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Code · REGISTER · 2007-06-06 · Federal Energy Regulatory Commission, DOE · Proposed Rules

Proposed Rules. Notice of Proposed Rulemaking; extension of comment period

39,782 words·~181 min read·/register/2007/06/06/07-2812

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

BILLING CODE 4910-13-C DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 260 and 284 [Docket Nos. RM07-10-000 and AD06-11-000] Transparency Provisions of Section 23 of the Natural Gas Act; Transparency Provisions of the Energy Policy Act; Notice of Extension of Time May 30, 2007. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Notice of Proposed Rulemaking; extension of comment period. SUMMARY: On April 19, 2007, the Commission issued a Notice of Proposed Rulemaking
(NOPR)revising its regulations in order to facilitate price transparency in markets for the sale or transportation of physical natural gas in interstate commerce. The dates for filing initial and reply comments on the NOPR are being extended at the request of the Texas Pipeline Association. DATES: Comments are due on or before July 11, 2007. Reply comments are due on or before August 9, 2007. ADDRESSES: You may submit comments identified by Docket No. RM07-10-000, 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 the Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426. Please refer to the Comment Procedures Section of the preamble for additional information on how to file paper comments. FOR FURTHER INFORMATION CONTACT: Stephen J. Harvey (Technical), 888 First Street, NE., Washington, DC 20426,
(202)502-6372, *Stephen.Harvey@ferc.gov.* Eric Ciccoretti (Legal), 888 First Street, NE., Washington, DC 20426,
(202)502-8493, *Eric.Ciccoretti@ferc.gov.* SUPPLEMENTARY INFORMATION: On May 25, 2007, the Texas Gas Pipeline Association
(TPA)filed a motion for an extension of time to file initial and reply comments in response to the Notice of Proposed Rulemaking
(NOPR)issued April 19, 2007, in the above-referenced proceeding. 72 FR 20791 (Apr. 26, 2007), FERC. Stats. and Regs. ¶ 32,614 (2007). The motion states that TPA and its members require additional time in order to fully consider the implications of the NOPR, to prepare meaningful comments and to develop material for the record to respond to the numerous requests for specific information in the NOPR. Upon consideration, notice is hereby given that an extension of time for filing initial comments on the NOPR is granted to and including July 11, 2007. Reply comments should be filed on or before August 9, 2007. Kimberly D. Bose, Secretary. [FR Doc. E7-10803 Filed 6-5-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF JUSTICE 28 CFR Part 26 [Docket No. OJP (DOJ)-1464; AG Order No. 2881-2007] RIN 1121-AA74 Office of the Attorney General; Certification Process for State Capital Counsel Systems AGENCY: Office of the Attorney General, Department of Justice. ACTION: Notice of proposed rulemaking. SUMMARY: The USA PATRIOT Improvement and Reauthorization Act of 2005 instructs the Attorney General to promulgate regulations to implement certification procedures for States seeking to qualify for the expedited Federal habeas corpus review procedures in capital cases under chapter 154 of Title 28, United States Code. The procedural benefits of chapter 154 are available to States that establish a mechanism for providing counsel to indigent capital defendants in State postconviction proceedings that satisfies certain statutory requirements. This proposed rule would carry out the Act's requirement of issuing regulations for the certification procedure. DATES: *Comment date:* Comments must be submitted on or before August 6, 2007. ADDRESSES: Please address all comments regarding these proposed regulations, by U.S. mail, to: Kim Ball Norris, Senior Policy Advisor for Adjudication, Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice, 810 7th Street, NW., Washington, DC 20531; by telefacsimile (fax), to:
(202)307-0036 or by e-mail, to: *OJP_Fed_Reg_Comments@usdoj.gov* . To ensure proper handling, please reference OJP Docket No. 1464 on your correspondence. You may view an electronic version of this proposed rule at *www.regulations.gov,* and you may also comment by using the *www.regulations.gov* comment form for this regulation. When submitting comments electronically you must include OJP Docket No. 1464 in the subject box. SUPPLEMENTARY INFORMATION: Public Law 109-177, the USA PATRIOT Improvement and Reauthorization Act of 2005, (“the Act”) was signed into law on March 9, 2006. Section 507 of that Act amends chapter 154 of Title 28 of the United States Code. Chapter 154 offers procedural benefits in Federal habeas corpus review to States that go beyond the constitutional requirement of appointing counsel for indigents at trial and on appeal by providing counsel also to capital defendants in State postconviction proceedings. The chapter 154 procedures include special provisions relating to stays of execution (28 U.S.C. 2262), the time for filing Federal habeas corpus applications (28 U.S.C. 2263), the scope of Federal habeas corpus review (28 U.S.C. 2264), and time limits for Federal district courts and courts of appeals to determine habeas corpus applications and related appeals (28 U.S.C. 2266). See 152 Cong. Rec. S1620, S1624-28 (daily ed., Mar. 2, 2006) (remarks of Sen. Kyl) (explanation of procedural benefits to States under chapter 154); 141 Cong. Rec. S4590, S4590-92 (daily ed., Mar. 24, 1995) (remarks of Sen. Specter) (explaining the historical problem of capital habeas delay motivating the enactment of habeas reforms). Although chapter 154 has been in place since the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-132), the determination that a State was eligible for the procedural benefits of chapter 154 had been left to the Federal court of appeals for the circuit in which the State is located. The Act amended sections 2261(b) and 2265 of title 28 to assign responsibility for chapter 154 certification to the Attorney General of the United States, subject to review by the Court of Appeals for the District of Columbia Circuit. Section 2265(a) as amended makes clear that the only requirements that the Attorney General may impose for a State to receive certification are those expressly stated in chapter 154. See 28 U.S.C. 2265(a)(3) ( “[t]here are no requirements for certification or for application of this chapter other than those expressly stated in this chapter”). It also provides that the date on which a State established the mechanism that qualifies it for certification is the effective date of the certification. See 28 U.S.C. 2265(a)(2). In addition to the changes affecting certification, the Act amends section 2261(d) to permit the same counsel that has represented a prisoner on direct appeal to represent the prisoner in postconviction proceedings without limitation, and it amends section 2266(b)(1)(A) to extend the time for a district court to rule on a chapter 154 petition from 180 days to 450 days. Section 2265(b) directs the Attorney General to promulgate regulations to implement the certification procedure. The Department consulted with a number of groups in developing this proposed rule to carry out the statutory directive, including representatives of State officials and both prosecution and defense interests concerned with capital case litigation. The consultations covered a broad range of issues affecting the implementation of the certification procedure, including the State officials who should be responsible for requesting certification, the requirements for certification, and the procedure for requesting certification. The proposed rule would add a new subpart entitled “Certification Process for State Capital Counsel Systems” to 28 CFR part 26. Section by Section Analysis Section 26.20 Section 26.20 explains the rule's purpose to implement the certification procedure for chapter 154. Section 26.21 Section 26.21 provides definitions for certain terms used in chapter 154 and the regulations. Under 28 U.S.C. 2265(a), a certification request must be made by “an appropriate State official.” Pursuant to paragraph
(a)of this section of the proposed rule, in most cases, that official will be the State Attorney General. In those few States, however, where the State Attorney General does not have responsibilities relating to Federal habeas corpus litigation, the Chief Executive of the State will be considered the appropriate State official to make a submission on behalf of the State. Paragraph
(b)defines “State postconviction proceedings” as referring to State collateral proceedings, which normally occur following the completion of direct review. However, in relation to States with unitary review systems for capital cases involving concurrent direct and collateral review, the term also encompasses the collateral review aspect of the unitary review process. Formerly separate provisions for the application of chapter 154 in States with unitary review systems under the original version of 28 U.S.C. 2265 were eliminated by the recent amendments in favor of the current provisions, which are worded broadly enough to permit chapter 154 certification both for States with bifurcated direct and collateral review systems and for States with unitary review systems. Compare current 28 U.S.C. 2261(b) and 2265 with former 28 U.S.C. 2261(b) and 2265. The definition of “State postconviction proceedings” in the proposed rule reflects the underlying objective of chapter 154 to provide expedited Federal habeas corpus review in capital cases arising in States that have gone beyond the constitutional requirement of appointing counsel for indigents at trial and on appeal by extending the appointment of counsel to indigent capital defendants in State collateral proceedings. The provisions of chapter 154, as well as the relevant legislative history, reflect the understanding of “postconviction proceedings” as not encompassing all proceedings that occur after conviction ( *e.g.* , sentencing proceedings, direct review), but rather as referring to collateral proceedings. *See* 28 U.S.C. 2261(e) (stipulating that ineffectiveness or incompetence of counsel during postconviction proceedings in a capital case cannot be a ground for relief in a Federal habeas corpus proceeding); 28 U.S.C. 2263(a), (b)(2) (180-day time limit for Federal habeas filing under chapter 154 starts to run “after final State court affirmance of the conviction and sentence on direct review or the expiration of the time for seeking such review” subject to tolling “from the date on which the first petition for post-conviction review or other collateral relief is filed until the final State court disposition of such petition”); 152 Cong. Rec. S1620, S1624-25 (Mar. 2, 2006) (remarks of Sen. Kyl) (explaining that chapter 154 provides incentives for States to provide counsel in State postconviction proceedings, equated to collateral proceedings); 151 Cong. Rec. E2639-40 (daily ed., Dec. 14, 2005) (extension of remarks of Rep. Flake) (same understanding); see also, e.g., *Murray* v. *Giarratano,* 492 U.S. 1
(1989)(equating postconviction and collateral proceedings). Section 26.22 Section 26.22 sets out the requirements for certification that a State must meet to qualify for the application of chapter 154. These are the requirements expressly set forth in 28 U.S.C. 2261(c)-(d) and 2265(a)(1). With respect to each of the requirements, examples are provided in the text of mechanisms that would be deemed sufficient or, in some cases, insufficient to comply with the chapter. The examples given of qualifying mechanisms are illustrative and therefore do not preclude States with other mechanisms for providing counsel in postconviction proceedings from meeting the requirements for certification. Section 26.23 Section 26.23 sets out the mechanics of the certification process for States seeking to opt in to chapter 154. Regulatory Certifications Executive Order 12866—Regulatory Planning and Review This action has been drafted and reviewed in accordance with Executive Order 12866, Regulatory Planning and Review, section 1(b), Principles of Regulation. The Department of Justice has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and, accordingly, this rule has been reviewed by the Office of Management and Budget. Executive Order 13132—Federalism 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. It provides only a framework for those States that wish to qualify for the benefits of the expedited habeas procedures of chapter 154 of title 28 of the U.S. Code. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Executive Order 12988—Civil Justice Reform This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. Regulatory Flexibility Act The Attorney General in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. This rule provides only a framework for those States that wish to qualify for the benefits of the expedited habeas procedures of chapter 154 of title 28 of the United States Code. Unfunded Mandates Reform Act of 1955 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. List of Subjects in 28 CFR Part 26 Law enforcement officers, Prisoners. Accordingly, for the reasons set forth in the preamble, part 26 of chapter I of title 28 of the Code of Federal Regulations is proposed to be amended as follows: PART 26—DEATH SENTENCES PROCEDURES 1. The heading for part 26 is revised as set forth above. 2. The authority citation for part 26 is revised to read as follows: Authority: 5 U.S.C. 301; 18 U.S.C. 4001(b), 4002; 28 U.S.C. 509, 510, 2261, 2265. 3. Sections 26.1 through 26.5 are designated as Subpart A and a new subpart heading is added to read as follows: Subpart A—Implementation of Death Sentences in Federal Cases 4. Part 26 is amended by adding at the end thereof the following new Subpart B to read as follows: Subpart B—Certification Process for State Capital Counsel Systems Sec. 26.20 Purpose. 26.21 Definitions. 26.22 Requirements. 26.23 Certification process § 26.20 Purpose. Sections 2261(b)(1) and 2265(a) of title 28 of the United States Code require the Attorney General to certify whether a State has a mechanism for providing legal representation to indigent prisoners in State postconviction proceedings in capital cases that satisfies the requirements of chapter 154 of title 28. If certification is granted, sections 2262, 2263, 2264, and 2266 of chapter 154 of the U.S. Code apply in relation to Federal habeas corpus review of capital cases from the State. Subsection
(b)of 28 U.S.C. 2265 directs the Attorney General to promulgate regulations to implement the certification procedure under subsection
(a)of that section. § 26.21 Definitions. For purposes of this part, the term— *Appropriate State official* means the State Attorney General, except that, in a State in which the State Attorney General does not have responsibility for Federal habeas corpus litigation, it means the Chief Executive thereof. *State postconviction proceedings* means collateral proceedings following direct State review or expiration of the time for seeking direct State review, except that, in a State with a unitary review system under which direct review and collateral review take place concurrently, the term includes the collateral review aspect of the unitary review process. § 26.22 Requirements. A State meets the requirements for certification under 28 U.S.C. 2261 and 2265 if the Attorney General determines each of the following to be satisfied:
(a)The State has established a mechanism for the appointment of counsel for indigent prisoners under sentence of death in State postconviction proceedings. As provided in 28 U.S.C. 2261(c) and (d), the mechanism must offer to all such prisoners postconviction counsel, who may not be counsel who previously represented the prisoner at trial unless the prisoner and counsel expressly request continued representation, and the mechanism must provide for the entry of an order by a court of record—
(1)Appointing one or more attorneys as counsel to represent the prisoner upon a finding that the prisoner is indigent and accepted the offer or is unable competently to decide whether to accept or reject the offer;
(2)Finding, after a hearing if necessary, that the prisoner rejected the offer of counsel and made the decision with an understanding of its legal consequences; or
(3)Denying the appointment of counsel, upon a finding that the prisoner is not indigent. *Example 1.* A State provides that attorneys in a public defender's office are to be appointed to represent indigent capital defendants in State postconviction proceedings in capital cases. The counsel appointment mechanism otherwise satisfies the requirements of 28 U.S.C. 2261(c) and (d). Such a mechanism would satisfy the chapter 154 requirement relating to appointment of counsel. *Example 2.* A State provides that in any capital case in which a defendant is found to be indigent, the court shall appoint counsel for State postconviction proceedings from a list of attorneys available to represent defendants in a manner consistent with 28 U.S.C. 2261(c) and (d). Such a mechanism would satisfy the chapter 154 requirement relating to appointment of counsel. *Example 3.* State law provides that local jurisdictions are to determine whether counsel is appointed for indigents in State postconviction proceedings in capital cases and not all jurisdictions provide for the appointment of such counsel. This mechanism would not satisfy the chapter 154 requirement relating to appointment of counsel.
(b)The State has established a mechanism for compensation of appointed counsel in State postconviction proceedings. *Example 1.* A State sets hourly rates and allowances for compensation of capital counsel, with judicial discretion to authorize additional compensation if necessary in particular cases. For example, State law may provide that capital counsel in State postconviction proceedings will be paid an hourly rate not to exceed $100 for up to 200 hours of work, and that these caps can be judicially waived if compensation would otherwise be unreasonable. Such a system would meet this requirement, as the State has established a mechanism to compensate counsel in State postconviction proceedings. *Example 2.* A State provides that attorneys in a public defender's office are to be appointed to serve as counsel for indigent defendants in capital postconviction proceedings. The attorney's compensation is his or her regular salary provided by the public defender's office. Such a system would meet the requirement of establishing a mechanism to compensate counsel in State postconviction proceedings. *Example 3.* A State appoints attorneys who serve on a volunteer basis as counsel for indigent defendants in all capital postconviction proceedings. There is no provision for compensation of appointed counsel by the State. Such a system would not meet the requirement regarding compensation of counsel.
(c)The State has established a mechanism for the payment of reasonable litigation expenses. *Example 1.* A State may simply authorize the court to approve payment of reasonable litigation expenses. For example, State law may provide that the court shall order reimbursement of counsel for expenses if the expenses are reasonably necessary and reasonably incurred. Such a system would meet the requirement of establishing a mechanism for payment of reasonable litigation expenses. *Example 2.* A State authorizes reimbursement of counsel for litigation expenses up to a set cap, but with allowance for judicial authorization to reimburse expenses above that level if necessary. This system would parallel the approach in postconviction proceedings in Federal capital cases and in Federal habeas corpus review of State capital cases under 18 U.S.C. 3599(a)(2), (f), (g)(2), which sets a presumptive cap of $7,500 but provides a procedure for judicial authorization of greater amounts. Such a system would meet the requirement of establishing a mechanism for payment of reasonable litigation expenses as required for certification under chapter 154. *Example 3.* State law authorizes reimbursement of counsel for litigation expenses in capital postconviction proceedings up to $1000. There is no authorization for payment of litigation expenses above that set cap, even if the expenses are determined by the court to be reasonably necessary and reasonably incurred. This mechanism would not satisfy the chapter 154 requirement regarding payment of reasonable litigation expenses.
(d)The State provides competency standards for the appointment of counsel representing indigent prisoners in capital cases in State postconviction proceedings. *Example 1.* A State requires that postconviction counsel must have been a member of the State bar for at least five years and have at least three years of felony litigation experience. This standard is similar to that set by Federal law for appointed counsel for indigent defendants in postconviction proceedings in Federal capital cases, and in Federal habeas corpus review of State capital cases, under 18 U.S.C. 3599(a)(2), (c). Because this State has adopted standards of competency, it meets this requirement. *Example 2.* A State appoints counsel for indigent capital defendants in postconviction proceedings from a public defender's office. The appointed defender must be an attorney admitted to practice law in the State and must possess demonstrated experience in the litigation of capital cases. This State would meet the requirement of having established standards of competency for postconviction capital counsel. *Example 3.* A State law requires some combination of training and litigation experience. For example, State law might provide that in order to represent an indigent defendant in State postconviction proceedings in a capital case an attorney must—(1) Have attended at least twelve hours of training or educational programs on postconviction criminal litigation and the defense of capital cases;
(2)have substantial felony trial experience; and
(3)have participated as counsel or co-counsel in at least five appeals or postconviction review proceedings relating to violent felony convictions. This State would meet the requirement of having established standards of competency for postconviction capital counsel. *Example 4.* State law allows any attorney licensed by the State bar to practice law to represent indigent capital defendants in postconviction proceedings. No effort is made to set further standards or guidelines for such representation. Such a mechanism would not meet the requirement of having established standards of competency for postconviction capital counsel. § 26.23 Certification process.
(a)An appropriate State official may request that the Attorney General determine whether the State meets the requirements for certification under § 26.22.
(b)The request shall include:
(1)An attestation by the submitting State official that he or she is the “appropriate State official” as defined in § 26.21; and
(2)An affirmation by the State that it has provided notice of its request for certification to the chief justice of the State's highest court.
(c)Upon receipt of a State's request for certification, the Attorney General will publish a notice in the **Federal Register** —
(1)Indicating that the State has requested certification;
(2)Listing any statutes, regulations, rules, policies, and other authorities identified by the State in support of the request; and
(3)Soliciting public comment on the request.
(d)The State's request will be reviewed by the Attorney General, who may, at any time, request supplementary information from the State or advise the State of any deficiencies that would need to be remedied in order to obtain certification. The review will include consideration of timely public comments received in response to the **Federal Register** notice under paragraph
(c)of this section, and the certification will be published in the **Federal Register** , if certification is granted.
(e)Upon certification by the Attorney General that a State meets the requirements of § 26.22, such certification is final and will not be reopened. Subsequent changes in a State's mechanism for providing legal representation to indigent prisoners in State postconviction proceedings in capital cases do not affect the validity of a prior certification or the applicability of chapter 154 in any case in which a mechanism certified by the Attorney General existed during State postconviction proceedings in the case. If a State with a certified mechanism amends governing State law to change its mechanism in a manner that may affect satisfaction of the requirements of § 26.22, the certification of the State's mechanism prior to the change does not apply to the changed mechanism, but the State may request a new certification by the Attorney General that the changed mechanism satisfies the requirements of § 26.22. Dated: May 29, 2007. Alberto R. Gonzales, Attorney General. [FR Doc. E7-10892 Filed 6-5-07; 8:45 am] BILLING CODE 4410-18-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006- 0175; FRL-8129-2] Pesticides; Food Packaging treated with a Pesticide; Reopening of Comment Period AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed Rulemaking; reopening of the public comment period. SUMMARY: EPA is reopening the public comment period for a proposed rule concerning pesticide-treated food packaging published in the **Federal Register** of April 6, 2007. Written comments were required to be submitted by April 21, 2007. EPA is reopening the comment period because the Agency received, considered and accepted a petition to extend the public comment period. This document reopens the comment period for an additional 30 days. DATES: Comments must be received on or before July 6, 2007. ADDRESSES: Follow the detailed instructions provided under ADDRESSES in the proposed rule published in the **Federal Register** of April 6, 2007. FOR FURTHER INFORMATION CONTACT: Mari L. Duggard, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-0028; fax number:
(703)308-7026; e-mail address: *duggard.mari@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? The Agency identified in the proposed rule those who may be potentially affected by that action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How and to Whom Do I Submit Comments? To submit comments, or access the public docket, follow the detailed instructions provided in Unit I.B. of the SUPPLEMENTARY INFORMATION of the April 6, 2007 proposed rule. II. What Action is EPA Taking? This document reopens the comment period established in a proposed rule published in the **Federal Register** of April 6, 2007 (72 FR 17068) (FRL-8119-8). In that document, pursuant to FFDCA section 201(q)(3), EPA proposed to amend the current exception at 40 CFR §180.4 such that inert ingredients of food packaging (paper and paperboard, coatings, adhesives and polymers) are excepted from the definition of “pesticide chemical” or “pesticide chemical residue”, when the food packaging has been treated with a pesticide. EPA is reopening the comment period for 30 days. The new comment period ends on July 6, 2007. III. What is the Agency's Authority for Taking this Action? Section 201(q)(3) of FFDCA, as amended by the Food Quality Protection Act (FQPA), allows the Administrator, under specified conditions, to except by regulation certain substances from the definition of “pesticide chemical” or “pesticide chemical residue” if-
(A)Its occurrence as a residue on or in a raw agricultural commodity or processed food is attributable primarily to natural causes or human activities not involving the use of any substance for a pesticidal purpose in the production, storage, processing, or transportation of any raw agricultural commodity or processed food; and
(B)The Administrator, after consultation with the Secretary, determines that the substance more appropriately should be regulated under one or more provisions of this Act other than sections 402(a)(2)(B) and 408. List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and record-keeping requirements. Dated: May 21, 2007. Janet L. Andersen, Director, Biopesticides and Pollution Prevention Division, Office of Pesticide Programs [FR Doc. E7-10693 Filed 6-5-07; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2007-0097; FRL-8122-7] Captan, 2,4-D, Dodine, DCPA, Endothall, Fomesafen, Propyzamide, Ethofumesate, Permethrin, Dimethipin, and Fenarimol; Proposed Tolerance Actions AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to revoke certain tolerances for captan, 2,4-D, dodine, endothall, propyzamide, permethrin, ethofumesate and dimethipin. Also, EPA is proposing to modify certain tolerances for captan, 2,4-D, dodine, DCPA, endothall, propyzamide, permethrin, ethofumesate, and fomesafen. In addition, EPA is proposing to establish new tolerances for captan, 2,4-D, dodine, propyzamide, permethrin, and ethofumesate. The regulatory actions proposed in this document are in follow-up to the Agency's reregistration program under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the tolerance reassessment requirements of the Federal Food, Drug, and Cosmetic Act (FFDCA) section 408(q). DATES: Comments must be received on or before August 6, 2007. ADDRESSES: Submit your comments, identified by docket identification
(ID)number EPA-HQ-OPP-2007-0097, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is
(703)305-5805. *Instructions* : Direct your comments to docket ID number EPA-HQ-OPP-2007-0097. 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 available in regulations.gov. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov web site to view the docket index or access available documents. 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 Bldg.), 2777 S. Crystal Dr., 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 Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Jane Smith, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-0048; e-mail address: *smith.jane-scott@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 in Unit II.A. 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 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. C. What Can I do if I Wish the Agency to Maintain a Tolerance that the Agency Proposes to Revoke? This proposed rule provides a comment period of 60 days for any person to state an interest in retaining a tolerance proposed for revocation. If EPA receives a comment within the 60-day period to that effect, EPA will not proceed to revoke the tolerance immediately. However, EPA will take steps to ensure the submission of any needed supporting data and will issue an order in the **Federal Register** under FFDCA section 408(f) if needed. The order would specify data needed and the time frames for its submission, and would require that within 90 days some person or persons notify EPA that they will submit the data. If the data are not submitted as required in the order, EPA will take appropriate action under FFDCA. EPA issues a final rule after considering comments that are submitted in response to this proposed rule. In addition to submitting comments in response to this proposal, you may also submit an objection at the time of the final rule. If you fail to file an objection to the final rule within the time period specified, you will have waived the right to raise any issues resolved in the final rule. After the specified time, issues resolved in the final rule cannot be raised again in any subsequent proceedings. II. Background A. What Action is the Agency Taking? EPA is proposing to revoke, remove, modify, and establish specific tolerances for residues of the fungicides captan, dodine, and fenarimol; the herbicides 2,4-D, DCPA, endothall, propyzamide, ethofumesate, dimethipin and fomesafen; and the insecticide permethrin in or on the commodities listed in the regulatory text. EPA is proposing these tolerance actions to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standard of the Food Quality Protection Act (FQPA). The safety finding determination of “reasonable certainty of no harm” is discussed in detail in each Reregistration Eligibility Decision
(RED)and Report of the Food Quality Protection Act
(FQPA)Tolerance Reassessment Progress and Risk Management Decision
(TRED)for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed copies of many REDs and TREDs may be obtained from EPA's National Service Center for Environmental Publications (EPA/NSCEP), P.O. Box 42419, Cincinnati, OH 45242-2419; telephone 1
(800)490-9198; fax 1
(513)489-8695; internet at *http://www.epa.gov/ncepihom/* and from the National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161; telephone 1
(800)553-6847 or
(703)605-6000; internet at *http://www.ntis.gov/* . Electronic copies of REDs and TREDs are available on the internet at *http://www.epa.gov/pesticides/reregistration/status.htm* . The selection of an individual tolerance level is based on crop field residue studies designed to produce the maximum residues under the existing or proposed product label. Generally, the level selected for a tolerance is a value slightly above the maximum residue found in such studies. The evaluation of whether a tolerance is safe is a separate inquiry. EPA recommends the raising of a tolerance when data show that:
(1)Lawful use (sometimes through a label change) may result in a higher residue level on the commodity; and,
(2)the tolerance remains safe, not withstanding increased residue level allowed under the tolerance. In REDs, Chapter IV on “Risk Management, Reregistration, and Tolerance Reassessment” typically describes the regulatory position, FQPA assessment, cumulative safety determination, determination of safety for the U.S. general population, and safety for infants and children. In particular, the human health risk assessment document which supports the RED describes risk exposure estimates and whether the Agency has concerns. In TREDs, the Agency discusses its evaluation of the dietary risk associated with the active ingredient and whether it can determine that there is a reasonable certainty (with appropriate mitigation) that no harm to any population subgroup will result from aggregate exposure. EPA also seeks to harmonize tolerances with international standards set by the Codex Alimentarius Commission, as described in Unit III. Explanations for proposed modifications in tolerances can be found in the RED and TRED document and in more detail in the Residue Chemistry Chapter document which supports the RED and TRED. Copies of the Residue Chemistry Chapter documents are found in the Administrative Record and electronic copies are available through EPA's electronic public docket and comment system, regulations.gov at *http://www.regulations.gov/* . You may search for docket number EPA-HQ-OPP-007-0097 and also EPA-HQ-OPP-2005-0266 (dodine); EPA-HQ-OPP-2004-0370 (endothall); EPA-HQ-OPP-2004-0380 (dimethipin); EPA-HQ-OPP-2002-0159 (propyzamide); EPA-HQ-OPP-2004-0346 (ethofumesate); EPA-HQ-OPP-2004-0385 (permethrin); EPA-HQ-OPP-2004-0167 (2,4-D); EPA-HQ-OPP-2004-0296 (Captan) and EPA-HQ-OPP-2002-0250 and EPA-HQ-OPP-2005-0459 (fenarimol), then click on that docket number to view its contents. EPA has determined that the aggregate exposures and risks are not of concern for the above mentioned pesticide active ingredients based upon the data identified in the RED or TRED which lists the submitted studies that the Agency found acceptable. EPA has found that the tolerances that are proposed in this document to be modified, are safe in accordance with FFDCA section 408(b)(2)(A), and that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residues, in accordance with section 408(b)(2)(C). These findings are discussed in detail in each RED. The references are available for inspection as described in this document under SUPPLEMENTARY INFORMATION . In addition, EPA is proposing to revoke certain specific tolerances because either they are no longer needed or are associated with food uses that are no longer registered under FIFRA. The registrations for these pesticide chemicals were canceled because the registrant failed to pay the required maintenance fee and/or the registrant voluntarily requested cancellation of one or more registered uses of the pesticide. It is EPA's general practice to propose revocation of those tolerances for residues of pesticide active ingredients on crop uses for which there are no active registrations under FIFRA, unless any person in comments on the proposal indicates a need for the tolerance to cover residues in or on imported commodities or domestic commodities legally treated. 1. *Captan.* Tolerances are currently established for both plant and animal commodities in 40 CFR 180.103(a) for residues of the fungicide, captan (N-trichloromethylthio-4-cyclohexene-1,2-dicarboximide) for preharvest and postharvest uses or combinations of such uses in or on plant and animal commodities. This use-pattern timing related language, preharvest and postharvest, is impractical and should be removed because enforcement officials would rarely be able to determine the timing of the application. Also, the Agency has determined that the residues of concern are captan *per se* in plants and that the metabolite 1,2,3,6-tetrahydrophthalimide
(THPI)of captan is of toxicological concern and should be regulated in/on animal commodities along with captan. Therefore, EPA proposes transferring the tolerance expressions in 40 CFR 180.103(a) to (a)(1) for residues of the fungicide, captan (N-trichloromethylthio-4-cyclohexene-1,2-dicarboximide) in or on plant commodities retaining those plant-related tolerances and to transfer livestock tolerances into (a)(2) for the combined residues of the fungicide, captan (N-trichloromethylthio-4-cyclohexene-1,2-dicarboximide) and its metabolite 1,2,3,6-tetrahydrophthalimide (THPI), measured as THPI, in or on animal commodities. Currently, tolerances in 40 CFR 180.103(b) are for residues of captan on an interim basis for almonds, almond hulls, beans dry, beans succulent, and potatoes. The Agency has determined that these tolerances are no longer interim and should be moved to 40 CFR 180.103(a)(1). Also, to conform to current Agency practice, 40 CFR 180.103(b) should now be designated for section 18 emergency exemptions - reserved; add paragraph
(c)for regional registrations - reserved; and add paragraph
(d)for indirect or inadvertent residues - reserved. Therefore, EPA proposes that the interim tolerances listed in 40 CFR 180.103(b) be transferred to 40 CFR 180.103(a)(1); paragraph
(b)be revised to
(b)section 18 emergency exemptions - reserved; add paragraph
(c)regional registrations - reserved; and add paragraph
(d)indirect or inadvertent residues - reserved. Based on available field trial data that indicate residues of captan as high as 0.18 parts per million
(ppm)in/on almonds, 54.91 ppm in/on almond hulls, 7 ppm in/on apricot, 18.3 ppm in/on blueberries, 36 ppm in/on cherries, 22.4 ppm in/on grapes, 10 ppm in/on nectarines, 14 ppm in/on peach, 8 ppm in/on plum, 2 ppm in/on prune, 12 ppm in/on plum/prune juice, and 13 ppm in/on strawberries, the Agency determined that the tolerance should be decreased to 0.25 ppm in/on almonds, 75 ppm in/on almond hulls, 10 ppm in/on apricots, 20 ppm in/on blueberries, 50 ppm in/on cherries, 25 ppm in/on grapes, 25 ppm in/on nectarines, 15 ppm in/on peaches, 10 ppm in/on plums and 20 ppm in/on strawberry. The tolerance for strawberries was also decreased to harmonize with the Codex alimentarius. Therefore, EPA proposes decreasing tolerances in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in or on almond from 2 to 0.25 ppm; almond, hulls from 100 to 75 ppm; apricot from 50 to 10 ppm; blueberry from 25 to 20 ppm; cherry at 100 to cherry, sweet at 50 ppm and cherry, tart at 50 ppm; grape from 50 to 25 ppm; nectarine from 50 to 25 ppm; peach from 50 to 15 ppm; plum, prune, fresh from 100 to 10 ppm; and strawberry from 25 to 20 ppm. Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on dry and succulent beans, peas and soybeans; therefore, the Agency determined that the tolerances should be 0.05 ppm on vegetable, legume, group 6 and vegetable, foliage of legume, group 7, replacing the individual tolerances. Therefore, EPA proposes decreasing and modifying the individual tolerances to a crop group tolerance in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in/on beans, dry, seed at 25 ppm; bean, succulent at 25 ppm; pea, dry, seed at 2 ppm; pea, succulent at 2 ppm; soybean, dry at 2 ppm; soybean, succulent at 2 ppm to vegetable, legume, group 6 at 0.05 ppm and vegetable, foliage of legume, group 7 at 0.05 ppm. Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on garden beets, carrots, rutabagas, potatoes, and turnips; therefore, the Agency determined that the tolerances should be 0.05 ppm on vegetable, root and tuber, group 1 and vegetable, leaves of root and tuber, group 2, replacing the individual tolerances. Therefore, EPA proposes decreasing and modifying the individual tolerances to a crop group tolerances in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in/on beet, garden, roots at 2 ppm; beet, garden, tops at 100 ppm; carrot, roots at 2 ppm; potato at 25 ppm; rutabagas (roots) at 2 ppm; turnip, greens at 2.0 ppm; turnip, roots at 2.0 ppm to vegetable, root and tuber, group 1 at 0.05 ppm and vegetable, leaves of root and tuber, group 2 at 0.05 ppm. Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on broccoli, Brussels sprouts, cabbage, cauliflower, collards, kale, and mustard greens; therefore, the Agency determined that the tolerance should be 0.05 ppm on vegetable, brassica leafy, group 5 replacing the individual tolerances. Therefore, EPA proposes decreasing and modifying the individual tolerances to a crop group tolerance in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in/on broccoli, Brussels sprouts, cabbage, cauliflower, collards, kale, mustard greens each at 2 ppm to vegetable, brassica leafy, group 5 at 0.05 ppm. Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on cantaloupe, cucumber, honeydew melon, muskmelon, pumpkins, summer squash, winter squash, and watermelons; therefore, the Agency determined that the tolerance should be 0.05 ppm on vegetable, cucurbit group 9 replacing the individual tolerances. Therefore, EPA proposes decreasing and modifying the individual tolerances to a crop group tolerance in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in/on cantaloupe; cucumber; melon, honeydew; muskmelon; pumpkin; squash, summer; squash, winter; and watermelon each at 25 ppm to vegetable, cucurbit, group 9 at 0.05 ppm. Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on celery, lettuce, and spinach; therefore, the Agency determined that the tolerance should be 0.05 ppm on vegetable, leafy, except brassica, group 4 replacing the individual tolerances. Therefore, EPA proposes decreasing and modifying the individual tolerances to a crop group tolerance in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in/on celery at 50 ppm, lettuce at 100 ppm, and spinach at 100 ppm to vegetable, leafy, except brassica, group 4 at 0.05 ppm. Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on eggplant, peppers, and tomato; therefore, the Agency determined that the tolerance should be 0.05 ppm on vegetable, fruiting, group 8 replacing the individual tolerances. Therefore, EPA proposes decreasing and modifying the individual tolerances to a crop group tolerance in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in/on eggplant; pepper; and tomato each at 25 ppm to vegetable, fruiting, group 8 at 0.05 ppm. Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on bulb onion and green onion; therefore, the Agency determined that the tolerance should be 0.05 ppm on vegetable, bulb, group 3 replacing the individual tolerances. Therefore, EPA proposes decreasing and modifying the individual tolerances to a crop group tolerance in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in/on onion, bulb at 25 ppm and onion, green at 50 ppm to vegetable, bulb, group 3 at 0.05 ppm. Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on corn; therefore, the Agency determined that the tolerance should be 0.05 ppm on grain, cereal, group 15 and grain, cereal, forage, fodder and straw, group 16 replacing the tolerance corn, sweet, kernel plus cob with husks removed. Therefore, EPA proposes decreasing and modifying a tolerance to crop group tolerances in newly revised 40 CFR 180.103(a)(1) for captan residues of concern in plants in/on corn, sweet, kernel plus cob with husks removed at 2 ppm to grain, cereal, group 15 and grain, cereal, forage, fodder and straw, group 16 at 0.05 ppm. The Agency has determined that tolerances for blackberry, dewberry and raspberry each at 25 ppm should be replaced by the crop group tolerance caneberry, subgroup 13A at 25 ppm. Therefore, EPA proposes modifying the individual tolerances to a crop group tolerance in newly proposed 40 CFR 180.103(a) for captan residues of concern in plants in/on blackberry, dewberry, and raspberry each at 25 ppm to caneberry, subgroup 13A at 25 ppm. Based on available data reflecting seed treatment use, residues of captan were <0.05 ppm (the level of detection) in or on cottonseed; dill seed; flax seed; grass forage; grass, hay; non-grass animal feeds group 18; okra; peanuts; peanut hay; rapeseed; rapeseed forage; safflower seed; sesame seed; and sunflower seed; therefore, the Agency determined that the tolerances should each be 0.05 ppm. Tolerances for flax straw and sunflower forage are no longer necessary because these commodities are not considered significant feed items in accordance with “Table 1.—Raw Agricultural and Processed Commodities and Feedstuffs Derived from Crops'' which is found in Residue Chemistry Test Guidelines OPPTS 860.1000 dated August 1996, available at *http://www.epa.gov/opptsfrs/publications/OPPTS Harmonized/860 Residue Chemistry Test Guidelines/Series* . Therefore, EPA is proposing to establish tolerances in 40 CFR 180.103(a)(1) for captan residues of concern in or on dill, seed at 0.05 ppm; flax, seed at 0.05 ppm; grass, forage at 0.05 ppm; grass, hay at 0.05 ppm; animal feed, nongrass, group 18 at 0.05 ppm; okra at 0.05 ppm; peanut at 0.05 ppm; peanut, hay at 0.05 ppm; rapeseed, seed at 0.05 ppm; rapeseed, forage at 0.05 ppm; safflower, seed at 0.05 ppm; sesame, seed at 0.05 ppm; and sunflower, seed at 0.05 ppm and decrease cotton, undelinted seed from 2 to 0.05 ppm. Based on the livestock dietary burden from wet apple pomace and animal feed commodities from seed treatments, the maximum theoretical dietary burden of captan residues of concern for dairy cattle is 17.27 ppm and beef cattle is 27.72 ppm. Using the results of the 30 ppm feeding level from the animal feeding study, the expected residue levels are 0.11 ppm in fat; 0.25 ppm in kidney (meat byproducts); 0.18 ppm in muscle; and 0.06 ppm in milk. Based on these data, the Agency has determined that the tolerances in cattle, goat, horse, hog and sheep should be: 0.20 ppm in meat; 0.30 ppm in meat byproducts; 0.15 ppm in fat; and 0.10 ppm in milk (where sheep meat, fat and meat byproducts tolerances reflect the text in the tolerance reassessment of the RED versus the table C which is not accurate). Therefore, EPA proposes increasing the tolerances in newly revised 40 CFR 180.103(a)(2) for the combined residues of the fungicide, captan (N-trichloromethylthio-4-cyclohexene-1,2-dicarboximide) and its metabolite 1,2,3,6- tetrahydrophthalimide
(THPI)in or on cattle, fat from 0.05 to 0.15 ppm; cattle, meat from 0.05 to 0.20 ppm; cattle, meat byproducts from 0.05 to 0.30 ppm; hog, fat from 0.05 to 0.15 ppm; hog, meat from 0.05 to 0.20 ppm; hog, meat byproducts from 0.05 to 0.30 ppm and proposes establishing tolerances in newly revised 40 CFR 180.103(a)(2) in/on goat, fat at 0.15 ppm; goat, meat at 0.20 ppm; goat, meat byproducts at 0.30 ppm; horse, fat at 0.15 ppm; horse, meat at 0.20 ppm; horse, meat byproducts at 0.30 ppm; milk at 0.10 ppm; sheep, fat at 0.15 ppm; sheep, meat at 0.20 ppm; and sheep, meat byproducts at 0.30 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. The last registered use of captan on mangoes was canceled in 1998; therefore, the tolerance is no longer needed. Therefore, EPA is proposing to revoke the existing tolerance for mango at 50 ppm in newly revised 40 CFR 180.103(a)(1). The proposed tolerance actions herein for captan, to implement the recommendations of the captan RED, reflect use patterns in the U.S. which support a different tolerance than the Codex level on almonds, cucumbers, nectarines, raspberries, and tomatoes, because of differences in good agricultural practices. However, compatibility exists for apples and pears will exist between the proposed reassessed U.S. tolerances and Codex MRLs for captan residues in or on blueberries, peaches, potatoes, and strawberries. 2. *2,4-D* . Currently, tolerances for residues of 2,4-D in or on plant raw agricultural commodities fish and potable water are currently expressed in terms of 2,4-D (2,4-dichlorophenoxyacetic acid) in 40 CFR 180.142(a)(1-2, 4-7 and 9-13). The residues are regulated depending on the use pattern, the form of the 2,4-D formulation applied (e.g., acid, salts), timing of treatment (preharvest or postharvest) and some commodities are covered by two or more tolerances (e.g., citrus). This use-pattern related language is impractical and should be removed for three reasons: i. 2,4-D in the acid form as well as the sodium salt, four amine salts, and three esters upon contact with water and/or hydrolytic enzymes are converted to a single common moiety, 2,4-D (anion or acid depending on the pH) which is the pesticidally active component serving as the basis for the tolerance regulation. Consequently, the available tolerance enforcement methodology cannot distinguish between which form of the pesticidally active component was applied. ii. If 2,4-D residues were detected in a commodity, enforcement officials would rarely be able to determine who applied the pesticide, when, or for what purpose. iii. If the 2,4-D concentration were to fall between two tolerance levels for the same commodity, the Agency would not know whether the sample was violative. Therefore, EPA is proposing to subsume the lower tolerances in the higher existing tolerances, delete use-pattern related language (e.g., timing and formulation), and revise the tolerances in 40 CFR 180.142(a)(1-2, 4-7 and 9-13) into 40 CFR 180.142(a) for residues of the herbicide, plant regulator, and fungicide 2,4-D (2,4-dichlorophenoxyacetic acid), both free and conjugated, determined as the acid and delete the paragraphs designations (1-2, 4-7, and 9-13). The available field trial data indicate residues of 2,4-D are as high as 1.39 ppm in or on wheat grain. The wheat grain data are translated to support tolerances for barley, millet, oats and rye grain. Based on these data, the Agency determined that the tolerance should be increased to 2.0 ppm on wheat, barley, millet, oats and rye grain. Based on available field trial data that indicate residues of 2,4-D as high as 24.9 ppm and 40.9 ppm in or on wheat forage and wheat straw, respectively, which is also translated to millet, oats and rye forage and millet straw, the Agency determined that the tolerances should be increased to 25 ppm in/on wheat, millet, oats, and rye forage and 50 ppm in/on millet straw. Based on available field trial data that indicate residues of 2,4-D as high as 49.8 ppm in/on corn stover; 0.053 ppm in/on hops; 0.31 ppm in/on potatoes; <0.01 ppm in/on strawberry; and 0.485 ppm in/on rice, the Agency determined that the tolerances should be increased to 50 ppm in/on corn, stover; 0.2 ppm in/on hop; 0.4 in/on potato; 0.01 ppm in/on strawberry; and 0.5 ppm in/on rice, grain. EPA is also revising commodity terminology to conform to current Agency practice. Therefore, EPA is proposing to increase and revise tolerances in newly revised 40 CFR 180.142(a) for the combined 2,4-D residues of concern in or on barley, grain from 0.5 to 2.0 ppm; millet, grain from 0.5 to 2.0 ppm; oat, grain from 0.5 to 2.0 ppm; rye, grain from 0.5 to 2.0 ppm; wheat, grain from 0.5 to 2.0 ppm; millet, straw from 20 to 25 ppm; millet, forage from 20 to 25 ppm; oat, forage from 20 to 25 ppm; rye, forage 20 to 25 ppm; wheat, forage from 20 to 25 ppm; rice grain from 0.1 to 0.5 ppm; corn, stover from 20 to 50 ppm; hop from 0.05 to 0.2 ppm; potato from 0.2 to 0.4 ppm; and strawberry from 0.05 to 0.1 ppm and revise corn, stover to corn, field, stover; corn, pop, stover; and corn, sweet, stover; and revise hop to hop, dried cones. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on available field trial data on field corn, pop corn, and sweet corn that indicate residues of 2,4-D as high as 5.2 ppm in/on corn forage, <0.05 ppm in/on corn fresh, sweet, kernel plus cob with husks removed, and 0.038 ppm in/on corn grain, the Agency determined that the tolerances should be decreased to 6.0 ppm, 0.05 ppm, and 0.05 ppm, respectively. Based on available field trial data that indicate residues of 2,4-D as high as 0.07 ppm in/on fish, 0.079 ppm in/on grapefruits, 0.24 ppm in/on oranges, and 2.5 ppm in/on lemons, the Agency determined that the tolerances should be decreased to 0.10 ppm in/on fish and to 3.0 ppm in/on fruit, citrus, group 10. Based on available field trial data that indicate residues of 2,4-D as high as <0.01 ppm in/on apples and pears, the Agency determined that the tolerance should be decreased to 0.1 ppm in/on fruit, pome, group 11 replacing the individual tolerances for apple, pear, and quince. Based on available field trial data that indicate residues of 2,4-D as high as <0.05 ppm in/on cherries, <0.01 ppm in/on peaches, and <0.01 ppm in/on plums, the Agency determined that the tolerance should be decreased to 0.1 ppm in/on fruit, stone group 12 replacing the individual tolerance for apricots. Based on available field trial data that indicate residues of 2,4-D as high as <0.05 ppm in/on pistachio; <0.1 in/on grapes; 358 ppm in/on grass, pasture and rangeland; 8.83 ppm in/on rice, straw; 0.162 ppm in/on sorghum, forage; 0.012 ppm in/on sorghum, grain; 0.17 ppm in/on sorghum, grain, stover; 0.015 ppm in/on sugarcane; and 0.105 ppm in/on sugarcane, molasses, the Agency determined that the tolerances should be decreased to 0.05 ppm in/on pistachio; 0.1 ppm in/on grape; 300 ppm in/on grass, hay; 360 ppm in/on grass, pasture and grass, rangeland; 10 ppm in/on rice, straw; 0.2 ppm in/on sorghum, forage; 0.2 ppm in/on sorghum, grain; 0.2 ppm in/on sorghum, grain, stover; 0.05 ppm in/on sugarcane; and 0.2 ppm in/on sugarcane, molasses. EPA is also revising commodity terminology to conform to current Agency practice. Therefore, EPA is proposing to decrease and revise tolerances in newly revised 40 CFR 180.142(a) for the combined 2,4-D residues of concern in or on corn, forage from 20 to corn, field, forage; and corn, sweet, forage at 6.0; corn, fresh, sweet, kernel plus cob with husks removed at 0.5 to corn, sweet, kernel plus cob with husks removed at 0.05 ppm; corn, grain at 0.5 to corn, field, grain at 0.05 ppm and corn, pop, grain at 0.05 ppm; fish, 1.0 to 0.10 ppm; fruit, citrus at 5 ppm to fruit, citrus, group 10 at 3.0 ppm; fruit, pome at 0.1 and apple, pear, and quince at 5 ppm to fruit, pome, group 11 at 0.1 ppm; apricot at 5 ppm and fruit, stone at 0.2 ppm to fruit, stone, group 12 at 0.1 ppm; pistachio at 0.05 ppm; grape from 0.5 to 0.1 ppm; grass, pasture and grass, rangeland from 1,000 ppm to grass, forage at 360 ppm; rice, straw from 20 to 10 ppm; sorghum, forage from 20 to sorghum, grain, forage at 0.2 ppm; sorghum, grain from 0.5 to sorghum, grain, grain at 0.2 ppm; sorghum, grain, stover from 20 to 0.2 ppm; sugarcane, cane from 2 ppm to 0.05 ppm; and sugarcane, molasses from 5 to 0.2 ppm. Based on available field trial data that indicate residues of 2,4-D as high as 0.106 ppm in cranberry, <0.05 ppm in low bush (berries), and 0.011 ppm in high bush (berries), the Agency has determined the tolerance should be revised to 0.2 ppm in/on berry, group 14 in place of the individual tolerances. These tolerances are also being maintained to cover inadvertent or indirect residues that may occur. Therefore, EPA proposes revising the tolerances in newly revised 40 CFR 180.142(a) for the combined 2,4-D residues of concern in or on blueberry at 0.1 ppm, cranberry at 0.5 ppm, raspberry at 0.1 ppm and small fruit at 0.1(N) to berry, group 14 at 0.2 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on available field trial data that indicate residues of 2,4-D as high as 0.098 ppm in/on almond hulls; 1.48 ppm in on corn aspirated grain fractions
(AGF)and 36.3 ppm in/on wheat AGF; 40.9 ppm in/on wheat straw, 3.88 ppm in/on wheat bran, and 1.40 ppm in/on rice, hulls; <0.01 ppm in/on soybean forage; 1.13 ppm in/on soybean hay; and <0.01 ppm in/on soybean seeds, the Agency determined that tolerances should be established in/on almond, hulls at 0.1 ppm; grain, aspirated fractions 40 ppm; wheat, straw at 50 ppm (and translating the wheat straw data to barley, oat, and rye); barley, straw at 50 ppm; oat, straw at 50 ppm; rye, straw at 50 ppm; wheat, bran at 4.0 ppm (and translating the wheat bran data to barley and rye) barley, bran at 4.0 ppm; rye, bran at 4.0 ppm; rice, hulls at 2.0 ppm; soybean, forage at 0.02 ppm; soybean, hay at 2.0 ppm; and soybean, seed at 0.02 ppm. Therefore, EPA is proposing to establish the tolerances in newly revised 40 CFR 180.142(a) for the combined 2,4-D residues of concern in or on almond, hulls at 0.1 ppm; barley, bran at 4.0 ppm; barley, straw at 50 ppm; grain, aspirated fractions at 40 ppm; oat, straw at 50 ppm; rice, hulls at 2.0 ppm; rye, bran at 4.0 ppm; rye, straw at 50 ppm; soybean, hay at 2.0 ppm; soybean, forage at 0.02 ppm; soybean, seed at 0.02 ppm; wheat, bran at 4.0 ppm; and wheat, straw at 50 ppm. In addition, tolerances for residues in food products of animal origin are currently expressed in terms of 2,4-D and/or its metabolite 2,4-dichlorophenol (2,4-DCP) in 40 CFR 180.142(a)(8). The Agency has determined that the metabolite, 2,4-DCP, is not of concern for either the tolerance expression or for risk assessment at the minute levels expected in livestock tissues and considering the likely lower toxicity of 2,4-DCP compared to 2,4-D. Consequently, the regulated residues of 2,4-D are now the same for plants, shellfish, fish, and foods of animal origin. Therefore, EPA is proposing to change the residues of concern, transfer the foods of animal origin tolerances in 40 CFR 180.142(a)(8) into 40 CFR 180.142(a) for the combined 2,4-D residues of concern and delete paragraph (a)(8). Ruminant feeding data at an exaggerated level (1.7x) show that 2,4-D residues are as high as 0.51 ppm in fat, 0.24 ppm in meat, 0.2 ppm in liver, 6.48 ppm in kidney, and 0.07 ppm in milk. These studies also showed that 2,4-D is rapidly excreted from animals. Based on the rapid excretion and residue levels on the last day of dosing in feeding studies, the Agency has determined that the 2,4-D tolerance in milk may be decreased to 0.05 ppm and to 0.3 ppm in the fat of cattle, goats, horses, and sheep. The tolerances should be increased to 4.0 ppm in the kidneys of cattle, goats, horses, and sheep and to 0.3 ppm in the meat and meat byproducts of cattle, goats, horses, and sheep. Therefore, EPA is proposing to increase tolerances in newly revised 40 CFR 180.142(a) for the combined 2,4-D residues of concern in or on cattle, kidney from 2 to 4.0 ppm; goat, kidney from 2 to 4.0 ppm; horse, kidney from 2 to 4.0 ppm; and sheep, kidney from 2 to 4.0 ppm; cattle, meat from 0.2 to 0.3 ppm; goats, meat from 0.2 to 0.3 ppm; horses, meat from 0.2 to 0.3 ppm; sheep, meat from 0.2 to 0.3 ppm; cattle, meat byproducts, except kidney from 0.2 to 0.3 ppm; goats, meat byproducts, except kidney from 0.2 to 0.3 ppm; horses, meat byproducts, except kidney from 0.2 to 0.3 ppm; and sheep, meat byproducts, except kidney from 0.2 to 0.3 ppm; cattle, fat from 0.2 to 0.3 ppm; goat, fat from 0.2 to 0.3 ppm; horse, fat from 0.2 to 0.3 ppm; sheep, fat from 0.2 to 0.3 ppm; and decrease milk from 0.1 to 0.05 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on the results of a 2,4-D poultry metabolism study, there is no reasonable expectation of finite residues in poultry tissues and eggs (Category 3 of 40 CFR 180.6(a)(3)) when 2,4-D is applied according to registered use directions. Therefore, the Agency determined that tolerances for residues of 2,4-D in poultry commodities are not needed. In addition, as the lowest feeding level for cattle was 940x the maximum theoretical dietary burden for swine, the maximum expected residues in hog tissues would be 0.007 ppm (kidney). Accordingly, there is no reasonable expectation of finite residues in hog commodities (Category 3 of 40 CFR 180.6(a)(3)); therefore, the Agency has determined tolerances associated with hog tissues are no longer needed and should be revoked. Therefore, EPA is proposing to revoke the tolerances in newly revised 40 CFR 180.142(a) for 2,4-D residues of concern in or on egg at 0.05 ppm; hog, fat; hog, meat; and hog, meat byproducts, except kidney at 0.2 ppm; hog, kidney at 2 ppm; and poultry at 0.05 ppm. Tolerances listed in 40 CFR 180.142(a)(3) are currently established for negligible residues of 2,4-D in irrigated crops from application of its dimethylamine salt in the western United States (U.S.). Specifically, the tolerances on fruit, citrus; fruit, pome; fruit, stone; grain, crop; root crop vegetables; grass, forage; hop; small fruit (newly termed berry, group 14) and nut each at 0.1(N) ppm in 40 CFR 180.142(a)(3) have existing tolerances in newly revised 40 CFR 180.142(a) which are high enough to cover any inadvertent residues on these commodities. The tolerances associated with commodities that do not receive direct treatment of 2,4-D in 40 CFR 180.142(a)(3)—avocado; cotton, undelinted seed; cucurbits; grain, crop; leafy vegetables; legume forage; root crop vegetables; seed and pod vegetables; and vegetable, fruiting each at 0.1(N) should be transferred to 40 CFR 180.142(d) as they cover inadvertent and indirect residues. Therefore, EPA is proposing that commodities and tolerances in 40 CFR 180.142(a)(3) that are duplicative of commodities and tolerances in newly revised 40 CFR 180.142(a) be removed from 40 CFR 180.142 (a)(3). EPA is also proposing that the remaining commodities and tolerance combinations in 40 CFR 180.142(a)(3) (avocado; cotton, undelinted seed; cucurbits; grain, crop; leafy vegetables; legume forage; root crop vegetables; seed and pod vegetables; and vegetable, fruiting each at 0.1(N)) be transferred in 40 CFR 180.142(d) for inadvertent or indirect residues of the herbicide, plant regulator, and fungicide 2,4-D (2,4-dichlorophenoxyacetic acid), both free and conjugated, determined as the acid and delete 40 CFR 180.142(a)(3). The available irrigated crop residue data for leafy vegetables and legume, forage had maximum residue levels of 0.33 ppm and 0.15 ppm, respectively; therefore, the Agency has determined the tolerances should be increased from 0.1(N) to 0.4 ppm and 0.2 ppm, respectively. The available residue data for inadvertent residue levels on the remaining crops (avocado, cotton, cucurbits, bulbs in the root crop vegetables, seed and pod vegetables and fruiting vegetables) do not exceed the level of quantitation of 0.05 ppm and two times the level of quantitation for direct uses on the root and tubers of the root crop vegetables; therefore, the Agency determined the tolerances should be decreased to 0.05 ppm. Based on the available irrigation data, the resulting direct and inadvertent residues are expected to be ≤0.1 ppm in/on the bulbs in the root crop vegetables; therefore, the Agency has determined the tolerance level and terminology should be at 0.5 ppm in/on vegetable, bulb, group 3, 0.1 ppm in/on vegetable, root and tuber, except potato, group 1 and vegetable, leaves of root and tuber, except potato, group 2. EPA is also proposing to revise commodity terminology and removing the “(N)” designation for negligible residues to conform to current Agency practice. Therefore, EPA is proposing to revise and modify tolerances in 40 CFR 180.142(d) for the combined 2,4-D residues of concern by decreasing and revising avocado from 0.1
(N)to 0.05 ppm; cotton, undelinted seed from 0.1(N) to 0.05 ppm; cucurbits at 0.1(N) to vegetable, cucurbit, group 9 at 0.05 ppm; root crop vegetables at 0.1
(N)to vegetable, bulb, group 3 at 0.05 ppm; vegetable, fruiting at 0.1(N) to vegetable, fruiting, group 8 at 0.05 ppm; vegetable, seed and pod at 0.1
(N)to vegetable, legume, group 6 at 0.05 ppm, okra at 0.05 ppm and dill, seed at 0.05 ppm; increasing and revising legume forage at 0.1(N) to vegetable, foliage of legume, group 7 at 0.2 ppm and animal feed, nongrass, group 18 at 0.2 ppm; vegetable, leafy at 0.1(N) to vegetable, brassica leafy, group 5 at 0.4 ppm and vegetable, leafy, except brassica, group 4 at 0.4 ppm; and in 40 CFR 180.142(a) further revise the tolerance vegetable, root at 0.1(N) to vegetable, root and tuber, except potato, group 1; and vegetable, leaves of root and tuber, except potato, group 2 at 0.1 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on available field trial data that indicate residues of 2,4-D as high as <0.05 ppm in/on wild rice in Minnesota, the Agency has determined that a regional tolerance should be established at 0.05 ppm in/on rice, wild, grain. Therefore, EPA proposes removing the expired (12/31/05) section 18 emergency exemption in/on wild rice at 0.1 ppm in 40 CFR 180.142(b), reserving the paragraph, and establishing a regional tolerance in 40 CFR 180.142(c) for residues of the herbicide, plant regulator, and fungicide 2,4-D (2,4-dichlorophenoxyacetic acid), both free and conjugated, determined as the acid, in/on rice, wild, grain at 0.05 ppm. Currently, there is a tolerance for residues of 2,4-D in potable water at 0.1(N) ppm in 40 CFR 180.142(a). Pesticide residues in water are now under the purview of EPA's Office of Water where a maximum contaminant level of 0.07 ppm has been established for 2,4-D in drinking water. Sugarcane bagasse is no longer considered a significant animal feed item; therefore, the Agency has determined the tolerance on sugarcane bagasse is no longer needed and should be revoked. Based on available field trial data that indicate residues of 2,4-D as high as 0.095 ppm, <0.05 ppm, and 0.16 ppm in/on filberts, pecans, and almonds, respectively, the Agency has determined the tolerance should be maintained at 0.2 ppm in/on nuts. EPA is also revising commodity terminology to conform to current Agency practice. Therefore, EPA proposes revoking the potable water tolerance at 0.01(N) ppm and sugarcane bagasse at 5 ppm in newly revised 40 CFR 180.142(a), and revising the tolerance in 180.142(a) in/on nut to nut, tree, group 14. There are tolerances listed in newly revised 40 CFR 180.142(a) (formerly 40 CFR 180.142(a)(6)) that regulate “crops in paragraph
(c)of this section at 1.0 ppm” and “crops groupings in paragraph
(c)of this section at 1.0 ppm” that should be removed because tolerances in newly recodified 40 CFR 180.142(a) and
(d)will be sufficient to cover inadvertent residues in irrigated crops to which these tolerances originally referred. Tolerances also exist in newly revised 40 CFR 180.142(a) (formerly 40 CFR 180.142(a)(12) and 13)) as follows; “2 ppm in the milled fractions (except flour) derived from barley, oats, rye, and wheat to be ingested as food or be converted to food” and “2 ppm in the milled fractions derived from barley, oats, rye, and wheat to be ingested as animal feed or converted into animal feed” should be removed because tolerances for direct and inadvertent residues of 2,4-D in barley, rye and wheat bran are newly established in newly revised 40 CFR 180.142(a) and tolerances in other small grain processed products are not necessary as residues do not concentrate upon processing. Therefore, EPA is proposing to remove the tolerances in newly revised 40 CFR 180.142(a) “crops in paragraph
(c)of this section at 1.0 ppm”; “crops groupings in paragraph
(c)of this section at 1.0 ppm”; “2 ppm in the milled fractions (except flour) derived from barley, oats, rye, and wheat to be ingested as food or be converted to food”; and “2 ppm in the milled fractions derived from barley, oats, rye, and wheat to be ingested as animal feed or converted into animal feed.” The proposed tolerance actions herein for 2,4-D, to implement the recommendations of the 2,4-D RED, reflect use patterns in the U.S. which support a different tolerance than the Codex level on berries; citrus; meat byproducts; grass hay and fodder; corn forage and fodder; meat; pome fruits; potato; rice, grain; sorghum grain; soybeans; and wheat straw because of differences in good agricultural practices. However, compatibility currently exists or will exist between the proposed reassessed U.S. tolerances and Codex MRLs for 2,4-D residues in or on corn grain, rice straw, rye grain, sorghum forage, stone fruits, sugarcane, sweet corn, tree nuts, and wheat grain. 3. *Dodine.* Based on available field trial data that indicate residues of dodine as high as 2.2 ppm in/on cherries and to harmonize with the Codex MRL of 3 ppm, the Agency has determined that the tolerance should be decreased to 3.0 ppm on cherry, sweet and cherry, tart. Therefore, EPA proposes decreasing the tolerance in 40 CFR 180.172(a) for residues of dodine in or on cherry, sweet from 5.0 to 3.0 ppm and cherry, tart from 5.0 to 3.0 ppm. Based on the available apple field trial and processing data that indicate residues of dodine are as high as 2.58 ppm in/on apples and a concentration factor of 5.13x in apple pomace (wet), the Agency has determined that a tolerance should be established in/on apple, wet pomace at 15.0 ppm. Therefore, EPA proposes establishing a tolerance in 40 CFR 180.172(a) for residues of dodine in/on apple, wet pomace at 15.0 ppm. Based on the results of the dodine animal metabolism study, there is no reasonable expectation of finite residues in animal tissues or milk (category 3 of 40 CFR 180.6(a)(3)); therefore, the Agency has determined that the tolerances for milk and meat are no longer needed and should be revoked. In the RED, a tolerance for plum was recommended at 5 ppm; however, there are no longer any uses in/on plums so the tolerance is not being established. Additionally, use of dodine on spinach is no longer a registered use, the Agency has determined the regional tolerance for spinach at 12.0 ppm should be revoked. Therefore, EPA is proposing to revoke tolerances in 40 CFR 180.172(a) for residues of dodine in/on meat and milk at 0 ppm and 40 CFR 180.172(b) for residues of dodine in/on spinach at 12.0 ppm and reserve and redesignate paragraph
(b)as paragraph
(c)for tolerances with regional registrations. In order to conform to the adopted format in the CFR for 40 CFR part 180, EPA proposes revising 40 CFR 180.172 by adding paragraph
(b)section 18 emergency exemptions—reserved; and paragraph
(d)for indirect and inadvertent residues—reserved. Compatibility of U.S. tolerances and Codex MRLs exist for dodine residues in/on apples, pears, and peaches and will exist between the proposed reassessed U.S. tolerances and Codex MRLs in or on sweet and tart cherries. 4. *DCPA.* There are currently no registered uses for DCPA on corn, lettuce, rutabaga and soybean; however, the tolerances are being retained to cover any inadvertent residues from the rotation of crops to previously DCPA treated fields/crops (1998 RED page 23). EPA is also revising commodity terminology to conform to current Agency practice. Therefore, EPA is proposing to transfer and revise tolerances in 40 CFR 180.185(a) to 40 CFR 180.185(d) for the combined inadvertent residues of the herbicide dimethyl tetrachloroterephthalate
(DCPA)and its metabolites monomethyl tetrachloroterephthalate acid
(MTP)and terachlorophthalic acid
(TCP)(calculated as DCPA) in or on corn, field, forage; corn, field stover; corn, pop, forage; corn, pop, stover; corn, sweet, forage; corn, sweet, stover at 0.4 ppm; corn, grain (including pop and field) at 0.05 ppm to corn, pop, grain at 0.05 ppm and corn, field, grain at 0.05 ppm; corn, sweet, kernel plus cob with husks removed at 0.05 ppm; lettuce at 2 ppm to 2.0 ppm; rutabagas at 2 ppm to rutabaga at 2.0 ppm; and soybean at 2 ppm to 2.0 ppm. Currently, the tolerances for basil, fresh leaves and basil, dried leaves are 20.0 ppm and 5.0 ppm, respectively, as published August 20, 2004 (69 FR 51571) (FRL-7673-6), and were intended for inadvertent residues rather than direct use tolerances. These tolerances should be corrected, switching the tolerance levels to basil, fresh leaves at 5.0 ppm and basil, dried leaves at 20.0 ppm and designated as inadvertent residue tolerances. Therefore, EPA is proposing to correct and transfer the tolerances in 40 CFR 180.185(a) to 40 CFR 180.185(d) for the combined inadvertent residues of the herbicide DCPA and its metabolites MTP and TCP (calculated as DCPA) in or on basil, fresh leaves from 20.0 to 5.0 ppm and basil, dried leaves from 5.0 to 20.0 ppm. The tolerances for celeriac, chicory, chive, coriander, dill, marjoram, parsley, radicchio, and oriental radish as published August 20, 2004 (69 FR 51571) (FRL-7673-6), were tolerances intended to cover inadvertent residues rather than direct use residues. Therefore, EPA is proposing to transfer the tolerances in 40 CFR 180.185(a) to 40 CFR 180.185(d) for the combined inadvertent residues of the herbicide DCPA and its metabolites MTP and TCP (calculated as DCPA) in or on celeriac at 2.0 ppm; chicory, roots at 2.0 ppm; chicory, tops at 5.0 ppm; chive at 5.0 ppm; coriander, leaves at 5.0 ppm; dill at 5.0 ppm; marjoram at 5.0 ppm; parsley, leaves at 5.0 ppm; parsley, dried leaves at 20.0 ppm; radicchio at 5.0 ppm; and radish, oriental at 2.0 ppm. There are currently no registered uses for DCPA in or on beans (field, mung and succulent), cotton, cucumbers, eggplants, peppers, blackeyed peas, potatoes, squash (winter and summer), sweet potatoes, turnips, leafy brassica vegetables and yams as published August 20, 2004 (69 FR 51571) (FRL-7673-6). However, the tolerances are being retained to cover any inadvertent residues from rotation of crops to previously DCPA treated fields/crops. EPA is also revising commodity terminology to conform to current Agency practice. Therefore, EPA is proposing to revise and transfer tolerances in 40 CFR 180.185(a) to 40 CFR 180.185(d) for the combined inadvertent residues of the herbicide DCPA and its metabolites MTP and TCP (calculated as DCPA) in or on bean, field, dry to bean, dry; bean, mung, seed at 2 ppm; bean, snap, succulent at 2 ppm; cotton, undelinted seed at 0.2 ppm; cucumber at 1.0 ppm; eggplant at 1.0 ppm; pepper at 2 ppm; pimento at 2 ppm; potato at 2 ppm; squash, summer at 1.0 ppm; squash, winter at 1 ppm; pea, blackeyed to pea, blackeyed, seed; radish, oriental to radish, oriental, roots and radish, oriental, tops; sweet potato, roots to sweet potato; turnip to turnip, roots; turnip, greens to turnip, tops; vegetable, brassica, leafy, group 5 at 5 ppm; and yam, true, tuber at 2 ppm. In addition, EPA is proposing to revise commodity terminology and tolerances to conform to current Agency practice in 40 CFR 180.185(a) for the combined residues of the herbicide DCPA and its metabolites MTP and TCP (calculated as DCPA) in or on melon, honeydew to muskmelon; and onion to onion, bulb. The are no registered uses for upland cress; therefore, the tolerance is no longer appropriate. Therefore, EPA is proposing to revoke the tolerance in 40 CFR 180.185(a) in/on cress, upland at 5 ppm. Currently, there are no Codex MRLs in place for DCPA. 5. *Endothall.* Tolerances are currently established for rice, grain and rice, straw at 0.05(N) ppm. The “N” indicating negligible residues should be deleted in accordance with current Agency practice in 40 CFR 180.293 for the endothall residues of concern in or on rice, grain from 0.05(N) ppm to 0.05 ppm and rice, straw from 0.05(N) ppm to 0.05 ppm. There is currently an interim tolerance established in 40 CFR 180.293(a)(2) for endothall residues of concern for potable water at 0.2 ppm. EPA's Office of Pesticide Programs no longer regulates pesticides in water by establishing tolerances, but rather by EPA's Office of Water where an appropriate Maximum Concentration Level has been established. Therefore, EPA is proposing to revoke the interim tolerance of 0.2 ppm in 40 CFR 180.293 (a)(2) and redesignating 40 CFR 180.293 (a)(1) and (a)(2) as 40 CFR 180.293(a). EPA is proposing to revise commodity terminology to conform to current Agency practice in newly revised 40 CFR 180.293(a) from hop to hop, dried cones. Currently, there are no Codex MRLs in place for endothall. 6. *Propyzamide (or pronamide).* Currently, 40 CFR 180.317(a) regulates the combined residues of the herbicide propyzamide and its metabolites (containing the 3,5-dichlorobenzoyl moiety calculated as 3,5-dichloro-N-(1,1-dimethyl-2-propynyl)benzamide) and in 40 CFR 180.317(b) only the parent, propyzamide is regulated in error. The Agency has determined the residues for regulation should be corrected in 40 CFR 180.317(b) to include the metabolites. Therefore, EPA proposes correcting the regulatory expression in 40 CFR 180.317(b) to regulate the combined residues of the herbicide propyzamide and its metabolites (containing the 3,5-dichlorobenzoyl moiety calculated as 3,5-dichloro-N-(1,1-dimethyl-2-propynyl)benzamide). Based on the available field trial data that indicate the combined residues of propyzamide are less than the level of detection (0.01 ppm) in or on artichokes, the Agency determined that the tolerance should be decreased to 0.01 ppm. Therefore, EPA proposes decreasing the tolerance in 40 CFR 180.317(a) for the combined residues of the herbicide propyzamide and its metabolites (containing the 3,5-dichlorobenzoyl moiety calculated as 3,5-dichloro-N-(1,1-dimethyl-2-propynyl)benzamide) in or on artichoke, globe from 0.1 to 0.01 ppm. In a residue study, two groups of lactating cows were fed alfalfa hay containing 20 to 40 ppm field-aged propyzamide residues for 3 weeks resulting in residues in fat tissues ranging from <0.01 to 0.48 ppm. Based on linear extrapolation of the maximum residues observed in the study and the maximum theoretical dietary burden, the Agency determined that the cattle, goat, hog, horse, and sheep fat tolerances should be raised from 0.02 to 0.20 ppm. Therefore, EPA proposes increasing the tolerances in 40 CFR 180.317(a) for the combined residues of the herbicide propyzamide and its metabolites (containing the 3,5-dichlorobenzoyl moiety calculated as 3,5-dichloro-N-(1,1-dimethyl-2-propynyl)benzamide) in or on cattle, fat from 0.02 to 0.20 ppm; goat, fat from 0.02 to 0.20 ppm; hog, fat from 0.02 to 0.20 ppm; horse, fat from 0.02 ppm to 0.20 ppm; and sheep, fat from 0.02 to 0.20 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Tolerances are typically not established for poultry kidneys, consequently, the associated tolerance is not necessary and the Agency determined that the tolerance for poultry, kidney at 0.2 ppm should be revoked. Concomitant with revoking the poultry, kidney tolerance, the tolerance for poultry, meat byproducts (except kidney, liver) should be revised to poultry, meat byproducts, except liver. Therefore, EPA proposes revoking the tolerance in 40 CFR 180.317(a) for the combined propyzamide residues of concern in or on poultry, kidney and revising the tolerance poultry, meat byproducts, (except kidney, liver) to poultry, meat byproducts, except liver. Based on available confined accumulation in rotational crops data that indicate residues of propyzamide and its metabolites are as high as 0.10 ppm in wheat forage; 0.038 ppm in wheat, grain, and 0.181 ppm in wheat, straw, the Agency determined that tolerances for inadvertent or indirect residues should be established in/on cereal, grain, forage at 0.6 ppm; cereal, grain, hay at 0.2 ppm; and cereal, grain, straw at 0.3 ppm. Therefore, EPA proposes establishing tolerances in 40 CFR 180.317(d) for the combined residues of the herbicide propyzamide and its metabolites (containing the 3,5-dichlorobenzoyl moiety calculated as 3,5-dichloro-N-(1,1-dimethyl-2-propynyl)benzamide) in or on grain, cereal, forage, group 16 at 0.6 ppm; grain, cereal, hay, group 16 at 0.2 ppm; and grain, cereal, straw, group 16 at 0.3 ppm. Based on the available field trial data that indicate the combined residues of propyzamide are as high as 8.68 ppm in/on alfalfa seed, the Agency determined that a tolerance should be established in/on alfalfa, seed at 10.0 ppm. Therefore, EPA is proposing to establish tolerances in 40 CFR 180.317(a) for the combined propyzamide residues of concern in/on alfalfa, seed at 10.0 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. EPA is also revising commodity terminology to conform to current Agency practice. Therefore, EPA proposes modifying a tolerance in 40 CFR 180.317(a) in/on lettuce to lettuce, head; fruit, stone to fruit, stone group 12; nongrass animal feeds to animal feed, nongrass, group 18; radicchio, greens
(tops)to radicchio; cattle, meat byproducts, except kidney, liver; goat, meat byproducts, except kidney, liver; hog, meat byproducts, except kidney, liver; horse, meat byproducts, except kidney, liver; sheep, meat byproducts, except kidney, liver to cattle, meat byproducts, except kidney and liver; goat, meat byproducts, except kidney and liver; hog, meat byproducts, except kidney and liver; horse, meat byproducts, except kidney and liver; and sheep, meat byproducts, except kidney and liver and in 40 CFR 180.317(c) in/on pea, dried, winter to pea, field, seed. Currently, there are no Codex MRLs in place for propyzamide. 7. *Ethofumesate.* Tolerances in 40 CFR 180.345(a)(1) and (a)(2) are regulated for the combined residues of the herbicide ethofumesate (2-ethoxy-2,3-dihydro-3,3-dimethyl-5-benzofuranyl methanesulfonate) and its metabolites 2-hydroxy-2,3-dihydro-3,3-dimethyl-5-benzofuranyl methanesulfonate and 2,3-dihydro-3,3-dimethyl-2-oxo-5-benzofuranyl methanesulfonate both calculated as parent compound in/on raw agricultural commodities for (a)(1) and in/on the processed feeds when present as a result of application to growing crops. When the residues of concern are the same for both processed feeds and the raw agricultural commodities, it is administrative practice to regulate them in the same paragraph. Therefore, EPA proposes combining the tolerances in 40 CFR 180.345(a)(1) and (a)(2) into 40 CFR 180.345(a). As there are presently no regulated poultry or swine feed items associated with the registrated uses of ethofumesate, the hog fat, meat, and meat byproduct tolerances are no longer needed. Also, based on available field trial data that indicate residues of ethofumesate and its regulated metabolites are as high as 0.25 ppm in/on sugar beet roots, 3.1 ppm in/on sugar beet tops, 4.28 ppm in/on garden beet tops, the Agency determined that the tolerances should be increased to 0.3 ppm on sugar beet roots, 4.0 ppm sugar beet tops, and 5.0 ppm in/on garden beet tops. Therefore, EPA is proposing to revoke the tolerances in newly revised 40 CFR 180.345(a) for the combined residues of the herbicide ethofumesate (2-ethoxy-2,3-dihydro-3,3-dimethyl-5-benzofuranyl methanesulfonate) and its metabolites 2-hydroxy-2,3-dihydro-3,3-dimethyl-5-benzofuranyl methanesulfonate and 2,3-dihydro-3,3-dimethyl-2-oxo-5-benzofuranyl methanesulfonate both calculated as parent compound in/on hog, fat at 0.05 ppm, hog, meat at 0.05 ppm and hog, meat byproducts at 0.05 ppm. Also, EPA proposes increasing the tolerances in/on beet, sugar, roots from 0.1 to 0.3 ppm; beet, sugar, tops from 1.00 to 4.0 ppm; beet, garden, tops from 4.0 to 5.0 ppm in newly revised 40 CFR 180. 345(a). The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on the 0.5x processing factor for refined sugar and the highest average field trial residues of 0.25 ppm in beet roots, the expected combined ethofumesate residues of concern would be 0.125 ppm in refined sugar; therefore, the Agency has determined the tolerance for refined sugar should be 0.20 ppm. EPA is also modifying commodity terminology to conform to current Agency practice. Therefore, EPA is proposing to establish the tolerances in newly revised 40 CFR 180.345(a) for the combined residues of the herbicide ethofumesate (2-ethoxy-2,3-dihydro-3,3-dimethyl-5-benzofuranyl methanesulfonate) and its metabolites 2-hydroxy-2,3-dihydro-3,3-dimethyl-5-benzofuranyl methanesulfonate and 2,3-dihydro-3,3-dimethyl-2-oxo-5-benzofuranyl methanesulfonate both calculated as parent compound in/on beet, sugar, refined sugar at 0.20 ppm. Also, EPA proposes modifying tolerances in newly recodified 40 CFR 180.345(a) from sugar beet molasses to beet, sugar, molasses. Since publication of the RED, EPA established tolerances in 40 CFR 180.345 in/on garden beets, sugar beets and carrots. Currently, there are no Codex MRLs in place for ethofumesate. 8. *Permethrin.* The tolerance on cotton, undelinted seed at 0.5 ppm in 40 CFR 180.378(a) expired on November 15, 1997, and should be removed from the CFR. Because the only tolerance in 40 CFR 180.378(a) has expired, EPA proposes removing existing 40 CFR 180.378(a) in its entirety. Currently, tolerances in 40 CFR 180.378(b) permethrin [(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate], DCVA [3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate], and MPBA [3-phenoxyphenyl)methanol (3-phenoxybenzoic acid)] on plant commodities; 180.378(c) permethrin, DCVA, MPBA, and 3-phenoxybenzoic acid (3-PBA) in/on animal commodities; and 180.378(d) regional registrations are regulated for permethrin, DCVA and MPBA. Based on new toxicity studies and structural (molecular level) activity relationship
(SAR)considerations, the Agency determined that residues of concern for regulation should consist of the cis- and trans-permethrin isomers for both plant and animal commodities. (This change also harmonizes the residues for regulation with MRLs for Codex, Canada and Mexico.) Consequently, the existing separation of plant tolerances in 40 CFR 180.378(b) and animal tolerances in 180.378(c) is no longer needed and should be combined into newly revised 40 CFR 180.378(a). Regional tolerances in 40 CFR 180.378(d) should be transferred to 180.378(c), and newly revised paragraph
(b)and
(d)should be established and reserved for section 18 emergency exemptions and indirect or inadvertent residues, respectively, in order to conform to current Agency practice. Therefore, EPA proposes changing the tolerance expression and transferring tolerances in 40 CFR 180.378(b) and
(c)into 40 CFR 180.378(a) for the combined residues of the insecticide cis- and trans-permethrin isomers [cis-(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate] and [trans-(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate] in/on food commodities; reserving 40 CFR 180.378(b) for section 18 exemptions; transferring the tolerances in 40 CFR 180.378(d) to 40 CFR 180.378
(c)tolerances with regional registrations for the combined residues of the insecticide cis- and trans-permethrin isomers [cis-(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate] and [trans-(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate] in/on food commodities; and reserving 40 CFR 180.378(d) for indirect or inadvertent residues. EPA is modifying commodity terminology to conform to current Agency administrative practice and based on available field trial data that indicate residues of permethrin as high as 15.2 ppm in/on alfalfa (fresh), 44.5 ppm in/on alfalfa hay, 4.0 ppm in/on globe artichokes, 0.32 ppm in/on cauliflower, 42.6 ppm in/on corn forage, 27.1 ppm in/on field and sweet corn stover, 0.26 ppm in/on eggplant, 0.48 ppm in/on horseradish, 4.9 ppm in/on mushrooms, 0.92 ppm in/on peaches, <0.02 ppm in/on pears and apples, 0.47 in/on bell peppers, 1.27 ppm in/on squash, 0.52 ppm in/on cucumbers and 1.2 ppm in/on melons (where squash, cucumber and melon are representative of the vegetable cucurbit group 9); the Agency determined that the tolerance should be decreased to 20.0 ppm in/on alfalfa, forage; 45 ppm in/on alfalfa, hay; 5.0 ppm in/on artichoke, globe; 0.50 ppm in/on cauliflower; 0.50 ppm in/on eggplant; 0.5 ppm in/on horseradish; 5.0 ppm in/on mushroom; 0.50 ppm in/on pepper, bell; 1.0 ppm in/on peach; 0.05 ppm in/on fruit, pome, group 11 (in place of individual apple and pear tolerances); 1.50 ppm in/on vegetable, cucurbit, group 9. The Agency also determined that the tolerances should be decreased and separated (by field, sweet, and pop varieties) for corn, forage; and corn, stover as follows: 50 ppm in/on corn, field, forage; 50 ppm in/on corn, sweet, forage; 30 ppm in/on corn, field, stover; 30 ppm in/on corn, pop, stover; and 30 ppm in/on corn, sweet, stover. Therefore, EPA proposes decreasing and revising tolerances in newly revised 40 CFR 180.378(a) for the combined permethrin residues of concern in/on alfalfa, forage from 25.0 to 20 ppm; alfalfa, hay from 55.0 to 45 ppm; artichoke, globe from 10.0 to 5.0 ppm; cauliflower from 1.0 to 0.50 ppm; corn, forage from 60.0 ppm to corn, field, forage at 50 ppm and corn, sweet, forage at 50 ppm; corn, stover at 60.0 ppm to corn, field, stover at 30 ppm and corn, pop, stover at 30 ppm and corn, sweet, stover at 30 ppm; eggplant from 1.0 to 0.50 ppm; horseradish from 1.0 to 0.50 ppm; mushroom from 6.0 to 5.0 ppm; pepper, bell from 1.0 to 0.5 ppm; peach from 5.0 to 1.0 ppm; apple at 0.05 ppm and pear at 3.0 ppm to fruit, pome, group 11 at 0.05 ppm; vegetable, cucurbit, group 9 from 3.0 to 1.50 ppm. Based on a cattle/ruminant feeding study (at 10 and 50 ppm) and the maximum theoretical dietary burden
(MTDB)of 40.3 ppm for dairy cattle, the maximum expected residues of permethrin would be 0.088 ppm in whole milk (2.20 ppm in milk fat), 0.064 ppm in meat, 0.88 ppm in fat, and 0.048 ppm in meat byproducts, the Agency determined the tolerances should be 1.5 ppm for cattle, goat, horse, and sheep fat; 0.10 ppm for cattle, goat, horse, and sheep meat; 0.10 ppm for cattle, goat, horse, and sheep meat byproducts; and 3.0 ppm for milk, fat. A hog feeding study is not available; however, the maximum potential residues resulting from dietary exposure can be estimated for hogs using data from the above ruminant feeding study. The 10 ppm feeding level in the cattle feeding study is equivalent to 167x the MTDB for swine. The maximum expected residues for permethrin in hogs would be <0.01 ppm in meat, meat byproducts, and in fat; therefore, the Agency has determined the tolerances should be 0.05 ppm for hog fat, meat and meat byproducts. Based on poultry feeding studies and the MTDB of 4.05 ppm and 11 ppm for poultry, the maximum potential residues of permethrin would be 0.025 ppm in eggs; <0.01 ppm in liver; 0.009 ppm in muscle; and 0.25-0.30 ppm in fat, the Agency determined the tolerances should be 0.10 ppm for egg and 0.05 ppm for poultry meat byproducts. Therefore, EPA proposes decreasing and modifying tolerances in newly revised 40 CFR 180.378(a) for the combined permethrin residues of concern in/on cattle, fat from 3.0 to 1.50 ppm; cattle, meat from 0.25 to 0.10 ppm; cattle, meat byproducts from 2.0 to 0.10 ppm; egg from 1.0 to 0.10 ppm; goat, fat from 3.0 to 1.50 ppm; goat, meat from 0.25 to 0.10 ppm; goat, meat byproducts from 2.0 to 0.10 ppm; hog, fat from 3.0 to 0.05 ppm; hog, meat from 0.25 to 0.05 ppm; hog, meat byproducts from 3.0 to 0.05 ppm; horse, fat from 3.0 to 1.50 ppm; horse, meat from 0.25 to 0.10 ppm; horse, meat byproducts from 2.0 to 0.10 ppm; milk, fat (reflecting 0.25 ppm in whole milk) from 6.25 to milk, fat (reflecting 0.88 ppm in whole milk) at 3.0 ppm; poultry, meat byproducts from 0.25 to 0.05 ppm; sheep, fat from 3.0 to 1.50 ppm; sheep, meat from 0.25 to 0.10 ppm; and sheep, meat byproducts from 2.0 to 0.10 ppm. Based on available field trial data that indicate residues of permethrin as high as 11.27 ppm in/on collards, 8.25 ppm in/on turnip greens and 0.12 ppm in/on turnip roots, the Agency determined that the tolerance should be decreased to 15 ppm in/on collards; 10 ppm in/on turnip, greens; and 0.20 ppm in/on turnip, roots. Therefore, EPA proposes decreasing and revising tolerances in newly revised 40 CFR 180.378(c) for the combined permethrin residues of concern in/on collards from 20 to 15 ppm; turnip, greens from 20 ppm to turnip, tops at 10 ppm; and turnip, roots from 1 to 0.20 ppm. EPA also proposes recodifying and revising grass, range at 15 ppm in newly revised 40 CFR 180.378(a) to 40 CFR 180.378(c) as grass, hay at 15 ppm and grass, forage at 15 ppm. Based on available field trial data that indicate residues of permethrin as high as 1.24 ppm in/on asparagus, 1.76 ppm in/on broccoli, and 3.94 ppm in/on cherries, the Agency determined that the tolerance should be increased to 2.0 ppm in/on asparagus, 2.0 ppm in/on broccoli, and 4.0 ppm in/on cherry. Therefore, EPA proposes increasing and revising tolerances in newly revised 40 CFR 180.378(a) for the combined permethrin residues of concern in/on asparagus from 1.0 to 2.0 ppm; broccoli from 1.0 to 2.0 ppm; and cherry from 3.0 to cherry, sweet at 4.0 ppm and cherry, tart at 4.0 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on available field trial data that indicate residues of permethrin as high as 4.0 ppm in/on celery, the Agency has determined the individual tolerance on celery should be replaced with the leaf petioles subgroup 4B at 5.0 ppm. Based on available data that indicate residues of permethrin as high as 0.386 ppm in/on aspirated grain fractions, the Agency has determined the tolerance should be established for grain, aspirated fractions at 0.50 ppm. Therefore, EPA proposes establishing the tolerance in newly revised 40 CFR 180.378(a) for the combined permethrin residues of concern in/on grain, aspirated fractions at 0.50 ppm and revising from celery to leaf petioles subgroup 4B at 5.0 ppm. EPA is also modifying commodity terminology to conform to current Agency administrative practice; therefore, the Agency proposes revising the terminology for tolerances in newly revised 40 CFR 180.378(a) for the combined residues of the insecticide permethrin [(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate] and its cis- and trans-isomers in/on corn, grain to corn, field, grain and corn, pop, grain; filbert to hazelnut; onion, dry bulb to onion, bulb; garlic to garlic, bulb; and soybean to soybean, seed. The proposed tolerance actions herein for permethrin, to implement the recommendations of the permethrin RED, reflect use patterns in the U.S. which support a different tolerance than the Codex level on pome fruit, asparagus, eggplant, cherries, peaches, bell peppers, and meats of cattle, goats, hogs, horses, sheep and poultry because of differences in good agricultural practices and determination of secondary residue levels in livestock commodities. However, compatibility currently exists with potatoes and soybean seed, and will exist between the proposed reassessed U.S. tolerances and Codex MRLs for permethrin residues in or on broccoli, cauliflower, eggs, and horseradish. 9. *Dimethipin.* The available animal feeding study data reflecting exaggerated dosing levels indicate that there is no expectation of finite residues (category 3 of 40 CFR 180.6(a)(3)) in the fat, meat, and meat byproducts of cattle, goats, hogs, horses, and sheep so that a tolerance is not necessary for the fat, meat and meat byproducts of cattle, goats, hogs, horses, and sheep and should be revoked. However, the Agency has decided to retain the tolerances in the meat and meat byproducts of cattle, goats, hogs, horses, and sheep solely to harmonize with Codex MRLs. Therefore, the Agency has determined to retain and decrease the tolerances from 0.02 to 0.01 ppm in meat and meat byproducts of cattle, goats, hogs, horses, and sheep to harmonize with current Codex MRLs (which were reduced from 0.02 ppm to 0.01 ppm since publication of the RED). Therefore, EPA proposes revoking the tolerances in 40 CFR 180.406(a) for dimethipin residues of concern in or on cattle, fat at 0.02 ppm; goat, fat at 0.02 ppm; hog, fat at 0.02 ppm, horse, fat at 0.02 ppm and sheep fat at 0.02 ppm and decreasing the tolerances in/on cattle, meat from 0.02 to 0.01 ppm; cattle, meat byproducts from 0.02 to 0.01 ppm; goat, meat from 0.02 to 0.01 ppm; goat, meat byproducts from 0.02 to 0.01 ppm; hog, meat from 0.02 to 0.01 ppm; hog, meat byproducts from 0.02 to 0.01 ppm; horse, meat from 0.02 to 0.01 ppm; horse, meat byproducts from 0.02 to 0.01 ppm; sheep, meat from 0.02 to 0.01 ppm; and sheep, meat byproducts from 0.02 to 0.01ppm. Tolerances are currently established on cotton, undelinted seed at 0.05 ppm and cotton, hulls at 0.7 ppm. Because the processing data for cotton, hulls indicate an average concentration factor of 0.95x, tolerances for cotton, hulls are not necessary since residues do not concentrate and the tolerance for cotton, undelinted seed will cover residues on cotton hulls. Therefore, EPA is proposing to revoke the tolerances in 40 CFR 180.406(a) for dimethipin residues of concern in/on cotton, hulls at 0.7 ppm. Currently, the Codex MRLs and U.S. tolerances for dimethipin are not harmonized in/on cotton seed and cotton seed oil because of differences in good agricultural practices. However, the proposed tolerance actions herein to implement the dimethipin RED will harmonize U.S. tolerances and Codex MRLs in or on meat and meat byproducts of cattle, goats, hogs, horses and sheep. 10. *Fenarimol.* Currently, the tolerance in 40 CFR 180.421(a) for residues of fenarimol in/on apple is 0.1 ppm (September 15, 2006, 71 FR 54423) (FRL-8077-9). The Codex MRL is 0.3 ppm. EPA proposes increasing the tolerances in 40 CFR 180.421(a) for residues of fenarimol in/on apple from 0.1 to 0.3 ppm in order to harmonize with Codex in response to concerns raised by the Chinese after publication of the September 15, 2006 **Federal Register** rulemaking. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. 11. *Fomesafen.* Currently, the tolerance in 40 CFR 180.433(a) for residues of fomesafen in/on bean, dry and bean, snap, succulent are each 0.025 ppm (May 3, 2006 (71 FR 25945) (FRL-8062-6). The Canadian MRL is 0.05 ppm bean, dry and bean, snap, succulent. EPA proposes increasing the tolerances in 40 CFR 180.433(a) for residues of fomesafen in/on bean, dry and bean, snap, succulent from 0.025 to 0.05 ppm in order to harmonize with the Canadian MRLs in support of North American Free Trade Agreement (NAFTA). The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. B. What is the Agency's Authority for Taking this Action? A “tolerance” represents the maximum level for residues of pesticide chemicals legally allowed in or on raw agricultural commodities and processed foods. Section 408 of FFDCA, 21 U.S.C. 346a, as amended by the FQPA of 1996, Public Law 104-170, authorizes the establishment of tolerances, exemptions from tolerance requirements, modifications in tolerances, and revocation of tolerances for residues of pesticide chemicals in or on raw agricultural commodities and processed foods. Without a tolerance or exemption, food containing pesticide residues is considered to be unsafe and therefore “adulterated” under section 402(a) of the FFDCA, 21 U.S.C. 342(a). Such food may not be distributed in interstate commerce (21 U.S.C. 331(a)). For a food-use pesticide to be sold and distributed, the pesticide must not only have appropriate tolerances under the FFDCA, but also must be registered under FIFRA (7 U.S.C. 136 *et seq.* ). Food-use pesticides not registered in the United States must have tolerances in order for commodities treated with those pesticides to be imported into the United States. EPA is proposing these tolerance actions to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standard of the Food Quality Protection Act (FQPA). The safety finding determination is discussed in detail in each post-FQPA RED and TRED for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, to meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed and electronic copies of the REDs and TREDs are available as provided in Unit II.A. EPA has issued post-FQPA REDs for 2,4-D, dodine, DCPA, endothall, ethofumesate, permethrin, and dimethipin, and TREDs for captan, propyzamide, and fenarimol, whose REDs were both completed prior to FQPA. 1 REDs and TREDs contain the Agency's evaluation of the data for these pesticides, including requirements for additional data on the active ingredients to confirm the potential human health and environmental risk assessments associated with current product uses, and in REDs state conditions under which these uses and products will be eligible for reregistration. The REDs and TREDs recommended the establishment, modification, and/or revocation of specific tolerances. RED and TRED recommendations such as establishing or modifying tolerances, and in some cases revoking tolerances, are the result of assessment under the FQPA standard of “reasonable certainty of no harm.” However, tolerance revocations recommended in REDs and TREDs that are proposed in this document do not need such assessment when the tolerances are no longer necessary. 1 A RED for fomesafen was not needed because it was registered after November 1, 1984 and not subject to reregistration eligibility, and its tolerances were reassessed prior to completion of a TRED, such that a RED for fomesafen was no longer needed because EPA made a safety finding which reassessed its tolerances according to FQPA standards. EPA's general practice is to propose revocation of tolerances for residues of pesticide active ingredients on crops for which FIFRA registrations no longer exist and on which the pesticide may therefore no longer be used in the United States. EPA has historically been concerned that retention of tolerances that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States. Nonetheless, EPA will establish and maintain tolerances even when corresponding domestic uses are canceled if the tolerances, which EPA refers to as “import tolerances,” are necessary to allow importation into the United States of food containing such pesticide residues. However, where there are no imported commodities that require these import tolerances, the Agency believes it is appropriate to revoke tolerances for unregistered pesticides in order to prevent potential misuse. Furthermore, as a general matter, the Agency believes that retention of import tolerances not needed to cover any imported food may result in unnecessary restriction on trade of pesticides and foods. Under section 408 of the FFDCA, a tolerance may only be established or maintained if EPA determines that the tolerance is safe based on a number of factors, including an assessment of the aggregate exposure to the pesticide and an assessment of the cumulative effects of such pesticide and other substances that have a common mechanism of toxicity. In doing so, EPA must consider potential contributions to such exposure from all tolerances. If the cumulative risk is such that the tolerances in aggregate are not safe, then every one of these tolerances is potentially vulnerable to revocation. Furthermore, if unneeded tolerances are included in the aggregate and cumulative risk assessments, the estimated exposure to the pesticide would be inflated. Consequently, it may be more difficult for others to obtain needed tolerances or to register needed new uses. To avoid potential trade restrictions, the Agency is proposing to revoke tolerances for residues on crops uses for which FIFRA registrations no longer exist, unless someone expresses a need for such tolerances. Through this proposed rule, the Agency is inviting individuals who need these import tolerances to identify themselves and the tolerances that are needed to cover imported commodities. Parties interested in retention of the tolerances should be aware that additional data may be needed to support retention. These parties should be aware that, under FFDCA section 408(f), if the Agency determines that additional information is reasonably required to support the continuation of a tolerance, EPA may require that parties interested in maintaining the tolerances provide the necessary information. If the requisite information is not submitted, EPA may issue an order revoking the tolerance at issue. When EPA establishes tolerances for pesticide residues in or on raw agricultural commodities, consideration must be given to the possible residues of those chemicals in meat, milk, poultry, and/or eggs produced by animals that are fed agricultural products (for example, grain or hay) containing pesticides residues (40 CFR 180.6). When considering this possibility, EPA can conclude that: 1. Finite residues will exist in meat, milk, poultry, and/or eggs. 2. There is a reasonable expectation that finite residues will exist. 3. There is a reasonable expectation that finite residues will not exist. If there is no reasonable expectation of finite pesticide residues in or on meat, milk, poultry, or eggs, tolerances do not need to be established for these commodities (40 CFR 180.6(b) and (c)). EPA has evaluated certain specific meat, milk, poultry, and egg tolerances proposed for revocation in this proposed rule and has concluded that there is no reasonable expectation of finite pesticide residues of concern in or on those commodities. C. When do These Actions Become Effective? EPA is proposing that modifications, establishment, commodity terminology revisions, and revocation of these tolerances become effective on the date of publication of the final rule in the **Federal Register** because
(1)with respect to the revocations, their associated uses have been canceled for several years and
(2)none of the other tolerance actions proposed here are expected to result in adulterated commodities. The Agency believes that with respect to the tolerances proposed for revocation, treated commodities have had sufficient time for passage through the channels of trade. However, if EPA is presented with information that existing stocks would still be available and that information is verified, the Agency will consider extending the expiration date of the tolerance. If you have comments regarding existing stocks and whether the effective date allows sufficient time for treated commodities to clear the channels of trade, please submit comments as described under SUPPLEMENTARY INFORMATION . Any commodities listed in this proposal treated with the pesticides subject to this proposal, and in the channels of trade following the tolerance revocations, shall be subject to FFDCA section 408(1)(5), as established by FQPA. Under this section, any residues of these pesticides in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of the Food and Drug Administration that: 1. The residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA, and 2. The residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption from a tolerance. Evidence to show that food was lawfully treated may include records that verify the dates when the pesticide was applied to such food. III. Are the Proposed Actions Consistent with International Obligations? The tolerance revocations in this proposal are not discriminatory and are designed to ensure that both domestically produced and imported foods meet the food safety standard established by the FFDCA. The same food safety standards apply to domestically produced and imported foods. In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international MRLs established by the Codex Alimentarius Commission, as required by section 408(b)(4) of the FFDCA. The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level in a notice published for public comment. EPA's effort to harmonize with Codex MRLs is summarized in the tolerance reassessment section of individual REDs and TREDs, and in the Residue Chemistry document which supports the RED and TRED, as mentioned in Unit II.A. Specific tolerance actions in this proposed rule and how they compare to Codex MRLs (if any) are discussed in Unit II.A. IV. Statutory and Executive Order Reviews In this proposed rule, EPA is proposing to establish tolerances under FFDCA section 408(e), or also modify and revoke specific tolerances established under FFDCA section 408. The Office of Management and Budget
(OMB)has exempted these types of actions (e.g., establishment and modification of a tolerance and tolerance revocation for which extraordinary circumstances do not exist) from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this 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 as required by Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994); or OMB review or any other Agency action under Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq.* ), the Agency previously assessed whether establishment of tolerances, exemptions from tolerances, raising of tolerance levels, expansion of exemptions, or revocations might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. These analyses for tolerance establishments and modifications, and for tolerance revocations were published on May 4, 1981 (46 FR 24950) and on December 17, 1997 (62 FR 66020), respectively, and were provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticides listed in this proposed rule, the Agency hereby certifies that this proposed action will not have a significant negative economic impact on a substantial number of small entities. In a memorandum dated May 25, 2001, EPA determined that eight conditions must all be satisfied in order for an import tolerance or tolerance exemption revocation to adversely affect a significant number of small entity importers, and that there is a negligible joint probability of all eight conditions holding simultaneously with respect to any particular revocation. (This Agency document is available in the docket of this proposed rule). Furthermore, for the pesticides named in this proposed rule, the Agency knows of no extraordinary circumstances that exist as to the present proposal that would change EPA's previous analysis. Any comments about the Agency's determination should be submitted to EPA along with comments on the proposal, and will be addressed prior to issuing a final rule. 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 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This 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: May 30, 2007. Debra Edwards, Director, 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 180.103 is revised to read as follows: § 180.103 Captan; tolerances for residues. (a)(1) *General* . Tolerances are established for residues of the fungicide, captan (N-trichloromethylthio-4-cyclohexene-1,2-dicarboximide) in or on the following commodities: Commodity Parts per million Almond 0.25 Almond, hulls 75.0 Animal feed, nongrass, group 18 0.05 Apple 25.0 Apricot 10.0 Blueberry 20.0 Caneberry, subgroup 13A 25.0 Cherry, sweet 50.0 Cherry, tart 50.0 Cotton, undelinted seed 0.05 Dill, seed 0.05 Flax, seed 0.05 Grape 25.0 Grain, cereal, forage, fodder and straw, group 16 0.05 Grain, cereal, group 15 0.05 Grass, forage 0.05 Grass, hay 0.05 Nectarine 25.0 Okra 0.05 Peach 15.0 Peanut 0.05 Peanut, hay 0.05 Pear 25.0 Plum, prune, fresh 10.0 Rapeseed, forage 0.05 Rapeseed, seed 0.05 Safflower, seed 0.05 Sesame, seed 0.05 Strawberry 20.0 Sunflower, seed 0.05 Vegetable, brassica leafy, group 5 0.05 Vegetable, bulb, group 3 0.05 Vegetable, cucurbit, group 9 0.05 Vegetable, foliage of legume, group 7 0.05 Vegetable, fruiting, group 8 0.05 Vegetable, leafy, except brassica, group 4 0.05 Vegetable, leaves of root and tuber, group 2 0.05 Vegetable, legume, group 6 0.05 Vegetable, root and tuber, group 1 0.05
(2)Tolerances are established for the combined residues of the fungicide, captan (N-trichloromethylthio-4-cyclohexene-1,2-dicarboximide) and its metabolite 1,2,3,6-tetrahydrophthalimide (THPI), measured at THPI, in or on the following commodities: Commodity Parts per million Cattle, fat 0.15 Cattle, meat 0.20 Cattle, meat byproducts 0.30 Goat, fat 0.15 Goat, meat 0.20 Goat, meat byproducts 0.30 Hog, fat 0.15 Hog, meat 0.20 Hog, meat byproducts 0.30 Horse, fat 0.15 Horse, meat 0.20 Horse, meat byproducts 0.30 Milk 0.10 Sheep, fat 0.15 Sheep, meat 0.20 Sheep, meat byproducts 0.30
(b)*Section 18 emergency exemptions* . [Reserved]
(c)*Tolerances with regional registrations* . [Reserved]
(d)*Indirect or inadvertent residues* . [Reserved] 3. Section 180.142 is revised to read as follows: § 180.142 2, 4-D; tolerances for residues
(a)*General* . Tolerances are established for residues of the herbicide, plant regulator, and fungicide 2, 4-D (2,4-dichlorophenoxyacetic acid), both free and conjugated, determined as the acid, in or on the following food commodities: Commodity Parts per million Almond hulls 0.1 Asparagus 5.0 Barley, bran 4.0 Barley, grain 2.0 Barley, straw 50 Berry, group 13 0.2 Cattle, fat 0.3 Cattle, kidney 4.0 Cattle, meat 0.3 Cattle, meat byproducts, except kidney 0.3 Corn, field, forage 6.0 Corn, field, grain 0.05 Corn, field, stover 50 Corn, pop, grain 0.05 Corn, pop, stover 50 Corn, sweet, forage 6.0 Corn, sweet, kernel plus cob with husks removed 0.05 Corn, sweet, stover 50 Fish 0.1 Fruit, citrus, group 10 3.0 Fruit, pome, group 11 0.1 Fruit, stone, group 12 0.1 Goat, fat 0.3 Goat, kidney 4.0 Goat, meat 0.3 Goat, meat byproducts, except kidney 0.3 Grain, aspirated fractions 40 Grape 0.1 Grass, forage 360 Grass, hay 300 Hop, dried cones 0.2 Horse, fat 0.3 Horse, kidney 4.0 Horse, meat 0.3 Horse, meat byproducts, except kidney 0.3 Millet, forage 25 Millet, grain 2.0 Millet, straw 50 Milk 0.05 Nut, tree, group 14 0.2 Oat, forage 25 Oat, grain 2.0 Oat, straw 50 Pistachio 0.05 Potato 0.4 Rice, grain 0.5 Rice, hulls 2.0 Rice, straw 10 Rye, bran 4.0 Rye, forage 25 Rye, grain 2.0 Rye, straw 50 Sheep, fat 0.3 Sheep, kidney 4.0 Sheep, meat 0.3 Sheep, meat byproducts, except kidney 0.3 Shellfish 1.0 Sorghum, grain, forage 0.2 Sorghum, grain, grain 0.2 Sorghum, grain, stover 0.2 Soybean, forage 0.02 Soybean, hay 2.0 Soybean, seed 0.02 Strawberry 0.1 Sugarcane, cane 0.05 Sugarcane, molasses 0.2 Vegetable, leaves of root and tuber, except potato, group 2 0.1 Vegetable, root and tuber, except potato, group 1 0.1 Wheat, bran 4.0 Wheat, forage 25 Wheat, grain 2.0 Wheat, straw 50
(b)*Section 18 emergency exemptions* . [Reserved]
(c)*Tolerances with regional registrations* . Tolerances with regional registration, as defined in § 180.1(m) are established for residues of the herbicide, plant regulator, and fungicide 2, 4-D (2,4-dichlorophenoxyacetic acid), both free and conjugated, determined as the acid, in or on the following food commodities: Commodity Parts per million Rice, wild, grain 0.05
(d)*Indirect or inadvertent residues* . Tolerances are established for indirect or inadvertent residues of the herbicide, plant regulator, and fungicide 2, 4-D (2,4-dichlorophenoxyacetic acid), both free and conjugated, determined as the acid, in or on the following food commodities: Commodity Parts per million Animal feed, nongrass, group 18 0.2 Avocado 0.05 Dill, seed 0.05 Cotton, undelinted seed 0.05 Okra 0.05 Vegetable, brassica leafy, group 5 0.4 Vegetable, bulb, group 3 0.05 Vegetable, cucurbit, group 9 0.05 Vegetable, foliage of legume, group 7 0.2 Vegetable, fruiting, group 8 0.05 Vegetable, leafy, except brassica, group 4 0.4 Vegetable, legume, group 6 0.05 4. Section 180.172 is revised to read as follows: § 180.172 Dodine; tolerances for residues.
(a)*General* . Tolerances are established for the fungicide dodine (n-dodecylguanidine acetate) in or on the following food commodities: Commodity Parts per million Apple 5.0 Apple, wet pomace 15.0 Cherry, sweet 3.0 Cherry, tart 3.0 Peach 5.0 Pear 5.0 Pecan 0.3 Strawberry 5.0 Walnut 0.3
(b)*Section 18 emergency exemptions* . [Reserved]
(c)*Tolerances with regional registrations* . [Reserved]
(d)*Indirect or inadvertent residues* . [Reserved] 5. Section 180.185 is revised to read as follows: § 180.185 DCPA; tolerances for residues.
(a)*General* . Tolerances for the combined residues of the herbicide dimethyl tetrachloroterephthalate
(DCPA)and its metabolites monomethyltetrachloroterephthalate
(MTP)and tetrachloroterephthalic acid
(TCP)(calculated as dimethyl tetrachloroterephthalate) are established in or on the following food commodities: Commodity Parts per million Cantaloupe 1.0 Garlic 1.0 Ginseng 2.0 Horseradish 2.0 Muskmelon 1.0 Onion, bulb 1.0 Strawberry 2.0 Tomato 1.0 Watermelon 1.0
(b)*Section 18 emergency exemptions* . [Reserved]
(c)*Tolerances with regional registrations* . Tolerances with regional registration, as defined in § 180.1(m) for the combined inadvertent residues of the herbicide dimethyl tetrachloroterephthalate
(DCPA)and its metabolites monomethyl tetrachloroterephthalate acid
(MTP)and terachlorophthalic acid
(TCP)(calculated as DCPA) in or on the following food commodities: Commodity Parts per million Radish, roots 2.0 Radish, tops 15.0
(d)*Indirect or inadvertent residues* . Tolerances for the combined indirect or inadvertent residues of the herbicide dimethyl tetrachloroterephthalate
(DCPA)and its metabolites monomethyl tetrachloroterephthalate acid
(MTP)and terachlorophthalic acid
(TCP)(calculated as DCPA) in or on the following food commodities: Commodity Parts per million Basil, dried leaves 20.0 Basil, fresh leaves 5.0 Bean, dry 2.0 Bean, mung, seed 2.0 Bean, snap, succulent 2.0 Celeriac 2.0 Chicory, roots 2.0 Chicory, tops 5.0 Chive 5.0 Coriander, leaves 5.0 Corn, field, forage 0.4 Corn, field, grain 0.05 Corn, field, stover 0.4 Corn, pop, forage 0.4 Corn, pop, grain 0.05 Corn, pop, stover 0.4 Corn, sweet, forage 0.4 Corn, sweet, kernel plus cob with husks removed 0.05 Corn, sweet, stover 0.4 Cotton, undelinted seed 0.2 Cucumber 1.0 Dill 5.0 Eggplant 1.0 Lettuce 2.0 Marjoram 5.0 Parsley, dried leaves 20.0 Parsley, leaves 5.0 Pea, blackeyed, seed 2.0 Pepper 2.0 Pimento 2.0 Potato 2.0 Radicchio 5.0 Radish, oriental, roots 2.0 Radish, oriental, tops 2.0 Rutabaga 2.0 Soybean 2.0 Squash, summer 1.0 Squash, winter 1.0 Sweet potato 2.0 Turnip, roots 2.0 Turnip, tops 5.0 Vegetable, brassica, leafy, group 5 5.0 Yam, true, tuber 2.0 6. Section 180.293 is amended by revising paragraph (a)(1) to read as follows: § 180.293 Endothall; tolerances for residues.
(a)*General* .
(1)Tolerances are established for the combined residues of endothall, 7-oxabicyclo [2, 2, 1] heptane-2, 3-dicarboxylic acid and its monomethyl ester in or on the following food commodities: Commodity Parts per million Cotton, undelinted seed 0.1 Fish 0.1 Hop, dried cones 0.1 Potato 0.1 Rice, grain 0.05 Rice, straw 0.05 7. Section 180.317 is amended by revising the table in paragraph (a), and paragraphs (b), (c), and (d), to read as follows: § 180.317 Propyzamide; tolerances for residues.
(a)*General* . * * * Commodity Parts per million Alfalfa, seed 10.0 Animal feed, nongrass, group 18 10.0 Apple 0.1 Artichoke, globe 0.01 Blackberry 0.05 Blueberry 0.05 Boysenberry 0.05 Cattle, fat 0.2 Cattle, kidney 0.4 Cattle, liver 0.4 Cattle, meat 0.02 Cattle, meat byproducts, except kidney and liver 0.02 Egg 0.02 Endive 1.0 Fruit, stone, group 12 0.1 Goat, fat 0.2 Goat, kidney 0.4 Goat, liver 0.4 Goat, meat 0.02 Goat, meat byproducts, except kidney and liver 0.02 Grape 0.1 Hog, fat 0.2 Hog, kidney 0.4 Hog, liver 0.4 Hog, meat 0.02 Hog, meat byproducts, except kidney and liver 0.02 Horse, fat 0.2 Horse, kidney 0.4 Horse, liver 0.4 Horse, meat 0.02 Horse, meat byproducts, except kidney and liver 0.02 Lettuce, head 1.0 Milk 0.02 Pear 0.1 Poultry, fat 0.02 Poultry, liver 0.2 Poultry, meat 0.02 Poultry, meat byproducts, except liver 0.02 Radicchio 2.0 Raspberry 0.05 Sheep, fat 0.2 Sheep, kidney 0.4 Sheep, liver 0.4 Sheep, meat 0.02 Sheep, meat byproducts, except kidney and liver 0.02
(b)*Section 18 emergency exemptions* . Time-limited tolerances are established for the combined residues of the herbicide propyzamide and its metabolites (containing the 3,5-dichlorobenzoyl moiety calculated as 3,5-dichloro-N(1,1-dimethyl-2-propynyl)benzamide) in or on the following food commodities: Commodity Parts per million Expiration/Revocation Date Cranberry 0.05 12/31/09
(c)*Tolerances with regional registrations* . Tolerances with regional registration, as defined in § 180.1(m) are established for the combined residues of the herbicide propyzamide and its metabolites (containing the 3,5-dichlorobenzoyl moiety calculated as 3,5-dichloro-N(1,1-dimethyl-2-propynyl)benzamide) in or on the following food commodities: Commodity Parts per million Pea, field, seed 0.05 Rhubarb 0.1
(d)*Indirect or inadvertent residues* . Tolerances are established for the combined indirect or inadvertent residues of the herbicide propyzamide and its metabolites (containing the 3,5-dichlorobenzoyl moiety calculated as 3,5-dichloro-N(1,1-dimethyl-2-propynyl)benzamide) in or on the following food commodities: Commodity Parts per million Grain, cereal, forage, group 16 0.6 Grain, cereal, hay, group 16 0.2 Grain, cereal, straw, group 16 0.3 8. Section 180.345 is amended by revising paragraph
(a)to read as follows: § 180.345 Ethofumesate; tolerances for residues.
(a)*General* . Tolerances for the combined residues of the herbicide ethofumesate (2-ethoxy-2,3-dihydro-3,3-dimethyl-5-benzofuranyl methanesulfonate) and its metabolites 2-hydroxy-2,3-dihydro-3,3-dimethyl-5-benzofuranyl methanesulfonate and 2,3-dihydro-3,3-dimethyl-2-oxo-5-benzofuranyl methanesulfonate both calculated as parent compound in or on the following food commodities: Commodity Parts per million Beet, garden, roots 0.5 Beet, garden, tops 5.0 Beet, sugar, molasses 0.5 Beet, sugar, refined sugar 0.2 Beet, sugar, roots 0.3 Beet, sugar, tops 4.0 Cattle, fat 0.05 Cattle, meat 0.05 Cattle, meat byproducts 0.05 Garlic 0.25 Goat, fat 0.05 Goat, meat 0.05 Goat, meat byproducts 0.05 Grass, straw 1.0 Horse, fat 0.05 Horse, meat 0.05 Horse, meat byproducts 0.05 Onion, bulb 0.25 Shallot, bulb 0.25 Shallot, fresh leaves 0.25 Sheep, fat 0.05 Sheep, meat byproducts 0.05 Sheep, meat 0.05 9. Section 180.378 is revised to read as follows: § 180.378 Permethrin; Tolerances for residues.
(a)*General.* Tolerances are established for the combined residues of the insecticide cis- and trans-permethrin isomers [cis-(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate] and [trans-(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate] in/on the following food commodities: Commodity Parts per million Alfalfa, forage 20 Alfalfa, hay 45 Almond 0.05 Almond, hulls 20 Artichoke, globe 5.0 Asparagus 2.0 Avocado 1.0 Broccoli 2.0 Brussels sprouts 1.0 Cabbage 6.0 Cattle, fat 1.5 Cattle, meat 0.10 Cattle, meat byproducts 0.10 Cauliflower 0.5 Cherry, sweet 4.0 Cherry, tart 4.0 Corn, field, forage 50 Corn, field, grain 0.05 Corn, field, stover 30 Corn, pop, grain 0.05 Corn, pop, stover 30 Corn, sweet, forage 50 Corn, sweet, kernel plus cob with husks removed 0.10 Corn, sweet, stover 30 Egg 0.10 Eggplant 0.50 Fruit, pome, group 11 0.05 Garlic, bulb 0.10 Grain, aspirated fractions 0.50 Goat, fat 1.5 Goat, meat 0.10 Goat, meat byproducts 0.10 Hazelnut 0.05 Hog, fat 0.05 Hog, meat 0.05 Hog, meat byproducts 0.05 Horse, fat 1.5 Horse, meat 0.10 Horse, meat byproducts 0.10 Horseradish 0.50 Kiwifruit 2.0 Leaf petioles subgroup 4B 5.0 Lettuce, head 20 Milk, fat (reflecting 0.88 ppm in whole milk) 3.0 Mushroom 5.0 Onion, bulb 0.10 Peach 1.0 Pepper, bell 0.50 Pistachio 0.10 Potato 0.05 Poultry, fat 0.15 Poultry, meat 0.05 Poultry, meat byproducts 0.05 Sheep, fat 1.5 Sheep, meat 0.10 Sheep, meat byproducts 0.10 Soybean, seed 0.05 Spinach 20 Tomato 2.0 Vegetable, cucurbit, group 9 1.5 Vegetable, leafy, except brassica, group 4 20 Walnut 0.05 Watercress 5.0
(b)*Section 18 emergency exemptions* . [Reserved]
(c)*Tolerances with regional registrations* . Tolerances with regional registration, as defined in § 180.1(m) are established for the combined residues of the insecticide cis- and trans-permethrin isomers [cis-(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate] and [trans-(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate] in/on the following food commodities: Commodity Parts per million Collards 15 Grass, forage 15 Grass, hay 15 Papaya 1.0 Turnip, tops 10 Turnip, roots 0.20
(d)*Indirect or inadvertent residues* . [Reserved] 10. Section 180.406 is amended by revising the table in paragraph
(a)to read as follows: § 180.406 Dimethipin; tolerances for residues
(a)*General* . * * * Commodity Parts per million Cotton, undelinted seed 0.50 Cattle, meat 0.01 Cattle, meat byproducts 0.01 Goat, meat 0.01 Goat, meat byproducts 0.01 Hog, meat 0.01 Hog, meat byproducts 0.01 Horse, meat 0.01 Horse, meat byproducts 0.01 Sheep, meat 0.01 Sheep, meat byproducts 0.01 11. Section 180.421 is amended by revising the entry for “Apple” in the table in paragraph
(a)to read as follows: § 180.421 Fenarimol; tolerances for residues
(a)*General* . * * * Commodity Parts per million Apple 0.3 * * * * * 12. Section 180.433 is amended by revising the entries for “Bean, dry” and “Bean, snap, succulent” in the table in paragraph
(a)to read as follows: § 180.433 Fomesafen; tolerances for residues
(a)*General* . * * * Commodity Parts per million Bean, dry 0.05 Bean, snap, succulent 0.05 * * * * * [FR Doc. E7-10863 Filed 6-5-07; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 271 [FRL-8322-4] Ohio: Final Authorization of State Hazardous Waste Management Program Revision AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: Ohio has applied to EPA for final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has reviewed Ohio's application and has preliminarily determined that these changes satisfy all requirements needed to qualify for final authorization, and is proposing to authorize the State's changes. DATES: Comments on this proposed rule must be received on or before July 6, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-RCRA-2007-0397 by one of the following methods: *http://www.regulations.gov* : Follow the on-line instructions for submitting comments. *E-mail:* *westefer.gary@epa.gov* . *Mail:* Gary Westefer, Ohio Regulatory Specialist, DM-7J, U.S. EPA, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. *Instructions:* Direct your comments to Docket ID Number EPA-R05-RCRA-2007-0397. 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 or any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at *http://www.epagov/epahome/dockets.htm* . *Docket:* All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some of the 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. You may view and copy Ohio's application from 9 a.m. to 4 p.m. at the following addresses: U.S. EPA Region 5, DM-7J, 77 West Jackson Boulevard, Chicago, Illinois, contact: Gary Westefer
(312)886-7450; or Ohio Environmental Protection Agency, Lazarus Government Center, 50 West Town Street, Suite 700, Columbus, Ohio, contact: Jeff Mayhugh
(614)644-2950. FOR FURTHER INFORMATION CONTACT: Gary Westefer, Ohio Regulatory Specialist, U.S. EPA Region 5, DM-7J, 77 West Jackson Boulevard, Chicago, Illinois 60604,
(312)886-7450, e-mail *westefer.gary@epa.gov* . SUPPLEMENTARY INFORMATION: A. Why Are Revisions to State Programs Necessary? States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations
(CFR)parts 124, 260 through 266, 268, 270, 273 and 279. B. What Decisions Have We Made in This Rule? We conclude that Ohio's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we propose to grant Ohio final authorization to operate its hazardous waste program with the changes described in the authorization application. Ohio has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Ohio, including issuing permits, until the State is granted authorization to do so. C. What Is the Effect of Today's Authorization Decision? The effect of this decision is that a facility in Ohio subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Ohio has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to: 1. Do inspections, and require monitoring, tests, analyses or reports 2. Enforce RCRA requirements and suspend or revoke permits 3. Take enforcement actions regardless of whether the State has taken its own actions This action does not impose additional requirements on the regulated community because the regulations for which Ohio is being authorized by today's action are already effective, and are not changed by today's action. D. What Happens if EPA Receives Comments That Oppose This Action? If EPA receives comments that oppose this authorization, we will address all public comments in a later **Federal Register** . You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time. E. What Has Ohio Previously Been Authorized for? Ohio initially received final authorization on June 28, 1989, effective June 30, 1989 (54 FR 27170) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on April 8, 1991, effective June 7, 1991 (56 FR 14203) as corrected June 19, 1991, effective August 19,1991 (56 FR 28088); July 27, 1995, effective September 25, 1995 (60 FR 38502); October 23, 1996, effective December 23, 1996 (61 FR 54950); January 24, 2003, effective January 24, 2003 (68 FR 3429); and January 20, 2006, effective January 20, 2006 (71 FR 3220). F. What Changes Are We Authorizing With Today's Action? On January 22, 2007, Ohio submitted a final complete program revision application, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make a final decision, subject to receipt of written comments that oppose this action, that Ohio's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we propose to grant Ohio final authorization for the following program changes: Table 1.—Ohio's Analogs to the Federal Requirements Description of federal requirement (include checklist #, if relevant) Federal Register date and page (and/or RCRA statutory authority) Analogous state authority Toxicity Characteristic; Hydrocarbon Recovery Operations Checklist 80 as amended October 5, 1990, 55 FR 40834 OAC 3745-51-04; Effective April 15, 1993. Checklist 80.1 as amended February 1, 1991, 56 FR 3978 Checklist 80.2 April 2, 1991, 56 FR 13406 Burning of Hazardous Waste in Boilers and Industrial Furnaces Checklist 85 February 21, 1991, 56 FR 7134 OAC 3745-50-10; 3745-50-11; 3745-50-40; 3745-50-44; 3745-50-51; 3745-50-66; 3745-51-02; 3745-51-04; 3745-51-06; 3745-55-12; 3745-57-40; 3745-66-12; 3745-66-13; 3745-68-40; 3745-266-100; 3745-266-101; 3745-266-102; 3745-266-103; 3745-266-104; 3745-266-105; 3745-266-106; 3745-266-107; 3745-266-108; 3745-266-109; 3745-266-110; 3745-266-111; 3745-266-112; Effective December 7, 2004. Burning of Hazardous Waste in Boilers and Industrial Furnaces; Corrections and Technical Amendments I Checklist 94 July 17, 1991, 56 FR 32688 OAC 3745-50-40; 3745-50-44; 3745-50-51; 3745-50-66; 3745-51-03; 3745-51-06; 3745-68-70; 3745-266-100; 3745-266-102; 3745-266-103; 3745-266-104; 3745-266-106; 3745-266-107; 3745-266-108; 3745-266-109; 3745-266-110; 3745-266-112; Effective December 7, 2004. Burning of Hazardous Waste in Boilers and Industrial Furnaces Technical Amendments II Checklist 96 August 27, 1991, 56 FR 42504 OAC 3745-51-02; 3745-66-12; 3745-66-13; 3745-266-100; 3745-266-102; 3745-266-103; 3745-266-104; 3745-266-108; 3745-266-109; 3745-266-110; 3745-266-111; 3745-266-112; Effective December 7, 2004. Coke Ovens Administrative Stay Checklist 98 September 5, 1991, 56 FR 43754 OAC 3745-266-100; Effective December 7, 2004. Liners and Leak Detection Systems for Hazardous Waste Land Disposal Units Checklist 100 January 29, 1992, 57 FR 3462 OAC 3745-50-10; 3745-50-44; 3745-54-15; 3745-54-19; 3745-54-73; 3745-56-21; 3745-56-22; 3745-56-23; 3745-56-26; 3745-56-28; 3745-56-51; 3745-56-52; 3745-56-53; 3745-56-54; 3745-57-02; 3745-57-03; 3745-57-04; 3745-57-06; 3745-57-10; 3745-65-15; 3745-65-19; 3745-65-73; 3745-67-21; 3745-67-22; 3745-67-23; 3745-67-26; 3745-67-28; 3745-67-54; 3745-67-55; 3745-67-59; 3745-67-60; 3745-68-02; 3745-68-03; 3745-68-04; 3745-68-05; 3745-68-10; Effective December 7, 2004. Coke by-product Exclusion Checklist 105 June 22, 1992, 57 FR 27880 OAC 3745-51-04; 3745-266-100; Effective December 7, 2004. Burning of Hazardous Waste in Boilers and Industrial Furnaces; Technical Amendment III Checklist 111 August 25, 1992, 57 FR 38558 OAC 3745-50-10; 3745-50-11; 3745-51-02; 3745-54-01; 3745-65-01; 3745-266-100; 3745-266-101; 3745-266-103; 3745-266-104; 3745-266-106; 3745-266-107; 3745-266-108; 3745-266-112; Effective December 7, 2004. Burning of Hazardous Waste in Boilers and Industrial Furnaces; Amendment IV Checklist 114 September 30, 1992, 57 FR 44999 OAC 3745-266-103; Effective December 7, 2004. Corrective Action Management Units and Temporary Units; Corrective Action Provisions Under Subtitle C Checklist 121 February 16, 1993, 58 FR 8658 OAC 3745-50-10; 3745-50-51; 3745-54-03; 3745-55-011; 3745-57-72; 3745-57-73; 3745-65-01; 3745-270-02; Effective December 7, 2000. Requirements for Preparation, Adoption and Submittal of Implementation Plans Checklist 125 July 20, 1993, 58 FR 38816 OAC 3745-50-11; 3745-266-104; 3745-266-106; Effective December 7, 2004. Hazardous Waste Management System; Testing and Monitoring Activities Checklist 126 as amended August 31, 1993, 58 FR 46040 OAC 3745-50-11; 3745-50-19; 3745-50-44; 3745-50-62; 3745-50-66; 3745-51-20; 3745-51-22; 3745-51-24; 3745-55-90; 3745-57-14; 3745-66-90; 3745-68-14; 3745-270-07; Effective December 7, 2004. Checklist 126.1 September 19, 1994, 59 FR 47980 3745-270-40; Effective February 8, 2005. Burning of Hazardous Waste in Boilers and Industrial Furnaces, Revised Bevill Exemption Levels Checklist 127 November 9, 1993, 58 FR 59598 OAC 3745-266-112; Effective December 7, 2004. Solid Waste, Hazardous Waste, Oil Discharge and Superfund Programs; Removal of Legally Obsolete Rules Checklist 144 June 29, 1995, 60 FR 33912 OAC 3745-50-10; 3745-50-40; 3745-51-31; 375-266-103; 3745-266-104; Effective December 7, 2004. RCRA Expanded Public Participation Checklist 148 December 11, 1995, 60 FR 63417 OAC 3745-50-10; 3745-50-39; 3745-50-44; 3745-50-57; 3745-50-58; 3745-50-62; 3745-50-66; Effective December 7, 2004. Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties Checklist 156 February 12, 1997, 62 FR 6622 OAC 3745-50-10; 3745-50-45; 3745-50-51; 3745-51-02; 3745-52-10; 3745-52-20; 3745-53-10; 3745-54-01; 3745-54-70; 3745-65-01; 3745-65-70; 3745-205-200; 3745-205-201; 3745-205-202; 3745-256-200; 3745-256-201; 3745-256-202; 3745-266-200; 3745-266-201; 3745-266-202; 3745-266-203; 3745-266-204; 3745-266-205; 3745-266-206; Effective December 7, 2004. Hazardous Waste Management System; Testing and Monitoring Activities Checklist 158 June 13, 1997, 62 FR 32452 OAC 3745-50-51; 3745-266-103; 3745-266-104; 3745-266-106; 3745-266-107; Effective December 7, 2004. Kraft Mill Steam Stripper Condensate Exclusion Checklist 164 April 15, 1998, 63 FR 18504 OAC 3745-51-03; 3745-51-04; 3745-51-06; 3745-51-30; 3745-51-31; 3745-51-32; 3745-266-100; Effective December 7, 2004; 3745-270-40; Effective February 8, 2005. Standards Applicable to Owners/Operators of Closed and Closing Hazardous Waste Management Facilities: Post-Closure Permit Requirement and Closure Process Checklist 174 October 22, 1998, 63 FR 56709 OAC 3745-50-44; 3745-50-45; 3745-54-90; 3745-55-10; 3745-55-12; 3745-55-18; 3745-55-40; 3745-65-90; 3745-66-10; 3745-66-12; 3745-66-18; 3745-66-21; 3745-66-40; Effective December 7, 2004. Hazardous Remediation Waste Management Requirements Checklist 175 November 30, 1998, 63 FR 65873 OAC 3745-50-10; 3745-50-40; 3745-50-42; 3745-50-51; Effective December 7, 2004. Universal Waste Rule Technical Amendment Checklist 176 December 24, 1998, 63 FR 71225 OAC 3745-266-80; 3745-273-09; Effective December 7, 2004. Guidelines Establishing Test Procedures for the Analysis of Oil and Grease and Non-Polar Material Under the CWA and RCRA Checklist 180 May 14, 1999, 64 FR 26315 OAC 3745-50-11; Effective December 7, 2004. Universal Waste: Lamp Rule Checklist 181 July 6, 1999, 64 FR 36465 OAC 3745-50-10; 3745-50-45; 3745-51-09; 3745-54-01; 3745-54-100; 3745-270-01; 3745-273-01; 3745-273-02; 3745-273-03; 3745-273-04; 3745-273-05; 3745-273-06; 3745-273-08; 3745-273-09; 3745-273-10; 3745-273-13; 3745-273-14; 3745-273-30; 3745-273-32; 3745-273-33; 3745-273-34; 3745-273-50; 3745-273-60; 3745-273-81; Effective December 7, 2004. NESHAPS: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors Checklist 182 as amended Checklist 182.1. September 30, 1999, 64 FR 52827 November 19, 1999, 64 FR 63209. OAC 3745-50-10; 3745-50-44; 3745-50-51; 3745-50-62; 3745-50-66; 3745-51-38; 3745-57-40; 3745-57-91; 3745-68-40; 3745-266-100; 3745-266-101; 3745-266-105; 3745-266-112; Effective July 27, 2001 and December 7, 2004. Wastewater Treatment Sludges from the Metal Finishing Industry; 180 Day Accumulation Time Checklist 184 March 8, 2000, 65 FR 12377 OAC 3745-52-34; Effective December 7, 2004. NESHAPS: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors; Technical Corrections Checklist 188 as amended Checklist 188.2. July 10, 2000, 65 FR 42292 July 3, 2001, 66 FR 35087. OAC 3745-50-51; 3745-51-38; 3745-57-40; Effective July 27, 2001. Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Chlorinated Aliphatics Production Wastes; Land Disposal Restrictions for Newly Identified Wastes; and CERCLA Hazardous Substance Designation and Reportable Quantities Checklist 189 November 8, 2000, 65 FR 67067 OAC 3745-51-11; 3745-51-30; 3745-51-32; 3745-270-33; 3745-270-48; Effective December 7, 2004; 3745-270-40; Effective February 8, 2005. Storage, Treatment, Transportation, and Disposal of Mixed Waste Checklist 191 May 16, 2001, 66 FR 27217 OAC 3745-266-210; 3745-266-220; 3745-266-235; 3745-266-240; 3745-266-250; 3745-266-255; 3745-266-260; 3745-266-305; 3745-266-310; 3745-266-315; 3745-266-345; 3745-266-350; 3745-266-355; Effective December 7, 2004. Revisions to the Mixture and Derived-From Rule Checklist 192A May 16, 2001, 66 FR 27266 OAC 3745-51-03; Effective December 7, 2004. Land Disposal Restrictions Correction Checklist 192B May 16, 2001, 66 FR 27266 OAC 3745-270-42; Effective December 7, 2004. Change of EPA Mailing Address Checklist 193 June 28, 2001, 66 FR 34734 OAC 3745-50-11; Effective December 7, 2004. Correction to the Hazardous Waste Identification Rule (HWIR): Revisions to the Mixture and Derived-From Rules Checklist 194 as amended October 3, 2001, 66 FR 50332 OAC 3745-51-03; Effective December 7, 2004. Checklist 194.1 December 3, 2001, 66 FR 60153. Identification and Listing of Hazardous Waste: Inorganic Chemical Manufacturing Wastes Checklist 195 as amended November 20, 2001, 66 FR 58257 OAC 3745-51-04; 3745-51-30; 3745-51-32; 3745-270-36; Effective December 7, 2004. Checklist 195.1 April 9, 2002, 67 FR 17119 3745-270-40; February 8, 2005. CAMU Amendments Checklist 196 January 22, 2002, 67 FR 2962 OAC 3745-50-10; 3745-57-70; 3745-57-71; 3745-57-72; 3745-57-74; 3745-57-75; Effective December 7, 2004. Table 2.—Equivalent State Initiated Changes Ohio amendment Description of change Sections affected and effective date Recycled Used Oil Management Standards Checklist 112, 57 FR 41566 Adds Federal Equivalent of 40 CFR 266.100 to Ohio's authorized Used Oil Rule OAC 3745-266-100; Effective December 7, 2004. Recovered Oil Exclusion; Petroleum Refining Industry Checklist 135, 59 FR 38536 Adds Federal Equivalent of 40 CFR 266.100 to Ohio's authorized Used Oil Rule OAC 3745-51-03; 3745-51-06; 3745-266-100; Effective December 7, 2004. Land Disposal Restrictions—Phase II—Universal Treatment Standards and Treatment Standards for Organic Toxicity Characteristics Wastes and Newly Listed Waste Checklist 137, 59 FR 47982 Adds Federal Equivalent of 40 CFR 266.100 to Ohio's authorized Land Disposal Restrictions—Universal Treatment Standards Rule OAC 3745-266-100; Effective December 7, 2004. Petroleum Refining Process Wastes Checklist 169, 63 FR 42110 as amended 63 FR 54356 Adds Federal Equivalent of 40 CFR 266.100 to Ohio's authorized Petroleum Refining Process Wastes Rule OAC 3745-266-100; Effective December 7, 2004. SB11 State Register, electronic rule filing, changes to JCARR jurisdiction and public notice requirements None. Effective September 15, 1999. SB265 Changes per SB265 (PUCO case fix); bill effective 10/17/2002 OAC 3745-50-10; 3745-50-11; 3745-50-19; 3745-50-38; 3745-50-39; 3745-50-40; 3745-50-41; 3745-50-43; 3745-50-44; 3745-50-46; 3745-50-51; 3745-50-53; 3745-50-62; 3745-50-66; 3745-51-03; 3745-51-04; 3745-51-05; 3745-51-06; 3745-51-08; 3745-51-11; 3745-51-20; 3745-51-21; 3745-51-22; 3745-51-23; 3745-51-24; 3745-51-30; 3745-51-32; 3745-51-35; 3745-51-38; 3745-52-10; 3745-52-11; 3745-52-12; 3745-52-20; 3745-52-34; 3745-52-53; 3745-52-54; 3745-52-56; 3745-53-20; 3745-53-30; 3745-54-01; 3745-54-13; 3745-54-18; 3745-54-52; 3745-54-73; 3745-54-98; 3745-55-12; 3745-55-13; 3745-55-42; 3745-55-43; 3745-55-45; 3745-55-51; 3745-55-75; 3745-55-90; 3745-55-93; 3745-55-98; 3745-56-21; 3745-56-51; 3745-57-03; 3745-57-14; 3745-57-40; 3745-57-71; 3745-57-72; 3745-57-73; 3745-54-74; 3745-57-75; 3745-57-91; 3745-65-01; 3745-65-13; 3745-65-52; 3745-65-73; 3745-66-13; 3745-66-42; 3745-66-43; 3745-66-44; 3745-66-45; 3745-66-47; 3745-66-48; 3745-66-90; 3745-66-93; 3745-66-96; 3745-66-98; 3745-66-101; 3745-68-05; 3745-68-14; 3745-68-40; 3745-69-30; 3745-205-101; 3745-266-20; 3745-266-23; 3745-266-100; 3745-266-102; 3745-266-103; 3745-266-104; 3745-266-105; 3745-266-106; 3745-266-107; 3745-266-109; 3745-266-111; 3745-266-112; 3745-266-201; 3745-266-203; 3745-266-205; 3745-266-210; 3745-266-240; 3745-266-250; 3745-266-315; 3745-266-345; 3745-266-350; 3745-270-01; 3745-270-02; 3745-270-03; 3745-270-04; 3745-270-07; 3745-270-31; 3745-270-42; 3745-270-45; 3745-270-48; 3745-270-50; 3745-273-03; 3745-273-09; 3745-273-13; 3745-273-14; 3745-273-33; 3745-273-34; 3745-273-81; 3745-279-10; 3745-279-11; 3745-279-22; 3745-279-42; 3745-279-43; 3745-279-45; 3745-279-51; 3745-279-54; 3745-279-55; 3745-279-62; 3745-279-64; 3745-279-73; Effective December 7, 2004; 3745-270-40; Effective February 8, 2005. HB432 Section 4 HB432, Hazardous Waste permit length changed to ten years, bill effective April 15, 2005 OAC 3745-50-54; Effective 10/14/2006. CL-FLAM References to “Flammable and Combustable Liquids Code” OAC 3745-50-11; 3745-55-98; 3745-66-98; 3745-66-101; 3745-266-111; Effective December 7, 2004. CL-FORM Manifest form number corrections, and other form number corrections OAC 3745-52-12; 3745-52-41; 3745-53-11; 3745-54-01; 3745-279-42; 3745-279-51; 3745-279-62; 3745-279-73; Effective December 7, 2004. CL-HWFB Removal of “HWFB” concept, and addition of authorities to DHWM rules, per HB95 (budget bill, HB95, effective 9/26/2003) OAC 3745-50-10; 3745-50-11; 3745-50-21; 3745-50-30; 3745-50-38; 3745-50-40; 3745-50-41; 3745-50-51; 3745-66-43; Effective December 7, 2004. CL-3010 References to “RCRA 3010” and its prior locations (includes Region 5's comments on the YR5
(J5)set on this subject) OAC 3745-50-40; 3745-51-01; 3745-51-04; 3745-51-06; 3745-51-07; 3745-51-08; 3745-51-20; 3745-57-83; 3745-266-21; 3745-266-22; 3745-266-23; 3745-266-70; 3745-266-80; 3745-273-60; 3745-279-42; 3745-279-51; 3745-279-62; 3745-279-73; Effective December 7, 2004. CL-R5COM Region 5's comments on the YR5
(J5)rules (not including the “RCRA 3010” comments) OAC 3745-50-10; Effective 12/07/04. CL-MEGA Cross-reference of subparts errors, inconsistencies, typos, etc. grouped with Set G (MegaSet) OAC 3745-50-01; 3745-50-10; 3745-50-40; 3745-50-41; 3745-50-42; 3745-50-43; 3745-50-44; 3745-50-45; 3745-50-46; 3745-50-48; 3745-50-51; 3745-50-53; 3745-50-57; 3745-50-58; 3745-50-62; 3745-51-01; 3745-51-02; 3745-51-03; 3745-51-04; 3745-51-05; 3745-51-06; 3745-51-07; 3745-51-08; 3745-51-09; 3745-51-11; 3745-51-20; 3745-51-21; 3745-51-22; 3745-51-23; 3745-51-24; 3745-51-30; 3745-51-31; 3745-51-33; 3745-51-35; 3745-51-38; 3745-52-10; 3745-52-11; 3745-52-12; 3745-52-34; 3745-52-41; 3745-52-50; 3745-52-51; 3745-52-52; 3745-52-53; 3745-52-54; 3745-52-55; 3745-52-56; 3745-52-60; 3745-52-70; 3745-53-10; 3745-53-11; 3745-53-12; 3745-53-20; 3745-53-30; 3745-54-01; 3745-54-03; 3745-54-10; 3745-54-11; 3745-54-12; 3745-54-14; 3745-54-15; 3745-54-16; 3745-54-17; 3745-54-18; 3745-54-30; 3745-54-50; 3745-54-52; 3745-54-70; 3745-54-71; 3745-54-73; 3745-54-74; 3745-54-76; 3745-54-90; 3745-54-94; 3745-54-98; 3745-55-10; 3745-55-11; 3745-55-12; 3745-55-13; 3745-55-16; 3745-55-17; 3745-55-18; 3745-55-19; 3745-55-40; 3745-55-43; 3745-55-45; 3745-55-51; 3745-55-71; 3745-55-75; 3745-55-78; 3745-55-90; 3745-55-93; 3745-55-97; 3745-55-98; 3745-56-20; 3745-56-21; 3745-56-26; 3745-56-28; 3745-56-31; 3745-56-50; 3745-56-51; 3745-56-54; 3745-56-59; 3745-56-78; 3745-56-83; 3745-57-02; 3745-57-03; 3745-57-05; 3745-57-10; 3745-57-14; 3745-57-17; 3745-57-40; 3745-57-41; 3745-57-42; 3745-57-44; 3745-57-73; 3745-57-83; 3745-57-91; 3745-65-01; 3745-65-10; 3745-65-11; 3745-65-12; 3745-65-13; 3745-65-14; 3745-65-15; 3745-65-16; 3745-65-17; 3745-65-30; 3745-65-37; 3745-65-50; 3745-65-52; 3745-65-70; 3745-65-71; 3745-65-73; 3745-65-74; 3745-65-76; 3745-65-90; 3745-65-92; 3745-66-10; 3745-66-11; 3745-66-13; 3745-66-14; 3745-66-16; 3745-66-17; 3745-66-18; 3745-66-19; 3745-66-40; 3745-66-43; 3745-66-44; 3745-66-45; 3745-66-47; 3745-66-48; 3745-66-70; 3745-66-71; 3745-66-90; 3745-66-93; 3745-66-96; 3745-66-97; 3745-66-98; 3745-67-20; 3745-67-21; 3745-67-22; 3745-67-23; 3745-67-26; 3745-67-28; 3745-67-50; 3745-67-54; 3745-67-70; 3745-67-79; 3745-67-80; 3745-68-01; 3745-68-02; 3745-68-14; 3745-68-40; 3745-68-81; 3745-69-01, 3745-69-30, 3745-266-80; 3745-270-01; 3745-270-02; 3745-270-03; 3745-270-04; 3745-270-07; 3745-270-09; 3745-270-31; 3745-270-42; 3745-270-45; 3745-270-48; 3745-270-50; 3745-273-01; 3745-273-02; 3745-273-03; 3745-273-04; 3745-273-05; 3745-273-10; 3745-273-13; 3745-273-14; 3745-273-17; 3745-273-20; 3745-273-30; 3745-273-32; 3745-273-33; 3745-273-34; 3745-273-37; 3745-273-40; 3745-273-50; 3745-273-54; 3745-273-56; 3745-273-60; 3745-273-70; 3745-273-81; 3745-279-10; 3745-279-11; 3745-279-12; 3745-279-22; 3745-279-24; 3745-279-42; 3745-279-43; 3745-279-45; 3745-279-46; 3745-279-51; 3745-279-54; 3745-279-55; 3745-279-56; 3745-279-57; 3745-279-58; 3745-279-61; 3745-279-62; 3745-279-64; 3745-279-65; 3745-279-71; 3745-279-73; 3745-279-74; 3745-279-81; Effective December 7, 2004; 3745-270-40; Effective February 8, 2005. CL-DIGIT 3-digit rule number reference corrections Rescinded rules: OAC 3745-49-031; 3745-50-221; 3745-50-222; 3745-50-311; 3745-50-312; 3745-50-313; 3745-50-314; 3745-50-315; 3745-50-316; 3745-55-01; 3745-55-011; 3745-56-33; 3745-56-60; 3745-57-72; 3745-58-30; 3745-58-31; 3745-58-32; 3745-58-33; 3745-58-60; 3745-58-70; 3745-66-991; 3745-66-992; 3745-68-011; 3745-218-01; 3745-218-011; 3745-218-02; 3745-248-01; 3745-248-011; 3745-248-02 Rescissions; Effective December 7, 2004. New and amended rules: 3745-50-10; 3745-50-19; 3745-50-20; 3745-50-23; 3745-50-24; 3745-50-25; 3745-50-26; 3745-50-27; 3745-50-28; 3745-50-29; 3745-50-30; 3745-50-40; 3745-50-44; 3745-50-45; 3745-50-46; 3745-50-48; 3745-50-51; 3745-50-57; 3745-51-01; 3745-51-02; 3745-51-03; 3745-51-04; 3745-51-05; 3745-51-06; 3745-51-07; 3745-51-08; 3745-51-09; 3745-51-20; 3745-51-32; 3745-51-38; 3745-52-10; 3745-52-11; 3745-52-34; 3745-52-41; 3745-52-70; 3745-53-12; 3745-54-01; 3745-54-03; 3745-54-12; 3745-54-13; 3745-54-14; 3745-54-16; 3745-54-17; 3745-54-18; 3745-54-52; 3745-54-73; 3745-54-74; 3745-54-76; 3745-54-90; 3745-54-91; 3745-54-98; 3745-54-99; 3745-54-100; 3745-54-101; 3745-55-10; 3745-55-11; 3745-55-12; 3745-55-13; 3745-55-17; 3745-55-18; 3745-55-40; 3745-55-42; 3745-55-43; 3745-55-45; 3745-55-51; 3745-55-71; 3745-55-75; 3745-55-93; 3745-56-31; 3745-56-50; 3745-56-59; 3745-56-80; 3745-57-03; 3745-57-10; 3745-57-17; 3745-57-71; 3745-57-73; 3745-57-83; 3745-57-92; 3745-65-01; 3745-65-12; 3745-65-13; 3745-65-14; 3745-65-16; 3745-65-17; 3745-65-52; 3745-65-56; 3745-65-73; 3745-65-74; 3745-66-10; 3745-66-11; 3745-66-12; 3745-66-13; 3745-66-19; 3745-66-40; 3745-66-42; 3745-66-43; 3745-66-45; 3745-66-71; 3745-66-90; 3745-66-93; 3745-66-100; 3745-66-101; 3745-68-05; 3745-68-81; 3745-69-01; 3745-205-100; 3745-205-101; 3745-205-102; 3745-256-100; 3745-256-101; 3745-256-102; 3745-266-20; 3745-266-21; 3745-266-22; 3745-266-23; 3745-266-70; 3745-266-80; 3745-270-04; 3745-270-07; 3745-270-31; 3745-270-50; 3745-273-01; 3745-273-02; 3745-273-03; 3745-273-13; 3745-273-17; 3745-273-33; 3745-273-37; 3745-273-54; 3745-273-60; 3745-279-10; 3745-279-12; 3745-279-22; 3745-279-45; 3745-279-54; 3745-279-64; 3745-279-81; Effective December 7, 2004. G. Where Are the Revised State Rules Different From the Federal Rules? Ohio has excluded the non-delegable Federal requirements at 40 CFR 268.5, 268.6, 268.42(b), 268.44, and 270.3. EPA will continue to implement those requirements. In this action, Ohio has chosen to remain more stringent in two rules. The first is the Hazardous Remediation Waste Management Requirements, (Checklist 175 above) by choosing not to adopt 40 CFR Sections 270.79 through 270.230 which allow for Remedial Action Plans (RAP). The RAP is considered to be less stringent. The second is the Liners and Leak Detection Systems for Hazardous Waste Disposal Units (Checklist 100 above). In this rule, Ohio is not adopting 40 CFR 270.4 which is the permit shield provision. Under Table 2 (Equivalent State Initiated Changes), sections 3745-50-33, 3745-50-34, 3745-50-35, and 3745-50-36 under HWFB, have also been amended. They are broader in scope fee rules, not authorizable in this action. This action involves no other more stringent or broader in scope State requirements. H. Who Handles Permits After the Authorization Takes Effect? Ohio will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization until they expire or are terminated. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Ohio is not yet authorized. I. How Does Today's Action Affect Indian Country (18 U.S.C. 1151) in Ohio? Ohio is not authorized to carry out its hazardous waste program in “Indian Country,” as defined in 18 U.S.C. 1151. Indian Country includes: 1. All lands within the exterior boundaries of Indian reservations within the State of Ohio; 2. Any land held in trust by the U.S. for an Indian tribe; and 3. Any other land, whether on or off an Indian reservation that qualifies as Indian Country. Therefore, EPA retains the authority to implement and administer the RCRA program in Indian Country. However, at this time, there is no Indian Country within the State of Ohio. J. What Is Codification and Is EPA Codifying Ohio's Hazardous Waste Program as Authorized in This Rule? Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. Ohio's rules, up to and including those revised June 7, 1991, as corrected August 19, 1991, have previously been codified through the incorporation-by-reference effective February 4, 1992 (57 FR 4162) . We reserve the amendment of 40 CFR part 272, subpart KK for the codification of Ohio's program changes until a later date. K. Statutory and Executive Order Reviews This proposed rule only authorizes hazardous waste requirements pursuant to RCRA 3006 and imposes no requirements other than those imposed by State law (see Supplementary Information, Section A. Why are Revisions to State Programs Necessary?). Therefore this rule complies with applicable executive orders and statutory provisions as follows: 1. Executive Order 18266: Regulatory Planning Review The Office of Management and Budget has exempted this rule from its review under Executive Order 12866 (58 FR 51735, October 4, 1993). 2. Paperwork Reduction Act This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). 3. Regulatory Flexibility Act After considering the economic impacts of today's rule on small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ), I certify that this rule will not have a significant economic impact on a substantial number of small entities. 4. Unfunded Mandates Reform Act Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). 5. Executive Order 13132: Federalism Executive Order 13132 (64 FR 43255, August 10, 1999) does not apply to this rule because it will not have federalism implications (i.e., 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). 6. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175 (65 FR 67249, November 9, 2000) does not apply to this rule because it will not have tribal implications (i.e., substantial direct effects on one or more Indian tribes, or 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.) 7. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks This rule is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant as defined in Executive Order 12866 and because the EPA does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. 8. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action as defined in Executive Order 12866. 9. National Technology Transfer Advancement Act EPA approves State programs as long as they meet criteria required by RCRA, so it would be inconsistent with applicable law for EPA, in its review of a State program, to require the use of any particular voluntary consensus standard in place of another standard that meets requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply to this rule. 10. Executive Order 12988 As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. 11. Executive Order 12630: Evaluation of Risk and Avoidance of Unanticipated Takings EPA has complied with Executive Order 12630 (53 FR 8859, March 18, 1988) by examining the takings implications of the rule in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the executive order. 12. *Executive Order 12898:* Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations Because this rule proposes authorization of pre-existing State rules and imposes no additional requirements beyond those imposed by State law and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994). 13. Congressional Review Act EPA will submit a report containing this rule and other information required by the Congressional Review Act (5 U.S.C. 801 et seq.) to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 271 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous materials transportation, Hazardous waste, Indians-lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements. Authority: This action is issued under the authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b). Dated: May 24, 2007. Walter Kovalick, Acting Regional Administrator, Region 5. [FR Doc. E7-10856 Filed 6-5-07; 8:45 am] BILLING CODE 6560-50-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 76 [CS Docket No. 98-120; FCC 07-71] Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission's Rules AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: In this document, the Commission seeks comment on the obligations of cable operators under Sections 614 (establishing mandatory carriage rights for local commercial television stations) and 615 (establishing mandatory carriage rights for noncommercial educational television stations) of the Communications Act of 1934 concerning the carriage of digital broadcast television signals after the conclusion of the digital television (“DTV”) transition. The Commission reiterates that broadcast signal delivered in high-definition to a cable system must be carried by that system in HDTV and requests comment on exactly what constitutes material degradation. The Commission proposes to provide more detail on the material degradation requirements adopted by the Commission in 2001 and requests comment on two alternatives. The Commission also offers for comment two proposals for ensuring that cable subscribers with analog television sets can continue to view all must-carry stations after the end of the DTV transition. DATES: Comments for this proceeding are due on or before July 16, 2007; reply comments are due on or before August 16, 2007. ADDRESSES: You may submit comments, identified by CS Docket No. 98-120, 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: For additional information on this proceeding, contact Eloise Gore, *Eloise.Gore@fcc.gov* of the Media Bureau, Policy Division,
(202)418-2120. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second Further Notice of Proposed Rulemaking (Second FNPRM), FCC 07-71, adopted on April 25, 2007, and released on May 4, 2007. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS ( *http://www.fcc.gov/cgb/ecfs/* ). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to *fcc504@fcc.gov* or call the Commission's Consumer and Governmental Affairs Bureau at
(202)418-0530 (voice),
(202)418-0432 (TTY). Initial Paperwork Reduction Act of 1995 Analysis The NPRM seeks comment on potential information collection requirements. The Commission will invite the general public to comment at a later date on any rules developed as a result of this proceeding that require the collection of information, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. The Commission will publish a separate notice seeking these comments from the public. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we will seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” Summary of the NPRM of Proposed Rulemaking I. Introduction 1. In this *Second Further Notice of Proposed Rulemaking (“Second FNPRM”)* , we address issues concerning the carriage of digital broadcast television signals after the conclusion of the digital television (“DTV”) transition. Section 614(b)(4)(B) of the Communications Act of 1934, as amended (the “Act”), directs the Commission to revise the mandatory signal carriage rules to reflect changes necessitated by the transition from analog to digital broadcasting. We believe that this *Second FNPRM* is warranted at this time in light of the recently established deadline for the end of analog broadcasts by full-power television licensees. Further, addressing these issues now will provide digital broadcasters and cable operators with adequate time to prepare to comply with any rules that we adopt. 2. In this *Second FNPRM* , we seek comment on the post-transition obligations of cable operators under Sections 614 (establishing mandatory carriage rights for local commercial television stations) and 615 (establishing mandatory carriage rights for noncommercial educational television stations) of the Communications Act of 1934, as amended (the “Act”). 3. First, we remind industry of our 2001 decision regarding material degradation (67 FR 17015-01): A broadcast signal delivered in HDTV [high-definition television] to a cable system must be carried by that system in HDTV. In addition, we seek comment on exactly what constitutes material degradation. 4. Furthermore, we address the statutory requirement that cable operators must make the signal transmitted by a broadcaster electing mandatory carriage viewable by all of their subscribers, and seek comment on how cable operators can implement this requirement after the end of analog broadcasting on February 17, 2009. Specifically, we propose that cable operators must comply with this “viewability” provision and ensure that cable subscribers with analog television sets are able to continue to view all must-carry stations after the end of the DTV transition by either:
(1)Carrying the digital signal in analog format, or
(2)carrying the signal only in digital format, provided that all subscribers have the necessary equipment to view the broadcast content. In the absence of such a requirement, analog cable subscribers (currently about 50% of all cable subscribers, or approximately 32 million households; Kagan reports that as of June 2006, there were 65.3 million cable subscribers) would no longer be able to view commercial must-carry stations or non-commercial stations after February 17, 2009. We believe such an outcome would adversely impact the DTV transition and would unduly burden millions of consumers. 5. In interpreting both of these statutory provisions, we are mindful of the need to minimize the burden imposed upon consumers by the end of analog broadcasting in order to facilitate the successful and timely conclusion of the DTV transition. The prohibition against material degradation ensures that cable subscribers who invest in a HDTV are not denied the ability to view broadcast signals transmitted in this improved format. The requirement that cable operators make must-carry stations viewable by all cable subscribers ensures that analog cable subscribers, who today are able to view all of their broadcast stations, do not lose access to those stations as a result of the switch to digital-only broadcasting. II. Background 6. Pursuant to Section 614(b)(4)(B) of the Act, the Commission initiated this proceeding in 1998 to address the responsibilities of cable television operators with respect to carriage of digital broadcasters in light of the significant changes to the broadcasting and cable television industries resulting from the conversion to digital operations; 63 FR 42330-01. 7. In the 2001 *First Report and Order* , the Commission concluded that broadcasters operating digital-only television stations are entitled to mandatory carriage under the Act. In an effort to support the ultimate conversion of digital broadcast signals and facilitate the return of the analog spectrum, the Commission also decided to permit a digital-only station, on an interim basis, to “demand that one of its HDTV [high-definition television] or SDTV [standard-definition television] signals be carried on the cable system for delivery to subscribers in an analog format.” 8. Now that Congress has established February 17, 2009 as the date certain for the end of analog broadcasts by full-power television licensees, we believe that the time has come for us to address the post-transition carriage responsibilities of cable operators under Sections 614 and 615—particularly in light of the fact that there will continue to be a large number of cable subscribers with legacy, analog-only television sets after the end of the DTV transition. This will be the case despite the steady rise in DTV display sales over the last several years. III. Discussion 9. As discussed below, the Communications Act requires that cable systems provide mandatory-carriage signals without material degradation and ensure that all subscribers can receive and view those signals. This *Second FNPRM* proposes to provide more detail on the material degradation requirements adopted by the Commission in 2001 and offers for comment two proposals for ensuring that cable subscribers with analog television sets can continue to view all must-carry stations after the end of the DTV transition. It also seeks comment on other issues that would be directly implicated by the proposals. A. Material Degradation—Sections 614(b)(4)(A) and 615(g)(2) 10. The Communications Act requires
(1)cable operators to carry local broadcast signals “without material degradation,” and
(2)the Commission to “adopt carriage standards to ensure that, to the extent technically feasible, the quality of signal processing and carriage provided by a cable system for the carriage of local commercial television stations will be no less than that provided by the system for carriage of any other type of signal.” As noted above, Section 614(b)(4)(B) of the Act directs the Commission “to establish any changes in the signal carriage requirements of cable television systems necessary to ensure cable carriage of such broadcast signals of local commercial television stations which have been changed” as a result of the transition from analog to digital broadcasting. 11. In the *1998 NPRM* , we solicited comments to determine the extent to which this provision precludes cable operators from altering a digital broadcast station signal when the transmission is processed at the system headend or in customer premises equipment. Some broadcasters argued that a digital signal would be materially degraded if it were not transmitted to the viewer in the format that the broadcaster intended. Other broadcasters sought to preclude cable operators from blocking or deleting any of the bits constituting the broadcast material. The *First Report and Order* concluded that cable operators are required to ensure that consumers with DTV equipment ( *e.g.* , Digital-Cable-Ready sets or DTV-ready sets connected to an HDTV digital cable set-top box) are able to view the digital signal in its original format— *e.g.* , in high definition (“HD”) if delivered by the broadcaster in HD. 12. As noted above, we previously determined in the *First Report and Order* that a broadcast signal delivered to the cable headend in HD must be carried in HD in order to comply with the prohibition on material degradation. We continue to require such carriage and reiterate that requirement. We now propose revisions to the material degradation requirements set forth in the *First Report and Order* with respect to carriage of bits in the broadcast signal. Specifically, we propose to move from a subjective to objective measure. For instance, we seek comment on whether we should require that all primary video and program-related content bits transmitted by the broadcaster (the “content bits”) be carried to avoid material degradation. Alternatively, we seek comment on whether the Commission's existing non-discrimination requirement is a better objective test for material degradation. In the *First Report and Order* , the Commission prohibited cable operators from treating cable programming services more favorably than broadcast signals for purposes of material degradation. We seek comment on the application of the existing or a new non-discrimination rule in this context. We also seek comment on how to verify that cable operators are abiding by this requirement. Should we identify specific measurement tools? If so, what should those measurement tools be? We also request comment and specific estimates regarding the costs of compliance with this proposal, particularly with respect to small cable operators, and whether there are alternative means that would minimize the economic impact for small cable operators while still complying with the statutory requirements. As noted in the *First Report and Order* , it may be especially burdensome for small systems with limited channel capacity (such as systems with fewer than 330 MHz) to carry an HDTV signal if they are not otherwise providing HDTV programming. Therefore, if a small system that is not otherwise carrying any HDTV signals is required to carry a broadcast signal in HDTV, such that the signal straddles two 6 MHz channels ( *i.e.* , if they are passing through the broadcaster's 8-VSB modulated signal), the system may include all of the lost spectrum when calculating its one-third capacity for purposes of the statutory cap. 13. Our option of carrying all content bits is responsive to the Petitions for Reconsideration filed in this docket in which broadcasters requested that we require cable operators to carry “the entire qualified digital bit stream of each station in the format in which the broadcaster originally transmitted it.” It also is consistent with the requests for clarification made by the Broadcast Group and the Noncommercial Broadcasters that the material degradation requirements “ensure that cable subscribers do not receive DTV service, including HDTV, that is inferior in quality to the service available over the air.” In addition, by seeking comment on measurement tools, this option is responsive to broadcast commenters' concern that the material degradation standard adopted in the *First Report and Order* did not provide an objective way to evaluate material degradation. 14. We request comment on this option. We specifically request comment on how cable operators are to distinguish between bits with content and so-called “null bits” (so-called “null bits” need not be passed through or included in the signal as carried, as they are, as the name implies, empty of any content), and whether material degradation could result from failure to carry these empty bits. We also recognize that bandwidth-conserving techniques commonly are used by cable operators to improve efficiency. Is there a way to permit the use of improved compression, statistical multiplexing, rate shaping (Rate shaping “describes bit rate adaptation techniques applied to MPEG-2 encoded streams, to further enhance bandwidth efficiency. This technique can substitute for decoding-encoding operations that are expensive, space consuming and ultimately harmful to content quality”), or other techniques that would not result in prohibited material degradation? 15. We further seek comment on whether, under the option of carrying all content bits, a cable operator that wishes to reduce the number of content bits in a digital broadcast signal first must demonstrate to the broadcaster that such reduction will not result in material degradation. In doing so, how might the cable operator demonstrate that, although not all of the content bits are being carried, the content will not be degraded in a material way? Would it be necessary and/or sufficient for the cable operator to demonstrate that the broadcast station's digital signal carriage does not differ from other broadcast or non-broadcast programmers? (We note that this latter comparison also would ensure that cable operators do not discriminate against some or all broadcast content as compared with non-broadcast content.) We seek comment on whether, under these circumstances, the cable operator must continue to pass through all of the content bits until an agreement has been reached with the broadcast station to permit the reduction in the number of bits. Similarly, we seek comment on a rule that when a broadcast station files a carriage complaint concerning material degradation, the cable operator must pass through all of the content bits during the pendency of the complaint. The Commission is required to resolve carriage complaints within 120 days after the filing of a complaint. In situations where negotiations between cable operators and broadcasters reach an impasse, cable operators may notify the station in writing of that fact and the station will then have 30 days from receipt of the letter to file a complaint with the Commission in order to preserve its claim. We seek comment on these options and on the procedures and mechanisms for cable operators and stations to engage in such discussions short of filing a carriage complaint with the Commission. B. Availability of Signals—Sections 614(b)(7) and 615(h) 16. Pursuant to Sections 614 and 615 of the Act, cable operators must ensure that all cable subscribers have the ability to view all local broadcast stations carried pursuant to mandatory carriage. Specifically, Section 614(b)(7) (for commercial stations) states that broadcast signals that are subject to mandatory carriage must be “viewable via cable on all television receivers of a subscriber which are connected to a cable system by a cable operator or for which a cable operator provides a connection.” Similarly, Section 615(h) for noncommercial stations states that “Signals carried in fulfillment of the carriage obligations of a cable operator under this section shall be available to every subscriber as part of the cable system's lowest priced tier that includes the retransmission of local commercial television broadcast signals.” These statutory requirements plainly apply to cable carriage of digital broadcast signals, and, as a consequence, cable operators must ensure that all cable subscribers—including those with analog television sets—continue to be able to view all commercial and non-commercial must-carry broadcast stations after February 17, 2009. Analog-only television sets plainly qualify as “television receivers” under Section 614(b)(7) at the present time, and we think that it is eminently reasonable to conclude that they will continue to fall within the scope of that term as it is used in Section 614(b)(7) after the transition. Below we seek comment on how to implement this statutory requirement. We note that all cable subscribers today are able to view all of their must-carry stations, and we believe that it is critical to the successful and timely conclusion of the DTV transition that they are not disenfranchised by the switch to digital-only broadcasting. We therefore are mindful of the need to minimize the burden imposed on consumers, including cable subscribers with analog television sets, by the end of the DTV transition. 17. To achieve compliance with the viewability requirement of Sections 614(b)(7) and 615(h) after the end of the DTV transition, we propose that, in order to ensure that subscribers with analog television sets remain able to view all local broadcast television stations electing mandatory carriage, cable operators must either:
(1)Carry the signals of commercial and non-commercial must-carry stations in analog format to all analog cable subscribers, or
(2)for all-digital systems, carry those signals only in digital format, provided that all subscribers with analog television sets have the necessary equipment to view the broadcast content. In the 2001 *First Report and Order,* the Commission afforded a digital-only station mandatory carriage rights pursuant to Sections 614 and 615, coupled with the option to request that its digital signal be carried on the cable system for delivery to subscribers in an analog format, at the station's expense (a mechanism also referred to as “down-conversion.”). This requirement would be in addition to the requirement that the cable operator pass through the HD signal to cable subscribers of an HD package, as discussed above. We believe that these proposals are consistent with our articulation of carriage requirements in the analog must-carry context, in which the Commission has made clear that mere transmission of the must-carry signal is not sufficient to meet the requirements of Section 614(b)(7). The Commission stated in 1993 that: We believe that the 1992 Act is clear in its requirement that all local commercial television stations carried in fulfillment of the must-carry requirements must be provided to every cable subscriber and must be viewable on all television sets that are connected to the cable system by a cable operator for which the cable operator provides a connection. The Act does not give the Commission authority to exempt any class of subscribers from this requirement. In other words, the signal must be “viewable” on all television sets connected to the cable provider's system. We seek comment on these proposals. 18. As we consider these issues, we are cognizant that the ultimate goal of Congress is that every customer should enjoy the benefits of the digital transition. That is, our policies should advance the goal of transitioning all consumers—including cable consumers—to digital. We seek comment on ways to promote this goal within the context of this proceeding. In particular, we seek comment on ways to move cable subscribers from analog to digital in a manner consistent with the statute and consumer expectations. 19. Under the Commission's interim down-conversion policy for digital-only stations during the transition, broadcasters that request carriage of an analog version of their digital signal must pay for the cost of down-conversion. Under the first option set forth in our proposal, however, cable operators themselves would elect to satisfy their obligations under Sections 614 and 615 by carrying a digital signal in analog format to ensure that the signal is viewable by all subscribers. Given the circumstances, should cable operators be responsible for any expense associated with down-conversion? 20. Finally, we note that, in the *First Report and Order,* the Commission concluded “not to require a cable operator to provide subscribers with a set top box capable of processing digital signals for display on analog sets.” That decision, however, was premised on factual considerations that will not apply in a post-transition environment. Specifically, the Commission was reluctant to require cable subscribers to obtain such equipment because the content available on the digital signal likely would have been identical to analog programming to which subscribers already had access. In that same vein, the Commission pointed out that the obligation to simulcast—which later was eliminated—weighed against requiring the provision of equipment necessary to view a digital signal. However, given that our proposal here would apply to the carriage of digital signals after the end of analog broadcasting, we believe that the Commission's 2001 decision is not directly relevant since subscribers with analog sets after the transition will face the prospect of not being able to view the signals of must-carry stations unless they possess the necessary equipment ( *i.e.* , a Digital-Cable-Ready television set or a digital cable set-top box). Nevertheless, we seek comment on this issue. IV. Procedural Matters A. Filing Requirements 21. *Ex Parte Rules.* This proceeding will be treated as a “permit-but-disclose” proceeding subject to the “permit-but-disclose” requirements under Section 1.1206(b) of the Commission's rules. Ex parte presentations are permissible if disclosed in accordance with Commission rules, except during the Sunshine Agenda period when presentations, ex parte or otherwise, are generally prohibited. Persons making oral ex parte presentations are reminded that a memorandum summarizing a presentation must contain a summary of the substance of the presentation and not merely a listing of the subjects discussed. More than a one- or two-sentence description of the views and arguments presented is generally required. Additional rules pertaining to oral and written presentations are set forth in Section 1.1206(b). 22. *Comments and Reply Comments.* Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (“ECFS”) or by filing paper copies. *See* Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). 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). 23. Comments filed through ECFS can be sent as an electronic file via the Internet to *http://www.fcc.gov/e-file/ecfs.html* . Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, U.S. Postal mailing address, and the applicable docket number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to *ecfs@fcc.gov,* and should include the following words in the body of the message: “get form <your e-mail address>.” A sample form and directions will be sent in reply. 24. Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service (although we continue to experience delays in receiving U.S. Postal Service mail). 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. U.S. Postal Service first-class mail, Express Mail, and Priority Mail, should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary: Office of the Secretary, Federal Communications Commission. 25. *Availability of Documents.* Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. Persons with disabilities who need assistance in the FCC Reference Center may contact Bill Cline at
(202)418-0267 (voice),
(202)418-7365 (TTY), or *bill.cline@fcc.gov* . These documents also will be available from the Commission's Electronic Comment Filing System. Documents are available electronically in ASCII, Word 97, and Adobe Acrobat. Copies of filings in this proceeding may be obtained from Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554; they can also be reached by telephone, at
(202)488-5300 or
(800)378-3160; by e-mail at *fcc@bcpiweb.com* ; or via their 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 and Governmental Affairs Bureau at
(202)418-0530 (voice),
(202)418-0432 (TTY). B. Initial Regulatory Flexibility Analysis 26. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis
(IRFA)of the possible economic impact on a substantial number of small entities by the policies and rules proposed in this *Second Further Notice of Proposed Rulemaking (“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 indicated on the first page of the Order. The Commission will send a copy of the *Second FNPRM,* including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the *Second FNPRM* and IRFA (or summaries thereof) will be published in the **Federal Register** . A. Need for, and Objectives of, the Proposals 27. This *Second FNPRM* seeks comment on several issues relating to the carriage of digital television broadcast stations after the analog to digital transition. Our goal in this proceeding is to determine how to implement the statutory requirements under Sections 614 (local commercial television station mandatory carriage) and 615 (noncommercial educational television station mandatory carriage) of the Communications Act of 1934, as amended (the “Act”), when digital broadcasters seek mandatory carriage for their digital signal after February 17, 2009, the date established by Congress as to when analog service must cease. We remind industry of our 2001 decision regarding material degradation ( *i.e.* , that a broadcast signal delivered in HDTV to a cable system must be carried by that system in HDTV). In addition, we seek comment on the proposal that cable operators be required to carry all of the primary video and program-related content bits transmitted by the broadcaster and on the alternative proposal to rely on the existing non-discrimination requirement or a new non-discrimination rule to provide a better objective test for material degradation. We also seek comment on procedures by which cable operators could demonstrate that, although they were not carrying every content bit ( *e.g.* , through the use of improved compression or other efficiency maximizing techniques), they nevertheless were providing must-carry digital signals without material degradation. The *Second FNPRM* proposes that cable operators can comply with the “viewability” provisions of Sections 614 and 615 (as discussed in the *Second FNPRM* ) and ensure that cable subscribers with analog television sets are able to continue to view all must-carry stations after the end of the DTV transition by either:
(1)Carrying the digital signal in analog format to ensure that the signal is viewable by all subscribers, or
(2)for all-digital systems, carry those signals only in digital format, provided that all subscribers with analog television sets have the necessary equipment to view the broadcast content. B. Legal Basis 28. The authority for the action proposed in this rulemaking is contained in Sections 1, 4(i) and (j), 614, and 615 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (j), 534, and 535. C. Description and Estimate of the Number of Small Entities To Which the Proposals Will Apply 29. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules, if adopted. The RFA 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 which:
(1)Is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)satisfies any additional criteria established by the Small Business Administration (“SBA”). The rules we may adopt as a result of the comments filed in response to this *Second Further Notice of Proposed Rulemaking* will primarily affect cable operators and television stations. A description of these small entities, as well as an estimate of the number of such small entities, is provided below. 30. *Cable and Other Program Distribution.* The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged as third-party distribution systems for broadcast programming. The establishments of this industry deliver visual, aural, or textual programming received from cable networks, local television stations, or radio networks to consumers via cable or direct-to-home satellite systems on a subscription or fee basis. These establishments do not generally originate programming material.” The SBA has developed a small business size standard for Cable and Other Program Distribution, which is: all such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, under this size standard, the majority of firms can be considered small. We note, however, that the proposals at issue in this Second FNPRM only apply at this time to cable operators, and not other MVPD providers. 31. *Cable Companies and Systems.* The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. Industry data indicate that, of 1,076 cable operators nationwide, all but eleven are small under this size standard. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Industry data indicate that, of 7,208 systems nationwide, 6,139 systems have under 10,000 subscribers, and an additional 379 systems have 10,000-19,999 subscribers. Thus, under this second size standard, most cable systems are small. 32. *Cable System Operators.* The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Industry data indicate that, of 1,076 cable operators nationwide, all but ten are small under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore we are unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard. 33. *Television Broadcasting.* The proposed rules and policies apply to digital television broadcast licensees, and potential licensees of digital television service. The SBA defines a television broadcast station as a small business if such station has no more than $13 million in annual receipts. Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.” According to Commission staff review of the BIA Publications, Inc. Master Access Television Analyzer Database
(BIA)on October 18, 2005, about 873 of the 1,307 commercial television stations (or about 67 percent) have revenues of $12 million or less and thus qualify as small entities under the SBA definition. We note, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. 34. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent. 35. *Other Program Distribution.* The SBA-recognized definition of Cable and Other Program Distribution includes other MVPDs, such as HSD, MDS/MMDS, ITFS, LMDS and OVS. This definition provides that a small entity is one with $13.5 million or less in annual receipts. As previously noted, according to the Census Bureau data for 2002, there were a total of 1,191 firms that operated for the entire year in the category of Cable and Other Program Distribution. Of this total, 1,087 firms had annual receipts of under $10 million and an additional 43 firms had receipts of $10 million or more, but less than $25 million. The Commission estimates that the majority of providers in this category of Cable and Other Program Distribution are small businesses. 36. While SBA approval for a Commission-defined small business size standard applicable to ITFS is pending, educational institutions are included in this analysis as small entities. There are currently 2,032 ITFS licensees, and all but 100 of these licenses are held by educational institutions. Thus, the Commission estimates that at least 1,932 ITFS licensees are small businesses. 37. *Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing.* 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. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities 38. The *Second Further Notice of Proposed Rulemaking* seeks comment on statutory interpretations and proposals to address post-transition obligations of cable operators with respect to carriage of digital broadcast signals pursuant to the must carry requirements in the Communications Act. Small cable operators currently have obligations with respect to carriage of local commercial and non-commercial broadcast stations which vary according to the size of the cable system. As with existing statutory and regulatory requirements, small cable operators will need engineering and legal services to comply with the proposed rules. The *Second FNPRM* reiterates the Commission's 2001 decision regarding material degradation and requests comment on requiring cable operators be required to carry all of the primary video and program-related content bits transmitted by the broadcaster and on an alternative proposal to rely on the existing non-discrimination requirement or a new non-discrimination rule to provide a better objective test for material degradation. The 2001 *First Report and Order* recognized that the material degradation requirements could impact small cable operators disproportionately and made special provision for such situations. This recognition is retained in the proposals set forth in the *Second FNPRM.* The *Second FNPRM* also notes that cable operators must make the primary video and any program-related material transmitted by a digital broadcaster electing mandatory carriage viewable by all of their subscribers and proposes to permit cable operators to comply with the “viewability” provisions by either:
(1)Carrying the signals of commercial and non-commercial must-carry stations in analog format to all analog cable subscribers, or
(2)for all-digital systems, carry those signals only in digital format, provided that all subscribers with analog television sets have the necessary equipment to view the broadcast content. Small cable operators will need engineering and legal analysis to comply with this proposal. The *Second FNPRM* seeks comment on the cost of compliance to small cable operators and solicits alternative approaches that would reduce the burden on small cable operators while still complying with statutory requirements. Small broadcast stations will also be affected by the proposed rules and other issues raised in the *Second FNPRM,* but we do not have any reason to expect that the compliance burden will be any greater than under the existing rules, except that initially, broadcasters may need additional legal services. E. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 39. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others):
(1)The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities;
(3)the use of performance, rather than design, standards; and
(4)an exemption from coverage of the rule, or any part thereof, for small entities. We seek comment on the applicability of any of these alternatives to affected small entities. 40. The requirements proposed in the *Second FNPRM* are the result of statutory requirements that do not expressly provide exceptions for small entities. Broadcast stations, including small entity stations, are afforded the flexibility to elect mandatory carriage of their digital signal or elect to negotiate carriage with cable systems. The proposals do not contemplate imposing any significant burdens on small television stations, but station licensees and other parties are encouraged to submit comment on the proposals' impact on small television stations. Every effort will be made to minimize the impact of any adopted proposals on cable operators. In this IRFA, we seek comment on whether there is a specific legal basis for affording operators that qualify as small systems special consideration in this regard. We anticipate that more and more cable systems will become all-digital cable systems, thereby minimizing any potential impact that our proposals, if adopted, might have. Finally, we are mindful of the potential concerns of small entities and will, therefore, continue to carefully scrutinize our policy determinations going forward. We invite small entities to submit comment on how the Commission could further minimize potential burdens on small entities if the proposals provided in the *Second FNPRM,* or those submitted into the record, are ultimately adopted. F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules 41. None. V. Ordering Clauses 42. *It is ordered* that, pursuant to authority contained in Sections 4, 303, 614, and 615 of the Communications Act of 1934, as amended, 47 U.S.C. 154, 303, 534, and 535, this *Second Further Notice of Proposed Rulemaking* is hereby adopted. 43. *It is further ordered* that the Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this *Second Further Notice of Proposed Rulemaking,* including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E7-10962 Filed 6-5-07; 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 Remove the Bliss Rapids Snail (Taylorconcha serpenticola) From the List of Endangered and Threatened Wildlife AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of 90-day petition finding and initiation of status review. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to remove the Bliss Rapids snail ( *Taylorconcha serpenticola* ) from the Federal List of Endangered and Threatened Wildlife
(List)pursuant to the Endangered Species Act (Act). We find that the petition presents substantial scientific information that delisting the Bliss Rapids snail may be warranted, and are initiating a status review. We plan to conduct this review concurrent with the ongoing status review initiated on July 27, 2004, which we are required to make every 5 years under section 4(c)(2)(A) of the Act. We are requesting submission of any new information on the Bliss Rapids snail since its original listing as a threatened species in 1992. At the conclusion of our status review, we will make the requisite recommendation under section 4(c)(2)(B) of the Act and issue a 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act. DATES: The finding announced in this document was made on June 6, 2007. To be considered in the 12-month finding on this petition or the 5-year review, comments and information must be submitted to us by September 4, 2007. ADDRESSES: You may submit new information, materials, comments, or questions concerning this species by any one of the following methods: 1. You may submit comments and information to the Field Supervisor, *Attention:* Bliss Rapids Snail Comments, Snake River Fish and Wildlife Office, 1387 S. Vinnell Way, Suite 368, Boise, Idaho 83709. 2. You may hand-deliver written comments and information to the above address. 3. You may fax your comments to 208-378-5262. 4. You may go to the Federal rulemaking internet portal: *http://www.regulations.gov.* Follow the instructions for submitting comments. 5. You may e-mail your comments to *fw1srbocomment@fws.gov.* Please include “Bliss Rapids Snail Comments” in the subject line for faxes and e-mails. Please submit electronic comments in unformatted text, and avoid the use of special characters and encryption. FOR FURTHER INFORMATION CONTACT: Susan Burch, Fish and Wildlife Biologist, Snake River Fish and Wildlife Office (see ADDRESSES ); telephone: 208-378-5243; or e-mail: *susan_burch@fws.gov.* SUPPLEMENTARY INFORMATION: Public Information Solicited When we make a finding that substantial information exists to indicate that listing or delisting a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting any additional information, comments, or suggestions on the Bliss Rapids snail from the public, State and Federal agencies, Tribes, the scientific community, industry or environmental entities, or any other interested parties. Information sought includes any data regarding historical and current distribution, biology and ecology, ongoing conservation measures for the species or its habitat, and threats to the species or its habitat. We also request information regarding the adequacy of existing regulatory mechanisms. Please note that comments merely stating support or opposition to the actions under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species shall be made “solely on the basis of the best scientific and commercial data available.” At the conclusion of the status review, we will issue the 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act (16 U.S.C. 1531 *et seq.* ). If you wish to comment or provide information, you may submit your comments and materials concerning this finding to the Field Supervisor (see ADDRESSES ) by the date listing in the DATES section. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the address listed in the ADDRESSES section. Background Section 4(b)(3)(A) of the Endangered Species Act
(Act)of 1973, as amended (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. The finding is based on information contained in the petition and information otherwise available in our files at the time we make the finding. To the maximum extent practicable, we are to make the finding within 90 days of receiving the petition, and publish our notice of the finding in the **Federal Register** . This finding summarizes the information included in the petition and information available to us at the time of the petition review. Under section 4(b)(3)(A) of the Act and our regulations in 50 CFR 424.14(b), our review of a 90-day finding is limited to a determination of whether the information in the petition meets the “substantial scientific or commercial information” threshold. Our standard for substantial information 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 information was presented, we are required to promptly commence a review of the status of the species and publish the results of that status review in a 12-month finding. Species Information The Bliss Rapids snail ( *Taylorconcha serpenticola* ) is found primarily on rocky surfaces in riverine and coldwater spring habitats along a 65-mile
(mi)(105 kilometer (km)) stretch of the Snake River in the Hagerman area of southern Idaho (Richards *et al.* 2006, pp. 34-35). They can be locally abundant in springs and spring habitats (Richards *et al.* 2006, pp. 37, 99), but when they occur in non spring influenced riverine habitats, it is in low densities (Richards *et al.* 2006, p 37). They are not known to occur in reservoirs or on organic, fine sediments (Richards *et al.* 2006, pp. 21, 23-24). The Bliss Rapids snail appears to be a univoltine, meaning it has a 1-year life cycle and the adult population is replaced yearly (Hershler *et al.* 1994, pp. 239-240); however, they may have more than one reproductive event within a year (Richards 2004, p. 119). We listed the Bliss Rapids snail as threatened on December 14, 1992 (57 FR 59244). At that time, we determined that the Bliss rapids snail was threatened by construction of new hydropower dams, the operation of existing hydropower dams, degraded water quality, water diversions, the introduced New Zealand mudsnail ( *Potamopyrgus antipodarum* ), and the lack of existing regulatory protections (57 FR 59244). The Bliss Rapids snail was described as existing in discontinuously distributed populations along 204 river miles (328 river km) in the middle Snake River, being primarily concentrated in the Hagerman reach in tailwaters of Bliss and Lower Salmon Dams and several unpolluted springs (i.e., Thousands Springs, Minnie Miller Springs, Banbury Springs, Niagara Springs, and Box Canyon Springs). We finalized the Snake River Aquatic Species Recovery Plan, which included the Bliss Rapids snail, in 1995 (Service 1995). Critical habitat has not been designated for this species. Review of Petition On December 26, 2006, we received a petition from the Governor of Idaho and the Idaho Power Company
(IPC)requesting that the Bliss Rapids snail be removed from the List. The delisting petition cites a recent status review conducted by Richards *et al.* (2006), a review of Bliss Rapids snail sampling methodology prepared by Steward & Associates (2006), and information and data submitted to the Service at an August 24, 2006, informational meeting as support for their petition (Idaho 2006 in litt.). The petition clearly identified itself as a petition and included the requisite identification information for the petitioners, as required in 50 CFR 424.14(a). The petition cited information on the natural history of the Bliss Rapids snail, its population status, and advances in our understanding of the species' ecology and threats since listing. The petition states that many of the threats identified in the 1992 listing rule are no longer viable or have been attenuated by subsequent actions. It also states that the Bliss Rapids snail is more abundant, is more continuously distributed, and exists in more diverse habitats than previously recorded. Threats Analysis The factors for listing, delisting, or reclassifying a species are described at 50 CFR 424.11. We may delist a species only if the best scientific and commercial data available substantiate that it is neither endangered nor threatened. Delisting may be warranted as a result of:
(1)Extinction,
(2)recovery, and/or
(3)a determination that the original data used for classification of the species as endangered or threatened were in error. Section 4(a)(1) of the Act requires that we determine whether a species is endangered or threatened based on one or more of the five following factors:
(A)Present or threatened destruction, modification, or curtailment of habitat or range;
(B)overutilization for commercial, recreational, scientific, or educational purposes;
(C)disease or predation;
(D)inadequacy of existing regulatory mechanisms; or
(E)other natural or manmade factors affecting its continued existence. In making this 90-day finding, we evaluated whether information presented in the December 2006 petition, when considered along with information in our files, constitutes substantial scientific or commercial information such that delisting may be warranted. Our evaluation of this information is presented below. A. Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range Habitat Use Petitioners claim that Bliss Rapids snails are able to live in a variety of habitats previously thought to be unsuitable for the species, including reservoirs, based primarily on a status report by Richards *et al.* (2006). Richards *et al.* (2006, p. 3) reviewed the available information on Bliss Rapids snail collections and reported that the species has been found in areas of the Snake River that do not have known spring influence. However, the likelihood of Bliss Rapids snail occurrence decreased with increasing temperature in riverine habitats (Richards *et al.* 2006, p. 42), and the highest mean density for the spring-influenced habitat in the Snake River was 307.2 snails per meter-squared (m 2 ), compared to the highest mean density in non spring influenced habitat of 11.7 snails per m 2 (Richards *et al.* 2006, p. 37). Richards *et al.* (2006, p. 54) also reported that more Bliss Rapids snails were found in shallow depths than in deeper ones. Of 607 samples taken in the 3 reservoirs within the range of the Bliss Rapids snail, none contained Bliss Rapids snails (Richards *et al.* 2006, pp. 38-39), and, therefore, the Richards *et al.*
(2006)study does not support the petitioners' claim that reservoirs are suitable habitat. Their absence from reservoirs and areas of organic, fine sediments suggests that this species may be limited to aerobic substrates flushed by moving water (Richards *et al.* 2006, p. 23). At the time of listing, in 1992, we stated that: “Bliss Rapids snails occur on stable, cobble-boulder substratum only in flowing waters in the unimpounded reaches of [the] mainstem Snake River and also in a few spring alcove habitats in the Hagerman Valley. The species does not burrow in sediments and normally avoids surfaces with attached plants. Known river populations (or colonies) of the Bliss Rapids snail occur only in areas associated with spring influences or rapids edge environments and tend to flank shorelines. They are found at varying depths if dissolved oxygen and temperature requirements persist and are found in shallow (< 1 cm (.4 in)) permanent cold springs (Frest and Johannes 1992a)” (57 FR 59245). Information in our files suggests that populations are consistently larger, at least in terms of density and relative abundance, in coldwater springs and spring-fed tributaries compared to mainstem Snake River locations (Stephenson and Bean 2003, p. 12; Stephenson *et al.* 2004, pp. 14, 24; Clark *et al.* 2005, pp. 7, 46-47; Richards *et al.* 2006, pp. 37-38, 97-99), and the likelihood of Bliss Rapids snail occurrence decreases with increasing water temperature in riverine habitats (Richards *et al.* 2006, p. 42). Based on information presented by the petitioner, along with information in our files, most of the basic habitat requirements for Bliss Rapids snails are reaffirmed. Current information documents the occurrence of low densities of Bliss Rapids snails in Snake River reaches without obvious spring influence (based on visual inspection). The petitioners' claim that Bliss Rapids snails can live in reservoirs is not supported by the information provided. In fact, data provided by the petitioner strongly suggest that reservoirs do not provide suitable habitat for the species and likely impede metapopulation connectivity (Richards *et al.* 2006, pp. 38-39, p. 119). Range The petitioners claim that the species is more widely distributed than previously known. They provided a status report by Richards *et al.*
(2006)as the primary source of information to support their claim. Richards *et al.* (2006, pp. 33-34) found that, as of 2006, the Bliss Rapids snail was documented at 837 collection points in the free-flowing mid-Snake River, as compared with less than 15 collection points at the time of listing. Richards *et al.* (2006, pp. 119, 123) also state that Bliss Rapids snails exist as possibly 27 discontinuous populations along the Snake River, including 5 within river habitats and 22 in spring or spring-influenced habitats. Richards *et al.* (2006, pp. 34-35) state that Bliss Rapids snails were recorded in every one of the 22 non-reservoir miles (35 km) from River Mile
(RM)547.7, upstream to the head of Upper Salmon Falls Reservoir at RM 589.2 (a distance of 41.5 river miles (66.8 river km)). A total of 19.5 of those 41.5 river miles (31.4 of those 66.8 river km) are in-reservoir habitat, and therefore are not suitable for Bliss Rapids snails. At the time of listing we stated that: “Based on live collections, the species currently exists as discontinuously distributed populations over 204 river miles within its historic range. These populations are primarily concentrated in the Hagerman reach in tailwaters of Bliss and Lower Salmon Dams and several unpolluted springs (i.e., Thousand Springs, Minnie Miller Springs, Banbury Springs, Niagara Springs, and Box Canyon Springs)” (57 FR 59245). Information in our files now suggests that the farthest upstream population noted in the listing rule (i.e., the observation above American Falls at RM 749.8 (57 FR 59243)) may have been in error. Several factors, when considered together, support this conclusion:
(1)The reported observation is 151 river miles (243 river km) away from the nearest confirmed location of the Bliss Rapids snail (i.e., Niagara Springs at RM 599),
(2)the vouchered specimen cannot be located, and
(3)hundreds of samples for snails have been collected in and above American Falls Reservoir since the reported collection without further evidence of the species at that location. Given the information provided by the petitioner and other information in our files, we now know the Bliss Rapids snail to be distributed discontinuously over approximately 65 river miles (105 river km), rather than over 204 river miles (328 river km), as we stated in the listing rule (57 FR 59243). However, if we discount the observation above American Falls, which we now believe to be unreliable, the species is more widely and more continuously distributed than previously thought (Richards *et al.* 2006, p. 28). Construction of New Hydropower Dams The petition states that threats to Bliss Rapids snail habitat from future hydro-power development are not as they were perceived when the species was listed in 1992. The petitioners provided the following documents as evidence that hydropower permits are no longer moving forward:
(1)A 2002 notice of surrender of preliminary permit for the River Side Project (Federal Energy Regulatory Commission
(FERC)2002),
(2)2002 Federal Energy Regulatory Commission
(FERC)orders denying application for preliminary permits for the Eagle Rock and Star Falls Hydroelectric Projects (FERC 2002a, 2002b), and
(3)a 2003 notice of surrender of preliminary permit for the Auger Falls Project (FERC 2003). The petitioners also provided documents from the State of Idaho (Idaho 2006) and Richards *et al.*
(2006)indicating that all recent permits for the construction of new dams along the Mid-Snake River reach where the Bliss Rapids snail occurs have either lapsed or have been denied by the FERC. At the time of listing, there were six active proposals for new hydroelectric projects in the middle-Snake River. In our listing rule, we stated: “Six proposed hydroelectric projects, including two high dam facilities, would alter free flowing river reaches within the existing range of [the Bliss Rapids snail]. Dam construction threatens the [Bliss Rapids snail] through direct habitat modification and moderates the Snake River's ability to assimilate point and non-point pollution. Further hydroelectric development along the Snake River would inundate existing mollusk habitats through impoundment, reduce critical shallow, littoral shoreline habitats in tailwater areas due to operating water fluctuations, elevate water temperatures, reduce dissolved oxygen levels in impounded sediments, and further fragment remaining mainstem populations or colonies of these snails” (57 FR 59251). We have no information in our files suggesting that future hydropower development in the middle-Snake River is likely to occur; therefore, we accept the petitioner's claim that the threats from hydropower development have dissipated since the time of listing. Operation of Existing Hydropower Dams The status report provided by the petitioner (Richards *et al.* 2006) states that threats to Bliss Rapids snail habitat from the operation of hydropower dams (i.e., peak loading) are not as they were perceived when the species was listed in 1992. Richards *et al.* (2006, p. 92) state that free-flowing Bliss Rapids snail habitat downstream of the dams is improved because fine sediments settle in the reservoirs above the dams, resulting in reduced fine sediments and increased rocky substrates, the preferred habitat of the Bliss Rapids snail, downstream of the dam. They also state that rapid changes in flow below hydropower dams have not eliminated Bliss Rapids snails from shallow shoreline areas; on the contrary, highest densities of riverine Bliss Rapids snail populations directly below hydropower dams occurred in the zones of highest flow fluctuations (Richards *et al.* 2006, p. 92). Richards *et al.*
(2006)cite a laboratory exposure study (Richards 2006) that concluded Bliss Rapids snails could survive for many hours to several days in moist conditions (i.e., undersides of cobbles) when air temperatures were greater than 32 °F (0 °C). In an ongoing field study, Richards (unpublished data, cited in Richards *et al.* 2006, pp. 125-126) also found that Bliss Rapids snails could survive on the damp undersides of exposed cobbles alongside the mid-Snake River for up to several days. Because fluctuation of water levels due to load-following only occurred for several hours at a time (William H. Clark, Idaho Power Company, personal communication, cited in Richards *et al.* 2006, p. 126), Richards *et al.* (2006, pp. 125-126) concluded that direct mortality to Bliss Rapids snails from exposure due to load-following events should be minimal. The petitioners did not provide any data that assesses the sub-lethal effects (e.g., impacts to reproduction, food sources, etc.) of peak-loading. At the time of listing, we stated: “Peak-loading, the practice of artificially raising and lowering river levels to meet short-term electrical needs by local run-of-the-river hydroelectric projects also threatens [the Bliss rapids snail]. Peak-loading is a frequent and sporadic practice that results in dewatering mollusk habitats in shallow, littoral shoreline areas * * * these diurnal water fluctuations prevent the [Bliss Rapids snail] from occupying the most favorable habitats.” Information in our files suggests that air temperatures within the range of Bliss Rapids snails regularly fall below 32 °F (0 °C) between November and March (Richards 2006, p. 28) and that the amount of time Bliss Rapids snails can survive while exposed to air temperatures below freezing is significantly less than at 32 °F (0 °C) (e.g., in less than an hour, half of the individuals in a laboratory trial subjected to a temperature of 19 °F (−7 °C) died) (Richards 2006, p. 12). Therefore, peak-loading during winter months may cause Bliss Rapids some snail mortality (Richards 2006, p. 15), but field studies have not been conducted to assess the likely impact on the population. Furthermore, we have no data in our files that assesses the sub-lethal effects of peak-loading on Bliss Rapids snails. Although there are some uncertainties regarding the actual effects of peak-loading on Bliss Rapids snails in the wild, the petitioners have presented substantial information suggesting that the threats from peak-loading may be less than we perceived at the time of listing. Water Quality The status report provided by the petitioner (Richards *et al.* 2006, pp. 5-6) states that threats to Bliss Rapids snail habitat from water pollution are not as they were perceived when the species was listed in 1992. Richards *et al.* (2006, pp. 5-6, 86) state that significant nutrient and sediment reduction has occurred in the Snake River following implementation of the Idaho Nutrient Management Act and regulated Total Maximum Daily Load
(TMDL)reductions from the mid-1990s to the present. Hypereutrophy (planktonic algal blooms and nuisance rooted aquatic plant growths), prior to listing in 1992, was very severe during drought cycles when deposition of sediments and organic matter blanketed river substrate, often resulting in unsuitable habitat conditions for Bliss Rapids snails. Although some nutrient and sediment reduction has occurred since listing (Richards *et al.* 2006, p. 5), water quality of the river from RM 600 to 589 is subject to “very large inflows” of agriculture and aquaculture wastewater flowing to the river below Twin Falls to lower Salmon Falls dam at RM 572; as a result, nutrient and sediment concentrations increase during low summer flows (Richards *et al.* 2006, p. 91). Furthermore, the highest densities and occurrence frequencies of Bliss Rapids snails in riverine habitats were immediately downstream of the mid-Snake river reach considered to be the most seriously polluted reach of the river (from Shoshone Falls downstream to Upper Salmon Falls Dam (Richards *et al.* 2006, p. 33)). Information in our files shows that phosphorus concentrations, the key nutrient leading to hypereutrophic conditions in the middle Snake River, exceeded Environmental Protection Agency
(EPA)guidelines for the control of nuisance algae at numerous locations along the Snake River from 1989 to 2002, including areas immediately upstream of Bliss Rapids snail colonies (Hardy *et al.* 2005, p. 13). Several water quality assessments have been completed by the EPA, U.S. Bureau of Reclamation (USBR), and IPC, and all generally agree that water quality in the Snake River of southern Idaho meets Idaho water quality standards for aquatic life for some months of the year, but may not meet these standards when temperatures are high and flows are low (Meitl 2002, p. 33). Idaho Department of Environmental Quality's
(IDEQ)2005 performance and progress report to the EPA states that projects are meeting the Idaho non-point source pollution program goals (IDEQ 2006, p. 8). However, others report that water quality has not improved appreciably between 1989 and 2002 (Hardy *et al.* 2005, pp. 19-21, 49, 51). Although the highest densities and occurrence frequencies of Bliss Rapids snails in riverine habitat were recorded immediately downstream of the mid-Snake River reach considered to be the most seriously polluted reach of the river (from Shoshone Falls downstream to Upper Salmon Falls Dam), this reach also receives a large infusion of coldwater spring outflow. No riverine Bliss Rapids snails were detected upstream of Upper Salmon Falls Dam (Richards *et al.* 2006, pp. 31-32, 35-37). Given the information provided by the petitioner and other information in our files, we find that there are some uncertainties regarding the effects of degraded water quality in the Snake River on Bliss Rapids snails; however, we believe the petitioners have presented substantial information suggesting that the threats from degraded water quality may be less than we perceived at the time of listing. Water Diversions (Springs) The status report provided by the petitioner (Richards *et al.* 2006, p. 6) states that some coldwater spring habitats within the range of the Bliss Rapids snail previously threatened by water development have been preserved in corporate or public trusteeship. Information in our files shows that springs occupied by Bliss Rapids snails that are protected from further water development include Thousand Springs, Box Canyon Springs (Newcomer in litt. 2005), and Banbury Springs (Holmstead and Holthuijzen 2005). However, there are hundreds of other springs in the Hagerman Valley, and nearly all exist on private land in areas that have not been surveyed for Bliss Rapids snails due to lack of access. We do not know whether these springs are being protected or whether they have already been developed for aquaculture, hydropower, or irrigation water. Based on information provided by the petitioner, along with other information in our files, some spring habitats occupied by Bliss Rapids snails are being protected in preserves. However, the status of coldwater springs on some private lands remains largely unknown. Water Diversions (Snake River) The status report provided by the petitioner (Richards *et al.* 2006, p. 5) states that threats to Bliss Rapids snail habitat from diversion of water from the Snake River for irrigation and aquaculture are not as they were perceived when the species was listed in 1992. According to Richards *et al.* (2006, p. 83), over the past 35 years, the river has experienced higher energy flushing cycles than in the prior 60 years. High mean annual flows reached approximately 18,000 cubic feet per second
(cfs)in 1984 and 1997. In 2006, flushing flows had again occurred with sustained mean daily flows at King Hill in excess of 20,000 cfs (Richards *et al.* 2006, pp. 83-84). At the time of listing, we stated: “Water quality continues to degrade in the middle Snake River from increased water use and withdrawal, aggravated by recent drought-induced low flows. This 121 mile (195 kilometer) stretch of the Snake River [i.e., the middle Snake River] is impacted by agricultural return flows; runoff from between 500 and 600 dairies and feedlots; effluent from over 140 private, state, and Federal fish culture facilities; and point source (e.g., municipal sewage) discharges (Idaho Department of Health and Welfare
(IDHW)1991a). These factors contribute to increased nutrient loads and concentrations which in turn adversely impact the lotic species. Nutrient loading contributes to dense blooms of free-living and attached filamentous algae, which the species cannot utilize. This algae will often cover rock surfaces, effectively displacing suitable snail habitats and food resources. Stream sediments also become anoxic as high biochemical oxygen demand during the aquatic growing season and seasonal algae die offs occur.” We accept the characterization of the flow data at King Hill provided by the petitioner. However, the petitioners have not explained how a few years of flushing flows reduces the threat of high concentrations of pollutants due to low Snake River flows in other years. Therefore, we find that the petition has not presented substantial information suggesting that threat of mainstem Snake River water diversions to Bliss Rapids snails has diminished. Groundwater Mining The status report provided by the petitioner (Richards *et al.* 2006, p. 5) states that threats to Bliss Rapids snail coldwater spring influenced habitats from groundwater mining for irrigation and aquaculture are not as they were perceived when the species was listed in 1992. Average annual spring flows increased from about 4,400 cfs in 1910 to approximately 6,500 cfs in the early 1960s because of widespread flood irrigation causing artificial recharge of the aquifer (Richards *et al.* 2006, p. 84, 87). As a result of more efficient water practices from 1960 to the present (i.e., switching from flood irrigation to more efficient center-pivot irrigation systems) more water was pumped from the aquifer while water percolation into the aquifer declined, resulting in declines in average annual spring flows to about 5,000 cfs (Richards *et al.* 2006, pp. 84, 87). The petitioners also provided a number of documents indicating that there is a moratorium on some groundwater development in the eastern Snake River plain (Idaho 2004) and that there are current efforts to artificially recharge the Snake River aquifer to stabilize or increase spring flows (Idaho 2005). These efforts have the potential to benefit the Bliss Rapids snails, but their effects have not yet been realized in terms of stable or increasing spring flows (Richards *et al.* 2006, p. 84). Information in our files shows that there are several in-stream flow targets, set by the State of Idaho, which have the potential to conserve populations of Bliss Rapids snails (IDWR 2006a). However, water rights with earlier priority dates have the right to fill their needs before the minimum stream flow is considered. Senior diversions can legally dewater the stream in a drought year or when low flows occur, leaving no water for the minimum stream flow (IDWR 2006b). Therefore, the current and future conservation benefits of recently established in-stream flow targets for the Bliss Rapids snail are uncertain. Information provided by the petitioner, along with other information in our files, indicates that the State of Idaho has taken steps to improve groundwater recharge, and limit new groundwater development with the eastern Snake River plain; however, the Snake River Plain aquifer level continues to decline and instream-flow targets and moratoriums on new groundwater development do not prevent those with senior water rights from diminishing flows in drought years or during low flows. Therefore, we find that the petitioners have not presented substantial information indicating that the threat of groundwater mining to the Bliss Rapids snail may be less than the best available information indicated at the time of listing in 1992. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes The petitioners did not provide information regarding the overutilization of Bliss Rapids snails for commercial, recreational, scientific, or educational purposes, and we do not have information in our files suggesting that this factor is a threat to the species. C. Disease or Predation The petitioners did not provide information regarding the effects of disease or predation on Bliss Rapids snails. At the time of listing, we stated that changes in the fish fauna of the middle Snake River had been suggested as a potential threat to the Bliss Rapids snail (57 FR 59254). At that time, we had no data to support this suggestion, and we still have no information in our files suggesting that disease or predation are significant threats to the Bliss Rapids snail. D. The Inadequacy of Existing Regulatory Mechanisms The petitioners provided numerous documents regarding water rights, aquifer recharge, and groundwater management in the Snake River and Snake River Plain aquifer (Idaho 2006 in litt.). These documents indicate that the State of Idaho has regulatory mechanisms to limit or exclude the development of new surface water or groundwater rights within the range of the Bliss Rapids snail. These documents also indicate that the State has regulatory mechanisms to prioritize existing water rights based on seniority. At the time of listing, we found inadequate regulatory mechanisms to be a threat because
(1)regulations were inadequate to curb further water withdrawal from groundwater spring outflows or tributary spring streams,
(2)it was unlikely that pollution control regulations would reverse the trend in nutrient loading any time soon,
(3)there was a lack of protections for invertebrate species in Idaho, and
(4)regulations did not require FERC or the U.S. Army Corp of Engineers to address Service concerns regarding licensing hydroelectric projects or permitting projects under the Clean Water Act for unlisted snails. Information provided by the petitioner, along with information in our files, suggests that the threat to Bliss Rapids snails from inadequate regulatory mechanisms may be less than we perceived at the time of listing. Although there are no regulatory mechanisms in place to prevent senior diversions under current water rights allocations from dewatering the stream (see Groundwater Mining section above), there are now regulatory mechanisms to limit future surface water and groundwater development, and some pollution control regulations have been implemented (see Water Quality section above). E. Other Natural or Manmade Factors Affecting Its Continued Existence The status report provided by the petitioner (Richards *et al.* 2006, p. 5) states that threats to the Bliss Rapids snail from the New Zealand mudsnail ( *Potamopyrgus antipodarum* ) are not as they were perceived when the species was listed in 1992. Richards *et al.* (2006, p. 6) note that the New Zealand mudsnail has not caused any local extirpations of Bliss Rapids snails, and that they have not colonized headwater spring habitats. However, in areas where the species do coexist, Richards *et al.* (2006, pp. 61, 64, 68) found that Bliss Rapids snails may be competitively excluded by New Zealand mudsnails, and that Bliss Rapids snail densities would be higher in the absence of New Zealand mudsnails. At the time of listing, we stated that New Zealand mudsnails were not abundant in coldwater springflows with colonies of Bliss Rapids snails, but that they did compete with the Bliss Rapids snail in the mainstem Snake River (57 FR 59254). We have no direct evidence that New Zealand mudsnails have displaced colonies of Bliss Rapids snails, but New Zealand mudsnails have been documented in dark mats at densities of nearly 400 individuals per square inch in free-flowing habitats within the range of the Bliss Rapids snail (57 FR 59254). Furthermore, New Zealand mudsnails have become established in every spring-fed creek or tributary to the Hagerman Reach that has been surveyed (USFWS 2007). Based on information provided by the petitioner, along with information in our files, New Zealand mudsnails appear to limit Bliss Rapids snail densities, except in headwater spring habitats. Although the information provided by the petitioners clarifies our understanding of competitive interactions between New Zealand mudsnails and Bliss Rapids snails, the primary conclusions of their review are consistent with our analysis at the time of listing. Therefore, we find that the petitioners have not provided substantial information indicating that the threats to Bliss rapids snails from New Zealand mudsnails may be less than the best available information indicated at the time of listing in 1992. Finding We have reviewed the delisting petition and the supporting documents, as well as other information in our files. We find that the delisting petition and other information in our files presents substantial information that delisting the Bliss Rapids snail may be warranted, and we are initiating a status review. Petitioners have provided a detailed status report that updates the state of knowledge regarding Bliss Rapids snail habitat use, distribution, and threats. The status report provides substantial information indicating that the Bliss Rapids snail is more widely distributed in the Hagerman area of southern Idaho than previously recorded, that it has been documented in areas without obvious spring influence based on visual inspections, and that threats from hydropower development and ongoing operation of hydropower dams may not be what we perceived when we listed the species in 1992. The status report also provides substantial information indicating that additional regulatory mechanisms now exist that could limit water development and water pollution in Bliss Rapids snail habitat. Based on our review of the petition and information in our files, other threats to the species remain, but we will fully evaluate these and determine whether or not delisting is warranted, in our 12-month finding in accordance with section 4(b)(3)(B) of the Act. 5-Year Review Section 4(c)(2)(A) of the Act requires that we conduct a review of listed species at least once every 5 years. We are then, under section 4(c)(2)(B), to determine whether or not any species should be removed from the List (delisted), or reclassified from endangered to threatened, or threatened to endangered. We initiated a 5-year review for the Bliss Rapids snail on July 27, 2004 (69 FR 44676). Because we are initiating a 12-month finding with this notice, and because the 12-month finding and 5-year review serve a similar purpose (i.e., to determine the appropriate classification of a species under the Act), the results of our 12-month finding will be adopted for our 5-year review. References A complete list of all references cited in this finding is available, upon request, from the Snake River Fish and Wildlife Office (see ADDRESSES section). Author The primary author of this document is Jesse D'Elia, Pacific Regional Office, Portland, Oregon. Authority The authority for this action is section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1531 *et seq.* ). Dated: May 25, 2007. Randall B. Luthi, Acting Director, Fish and Wildlife Service. [FR Doc. 07-2812 Filed 6-5-07; 8:45 am]
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  • 28 CFR 26
  • Pub. L. 109-177
  • Pub. L. 104-132
  • 492 U.S. 1
  • 40 CFR 180
  • 40 CFR 180.4
  • 40 CFR 2
  • 40 CFR 180.103(a)
  • 40 CFR 180.103(b)
  • 40 CFR 180.103(a)(1)
  • 40 CFR 180.103(a)(2)
  • 40 CFR 180.142(a)
  • 40 CFR 180.142(a)(8)
  • 40 CFR 180.6(a)(3)
  • 40 CFR 180.142(a)(3)
  • 40 CFR 180.142(d)
  • 40 CFR 180.142
  • 40 CFR 180.142(b)
  • 40 CFR 180.142(c)
  • 40 CFR 180.142(a)(6)
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  • 40 CFR 180.172(a)
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  • 40 CFR 180.172
  • 40 CFR 180.185(a)
  • 40 CFR 180.185(d)
  • 40 CFR 180.293
  • 40 CFR 180.293(a)(2)
  • 40 CFR 180.293(a)
  • 40 CFR 180.317(a)
  • 40 CFR 180.317(b)
  • 40 CFR 180.317(d)
  • 40 CFR 180.317(c)
  • 40 CFR 180.345(a)(1)
  • 40 CFR 180.345(a)
  • 40 CFR 180.345
  • 40 CFR 180.378(a)
  • 40 CFR 180.378(b)
  • 40 CFR 180.378(d)
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Cite28 CFR 26
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