I demonstrate continuous compliance with the emissions limitations and work practice standards for process vents?
(b)You must maintain emission levels from all of your affected process vents to meet the facilitywide emission limits in § 63.7890(b) that apply to you, as specified in paragraphs (b)(1) through
(4)of this section. 8. Section 63.7896 is amended by revising paragraph (b)(2) to read as follows: § 63.7896 How do I demonstrate initial compliance with the emissions limitations and work practice standards for tanks?
(b)* * *
(2)You have determined, according to the procedures in § 63.7944, and recorded the maximum HAP vapor pressure of the remediation material placed in each affected tank subject to § 63.7886(b)(1)(i) that does not use Tank Level 2 controls. 9. Section 63.7898 is amended by revising paragraph (e)(2) to read as follows: § 63.7898 How do I demonstrate continuous compliance with the emissions limitations and work practice standards for tanks?
(e)* * *
(2)Visually inspecting the external floating roof according to the requirements in § 63.1063(d)(1) and inspecting the seals according to the requirements in § 63.1063(d)(2) and (3). 10. Section 63.7913 is amended by revising paragraph
(c)introductory text to read as follows: § 63.7913 How do I demonstrate continuous compliance with the emissions limitations and work practice standards for separators?
(c)You must demonstrate continuous compliance for each separator using a fixed roof vented through a closed vent system to a control device according to § 63.7910(b)(2) by meeting the requirements in paragraphs (c)(1) through
(6)of this section. 11. Section 63.7915 is amended by revising paragraph (c)(2) to read as follows: § 63.7915 What emissions limitations and work practice standards must I meet for transfer systems?
(c)* * *
(2)A transfer system that consists of continuous hard piping. All joints or seams between the pipe sections must be permanently or semi-permanently sealed ( *e.g.* , a welded joint between two sections of metal pipe or a bolted and gasketed flange). 12. Section 63.7917 is amended by revising paragraph
(c)to read as follows: § 63.7917 What are my inspection and monitoring requirements for transfer systems?
(c)If you operate a transfer system consisting of hard piping according to § 63.7915(c)(2), you must annually inspect the unburied portion of pipeline and all joints for leaks and other defects. In the event that a defect is detected, you must repair the leak or defect according to the requirements of paragraph
(e)of this section. 13. Section 63.7918 is amended by revising paragraphs
(d)and
(e)introductory text to read as follows: § 63.7918 How do I demonstrate continuous compliance with the emissions limitations and work practice standards for transfer systems?
(d)You must demonstrate continuous compliance for each transfer system that consists of hard piping according to § 63.7915(c)(2) by meeting the requirements in paragraphs (d)(1) through
(4)of this section.
(1)Operating and maintaining the pipeline to ensure that all joints or seams between the pipe sections remain permanently or semi-permanently sealed ( *e.g.* , a welded joint between two sections of metal pipe or a bolted and gasketed flange).
(2)Inspecting the pipeline for defects at least annually according to the requirements in § 63.7917(c).
(3)Repairing defects according to the requirements in § 63.7917(e).
(4)Keeping records to document compliance with the requirements of this subpart according to the requirements in § 63.7952.
(e)You must demonstrate continuous compliance for each transfer system that is enclosed and vented to a control device according to § 63.7915(c)(3) by meeting the requirements in paragraphs (e)(1) through
(5)of this section. 14. Section 63.7927 is amended by revising paragraph (b)(3) to read as follows: § 63.7927 What are my inspection and monitoring requirements for closed vent systems and control devices?
(b)* * *
(3)Use a CPMS to measure and record the hourly average temperature of the adsorption bed after regeneration (and within 15 minutes after completing any cooling cycle). 15. Section 63.7928 is amended by revising paragraphs (b)(6) and
(7)and
(c)introductory text to read as follows: § 63.7928 How do I demonstrate continuous compliance with the emissions limitations and work practice standards for closed vent systems and control devices?
(b)* * *
(6)If the closed vent system is equipped with a flow indicator, recording the information in § 63.693(c)(2)(i).
(7)If the closed vent system is equipped with a seal or locking device, visually inspecting the seal or closure mechanism at least monthly according to the requirements in § 63.693(c)(2)(ii), and recording the results of each inspection.
(c)You must demonstrate continuous compliance of each control device subject to the emissions limits in § 63.7925(d) with the applicable emissions limit in § 63.7925(d) by meeting the requirements in paragraph (c)(1) or
(2)of this section. 16. Section 63.7935 is amended by revising paragraphs
(c)and
(f)to read as follows: § 63.7935 What are my general requirements for complying with this subpart?
(c)You must develop a written startup, shutdown, and malfunction plan
(SSMP)according to the provisions in § 63.6(e)(3).
(f)Consistent with §§ 63.6(e) and 63.7(e)(1), deviations that occur during a period of startup, shutdown, or malfunction are not violations if you demonstrate to the Administrator's satisfaction that you were operating in accordance with § 63.6(e)(1). We will determine whether deviations that occur during a period of startup, shutdown, or malfunction are violations, according to the provisions in § 63.6(e). 17. Section 63.7937 is amended by revising paragraphs (c)(2) and (c)(4)(ii) to read as follows: § 63.7937 How do I demonstrate initial compliance with the general standards?
(c)* * *
(2)If the remediation material managed in the affected remediation material management unit has an average total VOHAP concentration less than 500 ppmw according to § 63.7886(b)(2), you have submitted as part of your notification of compliance status, specified in § 63.7950, a signed statement that you have determined, according to the procedures in § 63.7943, and recorded the average VOHAP concentration of the remediation material placed in the affected remediation material management unit.
(4)* * *
(ii)You will monitor the biological treatment process conducted in each unit according to the requirements in § 63.684(e)(4). 18. Section 63.7938 is amended by revising paragraphs (b)(2) and (c)(4)(ii) to read as follows: 63.7938 How do I demonstrate continuous compliance with the general standards?
(b)* * *
(2)If the remediation material treated or managed by the process vented through the affected process vents has an average total VOHAP less than 10 ppmw according to § 63.7885(c)(1), you must demonstrate continuous compliance by performing a new determination and preparing new documentation as required in § 63.7885(c)(2) to show that the total VOHAP concentration of the remediation material remains less than 10 ppmw.
(c)* * *
(4)* * *
(ii)Monitoring the biological treatment process conducted in each unit according to the requirements in § 63.7886(4)(i). 19. Section 63.7940 is amended by revising paragraph
(c)to read as follows: § 63.7940 By what date must I conduct performance tests or other initial compliance demonstrations?
(c)For new sources, you must conduct initial performance tests and other initial compliance demonstrations according to the provisions in § 63.7(a)(2). 20. Section 63.7941 is amended as follows: a. By revising paragraph (c); b. By revising paragraph (g); and c. By removing and reserving paragraph (h): § 63.7941 How do I conduct a performance test, design evaluation, or other type of initial compliance demonstration?
(c)If you use a carbon adsorption system, condenser, vapor incinerator, boiler, or process heater to meet an emission limit in this subpart, you may choose to perform a design evaluation to demonstrate initial compliance instead of a performance test. You must perform a design evaluation according to the general requirements in § 63.693(b)(8) and the specific requirements in § 63.693(d)(2)(ii) for a carbon adsorption system (including establishing carbon replacement schedules and associated requirements), § 63.693(e)(2)(ii) for a condenser, § 63.693(f)(2)(ii) for a vapor incinerator, or § 63.693(g)(2)(i)(B) for a boiler or process heater.
(g)If you are required to conduct a visual inspection of an affected source, you must conduct the inspection according to the procedures in § 63.906(a)(1) for Tank Level 1 controls, § 63.1063(d) for Tank Level 2 controls, § 63.926(a) for Container Level 1 controls, § 63.946(a) for a surface impoundment equipped with a floating membrane cover, § 63.946(b) for a surface impoundment equipped with a cover and vented to a control device, § 63.1047(a) for a separator with a fixed roof, § 63.1047(c) for a separator equipped with a fixed roof and vented to a control device, § 63.695(c)(1)(i) or (c)(2)(i) for a closed vent system, and § 63.964(a) for individual drain systems.
(h)[Reserved] 21. Section 63.7943 is amended as follows: a. By revising paragraph (a); b. By revising paragraph
(b)introductory text; c. By revising paragraphs (b)(1) introductory text and (b)(3); and d. By revising paragraph
(c)introductory text. § 63.7943 How do I determine the average VOHAP concentration of my remediation material?
(a)General requirements. You must determine the average total VOHAP concentration of a remediation material using either direct measurement as specified in paragraph
(b)of this section or by knowledge as specified in paragraph
(c)of this section. These methods may be used to determine the average VOHAP concentration of any material listed in (a)(1) through
(3)of this section.
(1)A single remediation material stream; or
(2)Two or more remediation material streams that are combined prior to, or within, a remediation material management unit or treatment process; or
(3)Remediation material that is combined with one or more non-remediation material streams prior to, or within, a remediation material management unit or treatment process.
(b)Direct measurement. To determine the average total VOHAP concentration of a remediation material using direct measurement, you must use the procedures in paragraphs (b)(1) through
(3)of this section.
(1)Sampling. Samples of each material stream must be collected from the container, pipeline, or other device used to deliver each material stream prior to entering the remediation material management unit or treatment process in a manner such that volatilization of organics contained in the sample is minimized and an adequately representative sample is collected and maintained for analysis by the selected method.
(3)Calculations. The average total VOHAP concentration (C ) on a mass-weighted basis must be calculated by using the results for all samples analyzed according to paragraph (b)(2) of this section and Equation 1 of this section as follows: ER29NO06.007 Where: C = Average VOHAP concentration of the material on a mass-weighted basis, ppmw. i = Individual sample “i” of the material. n = Total number of samples of the material collected (at least 4 per stream) for the averaging period (not to exceed 1 year). Q <sup>i</sup> = Mass quantity of material stream represented by C <sup>i</sup> , kilograms per hour (kg/hr). Q <sup>T</sup> = Total mass quantity of all material during the averaging period, kg/hr. C <sup>i</sup> = Measured VOHAP concentration of sample “i” as determined according to the requirements of paragraph (b)(2) of this section, ppmw.
(c)Knowledge of the material. To determine the average total VOHAP concentration of a remediation material using knowledge, you must use the procedures in paragraphs (c)(1) through
(3)of this section. 22. Section 63.7950 is amended by revising paragraph
(c)to read as follows: § 63.7950 What notifications must I submit and when?
(c)As specified in § 63.9(b)(3), if you start up your new or reconstructed affected source on or after the effective date, you must submit an Initial Notification no later than 120 calendar days after initial startup. 23. Section 63.7956 is amended by revising paragraph
(c)introductory text to read as follows: § 63.7956 Who implements and enforces this subpart?
(c)The authorities that cannot be delegated to State, local, or tribal agencies are listed in paragraphs (c)(1) through
(4)of this section. 24. Section 63.7957 is amended by removing the definition of “Point-of-extraction” and revising the definitions of “deviation” and “transfer system” to read as follows: § 63.7957 What definitions apply to this subpart? *Deviation* means any instance in which an affected source subject to this subpart, or an owner or operator of such a source:
(1)Fails to meet any requirement or obligation established by this subpart, including but not limited to any emissions limitation (including any operating limit), or work practice standard;
(2)Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart and that is included in the operating permit for any affected source required to obtain such a permit; or
(3)Fails to meet any emissions limitation, (including any operating limit), or work practice standard in this subpart during startup, shutdown, or malfunction, regardless of whether or not such failure is permitted by this subpart. *Transfer system* means a stationary system for which the predominant function is to convey liquids or solid materials from one point to another point within a waste management operation or recovery operation. For the purpose of this subpart, the conveyance of material using a container (as defined for this subpart) or a self-propelled vehicle ( *e.g.* , a front-end loader) is not a transfer system. Examples of a transfer system include but are not limited to a pipeline, an individual drain system, a gravity-operated conveyor (such as a chute), and a mechanically-powered conveyor (such as a belt or screw conveyor). 25. Table 1 to Subpart GGGGG of Part 63 is revised to read as follows: Table 1 to Subpart GGGGG of Part 63.—List of Hazardous Air Pollutants CAS No. a Compound name F <sup>m 305</sup> 75070 Acetaldehyde 1.000 75058 Acetonitrile 0.989 98862 Acetophenone 0.314 98862 Acetophenone 0.314 107028 Acrolein 1.000 107131 Acrylonitrile 0.999 107051 Allyl chloride 1.000 71432 Benzene (includes benzene in gasoline) 1.000 98077 Benzotrichloride (isomers and mixture) 0.958 100447 Benzyl chloride 1.000 92524 Biphenyl 0.864 542881 Bis(chloromethyl)ether b 0.999 75252 Bromoform 0.998 106990 1,3-Butadiene 1.000 75150 Carbon disulfide 1.000 56235 Carbon Tetrachloride 1.000 43581 Carbonyl sulfide 1.000 133904 Chloramben 0.633 108907 Chlorobenzene 1.000 67663 Chloroform 1.000 107302 Chloromethyl methyl ether b 1.000 126998 Chloroprene 1.000 98828 Cumene 1.000 94757 2,4-D, salts and esters 0.167 334883 Diazomethane c 0.999 132649 Dibenzofurans 0.967 96128 B1,2-Dibromo-3-chloropropane 1.000 106467 1,4-Dichlorobenzene(p) 1.000 107062 Dichloroethane (Ethylene dichloride) 1.000 111444 Dichloroethyl ether (Bis(2-chloroethylether) 0.757 542756 1,3-Dichloropropene 1.000 64675 Diethyl sulfate 0.0025 79447 Dimethyl carbamoyl chloride c 0.150 77781 Dimethyl sulfate 0.086 121697 N,N-Dimethylaniline 0.0008 51285 2,4-Dinitrophenol 0.0077 121142 2,4-Dinitrotoluene 0.0848 123911 1,4-Dioxane (1,4-Diethyleneoxide) 0.869 106898 Epichlorohydrin (1-Chloro-2,3-epoxypropane) 0.939 106887 1,2-Epoxybutane 1.000 140885 Ethyl acrylate 1.000 100414 Ethyl benzene 1.000 75003 Ethyl chloride (Chloroethane) 1.000 106934 Ethylene dibromide (Dibromoethane) 0.999 107062 Ethylene dichloride (1,2-Dichloroethane) 1.000 151564 Ethylene imine (Aziridine) 0.867 75218 Ethylene oxide 1.000 75343 Ethylidene dichloride (1,1-Dichloroethane) Glycol ethers d that have a Henry's Law Constant value equal to or greater than 0.01 Y/X(1.8 × 10 −6 atm/gm-mole/m 3 ) at 25°C 1.000 [ e ] 118741 Hexachlorobenzene 0.97 87683 Hexachlorobutadiene 0.88 67721 Hexachloroethane 0.499 110543 Hexane 1.000 78591 Isophorone 0.506 58899 Lindane (all isomers) 1.000 67561 Methanol 0.855 74839 Methyl bromide (Bromomethane) 1.000 74873 Methyl chloride (Choromethane) 1.000 71556 Methyl chloroform (1,1,1-Trichloroethane) 1.000 74884 Methyl iodide (Iodomethane) 1.000 108101 Methyl isobutyl ketone (Hexone) 0.979 624839 Methyl isocyanate 1.000 80626 Methyl methacrylate 0.999 1634044 Methyl tert butyl ether 1.000 75092 Methylene chloride (Dichloromethane) 1.000 91203 Naphthalene 0.994 98953 Nitrobenzene 0.394 79469 2-Nitropropane 0.989 82688 Pentachloronitrobenzene (Quintobenzene) 0.839 87865 Pentachlorophenol 0.0898 75445 Phosgene c 1.000 123386 Propionaldehyde 0.999 78875 Propylene dichloride (1,2-Dichloropropane) 1.000 75569 Propylene oxide 1.000 75558 1,2-Propylenimine (2-Methyl aziridine) 0.945 100425 Styrene 1.000 96093 Styrene oxide 0.830 79345 1,1,2,2-Tetrachloroethane 0.999 127184 Tetrachloroethylene (Perchloroethylene) 1.000 108883 Toluene 1.000 95534 o-Toluidine 0.152 120821 1,2,4-Trichlorobenzene 1.000 71556 1,1,1-Trichloroethane (Methyl chlorform) 1.000 79005 1,1,2-Trichloroethane (Vinyltrichloride) 1.000 79016 Trichloroethylene 1.000 95954 2,4,5-Trichlorophenol 0.0108 88062 2,4,6-Trichlorophenol 0.0132 121448 Triethylamine 1.000 540841 2,2,4-Trimethylpentane 1.000 108054 Vinyl acetate 1.000 593602 Vinyl bromide 1.000 75014 Vinyl chloride 1.000 75354 Vinylidene chloride (1,1-Dichloroethylene) 1.000 1330207 Xylenes (isomers and mixture) 1.000 95476 o-Xylenes 1.000 108383 m-Xylenes 1.000 106423 p-Xylenes 1.000 Notes: F <sup>m 305</sup> Fraction measure factor in Method 305, 40 CFR 305 part 63, appendix A. a CAS numbers refer to the Chemical Abstracts Services registry number assigned to specific compounds, isomers, or mixtures of compounds. b Denotes a HAP that hydrolyzes quickly in water, but the hydrolysis products are also HAP chemicals. c Denotes a HAP that may react violently with water. d Denotes a HAP that hydrolyzes slowly in water. e The F <sup>m 305</sup> factors for some of the more common glycol 305 ethers can be obtained by contacting the Waste and Chemical Processes Group, Office of Air Quality Planning and Standards, Research Triangle Park, NC 27711. 26. Table 3 is amended by revising the entries for “63.7(c)”, “63.8(c)(1)(i)”, and “63.8(c)(6)” to read as follows: Table 3 to Subpart GGGGG of Part 63.—Applicability of General Provisions to Subpart GGGGG * * * * * Citation Subject Brief description Applies to subpart GGGGG * * * * * * * § 63.7(c) Quality Assurance/Test Plan Requirement to submit site-specific test plan 60 days before the test or on date Administrator agrees with: Test plan approval procedures; performance audit requirements; internal and external QA procedures for testing Yes. * * * * * * * § 63.8(c)(1)(i) Routine and Predictable SSM Keep parts for routine repairs available; reporting requirements for SSM when action is described in SSM plan Yes. * * * * * * * § 63.8(c)(6) CMS Requirements Zero and High level calibration check requirements Yes. However requirements for CPMS are addressed in § 63.7927. * * * * * * * [FR Doc. E6-20119 Filed 11-28-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 [EPA-HQ-OAR-2003-0090; FRL-8249-4] RIN 2060-AN90 Final Extension of the Deferred Effective Date for 8-Hour Ozone National Ambient Air Quality Standards for Early Action Compact Areas AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The EPA is finalizing the extension of the deferred effective date of air quality designations for 14 areas of the country that have entered into Early Action Compacts. Early Action Compact areas have agreed to reduce ground-level ozone pollution earlier than the Clean Air Act
(CAA)requires. On April 30, 2004, EPA published an action designating all areas of the country for the 8-hour ozone National Ambient Air Quality Standards (NAAQS). In the designation rule, EPA deferred the effective date of the nonattainment designation for 14 areas that had entered into Early Action Compacts until September 30, 2005. On August 29, 2005, EPA deferred the nonattainment designation for these areas a second time until December 31, 2006. The EPA is now extending the deferred effective date of the nonattainment designation for 13 Early Action Compact areas until April 15, 2008, and for the Denver Early Action Compact area until July 1, 2007. EFFECTIVE DATE: This final rule is effective on December 29, 2006. ADDRESSES: The EPA has established a docket for this action under Docket ID no. EPA-HQ-OAR-2003-0090. All documents in the docket are listed on the *http://www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, *i.e.* , Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy at the Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., Northwest, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Office of Air and Radiation Docket is
(202)566-1742. In addition, we have placed a copy of the rule and a variety of materials relevant to Early Action Compact areas on EPA's Web site at *http://www.epa.gov/ttn/naaqs/ozone/eac/* . Note: The EPA Docket Center suffered damage due to flooding during the last week of June 2006. The Docket Center is continuing to operate. However, during the cleanup, there will be temporary changes to Docket Center telephone numbers, addresses, and hours of operation for people who wish to visit the Public Reading Room to view documents. Consult EPA's **Federal Register** notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at *http://www.epa.gov/epahome/dockets.htm* for current information on docket status, locations and telephone numbers. FOR FURTHER INFORMATION CONTACT: Ms. Barbara Driscoll, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539-04, Research Triangle Park, NC 27711, phone number
(919)54l-1051 or by e-mail at: *driscoll.barbara@epa.gov* or Mr. David Cole, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C304-05, Research Triangle Park, NC 27711, phone number
(919)54l-5565 or by e-mail at: *cole.david@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information Does This Action Apply to Me? This action applies only to the 14 areas that entered into Early Action compacts and for which the effective date of the nonattainment designation was deferred. A list of these areas is included in Table 1. The information presented in this preamble is organized as follows: Outline I. General Information Does this Action Apply to Me? II. What Is the Purpose of This Document? III. What Action has EPA Taken to Date for Early Action Compact Areas? A. What progress are compact areas making toward completing their milestones? B. What is this final action for compact areas? C. What is EPA's schedule for taking further action to further defer the effective date of nonattainment designation for compact areas? D. What comments did EPA receive on the August 3, 2006 proposal to extend the deferral of the effective date of the nonattainment designations for 14 Early Action Compact areas? IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act L. Petitions for Judicial Review II. What is the Purpose of This Document? The purpose of this document is to finalize the extension of the deferred effective date of the 8-hour ozone nonattainment designations for 14 participants in Early Action Compacts. The new effective designation date for 13 areas is April 15, 2008. The effective date of designation for the Denver EAC area is extended until July 1, 2007. III. What Action has EPA Taken to Date for Early Action Compact Areas? This section discusses EPA's actions to date with respect to deferring the effective date of nonattainment designations for certain areas of the country that are participating in the Early Action Compact program. The EPA's April 30, 2004 air quality designation rule (69 FR 23858) provides a description of the compact approach, the requirements for areas participating in the program and the impacts of the program on those areas. On December 31, 2002, we entered into compacts with 33 communities. To receive the first deferral, these Early Action Compact areas agreed to reduce ground-level ozone pollution earlier than the CAA would require. On December 16, 2003 (68 FR 70108), we published a proposed rule to defer until September 30, 2005, the effective date of designation for Early Action Compact areas that did not meet the 8-hour ozone NAAQS. Fourteen of the 33 compact areas did not meet the 8-hour ozone NAAQS. The final designation rule published April 30, 2004 (69 FR 23858), as amended June 18, 2004 (69 FR 34080), included the following actions for compact areas: Deferred the effective date of nonattainment designation for 14 compact areas until September 30, 2005; detailed the progress compact areas had made toward completing their milestones; described the actions required for compact areas in order to remain eligible for a deferred effective date for a nonattainment designation; detailed EPA's schedule for taking further action to determine whether to further defer the effective date of nonattainment designations; and described the consequences for compact areas that do not meet a milestone. In the April 2004, action, we also discussed three compact areas which did not meet the March 31, 2004, milestone; Knoxville, Memphis, and Chattanooga, Tennessee. Knoxville and Memphis were designated nonattainment effective June 15, 2004. Chattanooga was later determined to have met the March 31, 2004, milestone, and we deferred the designation date until September 30, 2005, (69 FR 34080). This brought the number of participating compact areas to 31. Since then 2 additional areas, Haywood and Putnam Counties, Tennessee have withdrawn from the program leaving the participating number of compact areas at 29. On August 29, 2005, we published a final rule extending the deferred effective date of designation from September 30, 2005, to December 31, 2006, for the same 14 compact areas. In order to receive the second deferral, Early Action Compact areas needed to submit a State Implementation Plan with locally adopted measures by December 31, 2004. The EPA approved the SIP revisions as meeting the EAC Protocol and EPA's EAC regulations at 40 CFR 81.300, and these approvals were the basis for extending the deferred effective date until December 31, 2006. Information on local measures, SIP submittals and background on the Early Action Compact program may be found on EPA's Web site at *http://www.epa.gov/ttn/naaqs/ozone/eac/* . A. What progress are compact areas making toward completing their milestones? In general, the remaining 29 compact areas have made satisfactory progress toward timely completion of their milestones. All compact areas were required to submit two progress reports, one by December 30, 2005, and the other by June 30, 2006. In these progress reports, the States provided information on progress towards implementing local control measures that were incorporated in their SIPs. Each of the EAC areas submitted the required progress reports and these reports are available at *http://www.epa.gov/ttn/naaqs/ozone/eac/* . After review by EPA, all the EAC areas were found to be in compliance with the requirements of the EAC Protocol and the individual State Implementation Plans, however, issues were noted by the State of Colorado with the Denver area regarding emissions from oil and gas exploration and production condensate tanks. Based on a report and action plan submitted by the State of Colorado to EPA, dated June 2, 2006, the State provided information that indicated volatile organic compound
(VOC)emissions from oil and gas operations within the Denver EAC area were higher than had been estimated in the attainment demonstration modeling. Subsequent to this June 2, 2006 report, the State of Colorado has embarked on rulemaking activities to amend Colorado's Regulation No. 7 (the State's regulation for the control of VOCs) to require additional emission reductions from oil and gas exploration and production condensate tanks to achieve the level of reductions the State relied on in the EPA-approved modeled attainment demonstration. Further discussion on this issue is provided below in section D (response to comments). B. What is this final action for compact areas? We are extending the deferred effective date of the nonattainment designation for 14 compact areas. In consideration of the progress reported by the EAC areas, we have concluded that 13 of the 14 areas are eligible for a final deferral of their nonattainment designation for the 8-hour ozone NAAQS to April 15, 2008. See 40 CFR 81.300(e)(4)(ii). Therefore, we are further extending until April 15, 2008 the effective date of the 8-hour ozone nonattainment designation for the compact area counties listed in Table 1 below, with the exception of the Denver EAC area, which is extended only to July 1, 2007. We are revising 40 CFR part 81 to reflect these extensions. Table 1.—Compact Areas Which Qualify for a Deferred Effective Date of April 15, 2008 1 [ Note: Name of designated 8-hour ozone nonattainment area is in parentheses] State Compact area (designated area) Counties with designation deferred to April 15, 2008 Counties which are part of compacts and are designated unclassifiable/attainment EPA Region 3 VA Northern Shenandoah Valley Region (Frederick County, VA), adjacent to Washington, DC-MD-VA Winchester City, Frederick County VA Roanoke Area (Roanoke, VA) Roanoke County, Botetourt County, Roanoke City, Salem City MD Washington County (Washington County (Hagerstown, MD), adjacent to Washington, DC-MD-VA Washington County WV The Eastern Pan Handle Region, (Berkeley & Jefferson Counties, WV), Martinsburg area Berkeley County, Jefferson County EPA Region 4 NC Unifour (Hickory-Morganton-Lenoir, NC) Catawba County, Alexander County, Burke County (part), Caldwell County
(part)NC Triad (Greensboro-Winston-Salem-High Point, NC) Randolph County, Forsyth County, Davie County, Alamance County, Caswell County, Davidson County, Guilford County, Rockingham County Surry County,Yadkin County, Stokes County. NC Cumberland County (Fayetteville, NC) Cumberland County SC Appalachian—A (Greenville-Spartanburg-Anderson, SC) Spartanburg County, Greenville County, Anderson County Cherokee County, Pickens County, Oconee County. SC Central Midlands—I Columbia area Richland County (part), Lexington County
(part)Newberry County, Fairfield County. TN/GA Chattanooga (Chattanooga, TN-GA) Hamilton County, TN, Meigs County, TN, Catoosa County, GA Marion County, TN, Walker County, GA. TN Nashville (Nashville, TN) Davidson County, Rutherford County, Williamson County, Wilson County, Sumner County Robertson County, Cheatham County, Dickson County. TN Johnson City-Kingsport-Bristol Area (TN portion only) Sullivan Co, TN, Hawkins County, TN Washington Co, TN, Unicoi County, TN, Carter County, TN, Johnson County, TN. EPA Region 6 TX San Antonio Bexar County, Comal County, Guadalupe County Wilson County. EPA Region 8 CO Denver 1 (Denver-Boulder-Greeley-Ft. Collins-Love, CO) Denver County, Boulder County (includes part of Rocky Mtn Nat.Park), Jefferson County, Douglas County, Broomfield, Adams County, Arapahoe County, Larimer County (part), Weld County
(part)1 Effective date of nonattainment designation for Denver EAC is extended to July 1, 2007. C. What is EPA's schedule for taking further action to further defer the effective date of nonattainment designation for compact areas? The EAC areas have one remaining milestone which is to demonstrate attainment with the 8-hour ozone NAAQS by December 31, 2007. No later than April 15, 2008, we will determine whether the compact areas that received a deferred effective date of April 15, 2008, have attained the 8-hour ozone NAAQS by December 31, 2007, and have met all compact milestones. If the area has not attained the standard, the nonattainment designation will take effect. If the compact area has attained the standard, EPA will designate the area as attainment. Any compact area that has not attained the NAAQS and thus has an effective nonattainment designation will be subject to the full planning requirements of title I, part D of the CAA, and the area will be required to submit a revised attainment demonstration SIP within 1 year of the effective date of designation. As provided above, the State of Colorado is undertaking rulemaking to address shortfalls in VOC emission reductions for the Denver EAC. These rulemaking activities are designed to achieve greater VOC emission reductions from the oil and gas industry and we also note, the rule revisions contain a compliance date of May 1, 2007, which is just before the beginning of the Colorado high ozone season. Once the State's rulemaking actions are complete, the rule revisions will be submitted to EPA for our approval. D. What comments did EPA receive on the August 3, 2006 proposal to extend the deferral of the effective date of the nonattainment designations for 14 Early Action Compact areas? We received six comments on the proposed rule to extend the deferred effective date of the nonattainment designations for 14 Early Action Compact areas to April 15, 2008. We have responded to the comments in this section. *Comment:* Two commenters expressed support for the compact process, the goal of clean air sooner, the incentives and flexibility the program provides for encouraging early reductions of ozone-forming pollution, and the deferred effective date of nonattainment designation. However, a number of commenters opposed the Early Action Compact program. Several of these commenters expressed concern about various legal aspects of the program, primarily the deferral of the effective date of the nonattainment designation for these areas. Although some of these commenters were supportive of the goal of proactively addressing the public health concerns associated with ozone pollution, the commenters state that the program is not authorized by the CAA. All of these commenters indicated that EPA lacks authority under the CAA to defer the effective date of a nonattainment designation. In addition, these commenters state that EPA lacks authority to enter into Early Action Compacts with areas and lacks authority to allow areas to be relieved of obligations under title I, part D of the CAA while these areas are violating the 8-hour ozone standard or are designated nonattainment for that standard. *Response:* We have determined that the compact program, as designed, gives local areas the flexibility to develop their own approach to meeting the 8-hour ozone standard. The participating communities are serious in their commitment and have made good progress implementing State and local measures for controlling emissions from local sources earlier than the CAA would otherwise require. By involving diverse stakeholders, including representatives from industry, local and State governments, and local environmental and citizens groups, a number of these communities are, for the first time, cooperating on a regional basis to solve environmental problems that affect the health and welfare of their citizens. People living in these areas realize reductions in pollution levels sooner and will enjoy the health benefits of cleaner air sooner than might otherwise occur. With respect to the commenter who attached comments that were submitted on EPA's initial proposal to defer the effective date of a nonattainment designation of EAC areas meeting compact milestones, we refer back to our response to those comments in the April 2004 designation rule (69 FR 23858). *Comment:* Three commenters expressed specific concerns about deferring the effective date of the nonattainment designation for the Denver metropolitan EAC area. The commenters noted that the Denver EAC area does not comply with its commitments to address ozone-forming pollution from the oil and gas sector. Two of these commenters stated that emissions from these operations are higher than the State originally projected; however, they acknowledged that Colorado is currently taking steps to revise control requirements for these operations to address the problem. Commenters believed that it was inappropriate for EPA to proceed at this time with granting the Denver EAC area a final deferred nonattainment effective date to April 15, 2008, while the necessary revisions to Regulation No. 7, the State of Colorado's regulation for the control of VOCs which are designed to require additional VOC emission reductions from oil and gas condensate tanks would still be under consideration by both the Colorado Air Quality Control Commission
(AQCC)and State Legislature. In addition, the commenters noted that air quality monitoring data for the 2006 ozone season indicate that the area may not be complying with the 8-hour ozone standard through 2007. *Response:* The commenters were concerned with increased VOC emissions from oil and gas exploration and production condensate tanks. Based on a report and action plan submitted by the State of Colorado to EPA, dated June 2, 2006, the State provided information that indicated VOC emissions from oil and gas operations within the Denver EAC area were higher than had been relied on in the attainment demonstration modeling. With rule revisions being proposed before the Colorado AQCC on August 17, 2006, the State of Colorado has initiated public rulemaking activities to amend Colorado's Regulation No. 7 to require additional emission reductions from oil and gas exploration and production condensate tanks to achieve the level of reductions relied on in the EPA-approved modeled attainment demonstration. However, by State rulemaking procedures, the Regulation No. 7 revisions will not be considered for adoption by the AQCC until November 16 or 17, 2006, and by Colorado State law, the Regulation No. 7 revisions will then have to be considered for adoption by the Colorado State Legislature which will only be in session between January 1, 2007 to the first week of May, 2007. This presents a potential dilemma for EPA, as we currently consider granting the Denver EAC area a final deferred nonattainment effective date to April 15, 2008, in that the necessary revisions to Regulation No. 7, that are designed to require additional VOC emission reductions from oil and gas condensate tanks, would still be under consideration by both the AQCC and State Legislature. The EPA agrees with the commenters' concern regarding the timing of a final deferral of the Denver EAC's nonattainment effective date and potential conflict with the State's fall 2006 and spring 2007 State Implementation Plan
(SIP)rulemaking process time frame. However, we also believe that beginning the rulemaking process to address the shortfall in reductions, the area has demonstrated its commitment to ensuring the terms of the EAC process will be met. Therefore, to accommodate the public rulemaking activities of the Colorado AQCC and Colorado State Legislature and to allow the Denver area to remain in the EAC program, with this final rule EPA is granting the Denver area a deferred effective date of nonattainment only to July 1, 2007. Following the rulemaking actions by the Colorado AQCC and Colorado State Legislature, EPA anticipates that it will undertake further rulemaking action for the Denver EAC to determine whether to extend the deferred nonattainment effective date beyond July 1, 2007. A likely schedule for EPA's subsequent rulemaking action is: —March 1, 2007; EPA proposes whether to extend the final deferred effective date for the Denver EAC to April 15, 2008. This proposed rule would reflect the actions taken by the Colorado AQCC and then current actions by the Colorado State Legislature. This proposal would open a 30-day public comment period. —April 1, 2007; the 30-day public comment period closes. —April 2007; EPA evaluates all public comments. —May 1, 2007; EPA prepares a final rule and starts its internal concurrence process. —On or about May 25, 2007; Signature on the final rule by the Administrator. —June 1, 2007; Publication in the **Federal Register** of the final rule and that rule will have a 30-day effective date. The above schedule would allow both the Colorado AQCC and Colorado State Legislature until late April to complete their respective functions and also allow EPA appropriate time to complete a final deferral of the Denver EAC nonattainment effective date to April 15, 2008, if EPA determines that is the appropriate action to take. With respect to the commenters' concerns regarding the ambient air quality monitoring data for the Denver EAC area, EPA agrees that several exceedances of the 8-hour ozone National Ambient Air Quality Standard (NAAQS) were observed in 2006. However, even with these exceedances none of the ambient air quality monitors in the 8-hour ozone monitoring network recorded a violation of the 8-hour ozone NAAQS. Further, we note that the ambient air quality monitors for the Denver EAC area have shown attainment of the 8-hour ozone NAAQS for the periods, 2002 through 2004, 2003 through 2005, and 2004 through 2006. Although Denver has not violated the standard for the past three 3-year periods, EPA notes that air quality in the area remains very close to the standard, indicating that the additional emission reductions being considered now by the State are important to ensure that air quality in the area remains below the level of the standard. EPA notes and appreciates commenters' concerns for the potential for a violation of the 8-hour ozone NAAQS during the upcoming ozone season of 2007. IV. Statutory and Executive Order Reviews This action finalizes the extension of the deferred effective date of the nonattainment designation for 13 compact areas until April 15, 2008. This action also finalizes the extension of the deferred effective date of the nonattainment designation for the Denver compact area until July 1, 2007. A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order
(EO)12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* This final rule does not require the collection of any information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)generally requires an Agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the Agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this final rule on small entities, small entity is defined as:
(1)A small business that is a small industrial entity as defined in the Small Business Administration's
(SBA)regulations at 13 CFR 121.201;
(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of this final rule on small entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities. Rather, this rule would extend the deferred effective date of the nonattainment designation for areas that implement control measures and achieve emissions reductions earlier than otherwise required by the CAA in order to attain the 8-hour ozone NAAQS. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. The EPA has determined that this final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any 1 year. In this final rule, EPA is deferring the effective date of nonattainment designations for certain areas that have entered into compacts with us. Thus, this final rulemaking is not subject to the requirements of sections 202 and 205 of the UMRA. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The CAA establishes the scheme whereby States take the lead in developing plans to meet the NAAQS. This final rule would not modify the relationship of the States and EPA for purposes of developing programs to implement the NAAQS. Thus, Executive Order 13132 does not apply to this proposed rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have “Tribal implications” as specified in Executive Order 13175. It does not have a substantial direct effect on one or more Indian Tribes, since no Tribe has implemented a CAA program to attain the 8-hour ozone NAAQS at this time or has participated in a compact. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045: “Protection of Children From Environmental Health and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This final rule is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use 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. I. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards
(VCS)in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.,* materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS. This final rule does not involve technical standards. Therefore, EPA is not considering the use of any VCS. The EPA will encourage States that have compact areas to consider the use of such standards, where appropriate, in the development of their SIPs. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionate high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. The EPA believes that this final rule should not raise any environmental justice issues. The health and environmental risks associated with ozone were considered in the establishment of the 8-hour, 0.08 ppm ozone NAAQS. The level is designed to be protective with an adequate margin of safety. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.,* as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register.** A major rule cannot take effect until 60 days after it is published in the **Federal Register.** This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective December 29, 2006. L. Petitions for Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit by December 29, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review must be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. *See* CAA Section 307(b)(2). List of Subjects in 40 CFR Part 81 Environmental protection, Air pollution control, Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7408; 42 U.S.C. 7410; 42 U.S.C. 7501-7511f; 42 U.S.C. 7601(a)(1). Dated: November 22, 2006. Stephen L. Johnson, Administrator. 40 CFR Part 81 is amended as follows: PART 81—[AMENDED] 1. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart C—Section 107 Attainment Status Designations 2. Section 81.300 is amended by revising paragraphs (e)(3)(i) and (e)(3)(ii)(B) and
(C)to read as follows: § 81.300 Scope.
(e)* * *
(3)* * *
(i)*General.* With the exception of the Denver area subject to a compact and notwithstanding clauses
(i)through
(iv)of section 107(d)(1)(B) of the Clean Air Act (42 U.S.C. 7407(d)(1)(B)), the Administrator shall defer until April 15, 2008 the effective date of a nonattainment designation of any area subject to a compact that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the 8-hour ozone national ambient air quality standard if the Administrator determines that the area subject to a compact has met the requirements in paragraphs (e)(2)(i) through
(iii)of this section. The Administrator shall defer until July 1, 2007 the effective date of a nonattainment designation of the Denver area.
(ii)* * *
(B)Prior to expiration of the deferred effective date on April 15, 2008, if the Administrator determines that an area or the State subject to a compact has not met either requirement in paragraphs (e)(2)(iv) and
(v)of this section, the nonattainment designation shall become effective as of the deferred effective date, unless EPA takes affirmative rulemaking action to further extend the deadline.
(C)If the Administrator determines that an area subject to a compact and/or State has not met any requirement in paragraphs (e)(2)(iv) through
(vi)of this section, the nonattainment designation shall become effective as of the deferred effective date, unless EPA takes affirmative rulemaking action to further extend the deadline. 3. In § 81.306, the table entitled “Colorado-Ozone (8-Hour Standard)” is amended by revising footnote 2 to read as follows: § 81.306 Colorado. Colorado-Ozone (8-Hour Standard) 2 Early Action Compact Area, effective date deferred until July 1, 2007. 2 Effective date of nonattainment designation for Denver EAC is extended to July 1, 2007. 4. In § 81.311, the table entitled “Georgia-Ozone (8-Hour Standard)” is amended by revising footnote 2 to read as follows: § 81.311 Georgia. Georgia-Ozone (8-Hour Standard) 2 Early Action Compact Area, effective date deferred until April 15, 2008. 5. In § 81.321, the table entitled “Maryland-Ozone (8-Hour Standard)” is amended by revising footnote 2 to read as follows: § 81.321 Maryland. Maryland-Ozone (8-Hour Standard) 2 Early Action Compact Area, effective date deferred until April 15, 2008. 6. In § 81.334, the table entitled “North Carolina-Ozone (8-Hour Standard)” is amended by revising footnote 2 to read as follows: § 81.334 North Carolina. North Carolina-Ozone (8-Hour Standard) 2 Early Action Compact Area, effective date deferred until April 15, 2008. 7. In § 81.341, the table entitled “South Carolina-Ozone (8-Hour Standard)” is amended by revising footnote 2 to read as follows: § 81.341 South Carolina. South Carolina-Ozone (8-Hour Standard) 2 Early Action Compact Area, effective date deferred until April 15, 2008. 8. In § 81.343, the table entitled “Tennessee-Ozone (8-Hour Standard)” is amended by revising footnote 2 to read as follows: § 81.343 Tennessee. Tennessee-Ozone (8-Hour Standard) 2 Early Action Compact Area, effective date deferred until April 15, 2008. 9. In § 81.344, the table entitled “Texas-Ozone (8-Hour Standard)” is amended by revising footnote 2 to read as follows: § 81.344 Texas. Texas-Ozone (8-Hour Standard) 2 Early Action Compact Area, effective date deferred until April 15, 2008. 10. In § 81.347, the table entitled “Virginia-Ozone (8-Hour Standard)” is amended by revising footnote 2 to read as follows: § 81.347 Virginia. Virginia-Ozone (8-Hour Standard) 2 Early Action Compact Area, effective date deferred until April 15, 2008. 11. In § 81.349, the table entitled “West Virginia-Ozone (8-Hour Standard)” is amended by revising footnote 2 to read as follows: § 81.349 West Virginia. West Virginia-Ozone (8-Hour Standard) 2 Early Action Compact Area, effective date deferred until April 15, 2008. [FR Doc. E6-20221 Filed 11-28-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0181; FRL-8103-8] Diflubenzuron; Pesticide Tolerances AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes tolerances for combined residues of diflubenzuron and its metabolites 4-chlorophenylurea and 4-chloroaniline in or on brassica, leafy greens subgroup 5B, turnip greens, peanut, peanut hay, peanut oil, barley grain, barley hay, barley straw, oat grain, oat forage, oat hay, oat straw, wheat grain, wheat forage, wheat hay, wheat straw, aspirated grain fractions, and pummelo. The Interregional Research Project #4 requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA). DATES: This regulation is effective November 29, 2006. Objections and requests for hearings must be received on or before January 29, 2007, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION) . ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2006-0181. All documents in the docket are listed in the index for the docket. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Barbara Madden, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)305-6463; e-mail address: *madden.barbara@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.epa.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0181 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before January 29, 2007. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2006-0181, by one of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is
(703)305-5805. II. Background and Statutory Findings In the **Federal Register** of April 12, 2006 (71 FR 18742) (FRL-7773-6), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of pesticide petitions (PP 5E6965, PP 5E6966, and PP 5E6967) by Interregional Project Number 4, 681 Highway 1 South, North Brunswick, NJ 08902-3390. The petitions requested that 40 CFR 180.377 be amended by establishing tolerances for residues of diflubenzuron, (N-[[(4-chlorophenyl)amino]carbonyl]-2,6-difluorobenzamide and metabolites convertible to p-chloroaniline expressed as diflubenzuron in or on the raw agricultural commodities barley grain, oat grain, wheat grain at 0.06 ppm; forage of barley, oat and wheat at 5.0 ppm; hay of barley, oat and wheat at 2.0 ppm; straw of barley, oat and wheat at 2.0 ppm; aspirated grain fractions of barley, oat and wheat at 3.0 ppm; and pummelo at 0.5 ppm (PP 5E6965), brassica, leafy greens subgroup 5B and turnip greens at 8.0 ppm, eggplant and okra at 1.0 ppm (PP 5E6966), and peanut at 0.2 ppm (PP 5E6967). That notice included a summary of the petition prepared by IR-4. There were no comments received in response to the notice of filing. Tolerances were later amended by IR-4 as follows: Barley, hay at 3.0 ppm; barley, straw at 1.8 ppm; oat forage at 7.0 ppm; oat hay at 6.0 ppm; oat straw at 3.5 ppm; wheat, forage at 7.0 ppm, wheat, hay at 6.0 ppm, wheat, straw at 3.5 ppm; grain, aspirated fractions at 11 ppm (PP 5E6965); brassica, leafy greens, subgroup 5B and turnip greens at 9.0 ppm (PP 5E6966); peanut at 0.10 ppm; peanut, hay at 55 ppm; peanut, refined oil at 0.20 ppm (PP 5E6967). In addition, the proposed tolerance for barley, forage (PP 5E6965) was deleted by IR-4 because this is not a raw agricultural commodity
(RAC)of barley. Also, the proposed tolerances for eggplant and okra (PP 5E6966) were withdrawn by IR-4 because the Agency concluded that there are insufficient data to establish tolerances for diflubenzuron residues in or on these commodities at this time. EPA is also deleting several established tolerances in § 180.377
(b)that are no longer needed as a result of this action. The tolerance deletions under § 180.377
(b)are time-limited tolerances established under section 18 emergency exemptions that are superceded by the establishment of general tolerances for diflubenzuron and its metabolites under § 180.377 (a)(2). The revisions to § 180.377
(b)are as follows: 1. Delete the time-limited tolerance for barley, grain at 0.05 ppm. A tolerance for barley, grain at 0.06 ppm is established by this action under § 180.377(a)(2). 2. Delete the time-limited tolerance for barley, hay at 1.0 ppm. A tolerance for barley, hay at 3.0 ppm is established by this action under § 180.377(a)(2). 3. Delete the time-limited tolerance for barley, straw at 0.50 ppm. A tolerance for barley, straw at 1.8 ppm is established by this action under § 180.377 (a)(2). 4. Delete the time-limited tolerance for wheat, grain at 0.05 ppm. A tolerance for wheat, grain at 0.06 ppm is established by this action under § 180.377(a)(2). 5. Delete the time-limited tolerance for wheat, hay at 1.0 ppm. A tolerance for wheat, hay at 6.0 ppm is established by this action under § 180.377(a)(2). 6. Delete the time-limited tolerance for wheat, straw at 0.50 ppm. A tolerance for wheat, straw at 3.5 ppm is established by this action under § 180.377 (a)(2). Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . III. Aggregate Risk Assessment and Determination of Safety Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(a)(2) of FFDCA, for tolerances for combined residues of diflubenzuron, (N-[[(4-chlorophenyl)amino]carbonyl]-2,6-difluorobenzamide and its metabolites 4-chlorophenylurea and 4-chloroaniline in or on the raw agricultural commodities barley, grain at 0.06 ppm; barley, hay at 3.0 ppm; barley, straw at 1.8 ppm; oat, grain at 0.06 ppm; oat forage at 7.0 ppm; oat hay at 6.0 ppm; oat straw at 3.5 ppm; wheat, grain at 0.06 ppm; wheat, forage at 7.0 ppm, wheat, hay at 6.0 ppm, wheat, straw at 3.5 ppm; grain, aspirated fractions at 11 ppm; pummelo at 0.50 ppm; brassica, leafy greens, subgroup 5B at 9.0 ppm; turnip greens at 9.0 ppm; peanut at 0.10 ppm; peanut, hay at 55 ppm; peanut, refined oil at 0.20 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the toxic effects caused by diflubenzuron as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at *http://www.epa.gov/fedrgstr/EPA-PEST/2002/September/Day-19/p23818.htm* (67 FR 59006). B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, the dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor
(UF)is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify non-threshold hazards such as cancer. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk, estimates risk in terms of the probability of occurrence of additional cancer cases. More information can be found on the general principles EPA uses in risk characterization at *http://www.epa.gov/pesticides/health/human.htm* . A summary of the toxicological endpoints for diflubenzuron used for human risk assessment is discussed in Unit III.B. of the final rule published in the **Federal Register** of September 19, 2002 (67 FR 59006) (FRL-7200-4). C. Exposure Assessment 1. *Dietary exposure from food and feed uses* . Tolerances for residues of diflubenzuron are established under 40 CFR 180.377. Tolerances listed in 40 CFR 180.377(a)(1) are expressed in terms of diflubenzuron per se. Under this section, tolerances of 0.05-6.0 ppm are established for residues in/on eggs; milk; fat and meat of cattle, goat, hog, horse, poultry, and sheep; poultry meat byproducts; cottonseed; mushroom; grapefruit, orange (sweet); tangerine; soybean hulls; and globe artichoke. Tolerances listed in 40 CFR 180.377(a)(2) are expressed in terms of the combined residues of diflubenzuron and its metabolites 4-chlorophenylurea
(CPU)and 4-chloroaniline (PCA). Under this section, tolerances of 0.02-6.0 ppm are established for residues in/on rice grain; tree nuts (group 14); pistachios; fruit, stone (group 12) except cherry; meat byproducts of cattle, goat, hog, horse, and sheep; pear; rice straw; pepper; and almond hulls. Time-limited tolerances listed in 40 CFR 180.377(b) are expressed in terms of the combined residues of diflubenzuron and its metabolites CPU and PCA, expressed as the parent diflubenzuron, in connection with use of the pesticide under Section 18 Emergency Exemptions granted by EPA. Risk assessments were conducted by EPA to assess dietary exposures from diflubenzuron in food as follows: i. *Acute exposure* . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. The diflubenzuron toxicology studies indicated no possibility of such an effect for either the general U.S. population (including infants and children) or the females 13-50 years old population subgroup for diflubenzuron; therefore, an acute dietary exposure analysis was not performed. ii. *Chronic exposure* . In conducting this chronic dietary risk assessment the Dietary Exposure Evaluation Model (DEEM-FCID TM ) analysis evaluated the individual food consumption as reported by respondents in the USDA 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: For the chronic analysis a Tier 1 chronic dietary-exposure assessment was conducted using the established/recommended tolerances for all food commodities, 100% CT information for all proposed and existing uses, and DEEM( TM ) Version 7.81 default processing factors for some processed commodities. iii. *Cancer* . The Agency has classified diflubenzuron as “Group E,” evidence of non-carcinogenicity for humans, based on lack of evidence of carcinogenicity in rats and mice. There are also two metabolites of diflubenzuron; PCA and CPU. PCA tested positive for splenic tumors in male rats and hepatocellular adenomas/carcinomas in male mice in a National Toxicology Program
(NTP)study. Therefore, EPA classified PCA as a “Group B2” probable human carcinogen. The Agency determined for those commodities that contained PCA and CPU, the Q1* of PCA should be used to calculate the cancer risk from the sum of these two metabolites. Based on the submitted metabolism studies, there are two possible sources for dietary exposure to PCA and CPU: residues in mushrooms and residues in milk and liver. Because human exposure to PCA and CPU will not be affected by the proposed new uses, and EPA has previously concluded that exposure to these compounds is safe, therefore, the cancer dietary risk from PCA and CPU will not be addressed in this document. For a detailed discussion on the exposure and risks to PCA and CPU, please refer to the September, 2002 **Federal Register** document titled Diflubenzuron; Pesticide Tolerances (September 19, 2002, FR 67 59006); *http://www.epa.gov/fedrgstr/EPA-PEST/2002/September/Day-19/p23818.htm* . 2. *Dietary exposure from drinking water* . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for diflubenzuron in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of diflubenzuron. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at *http://www.epa.gov/oppefed1/models/water/index.htm* . Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentrations in Groundwater (SCI-GROW) models, the estimated environmental concentrations
(EECs)of diflubenzuron and the major degradate CPU for chronic exposures are estimated to be 2.76 ppb for surface water and 0.208 ppb for ground water.Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model (DEEM-FCID TM , Version 2.03). For chronic dietary risk assessment, the annual average concentration of 2.76 ppb was used to assess the contribution to drinking water. 3. *From non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Although there are no registered homeowner uses, there are registered uses for professional applications to outdoor residential and recreational areas to control mosquitoes, moths, and other insects. However, the potential for post-application residential exposure is expected to be limited, due to the low dermal absorption rate (0.5%) of diflubenzuron, and since it is only applied to the tree canopy, minimal bystander contact is expected. 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to diflubenzuron and any other substances and diflubenzuron does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that diflubenzuron has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at *http://www.epa.gov/pesticides/cumulative* . D. Safety Factor for Infants and Children 1. * In general* . Section 408 of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional safety factor value based on the use of traditional uncertainty factors and/or special FQPA safety factors, as appropriate. 2. *Prenatal and postnatal sensitivity* . Based on the developmental and reproductive toxicity studies, there is no indication of increased susceptibility of rats or rabbits to *in utero* or postnatal exposure. 3. *Conclusion* . Based on the reliable data available on diflubenzuron, EPA determined that the additional FQPA 10X safety factor to protect infants and children was not needed. This decision was based on the following: i. There is a complete toxicity data base for diflubenzuron ii. There is no indication of increased susceptibility of rats or rabbits to *in utero* or postnatal exposure; iii. A developmental neurotoxicity study
(DNT)with diflubenzuron is not required; iv. Food and drinking water exposure assessments will not underestimate the potential exposure for infants and children; and v. There are currently no registered or proposed residential (non-occupational) uses of diflubenzuron for homeowners. Although there are no registered homeowner uses, there is potential for professional applications to outdoor residential and recreational areas to control mosquitoes, moths, and other insects. However, the potential for post-application residential exposures are expected to be limited. Due to the low dermal absorption rate (0.5%) of diflubenzuron, and since it is only applied to the tree canopy to control gypsy moths and mosquitoes, minimal bystander contact is expected. E. Aggregate Risks and Determination of Safety The Agency currently has two ways to estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses. First, a screening assessment can be used, in which the Agency calculates drinking water levels of comparison (DWLOCs) which are used as a point of comparison against estimated drinking water concentrations (EDWCs). The DWLOC values are not regulatory standards for drinking water, but are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. More information on the use of DWLOCs in dietary aggregate risk assessments can be found at *http://www.epa.gov/oppfead1/trac/science/screeningsop.pdf* . More recently the Agency has used another approach to estimate aggregate exposure through food, residential and drinking water pathways. In this approach, modeled surface and ground water EDWCs are directly incorporated into the dietary exposure analysis, along with food. This provides a more realistic estimate of exposure because actual body weights and water consumption from the CSFII are used. The combined food and water exposures are then added to estimated exposure from residential sources to calculate aggregate risks. The resulting exposure and risk estimates are still considered to be high end, due to the assumptions used in developing drinking water modeling inputs. The risk assessment for diflubenzuron used in this tolerance document uses this approach of incorporating water exposure directly into the dietary exposure analysis. 1. *Acute risk* . Because there were no toxic effects attributable to a single dose of diflubenzuron, it is not expected to pose an acute risk. 2. *Chronic risk* . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to diflubenzuron from food and water will utilize 11% of the cPAD for the U.S. population, 12% of the cPAD for all infants less than 1 year old, and 37% of the cPAD for children 1-2 years old. There are no residential uses for diflubenzuron that result in chronic residential exposure to diflubenzuron. EPA does not expect the aggregate exposure to exceed 100% of the cPAD. 3. *Short-term risk* . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Diflubenzuron is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern. 4. *Intermediate-term risk* . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Diflubenzuron is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern. 5. *Aggregate cancer risk for U.S. population* . Based on the available evidence, which included adequate carcinogenicity studies in rats and mice, and battery of negative mutagenicity studies, diflubenzuron has been classified as “Group E,” evidence of non-carcinogenicity for humans, by the Agency. As noted in Unit III.C.1.iii. of this document, the Agency has concluded that human exposure to PCA and CPU (metabolites of diflubenzuron) will not be affected by the proposed new uses. EPA has previously found aggregate exposure to these compounds to be safe. (September 19, 2002, 67 FR 59006); *http://www.epa.gov/fedrgstr/EPA-PEST/2002/September/Day-19/p23818.htm* 6. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to diflubenzuron residues. IV. Other Considerations A. Analytical Enforcement Methodology There are adequate enforcement methods, published in the Pesticide Analytical Manual (PAM, Vol. II), for determining diflubenzuron residues of concern. In addition, a new analytical methodology for plant commodities was successfully validated by an independent laboratory as well as by Agency chemists at the Analytical Chemistry Branch (ACB)/Biological and Economics Analysis Division
(BEAD)in conjunction with the approved rice petition (PP#8F4925). The new methods were forwarded to the Food and Drug Administration
(FDA)for publication in PAM Vol. II as Roman Numeral Methods. These methods can separately determine residues of diflubenzuron by gas chromatography/electron-capture detection (GC/ECD), CPU by GC/ECD, and PCA by GC/mass spectrometry (MS). The reported limit of quantitation
(LOQ)for diflubenzuron in/on rice grain, straw, and bran is 0.01 ppm, and is 0.05 ppm in/on rice hull. In rice straw, the LOQ for CPU is 0.01 ppm and 0.005 ppm for PCA. B. International Residue Limits The Codex Alimentarius has established maximum residue limits (MRL), expressed in terms of diflubenzuron per se, for many commodities including: apple (5 ppm), citrus fruits (0.5 ppm), edible offal (mammalian) (0.1 ppm), eggs (0.05 ppm), meat (from mammals other than marine mammals) (0.1 ppm), milks (0.02 ppm), mushrooms (0.3 ppm), pear (5 ppm), pome fruits (5 ppm), poultry meat (0.05 ppm), rice (0.01 ppm), and rice straw and fodder
(dry)0.7 ppm). As the U.S. residue definition includes CPU and PCA, compatibility is not possible with the proposed tolerances. V. Conclusion Therefore, tolerances are established for combined residues of diflubenzuron, (N-[[(4-chlorophenyl)amino]carbonyl]-2,6-difluorobenzamide and its metabolites 4-chlorophenylurea and 4-chloroaniline in or on the raw agricultural commodities barley, grain at 0.06 ppm; barley, hay at 3.0 ppm; barley, straw at 1.8 ppm; oat, grain at 0.06 ppm; oat forage at 7.0 ppm; oat hay at 6.0 ppm; oat straw at 3.5 ppm; wheat, grain at 0.06 ppm; wheat, forage at 7.0 ppm, wheat, hay at 6.0 ppm, wheat, straw at 3.5 ppm; grain, aspirated fractions at 11 ppm; pummelo at 0.50 ppm; brassica, leafy greens, subgroup 5B at 9.0 ppm; turnip greens at 9.0 ppm; peanut at 0.10 ppm; peanut, hay at 55 ppm; peanut, refined oil at 0.20 ppm. VI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq.* , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq.* ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule. VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: November 16, 2006. Donald R. Stubbs, Acting Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—AMENDED 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.377 is amended by alphabetically adding commodities to the table in paragraph (a)(2) and removing from the table in paragraph (b), the commodities “barley, grain”; “barley, hay”; barley, straw”; “wheat, grain”; “wheat, hay”; and “wheat, straw” to read as follows: § 180.377 Diflubenzuron; tolerances for residues.
(a)* * *
(2)* * * Commodity Parts per million * * * * * Barley, grain 0.06 Barley, hay 3.0 Barley, straw 1.8 Brassica, leafy greens, subgroup 5B 9.0 * * * * * Grain, aspirated fractions 11 * * * * * Oat, forage 7.0 Oat, grain 0.06 Oat, hay 6.0 Oat, straw 3.5 Peanut 0.10 Peanut, hay 55 Peanut, refined oil 0.20 * * * * * Pummelo 0.50 * * * * * Turnip greens 9.0 Wheat, forage 7.0 Wheat, grain 0.06 Wheat, hay 6.0 Wheat, straw 3.5 [FR Doc. E6-20147 Filed 11-28-06; 8:45 am] BILLING CODE 6560-50-S FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 0, 4, 11, 22, 64, 90, and 97 [FCC 06-35] Establishment of the Public Safety and Homeland Security Bureau AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: On March 17, 2006, the Commission adopted an Order revising its rules to establish the Public Safety and Homeland Security Bureau. By establishing this bureau the Commission believes it will be better able to address and promote public safety and homeland security. DATES: Effective September 25, 2006. FOR FURTHER INFORMATION CONTACT: Timothy Peterson, Public Safety and Homeland Security Bureau, at 202-418-1575, or via the Internet at *timothy.peterson@fcc.gov* . SUPPLEMENTARY INFORMATION: To promote a more efficient, effective and responsive organizational structure and to better promote and address public safety, homeland security, national security, emergency management and preparedness, disaster management, and related issues, the Commission has concluded that the proper dispatch of its business and the public interest will be served by creating a Public Safety and Homeland Security Bureau. In this Order, we amend the Commission's Rules to reflect the new structure, describe the new Bureau's functions and delegated authority, and make other conforming changes. Authority for the adoption of the foregoing revisions is contained in Sections 1, 4(i), 4(j), 5(b), 5(c), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. § 151, 154(i), 154(j), 155(b), 155(c), and 303(r). The amendments adopted herein pertain to agency organization, procedure and practice. Consequently, the notice and comment provisions of the Administrative Procedure Act contained in 5 U.S.C. 553(b) are inapplicable. Accordingly, it is ordered that Parts 0, 4, 11, 22, 64, 90, and 97 of the Commission Rules, set forth in Title 47 of the Code of Federal Regulations, are amended as set forth in the Appendix attached to this Order, to be effective upon release of this Order. List of Subjects 47 CFR Part 0 Organization and functions (Government agencies), Reporting and recordkeeping requirements. 47 CFR Part 4 Communications common carrier, Reporting and recordkeeping requirements, Telecommunications. 47 CFR Part 11 Radio, Television. 47 CFR Part 22 Communications common carriers, Communications equipment, Radio, Reporting and recordkeeping requirements. 47 CFR Part 64 Civil defense, Communications common carriers, Reporting and recordkeeping requirements, Telecommunications, Telephone. 47 CFR Part 90 Business and industry, Common carriers, Communications equipment, Radio, Reporting and recordkeeping requirements. 47 CFR Part 97 Civil defense, Communications equipment, Radio. Federal Communications Commission. Marlene H. Dortch, Secretary. For the reasons stated in the preamble, the Federal Communications Commission amends 47 CFR parts 0, 4, 11, 22, 64, 90, and 97 as follows: PART 0—COMMISSION ORGANIZATION 1. The authority citation for part 0 continues to read as follows: Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, 225, unless otherwise noted. 2. Section 0.5 is amended by adding paragraph (a)(17) to read as follows: § 0.5 General description of Commission organization and operations.
(a)* * *
(17)Public Safety and Homeland Security Bureau. § 0.11 [Amended] 3. Section 0.11 is amended by removing paragraph (a)(11). 4. Section 0.31 is amended by revising paragraph
(d)to read as follows: § 0.31 Functions of the Office.
(d)To advise the Commission concerning engineering matters, including (in consultation with the Public Safety and Homeland Security Bureau where appropriate) privacy and security of communications, involved in making or implementing policy or in resolving specific cases. 5. Section 0.51 is amended by adding paragraph
(s)to read as follows: § 0.51 Functions of the Bureau.
(s)To coordinate with the Public Safety and Homeland Security Bureau on all matters affecting public safety, homeland security, national security, emergency management, disaster management, and related issues. 6. Section 0.61 is amended by adding paragraph
(l)to read as follows: § 0.61 Functions of the Bureau.
(l)To coordinate with the Public Safety and Homeland Security Bureau on all matters affecting public safety, homeland security, national security, emergency management, disaster management, and related issues. 7. Section 0.91 is amended by adding paragraph
(o)to read as follows: § 0.91 Functions of the Bureau.
(o)Coordinate with the Public Safety and Homeland Security Bureau on all matters affecting public safety, homeland security, national security, emergency management, disaster management, and related issues. 8. Amend § 0.111 as follows: a. Revise paragraph (a)(22); b. Remove paragraphs (c), (f), and
(h)and redesignate paragraphs (d), (e), (g), and
(i)through
(l)as
(c)through (i). c. Revise newly redesignated paragraph (g); The revisions read as follows: § 0.111 Functions of the Bureau.
(a)* * *
(22)Advise the Commission or responsible Bureau or Office regarding the enforcement implications of existing and proposed rules.
(g)Handle congressional and other correspondence relating to or requesting specific enforcement actions, specific complaints or other specific matters within the responsibility of the Bureau, to the extent not otherwise handled by the Consumer and Governmental Affairs Bureau, the Office of General Counsel (impermissible ex parte presentations) or another Bureau or Office; 9. Section 0.131 is amended by adding paragraph
(q)to read as follows: § 0.131 Functions of the Bureau.
(q)Coordinates with the Public Safety and Homeland Security Bureau on all matters affecting public safety, homeland security, national security, emergency management, disaster management, and related issues. 10. Section 0.181 is amended by revising paragraphs
(b)and
(f)and adding paragraph
(j)to read as follows: § 0.181 The Defense Commissioner.
(b)To represent the Commission in public safety, homeland security, national security, emergency preparedness, disaster management, defense and related matters requiring conferences or communications with other governmental officers, departments, or agencies.
(f)To take such measures as will assure continuity of the Commission's functions under any foreseeable circumstances with a minimum of interruption. In the event of an emergency, the Defense Commissioner, in consultation with the Chief, Public Safety and Homeland Security Bureau, will decide whether to activate the Commission's Continuity of Operations
(COOP)plan and/or initiate the Commission's emergency response procedures.
(j)The Commission may designate an Alternate Defense Commissioner who is authorized to perform the functions of the Defense Commissioner if he or she is not available. § 0.182 [Removed] 11. Section 0.182 is removed. 12. Section 0.185 is amended by revising the introductory paragraph and paragraphs (a), (b), (d), and
(e)to read as follows: § 0.185 Responsibilities of the bureaus and staff offices. The head of each of the bureaus and staff offices, in rendering assistance to the Chief, Public Safety and Homeland Security Bureau in the performance of that person's duties with respect to homeland security, national security, emergency management and preparedness, disaster management, defense, and related activities will have the following duties and responsibilities:
(a)To keep the Chief, Public Safety and Homeland Security Bureau informed of the investigation, progress, and completion of programs, plans, or activities with respect to homeland security, national security and emergency preparedness, and defense in which they are engaged or have been requested to engage.
(b)To render assistance and advice to the Chief, Public Safety and Homeland Security Bureau, on matters which relate to the functions of their respective bureaus or staff offices.
(d)To perform such other duties related to the Commission's homeland security, national security, emergency management and preparedness, disaster management, defense, and related activities as may be assigned to them by the Commission.
(e)To serve as Public Safety/Homeland Security Liaison to the Public Safety and Homeland Security Bureau or designate a Deputy Chief of the Bureau or Office as such liaison. 13. Part 0, Subpart A, is amended by adding an undesignated center heading and § 0.191 to read as follows: Public Safety and Homeland Security Bureau § 0.191 Functions of the Bureau. The Public Safety and Homeland Security Bureau advises and makes recommendations to the Commission, or acts for the Commission under delegated authority, in all matters pertaining to public safety, homeland security, national security, emergency management and preparedness, disaster management, and ancillary operations. The Bureau has responsibility for coordinating public safety, homeland security, national security, emergency management and preparedness, disaster management, and related activities within the Commission. The Bureau also performs the following functions.
(a)Develops, recommends, and administers policy goals, objectives, rules, regulations, programs and plans for the Commission to promote effective and reliable communications for public safety, homeland security, national security, emergency management and preparedness, disaster management and related activities, including public safety communications (including 911, enhanced 911, and other emergency number issues), priority emergency communications, alert and warning systems (including the Emergency Alert System), continuity of government operations, implementation of Homeland Security Presidential Directives and Orders, disaster management coordination and outreach, communications infrastructure protection, reliability, operability and interoperability of networks and communications systems, the Communications Assistance for Law Enforcement Act (CALEA), and network security. Recommends policies and procedures for public safety, homeland security, national security, emergency management and preparedness, and recommends national emergency plans and preparedness programs covering Commission functions during national emergency conditions. Conducts outreach and coordination activities with, among others, state and local governmental agencies, hospitals and other emergency health care providers, and public safety organizations. Recommends national emergency plans, policies, and preparedness programs covering the provision of service by communications service providers, including telecommunications service providers, information service providers, common carriers, and non-common carriers; broadcasting and cable facilities; satellite and wireless radio services; radio frequency assignment; electro-magnetic radiation; investigation and enforcement.
(b)Under the general direction of the Defense Commissioner, coordinates the public safety, homeland security, national security, emergency management and preparedness, disaster management, and related activities of the Commission, including national security and emergency preparedness and defense mobilization, Continuity of Government
(COG)planning, alert and warning systems (including the Emergency Alert System), and other functions as may be delegated during a national emergency or activation of the President's war emergency powers as specified in section 706 of the Communications Act. Provides support to the Defense Commissioner, including with respect to his or her participation in the Joint Telecommunications Resources Board, and the National Security Telecommunications Advisory Committee and other public safety and homeland security organizations and committees. Represents the Defense Commissioner with other Government agencies and organizations, the communications industry, and Commission licensees on public safety, homeland security, national security, emergency management and preparedness, disaster management, and related issues. Keeps the Defense Commissioner informed as to significant developments in the fields of public safety, homeland security, national security, emergency management, and disaster management activities, and related areas.
(c)Develops and administers rules, regulations, and policies for priority emergency communications, including the Telecommunications Service Priority System. Supports the Chiefs of the Wireline Competition, International and Wireless Telecommunications Bureaus on matters involving assignment of Telecommunications Service Priority System priorities and in administration of that system.
(d)The Chief, Public Safety and Homeland Security Bureau, or that person's designee, acts as FCC Alternate Homeland Security and Defense Coordinator and principal to the National Communications System, and the Chief, Public Safety and Homeland Security Bureau, or that person's designee, shall serve as the Commission's representative on National Communications Systems Committees.
(e)Conducts rulemaking proceedings and acts on requests for interpretation or waiver of rules.
(f)Advises and makes recommendations to the Commission, or acts for the Commission under delegated authority, in all matters pertaining to the licensing and regulation of public safety, homeland security, national security, emergency management and preparedness, and disaster management wireless telecommunications, including ancillary operations related to the provision or use of such services. These activities include: policy development and coordination; conducting rulemaking and adjudicatory proceedings, including complaint proceedings for matters not within the responsibility of the Enforcement Bureau; acting on waivers of rules; acting on applications for service and facility authorizations; compliance and enforcement activities for matters not within the responsibility of the Enforcement Bureau; determining resource impacts of existing, planned or recommended Commission activities concerning wireless telecommunications, and developing and recommending resource deployment priorities. In addition, advises and assists public safety entities on wireless telecommunications issues and matters related thereto. Administers all authority previously delegated to the Wireless Telecommunications Bureau (including those delegations expressly provided to the Public Safety and Critical Infrastructure Division of the Wireless Telecommunications Bureau) in Improving Public Safety Communications in the 800 MHz Band, WT Docket 02-55.
(g)Conducts studies of public safety, homeland security, national security, emergency management and preparedness, disaster management, and related issues. Develops and administers recordkeeping and reporting requirements for communications companies pertaining to these issues. Administers any Commission information collection requirements pertaining to public safety, homeland security, national security, emergency management and preparedness, disaster management, and related issues.
(h)Interacts with the public, local, state, and other governmental agencies and industry groups (including advisory committees and public safety organizations and associations) on public safety, homeland security, national security, emergency management, disaster management and related issues. As requested, represents the Commission at meetings and conferences. Serves as the point of contact for the U.S. Government in matters of international monitoring, fixed and mobile direction-finding and interference resolution; and oversees coordination of non-routine communications and materials between the Commission and international or regional public organizations or foreign administrations.
(i)Maintains and operates the Commission's public safety, homeland security, national security, emergency management and preparedness, and disaster management facilities and operations, including the Communications Center, the establishment of any Emergency Operations Center (EOC), and any liaison activities with other federal, state, or local government organizations.
(j)Reviews and coordinates orders, programs and actions initiated by other Bureaus and Offices in matters affecting public safety, homeland security, national security, emergency management and preparedness, disaster management and related issues to ensure consistency with overall Commission policy. Provides advice to the Commission and other Bureaus and offices regarding the public safety, homeland security, national security, emergency management, and disaster management implications of existing and proposed rules.
(k)Develops and recommends responses to legislative, regulatory or judicial inquiries and proposals concerning or affecting public safety, homeland security, national security, emergency management, disaster management and related issues. Responses to judicial inquiries should be developed with and recommended to the Office of General Counsel.
(l)Develops and maintains the Commission's plans and procedures, including the oversight, preparation, and training of Commission personnel, for Continuity of Operations (COOP), Continuity of Government functions, and Commission activities and responses to national emergencies and other similar situations.
(m)Acts on emergency requests for Special Temporary Authority during non-business hours when the other Offices and Bureaus of the Commission are closed. Such actions shall be coordinated with, if possible, and promptly reported to the responsible Bureau or Office.
(n)Maintains liaison with other Bureaus and Offices concerning matters affecting public safety, homeland security, national security, emergency management and preparedness, disaster management and related issues.
(o)Is authorized to declare that a temporary state of communications emergency exists pursuant to § 97.401(b) of this chapter and to act on behalf of the Commission with respect to the operation of amateur stations during such temporary state of communications emergency.
(p)Performs such other functions and duties as may be assigned or referred to it by the Commission or the Defense Commissioner. § 0.284 [Amended] 14. Section 0.284 is amended by removing paragraphs (a)(3) and (a)(7), and redesignating paragraphs (a)(4) through (a)(6) as paragraphs (a)(3) through (a)(5). § 0.311 [Amended] 15. Section 0.311 is amended by removing paragraph
(c)and the note to paragraph (c). 16. Section 0.314 is amended by revising paragraph
(c)to read as follows: § 0.314 Additional authority delegated.
(c)To act on and make determinations on behalf of the Commission regarding requests for assignments and reassignments of priorities under the Telecommunications Service Priority System, part 64 of the rules, when circumstances require immediate action and the common carrier seeking to provide service states that it cannot contact the National Communications System or the Commission office normally responsible for such assignments. To the extent possible, all such actions and determinations shall be made in coordination with the Public Safety and Homeland Security Bureau. 17. Section 0.332 is amended by revising paragraph
(c)to read as follows: § 0.332 Actions taken under delegated authority.
(c)Matters involving public safety, homeland security, national security, emergency management and preparedness, and disaster management communications—the Public Safety and Homeland Security Bureau. 18. Section 0.387 is revised to read as follows: § 0.387 Other national security and emergency preparedness delegations; cross reference. For authority of the Chief of the Public Safety and Homeland Security Bureau to declare a temporary communications emergency, see § 0.191(o). 19. Part 0 is amended by adding an undesignated center heading and § 0.392 to read as follows: Public Safety and Homeland Security Bureau § 0.392 Authority delegated. The Chief, Public Safety and Homeland Security Bureau, is hereby delegated authority to perform all functions of the Bureau, described in § 0.191, subject to the following exceptions and limitations in paragraphs
(a)through
(e)of this section.
(a)The Chief, Public Safety and Homeland Security Bureau shall not have authority to act on any applications or requests that present novel questions of fact, law or policy that cannot be resolved under outstanding precedents and guidelines.
(b)The Public Safety and Homeland Security Bureau shall not have authority to act upon any applications for review of actions taken by the Chief, Public Safety and Homeland Security Bureau, pursuant to any delegated authority.
(c)The Public Safety and Homeland Security Bureau shall not have authority to act upon any formal or informal radio application or section 214 application for common carrier services which is in hearing status.
(d)The Public Safety and Homeland Security Bureau shall not have authority to impose, reduce, or cancel forfeitures pursuant to section 203 or section 503(b) of the Communications Act of 1934, as amended, in amounts of more than $80,000 for common carrier providers and $20,000 for non-common carrier providers.
(e)The Chief, Public Safety and Homeland Security Bureau shall not have authority to issue notices of proposed rulemaking, notices of inquiry, or reports or orders arising from either of the foregoing.
(f)The Chief, Public Safety and Homeland Security Bureau or her/his designee has the authority to rule on emergency requests for Special Temporary Authority during non-business hours. Action on emergency requests for Special Temporary Authority during non-business hours shall be promptly reported to the responsible Bureau or Office.
(g)The Chief, Public Safety and Homeland Security Bureau is authorized to declare that a temporary state of communications emergency exists pursuant to § 97.401(b) of this chapter and to act on behalf of the Commission with respect to the operation of amateur stations during such temporary state of communications emergency.
(h)The Chief, Public Safety and Homeland Security Bureau or her/his designee is authorized to issue non-hearing related subpoenas for the attendance and testimony of witnesses and the production of books, papers, correspondence, memoranda, schedules of charges, contracts, agreements, and any other records deemed relevant to the investigation of matters within the jurisdiction of the Public Safety and Homeland Security Bureau. Before issuing a subpoena, the Bureau shall obtain the approval of the Office of General Counsel. PART 4—DISRUPTIONS TO COMMUNICATIONS 20. The authority citation for part 4 continues to read as follows: Authority: 47 U.S.C. 151, 154(i), 154(j), 154(o), 218, 219, 230, 256, 301, 302(a), 303(f), 303(g), 303(j), 303(r), 403, 621(b)(3), and 621(d), unless otherwise noted. 21. Section 4.11 is revised to read as follows: § 4.11 Notification and initial and final communications outage reports that must be filed by communications providers. Notification and Initial and Final Communications Outage Reports shall be submitted by a person authorized by the communications provider to submit such reports to the Commission. The person submitting the Final report to the Commission shall also be authorized by the provider to legally bind the provider to the truth, completeness, and accuracy of the information contained in the report. Each Final report shall be attested by the person submitting the report that he/she has read the report prior to submitting it and on oath deposes and states that the information contained therein is true, correct, and accurate to the best of his/her knowledge and belief and that the communications provider on oath deposes and states that this information is true, complete, and accurate. The Notification shall provide: The name of the reporting entity; the date and time of onset of the outage; a brief description of the problem; service effects; the geographic area affected by the outage; and a contact name and contact telephone number by which the Commission's technical staff may contact the reporting entity. The Initial and Final Reports shall contain the information required in this part 4. The Initial report shall contain all pertinent information then available on the outage and shall be submitted in good faith. The Final report shall contain all pertinent information on the outage, including any information that was not contained in, or that has changed from that provided in, the Initial report. The Notification and the Initial and Final Communications Outage Reports are to be submitted electronically to the Commission. “Submitted electronically” refers to submission of the information using Commission-approved Web-based outage report templates. If there are technical impediments to using the Web-based system during the Notification stage, then a written Notification to the Commission by e-mail, FAX, or courier may be used; such Notification shall contain the information required. All hand-delivered Notifications and Initial and Final Communications Outage Reports, shall be addressed to the Federal Communications Commission, The Office of Secretary, Attention: Chief, Public Safety & Homeland Security Bureau. Electronic filing shall be effectuated in accordance with procedures that are specified by the Commission by public notice. PART 11—EMERGENCY ALERT SYSTEM
(EAS)22. The authority citation for part 11 continues to read as follows: Authority: 47 U.S.C. 151, 154(i) and (o), 303(r), 544(g) and 606. 23. Section 11.21 is amended by revising the introductory paragraph to read as follows: § 11.21 State and Local Area Plans and FCC Mapbook. EAS plans contain guidelines which must be followed by EAS Participants' personnel, emergency officials, and National Weather Service
(NWS)personnel to activate the EAS. The plans include the EAS header codes and messages that will be transmitted by key EAS sources (NP, LP, SP and SR). State and local plans contain unique methods of EAS message distribution such as the use of the Radio Broadcast Data System (RBDS). The plans must be reviewed and approved by the Chief, Public Safety and Homeland Security Bureau, prior to implementation to ensure that they are consistent with national plans, FCC regulations, and EAS operation. 24. Section 11.43 is revised to read as follows: § 11.43 National level participation. Entities that wish to voluntarily participate in the national level EAS may submit a written request to the Chief, Public Safety and Homeland Security Bureau. 25. Section 11.47 is amended by revising paragraph
(b)to read as follows: § 11.47 Optional use of other communications methods and systems.
(b)Other technologies and public service providers, such as DBS, low earth orbiting satellites, etc. that wish to participate in the EAS may contact the FCC's Chief, Public Safety and Homeland Security Bureau, or their State Emergency Communications Committee for information and guidance. PART 22—PUBLIC MOBILE SERVICES 26. The authority citation for part 22 continues to read as follows: Authority: 47 U.S.C. 154, 222, 303, 309, and 332. 27. Section 22.879 is amended by revising paragraph (c)(3)(v) to read as follows: § 22.879 Interference resolution procedures.
(c)* * *
(3)* * *
(v)Has been approved by the Chief of the Public Safety and Homeland Security Bureau or other designated Commission official. Prior to the authorized official making a determination that a clear and imminent danger exists, the associated written statement must be served by hand-delivery or receipted fax on the applicable offending licensee, with a copy transmitted by the fastest available means to the Washington, DC office of the Commission's Public Safety and Homeland Security Bureau. 28. Section 22.972 is amended by revising paragraph (c)(3)(v) to read as follows: § 22.972 Interference resolution procedures.
(c)* * *
(3)* * *
(v)Has been approved by the Chief of the Public Safety and Homeland Security Bureau or other designated Commission official. Prior to the authorized official making a determination that a clear and imminent danger exists, the associated written statement must be served by hand-delivery or receipted fax on the applicable offending licensee, with a copy transmitted by the fastest available means to the Washington, DC office of the Commission's Public Safety and Homeland Security Bureau. PART 64—MISCELLANEOUS RULES RELATING TO COMMON CARRIERS 29. The authority citation for part 64 continues to read as follows: Authority: 47 U.S.C. 154, 254(k); secs. 403(b)(2)(B), (c), Pub. L. 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222, 225, 226, 228, and 254(k) unless otherwise noted. 30. Appendix A, 6.b.(2)(m) is revised to read as follows: Appendix A to Part 64—Telecommunications Service Priority
(TSP)System for National Security Emergency Preparedness
(NSEP)6. * * * b. * * *
(2)* * *
(m)All reports submitted to the FCC should be directed to Chief, Public Safety and Homeland Security Bureau, Washington, DC 20554. PART 90—PRIVATE LAND MOBILE RADIO SERVICES 31. The authority citation for part 90 continues to read as follows: Authority: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7). 32. Section 90.674 is amended by revising paragraph (c)(3)(v) to read as follows: § 90.674 Interference resolution procedures before, during and after band reconfiguration.
(c)* * *
(3)* * *
(v)Has been approved by the Chief of the Public Safety and Homeland Security Bureau or other designated Commission official. Prior to the authorized official making a determination that a clear and imminent danger exists, the associated written statement must be served by hand-delivery or receipted fax on the applicable offending licensee, with a copy transmitted by the fastest available means to the Washington, DC office of the Commission's Public Safety and Homeland Security Bureau. 33. Section 90.676 is amended by revising paragraphs (a)(4), (b)(1), and (b)(4) to read as follows: § 90.676 Transition administrator for reconfiguration of the 806-824/851-869 MHz band in order to separate cellular systems from non-cellular systems.
(a)* * *
(4)Establishing a relocation schedule on a NPSPAC region-by-region basis, prioritizing the regions on the basis of population. However, should a given region be encountering unusually severe amounts of unacceptable interference, that region may be moved up in priority. Any party disputing such a change in priority may refer the matter to the Chief, Public Safety and Homeland Security Bureau, who hereby is delegated the authority to resolve such disputes. The Transition Administrator may direct that adjoining regions be reconfigured simultaneously when conditions so require.
(b)* * *
(1)Monitor the retuning schedule and resolve any schedule delays or refer same to the Chief, Public Safety and Homeland Security Bureau, for resolution;
(4)Provide the Chief, Public Safety and Homeland Security Bureau, with an annual audited statement of relocation funds expended to date, including salaries and expenses of Transition Administrator. The Transition Administrator may select the date for filing the annual audited statement; § 90.677 [Amended] 34. Section 90.677 is amended by removing the words “Chief of the Public Safety and Critical Infrastructure Division of the Wireless Telecommunications Bureau” and “Chief of the Public Safety and Critical Infrastructure Division” wherever they appear and adding, in their place, the words “Chief, Public Safety and Homeland Security Bureau.” PART 97—AMATEUR RADIO SERVICE 35. The authority citation for part 97 continues to read as follows: Authority: 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303. Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47 U.S.C. 151-155, 301-609, unless otherwise noted. 36. Section 97.401 is amended by revising paragraph
(b)to read as follows: § 97.401 Operation during a disaster.
(b)When a disaster disrupts normal communication systems in a particular area, the FCC may declare a temporary state of communication emergency. The declaration will set forth any special conditions and special rules to be observed by stations during the communication emergency. A request for a declaration of a temporary state of emergency should be directed to the Chief, Public Safety and Homeland Security Bureau. [FR Doc. E6-20240 Filed 11-28-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1, 2, 74, 78, and 101 [WT Docket No. 04-143; FCC 06-141] Rechannelization of the 17.7-19.7 GHz Frequency Band for Fixed Microwave Services AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: In this document, the Commission adopts rules that rechannelize Fixed Microwave Services
(FS)channels in the terrestrial 18 GHz band. The Commission revises the rules in order to reduce the regulatory burden for the 18 GHz band by adding new channel-size options for FS operations along with channelization and emission flexibility for multichannel video programming distributors (MVPDs) below 18.3 GHz, thereby facilitating the relocation to spectrum at 17.7-18.3 GHz and 19.3-19.7 GHz. We believe these actions will encourage efficient use of the spectrum by all FS licensees and provide a regulatory environment that will allow MVPDs to provide competitive services while protecting Federal earth stations. DATES: Effective December 29, 2006 FOR FURTHER INFORMATION CONTACT: Brian Michael Wondrack,
(202)418-0653, e-mail: *brian.wondrack@fcc.gov* , or via TTY
(202)418-7233, Wireless Telecommunications Bureau, Federal Communications Commission, Washington, DC 20554. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Report and Order* , adopted on September 22, 2006 and released on September 29, 2006, FCC 06-141. The full text of the *Report and Order* is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, 202-488-5300 or 800-387-3160, e-mail at *fcc@bcpiweb.com.* The complete text is also available on the Commission's Web site at *http://hraunfoss.fcc.gov/edocs_public/attachment/FCC-06-141A1.doc.* This full text may also be downloaded at: *http://wireless.fcc.gov/releases.html.* Alternative formats (computer diskette, large print, audio cassette, and Braille) are available to persons with disabilities by contacting Brian Millin at
(202)418-7426, TTY
(202)418-7365, or via e-mail to *bmillin@fcc.gov.* Summary of Report and Order I. Introduction 1. In this *Report and Order* , we revise our rules to reduce regulatory burdens for 18 GHz band 1 terrestrial Fixed Microwave Services
(FS)licensees that are subject to involuntary relocation from the 18.3-19.3 GHz band pursuant to the Commission's reallocation of that band for exclusive satellite services use in IB Docket No. 98-172. 2 These FS licensees will relocate to spectrum at 17.7-18.3 GHz and 19.3-19.7 GHz, where 47 CFR part 101 currently designates channel sizes that are too large relative to the needs of some relocating point-to-point microwave licensees and too small relative to the needs of relocating private cable operators
(PCOs)and other multichannel video programming distributors (MVPDs). The *Report and Order* revises the rules to add new channel sizes in both bands along with special rules for MVPDs within the 17.7-18.3 GHz band, thereby facilitating the relocation. 1 The term “18 GHz band” refers to those frequencies between 17.7 and 19.7 GHz. Herein, we use the term “terrestrial 18 GHz band” to refer to those frequencies between 17.7-18.3 GHz and between 19.3-19.7 GHz that are allocated on a co-primary basis for the following terrestrial services: Fixed Microwave Services
(FS)under part 101, Cable Television Relay Service (“CARS”) under part 78, and Broadcast Auxiliary Services (“BAS”) under part 74. We recognize that 17.7-18.3 GHz and 19.3-19.7 GHz are also allocated on a co-primary basis for satellite services; we are using the term “ *terrestrial* 18 GHz band” herein for convenience only given that the instant re-channelization concerns terrestrial services under part 101. 2 *See* Redesignation of the 17.7-19.7 GHz Frequency Band, Blanket Licensing of Satellite Earth Stations in the 17.7-20.2 GHz and 27.5-30.0 GHz Frequency Bands, and the Allocation of Additional Spectrum in the 17.3-17.8 GHz and 24.75-25.25 GHz Frequency Bands for Broadcast Satellite-Service Use, IB Docket No. 98-172, *Report and Order,* 15 FCC Rcd 13430
(2000)( *“18 GHz SAT R&O”* ), *recon. granted in part, First Order on Reconsideration,* 16 FCC Rcd 19808 (2001), *further recon. granted in part, Second Order on Reconsideration,* 17 FCC Rcd 24248
(2002)*(“Second Order on Reconsideration”)* , *further recon. denied, Third Order on Reconsideration,* 19 FCC Rcd 10777
(2003)*(“Third Order on Reconsideration”).* 2. In this *Report and Order* we adopt the following actions regarding FS channels in the terrestrial 18 GHz band: • We adopt a revised band plan for the FS paired and unpaired spectrum from 17.7-18.3 GHz and 19.3-19.7 GHz, consisting of a variety of channel bandwidths, primarily narrower bandwidths, and a block of unpaired spectrum from 17.7-17.74 GHz. • We designate a contiguous 600 megahertz block of one-way spectrum from 17.7-18.3 GHz for use by MVPDs, who will have flexibility within such block to determine the appropriate bandwidths and other technical parameters of their MVPD operations. • In the 17.7-17.8 GHz band, we protect Federal earth stations in the fixed-satellite service (space-to-Earth) that may be authorized in Denver, Colorado, and Washington, DC, and require all MVPD applications (under 47 CFR parts 74, 78, or 101) within the 17.7-17.8 GHz band near those areas to be coordinated with the Federal Government by the Commission before an authorization will be issued. 3 3 The National Telecommunications and Information Administration
(NTIA)filed a letter with the Commission, dated March 3, 2006, requesting that we protect certain Federal operations. *See* paragraphs 18-21, *infra.* • We provide channel flexibility to grandfathered MVPDs in the 18.3-18.58 GHz band, which was previously designated for non-primary use by MVPDs. II. Background 3. *Reallocation from Terrestrial Services to Satellite Services* ( * 18 GHz SAT R&O * ). Previously, in a separate proceeding, the Commission reallocated portions of the 18 GHz band to accommodate sharing among the terrestrial, Geostationary Satellite Orbit Fixed-Satellite Service (“GSO/FSS”), Non-Geostationary Satellite Orbit Fixed-Satellite Service (“NGSO/FSS”), and Mobile-Satellite Service feeder links (“MSS/FL”). As part of that action, the Commission reallocated the one thousand megahertz of spectrum from 18.3-19.3 GHz solely to Fixed-Satellite Service (FSS). The terrestrial services, including FS, continue to have shared (co-primary) access to the terrestrial 18 GHz band and we revise the FS channel plan, under part 101, to ensure that the FS community can effectively and efficiently utilize this spectrum. Rechannelization of CARS and BAS, which share the terrestrial 18 GHz band with FS (as well as satellite services) will be addressed in a separate proceeding. Accordingly, the discussion below focuses on the terrestrial Fixed Microwave Services
(FS)licensed under part 101, except where we address NTIA's request to protect certain Federal Government earth stations relative to all applications for new or modified MVPD operations whether under parts 74, 78, or 101. 4. The 18 GHz band currently serves a variety of terrestrial communications needs and is an important band for the growth of FS services. Prior to the rule changes adopted in the *18 GHz SAT R&O* , the 18 GHz band (two-thousand megahertz of spectrum at 17.7-19.7 GHz) was allocated on a co-primary basis for FS, CARS, BAS, and satellite services. 4 In the *18 GHz SAT R&O* , the Commission reallocated one-thousand megahertz of spectrum for FS use as follows: the 17.7-18.3 GHz band and the 19.3-19.7 GHz band, both on a co-primary basis with satellite services. The *18 GHz SAT R&O* also designated the 18.3-18.58 GHz band as co-primary between FS and GSO/FSS, but the Commission subsequently reallocated this sub-band exclusively for satellite services use. 4 *See* 47 CFR 2.106 (1999); *see also* 47 CFR parts 21, 25, 74, 78, and 101. *See 18 GHz SAT R&O* , 15 FCC Rcd 13430. 5. *Ten-year relocation reimbursement sunset.* Recognizing the importance of existing FS systems in the 18 GHz band, the Commission adopted a ten-year transition plan that permits FS stations currently operating within the one-thousand megahertz of spectrum at 18.3-19.3 GHz, that was reallocated for exclusive satellite services use, to continue operating on a co-primary basis until the applicable sunset date. 5 Under these rules, satellite operators have the option to relocate FS stations in the event of interference and, during this ten-year period, existing FS stations may be relocated in accordance with the reimbursement and involuntary relocation procedures set forth in § 101.85 and § 101.91of the Commission's rules. After the sunset, existing FS stations may continue to operate on a non-interference basis, but FSS licensees are not required to pay relocation costs and may require an incumbent FS licensee to cease operations, provided that the FSS licensee intends to turn on a system within interference range of the incumbent FS licensee. 6 5 47 CFR 101.85 (Transition of the 18.3-19.3 GHz band from the terrestrial fixed services to the fixed-satellite services (FSS)). Certain FS operations in the 18.58-19.3 GHz band remain co-primary until June 8, 2010, while certain FS operations and low-power systems in the 19.26-19.3 GHz band remain co-primary until October 31, 2011, and certain FS operations in the 18.3-18.58 GHz band remain co-primary until November 19, 2012. *Id.* 6 47 CFR 101.95 (Sunset provisions for licensees in the 18.30-19.30 GHz Band). *See also 18 GHz SAT R&O,* 15 FCC Rcd at 1346 paragraph 63, *First Order on Reconsideration,* 16 FCC Rcd at 19821 paragraph 26. 6. The 18 GHz band spectrum available for FS containing the narrowest (five megahertz) paired channels (18.76-19.16 GHz band frequencies) was reallocated exclusively to satellite services. Under current rules, ten megahertz is the smallest channel size available for licensing to FS in the terrestrial 18 GHz band. As a result, under the existing band plan some FS operators will not be able to relocate to replacement channels in the terrestrial 18 GHz band of the same bandwidth as their currently licensed channels at 18.76-19.16 GHz. Moreover, some FS operators would not be able to be licensed without a waiver of the minimum efficiency requirements specified in part 101 of our rules. Under the efficiency rules in § 101.141 of the Commission's rules, a FS licensee must utilize its channel to the required limit. The *18 GHz Rechannelization NPRM (NPRM)* , 69 FR 40843 (July 7, 2004), set forth criteria for waiver of the channel-size rules pending the outcome of this proceeding. Requiring such licensees to be licensed for larger-than-necessary bandwidths would be spectrally inefficient. 7. The Commission recognized in the *18 GHz SAT R&O* that the already high demand for 18.14-18.58 GHz band will increase and stated that this portion of the 18 GHz band is vital to the success of FS relocation efforts and the continued viability of wireless cable providers that provide direct competition to traditional cable operators. However, most of the 18 GHz band spectrum from 18.142-18.58 GHz, which consists of six megahertz channels (the standard channel bandwidth used by almost all MVPDs to deliver analog channels and digital video streams) used mainly by private cable operators (“PCOs”) and other MVPDs, was reallocated to satellite services. Accordingly, when the Commission reallocated this portion of the 18 GHz band, it noted that PCOs and other MVPDs were eligible to use other spectrum either below 18.3 GHz in the terrestrial 18 GHz band 7 or in the CARS (12.7-13.2 GHz) band. 8 Although the *Second Order on Reconsideration* recognized that the *CARS Eligibility Order* allowed non-cable MVPDs access to the terrestrial 18 GHz band, the Commission did not, in those proceedings, remove the restriction for video in § 101.603 of the Commission's rules, nor amend the size of the channels in the terrestrial 18 GHz band below 18.142 GHz to accommodate such use. Rather, the Commission explained in the *First Order on Reconsideration* that it would undertake a separate proceeding to rechannelize the terrestrial 18 GHz band to facilitate the relocation. Accordingly, on April 19, 2004, the Commission released the *NPRM.* 7 18 GHz band spectrum is shared with CARS and BAS. MVPDs are eligible for CARS licenses. 8 *Second Order on Reconsideration,* 17 FCC Rcd at 24250 paragraph 6. This “enhanced eligibility” was the result of the Commission's decision in another proceeding. *See* Amendment of Eligibility Requirements in part 78 Regarding 12 GHz Cable Television Relay Service, CS Docket No. 99-250, *Report and Order,* 17 FCC Rcd 9930, 9930 paragraph 1
(2002)*(“CARS Eligibility Order”).* III. Discussion A. Adding Smaller Channels for FS Operations in the Terrestrial 18 GHz Band 8. In the *NPRM* (based largely on a filing by the Fixed Wireless Communications Coalition (FWCC)), the Commission proposed a revised FS channel plan for the terrestrial 18 GHz band that included paired and unpaired channels from 17.7-18.3 GHz and 19.3-19.7 GHz, as well as a variety of channel bandwidths including narrower bandwidths, *e.g.* , 1.25, 2.5 and 5 megahertz (as well as those of thirty and fifty megahertz) and a block of unpaired spectrum from 17.7-17.74 GHz. 9. All commenters generally support our efforts to provide relief to relocated point-to-point microwave FS licensees by modifying the existing FS channel plan in the terrestrial 18 GHz band. Based on the information available in the record, we conclude that our decisions will promote more efficient use of the terrestrial 18 GHz band by allowing FS licensees to request the amount of spectrum that they need, rather than having to request larger bandwidth channels or seek a waiver of the Commission's rules. This in turn promotes access to spectrum for FS operations, both by relocating incumbents and new entrants. B. 220 Megahertz Channels 10. In the *NPRM,* the Commission recognized that the reallocation of the 18 GHz band eliminated portions of all three FS 220 megahertz channel pairs, and the Commission sought comments on whether a need exists to maintain any 220 megahertz channel pair. Commenters state that maintaining 220 megahertz channel pairs is no longer necessary because, due to advances in modulation, the services that were provided over these channel pairs are no longer used and, accordingly, the equipment needed to provide these services is no longer manufactured. Moreover, commenters maintain that the proposed assignment would effectively block the use of narrower channels for two-way links within the terrestrial 18 GHz band. We also note that the Commission's licensing records reflect that no incumbents are licensed for a 220 megahertz channel pair. Based on the record before us, we agree with the commenters and find that maintaining a 220 megahertz channel pair serves no useful purpose, especially given our decision below regarding aggregation. Accordingly, we change our rules to eliminate this size channel designation. C. Aggregation 11. We also proposed, in the *NPRM,* to permit applicants to request any amount of available spectrum based on their specific needs, on the condition that aggregated channels are contiguous channels, except for channels that are already licensed to someone else in the area, and are thus blocked. Comsearch asks us to clarify whether applicants also may skip any segments that would be affected by interference with other links. We conclude that allowing aggregation conditioned upon the proposed requirement that aggregated channels be contiguous is necessary to prevent licensees from spacing their channels in a manner that effectively could prevent others from using the remaining spectrum in the same area. We also, however, agree with Comsearch that where an applicant seeks to operate in a particular segment that is unavailable in the relevant area, whether due to co-channel licenses or adjacent channel interference as determined under our rules (including requirements to comply with any applicable agreements with Canada or Mexico in these bands), then it is appropriate to allow the applicant to skip that “blocked” segment of spectrum. D. Use of the 17.7-17.74 GHz Sub-band 12. The *NPRM* also proposed to permit unpaired use by any FS licensee of the 17.7-17.74 GHz sub-band, which was previously paired with the 19.26-19.3 GHz sub-band that was reallocated to FSS. We also asked whether to allow licensees to pair channels in the 17.7-17.74 GHz sub-band with other channels in the terrestrial 18 GHz band where, for example, the return pair is already in use and therefore blocked. Only one commenter, Independent Multi-Family Communications Council (IMCC), addressed these proposals and supported them. We conclude that these approaches will provide FS licensees additional operational flexibility within the terrestrial 18 GHz band without compromising our efforts to facilitate effective and expeditious relocation of those licensees from other portions of the 18 GHz band. We accordingly adopt these changes to our rules. E. Multichannel Video Programming Distributors (MVPDs) 1. Background 13. Prior to the reallocation to satellite services in IB Docket No. 98-172, PCOs and other MVPDs had co-primary access to 438 megahertz of spectrum (18.142-18.58 GHz) and non-MVPDs had co-primary access to 442 megahertz of spectrum (17.7-18.142 GHz). Although MVPD and non-MVPD each shared spectrum with satellite and other terrestrial services, these part 101 licensees did not share with one another. In the *NPRM* , the Commission noted that MVPDs no longer will have primary access to the 18.3-18.58 GHz band frequencies, leaving MVPDs subject to involuntary relocation and access to only 158 megahertz of spectrum in the 18 GHz range. In this connection, the Commission proposed for MVPDs a contiguous 500 megahertz block of one-way spectrum, from 17.8-18.3 GHz, consisting of the 158 megahertz of spectrum at 18.142-18.3 GHz and 342 megahertz of spectrum immediately below 18.142 GHz which MVPDs and non-MVPDs would share. The Commission also proposed removing the prohibition on video operations 9 and allowing MVPDs to be licensed for up to all five-hundred megahertz of this spectrum, subject to coordination, along with flexibility to channelize contiguous segments of licensed spectrum as needed. The Commission further proposed emission flexibility for MVPDs within the 17.8 to 18.3 GHz band to accommodate and streamline conversions to digital transmissions. The *NPRM* did not propose to designate 17.7-17.8 GHz for MVPDs, which under the current rules would leave this one-hundred megahertz of spectrum designated for non-MVPDs. We discuss each proposal or issue below. 9 *See* 47 CFR 101.603(a)(1), 101.603(b) (prohibiting use of 18 GHz frequencies, other than 18.142-18.580 GHz, for the final link in the chain of transmission of program material). 2. MVPD Designation at 17.8-18.3 GHz 14. Alcatel and Fixed Wireless Communications Coalition and the National Spectrum Managers Association (FWCC/NSMA) initially opposed designating the 17.8-18.3 GHz sub-band for use by MVPDs because MVPDs use one-way, hub-and-spoke architecture that these commenters contend will effectively block the use of the entire sub-band for more efficient two-way FS use in the vicinity of MVPDs systems. FWCC/NSMA further contended that the combination of MVPDs' widespread geographic dispersion and high occupied bandwidth resulting from low-efficiency modulation effectively prevents FS use over the entire bandwidth. 15. The main difference between non-MVPD use and MVPD use is that the latter often utilizes analog video channels, which are typically six megahertz, and have a larger amplitude (peak power) at the location of the main video carrier. As a result, the power is not spread as evenly across the bandwidth as is the case for most non-MVPD operations. Typically, MVPDs also use several contiguous channels to backhaul their services whereas non-MVPD operators usually meet their needs with one or two channels. After taking these differences into account, however, we reject any claim that these operational differences preclude sharing given that MVPDs are required to coordinate with other service providers, and thus will not be able to uniformly block or otherwise interfere with other, non-MVPD licensees. Moreover, given MVPDs' “late arrival” to this band, they will only operate where the spectrum is still available, *i.e.* , can be coordinated with existing licensees. We also note that in the * Second Order on Reconsideration, * the Commission determined that if PCOs relocate to the 12.7-13.2 GHz and 17.7-18.3 GHz frequency bands, the geographic separation between the incumbent systems and the relocated PCOs would result in only rare instances where the frequency paths would intersect in a way that would require site shielding or other mitigating measures necessary to prevent mutually unacceptable interference. As such, the Commission determined in the *Second Order on Reconsideration* that MVPDs could relocate to either the CARS band (12.7-13.2 GHz) or to 17.7-18.3 GHz. In view of these prior determinations in the allocation proceeding, we conclude that it is not within the scope of the instant service-rules proceeding to reconsider wholesale determinations regarding acceptable designations of terrestrial operations for these bands made in IB Docket No. 98-172. In this connection, we note that Alcatel and FWCC/NSMA subsequently informed the Commission that they no longer oppose expanding 18 GHz spectrum for final video links. As such, and in accordance with the determination made in IB Docket No. 98-172 that terrestrial users, *e.g.* , MVPDs and other FS users, could and would share portions of the terrestrial 18 GHz band, we are adopting the proposal in the *NPRM* to allow the 17.8-18.3 GHz sub-band to be used for the final radio frequency link to distribute video. 3. MVPD Designation at 17.7-17.8 GHz 16. *MVPD Designation at 17.7-17.8 GHz.* As noted, the *NPRM* did not propose to designate for MVPDs the one-hundred megahertz of spectrum at 17.7-17.8 GHz, which is allocated on a shared, co-primary basis to FS (parts 74, 78, and 101) and FSS (Earth-to-space), with the FSS allocation limited to feeder links for broadcasting satellite service. 10 Coordination is required between FS and FSS because there is a potential for interference from FSS uplinks into receiving FS facilities. IMCC contends, however, that to have a reasonably cost effective transmission solution to compete with large telecommunications and cable companies, PCOs need access to the full 600 megahertz of spectrum contemplated for MVPDs in the *CARS Eligibility Order* and the *Second Order on Reconsideration* . This appears to be a reasonable assertion as cable systems usually use 550 MHz or more of spectrum. Moreover, in a particular location, even the full 600 megahertz may not be available contiguously due to the presence of other users. 11 Additionally, we acknowledge IMCC's point that the OET CARS Study (the Study) that found sufficient capacity (in the 12 GHz and the terrestrial 18 GHz bands) to accommodate the relocation of terrestrial licensees adopted in IB Docket No. 98-172 included the 100 megahertz of spectrum at 17.7-17.8 GHz. 10 *See* 47 CFR 2.106 (Table of Allocations) and US Footnote 271. 11 “Access to the full 600 [megahertz at] 17.7-18.3 GHz is necessary * * * if PCOs are to have * * * any chance of managing the ‘patchwork quilt’ of unblocked and blocked frequencies * * * as PCO services grow * * * and PCOs are forced to abandon use of the 18.3-18.58 band.” IMCC Reply Comments at 7. 17. As noted above, some commenters initially objected to use of spectrum below 18.142 MHz by video providers but these objections were subsequently withdrawn. IMCC has persuaded us that providing MVPDs access to the full 600 megahertz of spectrum, as contemplated in the OET CARS Band Study, is necessary and appropriate to promote competition in the video distribution industry. 4. Protection of Federal Government Operations Near Denver, CO, and Washington, DC 18. On March 3, 2006, the National Telecommunications and Information Administration
(NTIA)filed a letter with the Commission in this proceeding stating concerns with the possibility of harmful interference to a limited number of Federal Government earth station facilities near Denver, Colorado and Washington, DC, from MVPD operations in the 17.7-17.8 GHz sub-band. 12 12 *See* Letter from Fredrick R. Wentland, Associate Administrator, Office of Spectrum Management, NTIA, U.S. Department of Commerce, to Julius Knapp, Deputy Chief, Office of Engineering and Technology, FCC, dated March 3, 2006 ( *NTIA Letter* ). NTIA explains that while the rechannelization proposed in the *18 GHz Rechannelization Notice* would not adversely impact Federal operations, comments in this proceeding from the fixed services community request that the Commission allow MVPD operations in the 17.7-17.8 GHz band. *NTIA Letter* at 1. 19. NTIA requests that if the Commission chooses to permit MVPDs in the band, the Commission extend protection of these receiving Federal Government earth stations to the band 17.7-17.8 GHz in the geographic areas identified in § 1.924(e) of the Commission's rules for the 17.8-20.2 GHz band. 13 NTIA avers that this result would be implemented with minimum impact on MVPDs through the adoption of the following footnote to the Table of Allocations, 47 CFR 2.106, and the implementation of associated changes to existing rules in parts 1, 74, and 78, and § 101.31, the last by extending to MVPDs at 17.7-17.8 GHz the existing prohibition on the early commencement of operations at 17.8-19.7 GHz pending coordination with the Federal Government. 13 NTIA Leter at 1, n2. USXXX—In the band 17.7-17.8 GHz, Federal earth stations in the fixed-satellite service (space-to-Earth) may be authorized in the Denver, CO and Washington, DC areas on a primary basis. Before commencement of operations, non-Federal fixed service applications supporting Multichannel Video Programming Distributors
(MVPD)shall be coordinated through the Frequency Assignment Subcommittee of the Interdepartmental Radio Advisory Committee. 20. NTIA acknowledges that many fixed services with differing characteristics already operate in the band 17.7-17.8 GHz without coordination with the Federal Government earth stations in the specified locations. Accordingly, NTIA emphasizes that it does not seek to require coordination of fixed services already authorized in the band 17.7-17.8 GHz, for which coordination has not been previously required. 14 14 *Id.* at 2-3. 21. Based on the record before us, we find that adopting the protections that NTIA has requested would serve the public interest. We find that NTIA's request is a reasonable mechanism to protect Federal Government earth stations that may be authorized in the Denver Colorado, and Washington, D.C. areas. Accordingly, we make changes to parts 1, 2, 74, 78, and 101 of the Commission's rules to implement NTIA's request with respect to applications for new (or major modifications to existing) MVPD operations. In this regard, we acknowledge that the *NPRM* stated that rechannelization of Broadcast Auxiliary Services (part 74) and Cable Television Relay Service (part 78) spectrum, which share the terrestrial 18 GHz band with FS (part 101) would be addressed in a separate proceeding. The Commission also, however, gave notice that licensees in parts 74 and 78 could be affected because of the shared use of these terrestrial services. 15 Given the important public policy objective of protecting federal facilities from interference, we are implementing NTIA's proposal for the 17.7-17.8 GHz band for all three rule parts (parts 74, 78 and 101). 15 *See 18 GHz Rechannelization NPRM,* 19 FCC Rcd at 7265 paragraph 8. We also note that in the *Second Order on Reconsideration,* the Commission determined that MVPDs licensed under part 101 could relocate to specified bands that are administered under part 78 or part 101. 5. MVPD Flexibility at 17.7-18.3 GHz 22. In the *NPRM* , the Commission proposed rules permitting MVPD providers to use whatever size channels in contiguous spectrum that they deem necessary to accommodate analog or digital transmission techniques provided that they have properly coordinated the necessary emission designators and power criteria. 16 We adopt that proposal for the entire band 17.7-18.3 GHz for MVPD operators. 16 As required by 47 CFR 1.924(e), modification of an existing station license in this band which would change the frequency, power, emission, modulation, polarization, antenna height or directivity, or location of such a station, must be coordinated with the Federal Government by the Commission before an authorization will be issued. Compression techniques can be changed within certain emission designations without requiring an application. 23. Comsearch disagrees with the Commission's flexibility approach and states that cable television distribution and MVPDs are closely tied to a 6 megahertz channel plan. Comsearch contends that orderly spectrum management demands that a 6 megahertz channel plan should be added to this segment to accommodate MVPDs. Comsearch further states that PCOs and MVPDs could use either this 6 megahertz plan or any of the other plans (5 megahertz, 10 megahertz, etc.), but should not have total flexibility to use whatever channels and bandwidth they choose. 24. We are not persuaded that adopting a six megahertz plan is necessary. In furtherance of our spectrum management goals for the terrestrial 18 GHz band, we adopt rules for permitting MVPD providers to use contiguous blocks of spectrum in order to accommodate their video delivery needs. The Commission recognizes that a de-facto six-megahertz channelization scheme exists because the current availability of both analog and digital video processing equipment, in-home set-top boxes, and television sets is designed for six megahertz channels. However, we do believe that providing MVPDs with channel flexibility does not inhibit them from still operating within the existing, de-facto channelization scheme if they so choose. Adding operational flexibility to accommodate operators who wish to use alternate channel plans, should the opportunity or need arise, does not prevent the continued use of the six megahertz scheme and is therefore in the public interest. 6. 18.3-18.58 GHz 25. We find that it is in the public interest to adopt the proposal in the NPRM to retain the 18.3-18.58 GHz sub-band for grandfathered MVPDs given its adjacency to the 17.7-18.3 GHz band that we are designating for MVPDs today. 17 We believe this approach is appropriate because it preserves the status of the grandfathered terrestrial licensees in the 18.3-18.58 GHz sub-band and their ability to continue operating. Together with the 17.7-18.3 GHz band, this provides MVPDs with access to a total of 880 megahertz (17.7-18.58 GHz), albeit with 280 megahertz limited to grandfathered licensees that operate on a co-primary basis with FSS until 2012, after which they will operate on a non-protected and non-interfering basis to FSS. 17 The Commission decided in IB Docket No. 98-172 that no applications for new part 101 stations in the 18.3-18.58 GHz band would be accepted after November 19, 2002. Then-existing part 101 applications and licenses were grandfathered. 26. In furtherance of our spectrum management goals of encouraging efficient use of spectrum for the 18 GHz band, we adopt rules allowing emission and channelization flexibility from 18.3 to 18.58 GHz for MVPDs. We find that extending emission and channelization flexibility will allow MVPDs to efficiently use spectrum in this sub-band without causing unacceptably high levels of interference with other licensees; however, certain stations that remain co-primary [in the 18.3-19.3 GHz band] may not make modifications to their systems that increase interference to satellite earth stations, or result in a facility that would be more costly to relocate. In the event that a FSS licensee intends to turn on a system within interference range of the incumbent licensee, the incumbent licensee would have to cease operations or relocate in accordance with our rules. Also, incumbent licensees are cautioned that all major modifications and certain extensions of existing systems will render those links secondary to FSS operations pursuant to § 101.97(a) of the Commissions rules. We believe that providing emission and channelization flexibility in the 18.3 to 18.58 GHz segment, in conjunction with flexible usage rules for the 17.7-18.3 GHz band, will give MVPD licensees access to large blocks of spectrum to more effectively provide video services in an efficient manner for the duration of their grandfathered status. We note that IMCC filed comments supporting our proposal to extend flexible use to the 18.3-18.58 GHz sub-band. We conclude, based on the evidence available in the record, and the amount of spectrum available to MVPDs licensees, that such changes are necessary to fully effectuate the Commission's efforts to provide MVPD licensees additional operational flexibility and increased access to the terrestrial 18 GHz band. 7. Streamlined Process for MVPD Conversion to Digital Modulation 27. In furtherance of our goals to provide regulatory relief to licensees transitioning to the 18 GHz band and encourage efficient use of spectrum, we conclude that MVPD licensees should have flexibility to move from analog to digital emissions, choose the size of each channel, and use whatever compression techniques they wish. Our licensing records reflect that most of the MVPD operations subject to relocation are analog systems. As discussed above, we anticipate that many of these systems will convert to digital either at the end of their analog-equipment lifecycle or in response to market incentives. In this connection, we are concerned that MVPDs that must relocate prior to converting to digital could incur significant, duplicative costs associated with the coordination and licensing process for
(1)spectral relocation and, later,
(2)for digital conversion. To minimize the potential for duplicative costs, we conclude that MVPD licensees should have the option to specify analog and digital emission designators (each of which must be coordinated) on one application. In this connection, we are adopting a revision to § 101.63 of the Commission's rules to allow MVPD licensees to meet their construction requirement and not automatically surrender their license as long as they are operating a system using either an authorized analog or digital emissions. Accordingly, such MVPD licensees will be authorized to operate using one or both modulations, *e.g.,* the licensee can operate its analog system and later convert to digital without having to file another, coordinated application. Once the licensee has completed the transition to digital, the license can remove the unused analog emission designator(s) the next time a modification or renewal application is filed. 18 In adopting these measures we reduce the regulatory burden on licensees and encourage flexible and more efficient use of spectrum. 18 Construction of any authorized facility or frequency must be completed by the date specified in the license as pursuant to § 1.946. IV. Procedural Matters 28. Final Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis
(IRFA)was incorporated in the *NPRM* in WT Docket 04-143. The Commission sought written public comment on the proposals in the *NPRM,* including comment on the IRFA. This present Final Regulatory Flexibility Analysis
(FRFA)conforms to the RFA. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this *Report and Order,* including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A. Need for, and Objectives of, the Report and Order *In this Report and Order,* we revise our rules to reduce regulatory burdens for 18 GHz band terrestrial Fixed Microwave Services
(FS)licensees that are subject to involuntary relocation from the 18.3-19.3 GHz band pursuant to the Commission's reallocation of that band for exclusive satellite services use in IB Docket No. 98-172. These FS licensees will relocate to spectrum at 17.7-18.3 GHz and 19.3-19.7 GHz, where part 101 currently designates channel sizes that are too large relative to the needs of some relocating point-to-point microwave licensees and too small relative to the needs of relocating private cable operators
(PCOs)and other multichannel video programming distributors (MVPDs). The instant *Report and Order* revises the rules to add new channel sizes in both bands along with special rules for MVPDs within the 17.7-18.3 GHz band, thereby facilitating the relocation. Specifically, we adopt a revised band plan for the FS paired and unpaired spectrum at 17.7-18.3 GHz and 19.3-19.7 GHz, consisting of a variety of channel bandwidths, primarily by adding narrower bandwidths and a block of unpaired spectrum from 17.7-17.74 GHz. In addition, we designate a contiguous 600 megahertz block of one-way spectrum from 17.7-18.3 GHz for use by MVPDs, who will have flexibility within this block to determine the appropriate bandwidths and other technical parameters of their MVPD operations. We also provide channel flexibility to grandfathered MVPDs in the 18.3-18.58 GHz band, which was previously designated for non-primary use by MVPDs. In the 17.7-17.8 GHz band, we protect Federal earth stations in the fixed-satellite service (space-to-Earth) that may be authorized in Denver, Colorado, and Washington, D.C., and require all MVPD applications (under parts 74, 78, or 101) within the 17.7-17.8 GHz band near those areas to be coordinated with the Federal Government by the Commission before an authorization will be issued. B. Summary of Significant Issues Raised by Public Comments in Response to the Supplemental IRFA There were no comments filed that specifically addressed the rules and policies proposed in the IRFA. C. Description and Estimate of the Number of Small Entities to Which Rules Will Apply The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of entities that will be affected by the rules. The RFA defines “small entity” as having the same meaning as the term “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act, unless the Commission has developed one or more definitions that are appropriate to its activities. Under the Small Business Act, a “small business concern” is one that:
(1)Is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)meets any additional criteria established by the Small Business Administration (SBA). *Fixed Microwave Services:* The rechannelization will affect all common carrier and private operational fixed microwave licensees who are authorized under Part 101 of the Commission's rules for use of the 18 GHz spectrum. Microwave services include common carrier, private-operational fixed, and broadcast auxiliary radio services. At present, there are approximately 36,708 common carrier fixed licensees and 59,291 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not yet defined a small business with respect to microwave services. For purposes of the FRFA, we will use the SBA's definition applicable to Cellular and other Wireless Telecommunications companies— *i.e.* , an entity with no more than 1,500 persons. According to Census Bureau data for 1997, there were 977 firms in this category, total, that operated for the entire year. Of this total, 965 firms had employment of 999 or fewer employees, and an additional twelve firms had employment of 1,000 employees or more. Thus, under this size standard, a majority of firms can be considered small. We note that the number of firms does not necessarily track the number of licensees. We estimate that all of the fixed microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition. *Small MVPDs:* SBA has developed a small business size standard for cable and other program distribution services, which includes all such companies generating $13.0 million or less in revenue annually. This category includes, among others, cable operators, direct broadcast satellite (“DBS”) services, home satellite dish (“HSD”) services, multipoint distribution services (“MDS”), multichannel multipoint distribution service (“MMDS”), Instructional Television Fixed Service (“ITFS”), local multipoint distribution service (“LMDS”), satellite master antenna television (“SMATV”) systems and open video systems (“OVS”). According to the Bureau of Census, there were 1,311 total cable and other pay television service firms that operate throughout the year of which 1,180 have less than $10 million in revenue. We will address each service individually to provide as precise of an estimate of small entities as available data allows. *Cable Operator:* The Commission has developed, with SBA's approval, its own definition of a small cable system operator for the purposes of rate regulation. Under the Commission's rules, a “small cable company,” is one serving fewer than 400,000 subscribers nationwide. Based on our most recent information, we last estimated that there were 1,439 cable operators that qualified as small cable companies. Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, we estimate that there are fewer than 1,439 small entity cable system operators that may be affected by the decisions and rules adopted in this *Report and Order* . The Communications Act of 1934, as amended (Communications Act), also contains a definition of a small cable system operator, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that there are 68,500,000 subscribers in the United States. Therefore, we found that an operator serving fewer than 685,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that the number of cable operators serving 677,000 subscribers or less totals 1,450. Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act. *Multichannel Multipoint Distribution Service (“MMDS”):* MMDS Systems, often referred to as “wireless cable,” transmit video programming to subscribers using microwave frequencies. In connection with the 1996 MMDS auction, the Commission defined small businesses as entities that had annual average gross revenues of less than $40 million in the previous three calendar years. This definition of a small entity in the context of MDS auctions has been approved by the SBA. The MDS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (“BTAs”). Of the 67 auction winners, 61 met the definition of a small business. Information available to us indicates that no MMDS facility generates revenue in excess of $11 million annually. We conclude that there are approximately 1634 small MMDS providers as defined by the SBA and the Commission's auction rules. *Satellite Master Antenna Television (“SMATV”) Systems:* The SBA definition of small entities for cable and other program distribution services includes SMATV services and, thus, small entities are defined as all such companies generating $13.0 million or less in annual receipts. Industry sources estimate that approximately 5,200 SMATV operators were providing service as of December 1995. Other estimates indicate that SMATV operators serve approximately 1.5 million residential subscribers as of July 2001. The best available estimates indicate that the largest SMATV operators serve between 15,000 and 55,000 subscribers each. Most SMATV operators serve approximately 3,000-4,000 customers. Because these operators are not rate regulated, they are not required to file financial data with the Commission. Furthermore, we are not aware of any privately published financial information regarding these operators. Based on the estimated number of operators and the estimated number of units served by the largest ten SMATVs, we believe that a substantial number of SMATV operators qualify as small entities. *Open Video Systems (“OVS”):* Because OVS operators provide subscription services, OVS falls within the SBA-recognized definition of cable and other program distribution services. This definition provides that a small entity is one with $13.0 million or less in annual receipts. The Commission has certified 25 OVS operators with some now providing service. Affiliates of Residential Communications Network, Inc.
(RCN)received approval to operate OVS systems in New York City, Boston, Washington, DC and other areas. RCN has sufficient revenues to assure us that they do not qualify as small business entities. Little financial information is available for the other entities authorized to provide OVS service but have not yet begun to generate revenues, we conclude that at least some of the OVS operators qualify as small entities. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements Under the decisions contained in the *Report and Order* , we are effecting a change wherein we will allow 18 GHz band applicants to operate on spectrum utilizing different bandwidth channels in addition to the ones already in existence. The decisions do not include any changes in the language of FCC Forms nor do they require extra filings. We are also allowing certain flexibility for some future modifications to be achieved without the necessity of filing further applications. To protect Federal Government earth stations that may be authorized in the Denver, Colorado, and Washington, DC, areas, we adopt provisions requested by the National Telecommunications and Information Administration
(NTIA)whereby the Commission will coordinate through the Frequency Assignment Subcommittee of the Interdepartment Radio Advisory Committee
(IRAC)applications in the 17.7-17.8 GHz band for MVPD operations. E. Steps Taken To Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others):
(1)The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities;
(3)the use of performance, rather than design, standards; and
(4)an exemption from coverage of the rule, or any part thereof, for small entities. In this *Report and Order* , we revise our rules to reduce regulatory burdens for 18 GHz band terrestrial FS licensees that are subject to involuntary relocation from the 18.3-19.3 GHz band pursuant to the Commission's reallocation of that band for exclusive satellite services use in IB Docket No. 98-172. These FS licensees will relocate to spectrum at 17.7-18.3 GHz and 19.3-19.7 GHz, where part 101 currently designates channel sizes that are too large relative to the needs of some relocating point-to-point microwave licensees and too small relative to the needs of relocating PCOs and other MVPDs. The instant *Report and Order* revises the rules to add new channel sizes in both bands along with special rules for MVPDs within the 17.7-18.3 GHz band, thereby facilitating the relocation. Specifically, we adopt a revised band plan for the FS paired and unpaired spectrum at 17.7-18.3 GHz and 19.3-19.7 GHz, consisting of a variety of channel bandwidths, primarily by adding narrower bandwidths, and a block of unpaired spectrum from 17.7-17.74 GHz. In addition, we permit applicants to request any amount of spectrum available based on their specific needs. We find that this flexibility will promote the more efficient use of the terrestrial 18 GHz band by allowing FS licensees to request the amount of spectrum that they need, rather than having to request larger bandwidth channels or seek a waiver of the Commission's rules. The additional flexibility and the elimination of the regulatory burden of seeking waivers will also promote small entities' access to spectrum for FS operations, both as relocating incumbents and as new entrants. Further, we find that permitting unpaired use by any FS licensee of the 17.7-17.74 GHz sub-band will provide additional opportunities for small entities to access spectrum. Moreover, licensees will be permitted to pair channels in the 17.7-17.74 GHz sub-band with other channels in the terrestrial 18 GHz band. In addition, the *Report and Order* designates a contiguous 600 megahertz block of one-way spectrum from 17.7-18.3 GHz for use by MVPDs, who will have flexibility within such block to determine the appropriate bandwidths and other technical parameters of their MVPD operations. Although the Commission originally proposed to designate only a 500 megahertz block for use by MVPDs, we conclude in this *Report and Order* that the additional 100 megahertz of spectrum will offer small entities a reasonably cost effective transmission solution to compete with large telecommunications and cable companies. In this *Report and Order* , we also provide channel flexibility to grandfathered MVPDs in the 18.3-18.58 GHz band, which was previously designated for non-primary use by MVPDs. Specifically, we find that it is in the public interest to adopt the proposal in the *NPRM* to retain the 18.3-18.58 GHz sub-band for grandfathered MVPDs given its adjacency to the 17.7-18.3 GHz band that we are designating for MVPDs today. We believe this approach is appropriate because it preserves the status of the grandfathered terrestrial licensees in the 18.3-18.58 GHz sub-band, many of which are small entities. We also adopt a requirement that all MVPD applications (under parts 74, 78, or 101) seeking authority to operate in the 17.7-17.8 GHz band near Denver, Colorado, and Washington, DC be coordinated with the Federal Government by the Commission before an authorization will be issued in order to protect government satellite operations in those areas. The Commission considered requiring applicants to coordinate their applications directly with IRAC at the same time of filing their applications with the Commission. However, we find that it may be less burdensome on small entities if the Commission were to coordinate the applications through IRAC rather than requiring applicants to do so. In addition, we sought to minimize the potential burden on all entities by limiting both the scope of operations and geographical areas that will be subject to this requirement. F. Report to Congress 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). 29. *Paperwork Reduction Analysis.* This Report and Order does not contain either a proposed or modified information collection. List of Subjects 47 CFR Part 1 Administrative practice and procedure, Communications common carriers, Environmental impact statements, Radio, Reporting and recordkeeping requirements, Telecommunications. 47 CFR Part 2 Communications equipment, Radio, Reporting and recordkeeping requirements, Telecommunications, Television, Wiretapping and electronic surveillance. 47 CFR Part 74 Communications equipment, Education, Radio, Reporting and recordkeeping requirements, Research, Television. 47 CFR Part 78 Cable television, Communications equipment, Radio, Reporting and recordkeeping requirements. 47 CFR Part 101 Communications equipment, Radio, Reporting and recordkeeping requirements. Federal Communications Commission. Marlene H. Dortch, Secretary. Final Rules For the reasons discussed in the preamble, the Federal Communications Commission hereby amends 47 CFR parts 1, 2, 74, 78, and 101 as follows: PART 1—PRACTICE AND PROCEDURE 1. The authority citation for part 1 continues to read as follows: Authority: 15 U.S.C. 79 *et seq.* ; 47 U.S.C. 151, 154(i), 154(j), 155, 157, 225, and 303(r). 2. Section 1.924 is amended by adding a new paragraph (e)(4) to read as follows: § 1.924 Quiet zones.
(e)* * *
(4)In the band 17.7-17.8 GHz, fixed service applications, under parts 74, 78, or 101 of this chapter, supporting Multichannel Video Programming Distributors shall be coordinated with the Federal Government by the Commission before an authorization will be issued if the station or proposed station is located in whole or in part within any of the areas defined in paragraphs (e)(1) or (e)(2) of this section. PART 2—FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS 3. The authority citation for part 2 continues to read as follows: Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted. 4. Section 2.106, the Table of Frequency Allocations, is amended as follows: a. Revise page 49. b. In the list of United States
(US)footnotes, add footnote US401. § 2.106 Table of Frequency Allocations. The revisions and additions read as follows: BILLING CODE 6712-01-P ER29NO06.000 BILLING CODE 6712-01-C UNITED STATES
(US)FOOTNOTES US401 In the band 17.7-17.8 GHz, Federal earth stations in the fixed-satellite service (space-to-Earth) may be authorized in the Denver, CO and Washington, DC areas on a primary basis. Before commencement of operations, non-Federal fixed service applications supporting Multichannel Video Programming Distributors
(MVPD)shall be coordinated through the Frequency Assignment Subcommittee of the Interdepartment Radio Advisory Committee. PART 74—EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER PROGRAM DISTRIBUTIONAL SERVICES 5. The authority citation for part 74 continues to read as follows: Authority: 47 U.S.C. 154, 303, 307, 336(f), 336(h) and 554. 6. Section 74.25 is amended by revising paragraph
(3)to read as follows: § 74.25 Temporary conditional operating authority.
(c)* * *
(3)If operated on frequencies in the 17.8-19.7 GHz band for any services or on frequencies in the 17.7-17.8 GHz band for MVPD operations, the station site does not lie within any of the areas identified in § 1.924 of this chapter. 7. Section 74.32 is revised to read as follows: § 74.32 Operation in the 17.7-17.8 GHz and 17.8-19.7 GHz bands.
(a)To minimize or avoid harmful interference to Federal Government Satellite Earth Stations located in the Denver, Colorado and Washington, DC areas, any application for a new station license to provide MVPD operations in the 17.7-17.8 GHz band or to operate in the 17.8-19.7 GHz band for any service, or for modification of an existing station license in these bands which would change the frequency, power, emission, modulation, polarization, antenna height or directivity, or location of such a station, must be coordinated with the Federal Government by the Commission before an authorization will be issued, if the station or proposed station is located in whole or in part within any of the areas defined by the following rectangles or circles: Denver, CO Area Rectangle 1: 41°30′00″ N. Lat. on the north 103°10′00″ W. Long. on the east 38°30′00″ N. Lat. on the south 106°30′00″ W. Long. on the west Rectangle 2: 38°30′00″ N. Lat. on the north 105°00′00″ W. Long. on the east 37°30′00″ N. Lat. on the south 105°50′00″ W. Long. on the west Rectangle 3: 40°08′00″ N. Lat. on the north 107°00′00″ W. Long. on the east 39°56′00″ N. Lat. on the south 107°15′00″ W. Long. on the west Washington, DC Area Rectangle: 38°40′00″ N. Lat. on the north 78°50′00″ W. Long. on the east 38°10′00″ N. Lat. on the south 79°20′00″ W. Long. on the west or
(b)Within a radius of 178 km of 38°48′00″ N. Lat./76°52′00″ W. Long.
(c)In addition, no application seeking authority for MVPD operations in the 17.7-17.8 GHz band or to operate in the 17.8-19.7 GHz band for any service will be accepted for filing if the proposed station is located within 20 km of the following coordinates: Denver, CO area: 39°43′00″ N. Lat./104°46′00″ W. Long. Washington, DC area: 38°48′00″ N. Lat./ 76°52′00″ W. Long. *Note to § 74.32:* The coordinates cited in this section are specified in terms of the “North American Datum of 1983 (NAD 83)” with an accuracy of 30 meters with respect to the “National Spacial Reference System”. PART 78—CABLE TELEVISION RELAY SERVICE 8. The authority citation for part 78 continues to read as follows: Authority: Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat., as amended, 1064, 1065, 1066, 1081, 1082, 1083, 1084, 1085; 47 U.S.C. 152, 153, 154, 301, 303, 307, 308, 309. 9. Section 78.19 is amended by revising paragraphs
(f)introductory text and (f)(2) introductory text to read as follows: § 78.19 Interference.
(f)Protection to the Federal Government's receive earth station operations in the Denver, Colorado and Washington D.C. areas in the 17,700 to 19,700 MHz band.
(2)To minimize or avoid harmful interference to Government Satellite Earth Stations located in the Denver, Colorado and Washington, DC areas, any application for a new station license for MVPD operations in the 17.7-17.8 GHz band or to operate in the 17.8-19.7 GHz band for any service, or for modification of an existing station license in these bands which would change the frequency, power, emission, modulation, polarization, antenna height or directivity, or location of such a station, must be coordinated with the Federal Government by the Commission before an authorization will be issued, if the station or proposed station is located in whole or in part within any of the areas defined by the following rectangles or circles: PART 101—FIXED MICROWAVE SERVICES 10. The authority citation for part 101 continues to read as follows: Authority: 47 U.S.C. 154, 303. 11. Section 101.31 is amended by revising paragraphs (a)(3) and (b)(1)(v) to read as follows: § 101.31 Temporary and conditional authorizations.
(a)* * *
(3)Operations in the 17.8-19.7 GHz band for any services and in the 17.7-17.8 GHz band for MVPD operations are prohibited in the areas defined in § 1.924 of this chapter. Operations proposed in the areas defined in § 1.924 of this chapter may not commence without prior specific notification to, and authorization from, the Commission.
(b)* * *
(1)* * *
(v)The station site does not lie within 56.3 kilometers of any international border, within areas identified in §§ 1.924(a) through
(d)of this chapter unless the affected entity consents in writing to conditional operation or, if for any services on frequencies in the 17.8-19.7 GHz band and for MVPD operations in the 17.7-17.8 GHz band, within any of the areas identified in § 1.924 of this chapter; 12. Section 101.63 is amended by adding paragraph
(g)to read as follows: § 101.63 Period of construction; certification of completion of construction.
(g)MVPD licensees which have both analog and digital emissions designators specified on the license and which already have, or may transition from analog to digital operations, or a combination of both, meet their completion of construction requirements and do not automatically surrender their license provided they are using either set of emissions. If the licensee has completed the transition to digital, the license can remove the unused analog emission designators the next time a modification or renewal application is filed. 13. Section 101.147 is amended by revising paragraph
(r)to read as follows: § 101.147 Frequency assignments.
(r)*17,700 to 19,700 and 24,250 to 25,250 MHz:* Operation of stations using frequencies in these bands is permitted to the extent specified in this paragraph. Until November 19, 2012, stations operating in the band 18.3-18.58 GHz that were licensed or had applications pending before the Commission as of November 19, 2002 shall operate on a shared co-primary basis with other services under parts 21, 25, 74, and 78 of this chapter. Until October 31, 2011, operations in the band 19.26-19.3 GHz and low power systems operating pursuant to paragraph (r)(10) of this section shall operate on a co-primary basis. Until June 8, 2010, stations operating in the band 18.58-18.8 GHz that were licensed or had applications pending before the Commission as of June 8, 2000 may continue those operations on a shared co-primary basis with other services under parts 21, 25, 74, and 78 of this chapter. Until June 8, 2010, stations operating in the band 18.8-19.3 GHz that were licensed or had applications pending before the Commission as of September 18, 1998 may continue those operations on a shared co-primary basis with other services under parts 21, 25, 74, and 78 of this chapter. After November 19, 2012, stations operating in the band 18.3-18.58 GHz are not entitled to protection from fixed-satellite service operations and must not cause unacceptable interference to fixed-satellite service station operations. After June 8, 2010, operations in the 18.58-19.30 GHz band are not entitled to protection from fixed-satellite service operations and must not cause unacceptable interference to fixed-satellite service station operations. After November 19, 2002, no applications for new stations for 47 CFR part 101 licenses will be accepted in the 18.3-18.58 GHz band. After June 8, 2000, no applications for new stations for 47 CFR part 101 licenses will be accepted in the 18.58-19.3 GHz band. Licensees, except 24 GHz band licensees, may use either a two-way link or one frequency of a frequency pair for a one-way link and must coordinate proposed operations pursuant to the procedures required in § 101.103 of this subpart. (Note, however, that stations authorized as of September 9, 1983, to use frequencies in the band 17.7-19.7 GHz may, upon proper application, continue to be authorized for such operations, consistent with the above conditions related to the 18.58-19.3 GHz band.) Applicants for one-way spectrum from 17.7-18.58 GHz for multichannel video programming distribution are governed by paragraph (r)(6) of this section. Licensees are also allowed to use one-way (unpaired) channels in the 17.7-17.74 GHz sub-band to pair with other channels in the FS portions of the 18 GHz band where, for example, the return pair is already in use and therefore blocked or in TDD systems. Stations used for MVPD operations in the 17.7-17.8 GHz band must coordinate with the Federal Government before operating in the zones specified in § 1.924(e) of this chapter.
(1)1.25 Megahertz maximum authorized bandwidth channels: Transmit (receive)
(MHz)Receive (transmit)
(MHz)17700.625 NA 17701.875 NA 17703.125 NA 17704.375 NA 17705.625 NA 17706.875 NA 17708.125 NA 17709.375 NA 17710.625 NA 17711.875 NA 17713.125 NA 17714.375 NA 17715.625 NA 17716.875 NA 17718.125 NA 17719.375 NA 17721.625 NA 17722.875 NA 17723.125 NA 17724.375 NA 17725.625 NA 17726.875 NA 17728.125 NA 17729.375 NA 17730.625 NA 17731.875 NA 17733.125 NA 17734.375 NA 17735.625 NA 17736.875 NA 17738.125 NA 17739.375 NA 18060.625 19620.625 18061.875 19621.875 18063.125 19623.125 18064.375 19624.375 18065.625 19625.625 18066.875 19626.875 18068.125 19628.125 18069.375 19629.375 18070.625 19630.625 18071.875 19631.875 18073.125 19633.125 18074.375 19634.375 18075.625 19635.625 18076.875 19636.875 18078.125 19638.125 18079.375 19639.375 18080.625 19640.625 18081.875 19641.875 18083.125 19643.125 18084.375 19644.375 18085.625 19645.625 18086.875 19646.875 18088.125 19648.125 18089.375 19649.375 18090.625 19650.625 18091.875 19651.875 18093.125 19653.125 18094.375 19654.375 18095.625 19655.625 18096.875 19656.875 18098.125 19658.125 18099.375 19659.375 18100.625 19660.625 18101.875 19661.875 18103.125 19663.125 18104.375 19664.375 18105.625 19665.625 18106.875 19666.875 18108.125 19668.125 18109.375 19669.375 18110.625 19670.625 18111.875 19671.875 18113.125 19673.125 18114.375 19674.375 18115.625 19675.625 18116.875 19676.875 18118.125 19678.125 18119.375 19679.375 18120.625 19680.625 18121.875 19681.875 18123.125 19683.125 18124.375 19684.375 18125.625 19685.625 18126.875 19686.875 18128.125 19688.125 18129.375 19689.375 18130.625 19690.625 18131.875 19691.875 18133.125 19693.125 18134.375 19694.375 18135.625 19695.625 18136.875 19696.875 18138.125 19698.125 18139.375 19699.375
(2)2 Megahertz maximum authorized bandwidth channel: Transmit (receive)
(MHz)Receive (transmit)
(MHz)18141.0 N/A
(3)2.5 Megahertz maximum authorized bandwidth channels: Transmit (receive)
(MHz)Receive (transmit)
(MHz)17701.25 N/A 17703.75 N/A 17706.25 N/A 17708.75 N/A 17711.25 N/A 17713.75 N/A 17716.25 N/A 17718.75 N/A 17721.25 N/A 17723.75 N/A 17726.25 N/A 17728.75 N/A 17731.25 N/A 17733.75 N/A 17736.25 N/A 17738.75 N/A 18061.25 19621.25 18063.75 19623.75 18066.25 19626.25 18068.75 19628.75 18071.25 19631.25 18073.75 19633.75 18076.25 19636.25 18078.75 19638.75 18081.25 19641.25 18083.75 19643.75 18086.25 19646.25 18088.75 19648.75 18091.25 19651.25 18093.75 19653.75 18096.25 19656.25 18098.75 19658.75 18101.25 19661.25 18103.75 19663.75 18106.25 19666.25 18108.75 19668.75 18111.25 19671.25 18113.75 19673.75 18116.25 19676.25 18118.75 19678.75 18121.25 19681.25 18123.75 19683.75 18126.25 19686.25 18128.75 19688.75 18131.25 19691.25 18133.75 19693.75 18136.25 19696.25 18138.75 19698.75
(4)5 Megahertz maximum authorized bandwidth channels: Transmit (receive)
(MHz)Receive (transmit)
(MHz)340 Megahertz Separation (* channels are no longer available on a primary basis) 18762.5* 19102.5* 18767.5* 19107.5* 18772.5* 19112.5* 18777.5* 19117.5* 18782.5* 19122.5* 18787.5* 19127.5* 18792.5* 19132.5* 18797.5* 19137.5* 18802.5* 19142.5* 18807.5* 19147.5* 18812.5* 19152.5* 18817.5* 19157.5*
(5)5 Megahertz maximum authorized bandwidth channels: Transmit (receive)
(MHz)Receive (transmit)
(MHz)1560 Megahertz Separation 17702.5 N/A 17707.5 N/A 17712.5 N/A 17717.5 N/A 17722.5 N/A 17727.5 N/A 17732.5 N/A 17737.5 N/A 18062.5 19622.5 18067.5 19627.5 18072.5 19632.5 18077.5 19637.5 18082.5 19642.5 18087.5 19647.5 18092.5 19652.5 18097.5 19657.5 18102.5 19662.5 18107.5 19667.5 18112.5 19672.5 18117.5 19677.5 18122.5 19682.5 18127.5 19687.5 18132.5 19692.5 18137.5 19697.5
(6)MVPD use: Multichannel video programming distributors (MVPDs) can use any size channels for one-way operations in the 17.7-18.58 GHz band for any permissible communications specified for this band in § 101.603 provided that they have coordinated the appropriate emission designators and power, but must request contiguous spectrum (minus spectrum that is already licensed or prior coordinated in the area and thus blocked). MVPD systems must meet the efficiency requirements of § 101.141. Spectrum at 18.3-18.58 GHz is only available for grandfathered stations. See § 101.85.
(7)10 Megahertz maximum authorized bandwidth channels: Transmit (receive)
(MHz)Receive (transmit)
(MHz)1560 Megahertz Separation (* channels are no longer available on a primary basis) 17705.0 19265.0* 17715.0 19275.0* 17725.0 19285.0* 17735.0 19295.0* 17745.0 19305.0 17755.0 19315.0 17765.0 19325.0 17775.0 19335.0 17785.0 19345.0 17795.0 19355.0 17805.0 19365.0 17815.0 19375.0 17825.0 19385.0 17835.0 19395.0 17845.0 19405.0 17855.0 19415.0 17865.0 19425.0 17875.0 19435.0 17885.0 19445.0 17895.0 19455.0 17905.0 19465.0 17915.0 19475.0 17925.0 19485.0 17935.0 19495.0 17945.0 19505.0 17955.0 19515.0 17965.0 19525.0 17975.0 19535.0 17985.0 19545.0 17995.0 19555.0 18005.0 19565.0 18015.0 19575.0 18025.0 19585.0 18035.0 19595.0 18045.0 19605.0 18055.0 19615.0 18065.0 19625.0 18075.0 19635.0 18085.0 19645.0 18095.0 19655.0 18105.0 19665.0 18115.0 19675.0 18125.0 19685.0 18135.0 19695.0 340 Megahertz Separation 18585.0* 18925.0* 18595.0* 18935.0* 18605.0* 18945.0* 18615.0* 18955.0* 18625.0* 18965.0* 18635.0* 18975.0* 18645.0* 18985.0* 18655.0* 18995.0* 18665.0* 19005.0* 18675.0* 19015.0* 18685.0* 19025.0* 18695.0* 19035.0* 18705.0* 19045.0* 18715.0* 19055.0* 18725.0* 19065.0* 18735.0* 19075.0* 18745.0* 19085.0* 18755.0* 19095.0* 18765.0* 19105.0* 18775.0* 19115.0* 18785.0* 19125.0* 18795.0* 19135.0* 18805.0* 19145.0* 18815.0* 19155.0*
(8)20 Megahertz maximum authorized bandwidth channels: Transmit (receive)
(MHz)Receive (transmit)
(MHz)1560 Megahertz Separation (* channels are no longer available on a primary basis) 17710.0 19270.0* 17730.0 19290.0* 17750.0 19310.0 17770.0 19330.0 17790.0 19350.0 17810.0 19370.0 17830.0 19390.0 17850.0 19410.0 17870.0 19430.0 17890.0 19450.0 17910.0 19470.0 17930.0 19490.0 17950.0 19510.0 17970.0 19530.0 17990.0 19550.0 18010.0 19570.0 18030.0 19590.0 18050.0 19610.0 18070.0 19630.0 18090.0 19650.0 18110.0 19670.0 18130.0 19690.0 340 Megahertz Separation 18590.0* 18930.0* 18610.0* 18950.0* 18630.0* 18970.0* 18650.0* 18990.0* 18670.0* 19010.0* 18690.0* 19030.0* 18710.0* 19050.0* 18730.0* 19070.0* 18750.0* 19090.0* 18770.0* 19110.0* 18790.0* 19130.0* 18810.0* 19150.0*
(9)30 Megahertz maximum authorized bandwidth channels: Transmit (receive)
(MHz)Receive (transmit)
(MHz)1560 Megahertz Separation 17715.0 N/A 17755.0 19315.0 17785.0 19345.0 17815.0 19375.0 17845.0 19405.0 17875.0 19435.0 17905.0 19465.0 17935.0 19495.0 17965.0 19525.0 17995.0 19555.0 18025.0 19585.0 18055.0 19615.0 18085.0 19645.0 18115.0 19675.0
(10)40 Megahertz maximum authorized bandwidth channels: Transmit (receive)
(MHz)Receive (transmit)
(MHz)1560 Megahertz Separation (* channels are no longer available on a primary basis) 17720.0 19280.0* 17760.0 19320.0 17800.0 19360.0 17840.0 19400.0 17880.0 19440.0 17920.0 19480.0 17960.0 19520.0 18000.0 19560.0 18040.0 19600.0 18080.0 19640.0 18120.0 19680.0
(11)50 Megahertz maximum authorized bandwidth channels: Transmit (receive)
(MHz)Receive (transmit)
(MHz)1560 Megahertz Separation 17765.0 19325.0 17815.0 19375.0 17865.0 19425.0 17915.0 19475.0 17965.0 19525.0 18015.0 19575.0 18065.0 19625.0 18115.0 19675.0
(12)80 Megahertz maximum authorized bandwidth channels: Transmit (receive)
(MHz)Receive (transmit)
(MHz)1560 Megahertz Separation (* channels are no longer available on a primary basis) 17740.0 19300.0* 17820.0 19380.0 17900.0 19460.0 17980.0 19540.0 18060.0 19620.0
(13)The following frequencies on channels 35-39 are available for point-to-multipoint systems and are available by geographic area licensing in the 24 GHz Service to be used as the licensee desires. The 24 GHz spectrum can be aggregated or disaggregated and does not have to be used in the transmit/receive manner shown except to comply with international agreements along the U.S. borders. Channels 35 through 39 are licensed in the 24 GHz Service by Economic Areas for any digital fixed service. Channels may be used at either nodal or subscriber station locations for transmit or receive but must be coordinated with adjacent channel and adjacent area users in accordance with the provisions of § 101.509 of this subpart. Stations also must comply with international coordination agreements. Channel No. Nodal station frequency band
(MHz)limits User station frequency band
(MHz)limits (* channels are no longer available on a primary basis) 25 18,820-18,830 19,160-19,170* 26 18,830-18,840 19,170-19,180* 27 18,840-18,850 19,180-19,190* 28 18,850-18,860 19,190-19,200* 29 18,860-18,870 19,200-19,210* 30 18,870-18,880 19,210-19,220* 31 18,880-18,890 19,220-19,230* 32 18,890-18,900 19,230-19,240* 33 18,900-18,910 19,240-19,250* 34 18,910-18,920 19,250-19,260* 35 24,250-24,290 25,050-25,090 36 24,290-24,330 25,090-25,130 37 24,330-24,370 25,130-25,170 38 24,370-24,410 25,170-25,210 39 24,410-24,450 25,210-25,250
(14)*Special provision for low power systems in the 17,700-19,700 MHz band:* Notwithstanding other provisions in 47 CFR part 101 and except for specified areas around Washington, DC, and Denver, Colorado, licensees of point-to-multipoint channel pairs 25-29 identified in paragraph (r)(13) of this section may continue to operate in accordance with the requirements of § 101.85 and may operate multiple low power transmitting devices within a defined service area. Operations are prohibited within 55 km when used outdoor and within 20 km when used indoor of the coordinates 38 deg.48′ N/76 deg.52′ W (Washington, DC area) and 39 deg.43′ N/104 deg.46′ W (Denver, Colorado area). The service area will be a 28 kilometer omni directional radius originating from specified center reference coordinates. The specified center coordinates must be no closer than 56 kilometers from any co-channel nodal station or the specified center coordinates of another co-channel system. Applicants/licensees do not need to specify the location of each individual transmitting device operating within their defined service areas. Such operations are subject to the following requirements on the low power transmitting devices:
(i)Power must not exceed one watt EIRP and 100 milliwatts transmitter output power;
(ii)A frequency tolerance of 0.001% must be maintained; and
(iii)The mean power of emissions shall be attenuated in accordance with the following schedule:
(A)In any 4 kHz band, the center frequency of which is removed from the center frequency of the assigned channel by more than 50 percent of the channel bandwidth and is within the bands 18,820-18,870 MHz or 19,160-19,210 MHz: A = 35 + .003 (F−0.5B) dB or, 80 dB (whichever is the lesser attenuation). Where: A = Attenuation (in decibels) below output power level contained within the channel for a given polarization. B = Bandwidth of channel in kHz. F = Absolute value of the difference between the center frequency of the 4 kHz band measured at the center frequency of the channel in kHz.
(B)In any 4 kHz band the center frequency of which is outside the bands 18.820-18.870 GHz: At least 43 + 10 log P (mean output power in watts) decibels.
(iv)Low power stations authorized in the band 18.8-19.3 GHz after June 8, 2000, are restricted to indoor use only. No new licenses will be authorized for applications received after April 1, 2002. 14. Section 101.603 is amended by revising paragraphs (a)(2) and (b)(3) to read as follows: § 101.603 Permissible communications.
(a)* * *
(2)In the frequency bands 6425-6525 MHz, 17,700-18,580 MHz, and on frequencies above 21,200 MHz, licensees may deliver any of their own products and services to any receiving location;
(b)* * *
(3)Be used to provide the final RF link in the chain of transmission of program material to multichannel video programming distributors, except in the frequency bands 6425-6525 MHz and 17,700-18,580 MHz and on frequencies above 21,200 MHz. [FR Doc. E6-20167 Filed 11-28-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 15 [ET Docket No. 05-247; FCC 06-157] Over the Air Reception Devices (Continental Airlines) AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: This document addresses a Petition for Declaratory Ruling filed by Continental Airlines, Inc. (Continental) pertaining to the installation and use of a Wi-Fi antenna within its lounge at Boston-Logan International Airport (Logan Airport). Continental claims that the Massachusetts Port Authority (Massport), the owner of Logan Airport, has demanded that Continental remove its Wi-Fi antenna, and that such restrictions are prohibited by the Commission's Over-the-Air Reception Devices (OTARD) rules. The Commission finds that Massport's restrictions on Continental's use of its Wi-Fi antenna are pre-empted by the OTARD rules and it grants Continental's petition. DATES: Effective November 1, 2006. FOR FURTHER INFORMATION CONTACT: Nicholas Oros, Policy and Rules Division, Office of Engineering and Technology,
(202)418-0636, e-mail *Nicholas.Oros@fcc.gov.* SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Memorandum Opinion and Order,* ET Docket No. 05-247, FCC 06-157, adopted October 17, 2006 and released November 1, 2006. The full text of this document is available on the Commission's Internet site at *www.fcc.gov.* It is also available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street., SW., Washington, DC 20554. The full text of this document also may be purchased from the Commission's duplication contractor, Best Copy and Printing Inc., Portals II, 445 12th St., SW., Room CY-B402, Washington, DC 20554; telephone
(202)488-5300; fax
(202)488-5563; e-mail *fcc@bcpiweb.com.* Summary of the Memorandum Opinion and Order 1. The Commission's OTARD rules prohibit restrictions on property that impair the use of certain antennas. Restrictions prohibited by the OTARD rules include lease provisions (as is the situation here), as well as restrictions imposed by state or local laws or regulations, private covenants, contract provisions, or homeowner's association rules. Restrictions are prohibited by the OTARD rules if they unreasonably delay or prevent the installation, maintenance, or use of the antenna; unreasonably increase the cost of installation, maintenance or use of the antenna; or preclude the reception of an acceptable quality signal via the antenna. No distinctions are made in the OTARD rules based upon the setting ( *e.g.* , residential vs. commercial). There are exceptions in the OTARD rules for restrictions necessary to address valid and clearly articulated safety or historic preservation objectives, provided such restrictions are narrowly tailored, impose as little burden as possible, and apply in a nondiscriminatory manner. 2. The Commission adopted the OTARD rules in 1996 in response to Section 207 of the 1996 Telecommunications Act (1996 Act), which required the Commission to promulgate rules that “prohibit restrictions that impair a viewer's ability to receive video programming services” via antennas. The 1996 Act had as its overarching goals promoting competition in telecommunications, increasing consumer choice, and encouraging the rapid deployment of new technologies. In 1998, the Commission modified the OTARD rules to extend their applicability to rental property. In 2001, the Court of Appeals for the D.C. Circuit upheld the Commission's statutory authority and discretion to extend OTARD protections to rental environments and to preempt any contractual provisions to the contrary. In 2000 the Commission extended the OTARD rules to antennas that transmit or receive fixed wireless signals. 3. The OTARD rules provide that parties who are affected by antenna restrictions may petition the Commission to determine if the restrictions are permissible or prohibited by the rule and sets forth specific filing procedures. Such a determination is highly dependent on the facts alleged by the parties involved. Continental has filed such a petition alleging that Massport has demanded that it remove a Wi-Fi antenna from its lounge at Logan Airport in contradiction of the OTARD rules. 4. Three conditions must be satisfied in order for Continental's Wi-Fi antenna to be covered by the OTARD rules. First, the antenna must be one meter or less in diameter or diagonal measurement. Second, the antenna must be located on property within the exclusive use and control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property. Lastly, the antenna must be used to receive or transmit fixed wireless signals. Massport concedes that Continental's Wi-Fi antenna satisfies the first condition, *i.e.* , the antenna is less than one meter in diagonal measurement. The Commission finds that the second requirement is also satisfied. There is no dispute that Continental has a direct leasehold interest in the airport lounge where the Wi-Fi antenna is located, nor is there any indication in the record that the lounge is not exclusively used and controlled by Continental. It is Continental that is asserting rights under the OTARD rules, and it is Continental that is “using” the antenna to send and receive signals from its customers and employees within the lounge and has exclusive use and control of the leased premises. 5. For purposes of the third condition, that the antenna receives or transmits fixed wireless signals, a signal is a fixed wireless signal if it is
(1)commercial,
(2)non-broadcast, and
(3)transmitted via wireless technology to and/or from a fixed customer location. The Wi-Fi antenna transmits commercial signals because Continental accesses a commercial Internet service that it receives over a wireline connection and uses the antenna to transmit those same commercial signals within the lounge. There is no dispute that the Wi-Fi signals are non-broadcast. The application of OTARD is not limited to fixed antennas used for signals originating or terminating outside of the leased premises. Thus, Continental's Wi-Fi antenna transmits signals via wireless technology to and/or from a fixed customer location. 6. Continental's Wi-Fi antenna is not excluded from OTARD as a “hub” antenna used to deliver service to others. When a leaseholder or property owner uses an antenna to send and receive signals strictly within its premises, and not to “multiple customer locations,” the antenna user is using the antenna for its own purposes under the OTARD rules. The present case involves the sending of signals to and from an OTARD-covered antenna strictly within the premises under the exclusive use and control of the antenna user. Consequently, Continental's Wi-Fi antenna cannot be considered a hub antenna. 7. A restriction runs afoul of the OTARD rules if it unreasonably delays, prevents, or increases the cost of the installation, maintenance, or use of the antenna or precludes reception of or transmission of an acceptable quality signal. The restrictions contained in Massport's lease with Continental for the airport lounge unreasonably impair the use of Continental's antenna because the lease provisions for the lounge allegedly require that Continental discontinue use of or remove its Wi-Fi antenna and because the lease allegedly prohibits making alterations to the premises without submitting an application to and receiving prior approval. 8. The presence of an airport Wi-Fi backbone that provides coverage throughout the airport does not provide an exception to the OTARD rule as a “central antenna.” The Commission has explicitly declined to adopt a central antenna exception to the OTARD rule. The availability of a central antenna must be analyzed in the context of impairment— *i.e.* , whether the restrictions on the installation and use of an antenna constitute impairment if the landlord offers a central antenna that may be used by the tenant. The restrictions constitute an impairment because of the time delay in which Massport offered allegedly comparable service, and because Continental would not be able choose its own service provider and would be limited to whatever type of services, level of network security, quality of service, and signal strength the airport Wi-Fi backbone provides. 9. Massport does not qualify for a safety exception to the OTARD rules because of potential interference to the airport Wi-Fi backbone because the OTARD safety exception addresses potential dangers to the physical safety and health of the public and not interference to other radio device users. The Commission further noted that because the Wi-Fi device that Continental is using in the lounge operates as permitted under Part 15 of the Commission's rules, Massport has no right to operate the airport Wi-Fi backbone free from interference from other Part 15 devices, and that the type of traffic carried by the airport Wi-Fi backbone does not change the application of Part 15 of the Commission's rules. Users who believe they must have interference-free communication should pursue the exclusive-use options under the licensed service models instead of relying on Part 15 devices. Massport also does not qualify for a special exemption from the OTARD rule because OTARD has no express exception for governmental entities and Massport has made no showing that its management responsibilities relating to antenna siting differ materially from those of any other landlords. 10. The Commission has the statutory authority to apply the OTARD rules to antennas used to receive and/or transmit fixed wireless signals. There is no indication that Congress intended to limit the Commission's discretionary preemptive authority over antenna siting to the strict parameters of Section 207 of the 1996 Telecommunications Act. Nothing in Section 207 prohibits the Commission from exercising its authority pursuant to Section 303 and other provisions of the Communications Act to protect the siting of other antennas that receive or transmit other types of signals. Furthermore, Section 303(d) of the Communications Act provides the Commission with express statutory authority to regulate antenna siting. Additionally, the Commission's exercise of its ancillary jurisdiction in the Competitive Networks Report and Order also provides an independent basis for the Commission's OTARD rules. When the Commission extended the OTARD rules to include antennas used to transmit or receive fixed wireless signals, it relied upon the statutory goals in Sections 1, 201(b), 202(a), and 205(a) of the Communications Act, as well as the Preamble to and Section 706 of the 1996 Telecommunications Act. 11. The Commission is able to apply OTARD to a state or local government acting in a proprietary capacity. When a governmental entity acts in a private capacity, the authority of a federal agency like the Commission to regulate such action will turn on whether the agency has lawfully exercised its authority in the same manner over similarly situated non-governmental regulatees. The OTARD rules expressly apply to “contract provision[s]” and “lease provision[s],” of private parties. In Building Owners and Managers Association International v. FCC, 254 F.3d 89 (D.C. Cir. 2001) (“BOMA”), the D.C. Circuit held that the Commission possessed the authority to prohibit private leasing restrictions that impair a viewer's ability to receive video programming services through antennas designed for over-the-air reception. In extending the OTARD rules to the wireless context, the Commission relied upon the same policies underpinning the video-based OTARD rules upheld by the D.C. Circuit. Private lease agreements that impair a user's ability to install an antenna falling within the scope of the Commission's OTARD rules conflict with the Commission's authority over such antenna siting. In addition, such a lease agreement stands as an obstacle to the accomplishment and full objectives of federal law to facilitate the availability of advanced communications services and to foster competition. 12. The D.C. Circuit has affirmed in BOMA that application of the OTARD rules to leased property is not a per se taking of the landlord's property rights. Whether a regulatory taking has occurred is determined by considering:
(1)The character of the government action;
(2)its economic impact; and
(3)its interference with reasonable investment-backed expectations. No regulatory taking has occurred because applying the OTARD rules in this situation will promote the important government interests of increasing competition and encouraging the deployment of advanced communication technology; economic harm need not be considered because no one has the right to operate part 15 devices such as Wi-Fi free of interference; and no one has a reasonable expectation to generate revenue from the use of unlicensed spectrum. Ordering Clauses 13. Pursuant to section 1.4000(d) of the Over-the-Air Reception Devices Rule, 47 CFR 1.4000(d), and section 1.2 of the Commission's rules, 47 CFR 1.2, that the Petition for Declaratory Ruling filed by Continental Airlines, Inc. on July 8, 2005 is granted. 14. This Memorandum Opinion and Order does not change any rules, it grants a Petition for Declaratory Ruling, no Congressional Review requirements are necessary. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E6-20142 Filed 11-28-06; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 226 [Docket No. 060228057-6283-02; I.D. 022206D] RIN 0648-AU38 Endangered and Threatened Species; Designation of Critical Habitat for Southern Resident Killer Whale AGENCY: National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce. ACTION: Final rule. SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a final rule designating critical habitat for the Southern Resident killer whale (Orcinus orca) distinct population segment (DPS). Three specific areas are designated,
(1)the Summer Core Area in Haro Strait and waters around the San Juan Islands;
(2)Puget Sound; and
(3)the Strait of Juan de Fuca, which comprise approximately 2,560 square miles (6,630 sq km) of marine habitat. We considered the economic impacts and impacts to national security, and concluded the benefits of exclusion of 18 military sites, comprising approximately 112 square miles (291 sq km), outweighed the benefits of inclusion because of national security impacts. We solicited comments from the public on all aspects of the proposed rule. An economic analysis, biological report, and Endangered Species Act
(ESA)report were available for comment along with the proposed rule. The supporting documents have been finalized in support of the final critical habitat designation. DATES: This rule becomes effective December 29, 2006. ADDRESSES: The final rule, maps, and supporting documents used in preparation of this final rule, as well as comments and information received, are available on the NMFS Northwest Region website at *http://www.nwr.noaa.gov/* . FOR FURTHER INFORMATION CONTACT: Lynne Barre at
(206)526-4745, or Marta Nammack at
(301)713-1401. SUPPLEMENTARY INFORMATION: Background Under the ESA, we are responsible for determining whether certain species, subspecies, or distinct population segments
(DPS)are threatened or endangered, and designating critical habitat for them (16 U.S.C. 1533). In November 2005, we listed the Southern Resident killer whale DPS as endangered under the ESA (70 FR 69903; November 18, 2005). At the time of listing, we also announced our intention to propose critical habitat for the Southern Resident killer whale. Critical habitat for Southern Residents was proposed on June 15, 2006 (71 FR 34571). Killer Whale Natural History Three distinct forms of killer whales, termed residents, transients, and offshores, are recognized in the northeastern Pacific Ocean. Resident killer whales in U.S. waters are distributed from Alaska to California, with four distinct communities recognized: Southern, Northern, Southern Alaska, and Western Alaska (Krahn *et al.* , 2002; 2004). Resident killer whales are fish eaters and live in stable matrilineal pods. The Southern Resident DPS consists of three pods, identified as J, K, and L pods, that reside for part of the year in the inland waterways of Washington State and British Columbia (Strait of Georgia, Strait of Juan de Fuca, and Puget Sound), principally during the late spring, summer, and fall (Ford *et al.* , 2000; Krahn *et al.* , 2002). Pods visit coastal sites off Washington and Vancouver Island (Ford *et al.* , 2000), but travel as far south as central California and as far north as the Queen Charlotte Islands. Offshore movements and distribution are largely unknown for the Southern Resident DPS. Detailed information on the natural history of Southern Residents is included in the Proposed Conservation Plan for Southern Resident Killer Whales (Orcinus orca) available at *http://www.nwr.noaa.gov/* and was summarized in the biological report and the proposed rule to designate critical habitat (71 FR 34571; June 15, 2006). Summary of Comments and Responses We requested comments on the proposed rule to designate critical habitat for Southern Resident killer whales (71 FR 34571; June 15, 2006). To facilitate public participation, the proposed rule was made available on our regional web page and comments were accepted via standard mail, e-mail, and through the Federal eRulemaking portal. In addition to the proposed rule, several draft documents supporting the proposal, including a biological report, an economic report, and a report supporting NMFS' conclusions under Section 4(b)(2) of the ESA, were posted. We obtained independent peer review of the draft biological report (NMFS, 2006a) and draft Economic Analysis (NMFS, 2006b) and incorporated the peer review comments into the documents prior to dissemination in support of the proposed rule. Two public hearings were held on July 12, 2006, in Seattle and July 13, 2006, in Friday Harbor, WA, and the public comment period closed on August 14, 2006. We have considered all public comments, and they are addressed in the following summary. We have assigned comments to major issue categories and, where appropriate, have combined similar comments. Physical or Biological Features Essential for Conservation (Primary Constituent Elements) *Comment 1:* In our proposed listing determination for killer whales, we identified potential Primary Constituent Elements
(PCEs)of critical habitat, including “Sound levels that do not exceed thresholds that inhibit communication or foraging activities or result in temporary or permanent hearing loss.” Many commenters expressed concern that the proposed critical habitat designation did not include sound as a PCE. These commenters pointed out that killer whales rely on sound to navigate, forage, mate, avoid predators, and communicate with one another. One commenter noted research findings that vessel effects and acoustic disturbance are stressors on killer whales. Another commenter pointed to study findings that suggest killer whales abandon certain habitats when confronted with introduced noise. These commenters argued that NMFS should consider sound an element of the physical environment of water, just as NMFS considers water quality, prey, and passage habitat conditions. Commenters pointed out that underwater, sound travels farther than above water, and, therefore, should be considered differently. Others pointed out that sound is a commonly accepted pollutant, and should be treated as such in the critical habitat designation. They also pointed to the inclusion of sound as a concern in NMFS' proposed Conservation Plan for Southern Residents and the 2004 Status Review. The commenters were particularly concerned with the impact of military sonar in Puget Sound on Southern Residents. Several commenters also mentioned the 2003 USS Shoup incident that reportedly affected Southern Resident behavior in the Sound as evidence of the harmful impacts of military sonar in the Sound. Other commenters focused on ambient noise and the noise from specific projects underway in the Sound as concerns for Southern Residents. They felt that excluding sound as a PCE would allow these activities to continue unmonitored for sound levels. One commenter argued that NMFS should extend critical habitat to the shoreline to prevent the impacts of noise related to nearshore activities on killer whales. These commenters requested NMFS reconsider sound as a PCE due to its importance to the species and create sound thresholds to enable enforcement of potential regulations. *Response:* We acknowledge the many observations about the potential for sound to startle or even physically injure killer whales. These effects, however, are direct effects to the animal itself and not to its habitat. The agency has already conducted several ESA section 7 consultations on construction activities, and measures were included in the action to avoid direct impacts to the whales. Regarding the comment in support of enforceable regulations to protect killer whales from sound, we have sound thresholds that we consider to be harassment under the Marine Mammal Protection Act (MMPA). We also recently announced our intention to consider new criteria to determine what constitutes “take” under the MMPA and ESA, through preparation of an environmental impact statement (70 FR 1871; January 11, 2005). As that process unfolds, we may consider additional regulations to protect Southern Residents from harmful sounds. Continuous sounds may interfere with the whales' echolocation and communication. At this time, however, we lack sufficient information to include sound as a PCE of killer whale critical habitat. We will continue to consider sound in any future revisions of the critical habitat designation. Geographical Area Occupied by the Species *Comment 2:* We received many comments regarding the proposal to designate critical habitat in waters deeper than 20 feet (6.1 m) based on extreme high water. The majority of commenters felt that we should include waters shallower than 20 feet (6.1 m) because killer whale prey, particularly salmon, occupy these waters, and these areas are essential to the conservation of the Southern Residents. The importance of these habitats for salmon and forage fish was the predominant argument for including shallow waters as critical habitat for Southern Residents. Several commenters argued against our assessment that the Southern Residents′ size prevents them from occupying shallow waters, pointing to the activities of other killer whales that use shallow waters for rubbing on rock bottoms and for foraging on marine mammals as evidence of killer whales′ ability to occupy shallow waters. In contrast, there were commenters who supported our determination that there is very little evidence to indicate that the whales occupy shallow waters. Commenters also cited the lack of a barrier between shallow and deep waters and mentioned that human activities occurring in shallow waters inevitably affect Southern Residents in deeper waters. Of particular concern was the fact that much of the pollution in the Sound enters through shallow waters and that excluding these waters from designation would limit our ability to address polluting activities. Commenters believed that including shallow waters in the critical habitat designation would increase the clean-up priority of contaminated sediments and limit industrialization. Some commenters listed specific projects in shallow waters that pose pollution and noise threats to Southern Residents. These commenters felt that including shallow waters would allow closer regulation of these projects to prevent harmful impacts on the deeper water habitat of Southern Residents. One commenter believed that including shallow water in critical habitat is necessary to ensure water quality and prey sustainability, two of the PCEs identified by NMFS. In addition, several commenters asserted that it would be difficult to determine a 20-foot (6.1-m) depth contour relative to extreme high water because such a line is not commonly found on reference maps and charts. We received suggestions that using the shoreline as the critical habitat boundary would make it easier for the public to understand the boundaries of critical habitat and for Federal action agencies to evaluate their projects and effects on critical habitat. *Response:* The overwhelming majority of comments focused on the importance of shallow nearshore waters for salmon and forage fish species. In the critical habitat proposal, we did not consider shallow waters (i.e., nearshore areas between the line of extreme high tide and a depth of 20 feet (6.1 m) relative to this line) of Puget Sound to be within the geographical area occupied by Southern Resident killer whales. While we acknowledged observations of transient whales beaching themselves to attack marine mammals, and those of Northern Residents using shallow areas at rubbing beaches, we did not have any similar accounts for Southern Resident whales and so requested additional information on use of shallow waters from the public during the comment period. We received comments providing some information on Southern Resident killer whale use of shallow waters. One researcher and several other individuals submitted accounts and photos of Southern Resident whales using specific shallow areas, though it was not clear if these areas were less than 20 feet (6.1 m) deep based on extreme high water. We specifically requested public comments on use of shallow areas, and the limited information received is not sufficient to consider all shallow areas as occupied. Joint NMFS-U.S. Fish and Wildlife Service
(FWS)regulations provide that we will designate unoccupied areas as critical habitat only upon a finding that the currently occupied habitat is inadequate for conservation (50 CFR 424.12(e)). At this time we lack sufficient information to determine that the currently occupied habitat is inadequate and that additional unoccupied habitat in the shallow areas less than 20-feet (6.1 m) deep is essential for conservation of the species. We will consider any new information indicating that the current occupied habitat is a limiting factor for recovery as more research is conducted. The final critical habitat designation is consistent with the proposed rule and does not include waters shallower than 20 feet (6.1 m) based on extreme high water. Tidal fluctuations vary at locations throughout the critical habitat areas, but generally, the shallow areas not included in the critical habitat designation are very shallow (5-10 feet) (1.5-3m) in some tidal conditions and can even be exposed at very low tides. During some tidal conditions these areas are not accessible by the whales, and we do not have data indicating that these areas are frequently used by whales. Regarding the importance of using lines found on standard maps, we agree it can be problematic to draw a line at the 20-foot (6.1 m) depth because standard topographic maps and nautical charts do not always depict such a line. The line of extreme high water, however, can be determined using visual cues (Cowardin *et al.* , 1979; Ritter *et al.* , 1996) and using site-specific tidal information and similar depth contours (e.g., 20 feet or 6.1 meters) found on maps and nautical charts to evaluate if their activities are taking place in or may affect designated critical habitat deeper than 20 feet (6.1 m) at extreme high water. Thus, Federal agencies can determine whether their proposed actions may affect critical habitat, and the public and other entities can discern where habitat critical to Southern Resident killer whales has been designated. In our proposed rule, we estimated the total area and shoreline proposed for designation using readily available Geographic Information System
(GIS)data depicting Washington shorezones (Berry *et al.* , 2000). These data are widely used by various state and Federal agencies in Puget Sound to locate and evaluate projects and activities in the nearshore zone. The GIS data approximate the line of ordinary high water, but do not include bathymetry, so we did not attempt to subtract the areas shallower than 20 feet (6.1 m), though areas shallower than 20 feet are not designated as critical habitat in this final rule. We have used the same dataset to make calculations supporting this final critical habitat designation. Prior to issuing proposed critical habitat, we did make some modifications to the GIS data described above, notably, the exclusion of estuarine and freshwater areas upstream of river and creek mouths. In re-evaluating the nearshore areas proposed for critical habitat, we identified several small or shallow inlets, harbors, coves and bays, some with very narrow entrances, and obtained more detailed sighting information to assist with drawing a shoreline boundary for some areas. In most cases, the whales had not been sighted within the small water bodies (e.g., Drayton Harbor, Wescott Bay, Guthrie Cove, Tulalip Bay, Port Gardner/eastern side of Jetty Island, Chapman Cove, Big Fishtrap Inlet, Gull Harbor, Rocky Bay at the mouth of Rocky Creek, Taylor Bay, Mayo Cove, Horsehead Bay, Wollochet Bay, Mystery Bay, Eagle Harbor, Jarrell Cove and Sequim Bay), so we have further modified the GIS data to excise these areas, totaling approximately 15 square miles (39 sq. km), in the final designation. We did include several small harbors where we had reports of Southern Resident whales at the harbor entrances (e.g., Keystone Harbor, Gig Harbor). Not designating waters shallower than 20 feet (6.1 m) (based on extreme high water) as critical habitat does not preclude consultation on activities that occur in these shallow nearshore areas. ESA section 7's requirement that Federal agencies ensure their actions aren't likely to adversely modify critical habitat applies equally to actions occurring outside as to actions occurring within designated critical habitat. *Comment 3:* Many commenters argued for including Hood Canal (Canal) in the critical habitat designation. Commenters reported sightings of Southern Residents in the Canal, and asserted that until the 1980s Southern Residents regularly visited the Canal, making the Canal part of the home range of the species. These commenters felt we used too short of a time frame in our assessment and that a longer time frame of up to 20 years would result in the inclusion of Hood Canal in the designation. Others noted that transient killer whales use the Canal frequently, and, therefore, it should be designated critical habitat. Some commenters expressed concern that exclusion from designation would allow further development of the Canal, strip mining, industrial harbor pollution, continued sewer runoff into the Canal, and heavy commercial traffic, harming the Canal′s ecosystem, contributing to low oxygen levels, and further discouraging Southern Residents from using its waters. Many commenters felt that Hood Canal and its salmon populations should be a top concern for NMFS, predicting that with salmon recovery in the waterway, Southern Residents would return to seek out prey. These commenters felt strongly that protecting Southern Resident food sources, specifically salmon, was reason enough to designate Hood Canal critical habitat. All of these commenters believe Hood Canal is essential to the recovery of Southern Residents. *Response:* Section 3(5)(A) of the ESA defines critical habitat as areas either occupied or not occupied by the species “at the time it is listed.” We relied on the best available information on killer whale distribution to develop the proposed critical habitat areas. The sighting data we received from the Whale Museum included sightings of Southern Residents from 1990-2003, which was the most reliable information in their long-term database. Whales were identified by pod when possible, and sightings of transients, northern residents, and offshore whales were not included in the Whale Museum data set. There were no sightings of Southern Resident killer whales reported in Hood Canal from 1990-2003. In addition to the sighting data, we received one report of a sound recording made in Hood Canal from 1995, which was confirmed as calls of Southern Residents. Based on the one recording, we did not consider Hood Canal as occupied by the species at the time of listing. Commenters compared the one occurrence of Southern Residents in Hood Canal in 1995 to the areas in South Puget Sound that also had small numbers of sightings. The Puget Sound sightings, however, were often more than one sighting, were more recent, and were contiguous with areas of greater numbers of sightings. In contrast, Hood Canal has a narrow entrance, and its waters are not adjacent to areas with regular sightings. The information we received during the public comment period included three additional sightings of killer whales in Hood Canal with sufficient information (photos, sound recordings, detailed field notes) to confirm that they were Southern Residents. The sound recording was made in 1958, the photograph was taken in 1973, and the detailed account was from a sighting in 1977. In addition, there were many anecdotal accounts of groups of whales with larger group sizes than are typical for transient whales and may have been Southern Residents spanning the 1940's-1980's. In the past, we have considered opportunistic or historical information on a specicies' occupied habitat when current documentation is not available. However, for Southern Residents, we have a more recent sighting record from the Whale Museum. Even if we increased the time span under consideration to 20 years, it would not add any confirmed sightings of Southern Residents in Hood Canal at the time of listing. At this time, there are not sufficient data to consider Hood Canal as occupied at the time of listing. The commenters also argued that if Hood Canal is not currently considered “occupied by the species,” it should still be designated as critical habitat because it contains the PCEs necessary for conservation (i.e., prey), and it is essential for conservation. Joint NMFS-U.S. Fish and Wildlife Service
(FWS)regulations provide that we will designate unoccupied areas as critical habitat only upon a finding that the currently occupied habitat is inadequate for conservation (50 CFR 424.12(e)). At this time we lack sufficient information to determine that the currently occupied habitat is inadequate and that additional unoccupied habitat in Hood Canal is essential for conservation of the species. We will consider any new information indicating that the current occupied habitat is a limiting factor for recovery as more research is conducted. We appreciate the efforts by the Hood Canal community to gather the historical information on killer whale use of the area. If, as some predict, the whales do return to Hood Canal in response to increasing populations of prey species, we will continue to work with the local community to gather information and reevaluate the importance of Hood Canal as Southern Resident habitat. Specific Areas *Comment 4:* Several commenters urged us to designate areas as critical habitat for killer whales if they are essential for salmon conservation, based on a variety of theories. Some commenters pointed out that nearshore areas and/or freshwater areas that support salmon contain physical or biological features essential for conservation of killer whales (those features being salmon, or the features that support salmon). Some commenters urged us to consider nearshore areas, bays, and even freshwater areas as unoccupied areas “essential for conservation” of the whales - one stating that the statutory provision regarding “physical or biological features” applies to both occupied and unoccupied areas and another stating that there is no statutory requirement for unoccupied areas to contain physical or biological features. One commenter stated that because nearshore and offshore waters are connected, it is arbitrary to draw a line separating the two (that is, the line we proposed at the 20-foot (6.1 m) depth). *Response:* The presence of salmon in densities and/or bathymetric conditions that make them available to killer whales appears to be the primary factor determining what areas the whales are likely to occupy. The fact that this essential feature is also present in areas the whales cannot occupy does not make those outside areas ″occupied″ in the statutory sense. Nor does the fact that those unoccupied areas may be essential to salmon make them essential to killer whale conservation. Joint NMFS-U.S. Fish and Wildlife Service
(FWS)regulations provide that we will designate unoccupied areas as critical habitat only upon a finding that the currently occupied habitat is inadequate for conservation (50 CFR 424.12(e)). At this time we lack sufficient information to determine that the currently occupied habitat is inadequate and that additional unoccupied habitat is essential for conservation of the species. We will consider any new information indicating that the current occupied habitat is a limiting factor for recovery as more research is conducted. No matter where the line is drawn to delineate a specific area, there will be activities occurring outside of the delineated area that may affect the features within the area. When prey items are a biological feature that moves freely in and out of the geographical area occupied by the species, it creates a situation in which there is a ″biological feature″ outside the occupied specific areas. This fact does not make line-drawing arbitrary because the statute requires us to designate as critical habitat specific areas occupied by the species that contain those physical and biological features essential to conservation and may require special management considerations or protection, or unoccupied areas essential to the conservation of the species. Here we have chosen a reasonable line on a map (as our regulations require) to clearly identify “specific areas within the geographical area occupied by the species.” Moreover, section 7's requirement that Federal agencies ensure their actions are not likely to adversely modify critical habitat apply equally to actions occurring outside and within designated critical habitat. We have identified a depth contour of 20 feet (6.1 m) based on extreme high water for the final critical habitat. We believe this is a reasonable way to delineate a “specific area within the geographical area occupied by the species.” *Comment 5:* Many commenters requested that we include the offshore waters of Washington, Oregon, and California in the critical habitat designation. One commenter recommended we begin our designation at a reasonable depth and extend it to five miles (8.0 km) offshore to adequately protect waters used by Southern Residents. Many comments specifically requested that the Olympic Coast National Marine Sanctuary be included in the critical habitat designation. Most felt there was sufficient evidence to include offshore waters in the critical habitat designation at this time. Others encouraged us to conduct additional research on the winter coastal habitat of Southern Residents to gather information to support expansion of the critical habitat designation in the future. *Response:* In the proposed rule, we identified the data gaps regarding distribution of Southern Residents in coastal and offshore waters and uncertainty regarding the important habitat features of these areas. At this time, we do not feel there is sufficient data to identify the specific areas in offshore waters in which the essential habitat features are found. This concern applies equally to the Olympic Coast National Marine Sanctuary and to other offshore areas. There is an active research program underway to gather information and fill in these data gaps, and we will consider any new information on coastal and offshore habitats that becomes available. Special Management Considerations *Comment 6:* We received a number of comments on the threats to the Southern Resident killer whales and suggestions for management actions that could be taken. These included: concerns regarding fisheries management to ensure sufficient prey for the whales; high pollution levels in Puget Sound and the sewage dumping practices of particular areas; stress from whale watching and other vessels; and potential effects from research practices and oil spills. *Response:* For each of the specific areas proposed for critical habitat designation, we identified the PCEs and their special management considerations, which generally are the same concerns as those expressed by commenters. We will also consider the comments pertaining to specific threats to the whales and their habitat and potential management actions in developing a recovery plan for Southern Resident killer whales. Activities That May Be Affected *Comment 7:* One commenter requested at least a partial list of the type of projects that would likely require ESA section 7 consultation to assist agencies and project sponsors. Another commenter suggested that Federal hydropower projects should also be considered because of their potential to affect abundance of killer whale prey. Several commenters encouraged us to explore a Federal nexus under section 7 that would allow us to address vessels in Puget Sound. *Response:* We provided a list of activities that may be affected by this designation, including, but not limited to, fishery management practices, vessel traffic, dredging and disposal, sub-marine cable/pipline installation and repair, oil and gas exploration, pollutant discharge, and oil spill prevention and response. If hydropower actions can be shown to significantly reduce the abundance of salmon available to the whales in designated critical habitat, they could adversely modify that habitat. As noted in response to Comment 8 below, most hydropower operations in the range of salmon and steelhead are already subject to modifications to protect listed salmon and steelhead. We will work with the Coast Guard and other agencies that oversee vessel activities to explore actions regarding vessels that may require section 7 consultation under the ESA. Application of ESA section 4(b)(2) Economic Impacts *Comment 8:* We received several comments requesting that we include additional quantified estimates of economic impacts of designating critical habitat for Southern Resident killer whales in the economics report. One commenter objected to the focus of the economic analysis on potential impacts to fisheries. One commenter suggested Federal hydropower projects be considered under section 7 of the ESA and economic impacts of those consultations be considered in the economic analysis. Other commenters requested inclusion of costs associated with water quality and stormwater management and noise-producing activities, such as construction. Another suggested that information about economic costs associated with climate change be included. *Response:* The range of economic costs estimated for critical habitat designation was related to possible reductions in harvest of prey species. While the economic analysis may appear to focus on potential impacts to fisheries, the economic report addresses other impacts such as those to water quality which could not be quantified. The inability to quantify these costs does not reduce their relative importance. In the ESA section 4(b)(2) report, we acknowledge that there are also additional costs associated with prey in addition to harvest, though we could not attribute these costs to the designation of critical habitat for Southern Resident killer whales. In designating critical habitat for the Puget Sound Chinook ESU, there were over $70,000,000 of economic impacts identified for the designated areas. Examples of other programs affecting salmon habitat include Shared Strategy for salmon recovery and Puget Sound Action Team and Puget Sound Partnership efforts to improve conditions in Puget Sound, which may cost hundreds of millions of dollars. In the case of hydroelectric projects, particularly the Federal projects the commenter identified, many hydroelectric project modifications to protect salmon and steelhead are already required to protect ESA-listed salmon or steelhead. Along the entire West Coast, nearly all salmon-bearing streams are home to listed salmon and steelhead (only coastal streams in Western Washington contain no listed salmon or steelhead). To the extent there is a Federal nexus on hydropower operations affecting these listed salmon and steelhead, the Federal agency involved must ensure its actions aren′t likely to jeopardize the listed salmonids or adversely modify their critical habitat. As a result, hydropower operations that might affect the abundance of killer whale prey (including those in the Columbia River basin) are already modified to protect salmon and their critical habitat. It would be inappropriate to attribute the cost of modifications to killer whale critical habitat designation when they are already required to protect salmon and steelhead; however, if additional project modifications are required to prevent reductions of prey abundance for Southern Resident killer whales in designated critical habitat, these impacts would be attributable to this designation. Regarding water quality, we lack sufficient information at this time to determine which contaminants are likely to be the focus of future ESA section 7 consultations and what threshold levels are appropriate to protect Southern Residents. Until we have better information about the number and type of section 7 consultations on water quality management, and the extent of changes that may be required as a result of those consultations, it would be speculative to try to estimate associated costs. We do not have a consultation history for killer whales that would provide information on changes that might be required in water quality management to protect killer whale habitat from adverse modification. Nor do we have information that would allow us to estimate with any confidence what those changes might be. One commenter suggested that we rely on the consultation history of salmon to estimate economic costs for water quality management. However, there are different contaminants of concern for salmon, and, as noted above, costs associated with salmon consultations would not be appropriate to count twice. Impacts from Southern Resident critical habitat designation will likely come in areas different than those that stem from salmon protection and recovery. There are likely to be significant costs associated with construction activities as a result of our listing of Southern Resident killer whales because these sound-producing activities have a direct effect on the whales, as described in our response to Comment 1. We have already conducted several ESA section 7 consultations on construction activities, and measures were included in the action to avoid direct impacts to the whales. Because we consider such sound to be an impact on the whales rather than on the whales′ habitat, however, we did not include the costs associated with these measures in our analysis of the economic impacts of designation. At this time it would be too speculative to try to determine what management changes may be required for salmon and steelhead in response to climate change. *Comment 9:* One commenter questioned the information in the economics report regarding stormwater outfalls, including the number of outfalls listed, and suggested we consider the contaminant levels for individual outfalls and sources rather than the number of outfalls or the agency responsible for managing the outfalls. *Response:* We recognize that the quantity and quality of stormwater, not the number of outfalls, will determine what changes would need to be made, if any, as a result of critical habitat designation. We also recognize that outfalls without any Federal nexus will not be subject to an ESA section 7 consultation. We included the number of outfalls that might be subject to consultation in the draft economics report, where such numbers were available, to give the decision maker some context for considering the potential impact of critical habitat designation, as required by ESA section 4(b)(2). In light of this comment, we have removed the table from the economics report showing the number of outfalls. *Comment 10:* Commenters suggested that additional information on the economic benefits of recovered Southern Resident and salmon populations be included in the report. *Response:* While there may be studies that may provide some information relevant to estimating the benefits of recovered Southern Resident killer whale and salmon populations, there is insufficient information to estimate the incremental benefits (in addition to the current salmon recovery efforts) of critical habitat designation for Southern Residents on the status of Southern Resident and Pacific Northwest salmon populations. *Comment 11:* One commenter objected to the inclusion of polycyclic aromatic hydrocarbons
(PAH)as a contaminant of potential concern to Southern Resident killer whales in the economic report. The commenter acknowledged that PAHs are mentioned in the conservation plan, but that since they were not specifically addressed in the listing or biological report, like other contaminants such as polychlorinated biphenyls
(PCB)and dichloro-diphenyl-trichloroethane ( DDT), they should therefore not be included in the economic analysis. *Response:* While we concur with the commenter that PCBs and other contaminants pose a greater risk to Southern Residents than PAHs, PAHs are still a concern and we have modified the biological report to ensure it clearly reflects this concern. Exposure to PAHs can be chronic or acute in the case of an oil spill. Although there are few studies of PAH levels and effects in wild marine mammals and no studies linking PAHs to the decline in the Southern Residents, there are concerns regarding carcinogenic effects of high levels of PAHs in some marine mammals (e.g., beluga whales). PAHs were not specifically identified as a primary concern in the listing of Southern Residents, but their inclusion in the conservation plan and the economic report indicates that they may be a concern for Southern Residents. No specific costs were associated with inclusion of PAHs in the economic report. National Security Impacts *Comment 12:* Many commenters disagreed with the decision to exclude 18 military sites on the basis of national security. Commenters requested that we review and offer explanations for the exclusion of each facility on a case-by-case basis, balancing national security interests with those of Southern Residents. Reducing the size of exemptions, limiting the degree of the exemptions, or entering into an agreement with the Navy to address their activities were several of the recommendations of commenters. Many of the commenters expressed concern about non-military activities that occur in the exempt areas and whether they would be subject to critical habitat regulations. These commenters hoped we could find a way to protect Southern Residents from harmful, non-military activities in these zones. An additional concern for these commenters was the impact of military sonar. We received recommendations that the military increase its efforts to protect killer whales when conducting tests, using passive sonar to locate whales and avoid sonar usage when whales are in potentially harmful proximity to the military vessel. *Response:* In an appendix to the ESA Section 4(b)(2) report, we provided detailed information on each of the military sites and summarized the national security concerns raised by the Department of Defense (DOD). We concluded that the national security impacts outweighed the benefits to the species. There is no mechanism in the ESA to exclude just the military and not other Federal agencies from the impacts of critical habitat designation. The exclusion of the military sites from critical habitat designation, however, does not mean that Federal actions in those areas are exempt from all consultation obligations under section 7 of the ESA. Federal agencies must ensure their actions do not jeopardize the continued existence of listed species - a requirement that applies regardless of whether specific areas are designated as critical habitat. We will continue to be concerned about activities that harm Southern Resident killer whales and their habitat, regardless of whether that habitat is designated. We expect that where critical habitat is designated, it will more precisely focus our analysis on how the action will alter the habitat and how that will affect the ability of the habitat to support species' conservation. Regarding sonar use, the Navy has operating procedures in place to reduce the risk to marine mammals, and these are included in the Proposed Conservation Plan for Southern Resident Killer Whales (available at *www.nwr.noaa.gov* ). As stated above, the military exclusions from critical habitat designation do not affect the Navy's obligations under section 7 of the ESA to consult on Federal actions that may affect Southern Resident killer whales regardless of whether they occur in designated critical habitat. *Comment 13:* We received several requests for additional exclusions based on impacts to national security. Commenters requested exclusions for refineries and ports in Puget Sound. Refinery operators requested exclusions because of their role in producing the petroleum products used by the U.S. military. These commenters felt that being subject to critical habitat consultations would limit the ability of refineries to efficiently provide oil to the military in a situation of national security. They also argued critical habitat designations would affect security, maintenance, operations and emergency preparedness at refineries. Those requesting national security exemptions for the ports located in Puget Sound argued that ports play an essential role in protecting the United States from terrorist threats because they are a primary entry and exit point. The commenters also argued there would be economic impacts to designating critical habitat in ports, making the ports less competitive. The commenters felt that, given that Southern Residents do not often use port waters, and many of the areas are already designated as critical habitat for Chinook salmon, an additional critical habitat designation would impact ports and not offer benefits to killer whales. *Response:* We concluded that the national security benefits of exclusion outweighed the conservation benefits of designation for 18 military sites. The Navy and Army provided information on the direct and potentially substantial impacts to national security including preventing, restricting, or delaying training or testing exercises or access to sites; restricting, or delaying activities associated with vessel/facility maintenance and ordnance loading; and delaying response time for ship deployments and overall operations. The DOD did not identify any concerns regarding impacts to national security beyond those at their sites. National security is the primary mission for the military, and we considered the high priority placed on national security when weighing the benefits of exclusion against conservation benefits. Refineries and ports, however, are commercial operations, and the national security concerns associated with these sites are a part of their overall activities. We consider that designating critical habitat in these areas will provide some conservation benefit through ESA section 7 consultations on refinery and port actions that may impact habitat by affecting prey availability, contaminant levels, or passage. There was insufficient information to demonstrate that any national security benefits outweigh the conservation benefits. National Environmental Protection Act of 1969
(NEPA)*Comment 14:* We received one comment arguing that the agency must comply with the NEPA to inform the public and help ensure that critical habitat designations do not result in unintended environmental consequences. *Response:* We believe that in *Douglas County* v. *Babbitt* , 48 F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996), the Ninth Circuit Court of Appeals correctly interpreted the relationship between NEPA and critical habitat designation under the ESA. The Court rejected the suggestion, identical to that raised by commenters, that irreconcilable statutory conflict or duplicative statutory procedures are the only exceptions to application of NEPA to Federal actions. The Court held that the legislative history of the ESA demonstrated that Congress intended to displace NEPA procedures with carefully crafted procedures specific to critical habitat designation. Further, the Douglas County Court held that the critical habitat mandate of the ESA conflicts with NEPA in that, although the Secretary may exclude areas from critical habitat designation if such exclusion would be more beneficial than harmful, the Secretary has no discretion to exclude areas from designation if such exclusion would result in extinction. The Court noted that the ESA also conflicts with NEPA's demand for impact analysis, in that the ESA dictates that the Secretary “shall” designate critical habitat for listed species based upon an evaluation of economic and other “relevant” impacts, which the Court interpreted as narrower than NEPA's directive. Finally, the Court, based upon a review of precedent from several circuits including the Fifth Circuit, held that an environmental impact statement is not required for actions that do not change the physical environment. Delay Designation Pending Resolution of Legal Issues *Comment 15:* One commenter requested that we delay designation of critical habitat until clarification of outstanding legal issues, including litigation over the listing of the Southern Resident DPS and the definition of ″adverse modification″ of critical habitat, are resolved. *Response:* Litigation is currently pending that challenges our listing of Southern Resident killer whales as endangered under the ESA [Washington State Farm Bureau and Building Industry Association of Washington v. NMFS]. Pending a decision on that challenge, the whales are listed, and the ESA requires that we designate critical habitat within one year of listing. Past court decisions on the agency′s regulatory definition of adverse modification have no effect on the statutory requirement to designate critical habitat. Coordination with Canada *Comment 16:* We received a number of comments regarding the use of Canadian waters by Southern Residents. These commenters felt we should coordinate with Canada on our efforts for protecting Southern Residents and their habitat. *Response:* We have some sighting data for Southern Residents in Canadian waters, and while our regulations limit us to designating critical habitat in areas under U.S. jurisdiction, we will continue to coordinate with Canada on both critical habitat designated in U. S. waters and recovery planning on both sides of the border. Critical Habitat Identification and Designation Section 3 of the ESA defines critical habitat as “(i) the specific areas within the geographical area occupied by the species, at the time it is listed * * *, on which are found those physical or biological features
(I)essential to the conservation of the species and
(II)which may require special management considerations or protection; and
(ii)specific areas outside the geographical area occupied by the species at the time it is listed * * *, upon a determination by the Secretary that such areas are essential for the conservation of the species.” Section 3 of the ESA (16 U.S.C. 1532(3)) also defines the terms “conserve,” “conserving,” and “conservation” to mean: “to use, and the use of, all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.” Section 4 of the ESA requires that, before designating critical habitat, we consider economic impacts, impacts on national security, and other relevant impacts of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of exclusion outweigh the benefits of designation, unless excluding an area from critical habitat will result in the extinction of the species concerned. Once critical habitat is designated, section 7(a)(2) of the ESA requires that each Federal agency, in consultation with us and with our assistance, ensure that any action it authorizes, funds, or carries out is not likely to result in the destruction or adverse modification of critical habitat. Physical or Biological Features Essential to Conservation (Primary Constituent Elements) Joint NMFS-FWS regulations for listing endangered and threatened species and designating critical habitat at 50 CFR 424.12(b) state that the agencies “shall consider those physical and biological features that are essential to the conservation of a given species and that may require special management considerations or protection (hereafter also referred to as “Essential Features' or “Primary Constituent Elements'/PCEs').” Pursuant to the regulations, such requirements include, but are not limited to, the following:
(1)Space for individual and population growth, and for normal behavior;
(2)food, water, air, light, minerals, or other nutritional or physiological requirements;
(3)cover or shelter;
(4)sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and generally,
(5)habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species. These regulations state that we shall focus on essential features within the specific areas considered for designation. These features ″may include, but are not limited to, the following: spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, geological formation, vegetation type, tide, and specific soil types.” Fish are the major dietary component of resident killer whales in the northeastern Pacific, with 22 species of fish and 1 species of squid (Gonatopsis borealis) known to be eaten (Scheffer and Slipp, 1948; Ford *et al.* , 1998; 2000; Ford and Ellis, 2005; Saulitis *et al.* , 2000). Observations from this region indicate that salmon are clearly preferred as prey (Ford *et al.* , 1998; Ford and Ellis, 2005) and are likely consumed in large amounts, as indicated by the estimates of total salmon consumed by the Southern Resident killer whale DPS. Sufficient prey abundance is necessary to support individual growth to reach sexual maturity and reproduction, including lactation and successful rearing of calves. In addition to a sufficient biomass of prey species, the prey must not have amounts of contaminants that exceed levels that can cause mortality or reproductive failure in Southern Residents. Because of their long life span, position at the top of the food chain, and their blubber stores, killer whales accumulate high concentrations of contaminants. Organochlorines, such as PCBs and DDT, and many other chemical compounds including polychlorinated napthalenes, brominated flame retardants, PAHs, dioxins, furans, and heavy metals, are a concern because of their ability to induce immune suppression, reproductive impairment, or other physiological damage, as observed in several species of marine mammals (Albers and Loughlin, 2003; Boland *et al.* , 1998; Bergman *et al.* , 1992; De Guise *et al.* , 2003; Jepson *et al.* , 1999; Reijinders, 2003; Ross, 2002). To move between important habitat areas, find prey, and fulfill other life history requirements, the Southern Resident killer whales require open waterways that are free from obstruction. In-water structures that block passage, for example, could affect Southern Resident killer whale movement. Killer whale habitat use is dynamic, and specific breeding, calving, or resting areas have not been documented. Births occur largely from October to March, but may take place in any month (Olesiuk *et al.* , 1990), and, therefore, potentially in any part of the whales′ range. Southern Residents are highly mobile and can travel up to 100 miles (160 km) in a 24-hour period (Baird, 2000), allowing rapid movements between areas. These movements likely coincide with prey concentrations. Individual knowledge of productive feeding areas and other special habitats is probably important in the selection of locations visited and is likely a learned tradition passed from one generation to the next (Ford *et al.* , 1998). Based on this natural history of the Southern Resident killer whales and their habitat needs, the physical or biological features of Southern Resident killer whale habitat are:
(1)Water quality to support growth and development;
(2)Prey species of sufficient quantity, quality and availability to support individual growth, reproduction and development, as well as overall population growth; and
(3)Passage conditions to allow for migration, resting, and foraging. Geographical Area Occupied by the Species Photo-identification studies, tracking by boats, and opportunistic sightings have provided considerable information on the ranges and movements of Southern Resident killer whales since the early 1970s. Ranges are best known from late spring to early autumn (May-September), when survey effort is greatest. During this period, all three Southern Resident pods- J, K and L- are regularly present in the Georgia Basin (defined as the Georgia Strait, San Juan Islands, and Strait of Juan de Fuca) (Heimlich- Boran, 1988; Felleman *et al.* , 1991; Olson, 1998; Osborne, 1999). While in inland waters during summer months, all of the pods concentrate their activity in Haro Strait, Boundary Pass, the southern Gulf Islands, the northeastern end of the Strait of Juan de Fuca, and several localities in southern Georgia Strait (Heimlich-Boran, 1988; Felleman *et al.* , 1991; Olson, 1998; Ford *et al.* , 2000). Pods commonly occur and are observed foraging in areas where salmon frequent, especially during the times of year salmon are migrating to their natal rivers (Heimlich-Boran, 1986, 1988; Nichol and Shackleton, 1996). Notable concentrations include Haro Strait and Boundary Passage, the southern tip of Vancouver Island, Swanson Channel off North Pender Island, and the mouth of the Fraser River delta, which is visited by all three pods in September and October (Felleman *et al.* , 1991; Ford *et al.* , 2000). These sites are major corridors for migrating salmon. Individual pods are generally similar in their preferred areas of use (Olson, 1998), although some seasonal and temporal differences exist in areas used. All three pods typically arrive in May or June and spend most of their time in inland waters until departing in October or November. However, K and L pods make frequent trips lasting a few days to the outer coasts of Washington and southern Vancouver Island during this time period (Ford *et al.* , 2000). During early autumn, Southern Resident pods, especially J pod, routinely expand their movements into Puget Sound, probably to take advantage of chum and Chinook salmon runs (Osborne, 1999). Additional recent studies have identified finer scale pod differences in seasonal movement patterns and use of core areas (Hauser, 2006). There are no confirmed sightings of Southern Resident killer whales inside Hood Canal in the 1990-2003 sighting database. On one occasion in 1995, acoustic recordings from Dabob Bay were identified as J pod vocalizations (Unger, 1997). Although additional historical sightings and recordings from the 1970s and earlier were provided during the comment period, we do not consider this sufficient evidence of presence to find Hood Canal ″within the geographical area occupied by the species at the time of listing.″ (Transient killer whales, in contrast, have been observed in Hood Canal on multiple occasions and have remained in Hood Canal for extended periods in the last several years.) In the critical habitat proposed rule we did not consider extremely shallow waters of Puget Sound (less than 20 feet (6.1 m) deep relative to the extreme high water line) to be within the geographical area occupied by the species and requested information during the public comment period. The public and a scientific researcher provided accounts and photographs of Southern Resident killer whales using some shallow areas. The information received is not sufficient to consider all shallow areas as occupied. The final critical habitat designation is consistent with the proposed rule and does not include waters shallower than 20 feet (6.1 m) based on extreme high tide. Tidal fluctuations vary at locations throughout the critical habitat areas, but generally the shallow areas not included in the critical habitat designation are very shallow (5-10 feet (1.5-3 m)) in some tidal conditions and can even be exposed at very low tides. During some tidal conditions these areas are not accessible by the whales, and we do not have data indicating that these areas are frequently used by whales. We used this same shoreline data for the final rule, which is readily available from the Washington Department of Natural Resources, to display and calculate the critical habitat areas as we did in the proposed rule. During the late fall, winter, and early spring, the ranges and movements of the Southern Residents are less well known. J pod continues to occur intermittently in the Georgia Basin and Puget Sound part of this time, but its location during apparent absences is uncertain (Osborne, 1999). One sighting of this pod was made off Cape Flattery, Washington, in March 2004 (Krahn *et al.* , 2004). Prior to 1999, K and L pods followed a general pattern in which they spent progressively smaller amounts of time in inland waters during October and November and departed them entirely by December of most years (Osborne, 1999). Sightings of both groups passing through the Strait of Juan de Fuca in late fall suggested that activity shifted to the outer coasts of Vancouver Island and Washington (Krahn *et al.* , 2002), although it is unclear if the whales spend a substantial portion of their time in this area or simply transit to other locations. While there are considerable data on the use of inland waters of Washington, there is very little information on the movements of Southern Resident killer whales off the coast. Areas of activity of all pods are virtually unknown during their absences from inland waters. In the last 30 years of study, there are only 28 confirmed sightings in outside waters (Krahn *et al.* , 2004; NWFSC unpubl. data). The majority of these sightings were opportunistic, with most occurring within 10 miles (16.1 km) of shore, and we do not know how far from shore the Southern Residents range. Several new sightings occurred during the last five years, when effort was increased with dedicated ship surveys and expanded volunteer coastal sighting networks. Our knowledge of the southern and northern boundaries of the range has expanded with these new sightings from California and the Queen Charlotte Islands in recent years. At this time there are few data on how the whales are using offshore areas; however, some of the sightings included observations of feeding. There is an active research effort underway to identify coastal and offshore distribution of Southern Residents. We have increased outreach efforts to gather sighting information from coastal communities, vessel operators, and pilots along the coasts of Oregon, Washington, and British Columbia. In addition, researchers are conducting dedicated ship surveys to locate the whales and observe their activities outside of Puget Sound. The research program is a long-term effort, but we hope to greatly increase the number of coastal observations in the next five years. As new information is collected on the coastal and offshore distribution and habitat use, we hope to fill in the data gaps about the important habitat features of these coastal and offshore areas. NMFS regulations at 50 CFR 424.12(h) state: “Critical habitat shall not be designated within foreign countries or in other areas outside of United States jurisdiction.” Although the Southern Residents′ range includes inland waters of Canada, we are not proposing these areas for designation. Specific Areas within the Geographical Area Occupied by the Species We reviewed the available information on Southern Resident distribution, habitat use, and habitat needs in a biological report to assist in identifying critical habitat (NMFS, 2006a). Within the geographical area occupied by the Southern Resident killer whales we have identified three specific areas that contain essential habitat features. We have divided the inside waters of Washington State into specific areas based on the habitat features and the use patterns of the Southern Resident killer whales. We analyzed Southern Resident killer whale sightings data from The Whale Museum (Osborne, 2005; The Whale Museum Orca Master, 1990-2003) to assist in identifying specific areas based on habitat use patterns by the whales. The Whale Museum data are predominantly opportunistic sightings from a variety of sources, including public reports, commercial whale watching industry pager system, Soundwatch, Lime Kiln State Park land-based observations, and compilations of independent researcher reports. The whales are identified as belonging to a particular pod when possible, and sightings of transient or offshore whales are not included in the database. The data set does not account for level of effort by season or location, and, therefore, the sampling and data are biased (Osborne, 2005). The 1990-2003 Whale Museum data set is, however, the most comprehensive long-term data available to evaluate broad-scale whale distribution in inland waters at this time (with a total number of sighting records of 22,509). In order to evaluate frequency of use, our analysis of the sightings was limited to one unique location sighting, per location, per day to reduce the bias introduced by multiple sightings of the same whales in the same location on the same day (total number of unique sightings per day is 11,836). For the majority of the killer whale sightings the location reported was not an exact point location (Lat./Long.), and all locations were subsequently assigned to a center point in a quadrant system (Osborne, 2005). Almost half of the data is from the Whale Watch pager system created by the commercial whale watch industry and available to subscribers. A validation of recent pager data revealed greater than 90 percent accuracy in locating whales (Hauser *et al.* , 2006). From the sightings and other data, we identified three “specific areas,” within the geographical area occupied by the species, that contain PCEs. We considered presence and movements of the whales, behavioral observations and studies, and other information to verify that one or more of the physical or biological features, or PCEs, can be found in these three areas. In some cases where direct data on PCEs were not available, we relied on distribution patterns of the whales to infer presence of PCEs. *Area 1.* Core Summer Area - Bordered to the North and West by the U.S./Canadian border, Area 1 includes the waters surrounding the San Juan Islands, the U.S. portion of the Southern Strait of Georgia, and areas directly offshore of Skagit and Whatcom counties. Prey species, one of the PCEs, are present in Area 1. Runs of salmon passing through Area 1 include Chinook, chum, coho, pink, and sockeye salmon, which have all been identified as prey for Southern Residents (Ford *et al.* , 1998; Ford and Ellis, 2005; NWFSC, unpubl. data). The Strait of Juan de Fuca, Haro Strait, and Georgia Strait are relatively narrow channels and concentrate salmon returning from the Pacific Ocean to spawn in U.S. and Canadian rivers. In particular, Area 1 lies near the mouth of the Fraser River, which has the largest salmon runs in the Georgia Basin/Puget Sound region (Northcote and Atagi, 1997). Occurrence of Southern Residents in Area 1 coincides with concentrations of salmon. Southern Resident killer whales have been sighted in Area 1 during every month of the year, but sightings are more consistent and concentrated in the summer months of June through August. The Whale Museum database from 1990-2003 contains 11,836 unique sightings after duplicate locations on the same date are excluded. Of these, 8,508 are in U.S. waters, and 85 percent of the U.S. sightings are in Area 1. Although sighting effort in Area 1 is extensive during the summer months as compared to other areas, which biases the data, the strength of the summer use pattern would undoubtedly persist if accounting for sighting effort. The largest number of sightings in Washington′s inland waters is from Haro Strait off the west side of San Juan Island. There are over 1,200 unique sightings from 1990-2003 in one quadrant off the west side of San Juan Island. Much of the behavioral research on Southern Residents takes place within Area 1. Southern Residents are observed exhibiting a variety of behaviors in this area, including travel, forage, social, and play behaviors. Resident whales spend 50-67 percent of their time foraging (Heimlich Boran, 1988; Ford, 1989; Morton, 1990; Felleman *et al.* , 1991). Opportunities to forage are presumed to be a major factor attracting Southern Residents to Area 1, particularly in the summer months when it is considered a primary feeding area for all three pods (J, K, and L). *Area 2.* Puget Sound - south from Deception Pass Bridge, entrance to Admiralty Inlet, Hood Canal Bridge. Southern Resident killer whale occurrence in Area 2 has been correlated with fall salmon runs, a prey- related PCE. Feeding has been observed in Area 2 (NWFSC, unpubl. data), though few behavioral studies have been conducted in this area. During the fall, Southern Residents, especially J pod, expand their movements into Puget Sound, likely taking advantage of chum and Chinook salmon runs (Osborne, 1999). A fall chum run was suggested as the likely reason for an extended presence of members of L pod in Dyes Inlet during October and November of 1997. Southern Resident killer whales have been sighted in parts of Area 2 in all seasons despite limited search effort. The presence of Southern Residents in Area 2 is intermittent, with the smallest number of sightings in May-July. There are different sighting patterns in Area 2 for the three pods. In the most southern portion of Area 2, south of Tacoma Narrows Bridge, there have been only a small number of Southern Resident sightings from October-January, with one additional sighting in April. *Area 3.* Strait of Juan de Fuca - Deception Pass Bridge, San Juan and Skagit County lines to the northeast, entrance to Admiralty Inlet to the southeast, U.S./Canadian border to the north, Bonilla Point/Tatoosh Island line to the West. All pods regularly use the Strait of Juan de Fuca for passage from Areas 1 and 2 to outside waters in the Pacific Ocean. Area 3 is predominantly a passage used to access outer coastal water feeding grounds, including Swiftsure and La Perouse Banks, off Tofino, British Columbia, and off Westport, as well as other areas with unknown usage, such as the coast of northern California. Recent observations at Westport coincided with presence of a spring Chinook salmon run, although other species were also likely present (NWFSC, unpubl. data). The presence of migrating salmonids in the Strait of Juan de Fuca suggests that feeding might occur during times the whales are transiting. However, the whales are not known to spend long periods in localized areas in the Strait. Sightings of the Southern Residents in Area 3 are limited, particularly on the U.S. side of the international boundary, as there is little observation effort in the area, particularly to the west toward the Bonilla Point/Tatoosh Island line. Even with a small number of actual sightings, we can infer that the whales are using this corridor, and the passage PCE is present in Area 3 based on the inland and coastal sightings of whales. The Strait of Juan de Fuca is not the only transit corridor between inland waters and coastal British Columbia, and the whales occasionally use the Strait of Georgia and Johnstone Strait in Canadian waters as an alternate route. Special Management Considerations The specific areas within the geographical area occupied by a species meet the definition of critical habitat only if they contain physical or biological features that “may require special management considerations or protection.” Agency regulations at 50 CFR 424.02(j) define “special management considerations or protection” to mean “any methods or procedures useful in protecting physical and biological features of the environment for the conservation of listed species.” Several forms of human activity have the potential to affect the habitat of killer whales and, specifically, the PCEs that are essential to their conservation. Most salmon stocks throughout the Northwest are at a fraction of their historic levels. Historically, overfishing was a major cause of decline. More recently the major cause is loss of freshwater habitat. Poor ocean conditions over the past two decades reduced populations already weakened by the degradation and loss of freshwater and estuary habitat, fishing pressures, hydropower system management, and hatchery practices. Continued regulation of contaminants and pollution in Puget Sound is also necessary to protect the prey PCE for Southern Residents through management schemes, such as the National Pollutant Discharge Elimination System (NPDES). Contaminants enter marine waters and sediments from numerous sources, but are typically concentrated near areas of high human population and industrialization. Once in the environment these substances proceed up the food chain, accumulating in long-lived top predators like Southern Resident killer whales. Chemical contamination through the food chain continues to be a potential threat to Southern Resident killer whales, despite the enactment of modern pollution controls in recent decades, which were successful in reducing, but not eliminating, the presence of many contaminants in the environment. Oil spills are another source of contamination that can have long-lasting impacts on habitat (although the primary concern with oil spills is the potential for direct injury to the whales). The Environmental Protection Agency and U.S. Coast Guard oversee the Oil Pollution Prevention regulations promulgated under the authority of the Federal Water Pollution Control Act. There is a Northwest Area Contingency Plan, developed by the Northwest Area Committee, which serves as the primary guidance document for oil spill response in Washington and Oregon. Southern Residents are highly mobile and use a variety of areas for foraging and other activities, as well as for traveling between these areas. Human activities can interfere with movements of the whales and impact the passage PCE. In particular, vessels may present obstacles to whale passage, causing the whales to swim further and change direction more often, which potentially increases energy expenditure for whales and impacts foraging behavior (although this effect of vessels is primarily a direct effect on the whales rather than an effect on their habitat). The PCEs identified for this designation may require special management considerations or protection. Fishery management, vessel activities, and water quality management are all activities that have the potential to affect the PCEs by altering prey abundance, prey contamination levels, and passage between areas. The proposed rule included information regarding which features may require special management considerations or protection for each of the three specific areas designated as critical habitat (71 FR 34571; June 15, 2006). Coastal and Offshore Areas We have few data on Southern Resident distribution and habitat use of coastal and offshore areas in the Pacific Ocean. While we know that the whales occupy these waters for a portion of the year and they are considered part of the geographical area occupied by the species, we do not have detailed information about distribution, behavior, and habitat. While we can infer that some of the PCEs, such as prey, must be present to support the whales, we do not have sufficient data to describe them adequately and identify ″specific areas″ with those features. Based on the difficulties of determining the presence of the PCEs in specific offshore areas, we cannot assess the human activities affecting them or the special management considerations for their protection. At this time we are not designating coastal or offshore areas, though we do recognize that they are important for the Southern Resident killer whales. There is an active research program to fill the data gaps regarding coastal and offshore distribution and habitat features, and we anticipate obtaining additional data in the coming years. We will consider new information as it becomes available to inform future considerations of critical habitat for Southern Residents. Unoccupied Areas ESA section 3(5)(A)(ii) further defines critical habitat to include “specific areas outside the geographical area occupied” if the areas are determined by the Secretary to be “essential for the conservation of the species.” Regulations at 50 CFR 424.12(e) specify that NMFS “shall designate as critical habitat areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” At the present time we have not identified any areas outside the geographical area occupied by the species that are essential for its conservation, and, therefore, we are not designating any unoccupied areas. Activities That May be Affected Section 4(b)(8) of the ESA requires that we describe briefly and evaluate, in any proposed or final regulation to designate critical habitat, those activities that may destroy or adversely modify such habitat or that may be affected by such designation. A wide variety of activities may affect critical habitat and, when carried out, funded, or authorized by a Federal agency, require an ESA section 7 consultation. Such activities include, but are not limited to, fishery management practices, vessel traffic, dredging and disposal, sub-marine cable/pipeline installation and repair, oil and gas exploration, pollutant discharge, and oil spill prevention and response. This critical habitat designation will provide Federal agencies, private entities, and the public with clear notification of critical habitat for Southern Resident killer whales and the boundaries of the habitat. This designation will also assist Federal agencies and others in evaluating the potential effects of their activities on critical habitat and in determining if ESA section 7 consultation with NMFS is needed. Consistent with recent agency guidance on conducting adverse modification analyses (NMFS, 2005), we will apply the statutory provisions of the ESA, including those in section 3 that define “critical habitat” and “conservation,” to determine whether a proposed action might result in the destruction or adverse modification of critical habitat. Application of ESA Section 4(b)(2) Section 4(b)(2) of the ESA provides that the Secretary shall consider certain impacts before designating critical habitat: “the Secretary shall designate critical habitat . . . on the basis of the best scientific data available and after taking into consideration the economic impact, impact to national security, and any other relevant impact of specifying any particular area as critical habitat.” The Secretary has the discretion to exclude an area from designation if he determines the benefits of exclusion (that is, avoiding the impact that would result from designation) outweigh the benefits of designation based upon best scientific and commercial data. The Secretary may not exclude an area from designation if exclusion will result in the extinction of the species. Because the authority to exclude is discretionary, exclusion is not required for any area. Section 4(b)(2) of the ESA calls for balancing the benefits of designation against the economic, national security, and other benefits of exclusion, and our considerations under section 4(b)(2) were described in the proposed rule and in a supporting report (NMFS, 2006c). We considered the conservation benefits to the species of designating areas, the economic benefits of excluding each of the three areas, and the national security benefits of excluding 18 particular military sites owned or controlled by the DOD. Benefits of Designation The primary benefit of designation is that section 7 of the ESA requires all Federal agencies to ensure their actions are not likely to destroy or adversely modify the designated habitat. This is in addition to the requirement that all Federal agencies ensure their actions are not likely to jeopardize the species′ continued existence. Another benefit of designation is that it provides notice of areas and features important to species conservation, and information about the types of activities that may reduce the conservation value of the habitat, which can be effective for education and outreach. Critical habitat designation may also trigger protection under state or local regulations. In addition to the direct benefits of critical habitat designation to the killer whales, there may be ancillary benefits. These other benefits may be economic in nature, or they may be expressed through beneficial changes in the ecological functioning of Puget Sound. For example, Puget Sound supports an active whale watching industry, and so an increase in the killer whale population could increase the economic value of that activity. Another example could be the increased viability of Puget Sound salmon populations if their harvest is reduced to assure a larger prey supply for killer whales. Yet another example could be reduced levels of pollution in Puget Sound. At this time we lack information that would allow us either to quantify or monetize the benefits of designation for the whales, and have determined the qualitative conservation benefits of designating each of the three particular areas identified as critical habitat for Southern Residents. We assessed the benefit of designating the three areas based on: the physical or biological features of each area, the Southern Residents′ use of each area (including how frequently they are present), the Federal activities in each area that might trigger an ESA section 7 consultation, the likelihood that we would seek a modification of those activities, the strength of the connection between those activities and habitat modification, and educational effects of designation. These considerations for each area are summarized in tables in the 4(b)(2) report (NMFS, 2006c) and the proposed rule (71 FR 34571; June 15, 2006). The benefit of designation also depends on the inherent conservation value of the area. The habitat areas for these killer whales are unique and irreplaceable. It is difficult to separate the value of any one of the areas: each of the three areas supports a distinct aspect of the whales′ life history, and the conservation function of each area complements the conservation function of the others. Therefore, designation of each particular area benefits the conservation function of the other areas. For all of the reasons discussed, we consider the benefit of designation of each area to be high. Economic Impacts (Economic Benefits of Exclusion) An economic report describes in detail the actions we assumed may be affected, the potential range of changes we might seek in those actions, and the estimate of economic impacts that might result from such changes. For salmon fishing, we considered it too speculative to predict any particular level of reduction, and so considered the total value of salmon fishing in Puget Sound. If any reduction in fishing were to be required as a result of critical habitat designation, it would be some portion of that total. We considered it too speculative at this time to postulate likely consultations on water quality management actions, and what changes we might seek in those actions. Although we were only able to quantify the baseline for any economic impacts for potential modifications to fishing, this does not imply that harvest is the most important activity affecting the abundance of the salmon PCE. As noted previously, salmon abundance is affected by a host of activities, which would be considered in ESA section 7 consultations. In the ESA section 4(b)(2) report we acknowledge that there are additional costs for programs associated with salmon conservation and and habitat restoration aside from costs associated with any harvest reduction, although we could not attribute these costs to the designation of critical habitat for southern resident killer whales. In addition, if fisheries were impacted, any potential reductions in harvest would be evaluated to ensure that they were consistent with the ESA, treaty fishing rights, treaty trust obligations, and relevant court cases. Balancing the Benefits and Economic Impacts of Designation Section 4(b)(2) of the ESA requires that we balance the benefit of critical habitat designation against the economic benefit of exclusion for each particular area. The benefit to the species of designation depends upon the inherent conservation value of the area, the seriousness of the threats to that conservation value, and the extent to which an ESA section 7 consultation or the educational aspects of designation will address those threats. If a threat bears a closer relationship to the adverse modification prohibition of section 7, we can begin to understand and give weight to the incremental benefit of designation beyond the protection provided by listing and the jeopardy prohibition. We have identified the threats that face each area and the likelihood that the adverse modification prohibition will enhance our ability to address those threats. We listed the whales as endangered, citing, among other reasons, “the ongoing and potentially changing nature of pervasive threats, in particular, disturbance from vessels, the persistence of legacy toxins and the addition of new ones into the whales' environment, and the potential limits on prey availability (primarily salmon) given uncertain future ocean conditions.” As described above, designation of critical habitat will enhance our ability to address some of these threats, either through an ESA section 7 consultation or through ongoing public outreach and education. Because some of these threats bear a stronger relationship to adverse modification than to jeopardy, we also believe there is an incremental benefit of designation beyond the protection afforded by the jeopardy prohibition. As stated above, the benefit of designation also depends on the inherent conservation value of the area. The habitat areas for these killer whales are unique and irreplaceable. It is difficult to separate the value of any one of the areas: each of the three areas supports a distinct aspect of the whales′ life history, and the conservation function of each area complements the conservation function of the others. Therefore, designation of each particular area benefits the conservation function of the other areas. For all of the reasons discussed above, we consider the benefit of designation of each area to be high. The benefit of exclusion of an area depends on some of the same factors - the likelihood of an ESA section 7 consultation and the extent to which an activity is likely to change as a result of that consultation. As with the benefit of designation side of the equation, if a threat bears a closer relationship to the adverse modification prohibition of section 7, we can begin to understand and give weight to the incremental cost of designation (benefit of exclusion) beyond the cost associated with listing and the jeopardy prohibition. In balancing the potential costs of designation, we also considered the nature of the threats and the relevance of section 7′s adverse modification prohibition to each threat. Because adverse modification and jeopardy bear an equally strong relationship to fishing, and because some changes in fishing are likely as a result of consultation, we gave these costs of designation moderate weight. We recognize that adverse modification bears the strongest relationship to water quality management, but we presently lack sufficient data to estimate an economic impact. We also recognize that we have not monetized (quantified) the costs that may be associated with the education benefit of designation with respect to vessel traffic. We conclude that the economic benefits of excluding each particular area do not outweigh the conservation benefits of designating each particular area as critical habitat, given the endangered status of the whales, the uniqueness of the habitat, the fact that threats to habitat were a primary concern leading to our endangered finding, and the fact that designation will enhance the ability of an ESA section 7 consultation to protect the habitat. Impacts on National Security Prior to listing Southern Resident killer whales under the ESA, we contacted the DOD by letter and identified 18 military sites, previously addressed during salmon and steelhead habitat designations, that potentially overlapped with areas under consideration for Southern Resident killer whale critical habitat:
(1)Naval Undersea Warfare Center, Keyport;
(2)Naval Ordnance Center, Port Hadlock (Indian Island);
(3)Naval Fuel Depot, Manchester;
(4)Naval Air Station, Whidbey Island;
(5)Naval Station Everett;
(6)Naval Hospital Bremerton;
(7)Fort Lewis (Army);
(8)Pier 23 (Army);
(9)Puget Sound Naval Ship Yard;
(10)Strait of Juan de Fuca naval air-to-surface weapon range, restricted area;
(11)Strait of Juan de Fuca and Whidbey Island naval restricted areas;
(12)Admiralty Inlet naval restricted area;
(13)Port Gardner Naval Base restricted area;
(14)Port Orchard Passage naval restricted area;
(15)Sinclair Inlet naval restricted area;
(16)Carr Inlet naval restricted area;
(17)Port Townsend/Indian Island/Walan Point naval restricted area; and
(18)Crescent Harbor Explosive Ordnance Units Training Area. These 18 military sites overlap with areas we found to meet the definition of critical habitat for the Southern Resident killer whale DPS. These 18 sites include shore-based facilities, nearshore areas around structures such as docks and piers, and offshore areas in Puget Sound where the Navy has security restrictions, and they cover approximately 112 square miles (291 sq km) out of the total 2,687 square miles (6,959 sq km) under consideration as critical habitat for Southern Residents. The total area considered was recalculated for the final rule and was updated from 2,676 square miles (6,931 sq km) in the proposed rule, to 2,687 square miles (6,959 sq km) for the final rule. The shore-based sites cover 81 miles (130 km) of shoreline out of the total 2,081 miles (3,349 km) of shoreline considered for critical habitat designation. The DOD confirmed that the 18 sites are owned or controlled by the DOD, identified the types of military activities that take place in the areas, and provided an assessment as to whether designation of critical habitat would affect military readiness. The Army and Navy concluded that critical habitat designation at any of these sites would likely impact national security by diminishing military readiness. The DOD requested that we consider conducting an ESA section 4(b)(2) analysis to determine whether all of the sites could be excluded from designation because the benefits of exclusion outweigh the benefits of designation. The possible impacts to national security include: preventing, restricting, or delaying training or testing exercises or access to sites; restricting or delaying activities associated with vessel/facility maintenance and ordnance loading; and delaying response times for ship deployments and overall operations. Balancing the Benefits of Designation with National Security Impacts The benefit of excluding these particular areas is that the DOD would only be required to comply with the jeopardy prohibition of ESA section 7(a)(2) and not the adverse modification prohibition. The DOD maintains that the additional commitment of resources in completing an adverse modification analysis, and any change in its activities to avoid adverse modification of critical habitat, would likely reduce its readiness capability. Given that the DOD is currently actively engaged in training, maintaining, and deploying forces in the current war effort, this reduction in readiness could reduce the ability of the military to ensure national security. We assessed the benefit of designating these areas of overlap based on: the physical or biological features of each area, the Southern Residents' use of each area (including how frequently they are present), the Federal activities in each area that might trigger an ESA section 7 consultation, the likelihood that we would seek a modification of those activities, and the strength of the connection between those activities and habitat modification. The benefit of designation is that the section 7 requirement regarding adverse modification would focus our section 7 consultations on essential physical and biological features of the whales' habitat, particularly where the Federal activity has a more direct impact on habitat features and a less direct impact on individual killer whales. We considered the overlap of killer whale habitat within the boundaries of military sites; the conservation value of that habitat; and the types of Federal activities in those areas that would likely undergo ESA section 7 consultation. We also considered the high priority placed on national security, the potential for critical habitat designation to have some impact on military readiness, and the fact that, collectively, these areas represent relatively small percentages of the total habitat and none of them are located in Area 1, the core summer area. Based on our consideration of these factors, we conclude that the national security benefits of exclusion outweigh the conservation benefits of designation for each of the 18 sites, and we are not designating these DOD sites as critical habitat. ESA Section 4(b)(2) Conclusions We conclude that the economic benefits of excluding each particular area do not outweigh the conservation benefits of designating each particular area as critical habitat, given the endangered status of the whales, the uniqueness of the habitat, the fact that threats to habitat were a primary concern leading to our endangered finding, and the fact that designation will enhance the ability of an ESA section 7 consultation to protect the habitat. We considered the overlap of killer whale habitat within the boundaries of military sites; the conservation value of that habitat; and the types of Federal activities in those areas that would likely undergo ESA section 7 consultation. We also considered the high priority placed on national security, the potential for critical habitat designation to have some impact on military readiness, and the fact that, collectively, these areas represent relatively small percentages of the total habitat and none of them are located in Area 1, the core summer area. Based on our consideration of these factors, we conclude that the national security benefits of exclusion outweigh the conservation benefits of designation for each of the 18 sites, and we are not designating these DOD sites as critical habitat. We did not identify other relevant impacts of designation beyond economic impacts and impacts on national security. Critical Habitat Designation We are designating approximately 2,560 square miles (6,630 km) of marine habitat within the area occupied by Southern Resident killer whales in Washington. The proposed areas are occupied and contain physical or biological features that are essential to the conservation of the species and may require special management considerations or protection. Some of these areas overlap with military sites, which are not designated as critical habitat because they were determined to have national security impacts that outweigh the benefit of designation and were therefore excluded under ESA section 4(b)(2). We determined that the economic benefits of exclusion of any of the areas do not outweigh the benefits of designation, and we are therefore not excluding any areas based on economic impacts. Section 4(b)(2) does not allow the agency to exclude areas if exclusion will result in extinction of the species. We are excluding only a small percentage of the whales′ habitat because of impacts to national security. Given this small percentage, we conclude that the exclusion of these areas will not result in extinction of the Southern Resident killer whale DPS. No unoccupied areas are currently designated as critical habitat. Required Determinations Regulatory Planning and Review This final rule has been determined to be significant for purposes of Executive Order (E.O.) 12866. A final economic report and ESA section 4(b)(2) report document our consideration of alternatives to rulemaking as required by this Executive Order. We have analyzed the economic effects of various management scenarios. These are described in the economic report supporting this rulemaking, available at *http://www.nwr.noaa.gov/* . Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) Under the Regulatory Flexibility Act (RFA)(5 U.S.C. 601 *et seq.* , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency publishes a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). We have prepared a final regulatory flexibility analysis (FRFA), which is part of the Economic Analysis (NMFS, 2006b). The FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA), which was part of the draft economic analysis that accompanied the proposed rule to designate critical habitat. The FRFA also incorporates comments received on the IRFA and on the economic impacts of the rule generally. Responses to comments are provided above in the preamble to the rule, and any necessary corresponding changes were made to the FRFA. The analysis is summarized below. A statement of the need for and objectives of this final rule is provided earlier in the preamble and is not repeated here. This final rule will not impose any recordkeeping or reporting requirements. At the present time, insufficient information exists regarding the cost structure and operational procedures and strategies in the sectors that may be directly impacted by the critical habitat designation. Further, significant uncertainty exists regarding the activities that may trigger an ESA section 7 consultation or how those activities may be modified as a result of consultation. Bearing in mind these limitations, we considered which of the potential economic impacts we analyzed might affect small entities. These estimates should not be considered exact estimates of the impacts of critical habitat to individual businesses. There are 344 entities engaged in fishing activities in the region, 332 of which are considered ″small entities.″ Although ESA section 7 consultations may also occur on water quality management activities, at this time it is too speculative to estimate the type and number of activities and the potential modifications that could result from a consultation. The RFA, as amended by SBREFA, requires us to consider alternatives to the proposed regulation that will reduce the impacts to small entities. We considered and rejected the alternative of not designating critical habitat for Southern Resident killer whales because such an approach does not meet the legal requirements of the ESA. We also considered alternatives in which each of the three critical habitat areas is excluded under section 4(b)(2) of the ESA. Each of these alternatives may have minimized impacts on small businesses by reducing consultation costs and potential project modifications necessitated pursuant to section 7(a)(2) of the ESA once an area is designated as critical habitat. As described earlier in this rulemaking, the magnitude of these impacts is difficult to predict. However, because we did not find that the economic benefits of exclusion outweigh the benefits of designation for any of the three specific areas, we did not have discretion to exclude any these areas pursuant to the ESA. We therefore rejected each of these alternatives as inconsistent with the ESA. E.O. 13211 On May 18, 2001, the President issued an Executive Order on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking any action that promulgates or is expected to lead to the promulgation of a final rule or regulation that
(1)is a significant regulatory action under E.O. 12866 and
(2)is likely to have a significant adverse effect on the supply, distribution, or use of energy. We have considered the potential impacts of this action on the supply, distribution, or use of energy and find the designation of critical habitat will not have impacts that exceed the thresholds identified above (NMFS, 2006b). Unfunded Mandates Reform Act (2 U.S.C. 1501 *et seq.* ) In accordance with the Unfunded Mandates Reform Act, we make the following findings:
(a)This final rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon state, local, tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5) (7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments' with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to state, local, and tribal governments under entitlement authority, “if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the state, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except
(i)a condition of Federal assistance; or
(ii)a duty arising from participation in a voluntary Federal program.” The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the ESA, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities which receive Federal funding, assistance, permits or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above to state governments.
(b)Due to the prohibition against take of this species both within and outside of the designated areas, we do not anticipate that this final rule will significantly or uniquely affect small governments. As such, a Small Government Agency Plan is not required. Takings In accordance with E.O. 12630, the final rule does not have significant takings implications. A takings implication assessment is not required. The designation of critical habitat affects only Federal agency actions. Private lands do not exist within the proposed critical habitat and therefore would not be affected by this action. Federalism In accordance with E.O. 13132, this final rule does not have significant federalism effects. A federalism assessment is not required. In keeping with Department of Commerce policies, we have requested information from, and will continue to coordinate this critical habitat designation with, appropriate state resource agencies in Washington. The designation may have some benefit to state and local resource agencies in that the areas essential to the conservation of the species are more clearly defined, and the PCEs of the habitat necessary for the survival of the Southern Resident killer whales are specifically identified. While making this definition and identification does not alter where and what federally sponsored activities may occur, it may assist local governments in long-range planning (rather than waiting for case-by-case ESA section 7 consultations to occur). Civil Justice Reform In accordance with E.O. 12988, the Department of Commerce has determined that this final rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order. We are designating critical habitat in accordance with the provisions of the ESA. This final rule uses standard property descriptions and identifies the PCEs within the designated areas to assist the public in understanding the habitat needs of Southern Resident killer whales. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) This final rule does not contain new or revised information collection for which OMB approval is required under the Paperwork Reduction Act. This final rule will not impose recordkeeping or reporting requirements on state or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act of 1969
(NEPA)NMFS has determined that an environmental analysis as provided for under NEPA for critical habitat designations made pursuant to the ESA is not required. See *Douglas County* v. *Babbitt* , 48 F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996). Government-to-Government Relationship With Tribes The long-standing and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the Federal Government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian Tribes and the application of fiduciary standards of due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. E.O. 13175 (Consultation and Coordination with Indian Tribal Governments) outlines the responsibilities of the Federal Government in matters affecting tribal interests. None of the designated critical habitat occurs on tribal lands. However, critical habitat does overlap with Usual and Accustomed hunting and fishing grounds. The designation of critical habitat for Southern Resident killer whales has the potential to affect tribal trust resources, particularly in relation to salmon, an important tribal resource and PCE for the whales. Should it be necessary to reduce Puget Sound fisheries, a reduction in tribal fisheries would only occur consistent with the principles established in the Secretarial Order, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act.” We will continue to consult with affected tribes regarding designated critical habitat. References Cited A complete list of all references cited in this rulemaking can be found on our website at *http://www.nwr.noaa.gov/* and is available upon request from the NMFS office in Seattle, Washington (see ADDRESSES ). List of Subjects in 50 CFR Part 226 Endangered and threatened species. Dated: November 21, 2006. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, part 226, title 50 of the Code of Federal Regulations is amended to read as follows: PART 226—DESIGNATED CRITICAL HABITAT 1. The authority citation of part 226 continues to read as follows: Authority: 16 U.S.C. 1533. 2. Add § 226.206, to read as follows: § 226.206 Critical habitat for the Southern Resident killer whale ( *Orcinus orca* ). Critical habitat is designated for the Southern Resident killer whale as described in this section. The textual descriptions of critical habitat in this section are the definitive source for determining the critical habitat boundaries. The overview map is provided for general guidance purposes only, and not as a definitive source for determining critical habitat boundaries.
(a)*Critical Habitat Boundaries.* Critical habitat includes three specific marine areas of Puget Sound, Washington, within the following counties: Clallam, Jefferson, King, Kitsap, Island, Mason, Pierce, San Juan, Skagit, Snohomish, Thurston, and Whatcom. Critical habitat includes all waters relative to a contiguous shoreline delimited by the line at a depth of 20 feet (6.1 m) relative to extreme high water in each of the following areas:
(1)*Summer Core Area:* All U.S. marine waters in Whatcom and San Juan counties; and all marine waters in Skagit County west and north of the Deception Pass Bridge (Highway 20) (48°24′ 25″ N./122°38′35″ W.).
(2)*Puget Sound Area:* All marine waters in Island County east and south of the Deception Pass Bridge (Highway 20) (48°24′ 25″ N./122°38′35″ W.), and east of a line connecting the Point Wilson Lighthouse (48°8′39″ N./122°45′12″ W.) and a point on Whidbey Island located at 48°12′30″ N./122°44′26″ W.; all marine waters in Skagit County east of the Deception Pass Bridge (Highway 20) (48°24′ 25″ N./122°38′35″ W.); all marine waters of Jefferson County east of a line connecting the Point Wilson Lighthouse (48°8′39″ N./122°45′12″ W.) and a point on Whidbey Island located at latitude 48°12′30″ N./122°44′26″ W., and north of the Hood Canal Bridge (Highway 104) (47°51′36″ N./122°37′23″ W.); all marine waters in eastern Kitsap County east of the Hood Canal Bridge (Highway 104) (47°51′36″ N./122°37′23″ W.); all marine waters (excluding Hood Canal) in Mason County; and all marine waters in King, Pierce, Snohomish, and Thurston counties.
(3)*Strait of Juan de Fuca Area:* All U.S. marine waters in Clallam County east of a line connecting Cape Flattery, Washington (48°23′10″ N./124°43′32″ W.), Tatoosh Island, Washington (48°23′30″ N./124°44′12″ W.), and Bonilla Point, British Columbia (48°35′30″ N./124°43′00″ W.); all marine waters in Jefferson and Island counties west of the Deception Pass Bridge (Highway 20) (48°24′ 25″ N./122°38′35″ W.), and west of a line connecting the Point Wilson Lighthouse (48°8′39″ N./122°45′12″ W.) and a point on Whidbey Island located at 48°12′30″ N./122°44′26″ W.
(b)An overview map of final critical habitat for the Southern Resident killer whale follows. BILLING CODE 3510-22-S ER29NO06.006 BILLING CODE 3510-22-C
(c)*Primary Constituent Elements.* The primary constituent elements essential for conservation of the Southern Resident killer whale are:
(1)Water quality to support growth and development;
(2)Prey species of sufficient quantity, quality, and availability to support individual growth, reproduction, and development, as well as overall population growth; and
(3)Passage conditions to allow for migration, resting, and foraging.
(d)*Sites owned or controlled by the Department of Defense.* Critical habitat does not include the following areas owned or controlled by the Department of Defense, or designated for its use, in the State of Washington, including shoreline, nearshore areas around structures such as docks and piers, and marine areas:
(1)Naval Undersea Warfare Center, Keyport;
(2)Naval Ordnance Center, Port Hadlock (Indian Island);
(3)Naval Fuel Depot, Manchester;
(4)Naval Air Station, Whidbey Island;
(5)Naval Station, Everett;
(6)Naval Hospital Bremerton;
(7)Fort Lewis (Army);
(8)Pier 23 (Army);
(9)Puget Sound Naval Ship Yard;
(10)Strait of Juan de Fuca naval air-to-surface weapon range, restricted area;
(11)Strait of Juan de Fuca and Whidbey Island naval restricted areas;
(12)Admiralty Inlet naval restricted area;
(13)Port Gardner Naval Base restricted area;
(14)Port Orchard Passage naval restricted area;
(15)Sinclair Inlet naval restricted area;
(16)Carr Inlet naval restricted area;
(17)Port Townsend/Indian Island/Walan Point naval restricted area; and
(18)Crescent Harbor Explosive Ordnance Units Training Area. [FR Doc. 06-9453 Filed 11-28-06; 8:45 am]
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  • 47 CFR 101.95
  • 47 CFR 101.603(a)(1)
  • 47 CFR 1.924(e)
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F. App'x254 F.3d 89
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