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Code · REGISTER · 2006-12-06 · Federal Energy Regulatory Commission, DOE · Proposed Rules

Proposed Rules. Supplemental notice of technical conference

45,714 words·~208 min read·/register/2006/12/06/06-9534

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

BILLING CODE 3410-02-M DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 2, 33, 365 and 366 [Docket No. AD07-2-000] Repeal of the Public Utility Holding Company Act of 1935 and Enactment of the Public Utility Holding Company Act of 2005; Transaction Subject to FPA Section 203; Supplemental Notice of Technical Conference November 27, 2006. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Supplemental notice of technical conference. SUMMARY: The Federal Energy Regulatory Commission (Commission) is holding a technical conference in Commission Docket No.
AD07-2-000 on December 7, 2006, to discuss certain issues raised in rulemakings issued in Commission Docket Nos. RM05-32-000 and RM05-34-000. The Commission is providing the agenda for the conference, a list of participants and providing interested parties an opportunity to file written comments following the conference. DATES: Comments may be filed on issues raised at the conference, on or before January 26, 2007. FOR FURTHER INFORMATION CONTACT: Roshini Thayaparan (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6857. Andrew P. Mosier, Jr. (Legal Information), Office of General Counsel, 888 First Street, NE., Washington, DC 20426,
(202)502-6274. SUPPLEMENTARY INFORMATION: This conference addresses certain issues raised in rulemakings issued in Docket No. RM05-32-000 (70 FR 75592, December 20, 2005) and Docket No. RM05-34-000. (71 FR 1348, January 6, 2006). As announced in the Notice of Technical Conference issued on October 6, 2006, the Federal Energy Regulatory Commission (Commission) will hold a technical conference on December 7, 2006, to discuss certain issues raised in rulemakings issued in Docket Nos. RM05-32 and RM05-34. 1 The technical conference will be held from 9:30 am to 4:30 pm
(EST)at the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in the Commission Meeting Room. All interested persons are invited to attend, and registration is not required. 1 Repeal of the Public Utility Holding Company Act of 1935 and Enactment of the Public Utility Holding Company Act of 2005, Order No. 667, FERC Stats. & Regs. ¶ 31,197 (2005), order on reh'g, Order No. 667-A, FERC Stats. & Regs. ¶ 31,213, order on reh'g, Order No. 667-B, FERC Stats. & Regs. ¶ 31,224 (2006), reh'g pending; Transactions Subject to FPA Section 203, Order No. 669, FERC Stats. & Regs. ¶ 31,200 (2006), order on reh'g, Order No. 669-A, FERC Stats. Regs. ¶ 31,214 (2006), order on reh'g, Order No. 669-B, FERC Stats. & Regs. ¶ 31,225 (2006). The agenda for this conference, with a list of participating panelists, is attached. In order to allot sufficient time for questions and responses, each speaker will be provided with five
(5)minutes for prepared remarks. Due to the limitation of time, slides and graphic displays (e.g., PowerPoint® presentations) will not be permitted during the conference. Presenters who wish to distribute copies of their prepared remarks or handouts should bring 100 double-sided copies to the technical conference. Presenters who wish to include comments, presentations, or handouts in the record for this proceeding should file their comments with the Secretary of the Commission. Comments may either be filed on paper or electronically via the eFiling link on the Commission's Web site at *http://www.ferc.gov.* Following the conference, any interested person will be permitted to file written comments in the above docket on or before January 26, 2007. A free webcast of this event will be available through *http://www.ferc.gov.* Anyone with Internet access who desires to view this event can do so by navigating to *http://www.ferc.gov* 's Calendar of Events and locating this event in the Calendar. The event will contain a link to its webcast. The Capitol Connection provides technical support for the free webcasts. It also offers access to this event via television in the DC area and via phone bridge for a fee. Visit *http://www.CapitolConnection.org* or contact Danelle Perkowski or David Reininger at 703-993-3100 for more information about this service. Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to *accessibility@ferc.gov* or call toll free 1-866-208-3372 (voice) or 202-208-1659 (TTY), or send a FAX to 202-208-2106 with the required accommodations. For more information about this conference, please contact: Andrew P. Mosier, Jr., Office of Energy Markets and Reliability, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6274, *Andrew.Mosier@ferc.gov.* Roshini Thayaparan, Office of the General Counsel—Energy Markets, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6857, *Roshini.Thayaparan@ferc.gov.* Magalie R. Salas, Secretary. Agenda for Technical Conference on Public Utility Holding Company Act of 2005 and Federal Power Act Section 203 Issues 2 December 7, 2006 Welcome Remarks: 2 The lists of panelists for this technical conference may change. The Commission will issue a further notice of changes if time permits. Additionally, issues raised in the Order No. 667, et al. and Order No. 669, et al. rulemakings with respect to whether the Commission should change its merger policy, including its competition analysis, will be discussed at a subsequent technical conference. 9:30 a.m.-9:45 a.m. Panel 1: Panel on Cross-Subsidization 9:45 a.m.-11:45 a.m. The Commission invites panelists to discuss whether there are additional actions, under the Federal Power Act
(FPA)or Natural Gas Act (NGA), that the Commission should take to supplement the protections against cross-subsidization that were implemented in Order No. 667, et al. and Order No. 669, et al. Specifically, the Commission seeks panelist input on any or all of the following issues: FPA Section 203 Authorities ○ In discussing the safeguards necessary to protect consumers under FPA section 203, Order No. 669 states that applicants “must adopt sufficient safeguards, including any necessary cash management controls (such as restrictions on upstream transfers of funds, ring fencing, etc.) to prevent any cross-subsidization between holding companies and their new subsidiaries before receiving section 203 approval.” As a general matter, the Commission and most states have authority to review proposed mergers/corporate dispositions involving public utilities and to impose cross-subsidization safeguards as a condition of approval; they also have rate related authorities to protect customers against inappropriate cross-subsidization. Should the Commission adopt specific generic cross-subsidization safeguards in its section 203 regulations or is it preferable, particularly in light of state authorities, for the Commission to permit applicants to implement safeguards on a case-by-case basis subject to audit oversight? ○ With respect to FPA section 203 merger/corporate applications, should the Commission require more specific cross-subsidy protections in addition to the general requirement that there shall be no cross-subsidization resulting from or reasonably foreseeable as a result of a FPA section 203 transaction? ○ Should the Commission adopt, by regulation, generic “ring fencing” or other conditions of merger approvals (other than codifying a version of its current code of conduct/merger restrictions) or should the Commission continue to consider such conditions on a case-by-case basis? In light of the fact that most states have authority to adopt such protections, is further generic action by the Commission inappropriate or unnecessary at this time? ○ Is the Commission getting sufficient information in FPA section 203 applications to make a determination that a merger or other corporate transaction will not result in cross-subsidization or the encumbrance of utility assets? If not, what additional information should the Commission require FPA section 203 applicants to file? FPA and NGA Rate and Accounting Authorities ○ Are there additional generic actions the Commission should take under its FPA or NGA authorities (other than FPA section 203, which is discussed in other questions above) to protect customers against inappropriate cross-subsidization or encumbrances of utility assets? Are reporting requirements, rather than restrictions, a better way in which to protect against cross-subsidization and the encumbrance of utility assets? ○ Should the Commission adopt regulations under FPA sections 205 and 206 to codify existing restrictions regarding power and non-power goods and services transactions between traditional public utilities and their “unregulated” affiliates? Should these existing restrictions apply to all traditional public utilities and their affiliates irrespective of whether they are seeking merger approval under FPA section 203 or market-based rate approval under FPA section 205? Should the scope of the existing power and non-power goods and services restrictions be expanded and, if so, how? ○ In light of the submissions to date of the FERC Form No. 60 (Service Company Report), which applies to centralized service companies, is the Commission getting sufficient information to protect against inappropriate cross-subsidization and the encumbrance of utility assets? Is there other information the Commission should routinely collect, or is case-by-case access to books and records in audit and rate proceedings sufficient to ensure that customers are protected against inappropriate cross-subsidization? Panelists ○ The Honorable Ray Baum, Commissioner, Oregon Public Utility Commission ○ The Honorable Robert Garvin, Commissioner, Wisconsin Public Service Commission ○ John Antonuk, President, The Liberty Consulting Group ○ Randolph Elliot, Principal, Miller, Balis & O'Neil, P.C., on behalf of the American Public Power Association and the National Rural Electric Cooperative Association ○ Brian Little, Assistant Controller, AGL Resources Inc. ○ Electric Utility Company Representative—TBA ○ Electric Utility Company Representative—TBA ○ Financial Representative—TBA Lunch: 12 p.m.-1 p.m. Panel 2: Panel on Cash Management Programs and Money Pools 1 p.m.-2:30 p.m. The Commission adopted its Cash Management Rule, Order No. 634, et al., prior to the Public Utility Holding Company Act of 2005 (PUHCA 2005), when the Commission had no direct authority over holding companies. The Commission invites panelists to discuss whether, and if so how, the Commission should modify its Cash Management Rule in light of PUHCA 2005. Should the Commission codify specific safeguards that must be adopted for cash management programs and money pool agreements and transactions? If so, what should those safeguards be? Panelists ○ Denise Parrish, Deputy Administrator, Wyoming Office of Consumer Advocate ○ Denise M. Furey, Senior Director, Fitch Ratings ○ Gas Industry Representative—TBA ○ Electric Utility Company Representative—TBA ○ Electric Utility Company Representative—TBA ○ State/Customer Representative—TBA Break: 2:30 p.m.-2:45 p.m. Panel 3: Panel on Exemptions, Waivers and Blanket Authorizations Set Forth in Order Nos. 667, et al. and 669, et al. 2:45 p.m.-4:15 p.m. In Order No. 667, et al. and Order No. 669, et al., the Commission set forth specific exemptions, waivers and blanket authorizations from the regulatory requirements set forth in those orders. The Commission invites panelists to discuss whether modifications to the specific exemptions, waivers and blanket authorizations set forth in Order No. 667, et al. and Order No. 669, et al. are warranted. Specifically, the Commission seeks input as to the following issues: —Exemptions and waivers set forth in Order No. 667, et al.: ○ Does the Commission need to consider additional or different exemptions and waivers than those set forth in Order No. 667, et al. or should it wait until it has had more experience under the current rules? —Blanket authorizations set forth in Order No. 669, et al.: ○ Does the Commission need to consider additional or different blanket FPA section 203 authorizations than those set forth in Order No. 669, et al. or should it wait until it has had more experience under the current rules? ○ In Order No. 669, et al., the Commission granted a blanket authorization under FPA section 203(a)(2) for holding companies to acquire up to 10 percent of voting securities of a securities in a transmitting utility, an electric utility company, or a holding company in a holding company system that includes a transmitting utility or an electric utility company. Under what circumstances would it be appropriate for the Commission to grant a parallel blanket authorization under FPA section 203(a)(1) for transactions that
(a)involve or permit transfers (dispositions) of up to 10 percent of a public utility's voting stock;
(b)involve a transfer of up to 10 percent of the voting stock of a holding company that directly or indirectly owns or controls a public utility? Panelists ○ State/Customer Representative—TBA ○ Customer/Financial Representative—TBA ○ Walter R. Burkley, Vice President and Counsel, Capital Research and Management Company ○ Steven Bunkin, Managing Director and Associate General Counsel, Goldman, Sachs & Co./J. Aron & Company ○ Debra Bolton, Vice President and Assistant General Counsel, Mirant ○ Ike Gibbs, Vice President, Compliance Director and Assistant General Counsel, JPMorgan Chase & Co. ○ Electric Utility Company Representative—TBA Closing Remarks: 4:15 p.m.-4:30 p.m. The Commissioners and staff may ask questions at the conclusion of presentations. All interested persons may file written comments following the technical conference on or before January 26, 2007. [FR Doc. E6-20609 Filed 12-5-06; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 40 [Docket No. RM06-16-000] Mandatory Reliability Standards for the Bulk-Power System November 27, 2006. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Notice granting in part motions for extension of time to file comments and announcing rulemaking proceeding. SUMMARY: On October 20, 2006, the Commission issued a Notice of Proposed Rulemaking on mandatory reliability standards for the Bulk-Power System. 71 FR 64770 (November 3, 2006). The Commission is extending the date to file comments on the proposed rule at the request of Edison Electric Institute and the ISO/RTO Council and is establishing a comment period for twenty revised proposed Reliability Standards that were filed in this docket on behalf of the North American Electric Reliability Council (NERC). The Commission is also opening a new rulemaking proceeding for three new proposed Reliability Standards that were filed by NERC. DATES: Comments on the NOPR are due January 3, 2007. Comments on NERC's twenty revised proposed Reliability Standards are due January 3, 2007. ADDRESSES: You may submit comments, identified by Docket No. RM06-16-000, by one of the following methods: • *Agency Web site:* *http://ferc.gov.* Follow the instructions for submitting comments via the eFiling link found in the Comment Procedures section of the Preamble. • *Mail:* Commenters unable to file comments electronically must mail or hand deliver an original and 14 copies of their comments to: Federal Energy Regulatory Commission, Office of the Secretary, 888 First Street, NE., Washington, DC 20426. Refer to the Comment Procedures section of the preamble for additional information on how to file paper comments. FOR FURTHER INFORMATION CONTACT: Jonathan First (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-8529. SUPPLEMENTARY INFORMATION: Mandatory Reliability Standards for the Bulk-Power System, Docket No. RM06-16-000. Facilities Design, Connections and Maintenance Reliability Standards, Docket No. RM07-3-000. On October 20, 2006, in Docket No. RM06-16-000, the Commission issued a Notice of Proposed Rulemaking
(NOPR)on Mandatory Reliability Standards for the Bulk-Power System. 1 Comments on the NOPR are due 60 days after publication in the **Federal Register** , or January 2, 2007. On November 17, 2006 and November 22, 2006, Edison Electric Institute
(EEI)and the ISO/RTO Council, respectively, requested a seven day extension to file comments. 1 Mandatory Reliability Standards for the Bulk-Power System, 117 FERC ¶ 61,084 (2006), 71 FR 64770 (November 3, 2006). On November 15, 2006, the North American Electric Reliability Council, on behalf of its affiliate, the North American Electric Reliability Corporation (NERC Corporation, and collectively NERC), filed 20 revised proposed Reliability Standards and three new proposed Reliability Standards for Commission approval. The Commission certified NERC Corporation as the Electric Reliability Organization
(ERO)pursuant to section 215 of the Federal Power Act in an order issued July 20, 2006 in Docket No. RR06-1-000. NERC requested that the 20 revised proposed Reliability Standards be included as part of the NOPR issued by the Commission in Docket No. RM06-16-000. Because of their close relationship with Reliability Standards dealt with in the October 20, 2006 NOPR, the Commission will address these 20 Reliability Standards as part of that proceeding. The 20 revised proposed Reliability Standards are: CIP-001-1—Sabotage Reporting COM-001-1—Telecommunications COM-002-2—Communications and Coordination EOP-002-2—Capacity and Energy Emergencies EOP-003-1—Load Shedding Plans EOP-004-1—Disturbance Reporting EOP-006-1—Reliability Coordination—System Restoration INT-001-2—Interchange Information INT-003-2—Interchange Transaction Information IRO-001-1—Reliability Coordination—Responsibilities and Authorities IRO-002-1—Reliability Coordination—Facilities IRO-003-2—Reliability Coordination—Wide-Area View IRO-005-2—Reliability Coordination—Current-Day Operations PER-004-1—Reliability Coordination—Staffing PRC-001-1—System Protection Coordination TOP-001-1—Reliability Responsibilities and Authorities TOP-002-2—Normal Operations Planning TOP-004-1—Transmission Operations TOP-006-1—Monitoring System Conditions TOP-008-1—Response to Transmission Limit Violations Comments on these 20 revised proposed Reliability Standards should be submitted by January 3, 2007, in Docket No. RM06-16-000. In addition, the deadline for filing comments on the NOPR is extended to January 3, 2007. Accordingly, the requests for extension of time filed by EEI and the ISO/RTO Council are granted to the limited extent set forth here. The Commission is also opening a new Docket No. RM07-3-000 for processing the three new proposed Reliability Standards. No preliminary comments are being sought at this time. A proposed rulemaking will be issued later, and we will allow comments then. The three proposed new Reliability Standards included in this docket are: FAC-010-1—System Operating Limits Methodology for the Planning FAC-011-1—System Operating Limits Methodology for the Operations Horizon FAC-014-1—Establish and Communicate System Operating Limits This filing is accessible on-line at *http://www.ferc.gov* , using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail *FERCOnlineSupport@ferc.gov* , or call
(866)208-3676 (toll free). For TTY, call
(202)502-8659. Magalie R. Salas, Secretary. [FR Doc. E6-20608 Filed 12-5-06; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF JUSTICE Bureau of Prisons 28 CFR Part 570 [BOP Docket No.1144-P] RIN 1120-AB44 Inmate Furloughs AGENCY: Bureau of Prisons, Justice. ACTION: Proposed rule. SUMMARY: In this document, the Bureau of Prisons (Bureau) proposes to revise its Federal regulations on the inmate furlough program primarily to more clearly provide for and define transfer furloughs. DATES: Comments are due by February 5, 2007. ADDRESSES: Our e-mail address is *BOPRULES@BOP.GOV.* Comments should be submitted to the Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First Street, NW., Washington, DC 20534. You may view an electronic version of this rule at *http://www.regulations.gov.* You may also comment via the Internet to BOP at *BOPRULES@BOP.GOV* or by using the *http://www.regulations.gov* comment form for this regulation. When submitting comments electronically you must include the BOP Docket No. in the subject box. FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone
(202)307-2105. SUPPLEMENTARY INFORMATION: The Bureau proposes to revise its Federal regulations on the inmate furlough program primarily to more clearly provide for and define transfer furloughs. In the proposed rules, we also seek to reorganize and clarify the rules, while eliminating language that constitutes agency guidance to staff. Any such guidance language will be retained in the relevant Bureau policy. Below is an analysis of each new proposed section. Proposed § 570.30 Purpose This section states that these rules describe the procedures governing the Bureau's furlough program, authorized by 18 U.S.C. 3622. The current rule contains language indicating that the Bureau has a furlough program to help inmates attain correctional goals, and that a furlough is a privilege, but not a right, reward, or means to shorten a sentence. We remove this language because the specific reasons for furlough, eligibility requirements, and conditions for furlough are described in more detail in the other regulations in this subpart. Proposed § 570.31 Inmate Eligibility for Furloughs In this section we state that sentenced inmates housed in Bureau facilities and some pretrial inmates may be eligible for furloughs. Sentenced inmates in Bureau facilities who are classified as central inmate monitoring cases may only participate after complying with other central inmate monitoring rules found in Part 524, Subpart F. We also state that sentenced inmates in contract facilities are not eligible for furloughs, but may apply for furloughs as specified in that facility's written agreement with the Bureau. Also, inmates who are U.S. Marshals prisoners housed in contract facilities are not eligible to participate, but must direct any furlough requests to the U.S. Marshals. Proposed § 570.32 Types of Furloughs This section defines a furlough as a Warden-authorized absence from an institution by an inmate who is not under escort of a staff member, U.S. Marshal, or State or Federal agents. The two types of furloughs described by this rule are transfer furloughs and non-transfer furloughs. Non-transfer furloughs are further classified depending on the purpose of the furlough (emergency or routine), and length (day or overnight). This section more accurately defines furloughs than current 570.31 (Definitions). Proposed § 570.33 Justification for Furlough This section describes the reasons that the Warden or designee may authorize a furlough. This section is derived from current 570.32 (Justification for furlough). Provisions in current 570.32 relating solely to staff guidance have been removed. Proposed § 570.34 Expenses of Furlough This section states that all expenses of a furlough are the responsibility of the inmate, the inmate's family, or other appropriate source approved by the Warden, except that the government may bear the expense of a furlough if it is for the government's primary benefit. This section derives from current 570.33. Language in current 570.33 relating to transfer to community confinement has been removed from the proposed rule because transfer furloughs will be described in proposed 570.35. Proposed § 570.35 Transfer Furlough Eligibility Requirements This section states that inmates transferring to administrative, low, medium, or high security facilities are generally not eligible for participation in the Bureau's transfer furlough program. This section also describes eligibility requirements for a transfer furlough, and derives from current 570.34 (a)-(d) (Eligibility requirements). Language relating solely to staff guidance in current 570.34 is removed from this proposed rule. This section also more clearly describes specific eligibility requirements for specific types of transfer furloughs. Inmates transferring to minimum security facilities must be transferring from a low or minimum security facility and must be appropriate for placement in a minimum security facility based on the inmate's security designation and custody classification at the time of transfer. Inmates transferring to community confinement must also be appropriate for placement in community confinement based on the security designation and custody classification at the time of transfer. Proposed § 570.36 Non-Transfer Furlough Eligibility Requirements This section contains a chart which clarifies the eligibility requirements for non-transfer furloughs. The chart in this section derives from current 570.34 (d)-(e), which describes the types of non-transfer furloughs an inmate may be eligible for, based on the inmate's length of confinement or time remaining on the inmate's sentence. This section also describes circumstances under which Wardens will ordinarily deny non-transfer furloughs. This section derives from current § 570.35. Language in current § 570.35 relating solely to staff guidance and processing instructions has been removed from the proposed rule. Proposed § 570.37 Procedures for Applying for a Furlough This section describes how an inmate may apply for a furlough, how the inmate will be notified of the Warden's decision on the furlough application, and how to appeal the decision. This section derives from current 570.36(a)-(c)(Procedures). Proposed § 570.38 Conditions of Furlough This section derives from a form contained in current 570.36(d) and from language in 570.37 (Violation of furlough). The form will be retained in relevant policy documents and will continue to be used by staff and inmates. This proposed rule lists the conditions of furlough described in the current rule, and states that an inmate must agree to comply with these conditions before a furlough can be approved. Executive Order 12866 This rule falls within a category of actions that the Office of Management and Budget
(OMB)has determined not to constitute “significant regulatory actions” under section 3(f) of Executive Order 12866 and, accordingly, it was not reviewed by OMB. The Bureau has assessed the costs and benefits of this rule as required by Executive Order 12866 Section 1(b)(6) and has made a reasoned determination that the benefits of this rule justify its costs. This rule will provide a more accurate description of the inmate furlough program. There will be no new costs associated with this rulemaking. Executive Order 13132 This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, under Executive Order 13132, we determine that this rule does not have sufficient Federalism implications to warrant the preparation of a federalism assessment. Regulatory Flexibility Act The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and by approving it certifies that it will not have a significant economic impact upon a substantial number of small entities for the following reasons: This rule pertains to the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. List of Subjects in 28 CFR Part 570 Prisoners. Harley G. Lappin, Director, Bureau of Prisons. Accordingly, under rulemaking authority vested in the Attorney General in 5 U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of Prisons in 28 CFR 0.96, we are proposing to amend 28 CFR part 570 as set forth below. Subchapter D—Community Programs and Release PART 570—COMMUNITY PROGRAMS 1. The authority citation for 28 CFR part 570 continues to read as follows: Authority: 5 U.S.C. 301; 18 U.S.C. 751, 3621, 3622, 3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses committed on or after November 1, 1987), 4161-4166, 5006-5024 (Repealed October 12, 1984 as to offenses committed after that date), 5039; 28 U.S.C. 509, 510. 2. Revise part 570, subpart C, to read as follows: Subpart C—Furloughs Sec. 570.30 Purpose. 570.31 Inmate eligibility for furloughs. 570.32 Types of furloughs. 570.33 Justification for furlough. 570.34 Expenses of furlough. 570.35 Transfer furlough eligibility requirements. 570.36 Non-transfer furlough eligibility requirements. 570.37 Procedures to apply for a furlough. 570.38 Conditions of Furlough. § 570.30 Purpose. The purpose of this subpart is to describe the procedures governing the furlough program of the Federal Bureau of Prisons (Bureau), which is authorized by 18 U.S.C. 3622. Under the furlough program, the Bureau allows inmates who meet certain requirements to be temporarily released from custody under carefully prescribed conditions. § 570.31 Inmate eligibility for furloughs.
(a)*Eligible inmates.* The following types of inmates may be eligible for furloughs:
(1)Sentenced inmates housed in Bureau facilities.
(2)Pretrial inmates housed in Bureau facilities (provided that they comply with the requirements of 28 CFR part 551, Subpart J).
(3)Sentenced inmates housed in Bureau facilities and classified as central inmate monitoring cases (provided that they comply with the requirements of 28 CFR part 524, Subpart F).
(b)*Ineligible inmates.* The following types of inmates are not eligible for furloughs:
(1)Sentenced inmates housed in contract facilities are not eligible to participate in the Bureau's furlough program under these rules, but may apply for furloughs as specified in that facility's written agreement with the Bureau.
(2)Inmates who are U.S. Marshals prisoners housed in contract facilities are not eligible to participate, but must direct any furlough requests to the U.S. Marshals. § 570.32 Types of furloughs. A furlough is an authorized absence from an institution by an inmate who is not under escort of a staff member, U.S. Marshal, or State or Federal agents. The two types of furloughs are:
(a)*Transfer furlough* —A furlough for the purpose of transferring an inmate from one Bureau facility to another, a non-federal facility, or community confinement (including home confinement) as noted below at § 570.33(a).
(b)*Non-transfer furlough* —A furlough for any purpose other than a transfer furlough, and which may be defined based on its nature, as either emergency or routine, as follows:
(1)*Emergency furlough* —A furlough allowing an inmate to address a family crisis or other urgent situation as noted below at § 570.33(b).
(2)*Routine furlough* —A furlough for any of the reasons noted below at § 570.33(a) and (c)-(j).
(c)*Duration and distance of non-transfer furlough:*
(1)*Day furlough* —A furlough within the geographic limits of the commuting area of the institution, which lasts 16 hours or less and ends before midnight.
(2)*Overnight furlough* —A furlough which falls outside the criteria of a day furlough. § 570.33 Justification for furlough. The Warden or designee may authorize a furlough, for 30 calendar days or less, for an inmate to:
(a)Transfer directly to another Bureau institution, a non-federal facility, or community confinement;
(b)Be present during a crisis in the immediate family, or in other urgent situations;
(c)Participate in the development of release plans;
(d)Establish or reestablish family and community ties;
(e)Participate in selected educational, social, civic, and religious activities which will facilitate release transition;
(f)Appear in court in connection with a civil action;
(g)Comply with an official request to appear before a grand jury, or to comply with a request from a legislative body, or regulatory or licensing agency;
(h)Appear in or prepare for a criminal court proceeding, but only when the use of a furlough is requested or recommended by the applicable court or prosecuting attorney;
(i)Participate in special training courses or in institution work assignments, including Federal Prison Industries
(FPI)work assignments, when daily commuting from the institution is not feasible; or
(j)Receive necessary medical, surgical, psychiatric, or dental treatment not otherwise available. § 570.34 Expenses of furlough. All expenses of a furlough, including transportation, food, lodging, and incidentals, are the responsibility of the inmate, the inmate's family, or other appropriate source approved by the Warden, except that the government may bear the expense of a furlough if it is for the government's primary benefit. § 570.35 Transfer furlough eligibility requirements.
(a)*Inmates transferring to administrative, low, medium, or high security facilities* are generally not eligible for participation in the Bureau's transfer furlough program.
(b)For a transfer furlough, inmates other than those described in
(a)must:
(1)Be physically and mentally capable of completing the furlough; and
(2)Demonstrate sufficient responsibility to provide reasonable assurance that furlough requirements will be met.
(c)*Inmates transferring to minimum security facilities* must meet the requirements described in (b), and must also be:
(1)Transferring from a low or minimum security facility; and
(2)Appropriate for placement in a minimum security facility based on the inmate's security designation and custody classification at the time of transfer.
(d)*Inmates transferring to community confinement* must meet the requirements described in (b), and must also be appropriate for placement in community confinement based on the inmate's security designation and custody classification at the time of transfer. § 570.36 Non-transfer furlough eligibility requirements.
(a)*An inmate may be eligible for a non-transfer furlough if* the inmate meets the criteria described in 570.35(b) and the following additional criteria: If an inmate has . . . Then the inmate may only be considered for . . . Been confined at the initially designated institution for less than 90 days An emergency non-transfer furlough. More than two years remaining until the projected release date An emergency non-transfer furlough. 2 years or less remaining until the projected release date A routine day furlough. 18 months or less remaining until the projected release date A routine overnight furlough within the institution's commuting area. 1 year or less remaining until the projected release date A routine overnight furlough outside the institution's commuting area.
(b)*Ordinarily, Wardens will not grant a furlough to an inmate if:*
(1)The inmate is convicted of a serious crime against a person;
(2)The inmate's presence in the community could attract undue public attention, create unusual concern, or diminish the seriousness of the offense; or
(3)The inmate has been granted a furlough in the past 90 days. § 570.37 Procedures to apply for a furlough.
(a)*Application.* Inmates may submit a furlough application to staff, who will review it for compliance with these regulations and Bureau policy.
(b)*Notification of decision.* An inmate will be notified of the Warden's decision on the furlough application. Where a furlough application is denied, the inmate will be notified of the reasons for the denial.
(c)*Appeal.* An inmate may appeal any aspect of the furlough program through the Administrative Remedy Program, 28 CFR Part 542, Subpart B. § 570.38 Conditions of furlough.
(a)An inmate who violates the conditions of a furlough may be considered an escapee under 18 U.S.C. 4082 or 18 U.S.C. 751, and may be subject to criminal prosecution and institution disciplinary action.
(b)A furlough will only be approved if an inmate agrees to the following conditions and understands that, while on furlough, he/she:
(1)Remains in the legal custody of the U.S. Attorney General, in service of a term of imprisonment;
(2)Is subject to prosecution for escape if he/she fails to return to the institution at the designated time;
(3)Is subject to institution disciplinary action, arrest, and criminal prosecution for violating any conditions(s) of the furlough;
(4)May be thoroughly searched and given a urinalysis, breathalyzer, and other comparable test, during the furlough or upon return to the institution, and must prepay the cost of such test(s) if the inmate or family members are paying the other costs of the furlough. The inmate must pre-authorize all testing fee(s) to be withdrawn directly from his/her inmate deposit fund account; and
(5)Must contact the institution (or United States Probation Officer) in the event of arrest, or any other serious difficulty or illness.
(c)While on furlough, the inmate must not:
(1)Violate the laws of any jurisdiction (Federal, State, or local);
(2)Leave the area of his/her furlough without permission, except for traveling to the furlough destination, and returning to the institution;
(3)Purchase, sell, possess, use, consume, or administer any narcotic drugs, marijuana, alcohol, or intoxicants in any form, or frequent any place where such articles are unlawfully sold, dispensed, used, or given away;
(4)Use medication that is not prescribed and given to the inmate by the institution medical department or a licensed physician;
(5)Have any medical/dental/surgical/psychiatric treatment without staff's written permission, unless there is an emergency. Upon return to the institution, the inmate must notify institution staff if he/she received any prescribed medication or treatment in the community for an emergency;
(6)Possess any firearm or other dangerous weapon;
(7)Get married, sign any legal papers, contracts, loan applications, or conduct any business without staff's written permission;
(8)Associate with persons having a criminal record or with persons who the inmate knows to be engaged in illegal activities without staff's written permission;
(9)Drive a motor vehicle without staff's written permission, which can only be obtained if the inmate has proof of a currently valid drivers license and proof of appropriate insurance;
(10)Return from furlough with anything the inmate did not take out with him/her (for example, clothing, jewelry, or books); or
(11)Comply with any other special instructions given by the institution. [FR Doc. E6-20612 Filed 12-5-06; 8:45 am] BILLING CODE 4410-05-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2006-0545; FRL-8251-6] Approval and Promulgation of Implementation Plans; Ohio; Volatile Organic Compound Emission Control Measures for Cincinnati and Dayton AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: On May 9, 2006, the Ohio Environmental Protection Agency (Ohio EPA) submitted several volatile organic compound
(VOC)rules for approval into the State Implementation Plan (SIP). The primary purpose of the rules is to partially replace the VOC reductions from Ohio's vehicle inspection and maintenance (E-Check) program (which ended on December 31, 2005) in the Cincinnati and Dayton areas. These replacement rules include a provision requiring the use of lower emitting solvents in cold cleaner degreasers, the use of more efficient auto refinishing painting application techniques and a rule requiring the use of lower emitting portable fuel containers. These rules are approvable because they contain more stringent requirements than Ohio's existing rules and they are enforceable. Ohio has correctly calculated their VOC emission reduction impact. EPA is also approving several other rule revisions, all of which meet EPA requirements, including an exemption for its printing rules, a site-specific rule for an aerosol can filling facility, elimination of the fluid catalytic cracking unit limitations for a Marathon Petroleum LLC facility, and an alternative leak detection and repair program for the Premcor Lima Refinery. DATES: Comments must be received on or before January 5, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-OAR-2006-0545, by one of the following methods: • *www.regulations.gov* : Follow the online instructions for submitting comments. • E-mail: mooney.john@epa.gov. • Fax:
(312)886-5824. • Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. • Hand Delivery: John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, 18th floor, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office's normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R05-OAR-2006-0545. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional instructions on submitting comments, go to Section I of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We recommend that you telephone Steven Rosenthal at
(312)886-6052 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Steven Rosenthal, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,
(312)886-6052. SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows: I. What Should I Consider as I Prepare My Comments for EPA? II. What Action Is EPA Taking Today? III. What Is the Purpose of This Action? IV. What Is EPA's Analysis of Ohio's Submitted VOC Rules? V. Statutory and Executive Order Reviews I. What Should I Consider as I Prepare My Comments for EPA? *When submitting comments, remember to:* 1. Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). 2. Follow directions—The EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. 3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. 4. Describe any assumptions and provide any technical information and/or data that you used. 5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. 6. Provide specific examples to illustrate your concerns, and suggest alternatives. 7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. 8. Make sure to submit your comments by the comment period deadline identified. II. What Action Is EPA Taking Today? EPA is proposing to approve several VOC rules into the Ohio SIP. These include more stringent solvent degreasing rules, an exemption for its printing rules, a site-specific rule for an aerosol can filling facility, elimination of the fluid catalytic cracking unit limitations for a Marathon Petroleum Company LLC facility, an alternative leak detection and repair program for the Premcor Lima Refinery, a rule requiring the marketing and sale of only low-emitting portable fuel containers, and a rule including the use of high efficiency paint application equipment at auto body refinishing operations. III. What Is the Purpose of This Action? The primary purpose of the rules that Ohio submitted is to obtain VOC emission reductions to partially offset the increase in VOC emissions resulting from elimination of its E-Check program in the Cincinnati and Dayton areas. Ohio EPA has submitted additional VOC and nitrogen oxide emission reduction measures to fully compensate for this increase in emissions. These additional emission reduction measures, as well as other demonstrations needed to remove the E-Check program from the Ohio SIP, will be the subject of future rulemaking actions. Ohio has also submitted several site-specific rule revisions that have been requested by emission sources in Ohio. These rule revisions are also addressed in this notice. IV. What Is EPA's Analysis of Ohio's Submitted VOC Rules? A. New VOC Rules and Rule Revisions
(1)3745-21-09(O)—Solvent Metal Cleaning A new paragraph (3745-21-09(O)(2)(e)(i)) restricts owners and operators of cold cleaners located in the Cincinnati and Dayton ozone nonattainment areas to the use of solvents with a maximum vapor pressure of 1.0 mmHg, which results in a 67 percent emission reduction, after a compliance date of May 1, 2006 (as specified in 3745-21-04(C)(16)(c). This vapor pressure limitation was chosen to further reduce VOC emissions from cold cleaners. An exemption was added for the cleaning of paint gun parts. This exemption, in 3745-21-09(O)(2)(e)(iv), is approvable because the requirement to use less volatile paint cleaners would probably require the use of higher emitting processes and because the removal of paint and coatings from paint gun parts is not generally considered, and regulated, by cold cleaning regulations. In addition, 3745-21-(6)(b) clarifies that regardless of whether or not a solvent metal cleaning operation is exempt from the requirements in 3745-21-09(O)(2)-(O)(5), because it is subject to the halogenated solvent cleaning rule in subpart T of 40 CFR Part 63, the solvent in a cold cleaner cannot exceed 1.0 mmHg. These revisions to the Ohio's solvent metal cleaning rule are approvable because they make the rule more stringent and are enforceable.
(2)3745-21-09(T)—Leaks From Petroleum Refinery Equipment OAC 3745-21-09(T)(4) allows the director of Ohio EPA to accept an alternative petroleum refinery monitoring, recordkeeping and reporting program to that required by (T)(1) of this rule if the alternative program is at least as effective in identifying, documenting and reporting leaks as the program in (T)(1). A new paragraph (T)(4)(a) approves the November 19,2002 alternative monitoring, recordkeeping and reporting program entitled “Premcor Lima Refinery, LDAR Plan” by the director of Ohio EPA. The alternative monitoring, recordkeeping and reporting program is approved in the SIP. EPA is hereby approving OAC 3745-21-09(T)(4), and the November 19, 2002, alternative monitoring, recordkeeping and reporting program entitled “Premcor Lima Refinery, LDAR Plan,” because EPA agrees that this alternative program is at least as effective as the existing program in (T)(1) in detecting and reducing emissions from leaks.
(3)3745-21-09(Y)—Flexographic, Packaging Rotogravure and Publication Rotogravure Printing Lines A new paragraph, 3745-21-09(Y)(2)(d), was added to exempt any printing line at a facility in which the total maximum usage of VOC in all coatings and inks employed in all lines is less than or equal to one hundred tons per year. This exemption is consistent with EPA reasonably available control technology
(RACT)guidance. New paragraph 3745-21-09(Y)(3) adds a “once in, always in” provision which clarifies that a facility is not eligible for a facility exemption once the control requirements of this rule apply to a facility. This “once in, always in” provision is also consistent with EPA RACT policy. These new paragraphs are approvable.
(4)3745-21-09(RR)—Sherwin Williams Diversified Brands This new paragraph contains site-specific RACT requirements for the Sherwin Williams facility in Bedford Heights that fills aerosol cans. The primary source of emissions from this facility is filling aerosol cans with VOC propellant. The numerical emission limit is 0.75 pounds of VOC per 1,000 aerosol cans produced, which also includes, for each rolling 12-month period, the emissions from Sherwin Williams' liquid mixing tanks, can liquid filling operations, gashouse operations, can brushing operations and can piercing operations. The RACT requirements specify a minimum 90% control efficiency for the required thermal incinerator, and specify that VOC emissions from non-emergency safety diversions of a thermal incinerator are to be included in determining compliance with the VOC emission rate limitation. This rule is approvable because
(1)it requires that, when operating, a gashouse (the largest emission source where the propellant is added) thermal incinerator meets a minimum 90% destruction efficiency and
(2)clarifies safety diversions, the emissions which are included in the 0.75 lbs VOC/1000 cans limit, as well as emergency events (during which the line is shut down), which are not included. The safety diversion and emergency event provisions are necessary because of the potential for an explosion in using an incinerator to control gashouse emissions.
(5)3745-21-09(VV)—Marathon Petroleum Company The control requirements for the Marathon facility's fluid catalytic cracking unit, previously contained in 3745-21-09(VV)(1), have been deleted in order to reduce overlapping and conflicting requirements with the National Emission Standard for Hazardous Air Pollutants from Petroleum Refineries (Refinery MACT). Deletion of 3745-21-09(VV)(1) is approvable because the control requirements in 40 CFR Part 63,Subpart UUU of the Refinery MACT are at least as stringent as the control requirements in 3745-21-09(VV)(1), and will achieve equivalent or greater emission reductions from the Marathon facility's fluid catalytic cracking unit.
(6)3745-21-17—Portable Fuel Container and Spouts This new rule, containing the standards for portable fuel containers (PFCs), was added as an additional control strategy to lower future VOC emissions throughout Ohio. PFCs are used to transport and store fuel(gasoline, kerosene and diesel fuel) from a retail distribution point to a point of use and eventually dispense fuel into equipment ( *e.g.* , a lawnmower). These containers come in a variety of shapes and sizes with nominal capacities ranging from 1 to over 6 gallons. This rule is based upon the rule by the California Air Resources Board (CARB), which is the leader in PFC technology. This rule is enforceable, and, based upon CARB test data, PFCs meeting these limits will achieve a 75 percent emission reduction. This rule is therefore approvable.
(7)3745-21-18—Commercial Motor Vehicle and Mobile Equipment Refinishing Operations This new rule was added to lower VOC emissions from auto body refinishing operations, most of which are at small body shops that repair and refinish automobiles. This rule eliminates the use of air spray, which has a low transfer efficiency resulting in higher emissions, requires proper training in the use of paint application equipment, specifies proper spray gun cleaning techniques and requires that VOC containing materials be stored in nonabsorbent, non-leaking containers and that the containers be closed when not in use. This rule also requires that auto body refinishing facilities provide documentation of the above cited control measures. This rule is approvable because it eliminates air spray and adds additional control measures that must be properly documented. B. Revisions That Correct Errors in Previously Adopted and Effective (On May 27, 2005) VOC RACT Rules
(1)3745-21-01(V)(9)—Control Device Definition This definition of a control device for SOCMI Reactors and Distillation Units was amended to eliminate a reference to a rule section that had been removed. This revised definition is approvable because it properly defines a control device and clarifies that a recovery device is not considered a control device.
(2)3745-21-12(H)(4)—Bakeries This section requires any uncontrolled bakery oven exempted under paragraph (D)(2), and not (D)(2)(a) which does not exist, to keep records to determine whether the applicability cutoffs in (D)(2) have been exceeded. This section also requires that Ohio EPA or its delegated local air agency be notified if the applicability cutoff in (D)(2) has been exceeded. This section is therefore approvable.
(3)3745-21-01(AA)—Incorporation by Reference The revisions to the incorporation by reference section include both minor changes to properly format citations and new references to materials referenced in Ohio's VOC regulations. These revisions include the addition of the “Standard Specification for Portable Kerosene Containers for Consumer Use,” “Standard Specification for Portable Gasoline Containers for Consumer Use,” “Code for the Manufacture and Storage of Aerosol Products,” and “Protocol for Determining the Daily Volatile Organic Compound Emission Rate of Automobile and Light-Duty Truck Topcoat Operations,” and are approvable. C. Analysis of VOC Emission Reductions From Individual Control Measures Analyses (Please note that these rules have been previously described in section IV. (A))
(1)3745-21-09(O)—Solvent Metal Cleaning Reducing the vapor pressure in cold cleaners to no greater than 1.0 mmHg has been documented to result in a 67 percent reduction in VOC emissions. Such reduction is based upon a survey of existing solvent vapor pressures. This regulation is based on similar regulations previously promulgated in the Chicago/Metro East areas of Illinois, which was also used as a basis for the Ozone Transport Commission
(OTC)model rule as discussed in “Industrial Cleaning”, Midwest RPO (LADCO) white paper dated March 14, 2005. EPA's default 80 percent rule effectiveness was also applied. Using 2002 baseline emissions for VOC (tons/day), a growth factor of 1.199, a 67 percent reduction and an 80 percent rule effectiveness resulted in Cincinnati area estimated reductions of 2.57 tons per day
(TPD)for 2006. Dayton area estimated reductions were determined to be 1.75 TPD for 2006.
(2)3745-21-18—Commercial Motor Vehicle and Mobile Equipment Refinishing Operations This rule requires the use of higher transfer efficiency paint application equipment, which has been documented to achieve a 35 percent reduction, according to the OTC Pechan Report, dated March 2001, and in the LADCO white paper “Auto Body Refinishing,” dated March 28, 2005. EPA's default 80 percent rule effectiveness was also applied. Using 2002 baseline emissions for VOC (tons/day), a 1.175 growth factor, a 35 percent reduction and an 80 percent rule effectiveness resulted in Cincinnati area estimated reductions of 0.44 TPD for 2006. Dayton area estimated reductions were determined to be 0.30 TPD for 2006.
(3)3745-21-17—Portable Fuel Container and Spouts A February 9, 2005 LADCO white paper estimates that 12,694 tons of VOCs are emitted yearly in Ohio from PFCs. Ohio has adopted this rule based on CARB's PFC rule, which has been documented by CARB to achieve a 75 percent VOC reduction. Emission reductions are estimated by considering a 75 percent control efficiency, a 10 percent annual turnover rate, and an 80 percent rule effectiveness. These reductions will begin to occur in 2007, when this rule goes into effect. V. Statutory and Executive Order Reviews Executive Order 12866; Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, September 30, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Paperwork Reduction Act This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). Regulatory Flexibility Act This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Unfunded Mandates Reform Act Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Order 13132 Federalism This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Executive Order 13175 Consultation and Coordination With Indian Tribal Governments This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Executive Order 13045 Protection of Children From Environmental Health and Safety Risks This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant regulatory action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impractical. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a SIP submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a program submission that otherwise satisfies the provisions of the Clean Air Act. Therefore, the requirements of section 12(d) of the NTTA do not apply. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: November 21, 2006. Mary A. Gade, Regional Administrator, Region 5. [FR Doc. E6-20638 Filed 12-5-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 70 [FDMS Docket No. EPA-R03-OAR-2006-0933; FRL-8252-4] State Operating Permit Programs; Delaware; Amendments to the Definition of “a major source” AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA proposes to approve an amendment to the State of Delaware's operating permit program to correct the definition of “a major source.” This amendment would change the definition of “a major source” by removing the phrase “but only with respect to those air pollutants that have been regulated for that category” from the Regulation No. 30 (Title V) definition of a major source, as it applies to these Federal standards. This would require all fugitive emissions to be included in major source determination for sources subject to Federal New Source Performance Standards
(NSPS)or the National Emissions Standards for Hazardous Air Pollutants standards (NESHAPs), not just the pollutants regulated by the particular NSPS or NESHAP. This amendment is necessary to make the current definition as stringent as the corresponding provision of the Title V regulations, which went into effect on November 27, 2001. This change will make this aspect of Regulation No. 30 consistent with Federal rule. In the Final Rules section of this **Federal Register** , EPA is approving the State's amendment to its operating permit program as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. DATES: Comments must be received in writing by January 5, 2007. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2006-0933 by one of the following methods: A. *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. *B. E-mail: campbell.dave@epa.gov.* C. *Mail:* EPA-R03-OAR-2006-0933, David Campbell, Chief, Permits and Technical Assessment Branch, Mailcode 3AP11, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2006-0933. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., 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 in *http://www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Delaware Department of Natural Resources & Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 19903. FOR FURTHER INFORMATION CONTACT: Rosemarie Nino,
(215)814-3377, or by e-mail at *nino.rose@epa.gov.* SUPPLEMENTARY INFORMATION: For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this **Federal Register** publication. This action approves an amendment to the Delaware Title V operating permit program to correct the definition of a “major source.” Dated: November 21, 2006. William T. Wisniewski, Acting Regional Administrator, Region III. [FR Doc. E6-20642 Filed 12-5-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0731; FRL-8104-1] Diphenylamine; Proposed Pesticide Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: This document proposes to establish a tolerance for residues of diphenylamine in or on pear under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA). DATES: Comments must be received on or before February 5, 2007. ADDRESSES: Submit your comments, identified by docket identification
(ID)number EPA-HQ-OPP-2006-0731, 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. *Instructions* : Direct your comments to docket ID number EPA-HQ-OPP-2006-0731. EPA's policy is that all comments received will be included in the docket without change and may be made available on-line at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The Federal regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket* : All documents in the docket are listed in the docket index. Although listed in the index, some information is not publicly available, e.g., 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 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 hours of operation of this Docket Facility are 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: Shaja R. Brothers, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave, NW., Washington, DC 20460-0001; telephone number:
(703)308-3194; e-mail address: *brothers.shaja@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 code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions. 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. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI* . Do not submit this information to EPA through www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for preparing your comments* . When submitting comments, remember to: i. Identify the document by docket ID number and other identifying information (subject heading, **Federal Register** date and page number). ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. iv. Describe any assumptions and provide any technical information and/or data that you used. v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. vi. Provide specific examples to illustrate your concerns and suggest alternatives. vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. viii. Make sure to submit your comments by the comment period deadline identified. II. Background and Statutory Findings EPA on its own initiative, under section 408(e) of the FFDCA, 21 U.S.C. 346a(e), is proposing to establish a tolerance for residues of the fungicide, diphenylamine in or on pear at 5.0 parts per million (ppm). The Interregional Research Project Number 4 (IR-4) submitted a petition (PP 0E6107) for this use. However, neither IR-4 nor Atomchem North American Incorporated, the registrant, submitted all required elements of a petition in support of establishing a tolerance. Because the petition was incomplete, EPA did not publish a Notice of Filing for the petition. Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “ there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” 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 the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for a tolerance for residues of diphenylamine on pear at 5.0 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. The nature of the toxic effects caused by diphenylamine is discussed in Table 1 of this unit as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies reviewed. **Table 1.—Subchronic, Chronic, and Other Toxicity** Guideline No. Study Type Results 870.3100 90-Day oral toxicity rodents NOAEL = 75 mg/kg/day LOAEL = 375 mg/kg/day based on decreased body weight and body weight gain, dark urine, increased absolute spleen and liver weights, congestion in spleen, kidney, and liver, discoloration and alterations in hematological and clinical chemistry parameters. 870.3100 90-Day oral toxicity rodents NOAEL = 2 mg/kg/day M/F LOAEL = 94/107 mg/kg/day based on liver/spleen alterations (extramedullary hematopoiesis in the liver, discoloration and hemosiderosis of the liver, congestion and extramedullary hematopoiesis in the spleen). 870.3150 90-Day oral toxicity non-rodents M/F NOAEL = 50 mg/kg/day LOAEL (mg/kg/day) not determined 870.3200 21/28-Day dermal toxicity NOAEL = 500 mg/kg/day LOAEL = 1,000 mg/kg/day based on effects in the stomach (dark foci-red foci in both sexes-6/10). Dermal: NOAEL = 1,000 mg/kg/day; LOAEL (mg/kg/day): Not determined. 870.3700 Prenatal developmental in rodents Maternal NOAEL = 50 mg/kg/day Maternal LOAEL = 100 mg/kg/day based on decreased spleen weights and discoloration of the spleen Developmental NOAEL = 100 mg/kg/day Developmental LOAEL (mg/kg/day): Not determined 870.3700 Prenatal developmental in nonrodents Maternal NOAEL = 100 mg/kg/day Maternal LOAEL = 300 mg/kg/day based on deceased body weight gains and food consumption Developmental NOAEL = 300 mg/kg/day Developmental LOAEL (mg/kg/day): Not determined 870.3800 Reproduction and fertility effects Parental/Systemic NOAEL (mg/kg/day): Not determined. Parental/Systemic M/F LOAEL = 40/46 mg/kg/day based on gross pathological findings in the spleen and microscopic findings in the kidney, liver, and spleen. Reproductive M/F NOAEL = 115/131 mg/kg/day. Reproductive M/F LOAEL = 399/448 mg/kg/day based on decreased litter size in both generations. Offspring M/F NOAEL = 40/46 mg/kg/day. Offspring M/F LOAEL = 115/131 mg/kg/day based on decreased body weight of F2 pups in late lactation. 870.4100 Chronic toxicity dogs NOAEL = 10 mg/kg/day LOAEL = 50 mg/kg/day based on alterations in clinical chemistry parameters (increased BUN, cholesterol, total bilirubin) and increased absolute/relative kidney, liver and spleen weights. 870.4200 Carcinogenicity rats NOAEL (mg/kg/day): Not determined. M/F LOAEL = 73/91 mg/kg/day based on histopathological lesions in the spleen. No evidence of carcinogenicity. 870.4300 Carcinogenicity mice M/F NOAEL = 29/25 mg/kg/day. M/F LOAEL = 147/138 mg/kg/day based on reduced body weight and body weight gains, changes in hematological parameters, spleen and kidney lesions and increased clinical signs of toxicity. No evidence of carcinogenicity 870.5100 Gene mutation Negative 870.5300 Cytogenetics Weakly mutagenic in the presence of metabolic activation 870.5395 Other effects Negative 870.7485 Metabolism and pharmacokinetics Terminal distribution data showed no significant residual activity in tissues 168 hours post-dose for both the low and high oral dose groups: Urine was the major route for excretion. Recovery after 168 hours: Single/repeated low dose = urine 68-81% (both sexes) single high dose = 73-74% Male rats excreted a greater percentage of diphenylamine derived activity at the low dose, while female rats showed greater excretion in feces at this dose. At the high dose, the percentage eliminated in urine was equivalent in both males and females. Metabolites-urine: Dihydroxylated conjugates of diphenylamine, mono-hydroxylated sulfate conjugates of diphenylamine, monohydroxylated glucuronide conjugates of diphenylamine. Metabolites-feces: Parent chemical and 4-hydroxydiphenylamine, which comprised 0.5-3% administered dose in both sexes. B. Toxicological Endpoints 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. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intra species differences. For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA Safety Factor (SF). For non-dietary risk assessments (other than cancer) the UF is used to determine the LOC. For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure
(MOE)= NOAEL/exposure) is calculated and compared to the LOC. The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 x 10 6 or one in a million). Under certain specific circumstances, MOE calculations will be used for the carcinogenic risk assessment. In this non-linear approach, a “point of departure” is identified below which carcinogenic effects are not expected. The point of departure is typically a NOAEL based on an endpoint related to cancer effects though it may be a different value derived from the dose response curve. To estimate risk, a ratio of the point of departure to exposure (MOE <sup>cancer</sup> = point of departure/exposures) is calculated. A summary of the toxicological endpoints for diphenylamine used for human risk assessment is shown in Table 2 of this unit: **Table 2.—Summary of Toxicological Dose and Endpoints for Diphenylamine for Use in Human Risk Assessment** Exposure Scenario Dose Used in Risk Assessment, UF FQPA SF* and Level of Concern for Risk Assessment Study and Toxicological Effects Acute Dietary (Females 13-50 years of age) N/A N/A An acute reference dose for females aged 13-50 has not been established. Developmental toxicity studies in rats and rabbits and a 2-generation reproduction study in rats did not demonstrate evidence of toxicity attributable to a single dose. Acute Dietary (General population including infants and children) N/A N/A An endpoint attributable to a single dose was not identified from the available database. Chronic Dietary (All populations) NOAEL = 10 mg/kg/day UF = 100 Chronic RfD = 0.1 mg/kg/day FQPA SF = 1X cPAD = chronic RfD/FQPA SF = 0.1 mg/kg/day Chronic Toxicity - Dog LOAEL = 50 mg/kg/day based on alterations in clinical chemistry parameters (increased BUN, cholesterol, total bilirubin) and increased absolute/relative kidney, liver, and spleen weights. Short-Term Dermal (1 to 30 days) (Residential) Dermal (or oral) study NOAEL= 500 mg/kg/day LOC for MOE = 100 (Residential) 21-Day Dermal - Rabbit LOAEL = 1,000 mg/kg/day based on effects in the stomach (dark red foci in both sexes). Intermediate-Term Dermal (1 week to several months) (Residential) Dermal (or oral) study NOAEL = 500 mg/kg/day LOC for MOE = 100 (Residential) 21-Day Dermal- Rabbit LOAEL = 1,000 mg/kg/day based on effects in the stomach (dark red foci in both sexes). Short-Term Inhalation (1 to 30 days) (Residential) Inhalation (or oral) study NOAEL = 50 mg/kg/day (inhalation absorption rate = 100%) LOC for MOE = 100 (Residential) Developmental Toxicity - Rat LOAEL = 100 mg/kg/day based on increased spleen weights and discoloration of the spleen. Intermediate-Term Inhalation (1 week to several months) (Residential) Inhalation (or oral) study NOAEL = 50 mg/kg/day (inhalation absorption rate = 100%) LOC for MOE = 100 (Residential) Developmental Toxicity - Rat LOAEL = 100 mg/kg/day based on increased spleen weights and discoloration of the spleen. Cancer (oral, dermal, inhalation) N/A N/A Classification: This chemical is “not likely” to be a human carcinogen. C. Exposure Assessment 1. *Dietary exposure from food and feed uses.* The residue of concern in plants and livestock for the tolerance enforcement and risk assessment is parent diphenylamine. Tolerances are established in 40 CFR 180.190(a) for diphenylamine residues in/on apple at 10 ppm and apple, wet pomace at 30 ppm. Diphenylamine (EC or SC/L) is applied to apples (pre- or post-harvest) as a spray, dip or drench application. Additionally, tolerances are established at 0.01 ppm in milk, meat, fat, and meat byproducts (except liver) of cattle, goat, horse, and sheep, and at 0.1 ppm in liver of these animals. Risk assessments were conducted by EPA to assess dietary exposures from diphenylamine in food as follows: i. *Acute exposure* . There were no toxic effects attributable to a single dose. An endpoint of concern was not identified to quantitate an acute-dietary risk to the U.S. general population or to the subpopulation females 13-50 years old. Therefore, an acute aggregate exposure assessment was not performed. ii. *Chronic exposure* .In conducting this chronic dietary risk assessment the Dietary Exposure Evaluation Model (DEEM 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: The chronic dietary exposure analysis was based on tolerance level residues, DEEM (Version 7.81) default processing factors, an empirical processing factor for apple juice, and 100% crop treated assumptions. iii. *Cancer* . Diphenylamine was classified as “not likely to be a human carcinogen;” therefore, a cancer dietary exposure analysis was not performed. 2. *Dietary exposure from drinking water* . Diphenylamine uses are post-harvest; therefore, residues in drinking water are not relevant to this risk assessment. 3. *Dietary exposure from non-dietary exposure* . Diphenylamine is not registered for use on any sites that would result in residential exposure. Therefore a residential exposure risk assessment was not performed. 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to diphenylamine and any other substances and diphenylamine 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 diphenylamine 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 the FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. 2. *Prenatal and postnatal sensitivity* . There is no indication of increased sensitivity of rats or rabbits to *in utero* and postnatal exposure to diphenylamine. In prenatal developmental toxicity studies in rats and rabbits, no evidence of developmental toxicity was observed. In a 2-generation reproduction study, offspring toxicity (decreased body weight) was seen only in the presence of maternal toxicity. 3. *Conclusion* . EPA recommended the FQPA safety factor be reduced to 1X for the following reasons: i. There is a complete toxicity data base for diphenylamine; ii. The toxicity database showed no increase in susceptibility in fetuses and pups with in *utero* and postnatal exposure, and iii. The dietary food exposure assessment is based on recommended tolerance-level residues (except those processed commodities for which processing factors were used) and assumes 100% crop treated for all commodities, which resulted in very high-end estimates of dietary exposure. E. Aggregate Risks and Determination of Safety 1. *Acute risk* . There were no toxic effects attributable to a single dose. An endpoint of concern was not identified to quantitate an acute-dietary risk to the U.S. general population or to the subpopulation females 13-50 years old. Therefore, diphenylamine 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 diphenylamine from food will utilize 12% of the cPAD for the U.S. population, 69% of the cPAD for all infants <1 year old, and 90% of the cPAD for children 1-2 years old. There are no residential uses for diphenylamine that result in chronic residential exposure. In addition, there is no potential for chronic dietary exposure in drinking water as diphenylamine is applied only as a post-harvest use. Therefore, EPA does not expect the aggregate exposure to exceed 100% of the cPAD. 3. *Short and intermediate-term risk* . There are no residential uses for diphenylamine, and residues are not expected to occur in drinking water. Therefore, short and intermediate-term aggregate risk assessments were not performed. 4. *Aggregate cancer risk for U.S. population* . Diphenylamine is not likely to be carcinogenic to humans. Therefore, a cancer aggregate risk assessment was not performed. 5. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to diphenylamine residues. IV. Other Considerations A. Analytical Enforcement Methodology An adequate gas chromatography/mass-selective detector (GC/MSD) method is available for enforcing tolerances on apple commodities, and this method was used for data collection in the current post-harvest study. The method was adequately validated in conjunction with the sample analyses. A modification of this method was used in the pear analyses. Therefore, the Agency requires the registrant to submit an analytical reference standard of diphenylamine to the EPA National Pesticide Standards Repository. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:
(410)305-2905; e-mail address: *residuemethods@epa.gov* . B. International Residue Limits Codex MRLs have been established for the post harvest use of diphenylamine on pears. The MRL for pear is 5 ppm, and is the same as the recommended pear tolerance. V. Conclusion A tolerance is proposed for residues of diphenylamine in pear at 5.0 ppm. VI. Statutory and Executive Order Reviews This proposed rule establishes a tolerance under section 408(d) of the 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 proposed rule has been exempted from review under Executive Order 12866 due to its lack of significance, this proposed 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 proposed rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq.* , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq.* ), the Agency hereby certifies that this proposed action will not have significant negative economic impact on a substantial number of small entities. Establishment of a tolerance legalizes the presence of a pesticide residue in a food. 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 proposed 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 the FFDCA. For these same reasons, the Agency has determined that this proposed 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 3175, 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 proposed 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 proposed rule. 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 22, 2006. Donald R. Stubbs, Acting Director, Registration Division, Office of Pesticide Programs. Therefore, it is proposed that 40 CFR chapter I be 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 180.190 is amended by alphabetically adding a commodity to the table in paragraph
(a)to read as follows: § 180.190 Diphenylamine; tolerances for residues.
(a)* * * Commodity Parts per million * * * * * Pear (post harvest) 5.0 * * * * * [FR Doc. E6-20648 Filed 12-5-06; 8:45 am] BILLING CODE 6560-50-S FEDERAL COMMUNICATIONS COMMISSION 47 CFR Chapter I [CC Docket No. 01-92; DA 06-2339] Developing a Unified Intercarrier Compensation Regime AGENCY: Federal Communications Commission. ACTION: Proposed rule, extension of reply comment period. SUMMARY: This document grants a motion requesting an extension of time to file reply comments on an intercarrier compensation reform plan, the “Missoula Plan.” The Order modifies the pleading cycle by extending the comment period in order to facilitate the development of a more substantive and complete record in this proceeding. DATES: Submit reply comments on or before January 11, 2007. ADDRESSES: You may submit comments, identified by CC Docket No. 01-92, by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *Agency Web site: http://www.fcc.gov.* Follow the instructions for submitting comments on the Electronic Comment Filing System
(ECFS)/ *http://www.fcc.gov/cgb/ecfs/.* • *E-mail:* To *victoria.goldberg@fcc.gov.* Include CC Docket 01-92 in the subject line of the message. • *Fax:* To the attention of Victoria Goldberg at 202-418-1567. Include CC Docket 01-92 on the cover page. • *Mail:* Parties should send a copy of their filings to Victoria Goldberg, Pricing Policy Division, Wireline Competition Bureau, Federal Communications Commission, Room 5-A266, 445 12th Street, SW., Washington, DC 20554. • *Hand Delivery / Courier:* The Commission's contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. —The filing hours at this location are 8 a.m. to 7 p.m. —All hand deliveries must be held together with rubber bands or fasteners. —Any envelopes must be disposed of before entering the building. —Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. *People with Disabilities:* To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). *Instructions:* All submissions received must include the agency name and docket number. All comments received will be posted without change to *http://www.fcc.gov/cgb/ecfs/,* including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Notice requesting comment on the Missoula Plan. 71 FR 45510, Aug. 9, 2006. FOR FURTHER INFORMATION CONTACT: Jennifer McKee, Wireline Competition Bureau, Pricing Policy Division,
(202)418-1530, or Victoria Goldberg, Wireline Competition Bureau, Pricing Policy Division,
(202)418-7353. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order released November 20, 2006. The complete text of the Order is available for inspection and copying during business hours at the FCC Reference Information Center, Portals II, 445 12th St., SW., Room CY-A257, Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room, CY-B402, Washington, DC 20554. The complete text may also be downloaded at: *http://www.fcc.gov.* By the Order, the Wireline Competition Bureau
(WCB)grants a motion requesting an extension of the date for filing reply comments on an intercarrier compensation plan called the “Missoula Plan.” The Missoula Plan was filed on July 24, 2006 by the National Association of Regulatory Utility Commissioners' Task Force on Intercarrier Compensation. On July 25, 2006, the WCB released a Public Notice requesting that comments on the Missoula Plan be filed by September 25, 2006, and reply comments by November 9, 2006. 71 FR 45510, Aug. 9, 2006. On August 29, 2006, WCB released an order granting extensions of the comment and reply comment filing dates to October 25, 2006 and December 11, 2006. 71 FR 54008, Sep. 13, 2006. Over 110 parties filed initial comments on or before October 25, 2006. On November 17, 2006, the National Association of Regulatory Utility Commissioners filed a motion requesting an extension of the reply comment date to January 11, 2007. The WCB determined that providing additional time to file reply comments will facilitate the development of a more substantive and complete record in this proceeding. Although it is the policy of the Commission that extensions of time shall not be routinely granted, the WCB determined that given the number, length, and variety of initial comments, good cause exists to provide parties an extension of time, from December 11, 2006 to January 11, 2007 for filing reply comments in this proceeding. Accordingly, it is ordered that, pursuant to sections 4(i), 4(j), and 5(c) of the Communications Act, 47 U.S.C. 154(i), 154(j), 155(c), and §§ 0.91, 0.291, and 1.46 of the Commission's rules, 47 CFR 0.91, 0.291, 1.46, the pleading cycle established in this matter shall be modified as follows: *Reply Comments Due:* January 11, 2007. All other filing procedures remain unchanged from those previously established in this proceeding. *It is further ordered* that the Motion of the National Association of Regulatory Utility Commissioners for Extension of Time is granted, as set forth herein. Federal Communications Commission. Thomas J. Navin, Chief, Wireline Competition Bureau. [FR Doc. E6-20676 Filed 12-5-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 2 and 87 [WT Docket No. 01-289; FCC 06-148] Aviation Communications AGENCY: Federal Communications Commission. ACTION: Notice of proposed rulemaking. SUMMARY: In this document, the Federal Communications Commission (Commission or FCC) invites comment on issues regarding aviation radio, in keeping with the Commission's ongoing commitment to periodically review and, as needed, revise its aviation services rules in light of relevant developments. DATES: Submit comments on or before March 6, 2007, and reply comments are due on or before April 5, 2007. ADDRESSES: You may submit comments, identified by WT Docket No. 01-289; FCC 06-148, by any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. • Federal Communications Commission's Web site: *http://www.fcc.gov/cgb/ecfs/* . Follow the instructions for submitting comments. • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: *FCC504@fcc.gov* or phone 202-418-0530 or TTY: 202-418-0432. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Jeffrey Tobias, at *Jeff.Tobias@FCC.gov* , Wireless Telecommunications Bureau,
(202)418-1617, or TTY
(202)418-7233. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Second Further Notice of Proposed Rule Making* (“ *Second FNPRM* ”) in WT Docket No. 01-289, FCC 06-148, adopted on October 4, 2006, and released on October 10, 2006. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: *http://www.fcc.gov* . Alternative formats are available to persons with disabilities by sending an e-mail to *fcc504@fcc.gov* or by calling the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). 1. The WT Docket No. 01-289 rulemaking proceeding was established to ensure that part 87 of the Commission's rules remains up-to-date and continues to further the Commission's goals of accommodating new technologies, facilitating the efficient and effective use of the aeronautical spectrum, avoiding unnecessary regulation, and, above all, enhancing the safety of flight. The Commission takes the following significant actions in the *Second FNPRM* in WT Docket No. 01-289:
(i)Invites further comment on technical standards and regulatory provisions for Aeronautical Mobile Satellite (Route) Service (AMS(R)S) in the 1.6 GHz, 2 GHz, and 5 GHz frequency bands, including whether to revise the AMS(R)S technical standards to accommodate additional satellite systems and whether to accord priority and preemptive access to AMS(R)S communications in these bands;
(ii)proposes to delete a regulatory provision which permits limited use of the VHF band for AMS(R)S communications;
(iii)invites comment on whether the Commission should consider proposing rules that would require a transition to 8.33 kHz channelization in the aeronautical enroute service;
(iv)invites comment on whether the Commission should reduce the number of frequencies designated for Flight Information Services—Broadcast (FIS-B);
(v)proposes to codify the terms of special temporary authorizations
(STAs)permitting the use of specified frequencies for air-to-air communications in Hawaii and in the Los Angeles area;
(vi)proposes to clarify the circumstances under which an airport is limited to a single aeronautical advisory station (unicom);
(vii)invites comment on whether the Commission should permit the assignment and transfer of control of aircraft radio licenses; and
(viii)invites comment on whether the Commission should phase out its authorization of emergency locator transmitters
(ELTs)designed to operate on 121.5 MHz. I. Procedural Matters A. Ex Parte Rules—Permit-But-Disclose Proceeding 2. This is a permit-but-disclose notice and comment rulemaking proceeding. *Ex parte* presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed as provided in the Commission's rules. B. Comment Dates 3. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may file comments on or before March 6, 2007 and reply comments on or before April 5, 2007. All filings related to this *Second Report and Order* should refer to WT Docket No. 01-289. 4. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS), the Federal Government's eRulemaking Portal, or by filing paper copies. *See* Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). 5. Comments may be filed electronically using the Internet by accessing the ECFS: *http://www.fcc.gov/cgb/ecfs/* or the Federal eRulemaking Portal: *http://www.regulations.gov* . Filers should follow the instructions provided on the Web site for submitting comments. 6. For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to *ecfs@fcc.gov* , and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. 7. Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. 8. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. 9. The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. 10. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. 11. U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington, DC 20554. 12. All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. Parties shall also serve one copy with the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554,
(202)488-5300, or via e-mail to *fcc@bcpiweb.com* . 13. *Availability of documents* . The public may view the documents filed in this proceeding during regular business hours in the FCC Reference Information Center, Federal Communications Commission, 445 12th Street, SW., Room CY-A257, Washington, DC 20554, and on the Commission's Internet Home Page: *http://www.fcc.gov* . Copies of comments and reply comments are also available through the Commission's duplicating contractor: Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160, may be reached by e-mail at *fcc@bcpiweb.com* or via BCPI's Web site at *http://www.bcpiweb.com* . To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). C. Paperwork Reduction Act 14. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506(c)(4). II. Initial Regulatory Flexibility Analysis 15. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis
(IRFA)of the possible significant economic impact on small entities by the policies and rules proposed in the *Second FNPRM* . Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the *Second FNPRM* as provided in paragraph 49 of the item. The Commission will send a copy of the *Second FNPRM* , including this IRFA, to the Chief Counsel for Advocacy of the U.S. Small Business Administration. In addition, a copy of the *Second FNPRM* and IRFA (or summaries thereof) will also be published in the **Federal Register** . *Need for, and Objectives of, the Proposed Rules:* 16. The proposed rules in the *Second FNPRM* are intended to further streamline, consolidate and clarify the Commission's part 87 rules; remove unnecessary or duplicative requirements; address new international requirements; and promote flexibility and efficiency in the use of aviation radio equipment in a manner that will further aviation safety. In the *Second FNPRM* , the Commission requests comment specifically on whether the Commission should:
(a)Broaden the AMS(R)S rules to accommodate the provision of AMS(R)S by additional satellite systems;
(b)mandate that AMS(R)S communications in the 1.6 GHz, 2 GHz, and 5 GHz frequency bands be given priority and preemptive access;
(c)delete a regulatory provision which permits limited use of the VHF band for AMS(R)S communications;
(d)consider proposing rules that would require a transition to 8.33 kHz channelization in the aeronautical enroute service;
(e)reduce the number of frequencies designated for FIS-B;
(f)codify the terms of an STA permitting the use of specified frequencies for air-to-air communications in Hawaii;
(g)codify the terms of an STA permitting the use of specified frequencies for air-to-air communications in the Los Angeles area;
(h)clarify the circumstances under which an airport is limited to a single aeronautical advisory station (unicom);
(i)permit the assignment and transfer of control of aircraft radio licenses; and
(j)phase out the authorization of ELTs designed to operate on 121.5 MHz. *Legal Basis for Proposed Rules:* 17. Authority for issuance of this item is contained in sections 4(i), 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r) and 403. *Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply:* 18. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one that:
(1)Is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)satisfies any additional criteria established by the SBA. Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency after consultation with the Office of Advocacy of the SBA, and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the **Federal Register** .” 19. Small businesses in the aviation and marine radio services use a marine very high frequency (VHF), medium frequency (MF), or high frequency
(HF)radio, any type of emergency position indicating radio beacon (EPIRB) and/or radar, an aircraft radio, and/or any type of emergency locator transmitter (ELT). The Commission has not developed a definition of small entities specifically applicable to these small businesses. For purposes of this IRFA, therefore, the applicable definition of small entity is the definition under the SBA rules applicable to wireless service providers. The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under both categories, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the majority of firms can, again, be considered small. 20. Some of the rules proposed herein may also affect small businesses that manufacture aviation radio equipment. The Commission has not developed a definition of small entities applicable to aviation radio equipment manufacturers. Therefore, the applicable definition is that for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturers. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA has developed a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing, which is: all such firms having 750 or fewer employees. According to Census Bureau data for 2002, there were a total of 1,041 establishments in this category that operated for the entire year. Of this total, 1,010 had employment of under 500, and an additional 13 had employment of 500 to 999. Thus, under this size standard, the majority of firms can be considered small. 21. Some of the rules proposed herein may also affect providers of satellite telecommunications services. There is no small business size standard developed specifically for providers of international service. The appropriate size standards under SBA rules are for the two broad census categories of “Satellite Telecommunications” and “Other Telecommunications.” Under both categories, such a business is small if it has $13.5 million or less in average annual receipts. 22. The first category of Satellite Telecommunications “comprises establishments primarily engaged in providing point-to-point telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” For this category, Census Bureau data for 2002 show that there were a total of 371 firms that operated for the entire year. Of this total, 307 firms had annual receipts of under $10 million, and 26 firms had receipts of $10 million to $24,999,999. Consequently, we estimate that the majority of Satellite Telecommunications firms are small entities that might be affected by our action. 23. The second category of Other Telecommunications “comprises establishments primarily engaged in
(1)providing specialized telecommunications applications, such as satellite tracking, communications telemetry, and radar station operations; or
(2)providing satellite terminal stations and associated facilities operationally connected with one or more terrestrial communications systems and capable of transmitting telecommunications to or receiving telecommunications from satellite systems.” For this category, Census Bureau data for 2002 show that there were a total of 332 firms that operated for the entire year. Of this total, 259 firms had annual receipts of under $10 million and 15 firms had annual receipts of $10 million to $24,999,999. Consequently, we estimate that the majority of Other Telecommunications firms are small entities that might be affected by our action. *Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements:* 24. Most of the possible rule changes under consideration in the *Second FNPRM* generally would not impose any new compliance requirements on any entity. The proposals to codify existing STAs would, if adopted, relieve aircraft operators in Hawaii and the Los Angeles area of the regulatory restrictions that impelled them to seek those STAs. With two exceptions, the Commission believes the other proposed rules would have no significant effect on the compliance burdens of regulatees. The Commission invites comment on its tentative conclusion that the following possible rule changes will not have a negative impact on small entities, or for that matter any entities, and do not impose new compliance costs on any entity:
(1)Reducing the number of frequencies designated for FIS-B;
(2)codifying the terms of the STA permitting the use of specified frequencies for air-to-air communications in Hawaii;
(3)codifying the terms of the STA permitting the use of specified frequencies for air-to-air communications in the Los Angeles area;
(4)clarifying the circumstances under which an airport is limited to a single unicom;
(5)permitting the assignment and transfer of control of aircraft radio licenses;
(6)phasing out the authorization of ELTs designed to operate on 121.5 MHz; and
(7)deleting a regulatory provision which permits limited use of the VHF band for AMS(R)S communications. To the extent that commenters believe that any of the above possible rule changes would impose a new reporting, recordkeeping, or compliance burden on small entities, the Commission asks that they describe the nature of that burden in some detail and, if possible, quantify the costs to small entities. 25. The Commission is considering in the *Second FNPRM* whether to mandate that mobile satellite systems providing AMS(R)S accord priority and preemptive access to AMS(R)S communications vis-a-vis public correspondence and other non-safety-related communications in the 1.6 MHz, 2 MHz, and 5 MHz bands, as they already are required to do in the 1545-1559 MHz and 1646.5-1660.5 MHz bands. To the extent that such a requirement would impose a new compliance burden, however, the burden would fall only on mobile satellite service
(MSS)licensees. MSS licensees are not small entities. Accordingly, we do not believe this requirement will have a direct and significant economic impact on any small entities. 26. In addition, the Commission believes that mandating a transition to 8.33 kHz channel spacing in the aeronautical enroute service might impose a new compliance burden on aircraft station licensees because of the need to replace existing avionics equipment designed to operate with 25 kHz channel spacing. This burden might be incurred not only by the major air carriers, but also by smaller carriers and others that may qualify as small entities. In the *Second FNPRM* , the Commission seeks comment on whether the public interest benefits of a mandatory narrowbanding of the aeronautical enroute spectrum would outweigh the costs and difficulties that such an effort would engender. The Commission seeks estimates of projected compliance costs, with an explanation of all assumptions on which the estimates are based. The Commission here reiterates that request, and specifically asks interested parties to address potential compliance costs for small entities. *Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered:* 27. 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:
(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. 28. In the *Second FNPRM* , the Commission requests further comment on, among other things, the nature of any burden that might be incurred by MSS licensees if required to provide priority and preemptive access to AMS(R)S communications in the 1.6 GHz, 2 GHz, and 5 GHz frequency bands. For reasons stated above, the Commission believes MSS licensees are not small entities. Commenters who believe otherwise are invited to explain why MSS licensees should be deemed small entities, and to propose steps, such as those described in the immediately preceding paragraph, that might eliminate or minimize the burden of a priority and preemptive access requirement on MSS licensees. 29. In the *Second FNPRM* , the Commission also seeks comment on various means of limiting the impact of a transition to 8.33 kHz channel spacing in the aeronautical enroute service in the event such a transition is mandated. It asks commenters to suggest the appropriate duration of any period(s) of transition and to consider whether grandfathering provisions of some sort should be adopted to mitigate the costs of retrofitting aircraft. It also asks whether transition schedules should be staggered based on criteria relating to the size of the carrier or the class of aircraft. The Commission reiterates those requests here, and ask interested parties to consider any other means to lessen potential compliance burdens on small entities if the Commission ultimately mandates a transition to 8.33 kHz channel spacing in the aeronautical enroute service. In addition, to the extent commenters believe any of the other possible rule changes discussed in the *Second FNPRM* might impose any significant economic impact on small entities, the Commission invites them to address any or all of the aforementioned regulatory alternatives and to suggest additional alternatives to minimize that impact. Any significant alternative presented in the comments will be considered. *Federal Rules that May Duplicate, Overlap, or Conflict With the Proposed Rules:* 30. None. III. Ordering Clauses 31. Pursuant to sections 4(i), 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r) and 403, this *Second FNPRM* is adopted. 32. Pursuant to the applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may file comments on this *Second FNPRM* on or before 90 days after publication in the **Federal Register** and reply comments on or before 120 days after publication in the **Federal Register** . 33. The Commission's Consumer Information Bureau, Reference Information Center, SHALL SEND a copy of this *Second FNPRM* and also the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. List of Subjects 47 CFR Part 2 Communications equipment; Disaster assistance; Imports; Radio; Reporting and recordkeeping requirements; Telecommunications; Television; Wiretapping and electronic surveillance. 47 CFR Part 87 Air transportation; Civil defense; Communications equipment; Defense communications; Radio; Reporting and recordkeeping requirements; Weather. Federal Communications Commission. Marlene H. Dortch, Secretary. Proposed Rules For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 2 and 87 as follows: PART 2—FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS 1. The authority citation for part 2 continues to read as follows: Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted. 2. Amend Section 2.106, the Table of Frequency Allocations, as follows: a. Revise page 18. b. In the list of United States footnotes, add footnote USxxx. The revisions and additions read as follows: § 2.106 Table of Frequency Allocations. BILLING CODE 6712-01-P EP06DE06.000 BILLING CODE 6712-01-C United States
(US)Footnotes USxxx In Hawaii, the frequencies 120.65 MHz and 127.05 MHz may be authorized to non-Federal aircraft stations for air-to-air communications as specified in 47 CFR 87.187. PART 87—AVIATION SERVICES 3. The authority citation for part 87 continues to read as follows: Authority: 47 U.S.C. 154, 303 and 307(e), unless otherwise noted. 4. Amend § 87.187 by adding new paragraphs
(gg)and
(hh)to read as follows: § 87.187 Frequencies. (gg)(1) The frequency 120.650 MHz is authorized for air-to-air communications for aircraft over and within five nautical miles of the shoreline of the Hawaiian Island of Maui.
(2)The frequency 121.950 MHz is authorized for air-to-air use for aircraft over and within five nautical miles of the shoreline of the Hawaiian Island of Molokai.
(3)The frequency 122.850 MHz is authorized for air-to-air use for aircraft over and within five nautical miles of the shoreline of the Hawaiian Island of Oahu.
(4)The frequency 122.850 MHz is authorized for aircraft over and within five nautical miles of the shoreline of the Hawaiian Island of Hawaii when aircraft are south and east of the 215 degree radial of very high frequency omni-directional radio range of Hilo International Airport.
(5)The frequency 127.050 MHz is authorized for air-to-air use for aircraft over and within five nautical miles of the shoreline of the Hawaiian Island of Hawaii when aircraft are north and west of the 215 degree radial of very high frequency omni-directional radio range of Hilo International Airport.
(6)The frequency 127.050 MHz is authorized for air-to-air use for aircraft over and within five nautical miles of the Hawaiian Island of Kauai. (hh)(1) The frequency 121.95 MHz is authorized for air-to-air communications for aircraft within the area bounded by the following coordinates (all coordinates are referenced to North American Datum 1983 (NAD83)): 33-46-00 N. Lat.; 118-27-00 W. Long. 33-47-00 N. Lat.; 118-12-00 W. Long. 33-40-00 N. Lat.; 118-00-00 W. Long. 33-35-00 N. Lat.; 118-08-00 W. Long. 34-00-00 N. Lat.; 118-26-00 W. Long.
(2)The frequency 122.775 MHz is authorized for air-to-air communications for aircraft within the area bounded by the following coordinates (all coordinates are referenced to North American Datum 1983 (NAD83)): 34-22-00 N. Lat.; 118-30-00 W. Long. 34-35-00 N. Lat.; 118-15-00 W. Long. 34-27-00 N. Lat.; 118-15-00 W. Long. 34-16-00 N. Lat.; 118-35-00 W. Long. 34-06-00 N. Lat.; 118-35-00 W. Long. 34-05-00 N. Lat.; 118-50-00 W. Long.
(3)The frequency 123.30 MHz is authorized for air-to-air communications for aircraft within the area bounded by the following coordinates (all coordinates are referenced to North American Datum 1983 (NAD83)): 34-08-00 N. Lat.; 118-00-00 W. Long. 34-10-00 N. Lat.; 117-08-00 W. Long. 34-00-00 N. Lat.; 117-08-00 W. Long. 33-53-00 N. Lat.; 117-42-00 W. Long. 33-58-00 N. Lat.; 118-00-00 W. Long.
(4)The frequency 123.50 MHz is authorized for air-to-air communications for aircraft within the area bounded by the following coordinates (all coordinates are referenced to North American Datum 1983 (NAD83)): 33-53-00 N. Lat.; 117-37-00 W. Long. 34-00-00 N. Lat.; 117-15-00 W. Long. 34-00-00 N. Lat.; 117-07-00 W. Long. 33-28-00 N. Lat.; 116-55-00 W. Long. 33-27-00 N. Lat.; 117-12-00 W. Long.
(5)The frequency 123.50 MHz is authorized for air-to-air communications for aircraft within the area bounded by the following coordinates (all coordinates are referenced to North American Datum 1983 (NAD83)): 33-50-00 N. Lat.; 117-48-00 W. Long. 33-51-00 N. Lat.; 117-41-00 W. Long. 33-38-00 N. Lat.; 117-30-00 W. Long. 33-30-00 N. Lat.; 117-30-00 W. Long. 33-30-00 N. Lat.; 117-49-00 W. Long. 5. Amend § 87.215 by revising paragraph
(b)to read as follows: § 87.215 Supplemental Eligibility.
(b)Only one unicom will be authorized to operate at an airport which does not have a control tower, RCO or FAA flight service station that effectively controls traffic at the airport ( *i.e.* , where the unicom frequency is not the published common traffic advisory frequency). At an airport which has a part-time or full-time control tower, RCO or FAA flight service station that effectively controls traffic at the airport, the one unicom limitation does not apply and the airport operator and all aviation services organizations may be licensed to operate a unicom on the assigned frequency. [FR Doc. E6-20451 Filed 12-5-06; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants: 90-Day Finding on a Petition To List the Upper Tidal Potomac River Population of the Northern Water Snake (Nerodia sipedon) as an Endangered Distinct Population Segment AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of 90-day petition finding. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the distinct vertebrate population segment
(DPS)of the northern water snake ( *Nerodia sipedon* ) in the upper tidal Potomac River as endangered under the Endangered Species Act of 1973, as amended (Act). We find the petition does not provide substantial scientific or commercial information indicating that the petitioned action is warranted. Therefore, we will not initiate a further status review in response to this petition. We ask the public to submit to us any new information that becomes available concerning the status of this population of the northern water snake or threats to it. DATES: The finding announced in this document was made on December 6, 2006. ADDRESSES: The complete file for this finding is available for public inspection, by appointment, during normal business hours, at the Chesapeake Bay Field Office, U.S. Fish and Wildlife Service, 177 Admiral Cochrane Drive, Annapolis, Maryland 21401. Submit new information, materials, comments, or questions to us at the above address. FOR FURTHER INFORMATION CONTACT: John Wolflin, Field Supervisor, Chesapeake Bay Field Office (see ADDRESSES ) (telephone 410-573-4574; facsimile 410-269-0832). SUPPLEMENTARY INFORMATION: Background Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 *et seq.* ) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition and information available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition, and publish our notice of the finding promptly in the **Federal Register** . Our standard for substantial information within the Code of Federal Regulations
(CFR)with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information is presented, we are required to promptly commence a status review of the species. In making this finding, we relied on information provided by the petitioner and evaluated this information in accordance with 50 CFR 424.14(b). Our process of making a 90-day finding under section 4(b)(3)(A) of the Act and § 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold. On November 7, 2000, we received a formal petition dated November 1, 2000, from Dr. Richard M. Mitchell requesting that we emergency list the northern water snake population found in the upper tidal Potomac River as a distinct population segment
(DPS)under the Act. The petition included a report from a study performed by Dr. James M. Beers and Dr. Mitchell from July to September, 2000, entitled “A Herpetofaunal Survey of the Upper Tidal Potomac River and its Associated Estuaries.” Action on the petition was precluded by court orders and settlement agreements for other listing actions that required nearly all of our listing funds for fiscal year 2001. However, the Service did evaluate the need for emergency listing based on the information provided in the initial petition and its attached report and determined that the threats described did not appear to constitute immediate threats of a magnitude that would justify emergency listing. A letter was sent to the petitioner on January 23, 2001, explaining this determination. Species Information The northern water snake was first described by Linnaeus in 1758. The species is widely distributed in eastern North America, from southern Canada south through the Carolina and Georgia Piedmont, to the Gulf of Mexico, and west to eastern Colorado (Conant 1975, p. 145). This species occurs in most freshwater habitats within its range, inhabiting natural water bodies, wetlands, and even manmade impoundments (Dorcas and Gibbons 2004, p. 183). Northern water snakes tend to exhibit high site fidelity, although snakes in linear habitats such as rivers tend to wander more than snakes in discrete habitats such as ponds (Fraker 1990, pp. 666-669). The northern water snake is found in a diversity of habitats, and likewise consumes a diversity of prey. In fact, Gibbons and Dorcas (2004, p. 186) state, “the documented diversity of prey species consumed by *N. sipedon* is greater than for any other water snake * * * [this] clearly indicates that *N. sipedon* is primarily an aquatic-feeding generalist that in most instances probably eats whatever is readily available.” The northern water snake is a moderately sized, nonvenomous water snake, and is highly variable in both dorsal and ventral color patterns (Dorcas and Gibbons 2004, p. 178). Selective pressure, namely predation, determines which banding patterns are exhibited in specific populations (Camin and Ehrlich 1958 in Beatson 1975, p. 241). This natural selection results in individuals with cryptic coloration that is highly specialized for their habitat. Coloration, when broken down into the most basic classes, ranges from the regularly banded morph, to a reduced pattern morph, to a uniformly unbanded morph (King and Lawson 1995, p. 885). Most northern water snakes meet the standard description ( *i.e.* , the regularly banded morph); however, “the range of variability cannot be overstated” (Dorcas and Gibbons 2004, p. 179). Focusing on the geographic area of the petitioned action, the northern water snake is found throughout Maryland and Virginia, and its distribution in the Washington DC Metropolitan area of the Potomac River appears concentrated from just north of Great Falls National Park southward to just north of Indianhead, Maryland (Mitchell 1994, p. 237). Distinct Vertebrate Population Segment We consider a species for listing under the Act if available information indicates such an action might be warranted. “Species” is defined by the Act as including any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). We, along with the National Marine Fisheries Service (now the National Oceanic and Atmospheric Administration—Fisheries), developed the Policy Regarding the Recognition of Distinct Vertebrate Population Segments (61 FR 4722; February 7, 1996), to help us in determining what constitutes a DPS. The policy identifies three elements that are to be considered regarding the status of a possible DPS. These elements include:
(1)The discreteness of the population in relation to the remainder of the species to which it belongs;
(2)the significance of the population to the species to which it belongs; and
(3)the population segment's conservation status in relation to the Act's standards for listing. The following is our evaluation of these elements in relation to the petitioned entity, the upper tidal Potomac River population of the northern water snake. *Discreteness:* The DPS policy states that a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following two conditions:
(1)It must be markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors; or
(2)it must be delimited by international governmental boundaries within which difference in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act. The petitioner claims that the color pattern of the upper tidal Potomac River population of the northern water snake is different from dorsal patterns of other water snakes in Virginia. However, as referenced earlier, the northern water snake is highly variable in both dorsal and ventral color patterns (Dorcas and Gibbons 2004, p. 178). Therefore, color pattern alone does not provide sufficient information to support marked separation from other populations of the same taxon as a consequence of physical factors. In summary, the petitioner does not present any evidence to indicate that the species is markedly separated from other populations of the same taxon by physical, physiological, ecological, or behavioral factors, nor is it delimited by an international governmental boundary. The northern water snake within the upper tidal Potomac River therefore does not meet the “discreteness” criterion. *Significance:* Pursuant to our DPS policy, in addition to our consideration that a population segment is discrete, we further consider its biological and ecological significance to the taxon to which it belongs, within the context that the DPS policy be used “sparingly” while encouraging the conservation of genetic diversity (61 FR 4722; February 7, 1996). This consideration may include, but is not limited to:
(1)Evidence of the persistence of the discrete population segment in an ecological setting that is unique for the taxon;
(2)evidence that loss of the population segment would result in a significant gap in the range of the taxon;
(3)evidence that the population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range; and
(4)evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. The petition does not address these factors. Therefore, based on the lack of information in the petition and the information readily available in our files, the upper tidal Potomac River population of the northern water snake is not significant in relation to the remainder of the taxon. Finding We reviewed the information presented in the petition, and evaluated that information in relation to information readily available in our files. On the basis of our review, we find that the petition does not provide substantial scientific or commercial information to indicate that the upper tidal Potomac River population of the northern water snake constitutes a valid DPS. This finding is based on the lack of substantial evidence indicating this population meets the discreteness element of the DPS policy and the lack of substantial scientific information that the upper tidal Potomac River population is significant in relation to the remainder of the taxon. Therefore, we conclude that the upper tidal Potomac River population of the northern water snake is not a listable entity pursuant to section 3(15) of the Act. We will not be commencing a status review in response to this petition. However, we encourage interested parties to continue to gather data that will assist with the conservation of the species. Information regarding this species may be submitted at any time to the Field Supervisor, Chesapeake Bay Field Office (see ADDRESSES section). References Cited A complete list of all references cited herein is available, upon request, from the Chesapeake Bay Field Office (see ADDRESSES section). Author The primary author of this notice is Charisa Morris, U.S. Fish and Wildlife Service, Chesapeake Bay Field Office (see ADDRESSES section). Authority The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ). Dated: November 28, 2006. Kenneth Stansell, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. E6-20542 Filed 12-5-06; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the Cerulean Warbler (Dendroica cerulea) as Threatened With Critical Habitat AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of a 12-month petition finding. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the cerulean warbler ( *Dendroica cerulea* ) as threatened under the Endangered Species Act of 1973, as amended (Act). The petition also asked that critical habitat be designated for the species. After reviewing the best available scientific and commercial information, we find that the petitioned action is not warranted. We ask the public to submit to us any new information that becomes available concerning the status of, or threats to, the species. This information will help us monitor and encourage the conservation of this species. DATES: The finding announced in this document was made on November 28, 2006. ADDRESSES: Comments and materials received, as well as supporting documentation used in the development of this 12-month finding, will be available for inspection, by appointment, during normal business hours at the Columbia Ecological Services Field Office, 101 Park DeVille Drive, Suite A, Columbia, Missouri 65203. Submit new information, materials, comments, or questions concerning this species to the Service at the above address. FOR FURTHER INFORMATION CONTACT: Charles Scott, Supervisor (see ADDRESSES ), by telephone at 573-234-2132, by facsimile at 573-234-2181, or by electronic mail at *charlie_scott@fws.gov.* Individuals who are hearing-impaired or speech-impaired may call the Federal Relay Service at 1-800-877-8339 for TTY assistance. SUPPLEMENTARY INFORMATION: Background Section 4(b)(3)(B) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ), requires that, for any petition to revise the Lists of Endangered and Threatened Wildlife and Plants that contains substantial scientific or commercial information that the petitioned action may be warranted, we make a finding within 12 months of the date of the receipt of the petition on whether the petitioned action is:
(a)Not warranted,
(b)warranted, or
(c)warranted, but that the immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether any species is threatened or endangered, and expeditious progress is being made to add or remove qualified species from the List of Endangered and Threatened Species. Such 12-month findings are to be published promptly in the **Federal Register** . Section 4(b)(3)(C) of the Act requires that a petition for which the requested action is found to be warranted but precluded shall be treated as though resubmitted on the date of such finding, requiring a subsequent finding to be made within 12 months. Previous Federal Actions We added the cerulean warbler to our former Category 2 list of candidate species on November 21, 1991 (56 FR 58804). Category 2 candidate species were those species for which we possessed data indicating that proposing to list them as endangered or threatened was possibly appropriate, but for which conclusive data on biological vulnerability and threat were not available at that time to support proposed rules. Category 1 candidate species were those for which we possessed sufficient information on biological vulnerability and threats to support proposals to list them as endangered or threatened species. The cerulean warbler was also in the November 15, 1994, Candidate Notice of Review (59 FR 58982) as a Category 2 candidate species. The list of Category 2 species was eliminated by the Service in 1996. Since then the Service has applied the term “candidate species” only to those species previously considered to be “Category 1” candidates, and we apply the same definition to these species (61 FR 7596; February 28, 1996). The cerulean warbler has never been a Category 1 candidate species or a candidate species, as defined, since 1996. Due to concerns regarding the population trend of the species, in 1995, the Service contracted to Dr. Paul Hamel, of the U.S. Forest Service's Southern Forest Research Station in Stoneville, Mississippi, to develop a cerulean warbler rangewide status assessment report. Dr. Hamel completed his report in April of 2000 (Hamel 2000a), and we distributed it and posted it on our Web site at that time. On November 6, 2000, the Service received an October 30, 2000, letter from Douglas A. Ruley of the Southern Environmental Law Center in Asheville, North Carolina. Mr. Ruley's letter conveyed a petition to list the cerulean warbler as a threatened species and to designate critical habitat for the species (Ruley 2000). The following organizations were listed as the petitioners: National Audubon Society, Defenders of Wildlife, Sierra Club, The Wilderness Society, American Lands Alliance, Western North Carolina Alliance, Southern Appalachian Biodiversity Project, Appalachian Voices, Cherokee Forest Voices, Southern Environmental Law Center, Southern Appalachian Forest Coalition, Heartwood, Dogwood Alliance, West Virginia Highlands Conservancy, Inc., Virginia Forest Watch, Buckeye Forest Council, Allegheny Defense Project, Vernon Civic Association, Conservation Action Project, Superior Wilderness Action Network, Indiana Forest Alliance, Regional Association of Concerned Environmentalists, Ouachita Watch League, Newton County Wildlife Association, Chattooga Conservancy, Wild Alabama, Georgia Forest Watch, and South Carolina Forest Watch. On September 24, 2002, the Service made its initial 90-day finding on the petition, and a notice of that finding was published in the **Federal Register** on October 23, 2002 (67 FR 65083). Our finding was that the petition presented substantial information indicating that the petitioned action of listing the species may be warranted. At that time, we initiated a status review, which included a 90-day comment period. We received 290 responses to our request for additional information in our 90-day finding for the cerulean warbler (67 FR 65083; October 23, 2002). A large number of these responses were identical or similar comments. Comments and information were received from 12 State fish and wildlife agencies within the range of the warbler, 4 academic researchers, 2 county government agencies, the U.S. Forest Service (4 units), National Park Service (2 units), Department of Defense, U.S. Army Corps of Engineers, a U.S. Congressman, 7 corporations, 40 nongovernmental organizations, numerous private citizens, and several other entities. Additionally, we directly contacted, and received information from, wildlife agencies and biologists within the cerulean warbler's range in Canada and South America. We reviewed all responses received, and those that contained new, updated, or additional scientific or commercial data were thoroughly considered in this 12-month finding. Due to budget shortfalls during subsequent fiscal years, the Service was unable to fund additional work on the petition until late in fiscal year 2005. Since that time, we have analyzed the comments received after the 2002 finding, reviewed new published and unpublished reports and data on the species and factors affecting its habitat, and brought together a panel of experts on the species to provide additional insight into the current status and trends of the cerulean warbler. After our resumption of work on the petition in late 2005, a lawsuit was filed by five of the petitioners (National Audubon Society, Defenders of Wildlife, Southern Appalachian Biodiversity Project, Western North Carolina Alliance, and Heartwood) in the U.S. District Court for the District of Columbia on February 28, 2006. The suit asked the Court, among other things, to compel the Service to make and publish in the **Federal Register** a 12-month finding regarding the plaintiffs' petition to list the cerulean warbler as a threatened species. Although we had already resumed work on the petition, due to the lawsuit, we entered into a settlement agreement with plaintiffs in which we agreed to provide our 12-month finding to the **Federal Register** no later than November 30, 2006. Cerulean Warbler Natural History The cerulean warbler is a small insectivorous neotropical migrant songbird (11.5 centimeters (4.5 inches) long and weighing 8 to 10 grams (0.3 to 0.4 ounces)). It breeds in mature deciduous forests primarily within the central hardwood region of eastern North America, primarily in the Ohio and Mississippi River Valleys and adjacent areas east of the Appalachians, in New England and southern Canada, and in the Great Lakes region. (Hamel 2000a, pp. 2-4). The breeding range generally extends from the eastern Great Plains, north to Minnesota, east to Massachusetts, and south to North Carolina and Louisiana (Hamel 2000a, p. 2), encompassing 33 States and 2 Canadian Provinces. The core area of the breeding range is currently within the Cumberland Plateau and Ohio Hills physiographic regions in eastern Tennessee, eastern Kentucky, southern and western West Virginia, southeastern Ohio, and southwestern Pennsylvania (Villard and Mauer 1996, p. 7 and Figure 7; Sauer et al. 2005a). This species undertakes a long migration compared to many other warblers and passerines of similar size (Hamel 2000b, p. 1), covering a distance of approximately 4,000 kilometers
(km)(2,500 miles (mi)) between the central latitudes of North America and northern latitudes of South America. The migratory pathway between the breeding and wintering grounds is not well known, but for most individuals, it likely includes a flight across the Gulf of Mexico and stops at a limited number of locations in Central America and northern Colombia or Venezuela (Hamel 2000b, p. 4). The fall migration to South America might be along a more easterly path than that of the northward migration in the spring (Dunn and Garrett 1997, p. 405). Cerulean warblers winter in broad-leaved evergreen forests within a relatively narrow band of middle elevations (500 to 1,800 meters (m); 1,650 to 5,900 feet (ft)) in the northern Andes Mountains in Venezuela, Colombia, Ecuador, Peru, and Bolivia and possibly in the Guayana Highlands of southeastern Venezuela, especially the tabletop mountains (tepuis) of this ecoregion (Robbins et al. 1992, p. 559; Moreno et al. 2006 unpublished report, p. 3). On the breeding grounds, cerulean warblers prefer mature hardwood forests with tall, large-diameter trees and a structurally diverse canopy (multiple vegetation layers, often associated with uneven-aged forest stands). They occupy forests with these structural characteristics in both upland and bottomland locations (Hamel 2000b, p. 4). In the Appalachian Mountains, they tend to occur more frequently and in higher abundance on ridge tops than in valley bottoms (Weakland and Wood 2005, pp. 503-504; Wood et al. 2006, pp. 160-161; Buehler et al. *in press* , p. 9). Throughout much of their breeding range, they prefer to breed in large forest patches, and so are considered “area-sensitive” (Robbins et al. 1989a, p. 25; Mueller et al. 2000, p. 15), although they might not be as sensitive to forest patch size in well-forested and less fragmented landscapes where avian nest predation and parasitism rates tend to be lower (Hamel 2000b, p. 4). In parts of their range, cerulean warblers exhibit positive associations with canopy gaps and relatively small internal forest openings (Perkins 2006, p. 26), but they avoid abrupt edges between forest and large areas of open land (Wood et al. 2006, p. 160). Post-fledging habitat for this species has not been studied, but assuming cerulean warblers are similar to other mature forest-associated birds, they might seek out areas where shrubby vegetation provides good cover from predators as well as an abundance of good foraging substrate. Such areas might include small forest openings or early successional habitats, but habitat use during this period of the year has not been described and the relative importance of different habitat types during the post-fledging period is not known. Insects are the primary food source of cerulean warblers throughout the year. During the breeding season, their diet has been observed to consist primarily of Homoptera and Lepidoptera but also may include small amounts of Coleoptera, Hymenoptera, Diptera, Hemiptera, Araneae, and other arthropods (Hamel 2000b, p. 6). While no detailed studies of diet have been completed during the non-breeding period, cerulean warblers appear to use nectar resources, as well as insects, during at least some period of their residency on their non-breeding grounds in South America (Jones et al. 2000, p. 961; USFWS 2006, Appendix 5—M.I. Moreno's PowerPoint presentation, slide 15) and have also been observed eating small amounts of plant material during migration (Hamel 2000b, p. 5). Their primary foraging mode for capturing insects is gleaning prey from the upper and lower surfaces of leaves. They also use sallying and hover-gleaning to a lesser extent (Hamel 2000b, p. 5). Cerulean warblers build their nests high above ground (mean height of 11.4 m (37 ft); Hamel 2000b, p. 9) in the mid-story or canopy of trees. Clutch size is normally 3 or 4 eggs with an incubation period of 11 to 12 days and a nestling period of 10 to 11 days. Their nests are known to be parasitized by brown-headed cowbirds, particularly in the western portion of the cerulean warbler breeding range where cowbirds are more abundant (Hamel 2000b, pp. 9-11). Nest success varies annually and regionally, with observed average annual nest success rates at specific study sites ranging from approximately 20 percent in southern Indiana and the lower Mississippi River valley to approximately 58 percent in Ontario and eastern Tennessee. The average number of young fledged per successful nest also varies, although somewhat less dramatically, with reports of annual values between 1.7 and 3.0 for most study sites (USFWS 2006, Appendix 5—D. Buehler's PowerPoint presentation, slides 25-28). Cerulean warblers typically arrive on their breeding grounds between mid-April and mid-May, depending on latitude, and remain there until sometime between late July and mid-September (Dunn and Garrett 1997, pp. 405-406). Cerulean warblers usually raise a single brood during this period; multiple nesting attempts are commonly undertaken if initial nest attempts fail. It is rare for this species to raise two broods in the same breeding season. Cerulean warblers are predominantly socially monogamous (one male mated with one female), but social bigamy (one male mated with two females) has been observed in the Ontario population (USFWS 2006, Appendix 4, Day 2-p. 2). This behavior has not been studied at other locations. Some researchers have also observed a clumped distribution of cerulean warbler territories within study sites, apparently independent of habitat features. However, these patterns have not been studied rigorously nor confirmed as being different from a random distribution or a result of habitat selection (Hamel 2000b, p. 8). Analysis of genetic variability at the population level has revealed no significant variation in neutral genetic markers across the breeding range, suggesting a single genetic population for this species (Veit et al. 2005, pp. 165-166). A study of natal and breeding dispersal between years using stable isotope analysis corroborates this hypothesis by suggesting a relatively high level of interannual adult dispersal between regions, particularly within the central portions of the breeding range (USFWS 2006, Appendix 4, Day 1—p. 14). Adult dispersal to different breeding locations between years appears to be lower in both the southern and northern portions of the range than in the center of the range, suggesting higher site fidelity to breeding locations in those portions of the range. Natal dispersal between regions within the breeding range did not appear to be any more pronounced than adult dispersal. This is different than many other warbler species, which typically exhibit much higher natal dispersal than adult dispersal. Dispersal characteristics of cerulean warblers probably influence source-sink dynamics of the population, and more information on dispersal is needed to understand the current population trend of the species. On the wintering grounds, this species may prefer forests with old-growth conditions, but it has also been found in second-growth forests and shade-grown coffee plantations (Hamel 2000b, p. 5; Jones et al. 2000, p. 958). As with its breeding habitat, a structurally diverse canopy with multiple vegetation layers appears to be an important component of its wintering habitat. It is generally found in mixed-species flocks of canopy-dwelling birds, and this association with mixed-species flocks could be an important characteristic of their occurrence on the wintering grounds (Hamel 2000b, p. 5), although more study of their social behavior is needed. Cerulean warblers usually reside on their winter grounds from October to February (Hamel 2000b, p. 9—Figure 3). Cerulean warblers are nocturnal migrants. Little is known about habitat preferences and other ecological aspects of this bird's migration. Several stop-over locations for spring migration have been found in Belize (Parker 1994, p. 70), Honduras, and Guatemala (Welton et al. 2005, p. 1), but records of this species during migration elsewhere are scarce. To explain this, one hypothesis is that cerulean warblers could migrate in pulses of large groups of individuals that make relatively long flights between stops (for example, northern South America to middle Central America and then across the Gulf of Mexico to southern United States). Even fewer records exist for cerulean warblers during the southward migration in the fall, prompting the suggestion that these birds might fly non-stop from the southern U.S. all the way to the northern coast of South America. Isotope analyses indicate some level of migratory connectivity for this species (USFWS 2006, Appendix 4, Day 2—pp. 7-8), suggesting that individuals residing in the northern portions of the breeding range tend to go to more northerly portions of the wintering range and birds from the southern portions of the breeding range go to the more southerly portions of the wintering range. Survival rates of cerulean warblers have not been studied widely across their range. Only one study has published estimates of minimum survival rates. Jones et al. (2004, p. 17) reported an annual adult male survival rate of 0.49 over the period 1995 to 2001; or 0.54 in “normal years” and 0.40 following an ice storm in 1998. These estimates are minimum values because they do not account for adult dispersal and emigration between breeding seasons. Population Size and Trends Background Since its inception in 1966, the North American Breeding Bird Survey
(BBS)is the primary data source for estimating population trends of more than 400 species of birds breeding in North America (Droege 1990, p. 1). More than 4,000 BBS survey routes are distributed along secondary roads across the United States and southern Canada in a stratified random design. Each year, volunteer observers count birds along these routes, following standardized protocols. Surveys are conducted at approximately the same time each year, which is typically during the first half of June in most locations. Each survey route consists of 50 stops spaced 0.8 km (0.5 mi) apart. Observers count all the birds seen and heard within 0.4 km (0.25 mi) of each stop location during a three-minute period (Droege 1990, p. 1). The sum of the counts for each species over the 50 stops is used as an index of relative abundance for that route (Link and Sauer 2002, pp 2833). Statistical analyses are performed on these index values across routes to estimate population trends for particular species or groups of species. Two statistical analysis techniques are currently employed by analysts working with the BBS data: The route-regression method (Geissler and Sauer 1990, pp. 54-56) and the hierarchical model method (Link and Sauer 2002, pp. 2,833-2,836). The hierarchical model method is the more recently developed method, and BBS analysts are in transition from using the route-regression method to using primarily the hierarchical model method, which is a less subjective and more efficient method for estimating trend (Link and Sauer 2002, p. 2,837). The presentation of BBS data in the 2000 petition (Ruley 2000) used the route-regression method. Throughout this finding we discuss BBS data using the newer hierarchical model method. As a result, the figures used herein to describe BBS population trends differ from those used in the petition. Statistical analyses can be conducted across different time frames and spatial scales (for example, States, bird conservation regions, range-wide). It is important to recognize that the BBS was designed to estimate trends (changes in population) and not actual abundance (population size) of birds. Much of the criticism that has been leveled at the BBS—including doubts expressed about the BBS in the Service's positive 90-day finding on the petition to list the cerulean warbler—stems from confusion about the survey's objective and the protocols required to meet that objective. The following discussion addresses four aspects of the BBS that contribute to this confusion and why these issues do not detract from the usefulness of BBS for tracking bird population trends.
(1)The point count survey methodology of the BBS does not result in a complete count of the birds present. The efficiency with which birds are counted varies between observers and within observers over time and space. In addition, a 3-minute count is not long enough to detect all birds present in a given location due to temporal variability (both daily and seasonally) in detectability of different species. However, the BBS methodology does provide an index of relative abundance of birds along the survey routes. This index can be scaled to different levels of abundance using different analysis methods and provides an appropriate means for assessing population change along the routes. An index of relative abundance is suitable for tracking changes in the size of the entire population if the ratio between the number of birds detected in the surveys and number of birds actually present across the landscape remains fairly constant and without any directional bias across years (Bart et al. 1998, pp. 212-214). The statistical analyses of BBS data help to address some of the limitations pertaining to observer efficiency by incorporating variables that account for observer effects into the analyses. Such effects as differences in counts between observers in different years on the same route or the differences between an observer's first count and counts in subsequent years on the same route (the novice effect) are accounted for in the statistical analysis of the survey data (Sauer et al. 1994, pp. 59-60; Link and Sauer 2002, p. 2,834). Another factor contributing to incomplete counts of all the birds present is that most detections of forest-associated songbirds are largely through observers hearing the songs of males. Females of most forest songbirds do not sing and, therefore, are more difficult to detect during the breeding season. Thus, females of these species are greatly undersampled by the BBS. Again, this limitation is not relevant to the detection of population trends as long as trends in the male portion of the population are representative of trends in the entire population. For most small songbirds, such as the cerulean warbler, there is no substantial data indicating either a highly skewed sex ratio or a large difference in survival rates between the sexes such that trend data might be biased.
(2)BBS surveys are conducted along roadsides and might not accurately reflect habitats across entire landscapes. The proportion of different habitat types could be different across landscapes compared with what is sampled by BBS routes. However, this limitation, in and of itself, does not render the BBS ineffective in estimating trends of forest birds unless there is a consistent bias in the rate of change of habitats bordering roads compared to change of habitats away from roadsides. The fact that birds that avoid habitat edges might not be as abundant near roads as away from roads also does not influence trend estimates, except perhaps to reduce overall sample size for such species and require more years of data or more detections to achieve appropriate levels of statistical significance. Experimental studies comparing roadside with off-road counts or modeling efforts to assess relative amounts of different habitats in the areas immediately surrounding BBS survey routes and areas away from routes are necessary to address the issue of roadside habitat bias for the BBS. Two published studies have evaluated the bias associated with roadsides in the eastern United States. These studies were conducted in Ohio and Maryland. They both concluded that, although BBS routes under-sampled forest habitats in the regions evaluated (areas adjacent to BBS routes tended to have proportionately less forest cover than did the region as a whole), they did not find a bias in the change in habitats over time along BBS roadside routes compared with the larger landscapes surrounding those routes (Bart et al. 1995, p. 760; Keller and Scallan 1999, pp. 53-55). These studies suggest that the roadside nature of the BBS does not create a substantial bias in the BBS data pertaining to habitat changes that are likely to influence bird population trends. In contrast with this apparent lack of bias in trend estimates, the indication from these studies that BBS routes might under-sample forest habitats in the East could have implications for the population size estimates based on the Partners in Flight method (discussed below). However, an unpublished study from West Virginia (Weakland et al. 2003, p. 8) found no significant difference between the abundance estimates of cerulean warblers from off-road counts and from BBS routes. The study found a tendency for the off-road counts to be higher than counts on BBS routes, but the difference was not significant. The study concluded that, for cerulean warblers, data collected on BBS routes in West Virginia are comparable to data collected from off-road locations (Weakland et al. 2003, p. 8). In the positive 90-day finding on the petition to list the cerulean warbler, the Service expressed doubt on the ability of BBS data to reliably determine bird population trends of mature forest-associated species, such as the cerulean warbler. Reasons for this doubt were primarily associated with concerns about a possible roadside bias and concerns about lack of uniform coverage of BBS routes across the range of the cerulean warbler. To date, the published evidence on the topic of the roadside bias suggests that the roadside nature of the BBS does not significantly bias its ability to accurately track population trends of mature forest species, such as cerulean warblers (Bart et al. 1995, p. 760; Keller and Scallan 1999, pp. 53-55). Furthermore, the more recently implemented hierarchical model method for analyzing BBS data estimates trends more efficiently (resulting in smaller confidence intervals around the trend estimate) based on the available data (Link and Sauer 2002, p. 2837), reducing concerns about lack of uniformity in coverage of BBS routes, particularly at the rangewide scale. It is also worth noting that efforts to compare population trends calculated from BBS data with independent data sources have corroborated the trends indicated by the BBS for a variety of species, including independent trends based on the Christmas Bird Count, Mourning Dove Survey, raptor migration counts, and checklist programs (Droege 1990, p. 3). In addition, many peer-reviewed publications have been completed using BBS data (for example, Robbins et al. 1989b, Sauer et al. 1994, Link and Sauer 1997, Link and Sauer 1998, Royale et al. 2002, Sauer and Link 2002), indicating the overall robustness and scientific credibility of the BBS and its utility for monitoring bird population trends.
(3)A published analysis of BBS data using the hierarchical model method indicates that at the range-wide level, cerulean warblers have declined at an average rate of 3.04 percent per year during the period of 1966 to 2000, with the 95 percent credible interval (confidence interval for hierarchical method; C.I.) for the trend estimate being −4.02 to −2.07 (Link and Sauer 2002, p. 2837). A more recent, but unpublished, analysis of the BBS data for the years 1966 to 2005 using the hierarchical model method indicates a similar result: cerulean warbler trend was −3.2 percent per year (95 percent C.I.: −4.2 to −2.0) for this 40-year period (USFWS 2006, Appendix 5, slide 21 of J. Sauer's PowerPoint presentation). This recent estimate was based on data from 243 BBS routes on which cerulean warblers were detected at least once during that 40-year period. The rangewide relative abundance reported from this recent analysis was 0.25 birds per route, which is relatively low (less than 1 bird per route), and warrants some caution when considering the BBS results for this species, because a positive bias in the trend might occur with low counts, and because the variances are imprecise (Sauer et al. 2005b). Within the core of the species' range in the Appalachian Mountains (Bird Conservation Region 28), which currently supports an estimated 80 percent of the breeding population (as calculated using the methods described by Rosenberg and Blancher 2005), the relative abundance from the recent analysis was 1.03 birds per route and the 40-year trend was −3.1 percent per year (95 percent C.I.: −4.4 to −1.7; USFWS 2006, Appendix 5, slides 17-19 from J. Sauer's presentation). Analysis of the rangewide trend over the last 10 years (1996 to 2005) compared with the previous 30 years (1966 to 1995) indicated no significant change in the trend between those two periods (estimated change in trend = −0.5 percent, 95 percent confidence interval = −3.8, +3.4). The trend estimate for cerulean warblers over the first 30 years of the BBS was −3.0 percent per year (C.I.: −4.3, −1.8) and the estimate for the past ten years was −3.6 percent per year (C.I.: −6.3, −0.1). Because 10 years is a smaller sample size than 30 years, the trend estimate based on the last 10 years is less precise than the estimate from the previous 30 years, so that the 10-year credible interval completely overlaps the 30-year credible interval. Thus, the available data suggest that the trend for cerulean warblers has not changed during the more recent period and the population continues to decline by about 3 percent per year, including within the Appalachian core region (Sauer 2006).
(4)Partners in Flight produced estimates of global population size for North American land birds (Rich et al. 2004, pp. 69-77) based on a method developed by Rosenberg and Blancher (2005, pp. 58-61). The estimate of the cerulean warbler population was 560,000 individuals based on an average of counts made on BBS routes during the period of 1990 to 1999; it can be thought of as an estimate for the year 1995 (the mid-point of the time period). Partners in Flight rated the relative accuracy of their population estimates based on known sources of variation and limitations of the methodology pertaining to each species. Statistically derived confidence limits could not be provided because the variance has not been measured for some of the parameters and assumptions used in the method. Partners in Flight rated the accuracy of the population estimate for cerulean warblers as “moderate,” suggesting that they felt the estimate was likely to be within the correct order of magnitude (100,000's of birds rather than millions or 10,000's of birds) and could be within 50 percent of the true number (for example, 280,000 to 840,000). The Partners in Flight method uses BBS relative abundance data along with several assumptions and correction factors to calculate the estimated population size for species covered by the BBS (Rosenberg and Blancher 2005, pp. 58-61). The method is based on the idea that, at each stop on a BBS route, an observer is recording birds within 400m (1,300 ft ) of that stop location (per BBS survey protocol). Thus, the observer is effectively sampling an area equal to a circle with a 400m (1,300 ft) radius. Over the 50 stops of a BBS route, this sums to an effective sampling area of 25.1 km 2 (9.7 mi 2 ). After making some assumptions regarding BBS routes adequately representing habitats across large landscapes and assumptions about the detectability of birds, the average number of birds counted on BBS routes within a particular region can be extrapolated across that region to calculate an estimated population size. The following paragraphs present a list of the primary assumptions of the Partners in Flight method and discussion of the effects violations of these assumptions are likely to have on calculations of cerulean warbler population estimates.
(a)BBS routes are distributed randomly across regional strata. The BBS methodology prescribes random distribution of survey routes within sampling strata, and the assumption that BBS routes are randomly distributed has not been questioned. However, the intensity of route allocation within particular strata and the topographic location of routes are two factors that could lead to biased population estimates. For example, if BBS routes in the Appalachian Mountains tend to be along roads that follow creek bottoms, and if cerulean warblers tend to be more abundant on ridge tops, as indicated in Weakland and Wood (2005, pp. 503-504), Wood et al. (2006, pp. 160-161), and Buehler et al. (in press, p. 9), then the BBS counts could be biased by undersampling the topographic locations where these birds are likely to be most abundant. Both the route allocation and topographic location biases could lead to an underestimate of total cerulean warbler population size.
(b)BBS routes sample habitats in proportion to their relative amounts within the regional strata. The possibility of a habitat bias from the roadside nature of BBS routes contributes to uncertainty about the accuracy of population estimates derived from the Partners in Flight method. As discussed above in relation to population trend estimation, the two studies that have been conducted in the eastern United States have shown that BBS routes in Ohio and Maryland undersample forest habitats compared to the surrounding landscape (Bart et al. 1995, pp. 759-761; Keller and Scallan 1999, pp. 53-55). If a similar bias toward underrepresenting forest habitat exists throughout much of the cerulean warbler's range, then such a bias would result in an underestimation of the total population size when using the Partners in Flight method. Various efforts are underway to evaluate the habitat bias of BBS routes across much of the United States, but results are not available yet.
(c)Detectability of different bird species is a function of their distance from the observer and time of day, and all species have a fixed, average maximum detection distance. Correction factors for detection distance and time of day were incorporated into the estimation method to address this assumption. For the detection distance, species were assigned to one of five categories corresponding to different average maximum distances at which these birds were likely to be detected based on habitat type, song quality, and likelihood of being detected in some way other than by song (for example, hawks soaring in the distance): 80m (260 ft), 125m (400 ft), 200m (650 ft), 400m (1,300 ft), and 800m (2,600 ft). These different detection distances result in different effective sampling areas for BBS routes. Cerulean warblers were assigned a detection distance of 125m (400 ft), which is the assumed average maximum distance at which an observer will be able to detect a singing bird. This assumption has not been tested, and some experts believe that this detection distance might be an overestimate of the distance at which a singing cerulean warbler can always be heard; it is unlikely to be an under-estimate (USFWS 2006, Appendix 4, Day 2—pp. 1-2). If the real maximum detection distance for this species is less than 125m (400 ft), it would result in a larger population estimate based on the Partners in Flight method. For example, using a detection distance of 100m (325 ft) would result in a population estimate that is approximately 60 percent higher than the estimate using a 125m (400 ft) detection distance. The large influence of relatively small changes in detection distance on the resulting population estimate indicates that detection distance is a critical parameter in the population estimation methodology and contributes a large amount of uncertainty pertaining to the population estimate for a particular species when the accuracy of this parameter is unknown. To correct for detection issues associated with time of day, Rosenberg and Blancher (2005, pp. 59-61) developed distribution curves of the detections for each species over the 50 stops of BBS routes. Based on these curves, peak detection probabilities were determined for each species and then a ratio of the peak detections to average detections was calculated. This ratio is used to adjust the average numbers of birds detected per route to peak numbers per route, reflecting numbers that would be expected if the peak detection probability lasted throughout the morning hours when BBS routes are surveyed. The time of day correction factor calculated for cerulean warbler is 1.35 (Rosenberg and Blancher 2005, p. 63—Table 2). The methods for deriving this correction factor are empirically based, and there is little reason to believe that it is biased or otherwise inappropriate for cerulean warblers. One potential correction factor that was not incorporated into the Rosenberg and Blancher
(2005)method and that could influence population estimates for cerulean warblers is a correction for detectability associated with the season. The song rate of most cerulean warbler males declines once they become mated and as the breeding season progresses (USFWS 2006, Appendix 4, Day 2—p. 2). The breeding season typically begins between mid-April and early May throughout much of the breeding range. Most BBS routes are run during the first half of June, and overall song rate of mated males is likely to be lower at that time than earlier in the breeding season. Such a time of season effect could contribute to an under-estimate of the total cerulean warbler population size.
(d)Individuals detected during a count represent one member of a pair. A pair correction factor of two times the initial estimate was also incorporated into the method to address Assumption D. Most individuals in breeding populations are mated during the time of the BBS survey, but it is usually only one member of each pair that is detected (for example, a singing male). Rosenberg and Blancher (2005, p. 61) acknowledge that the appropriate pair correction factor for all species is somewhere between one and two, because not all individuals in a breeding population are mated. However, this correction factor has not been empirically established for any species yet. Field studies indicate that not all male cerulean warblers attract mates during the breeding season, although some males of this species are also known to be bigamous (USFWS 2006, Appendix 4, Day 2—p. 2). The proportion of unmated and bigamous males across the species range is unknown. The most appropriate pair correction factor for cerulean warblers might be a number less than two, but insufficient data currently exist to estimate what this number should be for the entire population. A pair correction factor less than two would result in a smaller population estimate, while a pair correction factor greater than two would result in a larger population estimate. Status of the Cerulean Warbler Population We used a stepwise approach to evaluate what single factor or combination of factors may affect the cerulean warbler's population trend in order to evaluate whether the species warrants listing as threatened or endangered under the Endangered Species Act. First, we used all available information, including that contained within the petition, scientific literature, and expert opinion (USFWS 2006) to identify potential factors that might explain the historical and projected population trends (see previous section “Population Size and Trend”). Next, we gathered information to assess whether the likelihood of occurrence or magnitude of effect of the factors were likely to result in population-level effects. We used the qualitative judgments of independent experts (USFWS 2006) to assess these potential causal factors where quantitative data are unavailable. Then, we synthesized the information on the past and future factors with estimates of historical (Link and Sauer 2002, p. 2837, Sauer 2006) and projected (Thogmartin 2006) cerulean warbler population trends to estimate to what degree potential factors might influence the species' risk of extinction. Finally, we compared the results of our analysis to the five factors listed in the Act to ensure thorough consideration of potential threats, and, in light of the Act's five-factor analysis, we evaluated whether the species' current or projected status met the definitions of threatened and endangered. Summary of Factors Affecting the Species Section 4 of the Act (16 U.S.C. 1533) and our implementing regulations at 50 CFR part 424 set forth the procedures for adding species to the Federal endangered and threatened species list. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1), as follows:
(A)The present or threatened destruction, modification, or curtailment of its habitat or range;
(B)overutilization for commercial, recreational, scientific, or educational purposes;
(C)disease or predation;
(D)the inadequacy of existing regulatory mechanisms; or
(E)other natural or manmade factors affecting its continued existence. In making this finding, information regarding the status of, and threats to, the cerulean warbler in relation to the five factors is discussed below. In developing our 12-month finding for the cerulean warbler, we considered all scientific and commercial information on the status of the species that we received during the comment period following our 90-day finding. We also searched the scientific literature for relevant data and consulted experts on the cerulean warbler and threats to its habitat to ensure that this finding is based on the best scientific and commercial data available. As noted earlier, we considered the population trend estimate of −3.2 percent per year (CI = −4.2 to −2.0), which is based on Breeding Bird Survey data (Link and Sauer 2002, p. 2837; Sauer unpublished data 2006), to be the best available representation of the species population status. This trend estimate comprises all of the factors causing population change during the 40-year period of Breeding Bird Survey data collection. In other words, all the factors affecting cerulean warbler demographics have combined over the past 40 years to produce an annual average decline of 3.2 percent per year, with 90 percent certainty that the true decline is between 4.2 and 2.0 percent per year (Link and Sauer 2002, p. 2837; Sauer unpublished data 2006). The information available suggests that the factors described in this section will continue affecting cerulean warbler habitats and demography in a similar manner, resulting in a continuing population decline of approximately 2 to 4 percent per year. We describe the potential contributing factors to the species' approximately 3 percent annual decline in the following description of the five listing factors (iterated above). A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range After consideration of all available information, the Service has determined that four biological mechanisms operating throughout the species' annual range are likely to be primary contributors to the species' declining population trend. Each of these mechanisms is related to changes in habitat in North America, South America, and along the species' migration routes. These mechanisms are: 1. Reduction in available nesting sites and suitable breeding territory characteristics because of loss or degradation of habitat, 2. Reduction in foraging success resulting from decreased prey abundance, primarily on the wintering ground in South America, 3. Increased predation throughout the species' annual range and nest parasitism of cerulean warblers in the breeding grounds, resulting from habitat fragmentation, and 4. Loss of migration habitat. Each of these four mechanisms results, either directly or indirectly, from the reductions in quality and quantity of cerulean warbler habitat (Factor A of the Act) and therefore, all will be discussed under Factor A. 1. Reduction in available nesting sites and suitable breeding territory characteristics because of loss or degradation of habitat: Although we do not have a rangewide numerical relationship between habitat loss and population change, we do know that there is a positive relationship between cerulean warbler nest presence and mature and old-growth hardwood forests with large trees, small gaps, and vertical diversity in vegetation layers (Hamel 2000b, pp. 12-18; Weakland and Wood 2002, p. 13). Therefore, we can conclude that degradation or removal of suitable mature and old-growth hardwood forestland will result in reductions in nesting opportunities, and that accumulation of habitat losses is likely to result in declines in cerulean warblers. We do not know what happens to individual birds when breeding habitat is removed. Displacement of adults and mortality of nestlings is likely if removal of nesting stands occurs during the breeding season. Nestling or post-fledging mortality may also occur if habitat within nesting territories is eliminated or quality is reduced below an unknown threshold level. Results of recent studies suggest that cerulean warblers are capable of interannual movement (Veit et al. 2005, pp. 165-166; USFWS 2006, Appendix 5f, slide 17 of Jones PowerPoint); therefore, breeding habitat loss during the non-breeding season is likely to result in relocation of adults that return during the subsequent breeding season. However, the degree to which reproductive success or survival of displaced individuals is affected is likely dependent upon several variables, including whether the displaced birds relocate into already occupied or unoccupied, or whether remaining habitat is optimal or suboptimal. We do not have information to assess the degree and type of impact of breeding habitat of site-specific habitat loss, unless known occupied nests are removed. Degradation of habitat quality can occur at several scales, and the resulting effect on cerulean warblers is likely to be context-dependent. Loss of a single dominant tree in a stand possessing numerous other dominant trees may have little or no effect on the reproductive success of breeding cerulean warblers, whereas loss of a single dominant tree in a stand having few other large trees may render a formerly suitable site unsuitable for nesting birds. Context is probably similarly important at larger scales. Reduction in patch size and introduction of hard edges may result in greater local population declines and habitat unsuitability where a forest stand is surrounded by an already fragmented landscape as opposed to largely intact forest. Thus, habitat content factors that operate at local scales (to include nest trees, prey base, etc.) and habitat context factors that operate at larger scales (to include things like habitat patch size, degree of landscape fragmentation, etc.) are both important determinants of overall habitat quality for breeding cerulean warblers. The amount, distribution, and quality of habitat for breeding cerulean warblers has been altered dramatically since European settlement in the early 1600s. An estimate of total forestland in 1630 in 19 States in which cerulean warblers occur today and for which there was analyzed BBS data (Sauer 2006) was 133,000,000 ha (328,695,000 ac) (Smith et al. 2004, p. 33, citing Kellogg 1909). Today, the estimate of forest cover in those same States is 73,600,000 ha (181,850,000 ac) (Smith et al. 2004, p. 33), a total reduction of approximately 45 percent. The most dramatic change occurred between the early 1600s and 1900, when approximately 51 percent of forestland was converted to agricultural and other uses (Smith et al. 2004, p. 33). Since 1900, approximately 8,500,000 ha (21,000,000 ac) have reverted from primarily agricultural uses to forestland. Approximately 52 percent of today's hardwood forest within the eastern United States is in mature sawtimber (Smith et al. 2004, p. 64); some of this area is northern hardwood forest and outside the range of the cerulean warbler. The cerulean warbler appears capable of using previously unoccupied stands that have matured to develop necessary habitat characteristics. Evidence of this capacity comes from New Jersey, New York, and parts of New England, where the species has recently expanded its range (Hamel 1992, pp. 385-400; Robbins et al. 1992, p. 551). Population information indicates that this expansion occurred during the later part of the 1900s, although experts suggest that the expansion does not appear to be continuing today (USFWS 2006, Appendix 4, Part II, p. 5). We do not know the distribution of cerulean warblers prior to 1966; therefore, we do not know whether this expansion is a reoccupation of restored forest or true expansion into an area not previously occupied. Despite this recent, gradual increase in the total amount of forestland, cerulean warbler populations have declined since 1966, according to Breeding Bird Survey data. Several hypotheses could explain this phenomenon:
(1)The amount of forest stands with diverse structure continues to decline even though total forestland acres increases;
(2)local reductions in nesting opportunities in core breeding areas are having disproportionate effects at the population level; or
(3)factors occurring elsewhere in the species annual range or not related to nesting opportunities are causing the decline. We will discuss each of the first two of these factors in the following text, and the third factor in subsequent sections. Rangewide data are not available to quantitatively assess the amount of or change in habitat with desired characteristics for breeding birds. Nevertheless, several pieces of information are important for consideration. It takes hundreds of years for hardwood forests to naturally achieve complex structure of mature and old-growth forests (Hamel 2000, p. 12 citing Widman), which are characteristic of stands selected by cerulean warblers for breeding. Much of the reversion of agricultural lands to forestland has occurred since the early 1900s; therefore, much of the new acreage in forestland remains in relatively younger stands that have yet to achieve desired structural complexity. We note, however, that stand heterogeneity is likely a more important predictor of habitat quality than simply looking at stand age, because natural and anthropogenic disturbances can create desired stand complexity. Forest management practices, such as high-grading, may also affect habitat quality if the largest trees in the stand are removed, reducing structural complexity. Fire suppression, species-specific tree diseases, and locally or regionally high deer densities may also reduce the complexity of forest structure. Effects in a relatively small portion of the species' range, compared to the species' entire breeding range, could contribute disproportionately to the population decline. This has likely happened in the past and may happen in the future. Historically, cerulean warblers were probably numerous in the bottomland hardwood forests of the Mississippi Alluvial Valley. Today, approximately 80 percent of forest in this area has been converted to nonforest uses (Brown et al. 2000, p. 6). Nesting cerulean warblers currently occur only in scattered locations within this region. It is important to note that most of this loss occurred before the Breeding Bird Survey began in 1966. Currently, large-scale habitat loss is occurring in the core of the species' range, Kentucky and West Virginia, where mountaintop coal mining and valley fill operations through 2012 are expected to remove 567,000 ha (1.4 million ac) of suitable forest habitat (USEPA 2005). The total cumulative forest loss from these activities will likely eliminate breeding habitat for 10 to 20 percent of the total cerulean warbler population currently occurring within that core area. The loss of breeding opportunities for birds in this area may have a disproportionate effect on the species' total population size. The USDA Forest Service has projected forest change to the year 2050 (Alig and Butler 2004). These projections are based on prior trends in forest change, expected market conditions, and no change in forest management related policies. Under these conditions, the Forest Service expects a slight decline in hardwood forest area. Hardwoods will continue to dominate the southeastern United States; however hardwood forest area is expected to decline by up to 18 percent by 2050 (Alig and Butler 2004, pp. 32-33). Maple-beech-birch and oak-hickory forests are estimated to decrease by 6 percent and 15 percent, respectively (Alig and Butler 2004 p. 18). We note that small portions of the hardwood forest area contained within these estimates are outside the range of the cerulean warbler; refer to Alig and Butler (2004, p. 2) for a map of the forest survey area. We stress that changes in acreage or percent of forest landscape in hardwoods are only one determinant, and the actual composition and structure of hardwoods forests in future landscapes may be equally or more important. In summary, a variety of factors has affected the quantity and quality of mature and old-growth hardwood forests within the range of the cerulean warbler. Overall, habitat loss beginning in the 1600s likely precipitated a decline in cerulean warblers; however, the conversion of forests stabilized with about 50 percent of forestland remaining in the early 1900s. Rangewide cerulean warbler population information did not become available until the 1960s; therefore, we do not know how the pre-1900s cerulean warbler population size changed as a result of this dramatic habitat loss, nor how it may have responded to post-1900 forest changes. Beginning in the 1900s, re-growth of forests previously converted to agriculture has added potential breeding habitat that may be reoccupied when stands achieve the characteristics selected for by cerulean warblers, as evidenced today in the Northeastern United States. 2. Reduction in foraging success resulting from decreased prey abundance, primarily on the wintering ground in South America: Cerulean warblers feed exclusively on insects in North America, and on insects and nectar in South America. Availability of these resources is critical to an individual bird's survival. Insufficient fat storage before spring migration could increase an individual's risk of mortality and decrease reproductive success upon return to the breeding grounds. Insufficient fat storage before fall migration could leave an individual at risk of mortality, especially if the migration route is over water where foraging opportunities are limited, as is currently hypothesized. *Winter range* —Abundance of food resources in South America has likely declined because of the degradation and removal of tropical forests. Removal of overstory trees, as forests are cleared and shade-grown coffee plantations are converted to sun coffee plantations, is expected to result in losses of arthropods that are specialized for the canopy layers. For example, in Costa Rica, Perfecto (1996, p. 602) reported an average of 72 percent of the ants in a tropical forest tree canopy to be canopy specialists. However, that we do not know that cerulean warblers prey on ants. In a Costa Rican study, Perfecto et al. (1996, p. 602) reported similar arthropod diversity in overstory trees within shade-grown coffee plantations as within a native forest canopy. We do not have figures for arthropod diversity or abundance in the Northern Andes, but we expect that conditions may be similar. We do not have quantitative information on the differences in nectar resources between tropical forest and developed lands. Moreno et al. (2006, p. 3) used a climatic and geospatial model to predict the potential maximum occurrence of cerulean warbler wintering habitat in the narrow elevation zone (500 to 1,500 m (1,650 to 5,000 ft)) in the Northern Andes and estimated a nearly 60 percent current reduction from maximum levels. The remaining habitat is tropical forest and shade-coffee plantations. Some field biologists believe that the model overestimates habitat availability, and they estimate that less than 10 percent remains (Moreno et al. 2006 unpublished report, pp. 3, 5). Most of the loss of tropical forests in the Northern Andes occurred within the latter half of the 1900s. Approximately 15 percent of the species' modeled potential habitat (Moreno et al. 2006 unpublished report, p. 5) is managed under protective status. The effectiveness of this protective status for conserving cerulean warblers is uncertain because none of the documented cerulean warbler winter occurrences are within protected areas (Moreno et al. 2006 unpublished report, p. 5). The rate of loss of the remaining tropical forest is likely to be decreasing because remnant forests are in steep and inaccessible areas; however, removal of portions of the remaining tropical forests continues. We know that cerulean warblers occupy shade-coffee plantations during the non-breeding season, but we do not know whether shade-coffee plantations are optimal or sub-optimal habitat because data are not available to compare body condition of cerulean warbler on shade-coffee plantations with birds occupying tropical forests. In other words, presence does not necessarily equate to suitability of these habitats. The amount of habitat supplied by shade-coffee plantations is diminishing, as some of these plantations are converted to sun-coffee plantations that lack the overstory required by wintering cerulean warblers (Moreno et al. 2006 unpublished report, p. 2). Cerulean warblers are not known, and are highly unlikely, to occur in sun-coffee plantations due to the plainly inadequate structure of such vegetation. In summary, the population-level effects of habitat loss and degradation on forage abundance and foraging success have not been quantified. It is reasonable to conclude, however, that a greater than 60 percent decline of wintering habitat in South America has contributed to the approximately 3 percent annual population decline of cerulean warblers through reduced forage availability and increased competition for remaining food resources. *Breeding and Post-Fledging Range* —Under pre-European settlement conditions on the breeding grounds, the hardwood forests of the eastern United States were a mosaic of different seral stages (Williams 1989, pp. 22-49). Although the forests were predominately mature and old growth, patches of younger seral-stage forests occurred within small gaps (Lorimer 1989, pp. 565-566). Today, cerulean warblers occur in greater relative abundance within landscapes with similar mosaic characteristics. Information suggests that cerulean warblers select nests sites in stands where canopies are interrupted by small gaps and canopy closure is between 65 percent and 85 percent (Hamel 2000, p. 16). Nests are found in areas with large diameter trees and stands with complex canopies, but small patches of seedling-sapling aged trees within the mature forest mosaic may provide important habitat for post-fledging first-year birds. Today's mature forest characteristics may not mimic the mosaic conditions of original hardwood forest because of alterations in the disturbance regimes through fire suppression, dense populations of deer, and certain timber harvest methods. The effects of this change in forest disturbance regimes on cerulean warblers are not well studied or understood. It is possible, however, that the replacement of the natural disturbance regime—characterized by frequent, small-scale disturbances—with the less-frequent larger-scale disturbances (Lorimer 1989, pp. 565-566) may not produce understory conditions that favor foraging success for post-fledging birds because of the lack of interspersed seedling-sapling patches. 3. Increased predation throughout the species' annual range and nest parasitism of cerulean warblers in the breeding grounds, resulting from habitat fragmentation: Fragmentation of cerulean warbler habitat has occurred throughout the species' range. High rates of predation and brood parasitism often accompany habitat loss and fragmentation, especially in forested landscapes interspersed with agricultural lands and grasslands (Hoover and Brittingham 1993, p. 234; Brittingham and Temple 1983, pp. 31-34; Faaborg et al. in Martin and Finch 1995, p. 361). Several studies have shown low rates of nest success (less than 40 percent) for cerulean warblers in areas of fragmented forest within agricultural landscapes due to high levels of predation and the presence of nest parasitism (Hamel 2000a, p. 4; Roth 2004, p. 43; Varble 2006 p. 3). Direct measurements of adult and post fledging mortality due to habitat loss and fragmentation during the breeding season on cerulean warblers do not exist; however, this phenomenon is well documented with other canopy and sub-canopy nesting songbird species. It is reasonable to conclude that brood parasitism and predation are exacerbated by habitat loss and fragmentation and that this is contributing to the approximately 3 percent annual population decline. *Wintering Range* —Effects of habitat loss and fragmentation include increased risk of mortality from predation of neotropical migrant songbirds in the non-breeding range (Rappole et al. 1989, p. 407; Petit et al. in Martin and Finch 1995, pp. 179-180), especially if birds are forced to wander outside optimal habitat. Although no studies of predation on cerulean warblers in the non-breeding range have been conducted, it is reasonable to assume that predation-caused mortality of cerulean warblers is similar to that documented for other warbler species. Approximately 60 to 90 percent of wintering habitat of cerulean warblers in South America has been converted to other land uses. This loss of habitat has resulted in a highly fragmented landscape. Geospatial modeling estimates that fragmentation of this habitat has more than doubled (Moreno et al. 2006, p. 14, unpublished report). *Breeding Range* —Nest parasitism and predation usually result in mortality of nestlings and post-fledging birds. Brown-headed cowbirds ( *Molothrus ater* ) lay their eggs in the nests of other species, and when hatched, cowbird chicks outcompete the chicks of the natural parents. Likely nest predators are corvids, chipmunks, squirrels, and other arboreal animals. Populations of cowbirds and avian predators are higher in highly fragmented forests and in areas where edges delineate sharp differences in land use between the forests and the adjacent stands. For example, cowbird abundance is greater along forest and agricultural edges than along edges created by different forest age classes (Rodewald and Yahner 2001, p. 1021) and are more common where human development provides new feeding sites, such as pastures. Overall, however, cowbird populations have declined since breeding bird surveys began in 1966 (Robbins et al. 1992, p. 7661). We do not know whether, or the degree to which, reductions in cowbird populations result in less pressure on cerulean warblers. Effects of habitat loss and fragmentation on songbirds of North America have been relatively well studied compared with birds in South America; however, little specific information is available on cerulean warblers. In general, we know that increased fragmentation and decreased habitat patch size within the breeding range is likely to increase risk of predation and nest parasitism (Robinson et al. 1995, pp. 1988-1989; Donovan et al. 1995, p. 1393). Nest success was low (less than 25 percent) at Big Oaks National Wildlife Refuge in Indiana due to nest predation and nest parasitism; the breeding habitat on the refuge is surrounded by an agriculturally dominated landscape (Roth 2004, p. 43; Varble 2006, p. 3). Studies on cerulean warblers have concluded that increased distance from edge was a significant positive predictor of cerulean warbler territory density (Bosworth 2003, p. 21; Weakland and Wood 2002, p. 505). The reason for decreased cerulean warbler density near edges is not known, but may be a result of lower availability of suitable or optimal habitat near edges, or edge habitat avoidance, possibly as a result of increased predation pressure or other factors. The effects of fragmentation are likely to be context-dependent, where increasingly fragmented landscapes lead to decreased reproductive success due to increased predation and brood parasitism (Donovan et al. 1995, p. 1393). Specifically, Donovan et al.
(1995)found that nest failures of three forest-nesting, neotropical migrants (ovenbird ( *Seiurus aurocapillus* ), red-eyed vireo ( *Vireo olivaceus* ), and wood thrush ( *Hylocichla mustelina* )), were significantly higher in fragmented forests than in contiguous forests. 4. Loss of migration habitat: Migrating warblers that cross the Gulf of Mexico to and from breeding and wintering grounds depend on finding suitable patches of terrestrial habitat near coastlines. Such habitats are essential in providing food resources necessary to replenish energy and fat stores of enroute migrants and to provide shelter from predation and inclement weather events. As coastal forest habitat along the U.S. and Central American Gulf coasts is lost to development and conversion, compounding the adverse impacts of hurricanes and other natural factors, the vulnerability of cerulean warblers to mortality during migration has increased. Conservation Actions Currently Underway There are several existing conservation actions and programs that specifically focus on the cerulean warbler and its habitat. We did not rely on these ongoing conservation actions in our determination that listing the cerulean warbler is not warranted and, therefore, we did not evaluate them under our 2003 Policy for Evaluation of Conservation Efforts When Making Listing Decisions (68 FR 15100; March 28, 2003). The cerulean warbler Technical Group
(CWTG)is a partnership of biologists, managers, and scientists from the forest-products industry, Federal and State agencies, nongovernmental organizations, and academia. It was formed in 2001 to develop a broad-based, technically sound approach to conservation of the cerulean warbler. By seizing the initiative and bringing key stakeholders and technical experts together, the CWTG seeks to keep the focus on identifying meaningful and proactive conservation solutions through sound science, clear communication, and trust. CWTG was loosely modeled after the highly successful Louisiana Black Bear Conservation Committee formed in the early 1990s. Collaborative actions of the CWTG on behalf of the species are coordinated by a Steering Committee charged to spur action and chart future activities and directions. There are currently 72 CWTG participants working on the following committees: Coordination, conservation, monitoring, research, international, and mining. Hamel et al. (2004, pp. 12-14) provides a thorough discussion on the history, organization, and objectives of the CWTG. In December 2002, the CWTG met at the National Conservation Training Center in Shepherdstown, West Virginia, at a workshop sponsored by the Service and the U.S. Geological Survey. This important workshop was attended by 65 people from a broad category of disciplines, including biologists from Colombia, Ecuador, and Venezuela. The main purpose of the workshop was to develop a proactive, broad-based, and cohesive strategy for cerulean warbler conservation. Four working groups were established; their goals and accomplishments are summarized below:
(1)The Breeding Season Research Group identified rangewide research priorities and designed a research experiment to test cerulean warbler response to commonly applied forest management practices, replicated at five study areas across the core of the breeding range. The project will provide information on cerulean warbler ecology and demography, and insights to key limiting factors and to management prescriptions that could benefit it and associated species. In 2003, the project was endorsed by the Northeast and Southeast working groups of Partners in Flight as the highest research priority for forest songbird conservation.
(2)Priorities for the Breeding Season Surveys and Monitoring Group are to map cerulean warbler distribution more completely, improve regional and global estimates of population size and trend, and integrate inventory and monitoring efforts with predictive modeling. Successes include bringing together major forest-products companies in the mid-Appalachians in partnership with the National Council for Air and Stream Improvement (NCASI) and the Cornell Laboratory of Ornithology to evaluate cerulean warbler status on as much as 100,000 ha (250,000 ac) of likely suitable habitat that have not previously been surveyed. During the nesting seasons of 2003 to 2005, the partners surveyed hundreds of points on private lands. The data are being used to test and refine predictive models, developed by University of Tennessee, the Service, and U.S. Geological Survey, on the spatial distribution, abundance, and habitat associations of cerulean warblers in their core breeding range.
(3)The Breeding Season Conservation Group is developing a vision and goals for long-term sustainability of cerulean warblers within the context of integrated ecosystem conservation and to develop habitat conservation and management recommendations for the cerulean warbler that can be incorporated into management plans for public and private forestlands within its range. One venue for pursuing these goals is the Appalachian Mountains Bird Conservation Initiative (under the Atlantic Coast Joint Venture), a partnership organized to facilitate effective proactive conservation for all birds in the Appalachian Mountains region with an emphasis on cerulean warblers and ecologically related species.
(4)The Non-Breeding Season Group, *El Grupo Cerúleo* , promotes a multispecies approach to habitat conservation on the wintering grounds (including other resident at-risk species that co-occur with cerulean warblers). This group has compiled a database of documented observations of cerulean warblers, assessed non-breeding threats and conservation coverage, identified opportunities for outreach and education to communicate awareness of migratory bird issues, and (through the U.S.D.A. Forest Service and The Nature Conservancy) provided funding for South American biologists to conduct new research on cerulean warblers in the winters of 2003-2004 through 2005-2006. Two workshops (March 2003 and November 2005) in Ecuador with biologists and modelers from throughout northern South America resulted in GIS-based, spatially explicit models of cerulean warbler winter habitat. *El Grupo Cerúleo* recently assisted other conservation organizations in securing an important non-breeding habitat reserve for the cerulean warbler in Colombia (see more on this action in discussion of Important Bird Areas below). The cerulean warbler Technical Group is moving forward on the premise that the most successful conservation efforts for cerulean warblers will be those that bring together broad partnerships to achieve common goals. To that end, the CWTG Steering Committee conducted two separate one-day meetings with forest and coal industry biologists and managers in March 2006 in Charlestown, West Virginia. The purpose of these meetings was to begin discussions with these two industries on cooperative efforts to broaden cerulean warbler conservation management. Both meetings explored the constraints and potential options for cerulean warbler conservation in the Appalachians and establishing a foundation for a broader conservation partnership summit in February of 2007 that will focus on actions. There are several projects currently being conducted to study the response of cerulean warblers to targeted management efforts to restore the quantity and quality of its breeding habitat. As previously discussed in this finding, quality cerulean warbler breeding habitat consists of mature forests with a diverse and vertically complex canopy structure, including canopy gaps and associated midstory and understory vegetation. Biologists and land managers are manipulating (managing) forest areas to create the complex canopy structure required by cerulean warblers. If these research and management studies are successful, these methods could be used in many public and private forests to restore the cerulean warbler's breeding habitat and enhance its reproductive capability in a shorter period of time. The most comprehensive effort involving the scientific evaluation of managing and restoring cerulean warbler breeding habitat is the Cooperative Cerulean Warbler Forest Management Project, which was developed by the Cerulean Warbler Technical Group. Study areas include a national forest in eastern Kentucky, a State wildlife area in north-central Tennessee, a State wildlife area in southeastern Ohio, a State wildlife area in north-central West Virginia, national forests in eastern West Virginia, and an area of private forest industry lands in the coal fields of southern West Virginia. Each study area will consist of four sites representing different levels of forest management intensity:
(1)No management,
(2)selective harvest with 75 percent residual canopy cover,
(3)selective harvest with 50 percent residual canopy cover, and
(4)even-aged harvest (clearcutting, less than 10 percent residual canopy cover). Each site will be 20 ha (50 ac), with the management actions being applied on a 10 ha (25 ac) area in the center of each site. This configuration will allow for an undisturbed buffer at least 100 m (330 ft) to isolate the management activities and for assessing edge effects around the different levels of management intensity. Two years of pre-harvest monitoring (2005, 2006) and two years of post-harvest monitoring (2007, 2008) will occur on each site. The pre-harvest monitoring has been conducted and the forest management actions are scheduled to occur during the fall and winter of 2006-2007. A similar forest management-cerulean warbler study is being conducted on the Chattahoochee National Forest in northern Georgia. In 2005, Fundacion Aves (the ProAves Foundation of Colombia) and the American Bird Conservancy were successful in securing a 1,250-ha (500-acre) reserve of Andean subtropical forest in the Rio Chucur basin of Santander, Colombia (within the Serrania de los Yariguies Important Bird Area) to protect wintering habitat for the cerulean warbler. The area, one of the last natural forest fragments in the region, contains high populations of wintering cerulean warblers. This is the first South American reserve designed to protect a bird species that nests solely in the United States and Canada. The reserve is also a focal point for a continuing regional conservation campaign for the cerulean warbler. Another key area for wintering cerulean warblers—southwestern Antioquia, Colombia—has been targeted for further conservation efforts. Factor A Summary We believe that the combined effects of habitat loss have accumulated to produce the 40-year average annual decline of 3.2 percent per year, with 90 percent certainty that the true decline is between 4.2 and 2.0 percent per year. As stated earlier, we do not have information to suggest that the population trend will shift outside the credible interval (Link and Sauer 2002, p. 2837; Sauer 2006) in the future, and we, therefore, assume that the factors described above will continue to support the declining population trend between −4.2 and −2.0 per year. Notwithstanding this assumption, the Service does not find that the cerulean warbler is likely to become a threatened or endangered species within the foreseeable future throughout all or a significant portion of its range. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes We are not aware of any commercial, recreational, or educational uses that result in adverse impacts to the species or to individuals, nor do we envision any such threats developing in the foreseeable future. There is a potential for adverse impacts resulting from scientific purposes, but data indicate that such impacts are negligible. All scientific activities in the United States that involve taking (for example, pursuing, capturing, hunting, shooting, wounding) cerulean warblers, their nests, or their eggs require a permit issued by the Service under authority of the Migratory Bird Treaty Act. In the United States, 13 cerulean warblers were taken under scientific research permits from the beginning of 2000 to the present, an average of fewer than 3 birds per year. Currently there are four valid and active scientific collection permits that allow the potential lethal take of up to 20 additional cerulean warblers through March 31, 2008 (Andrea Kirk, Migratory Birds Permit Chief, USFWS Region 3, 2006, in litt.). This level of mortality is deemed to be of negligible impact on a species whose population is most likely in the hundreds of thousands of individuals. Other research projects that include handling cerulean warblers, such as capturing and handling individuals for banding or applying other markings, may accidentally result in serious injury or death to a small percentage of the captured birds. Permits for these activities are issued by the Bird Banding Laboratory
(BBL)of the Biological Resources Division of the U.S. Geological Survey. Data from the BBL show that only 1,879 cerulean warblers were banded during the 50-year period from 1955 to 2004 (BBL data, accessed on September 8, 2006, at *http://www.pwrc.usgs.gov/BBL/homepage/listalph.htm* ). The number of cerulean warblers banded during this period is much lower than almost all other warbler species banded during this 50-year period (only four other warbler species had a lower number of bandings). For instance, 3,469 golden-cheeked warblers and 3,236 Kirtland's warblers (both endangered) were banded during this period and 26,919 blackburnian warblers. Compared to banding activities involving other warbler species, this is a very low incidence of banding and handling, indicates that there has been little intentional or incidental banding activity with this species. The behavior of cerulean warblers generally keeps them high in the forest canopy, leading to a low frequency of capture in the mist nets used by bird banders. Thus, we conclude that there are few (if any) adverse populations impacts resulting from banding or marking this species. We have no data concerning the impacts of scientific research on this species along its migratory route or on its wintering grounds, but there is no reason to suspect those activities have or will produce significant adverse impacts on the species. In summary, the best available scientific data indicate that there are no significant impacts occurring to the species from overutilization for commercial, recreational, scientific, or educational purposes. C. Disease or Predation We found no evidence to suggest that avian diseases or parasites are affecting cerulean warblers beyond normal baseline levels. The possible increased impacts of predation and nest parasitism are believed to be caused by changes in habitat quality. Therefore, these impacts are discussed under Factor A, above. D. The Inadequacy of Existing Regulatory Mechanisms Existing regulatory mechanisms that could provide some protection for the cerulean warbler include:
(1)United States Federal laws, regulations, and Executive Orders;
(2)Canadian Federal and Provincial Laws and Regulations; and
(3)State wildlife laws, which are discussed below.
(1)U.S. Federal Laws, Regulations, and Executive Orders The Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703-712) prohibits “take” of any migratory bird. “Take” is defined as to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect. The National Environmental Policy Act (NEPA; 42 U.S.C. 4321 *et seq.* ) requires all Federal agencies to formally document, consider, and publicly disclose the environmental impacts of their actions and management decisions. NEPA documentation of these impacts is provided in an environmental impact statement, an environmental assessment, or a categorical exclusion, and may be subject to administrative or judicial appeal. In NEPA documents, Federal agencies may present scientific studies, evaluations, and management decisions involving actions that may impact the cerulean warbler or its habitat. Some Federal agencies may be required by their regulations, policies, and guidance to perform specific assessments under NEPA for actions that could impact the cerulean warbler. Examples include biological evaluations addressing actions by the U.S. Forest Service on national forests where the cerulean warbler is identified as a sensitive species by the Regional Forester. The Multiple-Use Sustained-Yield Act of 1960, as amended (MUSY; 16 U.S.C. 528-531) provides direction that the national forests be managed using principles of multiple uses and to produce a sustained yield of products and services. Specifically, MUSY provides policy that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes. Land management for multiple uses necessarily raises competing and conflicting issues. MUSY provides direction to the Forest Service that wildlife, including the cerulean warbler, is a value that must be managed for, though discretion is given to each forest when considering the value of this species relative to the other uses for which it is managing. Although MUSY could provide some protection for the warbler, it does not have any provisions specific to the conservation of the warbler or its habitat. The National Forest Management Act
(NFMA)as amended (16 U.S.C. 1600-1614) is the primary law governing the administration of national forests by the U.S. Forest Service. NMFA requires all units of the National Forest System to have a Resource Management Plan (RMP), to revise the plans whenever significant changes occur in a unit, and to update the plans at least once every 15 years. The purpose of the RMP is to guide and set standards for all natural resource management activities over time. NFMA requires the Forest Service to incorporate standards and guidelines into RMPs, including provisions to support and manage plant and animal communities for diversity, and the long-term rangewide viability of native and desired nonnative species. Several national forests have identified the cerulean warbler as a “sensitive species,” which involves an additional assessment of the impact of individual management actions by the national forest on the cerulean warbler. National forests that have identified the cerulean warbler as a sensitive species have current information on the presence and condition of the warbler and its habitat on the national forests and within individual units where management actions are planned. Surveys for cerulean warblers may be conducted prior to undertaking management actions or to monitor population trends of cerulean warblers, including national forests where the species is not designated as a sensitive species. The cerulean warbler has also been identified as a Management Indicator Species on several national forests. In these cases, the cerulean warbler functions as a biological indicator of desired forest condition, and results in a higher level of awareness of the species' life history and habitat needs, which are considered during analysis of the impacts of site-specific management activities by the national forest. The NFMA allows for habitat management specifically to benefit cerulean warblers on national forests within the species' historical range. The Surface Mining Control and Reclamation Act (SMCRA; 25 U.S.C. 1201) addresses the necessary approvals for surface mining operations, as well as inspection and enforcement of mine sites until reclamation responsibilities are completed and all performance bonds are released. This law, which regulates the recovery of coal by mountaintop removal mining (commonly referred to as mountaintop mining), is administered by the U.S. Department of the Interior's Office of Surface Mining (OSM). SMCRA permits for mountaintop removal mining may be issued by the OSM or by individual States only if it has been shown that the proposed mining activities will satisfy general performance standards applicable to all surface coal mining operations. In the Appalachian States where mountaintop mining occurs, the SMCRA regulatory program has been delegated by the Federal Government to State agencies, except in Tennessee (Copeland 2005, p. 2). Among the general performance standards, SMCRA addresses disturbances at the mine-site and in associated offsite areas and approximate original contour
(AOC)requirements, as well as the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations (Copeland 2005, p. 2). Before commencing mountaintop removal mining, a coal company must post a bond to pay for the reclamation of the site. To get this bond released, the company must reclaim the site to meet the standards set by the State responsible for implementing SMCRA. Reclamation at mountaintop mine sites has focused on erosion prevention and backfill stability and not on reclamation with trees. The compacted backfill material that is normally used for reclamation hinders tree establishment and growth. Furthermore, reclaimed soils are more conducive for growing grasses, which outcompeted tree seedlings; grasses are often planted as a fast-growing vegetative cover to reduce erosion. As a result, natural succession by trees and woody plants on reclaimed mined land (with intended post-mining land uses other than forest) is slowed (Environmental Protection Agency 2005, p. 4; Handel et al. 2003, p. 12). Section 404 of the Clean Water Act (33 U.S.C. 1251 *et seq.* ) is another principal environmental law involved in the regulation of mountaintop mining. The section 404 permit program, which regulates the discharge of dredge and fill material into waters of the United States, applies to the disposal of excess overburden associated with mountaintop mining. These permits are issued by the U.S. Army Corps of Engineers with oversight by the U.S. Environmental Protection Agency. In the past, the Corps of Engineers has generally permitted the disposal of mountaintop mining fill under Nationwide Permit 21 (NWP 21). This overburden has frequently been deposited in adjacent stream valleys in a process known as valley fill. This nationwide permit authorizes discharges from surface coal mining activities that result in no more than minimal impacts (site-specifically and cumulatively) to the aquatic environment. Cerulean warblers and their habitat are impacted by mountaintop mining both by the clearing of forests to remove the coal and by the associated disposal of mine overburden in adjacent valleys. In addition, the practice of establishing non-forested habitats, especially grasses, on reclaimed mine lands that were previously forested has further prevented the restoration of cerulean warbler habitat at these sites. The conservation of the cerulean warbler could be improved by additional focus by the regulatory programs under SMCRA and section 404 of the CWA on the additional protection and improved reclamation of the species' habitat. The U.S. Department of the Interior (National Park Service and Fish and Wildlife Service) manages lands containing cerulean warblers. The National Park Service Organic Act (39 Stat. 535; 16 U.S.C. 1, 2, 3, and 4), states that the NPS will administer areas under their jurisdiction “* * * by such means and measures as conform to the fundamental purpose of said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historical objects and the wildlife therein and to provide for enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” Several National Parks are known to contain cerulean warbler populations and habitat. The National Wildlife Refuge System Administration Act (NWRSAA; 16 U.S.C. 668d-668e) provides guidelines and directives for administration and management of all areas in the National Wildlife Refuge System. National Wildlife Refuges
(NWR)are managed for species conservation, consistent with the direction of the NWRSAA, as amended, and related Service policies and guidance. The Sikes Act (16 U.S.C. 670a-670o; 74 Stat 1052) authorizes the Secretary of Defense to develop cooperative plans for conservation and rehabilitation programs on military reservations and to establish outdoor recreation facilities. Under the authority of the Sikes Act, military installations prepare Integrated Natural Resources Management Plans (INRMP) that address how fish and wildlife resources will be managed. These plans reflect the mutual agreement of the military facility, the Service, and the appropriate State fish and wildlife agency on the conservation, protection and management of fish and wildlife resources. Executive Order 13186 (entitled Responsibilities of Federal Agencies To Protect Migratory Birds), signed by President Clinton on January 10, 2001, addresses the commitment by all Federal departments and agencies to conserve migratory birds in the United States. Executive Order 13186 directs Federal agencies that implement actions having a measurable negative effect on migratory bird populations to develop and implement a Memorandum of Understanding with the Service that will promote migratory bird conservation. The Executive Order identifies 15 conservation measures that each Federal agency is encouraged to implement. These measures involve a range of actions to be implemented by Federal agencies, including:
(1)Integrating migratory bird conservation into agency plans, programs, and actions, including environmental analyses under NEPA;
(2)adopting principles and practices in the design of agency actions that avoid or minimize adverse impacts on migratory birds;
(3)incorporate comprehensive migratory bird programs, such as Partners-In-Flight, North American Waterfowl Management Plan, and North American Bird Conservation Initiative into agency management plans and guidance;
(4)restore and enhance migratory bird habitat;
(5)develop partnerships with non-Federal entities to further bird conservation; and
(6)promote research and information exchange related to migratory birds, including coordinated inventorying and monitoring on agency lands. The first two Memorandum of Understandings under EO 13186, with the Department of Defense and Department of Energy, were signed on July 12, 2006.
(2)Canadian Federal and Provincial Laws and Regulations All migratory birds (including cerulean warblers), nests, eggs, and their parts in Canada are protected by the Migratory Bird Conservation Action of 1994, as amended. This law is similar to the Migratory Bird Treaty Act in that it prohibits the taking, possession, transportation, and sale of migratory birds and establishes penalties for violations, but it provides no direct protections for migratory bird habitats. This Canadian law implements the 1916 Convention between the United States and Great Britain (for Canada) for the protection of migratory birds. In Canada and the two Provinces where the species occurs (Ontario and Quebec), the cerulean warbler is a Species of Special Concern under schedule 1 of the Species at Risk Act (Canada Gazette, Part III, Chapter 29, Vol. 25, No. 3 2002). Passed in 2002, the Species at Risk Act
(SARA)is similar to the Endangered Species Act. Under SARA, a Species of Special Concern is a “wildlife species that may become a threatened or an endangered species because of a combination of biological characteristics and identified threats” (section 2, Species at Risk Act, 2002). Only those species listed as endangered, threatened, or extirpated are protected by the prohibitions of SARA. The prohibitions and other regulatory provisions of SARA do not apply to Species of Special Concern; however, SARA does require the preparation of management plans for Species of Special Concern, including measures for the conservation of the species and its habitat (SARA, sections 65-72). The objective of implementing these management plans is to prevent Species of Special Concern from becoming a threatened or endangered species.
(3)State Laws All of the 33 States within range of the cerulean warbler have provisions in their Wildlife Codes that protect non-game migratory birds, including the cerulean warbler. These State laws generally prohibit the killing, capture, possession, and sale of migratory birds without proper authorization from the State wildlife agency. Delaware and Rhode Island list the cerulean warbler as a State Endangered Species and the species is listed as a State Threatened Species in Illinois and Wisconsin. The designation as Endangered or Threatened by these States provides additional protection, prohibitions, and conservation emphasis in accordance with their respective State Wildlife Codes. Tennessee has designated the cerulean warbler as a Species in Need of Management, which provides some additional protection and conservation emphasis. Eleven States have placed the cerulean warbler in a category of Species of Special Concern, Species of Special Interest, or Rare. In most of these States, these categories do not provide the cerulean warbler additional protection or prohibitions beyond what is in their general Wildlife Codes. The protections provided the cerulean warbler by the State wildlife laws generally do not include regulatory provisions to protect its habitat. Summary of Factor D We believe those existing laws, regulations, and Executive Orders that involve the management of Federal forest and wildlife resources (MUSY, NFMA, National Wildlife Refuge System Administration Act, National Park Service Organic Act, Sikes Act, and Executive Order 13186) are not inadequate mechanisms to conserve the cerulean warbler and its habitat on these specific Federal lands. These laws provide the flexibility and framework to maintain or adjust habitat management objectives that benefit the cerulean warbler. Although these laws and regulations contain sufficient provisions for the conservation of the cerulean warbler, there are limitations in the ability of agencies to implement them in a manner most beneficial to the species they are intended to benefit or protect (for example, cerulean warblers). For instance, limited agency budgets, conflicting policies, lack of public support, and other factors can deter achieving the full management flexibility and benefits. As discussed above, we believe that certain existing laws pertaining to the management of specific Federal lands in the United States are not inadequate regulatory mechanisms to conserve the cerulean warbler and its habitat. We also believe that some existing regulatory mechanisms are inadequate in protecting the cerulean warbler and its habitat. An example of this is the continued loss, without adequate reclamation, of cerulean warbler breeding habitat from mountain top mining, despite the application of the Surface Mining Control and Reclamation Act and section 404 of the Clean Water Act to these actions. Besides the regulation of mountain top mining under SMCRA and section 404 of the Clean Water Act, we are not aware of any Federal or State regulatory mechanisms that provide for the conservation of cerulean warbler habitat on the extensive private forest lands within the species' breeding range. Furthermore, we are not aware of any laws that protect the cerulean warbler or its habitat in its non-breeding (winter) range in South America. E. Other Natural or Manmade Factors Affecting Its Continued Existence We identified several other potential threats, but available information is insufficient to determine that these factors have contributed to or will likely cause a population level decline in cerulean warblers. These factors are: Mortality From Collisions With Structures The collision of birds with structures during migration has been well documented, especially since this issue began receiving major emphasis in the 1970s (Manville in press, p. 2). Structures that pose a collision hazard to birds include buildings, communication towers (cell, radio, and television), wind power turbines, smoke stacks, and power lines. There is no confirmed, validated number or accurate estimate of the total number of birds killed by these structures, but estimates range from four to five millions of birds up to 40 million (Shire et al. 2000, p. 3; Manville in press, p. 3). Few studies have been carried out to document cerulean warbler mortalities from tall structures. The analysis by Shire et al. (2000, p. 9) of 149 reports of tower-caused mortalities identified 164 cerulean warblers killed at 5 sites. At this time, there have been insufficient studies conducted for the Service to be able to evaluate the threat of tall structures to cerulean warblers. Localized Areas of Calcium Depletion Because of Acid Rain Atmospheric acid deposition (acid rain) has been linked with reduced abundance of some songbird species (Hames et al. 2002, pp. 11238-11239; Hames et al. 2006). Under some conditions, calcium, which is needed for egg production, is leached from basic soils. Researchers have not studied the potential effect of this phenomenon on cerulean warblers. Reduction in Prey Availability Because of Climate Change Evidence from Europe indicates that climate change may advance the phenology of insect populations in temperate regions, and the peak in insect prey abundance may therefore occur before long-distance migratory birds arrive from the tropics, and prior to their need for abundant food for their young (Both et al. 2006, pp. 81-82; and Both and Visser 2001, pp. 296-298). We know of no information that indicates this is currently a problem for cerulean warblers. Small Population Phenomena We found no evidence that genetic isolation (Veit et al. 2005) or other phenomena associated with small populations are affecting cerulean warblers. Extinction Risk Analysis Since our knowledge of the factors that may lead to extinction is incomplete, and because extinction is inherently a probabilistic event (it may or may not happen at any specified time due to random events), extinction risk is best described by a likelihood or probability. The most direct method available to estimate extinction likelihood for cerulean warblers is to calculate forward from the current total abundance using the average annual trend in abundance. The best available estimate for current global population size of cerulean warblers is based on the Partners in Flight estimate of 560,000 birds in 1995 (Rich et al. 2004, Appendix A—pp. 69-77), decreased by 11 years of declines that average 3.2 percent annually, resulting in an estimate of about 390,000 birds in 2006. Although the Partners in Flight estimate was imprecise (plus or minus 50 percent of the estimate) and may also be biased, most likely underestimating abundance (see Population Size Estimate Based on the Partners in Flight Method above), it is the best available data at the time of this finding. Expressed as a more general figure that reflects the substantial uncertainty about actual population size, we conclude that the current population of cerulean warblers may be around a half-million birds, and perhaps much larger. For the extinction risk analysis that follows, however, an estimate of 400,000 birds was used for 2006. If the average 3.2 percent per year decline continues without variance, a population of 400,000 birds will decrease to approximately 200,000 in 20 years, 80,000 in about 50 years, and 15,000 in 100 years. In reality, population trends vary from year to year so future population change could be greater or less than these median or “deterministic” estimates. Thogmartin (2006, pp. 3-4) applied a statistical method called diffusion approximation (described in Dennis et al. 1991, and Holmes 2001, 2004) to the BBS data to estimate the probability of cerulean warbler population change to different levels over time. This method requires estimates for initial population size, average annual trend, and the year-to-year variance in population counts to project a statistical distribution of potential future population sizes over time—given the key assumption that past year-to-year fluctuations represent the plausible range (a statistical distribution) of annual changes that can happen randomly in the future. Given the available 40-years of BBS abundance indices and assuming the current population size is nearly 400,000 birds, Thogmartin (2006, p. 18) projected an 83 percent chance that the population will decrease to 40,000 birds (90 percent decline) in 100 years. The likelihood of extinction, modeled as a 99.999 percent population reduction or a decline to a few hundred birds, was close to zero in 100 years (Thogmartin 2006, p. 18). To date, there have been no published diffusion approximation models or other extinction risk analyses for the cerulean warbler. Therefore, the work conducted by Thogmartin
(2006)is the best scientific information currently available on this topic. Thogmartin (2006, p. 19) subsequently evaluated whether the likelihood of population declines was sensitive to the uncertainty about current population size. He found that the estimated probabilities of declines differed for projections using the upper and lower ends of the interval estimated by Partners in Flight extrapolated to 2006, that is, 200,000 or 600,000 birds rather than the median or “best” estimate of 400,000 birds. Thogmartin (2006, p. 20) also completed calculations for the eastern or Appalachian portion of the species' range separately from the regions farther west to consider possible regional differences. Initial population in the east (Bird Conservation Regions 13 and 27 to 30) was 345,000 birds (86 percent of total abundance), and in the west (Bird Conservation Regions 22 to 25) it was 55,000 birds (14 percent of total abundance) (relative abundance between regions from Partners in Flight figures; Rich et al. 2004, Appendix A—pp. 69-77). Projected likelihood of a 90 percent decline in 100 years in these two regions was about 70 percent and 90 percent, respectively (Thogmartin 2006, p. 20). The projected risk of decline was actually lower for the Appalachian region alone than for the species rangewide due to relatively less year-to-year variance in counts in this higher density area compared with the estimates that include very small sample size counts in the western parts of the range. These calculations are helpful in understanding the consequences of a continuation of the historical trend, but they do not address whether underlying population dynamics will differ as time passes. The 100-year time frame in Thogmartin's
(2006)analysis is simply a convention from theoretical modeling ( *e.g.* , Dennis et al. 1991, and Holmes 2001, 2004) and does not address the reliability of projecting that far forward based only upon historical data. It is clear that the farther into the future we attempt to predict, the less confident we can be that the historical trend will persist. Future population sizes will vary due to a variety of factors, both random events and progressive changes in causal environmental factors that we cannot foresee at this time. Thus we are more confident that the historical trends will continue over the next few decades, than over longer time frames such as 100 years. Determination of Status Under the Endangered Species Act The Act defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range * * *” (16 U.S.C. 1533 § 3(6)). The Act defines a threatened species as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range” (16 U.S.C. 1533 § 3(20)). For each species considered for listing, the Service must review the best available information on the likelihood of extinction over time and determine case-by-case whether the present risk is sufficient to constitute a “danger” of extinction, or whether projected future risk is “likely” to become a danger of extinction under “foreseeable” conditions. The cerulean warbler has been declining by about 3 percent annually, on average, for the last 40 years, including within the Appalachian core breeding area (see Population Size and Trends). The biological factors most likely to have caused this trend include:
(1)Reduction in available nesting sites and suitable breeding territory characteristics because of loss or degradation of nesting habitat;
(2)reduction in foraging success resulting from decreased prey abundance, primarily on the wintering ground in South America;
(3)increased predation throughout the species' annual range and nest parasitism of cerulean warblers in the breeding grounds resulting from habitat fragmentation; and
(4)increased mortality during migration due to coastal forest habitat loss (see The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range). The Service further concludes that those factors are ongoing and thus will likely continue to cause the species to decline, probably at a similar rate, as in the recent past. The best available projection for future trends is to assume that the persistent rate of decline documented by the BBS over the past 40 years will continue within the estimated credible interval, between 2.0 and 4.2 percent per year. Since projections derived from the BBS data indicate effectively no chance for this species to become extinct in the next 100 years unless conditions change beyond what we can anticipate (see Extinction Risk Analysis above), we do not believe this species is likely to become endangered within the foreseeable future. In short, a species with a current population of perhaps half a million birds and quite possibly more, declining chronically by 2 to 4 percent annually, is neither in danger of extinction now or likely to become in danger of extinction in the future that we can reasonably foresee. Thus, the Service concludes that the cerulean warbler does not presently qualify for protection as an endangered species or a threatened species under the Act and the petitioned action is not warranted. Summary The cerulean warbler population is decreasing by approximately three percent per year across its breeding range. A combination of habitat losses and structural changes and fragmentation in remaining forest habitats across the species' annual range are most likely the primary causal factors contributing to this decline. The available information on potential causal factors indicates these threats are, for the most part, both already operating and will continue to operate in the foreseeable future. Hence, we anticipate continued, gradual decline of this species. We also conclude, however, that abundance will remain high enough that the species effectively is in no danger of extinction in the near term, and that, if the historical trend continues, tens of thousands of cerulean warblers will remain in 100 years. The Act defines an endangered species as a species in danger of extinction in all or a significant portion of its range. Given the available information including a population size approaching half a million, perhaps more, cerulean warblers are not currently facing extinction across their range. We do not consider the westernmost parts of the range, where local extirpation could possibly occur in the next few decades, as significant from the perspective of defining the entire species as endangered, because those portions already contain only a small fraction of the total population and their loss would not put the remainder of the range at risk of extinction. Therefore, those westernmost areas are not a significant portion of the species' range. A threatened species, as defined in the Act, is a species likely to become endangered in the foreseeable future in all or a significant portion of its range. We do not believe that it is likely (more likely to happen than not) that cerulean warblers will decline to a point where they are endangered or facing extinction within the foreseeable future. This is our conclusion, even if conditions were on the worst end of the range for trends and abundance rather than the median or 'best' estimates indicated by 40 years of breeding bird surveys. Again, we do not consider those portions of the range with currently marginal populations that may become at risk of extinction in less than 100 years as significant to the entire species' projected extinction risk, and thus they are not a significant portion of the range as used in the definition of threatened. Based on the trends recorded in breeding population counts and the assumption that those declines and their causal factors will continue unabated, the likelihood of species extinction, even as far into the future as 100 years, appears close to zero. Finding We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by the cerulean warbler. We reviewed the petition, available published and unpublished scientific and commercial information, and information submitted to us during the public comment period following our 90-day petition finding. This finding reflects and incorporates information we received during the public comment period and responds to significant issues. We also consulted with recognized experts on the cerulean warbler and its habitat from Federal and State agencies, non-governmental conservation organizations, academia, and the forest industry. On the basis of this review we have determined that the listing of cerulean warbler as threatened or endangered is not warranted under the Endangered Species Act, as amended. If new impacts to the species arise in the future or if the Service finds that the populations are declining significantly faster than they were found to have done in the past or that threats are of greater magnitude than they are currently, the Service can reexamine the listing status of the cerulean warbler. We will continue to monitor the status of the cerulean warbler and its habitat and will continue to accept additional information and comments from all governmental agencies, the scientific community, industry, or any other interested party concerning this finding. Future Conservation Even though we have determined in this 12-month petition finding that the cerulean warbler does not meet the definition of endangered or threatened, we believe it is essential that existing conservation efforts for the cerulean warbler be pursued and new actions implemented to address the steady decline of the species. Besides the ongoing conservation efforts addressed under Factor A of this finding, there are several important emerging efforts and programs, all involving multiple, diverse partners. We did not rely on these future conservation actions in our determination that listing the cerulean warbler is not warranted and, therefore, we did not evaluate them under our 2003 Policy for Evaluation of Conservation Efforts When Making Listing Decisions (68 FR 15100; March 28, 2003). In 2005, the Service's Migratory Bird Program initiated a new strategy to better measure its success in achieving its bird conservation priorities and strategies. The Focal Species Strategy involves campaigns for selected species to provide explicit, strategic, and adaptive sets of conservation actions required to return species to healthy and sustainable levels. The Service's list of Birds of Management Concern is a subset of species protected by the MBTA that pose special management challenges due to a variety of reasons. There are currently 412 species, subspecies, or populations of birds on the Birds of Management Concern list, including the cerulean warbler. Through a comprehensive review of the birds on this list and using a combination of evaluation factors, the Service's Migratory Bird Program identified 139 bird species for the development of Focal Species Strategies. The cerulean warbler is in the first group of birds to have focal species strategies developed in Fiscal Years 2005 and 2006. The cerulean warbler Focal Species Strategy, the first draft of which is scheduled to be completed in September 2006, will utilize management and conservation documents to form an action plan (a species-specific mix of monitoring, research, assessment, habitat and population management, and outreach) necessary to accomplish:
(1)Desired status;
(2)a summary of the responsibilities for actions within and outside the Migratory Bird Program;
(3)a focus of Service resources on implementing those actions; and
(4)communications to solicit support and cooperation for partners inside and outside the Service. The engagement of partners and stakeholders is essential for developing and implementing this focal species strategy for the future conservation of the cerulean warbler. The Service's Migratory Bird Program has involved cerulean warbler experts and other partners in identifying the future desired status and priority conservation measures for the focal species strategy. The Cerulean Warbler Focal Species Strategy will provide an important “blueprint” for use by Federal and State agencies, conservation organizations, researchers, corporations, private landowners, groups like the Cerulean Warbler Technical Group (see below), and other bird conservation programs, such as the Important Bird Areas, in implementing actions for the conservation of the cerulean warbler. BirdLife International's Important Bird Areas Program (administered by the National Audubon Society in the United States) identifies, monitors, and conserves a global network of Important Bird Areas
(IBA)that provide important habitat for birds and focuses conservation efforts at these sites. The IBA Program recognizes that habitat loss and fragmentation are the most serious threats facing populations of birds. By working through partnerships, principally the North American Bird Conservation Initiative, to identify those places that are essential to birds, the National Audubon Society and its many IBA partners hope to minimize the effects of habitat loss on birds. The identification and inventory of IBAs has been a particularly effective way to prioritize conservation efforts. IBAs are key sites for conservation, often able to be conserved in their entirety and often already part of a conservation-area network. There are approximately 112 IBAs in the United States and six in the Canadian Province of Ontario that contain the cerulean warbler. Several of these IBAs contain large cerulean warbler populations and important breeding habitats (for example, Northern Montezuma Wetlands IBA in New York and Southern Cumberland Mountains IBA in Tennessee). Within the cerulean warbler's wintering range, there are 30 IBAs that contain the species (14 in Colombia, 14 in Venezuela, and 2 in Ecuador). The State Wildlife Grants Program (SWG; administered by the Service's Federal Assistance Program), provides Federal funds to every State and territory for the development and implementation of programs that benefit wildlife and their habitat, including species that are not hunted or fished. A primary focus of the SWG Program is to target funds to States to implement conservation actions for rare or declining wildlife species to prevent these species from becoming endangered in the future. To be eligible for these funds, States and territories were required to submit to the Service by October 1, 2005, a State Wildlife Action Plan (also called a Comprehensive Wildlife Conservation Strategy) that, at a minimum, addressed the following seven items:
(1)Information on the distribution and abundance of wildlife species, including low and declining populations, that are indicative of the diversity and health of the State's wildlife;
(2)descriptions of locations and relative condition of key habitats and community types essential to conservation of these species;
(3)descriptions of problems which may adversely affect these species;
(4)descriptions of conservation actions proposed to conserve these species and habitats and priorities for implementing actions;
(5)proposed plans for monitoring these species and their habitats;
(6)descriptions of procedures to review the Plan; and
(7)plans for coordinating the development, implementation, review, and revision of the Plan. In appropriating funds for the SWG Program, Congress directed the States to place appropriate priority on “those species of greatest conservation need”. In defining the species required by number 1 above, most State Wildlife Action Plans contain a list and description of the Species of Greatest Conservation Need (SGCN). All 33 States within the range of cerulean warbler have completed their State Wildlife Action Plans. These plans have been reviewed and approved by the Service. Of these States, 23 have identified the cerulean warbler as a SGCN. In addition, nine States' Plans have identified priority conservation and management objectives and actions for the cerulean warbler. The actions in these nine Plans include monitoring populations, managing forests to provide high-quality nesting habitat, implementing measures to maintain appropriate habitat patch size and reduce forest fragmentation, and collaborating with others to conserve the species' wintering habitat in South America. The integrated bird conservation efforts under the North American Bird Conservation Initiative and Partners-In-Flight will benefit the future conservation of the cerulean warbler. Concept Plans and Bird Conservation Plans have been completed or are being developed in Bird Conservation Regions
(BCR)and Physiographic Areas that contain cerulean warblers. These plans have specific actions pertaining to the cerulean warbler, especially in the Appalachian Mountains Bird Conservation Region. This BCR, encompassing 42 million ha (105 million ac), contains the core breeding population of cerulean warbler and is essential to the future conservation of the species. A future critical need in this BCR is the establishment of a coordinator to integrate and expand conservation actions for the cerulean warbler and other birds in this region. The Partners-In-Flight program is addressing the decline of the cerulean warbler and its habitat in both its breeding and non-breeding range. We believe these and other existing and emerging collaborative efforts provide an excellent opportunity to reverse the steady decline of the cerulean warbler and preclude the future need to list. The Service believes it is important to continue strong support for monitoring efforts for this species, especially long-term monitoring programs like the Breeding Bird Survey that provides valuable trend information. Tracking population changes is vital to the future conservation of the cerulean warbler and other neotropical migratory birds. We will provide strong support and develop partnerships around the Service's Cerulean Warbler Focal Species Strategy, which will become an important blueprint for helping to reverse the warbler's population decline through proactive conservation efforts. We will also continue to support and provide assistance to the Cerulean Warbler Technical Group because it has the opportunity to effect positive change for the species through its scientifically driven collaborative efforts. We will support and provide technical assistance in using the other integrated bird conservation programs (Partners-In-Flight, North American Bird Conservation Initiative, and Important Bird Areas) and the State's Wildlife Action Plans to further promote the future conservation of the cerulean warbler. References A complete list of references used in the preparation of this finding is available upon request from Columbia Ecological Services Field Office (see ADDRESSES ) or can be downloaded from our Web site at *http://www.fws.gov/midwest/eco_serv/soc/.* Author This finding was written by biologists from the Service's Endangered Species and Migratory Bird Programs in Region 3, 4, and 5 and Washington, DC. Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ). Dated: November 28, 2006. Kenneth Stansell, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. E6-20530 Filed 12-5-06; 8:45 am] BILLING CODE 4310-55-P 71 234 Wednesday, December 6, 2006 Notices DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Docket No. PY-07-001] Notice of Request for Extension and Revision of a Currently Approved Information Collection AGENCY: Agricultural Marketing Service, USDA. ACTION: Notice and request for comments. SUMMARY: In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-20), this notice announces the intention of the Agricultural Marketing Service
(AMS)to request an extension for and revision to a currently approved information collection in support of the Regulations for Voluntary Grading of Poultry Products and Rabbit Products. DATES: Comments on this notice must be received by February 5, 2007. ADDITIONAL INFORMATION OR COMMENTS: Interested parties are invited to submit written comments concerning this notice. Comments must be sent to David Bowden, Jr., Chief, USDA, AMS, PY Standardization Branch, STOP 0256, Room 3932-S, 1400 Independence Avenue, SW., Washington, DC 20250-0256, or fax (202-720-5631). Alternately, comments may be submitted electronically to: *AMSPYDockets@usda.gov* or *http://www.regulations.gov.* Comments should make reference to the date and page number of this issue of the **Federal Register** and will be made available for public inspection in the above office during regular business hours. All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record. FOR FURTHER INFORMATION CONTACT: Shields Jones, Standardization Branch, Poultry Programs, Agricultural Marketing Service, U.S. Department of Agriculture, 1400 Independence Avenue, SW., Stop 0259, Washington, DC 20050-0259,
(202)720-3506. SUPPLEMENTARY INFORMATION: *Title:* Regulations for Voluntary Grading of Poultry Products and Rabbit Products—7 CFR Part 70. *OMB Number:* 0581-0127. *Expiration Date of Approval:* August 31, 2007. *Type of Request:* Extension and revision of a currently approved information collection. *Abstract:* The Agricultural Marketing Act of 1946 (60 Stat. 1087-1091, as amended; 7 U.S.C. 1621-1627)
(AMA)directs and authorizes the Department to develop standards of quality, grades, grading programs, and services which facilitate trading of agricultural products and assure consumers of quality products which are graded and identified under USDA programs. To provide programs and services, Section 203(h) of the AMA (7 U.S.C. 1622(h)) directs and authorizes the Secretary of Agriculture to inspect, certify, and identify the grade, class, quality, quantity, and condition of agricultural products under such rules and regulations as the Secretary may prescribe, including assessment and collection of fees for the cost of the service. The regulations in 7 CFR part 70 provide a voluntary program for grading poultry and rabbit products on the basis of U.S. standards and grades. AMS also provides other types of voluntary services under the regulations, e.g., contract and specification acceptance services and certifications of quantity. All of the voluntary grading services are available on a resident basis or a lot-fee basis. Respondents may request resident service on a continuous basis or on an as-needed basis. The service is paid for by the user (user-fee). Because this is a voluntary program, respondents need to request or apply for the specific service they wish, and in doing so, they provide information. Since the AMA requires that the cost of service be assessed and collected, information is collected to establish the Agency's cost. The information collection requirements in this request are essential to carry out the intent of the AMA, to provide the respondents the type of service they request, and to administer the program. The information collected is used only by authorized representatives of the USDA (AMS, Poultry Programs' national staff; regional directors and their staffs; Federal-State supervisors and their staffs; and resident Federal-State graders, which includes State agencies). The information is used to administer and to conduct and carry out the grading services requested by the respondents. The Agency is the primary user of the information. Information is also used by each authorized State agency which has a cooperative agreement with AMS. *Estimate of Burden:* Public reporting burden for this collection of information is estimated to average 0.08 hours per response. *Respondents:* State or local governments, businesses or other for-profits, Federal agencies or employees, small businesses or organizations. *Estimated Number of Respondents:* 359. *Estimated Number of Responses:* 22,464. *Estimated Number of Responses per Respondent:* 62.57. *Estimated Total Annual Burden on Respondents:* 1,753 hours. Send comments regarding, but not limited to, the following:
(a)Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility, and clarity of the information to be collected; or
(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques. Dated: November 30, 2006. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E6-20579 Filed 12-5-06; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF AGRICULTURE Commodity Credit Corporation 2005 Louisiana Sugarcane Hurricane Disaster Assistance Program AGENCY: Commodity Credit Corporation, USDA. ACTION: Notice. SUMMARY: This notice implements section 3011 of the Emergency Agricultural Disaster Assistance Act of 2006 (2006 Act) which authorizes the 2005 Louisiana Sugarcane Hurricane Disaster Assistance Program (2005 Program). The 2005 Program requires the Commodity Credit Corporation
(CCC)to provide compensation totaling $40 million to Louisiana sugarcane producers and processors who suffered economic losses from the cumulative effects of Hurricanes Katrina and Rita in August and September of 2005. CCC will make $29 million in payments for 2005-crop (Fiscal Year 2006) losses to affected sugarcane processors, who shall share these payments with affected producers in a manner reflecting current contracts between the two parties. In addition, CCC will make payments of $10 million to compensate affected sugarcane producers for losses that are suffered only by producers, including losses due to saltwater flooding, wind damage, or increased planting, replanting, or harvesting costs. The funds for “producer-only losses” will be paid to processors, who will then disburse payments to affected producers without regard to contractual arrangements for dividing sugar revenue. CCC is reserving $1 million in the event of appeals and will disburse the residual, if any, to processors, who will then disburse payments to producers in a manner reflecting current contracts between the two parties. This notice provides eligibility criteria and application procedures that will be used to conduct this program. DATES: The dates applicable to the 2005 Sugarcane Hurricane Disaster Assistance Program are as follows:
(1)Eligible producers who did not select a base year under the 2003 Hurricane Assistance Program (2003 Program) have until December 21, 2006 to select a base year (1999, 2000 or 2001) to calculate their 2005-crop sugar loss.
(2)Farm operators have until January 22, 2007, to certify ownership tract sugar losses and producer-only losses on their farms.
(3)Sugarcane processor applications for loss compensation must be submitted no later than February 5, 2007.
(4)Payments will be issued to applicants meeting all eligibility requirements beginning February 20, 2007 or as the Louisiana Farm Service Agency
(FSA)State Executive Director determines.
(5)Producers must be paid by their processors within 15 days of the date the initial payments were made to the applicants. FOR FURTHER INFORMATION CONTACT: Barbara Fecso, Dairy and Sweeteners Group, USDA/FSA/EPAS, 1400 Independence Ave., SW., STOP 0516, Washington, DC 20250-0516; telephone
(202)720-4146; facsimile
(202)690-1480; electronic mail: *barbara.fecso@usda.gov.* SUPPLEMENTARY INFORMATION: Environmental Compliance The potential impacts of this notice on the human environment have been considered in accordance with the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 *et seq.* , regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and FSA's regulations for NEPA compliance, 7 CFR part 799. This notice does not constitute a major Federal action significantly affecting the quality of the human environment because the actions involved solely provide financial assistance with no site-specific or ground disturbing actions occurring as an immediate result of implementing this program. Section 217(b) of Title II of Division N of the Consolidated Appropriations Resolution, 2003 (Public Law 108-7) (2003 Act) requires that this notice be promulgated and the programs administered without regard to 44 U.S.C. 35, the Paperwork Reduction Act. Thus, information to be collected from the public to implement this program and the associated burden, in time and money, the information collection will have on the public do not need Office of Management and Budget approval and are not subject to the 60-day public comment period 5 CFR 1320.8(d)(1) requires. Background This notice implements the 2005 Louisiana Sugarcane Hurricane Disaster Assistance Program which is intended to partially compensate Louisiana sugarcane producers and processors for losses related to the natural disaster declaration resulting from Hurricanes Katrina and Rita in August and September, 2005. Section 3011(b) of the 2006 Act requires CCC to assist Louisiana sugarcane producers and processors by providing payments totaling $40 million from CCC funds. The portion of the 2005 Program for distributing $29 million of the $40 million is similar to the 2003 Program for Louisiana, which compensated Louisiana sugarcane growers and processors for the sugar lost from the crop due to tropical storm and hurricane events in 2002. The producer's base sugar yield per acre for measuring sugar loss is required to be the base yield used in the 2003 program. CCC is required to make the payments for estimated sugar loss to sugarcane processors, who will then share the payment with producers that deliver sugarcane to their mills according to the producer/processor contract, as in the 2003 Program. Louisiana processors normally share the revenue from the sale of sugar and molasses, after deducting marketing costs, with their producers, with about 60 percent of the net revenue distributed to producers. Thus, processors are expected to retain about 40 percent of CCC's payments for sugar loss. However, unlike the 2003 Program, the 2005 Program also compensates for damages strictly borne by producers. The payments for these producer-only losses will not be split with the processor. CCC has determined that it will measure the producer-only losses as
(1)lost plant or stubble cane acreage, requiring replanting, due to saltwater flooding,
(2)damaged cane acreage due to flooding saltwater intrusion, and
(3)additional harvest costs due to wind damaged fields. When hurricane flood waters surged over the Louisiana sugarcane region, approximately 3,500 acres of freshly planted cane and stubble cane were destroyed because they either did not germinate or were uprooted. In addition, saltwater severely damaged the soil on roughly 35,000 acres of the sugarcane cropland, which is expected to result in reduced production on these acres for the 2006 crop. Further, hurricane winds lodged sugarcane on all approximate 422,000 harvested acres, which dramatically slowed harvesting speed and increased fuel costs. Losses for the destruction of plant and stubble sugarcane, saltwater flood-damaged sugarcane, and increased harvesting costs are not compensated under existing programs such as the Emergency Conservation Program, federal crop insurance, or the Hurricane Indemnity Program. CCC has determined that it will allocate the $40 million among the different damage types with a higher proportion of reimbursement for the damages that are deemed to have the greatest impact on operation viability. Because the $10 million in producer-only losses were deemed to have a greater impact on sugarcane operation viability, these will be reimbursed at a higher rate. The total destruction of plant or stubble cane by the saltwater flooding is strictly borne by the producer and will have a reimbursement rate of 65 percent, the general agriculture disaster maximum, or $366 per acre. The per-acre compensation for destroyed sugarcane acres (lost plant and stubble cane) within the storm surge flooded region is derived from the simple average of prorated billet planting costs of $835 per acre for plant cane, $598 per acre for first year stubble and $260 per year for second year stubble. The next most damaging impacts of the storms, also borne only by the producer, were determined to be the damage to standing cane by saltwater flooding and increased harvest expenditures due to wind damage. CCC will reimburse 34 percent of flooded cane damages, or $100 per acre, as estimated by Louisiana State University (LSU). The payment will partially compensate for increased insecticide application (estimated at $100 per acre) and the producer's share of the 2006-crop yield loss due to elevated soil salt content on an estimated 35,000 acres (estimated by LSU at $194.04 per acre). CCC will reimburse harvest costs at $12 per acre, or 47 percent of the estimated average increase in harvesting costs, $25.44 per acre. CCC will only reimburse sugar yield loss for the 2005-crop at 19 percent of estimated total losses, using 1999 sugar yield as the base to calculate this loss percentage. This damage, while significant, was determined less likely to affect the operational viability of Louisiana sugarcane producers. To further target the $29 million in assistance to producers and processors with significant losses, only ownership tracts with losses greater than 20 percent will be eligible. This will result in an expected payment per eligible pound of sugar loss of 21 cents per pound. These reimbursement rates result in a split of $29 million between producers (for the sugar yield losses) and processors (for lost throughput), and $10 million for producer-only losses. $1 million will be held in reserve in the event of program appeals. This is the maximum limit for appeals. Any reserve funds remaining after the appeal process has been satisfied will be paid to processors, who will then share these payments with producers according to their contractual arrangements. Based on the experience with the 2003 Program, CCC expects less than 2 percent of the $29 million, or $580,000, to be spent on sugar-loss appeals, leaving an estimated $420,000 of the reserve for producer-only loss appeals. As in the 2003 Program, this notice requires evidence of an ownership tract 2005-crop sugar percentage loss equal to or greater than 20 percent relative to the chosen base year (1999, 2000, 2001). Compensation will only be paid on the portion of losses exceeding this threshold. Acres of sugarcane and plant cane lost or destroyed, including cane abandoned, prior to August 29, 2005 are not covered. This percent loss, coupled with estimated economic losses from increased billet planting costs, increased hauling costs, mill cane used for seedcane and increased milling costs results in an implicit required loss of 35 percent, the traditional agricultural loss required for Federal assistance. 2005 Louisiana Sugarcane Hurricane Disaster Assistance Program (2005 Program) I. Applicability This notice sets forth terms and conditions under which CCC will make payments to eligible Louisiana sugarcane processors and producers for 2005-crop (Fiscal Year 2006) hurricane-related sugarcane losses. II. Definitions *Commercially Recoverable Sugar
(CRS)Final Settlement Payment Pounds.* Equals the product of the actual weight and actual polarity of sugar made divided by 96. *Farm.* The acreage identified under one FSA Farm Serial Number. *Farm Operator.* An individual, entity or joint operation which is determined by the FSA County Committee to be in general control of the farming operation on all ownership tracts of a farm during the program year. *FSA.* The Farm Service Agency. *Ownership Tract.* A subset of the acreage of a farm associated with a separate ownership interest. *Producer.* An owner, operator, landlord, or tenant who receives a payment or shares in the payment a sugarcane processor makes for delivery of sugarcane. *Split Shippers.* Farm operators who deliver their harvested cane to more than one sugarcane processor during a given crop year. *Sugarcane Processor.* A person or entity that produces raw cane sugar by commercially processing sugarcane and has an allocation under the sugar marketing allotment program. The sugarcane processor is the 2005 Program applicant. III. Applicant Eligibility Requirements Applicants must meet all the following requirements to be eligible for payments under the 2005 Program:
(1)Be a sugarcane processor located in Louisiana.
(2)Be eligible to obtain a loan under section 156(a) of the Federal Agriculture Improvement and Reform Act of 1996 (7 U.S.C. 7272(a)).
(3)Submit the application according to the requirements and deadlines of this notice. IV. Aggregate Amount of Assistance Total compensation shall equal $40 million. V. 2005-Crop Sugar Loss
(1)Loss will be measured for each ownership tract by the following formula: Loss = [(sugar per acre (base year); not to exceed 12,000 lbs.) minus sugar per acre (2005 crop)] × ownership tract acres in 2005.
(2)The base year for figuring losses will be the year elected by the farm operator under the 2003 Hurricane Assistance Program (2003 Program).
(A)Exceptions:
(i)If the farm operator did not select a base year for the 2003 Program, he must select either 1999, 2000 or 2001.
(ii)If a new entity was formed and 50 percent or more of the members were individuals or members of the previous operation, the new farm operator will use the previously selected base year. If more than 1 member of the new entity had a base year yield, these yields will be weighted for computation of the new base year yield.
(iii)If a person assumes the operation of an ownership tract from a family member, the new farm operator will use the base year previously selected by his family member. A family member is defined as “an individual to whom another member in the farming operation is related as lineal ancestor, lineal descendant, or sibling, including spouses of those family members who do not make a significant contribution to the farming operation themselves. The term ‘family member’ shall include: Great grandparent; grandparent; parent; child, including legally adopted children; grandchild; great grandchild; sibling of the family members in the farming operation; spouse of family members, if the family member does not make a significant contribution of active personal labor or active personal management to the farming operation as an individual”.
(B)Producers have until December 21, 2006 to select a base year.
(C)Ownership tract acreage must have been FSA-certified for the production of sugar or seed in 2005 to be eligible for disaster reimbursement.
(D)The same base year will be used for all ownership tracts with the same farm operator. If some ownership tracts (cannot be ALL ownership tracts) had no production in the base year, the State yield will be used.
(E)Ownership tracts with production in the base year and no FSA-certified acres will require the farm operator to:
(i)Pick a different base year; or
(ii)Make this ownership tract ineligible for disaster benefits.
(F)Ownership tracts with FSA-certified acreage and no production in the base year will require the farm operator to:
(i)Pick a different base year; or
(ii)Make this ownership tract ineligible for disaster benefits.
(3)Sugar per acre for each ownership tract is calculated as:
(A)The CRS Final Settlement Payment Pounds from sugarcane processor records for the applicable year divided by
(B)The ownership tract's total cane acres identified in the FSA Certified Acreage Report for the same year.
(4)The 1999 average state yield will be applied to any eligible ownership tract that produced sugarcane in the 2005 crop year but did not have production history in 1999, 2000 or 2001, other than the exceptions in paragraphs V(A)(2)(ii) and
(iii)above.
(5)In the case of split-shippers, total FSA-certified acres will be prorated to each mill based on pounds of sugar each mill produced. For mills that did not identify sugar produced by ownership tract at time of delivery, the total production will be prorated to each ownership tract based on total FSA-certified acres.
(6)Farm operators have until January 22, 2007 to certify ownership tract sugar losses on their farms.
(7)Applicants must submit a CCC-prescribed form certifying the sugarcane processor's crop loss and producer-only loss calculations to CCC, no later than February 5, 2007.
(A)No late-filed applications will be accepted.
(B)All eligible farm operators must certify the loss calculations included in the application. VI. Eligible 2005-Crop Ownership Tract Sugar Losses
(1)Ownership tract sugar losses are eligible if the ownership tract's 2005-crop sugar percentage loss is equal to or greater than 20 percent.
(2)The 2005-crop sugar percentage loss for an ownership tract is defined as: [1−(sugar per acre (2005-crop)/sugar per acre (base year))] × 100. The eligible ownership tract sugar losses are defined as losses equal to 20 percent or greater. VII. Producer Only Loss eligibility
(1)*Plant or stubble loss acreage:* Eligible acres will be those acres suffering complete destruction of 2006-crop stubble or 2006-crop plant cane caused by the result of saltwater flooding due to tidal surge included in the acreage delineated on maps provided by LSU. Acres of sugarcane and plant cane lost or destroyed, including cane abandoned, prior to August 29, 2005 are not eligible for payment under this portion of the program. Acreage destroyed and/or reported as failed (planted but not harvested) to FSA after July 15, 2006, (FSA's final acreage reporting date) will not be eligible for payment under this portion of the program.
(2)*Saltwater intrusion acreage:* Eligible acres will be those acres damaged as a result of saltwater intrusion due to tidal surge as included in the acreage delineated on maps provided by LSU, excluding any acreage qualifying for payment under VII(1).
(3)*Wind damage and additional harvest cost acreage:* Eligible 2005-crop acres will be those acres harvested for sugarcane as reported to FSA in 2005. VIII. Payment Calculations
(1)2005-crop sugar loss: An applicant's payment will equal the total eligible ownership tract sugar losses for its producers divided by the sum of the total eligible tract sugar losses for all sugarcane processors in Louisiana multiplied by the $29 million allocated for crop losses. If the computed total of all 2005-crop eligible ownership tract sugar losses across all eligible sugarcane processors is less than $29 million, a factor will be applied to make this total exactly $29 million.
(2)Producer-only losses.
(a)Plant or stubble loss acreage: $366 per acre.
(b)Saltwater intrusion acreage: $100 per acre.
(c)Wind damage and additional harvest cost: $12 per acre, except
(i)If payments
(a)plus
(b)plus
(c)above exceed $10 million in aggregate, the harvest cost payment will be reduced by the overage, and
(ii)If payments under
(a)and
(b)plus
(c)are less than $10 million in aggregate, the harvest cost payment will be increased by the underage. IX. Reserve A reserve of $1 million will be held pending the resolution of appeals provided in section XV, below. The residual, if any, after appeal payments will be distributed to sugarcane processors, to be shared with producers as in X(1) below. X. Payments to Affected Producers
(1)*Crop loss:* Applicants must share their sugar loss payments with affected producers according to the percentage shares for dividing net revenue as stated in their 2005 farm processor/producer contracts that govern the delivery of sugarcane.
(2)Payments must be made to producers within 15 days of the date initial payments were made to applicants.
(3)Producers receiving mill payments are responsible for sharing payments with landowners according to their lease arrangements. XI. Contract Liability All sugarcane processors and associated farm operators receiving a share of the total hurricane assistance payment are jointly and severally liable for program violations and resulting repayments, if applicable. XII. Misrepresentation, Scheme, or Device A person shall be ineligible to receive assistance under this notice and be subject to such other remedies as law may allow if the FSA State or county committee, or any other FSA official with authority to do so, determines that such person has:
(1)Adopted a scheme or other device that tends to defeat the purpose of the program operated under this notice,
(2)Made any fraudulent representation regarding this program, or
(3)Misrepresented any fact affecting a program determination. XIII. Creditor Liens and Claims; and CCC Offsets and Withholdings
(1)Any benefit or portion thereof due any person under this program shall be allowed without regard to questions of title under State law and without regard to any claim or lien in favor of any person, except agencies of the U.S. Government.
(2)CCC may offset or withhold any amount due CCC in accordance with the provisions of the regulations at 7 CFR part 1403 or successor regulations as designated by the Department. XIV. Administration When circumstances beyond the applicant's control preclude compliance, the county committee may request the Louisiana FSA State Executive Director to grant relief. In such cases, except for statutory requirements, the Louisiana FSA State Executive Director may, in order to more equitably accomplish this notice's goals, waive or modify deadlines if the failure to meet such deadlines does not adversely affect program operation. All program payments will be subject to review. XV. Appeals Regulations at 7 CFR part 11 apply to this notice. CCC is not involved in resolving disputes between processors and producers. Signed at Washington, DC on October 31, 2006. Teresa C. Lasseter, Executive Vice-President, Commodity Credit Corporation. [FR Doc. E6-20696 Filed 12-5-06; 8:45 am] BILLING CODE 3410-05-P DEPARTMENT OF AGRICULTURE Forest Service Medicine Bow-Routt National Forests and Thunder Basin National Grassland; Hahns Peak/Bears Ears Ranger District; Recreation Fees AGENCY: Forest Service, USDA. ACTION: Notice of intent to implement recreation fees. SUMMARY: In accordance with the Federal Lands Recreation Enhancement Act (FLREA), recreation fees may be charged for standard amenity sites, expanded amenity sites or special recreation permits. The Medicine Bow-Routt National Forest proposes to charge new fees at two sites: Summit Creek Guard Station and Buffalo Pass Winter Recreation Area. DATES: Comments concerning the scope of the analysis must be received by May 31, 2007. Implementation is expected to begin in December of 2007. ADDRESSES: You may submit comments by any of the following methods: • Web Site: *http://www.fs.fed.us/r2/mbr/projects* under Recreation Management. Follow the instructions for submitting comments on the Web site. • E-mail: *r2_mbr_vis@FSNOTES* . Include “Recreation Fees” in the subject line of the message. • Fax:
(970)870-2284 or
(303)745-2398. • Mail or Hand Delivery: Ray George, Recreation Staff, Medicine Bow-Routt National Forests, 2468 Jackson St., Laramie, WY 82070. FOR FURTHER INFORMATION CONTACT: Ray George
(307)745-2300, Medicine Bow-Routt National Forests, 2468 Jackson St., Laramie, WY 82070. SUPPLEMENTARY INFORMATION: Proposed Recreation Fees • Summit Creek Guard Station—The Summit Creek Guard Station was built in 1912 to house forest rangers and their families. It includes a house and garage with electricity, indoor plumbing and propane heat and sleeps up to eight people. The compound is listed on the National Register of Historic Places. The guard station would be available to rent from approximately mid-May to late October and a nightly rental fee of $100 will be charged. • Buffalo Pass Winter Recreation Area—In order to facilitate recreation management in an intensively used winter backcountry recreation area, all users would be required to purchase a backcountry permit to enter and recreate in the 4,980 acre Buffalo Pass Backcountry Recreation Area. The intensity and variety of uses has led to many user conflicts, safety issues, and avalanche danger. The backcountry permit will alleviate some of these conflicts by educating all users on backcountry etiquette, avalanche dangers, and sharing groomed trails. A fee is necessary to administer the permit system and provide backcountry patrols to ensure users are obtaining necessary permits. The fee will be $5. Lead and Cooperating Agencies The Medicine Bow-Routt National Forests is the lead agency. Responsible Official The responsible official is Mary Peterson, Forest Supervisor, Medicine Bow-Routt National Forests, 2468 Jackson St., Laramie, WY 82070. Electronic Access and Filing All future documents and information on recreation fees will be posted at *http://www.fs.fed.us/r2/mbr/projects* under “Recreation Management.” You may submit comments and data by sending electronic mail (E-mail) to *r2_mbr_vis@FSNOTES* and including “Recreation Fees” in the subject line of the message. Dated: November 20, 2006. Mary H. Peterson, *Forest Supervisor* , Medicine Bow-Routt National Forests, USDA Forest Service. [FR Doc. 06-9534 Filed 12-5-06; 8:45 am]
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U.S. Code
40 references not yet in our index
  • 18 CFR 40
  • 28 CFR 570
  • 28 CFR 551
  • 28 CFR 524
  • 28 CFR 542
  • 40 CFR 52
  • 40 CFR 63
  • Pub. L. 104-4
  • 40 CFR 70
  • 40 CFR 180
  • 40 CFR 2
  • 40 CFR 180.190(a)
  • Pub. L. 104-113
  • EO 3175
  • 47 CFR 0.91
  • 47 CFR 1.415
  • Pub. L. 104-13
  • Pub. L. 107-198
  • 47 CFR 2
  • 47 CFR 87
  • 47 CFR 87.187
  • 50 CFR 17
  • 50 CFR 424.14(b)
  • 50 CFR 424
  • 16 USC 703-712
  • 16 USC 528-531
  • 16 USC 1600-1614
  • 16 USC 668d-668e
  • 16 USC 670a-670o
  • 74 Stat. 1052
  • 44 USC 3501-20
  • 7 CFR 70
  • 60 Stat. 1087
  • 7 USC 1621-1627
  • 7 CFR 799
  • Pub. L. 108-7
  • 44 USC 35
  • 5 CFR 1320.8(d)(1)
  • 7 CFR 1403
  • 7 CFR 11
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U.S.C.§ 509
C.F.R.§ 0.96
U.S.C.§ 751
U.S.C.§ 4082
Cite18 CFR 40
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